Justice William Brennan, author of Sherbert v. Verner (1963). (Official Supreme Court photograph.)

In recent years — especially with the debate about Hobby Lobby — I’ve seen lots of people assert that religious exemption regimes are a conservative invention. That’s just not the case, and I thought I’d briefly explain why.

1. The long history of American multiculturalism: To begin with, religious exemptions date back to the Revolution and even the colonial era, because America has always been committed to certain kinds of multiculturalism. Americans in many colonies quickly realized that America was becoming populated with immigrants of many different religious groups, and that it was important to find a way for them to live together in peace. By the time of the framing of the Constitution, this had become pretty broadly accepted at least as to Protestant denominations (a big deal, given how bitter and even deadly the tensions among Protestant denominations had been in the centuries before, both in England and in America), and in many states even more broadly than that.

One way of creating this peaceful — and productive — coexistence was nondiscrimination rules, such as the prohibition on religious tests. The Constitution’s accommodation for affirmations in place of oaths might be seen as an example of that, since a requirement of oaths would discriminate against those groups (such as Quakers) that refused to swear. The gradual disestablishment of established churches was another example, though more complicated in some respects.

But another way was by creating exemptions for specific groups, or for people who had specific beliefs. Classic examples are exemptions from military service for pacifist denominations, exemptions for Jews from certain incest rules (specifically the ban on uncle-niece marriages), and religious exemptions from requirements that hats be removed in court. Doug Laycock’s “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause” discusses this in detail.

In the 19th century, other exemptions were created, for instance a testimonial privilege to refuse to disclose the contents of confessions, and in some states exemptions for Sabbatarians from Sunday closing laws. There were sacramental wine exemptions from state-level prohibition statutes, which of course were also echoed in the 1919 federal Prohibition statute.

2. The shift from a statute-by-statute rule to a presumptive constitutional entitlement: So far, all these exemptions were created, whether by legislatures or by courts, on a rule-by-rule basis. A particular statute — say, a draft law or a prohibition law — might be passed with a religious exemption or without. But starting in the 1940s, when the Court began to forcefully apply the Free Speech Clause to protect free speech, some opinions began to suggest that the Free Exercise Clause might likewise protect at least some religiously motivated conduct (a view that had been rejected by the Court in the Mormon polygamy case, Reynolds v. United States (1879).

This took a while to gain traction, but in the early 1960s, the arch-liberal Justice Brennan began to forcefully advocate this position, and in 1963 he succeeded, in Sherbert v. Verner. The Court was then all liberals or moderates by today’s standards, but the dissenters were two of the more conservative members, Justice Harlan and Justice White (who, though, a Kennedy appointee, was in many ways less liberal than most of the other Justices).

As a result, the Court adopted what later came to be called the Sherbert/Yoder test: Religious objectors are presumptively constitutionally entitled to exemptions from federal, state, or local laws that substantially burden their religious practice — e.g., by requiring them to do something they view as religiously forbidden, by forbidding them from doing something they view as religiously required, or by imposing a financial penalty on religiously motivated action or inaction. That presumption can be rebutted (and it often was), but only when denying an exemption was seen as necessary to serve a compelling government interest.

Now of course it was not lost on the Justices, who were smart people, that any such rule would naturally be applied differently by judges with different ideological views, simply because one way we determine a person’s “ideology” is by looking to see what he counts as sufficiently “compelling” government interests. But that was understood, I think, as an inherent part of any sort of constitutional “balancing test” such as the one crafted by Justice Brennan in this field. Different judges balance differently; we can debate who is right and who is wrong, and regret that there can’t be more consensus on such matters; but better to let judges balance such claims than to reject all such claims outright.

Through the 1960s, 1970s, and 1980s, this rule that religious exemptions are presumptively constitutionally mandated was broadly endorsed by liberal Justices (and many moderates), and was embraced by liberal groups, including the ACLU. Its only foes on the Court were the arch-conservative Justice Rehnquist, and Justice Stevens, who at the time was seen as a moderate.

3. The rejection of the constitutional exemption regime: Then came Employment Division v. Smith (1990), which held that the Free Exercise Clause generally did not require religious exemptions from generally applicable laws (though it left room for many statute-by-statute exemptions). That rejection of religious exemptions was famously led by Justice Scalia, joined by conservative Justices Rehnquist and Kennedy, moderate Justice White, and Justice Stevens, who I think was still viewed as moderate at the time, though he had begun to be viewed as more liberal. (Whether this was because he had changed or because the Court has changed is a matter of debate.)

The dissenters were moderate conservative Justice O’Connor, liberal Justices Brennan and Marshall, and Justice Blackmun, who by then was seen as a liberal. The ACLU weighed in on the dissenters’ side. Religious exemptions were thus still seen as a predominantly liberal cause.

4. The Religious Freedom Restoration Act regime: Smith was denounced from both sides of the aisle, and providing a broad umbrella of religious exemptions became a clearly bipartisan position. A broad coalition — including a vast range of religious groups (liberal and conservative) as well as the ACLU, Americans United for Separation of Church and State, People for the American Way, and the American Humanist Association — urged Congress to adopt the Religious Freedom Restoration Act of 1993. RFRA was spearheaded in the Senate by Republican Senator Orrin Hatch and Democratic Senator Ted Kennedy.

RFRA passed the Senate by a 97-3 vote, and passed the House unanimously. After RFRA was struck down as to state and local governments in 1997 (on federalism grounds), the narrower Religious Land Use and Institutionalized Persons Act of 2000 was enacted. (Because it was focused mainly on federally funded programs and activities that affected interstate and foreign commerce, it has generally been seen as immune from the federalism challenge that cut back on RFRA.) RLUIPA likewise passed unanimously in Congress.

RFRA and RLUIPA have been applied by the Supreme Court three times, once allowing a religious exemption along conservative-liberal lines (Hobby Lobby), and twice allowing it unanimously (Gonzales v. O Centro, which involved a small religious group’s use of the hallucinogenic drug hoasca, and Holt v. Hobbs, which involved a Muslim prisoner’s wearing a beard). In the Supreme Court as well as in Congress and among advocacy groups, religious exemptions have become bipartisan causes — I think likely because conservative Justices who thought the Court shouldn’t use the Free Exercise Clause as a broad mandate to trump legislative judgment have no problem with applying RFRA and RLUIPA, which after all enforce legislative judgment.

5. Between Smith and RFRA, and then after RFRA was struck down as to state and local governments, state RFRAs began to be enacted at the state level. At the same time, some state supreme courts have interpreted their state constitutions as securing protection similar to that offered under the old Sherbert/Yoder test. At this point, more than half the states have one or the other sort of religious exemption scheme in place.

Here, I think that, as time has gone on, state RFRAs have become more likely to be enacted in more conservative states. (I can’t speak to the ideological affiliations of the state supreme court Justices who have adopted state constitutional exemption regimes.) And there certainly have been more objections raised by liberals to state RFRAs. Nonetheless, the ACLU continues to condemn Employment Division v. Smith, and to endorse a broad presumption of religious exemptions.

6. So the pattern is pretty clear. Historically, statute-by-statute religious exemptions have been common in American history. Liberal Justices and advocacy groups pushed, especially starting with the 1960s, for a broader regime of presumptive exemptions for religious objectors, and they got it. Conservative Justices pushed back, and eventually overturned this regime.

Then the movement became bipartisan, as Congress tried to re-enact a broad presumptive exemption regime with RFRA and RLUIPA. And only in recent years has the opposition to religious exemptions — not just individual exemptions in individual cases, but to having RFRA-like regimes altogether — become somewhat more a liberal matter than a conservative one.

Finally, just to stress again: It is inevitable that conservatives would dislike some liberal judges’ application of a presumptive religious exemption regime, just as it is inevitable that liberals would dislike some conservative judges’ application of such a regime. It’s an inherent feature of any such regime. But the premise of the broad bipartisan coalition behind RFRA or RLUIPA (whether or not that premise is normatively correct) is that the benefit of presumptively protecting religious objectors is worth the cost.

In any event, that’s the history of the debate, whatever you might think of what the right rule ought to be.