The Free Exercise Clause as a Substantive Freedom For Religion
(1) “ . . . no law prohibiting . . . “
The Free Exercise Clause bans federal laws (and, by virtue of the Fourteenth Amendment, state and local laws) “prohibiting” the free exercise of religion. Perhaps the central question of Free Exercise Clause interpretation is the meaning of “law prohibiting.” Does it refer only to laws that, by their terms, regulate religious practice specifically? That is, is the clause one that forbids only those requirements of law that specifically target or discriminate against religious practice because it is a religious practice? (Call this the “non-discrimination rule” reading.) Or, does it, in addition, forbid the imposition of legal requirements that have the effect of punishing, penalizing, or preventing free religious exercise, whether government is intentionally targeting religious practice or not? That is, does the clause create (or recognize) an affirmative, substantive right to engage in religious exercise, free from government‟s usual powers to legislate through otherwise neutral laws? (Call this the “substantive right” or “exemptions” reading.) In short, is the Free Exercise Clause about what government is aiming at with its laws (the non-discrimination rule reading) or about what it hits (the effects, or substantive right reading)?
The language of the Free Exercise Clause, standing alone, arguably could be read either way. How does one resolve the ambiguity? One answer is to move next to other, second-best evidence of constitutional meaning, such as historical evidence concerning probable original intention or understanding.44 Another answer, typically employed only if neither text nor history resolves the issue, is to default to the principle that if the text does not forbid government action, there is no sufficient basis for concluding that any
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44 Kesavan & Paulsen, supra, note xx, The Interpretive Force of the Constitution‟s Secret Drafting History, at 1148-1183 (historical evidence provides worthy second-best evidence of original public meaning); see also Vasan Kesavan & Michael Stokes
definite constitutional rule invalidates the action.45 These are both legitimate next-step moves, and they tend to point in opposing directions. History strongly supports the pro-exemptions reading;46 a default rule of government power of course supports the narrower, anti-discrimination-rule-only reading (the approach and conclusion of Employment Division v. Smith).47 Might an understanding of the broader logic and structure of the Free Exercise Clause – the sense of the reasons for its inclusion in the First Amendment, the sense of the correct paradigm of religious liberty of the four discussed, the sense of religious liberty as a pre-constitutional natural and inalienable right – help resolve the ambiguity, tilting the conclusion decisively in one direction rather than another? I believe so: If the Free Exercise Clause is read from a non-religious perspective, one of utter indifference to (or mild hostility toward) religious exercise and skeptical about the value of religious devotion as anything other than personal preference, then the more “natural” sense of the language might seem to be that it is a nondiscrimination rule, not a substantive immunity. If religious freedom is understood not as a natural right preceding the social compact of government but as a liberty conferred by human governmental authority under a written constitution, it is natural to read the right through the lens of governmental authority.
If, however, the Free Exercise Clause is read from a perspective that assumes that religious exercise is a natural, literally God-given inalienable right, accorded constitutional protection because of its presumed intrinsic worth and priority over the commands of secular government, it is more natural to read “prohibiting” as referring to a law‟s consequences for a sincere religious believer. From the perspective that credits the possibility that there is such a thing as a God whose commands have priority, and that takes as its starting point the proposition that religious freedom is the State‟s recognition
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45 Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. at 858 & n.2; id. at 878-882.
46 See McConnell, supra, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990). Though McConnell‟s evidence represents, in my estimation, the best treatment of the historical evidence on this issue, it should be noted that there are important competing accounts. See Philip Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 George Washington L. Rev. 915 (1992).
47 494 U.S. 872, 878 (1990) (“As a textual matter, we do not think the words must be given that [exemptions] meaning.”) Smith proceeded from this observation of textual ambiguity not to history, nor straight to a default rule of government power, but to a consideration of precedent: “Our decisions reveal that the latter [non-discrimination] reading is the correct one. We 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.” Id. at 878-879. The Smith Court‟s treatment of precedent as almost uniformly supporting its interpretation is extraordinarily tendentious, bordering on dishonest, as nearly all commentators agree. See Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249, 251 n.8 (1995); William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 309 & n.3 (1991) (remarking that Smith‟s “use of precedent borders on fiction” even while defending its revisionist reading of the Free Exercise Clause); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990); Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1 (1990).
of the strong presumptive validity of that ordering of priorities, it makes little sense to read the Free Exercise Clause as anything other than ousting state authority over the believer‟s conduct, wherever and whenever such state authority is in genuine conflict with genuine religious obligation. To read the Free Exercise Clause not as recognizing a substantive right but as merely stating a nondiscrimination rule would largely fail to serve the purposes for which the rule presumably exists. Moreover, it would permit government to circumvent religious freedom seemingly at will, by the artifice of crafting its legal rules in ostensibly general, religion-neutral language. (“All citizens must eat pork.” “Everyone must be available to work on all days of the week to qualify.” “Every employer must provide health insurance coverage for employees that includes contraception and abortion.”)48
The religious perspective of the religion clauses strongly suggests that the “substantive right” or “exemptions” reading is the correct one. It goes a long way in the direction of clarifying the linguistic ambiguity of the Free Exercise Clause, by indicating which general stance on religious liberty is the preferred one from which to view the clause. Taken together with other evidence of original meaning, including historical evidence supporting the understanding that freedom of religious exercise was understood at the time of the framing as contemplating religion-specific exemptions from general laws,49 it indicates that the general rule of Employment Division v. Smith, that neutral laws of general applicability ordinarily cannot be taken to violate the Free Exercise Clause rights of individuals and groups, is simply wrong. Smith makes a certain amount of sense if the “modern” stance toward religious liberty (the third option discussed in Section I above) is right. It makes little or no sense if the “liberal” stance is correct.
(2) “ . . . the free exercise . . .”
It is often said, almost as a throwaway line, that, under the First Amendment Free Exercise Clause, freedom of religious belief is “absolute” but in the nature of things freedom of religious conduct cannot be.50 What is interesting, however, is that the Free Exercise Clause says nothing about belief in and of itself. It speaks solely in terms of the exercise of religion. Freedom of belief seems to have been assumed – so much taken for
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48 On compelled eating of pork, see Michael Stokes Paulsen, Obama‟s Contraception Cram-down: The Pork Precedent, WEB CITATION Public Discourse (citing ancient religious texts recounting emperor Antioches Epiphanes IV “neutral” command that all persons publicly eat pork). On seven-day-a-week work availability requirements, see Sherbert v. Verner, 374 U.S. 398, xxx (1963) (“The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.”) The issue of compelled inclusion of contraception, sterilization, and abortion drugs as “preventive health care” where employers offer health insurance coverage to employees is, as of the time of this writing, very much a live controversy. See Paulsen, Obama‟s Contraception Cram-down, supra.
49 See McConnell, supra, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
50 FIND CITATION Smith maybe. United States v. Reynolds probably. Cantwell v. Connecticut?
granted, perhaps, that the First Amendment does not even need to speak of it. Religious belief is either not protected (which would be a rather surprising conclusion) or, more likely, subsumed within the broader category of free exercise, as an a fortiori case: believing is itself a religious activity, an exercise of religion. If government may not prohibit religious exercise, it surely cannot prohibit religious belief, the “lesser-included” predicate conduct, as it were. (If there were a constitutional right “to sell or distribute” cocaine, presumably the government could not prohibit cocaine possession, either.)
The larger point is that the text of the First Amendment does not treat religious belief and conduct differently, the former absolutely protected and the other qualified or limited. It treats them alike and provides, simply, a right to their “free exercise.” Whatever the scope of Free Exercise Clause‟s right (whether a nondiscrimination proviso or a substantive right or immunity), the thing it protects is religious action – activity, exercise. The Free Exercise right is a right to engage in conduct – conduct attributable to religious motivations or beliefs. This plain-language reading should not be at all troubling from a linguistic perspective. Moreover, it coheres particularly well with the conception of religious freedom as being specifically about protecting religion because the true commands of God are of superior obligation to the commands of human society. If one held such a conception, one would want a religious freedom provision that protected religious exercise, not just belief. Freedom to believe is not enough. For the believer, there must be freedom to act in accordance with belief.
By the same token, if one held the more religion-skeptical, “modern” view of the justification for religious liberty – that religion should be tolerated, notwithstanding general disbelief in God, along with and on the same terms as other belief systems, for general reasons of tolerating individual beliefs wherever possible – then one probably would want a constitutional religious freedom provision that emphasized freedom of belief, broadly conceived, but that de-emphasized freedom of action (“exercise”). In short, one would want a constitutional provision that really did say what more modern judicial decisions have sloppily said the Free Exercise Clause says: that freedom of belief is absolute and freedom of action in its nature is not. (One would also want a religious freedom provision that de-emphasized the “religious” nature of the freedom, a point to which I return presently.) The fact that the Free Exercise Clause is written in terms of religious exercise specifically, rather than belief, thus subtly tends to buttress the religious-liberty-for-the-sake-of religion paradigm and the interpretive conclusions that follow from it.
The Free Exercise Clause says, further, that the right to religious exercise is the right to its “free” exercise, a word choice suggesting that legal restrictions or burdens of any kind on the exercise of religion are forbidden. For a time in the 1980s, before the decision in Employment Division v. Smith, the U.S. Department of Justice took the position that the word “prohibiting” in the Free Exercise Clause meant that small-ish burdens on religious exercise, not wholly preventing its exercise, were allowed. 51 Such a
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51 Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986); See, e.g., Brief Amicus Curiae of United States in Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987).
position of course gives little or no weight to the word “free” in the Free Exercise Clause. Viewed from the perspective that religious liberty exists precisely to protect the priority of religious obligation over secular authority, however, so narrow a reading of what counts as “prohibiting” the “free exercise” of religion becomes hard to sustain. The more natural reading of the whole text, in linguistic and historical context, is that it forbids government from imposing any punishment, penalty or privation that operates meaningfully to impair the religious adherent‟s ability to comply with the dictates of faith, as the religious adherent understands those dictates. Moreover, whether and to what degree the ability to act consistently with one‟s faith is meaningfully impaired by the state‟s action is, similarly, a question of the religious adherent‟s understanding of the impact such a legal requirement has on his or her ability to act faithfully.52
(3) “ . . . religion . . .”
But what counts as “religion”? If the premises justifying constitutional religious liberty imply that the state generally must defer to an individual‟s understanding of what his faith requires of him, does that mean, further, that the Free Exercise Clause immunity extends to anything and everything an individual sincerely calls or considers his “religion”? Does it mean, further yet, that any and all strongly held personal beliefs – beliefs that might resemble (in certain ways) traditional religious beliefs and that might be held with similar intensity and tenacity – must be treated as falling within the Constitution‟s protection for the free exercise of “religion,” whether the individual considers such beliefs religious or not and irrespective of whether they fit the paradigm of the State recognizing and yielding to the presumed a priori priority of God?
This is the slippery slope down which the modern Supreme Court slid, a long way, in a series of cases in the 1960s and 1970s involving claims of conscientious
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52 This is generally in accord with pre-Smith doctrinal treatments. The classic case for the proposition that it is the religious adherent‟s understanding of the requirements of his faith that counts, not the State‟s view of what the adherent‟s faith requires and whether or not it is burdened by the State‟s action, is Thomas v. Review Board, 450 U.S. 707 (1981). In Thomas, the government had urged that the religious claimant‟s beliefs were not principled or consistent and, further, that they did not conform to any specific command of a given church, denomination, or sect. The Court held, rightly, that this did not matter. While the Free Exercise Clause only protects beliefs “rooted in religion” and not in purely secular or personal philosophical beliefs (id. at 713), the protection of religious beliefs does not “turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Id. at 714. Nor did it matter that other members of Thomas‟s faith (Jehovah‟s Witnesses) might not share his specific religious objection. “Intrafaith differences of that kind are not uncommon among followers of a particular creed,” the Court said, and it is not for government officials (including courts) to judge such matters of scriptural or doctrinal interpretation. Id. at 715-16. On the contrary, “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.” Id. at 715-16. “We see that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is „struggling‟ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” Id. at 715.
exemption to the military draft. The slide in many ways perfectly characterizes the “modern” stance toward religious freedom: there is nothing particularly distinctive about religious ethical claims; not only must “religion” therefore be construed broadly, but analogous non-religious ethical claims need to be treated comparably, lest religion be preferred to non-religion. The slide also accounts, to a fair degree, for the decline of aggressive protection of the free exercise of religion in the modern era.53
The first case in this line was United States v. Seeger, decided in 1965. At issue was whether Mr. Seeger satisfied the federal statutory standard for conscientious exemption from compulsory service for persons categorically opposed to war in any form, by virtue of “religious training and belief.” The Court counted Mr. Seeger‟s self-styled “religious” belief in “goodness and virtue for their own sakes, and a religious faith in a purely ethical creed,” as close enough (for government purposes) to satisfy the statutory standard.54 Seeger considered his ethical beliefs “religious” – he put quotation marks around the term in the military‟s registration form – and that satisfied the Court,55 notwithstanding the statute‟s specific definition of religious belief as “an individual‟s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation” and not including “essentially political, sociological, or philosophical views or a merely personal moral code.”56
The Court in Seeger adopted the following spin on the statutory language: “The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.” Thus, for statutory purposes (though the decision obviously had constitutional overtones as well), the Court deemed “religion” to include “sincere and meaningful” beliefs “parallel” to traditional religious theistic belief systems, as long as the believer considered such beliefs religious.
Then came Welsh v. United States, in 1970, the next case in a law professor‟s perfect series of hypotheticals. Mr. Welsh considered his beliefs not to be religious and struck out the word “religious” on the form. But he still objected to participating in war in any form. What result now? (As an aside, it is worth noting that an awful lot had happened between 1965 and 1970 in American public life and law. The Vietnam War had become substantially more unpopular; draft evasion, in various legal and illegal forms, had become common; public draft card burning had become a notorious form of protest, addressed in a major Supreme Court decision interpreting the Free Speech Clause of the First Amendment;57 Robert Kennedy and Martin Luther King, Jr. had been assassinated in 1968; the nation had experienced severe and violent riots, including many over the
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53 I have used the draft exemption cases to illustrate a similar point in prior writing. Paulsen, Making Sense of Religious Freedom, supra note xx, at 1617-1620.
54 United States v. Seeger, 380 U.S. 163, 166 (1965).
55 Id. at 187.
56 Id. at 165 (quoting 50 U.S.C. app. § 456(j) (1958)).
57 United States v. O‟Brien, 391 U.S. 367 (1968) (upholding constitutionality of statute forbidding destruction, including burning, of draft cards, against challenge that it violated the Free Speech Clause).
Vietnam War; and a general cultural revolution against traditional values and authority was well underway.58)
The Court in Welsh expanded the definition of religion to embrace non-religious beliefs. A four-justice plurality voted to repaint the statute so that “religious” meant, in effect, “either religious or non-religious,” on the theory that Welsh‟s case was essentially indistinguishable from Seeger on its facts and that Seeger had already pretty much adopted such a position. “What is necessary under Seeger,” the plurality said, is that the registrant‟s opposition to war “stem from” “moral, ethical, or religious beliefs about what is right and wrong and that those beliefs be held with the strength of traditional religious convictions.”59 Thus, if an individual “deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience” to refrain from war, those beliefs “function as a religion in his life” and entitle him to conscientious objector status as much as someone whose views flow from religious convictions.60 As for Welsh‟s explicit disclaimer that his views stemmed from religious belief, the Court held that this did not matter so much after all. Mr. Welsh had simply erred in thinking that his ethical views did not count as “religious” within the meaning of the statute, at least as construed by the Court. (He apparently had not read Seeger carefully.)61
Justice Harlan could not stomach such a ruse and declined to join the plurality‟s statutory interpretation holding. Nonetheless, he provided the fifth vote in Welsh‟s favor, arguing that extension of draft exemption to nonreligious claimants was necessary to avoid what he thought otherwise would be a violation of the Establishment Clause. Limiting the exemption “to those opposed to war in general because of theistic beliefs runs afoul” of the First Amendment, Harlan wrote.62 Taking as his starting point the proposition that the Free Exercise Clause did not require exemptions for religious conduct – Harlan acknowledged that he had been a dissenter in Sherbert v. Verner and that he adhered to that dissenting view with respect to the Court‟s Free Exercise Clause doctrine at the time63 – he concluded that government, “having chosen to exempt, . . . cannot draw the line between theistic or nontheistic religious beliefs on the one hand and
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58 For an early, but still classic, social history of the period, see William L. O‟Neill, Coming Apart: A Social History of the 1960s (1969). For a classic treatment in song, hear Don McLean, American Pie (1971).
59 398 U.S. at 339-340 (emphasis added).
60 Id. at 340.
61 The attempt to distinguish Seeger, the plurality wrote, “fails for the reason that it places undue emphasis on the registrant's interpretation of his own beliefs.” Because “very few registrants are fully aware of the broad scope of the word „religious' as used in [the statute],” it followed that “a registrant's statement that his beliefs are nonreligious is a highly unreliable guide” to whether they are religious or not. Id. at 341.
62 Id. at 345 (Harlan, J., concurring in the judgment).
63 Id. at 356 (citing his dissenting opinion in Sherbert v. Verner, 374 U.S. 398, 418 (1963)). Sherbert held that the Free Exercise Clause forbids government from conditioning a benefit (in that case, unemployment compensation benefits) on conduct inconsistent with an individual‟s exercise of her sincerely-held religious beliefs, absent demonstrated threat to paramount interests of the highest order. [Cites; exact quote?]
secular beliefs on the other.”64 Even if the statute could be construed to embrace “non-theistic religions,” it still “draws the line between religious and nonreligious” and, that “in my view offends the Establishment Clause.”65
This had been the thrust of the arguments in the lower courts, in both Seeger‟s and Welsh‟s cases – that protecting religious conscientious objection (and specifically theistic beliefs) but not non-religious conscientious objection was illegitimate and unconstitutional. Behind this, of course, was the modern, skeptical view of the nature of religious belief and the resulting modern stance toward religious freedom: toleration, in so far as practical, of beliefs of all kinds irrespective of their provenance. Non-religious belief systems needed to be treated the same as religious belief systems, as a basic principle of religious freedom, because, as the Second Circuit had put it in Seeger, “today, a pervading commitment to a moral ideal is for many the equivalent of what was historically considered the response to divine commands.”66
Harlan had not swallowed the plurality‟s cramming of the modern stance on “religion” into the statutory language. But he swallowed it whole as constitutional reasoning. On that ground, he joined in engrafting onto the statute a provision for conscientious exemption of non-religious individuals. For Harlan, constitutional religious liberty not only did not require exemption of individuals from laws that conflicted with their good-faith understanding of God‟s prior and superior commands, it forbade exemption of religion specifically in preference to non-religious beliefs. Religious freedom, in short, meant that religion and non-religion had to be treated the same way. The plurality had come to this conclusion in the guise of statutory construction; Harlan‟s opinion embraced the same result explicitly as constitutional law.
Seeger and Welsh, though in form statutory decisions, amounted to a minor revolution in the constitutional treatment of religion. As I have put it elsewhere, “their one-two punch has cast a long shadow over the Court‟s religion clause jurisprudence.”67 The logic of their holdings is that any serious accommodation of religious conscience constitutionally must embrace analogous claims of non-religious conscience.68
The third case in the draft exemption trilogy, Gillette v. United States, was decided in 1971, the year after Welsh. Two rather different claimants argued for a right to selective conscientious objection – a moral objection not to all wars but only to certain
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64 Id. at 356 (Harlan, J., concurring in the judgment).
65 Id. at 357. 66 ADD CITATION
67 Paulsen, Making Sense of Religious Freedom, supra note xx, at 1618.
68 The Court has not been perfectly consistent on this point. See, e.g., Thomas v. Review Board, 450 U.S. 707, 713 (1981) (“Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion.”) ;Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.”); cf. Cutter v. Wilkinson, 544 U.S. 709, 710 (2005) ( “religious accommodations need not „come packaged with benefits to secular entities.‟” (quoting Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987)).
“unjust” ones. The statute did not extend so far, but only protected those who opposed participation in war in any form. One of the two claimants was a clearly religious Roman Catholic who adhered to Catholic “just war” doctrine, which explicitly differentiates a Christian‟s conscientious moral duty in different types of war situations. The other was a Seeger-Welsh-style non-religious ethical objector to the Vietnam War in particular as an unjust war. To the modern perspective, of course, the situations appeared identical. And the one thing that seemed clear from the outset in Gillette, given Seeger and Welsh, was that the two claims would be resolved the same way.
The Court rejected both claims. This was not very surprising: given increased opposition to the Vietnam War, and to the draft, accommodation of essentially all claims to conscientious objection to the draft came to be seen by the Court as intolerable. In the political and social context, and given the premises of Seeger and Welsh, it would in effect mean the evisceration of the draft. The power to conscript for military service in an increasingly unpopular war would be subject to the individual veto of the putative draftee, a result desired by none of the justices (save Justice Douglas, in lone and perpetual dissent over anything involving the government‟s power with respect to the Vietnam War69). Under such circumstances, protection of all individual claims of conscience became too much weight for the Free Exercise Clause to bear. And so the Court beat a hasty retreat from the aggressive protection of religious (and non-religious) conscience.
The Court‟s discussion is revealing. To protect just-war conscientious objection, for religious and non-religious persons alike, would embrace “[a] virtually limitless variety of beliefs.” Ordinary “dissent from policy” might “appear as the concrete basis of an objection that has its roots as well in conscience and religion.” Sorting the two would be nearly impossible. Moreover, “the belief that a particular war at a particular time is unjust is by its nature changeable and subject to nullification by changing events.” The claim is “ultimately subjective, depending on the claimant's view of the facts in relation to his judgment that a given factor or congeries of factors colors the character of the war as a whole.”70
Accommodating such “ultimately subjective” claims of conscience was especially unconscionable given the diversity of religious and secular claims of morality: “Ours
is a Nation of enormous heterogeneity in respect of political views, moral codes, and
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69 401 U.S. at 463 (Douglas, J., dissenting). Justice Douglas, of course, had dissented vehemently and regularly from the claimed authority of the executive branch to wage the Vietnam War at all, in cases presenting the issue – and in cases not presenting the issue, but involving individual acts of protest and resistance. Mitchell v. United States, 386 U.S. 972 (1967) (Douglas, J., dissenting from denial of certiorari) (draft challenge); Holtzman v. Schlesigner, 414 U.S. 1316 (1973) (Order of Justice Douglas) (lifting stay of injunction against use of armed force in Cambodia); Massachusetts v. Laird, 400 U.S. 886 (1970) (Douglas, J., dissenting from denial of leave to file Complaint) (collecting Douglas‟s other opinions asserting the unconstitutionality of the Vietnam War); United States v. O‟Brien, 391 U.S. 367, xxx (1968) (Douglas, J., dissenting) (dissenting from decision upholding conviction for draft card burning against First Amendment Free Speech challenge, asserting that question of Vietnam War‟s constitutionality was a question that needed to be resolved).
70 401 U.S. at 456.
religious persuasions.”71 To grant all such claims was, to the Court unthinkable – impractical, extreme – but to grant some but not others was just as unthinkable, for different reasons: it could produce “religious discrimination.” A claim‟s chances of success “would be greater the more familiar or salient the claim's connection with conventional religiosity could be made to appear,” the Court added, citing the Establishment Clause and recent decisions made under it. “While the danger of erratic decisionmaking unfortunately exists in any system of conscription that takes individual differences into account, no doubt the dangers would be enhanced if a conscientious objection of indeterminate scope were honored in theory.”72
The Free Exercise Clause never fully recovered from the cumulative effect of the draft exemption cases. The pro-exemptions view made a brief comeback the next year, in Wisconsin v. Yoder, upholding the right of Amish communities to discontinue formal schooling past the eighth grade,73 but Yoder soon came to be regarded as the exceptional case, with further exemptions on Free Exercise Clause grounds largely limited, in Supreme Court cases, to claims involving unemployment compensation, until even that string was broken in Employment Division v. Smith.74
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71 Id. at 457.
72 Id. at 458. [VERIFY ALL THESE CITES AGAINST ORIGINAL] One can hear distinct echoes of Gillette in the Court‟s decision and opinion in Employment Division v. Smith, two decades later: “Any society adopting such a system [of requiring individual religious exemptions from laws of general applicability] would be courting anarchy, but that danger increases in direct proportion to the society‟s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” . . . and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.” 494 U.S. at 888 (quoting Braunfeld v. Brown, 366 U.S. 599, 606 (1961)). Justice Douglas‟s dissent in Gillette shared the premises of the majority that accommodating religion necessarily meant accommodating a virtually limitless number and diversity of secular claims for religious conscientious exemption. He simply would have granted exemption to all, rather than withholding it from all: “Conscience is often the echo of religious faith. But, as this case illustrates, it may also be the product of travail, meditation, or sudden revelation related to a moral comprehension of the dimensions of a problem, not to a religion in the ordinary sense.” The two situations, for Douglas, had to be treated the same way. The exemption at statute, as written, “is a species of those which show an invidious discrimination in favor of religious persons and against others with like scruples.” Government, he argued, had to be neutral between religious belief and other belief. Id. at 468-469 (Douglas, J., dissenting).
73 406 U.S. 205 (1972).
74 Sherbert v. Verner, 374 U.S. 398 (1963) is the leading modern case for the broad view of the Free Exercise Clause as requiring exemptions for religion from laws of general applicability. Sherbert held that a state could not condition eligibility for unemployment compensation, as applied to a Saturday Sabbath observer, on being available for work six days a week (including Saturday). Free Exercise Clause claims for religious-specific exemption from nominally neutral unemployment compensation rules were similarly upheld in Thomas v. Review Board, 450 U.S. 707 (1981), Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987), and Frazee v. Illinois Employment Security Dept., 489 U.S. 829 (1989). Even that string ended with Employment Division v. Smith, which rejected a claim for unemployment compensation for a person who was unemployed by virtue of religious conduct in conflict with state criminal drug-use rule. 494 U.S. 490 (1990).
The essential problem – a problem that continues to bedevil religious freedom today – is that to define “religion” within the meaning of the Constitution (or federal statutes) as embracing essentially any strongly-held comprehensive personal or community belief system is to drain the term of meaning. Doing so wrenches the word “religion” from its constitutional and social context and gives it a new, ahistorical modern meaning more in harmony with the modern stance toward religious freedom as protecting freedom, and personal beliefs, generally. The result, ultimately, is not to bring all personal beliefs up to the level of protection accorded genuine exercise of religious faith, but to bring truly religious beliefs down to the level of protection accorded all personal beliefs – which is, to put them at the mercy of popular will. Ironically, “defining” (if that is the right word) “religion” so broadly as to include most everything under the sun ends up reading the Free Exercise Clause out of the Constitution, at least insofar as it is thought an affirmative, substantive individual liberty.
The correct answer depends, I submit, on the correct paradigm. We protect religious liberty on the premise that God is real and that the true priorities of God trump the ordinary commands of man. We do not protect secular conscience, generally, in the same way, because the nature of the conflict between an individual‟s own personal ethical views and the requirements of the state is not the same thing. The nature of religious obligation is intrinsically different from philosophical or moral belief systems that involve no conception of a transcendent Creator, God. The Believer understands himself to be under the superior authority of God. The ethical humanist, secularist, or atheist does not; he does not believe in God. Rather, he is subject to the moral commands he discerns for himself. (In a very real sense, the atheist is god for himself, the only ultimate authority over his own conscience. He really is, in Smith‟s words, “a law unto himself.”75) To assume that these situations are the same, to treat them as rough equivalents, is to deny the most basic premise on which American religious freedom rests and to render the protection specifically of the free exercise of religion linguistically (as well as theologically) unintelligible.
The word “religion,” in the original sense of the term employed by the Constitution (and still in common usage today), necessarily involves some sort of conception of God (or gods) and the obligations of man and restrictions on conduct
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In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, Slip Op. No. 10-553 (January 11, 2012), the Supreme Court unanimously held that the Free Exercise Clause requires that churches‟ decisions with respect to the hiring and firing of ministers be exempt from facially neutral employment discrimination laws: “[T]he Free Exercise Clause . . . protects a religious group‟s right to shape its own faith and mission through its appointments.” Slip op. at 13. The Court noted that, as in Smith, the statute at issue was neutral and generally applicable, but distinguished Smith on its facts: “It is true that the ADA‟s prohibition on retaliation, like Oregon‟s prohibition on peyote use, is a valid and neutral law of general applicability. But a church‟s selection of its ministers is unlike an individual‟s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 15
75 Add cites – to Smith and Reynolds v. United States
thought to flow from rightful devotion to the prior and superior claims of God. It is, necessarily, “something more than just the projection of an individual‟s inner sense of self, value, ethics, or morals, or of a social political, or moral philosophy that involves no such transcendent reality or creative force.”76
As I have written elsewhere, there is probably no better operational definition of “religion” in this constitutional sense than the one supplied by the original Virginia Declaration of Rights and employed by James Madison in his Memorial and Remonstrance Against Religious Assessments: religion is “the duty which we owe to our Creator and the manner of discharging it.”77 (This is not direct “legislative history” of the meaning of the First Amendment. But it is good contemporaneous evidence of common public usage of the term “religion” at or about the time the Constitution was adopted.78) The statutory military draft-exemption definition, before the Supreme Court got hold of it, was remarkably similar to that early definition: “an individual‟s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.”79
That statutory definition, in turn, can trace its origins to the outstanding dissenting opinion of Chief Justice Hughes in United States v. Macintosh, which the statute fairly copies. Indeed, Hughes‟s opinion in Macintosh is an eloquent defense of American religious freedom as fundamentally rooted in the priority of an individual‟s duties to God. Hughes was dissenting from the majority‟s holding that an applicant for naturalized citizenship could be rejected for refusal on religious grounds to promise in advance to bear arms in defense of the United States:
Much has been said of the paramount duty to the state, a duty to be recognized, it is urged, even though it conflicts with convictions of duty to God. Undoubtedly that duty to the state exists within the domain of power, for government may enforce obedience to laws regardless of scruples. When one's belief collides with the power of the state, the latter is supreme within its sphere and submission or punishment follows. But, in the forum of conscience, duty to a moral power higher than the state has always been maintained. The reservation of that supreme obligation, as a matter of principle, would unquestionably be made by many of our conscientious and law-abiding citizens. The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation. . . . One cannot speak of religious liberty, with proper appreciation of its essential and historic significance, without assuming the
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76 Paulsen, Making Sense of Religious Freedom, supra note xx, at 1621-22.
77 Quoted in Everson v. Board of Educ., 330 U.S. 1, 64 (1947?) (case appendix).
78 See Kesavan & Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 Georgetown L.J. at 1144-1148, 1156-1159 (noting how contemporaneous documentary evidence can provide important evidence of word usage, and sometimes even serve as a “concordance” of constitutional meaning).
79 As quoted in Seeger, 380 U.S. at 165 (quoting 50 U.S.C. app. §456(j) (1958).
existence of a belief in supreme allegiance to the will of God. Professor Macintosh, when pressed by the inquiries put to him, stated what is axiomatic in religious doctrine. And, putting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The battle for religious liberty has been fought and won with respect to religious beliefs and practices, which are not in conflict with good order, upon the very ground of the supremacy of conscience within its proper field. . . . There is abundant room for enforcing the requisite authority of law as it is enacted and requires obedience, and for maintaining the conception of the supremacy of law as essential to orderly government, without demanding that either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power.80
The original, religious understanding of the word “religion” as meaning what traditionally would have been understood to be embraced by the word “religion” in 1789, obviously possesses a strong textual and contextual claim to represent the original meaning of the term. The only problem with such an understanding – if it really is a problem – is that it does not fit well with modern sensibilities, which are better reflected by the decisions in Seeger and Welsh. But those decisions make hash of the word “religion” and they make hash of the reasons why the Constitution distinctively protects the free exercise of religion. They also, unwittingly, end up narrowing the sphere of religious liberty, not broadening it (as Gillette and, eventually, Smith show). As un-modern, archaic, and un-generous as it may strike modern sensibilities, the word “religion” in the religion clauses simply does not bear the modern interpretations that have been forced upon it. Seeger and Welsh – and one-half of Gillette – are wrong.
(4) The Problem of Exceptional Harm: Implied Exceptions and
What Might Justify Them
A consequence of all this is that the Free Exercise Clause, within its sphere (of actually religious exercise), presumptively confers a substantive freedom from government regulation, for religious conduct – an immunity from the usual rules of society. But can the Free Exercise Clause really mean so much?81 What of the problem of exceptional harm – the situation where religious conduct imposes essentially intolerable harms on others, or grave dangers of such harms? Would we really permit Abraham to commit human sacrifice of his son, Isaac, out of perceived obedience to God
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80 United States v. Macintosh, 283 U.S. 605, 627, 633-34 (1931) (Hughes, J., dissenting).
81 This is the form of the question posed by Stephen Pepper, in his insightful article on the Free Exercise Clause several years ago. Stepehen Pepper, Taking the Free Exercise Clause Seriously, 1986 BYU L. Rev. 299.
and excuse the murder of a child from criminal liability on the basis of the Free Exercise Clause?82
Judicial doctrine prior to Employment Division v. Smith, and still for certain claims even after Smith as well as under the Religious Freedom Restoration Act (“RFRA”),83 traditionally has handled this problem with a “compelling state interest” escape hatch: a sufficiently compelling, or “paramount” state interest “of the highest order and not otherwise served” trumps even sincere claims to religious exercise.84 As a matter of the constitutional text, the problem remains that there is no compelling-interest override written into the Free Exercise Clause; it is all judicial interpolation. How can such an exception be justified as proper constitutional interpretation? (And does this not tend to suggest that the broad reading of Free Exercise, which would necessitate such an implied exception, is wrong in the first place?) Further, as a matter of the underlying theory explaining the religion clauses as rooted in the idea of the priority of God‟s commands over Man‟s and the disability of the State to judge to the contrary, why should “compelling state interests” – as determined by the State, according to some nonreligious moral or political metric – suddenly trump religious claims? If one grants the premise that we protect religious liberty because what is at stake are truly God‟s commands or expectations, and that these really do prevail over Man‟s moral law at variance with God‟s commands, why shouldn‟t Abraham win, in principle? (After all, the Biblical account states that God really did command Abraham to kill his son, and only repented once it was clear that Abraham had passed the test of absolute loyalty to God and indeed was prepared to carry out God‟s horrific command.85)
In short, does not the concession to “compelling,” “overriding” interests contradict the initial premise on which, as I have argued, religious freedom rests?
The problem is a serious one, but one capable of being answered both in terms of the constitutional text and the underlying priority-of-God religious premises of the
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82 The Biblical story is recorded at Genesis 22. Abraham, of course, did not sacrifice Isaac, but was apparently prepared to do so in obedience to God‟s command. This was good enough for God, and Isaac was spared.
83 Smith preserved the compelling interest standard for free exercise claims involving challenges to denials of exemption claims where the law or rule in question provides individualized accommodation or application in other respects, CITE, and where a free exercise claim is made in combination with some other plausible constitutional claims, such as a substantive due process “parental freedom” claim or a free speech claims. CITE. Whether these exceptions to Smith‟s rule make any principled sense can be (and has been) doubted. See Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Montana L. Rev. 249, 251 n.8 (collecting commentary to this effect). The Religious Freedom Restoration Act (“RFRA”), Pub. L. No. 103-141 (1993) adopts the compelling interest standard for all applications of federal law. See generally Paulsen, A RFRA Runs Through It. RFRA applies that same standard to state law, but the Supreme Court held that Congress lacked power to prescribe such a rule, in City of Boerne v. Flores, 521 U.S. 507 (1997). Congress responded with the Religious Land Use and Institutionalized Persons Act, CITE (“RLUIPA”), CITE which provides for application of the compelling interest standard in challenges to state laws in certain prescribed areas falling within Congress‟s power to regulate interstate commerce and to attach conditions to the receipt of federal expenditures.
84 Wisconsin v. Yoder, 406 U.S. at xxx ( ); Sherbert v. Verner, 374 U.S. at xxx ( ).
85 See supra note xx.
religion clauses. Consider for a moment the types of things that lie at the core of what are generally thought to be “compelling” interests. (Set to one side the fact that governments tend to regard everything they do – all official policies and rules – as “compelling,” an approach that would render the Free Exercise Clause essentially meaningless.86)
Paradigmatic compelling interests include: protection of human life from such grave harms as murder, rape, robbery, theft, slavery, infanticide, abortion, oppression, violent attacks from others of all kinds, falsity/perjury/fraud to the injury of another and, arguably, some other kinds of very serious threats or injury to life, liberty, or even property of another. (Conduct posing a sufficiently serious threat or likelihood of such injuries is also, typically, regarded as presenting compelling justification for overriding religious liberty.) Typically excluded from such lists are purported harms of an individual to himself or herself as a consequence of sincere religious conviction. By extension, harms purely internal to a religious community, i.e., that do not involve injury to non-consenting third parties outside the community; purported harms to third parties that are either relatively minor or that involve injuries to new, non-common law, non-natural “rights” (for example, statutory rights creating affirmative benefits or broad freedom from others‟ actions extending beyond traditional baseline conceptions of private rights)87; and general, diffuse, non-cataclysmic social and political costs of accommodating religious conduct at variance from society‟s usual rules, including both the costs of accommodation and the administrative inconvenience inherent in carrying out a requirement of religious accommodation, are not “harms” sufficient to displace genuine free exercise claims. All of these are less than truly “compelling” interests though the lines concededly are often difficult to draw.88 Purported injuries or harm to children, of many (but not all) kinds, tend to be regarded as compelling,” because of problems of consent; but parents‟ usual right to choose how best to care for, educate, and promote the well-being of their children, including the right to choose the religious upbringing of their children, usually should lead to children being treated as members of the religious community of their parents.89
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86 See generally Paulsen, A RFRA Runs Through It, supra note 1, at xxx-xxx.
87 This choice of baselines makes sense. The sphere of constitutional religious liberty should not contract just because the asserted powers of the secular state (including the power to create new legal rights or interests) expand.
88 For an excellent, classic discussion of the full range of problems and competing interests occasioned by claims of religious freedom, see Eugene Volokh, Intermediate Questions of Religious Exemptions – A Research Agenda With Test Suites, xxx Cardozo L. Rev. xxx (1999).
89 See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Troxel v. Granville, 120 S. Ct. 2054 (2000). See generally Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1939-1947 (2001). This creates extraordinarily difficult problems with regard to issues of medical care of children, where a religious community‟s rules differ dramatically from society‟s, both the religious and human stakes are high, and the life of a child may hang in the balance. Examples include certain Jehovah‟s Witness beliefs against blood transfusions and Christian Scientist beliefs favoring spiritual to medical treatment of physical illness in many circumstances. [GENERAL CITATIONS? CASES?] HELP!
These limitations – the lines drawn by perceived compelling interests – are as much intuitive as anything. Yet the intuitions are often valid. In modern times, these intuitions appear to reflect, and track reasonably closely, the generally libertarian stance of philosopher John Stuart Mill‟s On Liberty.90 But because people‟s intuitions in this regard differ, and are often a function of their own personal religious beliefs or empathy for religious conviction generally, they can feel highly subjective. And as a society changes from a liberal religious society to a modern (or post-modern) irreligious society, intuitions shift too as to what are sufficiently “compelling” interests to trump religious exercise. Society‟s interests are ratcheted up in public estimation; and religious free exercise is less readily indulged as a prior and superior value. Assertions of important state interests in new policies or programs readily supplant space formerly reserved for free religious exercise. The result is that the scope of Free Exercise becomes unanchored, tied more to current notions of correct social policy than to any fixed, determinate original meaning of the Free Exercise Clause. (And there is still the problem that the First Amendment text says nothing at all about compelling interest exceptions, the philosophy of John Stuart Mill, or anything else of this nature.)
I would like to suggest three possible ways to understand “compelling interest” exceptions to, or overrides of, free exercise claims, that harmonize better with the text of the First Amendment and with the religious premises of the religion clauses. Each is consistent with the others; indeed, they tend mutually to reinforce one another. Significantly, each of these arguments tends to limit, quite strictly, the types of things that can be claimed as compelling interests. At the same time, these ways of re-formulating “compelling interest” redirect the inquiry away from the state and its claimed interests and toward what plausibly can be claimed in the name of free exercise of religion.
First, one could understand compelling-interest overrides as exceptions implied out of the very strictest necessity. They are not stated in the text – a problem, to be sure – but they are arguably implicit in it as a background, structural principle embedded in the Constitution generally and against which the natural right of freedom for religious exercise should be read and understood, and limited.91 This is an imperfect textual argument, but not a ridiculous one. Significantly, it supports a limitation on “compelling interest” exceptions to the text‟s stated rule only for interests that are genuinely compelling – and not just for anything and everything government officials wish to do. The fact that the text does not explicitly set forth such exceptions should operate as a check against their too-frequent or too-easy invocation. The presumption runs, strongly, against any such implied exception. A compelling interest, to be read into the text as an
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90 Citation. YEAR.
91 I have suggested elsewhere that the Constitution‟s structure and logic supports a principle of “necessity” as a rule of construction, and perhaps a freestanding substantive rule, counseling against readings of rights and powers that threaten to destroy the essential enterprise of constitutional government, or work truly massive harm on individuals or society, and that this, more than explicit textual command, is the best explanation of many “compelling interest” tests in current constitutional doctrine. Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1281-82 (2004); see also Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U Chi L Rev 691, 721-726 (2004) (noting significance of President Lincoln‟s use of such an interpretive premise to justify his construction of presidential war and emergency powers under certain circumstances).
implied exception, has to be, truly, compelling, “paramount,” of “the highest order.”92 This, I submit, accords with the nature of the Free Exercise Clause as an affirmative, natural right, protecting the (general) supremacy of free religious exercise over state power.
A second way of re-thinking “compelling state interest” is that it is perhaps wrong in the first place to view the issue in terms of the state‟s interests as trumping a claim otherwise authorized by the text of the Free Exercise Clause. The very formulation subtly implies ultimate state supremacy, rather than the priority of God. Rather, the phrase may be better thought an imprecise, inartful way of saying that the conduct at question is simply outside the domain of what “the free exercise of religion” embraces, as a matter of the original public meaning of the term itself. The term “free exercise thereof” may itself entail a limitation in its scope to conduct that does not seriously injure others outside the religious community and that does not result in imposition of massive costs on society at large or on specific individuals. Just as, for example, “the freedom of speech” includes both more and less than everything that fits the category of “speech,”93 so too with religious freedom “the free exercise thereof” simply might not include, as a matter of original meaning, conduct imposing such grave harms on others, outside the relevant religious community or the individual. The right to “the free exercise thereof” may well be thought of as entailing some kind of a “jurisdictional” principle that, while preventing the State from importing its rules into the sphere of religious autonomy also prevents the religious adherent from “exporting” his rule into the sphere of society outside of the religious community, by imposing severe externalities.94
The third way to re-understand “compelling interest” may be the most radical: one could understand limitations on religious liberty claims as resulting from precisely the religious justification for religious liberty. If the purpose of and underlying justification for religious liberty is to promote true religious exercise – true obedience to true commands of God – then such a liberty in principle (and practically by definition) excludes conduct one can confidently say proceeds from views outside the realm of conceivably correct views about God.
On this explanation, a religiously based claim to immunity from the usual rules of society fails if the conduct claimed to flow from religious duty violates the clear, universal moral command of God. In other words, the religious adherent‟s claim that God‟s command to him is prior to, and superior to, society‟s command, is one that we are
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92 See note xx, supra.
93 Some “speech” is categorically excluded from “the freedom of” speech as a matter of the original meaning of the phrase taken as a whole, in historical context. And, on the other side, certain expressive conduct, most expressive association, and the freedom not to engage in compelled expression, are all part of “the freedom of” speech though they extend beyond literal speech. Paulsen, Scouts, Families, and Schools, CITE; see also Paulsen, et al., The Constitution of the United States (Foundation 2010) at 950-958 (setting forth a “map” of “the freedom of speech” under the Free Speech Clause).
94 This idea of the Free Exercise Clause as setting forth something of a “jurisdictional” principle was first suggested by a former professor of mine, Professor Perry Dane, in a brilliant student note. Perry Dane, Note, Religious Exemptions under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350 (1980).
prepared to say, however reluctantly, is simply objectively wrong. The freedom claimed is simply not one that fairly and plausibly can be attributed to a true command of God. For example, we can confidently say, as a matter of universal religious and moral truth, that God (by whatever name called) did not command al Qaeda members to commit mass murder. Such a religious claim is simply false, whether or not (and I think it not) a plausibly correct explication of Islam itself and whether or not sincerely believed. The extreme, murderous claims of radical Islamism are simply false claims about God, and are constitutionally unprotected for that reason. In the end, this is the most persuasive – but also surely the most dangerous, if misapplied – argument for overriding claims to religious liberty on the ground that denying such claims is necessary to prevent exceptional harm. My suggestion here is surprising and unfamiliar, in part because our modern era recoils at the idea of describing any claimed religious belief as “wrong.” But I submit that this is not because we think such beliefs as al Qaeda‟s might be right; rather, it is because our era doubts that any claimed religious belief is “right.” We rapidly default to a type of relativism that forbids making any kind of distinctions among claims made in the name of religion. It is presumptuous and unacceptable, to modern understandings, to treat any religious belief or exercise as categorically or even presumptively more right or wrong than any other. It is thus hard for those holding the modern conception to fathom an approach that would justify overriding free exercise claims premised on the view that some free exercise claims are simply untenable as claims about God‟s true commands. (The attitude is of a piece with that which produced the extension of the meaning of “religion” to include non-religious ethical beliefs or principles, discussed above.)
But is mine really so presumptuous a view? Are there not some things that are objectively wrong? Is all morality really completely relative? And do not our intuitions in this regard ultimately flow from received cultural understandings of what God truly does or does not command? To be sure, we should be careful about making such claims – claims of the objective falsity of an asserted religious belief. The proposition, pressed too far, contains the seeds of destruction of the principle of religious liberty.95 Past a certain point, quickly reached, the business of judging the truth or validity of religious beliefs destroys religious liberty. We rightly ask: on what principle, consistent with the premises of religious liberty, can government engage in such enterprise at all?
But up to a point, the inquiry is practically unavoidable. All views of the Free Exercise Clause require some initial inquiry into the sincerity of the believer‟s purported claim and whether the state action in question imposes a cognizable burden on something
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95 It has long been held that government may not evaluate the truth or validity of a religious belief. See, e.g., United States v. Ballard, 322 U.S. 78, 86 -88 (1944) (stating that “[h]eresy trials re foreign to our Constitution” and holding that truth or falsity of religious beliefs cannot be submitted to jury determination); cf. Thomas v. Review Board, 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (courts not competent to adjudicate “controversies over religious doctrine and practice”); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Watson v. Jones, 80 U.S (13 Wall.) 679, 782 (1872) (“The law knows no heresy . . .”).
that qualifies as religious practice. All views, at least to that extent, judge the validity of a claimed right to exercise religion.
Think for a moment about what ultimately lies beneath the intuition that certain claims to freedom, made in the name of religion, cannot be honored. At bottom, I submit, it is one of four thoughts: First, that there is not really a God who makes claims on humans; the claimants‟ claims are simply not real; the claimant is delusional. (That view of course entails a denial of the core premise justifying religious liberty.) Second, that the religious practice claimed is not sincerely believed by the claimant, but a mere pretext or sham – the claimant is lying. (This inquiry is permitted under essentially all approaches, at least as a threshold inquiry.) Third, that the particular religious belief asserted, even if sincerely held, is simply not true – that, even accepting that God exists and imposes duties on humans, the believer simply has it wrong. God exists, yes, but God did not command that. (God did not command al Qaeda to kill innocents.) The claim is simply incompatible with what we know and believe about what God might actually command. (This is the situation I am positing.)
There is a fourth possible intuition: that even if one accepts God, agrees that God makes demands on human behavior, and agrees that in theory God might make commands that (from a human standpoint) seem unreasonable, unbelievable, and even immoral, we should still reject certain religious freedom claims on the ground that what God (purportedly) has commanded is simply a terrible, awful thing. That is, granting arguendo the possibility that God might truly command something horrible, Man should, in this respect at least, reject God‟s supposed will. This is a seemingly paradoxical position, but not a nonsensical one. It simply adopts an overwhelming presumption in favor of the morality, consistency, and integrity of God with respect to perceived universal moral commands; while it acknowledges on theological grounds the (theoretical) possibility of God-prescribed exceptions to, new revelations of, or departures from what were believed to have been God‟s universal moral commands, it refuses to accept such claims as valid claims to the free exercise of religion.96 A slight
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96 It sounds self-contradictory, or at least rather strangely incongruent with traditional western understandings of God, to say that human beings should reject what they believe are the true but morally horrible commands of God – and that the constitutional protection of free exercise of religion therefore should and does not extend to obedience to such commands. Yet I think that this is sometimes the operative intuition. Even devout religious believers sometimes may doubt (and probably should doubt) the propriety of following the perceived commands of God. They might doubt the correctness of their perceptions that God has in fact commanded or required some morally dubious course of conduct. Or they might doubt the moral propriety of obeying what they are truly convinced is the command of God. The latter situation (perhaps less common) might well lead the religious adherent to question the correctness of his perception that God has in fact commanded the conduct, because the believer may think it odd or discordant for God to do things, or to make commands, that conflict with the believer‟s (concededly human and therefore limited) moral intuitions about God‟s nature and character. But in principle, a believer might well accept that God might do, permit, or command things that do not conform to human moral intuitions. This is the whole theological problem of “theodicy,” the difficulty of reconciling God‟s presumed nature and capacities with the reality of evil. (Consider Abraham‟s planned obedience to God‟s command to sacrifice his son, Isaac. See Genesis 22.) In such a case, the believer might well make the moral choice (whether rightly or wrongly) to act in deliberate disobedience to the perceived true command of God. (Religious believers obviously act in disobedience to the believed true commands of God all the time, for
variation might be the position that, while God might in theory command humans to do something terrible and contrary to the believed character of God, a truly extraordinary burden of proof rests on someone making such a claim. Society should not accept its validity unless that practically insurmountable burden is satisfied. (Show us the burning bush that spoke to you a command to murder, rape, pillage, steal, or wage genocidal war and then we will consider your free exercise claim – and probably reject it anyway).97
In the end, it is a sound intuition that there are some situations in which a claimed right to religious exercise must fail. But it is important to be clear on why that should be so, in order to know when such an override to the presumed right of religious free exercise is proper. It would not be consistent with the premises of the Free Exercise Clause, and religious liberty, simply to say that there is no God who makes claims on individuals‟ conduct. The whole point of religious freedom is to protect the right and ability of persons to act in conformity with true commands of God. But it is consistent with the premises of the Free Exercise Clause to say that it excludes fraudulent, pre-textual claims. In such a case, there is no true command of God to be obeyed. Likewise, it is consistent with the premises of the Free Exercise Clause to say that a claim, made in the name of religion, is invalid if it contradicts the apparently clear, universal moral command of God. In such a case, as in the case of an insincere or pretext claim, there is no true command of God to be obeyed. There are some things that we can and should confidently say God thinks are always and everywhere wrong (or at least we should so presume). Claims to engage in such conduct are simply beyond the ambit of what the text‟s protection of “the free exercise thereof” reaches.
We should reach this conclusion not because of any claim that the State is supreme – that its “compelling interests” prevail over God‟s commands. It is not because we reject the idea of the priority of God. It is because we accept the idea of the priority of God‟s true commands and, precisely for that reason, reject claims that we know to be contrary to God‟s clear, universal moral commands.
What sorts of things are included in that description? There will still be arguments over what falls in this category and what does not. There will still be close
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reasons including moral weakness and lack of faith – in a word, “sin” – but that is a different matter.) My point here is that it is not inconceivable that a society‟s stance on religious freedom might take a similar view: that even assuming arguendo that something is truly the command of God, obedience to a morally horrible such command, contrary to the laws of man, will not be treated as constitutionally protected conduct. (From a theological perspective, it also may be appropriate for one to argue with God when God is thought to have commanded something unreasonable or morally intolerable. See Genesis 18:20-33, where Abraham is reported negotiating with God to save Sodom, if Abraham can find fifty innocent people in the City. God agrees, and Abraham proceeds to bargain God down to 45, 40, 30, 20 and finally 10. The deal is struck at 10, but Sodom still loses.)
97 I owe this alternative formulation to to a thoughtful conversation with my colleague, Professor Teresa Collett.
98 It is not a major objection to a theory of religious liberty that there will be close cases or difficult line-drawing decisions. If that is the inquiry required by the original meaning of the Free Exercise Clause, then that is the inquiry that must be made, notwithstanding that it may entail some difficulties in application or administration. Line-drawing difficulties exist under any test that takes free exercise seriously. My
suggested approach would simply resolve more such issues in favor of the religious claimant, relocating
consideration of every possibility and past judicial decision here. But the arguments will be somewhat different arguments, the line-drawing difficulties will be located at a different spot on the continuum, and somewhat different cases will be the difficult cases, for somewhat different reasons than under pre-Smith “compelling interest” jurisprudence. In the main, the type of conduct that will fail of constitutional protection is of the type specifically and consistently prohibited by the moral codes of the Judeo-Christian tradition, in things like the Ten Commandments and comparable New Testament moral codes, and their counterparts in Islam and most other theistic and polytheist religions.99 To a surprising degree, these common moral prohibitions track the “compelling interest” libertarian exclusions noted above (though with certain differences with respect to prohibitions on sexual conduct, which depart from at least modern-day libertarian sensibilities). Thus, the debates over what conduct cannot plausibly be attributed to God‟s commands might end up looking considerably like debates over what conduct falls outside the bounds of libertarian toleration – conduct inflicting serious injury upon non-consenting third-parties: murder, rape, robbery, fraud, slavery, abortion, aggressive war, genocide, or other grave harm to others who are not part of the religious community. In such cases, the State‟s interests prevail over the religious claimant‟s, not because the State says so and not because John Stuart Mill might have thought so, but because God thinks so.100
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suggested approach would simply resolve more such issues in favor of the religious claimant, relocating the line-drawing inquiry to a different spot on the continuum.
99 See, e.g., Exodus 20:13-17; Romans 1:18-32; 1 Corinthians 5:11, 6:9-10. I depart from my disclaimer of interest in deciding particular cases for a
100 I depart from my pledge not to address specific cases and issues simply to note that, under the view I have sketched here, several of the Supreme Court‟s Free Exercise Clause decisions are certainly wrong and many more are at least highly questionable, because the religious adherent‟s claims were neither insincere nor discredited as obviously contrary to clear, universal moral commands of God nor such as demonstrably to work serious injury to the baseline or natural rights of non-consenting third parties, outside the relevant religious community. E.g., Reynolds v. United States, 98 U.S. 145 (1879) (no showing of pretext or universally wrongful conduct posing grave injury to private rights of non-consenting third parties); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (dubious pre-incorporation case: questionable whether non-vaccination on religious grounds injures non-consenting third parties by wrongful conduct external to the religious community); Minersville School District v. Gobitis, 310 U.S. 586 (1940) (outrageously wrong holding that Free Exercise Clause does not forbid government from compelling public affirmation contrary to religious conviction); Prince v. Massachusetts, 321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); Gillette v. United States, 401 U.S. 437 (1971) (wrong as to religious claimant); Heffron v. ISKCON, 452 U.S. 640 (1981) (wrong on disregarded Free Exercise claim even if right on addressed Free Speech ground). United States v. Lee, 455 U.S. 252 (1982); Bob Jones University v. United States, 461 U.S. 574 (1983); Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985); Goldman v. Weinberger, 475 U.S. 503 (1986); Bowen v. Roy, 476 U.S. 693 (1986) (wrong in part; questionable in part); O‟Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Lyng v. Northwest Indian Cemetery Protective Ass‟n, 485 U.S. 439 (1988); Hernandez v. Commissioner, 490 U.S. 680 (1989); Employment Division v. Smith, (no showing of pretext or universally wrongful conduct posing grave injury to private rights of non-consenting third parties). In addition, Locke v. Davey xxx (2004) is wrong even on the narrow view of Free Exercise as invalidating only laws that single out religious conduct for discriminatory treatment.
I have discussed some of these cases at length in other writing addressing the Free Exercise Clause issues presented therein. See Paulsen, A RFRA Runs Through It, supra note xx (discussing United States v. Lee, Bowen v. Roy, Hernandez v. Commissioner, Goldman v. Weinberger, O‟Lone v. Estate of Shabazz, and Lyng v. Northwest Indian Cemetery Protective Association); Paulsen, Religion, Equality, and the
“Free exercise” of religion thus means quite a lot. Understood as protecting the priority of God‟s commands over Man‟s, it means that religious conduct is presumptively immune from the usual authority of the State. It means that religious conduct – conduct rooted in the believer‟s understanding of the commands or expectations of God, and not a mere personal moral or ethical philosophy or analogous secular belief system – is, to the extent of the Free Exercise Clause‟s constitutional immunity from government‟s power, affirmatively preferred to non-religious conduct. And it means that the limitations on religious freedom are, likewise, better understood as flowing from essentially religious limits on what plausibly can be credited as a true command or requirement of God, not merely from ad hoc evaluation of the importance of asserted secular interests of civil government.
Next Week: The Priority of God (A Theory of Religious Liberty) - Part 5
