Free Exercise By Moonlight

San Diego Law Review Volume 53 | Issue 1 Article 5 3-1-2016 Free Exercise By Moonlight Marc O. DeGirolami Follow this and additional works at: https://digital.sandiego.edu/sdlr Part of the First Amendment Commons, and the Religion Law Commons Recommended Citation Marc O. DeGirolami, Free Exercise By Moonlight, 53 San Diego L. Rev. 105 (2016). Available at: https://digital.sandiego.edu/sdlr/vol53/iss1/5 This Article is brought to you for free and open access by the Law School Journals at Digital USD. It has been accepted for inclusion in San Diego Law Review by an authorized editor of Digital USD. For more information, please contact . DEGIROLAMI (DO NOT DELETE) 9/14/2018 2:41 PM Free Exercise By Moonlight MARC O. DEGIROLAMI* TABLE OF CONTENTS ABSTRACT ............................................................................................................ 105 INTRODUCTION ..................................................................................................... 106 I. TWINS SUNS ............................................................................................ 112 II. SMITH IN ECLIPSE ..................................................................................... 123 III. HOSANNA-TABOR IN ECLIPSE..................................................................... 127 IV. THE WANING OF RELIGIOUS ACCOMMODATION ....................................... 129 CONCLUSION......................................................................................................... 145 ABSTRACT How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions. 1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches. 2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed. 3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith. 4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that. * © 2016 Marc O. DeGirolami. Professor of Law and Associate Dean for Faculty Scholarship, St. John’s University School of Law. 105 DEGIROLAMI (DO NOT DELETE) 9/14/2018 2:41 PM In describing these possibilities, the essay considers the cases themselves, various doctrinal developments—focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor—and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points—perhaps with the exception of the second—the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight. INTRODUCTION It is the evening of religious accommodation. Religious exemptions from general laws, if not yet abominated outright, are more controversial and divisive than at any time in modern memory. The agitated rancor that continues to follow the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. might obscure that it has been twenty-five years since the Court last defined the scope and limits of the Free Exercise Clause.1 That largely undisturbed decision—Employment Division v. Smith2—held that exemptions from neutral and generally applicable laws on the basis of religious conscience are never constitutionally required, no matter how 1. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, 7 U. ST. THOMAS J.L. & PUB. POL’Y 103, 107 (2013). 2. Emp’t Div. v. Smith, 494 U.S. 872, 890 (1990), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103–141, 107 Stat. 1488. Three years later, the Court clarified its approach to free exercise but the basic doctrinal terms in which religious accommodation is evaluated did not change. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). 106 DEGIROLAMI (DO NOT DELETE) [VOL. 53: 105, 2016] 9/14/2018 2:41 PM Free Exercise By Moonlight SAN DIEGO LAW REVIEW grave the burden to the religious individual or group, and no matter how insignificant the state’s interest in enforcing the law. Some scholars have debated Smith’s holding as a matter of constitutional history3 and doctrinal development.4 Others have pointed out that in practice, and as applied by lower courts, Smith’s rule and rhetoric sometimes sound more absolute than they actually are.5 But there was more motivating the Smith Court than interpretive or doctrinal fidelity. A particular political psychology underlies Smith: a stubborn optimism about the American people’s capacity to reach charitable, generous, and sensible religious accommodations without the safety net of judicial review,6 a genuine trust in democratic wisdom and accountability.7 “Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word,” wrote Justice Scalia, almost in exhortation, “so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.”8 The passage with broad political support of the Religious Freedom Restoration Act, its state analogues, and by then with less support, the Religious Land Use and Institutionalized Persons Act,9 followed by decisions in a handful 3. Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. (...truncated)