A few weeks ago, in response to my critique of what I labeled “Justice Scalia’s Worst Opinion,” Matthew Franck offered the best defense he could—perhaps the best defense possible—of Justice Scalia’s awful quarter-century-old opinion in Employment Division v. Smith. Smith interpreted the Free Exercise Clause of the First Amendment narrowly, as prohibiting only laws targeted at religion or religious practice.
I embraced the view, contra Scalia, that the constitutional right to the “free exercise” of religion was an affirmative substantive right against the application of laws or policies that otherwise would have the effect of prohibiting, punishing, or penalizing sincere religious exercise—irrespective of government’s purpose in enacting them. Put colloquially, the focus is not what government targets but what it hits. Absent the most extraordinary of abuses or exceptional circumstances, authentic religious practice should prevail over the usual commands of law, where the law’s commands would prohibit free religious exercise.
That was back in April and May. A lot has changed since then: we now live in the world of Obergefell v. Hodges. The ruling is an alarm bell in the night for religious freedom. Obergefell should give cause to pause and rethink one’s views about the scope of the constitutional right to the free exercise of religion, in light of its brave new world of grim threats to free exercise posed by the Court’s decision itself.
Rather than merely attempt to rebut Franck’s excellent piece, I want to try to persuade him—and the many like-minded, judicial-restraint-focused conservatives—of the stakes of Free Exercise. My hope is that appreciation of such stakes might lead one better to appreciate the powerful original-meaning, textual-logic arguments for the broad understanding of the right to free exercise of one’s religious convictions and conscience.
Never has such reconsideration been more urgently needed. The rise of a national constitutional right to same-sex marriage is a dagger pointed at the heart of religious liberty. It is only a matter of time before “marriage equality” advocates attempt to extinguish faith-based opposition to participation or endorsement of same-sex marriage. The goal will be to run religious conviction off the field as simple illegitimate bigotry. The vehicle will be, and already is, ostensibly “neutral rules of general applicability”—the exact kind of formally neutral rules from which Smith holds the Free Exercise Clause provides no protection: “civil rights” and “anti-discrimination” laws that are general in scope and do not target religion specifically.
Now more than ever, it is important to think well and carefully about whether Smith’s rule is right. For if it is, an explicit textual right to the “free exercise” of religion supplies no defense against laws premised on protecting, furthering, and eliminating resistance to a non-textual, judicially invented “fundamental” constitutional liberty.
Who’s Afraid of the Free Exercise Clause?
The arguments for the Scalia-Franck narrow understanding of free exercise are rooted, at bottom, in a kind of legal fear—fear about the types of things that judges might do and the type of results that could obtain if religious freedom really meant that religious believers, acting in good faith, could, barring extreme cases, live and act in accordance with their beliefs, free from the application of general legal rules that prohibit their actions. Smith is less about original meaning than about such fears. Scalia’s argument was not so much that the Free Exercise Clause did not have such a broad original meaning but that it would be a bad thing if it did: it would tend toward either anarchy or unbridled judicial discretion.
That position is not a bad one: The “judicial restraint” argument is an appealing one. The “judges’ discretion must be checked” argument is a valid one. The “we would be courting anarchy” argument-from-fear is an understandable one.
But I would like to suggest two possibilities to my “restrained” friends. First, these (legitimate) fears of what judges might do with a broad Free Exercise Clause should not drive their interpretation of the meaning of the provision itself. If the correct reading of a constitutional provision is that it grants a seemingly dangerous amount of individual liberty, or entails an unwelcome judicial role, one should not therefore discard the correct reading for an incorrect one. Policy-driven interpretation is, after all, exactly what conservatives should find most objectionable. It is at the core of why the Court’s decision in Obergefell is so badly wrong. We must take great care not to commit the equal and opposite error.
At an academic conference a few years back, I advanced a strong view of the Free Exercise Clause as premised on the framing generation’s acceptance of the precedence of religious liberty to the ordinary commands of the civil state. My responding commenter, the brilliant Eugene Volokh of UCLA Law School, charged that my reading would make the Free Exercise Clause a “Super-Lochner” provision. At first, the comment cut me to the quick. No one is a more dedicated opponent of “substantive due process” than I. But I responded with a hypothetical: Suppose the Constitution really did contain something like a “Substantive Due Process Clause” of a Lochner-ish nature? What if the Constitution contained, for example, a provision that said something like “Government may make no law prohibiting the free exercise of economic freedom”?
As undesirable as such a provision might be, it would be the duty of judges to apply that provision faithfully, irrespective of its desirability, the economic consequences it would produce, or any regrettable judicial judgments its fair interpretation might entail. If the proper performance of that task produced something resembling a Lochner doctrine, then so be it. (The correct objection to Lochner is not that it involves courts in making such judgments. It is that the doctrine of substantive due process in fact has no legitimate basis in the constitutional text.)
So too with the Free Exercise Clause: If the clause is correctly read as a substantive freedom for religious exercise, it must be interpreted and applied as such. There is no “free exercise of economic freedom” clause but there is a provision saying that government may “make no law prohibiting . . . the free exercise” of religion. Religious freedom is a substantive constitutional right. Legal conservatives simply must be open to the possibility that the original textual meaning of the Free Exercise Clause confers a broad substantive immunity from the consequences of general government laws and regulations—a reading supported by the clause’s linguistic meaning, by its internal religious-political logic, and by considerable historical evidence of specific intention at the time.
Second, I submit to my restrained friends that there is new reason to reevaluate the fear-based reading of the Free Exercise Clause. We now live in a second-best legal world in which the Court itself has invented textually unsupportable “constitutional rights” that, if taken as stating a new baseline “neutral rule of general applicability,” will eviscerate freedom of religious exercise.
If the concern is over what judges might do in the name of constitutional liberties, I would gently note that we are long past that point already. Rather than dread what judges might do in the name of a broad understanding of religious free exercise, we should dread what judges have already done and might now do to this actual constitutional liberty in the name of other, made-up constitutional rights. The greater fear should be that the Free Exercise Clause will continue to be under-read, and that religious freedom will be not just under-protected but destroyed by the New Legal Order.
This is not an argument that we should read the Constitution differently than we otherwise would, in a way contrary to its original meaning, because of something else the Court has done wrong. Rather, it is an argument for thinking again, seriously, about the original meaning of the Free Exercise Clause, and for questioning old arguments in light of changed circumstances. New situations do not change the text’s meaning, but they sometimes shed new light on what that meaning is.
Franck and Candid
My original essay makes the case for Smith’s wrongness on the merits, and I won’t repeat that case here. But I will respond briefly to Matthew Franck’s critique of my critique of Smith, in light of what I have just said about the need to reappraise the stakes of getting Free Exercise right.
First, Franck says that my criticism of Justice Scalia’s opinion is overstated: “the principle of ‘no targeting of religion’ is not exactly nothing as a substantive protection,” and Scalia has written or joined excellent pro-religious freedom opinions in other cases, including Chief Justice Roberts’s magnificent majority opinion for a unanimous Court in the Hosanna-Tabor case—an opinion whose praises I have sung elsewhere.
True! Justice Scalia is unquestionably sympathetic to religious freedom. I mean to convert him, too, if I can. Scalia, more than anyone else, should be fearless in his commitment to the original meaning of a broadly worded text like the Free Exercise Clause and follow its logic where it leads him. He should not fear giving the clause its full force. Especially in light of Obergefell, the trust he expressed in Smith that all would work out well because of generous legislative accommodations of religion should give way to fresh consideration of the meaning of Free Exercise.
Second, Franck says that the broader reading of free exercise “is an effective reversal of the traditional presumption of the constitutionality of legislation.” He suggests I have “uncritically” abandoned the “posture of judicial restraint” and embraced “an activist posture” that is “most closely associated with justices such as William O. Douglas, Earl Warren, and William Brennan.” Ouch.
But I think the critique is flawed. If the original meaning of Free Exercise is as I believe it to be, it is the Free Exercise Clause that reverses the usual principles concerning the presumption of constitutionality. A law, otherwise constitutional in its general application, may not be applied in such fashion as to bar the exercise of religious faith, absent exceptional justification. If that’s what the clause actually means, it is an improper application of the notion of “judicial restraint” to give the clause less meaning than it really has. Note further that free exercise claims do not strike down the law itself; they merely forbid its application in such fashion as to prohibit the free exercise of religion.
Franck’s third claim is that my position is “question-begging.” But his actual argument here is that my view is contrary to pre-1960s precedent and would create what Scalia called an anomalous “private right to ignore generally applicable laws.” But “anomaly” here is just a meaner word for “distinctive.” If that is the charge, I will own it: the Free Exercise Clause does create a unique type of constitutional liberty—a carve-out substantive freedom that limits what government can do to interfere with religious freedom. If “anomaly” means that the Free Exercise Clause has its own distinctive, singular meaning and is not a pure overlap with Free Speech or Equal Protection, I think that that is clearly right.
Fourth, Franck thinks the historical case for free exercise exemptions dubious and points to competing scholarship in this regard. I like Michael McConnell; he likes Philip Hamburger. (Actually, I like Hamburger, too.) Fair is fair: let’s reopen this debate. But let me add one methodological caveat: the search is for the original linguistic meaning of the words of the text, in historical context, and not for anyone-in-particular’s subjective “intention” or “expectation” or “understanding.” Much of the historical debate lines up competing inferences from competing quotations from different founding-era debates and discussions. This is useful stuff, but primarily to the extent it displays the range of linguistic usage at the time. My sense is that, although this evidence cannot drive one all the way to one conclusion or another, it better supports the broad reading of Free Exercise.
Finally, Franck thinks I have misread, or over-read, Scalia’s reliance on policy considerations and social circumstances in the Smith opinion. Maybe. But for anyone who has read thirty years of Scalia opinions, it is hard not to notice that Smith leans heavily on considerations of social and judicial policy. Scalia does express the fear of judicial balancing, untoward results, and “courting anarchy.” And those fears do appear to drive the analysis, to a degree.
All of which is to repeat the proposition with which I began. In the world after Obergefell, conservatives sympathetic to religious freedom, but inclined to accept Scalia’s most doubtful constitutional opinion on “judicial restraint” grounds, should be open to reconsideration of their positions. The stakes of Free Exercise are simply too high, especially today, to rest on the dubious grounds of Smith’s reasoning.