RFRA and judges setting social policy
VOLOKH at law.ucla.edu
Fri Oct 28 08:59:33 PDT 2005
I think I'm one of the very few people who supports both Smith *and*
RFRA; let me briefly explain why I think this is right.
Judges have long set social policy from the bench -- that's how the
common law was made, and continues to be made in certain areas (state
tort law, admiralty law, etc.). They also continue to make policy
decisions in certain areas where Congress has asked them to make such
decisions -- expressly in the federal privileges, pretty expressly in
copyright fair use, implicitly in the Sherman Act, and elsewhere.
I think the Sherbert/Yoder regime was wrong in part because it gave
judges the power to decide *as a constitutional matter* which laws must
yield to religious freedom objections, because religious violations of
the laws aren't "really harmful," and which laws may still prevail,
because the laws are needed to avert "real harms." (Naturally, this
requires an explanation for why I think this is wrong under the Free
Exercise Clause, but right -- in a much narrower range of cases -- as to
the Free Speech Clause and other provisions; I try to give such an
explanation in http://www.law.ucla.edu/volokh/relfree.htm, Part III.
For purposes of my response to Marci, though, suffice it to say that my
objection to Sherbert/Yoder is indeed a "judges setting social policy
objection.) For these reasons, I think Smith was right.
But RFRA doesn't put judges back in the Sherbert/Yoder position,
because it can't -- it can't give them the power to render the final
word on what constitutes "real harm." Rather, because RFRA is just a
statute and can be revised by Congress, it gives judges only the power
to decide *in the first instance* when an exemption ought to be carved
out; Congress always retains the power to repeal any exemptions that it
thinks are wrong.
In this respect, judges' power under RFRA is both (1) legislatively
authorized, so that judges are *implementing* the legislative will
rather than preempting it, and (2) akin to judges' power to make
common-law rules -- either in the first instance or pursuant to
authorizing statutes such as the fair use provision, Rule 501 of the
Federal Rules of Evidence, and the like -- subject to legislative
override. So while RFRA does call on judges to set social policy, it
does so in a proper way, and in a way that's hard to distinguish from
judges' traditional role, and not in the improper way called for by
I do think that the federal RFRA was a bad idea (though I'm not sure
whether it was unconstitutional), because -- like the other
common-law-like judicial decisions -- exemption decisions should be made
on a jurisdiction-by-jurisdiction basis, with each legislature being
able to repeal those judicially created religious exemptions that it
thinks are unsound. In this respect, I like the post-Boerne regime of a
federal RFRA for federal laws and state RFRAs in many states for many
state laws (though I think that they should be enacted in more states,
and that state constitutional Sherbert/Yoder regimes should generally be
replaced by state RFRAs in those states). But the proper criticism of a
federal RFRA is the federalism criticism. It is not a "judges setting
social policy" criticism, at least in the same sense as some
judge-created *constitutional* rules are criticized as "judges setting
Incidentally, I go into this in much more depth in my "A Common-Law
Model for Religious Exemptions" article, 46 UCLA Law Review 1465 (1999),
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
Hamilton02 at aol.com
Sent: Friday, October 28, 2005 7:37 AM
To: nebraskalawprof at yahoo.com; CONLAWPROF at lists.ucla.edu
Subject: Re: Miers
It's interesting McConnell is not being defended here on federalism
principles, which is as it should be. His public stance against Roe v.
Wade is also not in this list, which is interesting.
"Most social conservatives," when they come to understand that is meant
by the likes of RFRA and Brennan's approach to free exercise issues, do
not think Smith is wrong. Conservatives, in general, have a strong
regard for (1) the rule of law and (2) the capacity of the legislative
process to set social policy, like exemptions. If you ask a
conservative if he or she thinks that religious organizations or
individuals should have to obey neutrally, generally applicable laws,
the invariable answer is "yes."
Scalia, Rehnquist, and Kennedy are the true conservatives on the Free
Exercise Clause. On these issues, McConnell is joining Brennan,
O'Connor, Breyer, and the liberal con law professors. That is why so
many jumped at the opportunity to support him for the court of appeals.
His instincts are liberal.
How does one square RFRA with a view that judges should not set social
policy from the bench? It's okay in the religion context, but it's not
okay in the privacy context?
In a message dated 10/28/2005 10:27:52 A.M. Eastern Standard Time,
nebraskalawprof at yahoo.com writes:
1. He is no friend of Substantive Due Process, whether of the Lochner or
the Lawrence strain. He will not impose his own list of "fundamental"
liberties to strike down laws duly enacted by state legislatures. He
knows that the Due Process Clause codifies neither Mr. Herbert Spencer's
Social Statics nor the Kama Sutra.
2. Scalia's views about free exercise (he thinks it doesn't exist) are
not the views of most social conservatives. Smith is wrong and Michael
knows it is wrong.
3. Michael is also a strong supporter of the Free Speech Clause,
including the right to equal funding (Rosenberger and Davey) and to
expressive association (Dale).
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