An Unfulfilled Promise of Religious Exceptions

 by Michael C. Dorf

In my latest Verdict column, I discuss two recent Supreme Court cases, decided one day apart. In a case on the plenary docket, Ramirez v. Collier, the Court held that Texas could not deny a condemned man the right to have his pastor lay hands on him and pray audibly in the execution chamber, thus granting a religious exemption from the (unwritten) Texas policy at issue. The next day, in a shadow docket order in Austin v. U.S. Navy Seals 1–26, the Court rejected the religious objections of a group of Navy Seals to mandatory COVID-19 vaccination.

Ramirez applied the Religious Land Use and Institutionalized Persons Act (RLUIPA); Navy Seals applied the Religious Freedom Restoration Act (RFRA); because the substantive test of the two "sister statutes" is identical, the juxtaposition raises a question. As Justice Alito--who joined the eight-justice majority in Ramirez--suggested in a dissent in Navy Seals, it looked like the Court was granting greater religious rights to a convicted murderer than to patriotic U.S. service members. My column offers some possible grounds for reconciling the two cases and thus rebutting Justice Alito's wildly implausible suggestion.

Here I want to discuss religious exceptions more broadly. I'll offer a hypothesis to partly explain why the bipartisan consensus in favor of religious exceptions that produced RFRA and RLUIPA in the 1990s has mostly evaporated. I'll then reconsider Ramirez in light of some roads not taken.

In recent years, conservatives have generally favored, while liberals have frequently opposed, granting people religious exceptions from laws that do not specifically target religion. One sees this dynamic in the application of RFRA, RLUIPA, and, at the state level, similar state law provisions. One also sees a version of the phenomenon in the willingness of conservative judges and Justices to find that laws that do not specifically target religion are nonetheless discriminatory--and thus subject to strict scrutiny as a matter of federal constitutional law--because some secular practices or institutions are treated more favorably than some religious ones. The clearest statement of that last principle is found in Tandon v. Newsom, a shadow docket case in which the Court granted religious exceptions from some of California's pandemic restrictions in an ideologically divided per curiam, with all of the Republican appointees except Chief Justice Roberts voting to grant the exceptions and all of the Democratic appointees in dissent.

It wasn't always thus. The Supreme Court announced that so-called neutral laws of general applicability--i.e., laws that do not single out religion for adverse treatment--do not implicate the First Amendment right to free exercise of religion in 1990 in Employment Division v. Smith, in an opinion authored by Justice Scalia and joined by all of the conservatives except Justice O'Connor, and from which all of the liberals except Justice Stevens dissented.

In the three-decades-plus since Smith, the ideological valence of religious exceptions flipped. Smith involved a claim by members of a minority religion--the Native American Church--and so garnered the liberals' sympathy for minority rights. More recent cases have involved claims by conservative Christians for exemptions from antidiscrimination laws recognizing LGBTQ+ rights, laws requiring what some conservative Christians deem participation (however indirectly) in abortion, and public health measures that conservatives have come to regard as oppressive. Put simply, in 1990, religious exceptions coded as liberal; for roughly the decade thereafter, at least in Congress, there was a bipartisan consensus in favor of religious exceptions, producing RFRA and RLUIPA; and in the last couple of decades, religious exceptions have coded as conservative.

To my mind, the foregoing paragraph explains about 80 percent of the ideological reversal, but there may be other factors at work as well. Even after it became apparent that conservative Christians could use religious exceptions to undermine antidiscrimination law and other policies liberals valued, many liberals continued to think the Smith rule unduly restrictive of religious freedom. Such liberals thought that a sensitive application of RFRA, RLUIPA, or the First Amendment were Smith overruled would find that the application of antidiscrimination law to religiously scrupled bakers and the like satisfied strict scrutiny.

Some of us also thought that applying strict scrutiny in cases involving claims for religious exemptions could have a broader beneficial impact. Here's how I put the point in a 1998 essay in the Virginia Law Review:

the compelling interest test has the salutary effect of focusing political attention on oppressive but constitutional laws.  . . . RFRA-type regimes force the government to articulate the interests our laws serve, at least in the religion context. If the most that can be said on behalf of a law is that it furthers an interest in conventional morality, the law would likely fail RFRA-type scrutiny. To be sure, the law would still be valid in other contexts, because an interest in morality, simpliciter, is generally valid as a matter of constitutional law. As a matter of politics, however, something like the harm principle (the requirement that a law be designed to prevent harm to persons other than the actor) has broad public appeal, such that public acknowledgment that a law serves no interest other than enforcing a particular moral vision may undermine political support for the law--a desirable end, in my view.

That suggestion has largely proven to be a dead end or worse. I had in mind the possibility that if the government had no very good reason why it couldn't exempt Native religion practitioners from a peyote prohibition (as in Smith), and thus could not apply the prohibition to such practitioners, political pressure would build to repeal drug laws on a broader  basis. That didn't happen in the drug context, and to the extent that it might be happening in other contexts, liberals (like me) rightly worry. It is bad enough that the courts want to provide broad religious exceptions from antidiscrimination law and public health measures. It would be worse still if the granting of such exceptions led to the repeal or rollback of such measures.

Meanwhile, another possibility also has not materialized. In my 1998 essay, I wrote the following:

granting religious exemptions from generally applicable laws does not obligate the state to grant exemptions on other, nonreligious grounds. To begin with an easy case, the desire to attend a football game hardly warrants the same degree of solicitude as the religious obligation to avoid laboring on the Sabbath. There are, to be sure, harder cases: a (nonreligious) moral obligation to care for a sick relative or not to participate in an unjust war, for example. If one were designing a constitution, one might well conclude that exemptions ought to be granted in such circumstances under a general principle of freedom of conscience. But that does not mean that there is no principled basis for distinguishing religious from nonreligious claims. Religious obligations are obligations to submit to the norms of what Robert Cover called a nomic community--a community that is a source of norms for its members. On this view, the religion clauses of the First Amendment recognize the dominion of another sovereign. This dimension of plural sovereignty is absent in the case of claims based on an individual's moral or other nonreligious grounds for objecting to a generally applicable law.

I have come to regard the view I expressed above as mistaken, mostly because I was persuaded by the work of Chris Eisgruber and Larry Sager that the First Amendment's religion clauses, in combination with unenumerated rights under the Ninth and Fourteenth Amendments, properly protect all claims of conscience, including secular ones. Their view also answers an objection from the one liberal who joined Justice Scalia's Smith opinion. Justice Stevens thought that the granting of exceptions on religious but not secular grounds violated the Establishment Clause. A doctrine that recognized both religious and comparable secular grounds for exceptions would avoid this objection.

An Eisgruber/Sager-style right to conscience-based exceptions would be a major improvement over RFRA/RLUIPA-style regimes that apply only to religion as traditionally understood, primarily because it would avoid pro-religion discrimination of the sort that troubled Justice Stevens. It would also, of course, protect people worthy of protection. If a Muslim or Jewish prisoner is entitled to Halal or Kosher food, then a conscientious but atheist vegan prisoner would likewise be entitled to vegan food. If a Quaker is entitled to alternative service as a conscientious objector to the military draft, then so is an atheist pacifist--as the Supreme Court more or less held in 1965, albeit as a matter of strained statutory construction.

And yet, I am left thinking that even the Eisgruber/Sager formulation--protection for conscience--is insufficient. Consider what Ramirez wanted: he asked that as the state extinguished his life, he have beside him a kind presence touching him and saying words of comfort. Yes, it happens that Ramirez was able to claim that his religion required as much, but wouldn't anybody want the same? It is quite easy to imagine someone in Ramirez's position who has neither a religious basis nor even a basis in conscience for wanting such a kind presence--a family member, a therapist, or even a sympathetic clergy member of a faith the condemned individual does not hold. What made the position espoused by Texas (and approved by Justice Thomas in his lone dissent in Ramirez) so outrageous was its gratuitous cruelty, not that Ramirez happened to have a religious ground for asserting a need that is likely shared by just about all human beings and indeed many animals of other species.

The hope I expressed in my Virginia Law Review article has not panned out. Thus, I do not expect that Texas will abandon its no-talking-no-touching policy for everyone. I do expect--indeed what appears to be happening already--is that claims for exceptions from both good and bad laws, will be funneled through religion. And because the courts are understandably reluctant to inquire very rigorously into a claimant's sincerity, that strategy may work in many cases.

But this is very much a suboptimal result. It will erode important policies served by antidiscrimination law, public health measures, and more. And it will favor those people most willing to dissemble in fabricating religious grounds for their objections.