By Mike Dorf
My latest Verdict column uses the Little Sisters case as a jumping-off point to discuss religious exemptions. I argue that religious objections to "participating" in other people's activities are, other things being equal, more difficult to accommodate than objections to actions (or omissions) that one must take (or refrain from taking) oneself. Spoiler Alert: Near the end of the column, I make the provocative comparison of the Little Sisters plaintiffs' view of participation to objections to living in a society that tolerates blasphemous cartoons. Now, just in case any readers aren't already offended, I want to compare religion to mental illness--albeit in a limited sense.
The column grapples with the following question: Is there anything special about religion that warrants giving people exemptions from general laws when they have religiously-based objections but not when they have non-religiously-based objections? Let me begin by bracketing one reason that is sometimes offered in the relevant literature: that religion is especially valuable because it teaches morality, it creates social bonds, etc. Whether or not this is empirically true (a question about which I express no view), this rationale seems to me at war with itself, because religious freedom in a liberal society includes the freedom to practice no religion.
In the column, I offer (but don't endorse) a more-commonly expressed ground for treating religious obligations as special: A legally mandated violation of a religious commandment is, to a person of faith, a more serious burden on liberty than is violation of a mere obligation of non-religious conscience to a non-religious person (or to a person who is religious but whose particular view on some matter is rooted in her conscience rather than her religion). Someone who thinks that God has commanded her not to X may experience being forced by the state to X as condemning her to eternal damnation, whereas someone who has a non-religious objection will be unhappy about mandatory X'ing but will feel less tormented.
I think that there is something to this point, at least in some contexts, but that it is both under-inclusive and over-inclusive as a ground for privileging religious grounds for exemptions. It is under-inclusive because we protect religious practices even when their practitioners do not think that violation of religious obligations results in damnation. Some religions have no concept of Hell. In others, salvation does not depend on acts. Meanwhile, if the belief that X'ing will bring enormous suffering (as experienced in Hell) is what creates an entitlement to an exemption, then certain forms of mental illness also ought to qualify one for exemptions.
Suppose that Tom has a delusional belief that he must attend each of the home games of the Green Bay Packers or else he will experience hellfire here on Earth. Tom does not hold this belief for any religious reason. It's the product of a refractory mental illness. Now Tom's government employer tells him he has to work on Sundays, meaning he can't attend Packers' home games. Under RFRA, if Tom had to be at church, he would be entitled to an exemption (unless the government could satisfy the compelling interest test), but there is no MIFA (Mental Illness Freedom Act), and so Tom has no claim--even though his beliefs mean that he will suffer a much greater burden than is suffered by a religious person who needs to go to church but whose theology does not condemn him to Hell if he fails to do so.
Accordingly, I don't think that the seriousness of the consequences to religious believers is a sufficient justification for treating religious grounds for exemptions as stronger than other grounds. Instead, it strikes me that--at least for purposes of Free Exercise and RFRA, though not for Establishment Clause purposes--people with non-religious claims of conscience ought to be entitled to exemptions to the same degree as people with religious claims of conscience. (This view can be found in the academic literature, too.)
Interestingly, that result would have been easier to achieve under the pre-Employment Div v. Smith Free Exercise Clause than it is under RFRA. For while the First Amendment singles out religion for free exercise protection, a general right of conscience is sufficiently closely related that it could be extrapolated as an unenumerated right as a matter of substantive due process or the Ninth Amendment. But there is no SDP or Ninth Amendment for RFRA. To find that RFRA protects non-religious rights of conscience, one would need to construe "exercise of religion" to mean exercise of conscience. That's more or less what the Court did with respect to conscientious objection to military service (as I explain in the column), and so I'm okay with going there, but it's a tougher linguistic move than the parallel move under the pre-Smith Free Exercise Clause.