Counting Heads on RFRA

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The Supreme Court has granted certiorari to decide the constitutionality of "RFRA" -- the Religious Freedom Restoration Act.(1) What will they decide? The issue is of great interest and importance for many reasons including the fact that I have a public wager with Professor Chip Lupu on it).(2) My prediction: RFRA will be upheld, without a doubt. In fact -- though this is going out on a limb -- there is a decent likelihood that RFRA will be unanimously upheld. To be safe, though, I will predict 7-2 (or better) for affirmance of the Fifth Circuit's decision upholding RFRA.

This is not a "should" argument, it is pure nose-counting. (I also think that RFRA ought to be upheld on the merits, but that is, in the main, a different question. No one would be foolish enough to think that just because a particular argument is sound it will be accepted by the justices, or that the justices' acceptance of an argument makes it sound.) What follows is a description of how the justices (probably) will reason, and why they will rule for RFRA. The analysis is presented in (roughly) the order of most likely to least likely votes for upholding the statute.

I. START WITH THE MIDDLE

The constitutionality of RFRA is one of those rare cases that could make for a strange-bedfellows, both-ends-against-the-middle coalition striking down the statute, on a combination of grounds each of which is rejected by a firm majority of the Court. For the uninitiated. The Religious Freedom Restoration Act "restores" the "strict scrutiny" test for government action that imposes a substantial burden on the free exercise of religion, even where the governmental action is facially and formally neutral with respect to religion. The Supreme Court initially embraced this test in 1963 as the correct interpretation of the Free Exercise Clause of the Constitution, in the case of Sherbert v. Verner.(3) The Court applied that standard inconsistently for a quarter century, then abandoned it (for the most part) in 1990, in a controversial opinion for the Court authored by Justice Scalia and joined by Rehnquist, White, Stevens, and Kennedy), in Employment Divison v. Smith.(4) RFRA "restores" the Sherbert test as a matter of federal statutory law -- a civil rights statute -- and mandates that that test be applied to all governmental action, including state governmental action, that results in a substantial burden on religious exercise.

The conventional thinking of the RFRA nay-sayers is that Scalia and the "conservatives" (Rehnquist, Thomas, and maybe Kennedy) hate both free exercise exemptions (that is, the Sherbert view rejected in Smith) and the so-called "Morgan Power" of Congress to enact legislation under section five of the Fourteenth Amendment that goes beyond what the Court has said are the minimum judicially-enforceable mandates of section one of the Amendment.(5) They thus count three sure (Scalia, Rehnquist, Thomas) and two probable (Kennedy and O'Connor) votes against RFRA on this ground, with the remainder to be made up from the hard left of the Court -- Ginsburg and Stevens, and maybe Breyer -- who might tend to think that any discretionary accommodation of religious exercise violates the Establishment Clause.

As I explain later, I think that both sets of arguments are mistaken, as a matter of prognostication. The "conservative" core of the Smith majority (excluding the since-retired Justice Byron White) does not consist of religion-haters or Morgan-baiters so much as deferentialists who would prefer to let legislators draft accommodation statutes. The liberal bloc may fear religious establishment unduly, but probably not so much as to topple RFRA.

Still, the nay-sayers' arguments are not ludicrous, and one could imagine a public choice nightmare under which three justices vote to strike down RFRA as in excess of Congress' power under section five (with six disagreeing with such a view), three justices vote to strike down RFRA as an Establishment Clause violation (with six disagreeing), but only three thinking it clears both hurdles. …