RELIGIOUS LIBERTY AND JUDICIAL DEFERENCE.

• Author: Rienzi, Mark L.

INTRODUCTION 339 I. THAYERISM, GOBITIS, AND JUDICIAL DEFERENCE 342 A. Thayer's Theory: "Whatever Choice Is Rational Is Constitutional.". 343 B. Thayerism in Plessy, Buck, and Korematsu 345 C. Thayerism in Gobitis 348 1. Background: "I love my country and I love God more." 348 2. Deference trumps constitutional enforcement 349 a. Legislatures over Courts 349 b. Deference to Rational Legislative Choices 350 c. Fear of Anarchy 352 II. BARNETJE'S REJECTION OF DEFERENCE 353 A. Barnette and Judicial Protection of Rights 354 B. Barnette's Victory over the Deference of Thayer and Gobitis 359 1. Barnette's Triumph in First Amendment Law 360 2. Barnette's Broader Triumph in Constitutional Law 362 3. Barnette's Triumph in the Academy 364 III. Smith as the Revival of GOBITIS/Thayerian Deference 366 A. Smith, Thayer, and Gobitis 366 B. Smith's Aftermath 370 IV. REJECTING DEFERENCE: 2012-PRESENT AT THE SUPREME COURT 372 A. Church Autonomy Cases 375 B. Free Exercise Cases 378 1. Marriage 378 2. State Funding Cases 382 3. COVTD-19 Lockdowns 385 C. Establishment Clause Cases 387 D. Federal Statutory Cases. 394 CONCLUSION: DEFERENCE, PLURALISM, AND SMITH 398 INTRODUCTION

Eighty years ago, the Supreme Court decided a pair of cases about whether the government could force children from a minority religious group to pledge allegiance to the American flag. The two cases reached opposite results, with one allowing the forced pledge and one invalidating it. The key difference between the two was a shift in the Court's view on the question of deference. How much should judges defer to political actors?

In the first case, Minersville School District v. Gobitis (1940), the Court ruled that the government could force the Jehovah's Witness children to salute the flag. (1) The Gobitis Court fully understood the children's religious objection, and claimed to view the minority's rights of conscience as "so subtle and so dear." (2) But the Court thought it had a "duty of deference" (3) that obligated it to yield to the local majority's view that coercion would instill patriotic impulses in children. (4)

The deferential approach taken in Gobitis was not new. As James Bradley Thayer explained in 1893, there had long been a strain of judicial thinking that urged courts to defer to rational legislative decisions, even on constitutional questions. (5) "Thayerism," as the approach became known, can be seen in a host of infamous constitutional rights cases, including Plessy v. Ferguson, (6) Buck v. Bell, (7) and Korematsu v. United States. (8) Justice Felix Frankfurter, who wrote the Court's opinion in Gobitis, was an acolyte of Thayer and thought Thayer's 1893 essay setting forth this deferential approach "was the most important thing ever written about the Constitution." (9)

The Court's embrace of judicial deference in Gobitis was shortlived. Just three years later, in West Virginia State Board of Education v. Barnette, the Court announced essentially an anti-Thayerian approach to the First Amendment. (10) Eschewing deference, Barnette endorsed "the right to differ as to things that touch the heart of the existing order" and said that, even on a majority vote, "no official, high or petty" could force minorities to embrace the majority's orthodoxy in religion or other matters. (11) In the Barnette view, protecting minority beliefs and practices from majority coercion is the very point of the Bill of Rights. Where important minority rights are threatened by majoritarian government, courts cannot merely defer.

I want to suggest that this conflict over deference is actually at the heart of much of our modern religious liberty jurisprudence. To be sure, the conventional wisdom is that the deferential Thayerian approach to the First Amendment set forth in Gobitis is dead, and that the Barnette approach of judicial enforcement of constitutional rights controls. (12) That conventional wisdom is mostly correct: Barnette's non-deferential understanding of how courts and the Constitution protect rights is broadly embraced by Justices and commentators across the ideological spectrum. (13) Barnette even transcends the First Amendment and is often invoked as a key precedent for understanding how constitutional rights work in other important individual rights contexts. (14) This approach to rights is widely understood as providing essential judicial protection for minority rights and pluralism. (15)

But that approach has not yet fully extended to religious liberty. Nearly fifty years after Barnette, the Supreme Court actually relied on Gobitis in 1990 when it embraced a restrictive approach to the Free Exercise Clause in Employment Division v. Smith. (16) While the Court had previously taken a Barnette-style approach in religious liberty cases, Smith relied instead on Gobitis as correctly stating the general rule of deference, namely that the Free Exercise Clause offers little protection against many general laws imposed by legislative majorities. (17)

Most scholars of the Smith decision have justifiably focused on the issue of religious exemptions. (18) That makes sense, because Smith framed exemptions as the central issue. (19) But I argue here that much can be learned from looking at Smith through the lens of the competing approaches to deference that motivated the Gobitis-to-Barnette reversal. At a time when the Supreme Court seems poised to reconsider Smith, this analysis of free exercise law through the lens of deference can help both to elucidate why Smith was wrong, and why it has remained so out of step with the Court's treatment of virtually all other individual rights.

Close attention to the question of deference also provides the best explanation for the past decade of Supreme Court religious liberty decisions. A string of recent decisions--involving a wide variety of religious liberty claims, a diverse group of religious plaintiffs, and often broadcross sections of the Court coming to surprising agreement--suggests that the Supreme Court is rejecting the deferential Thayerian approach to religious liberty. The Court has repeatedly emphasized the First Amendment's role as the "guarantee [that] lies at the heart of our pluralistic society" (20)--something the First Amendment simply could not do under a deferential Gobitis understanding of rights. And while both Gobitis and Smith seemed to fear judicial enforcement of the Religion Clauses, the Court's recent cases, including last Term's unanimous decision in Fulton v. City of Philadelphia, (21) suggest that the Court views such enforcement as both necessary and salutary for the Clause to help "foster a society in which people of all beliefs can live together harmoniously." (22) In the process, these cases have brought the Court's religious liberty jurisprudence into closer alignment with its treatment of other fundamental rights.

This Article has five parts. Part I explores the deference-based Thayerian understanding of constitutional rights that led to the Court's willingness to defer to school boards about the forced flag salute in Gobitis. Part II then discusses the prompt rejection of this deferential approach to individual rights in Barnette's overruling of Gobitis. Part III explores how the Court's leading Free Exercise precedent, Smith, is best understood as embracing the Thayerian deference of Gobitis. Part IV analyzes the Court's efforts over the past decade to reorient the law of religious liberty away from the narrow, deferential approach and toward the path of judicial protection for minority rights and pluralism described in Barnette. Part V concludes by discussing the prospects for the Court's ultimate success in fully eradicating the impact of Thayerian judicial deference on religious liberty and fully embracing the First Amendment as a strong and enforceable protection for peaceful pluralism amidst differences.

1. THAYERISM, GOBITIS, AND JUDICIAL DEFERENCE

   Gobitis and Barnette reached opposite answers on the question of whether governments can impose a forced flag salute and pledge on unwilling students. That outcome was and remains important, both for the particular students and communities affected, and for a free society more broadly.

   That difference in outcomes is attributable to an even more important difference between Gobitis and Barnette on the question of deference. The cases differ sharply as to how and whether judges should defer to political actors. As will be discussed later, understanding Gobitis and Barnette through this lens sheds important light on the modern approach to religious liberty, both because the Court would later adopt the Gobitis approach of deference in Smith, and because the more recent religious liberty cases are best explained as a broad rejection of such deference.

   At the time of Gobitis, thinking about the judicial role was heavily influenced by James Bradley Thayer's paper "The Origin and Scope of the American Doctrine of Constitutional Law." (23) Alexander Bickel deemed Thayer's article a "singularly important piece of American legal scholarship," because of its influence on Holmes, Brandeis and the Justice who would write Gobitis, Felix Frankfurter. (24) Frankfurter would later call Thayer's argument the "most important single essay" about American constitutional law and "the great guide for judges." (25)

   1. Thayer's Theory: "Whatever Choice Is Rational Is Constitutional. "

      Thayer argued that courts presented with constitutional questions actually were not supposed to decide whether a law is unconstitutional "upon a just and true construction." (26) Instead of deploying their own constitutional analysis, Thayer argued that judges should apply a version of what today we might call a "clear mistake" rule or "rational basis" test. Under it, courts can only invalidate an act of the political branches as unconstitutional "when those who have the right to make lawshave not merely made a mistake, but have made a very clear one,--so clear...