How would Smith have decided Hobby Lobby?

That’s the question I’m wondering as I watch the unfolding of this latest turn of events in American religious freedom jurisprudence. It’s one of those impossible-to-answer hypotheticals, of course, but here’s the deal:

In 1990, the Supreme Court issued a 5-4 ruling in the case Oregon v. Smith (henceforth Smith), authored by Justice Scalia. At issue in this case was whether or not the state of Oregon was obliged by the First Amendment’s “free exercise” clause to create an exemption in its anti-drug laws for the religious use of peyote. Scalia and the four other justices who joined his ruling threw out earlier precedents (well, Scalia denied he was doing that, but it looked that way to lots of other people, including the four justices who dissented from his logic) to argue that government is simply not obliged to provide religious exemptions for generally applicable laws. To admit a constitutional right to religious exemptions, Scalia argued, would open the door to anarchy in a society as religiously diverse as ours.

Lots of people were alarmed by the Smith decision, across the political spectrum. That led Congress to pass the Religious Freedom Restoration Act (RFRA), which legislatively reinstated the pre-Smith judicial test that Scalia’s ruling had overturned. In other words, Congress required state and federal governments to submit their laws to a standard of strict scrutiny when it came to their effect on religious practice: laws could not impose a substantial burden on people’s religious practice without a compelling state interest. Simply put, government had to show a really good reason not to allow a religious exemption to a law. Of course, whether or not government had such a reason would be subject to dispute on a case-by-case basis (the specter of anarchy that Scalia had invoked in Smith.)

Eventually the Supreme Court ruled that Congress had the constitutional right to hold the federal government to the RFRA standard, but it didn’t have the power to impose that standard on state governments. So RFRA now applies to federal laws but not to state laws. (Some states have responded to this latest ruling by voluntarily passing their own versions of RFRA.)

Hobby Lobby’s appeal for a religious exemption to the Affordable Care Act was based on RFRA; Justice Alito’s ruling in favor of Hobby Lobby was therefore also based on RFRA. And there’s where my historical hypothetical comes into play. What if there had been no RFRA? What if the Hobby Lobby case had had to be decided by the logic of Smith?

In 1990, Scalia argued that people are not entitled to religious exemptions to generally applicable laws. In 2014, Scalia joined the Alito majority in granting such an exemption to Hobby Lobby. Now certainly Scalia could fend off accusations of hypocrisy by arguing that RFRA had tied his hands. I still believe, he might tell us, that the “free exercise” clause doesn’t entitle Hobby Lobby to a religious exemption. But, he might continue, Congress has passed a law–RFRA–that requires me to judge Hobby Lobby’s case by a different standard.

Still, I can’t help but wonder (by which, of course, I mean “suspect”) if, in the absence of RFRA, Scalia and other conservative Catholics would have found some clever way to give Hobby Lobby its exemption, even under the rule of Smith. Smith, as a peyote-use case, was a natural cause célèbre for libertarians. Hobby Lobby is a natural cause célèbre for religious conservatives. As I’ve observed elsewhere, the argument in favor of a “compelling state interest” standard for claims to free religious exercise–that is to say, the argument against the principle laid down by Scalia in Smith–is increasingly being heard from religious conservatives concerned to roll back secularism. Scalia and other conservative justices have likewise shown themselves to be concerned about rolling back secularism, at least when it encroaches on Judeo-Christian privilege. So: absent the convenient “out” afforded by RFRA, would Scalia and like-minded conservatives on the Court have applied the rule used to deny peyotists a religious exemption in 1990 to likewise deny Christian conservatives the religious exemption they sought in 2014?

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