Defining the Right: Threshold Burden on Religious Exercise

Any formulation of a right of exemption under the Free Exercise Clause involves two critical components. First, what is the threshold burden that claimants must establish to be entitled to relief? Second, what are the limits to the right? No matter how strongly we envision free exercise protections, claimants cannot be guaranteed relief in every case where the government has impinged on religious practice. There must be some threshold level of burden for relief, and even when this threshold is met, there will be cases where an exemption will place burdens on others or involve collective costs that are too great. We need to know what this threshold is and what these limits are.

I have already said something about the threshold burden that free exercise claimants must assert in order to receive an exemption. I have proposed that we limit a strongly protective right to situations where the government has burdened practices that are essential to the believer's relationship to the divine however the believer understands this connection. If we do so, we can reduce the potential for chaos associated with the right and also provide strong protections where matters that go to the heart of religious faith are involved. We can also do this in a way that treats all faiths equally and does not disadvantage nontraditional belief systems.

As I have discussed earlier, the threshold question should not be whether a practice is central or mandatory or even especially important within a religious tradition or within the believer's own interpretation of that tradition. Answering this question would entangle courts in religious matters. Nor are we looking for some set of practices that play a central role across religious traditions, such as practices associated with extra-temporal consequences like entry into heaven.Footnote ³ We do not have that kind of convergence among the world's religions. Rather, the question is whether the practice at issue is, for the believer, a religious demand that plays an essential role in their connection with the divine however they understand this reality or power and however they seek union or communion with it. The inquiry is about how the practice functions in the believer's spiritual life. Courts can evaluate the sincerity of the plaintiff's free exercise claim, and I will say more about this later in the book. However, they cannot challenge the plaintiff's understanding of religious truth or how the plaintiff envisions the role of religious practices in his or her spiritual life. As the Court has said, in America, “[t]he law knows no heresy, and is committed to the support of no dogma.”Footnote ⁴

There are some belief systems that nearly everyone would identify as religious that do not envision liberation or fulfillment in terms of a divine-human connection. When I address the definition of religion for free exercise purposes in Chapter 10, I will argue that the right of religious exemption I defend in this book should extend to these belief systems. There are not many traditions like this, and the Hinayana branch of Buddhism is the only example among the major world religions today.Footnote ⁵ However, excluding a tradition like Hinayana Buddhism from the definition of religion under the Free Exercise Clause would raise serious concerns about religious equality as well as administrative problems for courts. Of course, where a belief system does not envision human liberation or fulfillment in terms of a divine-human connection of some sort, we cannot require a burden on a practice that is essential to such a connection. The appropriate question in these circumstances is whether the practice at issue is essential to human liberation, fulfillment, or salvation as the claimant understands it.

In addition to asserting a burden of a certain kind, claimants seeking an exemption under the Free Exercise Clause should also be able to show that the burden is sufficiently weighty as well. Construing the Free Exercise Clause to require an exemption anytime the government impinges on a practice that is essential to the believer's relationship with the divine is neither feasible nor necessary. Minor burdens on such practices should not be sufficient to mandate relief.

Under the traditional compelling state interest test, courts have required a “substantial” burden on religious exercise.Footnote ⁶ A substantial burden on religious exercise could come in the form of a law or regulation that prohibits the believer's religious activity altogether. In Sherbert v. Verner, the Court recognized that a substantial burden on religious exercise could also be indirect.Footnote ⁷ In Sherbert, the claimant lost her job because of a religious objection to Saturday work, and she was denied state unemployment compensation because the state found that she failed without good cause to accept suitable available work.Footnote ⁸ The Supreme Court in Sherbert observed that the application of this requirement to Sherbert “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”Footnote ⁹ The Court concluded that this choice placed a substantial burden on religious exercise.Footnote ¹⁰ The Court compared the burden to a “fine [on] Saturday worship”Footnote ¹¹ and observed that “the pressure upon [Sherbert] to forgo [her] practice is unmistakable.”Footnote ¹²

Requiring the claimant to establish a burden on religious exercise that is substantial makes sense. Exemptions for believers often place costs on others, and these costs can be considerable. Respecting conscience means a willingness to absorb these costs, but the believer should also show that the government's actions have a meaningful impact on his or her religious activity and that the impediments to religious practice are significant.

It also makes sense to interpret this requirement to include indirect burdens as well as direct prohibitions of religious practice. As the Court recognized in Sherbert, the effect of a law or regulation can be to impede religious practice even if it does not contain an outright ban.Footnote ¹³ Courts should look for burdens that place significant pressure on the believer to change their behavior. In Sherbert, this pressure was the result of conditions on the receipt of government benefits that forced the claimant to choose between her religious practice and benefits eligibility. Other types of legislation or regulation could also have the effect of requiring a believer to choose between following their faith and retaining or obtaining a good of substantial value. For example, in Goldman v. Weinberger, an Air Force regulation prohibiting the wearing of headgear while indoors forced a Jewish officer to choose between retaining his commission and following his faith.Footnote ¹⁴ In other cases, the effect of a government law or regulation may be to place a substantial penalty on religious practice. Founding era restrictions on officeholding to Protestants or Christians or theists functioned this way. As I discussed earlier, many Americans in the early republic did not consider such civil disabilities to be violations of liberty of conscience. However, the concerns underlying their commitment to freedom of conscience extended further. While most states in the very early years of the new nation retained religious tests for officeholding, many states quickly abandoned or relaxed these restrictions in the decade following the adoption of the federal Constitution.Footnote ¹⁵ Americans recognized that indirect burdens on religious exercise can strongly discourage religious practice just as direct suppression can.

Over time it will be helpful if courts identify types of situations where religious believers are likely to experience significant pressure to alter their behavior. Government can substantially burden religious practice in many different ways. Identifying situations where substantial pressures are likely to exist can help refine a standard that may otherwise seem very open-ended. The Court did this in Sherbert and in several subsequent cases when it granted relief to claimants whose religious objections to Sabbath work or other types of work made them ineligible for unemployment compensation benefits.Footnote ¹⁶ According to the Court in Thomas v. Review Board, the government may not “condition[] receipt of an important benefit upon conduct proscribed by a religious faith, or…den[y] such a benefit because of conduct mandated by religious belief.”Footnote ¹⁷ Such conditions “put[] substantial pressure on an adherent to modify his behavior and violate his beliefs.”Footnote ¹⁸

Courts might also identify some types of burdens that, while substantial, are not covered under a right of exemption. The Supreme Court did this in Bowen v. Roy and Lyng v. Northwest Indian Cemetery Protective Association when it held that the Free Exercise Clause protects individuals from being compelled or pressured to believe or act in a certain way but not from burdens that are the result of how the government conducts its own internal operations or manages its own land.Footnote ¹⁹ Such carve-outs should be kept to a minimum, and indeed, it would be better to conceptualize Roy and Lyng as cases where the limits of the right of exemption have been reached rather as cases where the right is inapplicable. Government cannot function, it may be argued, if the conscientious scruples of religious believers can dictate how the government should run its own internal affairs or manage its own land.Footnote ²⁰ Otherwise, courts could easily water down free exercise protections by expanding the categories of burdens to which the right of exemption does not apply.

Thus, for example, Justice Ginsburg went too far in her recent dissent in Burwell v. Hobby Lobby Stores, Inc. when she argued that the Free Exercise Clause should not be construed to protect the commercial activities of religious believers.Footnote ²¹ Justice Ginsburg repeated an earlier statement by the Court, in dicta, that when religious individuals “enter into…commercial activity as a matter of choice,” they must follow the “statutory schemes which are binding on others in that activity” at least in the absence of legislative or administrative accommodation.Footnote ²² Justice Ginsburg expressed fear about the repercussions of recognizing a right of exemption in the commercial setting, and she drew a picture of widespread claims for exemptions threatening the public welfare and the interests of others.Footnote ²³

However, Justice Ginsburg overstated the dangers associated with affording exemptions in the commercial context. Religion has never been a purely private phenomenon. It has always shaped the activities of adherents in broader social and economic life, and indeed, this fact has made religious belief and practice one of the crucial moral resources for our democratic political community.Footnote ²⁴ The existence of religious diversity means that there will be clashes between government policies and religious conscience in the commercial realm, and some of these clashes will involve substantial burdens on religious exercise. However, as a general matter, relief need not be costly or difficult. Exemptions from statutory schemes and other legal requirements can often be made without unduly burdening state interests. The Court's decision in Hobby Lobby provides an example. In Hobby Lobby, the Court construed the Religious Freedom Restoration Act (RFRA) to require an exemption from the contraception mandate in the Patient Protection and Affordable Care Act (ACA)Footnote ²⁵ for three closely held for-profit businesses owned and operated by families with religious objections to facilitating certain forms of contraception.Footnote ²⁶ According to the Court, applying the contraception mandate to these employers placed a substantial burden on religious exercise,Footnote ²⁷ and the government had less restrictive means to achieve its goal of providing cost-free contraceptives to female employees.Footnote ²⁸ The government could have, for example, extended the accommodation that it had developed for nonprofit religious employers,Footnote ²⁹ and the effect of this solution on the interests of female employees would have been “precisely zero.”Footnote ³⁰ To be sure, there are limits to what the government must do, and even can do, to accommodate religious exercise, and I will discuss these limits later. However, there is no reason to exclude the commercial activities of religious individuals from free exercise protections as a general matter. Doing so would unnecessarily contract the scope of religious liberty.

A related issue raised by the litigation in Hobby Lobby is whether for-profit corporations have free exercise rights. The government argued that for-profit corporations are not persons within the meaning of RFRA and that they cannot exercise religion under the Act.Footnote ³¹ Justice Ginsburg agreed, and she argued that for-profit enterprises are also not entitled to any exemptions under the Free Exercise Clause.Footnote ³² As the Court recognized, however, the question of whether for-profit corporations have free exercise rights cannot be addressed in the abstract, and the answer is not a simple “yes” or “no.” The inquiry should focus on whether recognizing these free exercise rights in particular contexts is essential to protecting the religious exercise of the individuals who own, operate, or work for the businesses involved. It is human beings who organize, own, and run corporations, the Court observed,Footnote ³³ and religious exercise does not end where commercial life begins. In the case of family-owned businesses, like the employers in Hobby Lobby, “protecting the free-exercise rights of the corporations…protects the religious liberty of the humans who own and control those companies.”Footnote ³⁴

It is important to emphasize that judicial inquiries into the substantiality of a burden on religious exercise will not entangle courts in religious matters. Some scholars have worried that such determinations will involve judges in religious questions.Footnote ³⁵ However, this need not happen. Once the court finds that the claimant has made a sincere claim that the government has placed a burden on a practice that is essential to his or her relationship with the divine, the evaluation of the substantiality of this burden is a secular analysis. The question is whether the nature of the burden is such that the claimant would experience significant pressure to change their practice. Conditioning benefit eligibility on abandoning the practice would clearly involve such pressure. So would other burdens that function as substantial penalties on religious exercise. Courts do not need to delve into religious questions to reach these conclusions. When examining the substantiality of a burden on religious exercise, what courts need is a general, common-sense understanding of human nature and an appreciation of the way the law functions. Quantitative data about the effects of the law or similar rules can also be highly probative. None of these considerations involve religious matters.

Defining the Right: Limits on Free Exercise

Defining the limits to free exercise protections in a way that is consistent with founding era principles and also responsive to the challenges of constructing a fair and workable right requires us to depart from the approach that courts and scholars have usually taken. As discussed earlier, courts and scholars have generally viewed the limits on free exercise protections as a matter of balancing. We weigh the burdens on religious exercise against the strength of the countervailing state interests, and we protect religious exercise until these state interests outweigh the burdens on conscience. Under the traditional compelling state interest test, for example, the Free Exercise Clause affords relief where there is a substantial burden on religious practice unless the state demonstrates a compelling state interest that justifies the restriction. In theory, this balance is strongly weighted in favor of free exercise, but in practice it is often much weaker as judges concerned about the feasibility of the test have minimized burdens on religious exercise and stretched to classify state interests as compelling.

I have described the problems with a balancing approach to free exercise limits above. Scholars are troubled that we lack the ability to define the balance in a nonarbitrary way. While this problem is overstated, it is difficult to identify the point at which state interests outweigh burdens on conscience in a theoretically persuasive way. Where burdens on religious practice are great and only minimal state interests are involved, the balance is clear, but as more important state interests are also involved, the balance becomes more contentious. In addition, balancing approaches lend themselves to judicial manipulation and other forms of distorted decision making, and these risks are heightened in the free exercise context. Unless the balancing test is very weak or very strong, judicial discretion and subjectivity in the weighing and balancing of individual and state interests opens the door to judicial misunderstanding, fears, and bias, and these will color the decisions that courts reach.

Another problem with a balancing approach to free exercise limits is that the very idea of balancing does not fit well with the reasons for protecting conscience that I have defended in this book. Founding era Americans protected conscience because they understood that religious belief and practice involve the relationship of persons with the divine and that nothing can be more important than this relationship. They also understood that faith must be free, and they respected the desire of persons to seek the divine and to follow conscience where it leads. As James Madison expressed in theistic terms, religion involves a duty to the Creator that takes precedence over the claims of civil society because allegiance to the Creator comes before allegiance to the state.Footnote ³⁶ If the relationship between persons and the divine is the highest of human concerns, a balancing process that limits free exercise when the interests of the state outweigh infringements of religious liberty makes no sense. There are no state interests that are more important than burdens on conscience that undermine the believer's connection with the divine. Temporal concerns are never weightier than essential matters of conscience.

However, founding era Americans did envision limits on free exercise, and if we look closely at what they had in mind, we can articulate an approach to free exercise limitations that is consistent with the primacy of humanity's relationship with the divine and is theoretically satisfying, principled, and nonarbitrary. My approach does not view limits as concessions to practical considerations that come at the expense of religious liberty. Rather, these limits follow from founding era principles, including the assumption that matters of conscience are the highest of human concerns. Starting with this assumption not only means a right of exemption; it also implies certain limits to this right.

To understand how founding era Americans envisioned limits on free exercise, it is helpful to start again with James Madison. No leading figure in founding era America had a stronger understanding of religious freedom. According to James Madison's proposal for the Virginia Declaration of Rights, the free exercise of religion should be “unpunished and unrestrained by the magistrate, Unless preservation of equal liberty and the existence of the State are manifestly endangered.”Footnote ³⁷ In a letter to Edward Livingston written much later in his career, Madison advocated the “immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.”Footnote ³⁸ Similarly, James Madison wrote to Jasper Adams that he favored “an entire abstinence of the Govt. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect agst. trespasses on its legal rights by others.”Footnote ³⁹ What James Madison envisioned were limits where religious conduct infringes on the rights of others or where limits are necessary to protect the existence of the state or the preservation of public peace or order.

Many of the earliest state constitutions contained similar limits. For example, the protections for conscience in the Massachusetts Constitution did not extend to situations where believers “disturb the public peace, or obstruct others in their religious worship.”Footnote ⁴⁰ New Hampshire's Constitution was similar.Footnote ⁴¹ Several other states constitutions contained limits where the “peace or safety” of the state was at stake,Footnote ⁴² and sometimes also public order,Footnote ⁴³ and there were additional limits where religious practice infringes the rights of others.Footnote ⁴⁴

All of these limits share an important feature. They are all themselves necessary to protect religious liberty. The existence of the state and the preservation of peace and order within the state make religious liberty possible by protecting religious believers from interference from one another. For founding era Americans, the primary function of the state is to protect the life, liberty, and property of its members, and religious liberty is foremost among these liberties. Thus, protecting the peace and safety of the state does not come at the expense of religious liberty but is, rather, essential to it. Similarly, religious liberty is not possible if the state permits religious believers to invade the rights of those whose consciences lead them to different conclusions. Limitations on free exercise where believers infringe on the rights of others protects liberty rather than undercuts it. Thus, the limits that James Madison had in mind and that appear also in state constitutions were not instances of especially important or even compelling government interests that somehow outweigh religious liberty. James Madison was not balancing. Rather, these limits were the preconditions for religious liberty.

A few state constitutions went further and also included limits on free exercise where believers “infringe the laws of morality”Footnote ⁴⁵ or engage in “acts of licentiousness.”Footnote ⁴⁶ In each of these cases, what founding era Americans probably had in mind were religious practices that contravened basic standards of public morality that all Americans accepted as beyond serious question. The court in People v. PhilipsFootnote ⁴⁷ interpreted the reference to “acts of licentiousness” in New York's Constitution this way.Footnote ⁴⁸ The court gave examples of conduct that violated the “decencies of life” such as worship “in a state of nakedness,” incest, a “community of wives,” “burning widows on the funeral piles of their deceased husbands,” a “plurality of wives,” or “bacchanalian orgies or human sacrifices.”Footnote ⁴⁹ These were egregious behaviors that no reasonable person in the founding era would have tolerated. In contemporary American society, where religious and moral pluralism are intertwined and we lack the agreement about public morality that existed in the founding era, we should avoid limitations like these. Restrictions where religious practice violates standards of public morality will almost certainly disadvantage religious minorities. Not only is it more difficult to identify rules about public morality that all agree about in twenty-first-century America, but the vagueness and indefiniteness of such a limit make it vulnerable to abuse by judges who are hostile to groups with values that depart from majority norms.

However, the other restrictions that founding era Americans had in mind still make sense, and they can inform an approach to free exercise limits that is consistent with respect for conscience and is also fair and workable. The limits that founding era Americans envisioned were of two basic types. The first set of limits applies where the preservation of the state or public peace and order are at stake. Without these conditions, government, and the benefits of government, are not possible. We must be careful, however, not to expand these limits beyond what those in the founding era had in mind. Where religious practice endangers the peace and safety of the state and basic conditions of public order, the very foundations of effective government are undermined. This is not the same thing as saying that important or even compelling state interests are involved. Many government interests can be characterized that way, and as I have discussed, these have been elastic concepts in the hands of judges. The limits that those in the founding era envisioned were narrower. What they meant was that religious practice is not protected when it endangers the existence of the state or the conditions of public order and safety that make social and political life possible. Likewise, we must be careful to require a tight connection between religious practice and these dangers before limiting free exercise. Without such a requirement, many practices could be characterized as conduct that undermines public order or safety, and the less a judge likes the practice, the more likely he or she is to view it that way. The court in Philips understood this when it required a clear connection between the practice at issue in that case and the limits on free exercise in New York's ConstitutionFootnote ⁵⁰: without such a requirement, “the liberty of conscience [would be rendered] a mere illusion.”Footnote ⁵¹

The formulation that I propose for these limits is as follows. Even where a law or regulation places a substantial burden on religious practice essential to the believer's relationship with the divine, relief is not required under the Free Exercise Clause if the application of the law to the claimant is necessary to protect the existence, peace, or safety of the state, or basic conditions of public order. The government bears the burden of demonstrating that these interests are at stake, and bureaucratic fears or speculative concerns about the possibility of future claims or other matters are not sufficient to meet this burden. The government must be able to substantiate its claim with evidence, or the consequences that the government predicts must be obvious. In addition, the government must show that there is no other way to achieve these interests that does not place a substantial burden on essential matters of conscience.

These limits are narrow, and the standard for the state to meet is high. As I have argued earlier, a political community that respects conscience and what is at stake when the demands of faith conflict with the state will insist on a high threshold for government interference. However, the threshold that I propose is not so high that the limits on free exercise are meaningless. The traditional compelling state interest test has proved to be underprotective in the free exercise context, but in other contexts, the test has been “strict in theory” and “fatal in fact.”Footnote ⁵² My analysis is not fatal in fact. The categories I propose are not empty, and where government interests fit into them, there will be real and appropriate limits.

For example, government cannot exist without a fair and effective system of taxation. Thus, the Free Exercise Clause should not be construed to require relief from obligations to contribute to general taxes, and it should not give believers a right to designate where their taxes should and should not go. However, the Free Exercise Clause might require an exemption from a specialized tax if believers can make alternative contributions or payments of some sort that will offset any loss of revenue and satisfy the purpose of the tax. For example, an arrangement like this probably would have been possible in United States v. Lee.Footnote ⁵³ In Lee, the Supreme Court rejected the claim of an Amish farmer and carpenter who employed several other Amish for an exemption from Social Security payroll tax contributions for these workers. The claimant objected to the tax because of the Amish belief that the religious community has an obligation to provide for its own elderly and needy and because of the Amish prohibition against payment and receipt of Social Security benefits.Footnote ⁵⁴ Tax relief in this context would not have undermined the financial solvency of the Social Security program or its protective purpose if the needs of elderly and disabled Amish can be met another way and Amish employees do not take advantage of the program.

Government also cannot exist without an educated citizenry, and this education involves technical as well as moral aspects. Thus, the government can insist that all youth receive an education that meets basic requirements for self-sufficiency, participation in the political process, and development into law-abiding adults. However, it cannot insist that these standards be met in public schools if private forms of education meet these requirements. These conclusions are consistent with existing Supreme Court precedents.Footnote ⁵⁵ Furthermore, if the government chooses to set up a public school system with more ambitious educational goals, the Free Exercise Clause will certainly require some accommodations for religious families who object to portions of the educational program, but these families are not entitled to accommodations that truly undermine the effectiveness of the school's educational goals or make the project of public education impractical.

There are other government functions that are also essential to the preservation, peace, and safety of the state and basic conditions of public order. A military with sufficient human resources is an example, as is an effective prison system. In addition, public order is not possible without criminal laws that protect the persons and property of society's members. Nor can public order be sustained without laws designed to manage the flow of human and vehicular traffic along public thoroughfares.

However, it is important to remember that the government must do more than that show that a function essential to the peace, safety, or basic order of the state is involved. It must also demonstrate that the application of its rules to the claimant is necessary to achieve these purposes and that there are no other ways to achieve these goals that do not involve substantial impositions on conscience. An exemption from basic traffic rules would rarely be consistent with public order,Footnote ⁵⁶ but an exemption from a military draft where conscientious objectors perform alternative service in the public interest would be in many circumstances. Likewise, prisoners cannot insist on practices that truly threaten the safety of prisons and those inside them. However, prison officials cannot reject free exercise claims just because accommodations involve added costs or inconvenience or because they mean departures from regular rules and procedures. At some point, additional costs may be high enough that they would compromise the ability of prisons to maintain a safe and secure environment, but the government must substantiate such an impact and show that effective accommodations cannot be made with fewer expenses.

In Employment Division v. Smith, Justice Scalia described a “parade of horribles”Footnote ⁵⁷ that would result from a compelling state interest test that means what it says and is not watered down.Footnote ⁵⁸ Anarchy will result because the rule “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” including exemptions from draft laws, tax obligations, traffic laws, legislation protecting the health and safety of the general population, and environmental protection laws.Footnote ⁵⁹ Regardless of whether Justice Scalia describes the results under the compelling state interest test accurately, the limits I propose would not result in the chaos that he envisions. Some exemptions in these contexts would certainly be required, but not exemptions that would endanger an effective military, a fair and effective tax system, an effective system of criminal law and traffic regulation, or other functions essential to the preservation of the state, public safety, and basic order. The free exercise protections I envision are strong, but they are not unworkable in this way.

The second type of limit that those in the founding era envisioned applies where religious practice infringes on the rights of others with different views. Of course, any individual's conduct will affect others in all sorts of ways, including in some very negative ways. Limits on free exercise are not justified anytime there are such effects. There would be nothing left of the right of exemption if we viewed the limits on free exercise this way. Similarly, if we construe the scope of rights very broadly, almost anything can be made the subject of a right that limits free exercise. The limits I envision here are similar to what founding era Americans had in mind. When James Madison and others argued that the rights of conscience do not extend to situations where religious conduct violates the rights of others, they had in mind the rights of life, liberty, and property that government is formed to protect, as well as the legal rights created by the state to protect these rights. Religious believers are not protected when they engage in practices that injure the persons, physical freedom, or property of others. Freedom of conscience, Thomas Jefferson famously wrote, does not authorize the believer to “pick[] my pocket nor break[] my leg.”Footnote ⁶⁰ Magistrates may punish “overt acts of violence,” John Leland argued,Footnote ⁶¹ and believers have no right to “rob, confine, or kill others.”Footnote ⁶² Believers are also not protected when their actions invade the intellectual or spiritual liberties of others by, for example, infringing on the freedom of worship. As James Madison wrote, free exercise entails an “equal liberty” for those with different views.Footnote ⁶³ Believers are not entitled to obstruct or disturb others in their religious worship, the Massachusetts and New Hampshire Constitutions provided.Footnote ⁶⁴

Liberty of conscience also does not authorize believers to infringe on what founding era Americans referred to as civil or legal rights. As Maryland's earliest constitution provided, religious liberty does not extend to situations where individuals, “under colour” of religion, “injure others, in their natural, civil, or religious rights.”Footnote ⁶⁵ In his letter to Reverend Adams, James Madison used the term “legal rights.”Footnote ⁶⁶ There was a close connection in the minds of founding era Americans between natural rights and civil or legal rights. The natural rights of life, liberty, and property are rights that inhere in all persons by virtue of being persons, and they are prior to the state. The state is formed to protect them. Civil rights attach to persons by virtue of membership in political society. They are created by the government, but they serve the purpose of government to protect prior rights.Footnote ⁶⁷ Examples envisioned by founding era Americans included the right to make contracts and sue to enforce them, the right to hold property and to sell and purchase it, the right of access to the courts, the right of jury trial in criminal cases, and other protections in criminal prosecutions that appear in the federal Bill of Rights.

Civil rights in the minds of founding era Americans were generally understood in negative rather than positive terms. Government protected life, liberty, and property primarily by preventing their injury from internal or external threats.Footnote ⁶⁸ Today, however, government has grown, and federal, state, and local governments also act in many affirmative ways to better secure the lives, liberties, and property of society's members. For example, statutes in the areas of education, health, labor, and employment contain a wide range of government benefits and protections designed to serve these purposes. Where the purpose of a government benefit or protection is to promote the life, health, safety, property, or economic opportunity of individuals, the protection should be among the rights that potentially limit free exercise protections. In his parade of horribles, Justice Scalia argued that the compelling state interest test would require exemptions from health and safety regulations and social welfare legislation such as minimum wage laws.Footnote ⁶⁹ Under my approach, exemptions may be required from such laws depending on the circumstances, but the effect of exemptions on the benefits and protections provided by these rules must be considered.

The government must, however, do more than simply show that an exemption would impact the rights of others. The government must demonstrate that the application of its rule to the religious claimant is necessary to prevent meaningful intrusion on these rights. In some cases, any infringement on a right will amount to a meaningful intrusion. This is the case, for example, where religious practices injure the body or take the property of others. However, in other cases, a meaningful intrusion will only arise if the religious conduct, either by itself or in conjunction with similar behavior by others, is sufficiently common or widespread. Claims for exemptions from laws prohibiting discrimination in areas like employment, housing, and public accommodations provide an example. Antidiscrimination laws clearly protect the liberty, property, and economic opportunity of affected individuals. Discrimination in employment, housing, and public accommodations prevents those who are discriminated against from accumulating and enjoying property and from effectively participating in society and the economy. However, not all exemptions for religiously based discrimination would have these results. For example, religiously motivated discrimination in housing or public accommodations on the basis of race or gender or another protected category can significantly restrict the opportunities available to those who are discriminated against if the religiously motivated discrimination is common enough or if it is part of a larger pattern of discrimination. This has been the case with racial discrimination in America. However, isolated or sporadic instances of other forms of discrimination may have little overall effect on these opportunities. On the other hand, when it comes to discrimination in employment, even infrequent discrimination in the commercial sector can significantly limit the opportunities of those who are discriminated against. Securing employment is often challenging, especially in times of economic difficulty, and thus, even isolated discrimination can significantly impact the job prospects of those who are discriminated against.

When evaluating the impact of religious practices on the rights of others, courts must also require more than speculative claims about the effect of an exemption. Infringements on the rights of others must be meaningful and substantiated. They must also be direct. Religious practices, like other forms of conduct, will have all sorts of indirect effects. Believers should not be protected where their practices directly infringe the rights of others, but they should not be held responsible for the manifold indirect effects of these practices. Limiting free exercise in these situations would significantly curtail a right of exemption, and it would do so despite the fact that we regularly tolerate private behavior that negatively affects the health, prosperity, economic opportunities, and intellectual and spiritual lives of others. Indeed, if we did not do so, we could end up with a political community with very little freedom.

In sum, my proposal for free exercise limits where religious practice impacts the rights of others is as follows. Even when a law or regulation places a substantial burden on a religious practice that is essential to the believer's relationship with the divine, relief is not required under the Free Exercise Clause if the application of the law to the claimant is necessary to prevent a direct and meaningful intrusion on the persons, property, physical liberty, intellectual or spiritual freedom of others, or on civil rights or benefits designed to secure life, health, safety, property, or economic opportunity. The government bears the burden of demonstrating that such an impact would result from an exemption, and claims about the effects of an exemption must be substantiated. The government must also show that there is no way to protect the rights of others that does not place a substantial burden on conscience.

In addition, even where religious practices do directly and meaningfully impact the rights of others, free exercise limits are not appropriate if those who are affected have voluntarily consented to the impact. The Supreme Court's 1985 decision in Tony and Susan Alamo Foundation v. Secretary of LaborFootnote ⁷⁰ provides an example. In Alamo, a nonprofit religious foundation dedicated to rehabilitating addicts, criminals, and derelicts ran a number of commercial enterprises staffed by rehabilitated “associates” who objected, along with the foundation, to the application of minimum wage and other provisions of the Fair Labor Standards Act.Footnote ⁷¹ The associates received food, shelter, clothing, transportation, and medical benefits from the foundation but no cash wages.Footnote ⁷² The associates protested the payment of wages on the grounds that they were evangelistic volunteers rather than employees.Footnote ⁷³ The foundation argued that its commercial enterprises had the religious purposes of ministering to the needs of associates and also of reaching others with the gospel.Footnote ⁷⁴ The Supreme Court found that the associates were employees under the Act and that the Free Exercise Clause did not exempt the foundation from the requirements of the Act.Footnote ⁷⁵

As I stated in the introduction to Chapter 5, the free exercise rights of religious organizations should be envisioned differently than those of individuals. However, if we use the approach that I have developed here and assume that the foundation has demonstrated the requisite burden on free exercise, the foundation would be entitled to an exemption under the Free Exercise Clause as long as all of its associates voluntarily consented to their working conditions. In Alamo, the “Secretary [of Labor]…‘failed to produce any past or present associate of the Foundation who viewed his work in the Foundation's various commercial businesses as anything other than ‘volunteering’ his services to the Foundation.’”Footnote ⁷⁶

Of course, sometimes there will be a question about whether consent to the deprivation of a government benefit or protection is truly voluntary. Those affected must be of a sufficient age and have adequate cognitive capacity to make informed and free choices. Even where those are present, those affected may have no real choice about whether to acquiesce. In Alamo, there was strong evidence of voluntary consent, and the foundation and its workers shared a common religious vision and purposes. In other employment relationships, the type of economic dependence in that case and a lack of employment alternatives may undermine the voluntariness of consent. For example, if the foundation in Alamo was the only employer in a small town and many of its employees did not share its religious vision but could not find jobs elsewhere, these facts would undermine the voluntariness of their consent to the foundation's working conditions. However, where those who are impacted by religious practices consent to this impact, voluntariness should generally be assumed. A society that respects, and encourages its citizens to respect, the religious scruples of others will start with this presumption. This is especially so where those whose rights are affected can avoid this impact without significant hardship. However, even where there are meaningful costs that are not easily avoided, those who are affected may still choose to absorb these costs out of respect for the consciences of others, and we should recognize and encourage this respect.

In Alamo, the Court also worried that making an exception for the foundation in that case would “exert a general downward pressure on wages in competing businesses.”Footnote ⁷⁷ However, such an effect on workers beyond the foundation's associates was purely speculative. There was no evidence in this case that there were many, if any, additional religious employers likely to make a similar religious claim for exemption from the Fair Labor Standards Act, and the overall operations of the foundation were limited.Footnote ⁷⁸ The situation may have been different if the foundation's commercial enterprises represented a substantial portion of the economic activity in one or another commercial sectors. However, even then, the government must show that such a downward pressure on wages in secular enterprises is likely. Unsubstantiated claims about the effects of religious practices on others are not a sufficient basis to deny free exercise protections.

Special considerations also arise where those whose rights are affected by the claimant's conduct are the claimant's own children. U.S. constitutional law recognizes the right of parents to direct the upbringing of their children,Footnote ⁷⁹ and parents obviously limit the freedom of their children when exercising their parental role and responsibilities. However, there will be some cases in which the interests of children will limit parental rights, including in situations where free exercise is also at stake. For example, if parents seek to engage in conduct that has a likely effect of endangering their children's lives, the state should be able to intervene under child abuse and neglect statutes. How much further the state can go to protect the interests of children is an important question that requires more attention than I can devote here. However, respect for religious conscience and recognition that believers, like all parents, have a natural and valuable desire to pass on cherished beliefs to the next generation mean that we should construe these limits narrowly.Footnote ⁸⁰

The restrictions on free exercise that I envision where religious practices impact others are limited but significant. The government's burden is high. It must show that applying its rule to the claimant is necessary to prevent a direct, meaningful, and nonspeculative infringement of the rights of others and that there is no way to protect the rights of others without burdening conscience. However, the rights of others are not exhausted by negative liberties. They include the negative freedoms that those in the founding era referred to as “life, liberty, and property” as well as government benefits that promote these liberties. While I have defined the scope of rights somewhat broadly, this definition is consistent with a robust commitment to religious freedom. Religious liberty, like all liberties that involve the mind and spirit, presupposes the capacity of persons to make meaningful and voluntary choices. Where individuals invade the persons or property of others or their health and safety is otherwise threatened, this capacity is undermined. Economic deprivation can have the same effect. Construing the Free Exercise Clause to require an exemption where religious conduct threatens the lives, safety, and intellectual and spiritual liberties of others, or deprives others of government benefits designed to promote these freedoms, would undermine religious liberty, not advance it.

However, religious believers do not violate the rights of others just because their conduct affects them in negative ways. Such a construction would swallow up the right of exemption, and it would swallow up liberty more generally. Religious believers do not, for example, violate the rights of others just because they engage in conduct that expresses disagreement with others, even deep disagreement or condemnation, and even if the ideas expressed are unpopular or offensive. Today, we are sometimes tempted to think that “dignitary harms” without other forms of interference are sufficient to limit free exercise.Footnote ⁸¹ However, the freedom to express unpopular and even offensive ideas is an essential aspect of liberty in a free society. We violate the rights of others when we restrict their freedom, not when we express disagreement with how they use their freedom in a context without such concrete harms. Any other rule would destroy the conditions that make diversity possible.

Current controversies regarding the reach of antidiscrimination laws in the context of same-sex relationships can illustrate the limits I have in mind. A recent New Mexico case provides an example of this type of conflict. In Elane Photography v. Willock, a Christian couple who owned and operated a photography business refused to photograph a same-sex commitment ceremony because they believed that photographing the ceremony would express support for same-sex marriage in violation of their religious beliefs.Footnote ⁸² The individual who was refused service filed a discrimination claim under the New Mexico Human Rights Act (NMHRA), and the state supreme court held that the company violated the Act's prohibition against discrimination in public accommodations on the basis of sexual orientation. As same-sex marriage is recognized in states across the countryFootnote ⁸³ and an increasing number of jurisdictions prohibit discrimination on the basis of sexual orientation in public accommodations, housing, employment, and education, cases like this will surely proliferate.Footnote ⁸⁴ While states that have recognized same-sex marriage legislatively typically have exemptions from civil rights laws where religious organizations refuse to provide services related to the solemnization or celebration of same-sex unions,Footnote ⁸⁵ none of these exemptions apply to individuals who object to facilitating or promoting same-sex marriage through the businesses they operate. In addition to wedding photographers, those providing other wedding-related services may have similar religious objections to facilitating same-sex marriage, such as florists, bakers, caterers, and individuals operating bed-and-breakfasts.Footnote ⁸⁶ The smaller the business and the closer the connection between the good or service provided and the marriage, the more likely that religious believers who oppose same-sex marriage are to envision serving same-sex couples as impermissible involvement or facilitation.

Under my analysis, the rights of gay persons under antidiscrimination laws are the type of rights that can potentially limit free exercise protections. Laws prohibiting discrimination on the basis of sexual orientation protect the ability of same-sex couples to enjoy their property and participate fully in the economy. However, where a religious individual sincerely believes that serving same-sex couples amounts to facilitation of same-sex marriage that undermines their relationship with the divine, an exemption should not be denied if ready access to goods and services from other providers exists. If plenty of opportunities from other providers exist, the impact of an exemption on the rights of gay persons will be minimal. Legislatures may further minimize the inconvenience to same-sex couples by, for example, requiring such business owners to provide notice of their policies to potential customers. Such a requirement would also reduce the offense of being turned away from service.

On the other hand, in some situations an exemption for business owners who object to facilitating same-sex marriages may have a meaningful impact on the access of same-sex couples to public accommodations. This would be the case if the business seeking an exemption holds a sizeable share of the market for a particular type of good or service, and the larger the business, the more likely this is to be the case. This would also be the case if the business involved is small, but many of the business owners in the same geographic area share a similar objection to facilitating same-sex marriage and can reasonably be expected to discriminate in the same way. However, the burden is on the government to show that concerns about additional claims from other business owners are nonspeculative. Unsubstantiated fears or predictions about the behavior of others that are not backed by convincing evidence are not sufficient to justify limits on religious exercise.

Dignitary harms with little effect on the opportunities that same-sex couples have to enjoy public accommodations are also not sufficient to limit free exercise. When a business owner refuses to provide a service because she believes that doing so would impermissibly facilitate same-sex marriage, the insult that those who are denied service experience is primarily the insult of being told that their behavior is sinful or immoral. However, religious individuals are free to send this message even when it is unfortunate when they do. A society that values religious liberty and freedom generally will not limit religious exercise just because the message is offensive to some or even most of the larger population. A society with these values may limit the offense by requiring the notice to potential customers discussed earlier, and such a requirement would also minimize the inconvenience, uncertainty, and anxiety that same-sex couples may otherwise experience when seeking marriage-related services. However, a free society will not force uniformity where its members hold different views about the morality of same-sex marriage.

In this chapter, I have proposed limits on free exercise that are principled and nonarbitrary, fit with the respect for religious conscience defended in this book, and also address concerns about the chaotic potential of a right of exemption. My proposals also avoid the vagueness and subjectivity of a balancing approach to limits. As I have just recalled, balancing approaches to free exercise limits are problematic in part because they involve significant judicial discretion that opens the door to judicial bias and other forms of distorted decision making, and we have seen this problem with the compelling state interest test. Unless the balancing test is very weak or very strong, the process of balancing free exercise burdens against countervailing state interests will be inherently vague and manipulable. In the free exercise context, unfamiliarity with, and even hostility toward, traditions that are not the judge's own mean that the risks of distorted decision making are high. So do judicial fears about the feasibility of free exercise protections.

The approach that I suggest here is different. I have identified a specific set of limits to free exercise protections, and the role of the court is not to balance but to determine whether the interests that the state asserts fall into one or more of these categories. The government must demonstrate either that the application of its rule to the claimant is necessary to protect the existence, peace, or safety of the state or basic conditions of public order, or that it is necessary to prevent direct and meaningful intrusion on the rights of others as described earlier. A test like this cabins judicial discretion and, thus, reduces the opportunities for judicial fears or bias or misunderstanding to color the decisions of courts and, thereby, to undermine free exercise protections or result in unfair and discriminatory decision making.

Of course, my approach does not eliminate judicial discretion entirely. Only a very simplistic approach to free exercise limits could. Thus, for example, over time courts will have to work out which specific government benefits will fall within the understanding of the rights of others that I have described. I have provided the guidelines to direct judges in this task, but the answers will not always be clear-cut. Judges will also have some discretion in determining which government functions are essential to the preservation, peace, and safety of the state and to basic conditions of public order. Other areas will require further development as well. For instance, where religious practices impact the rights of others and those impacted consent to the effect, the voluntariness of this consent will sometimes be an issue, and courts will have to identify the relevant considerations when assessing voluntariness. I have provided a start in this chapter's discussion, but courts will need to elaborate. However, the room for judicial discretion under my approach to limits is significantly less than the discretion involved in all but the weakest or strongest balancing tests. It is certainly less than the discretion that judges have exercised when interpreting the vague concept of “compelling state interest” under our traditional approach to free exercise exemptions.

My understanding of the threshold burden that claimants must show in order to receive an exemption also reduces the manipulability of my approach to exemptions. As I have observed earlier,Footnote ⁸⁷ courts have watered down the traditional compelling state interest test both by stretching to find that the interests asserted by the state are compelling and also by finding that claimants have failed to demonstrate a substantial burden on religious exercise. Judges have tended to both minimize burdens on religious exercise as well as maximize countervailing government interests. When courts have found that burdens on religious exercise are not substantial, they have often done so on the ground that the law or regulation at issue does not burden a practice that is sufficiently important within the claimant's belief system or a central or mandatory component of their faith.Footnote ⁸⁸ This was common before the passage of the Religious Land Use and Institutionalized Persons Act, which clarified that religious exercise under the Act and under the Religious Freedom Restoration Act includes any exercise of religion, whether or not it is central within a belief system.Footnote ⁸⁹

In my analysis, courts do not ask whether a practice is important, mandatory, or central within the claimant's religious tradition or their own personal system of beliefs. Doing so would entangle courts in religious matters. Rather, the threshold inquiry is whether the claimant has shown a substantial burden on a practice essential to their relationship with the divine however they understand this relationship, and the court may not second-guess the claimant's understanding of religious truth or the role they assign to their practices within their spiritual life. When evaluating whether a burden on a practice of this sort is substantial, courts also do not engage in a religious inquiry. Rather, they examine whether the law or regulation at issue places significant pressure on the claimant to change their behavior or prohibits religious practice outright. There is room for some discretion when assessing this impact, but it is significantly less than is involved in an approach that understands the substantiality of a burden in terms of the religious importance or centrality of the practice affected. There is also significantly less room for hostility or misunderstanding to affect judicial decision making. While judicial fears about the chaotic potential of a right of exemption may still tempt judges to understate the pressure a law or regulation places on the claimant, an inquiry focused on this impact is less manipulable than one that involves judges in the nuances of religious doctrine.

The more definite and less manipulable approach that I propose is also more likely to withstand the growing statism in judicial decisions. Too often judges and scholars today have equated almost any state interest with a compelling one. This cannot happen if the limits on free exercise are carefully specified in the way that I have indicated. Hopefully, over time, strong free exercise protections that are not easily watered down will help foster among judges a greater appreciation and respect for religious conscience when it comes into conflict with the rules of the state. I have made the case for such appreciation in this book, but rules that reflect and reinforce this appreciation are also critical for shaping and sustaining judicial attitudes. To the extent that judges consistently enforce strong protections for free exercise, their decisions will also foster a greater respect for conscience among legislative and executive officials and the larger community.

Refining the Right to Encourage Extrajudicial Solutions

So far, as I have developed my proposal for a right of exemption, I have described a number of ways in which my approach is designed to address the challenges of developing a right of exemption that is at once strong, feasible, and fair. I have observed that the threshold burden for relief that I envision helps address the chaotic potential of a right of exemption by targeting the strongest protections to practices that are at the heart of religious faith and experience. I have also identified limits to free exercise protections that are meaningful but at the same time consistent with the ultimate importance of religious concerns and the respect for conscience that we see in the founding era. Addressing the risk of chaos associated with a right of exemption in these ways also helps alleviate the judicial fears that have led many courts to water down the traditional compelling state interest test. Defining the threshold burden and limits on free exercise in a way that is more definite and less manipulable than the compelling state interest test and other balancing approaches also leaves less room for judicial fears to distort judicial decision making. In addition, cabining judicial discretion reduces the opportunity for judicial hostility and misunderstanding to color court decisions and to result in unfair and discriminatory outcomes.

The proposal that I have outlined above is also designed to address these challenges by pushing religious believers and state officials to work out extrajudicial solutions whenever possible. As I have discussed in the last chapter, one of the lessons from the debate in the first Congress regarding protections for conscientious objectors is that it is often possible for believers and government officials to work out mutually acceptable solutions to conflicts even when important government interests are at stake. There are a number of benefits when believers and government officials resolve their conflicts on their own. On the one hand, extrajudicial solutions mean fewer free exercise claims, and conflicts are resolved in a way that seems feasible to the state and, at the same time, satisfactory to religious believers. Where conflicts are resolved extrajudicially, the problem of judicial bias is also avoided as are other forms of distorted judicial decision making. Moreover, by working together to solve problems, government officials and religious believers can often come up with better solutions than those developed by judges.

The proposal I have developed is designed to encourage extrajudicial solutions in a number of ways. First, protections for believers are strong, and the limits on free exercise are clear and clearly circumscribed. As I have discussed, where the rights of others are not involved, the government must demonstrate that an exemption for the claimant would threaten the existence, peace, or safety of the state, or basic conditions of public order, and government fears must be substantiated. The rights of others that potentially limit free exercise are carefully defined and circumscribed, and the government bears the burden of showing that intrusions on these rights are meaningful, direct, and nonspeculative. These are meaningful but narrow limits, and judges cannot water down free exercise protections by expanding a vague notion like “compelling state interest” to include lesser interests.

A robust right of exemption with clear and narrow limits that resist judicial manipulation will give legislators and administrators strong incentives to work with believers to reach mutually acceptable compromises. Government officials cannot ignore believers as they could if there were no right at all. They also cannot expect judges to water down free exercise protections the way courts have done under the compelling state interest test. Even in borderline cases, a strong right of exemption that is not easily undermined means a significant chance that believers will prevail in court, and where this is the case, solving conflicts extrajudicially allows government officials to fashion their own solutions with believers rather than run the real risk of unfavorable judicial outcomes over which they have much less control. The fact that it is the government that bears the burden of demonstrating that a limit on free exercise is appropriate adds to the risk of an unfavorable judicial outcome. Rather than devoting resources to litigation where outcomes are at best uncertain, government officials are better off avoiding the costs of litigation and channeling their resources into working with religious believers to find mutually acceptable solutions. Where believers can expect such engagement and have real leverage in this process, they too will have strong incentives to seek extrajudicial solutions rather than to litigate.

Furthermore, the right of exemption I have proposed encourages extrajudicial solutions even in situations where essential state interests or the rights of others are involved. The government must show that the application of its rules to the free exercise claimant is necessary to protect the existence, peace, safety, or basic order of the state or the rights of others, and that there is no other way to achieve these purposes that does not place a substantial burden on practices essential to the believer's relationship with the divine. A somewhat similar burden exists under the compelling state interest test: where a law places a substantial burden on religious exercise, government must show that the application of the law to the claimant is the least restrictive means of achieving a compelling state interest. However, courts have tended to deemphasize or ignore this requirement. In 2014, in Burwell v. Hobby Lobby Stores, Inc., the Court construed the least restrictive means test in the Religious Freedom Restoration Act (RFRA) robustly, and the availability of an alternative means to achieve the government's objective in that case was decisive for the Court's ruling in favor of the religious plaintiffs.Footnote ⁹⁰ Less than a year later, in Holt v. Hobbs, the Supreme Court construed the least restrictive means test in the Religious Land Use and Institutionalized Persons Act (RLUIPA) strictly as well, and again the Court found that the government had not met its burden under this requirement.Footnote ⁹¹ However, as discussed earlier, the Court's track record in the past has been mixed, especially in its pre-Smith decisions under the Free Exercise Clause, and many lower courts have also watered down the rigors of the compelling state interest test. The lower court decisions in Holt provide examples. While the Court in Hobby Lobby described the least restrictive means standard in the compelling state interest test as “exceptionally demanding,”Footnote ⁹² in many cases it has been far from that.

Indeed, the four justices who dissented in Hobby Lobby gave an especially weak construction to RFRA's least restrictive means test, and not surprisingly, they found the alternatives considered by the majority to be unsatisfactory. According to Justice Ginsburg, acceptable alternatives must be “equally effective”Footnote ⁹³ as applying the government's rule to the believer, and she also suggested that satisfactory alternatives cannot require additional expenditures by the government.Footnote ⁹⁴ The dissent's construction of the least restrictive means test would eviscerate it. Instead of insisting on an “equally effective” means of achieving the government's purposes, she should have asked whether the government had an alternative that adequately served its interests. In addition, while costs are certainly relevant to whether an alternative is a feasible method of achieving the government's goals, the least restrictive means test would mean little if acceptable alternatives must be no more costly than the method that the government prefers.

In the wake of the Court's decision in Hobby Lobby, some scholars have also suggested that alternatives that are not “politically viable” should not count as less restrictive means of achieving the government's goals.Footnote ⁹⁵ Such a construction would also substantially weaken the least restrictive means test. Of course, if an alternative is not politically viable because it would be impractical or excessively costly, these considerations would be relevant to the court's analysis. However, if the political unpopularity of an accommodation alone can be decisive, much of the leverage that RFRA and RLUIPA provide believers in negotiating conflicts with the government would be undermined. The least restrictive means component of the compelling state interest test operates by tying the achievement of the government's purposes to accommodations that may well be unpopular. These options become viable because the government must consider them if it wants to achieve its goals. In addition, allowing courts to discount alternatives because of predictions related to their political popularity would increase the vulnerability of the compelling state interest test to judicial manipulation and discriminatory application.Footnote ⁹⁶

In my proposal, the requirement that the government demonstrate that there are no other ways to address the claimant's concerns that do not implicate one of the limits that I have described earlier is critical, and it is demanding. The function of the requirement is to force state officials to consider whether they can achieve their goals in ways that do not require believers to violate their consciences. A political community committed to respecting and protecting conscience in conflicts with the state will insist that government officials consider such alternatives before placing substantial burdens on essential religious practices. As I have discussed previously, sometimes the alternative will be an exemption for believers coupled with a requirement that those who receive the exemption absorb or otherwise offset the costs associated with the exemption in a way that is consistent with conscience. I have observed that many founding era Americans envisioned such a solution where religious pacifists objected to compulsory military service. In other situations, legislatures or administrators might be able to adjust the design of government benefits or programs in a way that requires no exceptions at all. Viable alternatives need not be as advantageous as applying the government's rule without adjustment, but religious believers cannot insist on alternatives that genuinely threaten the existence, peace, safety, or public order of the state or invade the rights of others as described earlier in the chapter.

Of course, when state officials consider alternative ways of achieving their goals, we want a consideration of alternatives that is more than perfunctory. In addition, if state officials conclude that there are no feasible alternatives, its conclusions should be more than a simple dismissal of possibilities that are not fully explored. To give government officials strong incentives to carefully examine possible alternatives, we should add one additional element to the proposal above. When the government claims that there are no ways to meet the needs of religious claimants and also achieve its own essential goals, evidence that government officials have reached this conclusion after having worked actively with claimants to come up with acceptable compromises should be highly probative. I suggest the following formulation. Where the government can show such active engagement and its efforts have been sustained and made in good faith, these factors should count as substantial evidence that the government has met its burden of demonstrating that no feasible alternatives exist. Giving substantial weight to active, sustained, and good-faith efforts to work with believers to reach extrajudicial solutions will give government actors strong incentives to explore such possibilities. Of course, the government must also show that none of the options it has considered are workable. Active engagement with religious believers is not sufficient to meet the government's burden if it considers but dismisses possibilities that meet the needs of religious believers and do not threaten harms sufficient to place limits on free exercise. Merely considering alternatives is not enough if the government does not adopt feasible solutions.

Of course, finding mutually acceptable compromises will require active involvement by claimants too. The input of religious believers is essential to generating ideas about how government rules and programs might be adjusted to meet their needs. Like government officials, religious believers must also make genuine and sustained efforts to consider and develop possible solutions to conflicts. Both believers and government officials must have strong incentives to work together if all possible compromises are to be explored. The right of exemption I have proposed is designed to give believers these incentives. If a sustained, good-faith effort on the part of government officials to come up with accommodations that meet the needs of both believers and the state counts as substantial evidence to support the government's claim that no feasible alternatives exist, believers will have strong incentives to consider and offer any possibilities that are acceptable to them. It will be harder for the government to demonstrate that they have made a good-faith effort to work with believers to solve conflicts if government officials reject reasonable alternatives offered by claimants, and even a good-faith effort is not sufficient to meet the government's burden if the government rejects reasonable possibilities. Believers will want to make sure that they get all reasonable possibilities on the table, and if they offer none, the reviewing court is likely to conclude that none exist.

Religious believers have additional incentives to work together with government officials to develop extrajudicial solutions to conflicts whenever possible. While I have endeavored to design a right of exemption that is not easily undermined by judges and that addresses the chaos concerns that have led judges to water down the compelling state interest test, judicial anxieties will undoubtedly remain. These anxieties will almost certainly continue to exert some influence on judicial decisions. The right of exemption I have designed reduces these anxieties and limits their effect on judicial decision making, but no proposal can eliminate them entirely. However, these residual tendencies can be channeled to play a useful role. In the approach I have developed, residual judicial anxieties and tendencies to construe free exercise protections narrowly will give religious believers additional incentives to work with government officials to come up with extrajudicial solutions and to suggest any compromises they can think of to address government concerns as well as their own. Religious claimants are better off avoiding litigation whenever they can. A strong right of exemption that resists judicial manipulation will give them significant leverage when working with government officials to come up with alternatives, but residual anxieties and conservatism among judges will mean that they cannot count on judicial victories. In addition, if an impasse is reached and litigation results, religious believers will be in a stronger position if they can demonstrate that there are reasonable alternatives that can meet their own needs as well as the needs of the government. If religious believers offer no solutions, judicial fears will be at their highest, and courts are more likely to find that the government has met its burden of demonstrating that none exist.

Thus, my proposal gives religious believers and government officials alike strong incentives to pursue extrajudicial solutions to conflicts and to explore fully all possible compromises. Incentives like these combat intransigence on the part of government actors whether from bureaucratic or other fears, prejudice, ignorance, or disregard, and they encourage instead solicitude, consideration, and flexibility. This was what George Washington had in mind when he wrote that “the Conscientious scruples of all men should be treated with great delicacy & tenderness, and…the Laws [should] always be as extensively accommodated to them, as a due regard to the Protection and essential Interests of the Nation may Justify, and permit.”Footnote ⁹⁷ Those in the first Congress envisioned the same thing when they discussed accommodations for conscientious objectors, and this attitude was reflected more broadly in accommodations at the state level. Similar incentives for religious believers also head off a sense of entitlement that disregards the effects of religious practice on others, and they encourage believers to consider these effects and to propose solutions that meet their needs as well as the needs of the government. Mutually acceptable solutions will not always be possible, but the right of exemption that I have proposed is designed to minimize conflicts and to resolve them as far as possible outside the courts. Where litigation does arise, it should be where the parties have reached an impasse that truly represents the limits of what both consider tolerable. It is in these situations that judicial resolutions become inevitable and appropriate.