How “Religious” is a“Religious Employer”? Church History and the Future of American Religious Liberty Litigation

Since the Supreme Court’s 1990 decision in Employment Division v. Smith to immunize “neutral” and “generally applicable” laws that burden religion from strict scrutiny, judges and scholars have become increasingly attuned to the challenges posed by First Amendment judicial balancing.  To some, Smith’s enduring virtue is that it provides judges with a clear way to avoid the seemingly inappropriate weighing of interests that was once required under the strict-scrutiny regimes of Wisconsin v. Yoder and Sherbert v. Verner.  To others, however, the jealous protection that strict scrutiny provides to religious claimants is normatively desirable and merely requires judges to embrace a tiers-of-scrutiny framework that is not all too unusual in constitutional adjudication writ large.  In light of Fulton v. City of Philadelphia, the scholarship on both sides of this debate has increased in volume and complexity.

This Article demonstrates that the concerns about judicial balancing that have motivated many critiques of First Amendment strict scrutiny are overstated.  To do so, this Article takes as its principal subject a near-decade-long dispute that remains ongoing in New York about whether the Empire State’s Superintendent of Financial Services can require Catholic dioceses and social service agencies to include abortion coverage in their healthcare plans.  Applying the insights of church history to Roman Catholic Diocese of Albany v. Harris, this Article illustrates that judges can often leverage historical evidence to fairly assess the substantiality of regulatory burdens imposed on religious claimants, and therefore evaluate whether the government has a constitutionally sufficient justification for pursuing its preferred regulatory course.  Amidst broader debates within the legal profession about the appropriate uses of history and tradition in constitutional adjudication, perhaps this Article’s modest proposal for greater dialogue between church historians and legal practitioners and scholars can move our jurisprudential conversation one step forward.

Full Article

Cite as: Dennis Wieboldt, How “Religious” is a“Religious Employer”? Church History and the Future of American Religious Liberty Litigation, 18 N.Y.U. J.L. & Liberty 72 (2024).

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