Religious Liberty Is Equal Liberty

 At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exercise—regardless of affiliation.

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain “equal title to the free exercise of Religion according to the dictates of conscience” without the government’s “subjecting some to peculiar burdens” or “granting to others peculiar exemptions.” A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers compared to others. Yet, more favorable treatment of believers is the norm the Court has applied in free exercise cases, reading the Free Exercise Clause as a grant of privilege rather than a guarantee of equality.

There is little evidence that the Founders understood the Free Exercise Clause to mandate “religious exemptions” that would excuse believers from complying with neutral and general laws that constrain the rest of society. The first judicially-ordered exemptions arose only in the 1960s and early 1970s, when the Supreme Court held that the Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court abandoned this new exemption doctrine, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline.

The equal-liberty regime contemplated by the Founders and restored by Smith protected religion by prohibiting “religious gerrymanders”—laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are also prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005).

The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit. For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would “impose the employer’s religious faith on the employees” by reducing their social security benefits regardless of whether they shared their employer’s religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).

Regrettably, the Court’s recent applications of the Free Exercise Clause have gone beyond equal liberty to religious privilege, dramatically expanding access to religious exemptions without regard to the costs imposed on others. The “ministerial exception” to employment anti-discrimination laws, originally created to insulate a congregation’s choice of ministers, is now so broad that it applies even to employees who are theologically excluded from the ministry. E.g., Our Lady of Guadalupe School v. Morrissey-Berru (2020) (finding female parochial schoolteachers are “ministers” unprotected by employment anti-discrimination law despite restriction of Catholic priesthood to men). The Court now excuses commercial businesses, which profit from serving the public, from complying with laws that protect the public. E.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) (upholding free exercise right of bakery owner to refuse service to LGBTQ couple despite state law banning LGBTQ discrimination by retail stores). Finally, the Court’s adoption of “most-favored nation” treatment of religion requires religious exemptions whenever a law contains the bare possibility of a single secular exemption, no matter how narrow; since all laws contain exemptions, this treatment guarantees exemptions from any law a believer might find burdensome. E.g., Fulton v. City of Philadelphia (2021) (mandating exemption of Catholic social service agency from LGBTQ anti-discrimination provision in municipal contract because contract gave municipality power to grant discretionary exemptions).

The Court’s robust  exemption regime is both impractical and unfair. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors are presumptively entitled to exemption from any burdensome law, religious exemptions will swallow the rule of law, which presupposes its equal application to everyone. The Court’s recent decisions, therefore, signal its abandonment of the historical baseline of equal liberty in favor of one that privileges religious belief and exercise above other activities, forcing third parties to bear the burdens of religious beliefs they do not share and religious exercises in which they do not participate. This abandonment also deprives minorities of those anti-discrimination protections that ensure their equal participation with other citizens in American public life.

If exemptions are to be afforded those whose religious practices are incidentally burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society committed to the equal liberty of its citizens.

by Frederick Gedicks

Guy Anderson Chair and Professor of Law Emeritus at the J. Reuben Clark Law School at Brigham Young University