Introduction
Freedom of thought is finally having its moment. Though long venerated by scholars and judges,
it was for many years the rare legal right searching for a legal wrong to redress.
True, free thought might have held “a central place among our constitutional liberties.”
But many struggled to explain what it was supposed to protect that would not otherwise be covered by free speech, free exercise, or another fundamental right.
Today, though, the ever-increasing encroachment of technology has turned freedom of thought into the go-to answer for any number of modern ills, from social media manipulation,
to data harvesting,
to substance abuse.
Even so, attendees of the free thought renaissance fair often skip over an important point: The Supreme Court has, over the last several years, in fact laid out what a more robust free thought doctrine might look like in practice. And that vision should give pause even to free thought’s most ardent champions.
I. NIFLA and 303 Creative
The Court has referred to the freedom of thought by name twice in the past decade. The first time was seven years ago in National Institute of Family and Life Advocates v. Becerra (NIFLA).
There, several crisis pregnancy centers
challenged a California law requiring them to post notices about the availability of “low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion.”
According to a study the legislature commissioned to aid it in drafting the legislation, most crisis pregnancy centers were “pro-life” organizations whose “aim [was] to discourage and prevent women from seeking abortions.”
The notice requirement sought to ensure that pregnant women were aware of all available reproductive services, not just the limited range offered by the centers.
The centers saw the issue differently. They objected to “provid[ing] a government-drafted script about the availability of state-sponsored services,” including “abortion—the very practice” they were “devoted to opposing.”
The Court agreed, and held that the notice likely constituted an impermissible regulation of speech.
Justice Anthony Kennedy, in a concurrence joined by Justices Clarence Thomas and Neil Gorsuch, went a step further and invoked freedom of thought as a basis behind his decision: “Governments,” Justice Kennedy wrote, “must not be allowed to force persons to express a message contrary to their deepest convictions.”
That is because the “[f]reedom of speech secures freedom of thought and belief,” and California’s “law imperils those liberties.”
The next (and, at the time of this writing, most recent) occasion in which the Court discussed freedom of thought was 303 Creative LLC v. Elenis.
In that case, plaintiff Lorie Smith refused to design wedding webpages for same-sex couples because doing so purportedly offended “[h]er belief that marriage is a union between one man and one woman.”
The Court sided with Smith, holding a Colorado antidiscrimination law unconstitutional as applied to her.
In so doing, the Court’s majority opinion, written by Justice Gorsuch, returned to and expounded upon the themes Justice Kennedy articulated in NIFLA. Justice Gorsuch emphasized that the “framers designed the Free Speech Clause of the First Amendment to protect the ‘freedom to think as you will and to speak as you think.’”
“[T]he freedom to think and speak,” he stressed, “is among our inalienable human rights,”
and “the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.”
Colorado “seeks to deny that promise” to its citizens by forcing them to speak in a manner that contravenes their religious beliefs.
NIFLA and 303 Creative both involved the intersection of free thought and religious exercise. That fact alone is not particularly surprising, as thought and religion have long been intertwined.
What is remarkable, though, is how the Court connected these two concepts.
To see why, consider the types of laws at issue in these cases. Governments can, and often do, require businesses to display notices, just like the notices in NIFLA—consider the warnings one sees on cigarette packs
and pesticide bottles,
or the signs one might see in a grocery store or doctor’s office.
Governments can, and also often do, seek to protect their citizens from discrimination, just like Colorado tried to do with its antidiscrimination law.
Many object to both sorts of laws. No one thinks Philip Morris wants to tell its customers that smoking kills on each pack of Marlboros that they buy. And our shared history unfortunately makes clear that many businesses would freely discriminate based on race, sex, or sexual orientation if the law did not make it illegal for them to do so.
But the law does make it illegal, and it usually doesn’t give out a pass to those who do not want to comply.
In NIFLA and 303 Creative, however, the Court broke from that general rule and explicitly invoked freedom of thought as a basis for doing so. Although the Court claimed it was only protecting religious thought, the practical effect of its holding was to insulate religious action, even when such action contravenes other important legal obligations.
Nor are NIFLA and 303 Creative one-off decisions. To the contrary, they should be conceived as part of a broader set of recent cases that have tested the boundaries of what a robust religious free thought doctrine could potentially encompass. Other examples, currently being litigated in the lower courts, abound. “Religious” hospitals, for instance, have started denying reproductive health services and treatments.
“Religious” employers have denied fertility treatments to lesbian and gay couples.
“Religious” employees have compelled companies and governments to suspend critical vaccination campaigns.
“Religious” teachers have refused to use students’ preferred pronouns and have won six-figure settlements when school districts try to take disciplinary action against them.
And in just the past few years, “more than 120 religious schools obtained exemptions from Title IX that allow them to discriminate against LGBTQ students in areas such as admissions, housing, access to classes, financial aid, [and] counseling.”
II. The Rise and Fall of Purpose, Harm, and Sincerity
The Court has not always conceived of the relationship between free exercise and free thought the way that it did in NIFLA and 303 Creative.
In Reynolds v. United States, it upheld a statute criminalizing polygamy and rejected a challenge from a group whose faith mandated the practice.
“Laws,” it declared, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
Where a statute “is constitutional and valid as prescribing a rule of action for all,” an individual cannot “excuse his practices to the contrary because of his religious belief.”
“To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Reynolds thus underscored that, though thought and belief are sacrosanct, regulating specific practices must remain a fundamental function of governance. And post-Reynolds, the Court developed three important tools to cabin religious practices without unduly infringing on religious thought.
First, the Court has considered the government purpose behind a law. In Employment Division v. Smith, for instance, the Court upheld an Oregon law banning peyote, even though the law incidentally burdened the religious practices of Native American plaintiffs.
As the Court in Smith explained, “The free exercise of religion” includes both “the right to believe and profess whatever religious doctrine one desires” and “the performance of (or abstention from) physical acts.”
“[T]he First Amendment obviously excludes all ‘governmental regulation of religious beliefs . . . .’”
And it bars governmental actors from passing laws with the purpose of burdening religion.
But echoing Reynolds, the Smith Court underscored that neither the Constitution nor any other law gives plaintiffs a right to challenge “a generally applicable and otherwise valid provision” just because that provision might have an “incidental effect” on a religious practice.
To emphasize the point, Justice Antonin Scalia, writing for the majority, explained that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
Second, the Court has looked to whether a religious carve-out would cause third-party harm. In United States v. Lee, it rejected an Amish employer’s challenge to paying social security taxes.
As Justice John Paul Stevens observed in his concurring opinion, Congress had already “granted the Amish a limited exemption from social security taxes” by allowing self-employed Amish people the choice of opting out if they could prove a sincere religious objection.
He added, “[I]t would [have] be[en] a relatively simple matter to extend the exemption” by excluding both self-employed Amish (which the statute already exempted) and Amish employers (which would have required the Court to recognize an additional exemption) from having to pay social security taxes.
Doing so might have even “benefit[ted] the social security system because the nonpayment of these taxes by the Amish would be more than offset by the elimination of their right to collect benefits.”
But the Court declined to create a judicial carve-out on top of the statutory carve-out that Congress had already provided. Were it to open that door, “it would be difficult to accommodate [a] comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs”—a clear nod to the harm that other, non-religious parties would suffer.
In addition to the sorts of financial harms in Lee, the Court has also refused to allow groups to impose dignitary harms on others in the name of religion. When, in Newman v. Piggie Park Enterprises, several restaurants refused to serve Black customers, claiming that the Civil Rights Act “was invalid because it ‘contravene[d] the will of God’ and constitute[d] an interference with the ‘free exercise of [their] religion,’” the Court dismissed the defense as “patently frivolous.”
And when, in Bob Jones University v. United States, racially discriminatory schools challenged the government’s decision to revoke their tax-exempt status on the grounds that their religion required them to discriminate on the basis of race, the Court repudiated that effort, too.
Third, the Court has looked to the plaintiffs’ sincerity to ensure that any special treatment for religion is afforded only to the true believer, rather than the make-believer. During the 1950s and ’60s, judges carefully examined whether a plaintiff’s religious convictions were genuine and required respecting not only religious thought but also religious action.
To undertake that analysis, courts often asked plaintiffs to produce significant and voluminous evidence showing internal consistency of belief and practice.
Together, these three tools—purpose, harm, and sincerity—prevented unimpaired religious belief from spilling over into unfettered religious practice. But they have each fallen into disrepair.
Start with purpose. Despite a seemingly unending supply of literature criticizing Smith,
the Court has declined to overrule the case.
As a formal legal matter, generally applicable laws today remain insulated from legal challenge, while those targeting religion do not.
What the Court has done, though, is redraw the lines of engagement so that only a vanishingly small number of laws are now considered generally applicable, and laws that have nothing to do with religion are categorized as targeting religious belief or practice.
In Fulton v. City of Philadelphia, for example, Catholic Social Services (CSS) refused to comply with Philadelphia’s foster care contract, which required prospective foster care–placement organizations to certify that they would not discriminate based on protected characteristics.
CSS objected, citing its belief that marriage was meant to be between a man and a woman.
Like the peyote ban in Smith, there is little evidence that the city intended, through its antidiscrimination provision, to single out or target religion. But the Court nonetheless ruled in CSS’s favor because a separate provision in the foster care contract contemplated an “exception” from this antidiscrimination requirement, to be granted at the “sole discretion” of the City Commissioner.
This provision, the Court opined, meant that the city’s policy was not actually generally applicable, since the contract “invite[d]” the government to consider the particular reasons for a person’s conduct and “decide which reasons for not complying with the policy are worthy of solicitude.”
Such a rule might at first glance seem innocuous. That is especially so because, were one only to read the Fulton majority opinion, one might easily have gotten the impression that the city was offering exemptions left and right to secular organizations, while declining them to religious ones. But that was not the case. The city, to be sure, had “no intention of handing” an exception to CSS.
Yet it had also “never granted such an exemption” to anyone—religious or secular.
No matter. What counted for the Court was that an exemption was theoretically possible.
That feature, however, characterizes most laws. The pardon power, for example, creates an implicit exception to every criminal law.
Executive discretion recognizes a similar exception to federal immigration law.
And many environmental laws explicitly contemplate the granting of individualized waivers or exemptions.
To grasp the mess that Fulton made, consider that a secular plaintiff would obviously not receive heightened review if they were to challenge any of the above laws.
But if someone commits a crime and claims they did so for religious reasons, the government must prove—at least if Fulton is to be taken seriously—not only that it “has a compelling interest in enforcing” the law generally but also “an interest in denying an exception” to a particular plaintiff.
The same would hold true if an individual or organization claimed a religious right to pollute. These sorts of scenarios go beyond merely modifying Smith’s framework. They gut it.
Third-party harm follows a similar path, with the Court’s approach to the contraceptive mandate offering a particularly instructive example. That mandate, a part of the Affordable Care Act, was meant to “serve[] the Government’s compelling interest in providing insurance coverage . . . necessary to protect the health of female employees.”
As initially drafted, compliance was mandatory for nearly everyone, with a very narrow exception for churches that might object to the mandate on religious grounds.
Almost immediately after that exemption went into effect, though, many other organizations complained, arguing that the exemption “furnished insufficient protection for” their religious exercise (even if they were not, as a formal matter, in the religion business).
These issues came to a head in Burwell v. Hobby Lobby Stores, Inc., when a for-profit crafts company challenged the government’s decision to limit its religious exemption to churches and their auxiliaries.
Hobby Lobby did not argue that it was a church, a church-related organization, or even that its employees were all members of the same church or had the same views on contraception.
It instead insisted that, as a closely held corporation, its sincere beliefs should override the government’s judgment regarding the availability and provisioning of reproductive health services.
The Court agreed.
And by ruling in Hobby Lobby’s favor, the Court effectively required the government to extend an exemption to the contraceptive mandate to virtually any employer—religious or secular, for-profit or nonprofit.
In reaching that conclusion, the Court both under- and over-read United States v. Lee, the Amish taxpayer exemption case. It under-read Lee because, according to Hobby Lobby, courts should “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants” when evaluating third-party harm.
But that is not how Lee thought about harm. If it was, there would have been no issue in Lee with granting a tax exemption to the single objecting plaintiff that brought the case, since doing so would have been a “relatively simple” administrative matter and maybe, as Justice Stevens pointed out, even good fiscal policy.
Instead, Lee considered the harm that would result if others began seeking and obtaining a free pass from paying Social Security taxes.
That scenario, of one exemption leading to many, stands in stark contrast to the constrained assessment of the marginal benefits and costs of granting a one-off exemption in Hobby Lobby.
Hobby Lobby also over-read Lee because it characterized the case as a challenge to the entire tax system.
Such a characterization had the benefit of making the Hobby Lobby plaintiffs seem more reasonable, since they were only seeking to excuse themselves from one part of the “ACA’s comprehensive scheme.”
But that characterization was incorrect. Lee did not involve a wholesale attack on the tax system. The plaintiff objected only to paying social security taxes, not all state or federal taxes.
It was the Court which inferred that a successful challenge for one employer on one form of taxation would inevitably lead to challenges by other employers to other forms of taxation.
Hobby Lobby declined to undertake such an analysis; the Court insisted on looking at the facts of the singular plaintiff, rather than considering whether its ruling would lead to a dramatic rise in exemption requests.
The practical effect of Hobby Lobby’s under- and over-reading of Lee is to minimize consideration of third-party harm in law and religion cases. Indeed, after Hobby Lobby, accommodation requests skyrocketed, which ultimately prompted the government to make the original, narrowly drawn church exemption available to all “non-governmental employers” that might object either on “religious” or even just “moral” grounds.
This rule—upheld against a legal challenge in Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania
—all but strikes the contraceptive mandate from the books. After all, if an entity can evade a mandate by simply saying it has “moral” qualms with it, the mandate isn’t a mandate at all.
Sincerity, too, has turned into an empty requirement.
The Court has gone from requiring plaintiffs to show significant evidence of their religious beliefs and practices to now holding that “religious beliefs need not be acceptable, logical, consistent, or comprehensible” to be considered sincere.
That doctrinal shift is borne out in the data. In the past three decades, federal appellate courts and the Supreme Court have considered sincerity in about 350 cases brought under the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), the two statutes under which most religious plaintiffs seek relief.
The religious plaintiff was found to be sincere in ninety-three percent of cases.
Indeed, in four circuits (the First, Second, Fourth, and Eighth), “no RFRA or RLUIPA plaintiff has ever been found to be insincere.”
The percentages in the Supreme Court are even more lopsided. The Court has never, in any RFRA or RLUIPA case, ruled that a plaintiff was insincere.
Carter v. Transport Workers Union of America, Local 556 offers a vivid example of these shortcomings in practice. That case is best known for the district court’s decision to require, as a sanction, that Southwest Airlines’s counsel undergo religious-liberty training conducted by the Alliance Defending Freedom.
But this headline ruling obscures a more important second point.
At issue in the case was Southwest Airlines’s decision to fire Charlene Carter, one of its flight attendants, “for publicly posting and privately messaging” other Southwest employees “images of aborted fetuses.”
Carter also sent harassing texts and emails to Southwest’s union president, calling her (among other things) “[d]espicable,” “a SHEEP in Wolves Clothing,” and a supporter of “[m]urder” for attending the 2017 Women’s March.
Southwest cited harassment and violation of other company policies as grounds for letting Carter go. Carter subsequently sued for wrongful termination.
Her initial complaint did not say that her speech was motivated by a sincere religious belief.
In fact, it did not even mention religion. Only a year later, right before Southwest filed its motion to dismiss and after Carter retained new counsel, did Carter begin claiming that Southwest had infringed on her religious beliefs by disciplining her.
Based on these circumstances, Southwest had several credible bases to call Carter’s sincerity into question. After all, for nearly a year, none of Carter’s legal filings mentioned religion. Nor did she refer to religion in many of the messages she sent to her coworkers that led to her filing. Southwest had little if any notice that it could have been engaging in impermissible religious discrimination rather than merely firing an employee for violating company policy. Were sincerity a genuine limit on free exercise, Southwest should have pressed all of these arguments. It pressed none of them.
Conclusion
The unraveling of these guardrails—purpose, harm, and sincerity—helped pave the way for NIFLA and 303 Creative. Had purpose been an actual check on religious exercise, neither NIFLA nor 303 Creative should have gotten off the ground in the first place, since the laws at issue had nothing to do with religion: California wanted to promote public health; Colorado wanted to root out invidious discrimination. Had the Court thought of harm the way it did in Lee, Piggie Park, or Bob Jones University, the NIFLA and 303 Creative plaintiffs also would not have had much of a case. And had anyone bothered to examine sincerity, one should have at the very least questioned why 303 Creative plaintiff Lorie Smith felt the need to sue even though no same sex couple had ever asked her to design a wedding page
and no enforcement actions had ever been filed against her.
But when purpose, harm, and sincerity no longer work, what remains is the sort of radical conception of religious free thought expressed in NIFLA and 303 Creative. That freedom has long prevented the government from interfering with one’s religious beliefs. But today it also allows a plaintiff to break laws (1) that have nothing to do with religion, (2) regardless of the harm to others, (3) so long as they claim they did so for religious reasons. That result cannot be what anyone wants.
So where should we go from here? Thus far, citing the Court’s old religion cases back to them in litigation has proven exceptionally futile.
The Court has shown little interest in reviving Smith, Lee, or any of its other cases in this line.
A more creative approach might be to borrow from decisions in other areas of the law. Counsel in both NIFLA and 303 Creative, for instance, characterized their client’s claims as being about speech, not religion.
That may have been, as others have suggested, a cynical strategic move to gain an edge in litigation.
But if that is so, free speech doctrine also provides governments with arguably stronger footing to defend laws and regulations than Smith’s shaky foundations. Indeed, as Professor Michael Dorf has explained, while “[a]t least formally[] the Supreme Court requires intermediate scrutiny of laws that impose an incidental burden on free speech . . . in practice[] the standard applied often appears to be quite deferential.”
Relatedly, just last Term, in Muldrow v. City of St. Louis, a Title VII case, Justice Brett Kavanaugh rejected the argument that “a plaintiff in a discriminatory-transfer case show at least ‘some harm’ beyond the harm of being transferred on the basis of race, color, religion, sex, or national origin.”
As he cogently and succinctly explained, “The discrimination is harm.”
There is no reason why government defendants could not, in whatever case follows 303 Creative, borrow Muldrow’s reasoning. After all, in 303 Creative, Lorie Smith refused to design wedding websites for same-sex couples but was willing to design such websites for heterosexual ones. That is discrimination and, in Justice Kavanaugh’s words, it is “harm.”
There’s no need to look any further than that.
There is even reason for hope on sincerity. In Garland v. Ming Dai
and United States ex rel. Schutte v. SuperValu Inc.,
the Court reversed lower courts on credibility questions. In the former case, the Court held that a court of appeals may not presume that an immigrant’s testimony is credible.
Instead, an immigration judge must make an explicit credibility determination—akin to a sincerity determination—based on a careful reading of the facts and the law.
Only then, once a determination is made on the record, can an appellate court invoke deferential review.
SuperValu held that, in evaluating whether a defendant “knowingly” made false claims, the finder of fact can and should scrutinize a defendant’s subjective understanding and intent.
Lower courts may not simply look to and rely on the objectively reasonable determination; SuperValu requires a close probe into the defendant’s actual mindset.
Neither Ming Dai nor SuperValu are, of course, exact matches to religious sincerity. But they both reflect a Court willing to look beyond the surface of an individual’s purported beliefs, instead of approaching those beliefs in a “hands-off” manner.
Still, even if the Court were to course correct on its law and religion jurisprudence, that NIFLA and 303 Creative came out the way they did prompts a final question: Should we, going forward, still think of and treat freedom of thought as an unbounded, fundamental right?
It seems that, even if the government cannot necessarily tell people what to think, it can and does tell people what it thinks. And its message is often abundantly clear. The Civil Rights Act tells us not to discriminate because, as a democracy, we have collectively decided that doing so is both harmful and illegal. The Americans with Disabilities Act tells us to accommodate those with certain needs, for substantially the same reasons. So too does the government communicate a message with the Clean Air and Water Acts, the Controlled Substances Act, and the Endangered Species Act. All of us have the freedom to think what we want individually. But should any of our individual thoughts be able to, as a matter of right, override the thoughts and welfare of the collective whole?
Furthermore, whatever the freedom of thought is supposed to protect, it simply cannot give open license to an unfettered freedom of action. The line between one and the other is admittedly not always clear. The chain of references that the Court follows in 303 Creative shows why. The freedom to think means, as Justice Gorsuch notes, freedom to speak.
And action can be speech when it is expressive;
so expressive conduct, even if it is nothing more than discrimination, gets a pass under antidiscrimination law.
It is not necessarily or readily apparent where this syllogism breaks down. But the result—an all-too-robust freedom of thought—cannot be squared with a rule of law that respects the dignity and rights of all persons. Figuring out how and where and in what way to intervene in this logical chain is a prerequisite to embracing a more expansive freedom of thought for all.