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11/30/2018

John Yoo & James Phillips on Originalism and the Religion Clauses
Michael Ramsey

At NRO, John Yoo & James C. Phillips: Religion and the New Supreme Court.

In the wake of the confirmation of Justice Brett Kavanaugh to the Supreme Court, religion will probably present the first test of the new Roberts Court’s commitment to the original meaning of the Bill of Rights. ...

Even though the main commands of the religion clauses may seem clear, the Supreme Court has distorted them for over a century. While the Roberts Court has done better than previous courts, it has yet to fully embrace their full, original meanings. ...

The new Roberts Court can begin to bring order to its protection of religion by flatly overturning two decisions: Lemon v. Kurtzman on the establishment clause and Employment Division v. Smith on the free-exercise clause. Justice Kavanaugh’s confirmation may now give conservatives enough of a Court majority to restore the First Amendment’s original meaning. It could do so with the support of Congress, which in 1993 sought to overrule Smith with the Religious Freedom Restoration Act, which passed the House or Representatives by unanimous voice vote, the Senate by 97–3, and was signed into law by President Bill Clinton.

And further on Smith:

The sad irony of Smith was that its author, Justice Scalia, failed to engage with the original meaning of the free-exercise clause. While normally persuaded by historical arguments, Scalia instead worried about cabining judicial discretion. With a denuded constitutional right to religious freedom, the religious have turned to statutory remedies, or characterizing the government practice as targeting religion. This has left a gaping hole in the First Amendment, one that the Court can now fill. ...

... [I]n place of Smith, the Court should return to the understanding of the clause in 1791. Those who drafted and ratified the Bill of Rights would have understood the right to free exercise of religion to protect religious practice, not just belief. They would have understood it to safeguard not just worship at church or religious practice in the home or in church, but also in public.

Of course, religious freedom — like any other individual right — does not exist unfettered. At the time of the Founding, the free exercise of religion was understood to be a natural right. According to John Locke, natural rights are limited by the law of nature, meaning they could not be exercised to injure the equal rights of others. James Madison, who authored the first draft of both the Constitution and the Bill of Rights, argued that the free exercise of religion must respect others’ private rights as well as the public peace. Free-exercise clauses in Founding-era state constitutions incorporated various exceptions to the right, such as practices “repugnant to the peace and safety of the State” or that injure others’ “natural, civil, or religious rights.” Only the strongest interests of the state or the rights of others could overcome the “unalienable right” of religious freedom.

These materials suggest that Smith incorrectly removed the privileged place of religious freedom. Contrary to the Court’s interpretation, the Constitution requires that most religious dissenters receive an exception to even neutral and generally applicable laws.

An approach rooted in history would flip the burden in the courts by requiring the state to show that a religious practice harms others or public safety, rather than today’s regime, which requires religious minorities to prove they deserve an exception because laws that appear neutral are actually targeting religious practices. Or, at the very least, the Roberts Court could overrule Smith and return to the free-exercise cases of the past, which held that government could infringe religious freedom only if it had a compelling interest and achieved that interest in the least restrictive possible way.