Cato’s Ilya Shapiro on Religious Freedom in the Courts

On November 4th, 2017, Ilya Shapiro spoke at the Buckley Program’s conference on The Constitution and the Courts.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, Harvard Journal of Law & Public Policy, Los Angeles Times, USA Today, Weekly Standard, New York Times, and National Review Online. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Before entering private practice, Shapiro clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the University of Chicago Law School.

The Buckley Program had the chance to interview Mr. Shapiro at the Omni Hotel in New Haven, CT. The transcript has been condensed and lightly edited from a longer interview.

By: Jake Fischer

Jake: One of the main things that I thought was interesting was considering how far does the religious liberty extend when it affects others. You spoke about coercing people into taking action that is against their religion but, especially with health care, there are some religions, for example Jehovah’s Witnesses, who may be opposed to any sort of emergency treatment on religious grounds. Do you think that these religious protections should extend to allow them to avoid paying for these parts of health insurance for their employees?

Ilya: Well fundamentally, I think that employers shouldn’t be responsible for health care. We’re the only country in the world that, due to an accident of history, ties employment to health care. So already you’ve got a deviation from what makes sense from a public-policy perspective, which warps the rights discussion involved. I don’t see an employer’s decision not to pay for certain procedures as being coercive or forcing religion on anyone, but if there weren’t structural incentives for employers to provide healthcare — let alone Obamacare’s mandates — the issue wouldn’t even arise. Instead, we’re left to battle for carve-outs for religious conscience. And yes Jehovah’s Witnesses have to be included in that; I don’t know how many employers declined to cover emergency treatment before Obamacare, but it certainly wasn’t an issue then. By the way, this discussion is all about consenting adults in the employment space. When you’re talking about kids, in certain circumstances the state government may be warranted to step in to save the kids of Jehovah’s Witnesses who otherwise have been diagnosed with leukemia and whose parents are refusing chemotherapy. These are tricky situations — going against a parent’s wishes should not be done lightly — but the state does have some responsibility to prevent the abuse and neglect of children and others whom the law considers incapable of behaving in their own interests. That’s why we have provisions for guardians to be appointed for kids and the mentally disabled.

Jake: How do courts judge the legitimacy of religious claims?

Ilya: Traditionally they don’t judge the legitimacy. They judge the sincerity. That is, judges recognize that they’re not theologians, and they’re not going to say, “How valid is that belief?”  Courts have upheld religious rights even in the face of affidavits from a score of clerics saying that’s a misinterpretation of doctrine. Still, as long as you’re being sincere, courts will generally take your claims seriously. At least they’re supposed to under the Religious Freedom Restoration Act and under how the jurisprudence was from before Employment Division v. Smith, the case that lead to RFRA. That doesn’t mean that any religious claim is a trump; RFRA says that the government prevails if there’s no other way to achieve a compelling interest other than in the way that burdens religious exercise. And courts also do look into whether your claim is just a pretext. Some people have tried to defend themselves against prosecution for violating drug laws by saying that they belong to the “Church of Marijuana”. Those have failed rather quickly. Judges look into whether someone invented a belief for the purpose of litigation.

Jake: Could you share a little about your work at the Cato Institute?
Ilya: Cato is a 40-year-old think tank in Washington that looks at a vast range of public policy issues from a libertarian perspective, ranging from healthcare, tax, and education to international trade, foreign policy, and my area, which is constitutional studies. I’ve been there 10 years. I direct our amicus brief program where we file briefs in the Supreme Court and sometimes in lower federal or state supreme courts on issues of import from a classical liberal, libertarian, or originalist perspective. I also edit the Cato Supreme Court Review, an annual journal that publishes articles on the most recent term and is released annually on Constitution Day. I write articles, I give speeches, I blog, and I go on TV. I’ve found my job to be fascinating, because it straddles the academic, political, legal, and media worlds. So there’s a lot of variety functionally, on top of the great policy and legal variety. For example, in the last decade I’ve had to cover from a constitutional perspective everything ranging from immigration to guns to election law, healthcare, gay rights, campaign finance, affirmative action, you name it.  Whatever the big national legal controversies are, I get to be involved in some way — and not necessarily by just writing law articles, not necessarily by just being a talking head, but bits and pieces of all of these roles — to try to influence the climate of ideas.

Jake Fischer is a student in Berkeley College and a former US Army Medic.