This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

Let us next consider religious exemptions offered by judicial bodies in counter-majoritarian ways—meaning judicial actions that might decline to apply duly enacted democratic laws to religious objectors. Can that sort of action ever be consistent with the consent proposition, and with a self-governing free people?

To answer that question, one must reflect on the constitutional moments and mechanisms that either authorized (or failed to authorize) the judiciary to enforce certain rights—here, we’ll focus on religious ones. In the United States, one could argue that this occurred through super-majoritarian constitutional conventions that endowed the judiciary with authority to enforce things like the First Amendment contrary to the will of a simple majority. A constitutional convention process involves higher levels of engagement from the people than normal legislation (i.e., a process with even stronger consent), and ostensibly the people can take judicial authority to offer religious exemptions away if it no longer becomes desirable. Of course, this argument depends on an understanding of the text and original meaning of the constitution as providing authority for such judicial enforcement, something I’ve discussed in scholarship elsewhere regarding judicial religious exemptions.[11] But let’s assume, for the sake of discussion, that the U.S. Constitution does, in fact, provide sufficiently clear judicial authority to enforce religious rights. How can such enforcement be accomplished in a way that is consistent with a consenting and self-governing people when the judiciary is not democratically accountable to the people? It turns out that counter-majoritarian judicial actions can manifest in a variety of ways, and some are more consistent with self-governance than others.

First, the judiciary can identify the scope of a right and then provide categorical protections for activities that fall within these rights. This action by the judiciary lends itself to protections that are narrow but deep. In the religious context, judicial religious exemptions have been provided in this vein for the ministerial exemption. There, the judiciary simply determines if a religious leader qualifies as a minister under the relevant First Amendment test. If so, the religious body is entitled to an exemption from laws interfering with the employment relationship with that minister (including antidiscrimination laws).[12] There is no opportunity for the government to argue it has a justification to override this religious exemption. The religious adherent simply wins. One can understand, then, why this powerful sort of judicial protection has been applied in only narrow and (by some lights) the most important of contexts regarding religious exercise.

Early in United States history, religious objectors sought a rule that would allow for this type of categorical protection for alltypes of religious objections. In an 1878 case, religious claimants asked the lower court to instruct the jury that they must return a verdict of “not guilty” if they found that the claimant had violated criminal laws out of “a religious duty.”[13] Unsurprisingly, the Supreme Court was alarmed by this all-or-nothing proposal. In the Court’s view, a rule requiring courts to provide an automatic exemption every time an individual asserted a sincere conflict of conscience would foster a world in which each religious individual “bec[a]me a law unto himself” and government “exist[ed] only in name.”[14] That case resulted in the U.S. Supreme Court deciding, for a time, not to provide any religious exemptions and instead to defer to the will of the majority. But ultimately, the Court began to explore other options, which brings us to the next category through which a court can provide exemptions.

Second, courts can balance the importance of the religious exercise against the importance of the government objective that would interfere with the religious exercise. This can also occur when courts determine, under a tiered system of scrutiny, that some sorts of rights are going to be entitled to more scrutiny than others, as scholars such as Joel Alicea have noted.[15] The problem with courts performing either of these types of balancing is that this analysis involves difficult issues of incommensurability. Not only are judicial bodies far less institutionally competent than legislatures to engage in incommensurate balancing, such policy choices cannot be easily changed by the people when the decision is issued under the valence of constitutional law.[16] Justice Kavanaugh has critiqued strict scrutiny as being unworkable in part for these reasons.[17] And I have written elsewhere about how the balancing prong of proportionality, when emphasized too heavily in the analysis, can suffer from similar problems.[18]

The third category through which the judiciary can provide religious exemptions is essentially an evidentiary one. This role rests on the premise that, at the very least, the government may not interfere with religious exercise simply because it views that societal good as unimportant. This type of devaluing of religion can manifest as bemused indifference at best and as open hostility at worst. When a religious objector is thus seeking a religious exemption from a specific application of the law, the judiciary would ensure that the government has demonstrated (with evidence and not mere say so) a need to interfere with religious exercise. Doctrinally, this could operate as a rebuttable presumption of an entitlement to a religious exemption that the government can rebut by doing essentially two things. The government must first show that it does, in fact, have a policy objective other than devaluing religion, and second, that interfering with the voluntary religious exercise is necessary to advance that policy objective.

In many respects, this is how modern strict scrutiny is now applied by the U.S. Supreme Court. To be sure, strict scrutiny speaks in terms of “compelling government interest.” But the judiciary rarely decides cases by weighing the importance of the government interest compared to the importance of the relevant religious exercise. Instead, courts often assume without deciding that the government’s stated objective is compelling. Courts then turn to analyzing whether the stated interest is, in fact, the real interest that motivated the government, and whether the government has demonstrated that it cannot advance that interest without interfering with religious exercise.

For an example of assessing whether the stated interest is the real interest, the U.S. Supreme Court recently rejected a school’s claim that interfering with religious exercise was necessary for security and safety. The school never expressed this concern contemporaneously when it punished a school employee for a religious exercise. The Court explained, “Government ‘justification[s]’ for interfering with First Amendment rights ‘must be genuine, not hypothesized or invented post hoc in response to litigation.’”[19]

When it comes to deciding whether the government actually needed to interfere with the religious exercise to advance its interest, the court often looks to whether the government is being even-handed in the enforcement of its stated policy interest. For example, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that New York’s new and heightened COVID-19 restrictions were not justified in overriding requests for religious exemptions. In so ruling, the Court emphasized that New York had not acted in an even-handed way because the new regulations “single[d] out houses of worship for especially harsh treatment.”[20] In a concurring opinion, Justice Neil Gorsuch stressed that “there is no world in which the U.S. Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”[21]

Later news reports give some credence to the Supreme Court’s skepticism of New York’s evidentiary claims that its policy was necessary to advance health and safety objectives. A February 2021 article in the New York Times indicated that Governor Cuomo’s heightened COVID-19 orders for many houses of worship were not designated by public health officials, but were instead driven by political considerations and implemented by the Governor’s staff. The article reported, “[S]tate health officials said they often found out about major changes in pandemic policy only after [Governor] Cuomo announced them at news conferences—and then asked them to match their health guidance to the announcements.”  Indeed, “the State Health Department was not deeply involved in final decisions” regarding the policy implementing heightened COVID-19 restrictions.[22]

When the government is not being even-handed, it suggests that the government either has other ways of accomplishing its goal without interfering with religious exercise, and/or that the government is devaluing religion relative to other social goods that it is willing to protect even when such goods undermine the government’s stated interest.

This broader, evidentiary-based role for the judiciary is only one of multiple tools that pertain when it comes to the legitimate scope of judicially-provided religious exemptions. But it is one that provides for thicker protection of this right, and thus greater amounts of liberty, while still remaining consistent with a consent-based model of self-government where the judiciary is simply applying democratically elected policies about the relative importance of religion and not making that determination itself. Critics of strict scrutiny or proportionality should perhaps consider whether an evidentiary-focused rather than balancing-focused method of providing religious exemptions warrants support rather than criticisms if ensuring robust religious liberty protections within a self-governing legal regime is the goal.

[1] Liberty is often described in terms of autonomy. Indeed, autonomy is sometimes held out as the defining feature of modernity and a foundational element of liberal democracies. Ekow Yankah stated, “[f]rom the point of view of liberalism, human beings are defined first and foremost by their autonomy or freedom-preserving nature.” Yet as Richard Ekins points out in his reflection paper for this conference, focusing too much on autonomy can leave society with an atrophied account of relevant human goods. I bracket this important debate by speaking in terms of liberty, which might encapsulate other goods beyond autonomy, and also by acknowledging that liberty itself likely does not capture all relevant goods.

[2] Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 888 (1990).

[3] W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).

[4] See generally Stephanie H. Barclay, An Economic Approach to Religious Exemptions, 72 Fla. L. Rev. 1211 (2020).

[5] Steven Smith, Fictions, Lies, and the Authority of Law 2 (2021).

[6] Id. at 5.

[7] Richard Ekins, How to Be a Free People, 58 The American Journal of Jurisprudence 163, 164 (2013).

[8] Barclay, supra note 4, at 1236-1237.

[9] See Cotton v. Cate, 578 F. App’x 712 (9th Cir. 2014) (requiring a prison to consider a dietary accommodation for an adherent of Shetaut Neter).

[10] Philip Hamburger, Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal, 90 Notre Dame L. Rev. 1919, 1926 (2015).

[11] See Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, 96 Notre Dame L. Rev. 55 (2020).

[12] Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).

[13] Reynolds v. United States, 98 U.S. 145, 161-162 (1878).

[14] 167.

[15] See Brief of Joel Alicea as Amicus Curiae,; see alsoWhole Woman’s Health, 136 S. Ct. at 2327 (Thomas, J., dissenting) (arguing that “using made-up tests to displace longstanding national traditions as the primary determinant of what the Constitution means” is “illegitimate[e]” (quotation marks omitted)).

[16] See Paul Yowell, Constitutional Rights and Constitutional Design: Moral Empirical Reasoning in Judicial Review 27-35 (2018).

[17] See generally B. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1914–1919 (2017).

[18] See Justin Collings & Stephanie Barclay, Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty, 63 B.C. L. Rev. 453, 456-457, 518 (2022).

[19] Kennedy v. Bremerton School Dist, 597 U. S. ___ n.8 (2022) (slip op., at 31 n.8) (quoting United States v. Virginia, 518 U. S. 515, 533 (1996)).

[20] 141 S. Ct. 63, 66 (2020) (per curiam).

[21] Id. at 72.

[22] J. David Goodman, Joseph Goldstein & Jesse McKinley, 9 Top N.Y. Health Officials Have Quit as Cuomo Scorns Expertise, N.Y. TIMES, [] (Sept. 23, 2021).

Leave a Reply