Like the late Justice Potter Stewart when it came to pornography, I feel like I know religious free exercise when I see it, and I tend to see it in a lot of places. Wearing a yarmulke while in uniform? Sure. Eating peyote as a sacrament? Fine. Practicing polygamy the way they did in the Book of Genesis? So long as everyone’s a consenting adult.
But when your right to practice your faith conflicts with one of my rights problems arise. You can be a devotee of a god who requires ritual cannibalism, but that doesn’t entitle you to eat me for lunch. And what happens if you believe your religion forbids you to rent that third-floor apartment to a same-sex couple, in violation of your town’s anti-discrimination housing ordinance?
Under Justice Antonin Scalia’s majority opinion in Employment Division v. Smith, you should have to rent to the couple. That’s because the ordinance is “a neutral law of general applicability,” over which a free exercise claim cannot prevail. Working in the Clinton White House, Elena Kagan expressed what appears to be a dim view of the Scalia standard, at least as interpreted by the California Supreme Court.
Why does this matter? Because Justice John Paul Stevens, whom Kagan has been nominated to replace, was part of the 5-4 majority in Smith. If she is confirmed, she might flip the court back to its previous standard, which require that “a compelling state interest” be found in order to overturn a free exercise claim.
Church-state expert Melissa Rogers, who believes strongly in religious liberty, views that prospect with some satisfaction. Barry Lynn of Americans United for Separation of Church and State, who never wants to see a religious right trump a secular one, does not. Personally, I like the compelling state interest test, but permitting housing discrimination on religious grounds gives me the willies. If free exercise gives you the right to discriminate against gays, as Kagan appears to believe, why shouldn’t it give you the right to discriminate against African-Americans or Jews?
Will any senator ask Kagan to address this issue at her hearings? I can’t recall any recent Supreme Court nominee being asked about her views on free exercise jurisprudence. But given the recent proliferation of free exercise claims, especially on the right, I wouldn’t be at all surprised if Kagan is.