Supreme Court: Religious conservatives have won a revolutionary victory in the Court

Ian Millhiser



For the past six years, the Supreme Court’s right flank has wanted to revolutionize the law governing so-called “religious liberty” cases, in which a plaintiff who objects to following a particular law on religious grounds seeks an exemption from that law.

Late on Thanksgiving eve, in a decision handed down while much of the country was already asleep, the Court made this vision a reality. Roman Catholic Diocese of Brooklyn v. Cuomoa decision allowing some houses of worship to operate in defiance of New York state’s rules seeking to limit the spread of Covid-19, is one of the two most significant religion cases of the past 30 years, and may prove to be one of the most important religion decisions in the Court’s history.

New York state limited attendance at religious services in areas with coronavirus outbreaks to 10 people in areas with the most severe outbreaks, and to 25 people in areas where the state is concerned that a severe outbreak could occur. In a 5-4 vote, the Supreme Court held that the state may not enforce these restrictions.

Roman Catholic Diocese marks a sea change in the Court’s approach to religious objectors, and it is an early sign of the significance of the late liberal Justice Ruth Bader Ginsburg’s replacement with conservative Justice Amy Coney Barrett.

Under the old rules, religious objectors typically could not seek exemptions from the law if granting them an exemption could harm people who do not share their faith. And the old rules were much more concerned with preserving equality between secular and religious individuals than with giving special advantages to people of faith. In the business context, for example, the Court was primarily concerned with ensuring that religious business owners did not obtain legal exemptions that would give them a leg up over their competitors.

As the Supreme Court held in United States v. Lee (1982), “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

But the Supreme Court started to dismantle decisions like Lee in Burwell v. Hobby Lobby (2014), which permitted private businesses to refuse to include birth control coverage in its employees’ health plan despite a federal regulation requiring these businesses to do so. Just as significantly, Hobby Lobby established a strong presumption that when a religious objector seeks an exemption from a federal law, the objector will get that exemption barring unusual circumstances.

Yet, for reasons explained below, Hobby Lobby only benefited religious objectors who sought exemptions from a federal law. State law still applied with considerable force against religious objectors, even after Hobby Lobby.

The practical effect of Roman Catholic Diocese is that it extends the Hobby Lobby regime to a wide range of cases involving religious objections to state law. There are still technical differences between the law governing plaintiffs who seek exemptions from a federal policy and those who seek to avoid state law, but the practical differences are now thin or even potentially nonexistent.

To be sure, Roman Catholic Diocese involves actual houses of worship that seek an exemption from legal restrictions, so the argument for a “religious liberty” exemption is stronger in this case than it was in Hobby Lobby, which involved for-profit businesses. But the majority opinion in Roman Catholic Diocese is written fairly broadly — broadly enough that the case is likely to have sweeping implications for for-profit businesses and other, similar institutions seeking a religious exemption from the law.

The implications of this doctrinal revolution are profound. Among other things, the Court is currently weighing whether religious objectors have a right to defy laws barring discrimination against LGBTQ individuals. Subsequent cases could potentially give religious conservatives a right to engage in gender discrimination, or to violate a bevy of other laws.

And, as Roman Catholic Diocese involves a challenge to state rules seeking to prevent the spread of a deadly disease, religious objectors may even prevail when their claims could endanger human life.

“Religious liberty” before Hobby Lobby, briefly explained

Although the old regime was less favorable to certain religious objectors than decisions like Hobby Lobby and Roman Catholic Diocese, the Court was often fairly protective of religious liberty plaintiffs prior to Hobby Lobby. So long as those objectors did not seek an exemption that, in Justice Ginsburg’s words, would “detrimentally affect others who do not share [the objector’s] belief,” such exemptions were often granted by federal courts.

The prior regime began with Sherbert v. Verner (1963), a seminal decision holding that the Constitution limits the government’s ability to enforce laws that impose a “substantial infringement” on someone’s religious beliefs. Sherbert also declared that such an infringement may only be “justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’”

The Court’s use of the three words “compelling state interest” sowed considerable confusion into religious liberty doctrine. Typically, when the Supreme Court uses the words “compelling interest,” it signals that the Constitution applies the highest possible safeguards against a particular kind of government action. Laws that discriminate on the basis of race, for example, must overcome a “compelling interest” test.

Lawyers refer to this highly rigorous test as “strict scrutiny.” Under strict scrutiny, a law cannot be enforced unless it uses the “least restrictive means” to advance a “compelling governmental interest.” Most laws that are subjected to strict scrutiny are struck down.

Yet, while the Supreme Court used the loaded words “compelling state interest” in its Sherbert opinion, empirical data shows that the judiciary applied something far less rigorous than strict scrutiny in cases involving religious objections — so religious objectors typically lost their cases under the Sherbert regime.

A 1992 study by James Ryan, now president of the University of Virginia, found that federal courts of appeals heard 97 free exercise of religion cases applying the “compelling interest” test between 1980 and 1990, and they rejected 85 of these cases. A similar study by UCLA law professor Adam Winkler looked at cases between 1990 and 2003. Winkler found that federal courts upheld 59 percent of “religious liberty burdens” during that period. By contrast, federal courts applying the compelling interest test upheld only 22 percent of free speech restrictions and 27 percent of laws that engaged in discrimination on disfavored grounds such as race.

Courts during the periods studied by Ryan and Winkler, in other words, often used the rhetoric of strict scrutiny. But they treated cases brought by religious objectors very differently than cases that applied full-bore strict scrutiny. Religious objectors typically lost their cases during these periods, while victims of race discrimination or other such activity were far more likely to prevail.

The Supreme Court, moreover, often encouraged lower courts to treat religious liberty cases with a fair amount of skepticism, even as the justices maintained that Sherbert was still good law. The Court’s 1982 decision in Lee, holding that business owners are broadly prohibited from seeking religious exemptions for their business, for example, is very much at odds with the Court’s approach to cases where strict scrutiny applies.

Then, in Employment Division v. Smith (1990), the Supreme Court appeared to abandon Sherbert altogether. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling,’” Justice Antonin Scalia wrote for the Court in Smith, is “permitting him, by virtue of his beliefs, ‘to become a law unto himself.’” Such an outcome, according to Scalia, “contradicts both constitutional tradition and common sense.”

Under the new rule announced in Smith, a religious objector must follow “neutral law[s] of general applicability.” Thus, so long as a law applies equally to religious and secular actors, the religious objectors cannot seek an exemption under Smith.

Smith’s effective decision to overrule Sherbert, however, triggered a bipartisan backlash from lawmakers who believed it did too much to limit religious liberties. Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), which sought to “restore the compelling interest test as set forth in Sherbert” and one other related case.

RFRA, however, only applies to the federal governmentSmith’s permissive rule still allowed the 50 states to enforce any “neutral law of general applicability” against religious objectors.

After RFRA, but before Hobby Lobby, states had a broad power to enforce their laws against religious objectors, so long as those laws did not single out people of faith for inferior treatment. The federal government, by contrast, had to comply with “the compelling interest test as set forth in Sherbert,” although that test, as Ryan and Winkler’s research demonstrated, was less rigorous than full-bore strict scrutiny.

Thus, under RFRA, most lawsuits brought by religious objectors against the federal government would fail.

Hobby Lobby applied full-strength strict scrutiny to federal religious liberty lawsuits

Hobby Lobby held that two businesses, whose owners object on religious grounds to certain forms of birth control, could refuse to cover those forms of contraception in their employee health plans, even though a federal regulation required employers to provide such coverage.

This decision was a doctrinal earthquake. As Justice Ginsburg explained in dissent, until Hobby Lobby, “no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”

Hobby Lobby was also significant for another reason. Rather than applying the watered-down version of the compelling interest test required by SherbertHobby Lobby applied the full force of strict scrutiny to the federal birth control regulation — a test that, as Justice Samuel Alito noted in his majority opinion, is “exceptionally demanding.”

Thus, Hobby Lobby effectively abandoned Lee’s holding that businesses generally must comply with the law, at least with respect to federal laws. It also held that plaintiffs with religious objections to a federal law benefit from the strong version of strict scrutiny applied to race discrimination cases — not the less rigorous test created by Sherbert.

Because Hobby Lobby was an RFRA case, however, its holding only applied to federal laws. After Hobby Lobby, religious liberty cases involving state laws remained subject to the permissive test announced in Smith.

Roman Catholic Diocese transforms Smith into little more than an empty husk

The holding of Smith is that the state may apply a “neutral law of general applicability” to a religious objector — only laws that single out people of faith for lesser treatment than secular individuals are suspect under Smith. The Court’s opinion in Roman Catholic Diocese upends this balance by defining what counts as a “neutral law of general applicability” so narrowly that it is virtually meaningless.

The punchline is that, with few exceptions, the Hobby Lobby rule will apply equally to state and federal laws. Nearly any law could be unenforceable against religious objectors, unless that law survives strict scrutiny.

The New York state rules at issue in Roman Catholic Diocese involve a complicated regime the state uses to prevent the spread of Covid-19. New York classifies areas with an elevated risk of coronavirus transmission as “yellow,” “orange,” or “red” zones. Houses of worship in orange zones may only admit a maximum of 25 people, while places of worship in red zones may only admit up to 10 people.

While these restrictions are quite severe, they are actually less harsh than the restrictions imposed on secular businesses that are similar in character to places of worship. As a lower court that upheld New York’s restrictions explained, “public gatherings with scheduled starting and ending times such as public lectures, concerts or theatrical performances” must “remain closed entirely” in the relevant zones.

Thus, the state effectively banned all public gatherings where large numbers of people gather in auditorium-like settings. It then gave a special exemption to houses of worship that allowed them to have small, limited gatherings. Whatever you think of that policy, it does not single out places of worship for inferior treatment. Indeed, it does the opposite.

Nevertheless, a majority of the Supreme Court struck down New York’s headcount limits on houses of worship because the state’s rules treat those institutions less favorably than businesses that do not involve public gatherings in auditorium-like settings.

“In a red zone, while a synagogue or church may not admit more than 10 persons,” a majority of the justices explained in an unsigned opinion, “businesses categorized as ‘essential’ may admit as many people as they wish.” The opinion then lists several examples of “essential” businesses, including “acupuncture facilities, camp grounds, [and] garages.”

Yet, while it is true that garages and acupuncturists are subject to different rules than churches, the reasons are hardly arbitrary. As Justice Stephen Breyer writes in dissent, “members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other.”

Large groups of people typically do not gather in an acupuncture facility for hours at a time and sing. But they do engage in such potentially dangerous activity in churches and many other houses of worship. So it makes sense that places of worship should be treated differently than businesses that bear little, if any, resemblance to those places of worship.

The point is this: Justice Breyer’s dissent suggests that a state law is a “neutral law of general applicability” so long as that law treats religious institutions the same way as similar secular institutions. The majority opinion, by contrast, suggests that a law is suspect if a court can find any example of a secular institution that is treated differently than a religious institution.

Although Roman Catholic Diocese is a case about houses of worship, the majority’s reasoning has profound implications for other institutions that seek religious exemptions, including for-profit businesses. Consider, for example, Justice Alito’s dissent from the Supreme Court’s decision not to hear Stormans v. Wiesman (2016).

Stormans involved a Washington state regulation that required pharmacies to “deliver lawfully prescribed drugs or devices to patients.” Pharmacy owners who object to certain forms of birth control on religious grounds sought an exemption from this regulation, claiming they should have the right to refuse to dispense medications that they find religiously objectionable.

Though Washington’s regulation is neutral and generally applicable on its face — it ordinarily requires all pharmacies to deliver all lawfully prescribed drugs, regardless of whether the pharmacy owners are religious — Alito argued that the law is not neutral because it contained some secular exemptions. A pharmacist, for example, could refuse to dispense a prescription if it does not accept the patient’s insurance. Or if the prescription might be fraudulent. Or if the patient was already taking another drug that could cause negative health effects if mixed with the new prescription.

Alito’s Stormans opinion, in other words, suggests that Washington had to make a devilish choice. Either the state had to give broad exemptions from its pharmacy regulation to religious objectors, or it might have to force pharmacists to fill fraudulent prescriptions or even to endanger the health of their customers. Given such a choice, it’s hard to imagine that any state would refuse to provide an expansive religious exemption.

Roman Catholic Diocese effectively writes the rule that Alito advocated in Stormans into the law, and the implications of this decision are likely to be profound. It means that, when someone objects to a law on religious grounds, they will typically be exempt from the law unless the law survives strict scrutiny, because it is very easy to find secular exemptions to even the most unobjectionable laws.

A state’s ban on murder, for example, may have an exemption for people who kill in self-defense. State bans on animal cruelty typically permit livestock to be slaughtered for food. Laws banning individuals from possessing machine guns still permit members of the military to carry such weapons as part of their service. The tax code is absolutely riddled with provisions allowing people not to pay some part of their federal taxes if, for example, they have a mortgage or are raising a child.

Does this mean that the Supreme Court is likely to permit religious objectors to kill? Or to refuse to pay taxes? Or to allow them to torture animals (provided that the state’s ban on animal cruelty doesn’t single out people of faith for inferior treatment)? Most likely not. Among other things, such laws would still be enforceable so long as they survive strict scrutiny — meaning that the law uses the “least restrictive means” to advance a “compelling governmental interest.”

But the new approach announced in Roman Catholic Diocese suggests that any law is subject to strict scrutiny if a religious objector can point to any exemption to that law. And, as Winkler’s research shows, the overwhelming majority of laws subject to full-bore strict scrutiny fail that test.

Related Articles

Rethinking the Liberal Giant Who Doomed Roe

Opinion by Caitlin B. Tully, Slate, 6/25/23 SOURCE: A year after Dobbs v. Jackson Women’s Health, the Supreme Court decision that overturned Roe v. Wade, most…

Property, Race, Colonialism, and Capitalism

Story by Brenna Bhandar, Jacobin, 7/2/23 SOURCE: In colonial regimes, dominant conceptions of private property developed alongside racial hierarchies. Who can claim ownership of…