Free Exercise Uncertainty: Original Meaning? History and Tradition? Pragmatic Nuance?

Abstract

When a law not targeted at religion nonetheless has the incidental effect of substantially burdening a religious practice, does the Free Exercise Clause of the First Amendment provide a presumptive right to a religious exemption? Over the past six decades, the Supreme Court has shifted its answer to that question from “no” to “yes” to “no” to “maybe” without (1) overruling a single precedent, (2) engaging arguments about original meaning, (3) examining whether there is a deeply rooted history and tradition of recognizing constitutional exemption rights, or (4) considering analogies to its treatment of incidental burdens in other First Amendment contexts. The result is an unsettled free exercise jurisprudence that stands in considerable tension with recent developments elsewhere in constitutional law—developments that have seen the Court increasingly invoke original meaning and emphasize history and tradition—as well as with longstanding free speech doctrine.

After detailing the many complications raised by the Court’s recent embrace of the “most favored nation” theory of religious exemptions—complications that make a wholesale reexamination of the exemption question seem inevitable—this article engages the broader issues of original meaning, history and tradition, and First Amendment consistency. Contrary to the conclusion reached by Justices Alito, Gorsuch, and Thomas in Fulton v. City of Philadelphia, the original meaning of the Free Exercise Clause likely concerned only the making of laws regulating religion as such, not the application of generally applicable laws to religiously motivated conduct. And consistent with the original meaning, judicial interpretation of the Free Exercise Clause prior to 1963 reflected an overwhelming history and tradition of rejecting claims to constitutional exemption rights.

But while neither original meaning nor a deeply rooted tradition supports religious exemption rights for individuals, normative arguments for such rights might lead the Court to take up Justice Barrett’s separate invitation in Fulton, joined by Justice Kavanaugh, to look for guidance in modern free speech doctrine concerning incidental burdens. This is the most promising prospect for exemption proponents, and it points towards an approach in which courts would apply modestly heightened scrutiny to denials of religious exemptions. Of course, any regime of judicially granted exemptions faces the challenge of how to keep judges out of the dangerous business of engaging in ad hoc balancing of religious interests against other interests. But the Court’s recent and unanimous decision in Groff v. DeJoy, concerning the statutory right to reasonable accommodation of religion in the workplace, is a reminder that tests are available that would allow courts to deliver meaningful protection for religious claimants while avoiding judicial entanglement in religious questions.

Keywords: First Amendment, Free Exercise, Religious Exemptions, Original Meaning, History and Tradition, Fulton, Tandon, Most Favored Nation, Groff, Title VII

JEL Classification: K10, K30