The great RFRA reversal

Great liberal reversals. From Iran the enemy to Iran the Obama friend. From pro-life (Jesse Jackson, Ted Kennedy, others) to pro-abort. Now, one more: from pro–religious freedom to anti–religious freedom?

A quarter-century ago, the ACLU and Supreme Court Justice William Brennan supported religious exemptions from generally applicable laws. Brennan wrote in Sherbert v. Verner that only a “compelling state interest” justifies even “incidental burden[s] on the free exercise of appellant’s religion.” Limitations of that freedom should come only after “the gravest abuses, endangering paramount interests.” Governments should show that “no alternative forms of regulation would combat such abuses.”

Conservative Justice Antonin Scalia opposed the Sherbert religion exemption because he foresaw the “prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Scalia wrote the majority opinion in the 1990 Employment Division v. Smith ruling, declaring his opposition to general religious exemptions. The idea was that all kinds of cults would push for exceptions and turn laws into Swiss cheese. Eugene Volokh quoted from Sherbert and Smith in a Washington Post column posted yesterday.

The ACLU still states, “Religious freedom is a fundamental human right that is guaranteed by the First Amendment’s Free Exercise and Establishment clauses. It encompasses not only the right to believe (or not to believe), but also the right to express and to manifest religious beliefs. These rights are fundamental and should not be subject to political process and majority votes. Thus the ACLU, along with almost every religious and civil rights group in America that has taken a position on the subject, rejects the Supreme Court’s notorious decision of Employment Division v. Smith.”

That’s high up the ladder of abstraction. When we come to specifics like “bridal salons, photo studios, and reception halls closing their doors to same-sex couples planning their weddings,” the ACLU tune switches, because “religion is being used as an excuse to discriminate against and harm others.” But is it a “compelling state interest” that Christian cake makers bake a particular cake? Is the refusal of a photographer to shoot a same-sex wedding one of “the gravest abuses, endangering paramount interests?”