Barrett Confirmation Could Cement Shift in Religious Freedom Law

By Andrew R. Lewis and Daniel Bennett

With Amy Coney Barrett replacing Ruth Bader Ginsburg on the United States Supreme Court, much of the country’s attention has been on abortion and the potential for Barrett to cast a decisive vote to overturn Roe v. Wade. While the status of Roe is certainly a major issue as Barrett joins the Court, her views on another precedent – this one involving religious freedom – could pave the way for big changes in the legal culture wars.

In 1990, Antonin Scalia, for whom Barrett was a clerk, authored Employment Division of Oregon v. Smith, which held that the First Amendment’s protection of religious exercise did not require individuals to be exempted from laws that were enacted and applied neutrally, not targeting religion. The Smith decision effectively weakened religious freedom rights, altering established legal precedent that had been in place for decades.

In response to Smith, religious freedom advocates and civil liberties organizations quickly pushed Congress to pass the Religious Freedom Restoration Act (RFRA), which provided greater legislative protection for religious freedom (though, after a legal battle, RFRA now only applies to the federal government). It was under RFRA that the Supreme Court ruled that the Hobby Lobby retail chain did not have to provide certain contraceptives to its employees under the Affordable Care Act, citing that the government did not narrowly tailor the ACA to accommodate the sincere religious beliefs of the Green family, which owns Hobby Lobby.

Smith, and later cases that affirmed it, were authored by conservatives and supported by many in the conservative legal community. However, as concerns over religious freedom rights have grown on the right, especially among conservative Christians, there has been a push to overturn the Smith decision. This is an area of law where religious conservatives seem to have altered the approach of the broader conservative legal movement. Several conservatives have lamented Smith as Scalia’s worst opinion, and Samuel Alito recently signaled that it is time to revisit the Smith ruling.

Overturning Smith would be an important change for religious freedom litigation, especially as Democrats in Congress have sought to limit RFRA’s religious freedom protections in instances of LGBTQ non-discrimination. If the Court develops a new religious freedom doctrine requiring the government to provide a compelling interest and employ the least restrictive means when limiting religious freedom (effectively returning to the pre-Smith standard), it would open up many more avenues to litigate conflicts between religious individuals and non-discrimination protections, especially concerning LGBTQ rights. These cases would no longer have to fall under the federal RFRA or similar state-level laws. Simply put, overturning Smith would be a major victory for religious freedom advocates at a time when conflicts between religious freedom and LGBTQ rights show no sign of dissipating.

At September’s Rose Garden ceremony announcing her nomination, Barrett identified with Scalia’s approach to the Constitution, saying that “[his] judicial philosophy is mine, too.” Though it remains uncertain whether she would break with the late justice in her approach to religious freedom, there are signals that she is quite favorable to an expansive view of religious freedom. Barrett has ties to the conservative Christian legal movement, especially Alliance Defending Freedom, which has urged the Court to reconsider Smith. She also supported the religious freedom rights of employers to not provide contraceptive coverage. As a judge on the Seventh Circuit Court of Appeals Barrett supported a broad application of the ministerial exception, preventing religious institutions from facing non-discrimination challenges, and she recently joined a ruling declaring that religious speech has a privileged First Amendment position.

Barrett’s view of Smith and its progeny is unclear, and her recent confirmation hearing did little to address this important question. But we will not have to wait long to find out what she thinks. On November 4 the Court will hear Fulton v. City of Philadelphia, which asks whether a city can bar a Catholic agency from placing children in foster homes because of its refusal to license same-sex couples as foster parents. As part of this case the justices will weigh whether Smith ought to be overturned in favor of a return to the compelling interest standard established three decades earlier. And given Barrett’s affinity for Scalia, it is indeed ironic that Fulton will be one of her first cases as a new justice.

Just as Barrett’s treatment of Roe will impact our cultural politics, so too will her approach to Smith. While Congress and the president may one day weaken RFRA’s protections relative to non-discrimination policies, a return to the compelling interest standard in free exercise jurisprudence would render this shift relatively meaningless. It is unfortunate that, during her confirmation hearing, the American people were not treated to questions about Barrett’s views on this important issue. But with Fulton looming, it won’t be much longer before we know for sure.

Andrew R. Lewis is an associate professor of political science at the University of Cincinnati. He is the author of The Rights Turn in Conservative Christian Politics: How Abortion Transformed the Culture Wars (Cambridge, 2017). He is on Twitter at @AndrewRLewis.

Daniel Bennett is an associate professor of political science at John Brown University. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement (Kansas, 2017). He is on Twitter at @DanielRBenn.

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