August 7th, 2022


Amy Coney Barrett is trying to tell us something

Noah Feldman

By Noah Feldman Bloomberg View

Published July 27, 2021

One of the most anticipated cases of the U.S. Supreme Court term that ended this month was Fulton v. Philadelphia, which presented the conflict between the prohibition of discrimination against gay people and the religious liberty of the Roman Catholic Church.

The court ruled unanimously that Philadelphia's anti-discrimination laws as written could not require a Catholic social services agency to work with same-sex couples who wanted to become foster parents. But the justices ducked the chance to resolve the big constitutional confrontation, so the case seemed destined for obscurity.

But a closer look reveals an important development. Justice Amy Coney Barrett flexed her wings as a Supreme Court justice for the first time. She proposed a new approach to the nettlesome unresolved question of whether and how the Constitution guarantees religious believers exemptions from the burdens of laws that others must follow.

Understanding what Barrett proposed, and why, opens a window into a crucial culture war that is being waged in the courts. It also provides a tantalizing hint about how Barrett's jurisprudence is likely to develop, and its potential influence on her colleagues.

If the insight she offered in the Philadelphia case develops into a measured approach that gives conservatives some, but not all, of the items on their legal wish list, she could emerge as a center-right arbiter of the court's most important decisions on vexatious constitutional issues like abortion — putting her more in the tradition of Sandra Day O'Connor than of her intellectual hero, Antonin Scalia.

The framework for Barrett's foray into judicial creativity is a 1990 opinion by Scalia, Barrett's ex-boss and mentor. The decision, Employment Division v. Smith, held that religious people or organizations aren't entitled to exemptions from laws that are neutral and generally applicable.

The Smith case was politically unpopular from the day it was decided. Scalia and the court effectively reversed a landmark religious-liberty decision called Sherbert v. Verner, written in 1963 by the liberal Justice William Brennan. In response to the Smith decision, Congress overwhelmingly passed the Religious Freedom Restoration Act, a bipartisan effort to repudiate Scalia's opinion. (The justices resented the attack on their constitutional authority, and eventually struck down the religious freedom statute as applied to state laws.)

In the meantime, a funny thing happened. The liberal position on religious exemptions, going back at least to Brennan in the 1960s, had been that vulnerable religious minorities needed protection from democratic majorities. Liberals therefore supported the idea of interpreting the First Amendment guarantee of freedom to exercise religion to require exemptions from laws that restricted it.

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But then liberals won two historic victories. First, in the early days of Barack Obama's presidency, Congress passed the Affordable Care Act, which included provisions mandating that employers cover contraceptive care in the health insurance policies offered to employees. Religious conservatives sought exemptions. That made liberals wonder whether religious freedom had been taken a step too far.

Then, in an era-defining civil rights shift, gay rights became mainstream. The Supreme Court upheld the right to gay marriage, and many states and localities passed laws prohibiting discrimination on the basis of sexual orientation. Again, religious conservatives sought exemptions from the new laws. Now liberals found themselves entirely unsympathetic to religious exemptions that were intended to allow continued discrimination against gay and transgender people.

Legal conservatives responded by consolidating around the view that religious exemptions were necessary to protect religious liberty, not a sop to liberal protection of minorities.

In recent years, the expectation of nearly all court watchers has been that the court's conservative justices would flip the Smith rule and go back to Sherbert. With six sitting justices appointed by Republican presidents, the conventional wisdom had it, it would be only a matter of time before the court ruled that the First Amendment entitles believers to an exemption from any law that burdens their religious exercise except in those very rare cases where the government can demonstrate a compelling interest against granting it and that the law is narrowly tailored to that interest.

Justice Samuel Alito has led that charge. In the Philadelphia case, he urged that result in a 77-page concurrence that was written like a majority opinion. But to the surprise of observers on both sides, he only got the votes of two colleagues, Justices Clarence Thomas and Neil Gorsuch.

Barrett went a different way. She began her short opinion by observing that there were "textual and structural arguments" against Scalia's Smith rule that seemed to her to be "compelling." In particular, she noted that it was "difficult to see why the Free Exercise Clause — lone among the First Amendment freedoms — offers nothing more than freedom from discrimination."

This compact formulation was actually a profound critique of Scalia's opinion. What Barrett was saying is that the way to understand the flaw in Scalia's approach is to realize that he was thinking about the free-exercise clause as parallel to the equal protection clause — namely, as a protection against discrimination.

As a conservative, Scalia was concerned that anti-discrimination laws should not be allowed to go too far. His lodestar was a 1976 case, Washington v. Davis, in which the Supreme Court held that to win an equal protection case, a plaintiff must show that the government acted with discriminatory purpose. Merely showing that a law was discriminatory in effect, the court said, was not enough to count as a violation of the Constitution.

Applying this anti-discrimination-style thinking to religious liberty, Scalia concluded that the free-exercise clause should only be invoked to block laws that deliberately target religion or religious believers. That was why he adopted the principle that a neutral, generally applicable law should not entitle believers to an exemption: by definition, neutral, generally applicable laws are not targeted at anyone.

By pointing out the strangeness of importing anti-discrimination thinking into the context of the First Amendment, whose words confer freedoms to speak, pray and act rather than erecting barriers to discrimination, Barrett was articulating a principled reason to revisit the Smith rule.

But she was just getting started. Rather than assuming that taking away the Smith rule would naturally lead back to the older Sherbert rule articulated by Brennan and friendly to religious believers seeking exemptions, she said she was "skeptical about swapping Smith's categorical anti-discrimination approach for an equally categorical strict-scrutiny regime."

"Strict scrutiny" is the lawyer's term of art for the idea that a law that impinges on a constitutional right must be struck down unless it serves a compelling government interest and is narrowly tailored to serve that interest. It's a bar that is rarely surmounted.

Constitutional lawyers use the strict-scrutiny shorthand to imply that laws that abridge guaranteed liberties like the right to choose a sexual partner, to speak freely and to be protected against deliberate racial discrimination are almost always overturned. As an old legal adage has it, strict scrutiny is "strict in theory, fatal in fact." Strict scrutiny is the standard that Brennan used for laws incidentally burdening religion, and the standard favored by Alito to replace the Smith rule.

Understood in this context, Barrett was suggesting that when a neutral, generally applicable law incidentally burdens religion, it should not follow that the believer gets an exemption except in the almost unimaginable situation where the law survives strict scrutiny. By implication, a lower standard would be appropriate. Under a lower standard of scrutiny, believers might get exemptions from some neutral, generally applicable laws — but not from others.

Barrett didn't say what that lower standard of scrutiny should be. But it's possible to deduce what she's getting at by remembering that she likened the free-exercise clause to the other First Amendment freedoms. As it turns out, the law of free speech addresses situations much like those of neutral, generally applicable laws — and it contains a ready-made, lower standard of review that courts could use if they follow Barrett's direction.

Consider a situation where a law targets conduct, not speech, but ends up incidentally burdening speech. The iconic Supreme Court case that addresses the situation is O'Brien v. United States. That 1968 case involved an opponent of the Vietnam War who publicly burned his military draft card. This violated a federal law specifying that anyone "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes" his draft card would be guilty of a crime.

The point of the law wasn't to target antiwar protesters. It was to help administer the draft. The law wasn't aimed at speech. But as applied to O'Brien, it burdened his right to speak freely because it made it a crime for him to burn the card.

The Supreme Court applied what is called "intermediate scrutiny" to O'Brien's case. It didn't ask whether the government has a compelling interest, as it would if applying strict scrutiny, but whether the government has an "important" or "substantial" or "significant" interest. That's a much easier test for the law to pass.

And instead of requiring that the law be narrowly tailored to the government's interest, it's usually enough that the law be substantially related to the government's interest. In O'Brien's case, the court said that the government had a substantial interest in ensuring the integrity of draft cards, an interest served by the law. O'Brien's conviction was upheld.

Barrett was, I think, hinting that the court could apply O'Brien-style intermediate scrutiny to test the validity of neutral, generally applicable laws that happen to impose burdens on religion. In practice, that would mean that many such laws would survive judicial scrutiny. Exemptions would not be automatic, as they effectively would be under Alito's preferred strict-scrutiny test.

Advocates for religious liberty would get something through the replacement of the Smith standard. But they wouldn't get everything they want, namely a nearly impervious shield of exemptions from general laws.

Barrett's suggestion is written in a technical code that can be decrypted by constitutional scholars but not by most others. When I proposed this interpretation to my colleagues at Harvard Law School a few weeks back, they thought I might be right — but no one besides the constitutional law specialists thought it was obvious.

Nonetheless, Barrett's words provide clues about her future jurisprudence. For one thing, she is a Scalia disciple but not a Scalia clone. She was willing to disagree with Scalia's holding while respecting Scalia's impulse against giving carte blanche to religious believers enough to want to explore alternatives.

For another, Barrett showed that she thinks deeply about the relationship between different parts of constitutional doctrine – and how justices should make rules that will work in the real world. In the large body of academic writing about religious exemptions, nearly all the debate is about choosing between Scalia's rule and Brennan's (now Alito's). The possibility of considering intermediate scrutiny barely figures, if at all.

Barrett could have spelled all this out. The fact that she didn't suggests that she is testing the waters cautiously. It's a sign of judicial modesty that's appropriate for a justice in her first term.

Finally, and most important for those who care more about outcomes than about constitutional logic, Barrett appears open to crafting a judicial middle ground, rather than giving in to the extreme demands of some legal conservatives. They know that religious liberty isn't an afterthought for Barrett. She comes from a committed Catholic religious background. It would be significant if her views diverge from those of the legal conservatives who inhabit that world.

Abortion, which the Supreme Court will take up next term, will obviously become a test of Barrett's jurisprudence. It would be a mistake to make predictions about how she will approach it. Nevertheless, if Barrett remains interested in crafting judicial doctrine along the lines she started to outline this month, she may surprise those who think she is an automatic vote to overturn the court's endlessly disputed abortion-rights precedent, Roe v. Wade.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."


Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."