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Justice William Brennan, author of Sherbert v. Verner (1963). (Official Supreme Court photograph)

Religious freedom restoration acts (usually called RFRAs), once broadly supported, are now controversial. Many people, chiefly on the left, have criticized such laws, in large part on the grounds that RFRAs might let religious objectors claim exemptions from antidiscrimination law especially with regard to state and local laws that ban discrimination based on sexual orientation.

Thats a plausible criticism, it seems to me, though I suspect a somewhat overstated one (and of course its merits turn on ones views about just how important broad sexual orientation discrimination bans really are). And I agree that many backers of such RFRAs today support them in part because they sympathize with such religious objections, especially with regard to participation in same-sex weddings and commitment ceremonies.

But its helpful to note, I think, that, whatever the motivation of some backers of RFRA today, RFRAs largely implement the religious exemption rules that Justice Brennan and the ACLU had long argued for and that Justice Brennan and the ACLU had sharply criticized Justice Scalia and others for overruling.

Maybe the ACLU and many in that movement have changed its mind on the subject. They are certainly entitled to do so. But its worth noting that there is something of a change of mind going on, and that perhaps some of the old criticisms of Justice Scalia who wrote Employment Division v. Smith (1990), which largely overruled the religious exemption rules that Justice Brennan had advocated should be retracted.

1. Justice Brennan: Lets begin with some history. In Sherbert v. Verner (1963), the Supreme Court for the first time held that religious objectors are usually entitled to religious exemptions from generally applicable laws. Justice Brennan in that case wrote that even incidental burden[s] on the free exercise of appellants religion (so long as those incidental burdens are substantial) may only be justified by a compelling state interest [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Moreover, the government must show that no alternative forms of regulation would combat such abuses. And while there were some qualifiers on this in Sherbert, later cases generally articulated the test as (to quote an opinion that Justice Brennan joined):

requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

2. Courts have been quite capable [of striking] sensible balances between religious liberty and competing state interests: But what if a demanded religious exemption would unduly hurt society, or particular people? That, Justice Brennan and others argued, was not a reason to reject the exemption regime altogether rather, the regime already took that into account by providing the compelling state interest exception. Heres an opinion on the subject by Justice OConnor in Smith, joined by Justices Brennan, Marshall, and Blackmun:

To say that a persons right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. The compelling interest test effectuates the First Amendments command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.

The State fears that, if it grants an exemption for [one religious claim], a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions. This argument, however, could be made in almost any free exercise case. See Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 947 (1989) (Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe). This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well.

Go here to read the rest:
Volokh Conspiracy: Many liberals (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions