“The Court Shouldn’t Bruen-ize the Free Exercise Clause”
I’m delighted to be able to pass along this analysis from Profs. Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee. (McConnell and Laycock are quite likely the two most prominent Religion Clauses scholars in the nation.) The Court is poised to overrule Employment Division v. Smith, and return to the Sherbert/Yoder regime, under which religious objectors have a presumptive constitutional right to exemptions from generally applicable laws. It’s therefore tremendously important to figure out what the rules are for when that presumption is rebutted; their reasoning speaks directly to that question:
With opening briefs filed this week in Mahmoud v. Taylor, the Supreme Court will have another opportunity to consider the appropriate constitutional standard for evaluating free exercise claims under the First Amendment. In Mahmoud, the Court will decide whether public schools may compel students to participate in instruction on gender and sexuality that violates their parents’ religious convictions.
Some scholars and several prominent appellate court judges have recently argued that the Supreme Court should abandon strict scrutiny and Bruen-ize the First Amendment—i.e., incorporate the Second Amendment constitutional doctrine from New York State Rifle & Pistol Ass’n v. Bruen into various parts of the First Amendment (though these arguments have largely related to the First Amendment’s speech protections).
Although we differ in some ways with respect our approach to constitutional interpretation, we all broadly support looking to the history surrounding ratification as a primary method of developing constitutional doctrines. But we have serious concerns about the Court adopting a Bruen-type historical analogue approach in the free exercise context. In our view, doing so would create a test that would be unworkable, theoretically dubious, and—ironically—inconsistent with the best historical understanding of the meaning of the Free Exercise Clause.
Bruen‘s Basic Framework
Under Bruen‘s test, to regulate protected Second Amendment activity, the government must demonstrate that its modern regulation is consistent with the nation’s historical tradition of firearm regulation. This involves a two-step inquiry. First, courts must assess whether the “plain text” of the Second Amendment applies to the conduct in question. Second, where the initial requirement is met, the government must identify historical restrictions on the right from the Founding era or the Reconstruction era (when the Fourteenth Amendment was ratified) that are “relevantly similar” to the challenged regulation in order to save the law.
Crucially, Bruen also insisted that at this second step, judges ought to eschew so called “means-ends scrutiny” and related doctrines such as strict scrutiny, compelling government interest analysis, and interest balancing. Instead, they ought to rely solely on historical analogues of regulations. Modern factual considerations, such as the government’s need to implement the regulation or the fit between the regulation and the government’s interest, are not part of the analysis (although we find it impossible to believe courts will ignore such concerns in practice).
In United States v. Rahimi, the Court clarified that Bruen‘s historical analogue approach is a search for “the principles that underpin our regulatory tradition,” not an unguided hunt for whatever historic regulations happened to exist at the relevant period. We think Rahimi‘s attempt to rescue Bruen from a focus on brute historical facts alone was a positive development. After all, originalism is a search for meaning, not history for its own sake. Even so, we do not think that Bruen‘s approach easily translates to the free exercise context, for at least two reasons.
A Bruen Approach Is Incapable of Grappling with Some of Our Nation’s Tradition that Does Not Live Up to the Meaning of Free Exercise Protections
First, Bruen instructs courts to focus primarily on “the Nation’s historical tradition of … regulation”—defining the boundaries of a right in terms of laws that existed at the relevant historical period. But Bruen‘s approach has no good way — maybe no way at all internal to its premises — to distinguish times and events when historical government regulation was honoring constitutional rights from times and events when we were violating them, sometimes flagrantly.
Just consider a few examples from the free exercise context. One: almost every state had blasphemy laws at the Founding and well into the nineteenth century. Another is that teachers caned and expelled Catholic children in public
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