In two major decisions, the Supreme Court expanded protections for religious liberty and narrowed the law of standing so that fewer federal lawsuits can be entertained. Six of the nine justices were appointed by Republican presidents, and a majority of those six agreed with each decision.
Conservative exultation is nonetheless subdued. One of those decisions upheld the Obamacare law. While the case was widely expected to come out this way, it’s not something conservatives who spent more than a decade opposing the law can celebrate. And the religious-liberty decision, conservatives worry, was too narrow. Conservative unease with Chief Justice John Roberts’ court is therefore persisting.
Justice Samuel Alito dissented from the Obamacare decision and wrote a concurrence in the religious liberty case that has the mood of a dissent. To my mind, he scores some real points in each case.
Current jurisprudence on who has the standing to bring constitutional challenges to laws is, as he points out, not a model of clarity and intellectual rigor. It has the feel of a set of ad hoc rules engineered to get majorities to the results they want in particular cases.
The court’s previous decisions on Obamacare have shown a stronger commitment to rescuing the statute than to any legal principle.
The religious liberty case concerned Philadelphia’s insistence that a Catholic foster care agency place children with same-sex couples. The court unanimously ruled that the city’s policy conflicts with the First Amendment, but left open the possibility that the city could cross some t’s and get what it wants. Alito wanted the court to go further, by ruling that the First Amendment demands that religious dissenters be exempt from policies that place a substantial burden on the exercise of their faith.
Ruling that way would require overturning Employment Division v. Smith, a 1990 decision written by conservative hero Antonin Scalia that most conservatives have come to regret. In that case, the court said that the state of Oregon didn’t owe unemployment insurance to two counselors it had fired for breaking the drug laws by using peyote in a religious ceremony. It said, as well, that a law that does not single out religious believers for penalties can be applied to them even if it happens to impose a burden on the exercise of their faith.
It was a highly controversial decision then: There were four dissenters, and Congress nearly unanimously passed a law to undo much of its effect. Academic heavy-hitters, including conservatives, have argued for each side of the subsequent debate.
Alito zeroes in on the chief weakness of the Scalia rule: It seems to give religious liberty less judicial protection than other parts of the Bill of Rights. Matthew Franck, a scholar at Princeton University, has elaborated on the point in an essay.
Scalia, Franck explains, envisioned two categories of government policies with respect to the free exercise of religion: invalid ones that aim to restrict it, and valid ones that may place incidental limits on it.
The justice concluded that the Constitution does not guarantee exemptions for believers from the second type of policy.
But he didn’t consider the possibility that there is a third type: policies that aren’t designed to infringe religious liberty but have such a large effect on it that they have to be struck down. And so free exercise becomes the only right that governments are nearly always allowed to infringe accidentally.
Justice Amy Coney Barrett wrote a concurrence of her own that agrees with Alito: The 1990 decision has to go.
But she also noted that the court would have to face many questions about how to replace it, questions that may not yet have answers on which a majority of justices agree.
One difficulty for them is that neither side of the debate perfectly fits the actual practice of religious liberty for most of U.S. history.
For much of that time, it was usually up to legislators to grant religious exemptions, but courts would sometimes strike down laws altogether for their incidental effects on believers. (Franck argues that’s the best way to understand the court’s decision that schoolkids can’t be forced to salute the flag.)
Given this thicket of issues, it probably made sense for the court to avoid rushing to declare a full doctrine. It was on firm ground in upholding Obamacare, too.
Alito argued that the law’s “individual mandate” for people to buy health insurance is unconstitutional, and therefore much of the rest of the law has to fall. It’s that “therefore” that is the least persuasive portion of his opinion: By getting rid of the fine for people who don’t have insurance but leaving the rest of Obamacare in place, Congress has effectively separated these parts of the law.
Where does this leave us? With a moderately conservative court, with which conservatives should be moderately pleased.
Ramesh Ponnuru is a Bloomberg Opinion columnist.
