It’s this last point that makes the case so interesting, from a jurisprudential perspective. As Justice Kavanaugh wrote in a concurrence, the compelling interest test—also known as strict scrutiny—operates in many contexts besides RLUIPA. Strict scrutiny applies in many free exercise cases, for example, notwithstanding Employment Division v. Smith, and in other constitutional contexts as well. But strict scrutiny often makes judges (and scholars) uneasy because it turns on courts’ intuitive judgments.  In practice, strict scrutiny often works as a balancing test that depends on judges’ prior commitments, which are often contestable.

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

As my colleague Marc DeGirolami has argued, tradition is an often-overlooked factor in many constitutional doctrines, very much including the Court’s establishment and free exercise jurisprudence. Tradition can’t solve all problems or remove all indeterminacy, of course. Identifying a tradition can be an intuitive exercise, too, and besides, people will differ on whether a particular tradition is worth preserving in the first place. But, as Justice Kavanaugh suggests, tradition can help make balancing tests more predictable and limit intuition as a factor in judicial decision making. His insight is worth pursuing, in the strict scrutiny context and elsewhere.

Mark L. Movsesian is the Law School’s Frederick A. Whitney Professor of Contract Law and co-directs our Center for Law and Religion. This piece published originally at The Volokh Conspiracy on March 28, 2022.