1C. How RFRA May Make Religious Exemption Claims More Appealing to Courts Than They Were in the Constitutional Exemption Era

(For an introduction to this series of posts, see here.)

The RFRA religious exemption regime may seem less exemption-friendly than the Sherbert/Yoder-era constitutional exemption regime, precisely because it is only statutory. If Congress (or, for a state RFRA, a state legislature) dislikes an exemption that courts have recognized, it can pass a new statute rejecting that exemption. Congress can even block such exemptions proactively, for instance by saying up front that some statutes won’t be subject to religious exemptions. (Some state legislatures have indeed done that.)

The 1993 Congress could not bind future Congresses — only a constitutional amendment can do that — and it didn’t purport to try. RFRA makes clear that future statutes could be excluded from RFRA’s scope if “such law explicitly excludes such application by reference to [RFRA].” It also seems likely that they would also be excluded if “the plain import of a later statute directly conflicts with an earlier statute” (though courts are reluctant to find such direct conflicts because of the “powerful presumption against implied repeals”). As a result, exemptions recognized under RFRA, unlike exemptions recognized under the Free Exercise Clause in the Sherbert/Yoder era, are at the mercy of the legislature.

It’s possible, though, that the RFRA regime may sometimes prove to be more religious-exemption-friendly than the old constitutional exemption regime, precisely because it is statutory. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. Even a judge who thinks that granting a religious exemption from (say) a peyote ban might not cause that much harm, and who thinks the legislature might not have considered this particular question when it banned peyote, may be hesitant to tie the legislators’ hands by declaring that religious use of peyote is categorically protected. This might help explain why, under the supposedly forceful Sherbert/Yoder constitutional exemption regime, few religious exemption claims actually prevailed, either in the Supreme Court or in lower courts.

But under a RFRA regime, a judge may be more willing to decide close cases in a claimant’s favor, precisely because the decision isn’t final. “We think that granting the religious exemption won’t much undermine any compelling government interest — but if we’re mistaken, the legislature can easily correct us.” [UPDATE: Just to be clear, of course the legislature often won't correct the courts, for instance because the correction can't get past one of the houses of the legislature, or past an executive veto; but the point is that the legislature can correct the courts if it really does take the view -- to a degree sufficient to lead to legislative action -- that the grant of the religious exemption was a mistake.]

Second, while Sherbert/Yoder-era religious exemption decisions involved the courts overturning a legislative judgment (at least as to religious objector), RFRA decisions involve the courts implementing a legislative judgment. The rhetoric isn’t “Legislatures / regulators are barred by our interpretation of the Constitution from doing this, at least as to religious objectors.” Rather, the rhetoric is “The legislature has asked us to sometimes carve out exemptions from statutes / regulations, and we have followed the legislature’s request.”

I’m not sure to what extent courts will indeed take this view. There aren’t many lower court decisions applying the federal and state RFRAs, and there is only one Supreme Court decision applying the federal RFRA, Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006). But Gonzales nonetheless provides interesting (though limited) evidence on this.

Gonzales involved the UDV, “a Christian Spiritist sect based in Brazil, with an American branch of approximately 130 individuals. Central to the … faith is receiving communion through hoasca …, a sacramental tea made from two plants unique to the Amazon region. One of the plants … contains dimethyltryptamine (DMT), a hallucinogen … [that] is listed in Schedule I of the [federal] Controlled Substances Act. § 812(c), Schedule I(c).” The UDV sought a religious exemption from the drug ban.

Now the UDV is not exactly a mainstream, popular, well-regarded group. Its sacramental practice — the use of hallucinogens — isn’t particularly likely to appeal to most Supreme Court Justices. If the case had come up during the Sherbert/Yoder era, there is good reason to think that many of the Justices would have been reluctant to hold that an exemption from federal drug law was constitutionally mandated. Recall that in Smith, Justice O’Connor disagreed with the majority’s rejection of constitutional exemptions generally, but held that the Oregon peyote ban was nonetheless the least restrictive means of serving a compelling interest in fighting drug abuse. Moreover, drug-related claims have not fared well in recent litigation involving other constitutional claims.

Nonetheless, the Court voted 8-0 in favor of the exemption. (Justice Alito, who wasn’t on the Court when the case was argued, didn’t participate.) And the Court’s rhetoric was chock full of talk about how the Court was just following Congressional will, rather than trumping it.

“We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act.” “RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” “The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA, too.” “We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.”

If the Court does accept Hobby Lobby’s exemption argument, expect more quotes like this from the decision. We’re just following Congress’s will, the Court would say; we’re not trumping Congress’s will. The 2009 Congress could have exempted the ACA and any implementing regulations from the RFRA passed by the 1993 Congress. But it didn’t.