The Free Exercise Flip

Christopher C. Lund May/June 2024
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Can religious exemptions be saved from culture-war politics?     

Illustrations by Jon Krause

Religious freedom is important. Not everyone is religious, of course. But for religious people, religious commitments often rank as the most important commitments they have—as commitments that, in a way, define them. Religious people therefore see religious freedom as a natural consequence of their religious commitments. “The Religion then of every man must be left to the conviction and conscience of every man,” James Madison once wrote, because “it is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.” But even nonreligious people can see the importance that religious commitments have in the lives of religious people. In a world in which we protect other important facets of peoples’ identities—race, gender, sexual orientation, and so on—religious commitments implicate deeply rooted, long held, and thickly communal ways of life that should be protected from governmental interference, whether that interference comes in the form of hostility, indifference, or neglect.

Yet in twenty-first-century America, this shared understanding is coming under fire. Two generations ago the above statements would have enjoyed a lot more support than they do now. Even then, some would have quibbled with the language, and there would have been at least a few dissenters. But these days many people would get off the bus entirely. Religious liberty has come to seem less like a universal ideal and more like a partisan demand. Our society has fractured into liberal and conservative segments that seem to be accelerating away from each other. And religious liberty has been both symptom and cause of that fracture. During the past decade or so, our society has been wracked with high-profile cases about conservative religious believers seeking religious exemptions from liberal civil rights laws. We have battled over the contraceptive coverage that employers must provide, with the Obama administration facing lawsuits for giving insufficiently broad religious exemptions (in the Hobby Lobby case) and with the Trump administration facing lawsuits for giving overly broad ones (in the Little Sisters case). We have battled over gay couples seeking wedding services, with the U.S. Supreme Court putting an end to the specific lawsuit in Masterpiece Cakeshop and then issuing a broader decision in 303 Creative, holding that the free speech clause gives objecting wedding vendors the right to refuse to provide services that are customizable and expressive.

In the mind of the general public, free exercise of religion has become almost synonymous with these kinds of culture-war claims. In 2015 Indiana considered adopting a state Religious Freedom Restoration Act (state RFRA). Such a measure would have created exactly the same legal test for exemptions from state and local laws that Congress had adopted in 1993 for federal laws in the federal Religious Freedom Restoration Act (RFRA). But the conversation around Indiana’s bill was almost unrecognizable. Angie’s List stopped plans for a $40 million expansion in Indiana; religious groups, labor unions, universities, cities, and states stopped events or employee travel in protest.

Trading Places

The Supreme Court, too, has been both symptom and cause in all this. In 1990 the Supreme Court decided Employment Division v. Smith. The narrow issue in Smith was whether the Native American church could use peyote in their religious rituals despite an Oregon law generally forbidding peyote. Before Smith the rule had been that the First Amendment required religious exemptions when the plaintiff could show a “substantial burden” on their religious exercise and the government failed to show a “compelling governmental interest” justifying that burden. But Smith brought an end to that regime, establishing in its place a general principle against religious exemptions. It was a different time. In 1990 liberals were the big supporters of free exercise, and conservatives were critical—Smith itself was written by the conservative Justice Scalia.

During the next two decades, though, the two sides flipped on the issue of free exercise. The biggest single cause was a set of cases in the late 1990s, in which Christian landlords refused to rent apartments to unmarried heterosexual couples because of their religious objections to facilitating fornication. This changed the politics of free exercise. Knowing that the issue would eventually involve gay couples, liberals slowly began retreating from free exercise and conservatives began embracing it.

One sees this flip even in the Supreme Court, the American political institution most concerned with timeless principle. In 2012 the Court decided Hosanna-Tabor, which confirmed the existence of the “ministerial exception”—the idea that ministers could not bring discrimination claims against their churches. At oral argument, Justice Scalia said it was “extraordinary” to claim that the free exercise clause does not entitle religious organizations to such a religious exemption, even though such a thing was exactly what his opinion back in Smith had said. But his comment portended the total reversal we now see on the modern Court. The justices furthest on the right—Justices Alito, Thomas, and Gorsuch—now think Smith should be reversed and religious exemptions should be restored. The justices in the middle—Justice Barrett, Justice Kavanaugh, and Justice Breyer (who has now been replaced by Justice Jackson)—have doubts about Smith, but have not firmly taken a position. And the justices on the left have not spoken up against Smith and have sometimes expressed concern about religious exemptions they see as going too far, and maybe religious exemptions in general.

Unchanged Needs

Yet when people focus too much on the political flip of free exercise and its hyperpolarization, they miss something important. And that is that a lot of free exercise hasn’t changed at all. The culture-war fights are on the surface of free exercise. Everyone knows about them. But underneath that surface, the deep waters of free exercise are what they always have been—religious minorities seeking to live their lives consistent with their religious beliefs in a pluralistic country that does not share their views and might not even know about them at all. The general public seems to have no idea these cases even exist. But it is still true that the majority of free exercise cases brought today have little to do with culture-war issues.

Take a case out of Texas. A five-year-old Native American boy wanted to wear his hair long, in conformity with the Apache religious beliefs of his family. This was a deeply held religious conviction: the boy’s hair had never been cut, and his father’s hair hadn’t been cut in 10 years, though he had almost lost his job because of it. But the local public school district refused to make any exception for this five-year-old boy, even though it allowed girls to have long hair. He needed to cut his hair, the school district told the court, because he had “twice been mistaken for a girl while at school.” That was the school’s argument—that the need to prevent such a mistake was a “compelling governmental interest” strong enough to justify the destruction of Native American religious identity.

Or consider an example from Kansas, where Mary Stinemetz was a Medicaid patient in need of a liver transplant. A Jehovah’s Witness, she objected to the blood transfusion that an ordinary liver transplant would require. But a new medical procedure has been developed, a bloodless liver transplant that does not require or involve a blood transfusion and that is actually cheaper than an ordinary liver transplant. But the problem arose because Kansas had no facility capable of doing bloodless liver transplants. There was one nearby, in Omaha, Nebraska. But Kansas’s Medicaid had a general policy against reimbursing out-of-state procedures, and it refused to make any exception for her. Stinemetz ultimately won her case for a religious exemption—the Kansas Court of Appeals concluded that Kansas’s Medicaid agency had “failed to suggest any state interest, much less a compelling interest, for denying Stinemetz’s request.”  So Stinemetz ultimately won her legal case. But by the time litigation ended, Stinemetz’s problems had progressed to the point that she was no longer eligible for a transplant, and she died of liver failure the year after her victory in the Kansas Court of Appeals.

Stinemetz is many things at once. It is a story of government intransigence in the face of dire religious need. It is a straightforward explanation of the need for religious exemptions. And it is a rejoinder to the argument that religious accommodations are undue favoritism for religious people. The case vividly illustrates how one can support religious exemptions without any commitment to the truth of the underlying religious claims. Few people share Mary Stinemetz’s religious beliefs about blood transfusions. But there is nothing wrong with us deciding to let her live anyway. There is, in other words, a perfectly good secular reason to accommodate religious conscience.

These cases are just the tip of the iceberg. Gonzales v. UDV was an important victory in the U.S. Supreme Court that gave a Brazilian group the right to use hoasca in their religious rituals; Holt v. Hobbs was an important victory in the U.S. Supreme Court for Muslims seeking to wear beards in prison. Cases have been brought by Muslim women seeking the right to wear unobtrusive veils at work or avoid unnecessary cross-gender pat-down searches. Cases have been brought challenging no-beard policies of police and fire departments, sometimes by Muslims, sometimes by Orthodox Jews. One district court gave the Santeria the right to continue their religious practices sacrificing animals, and another let a Sikh employee at the IRS continue a lawsuit to wear a kirpan (a ceremonial sword) that had been dulled down. And there are sympathetic cases not involving religious minorities. An important and surprisingly often litigated claim is whether churches can distribute free food to the homeless. The way these city ordinances sometimes work, the churches would be in the clear if they would simply sell the food to the homeless. City officials seem to have a hard time understanding why the churches just don’t do that instead.

Shared Ground

More than abstract arguments alone, these examples give answers to the two big challenges that defenders of religious exemptions must prepare themselves to answer. First, is religion really special? That is, how can religious people be given exemptions from laws that others have to follow? Does this not unfairly privilege the religious over everyone else, and how can it be maintained in a future in which Americans increasingly are less devout? And then second, aren’t religious exemptions unfair in another sense? That is, don’t religious exemptions burden other people? But why should I have to pay some cost that’s because of your religious exercise? But if we keep in mind the above examples, it helps us give some answers to those questions.

Responding to the first set of questions (about religion’s specialness), we give religious exemptions because people have distinct religious needs, so giving religious exemptions does not discriminate against people without those needs. Free exercise cases often involve religious folk who seek exemptions no one else wants—they object to blood transfusions, or having their pictures on their driver’s licenses, or to being clean-shaven. Those without the relevant religious beliefs have no reason to want those exceptions. Now, of course it’s true that people have other kinds of commitments beyond religion. The law should accommodate those too, and it frequently does. Where possible, the law should accommodate all the various kinds of deep commitments people have. But this is not an argument against religious accommodation. It’s just a recognition that justice requires accommodations beyond only religious accommodations.

Responding to the second set of questions (about the harms religion can inflict on others), the biggest reason for denying religious exemptions is the excessive harm they cause to other people. Religious exemptions, in a sense, involve a tradeoff of harms. Every time we think of giving a religious exemption, we must weigh the harm that affected third parties would suffer if we gave a religious exemption against the harm that the religious claimant would suffer if we denied a religious exemption. This balancing of harms is not easy. But again, a surprising number of religious exemptions impose only modest burdens on third parties. Many religious accommodation issues are difficult; some of them seem like zero-sum situations. But not all of them do.

It is crucial for us to get the message out that religious liberty is compatible with modern American society. There will be trade-offs, and hard questions, and exemptions that should be denied. But there are also, at the same time, places where religious exemptions are sorely needed and should be given. Both things can be true at once.

One feature of modern America is that it feels as though people are moving further away from each other. The two sides of contemporary American society have less and less to do with each other; they fear each other more, and they know each other less. Both sides need to listen to each other more. Those inclined against religious exemptions need to hear the stories of how they are needed, and those inclined toward religious exemptions need to hear the stories of how they can go wrong. Things do not have to fall apart, and the center can hold, if we are willing to do the work.

Article Author: Christopher C. Lund

Christopher C. Lund is a professor of law at Wayne State University Law School, Detroit, Michigan. He is widely published, and his academic work has been cited extensively by commentators and courts, including the U.S. Supreme Court. Along with Michael McConnell and Thomas Berg, he is the author of a leading church-state casebook, Religion and the Constitution, the fifth edition of which was published by Aspen in 2022. In 2017 he was awarded the Berman Prize for Excellence in Scholarship by the Law and Religion Section of the American Association of Law Schools for his piece “Religion Is Special Enough.”