Free Exercise (Dis)Honesty

56 Pages Posted: 17 Oct 2018 Last revised: 11 Nov 2019

Date Written: November 8, 2019


For over half a century, the Supreme Court’s free exercise jurisprudence has been characterized by a less-than-forthright treatment of precedent. The pattern began in the 1960s, when Justice Brennan led the Court to recognize a right to religious exemptions while ignoring language from past cases that had rejected such a right. The trend continued in the 1990s, when Justice Scalia led the Court to disavow the pro-exemption view while ignoring language in cases that had embraced it. Today, the Court appears poised to shift its position on religious exemptions yet again, and leading scholars are suggesting it do so by creatively rewriting precedent.

This Article urges the Justices to decline that invitation and make clear they are no longer willing to read free exercise precedents saying “up” to mean “mostly down.” Part I tells the full story of foundational prevarications and subsidiary inconsistencies that have accompanied the Court’s past shifts on exemption rights. Part II details the greatest danger of dishonesty going forward—a danger that was lurking in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Part III calls on the Court to develop an honest free exercise jurisprudence and offers suggestions for what that jurisprudence might look like. Specifically, because the Court has at times incorrectly assumed that recognizing exemption rights will either risk anarchy or require treacherous balancing of religious interests against state interests, this Article offers a concrete proposal for vindicating a limited right to religious exemptions without engaging in case-by-case balancing of such interests. But regardless of whether the Court embraces that proposal, it should at long last engage in a thorough reexamination of its sharply conflicting precedents and seriously consider the nuances and middle-ground arguments those precedents have steadfastly ignored. By finally turning to that task, the Court could deliver what has been missing from its free exercise jurisprudence for so long: honesty.

Keywords: First Amendment, Free Exercise, Religious Liberty, Religious Exemptions, Targeted Burdens, Incidental Burdens, Masterpiece Cakeshop, Janus, Scrutiny Levels

JEL Classification: K10, K30

Suggested Citation

Oleske, Jr., James M., Free Exercise (Dis)Honesty (November 8, 2019). 2019 Wisconsin Law Review 689, Available at SSRN:

James M. Oleske, Jr. (Contact Author)

Lewis & Clark Law School ( email )

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

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