Tuesday, November 29, 2011
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.