“A tax on wearing yarmulkes,” the Supreme Court has recognized, is a tax targeted at Jews. But a civil rights law generally prohibiting businesses from engaging in religious discrimination – including denials of equal services to interfaith couples – is not a law targeted at Orthodox Jews. This is true even though the law may have the incidental effect of burdening business owners who believe Jewish Law both strictly prohibits marriage to non-Jews and imposes a “personal duty to avoid meaningful participation in another person’s religiously prohibited behavior.” Likewise, a tax on rosaries is a tax targeted at Catholics, but a law generally prohibiting businesses from engaging in marital-status discrimination – including denials of equal services to couples in which one or both partners is divorced – is not a law targeted at conservative Catholics. And this is true even though the law may have the incidental effect of burdening business owners who believe they should not facilitate marriages prohibited by the Catechism of the Catholic Church, which deems remarriage after divorce to be "public and permanent adultery" and the compounding of a “grave offense against the natural law.”

So too with laws generally prohibiting racial discrimination – including denials of equal services to interracial couples – and laws generally prohibiting sexual-orientation – including denials of equal service to same-sex couples. Although each of the aforementioned types of relationships has been the subject of religious objections in the United States, generally applicable civil rights laws that have the effect of protecting people in those relationships are not targeted at religion. Rather, they are targeted at preventing discrimination on the proscribed grounds (race, religion, marital status, and sexual orientation), regardless of its secular or religious motivations.

The doctrinal importance of the difference between laws targeting religion and laws incidentally burdening religion may seem obvious to many legal observers. After all, it has been 27 years since the Court famously distinguished between laws imposing targeted burdens and incidental burdens in Employment Division v. Smith, explicitly mentioning civil rights laws as an example falling into the latter, non-suspect category. And it has been 20 years since the Court relied upon that distinction in City of Boerne v. Flores to partially invalidate the Religious Freedom Restoration Act (RFRA), which purported to treat state-imposed incidental burdens as suspect. Yet, in a recently filed amicus brief in Masterpiece Cakeshop, two of the nation’s leading religious liberty scholars, Professors Thomas Berg and Douglas Laycock, urge the Court to blur the distinction by fundamentally reinterpreting Smith and its progeny.

The Berg/Laycock argument is not a new one, and I have previously detailed the efforts to champion it in the lower courts. See Lukumi at Twenty, 19 Animal Law 295, 314-335 (2013). The essence of the argument is that Smith, as supplemented by the Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, protects against much more than laws targeting religion. Indeed, according to the Berg/Laycock argument, so long as a law includes even a “single secular exemption” that limits the circumstances in which the state’s interest in the law will be pursued, it is not generally applicable for purposes ofSmith and Lukumi. Berg/Laycock Masterpiece Br. at 27. As a result, the application of such a law to religiously motivated conduct must be subject to same strict scrutiny as laws targeting religion, meaning it will be upheld in “only rare cases.” Id. at 29.

The consequences of adopting this broad selective-exemption rule, as opposed to the narrower individualized-exemption rule discussed in Smith, would be dramatic. As Professor Michael McConnell has observed, “few statutes are genuinely applicable across the board, without exceptions.” Professor Eugene Volokh has made a similar observation, pointing out that “virtually all laws … contain many secular exemptions.” Berg and Laycock themselves have acknowledged this point in their past scholarship, with Berg noting that “[m]any laws contain exceptions for medical or family needs; antidiscrimination and other employment laws commonly exempt small businesses,” and Laycock explaining that “many statutes” fail his understanding of “general applicability” because “[f]ederal, state, and local laws are full of exceptions for influential secular interests.” As a result, embracing the Berg/Laycock position would effectively overrule Smith in a great number of situations, requiring religious exemptions from laws “without regard to whether they had the object of stifling or punishing free exercise.” City of Boerne (explaining that this was precisely why RFRA was not consistent with Smith).

In fact, the Berg/Laycock position would provide a stronger exemption right than existed before Smith, when the Court applied a “necessarily weaker test” than true strict scrutiny. Compare Michael McConnell, Free Exercise Revisionism and the SmithDecision, 57 University of Chicago Law Review 1109, 1127 (1990) (“[I]t must be conceded that the Supreme Court beforeSmith did not really apply a genuine ‘compelling interest’ test….  Even the Justices committed to the doctrine of free exercise exemptions have in fact applied a far more relaxed standard to these cases, and they were correct to do so. The ‘compelling interest’ standard is a misnomer.”), with Berg/Laycock Amicus Br. in Hollingsworth v. Perry at 31 (“If, for example, an anti-discrimination law exempts very small businesses, then the Constitution prima facie requires exemptions for religious conscience, subject to the compelling interest test.”). Cf. Title VII of the 1964 Civil Rights Act (exempting businesses with fewer than 15 employees); Smith (rejecting the strict scrutiny test because it would “presumptively” require exemptions to, among other laws, those “providing for equality of opportunity for the races”).

In arguing that strict scrutiny should apply not only to laws targeting religion, but also to laws implicating their broad selective-exemption rule, Professors Berg and Laycock place principal reliance on Lukumi. Specifically, they rely on the fact the Lukumitreated “neutrality” and “general applicability” in separate sections of its opinion, and they contend that only the “neutrality” requirement concerns the issue of targeting:

These words—target, targeting, object, and gerrymander—are pervasive in the neutrality section of the opinion. But they do not appear even once in the general-applicability section…. General applicability is a distinct requirement. General applicability addresses objectively unequal treatment of religious and secular practices, regardless of targeting, motive, or an improper object.

Berg/Laycock Masterpiece Br. at 22-23. There are multiple problems with this argument, beginning with the text of the general applicability section in Lukumi.

The first paragraph of the general applicability section in Lukumi states that “inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” The second paragraph reiterates that the government “cannot in a selective manner impose burdens only on conduct motivated by religious belief.” The third paragraph highlights that the ordinances being reviewed in Lukumi were “drafted with care to forbid few killings but those occasioned by religious sacrifice.” The fourth paragraph concludes that the city had failed to explain “why religion alone must bear the burden of the ordinances.” The fifth paragraph complains that the city pursues its interest “only when it results from religious exercise.” And the section concludes by finding that “each of Hialeah's ordinances pursues the city's governmental interests only against conduct motivated by religious belief.”

Given the words and phrases that are pervasive in Lukumi’s general applicability section – “only,” “drafted with care,” “religion alone” – the contention that the section had nothing to do with impermissible targeting is simply implausible. See also Justice Scalia’s concurrence in Lukumi (explaining that “the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment”) (emphasis added).

That said, as I’ve noted previously, “the Court viewed Lukumi as an extreme case and deliberately left unclear the appropriate methodology for deciding closer cases.” Lukumi at Twenty, at 298. And if Lukumi had been the Court’s last word on the matter, the broad Berg/Laycock version of the selective-exemption rule, as difficult to reconcile with Smith as it seems, might have remained a viable option, especially given the Court’s past willingness to creatively read free exercise precedent.

But Lukumi wasn’t the last word.

Four years after Lukumi, the Court held in City of Boerne that RFRA exceeded Congress’s power to enforce constitutional rights against the States because it attempted to “alter[ ] the meaning of the Free Exercise Clause” and effect “a substantive change in constitutional protections.” More precisely,

[t]he Court found that RFRA was not designed to confront … unconstitutional laws, because “Congress’ concern was with the incidental burdens imposed [by state legislation], not the object or purpose of the legislation.” And while Congress did compile evidence indicating that religious minorities had been burdened as the result of government neglect and indifference, that was not sufficient. The problem with RFRA was clear: “Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise.”

Lukumi at Twenty, at 330-31. See id. at 330 n.207 (collecting additional quotes from City of Boerne to the same effect).

Berg and Laycock do not mention City of Boerne in the section of their brief contending that laws need not target religion to violate the Free Exercise Clause, but in a later section they dismissively write that “Smith was merely a background assumption in City of Boerne, which interpreted a different clause of the Constitution.” Berg/Laycock Masterpiece Br. at 35. The use of the word “merely” in this sentence is flabbergasting. Smith’s interpretation of the Free Exercise Clause was the essential predicate for the Boerne Court finding a federal statute to be outside Congress’s Fourteenth Amendment enforcement powers and, thus, unconstitutional as applied to the states. As I wrote in 2013:

Having struck down a religious-exemption law enacted by Congress because it was not properly aimed at intentional discrimination, it would be odd indeed for the Court to approve a judicial religious-exemption rule that is not aimed at intentional discrimination…. In short, a broad selective-exemption rule that goes beyond situations suggesting discriminatory intent cannot be reconciled with the Supreme Court’s current understanding of the Free Exercise Clause.

Lukumi at Twenty, at 331.

Berg and Laycock also rely on two circuit court decisions in their brief, but those decisions found targeting and discriminatory intent. See Midrash Sephardi v. Town of Surfside, 366 F.3d 1214, 1234 (11th Cir. 2004) (concluding in the general applicability section of its opinion that the town “improperly excluded religious assemblies because of their religiosity”); Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999) (“[W]e conclude that the Department's decision to provide medical exemptions [to its no-beard rule] while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.”) (emphasis added). It is one thing to infer discriminatory intent when the same, small decision-making body simultaneously approves engaging in particular conduct for secular reasons and disapproves of engaging in the very same conduct for religious reasons, which was the situation in City of Newark. It is quite another to say – as the Berg/Laycock position does – that the government violates the Constitution even when discriminatory intent cannot be inferred (e.g., a case where a legislative body passes a law including some categorical exemptions years before another exemption is sought from executive or judicial officials on religious grounds).

Adopting the broad version of the selective-exemption rule, rather than a narrower version covering only circumstances in which the denial of a religious exemption is suggestive of discriminatory intent, would greatly increase the number of cases in which courts would have to answer what Berg and Laycock admit are “complicated questions.” Berg/Laycock Masterpiece Br. at 34. One such question is whether any secular exemptions included in a law are sufficiently “analogous” to the requested religious exemption to trigger the requirement that the latter be granted. See id. at 25 (“The requirement that analogous religious and secular conduct be treated equally depends on the identification of analogous secular conduct.”). And the allegedly analogous secular exemption Berg and Laycock claim exists in Colorado’s civil rights law reveals just how far they would have courts stretch the concept.

According to Berg and Laycock, the analogous existing “exemption” in Colorado’s civil rights law is actually an omission: while the law requires businesses to provide equal services to same-sex and opposite-sex couples (and, for that matter, interracial and intra-racial couples, and interfaith and intra-faith couples), it does not require businesses to honor a customer’s request to adorn goods with messages “denouncing” same-sex marriage (or interracial or interfaith marriage). Berg and Laycock insist that this so-called “exemption” for businesses that refuse to sell goods with such denunciations “endangers the state’s interests” in its civil rights law “as much as” allowing businesses to deny equal services to same-sex couples.  Berg/Laycock Masterpiece Br. at 4.

How do Berg and Laycock arrive at this astonishing conclusion? They argue that just as same-sex marriage is inextricably linked to gays and lesbians, opposition to same-sex marriage is inextricably linked to Christians, and “[u]nwillingness to promote a protected group’s message either is discrimination or it is not.” Id. But this argument fundamentally misunderstands the state’s actual interest in its civil rights law, while wrongly implying that opposition to same-sex marriage is limited to Christians (or even religious people).

Colorado’s interest in its civil rights law is not the equal promotion of “gay” messages, “black” messages, or “Christian” messages – a goal that would be impossible to achieve since no one person or collection of people can purport to speak for all people who happen to be gay, black, or Christian. Rather, the state’s interest is in ensuring equal access to services in the commercial marketplace regardless of one’s sexual-orientation, race, or religion. Denying same-sex couples services that are provided to opposite-sex couples undermines that state interest in equal treatment, and the same would be true of denying to interracial couples services that are provided to intra-racial couples and denying to interfaith couples services that are provided to intra-faith couples. By contrast, denying a Christian customer a service that would not be provided to customers of another religion or of no religion (e.g., writing statements denouncing other people and/or their marriages) does not undermine the state interest in equal treatment regardless of religion.

One final note: After spending the first 33 pages of their brief advancing an argument for strict scrutiny that is predicated on a strained reinterpretation of Smith, Berg and Laycock argue in the final 3 pages of their brief that the Court should reconsider Smith. As I discuss at length in Part III of this article, I agree. Berg and Laycock correctly point out that, under Smith, the “government can refuse religious exemptions” from generally applicable laws burdening religion “whether or not it has a plausible reason” for denying the exemption “or any reason at all.” Berg/Laycock Masterpiece Br. at 36. This approach is inconsistent with the Court’s treatment of incidental burdens on speech, which are subject to modestly heightened scrutiny to ensure they actually serve a non-trivial state interest. Applying a similar level of scrutiny to incidental burdens on religious practices would ensure protection of practices that are gratuitously neglected in the political branches without requiring exemptions that would – like the one sought by Masterpiece Cakeshop – interfere with the advancement of substantial state interests. See generally Heart of Atlanta Motel, Inc. v. United States (1964) (describing the government’s interest in preventing “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments”); Michael Dorf, Neo-Nazis, Wedding Cakes, and Compelled Speech, Take Care (Aug. 24, 2017) (“[T]he application of a general anti-discrimination or public accommodations law to activity that happens to be expressive would not trigger [strict] scrutiny…. Masterpiece Cake Shop loses because the anti-discrimination interest readily satisfies the watered-down scrutiny that applies to cases of this sort.”).

Disclosure: I am helping to draft an amicus brief in Masterpiece Cakeshop that focuses on issues other than those raised in the Berg/Laycock brief.

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