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April 14, 2012

The Bishops' Statement on Religious Freedom and Widespread Misunderstanding of the State of Free Exercise

Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Michael noted here.  This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country.  It's one that I've encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it.  The misunderstanding leads commentators to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty.  I'll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context.  The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility.  If I were a betting man in the mandate context, I'd put the odds somewhere around 60-40 for upholding the mandate as constitutional (RFRA is another matter entirely).

The part that people do seem to get is the basic rule of Employment Division v. Smith -- the announcement that a facially neutral law which applies generally is constitutional under the FEC, even if its effects may substantially burden a religious claimant.

But that's just the beginning of the analysis.  I repeat: that is just the beginning of the analysis.  The tricky part is that Smith carves out a number of "exceptions" to the core holding.  One of these has, in part, grounded the Court's decision in the Hosanna-Tabor case (disagree as one may with the Court's distinction of Smith). 

Another "exception" -- the key exception for our purposes -- involves regulatory schemes which conduct individualized assessments for deciding whether they will grant exemptions.  The Court in Smith discussed this "exception" in order to make its way around the unemployment compensation cases (like Sherbert v. Verner).  But I put quotes around "exception" because it really isn't an exception at all.  It's part of the very rule that Smith announces -- the part dealing with general applicability.  Laws which make lots of exceptions are not generally applicable.  And a law which is not generally applicable is lifted out of the Smith framework and (ostensibly) receives strict scrutiny (I bracket the issue of whether the sort of scrutiny that FEC claims received pre-Smith really was, in the event, strict).

The question for courts interpreting this exception is what precisely its contours ought to be.  Should it be limited to regulations with textual exceptions built right into the statute?  Should it apply whenever there is a practice of conducting individualized assessments, and granting individualized exemptions, whether or not the text so specifies?  Should it apply when there has been a history of exemptions granted on secular grounds, but not (never?) on religious grounds?  How many exemptions are enough to trigger the exception?  One?  If so, the exception seems to swallow the rule, so that can't be right.  Should there be some sort of balancing approach to deciding when the exception kicks in and when not?  Should it be subject-specific -- i.e., limited to the unemployment compensation context? (Deeply unpersuasive, in my view, but some courts have said so.)  All of these issues are unresolved as a matter of fixed doctrine.  Courts have resolved them in a wide variety of ways.  They remain to be litigated, and the results are uncertain.  There is at least one member of the Supreme Court -- Justice Alito -- who has looked favorably on this exception in a couple of cases when he was a Third Circuit judge.  How the rest of the Court might react, should the issue ever reach it, is anybody's guess.

I should emphasize that it still seems to me, in the end, that an FEC claim by Catholic organizations will face a problem with the existing doctrine.  But...enough already with intoning the basic rule of Smith, as if this obviously resolves the question decisively, without so much as mentioning, let alone getting into, the doctrinal weeds of the exception.  That sort of curt analysis represents a gross misunderstanding of the state of free exercise.  The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others.  There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution.  That doesn't mean the claim will succeed.  The results are uncertain, and are likely to vary (at least for the foreseeable future) from court to court. 

In my opinion, that is just as it should be.  Let the issue rattle around the lower courts for a decade or two.  Let judges apply themselves to these problems in light of the particular circumstances and factual specifics facing them.  Let's see what shakes out with time and that peculiar variety of judicial wisdom which results from keeping your eyes fixed narrowly on the specific case or controversy right in front of you. 

UPDATE: My friend Prof. Cathy Kaveny criticizes some of what I have to say here (Mike Moreland and I have some comments to Cathy in response).  I want to make clear that my post was not a response to hers; I've been beating this drum repeatedly here at MOJ before, and I'll be beating it again here and there.  Mostly I think that this area of the law is going to see an explosion in the coming years -- it has the potential to have a huge effect in FEC law, but what is most likely (I think) is that it will see some successes and some failures in the lower courts over time. 

Posted by Marc DeGirolami on April 14, 2012 at 09:53 AM in DeGirolami, Marc | Permalink

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Two thoughts:

1. The bishops' statement is rhetoric aimed at influencing public opinion, not a legal brief. So, one ought not expect a nuanced analysis of the relevant case law. The case law is only tangentially relevant to the statement's purpose anyway, as the bishops would probably prefer to see the HHS reg tossed or substantially modified without having to resort to a courtroom battle. Whether or not an "exception is appropriate" need not turn on whether an exception would be mandated under Smith. (This goes more to Kaveny's post than yours).

2. If the reg is not scrapped or modified, I'd bet we wind up with a circuit split and trip to the Supreme Court in a couple of years rather than a decade or more.

Posted by: Catholic Law Student | Apr 14, 2012 3:02:13 PM

Catholic Law Student:

1. Right, this post is only about the constitutional framework for assessing the FEC. I understand that there are other larger issues in play, but I was moved to comment because over the last few weeks, I have visited many sites which claim that "the Constitution requires" X -- X being somehow a categorical bar to a constitutional challenge to the mandate. I don't think that's what Prof. Kaveny was saying, but I do think that the simple-sounding rule of Smith can lead commentators (like Linda Greenhouse, in the column I've criticized before) astray in describing the state of existing FEC doctrine.

2. I am not eager to trip anywhere, and I think it unlikely for the Court to take the challenge any time soon. Look at how many years it took for the Court to take cert. on the ministerial exception. The earliest 5th Circuit case was back in 1972, and the Court did not *begin* to decide the issue (leaving many, many issues open for future litigation) until 40 years later. I think it's a good thing for issues to percolate through the lower courts for a long time. There are smart people there, and their attention is often more narrowly focused on their particular cases than is the Supreme Court's.

Posted by: Marc DeGirolami | Apr 14, 2012 3:16:17 PM

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