Last term, the Supreme Court addressed several religious liberty-related matters in Bostock v. Clayton County, Little Sisters of the Poor v. Pennsylvania, Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe v. Morissey-Berru. And, shortly following the term, the Court weighed in on another free exercise matter, Calvary Chapel Dayton Valley v. Sisolak. Next term, several religious exercise and religiously motivated free speech matters appear on the Court’s docket, such as Uzuegbunam v. Preczewski, Arlene’s Flowers v. Washington, Bruni v. Pittsburgh, Thomas More Law Center v. Becerra, and Fulton v. Philadelphia.
This docket load could reflect the Court’s interest in religious liberty matters or increasing challenges to religious liberty. In any case, the question remains: how are we to reconcile the free exercise of religion with competing interests in a manner consistent with the First Amendment’s text and history, and the Court’s jurisprudence?
Stanford historian Jack Rakove surveys the history in his new work, Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion (Inalienable Rights). Rakove posits that legislative or regulatory exemptions provide a way forward in contemporary social and religious conflicts. Yet according to scholar Mark David Hall, Rakove’s intentionally provocative work misses the mark both historically and legally, as compared to the Founders’ vision. Rakove’s account—and his proposed solution by exemption—leaves far too little room for dissent from prevailing social norms.
This tension has led some others to seek a legislative “fix”—the most popular of which is “Fairness for All.” But that proposal would add sexual orientation and gender identity as protected classifications to federal civil rights laws, thus vastly expanding the scope of those laws while proposing exemptions for only some religious organizations. That’s why scholars Robert George and Ryan Anderson contend that this euphemistically-named proposal is neither fair to everyone (religious or not), nor protective of everyone’s pre-political, inalienable right to the free exercise of religion, an expressly-protected constitutional right.
These recurrent conflicts and tensions often stem from, or are at least exacerbated by, jurisprudence that minimizes the constitutional text, which our Founders carefully crafted to protect against governmental encroachment. It seems originalism, then, as articulated by Attorney General Meese, Justice Scalia, and Judge Bork, provides the best “fix” of all going forward. The right to religious free exercise—not only to be religious, but also to act on religious beliefs—is rooted in our shared human nature and protected by the text and design of the Constitution. As such, faithful originalists place a premium on this right as our first freedom. Hopefully, the Court will apply this constitutional lens to the religious cases and controversies it considers next term.