Sahil Kapur believes that Justice Scalia’s past will create a problem for him in the HHS mandate case. In 1990, he wrote a decision holding that the First Amendment does not entail a right of religious believers to exemptions from generally applicable and otherwise valid laws. He went so far as to suggest that it would be “courting anarchy” to read the First Amendment to confer such a right. How, then, can Scalia now rule that religious objectors should be exempt from the HHS mandate?
I don’t see the problem here, and I doubt Justice Scalia will either. He won’t need to rule that the objectors have a First Amendment right to an exemption from a law to find that they have a statutory right (under the Religious Freedom Restoration Act) to an exemption from this regulation.
Nor is Scalia’s specific language in the 1990 decision an obstacle to this conclusion. His 1990 cautions about the dangers of an absolutized principle of a constitutional right to religious exemptions were correct. Those dangers are less likely to present themselves—and note that Scalia’s opinion itself mentions the contingency of the dangers—when the principle is embedded in a law that can be revised more easily than a constitutional provision and includes words of qualification.
This is as good an occasion as any for me to respond to one line of criticism of my own recent writing on religious freedom. I noted that liberals had changed their minds on the issue, becoming markedly less supportive of religious freedom in recent years since the days when Ted Kennedy was leading the charge for the RFRA. One response from liberals was that they had not retreated an inch from the defense of individuals’ religious freedoms but were objecting only to the attempt to grant those freedoms to corporations. I think you’ll search in vain for any comment by liberals during the debate from 1990 to 1993 that suggested that the RFRA would not protect people organized corporately. But even aside from that issue, the fact is that some contemporary liberals are objecting on principle to exemptions for anyone: My article cited Brian Beutler, and if any liberals have criticized him on this point I haven’t seen it. For that matter, I don’t recall that many liberals in the early 1990s approvingly cited Scalia’s words.
The other line of criticism of my writing was that it was conservatives who had changed their opinions. Mark Silk of the Religion News Service made this argument and Steve Thorngate of the Christian Century seconded it. Justice Scalia’s decision is their main piece of evidence. Liberals, they say, are just as intent as they have ever been on protecting the religious freedom of small minorities like the peyote-smokers in the 1990 case; witness their defense of Muslims who sought to build mosques against recent attempts to block them. They claim that conservatives have warmed to the defense of religious freedom—and even the defense of corporations who are (allegedly) imposing their religious views on employees—because now it’s their consciences that are being burdened.
I’m happy to give liberals credit for opposing legal restrictions on Muslims, but I don’t think it makes any sense to extend fewer rights to a minority the larger it is. And Silk and Thorngate are just wrong about the history of conservatives on this question. I wrote about that, too, recently:
The decision came in for substantial criticism. The liberal legal academy was mostly hostile. So was the conservative movement. The late Father Richard John Neuhaus wrote in the pages of National Review that the “fear of anarchy . . . is the conventional argument against all freedoms.” Other conservatives argued that the decision was right, and that we should stick with the traditional, pre–Warren Court practice of letting legislatures grant accommodations in particular cases, known as “conduct exemptions,” rather than having judges try to devise a rule and apply it across the board. (The Volstead Act implementing Prohibition, for example, exempted the religious use of alcohol, as in Catholic communion.)
The opponents won the political argument. . . .
Indeed they did. The RFRA had the support not just of liberals such as Ted Kennedy and Chuck Schumer but of 99 percent of the conservatives in Congress. They were well aware that it was a law against peyote that was at issue in the case that gave rise to the bill.
Conservatives have been divided over the best way to protect religious freedom: constitutional or statutory, legislative or judicial. Almost all conservatives have believed, at every point in the last few decades, that laws should avoid forcing religious believers into violating their consciences whenever possible. That has not changed. On the substantive question, what has changed is the liberal view; opinions will differ on whether that change is for better or worse.
Update: James Taranto’s post on these issues is worth a look.