EUGENE VOLOKH: Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions.

Many people, chiefly on the left, have criticized such laws, in large part on the grounds that RFRAs might let religious objectors claim exemptions from antidiscrimination law — especially with regard to state and local laws that ban discrimination based on sexual orientation.

That’s a plausible criticism, it seems to me, though I suspect a somewhat overstated one (and of course its merits turn on one’s views about just how important broad sexual orientation discrimination bans really are). And I agree that many backers of such RFRAs today support them in part because they sympathize with such religious objections, especially with regard to participation in same-sex weddings and commitment ceremonies.

But it’s helpful to note, I think, that, whatever the motivation of some backers of RFRA today, RFRAs largely implement the religious exemption rules that Justice Brennan and the ACLU had long argued for — and that Justice Brennan and the ACLU had sharply criticized Justice Scalia and others for overruling.

Maybe the ACLU and many in that movement have changed its mind on the subject. They are certainly entitled to do so. But it’s worth noting that there is something of a change of mind going on, and that perhaps some of the old criticisms of Justice Scalia — who wrote Employment Division v. Smith (1990), which largely overruled the religious exemption rules that Justice Brennan had advocated — should be retracted.

Yes, I’m so old that I can remember when all right-thinking people deplored Scalia’s Smith opinion and saw RFRA as a moral duty. But that was when cute, peyote-using Native Americans might benefit; now that it’s those beastly, mouth-breathing Christians in flyover country who might benefit, religious exemptions are obviously horrible.