A Regrettable Invitation to 'Constitutional Resistance,' Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise

55 Pages Posted: 12 Sep 2016 Last revised: 5 Feb 2017

See all articles by James M. Oleske

James M. Oleske

Lewis & Clark College Paul L Boley Library; Lewis & Clark College - Lewis & Clark Law School

Date Written: January 25, 2016


When the Supreme Court held in Obergefell v. Hodges that states must provide same-sex couples with equal access to the legal institution of marriage, Chief Justice Roberts did not merely disagree with the majority’s reasoning. Instead, employing a tactic more commonly associated with the late Justice Antonin Scalia, the Chief Justice used his dissent to launch a broadside casting doubt on the decision’s legitimacy. He accused the Court of “[s]tealing” the marriage issue from the people through “an act of will, not legal judgment,” and he insisted that the majority’s approach had “no basis in principle.” In addition, Roberts raised concerns about the decision’s impact on religious liberty, warning that it “[o]minously” failed to address the First Amendment’s free exercise guarantee.

The Chief Justice’s harsh condemnation of the Obergefell decision has helped inspire calls for “constitutional resistance,” and that resistance movement is now playing out simultaneously with efforts to exempt religious objectors from laws requiring equal treatment of same-sex couples. Those efforts have come to dominate the conversation about religious accommodation — a conversation that has become increasingly polarized in recent years. Against that background, this Article makes three arguments.

Part I contends that the Chief Justice’s dissent in Obergefell falls far short of substantiating his claim that the ruling “has no basis in the Constitution or this Court’s precedent.” Most critically, Roberts completely fails to engage the same-sex couples’ strongest equal protection argument, which was endorsed by the Solicitor General, prevailed in several lower courts, and rested on well-established precedent. Moreover, the Chief Justice’s claim that the Court has not previously interpreted the Constitution in ways that interfere with how marriage has been traditionally “defined” founders on the very definitional sources he cites.

Part II contends that the full import of the Chief Justice’s discussion of religious liberty in Obergefell has been underappreciated. By invoking the Free Exercise Clause to raise concerns about the conscience rights of those who object to same-sex marriage, Roberts implicitly calls into question the Court’s landmark decision in Employment Division v. Smith. There is some irony to the Chief Justice doing so in a case where he is criticizing the majority for ignoring precedent, and a further irony in the fact that some of the most prominent supporters of the Chief’s Obergefell opinion were once ardent defenders of Smith. But the more important point is that the longstanding effort to have the Court reconsider Smith may now have a very powerful new ally.

Part III contends that the Court should reconsider Smith and restore some measure of constitutional protection against generally applicable laws that impose incidental burdens on religious practices. While powerful arguments have been made that judicially administered exemption regimes have proven unworkable and unprincipled in the past, those regimes have almost all utilized the language of strict scrutiny, and that language creates inevitable problems. Those problems need not attend a regime in which the Court applies only modestly heightened scrutiny to protect against incidental burdens on religion that the government could easily lift without compromising non-trivial state interests. Such an approach would guarantee a meaningful constitutional floor of religious exemption rights in situations that do not threaten the rights of third parties, and championing the restoration of such a floor has the potential to bring some unity of purpose to the conversation rather than more division along ideological and political lines.

Keywords: Free Exercise, Equal Protection, Religious Exemptions, Same-Sex Marriage, Smith, Obergefell, Heightened Scrutiny, Polarization

Suggested Citation

Oleske, Jr., James M., A Regrettable Invitation to 'Constitutional Resistance,' Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise (January 25, 2016). 20 Lewis & Clark L. Rev. 1317 (2017) in Symposium, 'Law and Religion in an Increasingly Polarized America', Available at SSRN: https://ssrn.com/abstract=2837392

James M. Oleske, Jr. (Contact Author)

Lewis & Clark College Paul L Boley Library ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

Lewis & Clark College - Lewis & Clark Law School ( email )

10101 S. Terwilliger Boulevard
Portland, 97219-7762

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