Eugene has a new post up on Volokh Conspiracy entitled, "Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions." The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis:
"Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ ("The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm"). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as "patently frivolous." Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." Accordingly, I don't think the ACLU's current position can be accurately described as a "retreat" from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that "[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses." - Jim
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