Wednesday, March 31, 2021

Religious Exceptions and the Deformation of the First Amendment

 by Michael C. Dorf

My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability.

During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose call to overrule NY Times v. Sullivan I recently discussed--are in favor of greater liability for defamation, while Powell's motion to dismiss would nearly shut down such liability. Some readers will likely have a more cynical reaction; the juxtaposition is not simply ironic but hypocritical, they will think. I have no current interest in pushing back against that view.

Instead, I want to use the balance of today's essay to discuss another current flashpoint involving the First Amendment--about how to treat religiously motivated claimants seeking exceptions from general rules. For this topic, I'll take as my point of departure last week's Sixth Circuit ruling in Meriwether v. Hartop, which permits a First Amendment lawsuit by a professor at a state university who refused to call a trans student by her preferred pronouns.

Before coming to the Meriwether case, I'll give a very summary sketch of the lay of the land. I suspect most regular readers of this blog will find it familiar.

From roughly the early 1960s until 1990, the Supreme Court construed the Free Exercise Clause to require that governments excuse people whose practice of religion was substantially burdened by a law or policy to give them exceptions from the law or policy, unless the government could show that the law or policy was the least restrictive means of achieving a compelling interest. The Court rarely actually applied that test to provide for  exceptions, but that was the formal rule.

Then, in 1990, in Employment Division v. Smith, the Court in an opinion by Justice Scalia said that the Free Exercise Clause was only an anti-discrimination principle. If a law applied to everyone, i.e., if it didn't single out religion or religious people, wasn't motivated by anti-religious animus, and was applied even-handedly, then no one could claim a First Amendment right to exceptions. Smith was not partisan when it decided, except to the extent that conservatives tended to like it and liberals tended not to. However, over time, conservatives came to dislike Smith (and liberals came to accept it), mostly because the people seeking religious exceptions were increasingly religious Christians rather than, as in Smith itself, practitioners of minority faiths (there Native Americans who engaged in a peyote ritual). Accordingly, in recent years, various conservatives have called for Smith's overruling. They might succeed, perhaps as early as the current Term.

Not content to wait for Smith's overruling, conservative lawyers, judges, and justices have been construing their way around it. The maneuvers take three main forms: (1) In the COVID and other cases, the Court has increasingly treated the granting of any exceptions for secular enterprises as conclusive evidence of discrimination; (2) lawyers successfully raise free speech claims on behalf of religiously motivated speech; and (3) courts rely on sketchy evidence of anti-religious bias. I have written at some length on this blog about (1) (here, here, and here). Accordingly, in the balance of today's essay, I'll focus on (2) and (3), which are both implicated by Meriwether.

The Meriwether panel recites a version of the facts that is highly sympathetic to the professor-plaintiff. Not knowing the actual facts, I'll offer a skeletal version: After some backing and forthing, a state university told a faculty member that he had to call on students by their preferred pronouns; he offered to do so but only on condition that he get to include in his syllabus a disclaimer "noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity," which are exactly what you imagine they are. The university found that offer inadequate and inconsistent with the respect towards people's gender identity that the pronoun policy itself was meant to convey. Various proceedings and appeals ensued, ending with the professor receiving a formal written reprimand. Because he feared that the reprimand could be used as the basis for more serious discipline (such as dismissal), he sued. The district court dismissed the complaint, but the Sixth Circuit reversed, finding that he had adequately alleged both free speech and free exercise claims.

Although there is some useful and sensible language about academic freedom in the panel opinion, I am overall dubious about the bottom line. That said, I am not now interested in the merits per se. Rather, I want to note simply that the case would be cleaner and less dangerous if Smith were overruled.

If Smith were overruled, the case would be straightforward. The court would first inquire whether the professor feels a sincere and religiously motivated obligation to refrain from calling trans (and non-binary and other students) by the pronouns they prefer. Presumably the answer would be yes. At that point, the issue would simply be whether the state's interest in ensuring a welcoming learning environment is compelling and, if so, whether the pronouns policy is narrowly tailored to serve it. 

Because Smith isn't the law, that's not how the case proceeded. But because conservative judges nonetheless feel considerable sympathy for people like the professor plaintiff in the case, neither did the court say, as the Smith Court itself said, "sorry, you lose; try the political process."

Instead, by recognizing a free speech right, the court greatly expanded the universe of potential claimants. How many faculty at state universities are uncomfortable calling people by pronouns that do not correspond to their sex assigned at birth? I don't know the answer to that question, but it shouldn't be relevant to any legal question. Sometimes there are things that people must do as part of their government (or other) jobs even though it makes them uncomfortable. Only a small fraction of those people will actually have a bona fide religious objection--in the sense that complying with a job condition violates some religious obligation. But just about everyone who is merely uncomfortable will be able to claim truthfully that they would rather not engage in the uncomfortable activity. Where that activity is expressive (as in the pronouns one utters), the discomfort is elevated to a free speech claim. The inevitable efforts to circumvent Smith lead to a very substantial expansion of the group of people potentially eligible for exceptions.

To be sure, the Sixth Circuit conceptualizes its holding as a special academic freedom exception to stricter limits on employee speech. However, the reconceptualization of religious freedom claims as free speech claims occurs in a great many contexts that do not include the limits on employee speech. For example, religious plaintiffs who bring free speech claims in opposition to public accommodations laws are not constrained by the employee speech doctrine.

Speaking of such cases, in Meriwether, the Sixth Circuit cites the Masterpiece Cakeshop decision. Readers will recall that that case was argued chiefly as a free speech case, although the Supreme Court ultimately decided it on free exercise grounds. The Court found that some comments by two member of the Colorado Civil Rights Comm'n expressed hostility to religion (even though they pretty clearly didn't).

Likewise, Judge Thapar writes for the Sixth Circuit in Meriwether that university officials expressed hostility to the professor's religious beliefs. Here, at least, the evidence of hostility is more substantial than in Masterpiece, but it still should probably be irrelevant, as there is really no serious case to be made that the university adopted or applied its pronouns policy because of any hostility to religion. The best that can be said for the opinion on this point is that it depends on the case's procedural posture: on a motion to dismiss, the court must accept the non-moving party's allegations as true, and here the professor alleged that the hostile comments were causal. That's almost certainly false, as perhaps the university will be able to establish through discovery.

However that all shakes out, the very inquiry into supposed hostility to religion is an effort to circumvent Smith. If plaintiffs can point to hostility to religion, they can get the strict scrutiny to which they would be entitled merely by showing a substantial burden on their free exercise if Smith were to be overruled.

The search for evidence of illicit motive has harmful consequences. In addition to adding to the complexity of litigation because motive is difficult to prove, it tends to reinforce the victim narrative that FoxNews talking heads emphasize in their annual denunciation of the (fictional) War on Christmas and that the likes of Justice Alito propounds both from the bench and when speaking to likeminded practitioners of right-wing grievance politics.

My fellow liberals may worry that overruling Smith would license the courts to grant religious exceptions to important programs, especially those that promote equality. But as cases like Masterpiece Cakeshop and Meriwether show, conservative jurists are already enjoying such license. Overruling Smith would promote honesty, reduce the number of claimants (by channeling litigation into the more limited religious track rather than the open-ended free speech track), and limit the destructive invocation of conservative religious grievance politics.


  1. "overruling Smith would promote honesty"

    Only so far. A consistent application of the rules that are sought out would be simply unworkable. Even trivial burdens ("burdens" really) are seen as problematic.

    What happens then is a selective application of the rules which in the long run is a form of religious favoritism.

    Smith was unfortunate. The case could have been decided in a narrow way and what really was at stake was not a broad criminal legal decision, but a more nuanced administrative policy involving unemployment benefits and usage by a select group of people. General criminal usage of peyote was simply not the issue.

    We can debate the broad questions here -- so, e.g., Prof. Segall will support a narrower view of the Free Exercise Clause overall -- but the best approach for me if possible is a narrow rule in these cases. As to the trans issue in the cited case, I'm not sure how far overruling Smith will matter. West VA v. Barnette comes to mind. The famous pledge case was treated as a free speech case. The issue here also can be treated as such. The religious liberty exception issue is something of a sport.

  2. Mike, why do you think that religious objections to the pronoun policy should get a more favorable review standard than non-religious ideological objections- namely, a philosophical belief that there are only two biological sexes and that individuals who so believe shouldn't have to speak otherwise merely to accommodate the contrary views of transgender individuals? Why would the free exercise clause grant a greater right to accommodation from a pronoun policy than the free speech clause? This is part of why I don't understand objections to Smith.

  3. I agree with a lot of what Joe says.

    Also, on the illicit motive point, I'm not exactly the first to say this, but it has to come with a disclaimer: "results my vary, offer generally not valid for minority religions or Christianity other than as practiced by reactionary cishet white men. See, e.g., Trump v. Hawai'i."

    You can't discuss this topic without mentioning RFRA either. If Smith is overruled then we'll finally come full circle and get the result at the state level that couldn't be accomplished via RFRA.

    Finally, it's a bit OT, but there seems to be an utterly delicious—and so in character for Powell and her cohort—typo on the very first page of her motion in the 3rd paragraph: "Although not required for dispositive motions, the parties conferred pursuant to Local Civil Rule 7(m). The defendants oppose this motion."

  4. (1/2) Smith as a departure point to understanding how we end up with Masterpiece and Merriwether makes excellent sense. Prior to Smith, most free exercise cases treated an accommodation that had no real impact on other people. Allowing a religious person to wear religious garb at work or to have an exemption to observe a religious holiday, for example. Cases such as Sherbert v. Verner made clear the state could not punish the exercise of religious practice, and the many prayer cases held that the state cannot coerce participation in religious activity. When the Establishment Clause existed and was actually enforced, the Court took a clear line of neutrality on siding with or against any religion or no religion, while at the same time understanding the Free Exercise Clause to allow accommodation when it imposed no real burden on others.

    Smith really should have followed those cases, but it did not because a majority of the Court felt that allowing religious use of peyote in violation of the law a step too far (this was the height of the War on Drugs era). On the slippery slope, it foresaw a short line to ritual human sacrifice. What it did not see was the sanctioning of serving alcohol to minors at Passover or Easter. So we had legislative action (RFRA) to try and restore the proper balance.

    The lesser known religions, those outside of the mainstream, have made major case law for a reason -- the fear of something too "out there" always caused a clash. But the issue really in those cases came down to harm. Polygamy is a no go because of the harm to women and children involved; in Smith the indiscriminate use of peyote. Underneath all of this is the idea that only mainstream religions get full accommodation (that was the problem with the Sunday Blue Laws). But who gets to draw that line? And where does it end? When we leave the harm principle, we get the "reverse harm" principle -- society must bend to others' beliefs rather than simply carve out neutral space for different beliefs.

    The professor in Merriwether doesn't like trans folks. He bases that on sincere religious belief. Okay, he has a right to his beliefs, but not the right to force those beliefs on others. Many anti miscegenation laws were based on religion, but we managed to get past that in Loving and recognize a broader right not to discriminate on race. If you don't like mixed race marriages, you cannot find refuge in the First Amendment to stop their union. That led to Lawrence and Windsor and Obergefell and the recognition of gay marriage despite strong religious-based arguments.

  5. (2/2) The danger I see in Merriwether in if we start with saying etiquette becomes a constitutional issue, we reverse course on the central tenet of the Equal Protection Clause and the Establishment Clause (RIP). Does Miss Manners win on pronouns, or does the professor? What harm comes to him by not acting in a disrespectful manner to a student? To write that question answers it. What harm comes to a cake seller who refuses to sell to a gay couple? Why should snowflake sensitivity inform the First Amendment? Why do those who mock political correctness and cancel culture seek victimhood status in the First Amendment for what some see as bigoted beliefs, no matter how sincere?

    Merriwether is just another move using viewpoint discrimination as a tool to truly eradicate the explicit neutrality of the Establishment Clause, and until the courts revive it, where will the preferred status for certain religions end? That is the real slippery slope from my perspective. If we make an objective assessment of religious belief, sincerely held or not, off limits (as we currently do), we will see more people trying to force the law to give their views protected status. The irony baffles the mind.

    We must no longer conflate free speech cases as religion cases. We must take equality and neutrality seriously. The balance of the harms seems the best test to me. Ceremonial use of peyote by Santerians causes minimal social harm and will not lead to a massive increase in Santerians just to use peyote. Baking a cake with a happy message regardless of the gender or race of the people getting married causes no religious offense because it does not burden religious exercise. Cake baking is not in the Bible. Offending one's religious thoughts is not an act of discrimination, only offending religious practice. Baking a cake for a gay couple does not coerce belief like a state sanctioned prayer at graduation. And if the First Amendment says this professor can disrespect a trans person as a religious exercise, the First Amendment has turned accommodation into persecution and makes a mockery of one of the most terse yet eloquent defenses of freedom of belief in the history of civilization.

  6. I am still unclear why Hobby Lobby v. Burwell did not itself overrule Smith v. Oregon. How could Scalia sign off on Hobby Lobby, in other words? To what extent did the 1993 Religious Freedom Restoration Act moot his own prior beliefs?

  7. Jason: Thanks for these excellent comments.

    NJL: Hobby Lobby was an interpretation of RFRA, not free exercise. Boerne invalidated RFRA as applied to state and local laws, not federal statutes.

    Hash: You are asking why religion is special. Some people think it isn't. Others think religious obligations are felt more strongly. Still others (or some of the same people) regard religious obligations as implicating quasi-sovereign notions; secular obligations sometimes must give way to religious ones. Justifying (or arguing against the justification for) religious exceptions would take much more than a blog post comment. Whatever the general answer will have whatever force it has in other context with respect to speech as well. My point was simply that it would be better if those judges and justices who think religion is special (and there are clearly many such judges and justices) could say so forthrightly.

  8. Thanks Mike. I was asking a slightly different question though. I understand as a policy matter why one might distinguish between religious exemptions and non-religious ideological exemptions. But I dont understand how to draw that distinction under the 1A - there's no textual basis for distinguishing among the protected rights, and nor is there any historical basis with respect to exemptions from neutral laws. But you seemed to be taking as given that, if smith were overruled, that would be only for religious objectors, not speech objectors - perhaps I misunderstood you though.

  9. Just to test it out, suppose Smith is overturned and we have this (admittedly a bit far fetched) scenario:

    A public school creates a policy whereby classroom seating arrangements must be "integrated" - i.e., teachers must make a good faith effort to ensure kids from different ethnic backgrounds sit next to each other.   

    A teacher refuses, because in his view the Bible requires "segregation of the master and subservient races." "Look, I can accept that these kids are all assigned to my class - but forcing me to integrate them within my space violates a core religious belief..." 

    Surviving strict scrutiny is tough. Even assuming integrated classroom space serves a compelling need, I could see conservative judges moving the goalposts all over the place on whether this policy is the most narrowly tailored. And that risks opening up a whole new transit lane for judicial activism that is ostensibly couched in religious freedom, but which actually works as a means to erode anti-discrimination (equality) principles.

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  12. I totally agree that overruling Smith would promote honesty. I'm not sure this is a context in which it would promote honesty, but, although I disagree with you on the particulars of certain cases, there's undeniably a lot of contortion in some Free Exercise cases to get around Smith and find non-neutrality where it doesn't exist.

    It may be, however, that dishonest evasion of Smith can only go so far, or is only practiced so often, and that imperfect fidelity to Smith, plus a certain amount of dishonesty, is better than no Smith and more honesty. It's probably the case of any important precedent that many judges don't like that overruling it would promote honesty; overruling Chevron would very obviously promote honesty about ambiguity, for example. Though I value judicial candor, we probably shouldn't get in the habit of overruling precedents in order to give dishonest judges fewer reasons to be dishonest. I still think that we're better off with imperfect fidelity to Chevron in the lower courts, very little of it in the handful of Chevron cases that reach the Supreme Court, and a fair amount of dishonesty. The same might be true of Smith.

    On the other hand, overruling Smith might actually help governments win some Free Exercise cases; the dishonesty judges are forced to engage in about neutrality to get out of Smith make it impossible for the government to prevail on strict scrutiny on the back end, because the court will have already found, on frequently bogus grounds, some sort of underinclusiveness problem. If the question were just whether those supposed underinclusiveness problems vitiate narrow tailoring, at least the outcome wouldn't be predetermined.

    Like Hash I don't see why a free-speech claim here should be treated less favorably than a post-Smith free-exercise claim, though I don't see it for policy reasons.


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