Counting heads on RFRA.

• Author: Paulsen, Michael Stokes
• Position: Religious Freedom Restoration Act

The Supreme Court has granted certiorari to decide the constitutionality of "RFRA" -- the Religious Freedom Restoration Act.(1) What will they decide? The issue is of great interest and importance for many reasons including the fact that I have a public wager with Professor Chip Lupu on it).(2) My prediction: RFRA will be upheld, without a doubt. In fact -- though this is going out on a limb -- there is a decent likelihood that RFRA will be unanimously upheld. To be safe, though, I will predict 7-2 (or better) for affirmance of the Fifth Circuit's decision upholding RFRA.

This is not a "should" argument, it is pure nose-counting. (I also think that RFRA ought to be upheld on the merits, but that is, in the main, a different question. No one would be foolish enough to think that just because a particular argument is sound it will be accepted by the justices, or that the justices' acceptance of an argument makes it sound.) What follows is a description of how the justices (probably) will reason, and why they will rule for RFRA. The analysis is presented in (roughly) the order of most likely to least likely votes for upholding the statute.

1. START WITH THE MIDDLE

   The constitutionality of RFRA is one of those rare cases that could make for a strange-bedfellows, both-ends-against-the-middle coalition striking down the statute, on a combination of grounds each of which is rejected by a firm majority of the Court. For the uninitiated. The Religious Freedom Restoration Act "restores" the "strict scrutiny" test for government action that imposes a substantial burden on the free exercise of religion, even where the governmental action is facially and formally neutral with respect to religion. The Supreme Court initially embraced this test in 1963 as the correct interpretation of the Free Exercise Clause of the Constitution, in the case of Sherbert v. Verner.(3) The Court applied that standard inconsistently for a quarter century, then abandoned it (for the most part) in 1990, in a controversial opinion for the Court authored by Justice Scalia and joined by Rehnquist, White, Stevens, and Kennedy), in Employment Divison v. Smith.(4) RFRA "restores" the Sherbert test as a matter of federal statutory law -- a civil rights statute -- and mandates that that test be applied to all governmental action, including state governmental action, that results in a substantial burden on religious exercise.

   The conventional thinking of the RFRA nay-sayers is that Scalia and the "conservatives" (Rehnquist, Thomas, and maybe Kennedy) hate both free exercise exemptions (that is, the Sherbert view rejected in Smith) and the so-called "Morgan Power" of Congress to enact legislation under section five of the Fourteenth Amendment that goes beyond what the Court has said are the minimum judicially-enforceable mandates of section one of the Amendment.(5) They thus count three sure (Scalia, Rehnquist, Thomas) and two probable (Kennedy and O'Connor) votes against RFRA on this ground, with the remainder to be made up from the hard left of the Court -- Ginsburg and Stevens, and maybe Breyer -- who might tend to think that any discretionary accommodation of religious exercise violates the Establishment Clause.

   As I explain later, I think that both sets of arguments are mistaken, as a matter of prognostication. The "conservative" core of the Smith majority (excluding the since-retired Justice Byron White) does not consist of religion-haters or Morgan-baiters so much as deferentialists who would prefer to let legislators draft accommodation statutes. The liberal bloc may fear religious establishment unduly, but probably not so much as to topple RFRA.

   Still, the nay-sayers' arguments are not ludicrous, and one could imagine a public choice nightmare under which three justices vote to strike down RFRA as in excess of Congress' power under section five (with six disagreeing with such a view), three justices vote to strike down RFRA as an Establishment Clause violation (with six disagreeing), but only three thinking it clears both hurdles. The holding of the Court becomes the composite of two different positions each of which is rejected by a (different) solid majority of six. Come to think of it, I've witnessed this nightmare in real life, more than a couple of times. I was in the courtroom the day our collective geniuses handed down County of Allegheny v. ACLU.(6) Four justices thought that public seasonal display of either a creche or a menorah was constitutionally permissible. Three Justices thought that display of either was unconstitutional. Two (Blackmun and O'Connor) thought the creche was unconstitutional but the menorah wasn't. Thus, the holding of the Court was the two-justice view, rejected in principle by the seven who thought that different treatment of the two religious symbols was the one answer that couldn't possibly be right. Even stranger things have happened.(7)

   In any event, it certainly makes sense to start my nose-counting with the three most solid votes for RFRA -- those who will think it clears both the section five and the Establishment Clause hurdles. They are (in order) O'Connor, Souter, and Kennedy, the infamous Casey troika.(8)

   O'Connor's the easy one. She concurred in the judgment only in Smith, harshly criticizing the majority's abandonment of the Sherbert test.(9) She adhered to this position in Church of the Lukumi Babalu Aye v. City of Hialeah, joining Justice Blackmun's separate concurrence refusing to accept the Smith rule.(10) For O'Connor to find RFRA unconstitutional would be almost inconceivable, as she would have to conclude that it is unconstitutional for Congress to adopt, by statute, under section five, the same substantive rule that she thinks is required by section one properly construed. I have seen the argument, advanced most prominently by Professor Dan Conkle, that the Court should (1) strike down RFRA; and then (2) overrule Smith.(11) But this has never made much sense to me, and I doubt if it would to O'Connor. On what principled ground can one strike down RFRA as invalid if it is legislation "enforcing the requirements of" section one of the Amendment as the justice(s) is (are) now about to construe that amendment in the next section of the opinion? The necessary premise of any holding that RFRA exceeds Congress' section five power is that this is not a statute to "enforce" the provisions of section one because it enforces a rule that is "bigger" than the actual meaning of the prohibition of section one. For RFRA, that means saying that Congress cannot pass this statute under its enforcement power because this restricts state power more than Smith does. That necessarily entails a determination that Smith is rightly decided. A necessary premise of RFRA's invalidity is that it legislates a rule that is inconsistent with (too much "bigger" than) the "correct" constitutional interpretation of section one. Thus, if the compelling interest test is the correct reading of the Free Exercise Clause, there can be no plausible argument that RFRA is unconstitutional. It would be positively weird for O'Connor (or Souter) to vote to strike down RFRA and, in the next breath, reiterate that Smith was wrongly decided and should be overruled in a proper case.

   Of course, we will all do seemingly weird things if we think it is necessary to vindicate some larger principle. A homey example. My four-year-old son is required to ask permission before going outside to play in the back yard. Once last summer -- at least once -- he went out without asking. I brought him in and placed him in the naughty chair for reiteration of the standing rule. After I was sure he understood that he needed to ask permission, he proceeded to ask permission, which I gave. My young formalist gave me a perplexed look and asked why I had punished him for doing what I was prepared to let him do anyway.

   To vindicate authority, of course (and to enforce the advance-permission rule)! The only plausible argument for O'Connor invalidating RFRA is precisely this sort of hyper-judicial supremacist opinion, that seeks to vindicate courts, authority to say what the law is even when they don't disagree with what the legislature has said it is. There are shades of this in the Joint Opinion in Casey, but I doubt that any of the Casey three would go this far.(12) O'Connor, for one, does not have a hostile reading of the section five power to begin with, as her opinion in Croson makes fairly clear.(13) Count O'Connor as a solid vote to affirm the Fifth Circuit's upholding of RFRA, which vindicates O'Connor's position in Smith.

   Count David Souter, too. Souter is also on record, in his separate concurrence in Church of the Lukumi Babalu Aye v. City of Hialeah,(14) as doubting the correctness of Smith and, moreover, as saying that principles of stare decisis should not require the Court to adhere to it -- an especially significant factor for the Casey troika. The significance lies in the fact that O'Connor, Souter, and Kennedy placed huge reliance on a grand doctrine of stare decisis in order to justify their votes in Casey -- votes which, for some of them, involved pretty clear flip-flops from their earlier positions.(15) For Souter, the Harvard legal process school protege and the probable moving force behind the Casey Three's invocation of stare decisis, to say that Smith is nonetheless fair game, virtually makes it so. At least, it gives the green light to O'Connor and Kennedy; and, of course, it clearly signals Souter's willingness to repudiate Smith. (O'Connor, too, has labored mightily to distinguish Casey's high-church version of stare decisis in subsequent cases. Her opinion in Adarand Constructors, Inc., v. Pena,(16) overruling Metro Broadcasting, Inc. v. FCC,(17) takes pains to rationalize and reconcile the interment of Metro with the respect accorded Roe. Interestingly, that portion of O'Connor's Adarand opinion was joined only by Justice...