Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 5, 2016

The Free Exercise Clause May Not Be Quite As Dead ...

... as Marc says. The denial of certiorari in Stormans, the Washington pharmacist case, was unfortunate, but one should not to read too much from a cert denial. 

I think there is a decent chance that Employment Division v. Smith will be either(1) overruled or (2) limited further to provide that certain secular exceptions to a law trigger heightened scrutiny. Although the necessity for such reexamination has been reduced by federal and state RFRAs and state constitutional doctrines, there are still almost 20 states in which no such provision is applicable. In certain cases, liberals--especially moderate-ish liberals like Breyer and Kagan--will want to invoke heightened scrutiny to protect minority religions. They can combine with Alito and (possibly to likely) Roberts and Thomas (Kennedy, I admit, is indecipherable). The case may involve a state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.

But the liberal justices are also likely to limit free exercise claims when "harms to third parties" are invoked on the other side--at least, harms to specific individuals in areas that modern welfare-state liberalism regards as "public": the commercial sphere, government-funded nonprofits, and perhaps nonprofits in general. My educated guess is that mainstream liberal opinion is settling on protecting religious minorities distinctively, but in this confined way. That will mean, of course, that claims against anti-discrimination laws will face an uphill battle. (We knew that. The key will be to win moderate judges on the protection of religious non-profits.) I certainly think that liberal opinion has moved in the direction of allowing "third-party harm" arguments to limit religious freedom too easily, since a great many common, longstanding, and important accommodations (clergy-penitent privilege, draft exemptions) have such an effect. (Many people, including MOJers, have made that argument; my extended version of it is here, in part III.) So I'm not predicting a vigorous free exercise doctrine from the Court, or from the liberal justices. Not vigorous, but not dead either--not permanently.


Berg, Thomas | Permalink