"How 'Religious' Is a 'Religious Employer'? Church History and the Future of American Religious Liberty Litigation"

My student, Dennis Wieboldt -- a JD/PhD candidate in History at Notre Dame -- has a new paper up at SSRN (with the title in the title of this post!).  Here is the abstract:

Since the Supreme Court’s 1990 decision in Employment Division v. Smith to immunize “neutral” and “generally applicable” laws that burden religion from strict scrutiny, judges and scholars have become increasingly attuned to the challenges posed by First Amendment judicial balancing.  To some, Smith’s enduring virtue is that it provides judges with a clear way to avoid the seemingly inappropriate weighing of interests that was once required under the strict-scrutiny regimes of Wisconsin v. Yoder and Sherbert v. Verner.  To others, however, the jealous protection that strict scrutiny provides to religious claimants is normatively desirable and merely requires judges to embrace a tiers-of-scrutiny framework that is not all too unusual in constitutional adjudication writ large.  In light of Fulton v. City of Philadelphia, the scholarship on both sides of this debate has increased in volume and complexity.

 

This article challenges those writing both in favor of and in opposition to the use of strict scrutiny in religious liberty litigation to (re)consider how the discipline of church history can aid judges in the disposition of particular cases and controversies arising under the First Amendment.  To do so, this article takes as its principal subject a near-decade-long dispute that remains ongoing in New York about whether the Empire State’s Superintendent of Financial Services can require Catholic dioceses and social service agencies to include abortion coverage in their healthcare plans.  Setting aside the fact that this case—Roman Catholic Diocese of Albany v. Vullo—may prompt the Supreme Court to again reconsider Smith, the contours of this litigation reveal how the concerns about judicial balancing that have motivated many critiques of First Amendment strict scrutiny are overstated.  What, one might ask, is the cause of this overstated concern?: A failure among many to recognize that the insights of church history can often enable judges to fairly assess the substantiality of regulatory burdens imposed on religious claimants, and therefore evaluate whether the government has a constitutionally sufficient justification for pursuing its preferred regulatory course.

 

Though there is bound to be continued disagreement about the degree to which asserted government interests subjected to strict scrutiny are, in fact, “compelling,” and whether the means used to advance those interests are, in fact, “least restrictive,” scholars with disparate interpretive priors should uniformly acknowledge that church history can (if not also should) serve as a primary resource for those adjudicating First Amendment disputes.  As Jack Balkin has argued in his recent study of the “uses of history in constitutional interpretation,” historians are taught to “relish and respect” “ambiguity” and the “complexity and multivocality of the past.”  Thus, church historians—who are trained to take seriously the ambiguities and complexities of religious past—are well-equipped to aid judges faced with particular cases and controversies arising under the First Amendment.  Amidst broader debates within the legal profession about the appropriate uses of history and tradition in constitutional adjudication, perhaps this modest proposal for greater dialogue between church historians and legal practitioners and scholars can move our jurisprudential conversation one step forward.

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