Barclay on Religious Exemptions and Democratic Self-Governance

Here is Professor Stephanie Barclay's interesting essay on a few issues concerning judicially mandated religious exemptions, for our conference on "Liberalism's Limits." And here is something from the conclusion of Stephanie's piece to give readers a sense of her claims:

Let us next consider religious exemptions offered by judicial bodies in counter-majoritarian ways—meaning judicial actions that might decline to apply duly enacted democratic laws to religious objectors. Can that sort of action ever be consistent with the consent proposition, and with a self-governing free people?...

It turns out that counter-majoritarian judicial actions can manifest in a variety of ways, and some are more consistent with self-governance than others...

The third category through which the judiciary can provide religious exemptions is essentially an evidentiary one. This role rests on the premise that, at the very least, the government may not interfere with religious exercise simply because it views that societal good as unimportant. This type of devaluing of religion can manifest as bemused indifference at best and as open hostility at worst. When a religious objector is thus seeking a religious exemption from a specific application of the law, the judiciary would ensure that the government has demonstrated (with evidence and not mere say so) a need to interfere with religious exercise. Doctrinally, this could operate as a rebuttable presumption of an entitlement to a religious exemption that the government can rebut by doing essentially two things. The government must first show that it does, in fact, have a policy objective other than devaluing religion, and second, that interfering with the voluntary religious exercise is necessary to advance that policy objective.

In many respects, this is how modern strict scrutiny is now applied by the U.S. Supreme Court. To be sure, strict scrutiny speaks in terms of “compelling government interest.” But the judiciary rarely decides cases by weighing the importance of the government interest compared to the importance of the relevant religious exercise. Instead, courts often assume without deciding that the government’s stated objective is compelling. Courts then turn to analyzing whether the stated interest is, in fact, the real interest that motivated the government, and whether the government has demonstrated that it cannot advance that interest without interfering with religious exercise...

When it comes to deciding whether the government actually needed to interfere with the religious exercise to advance its interest, the court often looks to whether the government is being even-handed in the enforcement of its stated policy interest. For example, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that New York’s new and heightened COVID-19 restrictions were not justified in overriding requests for religious exemptions. In so ruling, the Court emphasized that New York had not acted in an even-handed way because the new regulations “single[d] out houses of worship for especially harsh treatment.”[20] In a concurring opinion, Justice Neil Gorsuch stressed that “there is no world in which the U.S. Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”[21]

Later news reports give some credence to the Supreme Court’s skepticism of New York’s evidentiary claims that its policy was necessary to advance health and safety objectives. A February 2021 article in the New York Times indicated that Governor Cuomo’s heightened COVID-19 orders for many houses of worship were not designated by public health officials, but were instead driven by political considerations and implemented by the Governor’s staff. The article reported, “[S]tate health officials said they often found out about major changes in pandemic policy only after [Governor] Cuomo announced them at news conferences—and then asked them to match their health guidance to the announcements.”  Indeed, “the State Health Department was not deeply involved in final decisions” regarding the policy implementing heightened COVID-19 restrictions.[22]

When the government is not being even-handed, it suggests that the government either has other ways of accomplishing its goal without interfering with religious exercise, and/or that the government is devaluing religion relative to other social goods that it is willing to protect even when such goods undermine the government’s stated interest.

This broader, evidentiary-based role for the judiciary is only one of multiple tools that pertain when it comes to the legitimate scope of judicially-provided religious exemptions. But it is one that provides for thicker protection of this right, and thus greater amounts of liberty, while still remaining consistent with a consent-based model of self-government where the judiciary is simply applying democratically elected policies about the relative importance of religion and not making that determination itself. Critics of strict scrutiny or proportionality should perhaps consider whether an evidentiary-focused rather than balancing-focused method of providing religious exemptions warrants support rather than criticisms if ensuring robust religious liberty protections within a self-governing legal regime is the goal.