Who decides when a religious believer should be granted an exemption from a generally applicable rule? Under the constitutional exemption model set up by Sherbert v. Verner the answer is "judges." Under the statutory exemption model of Employment Division v. Smith the answer is "legislatures."  The Religious Freedom Restoration Act (RFRA) and its recent state analogues have been billed as ways to restore the constitutional exemption model.

In this Article, Professor Eugene Volokh argues that the RFRAs actually implement a third model--a "common-law exemption model" in which exemption decisions are initially made by courts but are ultimately revisable by legislatures--and that this approach is better than both of the other models.  He goes on to (1) explain how state RFRAs (and the federal RFRA, as applied to federal laws) track the traditional common-law development of other subconstitutional claims of right; (2) argue that this protects the RFRAs against some of the criticisms of the Sherbert regime levied by Smith; (3) suggest that drafters of the RFRAs should abandon their current reliance on the "strict scrutiny" test; (4) argue that viewing religious exemption claims through a common-law lens helps show the fallacy of the Sherbert constitutional exemption framework; and (5) suggest that the common-law rights model might be profitably applied to certain other proposed exemption regimes, such as a regime of limited exemptions for news gathering.

Introduction
 

I. The State RFRA Model as a Common-Law Exemption Regime

A. The Religious Exemption Problem

B. State RFRAs as a Common-Law Model

C. Common-Law Statutory Exemptions

D. The Common Law and Harm to Others

E. The Practical Effects of a Common-Law Exemption Regime

1. Shifting the Burden of Overcoming Legislative Inertia

2. Shifting the Decision Making from Executive and Local Decision Makers

3. Encouraging a Broader Scope of Exemptions

4. The Difficulty of Predicting Specific Results

F. The Legitimacy of the Common-Law Model After Smith

G. The Problem of Preference for Religion

II. Why State RFRAs Should Not Be Phrased in Strict Scrutiny Terms

A. The Sherbert-Era Regime Was Not a Pure Strict Scrutiny Regime

B. False Analogies to Other Strict Scrutiny Regimes

C. The Impossibility of a Single Formula and the Superiority of a Pure Common-Law Approach

Conclusion

        Introduction

      When should religious objectors get exemptions from generally applicable laws?  Should a landlady who has religious objections to renting to unmarried couples be exempted from antidiscrimination law? Should a person whose religion views peyote or marijuana use as a sacrament be exempted from drug laws? Should a mother who feels a religious duty not to testify against her daughter be exempted from the legal duty to testify?⁽¹⁾

      Equally importantly, who should decide these matters? From 1963 to 1990, the Supreme Court took the view that such decisions should ultimately be made by judges. Under what I'll call the constitutional exemption model, the Court concluded that the Free Exercise Clause generally mandated religious exemptions: A law that substantially burdened religious objectors could be applied to them only if it passed "strict scrutiny" (i.e., served a "compelling government interest" in the least restrictive way possible) and it was up to courts to decide whether this test was satisfied.⁽²⁾

      In Employment Division v. Smith (1990),⁽³⁾ the Court reversed itself, shifting to what I'll call the statutory exemption model.  The Free Exercise Clause, the Court held, does not require exemptions; whether an exemption is available should be up to the legislature.

      Following Smith, Congress adopted the Religious Freedom Restoration Act (RFRA), which purported to restore strict judicial scrutiny of all federal and state laws that substantially burden religious practice, mandating religious exemptions wholesale, rather than one by one as under the statutory exemption model.⁽⁴⁾ When the Court held RFRA unconstitutional as applied to state laws in City of Boerne v. Flores (1997),⁽⁵⁾ supporters of exemptions shifted to proposing RFRA-like statutes in each state; these laws, too, purported to restore strict scrutiny.⁽⁶⁾ The rhetoric in support of RFRA and of the state RFRAs focused on restoration of the constitutional exemption model--a return to having courts decide when exemptions are available.⁽⁷⁾

      But, I argue in Parts I.A-D, this state RFRA approach actually implements a different regime, which I call the common-law exemption model. As under the constitutional exemption model, state RFRAs (and the federal RFRA applied to federal laws)⁽⁸⁾ let courts decide in the first instance whether an exemption is to be granted. But because RFRAs may be revised by the legislature, the courts' decisions aren't final. Ultimately, the tough calls will be governed by the political process,⁽⁹⁾ just as they have been in the common-law system under which American law has generally evolved.⁽¹⁰⁾

      From this observation flow some other conclusions. First, as I explain in Part I.E, the common-law framework gives exemption supporters some of what they want, despite the possibility of legislative override.  By letting courts take the lead in carving out exemptions for conduct that, in the courts' view, doesn't really harm others, the framework shifts the burden of overcoming legislative inertia to favor exemption supporters. Exemptions would thus be rejected only based on a considered judgment, rather than by mechanical application of laws that may have been enacted without any consideration of their possible effect on religious practices. State RFRAs would also make it especially hard for local governments or executive officials to burden religious exercise, though legislatures can, if they want to, avoid this effect using provisions that I describe in Part I.E.2. And, as I explain in Part I.E.3, state RFRAs may embolden judges to carve out exemptions that they might not have carved out under the constitutional exemption model.

      Second, recognizing that RFRAs follow the common-law model, rather than the constitutional model, shows that Employment Division v. Smith's criticism of the constitutional exemption model does not condemn state RFRAs, or the federal RFRA as applied to federal law. As I explain in Part I.F, while a constitutional exemption mandate would give courts too much final discretionary decision-making power, the common-law tradition shows the legitimacy of giving courts initial discretionary decision-making power.

      Third, the similarity between the question courts should ask when applying the exemption regime and the question they ask when developing the common law--when should people's liberty be constrained by the rights and interests of others?--helps show the error of imposing an across-the-board strict scrutiny test. Obviously the complex pattern of common-law rules couldn't be reduced to any such test; likewise for religious exemptions. As I argue in Part II, instead of mandating such a necessarily misleading formula, legislatures should explicitly instruct courts to develop the religious exemption regime using a common-law process. Though this will give courts fairly little initial guidance, the strict scrutiny test doesn't give courts much sound guidance either, and it gives them some incorrect guidance to boot.

      Fourth (and independent of the first three points, which should be acceptable even to supporters of a constitutional exemption model), the common-law regime is better than the constitutional exemption regime. As Part III argues, the constitutional exemption model was flawed for the same reason that the early 1900s substantive due process regime was flawed. "I may do what I like, so long as I don't harm others" is an undeniably appealing principle, but who is to decide--in religious freedom cases or in substantive due process cases--what constitutes impermissible harm to others, and whether such harm is in fact likely to flow from a certain practice? Is it a harm when I refuse to rent you my property? Do I harm you if I refuse to testify on your behalf when your life, liberty, or property is at stake? Would allowing some marijuana use cause harm by increasing street crime or addiction of children? What about peyote?

      There is no judicially discoverable answer to these questions dictated by logic or by the Constitution. Answering the questions is an exercise of moral and practical judgment about what "harm" means and what actually causes harm, and the rejection of the early 1900s substantive due process jurisprudence tells us that this judgment must ultimately be left to the political process: Judges have no basis for conclusively saying that something that the legislature considers harmful is actually harmless.

      The Free Exercise Clause, like other constitutional provisions, does secure a right to do certain categories of things--for instance, discriminate based on race or sex in hiring clergy--even when they harm others. I have no quarrel with such focused religious freedom protections, or with similar protections provided by other constitutional provisions (such as the Free Speech Clause) to certain kinds of conduct that harms others.

      But as I argue in Part III.A.2, such a constitutionally secured right to harm others can't be based only on the religious motivation for one's conduct. A general Free Exercise Clause⁽¹¹⁾ right to engage in a wide variety of conduct simply because the conduct is religiously motivated would be normatively acceptable only if it were limited to conduct that does not harm others, and such a limited right, while appealing, is ultimately not judicially administrable.

      U.S. law has thus generally resisted giving judges the last word on what constitutes harm to others, but it has often given them the first word. Most of the basic rules defining the boundary between people's rights and the protection of others' rights and interests--the rules of tort law, contract law, property law, even in part criminal law--were originally crafted by judges exercising their moral and practical judgment about what constitutes harm. Many such rules are still being developed by judges today, sometimes under statutes that instruct judges to carve out common-law exceptions from broader statutory schemes. The state RFRA approach, with its initial delegation of discretionary authority to judges coupled with the possibility of legislative modification, fits well into this common-law framework.⁽¹²⁾

      Fifth, as I argue in Parts III.F.3-4, legislative exclusions of certain laws or government actions--for instance, antidiscrimination laws or prison rules--from state RFRAs often make sense. These exclusions aren't attempts to undermine the exemption regime; rather, they are an inherent part of the common-law-making process, where legislatures review and occasionally supersede judicial decisions about the strength of countervailing private rights and interests.

      Finally, I briefly suggest in Part IV that the common-law model may make sense for some other kinds of individual rights, rights that ought not be constitutionalized but that nonetheless deserve protection through something more than just specific statutory exemptions. Consider, for instance, exemptions for news gathering. Many general laws were created with little thought about the special problems raised when people violate these laws for news-gathering purposes, just as many laws were written with little thought about the special concerns of religious objectors. A legislature may avoid the mechanical application of these laws in situations where they may be inapt by delegating to courts the power to carve out exemptions for news-gathering activities. Courts would then determine, subject to legislative revision, which news-gathering activities should be allowed because they don't sufficiently harm others (perhaps, for instance, lies or certain technical trespasses in the course of an undercover investigation), and which should be forbidden.

      The religious exemption question exposes a gap in our traditional thinking about law. Religious freedom jurisprudence has generally veered between two polar models of the relationship of courts to legislatures. In the Sherbert regime--which the RFRA rhetoric has generally aimed at "restoring"--courts did all the heavy lifting, and what they lifted stayed in place (absent a constitutional amendment). In the Smith regime, the assumption was that courts played almost no role, and all the decisions were up to the legislature.

      But state RFRAs suggest (perhaps unexpectedly) a third model, which assigns both courts and legislatures a role in developing the law of religious exemptions. This model, I argue, will in the long run lead to a better reconciliation of religious freedom claims and countervailing private rights, just as our common-law system of tort, contract, and property law has produced better results than could have arisen under either an entirely constitutionalized or an entirely codified system of private law.

      I.The State RFRA Model as a Common-Law Exemption Regime

      A. The Religious Exemption Problem

      Religious observers cannot be exempted from all generally applicable laws that burden religious practices. Human sacrifice, religiously compelled seizure of another's property, and the like must be punishable. On the other hand, there has often been broad support for having some religious exemptions, for instance from alcohol prohibition, compulsory military service, and oath requirements.⁽¹³⁾

      The questions have thus been: When should such exemptions be granted, and who should decide when they should be granted? Until 1963, the general answer seemed to be that the matter was up to the legislature, but in Sherbert v. Verner,⁽¹⁴⁾ the Court launched the constitutional exemption regime--whenever a law substantially burdened religious practice and couldn't pass muster under strict scrutiny, a religious exemption was constitutionally compelled.

      In 1990, Employment Division v. Smith largely overruled Sherbert and reinstituted the old statutory exemption model.⁽¹⁵⁾ The Free Exercise Clause, the Court held, generally does not compel religious exemptions. Religious objectors should ask the legislature for specific statutory exemptions, as objectors had done (often successfully) in the past.

      But rather than lobbying for specific exemptions from specific laws burdening religion, supporters of the Sherbert model persuaded Congress to enact the 1993 Religious Freedom Restoration Act. RFRA purported to require religious exemptions from all state and federal laws unless the laws passed strict scrutiny; as its name suggests, RFRA was billed as a way to reinstate by statute the old constitutional exemption regime.⁽¹⁶⁾

      In City of Boerne v. Flores (1997),⁽¹⁷⁾ the Court concluded that RFRA could not constitutionally apply to state governments, because Congress lacked the power to so broadly restrict enforcement of state laws. But Boerne left RFRA in place as a restraint on federal action⁽¹⁸⁾ and didn't preclude the enactment of state RFRAs as restraints on each state government. Following Boerne, exemption advocates have in fact turned to lobbying state legislatures to enact state RFRAs.

      B. State RFRAs as a Common-Law Model

      The debate over RFRA and state RFRAs has operated on the assumption that a state RFRA regime reinstates the constitutional exemption framework--that, as under Sherbert, a religious exemption is judicially guaranteed whenever a law substantially burdens religious practice and can't pass muster under strict scrutiny.⁽¹⁹⁾ And indeed the state RFRAs, though statutes, don't fit the statutory exemption model. Under the statutory model, the legislature decides when a particular exemption should be granted; under state RFRAs, with their relatively vague standards of "compelling government interest" and "least restrictive alternative," the decision is made by a court.

      But state RFRAs, being state statutes, can be modified by the legislatures that enacted them. Thus, under these state RFRAs (or under the federal RFRA as applied to federal law), the answer to the question "When should religious exemptions be granted, and who should decide when they should be granted?" is "When the courts think such an exemption doesn't unduly jeopardize compelling state interests and the legislature hasn't specifically overridden this judgment."⁽²⁰⁾ This represents a significant and underappreciated change from the constitutional exemption model, under which courts had the final say.

      I call the state RFRA approach a "common-law exemption model" because it embodies two aspects of common-law decision making. Unlike the statutory exemption model, and like the constitutional exemption model, state RFRAs delegate the initial decision to judicial discretion: Both the state RFRAs' text and the existing free exercise strict scrutiny case law are so vague that they rarely bind courts to any particular results.⁽²¹⁾

      But unlike the constitutional exemption model and like the statutory exemption model, state RFRAs leave the final decision to legislative discretion. Say a court concludes that a ban on marital-status discrimination in housing fails strict scrutiny, and a legislature disagrees, perhaps because it believes that tenants have a right to be free from such discrimination. The legislature can then simply enact a new statute: "Whereas we conclude that marital status housing discrimination violates tenants' rights, the statute banning marital status discrimination in housing shall be applied without regard to [the state RFRA]."

      Such a revision would face some political difficulty. It always takes effort to get anything on the legislative agenda, and many legislators might be hesitant to cast what can be characterized as "A vote against religious freedom."⁽²²⁾ But religious freedom isn't the only thing that arouses popular sentiments. Legislators voting on whether to retain the exemption might be reluctant to cast what some will call "A vote in favor of discrimination"; the fact that many state RFRA proposals have themselves been defeated⁽²³⁾ suggests that RFRAs need not be sacred cows. A proposed bill carving out an exemption from a state RFRA would be politically similar to other bills, such as ones that reverse common-law decisions imposing various forms of tort liability: It will pass or fail depending on the breadth, depth, and savvy of its political support and opposition.⁽²⁴⁾

      After a while, then, a state's religious exemption law will end up being mostly a creation of the courts, but with legislative modifications. When the legislature concludes that a court was too stingy with exemptions from some statute, it will enact an explicit religious exemption. When the legislature concludes that a court was too generous, it will specifically provide that the statute has no exemption. The result will be much like the tort law, contract law, and property law of many states--a basic body of judge-made law, with alterations imposed by legislators when they disagree with the judges.

      C. Common-Law Statutory Exemptions

      Some may find it odd to hear a statutorily authorized system of exemptions from statutes described as a "common-law" framework; the common law is usually seen as an entirely judicially created construct. But there is ample precedent for this approach. The congressionally enacted Federal Rules of Evidence, for instance, dictate that testimonial privileges are to "be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."⁽²⁵⁾ Some environmental laws use the same language to authorize federal courts to develop affirmative defenses.⁽²⁶⁾ The Copyright Act of 1976 authorizes courts to develop fair-use principles using their own discretion,⁽²⁷⁾ though it provides more guidance than do the Rules of Evidence.

      The Trademark Anti-Dilution Act also allows a fair-use defense.⁽²⁸⁾ Though it doesn't specifically tell courts to develop such a defense using their own discretion, such an instruction has to be implied: Because the dilution cause of action is new, courts must create fair-use law on their own. Likewise, Title VII authorizes courts to carve out exemptions from the sex discrimination ban--necessarily using their own discretion--under the rubric of "bona fide occupational qualification."⁽²⁹⁾ In all these contexts, the legislature has delegated certain decisions to be made initially by judges. State RFRAs are somewhat more sweeping than these statutes, because they apply to the whole body of state law, rather than just to one area, such as copyright, discrimination, or antitrust. Still, the core principle--delegation to courts of the power to create exemptions, coupled with the possibility of legislative power to revise the exemptions--is the same, and seems equally apt regardless of the statute's breadth.⁽³⁰⁾

      In these examples, the legislature apparently expected that there would be (1) a minority of situations (2) that it was unlikely to anticipate adequately (3) in which some concern is morally or practically significant enough to justify a result different from what the statute presumptively requires. If these situations were very common, the legislature would probably have felt obliged to consider them more carefully. If they could be adequately anticipated, then the legislature would likely have set forth a statutory answer for them. And if they weren't significantly different from the core case to which the statute would presumptively apply, there would have been no reason to authorize courts to create special rules for them. But when the three conditions above are present, it makes sense for the legislature to let courts make law for such cases as they come up, defining the private rights involved through a common-law approach rather than a purely statutory one.⁽³¹⁾

      As a class, general laws that may incidentally burden religious practice satisfy at least the first two of the three criteria I outlined above. First, they tend to give rise to religious objections only in a small minority of applications. Second, in a country that has many religious sects, considerable creation of new sects and immigration of people from other religious traditions, and a tendency for individuals or small groups to come up with their own interpretations of religious doctrine, the various objections may often be hard to anticipate.⁽³²⁾ Legislators often pass general statutes without considering that what to most people is a modest, easily bearable restraint might be a much greater imposition on a minority religious group,⁽³³⁾ especially when the group is little known or badly organized politically, or when it arrives or arises after the law is enacted. Requirements of bright signs on slow-moving vehicles might be an example⁽³⁴⁾--many lawmakers may have voted for such requirements thinking that they provide some safety advantage without imposing any serious burden on motorists, and not realizing that to the Amish the requirements may indeed be a substantial burden.

      The harder question is whether the presence of a religious objection is morally or practically significant: Is there reason for the legislature to think that a result that it sees as right in the absence of a religious objection--for instance, people may not use peyote or discriminate in housing against unmarried couples--may become wrong when the objection is present?

      Some might think that the answer is no--that personal beliefs, regardless of their basis or their importance to the person, usually don't matter.⁽³⁵⁾ This might be especially true when the private right vindicated by the law is particularly clear: Thus, I think most would agree that a personal religious belief does not give one a right to intrude on others' property, to defame them, or to breach one's contracts with them.

      But the existence and the seeming propriety of many statutory exemptions suggest that at least sometimes an objector's religious beliefs (or, more broadly, conscientious beliefs⁽³⁶⁾) should influence the result. The law treats people with conscientious objections to war differently from those who have no such objections, even when the different treatment increases the risk of death for the nonobjectors. Federal law and the laws of many states exempt religiously motivated peyote users, though the general peyote ban is premised on the notion that peyote use tends to cause various harms.⁽³⁷⁾

      The legislatures that enacted these exemptions have apparently decided that the presence of conscientious objections can make a difference, and it seems to me--and, in my experience, to most other observers--that at least in some such cases this conclusion is correct. A law that mandates something that is contrary to someone's deep conscientious beliefs imposes a serious burden on the objector, often a much greater burden than it imposes on those who lack such a deep belief on the issue. It's quite right for legislatures to want to ease this burden, especially when easing the burden doesn't harm others.⁽³⁸⁾ And if this is a sufficiently likely scenario--if conscientious objections can be relevant to whether the law should be applied to the objector, and such objections are both rare and hard to anticipate--then it may make sense for legislatures to let courts create such exemptions wholesale (subject to legislative repeal), rather than requiring objectors to lobby the legislature for specific statutory exemptions.

      D. The Common Law and Harm to Others

      That religious exemption regimes fit well with the common-law tradition should not be surprising. The principle of religious exemptions is often defended on the theory that "people should be free to do what their religions tell them to do, so long as they don't harm others";⁽³⁹⁾ but of course American law more generally begins (in at least rough outline) with the principle that "people should be free to do what they want, so long as they don't harm others."

      The real debate, as I discuss in more detail in Part III, is about what "harming others" means, and this debate has traditionally been resolved through the common-law model. Judges creating tort law, contract law, and property law have initially defined what constitutes harm to others. Then, when legislatures have disagreed--for instance, when they concluded that alienating the affections of another's spouse shouldn't be treated as an actionable harm,⁽⁴⁰⁾ or when they concluded that race discrimination in hiring should be treated as a harm--they have revised the law accordingly. Likewise, under the common-law religious exemption model, determining which religious practices don't harm others and should thus be allowed is initially up to the courts, subject to modification by legislatures.

      Consider an example: claims by churches that their religious uses should be exempted from zoning laws.⁽⁴¹⁾ Traditionally, the legal system has assumed that people are entitled to use their real estate however they please, so long as such use doesn't harm others. Neighbors were protected against harm by the common law through nuisance doctrine, but as legislative bodies concluded that certain uses created harms that the common-law rules might not recognize--for instance, traffic congestion, excessive crowding, or loss of privacy--they modified the nuisance law regime with zoning laws.⁽⁴²⁾

      Thus, when religious exemptions are similarly urged on the grounds that people are entitled to follow their religious teachings so long as their actions don't harm others, it likewise makes sense to have courts initially define what constitutes harm, subject to legislative modification. If a court concludes that having a soup kitchen at a neighborhood church, which would normally be an impermissible use under a local zoning ordinance, doesn't really harm neighbors--doesn't infringe their rights or inflict improper externalities on them--it can carve out an exemption. But if the legislature later concludes that the court's decision did not properly consider all the ways in which such a use can inflict harm, the legislature can supersede this judgment, just as zoning laws superseded certain nuisance law principles.

      I am not suggesting that courts must follow common-law rules in deciding on exemptions, for instance by following common-law nuisance doctrine in deciding whether a certain activity should be exempted from zoning laws. Both the judgments about harm embodied in the zoning laws themselves and the special concerns raised when an exemption claim rests on religious grounds may lead the court to create a rule for religious uses that differs both from the common-law nuisance rules and from the statutory zoning rules. But it makes sense for the legal system to make these decisions by relying on the common-law method of initial judicial decision making coupled with the possibility of legislative reconsideration.

      E. The Practical Effects of a Common-Law Exemption Regime

      A common-law exemption regime may generally help religious objectors less than a constitutional exemption regime would, but it gives them significantly more protection than the statutory exemption model does.

      1.Shifting the Burden of Overcoming Legislative Inertia

      Most importantly, the common-law regime shifts the burden of overcoming legislative inertia. To get a statutory exemption, even a fairly uncontroversial one, religious objectors must get space on the legislative agenda, something that may be hard if the religious group is small, unpopular, or not politically well-organized.⁽⁴³⁾ (The separatist religious beliefs of some groups, such as the Amish, may make it especially hard for them to mobilize politically.) It will also take time; while the objectors are waiting for the legislature to act, they may be forced by the law into what they believe to be sinful behavior.

      And winning in the legislature tends to require not just majority agreement but a mild supermajority:⁽⁴⁴⁾ The bill must navigate the legislative committee system and then be accepted by both houses of the legislature and signed by the executive.⁽⁴⁵⁾ If the statutory exemption is controversial, it might be rejected even if it has majority support but not the required supermajority.

      Under the common-law exemption framework, if a court rules in favor of an exemption, the objectors--for instance, members of American Indian religions asking for exemption from a peyote ban--will immediately get the relief they need. The legislature could still revisit this question and specifically reject the possibility of exemptions by enacting a flat ban. But to do that the lawmakers would have to confront the fact that the flat ban would hurt a particular religious group, and perhaps confront a record of some months or years during which the exemption was available and the sky didn't fall.

      They would in any event have to make room for the action on the legislative calendar, itself a test of how important the government interest in across-the-board enforcement really is. And they would have to get the mild supermajority needed to get a law through the lawmaking process. Because the common-law exemption regime shifts the legal and political inertia to the religious objector's side, the objecting group would find it somewhat easier to defend itself. At the very least the objectors would have some modest assurance of a relatively thorough hearing, something they might not get if they bore the burden of lobbying for a statutory exemption.⁽⁴⁶⁾

      This shifting of inertia to those who would undo what courts have done, a hallmark of common-law decision making, has its detractors. Many common-law decisions--for instance, broad expansions of tort law--have been criticized by some precisely because they create new legal rules without any requirement of supermajority popular support, and because they are hard to reverse, even if they are in theory reversible.

      Nonetheless, common-law creation of religious exemptions differs significantly from common-law creation of new torts or crimes. New tort or criminal liability generally creates greater government restrictions or mandates on individual action; new religious exemptions, like new common-law defenses more generally, usually create greater individual liberty from government restriction or compulsion.  This greater liberty may not always be good: The liberty could be a liberty to infringe private rights that should be protected. Still, so long as any errors that sufficiently concern the legislature are correctable, the likely errors in the direction of too much liberty from government restriction are generally--though not always--less harmful than the likely errors in the direction of too much government restraint.⁽⁴⁷⁾

      Common-law decision making also breeds uncertainty, especially because common-law decisions are generally retroactive.  But the uncertainties caused by possible creation of religious exemptions should be less troubling than those caused by the possible creation of new crimes or torts. Putting prosecutors at risk of having a case dismissed under a newly minted religious exemption is not as bad as putting people at risk of retroactive criminal or civil liability. Subjecting religious objectors to the risk that their exemption claim would be denied is unfortunate; but such objectors are no worse off than if they had no chance of exemption at all, or than if they were subject to the equally uncertain constitutional exemption regime.

      2. Shifting the Decision Making from Executive and Local Decision Makers

      Under a common-law exemption regime, either the legislature or the courts must explicitly validate executive and local government conduct that interferes with religious practices. While the legislature can exclude statutes from the coverage of a state RFRA, executive agencies and local governments can't do the same for their actions.

      Consider for instance the Sikh requirement that Sikh men wear ceremonial daggers (kirpans). These kirpans may indeed be purely ceremonial--they are often blunted or sown into their sheaths, and might therefore not significantly threaten public safety.⁽⁴⁸⁾ Nonetheless, some prosecutors might feel prompted to literally enforce laws banning public carrying of knives, and school officials might, out of concern for discipline untempered by any desire for accommodation, expel any students who wear kirpans to school. A common-law exemption regime would let courts carve out an exemption for certain modes of carrying kirpans that judges believe to be harmless; and while the legislature could eliminate this exemption, individual executive officials could not.

      Likewise, consider zoning laws, which some religious exemption supporters say are often enforced without enough willingness to accommodate religious uses.⁽⁴⁹⁾ An ordinance generally limiting an area to purely residential uses might be applied by a zoning board to bar even fairly small weekly religious meetings in people's homes.⁽⁵⁰⁾ If one thinks zoning boards too often focus exclusively on the concerns of majority homeowners, the common-law exemption regime may provide a remedy: The regime would let courts carve out exemptions from zoning laws when the judges believe that such exemptions really wouldn't interfere with neighbors' rights or legitimate interests. And while the state legislature could repeal or modify these exemptions, it might take a broader view of the matter than would a local zoning board whose members may be too focused on their neighbors' concerns.

      The common-law exemption model should thus provide considerable, though not complete, comfort even to those who prefer a constitutional exemption model. The Sherbert-era courts' unwillingness to enforce strict scrutiny really strictly⁽⁵¹⁾ suggests that, even under a constitutional exemption regime, courts would only rarely reject considered legislative judgments that a certain law had to be applied uniformly. Nonetheless, exemption supporters hoped RFRAs would at least let courts create exemptions for religious practices that legislatures never thought about, and would give religious objectors a tool to fight rigid-thinking petty bureaucrats, who themselves don't have much democratic legitimacy.⁽⁵²⁾ The common-law exemption model should in some measure satisfy this desire.

      On the other hand, this preemption of local and executive action could also be a basis for faulting the state RFRA model.  Local governments and executive decision makers are generally given considerable latitude because many people value local self-government, agency expertise, or the elected executive's personal accountability to the voters. State RFRAs would undercut these values.

      In these contexts judicial decision making under state RFRAs departs from traditional common-law decision making. Traditionally, local governments could, within the scope of their powers, supersede some common-law immunities: For instance, even if a court concludes that a certain kind of employment discrimination doesn't constitute common-law wrongful discharge, or a certain kind of land use isn't a common-law nuisance, a city ordinance could nonetheless ban such private action.⁽⁵³⁾ Similarly, even if a court finds that a certain kind of emission fits within a common-law defense to common-law nuisance liability, a state environmental agency may nonetheless enact regulations restricting the emission.

      Is this restraint on home rule and executive powers wise? It is not enough to respond that letting people do things mandated or motivated by their religion is important--as I discuss below in Part III, the question is who should decide when this important interest prevails over what government officials believe to be the important rights and interests of others.  I argue that when courts disagree with the considered judgment of the legislature on whether a religious exemption should be granted, the legislature should prevail; but who should prevail when courts disagree with the considered judgment of a city council, local voters, or executive officials? The answer must depend on how much one supports home rule or executive discretion, and the analysis is generally the same as it would be in any other debate about the proper scope of local or executive power.

      The standard arguments on these subjects are familiar. The argument for greater home rule is the value of self-government by the majority at the lowest possible level, which takes into account the possibility of differing conditions and differing local cultures throughout the state.⁽⁵⁴⁾ The argument against (most famously expressed as to state-federal relations in The Federalist No. 10) is that local governments are more apt to be captured by stable and mostly homogeneous local majorities and are thus particularly likely to undervalue the concerns of minorities.

      The arguments for executive discretion are the need for effective execution of the laws, the greater accountability of a single executive head compared to a plural legislature, and in some contexts greater agency expertise (for instance, as to environmental regulation). The arguments against are that most executive decisions are actually made by unelected bureaucrats, and are thus less democratically legitimate than decisions made by the legislature, and that bureaucrats hired specifically to enforce a particular body of law are more likely than generalist legislators to have a tunnel vision that precludes serious attention to other considerations, such as the interests of religious objectors.⁽⁵⁵⁾

      I am genuinely unsure about how these arguments should ultimately be resolved, but the common-law exemption model provides more flexibility for resolving them than does the constitutional exemption model. To begin with, the legislature could write the state RFRA to say something like "This Act shall not apply to any local legislation, executive order, or agency action that explicitly excludes such application by reference to this Act."⁽⁵⁶⁾ This would leave final local and executive authority intact, but would still allow exemptions so long as there were no considered local or executive judgment to the contrary.

      Alternatively, the legislators can adopt a broad state RFRA and then wait and see. If they eventually find that the state RFRA excessively con-

      strains, say, local authority over zoning or executive authority over government employment, they would have several options. They could exempt these decisions from the state RFRA.  They could implement a special statutory exemption scheme for these decisions. Finally, they could provide, as suggested above, that these decisions be governed by the state RFRA only if there were no specific language in the ordinance or regulation stating that the state RFRA ought not apply. The common-law model thus lets the legislature provide whatever level of home rule or executive discretion it chooses.⁽⁵⁷⁾

      3. Encouraging a Broader Scope of Exemptions

      The possibility of reconsideration by the legislature may actually make courts more willing to grant religious exemptions than they would have been under the constitutional exemption regime. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. Even a judge who thinks that granting a religious exemption from peyote law might not cause that much harm, and who thinks the legislature might not have considered this particular question when it banned peyote, may be hesitant to tie the legislators' hands by declaring that religious use of peyote is categorically protected.⁽⁵⁸⁾ But under a common-law exemption regime, a judge may be more willing to decide close cases in a claimant's favor, precisely because the decision isn't final.⁽⁵⁹⁾

      Judges applying a common-law exemption regime may also be more willing to grant exemptions as experiments. Concluding that the Constitution requires something leaves judges little room to change their minds. Constitutional text isn't supposed to mean one thing this year and the opposite ten years later--judges are popularly expected to interpret the constitution, not decide based on their own changing attitudes. Changes of mind about doctrine are of course possible (Smith itself is an example), as are changes of mind about application of doctrine.  A court might at first conclude that a certain law fails strict scrutiny because some other alternative could be equally effective, but in a later case, with a better factual record, conclude that the alternative is not effective and that the law now passes strict scrutiny. But these changes are hard to justify to the public; realizing this, judges may be reluctant to grant an exemption in the face of uncertain results, because they know that they themselves will be strongly bound by this in the future.⁽⁶⁰⁾

      Changes in common-law doctrines, on the other hand, are more defensible, because there the judges don't have to claim to be interpreting some unchanging text. A court might grant an exemption based on its tentative conclusion that the exemption--for instance, an exemption for religiously motivated peyote use or religiously motivated light labor by children⁽⁶¹⁾--won't do much harm to the government interest; but a few years later, after evaluating the exemption in action, the court might change its view.⁽⁶²⁾ Alternatively, the court may explicitly invite the legislature to review the results of the court-created experiment, and to repeal or modify the exemption if the legislature concludes that the experiment was unsuccessful.

      Of course, courts will always be somewhat reluctant to reverse recently established doctrine, but so long as it is easier for either courts or legislatures to reverse common-law doctrines than constitutional doctrines, courts under a common-law regime should be somewhat more willing to experiment in the face of uncertainty. And experimentation is particularly important in religious exemption cases, where so much turns on uncertain predictions about an exemption's effect, for instance about whether allowing a peyote exemption will indeed substantially interfere with enforcement of the general ban.⁽⁶³⁾

      Judges may also be more willing to grant exemptions under the common-law model because the legislative authorization behind the common-law model makes exemptions easier to defend. Pro-exemption decisions under a constitutional exemption regime say, implicitly or explicitly, "We refuse to apply a democratically enacted statute"; but under a common-law exemption regime, they can be written as "Pursuant to the legislature's command, we apply the democratically enacted state RFRA to carve out a religious exemption." Judges who worry that their decisions might lead to a backlash against the judiciary, or who are philosophically uneasy about the countermajoritarian nature of judicial review, may be hesitant to grant constitutional exemptions but more inclined to grant common-law exemptions.⁽⁶⁴⁾

      These arguments could also cut the other way. Some might argue that a common-law exemption framework would make judges too aggressive at granting new exemptions, and thus too quick to sacrifice the countervailing rights and interests of others, because the ultimate responsibility for the result would be in the legislature's hands.

      But it seems unlikely that judges would systematically overvalue the interests of religious claimants and undervalue the interests of others. True, religious claimants often present viscerally appealing cases, but so does the government, speaking on behalf of people whom the exemption would purportedly hurt. The constitutional exemption regime may have skewed such contests against objectors, because victories for objectors were, if erroneous, more harmful: Such victories could not be undone legislatively whereas victories for the state could be. A common-law exemption regime would eliminate this asymmetry, and thus the distorting incentive to decide against the claimant; and I doubt that it would introduce any new asymmetries in the other direction.

      4. The Difficulty of Predicting Specific Results

      In saying all this, I am not claiming to predict how any particular exemption claims, especially the most contested ones, would come out. I don't know whether and when courts will carve out religious exemptions from housing discrimination laws, zoning laws, or any of the other laws I mention here; nor am I certain about what the right results are in such cases. Likewise, I can't reliably estimate how much a common-law exemption regime will in the aggregate help religious objectors.

      This uncertainty exists partly because the strict scrutiny framework is, as I mentioned earlier, quite vague. More importantly, though, it exists because applying the underlying principle that "people should be free to do what their religions tell them to do, so long as they don't harm others"⁽⁶⁵⁾ requires answering an essentially contested question--what "harm to others" means. And because most hotly disputed controversies do involve a conflict between the desires of religious exemption claimants and the countervailing interests of others, the quality of any proposal cannot be measured simply by how much it helps religious objectors.

      As I explain throughout this Article, I think the common-law exemption model is a particularly good way of answering this question, but settling on this model (or, for that matter, the constitutional model or the statutory model) does not dictate exactly what answers will be reached.

      F. The Legitimacy of the Common-Law Model After Smith

      This analysis also suggests the weakness of one common criticism (which I myself have made in the past⁽⁶⁶⁾) of jurisdiction-by-jurisdiction RFRAs: that they implement exemptions "blindly and en masse" and "shrug[] off the careful weighing which the accommodation of religious practices requires."⁽⁶⁷⁾ True, the legislatures are acting blindly, in the sense that they are enacting a statute that covers situations that they know they can't anticipate, and they are delegating the initial weighing decisions to courts rather than making the decisions themselves.  But the tradition of common-law decision making, including common-law decision making pursuant to statutory authorization, suggests that such delegation to courts is quite sound. If we assign judges considerable discretion in continuing to design tort law, define evidentiary privileges, evolve fair-use defenses to copyright claims, and the like, why not give them similar discretion for religious exemptions? Nothing in either the relationship of the three branches of government (federal or state⁽⁶⁸⁾) or in the Establishment Clause stands in the way of this sort of delegation.⁽⁶⁹⁾

      Likewise, this analysis undercuts the claim that applying the federal RFRA to federal law improperly or even unconstitutionally contradicts Smith's conclusions about the judicial role.⁽⁷⁰⁾Smith's criticism of the constitutional exemption model says little about the propriety of a common-law exemption regime. As I explain in Part III, I substantially agree with Justice Scalia that "it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice"⁽⁷¹⁾--but only because these balancing decisions would bind the political branches.⁽⁷²⁾ In the common-law context, judges routinely balance claims of liberty against countervailing claims;⁽⁷³⁾ the very fact that their decisions may be superseded by contrary legislative balancing prevents such judicial balancing from being "horrible to contemplate."

      This does not dispose of all arguments against RFRA; for instance, one could argue that religious objections don't deserve special consideration,⁽⁷⁴⁾ or one could claim that courts are for some reason unusually bad at making decisions about religious exemptions. Still, the general concern about delegation to judges should be considerably weakened when judges are given only initial decision-making power, not final power.⁽⁷⁵⁾

      G. The Problem of Preference for Religion

      Finally, one possible objection affects all three religious exemption models: Any regime of religious exemptions by definition prefers those whose actions are motivated by religion over those whose identical actions are motivated by equally deeply held secular beliefs. A purely religious exemption from the draft, for instance, would prefer religious conscientious objectors over secular ones.

      If one thinks exemptions are compelled by the Free Exercise Clause--which talks about free exercise of religion--then it's plausible that any such exemptions should be available only to those whose actions are religious.⁽⁷⁶⁾ But this rationale doesn't apply if one rejects the constitutional exemption model: The religious preference embodied in the statutory or statutorily authorized common-law exemptions would be the creation of legislators or judges, not a constitutional mandate. One would have to explain why, as a constitutional matter, such a preference for religion comports with the Establishment Clause, and why, as a policy matter, the preference is morally sound.

      I think the preference is both morally and (less certainly) constitutionally troublesome; the reasons for this have been well addressed elsewhere.⁽⁷⁷⁾ This objection may itself justify opposing state RFRAs as they are now written.

      Nonetheless, this objection applies not only to RFRA-type authorizations of common-law regimes, but also to statutory exemption regimes; and one way of defusing the objection--namely, making the exemption available to anyone who has a deeply held conscientious belief--is available in both situations.⁽⁷⁸⁾ Draft law has been interpreted to include such a conscientious objector exemption.⁽⁷⁹⁾  Courts have generally interpreted Title VII's religious accommodation requirement the same way (though many such statements might be dictum).⁽⁸⁰⁾ A common-law religious exemption regime can similarly be broadened to protect all conscientious objectors, religious or not. Thus, though the concern about preference for religion may lead one to oppose a particular exemption proposal, it isn't an argument against common-law exemption regimes generally.

      II.Why State RFRAs Should Not Be Phrased in Strict Scrutiny Terms

      So far, I have praised state RFRAs in part because they give judges largely complete initial discretion to decide when an exemption should be granted. Both the strict scrutiny test's literal terms and the case law that has emerged under it in religious freedom cases are so vague that they don't meaningfully constrain a judge's range of options,⁽⁸¹⁾ leaving almost unlimited room for judges' own moral and practical judgments about the propriety of granting an exemption. Strict scrutiny in religious freedom cases isn't much of a test--and that's good in a way, because the common-law decision making I praise is a system in which judges are free to come up with their own tests, subject to legislative revision.

      But strict scrutiny is not entirely content-free; some judges might feel to some extent constrained by it. And unfortunately, to the extent that strict scrutiny is a discretion-constraining test, it's the wrong test.

      A. The Sherbert-Era Regime Was Not a Pure Strict Scrutiny Regime

      To begin with, an across-the-board strict scrutiny requirement does not restore the Sherbert-era exemption regime. Rather, it ignores some sound decisions courts reached under that regime.

      As with the case law of many other constitutional provisions (such as the Free Speech Clause), the Sherbert-era constitutional exemption framework was a complex body of law, with not one but several tests. When the government was acting as prison administrator or as commander of military personnel, the religious exemption test--like the Free Speech Clause test--was close to the rational basis framework.⁽⁸²⁾ Lower courts adopted a similarly deferential test for probation conditions that incidentally interfered with religious practices.⁽⁸³⁾ When the government was acting as employer, some lower courts likewise adopted fairly (but not entirely) deferential tests borrowed from the Pickering⁽⁸⁴⁾ test applied in government employee free speech cases.⁽⁸⁵⁾ There was no agreed-on test for the government acting as educator in kindergarten through high school, but courts at least had the option of concluding that the free exercise test--like the free speech test--should be relatively deferential in these cases, too.⁽⁸⁶⁾

      When the government was acting as sovereign, the test was usually strict scrutiny, but not always. For claimants requesting exemptions from generally applicable speech restrictions, the free exercise test was the same as the free speech test, which might differ from strict scrutiny. Content-neutral restrictions on the time, place, or manner of speech, for instance, are only subject to a form of intermediate scrutiny under the Free Speech Clause, and Heffron v. ISKCON⁽⁸⁷⁾ held that this same quasi-intermediate scrutiny was applicable to requests for religious exemptions from such restrictions.⁽⁸⁸⁾ Similarly, some cases suggested that zoning restrictions were subject to a lower standard of scrutiny.⁽⁸⁹⁾

      A few other cases implemented a more religion-protective standard than strict scrutiny. Though courts have generally held that there is a compelling interest in banning each instance of race discrimination in employment, and that antidiscrimination laws are narrowly tailored to this interest, they have generally held that the Free Exercise Clause bars applying antidiscrimination laws to clergy.⁽⁹⁰⁾ As I've argued elsewhere, this rule is in fact a per se ban on interference with a church's reasons for choosing its clergy, not an application of strict scrutiny.⁽⁹¹⁾ Likewise, courts have held that there is a compelling interest in banning each instance of race discrimination in places of public accommodation (setting aside the very small, selective ones);⁽⁹²⁾ but despite this, it's widely assumed that even big, largely open churches may choose their members free of the constraints of antidiscrimination law. This too must be because there is per se protection for such freedom of choice.

      If judges take seriously the statutory command of strict scrutiny, they may reach results that are much less sound than those mandated by the Sherbert-era cases. Say that a police officer, for religious reasons, refuses to guard abortion clinics,⁽⁹³⁾ or that a government mailroom worker refuses to deliver materials that he considers sacrilegious. Administrative efficiency is generally not considered a compelling interest under strict scrutiny,⁽⁹⁴⁾ which may be one reason that free speech cases have explicitly adopted a more deferential standard for government-as-employer regulations, instead of purporting to apply strict scrutiny.⁽⁹⁵⁾ So a court that takes the RFRA text seriously might feel obligated to let police officers choose their beats and let mailroom workers choose what they deliver, thus requiring the government to hire--at considerable expense and cost to morale--more officers and mailroom workers to take up the slack.

      This would be the wrong result. The government should be able to demand that employees do their jobs without having the job requirements pass strict scrutiny, just as the government need not face strict scrutiny when it restricts government employees' rude or disruptive speech to clients or coworkers. The government should be able to control potentially disruptive religious actions by K-12 public school students--such as wearing knives (even blunt ones) to school,⁽⁹⁶⁾ or using peyote at school--just as it may control potentially disruptive student speech.⁽⁹⁷⁾ The government should be able to restrict religious vigils in government office building lobbies, just as it can restrict political demonstrations in this sort of nonpublic forum. And the government, even when acting as sovereign, should be able to treat religiously motivated speech the same as other speech.

      Of course, courts applying a RFRA might nonetheless allow these restrictions. They may either ignore the text--for instance, applying Pickering scrutiny to government employee claims even though the statute calls for strict scrutiny--or stretch the strict scrutiny commanded by the text to reach what they see as the right result, for instance concluding that the government has a compelling interest in workplace efficiency.⁽⁹⁸⁾  But this is far from certain, and, in any event, why set up a test that courts have to ignore in order to reach the right results?

      B. False Analogies to Other Strict Scrutiny Regimes

      So we see that in many contexts--both when the government acts in a special capacity, and when the government acts as sovereign--Sherbert-era courts used tests other than strict scrutiny. But even when the courts claimed to apply strict scrutiny, they didn't and couldn't apply strict scrutiny as it has become familiar in free speech law, race discrimination law, and other areas.

      Free speech law protects speech even when it causes serious harms.⁽⁹⁹⁾ Speeches praising draft resisters may in fact be likely to interfere with the war effort, but they aren't punishable unless they fall within the narrow category of incitement.⁽¹⁰⁰⁾ Racist and sexist speech is constitutionally protected even though it may create or reinforce racist and sexist attitudes and thus lead to illegal discrimination.⁽¹⁰¹⁾ Distribution of sexually explicit material to adults increases the chances that such material will end up in minors' hands, but despite what the Court has called a "compelling government interest" in shielding minors from exposure to this material, distribution of the speech to adults is protected.⁽¹⁰²⁾

      This is not so with religiously motivated acts. Strict scrutiny, the Court has held, doesn't prevent the government from drafting religious objectors, nor does it prevent the government from applying antidiscrimination law to religious objectors.⁽¹⁰³⁾ Speech might harm the war effort or the fight against discrimination more than these claimed religious exemptions would. Nonetheless, the speech is protected but the action--even when religiously motivated--may be banned.

      This difference cannot be explained by any difference in the compellingness of the government interests, which are pretty much the same in the free speech cases and the religious exemption cases. Nor can it be justified on the grounds that there are less restrictive but equally effective alternatives to banning the speech, but no such alternatives to banning the action. One often-suggested alternative, counterspeech, may alleviate some of the harms caused by the speech, but it won't alleviate all, or even close to all.⁽¹⁰⁴⁾ Likewise, the other alternative to restricting the speech--banning the acts of draft evasion or discrimination themselves--will prevent some such conduct, but the bans (especially the discrimination ban, violations of which are notoriously hard to prove) will be substantially underenforced.

      Suppressing the speech, in addition to counterspeaking and banning the action, would prevent some people from even wanting to resist the draft or to discriminate, and would thus probably be considerably more effective than any alternatives would be. Nonetheless, the speech suppression is forbidden, even though the suppression of religiously motivated acts is permitted.

      So long as "strict scrutiny" is used to describe the "strict in theory, pretty much fatal in fact" scrutiny applicable to content-based speech restrictions and to racial and religious classifications,⁽¹⁰⁵⁾ it shouldn't be used to describe the necessarily weaker test applicable to religious exemption claims.⁽¹⁰⁶⁾ When people are asking for freedom not just to speak, or to be treated equally without regard to race, but to act, the law must often intrude on that freedom.

      Using the same term to describe different tests poses three practical problems. First, courts might import the strongly rights-protective traditional strict scrutiny doctrine into religious exemption cases, or at least be influenced by the symbolism of "strict scrutiny" as it has evolved in other areas. This generally hasn't proven to be much of a problem; exemption cases usually seem to apply a considerably looser standard than strict scrutiny as it has been traditionally understood. Nonetheless, the risk of confusion exists.

      Second, courts might export the watered-down religious exemption strict scrutiny into other cases, or, less directly, weaken strict scrutiny in these other cases by diluting its formerly forceful symbolism through its feeble-in-fact application in religious freedom cases.⁽¹⁰⁷⁾ Thus, some courts have held that bans on bigoted speech should pass strict scrutiny under the Free Speech Clause because bans on discriminatory acts pass strict scrutiny under religious freedom principles.⁽¹⁰⁸⁾ Some others have suggested that "the broad public interest in maintaining a sound [and administratively workable] tax system"⁽¹⁰⁹⁾--recognized as compelling for purposes of denying religious exemptions⁽¹¹⁰⁾--might justify restrictions on tax protester speech, though they fortunately did not have to reach the question whether such speech restrictions indeed passed strict scrutiny.⁽¹¹¹⁾

      In my view, these courts erred: Speech restrictions should be less permissible than conduct restrictions, even when the latter incidentally affect religiously motivated conduct. But such an error is to be expected when the tests for speech and conduct are described using the same term.

      Third, promising strict scrutiny, with its historical connotation of extreme skepticism concerning the government action, but delivering something considerably weaker diminishes courts' credibility and risks further alienating religious objectors. It's upsetting enough for people to see their deeply felt claims rejected; it's worse when the legal system claims to greatly respect such claims but in reality readily sweeps them aside. Better to acknowledge that people's religious conduct must necessarily be less protected than their speech or their right to be free from race discrimination than to claim the protection is identical but then in practice protect one right much less strongly than the others.⁽¹¹²⁾

      C. The Impossibility of a Single Formula and the Superiority of a Pure Common-Law Approach

      As my discussion in Parts III.F.3-4 will show, I don't insist that legislatures delegate all decisions to the courts. I think the legislators should set forth discretion-constraining rules when they think the courts have reached (or fear the courts will reach) incorrect results. But, for the reasons given above, strict scrutiny is just the wrong rule--the Court was wrong to adopt it, and legislatures would be wrong to restore it.⁽¹¹³⁾

      And no single formula, or even small set of formulas, can be the right rule for all exemption cases. As I argue throughout, any religious exemption regime must reconcile religious objectors' claims with the countervailing private rights and interests of others.⁽¹¹⁴⁾  Tort law, property law, and contract law have evolved from attempts at this very sort of reconciliation between liberty claims and others' rights, and these complex bodies of law can't possibly be united under one verbal formula, unless the formula is so broad as to be meaningless.

      Likewise with religious exemptions. Courts can make the initial moral and practical judgments about when a countervailing right or interest should yield to a religious objector's claim, but these judgments can't be reduced to a single test. Better to acknowledge this and explicitly delegate to courts common-law-making authority so that they can generate different tests for different situations.

      Some state constitutions have been interpreted to fairly significantly constrain delegations of legislative power,⁽¹¹⁵⁾ but my proposal should be permissible even in those states. The principle underlying the nondelegation doctrine is that each branch of government--the legislative, the executive, and the judiciary--may only exercise powers that are within its proper sphere.⁽¹¹⁶⁾ But as I've argued above in Parts I.B-C, what is delegated here to courts is only the power that Anglo-American courts have exercised for centuries--the power to make common-law rules that are subject to revision by the legislature.

      The absence of a test would, of course, create unpredictability, and thus a chilling effect. For instance, a religiously-motivated peyote user who doesn't know whether a court will carve out a religious exemption to a peyote ban under a vague common-law exemption regime may be deterred from practicing his religious ritual. But the presence of a test such as strict scrutiny wouldn't help. In both situations, there is no clear rule governing the use of peyote until a court renders a decision addressing the specific practice. Strict scrutiny is the worst of both worlds--as I argue above in Parts II.A-B, it's potentially constraining enough to lead to the wrong results, but not constraining enough to lead to predictable results.

      D. Proposal for a Pure Common-Law State RFRA

      I want to suggest, therefore, that the common-law exemption model should be implemented through a statute that explicitly delegates to courts the discretion--unconstrained by strict scrutiny or other such ultimately misleading formulas--to initially decide which exemption claims win and which lose. Such a statute might look something like this (with alternative choices and optional material in brackets):

      WHEREAS the legislature has a duty both to protect people's freedom to practice their religions and to protect people from harms created by others' behavior; and

      WHEREAS some laws inadvertently incidentally restrict religious practice that is not harmful, but other laws must incidentally restrict religious practice in order to prevent harm;

      Be it enacted that:

      (1) The government shall not substantially burden⁽¹¹⁷⁾ a person's exercise of [religion/conscience] unless

      (a) it demonstrates that such a burden is justified, or

      (b) the legislature has specifically exempted the government action from the coverage of this statute[, or]

      [(c) the local legislative body that authorized the action has specifically stated, by ordinance or comparable official enactment, that the action is to be exempt from the coverage of this statute, or]

      [(d) the executive official or executive branch agency that authorized the action has specifically stated, by executive order, regulation, or comparable official act, that the action is to be exempt from the coverage of this statute].

      (2) Whether a burden is justified shall be decided under the principles of the traditional law of [religious/conscientious] exemptions as they may be developed, expanded, contracted, or modified by the courts of [the jurisdiction] in the light of reason and experience.

      (3) "The traditional law of [religious/conscientious] exemptions" shall refer to the body of law related to religious [or conscientious] exemptions developed by courts and legislatures of the United States and of the several states, including:

      (a) Legal principles developed by courts pursuant to statutes or constitutional provisions requiring religious [or conscientious] exemptions from generally applicable laws.

      (b) Decisions by a legislature or a court to exempt religious [or conscientious] objectors from the scope of a particular statute, common-law rule, or other government action.

      [(4) "Conscience" shall include religion and religious practice and belief, as well as practice and belief that flows from moral or ethical beliefs about what is right and wrong that are held with the strength of traditional religious convictions.]

      A brief explanation:

      1. The statute begins by setting forth the general rule: Substantial burdens on religious exercise are forbidden, unless either a court or the legislature explicitly concludes that they are justified; depending on the legislature's views on the questions discussed in Part I.E.2, a local government body or executive agency can also be given the same power. The statement that legislative action can justify a burden makes clear that the legislature is expected to play a role here--that legislative revisions of the judicially created rules are part of the normal process of crafting religious exemption law, not repeals of any broad religious freedom principle. This recognition of the legislature's authority fits with the theory of the common-law regime, and as I explain in Part III, such legislative authority is actually a good thing.

      2. The statute goes on to direct courts to develop the law of religious exemptions, building on existing decisions but with the explicit authorization to "expand[], contract[], or modif[y]" the principles. The phrase "principles . . . as they may be [developed] by the courts in the light of reason and experience" is borrowed from the Federal Rules of Evidence, which say that testimonial privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."⁽¹¹⁸⁾

      3. The statute authorizes courts to look to religious exemption law developed both by courts and by legislatures in all jurisdictions. Though the common law is generally seen as being built on prior court decisions, looking to principles developed by legislatures makes sense. A considered judgment by a legislature that a particular law (for instance, alcohol prohibition, a draft law, or a peyote ban) can adequately serve its goals despite a religious exemption is a useful data point.⁽¹¹⁹⁾

      4. The statute may protect nonreligious conscientious objectors as well as religious ones. The language defining conscience is drawn from Welsh v. United States,⁽¹²⁰⁾ which read the conscientious objector exemption to the draft as including nonreligious objectors.⁽¹²¹⁾

      III.The Difficulties with the Constitutional Exemption Regime

      Even if all I say above is true, why isn't a constitutional exemption regime even better? Much has been written about whether Smith is correct, but I believe the comparison with the common-law exemption regime, coupled with a focus on the common law as the traditional means for defining when liberty must be constrained to prevent harm to others, provides a relatively novel approach to this question. This approach leads me to conclude that Smith rightly rejected the constitutional exemption model and that the common-law model is the best solution, not just a fourth-best alternative to federal constitutional exemptions, state constitutional exemptions (discussed in Part III.F.1), and a broad federal "son-of-RFRA" (discussed in Part III.F.2).

      A. Three Kinds of Free Exercise Clause Claims

      1. Several Specific Prohibitions on Government Action

      We can divide claims for Free Exercise Clause protection--both those that may win under current doctrine and those that will likely lose--into three categories. The first category contains several relatively focused rights. People have a right not to be discriminated against by the government because of their religion, or because of the religiosity of their conduct.⁽¹²²⁾ Everyone has a right to sincerely express his religious views and even to solicit money based on them without being punished (for instance, by general laws punishing solicitation of money based on misrepresentations) for the supposed falsity of these claims.⁽¹²³⁾ Ministers generally may not be sued for clergy malpractice or for breach of fiduciary duty to those whom they counsel, even though similar secular counselors may be subject to this sort of liability.⁽¹²⁴⁾ Churches have great autonomy in hiring and firing clergy, without constraint from antidiscrimination laws, labor laws, or (possibly) the torts of negligent hiring and retention.⁽¹²⁵⁾

      Churches likewise have autonomy in choosing their members, without restriction by public accommodations laws or creative tort actions for "wrongful excommunication."⁽¹²⁶⁾ People are free to spread their religious doctrine even if the doctrine leads those who accept it to act badly (though the Free Speech Clause also bans such government restrictions). And courts may in the future recognize some other similarly narrow Free Exercise Clause principles.

      These protections share four related attributes. First, they focus on particular kinds of behavior (clergy hiring, membership decisions, or spread of religious doctrine) or on particular kinds of government action (determination of the truth or falsity of religious claims or discrimination against religious practice), rather than on all religiously compelled or motivated behavior.

      Second, each of the protections is justified by something more than the religious motivation for the claimant's actions. Church autonomy, for instance, is justified by the importance of unhampered clergy selection and membership selection to the churches' ability to define and propagate their teachings.⁽¹²⁷⁾ The bar on discrimination against religious practice is justified by equality concerns; the bars on judicial determination of the truth or falsity of religious claims and on judicial definition of a minister's fiduciary duty to parishioners is justified by the perceived impropriety of getting secular courts involved in religious disputes.⁽¹²⁸⁾

      Third, the protections apply even when the conduct they protect causes certain kinds of harm to others. Though the legal system recognizes employment discrimination as a harm to the applicant or employee, religious institutions nonetheless have a First Amendment right to inflict such harm when hiring or firing clergy.⁽¹²⁹⁾ Though the legal system recognizes procuring money based on misrepresentations (even sincere ones) as a harm to the person who pays the money, the First Amendment nonetheless bans the government from preventing this harm when the harm is inflicted through sincere--even if possibly false--religious claims.⁽¹³⁰⁾ And fourth, this willingness to protect these rights despite the harms they cause explains why they remain protected quite strongly, rather than under the generally feeble scrutiny provided by the Sherbert-era constitutional exemption regime.⁽¹³¹⁾

      This set of specific protections is thus similar to the protections offered by other constitutional provisions. For instance, the strongest protection of freedom of speech (strict scrutiny or something similar) applies to a specific set of laws--those that punish speech because of its communicative impact. Within that zone, free speech includes the freedom to inflict certain harms through the communicative impact of speech that would be punishable if inflicted in other ways.⁽¹³²⁾ I may with impunity urge a political boycott of your business, even if it violates your right, secured by tort law, to be free from intentional interference with business relations.⁽¹³³⁾ I may express the nastiest opinions about a public figure, even if my speech violates his right to be free from intentionally inflicted emotional distress.⁽¹³⁴⁾ I may collaborate with my competitors to lobby for anticompetitive legislation, even when the legal system generally recognizes similar anticompetitive activity as inflicting a harm on others.⁽¹³⁵⁾ I may record a song that praises cop-killers, even if it actually leads others to kill.⁽¹³⁶⁾

      Likewise for other provisions. The Compulsory Process Clause secures a narrow right, but one that entitles the bearer to inflict a certain sort of harm on others by interfering in a particular way with another's liberty and privacy. Certainly any private attempt to drag someone against his will into a room, make him talk on pain of imprisonment, and require him to turn over his property for inspection would normally be seen as a gross deprivation of private liberty and property rights. Nonetheless, the Compulsory Process Clause authorizes such infliction of harm.⁽¹³⁷⁾

      Similarly, the privilege against self-incrimination lets a person deny to litigants (and not just to the government) the testimony to which they would normally be entitled.⁽¹³⁸⁾ State and, more controversially, federal rights to keep and bear arms let people possess and even carry guns, which many think creates serious improper externalities for others.⁽¹³⁹⁾ As with the specific religious freedom protections I mentioned above, these rights provide--within a limited zone--rather strong protection against certain laws, even when this protection shields conduct that causes certain kinds of harm to others.

      The courts haven't arrived at any general theory uniting the focused areas of protection that I outline above and explaining when the Free Exercise Clause protects behavior even though it harms others, just as they haven't endorsed any grand theory about exactly when speech that harms others should be protected by the Free Speech Clause. Such a theory (if sound) would be tremendously valuable, in part because it would explain when it would be proper to create new areas of Free Exercise Clause protection; but to my knowledge none has been developed.

      Still, I am not alone in concluding that these focused areas of protection should be treated specially, and differently from any broader regime of religious exemptions (such as those described in the next two subsections). Some of these focused areas existed before Sherbert,⁽¹⁴⁰⁾ they continue to exist after Smith,⁽¹⁴¹⁾ and even during the Sherbert era they evolved separately from the constitutional exemption regime.⁽¹⁴²⁾ For now, I assert only that certain special concerns--for instance, the need to avoid decision of religious questions by civil courts or the need to preserve the autonomy of religious institutions--do indeed justify protecting certain kinds of religious behavior that harms others.

      2. A General Regime of Exemptions for Conduct Even When It Harms Others

      A second possible kind of free exercise claim is a broad right to do whatever your religion motivates (or, in some formulations of the theory, compels⁽¹⁴³⁾) you to do, simply because of your religious motivation. Taken literally, such a claim is clearly too broad. Surely no court would immunize, for instance, murder or rape simply because the perpetrator acted out of religious conviction.

      Nonetheless, one might argue, while the right to life or to bodily integrity is more important than religious freedom, the right to religious freedom is more important than some other rights.  Thus, the argument might go, religious conduct might be protected even when it harms others in certain ways, perhaps even when it constitutes, for instance, assault, breach of contract, copyright infringement, libel, trespass on private property, or negligent infliction of physical injury.⁽¹⁴⁴⁾ One formulation I have sometimes heard is that religious conduct should be constitutionally protected even when it harms others so long as the harm to others is outweighed by the importance of the conduct to the religious observer.

      But such a claim is normatively unappealing. My relationship with my God may be important to me, but how can it by itself--setting aside any special, narrower justifications, such as those discussed above in Part III.A.1--be a constitutionally sufficient justification for my harming you, even slightly?  From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests.

      The trouble with such a broad religious freedom claim is not that private contract, property, and tort law rights somehow outweigh religious freedom rights--how could we justify such a conclusion?⁽¹⁴⁵⁾ Even if one somehow determines that contract, property, and reputation rights are as important as religious freedom rights, I see no way to explain why they are more important, which would be required to show such an outweighing. Rather, the reason why a general exemption regime can't override these rights must be that any religious freedom right that's solely grounded in the religious motivation for one's actions simply can't extend to actions that impair others' rights or impose improper externalities on others. Whether your countervailing right is a right to life, to bodily integrity, or to something perhaps somewhat less important, such as property or reputation, if it is indeed a right then the religiosity of my motivation can't justify violating it.

      Constitutional protection for inflicting harm on others simply because of the nature of one's motivation (as opposed to other, more focused reasons such as those discussed in Part III.A.1) is virtually unprecedented. The only constitutional principle that even approaches such a regime is the expressive conduct doctrine, which in some formulations supposedly does protect otherwise regulable conduct, even conduct that harms others in certain ways unrelated to the conduct's communicative impact, when it's engaged in for expressive reasons.⁽¹⁴⁶⁾  But even this doctrine is probably considerably narrower than its broadest statements: The Court has at times suggested that it might apply not to all conduct, but only to conduct that is commonly used as expression.⁽¹⁴⁷⁾ And in any event, the protection this doctrine offers is a fairly weak form of intermediate scrutiny, which has proven quite deferential to government interests, and not the strict scrutiny promised by the Sherbert-era religious exemption cases.⁽¹⁴⁸⁾ If expressive conduct is constitutionally allowed to inflict harm on others, these harms can at most be modest indeed; the prevention of even aesthetic harms, such as the "visual blight" created by billboards, has often been found sufficient to justify restrictions.⁽¹⁴⁹⁾ If this very weak scrutiny were transplanted to religious exemption claims, it would deny exemptions in virtually all the hotly disputed cases.

      The Court is correctly unprepared to protect a wide range of conduct that harms others in noncommunicative ways simply because of the actor's expressive motivation. The communicative reasons for your actions--a sit-in on my property, discrimination against me in hiring or housing, or whatever else--generally can't justify the noncommunicative harms that the actions may inflict on me. Likewise, the religious reasons for your actions can't, by themselves, justify harms to others.

      3. A General Regime of Exemptions for Conduct That Does Not Harm Others

      The most common claim for a constitutional exemption regime is the third kind--a broad right to do what your religion motivates you to do, simply because of your religious motivation, but only so long as it doesn't harm others. Jefferson's defense of religious freedom, for instance, was justified by the argument that someone's "say[ing] there are twenty gods, or no God . . . neither picks my pocket nor breaks my leg."⁽¹⁵⁰⁾ Madison wrote that religion should be "immun[e] . . . from civil jurisdiction, in every case where it does not trespass on private rights or the public peace."⁽¹⁵¹⁾ Similarly, Michael McConnell, one of the leading authors on free exercise law, argues that we should be "free to practice our religions so long as we do not injure others."⁽¹⁵²⁾

      I intentionally cast the discussion here in terms of harm to other people, not harm to government interests. The traditional focus on the supposed clash between individual rights and countervailing government interests--both under the Sherbert religious freedom regime and under substantive due process--tends to obscure the fact that behind virtually all government interests (at least those asserted when the government is acting as sovereign⁽¹⁵³⁾) lies a claimed right or interest of some individual.⁽¹⁵⁴⁾ The government, after all, neither bleeds nor eats nor desires; its power is enlisted to defend the felt rights and needs of people.⁽¹⁵⁵⁾

      Any claim of countervailing private right can, of course, be reformulated as a compelling government interest in protecting such a right, and the case law in fact often does this;⁽¹⁵⁶⁾ my focus on the concerns of others is thus entirely compatible with the compelling interest test. Nonetheless, I think that looking at the matter as being primarily about the countervailing rights and interests of individuals better illuminates the inquiry.

      And when exemption proposals are limited to conduct that doesn't harm others--that doesn't invade their rights or impose improper externalities on them--they seem quite appealing. After all, if my religiously motivated actions genuinely harm no one, why shouldn't I be allowed to engage in them?

      B. The Private Rights and Interests of Others

      1. The Debates About What Constitutes the Private Rights and Interests of Others

      The difficulty is that what constitutes "invading the rights of others" and "imposing improper externalities on others" are hotly contested questions. Do people have a right not to be economically pressured into working at exploitative wages?⁽¹⁵⁷⁾ Do people have a right to be free from various kinds of discrimination in private commercial transactions?⁽¹⁵⁸⁾ Do children have a right--unwaivable by them because of their immaturity--to be educated until age sixteen?⁽¹⁵⁹⁾ Do litigants have a right to require a reluctant witness to testify?⁽¹⁶⁰⁾

      Do householders have a right to be free from the intrusion and annoyance created by certain kinds of land use by their neighbors?⁽¹⁶¹⁾ Do businesspeople have the right to be free from various forms of unfair competition--unfair because it's monopolistic or potentially involves misleading consumers, or because it takes advantage of certain cost savings?⁽¹⁶²⁾ Does a person's failure to report for the draft impose unjustified externalities on other draft-eligible people?⁽¹⁶³⁾ Do creditors have a right to repayment by a bankrupt debtor that precludes the debtor from giving away his property as he sees fit?⁽¹⁶⁴⁾ The answers to these questions can't be deduced through pure logic or traditional constitutional analysis.⁽¹⁶⁵⁾

      Similarly, there are lively debates about when the likelihood of violation of others' rights by some justifies a restraint on the liberty of all. Most agree that some such prophylactic rules are proper: Consider bans on drunk driving, which are justified by the possibility that a drunk driver might cause injury to another, even though most instances of drunk driving do not actually cause such injury. May the law likewise ban other driving practices--such as driving a horse and buggy without an orange reflector--that foreseeably pose a risk to others, but that need not necessarily cause injury?⁽¹⁶⁶⁾ What about possession and use of alcohol or drugs, which lead some people to act criminally or tortiously, but which others use quite safely?⁽¹⁶⁷⁾ What about possession or carrying of certain weapons, which some people use to violate others' rights but which others use for innocent, even laudable, purposes?⁽¹⁶⁸⁾

      Neither is there a consensus about whether certain externalities actually flow from certain kinds of behavior, or which of those externalities are improper. Is an employer imposing an improper externality on taxpayers when, by paying employees a lower wage, it "casts a direct burden for [the employees'] support upon the community," on the theory that "[w]hat these workers lose in wages the taxpayers are called upon to pay"?⁽¹⁶⁹⁾ Is an employment agency imposing an improper externality when, through its actions, it increases unemployment, and do such agencies' actions in fact tend to increase unemployment?⁽¹⁷⁰⁾ Is a motorcyclist acting improperly when he rides his motorcycle without a helmet, thus increasing his chances of suffering an injury for which the taxpayers will have to pay?⁽¹⁷¹⁾ Does drug use really lead to more street crime than would the less restrictive alternative of decriminalization?

      Thus, the debate is not really about whether people should be able to do what they please so long as they don't harm others. The reason for most restrictions on conduct is precisely that people think the conduct does harm others.⁽¹⁷²⁾ In my experience, for instance, when people have defended the religious landlady's claimed right to discriminate against unmarried couples in housing rentals, they have rarely claimed that, just because the landlady's beliefs are religious, she is entitled to deny to tenants their private right to equal treatment (the second kind of claim I outlined above). Nor have they generally admitted that the landlady's conduct imposes some real harm on the tenants while arguing that the harm is outweighed by the benefit to the landlady's religious practice. After all, when conduct genuinely causes harm to another--as for instance when the conduct is a trespass on the other's property, a breach of contract, or an infringement of the other's copyright--such a harm, even if relatively modest, can't be justified on the grounds that the person inflicting the harm might get a tremendous spiritual benefit from acting this way.

      Rather, supporters of the landlady's right usually make the third kind of claim--that the landlady's religiously motivated decision should be immune because it doesn't really harm the tenants, since the tenants don't really have a true private right to equal treatment. The debate is thus about who ultimately defines what constitutes "infringement of the private rights of others" or "imposition of improper externalities on others"--the legislature or the courts.

      2. The Connection to the Early 1900s Substantive Due Process Debates

      The power to define, as a final, constitutional matter, the limits of another's lawful private rights or to decide what constitutes an unjustified externality is the very power that proved so troubling in the early 1900s substantive due process cases. Those cases, after all, didn't purport to reject the government's right to protect people against injuries inflicted by others, but they did claim for courts the power to finally define what was an injury and what was not. A minimum-wage law was unconstitutional because the employer wasn't hurting the employee by paying him too little.⁽¹⁷³⁾  A ban on employers' requiring employees to agree not to join a union was unconstitutional because it didn't violate anyone's rights for an employer to discriminate based on a person's union membership.⁽¹⁷⁴⁾ A law allowing certain kinds of picketing was unconstitutional because union members had no right, and could be given no right, to engage in "palpable wrongs" such as "libelous attacks," "abusive epithets," and "unlawful annoyance and . . . hurtful nuisance."⁽¹⁷⁵⁾ A maximum-hours law was unconstitutional because there was no legally cognizable harm, the Court assumed, in a bakery owner's bargaining with employees for a work week longer than sixty hours.⁽¹⁷⁶⁾

      On the other hand, a requirement that an employer issues a discharged employee a letter "setting forth the nature and character of his service [rendered] and its duration, and truly stating what cause, if any, led him to quit such service" was upheld because it helped preserve the employee's reputation, which "is an essential part of his personal rights--of his right of personal security."⁽¹⁷⁷⁾ A zoning law prohibiting apartment buildings in a certain residential area was upheld because the buildings, with their tendency to create various externalities for neighbors--"street accidents," "noise," "interfer[ence] . . . with the free circulation of air and monopoliz[ation of] the rays of the sun"--"come very near to being nuisances."⁽¹⁷⁸⁾ An alcohol ban was upheld because "the general use of intoxicating drinks" leads (albeit indirectly) to "idleness, disorder, pauperism, and crime."⁽¹⁷⁹⁾ Some claims of externalities and countervailing private rights won and some lost, with little to explain the distinction beyond the moral and practical senses of the judges, and perhaps the degree to which the claims fit with traditional common-law rules.

      The Court ultimately repudiated this substantive due process jurisprudence, because it concluded that the legislature may redefine private rights by, for instance, deciding that people had a right to "protection from unscrupulous and overreaching employers," or to be free from being "exploit[ed] . . . at wages so low as to be insufficient to meet the bare cost of living."⁽¹⁸⁰⁾ Likewise, the legislature may try to prevent more indirect externalities, such as the "burden [imposed] upon the community" for the support of workers who are being paid less than "[t]he bare cost of living."⁽¹⁸¹⁾  The legislature wasn't limited to protecting private rights akin to those traditionally secured by the common law, such as reputation or freedom from nuisance. It could also recognize new private rights, even controversial ones, and protect them even though this meant limiting the liberty of people to infringe those new rights.

      A constitutional religious exemption regime would either return courts to identifying their own favored view of what really constitutes others' private rights and interests, and enforcing it contrary to the political branches' views, or would require them to rule that certain violations of others' private rights and interests must be permitted just because the violator acted for

      religious reasons. Imagine, for instance, a would-be employer who comes to court and sincerely says:

      I have a religious obligation to hire this employee for $3 per hour to work in my factory. I interpret the Bible as commanding all Christian employers to hire the needy and to pay them what the employer honestly thinks the employee's labor is worth, no more and no less. "[T]he labourer is worthy of his hire," but no more.⁽¹⁸²⁾ These unemployed people whom I wish to hire are needy, and I believe their labor is worth $3 per hour.

      This is an unorthodox view but in our religiously pluralist and nonhierarchical culture, some people probably sincerely hold it, and such individual sincere belief is enough to trigger a religious freedom claim, even if the belief isn't widely accepted by a broader religious group.⁽¹⁸³⁾ Many devoutly religious people believe that virtually all their moral views flow in some measure from religious command: Plenty of people believe both that they are morally obligated to help the poor and that it's morally proper for workers to be paid what their labor is worth, and I suspect that at least some believe it morally proper to pay no more and no less than this amount.

      If the employer demands an exemption from minimum-wage laws on the grounds that these laws infringe his general liberty under substantive due process, he will lose.⁽¹⁸⁴⁾ During the early 1900s, he would have won--a court would have concluded that he had the right to hire people at whatever wage they agreed to, because this didn't violate anyone's private rights.⁽¹⁸⁵⁾ But this jurisprudence was rejected because courts recognized that what constitutes "another's rights" is not fixed by the Constitution. Libertarians like me might believe there's no right to be paid "a decent wage," and no right to be free of competition from those who are paid a lower wage. But others disagree and believe that paying someone $3 per hour does violate the employee's rights and the rights of competing employees.⁽¹⁸⁶⁾ Under modern substantive due process law,⁽¹⁸⁷⁾ "the rights of others" are for the legislature, not the courts, to ultimately define.

      A constitutional religious exemption regime, though, would give our employer a facially viable claim. The minimum-wage law bars the employer from doing what he sincerely (though idiosyncratically) believes his religion commands--certainly a substantial burden. If one takes Sherbert seriously, a court would thus have to decide whether the minimum-wage law is the least restrictive means of serving a compelling government interest, a standard even stricter than that applied in the early 1900s substantive due process cases. And deciding whether there is a compelling government interest here depends in large part on one's vision of workers' rights.

      As in Adkins v. Children's Hospital,⁽¹⁸⁸⁾ the court would have to make this moral decision itself, perhaps superseding the judgment reached by the legislature. A court using the "exemptions are mandated unless they harm others" model might tell the legislature:

      Yes, we recognize that you think workers have a private right to be paid a decent wage, akin to the private right to be free from trespasses, theft, defamation, nuisance, and the like--but you're wrong. We have compared these claimed rights, and find that the supposed right to be paid a decent wage is just not in the same league as the others. The Constitution doesn't let people trespass, steal, or defame for religious reasons, but it does let people acting for religious reasons violate this right that you think is so important. And this ranking of private rights is embedded in the Constitution, so you're powerless to change it.⁽¹⁸⁹⁾

      Alternatively, a court taking the view that exemptions may be mandated even for conduct that harms others, just because of the religiosity of the objectors' motivation, might tell the legislature:

      Even if you're correct that people have a private right to be paid a decent wage, it's permissible for people to violate this private right--though not the right to be free from trespass or defamation or breaches of contract--just because their motivation for violating the right is religious.

      But why should the religious objector's beliefs authorize such a violation of the rights of people who don't share those beliefs?

      Of course, the legislature might not have thought of the minimum wage as securing a private right. It might have just seen it as an attempt at economic engineering, and a narrow court-created religious exemption might not substantially interfere with such an attempt. If this is so, then an exemption might well be reasonable--at the very least it wouldn't, by hypothesis, let employers violate employees' legislatively recognized private rights. A common-law exemption regime, though, could secure such an exemption as well as a constitutional exemption regime would. If the court thinks the law is just an economic engineering measure that doesn't protect private rights or prevent improper externalities, it could carve out a religious exemption. Then, if the legislature agrees with the court, or doesn't think the matter is important enough to reconsider, the exemption would stand.

      But if the legislature does think there is a countervailing private right involved, then under a common-law exemption regime--unlike under the constitutional exemption regime--its judgment could ultimately prevail. The common-law exemption model is thus like the traditional common-law system, where courts recognized a general regime of unregulated wages, but the legislature could step in to revise this regime as it thought necessary. The constitutional exemption model is like the regime of Adkins v. Children's Hospital, where the original common-law judgment was constitutionalized, and thus made unchangeable even in the face of changing attitudes about a private right to a minimum wage.⁽¹⁹⁰⁾

      Likewise, say a landlady believes it would be sinful for her to rent an apartment to an unmarried couple.⁽¹⁹¹⁾ Again, if she makes a substantive due process challenge to a law banning marital-status discrimination in housing, she will lose (assuming she falls outside the narrow zone of constitutional protection provided by the right of intimate association).⁽¹⁹²⁾ Sure, she might claim she isn't violating anyone's rights by her decision, and again libertarians may agree. No one, they will argue, has a right to rent another's property over the owner's objections.⁽¹⁹³⁾ But the legislature has taken a different view--unlike the libertarians, it believes everyone has a right to be treated equally, even in the opportunities to use another's property.⁽¹⁹⁴⁾ And it is not for courts to decide whether the legislature's or the libertarians' moral vision is correct.

      Here too, a constitutional religious exemption regime would require courts to decide the questions that substantive due process jurisprudence suggests they ought not decide.  The law commands the landlady to do something she thinks is religiously prohibited, so the landlady would have to be exempted unless the law passes strict scrutiny.⁽¹⁹⁵⁾ Whether there is a compelling government interest in prohibiting discrimination rests--again, just as with prohibiting trespass, copyright infringement, or assault--on whether a person has the right to be free of such discrimination.⁽¹⁹⁶⁾

      A court applying a constitutional exemption regime of the "so long as it doesn't interfere with the rights of others" variety will have to resolve this difficult moral question itself, perhaps trumping the legislative decision. "While there is a private right to be free from race or sex discrimination," the court may say, as some courts have indeed said,⁽¹⁹⁷⁾ "there's really no private right to be free from marital status discrimination, no matter what the legislature might conclude." A court applying a constitutional exemption regime of the "even if it does interfere with the rights of others" stripe may have to go further: "Even if there is a private right to be free from marital status discrimination, a landlady who wants to violate this right for religious reasons must be free to violate it, simply because she's religiously motivated." Again, the first of these seems unjustified, and the second seems normatively unattractive.⁽¹⁹⁸⁾

      As in the minimum-wage example, a court applying a common-law exemption regime may actually give the landlady what she wants.  The principle of the common-law regime is that there is nothing wrong with the court's saying "While there is a private right to be free from race or sex discrimination, there really is no private right to be free from marital status discrimination"--so long as the court doesn't add "no matter what the legislature might say." In fact, this distinction between different kinds of discrimination may be quite reasonable, and is akin to the distinctions courts have traditionally drawn in exercising the moral and practical judgment involved in creating the common law.

      If the legislature agrees with the court that there is no private right to be free from marital-status discrimination, then the court decision will stand. This might happen if, for instance, that particular discrimination ban was aimed more at relieving a broader economic problem of occasional shortages of housing for particular groups (a problem that a narrow religious exemptio