Stephanie H. Barclay (Notre Dame Law School) has posted Strict Scrutiny, Religious Liberty, and the Common Good (Harvard Journal of Law and Public Policy, Vol. 46, No. 937, 2023) (19 pages) on SSRN. Here is the abstract:
In Common Good Constitutionalism, Adrian Vermeule critiques the “typical formulation” for protection of rights under both strict scrutiny and proportionality, where “rights of the individual . . . are opposed” to the “political collective” and “must be balanced against each other.” In the religious exercise context, Vermeule does not explicitly describe his preferred legal framework for protecting these constitutional rights. But he does identify, with concern, an instance where government interfered with the religious exercise of the Little Sisters of the Poor for reasons not actually aimed at the common good.
Vermeule’s criticism of balancing rights echoes the concern of some originalist scholars and jurists, who have argued that strict scrutiny requires a judicial balancing exercise, allowing for moral reasoning the courts are incompetent to perform. I sympathize with the concerns these scholars share about ensuring the judiciary does not engage in adjudication that it lacks the institutional competence to perform. However, in this essay I argue that strict scrutiny is not necessarily susceptible to these flaws, at least not as applied by U.S. courts protecting religious exercise. The critiques of strict scrutiny described above rely on some assumptions about what constitutes the most salient characteristics of that doctrine. This Article challenges the accuracy of this account, arguing that critics are at times critiquing a faux version of strict scrutiny.
Under the deferential test Vermeule has set forth that would essentially mirror the Administrative Procedure Act, the government in the Little Sisters case would have had a strong argument that its policy was not arbitrary, as it did in fact provide some authorization for third party insurers of contraception and was advancing its view of common good: broad access to contraception for women. The strength of the government’s position from an administrative law point of view is highlighted by the fact that no litigants ever brought a successful APA challenge to the contraception mandate.
By contrast, the strong evidentiary burden of strict scrutiny operates to ensure that governments really are acting in pursuit of permissible goals to advance some aspect of the common good, rather than using that as mere pretext to burden religious rights. It also encourages governments to find ways to advance their policies while simultaneously finding ways to protect religious liberty. And it protects elements of the common good like religious liberty that are so important that super-majoritarian processes like constitutional conventions enshrined them in our Constitution so they could not be overridden by mere administrative action or even normal legislation.
Posted at 6:15 AM