The Religious Freedom Restoration Act, enacted in 1993, gave religious objectors a presumptive right to exemption from generally applicable laws that violate their religious beliefs — the sort of right that the Court in Employment Division v. Smith (1990) held that they didn’t have. Tomorrow, the Court is going to hear Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Justices are likely to take their first crack at interpreting the scope of RFRA. As one of the very few people who support both RFRA (as applied to federal law) and Smith, the case that RFRA rejected, I thought I’d say a few words about my unusual perspective.

NOTE: For background on the Smith/RFRA issue, see here; the remainder of this post assumes a knowledge of that subject.

The trouble with the Sherbert-era constitutional exemption model is that it requires courts to decided deeply and inevitably contested normative and empirical issues -- and not just as to narrow areas such as free speech or searches and seizures, but potentially as to every government regulatory action (and many government funding actions). Recall that the Free Exercise Clause applies equally to well-settled, traditional religious beliefs and idiosyncratic (but sincerely held) ones (see Thomas v. Review Bd. (1981)). Thus, one can have religious objections to bans on housing discrimination, assisted suicide, the duty to testify, traffic laws, taxes, and a vast range of other actions. (For some cites, see here.) Therefore, courts will have to decide: Is housing discrimination based on marital status or sexual orientation "really wrong" (in the sense that, say, a trespass is a wrong), so that every instance of such discrimination could be barred? Is applying a hoasca, peyote, or marijuana ban across the board really necessary to prevent leakage from sacramental uses to recreational uses? Are such recreational uses really harmful?

Courts would therefore be routinely resolving -- as a constitutional matter -- basic questions of drug policy, civil rights policy, tax enforcement policy, and a wide range of other subjects, applying their moral and pragmatic judgments to trump the legislative judgment. If the Constitution clearly demanded such a role for judges, then courts would have no choice but to do this. But if the text and original meaning are at least in equipoise (and I think that Justice Scalia's opinion in Boerne makes a strong case that they are at least in equipoise, and likely against the constitutional exemption model, though see O'Connor's responses in her Boerne opinion), that's a strong argument against a constitutional exemption model, and in favor of Smith.

But RFRA, despite its name and its findings, doesn't precisely "restore" the Sherbert regime. It can't, because (1) it's just a statute that creates a statutory right. It therefore doesn't give courts the final call about whether a religious exemption ought to be carved out; if courts create such an exemption and Congress disapproves of it, Congress can always repeal it (for instance, by providing that RFRA doesn't apply to drug laws). And beyond this, (2) courts' creation of religious exemptions under the RFRA regime, unlike the Sherbert regime, won't be a matter of courts' trumping the legislature's moral and pragmatic judgments; rather, courts would be implementing the legislative judgment behind RFRA, following Congress's instructions rather than superseding them.

What's more, this sort of system in which courts make the first decision about certain moral and pragmatic questions, but the legislature can step in and make a contrary decision, is very close to the courts' traditional common-law-making role. Most tort, contract, property, evidence, and even criminal law was originally made by courts, often courts applying their own moral and pragmatic judgments. The legislatures then generally codified much (though not all) of this law, and sometimes changed in the process. But it is the joint creation of courts' and legislatures' judgments.

And even after legislatures codify certain bodies of law, they sometimes return certain questions (especially defenses) to courts' judgment -- again, later correctable by the legislature if the legislature disagrees with the courts. Thus, when Congress codified the Federal Rules of Evidence, it expressly left it to courts to craft evidentiary privileges (which is a sort of defense against a duty to testify). When Congress enacted the Copyright Act of 1976, it left it to courts to further develop fair use doctrine (again, a defense against a copyright claim). Courts have interpreted the Sherman Act, the foundation of our antitrust law, as leaving it to courts to decide which restraints of trade are barred and which are permitted, so that much modern antitrust law is in practice made by courts but subject to legislative override.

RFRA does something very similar, it seems to me: It doesn't restore the constitutional exemption model of Sherbert -- because, just being a statute, it can't restore such a model. Rather, it creates a "common-law exemption model," under which courts take the lead in carving out religious exemptions, but Congress (and, under state RFRAs, state legislatures) can repeal such exemptions if it comes to a different moral and practical conclusion than the courts did.

So, the bottom line:

(1) The "courts shouldn't trump the legislature's moral and practical judgment" (at least as to the broad range of government regulations, rather than the rather narrow set of regulations that restrict speech, allow searches and seizures, and the like) argument doesn't apply to RFRA. Even if, as Smith holds, courts shouldn't be able to impose their own views as a final constitutional matter, the common law tradition provides ample support for their creating defenses subject to legislative override -- having the first word, rather than the last. And this is especially so given that Congress has expressly delegated this power to the courts, so that they are following the legislative will by carving out exemptions, rather than simply trumping it.

(2) Courts also shouldn't be bashful about carving out such exemptions, if in their judgment the government interest isn't really compelling, or if in their judgment carving out the exemption won't much undermine the interest. They can just follow their best understanding of the strict scrutiny test, recognizing that if Congress disagrees with them, Congress can step in and repeal any exemption that (in Congress's view) was wrongly created.

In any event, this is my very sketchy summary of an argument I develop at much greater length here. For a deeper explanation for why I take the Smith antidiscrimination view of the Free Exercise Clause but take a substantive-liberty view of some other constitutional provisions, see here. For more background on RFRA, Smith, and Sherbert, see here.