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Tuesday, November 29, 2011

The Optimism of Employment Division v. Smith

The exchange below between Rick and Eric Bugyis, as well as Rob's comment to Rick's post, has motivated me to raise something I have been thinking about with respect to our current free exercise regime when it comes to religious exemptions.  My question is really one about political circumstance rather than doctrine or history or constitutional structure.

Accept the following two conditions as given for purposes of this question.  (1) Religious liberty generally -- and the question of religious exemptions in particular -- seem to be becoming a cardinal issue for religious organizations, including the Catholic Church; and (2) The tenor of both governmental and popular attitudes toward such exemptions is deeply skeptical -- indeed, skeptical even from those within the religious tradition themselves -- verging sometimes even on the hostile.

The question is this: Under these two conditions, why would one prefer an interpretation of constitutional law in which religious exemptions are never required, no matter how grave the burden to the religious individual or organization, and no matter how minimal the state's interest in enforcing the law against the organization?

For purposes of answering the question, put to the side non-prudential answers.  For example, I understand that one could say that the best historical reading of the FEC is that it only protects what Philip Hamburger has called "freedom from penalty on religion."  Or one could believe that Justice Scalia's view in Smith was the best reading of precedent, or that it is the most legitimate from a structural point of view.  I'm not interested in those kinds of answers.  What I want to know is, from a prudential standpoint and in light of 1 and 2, why would we desire a system in which for all intents and purposes no religious exemptions are ever constitutionally required?

Here's one possible type of answer.  Supporters of Smith are optimists about society's capacity, and its wisdom, to work out the answers to the religious exemption question for themselves.  People might go astray, they might make mistakes, but in the long run the best outcomes will reflect popular negotiations and the courts should basically stay out of this process.  Opponents of Smith are pessimists about what society will produce.  Or, perhaps more accurately, their pessimism about popular wisdom impels them to want some kind of substantial judicial check (of greater or lesser power) on what the populace produces. 

A Smith supporter might counter that Smith opponents are equally optimists about the capacity of judges to arrive at satisfactory answers to the exemption issue.  But I don't think that's quite right.  Smith opponents are pessimists about everybody when it comes to the exemption issue.  The reason that they envision a greater role for judges is that they expect that the populace sometimes, perhaps often, will get it wrong.  The opponent wants an additional chance to make a correction, and the courts supply that additional chance.  I recognize that the pre-Smith religious exemption regime was not exactly teeming with examples of the Court requiring a religious exemption; and depending on the pessimist's view of the substance of the case, that might make the pessimist feel either deluded or justified.  But in an environment where there is a sense of both the increasing importance of religious exemptions and increasing hostility to those exemptions, it strikes me that the pessimist's position is not entirely without warrant. 


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Another option: Focusing on Smith and the question of whether exemptions are constitutionally mandated or not marginalizes a more fundamental question pertaining to the prudence of pursuing, in the first place, broad statutory requirements that invariably impinge on religious freedom. In other words, our commitment to liberty of conscience has to shape not only our view of exemptions to public norms backed up by state power, but the substance of those norms.

Posted by: rob vischer | Nov 29, 2011 4:50:21 PM

Rob, thanks, and nice point. But do you think that this problem exists whether or not we constitutionalize a right to religious exemptions?

Or maybe stated another way, the problem you raise folds itself nicely into what I have described as the pessimistic position: we are bad, collectively, at thinking about the substance of the liberty of conscience. We are much more likely to go wrong than to think well about it. We will likely think poorly, at least as an initial matter, whether there is a constitutional right of exemption or not (as there is not, for example, now). And for this reason -- because we expect ourselves to fail, at least initially -- we want to institutionalize additional layers of review and reflection about the quality of our norms, just to give ourselves multiple, checking opportunities to hammer out the best approach to the liberty of conscience of which we are capable.

Posted by: Marc DeGirolami | Nov 29, 2011 4:58:27 PM

I'm probably in over my head here, but I'm feeling reckless. I think I'm a pessimist in the way that you define it.

"A Smith supporter might counter that Smith opponents are equally optimists about the capacity of judges to arrive at satisfactory answers to the exemption issue. But I don't think that's quite right."

You then point out, accurately I think, that the pessimist will mistrust everybody. I tend to. I would suggest that a judge might not add another layer of protection, but could instead make oppression more difficult to overcome. Legislation is much, much easier to change than a judicial decree that is supposedly interpreting the Constitution. We need not look any further than Roe v. Wade to see that. If we rely on the judges for another layer of protection, they will have the ability to carve oppressive laws into stone.

Could the pessimist argue persuasively that though the public is not to be trusted completely, at least mistakes can be corrected relatively easily?


Posted by: Kevin Kemp | Dec 2, 2011 5:14:08 PM

Kevin, thanks for the good comment. I think you are right to point out this institutional feature of the courts. I actually think there may be a few issues in your question and comment.

The first is the division between judicial maximalism and judicial minimalism. It is true that judges who are maximalists -- who issue decisions that are intended to cover many more kinds of situations than the issue that is before them, and who rely on very deep and controversial philosophical reasons for their rulings -- will write opinions that are more stone-like, in your terms. Those kinds of decisions will be more difficult to get around for future litigants, so to the extent that we have maximalist courts, I think a pessimist probably would see an extra layer of review as dangerous.

On the other hand, judicial minimalists might be appealing to pessimists. The minimalist would write narrow and shallow decisions, the most important feature of which for our purposes would be the exclusive focus on the particular facts before him or her. By comparison with legislation, the impact of any particular minimalist decision would be quite small. So perhaps the extra layer of review, viewed from a minimalist perspective, would warm the pessimist's heart because highly limited to those particular factual circumstances.

The second issue has to do with confidence in courts, which I mentioned. As you say, courts can give us outcomes which we don't like. And I agree with you that the pessimist, as I have described him, is even skeptical that a court will get it right too. But what the pessimist might think is that the extra layer of review in a religious liberty free exercise case -- where a religious claimant is bringing a claim that his ability to believe or practice was infringed -- cannot hurt (much) and may help (a lot), but only if we assume a minimalist decision. And the pessimist might also think that we are (slightly) more likely to think well about these questions the more times we think about them, the more we collectively turn them over in different fora.

Thanks again for the good question.

Posted by: Marc DeGirolami | Dec 3, 2011 7:40:19 AM