Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions

Boston College Law Review, May 2018

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will result in a tidal wave of religious claimants striking down government action. Our Article presents an observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenges offered as a default remedy elsewhere in constitutional adjudication. Courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise. The Article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

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Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions

Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions Stephanie H. Barclay 0 1 Becket Fund for Religious Liberty 0 1 0 1 Mark L. Rienzi 0 1 Amendment Commons 0 1 the Religion Law Commons 0 1 0 Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions , 59 B.C.L. Rev. 1595, 2018 1 Th e Catholic University of America, Columbus School of Law Part of the Civil Rights and Discrimination Commons; Constitutional Law Commons; First - I. THE CRITICISM OF RELIGIOUS EXEMPTIONS AS ANOMALOUS AND DANGEROUS ................. 1600 III. EMPIRICAL ANALYSIS OF RELIGIOUS VERSUS SPEECH CLAIMS.......................................... 1631 A. Methodology .................................................................................................................... 1633 B. Findings ........................................................................................................................... 1639 A. Majoritarian Reasoning of Gobitis Overruled by Barnette in the Speech Context .......... 1647 CONCLUSION ............................................................................................................................. 1653 STEPHANIE H. BARCLAY* MARK L. RIENZI** Abstract: In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms ofConstitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom RestorationAct (RFRA), are a threat to basic fairness, equality, and the rule of lawU.nder this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will result in a tidal wave of religious claimants striking down government action. Our Article presents an observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “a-aspplied” challenges offered as a default remedy elsewhere in constitutional adjudai-c tion. Courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror the exemptions critics fear in the context of religious exercise. TheArticle also presents original empirical analysis, including a national survey of all fdeeral RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government cations. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment. © 2018 Stephanie H. Barclay & Mark L. Rienzi. All rights reserved. * Stephanie H. Barclay is Legal Counsel at the Becket Fund for Religious Liberty, and she will be joining BYU Law School as an Associate Professor of Law, effective Fall 2018. The authors thank Eric Baxter, Jud Campbell, Justin Collings, John Corvino, Richard Fallon, Philip Hamburger, Ira Lupu, Jim Oleske, James Phillips, Eric Rassbach, Paul Stancil, and Robert Tuttle for very helpful comments. The authors also thank Rachel Busick, Shaina Huleatt, and Chelise Fox for helpful research and assistance with the empirical analysis. ** Mark L. Rienzi is Professorof Law at The Catholic University of America, Columbus School of Law, and Senior Counsel at the Becket Fund for Religious Liberty. The views expressed in this Article do not necessarily reflect the views of Becket or its clients. INTRODUCTION Religious exemptions create an “anomaly” within our legaslystem— an unfair special privilege to ignore the laws everyone else must o1bey. Worse still, protecting the rights of diverse religious claimants in our nation will “be courting anarchy” by turning our law into “swiss cheese” and inviting a tidal wave of litigation.2 So goes one of the most common refrains raised by critics of religious exemptions. Some prominent free exercise cases have traded on theses- a sumptions, most notably the famous and controversial case ofEmployment Division v. Smith.3 Many of the recent criticisms of religious exemptions rely on these assumptions, both in the context of exemptions offered constitutionally or statutorily through laws such as the Religious Freedom Resotration Act (“RFRA”).4 And these arguments are being made with increasing frequency and volume in the wake of Burwell v. Hobby Lobby Stores, Inc.,5 and now in anticipation ofMasterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.6 But are these arguments really accurate? A closer look at religious exemptions csaes—particularly in comparison with other types of First Amendment cas—esshows that the claim of unfair favoritism is not correct. This Article presents the claim that religious exemption requests are just a version of what is generally thought of as one of the most common, modest, and preferred modes of constitutional adjudication: the as-applied challenge. This is true regardless of whether the rie-l 1 Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 886 (1990);see also Mary Anne Case, Why “Live-and-Let-Live” Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights, 88 S. CAL. L. REV. 463, 469, 471 (2015) (arguing that Employment Division v. Smithwas correctly decided, and that the Religious Freedom Restoration Act (“RFRA”) both causes problems of administrability for religious exemptions and results in problematic preferential treatment of some types of religious claims). 2 Smith, 494 U.S. at 888;JOHN CORVINO ET AL., DEBATING RELIGIOUS LIBERTY AND DISCRIMINATION 52 (2017); see also infra notes 71–92 (surveying arguments of critics); infra notes 267–303 and accompanying text (reviewing empirical analysis of religious exemption cases). 3 Smith, 494 U.S. at 886; see also Brian A. Freeman, Expiating the Sins of Yoder and Smith: Toward a Unified Theory of First Amendment Exemptions from Neutral Laws of General Applicability, 66 MO. L. REV. 9, 11 (2001) (“explor[ing] the extent to which the Constitution requires exemptions from neutral laws of general applicability in order to protect the free exercise of rie-l gion”); Kenneth Marin, Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine, 40 AM. U. L. REV. 1431, 1433–75 (1991) (surveying the historical development of free exercise jurisprudence). See generally Reynolds v. United States, 98 U.S. 145, 167 (1878) (concluding that allowing religious exemptions would result in a “[g]overnment . . . only in name”). 4 42 U.S.C. § 2000bb (2012). 5 134 S. Ct. 2751 ( 2014 ). 6 Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 280–81 (Colo. App. 2015),cert. denied sub nom. Masterpiece Cakeshop, Inc. v. Colo. Civil Rights Comm’n, No. 2015SC738, 2016 WL 1645027 (Colo. Apr. 25, 2016), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S. Ct. 2290 (2017) (mem.). gious exemptions are offered constitutionally or through statutes such as RFRA. Furthermore, under this form of as-applied adjudication, courts regularly provide identical exemptions in the context of expressive conduct that critics fear in the context of religious exercise protections. For example, in religious exemption cases, as in other expressive cnoduct as-applied challenges, the decision-maker is asked to find that a constitutional right would be infringed by a particular application of an otherwise valid law not specifically aimed at protected activityT. he remedy in both contexts is a court order protecitng the exercise of the constitutional right, but otherwise leaving the law in place to apply to other circumstances that may arise. In fact, the aspect of religious exemptions that generates most of the criticism—the limited carve-out from a law that othrewise remains in place to apply to others—has been widely praised elsewhere as making asapplied challenges preferable to more aggressive constitutional remedies, such as facial invalidation.7 Furthermore, there are deep structural similarities between atsh-e applied challenges in the expressive realm and the religious exercise realm. Thus, far from being problematic anomalies “in tension with other constitutional principles,” the Supreme Court hasdescribed limited carve-outs as “the basic building blocks of constitutional adjudication.8” When religious exemption requests are properly understood as a-sapplied challenges, they actually look quite pedestrian, particularly in comparison to how consuti-t tional challenges work to protect other First Amendment interests.9 But what about the concern that providing religious exemptions will result in our society “courting anarchy?” Is there something uniquely pervasive and dangerous aboutreligious exemption requests? Is it true that the diverse religious views in our country mean we will face an “endless chain of exemption demands” that are much more expansive than other types of First Amendment activity?10 And particularly in the wake ofHobby Lobby, will we face a tidal wave of litigation by anendless line of religious objectors who then become a law unto themselves and strike down government action at every turn? 7 Of course, not all religious liberty claims are exemption requests. Some religious liberty claims seek to strike down laws on their face, including under the Establishment Clause or if the law engages in facial targeting under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 526, 531–32 (1993) (holding invalid a law restricting the Santeria religious ritual of animal sacrifice); Edwards v. Aguillard, 482 U.S. 578,–85180(1987) (holding facially invalid a law requiring teaching “creation sciences” because it lacked a “clear secular purpose”). 8 Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007); William P. Marshall,Bad Statutes Make Bad Law: Burwell v. Hobby Lobby, 2014 SUP. CT. REV. 71, 74. 9 See infra notes 267–303 and accompanying text. 10 See infra notes 152–178 and accompanying text. Our original empirical analysis suggests otherwise.11 The data suggests that expressive claims are much more pervasive than religiousclaims, both in absolute terms and as a percentage of all reported cases. We also provide a new survey of all federal RFRA decisions since Hobby Lobby, which analyzes how the Supreme Court’s decision Hinobby Lobby impacted win rates of reported religiousexercise cases. The data does not demonstrate a dramatic increase in the win rate of religious exercise litigants under RFRA. This may be explained, in part, because there are important legal limitations on successful religious claims, like the requirement of sincerity. So what explains the treatment we give to religious exemptions mcopared to other First Amendment exemptions? One clue likely comes from the divergent 1940s cases of Minersville School District v.Gobitis and West Virginia State Board of Education vB. arnette.12 It may be that the Supreme Court’s embrace of a majoritarian approach to religious exercise Ginobitis (as later affirmed by Smith) leads critics of religious exemptions to view reilgious exercise rights more skeptically, even though neither the jurisprudential comparison to similar rights nor the empirical data justify such differential criticism and alarm. In fact, the Court firmly rejected theGobitis approach under Barnette, and instead opted for a strong countemr-ajoritarian framework for expressive rights1.3 Viewed in this context,a religious exemption scheme such as RFRA is simply a restoration of a pluralistic protection of dissenting rights through as-applied challenges. Part I of this Articlesurveys scholarly criticisms of religious exemptions as a threat to equality and the rule of law1.4 Part II sets forth an alternate view of religious exemptions as narrow, as-applied challenges that are elsewhere viewed as the preferred mode of constitutional adjudication. This Part explores how in the particularly relevant comparator context of mcopelled speech, courts regularly provide exemptions from generally appliacble laws that mirror the exemptions critics fear in the context of religious exercise.15 Part III discusses the authors’ original empirical analysis of religious versus speech claims to illustrate that, contrary to scholarly apprehension, Hobby Lobby has not had a dramatic effect on government win rates in religious exemption challenges, nor have religious claims undergone a darmatic expansion in volume following Hobby Lobby. If anything, the volume 11 See infra notes 267–289 and accompanying text. 12 W. Va. State Bd. of Educ. v.Barnette, 319 U.S. 624, 640–42 (1943) (holding that compelling students to salute the flag and say the pledge of allegiance, despite their religious objections, violated their First Amendment rights); Minersville Sch. Dist. Bd. of Educ. vG.obitis, 310 U.S. 586, 598–600 (1940) (holding constitutional a compulsorfylag salute in school),overruled by Barnette, 319 U.S. 624. 13 Barnette, 319 U.S. at 641. 14 See infra notes 17–67 and accompanying text. 15 See infra notes 68–232 and accompanying text. of these cases appears to be slightly decreasing as a percentage of ael-l r ported cases.16 I. THE CRITICISM OF RELIGIOUS EXEMPTIONS AS ANOMALOUS AND DANGEROUS A. Smith and Initial Backlash Critics of religious exemptions frequently rely on Justice Antonin Scalia’s majority opinion in Smith.17 There, the Supreme Court rejected the notion that the Free Exercise Clause requires religious exemptions from generally applicable and neutral law1s8. To overrule prior precedent thata-f vored such exemptions, Justice Scalia relied on two justifications thaet- r main influential among modern critics of religious exemptions: ( 1 ) religious exemptions allow objectors to unfairly avoid compliance with an ohterwise valid law, and ( 2 ) allowing exemptions in our radically diverse society would court anarchy.19 First, Justice Scalia argued that religious exemptions were tantamount to “a private right to ignore generally applicable laws,” which would result in “a constitutional anomaly.”20 A person’s religious views,Justice Scalia explained, do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”21 Viewing exemptions through this lens, Justice Scaliaframed the issue in the case as “decid[ing] whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug . . . .”22 This issue arose in the context of a state’s decision to deny unemployment benefits to a Native American person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual.Justice Scalia argued that the “government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’”23 16 See infra notes 233–341 and accompanying text. 17 Smith, 494 U.S. at 874, 878–89. 18 Id. at 882. The Supreme Court has since whittled away at this principle fromSmith. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188–90 (2012) (recognizing an exemption from the generally applicable Americans with Disabilities Act). 19 Smith, 494 U.S. at 879, 888. 20 Id. at 886. 21 Id. at 878–79. 22 Id. at 874. 23 Id. at 885 (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988)). Justice Scalia even went so far as to argue that valid, generally apip-l cable laws that did not target religion could not really burden religiousxeercise. He noted that the Free Exercise Clause would certainly prohibit a law that specifically targeted a religious group or practice, by doing things like banning statues used for worship purposes2.4 But it would be quite another thing, he argued, for the Free Exercise Clause to create an exemption from a law that was not “specifically directed at their religious practice” and when the law is otherwise constitutional when applied to others who engage in the practice for non-religious reasons.25 A generally applicable and neutral law, according to Justice Scalia, could no more burderneligious exercise than it could “abridg[e]the freedom .. . of the press” if the law does not target such constitutional activity; instead, the burden on them is an “incidental effect of a generally applicable and otherwise valid provisio2n6.” Justice Scalia thus explained that heightened scrutiny was “inapplicable” to a challenge to “an across-the-board . . . prohibition on a particular form of conduct.”27 In a portion of the opinion addressing the tension this approach created with existing law, Justice Scalia acknowledged several court decisions in other constitutional contexts. This included speech, press, and association cases where the “First Amendment bars application of a neutral, generally applicable law to religiously motivated action”, or else “compelled expression” that implicates religious freedom.28 In an attempt to distinguish these cases, Justice Scalia developed his hybrid rights theory and observed that these cases involved free exercise claims alongsidoether constitutional rights, or else werebased solely upon freedom of speech2.9 Justice Scalia also argued that employing heightened scrutiny “before the government may regulate the content of speech .. . is not remotely comparable to using it for” religious exemptions3.0 He argued that heightende scrutiny in the speech context, which allows the “unrestricted flow of contending speech,” is merely a constitutional norm, whereas a religious exemption would result in a constitutionally anomalous “private right to ignore generally applicable laws. . . .”31 Second, Justice Scalia argued that religious exemptions are particularly problematic in “a cosmopolitan nation made up of people of almost every 24 Id. at 877–78. 25 Id. at 878. 26 Id. 27 Id. at 884–85. 28 Id. at 881–82. 29 Id. 30 Id. at 886. 31 Id. conceivable religious preference,” and this “danger increases in direct porportion to the society’s diversity of religious beliefs.”32 “[W]e cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order,” he explained.33 Applying heightened scrutiny for such “religious divergence” would “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”34 Some of the contexts Justice Scalia used as examples where prbolematic exemptions could be requested included drug laws, traffic laws, or animal cruelty laws.35 Thus, in the view of Justice Scalia, “adopting such a system would be courting anarchy.”36 Justice Scalia acknowledged thatother First Amendment rights, like free speech and press,sometimes bar “application of a neutral, generally applicable law to religiously motivated action.”37 But although he explained descriptively this difference between religious and other First Amendment rights under his regime, he never justifiednormatively why this distinction between religious exercise and other First Amendment rights should exist. When the Supreme Court’s decision inSmith was handed down, it received widespread criticism. One scholar noted that in academia generally, “criticism of Smith . . . has become commonplace.”38 The criticism was not 32 Id. at 888 (internal citation and quotation marks omitted). 33 Id. 34 Id. 35 Id. at 889. 36 Id. at 888. 37 Id. at 881. 38 See Ira C. Lupu, Employment Division v. Smiathnd the Decline of Supreme Cou-rt Centrism, 1993 BYU L. REV. 259, 260 n.9 (collecting sources that discuss potential implications of Smith); see also Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 559 (1993) (Souter, J., concurring in part, concurring in the judgment) (noting that there are doubts as to whether “the Smith rule merits adherence”); Richard F. Duncan, Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. PA. J. CONST. L. 850, 851–56 (2001) (arguing that despite the conclusion and subsequent criticism Somfith free exercise is still “alive and well”); James D. Gordon IIFI,ree Exercise on the Mountaintop, 79 CALIF. L. REV. 91, 114 (1991) (“What is there to admire [aboSumtith]? The Court wanted to reach its result in the worst way, and it succeeded.”); Douglas LaycocTkh,e Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 2–3 (arguing that Smith was incorrectly decided based on precedent and original intent); Marin,supra note 3, at 1475–76 (1991) (arguing that “theSmith Court has rendered the free exercise clause impotent”); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1111 (1990) (“There are many ways in which to criticize the Smith decision. . . . Smith is contrary to the deep logic of the First Amendment.”); Harry F. Tepker, Jr.,Hallucinations of Neutrality in the Oregon Peyote Case, 1A6M. INDIAN L. REV. 1, 11–26 (1991) (critiquing Justice Antonin Scalia’s use of history and precedent in the Smith decision); Carol M. Kaplan, Note,The Devil Is in the Details: Neutral, Generally Applicable Laws and Exceptions from Smith, 75 N.Y.U. L. REV. 1045, 1046 (2000) (arguing that “[Smith] was not well crafted and was based on a mischaracterization of precedent”); Mark J. Rosen, Comment, Native Americans May Be Denied State Unemployment Benefits for Ceremonial limited to academia—religious, political, and civil rights leaders also joined in from across the political spectrum, with Ted Kennedy, Bill Clinton, and the ACLU joining forces with Orrin Hatch antdhe United States Conference of Catholic Bishops in efforts to repair what they saw as damage done by Smith.39 This backlash resulted in the nearly unanimous passage of RFRA toerinstate a religious exemption framework.40 When RFRA was passed in 1993, the bill was supported by one of the broadest bipartisan coalitions in recent political history, with sixty-six religious and civil liberties groups, including Muslims, Sikhs, Humanists, and secular civil liberties organizaotins such as the ACLU and Americans United for Separation of Church and State.41 B. Smith’s Academic Resurgence In light of recent h-obtutton religious exemption cases likHeobby Lobby,42 and now Masterpiece Cakeshop,43 legal academic support for Ingestion of Peyote Without Violating First Amendment’s Free Exercise Clause,23 RUTGERS L.J. 209, 230 (1991) (arguing that “[t]he Court’s cursory disregard for precedent in arriving at its holding suggests the Court’s willingness to forego longs-tanding doctrinal jurisprudence, and subsittute its new, stultified vision of the Free Exercise liberties ‘protected’ by the Constitution”); Whitney Travis, Note, The Religious Freedom Restoration Act and Smith: Dueling Levels of Constitutional Scrutiny, 64 WASH. & LEE L. REV. 1701, 1707 (2007) (noting that “Smithwas met with enormous criticism”). To be sureS,mith did have some contemporaneous academic defenders. See, e.g., Philip A. Hamburger,A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915, 916 (1992) (questioning the originalist historical evidence in favor of religious exemptions); William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 309 (1991)(defending “Smith’s rejection of constiuttionally compelled free exercise exemptions without defending Smith itself”). 39 See Brett H. McDonnell, The Liberal Case forHobby Lobby, 57 ARIZ. L. REV. 777, 784 (2015) (“Given the politics currently surrounding RFRA, it should come as little surprise that many religious organizations objectedto the decision inSmith. It is more surprising that many liberal civil rights organizations objected as wel—lthe ACLU, Americans United for the Sepaartion of Church and State, People for the American Way, and Americans for Democratic Action came together in a powerful coalition that proposed a statutory overturning ofSmith. . . . Thus, at the Court, in Congress, and in the White House, a large number of liberals supported the principle of religious liberty embodied in RFRA.”). 40 42 U.S.C. § 2000bb (2012); Douglas Laycock & Oliver S. Thomas,Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 210, 243–44 (1994); Ira C. Lupu, The Failure of RFRA, 20 U. ARK. LITTLE ROCK L.J. 575, 588 (1998) (noting that “RFRA is federal law, supported by a near unanimous House and Senate and an enthusiastic President”); Travisu,pra note 38, at 1707 (noting that “[i]n direct response toSmith, Congress passed the RFRA in 1993 with nearly unanimous support in both the House and the Senate”). 41 Laycock & Thomas, supra note 40, at 210 n.9; Travis Gasper, Comment, A Religious Right to Discriminate: Hobby Lobby and “Religious Freedom” as a Threat to the LGBT Community, 3 TEX. A&M L. REV. 395, 416 (2015) (noting that “the groups most active in pushing for passage of the 1993 RFRA were ideologically left of center”). 42 134 S. Ct. 2751 ( 2014 ). 43 Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 280–81 (Colo. App. 2015), cert. denied sub nom. Masterpiece Cakeshop, Inc. v. Colo. Civil Rights Comm’n, No. 2015SC738, 2016 WL RFRA has declined, while the once-maligned reasoning of Smith has recently resurfaced. As many commentators have observed, “the space for accommodating religious objections to general legal obligations is increasingly contested in contemporary American legal, political, and ethical discourse.”44 In particular, the question of whether “demands for exemptions from generally applicable laws” are justified is “an issue that has recently assumed increased significance . . . .”45 For example, in the wake of recent RFRA caseso,ne scholar recently advanced “the normative view that Smith was correctly decided and that . . . [RFRA] was a mistake.”46 Another argued that “Smith was decided the way it was for a reason.”47 Another defended the principal holding of Smith that when you have “a neutral state law that applies to ever”yonthei,s law should apply to all without religious exceptions.48 And still another argued that Justice Scalia correctly decided Smith in holding that “[r]eligion is not a get-out-of-the-law-free-card.”49 Notably, most of these critics do not object in principle to protecting religious liberty; rather, the objections of critics generally boil down to the same two primary arguments Justice Scalia relied on in Smith. First, critics argue that religious exemptions from otherwise valid laws provide an anomalous remedy—essentially an excuse to avoid obeying the 1645027 (Colo. Apr. 25, 2016), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S. Ct. 2290 (2017) (mem.). 44 Hillel Y. Levin et al.,To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?,73 WASH. & LEE L. REV. 915, 918 ( 2016 ); see also Frederick Mark Gedicks, One Cheer forHobby Lobby: Improbable Alternatives, Truly Strict Scrutiny, and Third-Party Employee Burdens, 38 HARV. J.L. & GENDER 153, 176 (2015) (expressing concern aboutBurwell v. Hobby Lobby’s “unprecedented expansion of permissive accommodation” as an “‘o-oputt’ from generally applicable legislation”); Paul Horwitz, The Hobby Lobby Moment, 128 HARV. L. REV. 154, 170 ( 2014 ) (arguing that“[a] substantial body of opinion on this issue has moved from the view thSamtith erred grievously by rejecting the prior regime of free exercise exemptions from generally applicable la.w., t.o a broader questioning of religious accommodations altogether”); Maimon SchwarzschildD,o Religious Exemptions Save?, 53 SAN DIEGO L. REV. 185, 187 ( 2016 ) (“[S]upport for religious exemptions may now be breaking down along ideological-political lines. . . . [O]utright opposition to the idea of religious exemption was uncommonly met with until very recently, either in politics or in the legal literature.”); Elizabeth Sepper,Reports of Accommodation’s Death Have Been Greatly Exaggerated, 128 HARV. L. REV. F. 24, 24 ( 2014 ), http://harvardlawreview.org/wpcontent/uploads/2014/11/vol_128_Sepper.pdf [https://perma.cc/4W9U-DKWT] (claiming a growing consensus “against granting religious exemptions from generally applicable laws”). 45 Laura M. Weinrib, Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties, 65 EMORY L.J. 1051, 1054 ( 2016 ). 46 Case, supra note 1, at 469. 47 Marshall, supra note 8, at 74. 48 Haley Gray, What You Need to Know About theMasterpiece Cakeshop Case, 5280: DENVER MAG. (June 28, 2017), http://www.5280.com/2017/06/wh-aytou-need-to-know-about-masterpiececakeshop-v-colorado-civil-rights-commission/ [https://perma.cc/FYJ6-T94Z]. 49 CORVINO ET AL., supra note 2, at 31. laws that apply to everyone else. They have been describedas “a troubling form of relief—special exemptions from neutral laws for a limited class of beneficiaries—that is in tension with other constitutional principle,”s or as not “in the tradition of American liberty.”50 Under this view, exemptions are problematic because they allow religious objectors to avoid “play[ing] by the same rules as everyone else.5”1 Thus, if a given law is justifiedat all, then the law ought to be appliedconsistently.52 Offering exemptions, one scholar argues, would “result in a kind of ‘Swiss cheese’ law.5”3 Professor Frederick Gedicks asserts that RFRA defies common sense and the constitution by giving religious believers “a free pass to ignore laws that bind everyone else.”54 Professors Ira Lupu and Robert Tulett similarly argue that extending “strict, right-sprotective review to laws that imposed an incidental burden on religious experience thus elevated religious freedom to a preferred position among First Amendment rights, rather than assimilating the Free Exercise Clause with its counterpart rights of speech and press.”55 The view that religious exemptions are anomalous quickly leads to the conclusion that recipients of such exemptions are getting preferential treatment under the law, or as one scholar asserted,“disconcerting favoritism” for religious objectors5.6 Some raise concerns that religious accommoadtions would result in particularly problematic special treatment in the ncotext of anti-discrimination laws, including the public accommodation laws at issue in Masterpiece Cakeshop.57 Other scholars echo these allegations of special privilege for religion under a religious accommodation scheme.58 Second, critics argue that religious accommodations are uniquely prevasive, such that they deteriorate the rule of law and risk anarch,yparticularly post Hobby Lobby. In this vein,Professor Case argues thatHobby Lobby has “open[ed] up the floodgates to a host of new potential claims for religious exemption by a host of different kinds of service providers.”59 Professor Leslie Griffin argues that because ofHobby Lobby, the “broad reading of RFRA . . . will encourage many future lawsuits and undermine more civil liberties.”60 She also asserted that “[a]lmost anything can btuerned into a claim of ‘cooperation with evil’” and “all federal laws are now bs-u ject to challenge, with the possibility of every citizen becoming ‘a law unto himself’ until the rule of law is undermined.6”1 Professor Elizabeth Sepper tions for religious freedom, starting with RFRA and its offshoots); Samuel R. BagensTtohse, Unrelenting Libertarian Challenge to PublicAccommodations Law, 66 STAN. L. REV. 1205, 1238–40 ( 2014 ); Case, supra note 1, at 485 (noting that “[a]dvocates of exemptions from public accommodation laws for service providers who refuse to provide flowers or cake for same-sex wedding celebrations have yet to explain whether and why the claims of these Christian bakers and florists are more worthy of accommodation” than other groups); LucienDJh. ooge, Public Accommodation Statutes, Sexual Orientation and Religious Liberty: Free Access or Free Exercise?, 27 U. FLA. J.L. & PUB. POL’Y 1, 58 ( 2016 ) (arguing that “any conflicts between religious liberty asserted by secular businesses and access to goods and services must be resolved in favor of the government’s compelling interest in guaranteeing full and non-discriminatory access for all persons,” and that this “result does not denigrate religion”) (internal footnote omitted); Martin S. Lederman, Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration, 125 YALE L.J. F. 416, 419 ( 2016 ), https://www.yalelawjournal.org/pdf/Lederman_PDF_pt9q3ynr.pdf [https://perma.cc/R72J-26CV] (arguing that “there is widespread fear in some quarter—sand presumably hope in others—that such claims might become a template for similar claims, pursuant to federal or state RFRAs or analogous state constitutional provisions, for religious exemptions from laws that prohibit discrimination in employment, or in the provision of public accommodations, on the basis of sexual orientation”); Douglas NeJaime & Reva B. Siegel,Conscience Wars: ComplicityBased Conscience Claims in Religion and Politi,cs124 YALE L.J. 2516, 2561–64 (2015) (noting concern that religious exemptions could be granted from public accommodations laws through “complicity-based conscience claims”); Leslie C. Griffin, If Conestoga Wins, Watch Out Civil Rights, HAMILTON & GRIFFIN ON RIGHTS (Mar. 24, 2014),http://hamilton-griffin.com/if-conestoga-winswatch-out-civil-rights/ [https://perma.cc/JBR8-GFVA]. But see Sepper, supra note 44, at 26 (noting that “[p]ublic accommodations laws generally apply with full force to all businesses serving the public, religiously affiliated or not”). 58 See Michele Goodwin & Allison M. Whelan,Constitutional Exceptionalism, 2016 U. ILL. L. REV. 1287, 1329 (arguing that religious accommodations result in a religious “exceptionalism” where “‘religiously based rights’ trump all other constitutionally derived interests” and result in “problematic norms”); Schwarzschild,supra note 44, at 199 (noting that “exemptions and accommodations puts religious people in the invidious position of demanding special privileges” that is particularly troubling “in an egalitarian societyw, here a core idea is rejection of special privilege”). 59 Case, supra note 1, at 469, 487. 60 Leslie C. Griffin, Hobby Lobby: The Crafty Case ThatThreatens Women’s Rights and Religious Freedom, 42 HASTINGS CONST. L.Q. 641, 673 (2015). 61 Id. at 687–88; see also Erwin Chemerinsky & Michele Goodwin, Religion Is Not a Basis for Harming Others: Review Essay of Paul A. Offit’s Bad Faith: When ReligioBuselief Undermines Modern Medicine, 104 GEO. L.J. 1111, 1133–34 ( 2016 ) (“This decision will lead to much broader challenges. Christian Scientists, for example, will claim that they do not have to provide argues that “[t]he Hobby Lobby decision throws open the courtroom door to corporations and hands them the no w-powerful weapon of corporate cnoscience to fight off regulation that protects the full and equal citizenship of the people.”62 Professor Corvino raises concerns that the religious activities that receive protection for “exemption and accommodation purposes are expansive and expanding” as a result ofHobby Lobby.63 Corvino explains that the “pervasiveness” and “endless variety of religious scruples,” provide a strong motive not to have an extensive“exemption regime.”64 Thus, Corvino concludes that it is “precisely for that reason that Justice Scalia opined [in Smith] that, in a religiously diverse nation, any system requiring strict scrutiny for laws burdening religious beielfs is ‘courting anarchy.’”65 Professor Lupu has argued that “a general regime of judicial exemptions is a lawless, sometimes unconstitutional, and pervasively unprincipleda- ch rade.”66 Numerous others have expressed similar administration concerns.67 II. RELIGIOUS EXEMPTIONS UNDERSTOOD AS AS-APPLIED CHALLENGES The question of whether to provide as-applied exemptions from generally applicable laws can be seen as a broader political question about how our pluralistic society should treat dissenting views porractices. Should society generally demand conformity to general policies preferred by the majority, or should it take a “live and let live” approach by allowing minority and nonconformist groups and individuals to live their lives and order their communities as they see fit where possible68? That longstanding debate continues to rage in academia, and will for decades to come6.9 But this Part illustrates that under Employment Division v. Smith’s framework, courts are likely to answer the question in favor of accommodating divergent imnority positions when it comes to speech-based rights, but not religion.70 68 Levin et al., supra note 44, at 925. 69 Some scholars note, “for those Progressives who had confronted the costs of countermajoritarian constitutionalism head on, there was ample reason to interrogate an extension of individual rights.” Weinrib, supra note 45, at 1136; see also Charles M. Freeland, The Political Process as Final Solution, 68 IND. L.J. 525, 526 n.11 (1993) (collecting sources and describing the school of thought viewing reliance on political process instead of robust bill of rights protections as the long awaited solution to the “countermajoritarian problem” that has plagued the “democracy as mateiral equality”). Still other scholars recognize that robust individual freedoms are critical, even for a healthy democracy, and cannot merely be what is “left over” after the political process is complete. KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION 196–201 (1989) (arguing that denying constitutional rights excludes certain groups from fully belonging to the American people); Charles A. Reich, The Individual Sector, 100 YALE L.J. 1409, 1412 (1991); see also Owen Fiss, A Life Lived Twice, 100 YALE L.J. 1117, 1118 (1991) (praising judicial protection of individual liberty against majoritarian will); Michael KJ.larman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 19 (1996) (pointing out that many scholars thinkBrown proves that courts are “countermajoritarian heroics” who protect minority rights); David Luban,The Warren Court and the Concept of a Righ,t 34 HARV. C.R.-C.L. L. REV. 7, 8 (1999) (same); Michael J. Perry,Protecting Human Rights in a Democracy: What Role for the Courts?, 38WAKE FOREST L. REV. 635, 637 (2003) (questioning whether the role of the judiciary in protecting entrenched human rights is appropriate); Jeremy Waldron,A Rights-Based Critique of Constitutional Right,s 13 OXFORD J. LEGAL STUD. 18, 19–20 (1993) (questioning our deference to some rights in comparison to others); Rebecca E. Zietlow,The Judicial Restraint of the Warren Court (and Why It Matters,)69 OHIO ST. L.J. 255, 259 n.13 (2008) (observing over 500 law review articles “written in the past twenty years advocating the propoi-s tion that courts should protect minorities against the will of the majority”). 70 See also Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 VAND. L. REV. 1019, 1072 ( 2016 ) (“The Court’s self-conception of its role as a countermajoritarian protector has helped it stretch to its counetrmajoritarian limits, at least in certain contexts. Here, several of the Supreme Court’s First Amendment cases come to mind; its protection of flag burning, cross burning, and Ku Klux Klan rallies as freedom of expression are prime examples. . . . [M]uch work still needs to be done on why the Justices embrace their countermajoritarian role in some contexts and not others.”). A. As-Applied Challenges Such as Religious Exemptions Are the Preferred Mode of Constitutional Adjudication Relying on Smith, Professor Corvino argues that if a given law is justified at all, then the law ought to be applied “consistentl7y1.”Offering exemptions, he argues, “result[s] in a kind of ‘Swiss cheese’ law.”72 Thus, if a law is facially valid, it ought to apply universally. As a result, Professor Corvino and others argue that a judgment that invalidates a law only in one circumstance, but leaves the law otherwise intact, creates an anomaly resulting in “special rights” for objectors “in tension with othecronstitutional principles.”73 But such a judgment can be described in much more positive term—s as a “modest,”74 “normal,”75 “surgical,”76 “narrow,”77 and “logically primary”78 method that comprise “the basic building blocks of constitutional adjudication.”79 These latter terms are precisely how both theSupreme Court and leading commentators describe as-applied adjudication. The Supreme Court has explained that “the normal rule is that partial, rather than facial, invalidation is the required course, such that a statute may be declared invalid to the extnet that it reaches too far, but otherwise left intact.”80 Thus, when examining a statute’s constitutionality the Couratttempts to narrow its holding to address the specific problem, or “to sever its problematic portions while leaving the remainder intact.”81 Such a principle flows from the “axiom[] that a ‘statute may be invalid as applied to one state of facts and yet valid as applied to another8.2” This approach also allows the Court to address more concrete facts and to do the least damage to the rule of law as envisioned by the original drafters8.3 As Justice Stevens put it, when the Court strikes down statutes facially, rather than as-applied, “[t]he Court operates with a sledge hammer rather than a scalpel.”84 Many scholars also note the Roberts Court’s preference for as-applied challenges instead of facial ones.85 This preference has manifested itself in many different legal contexts, including “abortion rights, Congress’ns- e forcement power under Section 5 of the Fourteenth Amendment, and cmapaign finance.”86 Professor Richard Fallon has explained that this jurispurdential preference for limited invalidations that leave a statute otherwise intact generally relies on a three-part rationale: ( 1 ) the constitutional principle of “avoiding unnecessary or prematuredecisions of constitutional sisues” where possible; ( 2 ) the fact that meanings of statutes are often best specified “through a series of fact-specific, case-by-case decisions”; and ( 3 ) the reality that constitutionally invalid applications of statutes often “could be severed or separated from valid ones.”87 Scholars disagree about the frequency with which the Supreme Court actually employs as-applied versus facial analysis to strike down statutes, but there is little debate that as2018] applied invalidation of laws generally involves a “surgical severing” of constitutionally infirm aspects of the rule.88 What has generally gone unnoticed is that judicia-lclyreated religious exemptions are functionally a species of a-sapplied adjudication. This is true regardless of whether the exemption results from litignatiobrought under constitutional free exercise grounds or statutory grounds (such asRFRA). In both instances, the decision-maker must determine whether a constitutional right would be infringed by a particular application of an otherwise valid law. And in both instances, the court will order a remedy that protects the exercise of the constitutional right, but otherwise leaves the law in place to apply to other circumstances that may arise. AfteSrmith, it is muchmore difficult to obtain successful religious exemptions as a constitutional matter in many contexts. Viewed in this light, RFRA is essentially restoring a standard that again allows for as-applied challenges to otherwise valid laws. For example, the Supreme Court’s decision in Hobby Lobby held that the Department of Health and Human Service“sHH( S”) contraception mandate unjustifiably burdened a family-held business’s religious exercise because the government had many other alternatives to accomplish its interest of making contraception more accessible to women8.9 The Court therefore held that RFRA required “an exemption from the rule.”90 But the Court did not strike down the HHS mandate wholesale. Thus, this law continues to apply to all other covered employers, but with surgical exemptions for a limited group of religious objectors. Courts have engaged in this same type of adjudication in other successful challenges under RFRA and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). For example, i2n006, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, the Court held that the Con trolled Substances Act, although generally constitutional, could not be paplied to prohibit the sacramental use of hoasca tea for a religious grou91p. And in 2015, in Holt v. Hobbs, the Court concluded that the prison’s ban on beards, although generally valid, could not be applied to prohibit certain religiously-motivated beards.92 In each case, the Court required an exception to an otherwise valid law to protect a religious exercise right. 88 See, e.g., Fallon, supra note 76, at 956 (explaining that a-sapplied challenges involve the surgical severing of problematic aspects of a statute from acceptable applications). 89 134 S. Ct. 2751, 2760, 2780–82 ( 2014 ). 90 Id. at 2761. 91 546 U.S. 418, 438–39 (2006). 92 135 S. Ct. 853, 859 (2015). B. Survey of First Amendment As-Applied Challenges as Of course, the fact that religious exemptions are functionally applied challenges does not answer whether those sorts of a-aspplied challenges still result in unfair preferential treatment for religious liberty claims if they are offered to facially valid and generally applicable law- s. As applied challenges in other First Amendment contexts provide a particularly relevant comparator to assess that question. The Supreme Court has recognized that “[t]he Free Exercise Clause embraces a freedom of conscience and worship that hacslose parallels in the speech provisions of the First Amendment . . . .”93 Free exercise protections and free speech protections theoretically serve many similar roles in our constitutional democracy: they both operate as important safeguards against government overreach, implicate matters of personal choice and identity, allow for robust pluralism in our diverse society, help curb dissnesion and social conflict, and protect minority rights that will not necessarily be addressed through the political process9.4 As one notable academic has observed regarding free exercise compared to other constitutional rights, “it seems intuitively correct that similar rights should be enforced to a similar extent with similar doctrine.”95 Prior to Smith, in a number of constitutional cases the Supreme Court did enforce the First Amendment rights of speech and religious exercise quite similarly. In Murdock v. Pennsylvania, for example, a city had a generally applicable ordinance that required “all persons canvassing for or soliciting . . . goods, paintings, pictures, wares, or merchandise of any kind” to pay a fee to the city to obtain a license to solici9t6. Plaintiffs who had been arrested under this ordinance were Jehovah’s Witnesses going door to door distributing religious literature and soliciting donations without ever obtaining such a license.97 The Plaintiffs argued this government action “deprived them of the freedom of speech, press, and religion guaranteed by the First Amendment.”98 2018] In addressing these claims, the Supreme Court first made clear that the ordinance at issue in this case was facially vali9d9.Further, the Court observed that the regulation did not discriminate.100 Thus, the limited question before the Court was simply whether the ordinance “acsonstrued and applied require[d] religious colporteurs to pay a license tax as a condition to the pursuit of their activities.”101 The Court rejected the ogvernment’s argument that providing an xeemption would put Jehovah’s Witnesses “above the law.1”02 Instead, it explained, “[a] license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendmetnalong with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinanc1e03.”Just because a law is facially valid does not mean it can be validly enforced when it butts up against fundamental constitutional rights. At that point, an ordinance “is not directed to the problems with which the police power of the state is free to deal.”104 This is because, as the Court noted, “[f]reedom of press, freedom of speech,[and] freedom of religion are in a preferred position.”105 The Murdock Court thus held that the ordinance’s application here both curtailed the free press and impinged freedom of religion, and that these rights “stand or fall together.”106 As-applied challenges brought under other spcehe-based claims still receive fairly similar treatment to that provided underMurdock.107 But after Smith, and under the scheme advocated by critics of religious exemptions, there are at least two contexts where as-applied speech challenges receive significantly different treatment than similar religious challengesm:-co pelled action and discretionary enforcement or application of a law. 99 Id. at 110 (holding that there was no “question as to the validity of a registration system for colporteurs and other solicitors”). 100 Id. at 115. 101 Id. at 110. 102 Id. at 116 (internal quotation marks omitted). 103 Id. at 115. 104 Id. at 116. 105 Id. at 115. 106 Id. at 117 (emphasis added). The Court arrived at a similar conclusion in several other cases dealing with religious solicitation. See, e.g., Follett v. McCormick, 321 U.S. 573, 577 (1944) (holding that the application of a flat license tax was a violation of the free exercise clause); Jamison v. Texas, 318 U.S. 413, 414, 417 (1943) (holding that the law could not prohibit dissemination of religious handbills in the street); Cantwell v. Connecticut, 310 U.S. 296, 304–07 (1940) (concluding that the application of a regulation that required a certificate in order to solicit support for a religion was a violation of the Constitution). 107 Murdock v. Pennsylvania, 319 U.S. 105, 117 (1943). endless chain of exemption demands,” is a distinct threat to the rule of law because it will resultin a tidal wave of religious claimants striking down government action at every turn.242 To examine this claim, we conducted a modest empirical analysis to assess ( 1 ) the likelihood that religious exemptions result in government cation being struck down under RFRA, and how that rate has changed since Hobby Lobby; and ( 2 ) the volume of religious objection cases being brought compared to speec-hbased cases, and whether the volume of religious claims seem to have increased dramatically postHobby Lobby. Notably, we provide the first nation-wide RFRA survey of its kind since Hobby Lobby. Our findings contradict the notion that religious objections are much more likely to prompt a court to strike down government action under RFRA after Hobby Lobby.243 Compared to previous scholarship assessing government win rates in this areaH,obby Lobby does not appear to have significantly changed the government’s win rate in the last three years. Our findings also indicate that cases dealing with religious objections to laws are less pervasive than cases dealing with other expressive First Amd-en ment claims.244 These findings apply to all federal cases, as well as the cases specifically at the Supreme Court level. The data also does not indicate a trend of dramatic growth in the voulme of religious cases post Hobby Lobby. More time and data will be necessary to confirm these results.Additionally, no statistical regression analysis has been performed to isolate the effect of variables, and the findings in this Article are thus at best suggestive. A. Methodology We utilized three different methods to analyze religious objection claims compared to other speech and association claims, both in terms of volume and likelihood of striking down government action. Each of these methods is discussed in turn below. We also compared our findings to the helpful empirical research of Professor Adam Winkler, who reviewed all federal cases from 1990 to 2003 dealing with strict scrutiny, including cases dealing with suspect classifications, speech, religious liberty, fundamental rights, and freedom of assocaition.245 Though somewhat dated (and inapplicable to questions about how Hobby Lobby changed the pervasiveness of religious objections), Professor Winkler’s research serves as a useful benchmark. 1. New RFRA Survey Methodology To assess how Hobby Lobby has impacted the government’s win rate in RFRA cases, we surveyed all federal RFRA court cases available in Westlaw that have been brought in the thre-eyear period since Hobby Lobby.246 We analyzed the court rulings to determine how frequently the court ruled for the plaintiff on a RFRA claim versus how frequently the court ruled for the government. The universe of RFRA cases was created using two types of searches. The first was a general Westlaw searfcohr RFRA terms in the federal cases database: For our second method, we used the Westlaw citing references feature to identify any cases citing to the five statutory sections of RFRA for the same three-year time period. We then cros-sreferenced both search results, removing any duplicate decisions. Only two new cases resulted from this second citing reference search method, bringing the total universe of cases to 480 cases.247 es, 48 SETON HALL L. REV. 353 (2018) (surveying Tenth Circuit religious liberty cases from 2012–2017). 246 The relevant time period was June 30, 201–4July 17, 2017. Some applications of RFRA necessarily evaded the data set if they unreported cases, or not part of Westlaw’s database. We assume that such cases are more likely to be government wins, and that a court decision ovetrurning government action would result in a reported case. This may mean that the government win rate is in actuality even higher. We excluded the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) cases from the dataset because the standard for RLUIPA was not clearly established as being as protective as RFRA until the Supreme Court’s decision a year afterHobby Lobby in Holt v. Hobbs. To avoid potential data skewing that would result partially through the threeyear period based on that evolving standard, and where the purpose of this analysis is to assess the impact of Hobby Lobby, those RLUIPA cases were excluded. 247 The search terms and results for this method included the following: • Search: Federal cases under citing references for 42 U.S.C. § 2000bb from July 1, 2014 – June 30, 2017. o Results: 190 cases, but only 1 additional new case. • Search: Federal cases under citing references for 42 U.S.C. § 2000b1b-from July 1, 2014 – June 30, 2017. o Results: 180 cases, but only 1 additional new case. • Search: Federal cases under citing references for 42 U.S.C. § 2000b2b-from July 1, 2014 – June 30, 2017. 2018] We analyzed a judicial decision as a single application of RFRAe,- r gardless of the number of judges on the panel. Preliminary rulings and decisions that were subsequently reversed or affirmed on appeal were collected but, unless otherwise specified, were excluded from the reported results to avoid double counting.248 Additionally, only decisions in the relevant threeyear period were counted, and it is possible that some of these decisions could be subsequently reversed. With the help of excellent research asss-i tance, we manually reviewed all 480 cases to ensure that any decisions not addressing RFRA on the merits were also exclud2e4d9.This brought the universe of unique cases addressing RFRA on the merits to a total of 101 cases. Many of theother cases were disposed of on procedural grounds or other legal claims. Unsurprisingly, there were a number of cases (thirty-one to be precise) dealing with essentially the same challenge to the “contraception mandate” of the Affordable Care Act. These cases arose in different jurisdictions but addressed the same issue that was ultimately addressed by the Supreme Court either in Hobby Lobby (for the for-profit organizations) or in the consolidated appeal in Zubik v. Burwell (for the nonprofit organizations).250 In light of the government’s announcement to resolve these casesthrough regulatory action after the Supreme Court’s decision in Zubik, we decided that the most conservative course was to treat these cases as separate gonv-er ment losses.251 We made this decision given that many religious exemption o Results: 30 cases, but 0 additional new cases. • Search: Federal cases under citing references for 42 U.S.C. § 2000b3b-from July 1, 2014 – June 30, 2017. o Results: 16 cases, but 0 additional new cases. • Search: Federal cases under citing references for 42 U.S.C. § 2000b4b-from July 1, 2014 – June 30, 2017. o Results: 30 cases, but 0 additional new cases. 248 The empirical analysis by Adam Winkler on strict scrutiny applications similarly analyzed court rulings, but excluded cases that were preliminary or that were addressed by another court on appeal. Winkler, supra note 245, at 844–45. 249 A decision was considered “on the merits” if the court made a determination regarding whether there was a sincere religious belief, a substantial burden on religious exercise, the government had a compelling interest, or the regulation was the least restrictive means. This included when the court discussed whether plaintiff alleged enough facts to support his RFRA claim (i.e. at the motion to dismiss stage). Not considered “on the merits” included cases where the RFRA claim was dismissed because the defendant was a state or private actor, or the plaintiff did not exhaust administrative remedies. 250 See HHS Mandate Information Centr,alBECKET, http://www.becketlaw.org/researchcentral/hhs-info-central/ [https://perma.cc/D3A9-HZJ5] (compiling a database of cases challenging the HHS mandate);see, e.g., Zubik v. Burwell, 136 S. Ct. 1557, 1560–61 ( 2016 ) (vacating Third, Fifth, Tenth, and D.C. Circuit Courts decisions that held HHS constitutional, and remanding to address the issue of employers providing notice of their religious objections). 251 In May 2016, the Supreme Court unanimously overturned lower court rulings against religious objectors, ordered the government not to fine the objectors, and said the lower courts objectors are likely particularly concerned about these casAersg.uably, these cases could be treated as one case, or excluded altogether. Thus, we presented alternative findings treating these cases as two government losses (one loss for the government against fo-rprofit challenges in Hobby Lobby, and one loss for the government against nonprofits inZubik), or excluding these cases completely. A final point of clarification is in order. The purpose of this methodology is to examine how courts have applied strict scrutiny under RFRA since Hobby Lobby; it is not to determine how strict scrutiny might affect litigants, legislators, government officials, or others. Our goal was not toe-d termine how strict scrutiny impacts the decision of lawmakers to adopt laws, government officials to enforce laws,or litigants to bring, settle,or appeal lawsuits. That is not something that could be measured by thisa-d ta.252 Thus, this case survey does not capture other possible significantmipacts Hobby Lobby may have had on the willingness of government oi-ff cials to enforce certain laws or the willingness of litigants to bring lawsuits. 2. Targeted Comparative Searches Methodology For our second method, we wanted to find a way to compare the volume of speech cases to religious exercise cases. Religious exercise cases include constitutional cases and thus present a broader universe of claims than just RFRA cases. That is why an additional search method wea-s r quired to assess case volume beyond our new RFRA survey2.53 Initially, we assessed a snapshot of all cases that have been brought since Hthoebby Lobby decision in June 2014. To do this we ran three targeted searches in Westlaw to identify the approximate number of religious cases compared to other expressive First Amendment cases. We first ran searches using Westlaw’s key number system to assess how many cases were assigned Westlaw’s “speech and expression” key number versus its “religious exershould provide the government with an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.”Zubik, 136 S. Ct. at 1560. In May 2017, the President issued an executive order directing the Department Hoefalth and Human Services (“HHS”) and other agencies to protect religious ministries from the HHS mandate. Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 4, 2017). Further government action to finalize policy changes to the contraception mandate is anticipated. 252 The data’s failure to account for primary behavior is an admitted weakness, but the nature of the relevant question makes it almost impossible to collect the type of data that would be necessary to analyze the effects of Hobby Lobby on primary behavior. 253 If we had limited our dataset to just RFRA cases, this would have skewed the religious claims and indicated they were even smaller compared to other First Amendment expressive cases than they already are. 2018] cise” key number.254 Second, we ran searches with relevant speech or rei-l gious-exercise search terms appearing at least four times in the body of a case.255 Third, we ran searches with the same speech or religio-uesxercise search terms appearing in the Westlaw summary of the case2.56 Each search was limited to the time period of June 30, 2014t,o June 30, 2017.257 Each of these searches has its own shortcomings in perfectly capturing the iu-n verse of speech or free exercise cases in the last three years, but together these searches triangulate to provide laikely relevant data point for the comparative volume of cases brought over the last three years.258 It is possible that this data, as a snapshot in time, would not reveal a sharp upward trend in the growth of religious cases. Thus, to analyze trends over time in volume, we used the targeted search language for the Westlaw key number system and ran that search limited by year for each year dating back to 1946.259 We chose this year because (as discussed below) the modern Spaeth Database begins in 1946 as well2.60 We compared speech to religious cases over time in absolute terms, and also as a percentage of all reported cases by year. We used the number of all reported cases by year that was provdied in the Lexis database. Westlaw does not report more thtean-thousand cases in any search category, but Lexis does not cap the number of cases porvided in search results.261 Thus, for the numerator we used the number of erligious or speech Westlaw key cases in a given year, and for the denominator we used the number of all reported cases in that same year. We then displayed the findings from this methodology in two different graphs. 3. Spaeth Database Methodology Finally, although the findings of the first two methods provide information about volume and win rates forall federal cases, some may wonder whether a comparatively larger proportion of religious cases percolate through the court system to the Supreme Court, and what type of win rates those religious cases enjoy. We thus compared religious exercise versus other expressive Supreme Court cases using Harold J. Spaeth’s U.Su.- S preme Court Database.262 This database codes all Supreme Court decisions from 1946 to 2016 based on numerous factors, including the particular legal issue, as well as the party that was successful. This coding “makes amassing data on the Court’s First Amendment decisions a relatively straightforward task.”263 We first looked at all of the speech and association Supreme Court cases in which the government was clearly successful, either as the petitioner or the respondent.264 We then did the same thing for cases coded as r ei-l gious exercise cases.265 Notably, this Spaeth coding of a winning party does not ensure that a religious or speech claim, respectively, is the winning issue on the merits. Thus, the value of these win rates is limited. In terms of providing a fully representative dataset, there are some obvious limitations with the Spaeth database. Most notably, the database is limited to Supreme Court decisions, which are not representative of other 2018] federal cases.266 Still, this database does provide a useful data point for the volume of meritorious cases that the Supreme Court is interested in addressing for speech compared to religious exercise issues. The modern database time-period ends in 2017 (the 2016 term). B. Findings Our findings do not indicate that government win rates have undergone a dramatic change since Hobby Lobby. Though the data does not assess the impact of Hobby Lobby on primary behavior, it does contradict the fear of some critics that Hobby Lobby will “encourage many future lawsuits,”267 “throw[] open the courtroom door to corporation,s”268 and “invite[] flimsy but readily sustainable RFRA claims . . with a high likelihood of success.”269 Additionally, our findings indicate that reported cases dealing with speech claims are much more voluminous than reported cases dealing with religious claims, both in absolute terms and as a percentage of all reported cases. The trend over time indicates that religious claims are decreasing as a percentage of all reported cases, not increasing as some critics fear. 1. New RFRA Survey Findings In our new survey of all federal cases involving a RFRA claim in the three years since Hobby Lobby, the government won in fifty out of 101 cas266 According to the Supreme Court’s own website, its current caseload is over 10,000 cases, but plenary review is only granted “in about 100 cases per Term,” so less than 1% of all appeals. The Justices’ Caseload,SUPREME COURT OF THEUNITED STATES, https://www.supremecourt. gov/about/justicecaseload.pdf [https://perma.cc/DSD3-CQJE]; see also David R. Stras,The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Proce,ss85 TEX. L. REV. 947, 967, 987 (2007) (book review) (reporting the decrease in cases that the Supreme Court decides on the merits, and noting that the Court granted review over 3% of ttihmee in the early 1980s but has done so less than 1% of the time since the October 1999 Term, although the number of certiorari petitions has steadily increased); The Supreme Court, 2009 Term—The Statistics, 124 HARV. L. REV. 411, 418 tbl.II(B) ( 2010 ) (observing that the Court granted only 0.9% of 8,131 petitions for review in its 2009 Term). 267 Griffin, supra note 60, at 673. 268 Sepper, supra note 62, at 233. 269 Marshall, supra note 8, at 120. Our findings are consistent with analysis by journalists and HHS that there have been very few corporations that have taken advantage of a contraception mandate exemption. See, e.g., Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838–857 (interim final rules with request for comment Oct. 13, 2017) (to be codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; 45 C.F.R. pt. 147); Jennifer Haberkorn,Two Years Later, Few HobbyLobby Copycats Emerge, POLITICO (Oct. 11, 2016, 5:19 PM), http://www.politico.com/story/2016/10/obamacare-birth-controlmandate-employers-229627 [https://perma.cc/DT69-6SCH] (“Politico obtained the accommodation notices filed by employers between [Januaryand March] 2014 .. . . Thirty of the entities are nonprofits and 22 are for-profits.”). es, which is a government win rate of fifty percent.270 If contraception mandate cases are treated as just two consolidated government losses addressed by the Supreme court in Hobby Lobby and Zubik (one for the for-profit cases, and one for the nonprofit cases), then the government enjoys a higher win rate of sixty-nine percent. If the thirty-one contraception mandate cases are excluded altgoether, the government’s win rate siesventy-one percent.271 Our findings on win rates are similar to those from the Winklerr-su vey.272 Specifically, of all of the rights Professor Winkler surveyed, government action was most likely to succeed in the context of strict scrutiny applied to religious claims, with afifty-nine percent success rate—“more 273 This number inthan double the mean of the other doctrinal categories.” creased even further to a seventy-four percent government win rate for religious claims challenging a generally applicable law27.4 In Professor Winkler’s findings, speech claims were the most likely to result in striking government action, with the government action at issue surviving a speech challenge only twenty-two percent of the time2.75 Notably, the government action was even less likely to survive a speech challenge than an equal portection challenge.276 New RFRA survey findings (counting all contraception mandate cases as separate government losses) New RFRA survey findings (counting all contraception mandate cases as two cnosolidated losses) New RFRA survey findings (excluding all contraception mandate cases) Government Win Rate 50% 69% 71% 270 The underlying data set for this Table is available at https://docs.google.com spreadsheets/d/1wPhJNDX00p5PImroZ7rIUXx_NGxdj2ojTk8AVxIfDUw/edit#gid=1535894163 (request permission to view from author). 271 See infra note 277 and accompanying text (Table 1). 272 Winkler, supra note 245, at 844–45. 273 Id. at 857–58. 274 Id. at 861. This finding by Winkler is not a perfect comparison, as it was not limited to RFRA. Id. at 857–58. Additionally, “generally applicable law” is an undefined legal term subject to debate, and thus difficult to classify.See Gedicks, supra note 95, at 113 (noting that Employment Division v. Smith did not define “general applicability”). 275 Winkler, supra note 245, at 844. 276 Id. 277 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. 2018] Winkler win rate for all religious claims Winkler win rate for religious challenges to generally applicable laws (not targeting religion) Winkler win rate for speech claims 59% 74% 22% Our findings do not demonstrate a dramatic drop in government win rates post Hobby Lobby. The data does not address relevant primary behaviors, such as the choice of government officials not to adopt or enforce cretain laws.278 But our findings do shed light on how judges continue ton-e force strict scrutiny under RFRA post Hobby Lobby. More time and data are necessary to draw more concrete conclusions. 2. Targeted Comparative Searches Findings In our targeted searches to assess volume of religious versus speech cases, we began by looking at volume in the three years sincHeobby Lobby.279 In our findings, thenumber of speech and expressive casesthat the searches returned generally dwarfed the number of free exercise cases in similar search results. Under each search result, speech cases outnumbered religious claims at a ratio of anywhere from 3:1 to 6:1. These findings are consistent with Professor Winkler’s findings, where the volume of speech-based claims was notably greater than the volume of religious claims. Specifically, Winkler found that speech claims constituted by far the largest category of strict scrutiny ca—ses222 of 4592.80 There were thirty-three additional association cases, totaling 255 expressive cases.281 In contrast, religious claims in Professor Winkler’s database accounted for merely seventy-three of the 459 claims.282 Speech and Expressive Cases Religious Exercise Cases Ratio 278 Notably, under the new Trump administration, the Attorney General recently issued gudiance that is much more protective of religious exercise under RFRA, and will likely result in much less agency action that is hostile towards religious exercise under this administration.See generally Memorandum from Jeffrey Sessions, Attorney Gen., U.S. Dep’t of Justice, for All Executive Departments and Agencies (Oct. 6, 2017). That sort of primary behavior is not measured by our RFRA case survey. 279 The date range filter used for all of these searches was July 1, 2014 to June 30, 2017. 280 Winkler, supra note 245, at 844–45. 281 Id. at 815. 282 Id. 283 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. Search of rele vant Westlaw key number Search of rele vant term at least four times Search in Westlaw summary of case Winkler results 1,796 1,274 639 222 305 333 188 73 6:1 4:1 3:1 3:1 When analyzing thetrends of the Westlaw key number cases over time, our findings are not consistent with the allegation that religious claims are undergoing a dramatic expansion, particularly as compared to speech cases. Table 3 illustrates both types of Westlaw key number cases tracked in absolute terms over time.284 Table 4 illustrates both types of Westlaw key number cases tracked as a percentage of all reported cases over time. The percentage of religious cases appears to have stayed fairly constant over the years. 284 See infra note 285 and accompanying graphic. 285 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. The underlying data set is https://docs.google.com/spreadsheets/d/1vbW_8E7orAkidtxcNAtQHy3s60k8TVx LLOkiKGgpe_8/edit#gid=878012463 (request permission to view from author). 46 49 52 55 58 61 64 67 70 73 76 79 82 85 88 91 94 97 00 03 06 09 12 15 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 19 20 20 20 20 20 20 Expression % Religion % Perhaps most interesting is that if we hone in on the years immediately preceding Hobby Lobby and then immediately following that court decision, a fitted line graph in Table 5 illustrates that the slope of religion cases as a percentage of the reported caseload appears to be slightly decreasing. Table 4 286 Expression vs Religion as a Percentage of All Reported Cases 2011 2012 2013 3. Spaeth Database Findings According to the Spaeth database from 1946 to 2016, there were a total of 461 First Amendment cases, and of these 378 dealt with speech or asso286 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. 287 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. ciation issues. The government was coded as a party in 344 of these cases. In contrast, during the same period of time therewere only thirty-two free exercise cases t(hirty-five with threeRFRA cases included)2.88 The government was coded as a party intwenty-nine of these cases2.89 Thus, the speech-based claims outnumbered religious claims by a ratio of more than 10:1. Overall, across the last seven decades, the court ruled in favor of the government in forty-one percent of the free speech and association cases in which it was a party. In contrast, thecourt ruled in favor of the government at the higher rate of forty-five percent of the twenty-nine free exercise cases in which the government was a party. In other words, the government is less likely to win in the context of speech and association cases than in religious exercise cases. But this difference is not substantial, and likely not statistically significant at the Supreme Court level. These findings are interesting in that they indicate that a far greater number of spee-bchased cases than religious cases are meritorious enough to percolate to the Supreme Court. Supreme Court Cases Number brought between 1946 and 2016 Government win rate Speech and Association Cases Religious Exercise Cases 344 41% 29 45% In sum, our findings are consistent with the conclusion that speech cases are much more pervasive than religious cases.Additionally, our findings are not consistent with the notion that religious objections aredramatically increasing in volume, or are muchmore likely to prompt a court to strike down government action under RFRA afterHobby Lobby. Compared to the work by Professor WinklerH,obby Lobby does not appear to have significantly changed the government’s win rate. C. Jurisprudential Explanation for Empirical Findings The legal constraints on religious exercise claims may help exnplai why religious exemption requests are not as voluminous or as successful as critics fear. Although some scholars critique religious claims because truth 288 Modern Database: 2017 Release 01, supra note 262. 289 Of these cases, twenty-six were constitutional free exercise cases and three were RFRA cases. 290 This Table is permanently available at http://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-5/barclay-rienzi-graphics.pdf [https://perma.cc/YD43-EGQR]. 2018] claims about such beliefs are“insulated from ordinary standards of evidence,”291 the same could be saidof truth claims implicated by other First Amendment rights. What standard of evidence could be said to apply, for instance, to the truth claims of pornography, nearly nude dancing, videos of animals being crushed, flag burning, or swastikas? Yet all of those are examples of speech objections that requirethe most heightened scrutiny our constitutional law offers.292 We often protect speech based on a speaker’s subjective belief that a law impacts their expression, even though most others may not view the lawas touching on expression at all2.93 For example, most drivers who had to attach a license plate with a state motto likely did not feel like they were being compelled to “say” anything, but thaeppellees in Wooley v. Maynard subjectively felt otherwise, which was why they could raise a successful a-sapplied challenge.294 As the Supreme Court has noted elsewhere, “[a] person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”295 We don’t even require speech to be sincere. We would give heightened protection to speech even if the speaker didn’t believe what he or she was saying, but still wanted to say it. Indeed,in New York Times v. Sullivan the Court protected speech that was not true.296 In contrast, a religious objector must prove her beliefs are sincere to receive protection. And sincerity acts as a significant gatekeeper to religious objectors receiving protection. For example, in a criminal drug trafficking case,an Arizona couple attempted to raise drug money through its operation called the “Church of Cognizance,” founded on the teaching that marijuana is both a deity and sacrament.297 After the Border Patrol busted their “backpack runners” from Mexico, the couple argued that their drug-running was part of their church’s religious activities and thus legally protected by RFRA. In an opinion wrt-i ten by then-Judge Gorsuch, the Tenth Circuit held that the couple’s religious beliefs were not sincere—a threshold determination in every religious liberty case—and that the “church” was a mere front for a drug operation. The court explained that religious liberty laws do not “offer refuge to canny op291 LEITER, supra note 64, at 34; see also LUPU & TUTTLE, supra note 55, at 27 (arguing that “[i]f the government cannot evaluate the significance of a particular religious practice within a believer’s faith, it will effectively lack the ability to identify—in a principled waym—eritorious claims for accommodation”). 292 See, e.g., Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43–44 (1977) (holding that because there were First Amendment implications, they must “provide strict procedural safeguards”). 293 See, e.g., Jacobs, supra note 132, at 160 (critiquing the way speech doctrine depends on the “subjective intensity of the speaker’s reaction” to the law’s requirement). 294 430 U.S. 705, 707–08, 717 (1972). 295 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632–33 (1943). 296 376 U.S. 254, 257–59, 264 (1964). 297 United States v. Quaintance, 608 F.3d 717, 718 (10th Cir. 2010). erators who seek through subterfuge to avoid laws they’d prefer to ignore,” such as “those who set pu ‘churches’ as cover for illegal drug distribution operations.”298 Further, the belief at issue must be “genuinely ‘religious’” to receive protection.299 “[P]hilosophical and personal rather than religious” beliefs are not enough.300 In Cavanaugh v. Bartelt, for example, a district court determined that the satirical adherence to the “doctrine of the Flying Spaghetti Monster” did not constitute a religiousbelief qualifying for First Amendment or RLUIPA protection3.01 Instead, the court explained that this creed was “a parody, intended to advance an argument about science, the evuo-l tion of life, and the place of religion in public educat3i0o2n.T”hus, the plaintiff was unable to prove that his religious exercise was burdened.303 The very existence of these threshold requirements in the religious exercise realm also surely shapes the type of cases that litigants are willing to bring, as they assess whether their practice is really religious and based on a belief that they can prove is both sincerely held and actually bduerned by the government action. In this manner, religious exercise claims aren-co strained by doctrine in ways that other constitutional claims are not. These constraints provide at least one explanation for why the volume of religious exercise cases is so much lower than speech and association cases. IV. THE ANOMALOUS MAJORITARIAN JURISPRUDENCE OF SMITH The case studies and empirical analysis above indicate that a-sapplied challenges are praised elsewhere in constitutional jurisprudence (particularly the speech context), but uniquely maligned in the free exercise context without justification. What, then, accounts for this disparate treatment of two very similar304 types of constitutional challenges? One clue may come from analyzing the majoritarian jurisprduential foundation on whichEmployment Division v. Smith relies, and that has been soundly rejected in the speech context. 298 Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014) (citingQuaintance, 608 F.3d at 720–23). 299 Cavanaugh v. Bartelt, 178 F. Supp. 3d 819, 829 (D. Neb. 2016),aff’d, No. 16-2105 (8th Cir. Sept. 7, 2016). 300 Wisconsin v. Yoder, 406 U.S. 205, 216 (1972). 301 178 F. Supp. 3d at 825, 828–29. 302 Id. at 824. 303 Id. at 834. 304 The Supreme Court has observed that “[t]he Free Exercise Clause embraces a freedom of conscience and worship that hasclose parallels in the speech provisions of the First Amendment . . . .” Lee v. Weisman, 505 U.S. 577, 591 (1992) (emphasis added). A. Majoritarian Reasoning of Gobitis Overruled by Barnette in the Speech Context In 1935, during an elementary school’s daily pledgeof allegiance ceremony, a ten-year-old fifth grader named William Gobitis refused to salute the flag. This daily patriotic ritual at the time involved a “sti-fafrm” salute that some complained looked very similar to the one Hitler required in Nazi Germany.305 Some religious leaders had even given speeches denouncing participation in the “Heil Hitler” salute.306 When William declined to participate, his teacher tried to force his arm up, but William held it in his pocket and successfully resisted. The next dayW,illiam’s eleven-year-old sister, Lillian, did the same thing. She told her teacher, “I can’t salute the flag naymore. The Bible says at Exodus chapter 20 that we can’t have any other gods before Jehovah God.” The teacher hugged Lillian and called her a “dear girl.”307 The classmates of William and Lillian Gobitis were first astonished and then disgusted with what they viewed as an unforgivable lack opfatriotism. They would chant “[h]ere comes Jehovah” at the children and shower them with pebbles on their way to school every day. The Gobitis parents supported the consciences of their children, and in fact this Jehovah’s Wt-i ness family was part of a national religious movement objecting to the flag salute. But they too were shunned by their community: theirafmily-owned grocery store was threatened with a mob attack and they were subjected to a boycott. After the children were expelled from school, the family turned to the courts.308 This legal dispute led toMinersville School District v. Gobitis, one of the primary cases on which theSmith decision relied.309 In this case, the Gobitis family challenged the generally applicable pub-lsichool requirement that students either perform a salute to the national flag as part of a daily ceremony or face expulsion3.10 In this case, no one disputed the nsicere religious objections the Gobitis children had to participating in this ceremony.311 There was no question in theGobitis Court’s eyes that the generally applicable flag salute requirement was csotintutional. The Court stated: “[t]hat the flag-salute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable31.”2 Rather, the issue was [“w]hen does the constitutional guarantee [of religious liberty] compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?3”13 Another way to ask the same question is whether an as-applied challenge to the generally applicable flag salute requirement should be upheld for the Jehovah’s Witness children, providing a “religious exemption from a law that bound everybody.”314 The Court rejected this as-applied challenge, arguing that “[t]he religious liberty that the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects.”315 The Court also cited toReynolds v. United State,s observing that “[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”316 Thus, the Court refused to provide what it characterized as “exceptional immunity ... to dissidents,” and the Jehovah’s Witness children were forced to either salute the flag or be expelled from school3.17 The Court in Gobitis also made clear that its reasoning was not limited to free exercise, but extended to a constitutional challenge based on speech rights as well.318 The Court primarily relied on the theory of judicial restraint developed by Justice Felix Frankfurter, arguing that courts must defer to the will of the majority, and that it would be an “arbitrary” exercise of power undermining the strength of the government to set such legislative determinations aside.319 In the theory set forth by Frankfurter, “the judiciary was supposed to defer to reasonable judgments made by legislators, not overturn them because it disagreed with their substance.”320 311 Id. at 592–93. 312 Id. at 599. 313 Id. at 593. 314 FELDMAN, supra note 306, at 182. 315 Gobitis, 310 U.S. at 594. 316 Id. at 594–95. 317 Id. at 591, 599–600. 318 Id. at 595 (holding that “[n]or does the freedom of speech assured by Due Process move in a more absolute circle of immunity than that enjoyed by religious freedom”). 319 Id. at 596; FELDMAN, supra note 306, at 181–82. 320 FELDMAN, supra note 306, at 182. Justice Harlan Stone authored a vigorous dissent, arguing that simply deferring to the general rules passed by a legislature amounted to “nloess than the surrender of the constitutional protection of the liberty of small minorities to the popular will.”321 Stone relied on his famous footnote four analysis in the previous case of United States v. Carolene Products Co., and “pointed to the importance of a searching judicial inquiry into the legai-sl tive judgment in situations where prejudice against discrete andinsular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities.”322 Legislation that operated “to repress the religious freedom of small minorities, . . m.ust at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of . . .racial minorities,” Stone r-a gued.323 This was because, in his view, the “Constitution expresses more than the conviction of the people that democtrica processes must be perserved at all costs.”324 Just three years later, in thBearnette decision (announced on Flag Day), Justice Stone’s reasoning won the day and the Court overruledGobitis—though only speaking clearly in terms of First Amendment expressive rights.325 Specifically, the Court upheld an injunction “restrain[ingn]- e forcement as to the plaintiffs and those of that class” based on the “limiting principles of the First Amendment.3”26 In some of the most famous lines from First Amendment jurisprudence, the Supreme Court waxed eloquent about the grave risk of “coerc[ing] uniformity” in support of majoritarian sentiment.327 “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”328 The Court thus concluded that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”329 321 Gobitis, 310 U.S. at 606 (Stone, J., dissenting). 322 Id. (citing United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)). 323 Id. at 607. 324 Id. at 606. 325 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 326 Id. at 630, 639. 327 Id. at 640. 328 Id. at 641. 329 Id. at 642 (emphasis added). The foundational principle has spawned much of our free speech jurisprudence. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 826 (2000) (holding that “[t]he history of the law of free expression is one of vindicatioinn cases involving speech that many citizens may find shabby, offensive, or even ugly”); Texas v. Johnson, 491 U.S. 397, 414 (1989) (holding that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the Some scholars have argued thatBarnette was not a “religious exemption case,” and was instead a case about “bar[ring] enforcement of the mandatory salute statute . . . .”330 To be sure, the Court inBarnette avoided the use of typical religious exemption language. But this was not a case about whether the pledge of allegiance was being stricken (or even partially stricken) for facial invalidity, or whether schools were prohibited from holding flag salute ceremonies (or aspects of the ceremonies) as a general matter. In fact, those sorts of lawsuits would come, but much late3r3.1 Barnette was a case in which the Court “restrained enforcement” of an otherwise valid policy “as to the plaintiffs and those of that class33.”2 To qualify for this exemption, Plaintiffs (and others in the future who were similarly situated), were being protected based on their First Amendment objection to an otherwise valid exercise of government authority. That targeted invalidation of government action is similar to what we think of as an -aaspplied challenge in other contexts. Regardless of the nuances of the type of remedy offered in this case, what is clear is that Barnette instituted a rule of law that was distinctly protective of minority rightsagainst majoritarian rules, and whichremains foundational law in speech jurisprudence.333 B. Gobitis Resurrected by Smith in the Free Exercise Context Though Gobitis remains bad law in the realm of free speech law, it was resurrected as one of the primary jurisprudential pillars of reasoning in Smith. The Smith Court quoted the following passage from Gobitis: [c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of rei-l gious beliefs. The mere possession of religious convictions which idea itself offensive or disagreeable”); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the MiTdw- entieth Century, 34 WM. MITCHELL L. REV. 773, 774 (2008) (noting that “[r]epudiation of governmentallym-andated orthodoxy and tolerance for unpopular speech are two sides of the guiding principle in modern free speech law”). 330 LUPU & TUTTLE, supra note 55, at 187. 331 See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 8, 10 (2004). 332 319 U.S. at 630. 333 See, e.g., Heffernan v. Paterson, N.J., 136 S. Ct. 1412, 1417 ( 2016 ) (citiBngarnette as setting forth the First Amendment’s “basic constitutional requirement”); Obergefell v. Hodges, 135 S. Ct. 2584, 2605–06 (2015) (quoting Barnette for the principle that the purpose of the constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”) (internal quotation marks omitted). contradict the relevant concerns of a political society does notrelieve the citizen from the discharge of political responsibilities.334 The Court relied on this reasoning to conclude that “an individual’si-rel gious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that theState is free to regulate.”335 The precedential value of Smith’s reliance on Gobitis is dubious. As Professor Michael McConnell put it, “[r]elying on Gobitis without mentioning Barnette is like relying on Plessy v. Ferguson without mentioning Brown v. Board of Education.”336 Four justices recognized the problem with relying onGobitis. Justice Sandra Day O’Connor, for example, relied in her concurrence instead on the reasoning of Barnette, quoting the following passage: [t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.337 334 Smith, 494 U.S. at 879 (quontig Gobitis, 310 U.S. at 594–95) (internal quotation marks omitted). 335 Id. at 878–79. 336 McConnell, supra note 38, at 1124. Employment Division v. Smith also relied on “a Mormon polygamy case from 1879, [which] was decided on the theory that the Free Exercise Clause protects only beliefs and not conduct—a premise that the Court repudiated in 1940.”Id. (footnote omitted) (citing Cantwell v. Connectiuct, 310 U.S. 296, 303–04 (1940));see also Bruce Ackerman, Levels of Generality in Constitutional Interpretation: Liberating Abstraction, 59U. CHI. L. REV. 317, 326 (1992) (arguing that “Gobitisshould be read as an especially pure example of the New Deal approach to the Bill of Rights”). 337 Smith, 494 U.S. at 902–03 (O’Connor, J., concurring) (quotingBarnette, 319 U.S. at 638) (internal quotation marks omitted);see also GORDON S. WOOD, CREATION OF THEAMERICAN REPUBLIC: 1776–1787, at 593–96 (1998) (noting that our Constitution did not create pure democracy; it created many checks and balances on the excesses of majoritarian power); Jack L. Landau, Some Thoughts About State Constitutional Interpretation, 115PENN ST. L. REV. 837, 849 (2011) (“The Bill of Rights itself is essentially a series of limitations on the exercise of majoritarian authority. What the framers of the federal [C]onstitution created was not a popular democracy, but a republic of fairly elaborate checks and balances.”). See generally WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 110–14 (Rita Kimber & Robert Kimber trans., 1980) (detailing the evolution of how the words “democracy” and “republic” were used)A;LEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16– 23 (1986) (discussing the “count-emrajoritarian difficulty” of meaningful judicial review in a democracy). See generally ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001) (arguing that the Constitution ultimately upholds antidemocratic ideals)S;ANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG In a nutshell, one of the principles upon whichSmith relies is that “the true course of judicial duty” is to “keep[] their hands off” the majoritarian decisions of “legislative power,” as an exercise ojfudicial self-restraint.338 In contrast, the jurisprudence Smith overruled stands for the proposition that religious exemptions “protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility” because “[t]he history of . . free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups.”339 As the Supreme Court previously noted, the diversity of religious beliefs in our nation should weigh in favor of us providing more protection— not less. In the realm of religious faith, and in that of political belief, sharp differences arise. In bothfields the tenets of one man may seem the rankest error to his neighbor .. . . [I]n spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed.Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds.340 As-applied challenges to generally applicable laws allow a society as diverse as ours to accommodate the “sharp differences [that] arisei”n beliefs or preferences while still allowing the democratically-enacted rules of law to continue to operate for the public good. The other alternative is to disregard the minority views that are not protected by our political process. Regardless of one’s ultimate views on the merits of a countermajoritarian approach, the divergent precedents ofGobitis and Barnette provide one (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006) (same); Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 155–62 (2002) (analyzing the history of judicial review to move beyond the countermajio-r tarian difficulty as a constitutional theory). 338 Barnette, 319 U.S. at 648, 670 (Frankfurter, J., dissenting). 339 Smith, 494 U.S. at 902 (O’Connor, J., concurring). James Madison also famously wrote to Thomas Jefferson that that Bill of Rights was but “parchment barriers,” and that the “invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” JAMES MADISON, Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 11 THE PAPERS OF JAMES MADISON, 7 MARCH 1788–1 MARCH 1789, at 295–300 (Robert A. Rutland et al. eds., 1977). 340 Cantwell, 310 U.S. at 310 (emphasis added). explanation for the disfavored treatment of religious exemptions. In Gobitis, the Court determined that judicial restraint required it to simply defer to the will of the majority, which required school children to perform a st-iaffrm flag salute against their conscience because the majority thought they should. Just three years later, in theBarnette decision, the Court overruled its Gobitis holding in the contextof expressive rights, explaining that the “very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.”341 Barnette thus instituted a rule of law that was distinctly protcetive of minority rights, and that remains foundational jurisprudence in the context of speech rights. In contrast, thisArticle demonstrates how modern religious exercise law has (mistakenly) resurrected the deferential and amjoritarian reasoning of Gobitis, while asserting that requests to treat religious exercise like other First Amendment rights are somehow o-uotf-step with our constitutional traditions. For critics trying to evaluate which approach is better, the following question is instructive: Do we want to live in a society where the govne-r ment can force school childrento salute flags, simply because the majority likes that idea at the time? If the answer is no, that worldview hearkens to the counter-majoritarian reasoning ofBarnette. That same principlealso underlies statutes like RFRA. To support instead a double standard that treats religious exercise as less deserving than any other First Amendment right, then, would be the true anomaly. CONCLUSION Viewing religious exemptions through the lens of as-applied challenges makes clear that such exemptions are not anomalous at all. Whee-n r quests for individual religious exemptions are compared to a-sapplied challenges in other constitutional contexts, it turns out that providing religious exemptions from otherwise valid laws is both the most modest andthe preferred method of adjudicating conflicts between individual rights and laws passed for the public good. The First Amendment cases surveyed in thiAsrticle indicate that religious as-applied challenges do not result in preferential treatment fori-rel gious objectors as a constitutional matter.Our new RFRA survey contradicts the notion that religious objections are much more likely to prompt a court to strike down government action under RFRA post-Hobby Lobby. Our findings also indicate that cases dealing with religious objections to laws are lesvsoluminous than other cases dealing with other expressive First Amendment claims, and the religious cases do not appear to be undergoinga trend of dramatic growth. In fact, the trend appears to be a slight decrease in volume. Thus, through allowing -aapsplied challenges, religious exemption schemes like RFRA simply restore religious exercise rights to a similar level of protection already ofered to other rights housed in the First Amendment and necessary for the protection of minority views in our pluralistic society. II. RELIGIOUS EXEMPTIONS UNDERSTOOD AS AS-APPLIED CHALLENGES ............................... 1608 Constitutional Adjudication.................................................................................................. 1609 B. Survey of First Amendment As-Applied Challenges ......................................................... 1612 1. Compelled Action........................................................................................................ 1614 2. Discretionary Enforcement or Application of a Law ................................................... 1618 3. What About Intermediate Scrutiny? ............................................................................ 1619 4. What About Antidiscrimination Laws and Dignitary Harms? ..................................... 1623 1. New RFRA Survey Methodology................................................................................ 1634 2. Targeted Comparative Searches Methodology ............................................................ 1636 3. Spaeth Database Methodology .................................................................................... 1638 1. New RFRA Survey Findings ....................................................................................... 1639 2. Targeted Comparative Searches Findings.................................................................... 1641 3. Spaeth Database Findings............................................................................................ 1643 C. Jurisprudential Explanation for Empirical Findings ....................................................... 1644 B. Gobitis Resurrected by Smith in the Free Exercise Context ............................................ 1650 50 Case, supra note 1 , at 469-70 ( noting that “the sorts of religious exemptions from generally omitted)); Marshall, supra note 8 , at 74;see also Dan T. Coenen, Free Speech and Generally Applicable Laws : A New Doctrinal Synthesis, 103 IOWA L. REV. 435 , 466 ( 2018 ) (“[S]ingling out general and some religions over others.” (internal quotation marks omitted )). 51 CORVINO ET AL., supra note 2, at 22. 52 Id. at 22 , 31 . 53 Id. at 52 . 54 Frederick Mark Gedicks , Is Religion an Excuse for Breaking the Law? , NEWSWEEK (Mar . 12, 2016 , 10 :51 AM), http://www.newsweek. comr/ealrieg-ious-beliefs-excuse-breaking-law-435664 [https://perma.cc/R54Y-XEM4]. 55 IRA C. LUPU & ROBERT W. TUTTLE , SECULAR GOVERNMENT : RELIGIOUS PEOPLE 11-12 ( 2014 ). 56 Marshall, supra note 8, at 74; see also Case, supra note 1 , at 486-87 (raising concerns dations”) . 57 See generally MARCI A. HAMILTON, GOD VS . THE GAVEL: THE PERILS OF EXTREME RELI- GIOUS LIBERTY (2d rev . ed. 2014 ) (discussing the problems inherent to “extreme” legal protec71 CORVINO ET AL., supra note 2, at 31. 72 Id. at 52 . 73 Id.; Marshall, supra note 8, at 74; Schwarzschild, supra note 44, at 199; see also infra notes 152- 178 and accompany text. 74 Ayotte v. Planned Parenthood of N. New Eng ., 546 U.S. 320 , 331 ( 2006 ). 75 Id. at 329 (holding that “the 'normal rule' is that 'partial, rather than facial, invalidation is too far, but otherwise left intact'”) (quoting Brockett v . Spokane Arcades , Inc., 472 U.S. 491 , 504 ( 1985 )) (emendations in original ). 76 See Richard H. Fallon , Jr., Fact and Fiction About Facial Challenge,s 99 CALIF. L. REV. 915 , 956 ( 2011 ) (observing that as-applied challenges involve surgical severing);see also Wash . State Grange v . Wash. State Republican Party , 552 U.S. 442 , 451 ( 2008 ) (asserting that “facial terations and quotation marks omitted)) . 77 Snyder v . Phelps , 562 U.S. 443 , 460 ( 2011 ). 78 Richard H. Fallon, Jr., As-Applied and Facial Challenges and ThirdP- arty Standing , 113 HARV. L. REV . 1321 , 1329 , 1368 ( 2000 ) (citing United States v . Raines , 362 U.S. 17 , 5 ) ( 1960 )); see also Yazoo & Miss. Valley R.R . v. Jackson Vinegar Co. , 226 U.S. 217 , 219 - 20 ( 1912 ) (hodl- facts before the court); Fallon, supra , at 1368 ( “[A]s-applied challenges reflect entrenched though can ordinarily be separated from valid subrules.” (emphasis omitted)). 79 Gonzales v . Carhart , 550 U.S. 124 , 167 - 68 ( 2007 ) (quotation marks omitted ). 80 Ayotte , 546 U.S. at 329 ( internal quotation marks omitted) (emphasis added) . 81 Id. at 328-29 (citations and internal quotation marks omitted) . 82 Id. at 329 . 83 Sabri v. United States , 541 U.S. 600 , 608 - 09 ( 2004 ) (holding that “facial challenges are terpretation of statutes' on the basis of factually barebones records”) (quotingRaines, 362 U .S. at 22) (emendations omitted); see also Wash . State Grange , 552 U.S. at 450-51 (holding that “facial challenges threaten to short circuit the democratic process”). 84 Citizens United v . Fed. Election Comm'n , 558 U.S. 310 , 399 ( 2010 ) (Stevens , J., concur- ring in part and dissenting in part) . 85 Luke Meier, Facial Challenges and Separation of Powesr , 85 IND. L.J. 1557 , 1557 n.3 ( 2010 ) (citing David L. Franklin, Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Cour ,t 36 HASTINGS CONST. L .Q. 689 , 697 ( 2009 ) (arguing that the Supreme ger, Facial and As-Applied Challenges Under the Roberts Court, 36 FORDHAM URB . L.J. 773 , 773 ( 2009 ) (arguing that “[o]ne recurring theme of the Roberts Court's jurisprudence to date is its Quinn Rosenkranz , The Subjects of the Constitution, 62STAN . L. REV. 1209 , 1233 , 1239 ( 2010 ) form of constitutional challenge”) . 86 Metzger, supra note 85, at 776 . 87 Fallon, supra note 78, at 1330- 31 . 93 Lee v. Weisman , 505 U.S. 577 , 591 ( 1992 ) (emphasis added) . 94 See , e.g., RANDY E. BARNETT, OUR REPUBLICAN CONSTITUTION 167-68 ( 2016 ) (arguing Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140U . PA. L. REV. 149 , 196 - 98 ( 1991 ) (discussing historic rationales for religious freedom ). 95 Frederick Mark Gedicks , The Normalized Free Exercise Clause: Three Abnormalitie,s 75 IND. L .J. 77 , 120 - 22 ( 2000 ). But see Coenen, supra note 50, at 467 (arguing that different treat- cise rights “serve different purposes within our constitutional system” ). 96 319 U.S. 105 , 106 ( 1943 ). 97 Id. at 106-07. 98 Id. at 107 . 242 Ira C. Lupu, Where Rights Begin: The Problems of Burdens on the Free Exercise of Rei-l gion , 102 HARV. L. REV. 933 , 947 ( 1989 ); see also supra notes 152-178 and accompanying text. 243 See infra notes 267-292 and accompanying text. 244 See infra notes 267-292 and accompanying text. 245 See generally Adam Winkler , Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts , 59 VAND. L. REV. 793 ( 2006 ). Other authors have also sur- “42 U.S.C. s 2000bb”) & DA(aft 06-30-2014 & bef 07-01- o Results: 478 cases. 254 For speech cases, the following search was used in all state and federal cases: “adv: TO ( 92xviii ) & DA(aft 06-30-2014 & bef 07-01 - 2017 ). ” This search references the Westlaw key number 92 , Section XVII -IFreedom of Speech, Expression, and Press, k1490k - 2309 . For reli- gious exercise cases, the following search was used in all state and federal cases: “adv: TO(92xiii) & DA(aft 06-30-2014 & bef 07-01 - 2017 ). ” This search references the Westlaw key number 92, Section XIII -Freedom of Religion and Conscience , k1290 - k1429 . 255 For speech cases, the following search was used in all state or federal cases: “adv : AT- LEAST4(“freedom #of speech”) ATLEAST4(“freedom #of press”) ATLEAST4(“freedom #of association”) ATLEAST4(“freedom #to associate”) & DA(aft 0360-- 2014 & bef 07-01- 2017 ).” LEAST4(“freedom #of relig!”) ATLEAST4(rfra) & DA(aft 06-30-2014 & bef 07-01 - 2017 ). ” 256 For speech cases, the following search was used in all state or federal cases: “adv: SY((free! /5 speech! press associat!)) & DA(aft 06-3200-14 & bef 07-012-017) .” For religious exercise cases, the following search was in all state or federal cases: “adv: SY((relig! /5 exerc!) rfra (free! /5 relig!)) & DA(aft 06-30-2014 & bef 07-01-2017).” 257 All relevant searches were run between October 19 , 2017 , and October 24, 2017 . We un- given that Westlaw is continually adding new cases to its library. 258 As a starting matter, Westlaw does not claim to include all unpublished cases in its search- able databases. 259 For counting purposes, our year began on July 1, the day afterHobby Lobby was decided, and it ended on June 30. So, a search for one year of Westlaw key number cases would look like this: “adv: (TO(92xviii)) & DA(aft 06-30-1945 & bef 07-01 - 1946 ). ” 260 We used the Westlaw key number for our search over time because this category was terms. 261 To obtain the number of all reported cases from Lexis, we used the term “cite(lexis)” “cite(lexis)” search year by year, and used this number for the denominator. 262 Modern Database: 2017 Release 01,WASH . UNIV. LAW: THE SUPREME COURT DATABASE (Aug. 14 , 2017 ), http://supremecourtdatabase.org/data.php [https://perma.cc/XVZ9-QW6Q]. 263 Id.; see, e.g., Lee Epstein & Jeffrey A. Segal,Trumping the First Amendment? , 21 WASH. U. J.L. & POL 'Y 81 , 92 ( 2006 ) (discussing the use of the database to analyzeother aspects of First Amendment cases) . 264 For this coding under the “Legal Provisions” section of the database, we selected the based on when the government was the winning party. 265 For this coding under the “Legal Provisions” section of the database, we selected the the winning party. We also added the three RFRA cases to this category . 305 Barnette , 319 U.S. at 627 . 306 NOAH FELDMAN, SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR'S GREAT SUPREME COURT JUSTICES 179 ( 2010 ). 307 Id. at 179-80; see also SHAWN FRANCIS PETERS , JUDGING JEHOVAH'S WITNESSES: RELI- GIOUS PERSECUTION AND THEDAWN OF THERIGHTS REVOLUTION 33-40 , 53 - 54 ( 2000 ) (ex- Logic and Psychologic in Constitutional Decisionmaking, 36 STAN. L. REV. 675 , 677 - 78 ( 1984 ) ical understanding); Lillian Gobitis, The Courage to Put God Firs ,tAWAKE!, July 22 , 1993 , at 12- 15 ( recalling what led up to her Supreme Court case ). 308 FELDMAN, supra note 306, at 179-80 . 309 Emp't Div., Dep't of Human Res. v. Smith , 494 U.S. 872 , 879 ( 1990 ) (quoting Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 , 594 - 95 ( 1940 ), overruled by Barnette , 319 U.S. at 624). 310 Gobitis, 310 U.S. at 591.


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Stephanie H. Barclay, Mark L. Rienzi. Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, Boston College Law Review, 2018,