Living with RFRA --

[Eugene Volokh]

    A late response to Michael Paulsen:  As a wooden formalist
myself, and free exercise minimalist (more or less), I think (1)
Smith was probably right, and (2) in a perfect world, RFRA should be
enforced honestly, and if we don't like the results, we should amend
it.

    On the other hand, I think it's fair to be creepingly pragmatist
at least to the extent of recognizing that the courts are unlikely to
read RFRA as broadly as I think it's written.  (I realize that others
think I'm overreading it, which is why I've been trying to explain
why I think my reading is right.)

    Given this, I think it's good for those who favor narrowed
readings of RFRA to explain the ways they'd propose narrowing it.
Of course, I also think it's great that Michael Paulsen is willing to
eloquently speak up for a reading that's as broad as the statute
suggests.

    One particular interesting point:  Michael raises the possibility
that RFRA might not protect "interferences with the rights of
others."  What counts as the rights of others?  What about the rights
to be free from discrimination?  Quasi-property rights which can be
said to be created by zoning law?  The right to demand testimony of
witnesses in a civil case?  The right to not have one's money taken
to pay unemployment compensation for ex-employees, unless they were
terminated without cause?

> I am shocked -- shocked! -- to see such creeping pragmatism in my
> friends McConnell and Volokh.  My crude paraphrase:  "Well, if the
> rule is correct but produces difficulties in application, we should
> chisel on the correct rule and deprive some constitutional (or RFRA)
> rights for the sake of consistency and practicality.  After all, the
> correct rule is unsustainable, so we might as well abandon it."
>
> As a wooden formalist and free exercise extremist, I must dissent:
> *To whatever extent* a government rule operates as a prohibition on
> sincere religious free exercise, the free exercise clause (in my
> view) directs that government may not apply it so as to impose such
> a prohibition, with an extremely narrow (because implied) exception
> for the strictest necessity.  RFRA adopts essentially that test,
> without the difficulties of (i) interpreting "prohibiting" to include
> burdens of various sorts; and (ii) implying the exceptions in favor
> of compelling state interests.  Michael, Eugene, if you believe in
> LAW, you must apply these provisions though the heavens fall.  No?
>
> The only "escape hatches" that seem to be a fair inference from the
> texts of these provisions are as follows:
>
> 1.  The government action must operate to prohibit, punish, or
> prevent the free exercise of *sincere* *religious* beliefs.  The
> pressure point -- what has to "give" because of the radical nature of
> the restriction that the free exercise clause, potentially, imposes
> on government power -- is what counts as "religion."  Thus, the vigor
> of my debate with Rodney Smith.  Not every act of secular conscience
> or quasi-religious conscience can count as the free exercise of
> religion, or the heavens do fall -- and they fall at the behest of
> *nonreligious* conscience.  The framers understood religion in a more
> restrictive sense.  Adherence to the original public meaning of the
> term is the correct methodology, and also prevents the free exercise
> clause from really, truly, making every person "a law unto
> himself."  This may seem illiberal in a modern sense, but it save
> the free exercise of religion -- as intended -- for *religion*.
> I'll take it.
>
> 2.  *Sincere* exercises are what counts.  If the religious adherent
> can sincerely claim that the law operates to burden his religious
> exercise, that's a "substantial" enough burden to justify a
> restriction on state power *to impose that burden on him*.  Doug
> Laycock rightly observes that judges are skeptical of these
> claims.  Behind this lies the suspicion that there *are* bogus
> assertions of free exercise of religion.  Doug's preference -- and
> I think M. McConnell's -- is to indulge the suspicion and build
> into the notion of either "burden" or "compelling interest" a
> discounting for the spectre of a string of false claims.  I think
> that it is legitimate to factor into "compelling interest" the
> costs of accommodating similarly situated *truthful* claims, but I
> think the fear of false claims needs to be addressed by formulating
> a sound rule directed at sincerity itself, and not elsewhere.  As I
> have said in other posts, I would prefer a thumb on the scales in
> favor of the claimant.  I'd prefer a judge to say "sorry, Bob
> Jones, we don't believe that that is your real motivation and so I
> do not credit your affidavits" to "state public policy
> considerations, adopted by agencies, trump a religious community's
> rules for its own internal governance, whenever we think they
> should."  The former ruling is a danger, but it is much more easily
> subjected to public scrutiny, and controlled by rules of evidence.
> Similarly, I'd prefer to let the Amish employer win in US v. Lee
> and let subsequent claims be addressed on their own merits, to
> determine whether a newly-minted claim of exemption from all
> taxation, on the basis of a newly discovered religious belief, can
> pass the sincerity threshold.
>
> I know, I know:  You're going to come back at me with the horribles
> of government evaluating the truth, plausibility, consistency, etc.
> of claimants' asserted religious beliefs, ala Ballard, Thomas v.
> Review Bd. etc.  And you are right to do so.  My hypothesis:
> Judges are doing that anyway, and are disguising this inquiry with
> *other* doctrinal labels that have the effect of diminishing
> genuine claims to religious liberty.  Moreover, judges are doing it
> on the basis of *hypothesized* *future* claims about religious
> beliefs that might arise if they let the camel's nose of a genuine
> claim into the tent.  ("If we grant the meritorious claim of the
> Amish, what about the bogus self-interested claims for tax
> exemption that will be hard to distinguish on anything but their
> facts?").  In the free speech context, we view such slippery slope
> problems, and the attendant protection of low-value expression, as a
> cost of freedom -- of protecting the core.  In the criminal
> defendant context, we view the slippery slope of letting lots of
> guilty people go free as a cost of protecting a core value.  Why
> is genuine religious free exercise not thought worthy of similar
> indulgence?  True, many bogus claims will slip through.
> Personally, I'd rather have some loose-cannon "posse comitatus"
> types "go free" from taxation (on the basis of not-disproved
> assertions of religious free exercise) than have murderers,
> rapists, and robbers go free from criminal punishment (on the
> basis of evidentiary rules that overexclude probative evidence of
> guilt in the name of enforcing other constitutional principles).
>
> 3.  The last escape hatch is what counts as "the free exercise of
> religion."  As I read McConnell's historical evidence, the
> received understanding was that this phrase (like "*the freedom*
> of speech") did not include interferences with the private rights
> of others.  That is, that *definitionally*, a claim to free
> exercise of religion that imposed nontrivial "substantial
> burdens" (!) on the basic, common law rights of others did not
> lie within the scope of the freedom.  (This may be a basis for
> justifying part of the cluster of exceptions that currently
> comprise "compelling state interest").
>
> But if it's really religious (not just secular), if the assertion is
> not shown to be insincere (in accordance with accepted standards for
> proof of propositions of like kind), if the claimant demonstrates that
> the law prohibits *his* exercise of religion, in some nontrivial
> relevant respect, and accommodation of the claim does not impose
> substantial burdens on the private rights of others, then a court
> must refuse to give effect to a law, to the extent that it
> imposes such a prohibition, in that case, as to that person, and
> (by necessary implication, in future cases) imposes such a prohibition
> on the sincere religious exercise of similarly situated religious
> claimants, absent the most compelling justifications implied from
> the strictest necessity.
>
> Do the heavens really fall if we try to apply this standard, or is
> the modern mind just reluctant to give sincere religious exercise
> such a "trump" over public authority generally, because we no
> longer *really* believe, as the framing generation did, in the
> importance of protecting the free exercise of religion, because of
> the precedence of religious obligation over secular governmental
> authority?


                               -- Eugene Volokh, UCLA Law