Some subversive thoughts on free exercise doctrine…

Occasioned by the Court’s decision last weekend in the South Bay United Pentecostal Church case, over at the Volokh Conspiracy. I note that neither the Chief Justice nor Justice Kavanaugh bothers to cite Employment Division v. Smith, the central case in the area, and wonder how much doctrine drives decisions:

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are “comparable” and about how much deference to give elected officials during a public-health emergency. For what it’s worth, I think the Chief had the better of the argument. But the point I’d like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

You can read the whole post here.

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Movsesian Teaches Class at Moscow State University

I had a wonderful time this morning, teaching a (virtual!) class at Lomonosov Moscow State University on the COVID epidemic and religious exemptions under the US Constitution. Thanks to Professor Gayane Davidyan for inviting me and to her students for their wonderful, thoughtful questions. Lomonsov will post the class on YouTube soon, and I’ll link it when it appears.

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Hall Reviews “The Cambridge Companion to the First Amendment and Religious Liberty”

Professor Mark David Hall has this review of The Cambridge Companion to the First Amendment and Religious Liberty, edited by Professors Michael Breidenbach and Owen Anderson. I was pleased to contribute a chapter to the book.

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Legal Spirits Episode 023: Journalist Kelsey Dallas on Religion in America Today

Kelsey Dallas, the national religion reporter for the Deseret News, is one of the best religion journalists writing today: thorough, fair, and insightful. In this episode, she joins us to explains why, after getting a graduate degree in religion from Yale, she left academics to become a reporter, and why she finds American religion so fascinating. Along the way, we discuss how the COVID-19 epidemic is affecting churches, what stories she’s watching for future articles, and the never-ending Contraceptive Mandate litigation. Listen in!

Church Closings during COVID: The State of Play

At the Law and Liberty site this morning, I have an essay on current litigation regarding church closings during the coronavirus epidemic. I explain why courts have reached different results, and ask why some churches, rather than others, are bringing the lawsuits. Here’s an excerpt:

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges….

You can read the whole essay here.

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More Thoughts About Equal Treatment and the Coming Disagreements

I have a follow-up post at Mirror of Justice to the post immediately below. A bit:

But as the crisis reaches a second stage–an emergency of a different kind, now a more chronic or enduring condition–and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it’s at this point that considerations of unfairness become stronger in people’s psyche.

The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like “essential” but they aren’t really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one’s view of the true goods of religious observance is very different, then one will not accept these arguments.

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