Free Exercise and Conservative Judicial Overreach

During the Covid-19 pandemic, some judicial conservatives have eschewed the virtue of constraint in favor of an ahistorical and excessively libertarian notion of the free exercise of religion. To achieve the correct balance between liberty and order, and to prevent activist judges granting religious exemptions in areas outside of their expertise, conservatives should return to a more realistic view of the limited role of the courts in the regulation of religious practices.

On March 25, 2022, the U.S. Supreme Court’s decision to stop legal proceedings in Austin v. U. S. Navy Seals was a triumph of restraint in an area in which some of the Court’s most conservative members are strangely eager to jettison this core judicial virtue.

Unfortunately, Justice Alito’s dissent in the case is yet another example of a conservative attachment to an ahistorical view of religious liberty under the free exercise clause, which protects the right to practice religion in a way that does not conflict with a “compelling” governmental interest. This strand of conservative thought is rooted in the extreme libertarianism and judicial supremacy of the Warren Court. Utterly indifferent to the indispensable virtue of judicial restraint in the crucial area of religious liberty, conservative jurists are using this view as a cudgel to grant religious exemptions in situations where they have no competence whatsoever.

Austin v. U.S. Navy Seals

The Navy made Covid-19 vaccinations mandatory in August 2021. Over two dozen Navy Seals requested a religious exemption from this requirement, and the Navy rejected all these requests. The Seals filed suit, claiming that the vaccination requirement would impose a substantial burden on their free exercise of religion. (Alito says this assertion was undisputed, though it would probably not withstand even mild scrutiny.) Their lawsuit was enthusiastically welcomed in the district court by Judge Reed O’Connor, who was appointed by George W. Bush.

Reviewing the case under the Religious Freedom Restoration Act (RFRA), Judge O’Connor found that the Seals’ claims were likely to succeed and granted a preliminary injunction that barred the Navy from taking any adverse action against them for being unvaccinated. The U.S. Court of Appeals for the Fifth Circuit affirmed the preliminary injunction, and the government successfully sought review by the U.S. Supreme Court.

The Court, without a formal opinion, quickly and wisely stopped the injunction. Justice Brett Kavanaugh provided a sound application of RFRA based on deference to the Navy’s need for military readiness. The district court, Kavanaugh wrote, “in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

In Kavanaugh’s opinion, the RFRA required no judicial involvement in this case inasmuch as “the Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all Special Warfare personnel—including control over decisions about military readiness. And no less restrictive means would satisfy that interest in this context.”


By contrast, Justice Alito’s dissent evinces the chaos engendered by contemporary free exercise analysis. Like Kavanaugh, he relies on RFRA as the legal standard, but he applies the statute as if it were a case about unemployment benefits, not national security. The problem is that RFRA codifies the compelling interest standard, which suffers from two major flaws in this setting. First, it tips the balance between liberty and order far too dramatically in favor of liberty at the expense of order. Second, it authorizes courts to grant religious exemptions that should be granted (or not) by legislatures.

The Origins of Compelling Interest in Free Exercise   

The origins of the compelling interest standard in the free exercise context go a long way to explaining why it suffers from these shortcomings. Its advent is found in Sherbert v. Verner (1963), a case in which the Warren Court held that free exercise required the government to demonstrate a compelling interest before denying unemployment benefits to someone who was fired because their work conflicted with their religious beliefs. The case was brought by a Seventh-Day Adventist, and Justice William Brennan, Jr. exemplified his characteristic make-it-up-as-you-go-along way. Crucially, Brennan’s opinion arrogated to the Court for the first time the power to grant a religiously based exemption to a neutral law of general applicability. Sherbert is a representative example of the Warren Court’s egregious overreaching in pursuit of a radically libertarian jurisprudence.

Moreover, Brennan was an exceedingly wily judicial strategist, and the revolutionary implications of what the Court did quietly in Sherbert had to wait until Wisconsin v. Yoder in 1972. In this case, the Old Order Amish sought an exemption from public school attendance after the eighth grade. In an opinion that was little more than an embarrassing, whimsical love letter to the Amish, the muddle-headed Chief Justice Warren Burger employed the compelling interest test and granted the exemption. Thus, the Yoder Court disclosed how substantially Brennan had remade the constitutional world of free exercise in Sherbert.

This mischief was finally brought to an end in 1990 in Employment Division v. Smith, a case concerning the use of peyote (a psychoactive cactus that is illegal to possess in the U.S.) by the Native American Church for sacramental purposes in a way that ran afoul of Oregon’s drug laws.

Brushing aside but regrettably not overruling Sherbert and Yoder, Scalia adroitly returned free exercise analysis to its historic roots that go all the way back to Reynolds v. United States (1879), where the Court rejected a Mormon request for an exemption from the law in order to practice polygamy. In Smith, Oregon’s neutral law was not targeting any religious practice, so any exemption would have to be granted by that state’s legislature and not the Court.

Congress rejected this salutary restoration of this rule on religious exemptions by enacting RFRA in 1993 and incorporating the compelling interest standard. With this statute, it handed the license for judicial adventurism right back to the courts. RFRA specifically invoked Sherbert and Yoder as the source of this standard. (The Court later limited the scope of RFRA to include federal law only.)


Smith remains good law in the states, but as Fulton v. City of Philadelphia (2021) demonstrated, it is not a robust precedent. In Fulton, Chief Justice John Roberts’s majority opinion found that Philadelphia’s nondiscrimination ordinance was not a neutral law of general applicability when applied to Catholic Social Services and its refusal, based on the Catholic teaching on marriage, to certify same-sex couples as foster parents. Thus, the Court determined that Smith did not apply and the ordinance was reviewed under strict scrutiny. In a brief concurrence, Justices Amy Coney Barrett and Brett Kavanaugh rejected Smith but were not certain what should replace it. Justice Alito added a long, erudite, but ultimately misguided concurring opinion (joined by Justices Gorsuch and Clarence Thomas) that thoroughly repudiated the Smith rule that compels judicial modesty.

Covid-19 and Compelling Interest

In the context of the Covid-19 pandemic, judicial conservatives demonstrated the activist defect inherent in the compelling-interest standard. The Court again and again placed itself right at the center of a complex, rapidly changing, and unprecedented public health crisis.

With the sort of language that has been effectively used against living constitutionalists for generations, Justice Elena Kagan noted the obvious point in her dissent in the 2021 case of South Bay United Pentecostal Church v. Newsom that “judges do not know what scientists and public health experts do,” and she rightly mocked the majority for its “foray into armchair epidemiology.” Notwithstanding its manifest incompetence in public health matters, “the Court,” Kagan concluded, “forges ahead regardless, insisting that science-based policy yield to judicial edict.” In the area of free exercise, the legislators in robes are no longer only the judicial liberals.

Public health measures during a pandemic with an extraordinarily high death toll, deployment of military personnel: judicial conservatives with no military or public health expertise at all zealously weigh in on these complex matters, using the compelling interest standard as their guide. The recklessness of this judicial arrogance is astounding. It is almost certainly too much to expect Congress to eliminate or substantially modify RFRA. Probably the best that can be hoped for at present is the sort of deferential application of the law one finds in Kavanaugh’s opinion in Austin.

The best course over the long term is to return to Justice Scalia’s Smith rule of leaving religious exemptions to legislative adjustment. As he described the tension in the area of religious liberty:

It may fairly be said that leaving accommodation [of religious practices] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

This sort of realism, sanctioned by history and with a proper view of the circumscribed role of courts, is vastly superior to the ahistorical and dangerously unfettered power granted to—or  seized by—courts with the compelling interest standard. Judicial conservatives should readily embrace Scalia’s indispensable rule of judicial restraint and encourage its expansion to all aspects of the regulation of free exercise, both legislative and judicial.

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