As Professor Laycock noted in his opening remarks, the debate over religious exemptions has unfortunately devolved to polemics with insults and mischaracterizations being freely levelled by both sides. (1) It was not always this way. Although the question of whether religious believers should be exempt from neutral laws of general applicability has long sparked serious debate, that issue was not historically situated in the epicenter of the culture wars until relatively recently. Sherbert v. Verner, (2) the 1963 decision in which a constitutional right to a free exercise exemption was initially recognized, involved the issue of whether a Seventh Day Adventist should be exempt from the availability for work requirements of an unemployment compensation statute. (3) Employment Division v. Smith, (4) the 1990 case that held there was no such right, dealt with the claims of Native Americans seeking religious exemptions from laws prohibiting the ingestion of peyote. (5) In neither case was the underlying religious claim socially divisive.
Things have changed. In the current political environment, the question of whether religious believers should be exempt from neutral laws of general applicability is most prominently debated and understood with an eye towards the deeply polarizing issues that underlie the legal claims. Should religious believers be exempt from laws such as the Affordable Care Act that would otherwise require them to offer certain types of contraceptive coverage for their employees, as in Burwell v. Hobby Lobby Stores, Inc.? (6) Should small businesses, such as bakeries, have to provide wedding cakes to gay couples, when to do so would offend their religious principles, as in Craig v. Masterpiece Cakeshop? (7)
Viewing the religious exemption question against a cultural war background, however, tends to distort the underlying legal issues involved. After all, it was Justice Brennan, one of the most prominent liberals in Supreme Court history, who wrote the Sherbert opinion allowing for religious exemptions. And, it was Justice Scalia, one of the leading conservative jurists in Supreme Court history, who wrote the Smith decision, effectively ending the Sherbert regime. Now, however, some liberals vociferously question the granting of religious exemptions, while some conservatives are often the loudest voices in favor of religious exemption claims. Apparently then, to some on both sides of the political spectrum, the position on the advisability of religious exemptions is secondary to their views on the hot-button reproductive and civil rights issues that dominate our public discourse.
It is therefore appropriate to re-examine the religious exemption issue removed from its current highly politicized context in order to return the focus to the religion issues involved. For me, the starting point for that inquiry is Justice Scalia's opinion in Smith. (8)
Let us quickly set up the discussion. Pre-Smith, a claimant seeking a constitutionally compelled religious exemption under the Free Exercise Clause had to satisfy three threshold elements. First, she needed to show religiosity; that is, that her claim was religious, as deeply held moral or philosophical beliefs were not held to be sufficient to maintain a free exercise challenge. (9) Second, she needed to establish that her claim was sincere. (10) Third, she needed to demonstrate that her beliefs were burdened by the challenged state provision. (11) If these elements were established, the burden switched to the state, which then had to demonstrate a government interest sufficiently compelling to override the free exercise challenge.
Justice Scalia's opinion in Smith rejected this "compelling interest test" regime. First, and most broadly, he argued that potentially allowing every person's religious belief to be superior to the law would effectively make each person a "law unto himself." (12) As such, he argued, the test would introduce a new element into the criminal law. (13)
Second, Justice Scalia was concerned about the potential breadth of the free exercise assertion. Religious beliefs, after all, can be about anything. They can concern how a person dresses, (14) the days she chooses to works, (15) to whom she rents, (16) and the wages she chooses to pay to her employees. (17) They can even be implicated, as recent Affordable Care Act litigation shows, by requiring a religious believer to file paperwork as a pre-condition for being granted a religious exemption. (18) There is no limit. Consider, for example, one pre-Smith decision in which the belief being advanced was the ostensible religious obligation for the individual to dress like a chicken when going to court. (19)
Further, as Justice Scalia explained, because there is no limit on the types of actions that can be ascribed to religious compulsion, this is also no limit on the types of regulation against which a religious exemption claim can be brought. As he stated:
[B]ecause 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The [compelling interest test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.... (20) Third, Justice Scalia contended that because free exercise challenges were potentially limitless, courts would inevitably water down the...