Professor Philip A. Hamburger, A CONSTITUTIONAL RIGHT OF RELIGIOUS EXEMPTION: AN HISTORICAL PERSPECTIVE, 60 Geo. Wash. L. Rev. 915 (1992)

60 Geo. Wash. L. Rev. 915
George Washington Law Review
April, 1992
A CONSTITUTIONAL RIGHT OF RELIGIOUS EXEMPTION: AN HISTORICAL PERSPECTIVE
Philip A. Hamburgera
Copyright (c) 1992 by the George Washington Law Review; Philip A. Hamburger
Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court’s most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence.1 Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. The historical evidence concerning religious liberty in eighteenth-century America is remarkably rich and consequently can reveal analytical difficulties and solutions to which we should be attentive when formulating our modern constitutional law.
The possibility that the Free Exercise Clause was understood in the late eighteenth century to provide aconstitutional right of religious exemption from civil laws has been examined by relatively few *916 scholars. Among these are Professors Michael J. Malbin and Ellis West, who have relied upon the writings of a small number of framers, ratifiers, and other Americans to argue that the First Amendment did not create a right ofreligious exemption.2 Recently, however, Professor Michael W. McConnell has, with great sophistication, presented the case for a contrary position, and he thereby has created an opportunity to reexamine the issue.3According to Professor McConnell, the Free Exercise Clause may have originally been understood to exempt individuals from civil laws to which they had religious objections. In qualification, McConnell adds that the First Amendment may have exempted only such noncompliance as was peaceable and did not threaten important government interests.4 McConnell’s work is particularly significant not only because it takes a fresh view of the Free Exercise Clause but also because it has implications for our historical understanding of America’s written constitutions: It suggests that American constitutions subordinated civil law, whenever practicable, to each individual’s personal judgment about his or her higher obligations.
In fact, late eighteenth-century Americans tended to assume that the Free Exercise Clause did not provide aconstitutional right of religious exemption from civil laws.5 The first part of this Article examines and calls into question McConnell’s arguments that the Free Exercise Clause may have created such a right. The second part of this Article then considers more generally the history of a right of religious exemption and shows the extent to which Americans did not seek and even rejected such a right. Among other things, the second part also suggests how Americans reconciled their distaste for a right of exemption with their support for religious freedom. Of course, many Americans sympathized with their *917 neighbors who had pious scruples about oaths, military service, and a few other legal requirements, and, therefore, in various statutes and even state constitutions, Americans expressly granted religious exemptions from some specified civil obligations. Americans did not, however, authorize or acknowledge a general constitutional right of religious exemption from civil laws.
I. McConnell’s Evidence
Eighteenth-century Americans spoke and wrote extensively about religious freedom and about government. Yet Professor McConnell apparently cites no instance in which a late eighteenth-century American explicitly and unambiguously said that an individual’s right to the free exercise of religion included a general right of peaceable,religious exemption from civil laws-that is, from the otherwise secular laws of secular government.6 Instead, McConnell argues that his thesis is a possible and even the most probable explanation of a substantial body of other evidence.7 This part of this Article examines McConnell’s evidence and draws a contrary conclusion.8
*918 A. State Constitutions
McConnell finds support for his position in the religion clauses of certain state constitutions,9 and, because he describes these clauses as his “strongest evidence,”10 they will be examined here in detail. The clauses that interest him are those that acknowledged an individual’s right to the free exercise of religion or to freedom of worship but that added a caveat, such as, “provided he doth not disturb the public peace.”11 According to McConnell, these caveats indicate that the right of free exercise was understood to include a right of exemption from religiously objectionable civil laws, except with regard to nonpeaceable behavior.12 This argument, however, depends upon two assumptions: that the caveats concerned only nonpeaceable behavior, and that the caveats limited the extent rather than the availability of the right of free exercise. As it happens, both assumptions are mistaken. The caveats reflected a willingness to allow government to deny the otherwise guaranteed religious liberty to persons whose religious beliefs or actions threatened the capacity of civil society to fulfill its functions.
The behavior described by the caveats included more than just nonpeaceful behavior. A caveat that required persons to avoid disturbing the “good order,” “safety,” or “happiness” of society or of the state appears to have demanded a greater degree of obedience than just peaceful behavior.13 Indeed, in Maryland, the caveat expressly mentioned persons who “shall infringe the laws of morality, or injure others in their natural, civil or religious rights,” and, in New York and South Carolina, the caveats dealt with, among other things, “acts of licentiousness.”14 Even those caveats that mentioned only disturbances of the peace did not exclusively concern acts of violence or force. According to long tradition, the criminal offenses over which common law courts had jurisdiction were said to be “contra pacem.” Consequently, the phrase “contra pacem” became associated with the notion of violation of law. Whereas McConnell assumes that a disturbance of the peace was simply nonpeaceful behavior, eighteenth-century lawyers made clear that “every breach of law is against the peace.”15Thus, the disturb-the- *919 peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.
The caveats, moreover, described the availability rather than the extent of the guaranteed religious freedom; instead of implying that the right of free exercise was very extensive-that it permitted peaceable departure from civil law-the caveats stated the conditions upon which religious liberty could be denied.16 This point can be illustrated with particular clarity by the Revolutionary constitutions of New Jersey, Delaware, and South Carolina.17 In these constitutions, the caveats about peaceable behavior clearly related to guarantees of equality or nondiscrimination rather than to the free exercise or freedom of worship clauses. In New Jersey, article XVIII*920 of the constitution concerned freedom of worship,18 and article XIX stated that:
no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby established, … shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.19
In Delaware, section 2 of the Declaration of Rights spoke of freedom of worship,20 and section 3 provided that Christians “ought … to enjoy equal Rights and Privileges in this State, unless, under Colour of Religion, any Man disturb the Peace, Happiness or Safety of Society.”21 The South Carolina Constitution declared:
That all persons and religious societies who acknowledge that there is one God, and a future state of rewards and punishments, and that God is publicly to be worshipped, shall be freely tolerated. The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State. That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges.22
Thus, in New Jersey, Delaware, and South Carolina, the caveats related to language concerning equality and nondiscrimination, not to the language about free exercise, freedom of worship, or toleration. The caveats stated the conditions under which government could deny the religious freedom otherwise guaranteed.
Although not as clear as the New Jersey, Delaware, and South Carolina constitutions, other state constitutions with disturb-the-peace caveats are susceptible of similar interpretation. In these other states, rather than pertain unambiguously to equality clauses, the caveats related, or may have related, to the free exercise clauses. Nonetheless, the caveats still should be understood to have stated the conditions under which government could deny the promised religious liberty. Americans repeatedly reminded one another in sermons and pamphlets that individuals were “equally” free in the state of nature and that “all” individuals in that condition and even in civil society had a natural right to believe or worship as they pleased. In this context, it is hardly surprising that American constitutions tended to guarantee free exercise or freedom of worship to all persons.23 Similarly, constitutions provided other guarantees of *921 religious liberty to all persons, Christians, or Protestants.24 In connection with these varied provisions, it is possible that the caveats were understood to indicate the circumstances in which government could deny religious freedom. For example, Georgia’s constitution said that “ a ll persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.”25 The second clause could have been a condition of the availability of a relatively narrow right of free exercise rather than a limitation on an otherwise very extensive right. In short, the theory that the disturb-the-peace caveats evince a right of religious exemption fails to explain the Delaware, New Jersey, and South Carolina constitutions; in contrast, the theory that the caveats permitted government to deny an otherwise guaranteed religious freedom explains the words of all early state constitutions.
It would seem, therefore, that the caveats set forth the conditions under which government could deny a promised religious liberty-the conditions under which government could restrict the availability of such freedom. Of course, the caveats reveal that the religious liberty guaranteed by American constitutions did not include the behavior described in the caveats. But the caveats did not in other respects define the extent of religious liberty.26
This interpretation-thus far based largely on the words of the caveats-can be verified by the context in which the caveats were written. Like Englishmen before them, Americans disagreed about the circumstances in which government should be able to deny the religious liberty otherwise guaranteed. It will be seen that Americans took at least three broadly different positions on the availability of religious freedom and that their variously formulated religion clauses more or less reflected these three positions.
*922 The first approach made use of the ideas of John Locke. Some Americans, drawing upon Locke, argued that government should be able to discourage dangerous beliefs-that it should be able to deny religious liberty not only to persons whose religious opinions prompted actual violations of law but also to persons whose opinions merely tended to have this effect.27 In the words of a Vermont minister,
every one has an undoubted right to choose that religion and mode of worship which to him appears most agreeable to the word of God, unless it be such as evidently tends to destroy civil peace and government; in that case no one ought to be tolerated-self-preservation forbids it.28
In accord with this approach, Georgia’s constitution permitted Georgia to deny religious freedom to persons whose religion was “repugnant” to the peace and safety of the state.29 Such was the position Jefferson denounced in the preamble to his Act for Establishing Religious Freedom:
[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy … it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order.30
As Jefferson understood, some Americans still assumed that government had a right to restrain religious opinions it considered potentially dangerous.
Many Americans repudiated the idea that a religious opinion could be restrained merely on account of its bad tendency and adopted, instead, a second approach: that government should be able to deny religious liberty only to individuals who disturbed the peace-who actually violated civil law. Taking a version of this approach, the Northwest Ordinance declared that “[n]o person *923 demeaning himself in a peaceable and orderly manner shall ever be molested on account of his mode of worship or religious sentiments in the said territory.”31 Yet even this ameliorated type of caveat still specified circumstances in which government could deny a person the religious freedom he otherwise was guaranteed. As Oliver Ellsworth explained,
In our country every man has a right to worship God in that way which is most agreeable to his own conscience. If he be a good and peaceable citizen, he is liable to no penalties or incapacities on account of his religious sentiments: or in other words, he is not subject to persecution.32
If a person was not a good and peaceable citizen, he could be penalized on account of his religion.
In contrast was a third position-taken by those constitutions that did not qualify their guarantees of religious liberty.33 Some of the constitutions that took this third approach not only omitted caveats from their religion clauses but also included provisions condemning the punishment of individuals “on account” of their religious beliefs.34 Similar to these constitutions was Jefferson’s Act for Establishing Religious Freedom. As seen above, the preamble to the Act condemned at least the first approach; in addition, the body of the Act stated that no man shall “suffer on account of his religious opinions or belief.”35 Thus, the Americans who abandoned the caveats apparently recognized that the caveats were designed to allow the punishment of individuals on account of their religion.36 Whereas *924 McConnell asserts that the caveats reveal an expansive notion of free exercise-including a right of exemption-in fact, the caveats permitted discriminatory restrictions on the availability of religious freedom and, for this reason, were condemned as intolerant.
The struggle over these three approaches can be observed in detail in the convention that drafted New York’s 1777 constitution and particularly in the attempts of John Jay to obtain a caveat that would permit the repression of Catholicism.37 The earliest extant draft considered by the drafting committee, of which Jay was a leading member, contained a religion clause apparently supported and probably even written by Jay.38 Following the first approach described above, the draft conditioned toleration upon the tendency of opinions:
that free Toleration be forever allowed in this State to all denominations of Christians without preference or distinction and to all Jews, Turks and Infidels, other than to such Christians or others as shall hold and teach for true Doctrines, principles incompatible with and repugnant to the peace, safety and well being of civil society in general or of this state in particular[,] of and concerning which doctrines and principles the legislature of this State shall from time to time judge and determine.39
This proposal assumed that government should be able to treat some religious beliefs as repugnant to the interests of civil society. Although not expressly mentioned, Catholicism was the religion the supporters of this language especially feared, for, according to many eighteenth-century Protestants, Catholics believed they were not always obligated by their civil oaths and allegiances. The drafting committee, however, rejected most of the anti-Catholic provision, adopting instead the unqualified statement-illustrative of the third approach-that “the free toleration of religious profession and worship shall forever be allowed to all mankind.”40
Not deterred, Jay resumed his efforts when the committee’s draft was discussed by the Convention on March 20, 1777. Following *925 closely the language of his earlier proposal, he moved that the committee’s religion clause be qualified as follows: “Provided nevertheless, that nothing in this clause contained, shall be construed to extend the toleration of any sect … who inculcate and hold for true doctrines, principles inconsistent with the safety of civil society, of and concerning which the Legislature … shall … judge and determine.”41 This attempt to reinstate a version of his original measure gave rise to “ m any debates,” and therefore Jay withdrew his amendment and substituted an addition to the religion clause that expressly denied religious liberty to Catholics.42 Again, he was disappointed-losing in a vote of 19 to 10.43
At this point, Jay called for a postponement of further discussion so that he and other anti-Catholics could prepare a compromise position. Having failed to obtain approval of any of the Lockean or more expressly anti-Catholic formulations of the religion clause, Jay and other anti-Catholic framers shifted their focus from the religion clause to that concerning naturalization. In the words of the historian John W. Pratt, “the anti-Catholic group … altered its tactics”; it “decided to achieve the proscription of Catholics by means of a naturalization oath for aliens.”44Therefore, on March 21, when the Convention returned to its consideration of the religion clause, Jay was ready to compromise, and he moved that there be added to the religion clause a somewhat less severe caveat: “provided that the liberty of conscience hereby granted, shall not be construed to encourage licentiousness, or be used in such manner as to disturb or endanger the safety of the State.”45
Yet even Jay’s compromise proposal was insufficiently tolerant in the view of many members of the Convention, for it was ambiguous-it could be understood to refer not only to illegal actions but *926 also to dangerous opinions.46 On this ground, Gouverneur Morris challenged Jay’s motion by asking whether it was not substantially the same as Jay’s proposal that was withdrawn.47 The Convention, however, considered the proposals to be different. Therefore, Robert Livingston moved to substitute in place of Jay’s compromise amendment a caveat that carefully referred only to actions: “provided that this toleration shall not extend to justify the professors of any religion in disturbing the peace, or violating the laws of the State.”48 In other words, to forestall Jay’s compromise proposal, Livingston was willing to give up the unqualified guarantee of toleration that the committee had reported to the Convention, but, if there had to be a caveat, Livingston wanted it to refer to unlawful acts rather than dangerous opinions.
In the end-after a temporary victory by Jay-both sides had to compromise further. On April 1, upon a motion by Morris, the Convention unanimously adopted what became the Constitution’s caveat to its guarantee of religious freedom: “Provided that the liberty of conscience hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”49 A final compromise, the Morris proposal mentioned acts and practices but employed some of Jay’s formulation.
This detailed account of the evolution of New York’s religion clause reveals that Americans formulated the caveats in their religion clauses in a way that reflected their three main positions on the availability of religious freedom. To allow government to deny religious freedom with respect to what they considered dangerous beliefs, Jay and other anti-Catholic framers insisted upon a caveat relating to belief or, at least, Catholicism. In response, Morris, Livingston, and other relatively tolerant framers had to compromise: They abandoned the Committee’s unqualified religion clause and attempted to limit Jay’s caveat so that it would only concern unlawful acts. Far from reflecting a right of exemption, the various caveats indicated the circumstances in which government could deny the religious freedom otherwise guaranteed by a constitution.
B. James Madison
McConnell focuses his discussion of the framers on the writings of Madison. Yet even Madison did not believe that the right of free exercise included a right of religious exemption from civil laws.50
*927 First, McConnell considers it significant that Madison and others in 1776 objected to the use of the word “toleration” on the ground that the exercise of religion was a right.51 According to McConnell, Madison’s insistence that the exercise of religion was a right was a demand for an expanded religious liberty, possibly including a right of exemption.52 Yet if this was what Madison was claiming, why did he not say so? Perhaps he meant only what he said-that the free exercise of religion was a matter of right rather than of toleration or grace. Even if, however, Madison’s objection did concern the extent of religious liberty, there is no reason to think that the right of free exercise was a right of exemption from civil laws. Indeed, there is reason to believe the contrary. By the 1770s, not only dissenters but also many supporters of religious establishments agreed that individuals had a natural right to the free exercise of religion.53 Moreover, during the first decade of Independence, a majority of state constitutions provided for some form of establishment, yet only one state constitution, that of South Carolina in 1776, still spoke of “toleration” rather than a “right” of religious freedom.54 It is unlikely that individuals and states unwilling to eliminate establishments were content to exempt each dissenter from the civil laws to which he or she had religious objections.
Second, McConnell argues that Madison’s support for an express military exemption in the federal Bill of Rights implies that Madison believed the free exercise of religion included a general right of religious exemption from civil laws.55 Yet other conclusions at least as probable as McConnell’s can be drawn from Madison’s proposal of a military exemption: For example, Madison may have assumed that a conscience or free exercise clause would not provide any right of exemption. Nor do the positions of Madison’s colleagues in the congressional debates about the Bill of Rights support McConnell’s *928 view of Madison. Of the representatives whose contributions were recorded, some supported a constitutional right to a military exemption-although only one did so explicitly on grounds of conscience.56 Some, however, opposed such an exemption.57 None are recorded as even discussing a general constitutional right of exemption. Moreover, the House proposal for the Bill of Rights included, in addition to a “free exercise” clause, a provision for “rights of Conscience” and a provision for a military exemption-both of which were removed by the Senate.58 What any of this implies about the meaning of the Free Exercise Clause is speculative. Arguably, it suggests that the Free Exercise Clause, by itself, was not thought to create an exemption from civil laws.59
Third, McConnell finds evidence in Madison’s rewriting of the religion clause of the 1776 Virginia Bill of Rights.60Madison’s proposal, which included a disturb-the-peace caveat, was broken by semicolons into three clauses. The first clause ended by declaring that “all men are equally entitled to the full and free exercise of religion accord ing to the dictates of Conscience.”61 The second added: “and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges.”62 According to the third clause, “nor ought men on *929 account of religion be subjected to any penalties or disabilities unless, under colour of religion, any man disturb the peace, happiness, or safety of society .”63 This language conforms to the pattern observed in other state constitutions; the last clause clearly does not relate to the first and therefore does not imply that the first provided a right of exemption.
C. Exemptions from Particular Civil Obligations
Both before and after the adoption of constitutions guaranteeing the free exercise of religion, legislative and constitutional documents (including charters) granted exemptions from particular obligations, such as oaths, conscription, and assessments. McConnell suggests that when legislatures and other bodies created these exemptions they were attempting to reflect a free exercise right of exemption.64 Yet legislators equally may have been showing their sympathy for Quakers and others whose piety prevented their conformity to law. As McConnell concedes, the issue whether an individual was understood to have a general constitutional right ofreligious exemption from civil laws is hardly the same issue as whether statutes or, occasionally, constitutions granted exemptions with respect to a few specific matters.65
*930 At least one of McConnell’s examples, the assessment system, involved exemptions, not from civil laws, but from laws relating to religion.66 The assessments were state taxes levied to support religion. Many persons, including substantial numbers who were members of the supported church or churches, objected to having to provide such support, but at least dissenters could attempt to get legislative exemptions for their sects or, under some systems, had the right to have their contributions channelled to their own sects. Therefore, McConnell describes these assessment laws as containing exemptions and suggests that they reflected a constitutional*931 right of religious exemption from civil laws.67 Yet it remains unclear why exemptions from laws respecting religion should be understood to reveal much about a right of exemption from laws concerning civil matters.68
D. The Role of the Judiciary
McConnell’s argument appears to assume that late eighteenth-century Americans, at least by 1789, were content to have the judiciary evaluate the existence of conscientious objections and even to have the courts weigh such objections against the needs of government.69 According to McConnell, religious conscience was not understood to justify nonpeaceful behavior-nor even a peaceful departure from a civil law, when the government had a compelling interest in uniform application.70 With respect to a peaceful departure from civil law, the judiciary, indicates McConnell, was expected to weigh the interest of divinely inspired conscience against the interests of civil government.71
Although McConnell does not cite framers, ratifiers, or other Americans on the subject of judicial discretion, there is considerable evidence concerning late eighteenth-century perceptions of the judiciary, and it does not support McConnell’s view of a right of religious exemption. In the framing and ratification debates, for example, both Federalists and Anti-Federalists repeatedly said that the written constitution should delineate with precision the extent of federal power and that federal judges should not be left with vague rules that might become sources of judicial discretion.72 Indeed, the Anti-Federalist insistence on clear, written limitations was of primary importance among the demands that gave rise to the Bill of Rights.73 Thus, it is improbable that the framers and ratifiers of the Bill of Rights deliberately adopted a balancing test as the standard of individual religious liberty and federal power when these were in conflict.74
*932 More generally, in the eighteenth century, the judiciary was understood to be as much a branch of civil government as the legislature. If individuals had a religious liberty that could exempt them from civil authority, they could claim exemption from judicial as well as legislative actions. Thus, for example, when a small Connecticut sect, the Rogerenes, breached civil laws, they were willing to defy the courts.75 Persons claiming a right ofreligious exemption from civil law had no reason to stop at the courthouse door.
II. A Constitutional Right of Religious Exemption in the Eighteenth Century?
A review of McConnell’s evidence has suggested reasons to doubt whether Americans thought the First Amendment provided a constitutional right of religious exemption from civil laws. It remains necessary, however, to examine more generally Americans’ attitudes toward such a right. Although Americans frequently said religious freedom was based on an authority higher than the civil government and that the exercise of religion could not be submitted to civil authority, does this mean that they sought a religious or constitutional right of exemption from civil laws? On the basis of evidence chiefly from Madison, Mason, and Jefferson, Professor Michael Malbin has concluded that the First Amendment was not understood to give a right of religiousexemption.76 Professor Ellis West has supplemented Malbin’s account with evidence from two notable dissenters, John Leland and Isaac Backus.77 In the discussion that follows, it will be seen that there is much eighteenth-century evidence on the question, although only a selection of the evidence can be examined in this brief space.78 What is presented, however, will suggest, first, that the free exercise of religion tended not to be considered a particularly extensive or radical claim of religious liberty-indeed, it was a freedom espoused not only by dissenters but also by establishments. Second, when advocating religious freedom-even a religious freedom broader than mere free exercise-dissenters who were politically active and influential in lobbying for expanded religious liberty79 did not seek a constitutional right of exemption from *933 objectionable civil laws. Third, a right of exemption may have been considered a “law respecting religion” and may have been understood to create “unequal civil rights”-precisely what many dissenters considered attributes of establishment and sought to abolish.
A. Free Exercise
Although eighteenth-century Americans discussed the free exercise of religion in language that may, to twentieth-century lawyers, seem dramatic, by the last half of the eighteenth century, the notion of free exercise according to conscience was hardly a radical idea. Increasing numbers of eighteenth-century Americans asserted that an individual’s relationship to the divine being was a matter of conscience and entirely personal.80 This individualism was reflected not only in discussions of religion but also in the political analysis based on assumptions about the state of nature. According to the Lockean version of that analysis, the free exercise of religion was a right existing in the state of nature.81 It was dictated by personal conscience or judgment and therefore was not-and could not be-submitted to civil government.
Yet the right of free exercise was by no means a politically extreme idea or an idea that fully embodied the claims of dissenters seeking an expansion of religious freedom. The notion that each individual had an inalienable natural right to the free exercise of *934 religion according to conscience appealed not only to dissenters but also, by the time of the Revolution, to many supporters of establishments, who often were content to include free exercise and freedom of worship clauses in state constitutions.82 The idea of free exercise allowed supporters of establishments to refute charges of intolerance and persecution. They could point out that-notwithstanding state support for a particular sect or for Christian religion-all citizens could freely exercise their own religion.83 Thus, even many *935 members of establishments held that individuals possessed an inalienable right to the free exercise of religion according to conscience. Establishment writers also frequently wrote that religion or the exercise of religion was based on an authority higher than the civil government84 and, increasingly, even that civil government could only act with respect to civil interests.85 These were common *936 assumptions among a broad range of Americans, including supporters of establishments with rather limited notions of religious liberty.86
That the free exercise of religion was a minimal degree of liberty already largely conceded by establishments was understood by dissenters, who sought a more extensive freedom than mere guarantees of the natural right of free exercise. Against the establishments, many dissenters argued for an equality of civil rights, regardless of religious belief. More broadly, they took one of Locke’s arguments further than Locke himself: If the civil authority had no power over any but civil matters, then it had to refrain, not merely from penalizing the free exercise of religion, but from making any laws respecting religion.87 It was these liberties-an equality of civil rights and an absence of laws respecting religion-that dissenters sought and that establishments could not accept. Thus, dissenters were seeking, and establishments were opposing, religious rights far more extensive than free exercise-which was the one religious freedom upon which dissenters and establishments could easily agree.
B. Exemption
Whether claiming free exercise or a broader religious liberty, dissenters-particularly politically active and influential dissenters-tended not to ask for a right of exemption from religiously objectionable civil laws. Just as establishment writers could acknowledge that religion was based on an authority higher than the civil government,88 so too dissenters typically could admit that natural liberty was protected only through submission to civil government and its laws. According to vast numbers of Americans, individuals in the state of nature had a liberty that was free from civil restraints but was insecure; therefore, said these Americans, individuals sought protection for their natural liberty by establishing civil government. Liberty could only be obtained by submission to the civil laws of civil government.89
One reason late eighteenth-century ideas about religious freedom did not seem to require a general religiousexemption is that the *937 jurisdiction of civil government and the authority of religion were frequently considered distinguishable. It should not be assumed that late eighteenth-century Americans viewed religion as being necessarily in tension with civil authority. In fact, many Americans, especially dissenters seeking an expansion of religious liberty, repeatedly spoke of civil authority as if it could be differentiated from the scope of religion or religious freedom.90 This assumption is apparent in the language of the First Amendment, which begins, *938“Congress shall make no law.”91 Rather than suppose that civil laws will in some respects prohibit the free exercise of religion and that exemptions will be necessary, the First Amendment assumes Congress can avoid enacting laws that prohibit free exercise. So too, it assumes Congress can avoid making laws respecting the establishment of religion.
In explaining the difference between religious and civil matters, Americans of the last half of the eighteenth century employed several different formulations. Locke had argued that individuals entrusted civil government with the security of “temporal goods” and “the things of this life” but that “the care of each man’s soul, and the things of heaven … is left entirely to every man’s self.”92 Similarly, many Americans differentiated between the temporal and the spiritual, between “this world” and “the Kingdom of Christ.”93 Americans also sometimes listed the things that civil authority could not establish or determine. Typically, they mentioned religious belief and doctrine-what Locke had called “speculative opinions.”94 Occasionally, they also specified the internal governance of a sect and its mode or form of worship.95
*939 Americans tended to adhere to their distinction between the objects of civil authority and those of religion, even when discussing temporal matters that were the subject of religious opinions. Dissenters sometimes acknowledged the existence of matters that were the object of both religious and civil concerns and stressed that civil government could not regulate such matters as were exclusively religious.96 So too, establishment ministers occasionally said that some matters were both temporal and religious but emphasized that civil government could regulate the temporal aspect of these.97 Supporters of establishments could afford to take this position because they also frequently argued that civil government had a legitimate civil or temporal interest in supporting religion.98Some dissenters responded by arguing that civil government could not treat sects unequally. Some even argued that government could not legislate with respect to religion-that it simply could not take cognizance of religion.99 It was on these issues that dissenters and proponents of establishments increasingly tended to disagree, not on the generalization that civil government only had authority over civil or temporal matters.
The assumption that religious liberty would not, or at least should not, affect civil authority over civil matters was so widely held that a general right of religious exemption rarely became the basis for serious controversy. Of course, some dissenters did broadly claim religious exemption from objectionable civil laws, on grounds of freedom of conscience or even divine command. Their claims, however, illustrate the marginal character of the support for a general right of religious exemption.100 For example, John Bolles-a Rogerene-apparently claimed some religious exemption from civil *940 laws. In defense of two Quaker women who “went naked … one into a Meeting, the other … through the Streets of Salem,” Bolles wrote that “they did it in Submission to a divine Power … as a Sign.”101 For precedent, he cited the Bible, saying simply: “Isaiah went Naked.”102 This was not, however, the sort of analysis that most late eighteenth-century Americans found persuasive with respect to constitutional law.103
Although other dissenters, less extreme than Bolles, did seek exemption from civil laws, they typically asked, not for a general right of exemption, but merely for exemptions from a small number of specified civil obligations. Of these limited exemptions, moreover, only those relating to military service frequently were granted in constitutions.104 Even constitutional military exemptions, however, often appear to have been given largely for reasons of compassion *941 and politics.105
Indeed, the idea that individuals had a general right to be exempted from civil laws contrary to their consciences was so unpopular that establishment writers attempted to use it to smear their opponents. By citing lurid stories about the sixteenth-century Anabaptists of Münster and by attributing the enthusiasms of extremists to dissenters as a whole, establishment writers could accuse dissenters of attempting to subvert all civil liberty.106 For example, in support of Connecticut’s religious establishment, Elihu Hall said that persons objecting to that establishment on grounds of conscience were making arguments that would justify nonpayment of civil taxes or breach of contract: “Thus a man may plead Conscience for the support or excuse of all the moral Dishonesty and Promise & Covenant-breaking in the World. But men have no Right to be their own Judges in their own Case in moral Matters, and where their neighbors Interest is equally concerned with their own.”107
*942 To defend themselves from such accusations, dissenters who sought an expanded religious liberty disavowed a right of exemption from civil laws.108 Writing against the Connecticut establishment, Ebenezer Frothingham argued that no “hurt” would be done to “any man’s civil interest, by different sects worshipping God in different places in the same town.”109 Eight different sects might live together in one community, but none, he observed, would be exempt: “If any person of … these professions breaks the law, he lies open to punishment, equally so, as if there was but one profession in the town.”110 Frothingham was not alone. Other influential dissenters also rejected a right of exemption.111
*943 Of course, proponents of establishments did not advocate a right of religious exemption from civil laws,112but neither did the vast *944 majority of dissenters. Although some dissenters asked for grants *945 of exemption from a few specified civil obligations, such as military service, dissenters typically did not demand a general exemption from objectionable civil laws, let alone a constitutional right to such an exemption.113 If the myriad and voluble dissenters who sought an expansion of religious freedom were advocating a general constitutionalright of religious exemption from civil laws, it is remarkable *946 that they tended not to claim such a right and that some of their leading publicists disavowed it.
C. Establishment
In the late eighteenth century, the overwhelming majority of dissenters sought, not a constitutional right of exemption, but an end to establishments. As already discussed, dissenters based their arguments for greater religious liberty on the assumption that civil authority could be compatible with religious freedom and on the assumption that such freedom could only be secure under the civil laws of civil government.114 Constitutions, they argued, should guarantee dissenters (or at least Protestant dissenters) the same civil rights-that is, the same secular legal rights-as other Americans, without regard to religious differences.115 These complaints of dissenters reflected their own circumstances. In the last half of the eighteenth century, many Americans had unequal civil rights on account of their religious opinions; others had equal civil rights but thought this equality precarious. Therefore, many of these Americans wanted guarantees of equal civil rights. Of course, some wanted equality only for Protestants or Christians. Yet a form of equal civil rights was, increasingly, the minimum dissenters believed was theirs by right and what they believed they could get.116 Indeed, some-anxious that religion not be dependent upon civil government-demanded that government avoid legislating with respect to religion.117 If civil government was established for exclusively civil purposes, they argued, then it had no authority to make any law concerning religion. These anti-establishment claims-and, to a lesser degree, the grants of exemption from a few, specified obligations-were the goals pursued by large numbers of dissenters. For these Americans, the possibility of a general right of exemption was, at most, a distraction from the real issues at stake.
What dissenters said about establishments, moreover, had implications for exemption. Of course, the anti-establishment demands for equal civil rights and for the absence of laws respecting religion were made in response to legislative or constitutional provisions *947 that benefitted particular denominations or, more broadly, a particular religion rather than in response to claims of exemption for the religiously scrupulous. Nonetheless, the dissenters’ positions on establishment were suggestive of their position on exemption. A right of exemption for the religiously scrupulous could be considered a law respecting religion. It even could create unequal civil rights; in the words of the Virginia Act For Establishing Religious Freedom, men’s “opinions in matters of religion” shall “in no wise diminish, enlarge, or affect their civil capacities.”118 The sweeping language with which so many Americans attacked establishments was not the language of persons seeking a constitutional right of exemption.119
Conclusion
Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide a right of religious exemption from civil laws? Put another way, did the Free Exercise Clause require courts to subordinate civil law to individual interpretations of a higher, religious duty? By examining these historical questions, not only can we learn about the religious freedom recognized in the federal Constitution but also, more broadly, we can observe how eighteenth-century Americans perceived the relationship between their written constitutions and another, higher source of obligation.
As it happens, the claim that the Free Exercise Clause provided a right of exemption from civil laws depends upon evidence that may *948 be questioned. The disturb-the-peace caveats in state constitutions specified the circumstances in which state governments could deny religious liberty; such caveats related to the availability rather than the extent of religious freedom and do not evince a right of exemption from civil law. Similarly, the evidence does not support the position that Madison sought a general constitutional right of religiousexemption. Moreover, that various state statutes (or even constitutions) expressly granted religiousexemptions from military service and other specified civil obligations hardly suggests that such exemptions were rights under the United States Constitution-let alone that a general religious exemption from civil law was a right under any American constitution. Last but not least, the framers and ratifiers repeatedly said they were reluctant to leave the magnitude of individual freedom-including religious freedom-in the discretion of Congress or the federal judiciary.
A more general examination of religious freedom in late eighteenth-century America reveals that a constitutionalright of religious exemption was not even an issue in serious contention among the vast majority of Americans. Members of establishments increasingly said that they favored the free exercise of religion, and they clearly did not understand that right to include a right of exemption. So too, the politically active and influential dissenters who sought and obtained expanded constitutional guarantees of religious liberty did not seek a general constitutionalright of exemption from civil laws. Indeed, they expressly disavowed such a right and frequently agitated for equal civil rights and an absence of laws respecting religion. In eighteenth-century America, where varied Christian sects bickered with one another and thrived, a constitutional right to have different civil obligations on account of religious differences was precisely what dissenters did not demand.

Footnotes

a
B.A. 1979 Princeton University; J.D. 1982 Yale Law School; Professor, University of Connecticut School of Law; Visiting Professor, 1991-92, National Law Center, The George Washington University. The author gratefully acknowledges the generous financial support of the Lynde and Harry Bradley Foundation and the helpful suggestions of Richard S. Kay, James Lindgren, Ira C. Lupu, and William P. Marshall.
1
Exemptions were denied in the following cases: Employment Division v. Smith, 494 U.S. 872 (1990); Braunfeld v. Brown, 366 U.S. 599 (1961); Prince v. Massachusetts, 321 U.S. 158 (1944);Hamilton v. Regents of the University of California, 293 U.S. 245 (1934); and Reynolds v. United States, 98 U.S. 145 (1879). Exemptions were created in Sherbert v. Verner, 374 U.S. 398 (1963)and Wisconsin v. Yoder, 406 U.S. 205 (1972).
2
MICHAEL J. MALBIN, RELIGION AND POLITICS (1978); Ellis West, The Case Against a Right to Religious-Based Exemptions, 4 NOTRE DAME J. L. ETHICS & PUB. POL’Y 624 (1990). For related perspectives on the constitutional question, see WALTER BERNS, THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY (1976); Phillip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3 (1978); Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REV. 555 (1991); Ira C. Lupu,Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933 (1989); William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U.CHI. L. REV. 308 (1991); G.R. Stone, Constitutionally Compelled Exemptions and the Free Exercise Clause, 27 WM. & MARY L. REV. 985 (1985-86).
3
Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103HARV. L. REV. 1409 (1990) [hereinafter McConnell, Origins]. McConnell has developed his position in Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109 (1990) [hereinafter McConnell, Free Exercise Revisionism].
As Professor Carol Weisbrod points out, we can ask historical questions about exemption other than the one pursued here. Professor Weisbrod, for example, examines the different ways in which religious minorities are accommodated. Among other things, she inquires whether legislation and judicial decisions are the means most commonly used to meet the special needs of religious minorities. Carol Weisbrod, Comment on Curry and Firmage Articles, 7 J.L. & RELIG. 315, 320-21 (1989).
4
McConnell, Origins, supra note 3, at 1461-62.
5
The term “civil law” here refers to the law emanating from civil, as opposed to religious, authorities and relating to civil matters. So, too, “civil rights” here refers to the rights under such civil law.
6
The closest McConnell comes to this is an argument by Elias Boudinot for including a militia exemption in the Bill of Rights. See McConnell, Origins, supra note 3, at 1500. But see infra note 56 and accompanying text.
7
McConnell, Origins, supra note 3, at 1414.
8
Some of McConnell’s evidence will not be examined here because it is only indirectly pertinent to the question of what late eighteenth-century Americans thought about exemptions. For example, McConnell recites at length some nineteenth-century cases. See McConnell, Origins, supra note 3, at 1503-11. Although interesting, this evidence does not very directly inform us whether eighteenth-century Americans thought there was or should be a constitutional right of religious exemption.
Nonetheless, a word should be added about some of McConnell’s seventeenth-century evidence. On the basis of the 1663 Rhode Island Charter and a few other charters, McConnell constructs three arguments. First, McConnell points out that these charters permitted colonists to pursue their religions notwithstanding English law to the contrary. Id. at 1427. Yet the precise words of, for example, the Rhode Island Charter, were that-notwithstanding any law to the contrary-persons may enjoy “theire own judgments and consciences, in matters of religious concernments …; they behaving themselves peaceablie.” See 6 NATHAN O. THORPE, THE FEDERAL AND STATE CONSTITUTIONS 3213 (1909). England had various laws prohibiting certain religious meetings and otherwise penalizing dissenters, and provisions like that of the Rhode Island Charter merely freed colonists from complying with such laws, which restrained individuals “in matters of religious concernments.” Second, McConnell emphasizes that the charters “limited the free exercise of religion only as necessary for the prevention of ‘Lycentiousnesse’ or the injury or ‘outward disturbance of others,’ rather than by reference to all generally applicable laws.” McConnell,Origins, supra note 3, at 1427 (footnote omitted) (quoting SANFORD H. COBB, THE RISE OF RELIGIOUS LIBERTY IN AMERICA 117 (1986)). For another interpretation, see the discussion of state constitutions infra text accompanying notes 9-49. Furthermore, the word “licentiousness” was frequently used to refer to immoral and, sometimes, merely prohibited behavior. WILLIAM ROBERTSON, PHRASEOLOGICIA GENERALIS 823-24 (1681). So too, “civil injury”-another term used by the Rhode Island Charter, see 6 THORPE, supra, at 3213,-could refer to any injury under civil law. Third, McConnell points out that the 1665 Carolina Charter authorized the proprietors to exercise the power of granting indulgences and dispensations. McConnell, Origins, supra note 3, at 1428. This is not, however, evidence that religious exemptions were considered matters ofconstitutional right. In England in the 1680s, moreover, the dispensing power was condemned as unlawful. J. R. TANNER, ENGLISH CONSTITUTIONAL CONFLICTS OF THE SEVENTEENTH CENTURY 1603-1689, at 230, 253-55, 289-91 (1971).
9
McConnell, Origins, supra note 3, at 1455-66, 1512; see also McConnell, Free Exercise Revisionism, supra note 3, at 1117-18.
10
McConnell, Free Exercise Revisionism, supra note 3, at 1118.
11
N.H. CONST. OF 1784, pt. I, art V.
12
McConnell, Origins, supra note 3, at 1461-62.
13
For a reproduction of many but not all of the caveats in state constitutions, see id. at 1456-58. Note also the existence of various draft proposals, such as George Mason’s in Virginia and John Jay’s in New York.
14
MD. DECL. OF RIGHTS OF 1776, art. 33; N.Y. CONST. OF 1777, art. XXXVIII; S.C. CONST OF1790, art. VIII, § 1. For the word “licentiousness,” see supra note 8.
15
Queen v. Lane, 6 MOD. 128, 87 ENG. REP. 884 (Q.B. 1704); see also 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN, ch. 8, § 38, at 40 (1726). Note that eighteenth-century lawyers could distinguish “actual” breaches of the peace when they wanted to.
Incidentally, this definition of a breach of the peace was recognized by Baptists who pleaded for an expanded religious freedom. Dissenting ministers who opposed most legislation with respect to religion and who insisted that individuals not be treated differently on account of their religions frequently were accused of opposing the regulation of morality. E.g., TIMOTHY STONE, A SERMON 24-25 (Conn. election sermon 1792) (Evans 24820). In responding to such charges, dissenters pointed out that the state could punish immoralities-peaceful and nonpeaceful-as breaches of the peace. For example, after setting forth his strong stand on religious freedom, a Baptist, Caleb Blood, explained:
This however, by no means prohibits the civil magistrate from enacting those laws that shall enforce the observance of those precepts in the christian religion, the violation of which is a breach of the civil peace; viz. such as forbid murder, theft, adultery, false witness, and injuring our neighbor, either in person, name, or estate. And among others, that of observing the Sabbath, should be enforced by the civil power.
CALEB BLOOD, A SERMON 35 (Vt. election [1792]) (Evans 24126). After giving an election sermon in which he argued against establishments, another Baptist, Samuel Stillman, had to respond to complaints “‘[t]hat upon the principles contained in the sermon, the civil magistrate ought not to exercise his authority to suppress acts of immorality.”’ SAMUEL STILLMAN, A SERMON 20 n.* (Mass. election sermon 1779) (Evans 16537). Stillman replied that his words had been misunderstood and that “[i]mmoral actions properly come under the cognizance of civil rulers, who are the guardians of the peace of society…. I beg leave to observe in the words of Bishop Warburton, ‘That the magistrate punishes no bad actions, as sins or offenses against God, but only as crimes injurious to, or having a malignant influence on society.”’ Id. (Of course, by quoting Warburton-the bold defender of establishments-Stillman was taunting his critics.) For establishment opinion about the peace of society or disturbances of the peace, see, for example, Israel Evans’ statement, quoted infra note 36; JOSEPH LYMAN, A SERMON 36 (Mass. election sermon 1787) (Evans 20469); DAVID PARSONS, A SERMON 13 (Mass. election sermon 1788) (Evans 21360);WILLIAM WORTHINGTON, THE DUTY OF RULERS AND TEACHERS 18 (Conn. election sermon 1744) (Evans 5524).
16
Of course, religious freedom could be denied in varying ways and in varying degrees. For example, government could deny some civil rights to Protestant dissenters and could deny even more civil rights to Catholics. For a justification of graduated restraints, see William Warburton, Alliance Between Church and State, in 7 WORKS 254-56 (Richard Hurd ed., 1811).
17
For other examples, see infra note 26.
18
“That no person shall ever, within this Colony, be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience ….” N.J.CONST. OF 1776, art. XVIII.
19
Id. art. XIX.
20
“That all Men have a natural and unalienable Right to worship Almighty God according to the Dictates of their own Consciences and Understandings ….” DEL. DECL. OF RIGHTS OF 1776, § 2.
21
Id. § 3.
22
S.C. CONST. OF 1778, art. XXXVIII.
23
E.g., GA. CONST. OF 1777, art. LVI (“[a]ll persons whatever”); MASS. CONST. OF 1780, art. II (“all men”); N.H. CONST. OF 1789, art. V (“[e]very individual”); N.C. CONST. OF 1776, DECL. OF RIGHTS, art. XIX (“all men”); PA. CONST. OF 1776, art. II (“all men”). Similarly, some state constitutions said that “no person” was to be denied free exercise or freedom of worship. See, e.g.,MASS. CONST. OF 1780, art. II; N.J. CONST. OF 1776, art. XVIII.
24
E.g., MD. DECL. OF RIGHTS OF 1776, art. 33; N.Y. CONST. OF 1777, art. XXXVIII; S.C.CONST. OF 1790, art. VIII, § 1.
25
GA. CONST. OF 1777, art. LVI.
26
Further confirmation of this understanding of the caveats may be found in the charters and drafts of constitutions that added caveats to clauses granting “toleration.” In 1776, George Mason proposed that “all men should enjoy the fullest toleration in the exercise of religion … unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society or of Individuals.” 7 REVOLUTIONARY VIRGINIA 272, 277 & n.26 (W.V. Schreeven & R.L. Scribner eds., 1983). For the New York debates concerning toleration, seeinfra text accompanying notes 37-49.
Note, moreover, the chronological development of the religion clauses in, for example, Georgia. The 1732 Charter and the 1777 Constitution had caveats. GA. CHARTER OF 1732, in 2 THORPE,supra note 8, at 773; GA. CONST. OF 1777, art. LVI. The 1789 Constitution did not.
27
In A Letter Concerning Toleration, Locke argued that “liberty of conscience is every man’s natural right,” and that civil government had no authority to interfere with the free exercise of an individual’s natural right to worship as he or she pleased. Yet government could, according to Locke, deny toleration to any sect that espoused certain opinions inimical to the preservation of civil society and government. JOHN LOCKE, A LETTER CONCERNING TOLERATION 50-52 (Bobbs-Merrill 2d ed. 1955) (1689). Other authors also took versions of this position. See, e.g., WARBURTON, supranote 16, at 255-56; VATTEL, THE LAW OF NATIONS, bk. 3, ch. 12, § 133, at 59 (1849).
28
GERSHAM C. LYMAN, A SERMON 12 (Vt. election sermon 1784) (Evans 18566). He continued, “and we know that they have not the approbation of God, who under pretense of serving him, would nullify his ordinance.” The words “his ordinance” referred to the various biblical injunctions about submission to worldly rulers. In Baltimore, the Rev. Bissett preached “that no Citizen ought, on account of his opinions (unless they be evidently incompatible with the well-being of Society) to be denied protection, or debarred from the walks of civil eminence.” JOHN BISSETT, A SERMON, APP. at 8 (1791) (Evans 23208).
29
See text accompanying supra note 25.
30
12 HENING, THE STATUTES AT LARGE, BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 85 (William W. Hening ed., Richmond 1823) [hereinafter HENING, COLLECTION OF THE LAWS OF VIRGINIA].
31
Northwest Ordinance, art. I (1787). Another version of this approach was simply to condition religious liberty on the behavior specified in the caveat. Even this more general type of formulation, however, was drafted to enable government in the specified circumstances to punish individuals on account of their religion.
32
Oliver Ellsworth, A Landholder, CON. COURANT, Dec. 17, 1787, in 14 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 449 (John P. Kaminski & Gaspare J. Saladino eds., 1983) [hereinafter DOCUMENTARY HISTORY]; see also ELNATHAN WHITMAN, THE CHARACTER AND QUALIFICATIONS OF GOOD RULERS 24 (Conn. election sermon 1745) (Evans 5714).
33
E.g., GA. CONST. OF 1789, art. 3, § 5; KY. CONST. OF 1792, ART. 12, § 3; PA. CONST. OF1776, art. 2; VA. BILL OF RIGHTS OF 1776, § 16.
34
E.g., KY. CONST. OF 1792, art. 12, § 4; PA. CONST. OF 1776, art. 2.
35
12 HENING, COLLECTION OF THE LAWS OF VIRGINIA, supra note 30, at 86. Although the Act is well-known for having precluded an establishment, it clearly did more than this.
36
As an anonymous Virginian wrote in 1777 of Christian sects that “quarrel” with one another, “they ought to be punished, not as professors of religion, but as disorderly members of the Commonwealth.” THE FREEMAN’S REMONSTRANCE AGAINST AN ECCLESIASTICAL ESTABLISHMENT 5 (1777) (Evans 43750) [hereinafter THE FREEMAN’S REMONSTRANCE]. According to a New Hampshire minister.
when a man adopts such notions as, in their practice, counteract the peace and good order of society, he then perverts and abuses the original Liberty of man; and were he to suffer for thus disturbing the peace of the community, and injuring his fellow-citizens, his punishment would be inflicted not for the exercise of a virtuous principle of conscience, but for violating that universal law of rectitude and benevolence which was intended to prevent one man from injuring another.
ISRAEL EVANS, A SERMON 7 (N.H. election sermon 1791) (Evans 23358).
37
This history of the religion clause of the 1777 New York Constitution is traced by CHARLES Z. LINCOLN, THE CONSTITUTIONAL HISTORY OF NEW YORK 541-45 (1906), who prints the early drafts, and JOHN W. PRATT, RELIGION, POLITICS, AND DIVERSITY 87-88 (1967).
38
Jay probably participated in preparing the draft, even if it is not written in his hand. See LINCOLN,supra note 37, at 495-99; PRATT, supra note 37, at 83, 86.
39
See LINCOLN, supra note 37, at 541. The draft continued, “and further that as the Prevalence of Religion and Learning greatly contributes to the Happiness & Security of the people of every free State, the legislature of this State ought shall to afford them all proper encouragement.” Id. Following the word “State” in the text, a marginal insertion added the words: “in religious Profession and worship to all mankind.” Id.
40
1 JOURNALS OF THE PROVINCIAL CONGRESS, PROVINCIAL CONVENTION, COMMITTEE OF SAFETY AND COUNCIL OF SAFETY OF THE STATE OF NEW YORK 844 (1842) [hereinafter JOURNALS]. This language, from the Convention’s Journal, may not have been an exact quotation of the committee’s proposal. A slightly earlier draft said: “That the free Toleration of religious profession and worship be forever allowed within this state to all mankind.” See LINCOLN,supra note 37, at 541.
41
1 JOURNALS, supra note 40, at 844.
42
Id. This had the political advantage of clearly not threatening any Protestants. The substitute stated:
Except the professors of the religion of the church of Rome, who ought not to hold lands in, or be admitted to a participation of the civil rights enjoyed by the members of this State, until such time as the said professors … swear, that they verily believe in their consciences, that no pope, priest or foreign authority on earth, hath power to absolve the subjects of this State from their allegiance to the same. And further, that they renounce and believe to be false and wicked, the dangerous and damnable doctrine, that the pope, or any other earthly authority, have power to absolve men from sins….
Id. Note that a less bigoted oath could be acceptable to some English Catholics. In the 1780s, the Catholic Committee of England attempted to obtain relief from the penal laws by proposing an oath with which Catholics would have “protested” against certain doctrines commonly attributed to them.To the Catholics of England [Circular Letter of the Catholic Committee to the Catholics of England] (Nov. 25, 1789). The substantial compromises proposed by the Committee were not acceptable to the Church.
43
1 JOURNALS, supra note 40, at 844.
44
PRATT, supra note 37, at 87.
45
1 JOURNALS, supra note 40, at 845.
46
PRATT, supra note 37, at 88.
47
1 JOURNALS, supra note 40, at 845.
48
Id.
49
Id. at 860. The Constitution varied from the Morris proposal in its punctuation. The Constitution’s provision was largely copied by South Carolina. S.C. CONST. OF 1790, art. VIII, § 1. It was unusual in its inclusion of the phrase “shall not be construed,” which had been part of Jay’s proposal and was left in place by Morris’ amendments. Although the phrase was better suited to Jay’s proposal than Morris’, it clearly did not imply a right of exemption.
50
Although McConnell describes Jefferson’s views, McConnell acknowledges that such opinions do not support his argument. McConnell, Origins, supra note 3, at 1451-52. Indeed, Jefferson wrote to Madison: “The declaration that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error.” Letter to James Madison, (July 31, 1788), in 13 THOMAS JEFFERSON, PAPERS 442-43 (Julian P. Boyd ed., 1956). McConnell does discuss the minimal amount of evidence surviving from the debates concerning the framing and ratification of the Bill of Rights, McConnell, Origins, supra note 3, at 1511, but he does not, except with regard to Jefferson and Madison, examine much other evidence relating to the positions of individual framers and ratifiers.
51
McConnell, Origins, supra note 3, at 1462.
52
Id. at 1443.
53
See infra notes 82-85.
54
See 1 ANSON P. STOKES, CHURCH AND STATE IN THE UNITED STATES 444 (1964). The pressures that encouraged this uniformity of rhetoric included the efforts of dissenters. For example, in 1775, the Warren Association informed the Massachusetts Assembly that a freedom from religious taxation “is not a mere favor, from any man or men in the world, but a right and property granted us by God.” See id. at 309. On the abandonment of the toleration language in New York, see PRATT, supra note 37, at 89.
55
McConnell, Origins, supra note 3, at 1454.
56
Boudinot “wish[ed] that in establishing this government we may be careful to let every person know that we will not interfere with any person’s particular religious profession. If we strike out this clause, we shall lead such persons to conclude that we mean to compel them to bear arms.”CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 199 (Helen E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS]. Even this statement hardly indicates that Boudinot or others thought a free exercise of religion required a right of religious exemption from military service, let alone exemption from civil laws in general.
57
Most dramatically, Representative Benson said: “‘No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the government.”’ Id. at 184. McConnell attempts to explain this by pointing out that Benson also said it would be difficult to formulate any such exemption. McConnell, Origins, supra note 3, at 1502. Moreover, McConnell argues that Benson may have believed “there is no natural right to exemption from militia service because the government’s interest is potentially compelling and the degree of necessity for universal military service must be left to legislative discretion.” Id. Yet this is hardly what Benson said. For Benson, as for so many eighteenth- and nineteenth-century men, a natural right appears to have been a portion of the liberty existing in the state of nature. Opinion against a military exemption is apparent in CREATING THE BILL OF RIGHTS, supra note 56, at 183, 198.
58
See CREATING THE BILL OF RIGHTS, supra note 56, at 46. Also, during the ratification debates, many Anti-Federalists argued for a bill of rights that would include both a free exercise clause and a military exemption. For some of the demands for a military exemption, see 2 DOCUMENTARY HISTORY, supra note 32, at 509, 638; 13 id. at 60, 252-53, 513, 540; 16 id. at 419.
59
The surviving debates about the Free Exercise Clause are remarkable chiefly for their meagerness. As McConnell notes, “[t]he recorded debates in the House over these proposals cast little light on the meaning of the free exercise clause.” McConnell, Origins, supra note 3, at 1481.
60
Id. at 1462-63.
61
7 REVOLUTIONARY VIRGINIA, supra note 26, at 457.
62
Id.
63
Id. The words within the last set of brackets are implied by an “&c” and are taken from the text to which Madison’s language was to be an amendment.
64
McConnell, Origins, supra note 3, at 1466. Typically, these specialized exemptions were granted by legislative bodies. Some, however, were secured in state constitutions. For example, in Pennsylvania a person “conscientiously scrupulous of bearing arms” was exempted from “personal service” if he would pay “an equivalent.” PA. CONST. OF 1776, DECL. OF RIGHTS, § VIII. According to John Bissett,
Government holds itself justifiable in overruling the scruples of those who think it unlawful to contribute for the support of a defensive war, and of courts of justice; and that liberty of conscience, in the extent to which some carry it, must, in many instances, be infringed by a power, the object of whose operations is the good of the whole. But this answer [of government] I propose, rather than defend; having a respect for religious scruples, however seemingly groundless; and being satisfied that a scheme can be devised in which these difficulties may be obviated.
How then is the object to be accomplished? -This is a question the solution of which properly belongs to Legislative Wisdom ….
BISSETT, supra note 28, app. at 12. See also id. app. at 16, where Bissett employs the argument he here says he is not defending.
Incidentally, as Carol Weisbrod has discussed, claims of exemption can be accommodated “by a rule broad enough to include the particular practice.” Weisbrod, supra note 3, at 316. The United States Constitution’s clause concerning oaths or affirmations is an excellent example. U.S.CONST. art. VI. To the extent it was regarded as a civil law, it reflected a concession to those who wanted exemptions from civil laws, but the concession was made by altering a general requirement rather than by granting an exemption.
65
On the whole, legislatures appear to have assumed they had a right to grant military exemptions-at least if the exemptions did not specify a particular religion. Nonetheless, the right of legislatures to grant even such generally available exemptions could be challenged on the basis of demands that civil rights be equal rather than dependent upon an individual’s religion. For example, after the 1776 Virginia Convention exempted Quakers and Mennonites from militia duties, the Committee of Frederick County complained “that they have a tender regard for the Conscientious Scruples of every religious Society but at the same time beg leave to represent the injustice of subjecting one part of the Community to the whole burthen of Government while others equally share the benefits of it.” 7 REVOLUTIONARY VIRGINIA, supra note 26, at 549. Among other things, the Committee urged that Quakers and Mennonites either be subject to the “same fines” as other Americans for their failure to serve or be required to provide substitutes. Id. at 548-49. The Committee further asked if it “would not be reasonable to allow any person who should choose to contribute to the support of the public in lieu of attending Musters the same indulgence as to those who refuse from conscientious principles.” Id. at 549. A few weeks later, the Convention required that the scrupulous were to be included in the militia but were not “obliged to attend general or private musters.” Id. at 553 (quoting 9 Va. Stat. 139).
In Maryland, the small number of Mennonites and “Dunkers” were exposed to popular violence on account of their refusal to bear arms. James O. Lehman, The Mennonites of Maryland During the Revolutionary War, 50 MENNONITE Q. REV. 200, 205-07 (1976). The Provincial Convention granted an exemption to “such persons who from their religious principles cannot bear arms in any case,” but this hardly put an end to the resentment. Id. at 208. Some military companies threatened to pull down the houses of conscientious objectors; other companies, it was thought, might refuse to fight. Id. at 209. The Committee of Correspondence “feared for the safety of the pacifists,” as did the pacifists themselves, who, under these pressures, said they would pay amounts in lieu of service. Id.
Similar events occurred in Lancaster County, Pennsylvania, where members of the Church of the Brethren and other pacifists reluctantly paid what one of them called “‘protection money,”’ because “[t]here seemed to be no other alternative than to give something in order to be safe.” Richard K. MacMaster, Neither Whig nor Tory: The Peace Churches in the American Revolution, 9 FIDES ET HISTORIA 14 (1977). Money paid as a substitute for military service could be disguised as contributions “for the needy,” but, in fact, often was paid for protection from mob violence.
When Quakers complained about threats to their liberty of conscience guaranteed by Pennsylvania’s charter, the sixty-six members of the Philadelphia Committee of Safety unanimously presented a response to the Speaker of the House. Id. at 16. The Officers of the Military Association of the City and Liberties of Philadelphia petitioned the Assembly:
We cannot alter the Opinion we have ever held with Regard to those parts of the Charter quoted by the Addressors, that they relate only to an Exemption from any Acts of Uniformity in Worship, and from paying towards the Support of other religious Establishments, than those to which the Inhabitants of this Province respectively belong. We know of no Distinctions of Sects, when we meet our Fellow Citizens on Matters of Public Concern, and ask those conscientiously scrupulous against bearing Arms, to contribute toward the Expence of our Opposition, not because of theirreligious Persuasion, but because the general Defence of the Province demands it.
Id. at 17.
For an interesting nineteenth-century criticism of exemptions developed by the judiciary, seeHUGH H. BRACKENRIDGE, LAW MISCELLANIES 420-21 (1814).
66
See McConnell, Origins, supra note 3, at 1470-71.
67
Id. at 1471.
68
McConnell largely acknowledges that the assessments were laws relating to religion. Id. at 1470-71. Of course, members of establishments defended such laws as relating exclusively to civil concerns, but dissenters who demanded exemptions or the abandonment of assessments clearly held otherwise.
69
Id. at 1445, 1502, 1512.
70
Id. at 1461-62.
71
Id. at 1445.
72
Philip A. Hamburger, The Constitution’s Accommodation of Social Change, 88 MICH. L. REV. 239, 302-25 (1989) (and works cited therein).
73
Id. at 313-14.
74
Incidentally, for the opinion of Backus on judicial discretion in connection with exemptions, seeISAAC BACKUS, The Sovereign Decrees of God, in ISAAC BACKUS ON CHURCH, STATE, AND CALVINISM: PAMPHLETS, 1754-1789, at 295 (William G. McLaughlin ed., 1968) [hereinafterBACKUS ON CHURCH, STATE, AND CALVINISM]. Backus was a leading Baptist advocate for an expansion of religious liberty in America.
75
For a discussion of the Rogerenes, see infra text accompanying notes 101-03. For their willingness to defy the courts, see JOHN R. BOLLES & ANNA B. WILLIAMS, THE ROGERENES; SOME HITHERTO UNPUBLISHED ANNALS BELONGING TO THE COLONIAL HISTORY OF CONNECTICUT (1904).
76
MALBIN, supra note 2, at 19-37.
77
West, supra note 2, at 624.
78
Among the richest and most accessible sources for this Article are eighteenth-century election sermons. These were the product of New England, and therefore my New England evidence often is far more detailed than that from other regions. The evidence from different regions, however, is relatively consistent on the question examined here. Incidentally, note that the struggle for religious freedom could elicit cooperation among members of sects in very distant parts of America. For example, in 1774, Isaac Backus sought assistance for the Baptist cause in Massachusetts. In 1775, the Philadelphia Baptists publicized this. Among others, the Baptists of Charleston, South Carolina, sent money. See JOHN W. BRINSFIELD, RELIGION AND POLITICS IN COLONIAL SOUTH CAROLINA 84 (1983).
79
To be more precise, expanded general guarantees of religious freedom. Quakers and Mennonites, for example, were not, during the last half of the eighteenth century, typically among the dissenters who were influential in obtaining such guarantees.
80
For example, in Massachusetts, dissenters petitioned that “God hath given to every Man an Unalienable Right in Matters of His Worship to Judge for himself as his Conscience reserves ye Rule from God.” 1749 petition to the Mass. Assembly from the Separate congregations in 17 towns,in 1 STOKES, supra note 54, at 422. Isaac Backus asserted: “In civil states particular men are invested with authority to judge for the whole; but in Christ’s kingdom each one has an equal individual right to judge for himself.” ISAAC BACKUS, A Fish Caught in His Own Net, in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 198; see also id. at 332, 335. The Presbyterians of Virginia declared that:
Religion is altogether personal, and the right of exercising it unalienable; and it is not, cannot, and ought not to be, resigned to the will of the society at large; and much less to the legislature, which derives its authority wholly from the consent of the people, and is limited by the original intention of civil associations.
Memorial of the Presbyterians of Virginia to the General Assembly (Aug. 13, 1785), in AMERICAN STATE PAPERS 113-14 (William A. Blakely ed., 1911). Israel Evans preached: “As the conscience of man is the image and representative of God in the human soul; so to him alone it is responsible.” EVANS, supra note 36, at 6. According to Samuel Shuttlesworth, “as piety and our mode of faith are matters only between GOD and our own souls, we ought to be amenable to no human tribunal; but only answerable to GOD and our consciences.” SAMUEL SHUTTLESWORTH, A DISCOURSE 14 (Vt. election discourse 1792) (Evans 24788). To Samuel Stillman, religion was a “right of private judgment”; it was a matter “in which every man is personallyinterested; and concerning which every man ought to be fully persuaded in his own mind.”STILLMAN, supra note 15, at 25.
81
For a discussion of Locke, see supra note 27.
82
See, e.g., MD. DECL. OF RIGHTS OF 1776, § 33; MASS. CONST. OF 1780, art. II; N.H. CONST. OF 1784, art. V; VA. BILL OF RIGHTS OF 1776, § 16.
83
Evidence of such arguments is particularly rich for the strong and sophisticated establishments in Massachusetts and Connecticut. Amos Adams of Massachusetts preached: “Blessed be God for the writing of Lock [sic], and other learned men, who have so effectually exposed the iniquity and absurdity of persecution for religious opinions.” AMOS ADAMS, RELIGIOUS LIBERTY AN INVALUABLE BLESSING 30 (1768) (Evans 10810). He also said: “[O]ur fathers obtained … a grant of this country, with such full liberty of conscience.” Id. at 32. In a Massachusetts election sermon, Simeon Howard said the people should invest their rulers with the power to promote religion, “so far as is consistent with the sacred and inalienable rights of conscience, which no man is supposed to give up.” SIMEON HOWARD, A SERMON (1780), in THE PULPIT OF THE AMERICAN REVOLUTION 373 (John W. Thornton ed., Burt. Franklin reprint 1970) (1860) [hereinafter PULPIT]. The magistrate, however, “should have power to provide for the institution and support of the public worship of God.” Id. at 374. Howard thought conscientious “liberty and freedom every man may enjoy, though the government should require him to pay his proportion towards supporting public teachers of religion and morality.” Id. at 375. In a sermon preached on the commencement of the new Massachusetts constitution and the inauguration of the new government, Samuel Cooper exclaimed: “[W]hat a broad foundation for the exercise of the rights of conscience is laid in this constitution!” SAMUEL COOPER, A SERMON 29 (1780) (Evans 16753). According to Cooper, the citizens of Massachusetts know that “it is framed upon an extent of civil and religious liberty, unexampled perhaps in any country in the world, except America.” Id. at 30. Civil government could encourage and maintain religion “without binding the rights of conscience, or exerting their authority to impose articles of faith, or modes of worship; or enforcing these by penalties.” PARSONS, supra note 15, at 12-13. For other similar views, see JOSIAH BRIDGE, A SERMON 45-46 (Mass. election sermon 1789) (Evans 21713); HENRY CUMINGS, A SERMON26, 46 (Mass. election sermon 1783) (Evans 17899); MOSES HEMMENWAY, A SERMON 19, 30 (Mass. election sermon 1784) (Evans 18526); JOSEPH HUNTINGTON, GOD RULING THE NATIONS FOR THE MOST GLORIOUS ENDS 13, 29 (Conn. election sermon 1784) (Evans 18530); SAMUEL LANGDON, THE REPUBLIC OF THE ISRAELITES AN EXAMPLE TO THE AMERICAN STATES 47-48 (N.H. election sermon 1788) (Evans 21192); CHANDLER ROBBINS, A SERMON 37 (Mass. election sermon 1791) (Evans 23741); EZRA STILES, THE UNITED STATES ELEVATED TO GLORY AND HONOR 54-55 (Conn. election sermon 1783) (Evans 18198); WILLIAM SYMMES, A SERMON 16 (Mass. election sermon 1785) (Evans 19269); DAVID TAPPAN, A SERMON 23 (Mass. election sermon 1792) (Evans 24841); WILLIAM WELSTEED, THE DIGNITY AND DUTY OF THE CIVIL MAGISTRATE 18 (Mass. election sermon 1751) (Evans 6793); ABRAHAM WILLIAMS, A SERMON 11 (Mass. election sermon 1762) (Evans 9310).
Even in England, there was liberty of conscience, and Americans knew this. For example, in 1726, Peter Thacher said that in England there was “a just liberty of conscience to Protestant Dissenters.” PETER THACHER, WISE AND GOOD CIVIL RULERS 25 (Mass. election sermon 1726) (Evans 2816). In 1747, the Synod of Philadelphia and the Second Presbyterian Congregation described liberty of conscience as “the Valuable & distinguishing privilege of Every British Subject.” 1 PENNSYLVANIA ARCHIVES (1st ser.) 743-45, quoted in GUY S. KLETT, PRESBYTERIANS IN COLONIAL PENNSYLVANIA 244 (1937).
Note that there were different types of establishment. Some of the persons cited here favored the establishment of Christianity or Protestantism rather than a particular denomination. Such persons tended to point out that they did not want establishment of any particular sect or mode of worship, and some of them even described themselves as opposed to establishments. For purposes of this Article, however, state tax support for Christianity or Protestantism will be considered an establishment.
84
In 1783, the Episcopal clergy of Maryland quoted the religion clause of their state’s constitution and then declared, inter alia, that their Church had the right, in common with other Christian Churches, “to have the full enjoyment and free exercise of those purely spiritual powers … which, being derived only from CHRIST and His Apostles, are to be maintained, independent of every foreign, or other, jurisdiction, so far as may be consistent with the civil rights of society.” A Declaration of Certain Fundamental Rights and Liberties of the Protestant Episcopal Church of Maryland, in 1STOKES, supra note 54, at 741. They confirmed this statement in 1790. In Vermont, the Rev. Powers preached:
But we are not to suppose any are bound to be subject to any law or government, in any article against the rights of conscience. The holy martyrs of Jesus have ever submitted to the civil laws of the government they lived under, acknowledging their bodies and estates belonged to the king, or emperor, but their consciences they held free.
PETER POWERS, A SERMON 25 (Vt. election 1778) (Evans 16019). He also said: “Ecclesiastical power is wholly of a spiritual nature, and no ways connected with either civil or military power.Christ’s kingdom is not of this world, not of a worldly nature.” Id. at 15. Moses Hemmenway said that “we may think, and speak, and act, and use our spiritual privileges with all freedom, according to the measures of wisdom and grace given to us; nor may any human authority forbid or restrain us from it.” HEMMENWAY, supra note 83, at 25. Yet he also said: “It is true, the interests of society require subordination: but this deprives none of liberty, but helps all to enjoy it better.” Id. at 27. According to Aaron Hutchinson,
By no means would I urge civil rulers to bind conscience in the chains of their decrees. Christ alone is Lord of the conscience: and every man must act for himself in all matters wherein conscience may be obliged …. But it is folly and stupidity for a man to plead conscience for breaking the moral law, which is a transcript of the moral perfections of God, and written upon the hearts of all by nature.
AARON HUTCHINSON, A WELL TEMPERED SELF-LOVE A RULE OF CONDUCT TOWARDS OTHERS 37-38 (Vt. const. convention sermon 1779) (Evans 15855).
85
Although, in the 1770s and 1780s, some Americans defended establishments on the ground that religion itself was a concern of the civil government, proponents of establishments increasingly justified religious legislation by arguing that civil authority had a civil interest in religion-that the civil government had to regulate and encourage morality and that religion, especially Protestantism, was a necessary prop to morality. Among others, Backus noted a shift in establishment arguments:
[W]hen it comes to be calmly represented that religion is a voluntary obedience unto God which therefore force cannot promote, how soon do they shift the scene and tell us that religious liberty is fully allowed to us only the state have in their wisdom thought fit to tax all the inhabitants to support an order of men for the good of civil society. A little while ago it was for religion … but now ’tis to maintain civility.
ISAAC BACKUS, An Appeal to the Public (1773), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 324. he also wrote: “[S]ome plead that if rulers have no right to establish any way of religious worship for its own sake, they have a right to do it for the good of civil society.” ISAAC BACKUS, Policy as Well as Honesty (1779), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 375. The change in establishment arguments, however, should not be thought to have occurred uniformly about 1770. For example, in 1749, in Connecticut, Elihu Hall said: “Contribution for the support of the Gospel … ’tis a thing of meer civil & temporal Concernment, and therefore proper Matter for civil Compact.” ELIHU HALL, THE PRESENT WAY OF THE COUNTRY 52 (1749) (Evans 6328). Of course, the argument that religious establishments were useful for civil reasons was very old.
86
See BERNS, supra note 2, at 2.
87
See infra note 117.
88
See supra note 84 and accompanying text.
89
West points out that eighteenth-century Americans assumed that freedom was thought to be obtained through law and government. West, supra note 2, at 624-25. Backus wrote: “[I]t is so far from being necessary for any man to give up any part of his real liberty in order to submit to government that all nations have found it necessary to submit to some government in order to enjoy any liberty and security at all.” ISAAC BACKUS, An Appeal to the Public (1773), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 312. Incidentally, he also wrote, “nor are the people bound by any laws, but such as they have in like manner assented to, for their common good.” ISAAC BACKUS, Draft for a Bill of Rights for the Massachusetts Constitution, 1779, § 7, inBACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 488.
90
According to Professor Buckley, Virginia Baptists, “in the tradition of Roger Williams and Isaac Backus … wanted what may be fairly termed a separation of church and state based on the distinctive difference between these two spheres of man’s activity and the need to maintain a pure church.” THOMAS E. BUCKLEY, CHURCH AND STATE IN REVOLUTIONARY VIRGINIA, 1776-1784, at 176 (1977). In 1776, the “largely Presbyterian” Prince Edward County petitioned that Virginia “define accurately between civil and ecclesiastic authority; then leave our Lord Jesus Christ the Honour of being the Sole Law giver and Governor in his Church.” JOURNAL OF THE HOUSE OF DELEGATES OF VIRGINIA, 1776, at 7, quoted in H.J. ECKENRODE, SEPARATION OF CHURCH AND STATE IN VIRGINIA: A STUDY IN THE DEVELOPMENT OF THE REVOLUTION 46 (DaCapo Press 1971) (1910). The Presbyterians of Hanover, Virginia, regretted that “the distinction between matter purely religious and the objects of human legislation” has been confounded. Memorial of the Presbytery of Hanover to the General Assembly of Virginia (May 1784), in AMERICAN STATE PAPERS, supra note 80, at 101. According to Backus: “And where these two kinds of government, and the weapons which belong to them are well distinguished and improved according to the true nature and end of their institution … they do not at all interfere with each other.” ISAAC BACKUS, An Appeal to the Public (1773), in BACKUS ON CHURCH, STATE AND CALVINISM, supra note 74, at 315. Comparing taxation to support religion with British taxation of the colonists, Backus wrote: “Can three thousand miles possibly fix such limits to taxing power as the difference between civil and sacred matters has already done? One is only a difference ofspace, the other is so great a difference in the nature of things ….” Id. at 339. Samuel Stillman, a Baptist, cited Locke: “I esteem it, says the justly celebrated Mr. Locke, above all things, necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one and the other.” STILLMAN, supra note 15, at 22; see also id. at 21, 33. In Connecticut, Ebenezer Frothingham wrote that “the civil and ecclesiastical Rule, each standing in their Lot, they will never clash or interfere with one another through Time or Eternity.”EBENEZER FROTHINGHAM, THE ARTICLES OF FAITH AND PRACTICE 297 (1750) (Evans 6504). According to Levi Hart,
Admitting that an exact determination of the boundaries between the rights of conscience, and of the magistrate, may be difficult, in some cases-the most important and practical principles, on the subject, are extremely plain; and are admitted by the most enlightened, of every denomination, as essential to good order and happiness in society.
LEVI HART, THE DESCRIPTION OF A GOOD CHARACTER 23 (Conn. election sermon 1786) (Evans 19699); see also ELEAZER WHEELOCK, LIBERTY OF CONSCIENCE 15 (1775 N.H. Thanksgiving sermon, 1776) (Evans 15220).
Establishment writers sometimes emphasized the religious aspect of morality. For example, in his “Landholder” essays, written in favor of ratification of the United States Constitution, Oliver Ellsworth wrote: “I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; … I heartily approve of our laws against drunkenness, profane swearing, blasphemy, and professed atheism.” 3DOCUMENTARY HISTORY, supra note 32, at 500, quoted in 1 STOKES, supra note 54, at 535. By categorizing moral regulation as religious regulation, establishment writers could show the necessity of the latter and thereby could help justify what really was threatened-not common moral regulation but tax support for religion. Dissenters easily responded that morals were not only the subject of religious belief but also were temporal and thus a matter of civil concern. See, e.g., supranote 15.
91
U.S. CONST., amend. I.
92
LOCKE, supra note 27, at 48, 49.
93
For example, in a Massachusetts election sermon, Abraham Williams explained that “[t]he Constitution, Laws and Sanctions of civil Society respect this World, and are therefore essentially distinct and different from the Kingdom of Christ, which is not of this World.” WILLIAMS, supra note 83, at 8. Abraham Booth wrote: “If all the subjects of Christ be real saints, it may be justly queried whether any National religious establishment can be a part of his kingdom.” ABRAHAM BOOTH, AN ESSAY ON THE KINGDOM OF CHRIST 38-39 (1791) (Evans 23213). Booth asked: “[I]s it not plain, that a National church is inimical to the spirit of our Lord’s declaration. My kingdom is not of this world? Does not that … saying compel us to view the church and the world in a contrasted point of light?” Id. at 39. According to Booth, “[s]ecular kingdoms are under the direction of human laws, which are frequently weak, partial, and unjust-or laws which, when least imperfect, extend their obliging power no further than the exterior behavior.” Id. at 70; see also Memorial of the Presbytery of Hanover to the General Assembly of Virginia (Apr. 25, 1777), in AMERICAN STATE PAPERS,supra note 80, at 98; Memorial of the Presbytery of Hanover … (Oct. 1784), in AMERICAN STATE PAPERS, supra note 80, at 109. The view that civil government could only regulate visible, exterior, or public morality frequently was stated in language drawn from the works of Warburton.
94
LOCKE, supra note 27, at 45. For examples of Americans who discussed belief, doctrine, or opinion, see infra note 95.
95
One New Englander wrote: “That the civil authority have no power to establish any religion (i.e. any professions of faith, modes of worship, or church government) of a human form and composition, as a rule binding to Christians; much less may they do this on any penalties whatsoever.” [ELISHA WILLIAMS], THE ESSENTIAL RIGHTS AND LIBERTIES OF PROTESTANTS (1744), inPOLITICAL SERMONS OF THE FOUNDING ERA 1730-1805, at 72 (Ellis Sandoz ed., 1991); see also ZABDIEL ADAMS, A SERMON 41 (Mass. election sermon 1782) (Evans 17450) (regarding, inter alia, modes and forms of religion and sentiment concerning doctrines); ROBERT BRAGGE, CHURCH DISCIPLINE 38-39 (1768) (Evans 10846) (regarding ceremonial law, doctrine, worship, and discipline); Memorial of Presbytery of Hanover to the General Assembly of Virginia (1784), inAMERICAN STATE PAPERS, supra note 80, at 111 (regarding, inter alia, articles of faith not essential to the preservation of society, modes of worship, and internal government of religious communities); EBENEZER FROTHINGHAM, A KEY TO UNLOCK THE DOOR 154 (1767) (Evans 6504) (regarding, inter alia, church membership, place of worship, who is qualified to choose a minister, and who shall preach or be a minister); ISRAEL HOLLY, A WORD IN ZION’S BEHALF 7 ([1765]) (Evans 10005) (regarding articles of faith, creeds, forms of worship, and church government).
96
For example, Israel Holly wrote: “It is true, we are to render to Cesar [sic] the Things that are Cesar’s. But then we ought to be very careful that we don’t render that to Cesar, which is due to God alone.” HOLLY, supra note 95, at 6. Noah Hobart preached: “I trust they [i.e., establishment churches or ministers] will always be far … from desiring you to inflict temporal Punishments on such as they censure for Faults that are merely Ecclesiastical in their Nature, and do not affect the Peace and Happiness of Civil Society.” NOAH HOBART, CIVIL GOVERNMENT THE FOUNDATION OF SOCIAL HAPPINESS 42 (Conn. election sermon 1751) (Evans 6692). See also the quotation of the petition from Prince Edward County, Virginia, supra note 90.
97
For example, the Rev. Zabdiel Adams preached: “But that part of religion which has an immediate aspect on the good of the community falls under the cognizance of the ruler.” Z. ADAMS, supranote 95, at 42-43; see also STONE, supra note 15, at 25.
98
See supra note 85.
99
See infra note 118 and accompanying text.
100
Eighteenth-century Quakers could not always conform to the demands of civil laws and frequently spoke about their consequent suffering in terms of “conscience.” Yet they clearly failed to have their claims of conscience protected even in the Pennsylvania Constitution. After mid-century, moreover, particularly after 1776, Quakers retreated from politics and tended not to participate in the struggles for liberalizing general constitutional guarantees of religious liberty. On the Quaker retreat from politics, see JACK D. MARIETTA, THE REFORMATION OF AMERICAN QUAKERISM, 1748-1783 (1984); WILLIAM G. MCLOUGHLIN, NEW ENGLAND DISSENT, 1630-1833, at 595 (1971).
101
JOHN BOLLES, TO WORSHIP GOD IN SPIRIT 116-17 (1756) [hereinafter BOLLES, TO WORSHIP GOD IN SPIRIT]. To this, Jacob Johnson replied in outrage:
I should not have mentioned, these monstrous Practices … had I not found Friend Bolles justifying of them as Things innocent, & lawful. And which, it seems with him, are such cases of Conscience, and of so sacred, and religious a Nature, that the civil Magistrate hath nothing to do with ’em ….
JACOB JOHNSON, ANIMADVERSIONS, in BOLLES, supra, at 29. Bolles answered that “Isaiahwent Naked” and that the women went naked as “Signs.” JOHN BOLLES, A REPLY, in BOLLES, TO WORSHIP GOD IN SPIRIT, supra at 28. After discussing laws concerning religion, Bolles quoted Timothy: “The Law is not made for a Righteous Man, but saith he, for the Lawless, and Disobedient, for the Ungodly, and for Sinners….” BOLLES, TO WORSHIP GOD IN SPIRIT, supra,at 106 (quoting 1 Timothy 1:9). On the Quaker practice of going naked as a sign, see RICHARD BAUMAN, LET YOUR WORDS BE FEW-SYMBOLISM OF SPEAKING AND SILENCE AMONG SEVENTEENTH CENTURY QUAKERS 84-94 (1983).
102
See supra note 101.
103
For a sample of Bolles at his fervent best:
By the Scriptures thus it is Proved, that all the established Worship of New England, defended by the worldly Powers, is nothing but the Worship of the Dragon, and the Beast, and his Image; and also proved that the Power, Seat, and Authority given to the Beast, or worldly Powers, by the Dragon; is the power, and seat of Persecution to defend the said Worship, given to the Image of the Beast.
BOLLES, TO WORSHIP GOD IN SPIRIT, supra note 101, at 113-14. Johnson mocked his opponent: “Friend Bolles has drawn out his Discourse to so great a length, fetching his Evidence from the Dragon, the Beast, &c. How he has Succeeded, How clear his Proofs, & how just his Application … I leave to the Reader to judge (if any has the patience to Read it) ….” JOHNSON, ANIMADVERSIONS, supra note 101, at 29. Johnson clearly was embarrassed at having been drawn into debate with Bolles, “Who has been Writing and Practicing against the civil Governments, and Churches of Boston, & Connecticut, for more than 30 Years past; and no Body has taken so much Notice of it, as to give him an Answer.” Id. at 1. Indeed, Bolles complained of his failure to provoke attention, and friends of Johnson advised him “to take no public Notice of him.” Id.
The Rogerenes deliberately interrupted church services, but even they could be equivocal about claiming exemptions. See Petition of John Rogers and Timothy Wolverhouse to Connecticut General Assembly (Sept. 28, 1769), reprinted in THE PITKIN PAPERS: CORRESPONDENCE AND DOCUMENTS DURING WILLIAM PITKIN’S GOVERNORSHIP OF THE COLONY OF CONNECTICUT 1766-1769, at 207 (1921).
104
See supra notes 57, 64 and accompanying text. Many Americans described exemption from a religious test or from a religious assessment as a religious right or as deserving of constitutional recognition. Yet these were exemptions from laws directly concerning religion. See supra notes 66 – 68 and accompanying text.
105
Incidentally, Backus sought a constitutional right that “no man ought to be compelled to bear arms, who conscientiously scruples the lawfulness of it, if he will pay such equivalent.” ISAAC BACKUS, Draft for a Bill of Rights for the Massachusetts Constitution, 1779, § 7, in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 488. In North Carolina, it was urged “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” N.C. Proposal for a Declaration of Rights, § 19, in 4 JONOTHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 244 (1941). See generally McConnell,Origins, supra note 3, at 1468-69. These formulations, which were very common, indicate that a substantial number of Americans were willing in their constitutions to provide exemptions from military service but not from taxes or other payments in support of war.
Note that an exemption from the requirement of a nondenominational oath may have been considered an exemption from civil law. This issue, however, often was resolved without resort to exemptions. See supra note 64.
In various states, ministers were not taxed and were denied the right to vote. Leland opposed the tax exemption on the ground that civil authority should be silent about religion. See infra note 120.
106
“Even to this day they can hardly preach a sermon or write a pamphlet for infant baptism without having something to say about the madmen of Münster who, they tell us, rebelled against their civil rulers.” ISAAC BACKUS, An Appeal to the Public (1773), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 337; see also ISAAC BACKUS, A Door Opened for Equal Christian Liberty (1783), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 431.
107
HALL, supra note 85, at 59 (1749). A situation in which individuals were judges in their own case was one of the nonhistorical definitions of the state of nature.
The charges faced by Baptists and other dissenters may be further illustrated by a group of three pamphlets published together in 1762. In the first, Alexander Gardon described a man who told his wife’s family that he had divine instructions to leave his wife for his youngest sister in law. “[T]he old man [the wife’s father] took his Youngest Daughter by the Hand, and gave her to the Prophet to Wife, and he went in unto her and lay with her without any further ceremony, pursuant to his Revelation.” The family eventually had a shoot-out with the constable and the militia. This instructive tale is followed by a reminder of the dangers of enthusiasm and impulses. ALEXANDER GARDON, A BRIEF ACCOUNT OF THE DELUDED DUTARTRES (1762) (Evans 9120). The second pamphlet was a lurid tale of an impulsive, secular murder followed by repentance. A NARRATIVE OF THE LIFE … OF JOHN LEWIS (1762). The third was a lengthy criticism of reliance on “inward light.” Among other things, this attack associated separatists who generally conformed to the civil law with Rogerenes, who were willing to breach civil law: “Now what Law of God requires you to separate from our Churches? … What Law requires you [Rogerenes] to disturb Churches … on the Lord’s Day? … Do you think that no Respect is due to civil Authority?” ROBERT ROSS, A PLAIN ADDRESS TO THE QUAKERS, MORAVIANS, SEPARATISTS, SEPARATE-BAPTISTS, ROGERENES, AND OTHER ENTHUSIASTS 182 [1762] (bracketed reference to Rogerenes in original).
108
Contra McConnell, Origins, supra note 3, at 1447.
109
FROTHINGHAM, supra note 95, at 154.
110
Id. at 155.
111
On the ground that Leland did not support obedience to all laws, McConnell assumes Leland supported exemption from civil laws. McConnell, Origins, supra note 3, at 1447. Leland, however, explicitly opposed exemptions from civil laws. Although Baptists had religious objections to contracts between a minister and his flock, Leland nonetheless argued that such contracts, if made, were enforceable. Moreover, “To indulge [ministers] with an exemption from taxes and bearing arms is a tempting emolument. The law should be silent about them; protect them as citizens, not as sacred officers, for the civil law knows no sacred religious officers.” JOHN LELAND, The Rights of Conscience Inalienable, and, Therefore, Religious Opinions Not Cognizable by Law (1791) in THE WRITINGS OF THE LATE ELDER JOHN LELAND 188 (N.Y. 1845) [hereinafter WRITINGS]. For Leland, conscience provided no legal objection to law that was silent about religion.
Leland told various stories about claims of exemption:
A Shaking-Quaker, in a violent manner, cast his wife into a mill-pond in cold weather; his plea was, that God ordered him so to do. Now the question is, Ought he not to be punished as much as if he had done the deed in anger? Was not the abuse to the woman as great? Could the magistrate perfectly know whether it was God Satan, or ill-will, that prompted him to do the deed? The answers to these questions are easy.
In the year of 1784, Matthew Womble, of Virginia, killed his wife and four sons, in obedience to a Shining One … to merit heaven by the action …. Neither his motive, which was obedience, nor his object, which was the salvation of his soul had any weight on the jury.
JOHN LELAND, The Yankee Spy (1794), in WRITINGS, supra, at 228. Incidentally, it should not be thought that Leland opposed exemption only for illegal acts of violence. Apparently assuming that he was addressing the question of exemption, Leland also told a story about “two women … brought before the sessions for fornication”- one of whom was “a church member” and the other of whom was not. “She who was a daughter of Zion was pitied … but she who was not a member of the church, was judged a lewd slattern, and was driven out of the parish….” Id.
Samuel Stillman said that “The subjects of this [i.e., Christ’s] Kingdom are bound by no laws in matters of religion, but such as they receive from Christ ….” STILLMAN, supra note 15, at 27-28. He also said:
This kingdom does not in any respects interfere with civil government; rather tends to promote its peace and happiness, because its subjects are taught to obey magistracy ….
The subjects of the kingdom of Christ, claim no exemption from the just authority of the magistrate, by virtue of their relation to it. Rather they yield a ready and chearful obedience, not only for wrath, but also for conscience sake. And should any of them violate the laws of the state, they are to be punished as other men.
Id. at 27.
In 1780, Backus noted that his opponents “have raked up the German Anabaptists whom they represent as ‘pleading conscience for lying with each other’s wives, and for murdering their peaceable neighbors.”’ ISAAC BACKUS, An Appeal to the People (1780), in BACKUS ON CHURCH, STATE, AND CALVINISM, supra note 74, at 393-94. He went on to say: “And all this without producing so much as a single word from all our writings to prove their charges against us.”Id. at 395. After complaining about the new Massachusetts establishment, Backus said: “I challenge all our opponents to prove, if they can, that we have ever desired any other religious liberty, than to have this partiality entirely removed.” Id. at 396. Backus wrote “the state is armed with the sword to guard the peace and the civil rights of all persons and societies and to punish those who violate the same.” Id. at 315. On the Baptists’ deference to law, see MCLOUGHLIN,supra note 100, at 753.
In a pastoral letter of 1783, the synod of the Presbyterian Church in New York and Pennsylvania noted that the rights of conscience had been secured and given constitutional protection: “The duty which you owe to the community at large for this inestimable blessing is to support civil authority, by being subject not only ‘for wrath, but also for conscience’ sake,’ and by living ‘quiet and peaceable lives in all godliness and honesty.”’ See 1 STOKES, supra note 54, at 445. In its confession of faith, the Presbyterian Church in the United States declared: “Infidelity or difference in religion, doth not make void the magistrate’s just and legal authority, nor free the people from their due obedience to him.” THE CONSTITUTION OF THE PRESBYTERIAN CHURCH IN THE UNITED STATES OF AMERICA 36 (adopted by the Synod of New York and Philadelphia 1788) (1792) (Evans 24711);see also id. at 30. The Rules of Church Government of the Dutch Reformed Church began its section “of Christian Discipline” by warning that “christian discipline is spiritual, and exempts no person from the judgement and punishment of the civil power.” THE CONSTITUTION OF THE REFORMED DUTCH CHURCH, IN THE UNITED STATES OF AMERICA 190 (1793) (Evans 26065) (the Rules were first adopted in 1619). When the Methodist Episcopal Church met in Baltimore in 1784 it required members of that sect to liberate their slaves, but added: “These rules are to affect the members of our Society no further than as they are consistent with the laws of the States in which they reside.” See 2 STOKES, supra note 54, at 135. Of course, the Presbyterians of New York and Pennsylvania and the Dutch of New York were dissenters merely in the sense that they were not established churches in their states.
112
See quotations in supra note 84. Consider also the following. In 1789, George Washington wrote to American Catholics that “[a]s mankind becomes more liberal, they will be more able to allow that those who conduct themselves as worthy members of the community are equally entitled to the protection of civil government.” See 1 STOKES, supra note 54, at 496. To the Quakers, he was slightly more explicit:
The liberty enjoyed by the people of these States, of worshipping Almighty God agreeably to their consciences, is … among the choicest … of their rights. While men perform their social duties faithfully, they do all that society or the state can with propriety demand or expect; and remain responsible only to their Maker for the religion, or modes of faith, which they may prefer or profess.
Your principles and conduct are well known to me; and it is doing the people called Quakers no more than justice to say, that (except their declining to share with others the burthen of the common defence) there is no denomination among us, who are more exemplary and useful citizens.
I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.
30 THE WRITINGS OF GEORGE WASHINGTON 416 n.54 (John C. Fitzpatrick ed., 1939); see also BISSETT, supra note 28, app. at 12; Jonathan Law’s speech to the [Conn.] General Assembly (May 1742), in THE WOLCOTT PAPERS: CORRESPONDENCE AND DOCUMENTS DURING ROGER WOLCOTT’S GOVERNORSHIP OF THE COLONY OF CONNECTICUT 1750-1754, at 457 (1916); JOSEPH LYMAN, A SERMON 36-37 (Mass. election sermon 1787) (Evans 20469);STONE, supra note 15, at 23; SAMUEL WEST, A SERMON 27 (Mass. election sermon 1786) (Evans 20142).
Also relevant are numerous statements, not focusing on conscience, but generally stating the need for conformity to law. The Rev. Jonas Clarke preached that:
In a word, as by the social compact, the whole is engaged for the protection and defense of the life, liberty and property of each individual; so each individual owes all that he hath, even life itself, to the support, protection and defence of the whole, when the exigencies of the state require it. And no man, whether in authority or subordination, can justly excuse himself from any duty, service or exertions, in peace or war, that may be necessary for the publick peace, liberty, safety or defence, when lawfully and constitutionally called thereto.
JONAS CLARKE, A SERMON 29 (Mass. election sermon 1781) (Evans 17114). Zabdiel Adams said of kings and magistrates: “Whilst they keep within constitutional limits they cannot be resisted with impunity. Disobedience to such, exposes both to temporal and eternal punishments.” Z.ADAMS, supra note 95, at 7-8. According to Henry Cumings: “And when people, under pretence of liberty, refuse obedience to lawful authority, and oppose the measures of just government, merely because such measures do not coincide with their private views and separate interests, the principles on which they act, are evidently inconsistent with a state of society, and lead directly back to a state of nature.” CUMINGS, supra note 83, at 13. Chandler Robbins argued:
All power originating in the people, will, by no means justify individuals, or a small part of the community, in refusing obedience to laws which they may think oppressive.-They have an indisputable right, with a decent, and manly firmness, to represent their grievances, and to remonstrate to government, in a suitable manner.
ROBBINS, supra note 83, at 28. According to William Symmes, “if those who ‘rule over men must be just, ruling in the fear of God;’ then no person can plead an exemption from the duty of submission to wise and just government.” SYMMES, supra note 83, at 17. For further discussion of obedience to civil laws, see DAN FOSTER, AN ELECTION SERMON 10 (1789 Vt. election sermon, 1790) (Evans 22505); AMMI R. ROBBINS, THE EMPIRES AND DOMINIONS OF THIS WORLD 22 (Conn. election sermon 1789) (Evans 22118); SAMUEL WALES, THE DANGERS OF OUR NATIONAL PROSPERITY 22, 35 (Conn. election sermon 1785) (Evans 19359); SAMUEL WEBSTER, A SERMON 14 (Mass. election sermon 1777) (Evans 15703).
Ministers sometimes “recommended” religion to the civil authorities on the ground that religion encouraged obedience to civil laws. See, e.g., NATHAN STRONG, A SERMON 15 (Conn. election sermon 1790) (Evans 22913). As if to verify this, large numbers of election sermons contained statements, citing the Bible, that individuals should submit to government-not only for fear of wrath but also on account of conscience. For example, the Rev. G.C. Lyman said: “We must needs be subject not only for fear of the wrath which they will execute on us, but for conscience sake. It is a most inconsistent and distracted piece of conduct, to set up rulers, and then disobey their just & needful laws….” G.C. LYMAN, supra note 28, at 19. Both dissenting and establishment ministers tended to mention this wrath and conscience line. Quotations and paraphrases of the passage occurred so frequently that it was almost a convention.
Occasionally, some Americans analyzed the right to resist political oppression in terms of “conscience.” The difficulty was to explain that Americans could not conscientiously disobey law in ordinary circumstances. Typically, discussions of this problem distinguished between conscientious resistance to tyranny and the need to submit to the more or less just laws of governments formed by consent. Some of these political discussions accepted a greater degree of conscientious resistance to civil law than did discussions that focused on religious liberty. The following illustrates the genre:
Seeing Political Rulers derive their Authority from CHRIST, and rule under him, this teaches us, that it is the unquestionable Duty of the People to submit to them, and that for Conscience sake.-That is to say, unless they shall so pervert their Authority, as to decree and administer in such manner, as has a direct tendency to overthrow the Protestant Religion, or to deprive the People of their Libertyand Property; or, in a Word; unless they violate their Oath, and appear no other but as Enemies to the civil and religious Constitution.
SAMUEL PHILLIPS, POLITICAL RULERS AUTHORIZ’D AND INFLUENC’D 33 (Mass. election sermon 1759) (Evans 6593); see also ELIZUR GOODRICH, THE PRINCIPLES OF CIVIL UNION25 (Conn. election sermon 1787) (Evans 20393); SIMEON HOWARD, A SERMON PREACHED TO THE ANCIENT AND HONORABLE ARTILLERY COMPANY IN BOSTON (1773), in 1AMERICAN POLITICAL WRITING 189 (Charles S. Hyneman & Donald S. Lutz eds., 1983);WILLIAM MORISON, A SERMON 7-8 (N.H. election sermon 1792) (Evans 24563); JOSIAH WHITNEY, THE ESSENTIAL REQUISITIES TO FORM THE GOOD RULER’S CHARACTER 24 (Conn. election sermon 1788) (Evans 21601).
More generally, some members of establishments said that Americans were obliged to obey civil government and the law, except if the law were unjust or contrary to conscience. Yet, given American assumptions about resistance and about the distinction between civil and religious matters, the words of these establishment writers need not and should not be understood to refer to a religious exemption from civil laws. For example, William Welsteed said that magistrates “have an undoubted Right to be obeyed in all their Laws and Orders, not repugnant to the Commands of God,” but he continued by explaining that Christianity required submission to government and that individuals should “Render therefore to Caesar the Things that are Caesar’s.” WILLIAM WELSTEED, THE DIGNITY AND DUTY OF THE CIVIL MAGISTRATE 40-41 (Mass. election sermon 1751) (Evans 6793). Similarly, the Rev. Williams preached:
The Law of Nature, which is the Constitution of the God of Nature, is universally obliging,-it varies not with Men’s Humours or Interest, but is immutable as the Relations of Things: Human Laws bind the Conscience only by their Conformity hereto.-Laws ought to be plain and intelligible, consistent with themselves,-with Reason,-with Religion ….
WILLIAMS, supra note 83, at 23. He also spoke about submission to government. Id. at 27-28. These ministers hardly were recognizing the conscientious objections of dissenters and, moreover, were addressing a right of resistance to civil government rather than a legal right under such government.
113
For the positions of leading dissenters who advocated greater religious liberty, see supra note 111. Note also that the two sects that played the most important role in achieving religious liberty in Virginia, the Baptists and the Presbyterians, objected to government support for the Episcopal Church but typically did not ask for exemptions from civil laws. BUCKLEY, supra note 90, at 176-77. Among other things, Buckley observes that Virginia’s Baptists “request[ed] no favors from civil government.” Id. at 176. Civil government was “to restrain the vicious and encourage the virtuous by wholesome laws equally extending to every individual.” Memorial of the Presbytery of Hanover to the General Assembly of Virginia (April 25, 1777), in AMERICAN STATE PAPERS, supra note 80, at 97; see also Memorial of Oct. 24, 1776, in AMERICAN STATE PAPERS, supra note 80, at 94, 97. An anonymous Virginia dissenter said: “It is the Magistrate’s province to scourge the disobedient, and chasten the refractory to good humour and submission, let them be of what denomination they will.” THE FREEMAN’S REMONSTRANCE, supra note 36, at 5. In New York, the sometime chaplain to the United States House of Representatives, William Linn, preached to the Tammany Society that “[t]he members of the Church, indeed, are also members of civil society, and subject to all its laws, so far as is consistent with a good conscience; but the great evil has been in the civil magistrate usurping the throne of Christ and exercising spiritual dominion.”WILLIAM LINN, THE BLESSINGS OF AMERICA 19 (Fourth of July sermon 1791) (Evans 23504). Linn’s statement is ambiguous on the question of exemptions.
114
See supra notes 88-91 and accompanying text.
115
BUCKLEY, supra note 90, at 177; MCLOUGHLIN, supra note 100, at xviii; see also THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT (1986); NATHAN O. HATCH, THE DEMOCRATIZATION OF AMERICAN CHRISTIANITY (1989).
116
See books cited in supra note 116. Note also that various state constitutions contained religion clauses that reflected such claims of equality.
117
For example, the Presbyterians of Hanover, Virginia, urged that: “In the fixed belief of this principle, that the kingdom of Christ, and the concerns of religion, are beyond the limits of civil control, we should act a dishonest, inconsistent part, were we to receive any emoluments from any human establishments for the support of the gospel.” Memorial of the Presbytery of Hanover to the General Assembly of Virginia (Apr. 25, 1777), in AMERICAN STATE PAPERS, supra note 80, at 98; see also Memorial of Oct. 24, 1776, in AMERICAN STATE PAPERS, supra note 80, at 94. Madison wrote “that in matters of religion no man’s right is abridged by the institution of civil society, and that religion is wholly exempt from its cognizance.” James Madison, Memorial & Remonstrance, inAMERICAN STATE PAPERS, supra note 80, at 121.
118
HENING, COLLECTION OF THE LAWS OF VIRGINIA, supra note 30, at 86.
119
This Article argues that the vast majority of dissenters were not claiming a general constitutionalright of exemption. Nonetheless, it may be asked whether dissenters who had exemptions from particular civil obligations understood that these exemptions may not have been in accord with what many dissenters said about establishments.
Many dissenters clung to their exemptions from particular obligations, especially if they feared they could not obtain equality or if (as in the case of Quakers) they wanted to avoid civil obligations to which most other Americans submitted. But the implication of the campaign against establishments was not lost on those who wanted these exemptions. Quakers were notably unenthusiastic about the anti-establishment arguments that might have threatened their exemptions from military service. Similarly, dissenting ministers omitted to insist that dissenting and establishment ministers give up their nonsectarian clerical exemptions from civil taxes and military service. An exception was the Baptist, John Leland, who wrote that “[t]o indulge [ministers] with an exemption from taxes and bearing arms is a tempting emolument. The law should be silent about them; protect them as citizens, not sacred officers, for the civil law knows no sacred religious officers.” LELAND, The Rights of Conscience Inalienable, and, Therefore, Religious Opinions Not Cognizable by Law(1791), in WRITINGS, supra note 111, at 188. yet from most dissenting ministers who sought equality and the absence of laws respecting religion, there was a politic silence about clerical exemptions. Neither dissenting nor establishment ministers had an interest in pointing out that these were special privileges and laws respecting religion. Thus, clerical exemptions and exemptions from military service were accepted even by most dissenters, notwithstanding their attacks on establishments. The possible contradictions sometimes were publicly acknowledged but more often were conveniently ignored.
60 GWLR 915

Professor Marci A. Hamilton, COMMENTARY: ON SCHOOL VOUCHERS AND THE ESTABLISHMENT CLAUSE: A Reply, 31 Conn. L. Rev. 1001 (1999)

[1001]  It is not often that one gets such immediate (and lengthy) written responses to one’s work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.

I suppose I should start by explaining what was not terribly clear to me when I wrote the lead article, but has become much clearer as I have read the responses: what it is I hoped my vouchers article would accomplish. It is to a large degree a descriptive piece–descriptive of a core underlying principle of the Establishment Clause and descriptive of the case law that has followed. I am pointing out a phenomenon that has colored the establishment cases from the beginning but that has been pushed to the background by doctrine-talk. That phenomenon is that religion wields power and that it can do so inappropriately. Judging by the tone of some of my interlocutors, I have hit a nerve with a position I worried was too obvious to justify expression.

I have heard via the academic rumor mill (in fact, the source may have been him, but I cannot remember) that Professor, now Dean, Stanley Fish was giving one of his usual lively presentations one time and he received many questions. Toward the end of the questioning, one of his questioners declared, “The problem with your theory is that it is just one tiny idea–meaning is impossible to nail down.” His challenger sat down, obviously well-pleased with himself. Fish smiled, peered at him for a minute, and said, “Precisely.” One can just see Fish’s face broadcasting the coda, “But it is an important idea.” The same can be said of my first extended foray into establishment waters. It is but one idea that I am advocating–religion  [1002]  can misbehave and therefore deserves to be distrusted like all other social entities. It may be, as Professor Brownstein seems to suggest, just a “tiny” idea in the pantheon. 1 Nonetheless, like Fish’s idea, the distrust of all entities that underlies the entire Constitution, including the Establishment Clause, is a tiny idea with powerful ramifications. It is a neglected idea in our society, which too often underestimates religion’s real power by treating it as an unalloyed benign or positive presence.

To the charge leveled by some that I have not covered the entirety of the Establishment Clause waters, I answer only “mea culpa.” Rather, I have taken one theme that was present in the culture at the time of the framing of the Constitution and apparent at the Convention, pulled the thread, identified its presence in the cases, and tried to interpolate it. On this first run with it, I am quite confident I have hit constitutional bedrock. I am less confident that my interpolation is correct; Mark Tushnet’s and Allan Brownstein’s musing whether it can carry the load it is assigned is more than justified. As with all academic theories, only time will tell.

In the following, I will briefly reply to what I view as the three most important bases of disagreement between myself and my colleagues: differences over the appropriateness of distrusting religion, the difference between doctrine and judgment, and the usefulness of “equality” as a measuring rod for establishment offenses.

I. THE CASE FOR DISTRUST OF RELIGION

Two of my interlocutors accuse me of being hostile to religion and “fearing” it. 2 The concept of “distrust” is being caricatured when my interlocutors recast it as the emotion of “fear.” The Constitution’s distrust is a pragmatic expectation schooled by history that all those holding power, even religion, may abuse it. The Constitution’s prescription for this empirical reality is to divide and balance power. As a theological matter, this is a Protestant perspective, and–without a doubt–permeated the mindset of the founding generation, especially James Madison. This is an ineradicable element of Protestantism: The Church can stray. It did so in the sixteenth century. Only historical revisionism would explain the Constitution’s separation of church and state as a tool solely intended to limit the power of the state. 3 Religion, too, has been guilty of serious misdeeds and  [1003]  abuses of power that threaten liberty.

Religious persecution in early America frequently was at the hands of religion. Sometimes religion used the state to further its goals; sometimes it persecuted on its own. 4 When Madison wrote the following oft-quoted statement, he was speaking about a persecution that resulted from government and religion:

That diabolical, hell-conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. 5

Indeed, nothing seems to have bothered Madison so much as religious bigotry, a vice of those who are religious. 6 Thus, the more plausible reading of history and the Constitution is that both religion and the state must be checked to some degree to avoid tyranny.

 

The charge that I am advocating “subordination of church to state” 7 is an unfortunate misreading of the body of my work, which emphasizes a balance and division of power, and certainly does not endorse hegemony  [1004]  of the state. 8 The Constitution gives neither church nor state a free ride. 9

I regret that my friends’ message is too clear: she is a heretic, an infidel to the cause of religion. At least the charge puts me in good company. James Madison’s adamant opposition to any kind of state aid for religion, including the Virginia tax assessment bill, 10 state payment of chaplains for Congress and the armed forces, 11 and other statements made throughout his life, have led some to accuse him of being “hostile to religion” because he believed that its “effect in society [can be] a pernicious one.” 12

Like Madison, I do not believe that religion is necessarily a negative in society, but that does not mean one ought to take a pollyanna view of it.  [1005]  Rather, it can be a positive good, but when it gets a “handle on the levers of power,” the Constitution warns caution. 13 Madison was concerned not only about the union of church/state power but also the raw accumulation of too much power in the hands of religion or a consortium of religions. 14 Following in Madison’s footsteps, I have refused to give religion a white-wash so long as it is practiced by humans.

I am advocating an honest assessment of the interplay of religion and power. Even the briefest perusal of church/state history (one does not even need to leave our shores) proves that religion can overreach. Where have we arrived that it is now heretical to make this rather mundane historical point?

The age-old temptation to deride those who distrust religion as infidels trivializes the important paradox that lies at the base of the Constitution’s pervasive separation of powers principle. 15 In defending Madison against the charge that his strong belief in separation and his distrust of religious entities meant that he disvalued religion, Ralph Ketcham nicely captured the double-sided quality of Madison’s thought (and the Constitution’s presuppositions) as follows:

It would be difficult to find a neater and more compassionate balance between hopeful optimism on the one hand and pessimistic despair on the other. . . . His tough assessment of the frailty of man’s nature, the finiteness of human understanding, and the occasional  [1006]  inclination of the world to be simply “out of joint,” would have warmed the heart of Presbyterian John Witherspoon. 16

 

It is not my position that “power will always be abused for evil ends.” 17 The Calvinist assumption underlying the Constitution and especially the Establishment Clause is that power can be and is even likely to be abused by those who hold it, not that it definitely will be. If the Framers believed, or the Constitution rested on the assumption that all power will always be abused, there would have been precious little reason to construct the system in the first place. A republican form of government can only operate to the extent that the system can be structured to reduce representatives’ temptation to abuse their power in a majority of instances. Distrust is coupled to deep hope, which is admittedly a paradox, but one that has served us very well.

I should have made this point more clear in my opening article, but I did not, so let me say it now: Religion is an essential and existential presence in the society that is vital to keep all other centers of power in check. 18 Indeed, I am a devout believer. My vigorous opposition to the Religious Freedom Restoration Act, its progeny, and now vouchers is an opposition to overreaching by religion, not religion per se.

To my happy surprise, Professor Michael McConnell finds considerable common ground with my separation of powers approach. I am grateful for his thoughtful response. Having started from similar principles, we reach opposite conclusions on vouchers, however, because we employ different empirical assumptions about the baseline of church/state power. He takes my decentralization concept seriously but states:

Educational choice decentralizes control over the dissemination of ideas, values, and opinions; promotes pluralism and diversity; eliminates the need for divisive political battles over the content of the curriculum; respects the rights of minorities and dissenters; and leaves decisions about the role of religion in education to private judgment. Educational choice would be a great advance for civil liberties–for ‘avoiding undue concentrations of power.’ 19

This is pretty heady stuff. Vouchers’ proponents obviously have a worthy advocate in Professor McConnell.

 

It would seem to me, however, that there is an equally compelling  [1007]  argument that vouchers may also invite the government to permeate the private marketplace of education, thereby ridding us of the one truly independent source of education in the society. Because education is one of the most potent weapons for battling governmental (and other) tyranny, the existence of a private source of education is an insurance policy against despotism. Thus, Professor McConnell is with me on decentralization, but we part company on the necessity of thedemarcation of power centers. Under a vouchers regime, religious decisions are not necessarily “insulated . . . from government control,” 20 but rather religious institutions become part of the lobbying process for increased voucher payments, for the timing of such payments, and for other favors that are justified on the ground that the private school is now serving a public function. Indeed, voucher lobbyists have become a powerful and well-heeled interest in politics already.

McConnell sees a certainty in the Court’s establishment jurisprudence as it applies to vouchers that I cannot decipher. No matter how many times one reviews the aid cases, the irreducible issue in this context appears to be whether the aid is “direct” or “indirect.” That is where Agostinileft it, quite explicitly, and it is the brave soul that can read into that decision a clear indication on any particular voucher scheme. 21 “Directness” is a factual question colored by a court’s presuppositions about the church/state balance of power. Surely, a parental pass-through does not automatically make such payments indirect. Even if the vouchers’ monetary stream passes through parents’ hands, its source is the government, its intended goal usually includes religious schools, and it then empties into a fathomless ocean of sectarian coffers. 22 McConnell believes that “when the government acts neutrally toward religion, any religious consequences are attributable to the choices of private individuals and not to the state. If that is true, it cannot matter whether those choices are numerous or few.” 23 He cannot mean for this reasoning to be taken to its logical conclusion. If a city, or a school board, is paying a significant portion of its tax proceeds into a vouchers scheme that is dominated by religious schools, surely there is a constitutional problem of large proportions! McConnell’s formulation elevates form (the concept of neutrality) over substance (the real balance of power).

McConnell’s insistence that the family must be considered as a social  [1008]  entity worthy of power deserves careful consideration, but the introduction of the family into the constitutional calculus does not displace the church/state issue, as he seems to imply. 24 I would think that the Constitution more properly requires us to consider the family as an additional factor in the complex play of social forces we are to be balancing.

II. JUDGMENT VS. DOCTRINE

From my point of view, Professor Tushnet’s response is the most exciting of those offered, because it identifies a theme in my scholarship that I had not identified in this particular context. Having read his response and especially its conclusion, I had one of those “Aha” insights for which I owe him a great deal of gratitude. He says:

Professor Hamilton’s project will have a greater effect in the long term than what might initially appear. It is not that her article will help us understand how the courts ought to resolve the voucher controversies that are currently on the table, but that it will–to the extent that it succeeds–contribute to our sense of what the common sense of the matter is.” 25

Tushnet is right on the money when he translates my approach: “No doctrinal approach will do the job.” 26 What he is saying, and he is right, is that my approach is not about doctrine but rather about the complex context against which doctrine must be deployed. It is about what he calls “common sense,” 27 but what I would call “judgment.”

 

There is an irreducible middle to every legal judgment made in the United States, whether by a legislature or a court. The success of the common law judicial system and the republican form of government in serving the public’s interest depend inevitably on the quality of judgment reached in each arena. 28 Madison recognized the consequences of resting the constitutional scheme on judgment: If there were a deficit of virtuous rulers, the system simply would not work. As hard as law professors and other scholars (consciously or subconsciously) labor to expand their sphere of power by attempting to control legal outcomes through reducing issues to formulae, there is no avoiding the necessity of judgment. The  [1009]  establishment cases make particularly clear that connect-the-dots just won’t do.

I take Brownstein’s comment that I have written a “think piece . . . rather than a doctrinal analysis” as a compliment. 29 Within a page, though, he reverts to the law professor’s temptation to turn all legal discussions into doctrinal discussions that belong in a brief when he accuses me of not even “considering the arguments on the other side.” 30 He was right the first time–this is a think piece in which I am reviving an important element of the Establishment Clause and leaving doctrinal pigeonholes to the side for a moment. Criticizing my article for not covering all of the doctrinal bases is like criticizing Mark McGwire because he does not block passes. I am not particularly interested in “defeating . . . a constitutional argument” but rather have endeavored to cast a fresh eye on an age-old problem. 31

As we see in Brownstein’s contribution to this exchange, the ineluctable necessity of judgment is an element that gets shoved aside when the law is treated as though it can be defined by doctrinal categories that direct particular results in particular cases. Though perhaps unintentionally so, too much of legal academic scholarship is an attempt to transform judges into puppets operated by the Wizards of Law who operate from the law review bases. I suppose I am an infidel again, but this time to the legal academy.

What I am grappling with here, and probably not terribly coherently, because it walks outside the prescribed bounds for legal discourse in our era, is the legal academy’s attempt to reduce Brown v. Board of Education to a finite set of predictable factors. 32 That case is a miracle in legal discourse because the Court stepped boldly outside its previous jurisprudence, and even outside society’s readiness, and declared that the Constitution mandates racial equality. It has generated an almost desperate desire to copy that moment, to force its recreation, and to erect signposts that will point the way to another miracle. Yet, miracles are not subject to such controlling behavior. Brown is the best example we have of gutsy, visionary judgment. No doctrinal formula led the Court by the nose to the result. To the contrary, the Court leapt where others might have feared to tread. In Planned Parenthood v. Casey, 33 three members of the Court attempted to articulate the ground rules for reaching such a startling judgment.  [1010]  But their efforts to reduce the use of right judgment in a particular context to particular criteria is deeply unsatisfying. The fact is that Brown is a prime example of the right judgment in the right context at the right time in the absence of controlling doctrine. The same courageous judgment is required in the establishment cases, which makes them no easy load for the courts to bear.

A catalogue of doctrinal pigeonholes fails to take seriously the Court’s own acknowledgment that there is no Grand Unified Theory, no single calipers, and no perfect multi-part formula that is up to the task of figuring out whether the Establishment Clause has been violated. 34 The courts need a great deal of latitude to be able to divine the appropriate balance of power between church and state in each arena. Tushnet fairly asks what a separation of powers-centered establishment jurisprudence can contribute to a “good constitutional order.” 35 In my book, his answer is gratifying, that it can contribute to discovering the “common sense” of the matter. If I have written off doctrine alone (and therefore a great deal of the legal scholar’s purchase in this arena), it is more than fair for a law professor to ask me what good can come of it. There are two answers, I suppose. First, there are many contributions legal scholars can make beyond spinning out doctrinal platforms. Good judgment rests on awareness of how laws affect humans and institutions and on knowledge about history, human character, and culture.

Second, by letting judgment transcend doctrine, the separation of powers approach makes it possible for judges to hear the Constitution’s call to shoulder the heavy mantle of responsibility they must bear in the establishment cases. Doctrinal constructs too often obstruct the view to the sociological and political realities that shape the current play of power in the society and lead to wooden conclusions. As the Rev. John Witherspoon taught his students, including James Madison, a successful constitutional scheme can only be derived from a pragmatic approach that reasons up from the facts. 36 Given the Constitution’s directive to disperse and limit power and the reality of power’s plasticity, especially when one is  [1011]  dealing with church or state, judges should not be permitted to hide behind towers of doctrinal rules, but rather should acknowledge their very powerful and crucial role in dispersing the centers of power. This is precisely the role that Justice O’Connor has carved out, and one that I admire for its forthrightness on the point.

III. THE SIREN SONG OF EQUALITY IN THE ESTABLISHMENT CONTEXT

The force behind most defenses of voucher schemes that include religion is that it is unfair to treat religion less well than secular organizations. Professor McConnell plays on this theme while Professor Brownstein embraces it. Why should religion be denied public funds if nonreligious organizations can have them, especially when government funding has become so pervasive and so lucrative? Religious individuals pay taxes, too, the argument goes.

The problem with the approach is its appeal: To argue that religion must be treated equally with all other entities in the society is to argue that religion is similarly situated. That is precisely the argument that led the Court to its conclusion in Rosenberger, where it held that a proselytizing Christian group could not be denied student activity funds if such funds were available to other student groups as well. 37 I tip my hat to Professor McConnell for his powers of persuasion in winning that case. It is the same sort of reasoning that led to the Equal Access Act, 38 which was upheld in Board of Education v. Mergens. 39 A victory for the equality principle in this arena, however, is a diminution in the power of the Establishment Clause to curb inappropriate accumulations of power by religion.

The struggle between equality and establishment principles is well-articulated in the debate between the five-member majority in Rosenberger, which embraced the equality argument, 40and the four-member dissent, which espoused the establishment approach to reach an opposite conclusion. 41 If we start from the assumption that any money handed out by the government must be handed out to religious entities if it is given to nonsectarian entities, then every distribution of government wealth must also be had by religion. From a perspective of distrust, equality is being used as a wedge to open the door to direct payments from the government to religion.

The First Amendment makes clear that religion is different. As Professor  [1012]  McConnell, Professor Brownstein, and Marc Stern are fond of saying when speaking about free exercise principles, religion is special and the First Amendment singles it out for special treatment on purpose. Madison did not stop drafting the First Amendment at the Free Exercise Clause, however. It was not enough to protect the church from the state. A disestablishment principle was necessary as well, to protect the society from religion cloaking itself in state power or leveraging state resources to its own ends. 42

By emphasizing equality and shifting the debate to a debate about families and the government, Professor McConnell attempts to have his cake and eat it, too. On the one hand, religion is special (for free exercise purposes and because it is a capable values inculcator, unlike the public schools), but on the other hand, religion is no different from any other entity (for establishment purposes when state funds are at stake). This masterful move draws attention away from the reality that “equality” permits religion to pan for new gold, all of it coming from government coffers. The best example of this phenomenon resides in the Medicare context, where the Christian Scientist “healers” have reaped fifty million dollars and defended it as justified because they pay taxes just like everyone else. Translation: the Christian Science Church is just like every other social institution receiving Medicare funds, so it is only fair to give them a fair share of the program’s largesse. 43 Madison would be concerned. Surely the dissenters in Rosenberger are right on this one: “Conformity with the marginal or limiting principle of evenhandedness is insufficient of itself to demonstrate the constitutionality of providing a government benefit that reaches religion . . . .” 44

My intellectual distrust of the “equality” defense to establishment violations may seem outright curmudgeonly to some. What could possibly be wrong with “equality,” a question that is a variation on the question I hear all the time regarding the Religious Freedom Restoration Act; what could possibly be wrong with giving religion more liberty? The answer is that more equality and more liberty too often translate into too much power. I see another theory being pushed by religious interests, however, that if coupled to the equality principle would seal religion’s supremacy in  [1013]  this era. It is the “church autonomy doctrine,” which was articulated most recently in an amicus brief filed on behalf of a number of churches in a Colorado clergy misconduct case. 45 They argued that the Supreme Court has observed a “church autonomy doctrine,” which precludes the government from interfering in the employment decisions of churches. In that case, they particularly argued that the courts could not hold the churches responsible for the oversight and misconduct of their employees and therefore could not be subject to damages in cases involving priests who sexually abuse disabled congregants or children. The equality theory plus the church autonomy doctrine spells trouble. If churches have a right to the government’s money, and the government has no power to oversee how that money is being handled, public funds will fall into the hands of completely unaccountable institutions. This is a recipe for the abuse and misuse of power by religion about which Madison was rightly concerned.

Even assuming that the equality defense should work against establishment attack, the principle generates unintended and troubling consequences for the accommodation of religion. If religion is not truly distinctive, then the justification for granting exemptions from generally applicable laws has disappeared. 46 A religious exemption is nothing other than different treatment for religion because religion deserves special treatment. Why should a legislature give special treatment to the burden placed on a religion by a general law if it will not give the same treatment to nonsectarian institutions also burdened, if the two are equally situated in front of government for financial purposes? 47 In a strange way, the “equality” theory is religion’s way of acquiescing in the popular social myth that religion is trivialized in society. Ironically, by reducing the force of the Establishment Clause, the equality principle whittles away at religion’s constitutional status.

Could it be that a healthy distrust of religion and a vigorous reading of the Establishment Clause are good for religion? 48 Could be.

Copyright (c) 1999 Connecticut Law Review
Connecticut Law Review

Professor William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. 357 (1990)

ARTICLE: The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. 357

1990

Reporter: 40 Case W. Res. 357

Author: William P. Marshall

[357]  FREE EXERCISE JURISPRUDENCE is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is  [358]  not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption. 1

There are a number of tensions underlying the notion of the constitutionally compelled exemption, and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. 2 Thus, as the Court noted just last week, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm. 3

Second, the difficulties inherent in exemptions are exacerbated when an exemption favors religion. Beyond general equality notions, the advancement of religion triggers a separate and specific constitutional provision, the establishment clause. Thus, as has been commonly noted, the free exercise claim for constitutionally compelled exemptions leads to a first amendment jurisprudence that simultaneously calls for special deference to religion  [359]  under the free exercise clause and a prohibition of special deference under the establishment clause. 4

Third, the claim for constitutionally compelled free exercise exemptions raises virtually insoluble problems in determining when a religious claim is bona fide. Such an inquiry necessarily requires investigation into the religiosity and sincerity of the religious belief at stake; however, defining religion and ascertaining sincerity have proved to be highly elusive undertakings. 5 Furthermore, any inquiry into definition or sincerity is itself risky. Allowing the courts or the government to investigate and label beliefs as “irreligious” or “insincere” raises a threat to religious liberty. 6Moreover, the importance of the sincerity and definition inquiries to free exercise claims for exemption cannot be overstated. In effect, sincerity and religiosity are the only criteria for determining what constitutes a legitimate religious claim. Because religious beliefs are so diverse, as one observer has written, “everything is [potentially] covered by the free exercise clause.” 7

Finally, as has been noted in recent academic literature, religious matters do not easily lend themselves to existing constitutional analysis. Constitutional analysis is individual-rights-oriented;8 religion is often communal. 9 Rights-oriented thinking  [360]  presupposes that the individual has numerous equally viable avenues through which to exercise her freedom of choice; religion is often absolutist. 10 Therefore, placing religion in a legal framework often raises a square-peg/round-hole problem.

A number of years ago I proposed for the free exercise problem a solution that essentially eliminated claims to a constitutionally based free exercise exemption. 11 I argued that free exercise claims advanced by those seeking relief from laws of general applicability should be resolved under the speech clause. In essence, free exercise claimants would be entitled to relief only to the extent their claims would be protected under the speech clause. For example, a religious group would not be entitled to exemption from state restrictions on soliciting contributions unless 1) the solicitation was protected under the speech clause and 2) non-religious groups engaging in solicitation would also be entitled to protection. As the example above suggests, this thesis is comprised of two primary components. The first concerns the degree of constitutional protection to be accorded those presenting free exercise claims. In many circumstances, a claimant may present both a free exercise and a speech claim. In the situation noted above, for example, the religious group seeking exemption from solicitation regulation has a cognizable free exercise and a cognizable speech claim. 12 At the same time, a non-religious group such as a public-interest organization, which might also seek exemption from a solicitation restriction, would present only a speech claim. 13 If free exercise is treated as expression, the result will obviously be that  [361]  the religious and non-religious groups will be accorded the same level of protection. In short, under this theory a religious claimant will be entitled to no greater protection than a non-religious claimant, the presence of a free exercise interest notwithstanding. 14

The second component of the thesis, admittedly more controversial, concerns the scope of religious activities entitled to constitutional protection. It argues that the boundaries of protected free exercise activity should be defined by the boundaries of free speech. 15 Although, according to the current jurisprudence, a claim under the free exercise clause will often also implicate the speech clause, many claims currently recognized as implicating free exercise protection do not easily fit within a speech analysis. For example, the religious objection to working in an armaments factory, recognized as implicating rights of free exercise in Thomas v. Review Board,16 does not, at least under existing speech theory, present a colorable speech claim. Under the theory posited here, the religious claim will not be constitutionally protected unless protection is also extended to parallel objections based on non-religious grounds, such as those of moral philosophy. In short, whether an activity implicates the first amendment ought not turn on whether the activity is religious or secular.

While some commentators have been kind enough to give a title to the free exercise as expression thesis — it is often called the reduction principle 17 — it has captured no adherents, at least in the academic world. Nevertheless, what has struck me since I wrote that article is not the persuasiveness of my own thesis, but rather the infirmity of the arguments made on behalf of the free exercise exemption. Thus, while I recognize that my thesis may be imperfect, it remains the best available approach to the controversial free exercise issue. This Article, therefore, defends the rejection of the constitutionally compelled exemption. Part I describes the theory’s doctrinal underpinnings and its relation to current Supreme  [362]  Court decisions. 18 Part II presents and responds to the arguments in favor of recognizing constitutionally compelled exemptions under the free exercise clause. 19 Part III presents the arguments that compel the rejection of the free exercise claim for exemptions. 20 Part IV examines some of the competing approaches to the free exercise claims for exemption and concludes that, although the approaches may differ significantly in rhetoric, they do not differ significantly in result from that reached here. 21 Part V addresses what appears to be the true underlying reason for opposition to abandonment of the constitutionally compelled free exercise exemption: that the rejection of free exercise is fundamentally the product of an antipathy to religion. 22 Finally, I conclude where I began, with the proposition that free exercise claims for special exemption from neutral laws of general applicability should be rejected.

I. FREE EXERCISE AS EXPRESSION: DOCTRINAL UNDERPINNINGS

A. Religiously Motivated Activity as Expression

In Widmar v. Vincent, 23 the Court reviewed the claim of members of a religious organization who alleged that they were unconstitutionally denied the right to pray together on a state-university campus. The Court held that the appropriate vehicle for review of this constitutional claim was the free speech clause. 24 Prayer, in short, was speech. 25 The Widmar Court’s reliance on the speech clause was not surprising. It was simply illustrative of a long line of cases which had reviewed under the speech clause the claims of religious organizations to engage in religiously directed practice. 26

[363]  Of course, the observation that two separate constitutional provisions might govern one activity is not surprising. Frequently, constitutional provisions can, and do, overlap. 27 What is surprising, however, is the extent to which the free speech inquiry has dominated the free exercise inquiry. The two freedoms were intertwined in the Jehovah’s Witnesses cases of the 1930’s and 1940’s. In those cases, the Court reviewed the constitutionality of state restrictions on religiously motivated activities such as solicitation, proselytizing, distribution of religious literature, and preaching. 28 In almost all of the cases in which the Jehovah’s Witnesses prevailed, the Court found the governing provision to be the speech clause. 29 Although the free exercise clause was occasionally mentioned, in no case did the Court recognize a free exercise claim where a speech claim would have failed. 30 The message of these  [364]  cases was clear: No activity was so essentially religious that it warranted protection only under the free exercise clause. 31

B. Protection for Rights of Conscience Under the Speech Clause

The speech clause’s dominion over claims involving religious exercise is not limited to expressive activities. It also includes more passive activities like rights of conscience. In a series of cases, the Court has upheld on speech clause grounds the rights of persons, whether religiously motivated or not, to refrain from certain state-compelled activities because participation in those activities conflicted with their consciences.

West Virginia State Board of Education v. Barnette 32 and, more recently, Wooley v. Maynard 33are examples of cases in which the Supreme Court has recognized that a right to forego an activity because of religious principle is protected under the speech clause. Barnette invalidated a compulsory flag-salute requirement that was repugnant to Jehovah’s Witnesses. Although the objection was based on religion, the Court, viewing the issue as involving freedom of conscience, found the conscientious objection to have arisen under the speech clause irrespective of its religious basis. 34

In Wooley, claimant George Maynard, a Jehovah’s Witness, objected to the New Hampshire license plate motto, “Live Free or Die,” on the basis of his moral, ethical, political, and religious beliefs. 35 The Court, again relying on speech rather than on narrower free exercise grounds, upheld Maynard’s objection. According to the Court, Maynard presented a “right to refrain from speaking” based on the “broader concept of ‘individual freedom of mind,'” which entitled him to protection. 36 Thus, these cases and  [365]  others 37 establish that the free exercise clause is not the exclusive guardian for rights of conscience 38 and that significant protection for rights of conscience exists under the speech clause. 39

C. The Current Free Exercise Jurisprudence

The Supreme Court’s current free exercise approach does not, in theory, reject the constitutionally compelled exemption. Beginning in 1963, with Sherbert v. Verner, 40 the Court adopted a separate free exercise inquiry which allowed for the creation of constitutionally compelled exemptions for religious exercise in certain circumstances. From 1963 until quite recently, the Court has been consistent in articulating the test it ostensibly applies in its free exercise decisions. 41 According to the Court, government infringement on free exercise rights will be upheld as constitutional only when supported by a compelling state interest. 42 Essentially, this test parallels the strict scrutiny inquiry the Court uses in reviewing purported infringements of the most fundamental constitutional  [366]  rights. 43 Nevertheless, despite the Court’s professed allegiance to a fixed constitutional standard, free exercise jurisprudence has never been consistent in result. 44 Rather, the only consistency that has emerged is the Court’s extraordinary reluctance to vindicate free exercise claims outside those protected under the speech clause. It has done so in only five cases, and those five cases are extremely limited in scope. One, Wisconsin v.  [367]  Yoder, 45 which held that the Amish were entitled to constitutional exemption from compulsory-education laws, is so tied to its facts that it is without strong precedential value. 46 The Court emphasized the uniqueness of the Amish and conceded that “few other religious groups or sects” would be entitled to similar exemption. 47

The other cases include the seminal Sherbert decision 48 and the trilogy of Thomas v. Review Board, 49 Hobbie v. Unemployment Appeals Commission, 50 and Frazee v. Illinois Department of Employment Security, 51 three cases which are essentially Sherbert re-visited. In all four cases, the Court addressed the same issue: whether a state could deny unemployment benefits to an applicant whose failure to be available for work was due to religious conviction. In each case the Court concluded that the free exercise clause prohibited the state from withholding benefits. A claimant could not be forced to choose between adhering to his beliefs and forfeiting state benefits on the one hand, and accepting work that violated his religious convictions on the other.52

The unemployment-benefits cases have not, however, been accorded strong precedential force. In subsequent cases, the Court  [368]  has denied claims for religious exemption from the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act, 53 tax payment requirements of the Social Security Act, 54 and the government’s use of social security number registration requirements in food stamp and welfare programs. 55 In these cases, the governmental interests, primarily ease of administration and fear of fraudulent claims, were “relatively weak.” 56 In addition, the Court has been quick to reject free exercise claims that have arisen in prison and military contexts on the grounds that these institutions should be accorded unusual judicial deference. 57 Finally, the Court has unanimously rejected the free exercise claims for special exemption from tax laws that have been brought before it. 58 The denial of religious claims in all of these  [369]  circumstances has led a number of commentators to question whether the Court actually applies strict scrutiny or a substantially less stringent mode of review in free exercise cases. 59

In fact, in recent cases the Court has begun to waver in its characterization of the free exercise test and has even, in some instances, substantially returned to its pre-Sherbert approach. For example, Bowen v. Roy 60 and Lyng v. Northwest Indian Cemetery Protective Association 61mark a substantial retreat from the Sherbert doctrine. In Bowen, the Court was faced with a challenge to a provision in the Social Security Act which required states to use social security numbers in administering certain welfare payments. 62 In Lyng, the Court was faced with the claims of a number of native Americans who argued that the free exercise clause prohibited the development of certain religious territory owned by the government but sacred to their religious heritage. 63 Using minimal scrutiny, the Court rejected both challenges, holding that “the Free Exercise Clause cannot be understood to require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 64 The effect of Lyngand Bowen on the continued viability of the Sherbert test is substantial. For one, these cases, at the least, have removed an entire area of potential government infringement on religious exercise, the infringement caused by conflict with internal government affairs, from the compelling state interest test. 65 More importantly, the return to the barest level of scrutiny suggests a possible further erosion of the compelling interest test. 66

[370]  Bowen is also be significant for the manner in which it characterized Sherbert andThomas, the only unemployment cases that had been decided at the time. Bowen explained those cases as involving discrimination against religion because the unemployment insurance programs at issue recognized only non-religious reasons for an applicant to refuse work. 67 The Court’s articulation of its rationale in this manner is potentially far-reaching. It effectively excludesSherbert and Thomas from the category of exemption cases and leaves Yoder as the only remaining true exemption case. 68

Yet, even if Bowen and Lyng are solely internal operations cases and even if Sherbert, Thomas, Hobbie, and Frazee are something more than discriminatory treatment cases, there is no question that free exercise protection exists at best in diluted form. Indeed, its most recent free exercise pronouncement, the Court in Employment Division, Department of Human Resources v. Smith (Smith II), 69 imposed the most far-reaching limitation on Sherbert yet. In Smith II the Court was faced with the free  [371]  exercise claims of two Oregon state employees who had engaged in religiously motivated peyote smoking. Characterizing the peyote smoking as work-related misconduct, the state had fired the employees from their positions as drug and alcohol abuse counselors. 70 The Supreme Court rejected their free exercise challenges. The Smith IIopinion is immediately notable for its limited reading of free exercise precedent. DistinguishingSherbert and Yoder, 71 the Court virtually denied even the existence of the constitutionally compelled free exercise exemption. The Court stated that it had “never held that and individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the state is free to regulate” and that its previous decisions “have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability . . .'” 72 A serious question thus remains after Smith II as to whether the free exercise exemption will survive in any form.

Even in its narrowest reading, the limitation Smith II places on free exercise exemption is dramatic. The Court held that even if it

were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law.

. . . To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest in “compelling” — permitting  [372] him, by virtue of his beliefs, “to become a law unto himself” — contradicts both constitutional tradition and common sense. 73

Smith II thus holds that rights of free exercise do not extend to criminally proscribed activity.

Because both the power of the criminal law in deterring conduct is so great and the power of the state to criminalize activity so broad, even this narrow reading of Smith II is a dramatic undercutting of Sherbert. 74 Indeed, the suggestion that at most free exercise protection extends only to activities that are otherwise valid 75 means effectively that its protections are limited only to conditional-benefits cases, a category which not so coincidentally includes Sherbert, Thomas, Hobbie, and Frazee. At the least, Smith is yet another suggestion that free exercise protection is not expansive.

In summary, the current free exercise jurisprudence disfavors exemptions. The combination of 1) the extraordinarily limited circumstances in which free exercise claims have been upheld; 2) the less-than-compelling instances in which claims have been denied; 3) the Bowen/Lyng refusal to extend such protection to matters affecting the government’s internal operations; 4) the Smith IIrefusal to extend free exercise protection to otherwise illegal activities; and 5) the significant protection religious activity has been accorded outside of the speech clause, lead to one salient conclusion: The explicit adoption of the position that free exercise claims for exemption should be denied would not produce a dramatic alteration of the current jurisprudence.

II. THE ARGUMENTS IN FAVOR OF CONSTITUTIONALLY COMPELLED EXEMPTIONS FOR RELIGIOUS EXERCISE

Commentators generally do not dispute the conclusions set forth in the previous section. They agree that, prior to Sherbert, the protection of free exercise rights was afforded solely by the speech clause 76 and that the results under the Court’s current approach differ little, if at all, from the results that would be achieved under a free exercise as expression methodology. 77They also agree that the creation of free exercise exemptions necessitates  [373]  inquiry into the sincerity and definition of religious belief and that such investigation itself may be harmful to religious-liberty interests. 78 Finally, commentators generally concede that a theory that seeks exemption for religious exercise in effect advocates preferred treatment for religion and religious belief. 79 Indeed, the central argument of those favoring free exercise exemptions is that the Court’s failure to provide special protection to free exercise rights apart from that provided by the speech clause is exactly what is wrong with the current jurisprudence. To paraphrase one commentator, the Court has failed to take free exercise seriously. 80 This section will examine the arguments in favor of the constitutionally compelled free exercise exemption.

A. Text

1. Redundancy

The first argument raised by those seeking more stringent free exercise protection is textual. The first amendment explicitly provides for the protection of rights of free exercise. Some commentators contend that, in order to make this provision meaningful, the free exercise clause must be given its independence from the speech clause, in part through constitutionally compelled exemptions. 81 Accordingly, denying claims for free exercise and redressing such claims only under the speech clause must be misguided, since it would turn the free exercise clause into a textual redundancy. 82

This textual argument, however, is deficient on a number of grounds. For one, it is descriptively inaccurate. The free exercise position advocated here pertains only to claims for special exemption  [374]  from laws of general applicability. The free exercise clause may have independent vitality in restricting judicial involvement in intra-church property and employment disputes. 83 More clearly, the clause retains an independent vitality with respect to laws that directly attempt to infringe upon religious freedom. 84 While there have been thankfully few instances of direct persecutions for the free exercise clause to redress, the fact that protection from direct prosecution has been largely unneeded does not make the clause a redundancy. 85

Nor is the clause a redundancy because even persecutory laws could arguably be invalidated under another constitutional provision, the equal-protection clause. 86 The equal protection clause probably extends to such persecutory laws. 87 Even so, it is hard to see how this point leads to the conclusion that the free exercise clause must be construed as allowing constitutionally compelled exemptions. The subsequent passage and later expansion of the equal protection clause to cover the ground previously protected by the free exercise clause does not mean the protections of the free exercise clause must be expanded to cover new territory.

[375]  Moreover, it is hardly novel to assert that mention in the text of the first amendment does not require constitutionally favored treatment other than protection against direct persecution. The press clause, also located in the first amendment, has been held not to confer a favored status on the media. 88 Rather, the press clause has been interpreted only to protect the media from “invidious discrimination.” 89

Finally, the argument that a textual passage must be given concrete meaning is misleading when that argument is used to advance a specific interpretation of that text. Separate arguments must be given in support of the substance behind the purported textual interpretation. In the free exercise context, proponents of more stringent free exercise exemptions must present arguments that demonstrate why the free exercise clause should be interpreted to require constitutionally compelled exemptions from neutral laws of general applicability. That the text of the first amendment explicitly mentions free exercise does not by itself establish this position. 90

2. The Use (or Non-Use) of History — A Parenthetical

Historical inquiry also does not support the claim for the constitutionally compelled claim for free exercise exemption. For one, the relevant historical evidence, like that underlying other issues concerning the religion clauses of the first amendment, is unclear. As Dean Choper has stated, “there is no clear record as to the Framers’ intent, and such history as there is reflects several varying  [376]  purposes.” 91 Moreover, any historical evidence must be tempered by the understanding that the first amendment was not intended to apply to the states. Federalism concerns, as well as issues of substantive religious liberty, surrounded the adoption of the religion clauses. 92

Some observations, however, are interesting, if not dispositive. For example, there is a significant question as to whether even the concept of a religious exemption is consistent with the framers’ intellectual framework. The framers obviously were aware that the beliefs of religious adherents could stand in opposition to the religious mandates of the state. The foisting of religious values upon religious dissidents by state enforcement of an established church’s precepts was one of the central religion clause concerns. 93 The framers were also aware of another infringement on religious freedom caused by state laws: A number of states imposed disabilities on persons refusing to take oaths, although oath-taking was offensive to the religious tenets of some sects.94 However, outside of these conflicts with state religious laws or test requirements, it is difficult to find examples where religious objections to the secular laws of the state were recognized. 95In fact, outside of religious  [377]  laws or tests, one can convincingly argue that the framers didnot envision potential religious exemptions as applying to neutral laws of general applicability. A number of reasons support this contention.

One is that the governing intellectual climate of the late eighteenth century was that of deism, or natural law, which assumed that religious tenets and the laws of temporal authority coincided. 96The first Supreme Court decisions on free exercise, decided roughly 100 years after the passage of Bill of Rights, are classic, if somewhat vitriolic, examples of this approach to religion and the law of the state. In Reynolds v. United States 97 and Davis  [378]  v. Beason, 98 for example, the Supreme Court rejected the contention that the Mormon practice of polygamy was religious. In the words of the Court, “to call their advocacy [of polygamy] a tenet of religion is to offend the common sense of mankind.” 99 Accordingly, the Court rejected the Mormon protests against restrictions on polygamy as not falling within the definition of religious exercise protected by the first amendment. The Court stated that “[i]t was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.” 100 As Reynolds and Davis suggest, there is little room in a natural-law framework for the creation of a constitutionally compelled religious exemption for activities outside the social norm.

Deism and natural law were not, however, the only philosophies that might have influenced the first amendment; evangelical influence existed as well. 101 Nevertheless, there are additional reasons which suggest that even those not sharing a deistic philosophy would have had difficulty anticipating religious objection to religiously neutral state provisions.

First of all, there were few religiously neutral state provisions with which the religious practices could have been in conflict. The regulatory state did not exist. There were no unemployment compensation benefits programs that might have disadvantaged sabbatarians 102 and no compulsory school programs that might have compromised the Amish or their historical predecessors. 103 For a  [379]  conflict to occur, then, it would have had to arise within the state’s criminal law.

This conflict, in turn, was unlikely for a second reason. Although there were varieties of religious beliefs at the end of the eighteenth century, there was not a great disparity in the types of religious practices. Rather, the culture of the United States in the late eighteenth century was fairly homogeneous, being composed almost entirely of Christian sects whose practices were unlikely to violate non-religious societal norms. 104 Thus, there existed neither the practices nor the laws that would make a conflict between religious exercise and religiously neutral laws likely.

Finally, there is no suggestion, in any event, that the framers conceived of a constitutionally mandated exemption. Article VI, for example, bans the religious test. 105 It does not create an exemption. Those arguing for a textual interpretation in favor of the constitutionally compelled exemption must also demonstrate that the unique remedy of exemption is consistent with the framers’ constitutional purposes. The historical evidence, however, is lacking. History, therefore, is no guide to the purported right to constitutionally compelled free exercise exemptions from religiously neutral laws of general applicability.

B. Equality

A second contention made by supporters of a free exercise exemption is that the creation of such an exemption adds to, rather than subtracts from, equality concerns. This argument contends that the application of neutral regulations creates its own inequality. 106 For example, a Seventh-Day Adventist, who is not entitled to receive unemployment compensation because she is unavailable  [380]  to work on Saturdays, is at a disadvantage with those whose religious beliefs do not forbid Saturday employment and who, if they are religiously forbidden from working on Sundays, may already be protected by legislative exemption. Creating an exemption for the sabbatarian therefore equalizes her rights with those of other religious adherents. Creation of this exemption also ensures that a religious majority, while never likely to place disabilities on the exercise of its own beliefs, might “inadvertently” inhibit the religious rights of minority groups. 107Professor Tushnet has questioned the accuracy of this argument. As he points out, there probably is no mythical majority intentionally protecting its own religious beliefs and “inadvertently” placing disabilities on the beliefs of others: “In a pluralistic society with crosscutting group memberships, the overall distribution of benefits and burdens is likely to be reasonably fair.” 108

Yet, even aside from Tushnet’s criticism, inequality among religions is not the governing equality concern. Even if a special exemption for religious adherents equalizes the effects of otherwise neutral laws on all religious believers, it does not equalize the effects of those laws on individuals presenting parallel secular objections. Again, those advocating a free exercise exemption for religious groups must convincingly argue that religious exercise is special.

C. Pluralism

Some commentators also rely heavily on notions of pluralism to support expanded free exercise protection. 109 The value in pluralism has been succinctly stated by Justice Brennan: It is beneficial to have diverse sub-groups within society because “each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society.” 110

[381]  Actually, there are three separate values inherent in the pluralistic model. The first is the capacity of religious groups to act as mediating institutions between the individual and government. Communal groups, such as religious organizations, “foster diversity and act as critical buffers between the individual and the power of the state.” 111

The second value of religious pluralism is its capacity to provide moral principles that help mold the citizenry into the sort of virtuous society that allows self-government to flourish. 112 In the tradition of civic republicanism, religion imbues the people with the sense of responsibility and veneration necessary for the republic to succeed. 113

The third value of pluralism is simply that it is desirable in itself. Multiplicity of religion is arguably not only a buffer againts state power and a source of moral values in the populace, but also a factor in cultural diversity.

The problem with the pluralism theory is not that it is misguided. Indeed, its aims and structure are highly attractive. Its deficiency is that it is not an argument for special protection for religious exercise. The values inherent in pluralism are also advanced by the protection of non-religious groups.

First, secular mediating groups such as ethnic associations and socio-political organizations also serve as buffers between the individual and the state. 114 Religious groups are, after all, not the [382]  sole mediating institutions in society. 115 Second, religion does not lay claim to a monopoly in the inculcation of civic virtue. As Professor Tushnet has explained, “[r]eligion may now be one of several methods of inculcating civic virtue.” 116 Finally, cultural diversity is not solely the product of religious multiplicity. Other types of heterogeneity — ethnic, lingual, and regional — enrich the culture as well. 117

The pluralist argument thus fails to establish why only religious groups, and not secular groups that share the same characteristics, merit special treatment. In short, the pluralist argument is either one for broad associational rights that include, but extend beyond, religious affiliations to other types of societal subgroups, 118 or it is an argument for the development of a constitutional theory that assimilates community rights into its individual-rights methodology. 119The pluralist argument does not, however, support special exemption for religion.

D. The Special Nature of Religion

Religion, some commentators contend, is not simply another belief system. Unlike other types of beliefs, religion seeks a truth and a morality that stem from divine authority. Accordingly, the obligations religion places on its adherents transcend those imposed by temporal sources. In the words of Professor McConnell, “religious claims — if true — are prior to and of greater dignity than the claims of the state [and the individual].” 120

As Professor Garvey explains, the belief in a transcendent authority  [383]  has significant ramifications for its adherents. 121 If the law of the state and the religious tenet differ, the religious adherent is in the unwelcome position of being subject to conflicting duties. 122 This, in turn, leads to two unpleasant options. On the one hand, the religious adherent may abandon her religious belief to follow the dictates of state law. If so, she may incur a “special cruelty,” particularly if the violation of the tenet is believed to have “extratemporal consequences.” 123 On the other hand, she may choose to act in allegiance to her religious faith and violate state law. This choice leads to the equally unsatisfactory result of civil disobedience and its accompanying social costs, including “disproportionate investment of enforcement resources, and loss of respect for law,” as well as potential earthly punishment for the believer. 124

These concerns are indisputably serious; however, none are unique to religion. Conflicting duties occur anytime one’s beliefs conflict with those of the state, whether those beliefs are religious or not. Some beliefs, like those underlying an individual’s objection to the draft, may be moral or political. 125 Other beliefs bringing the individual in conflict with the state may be based on more personal concerns, including those akin to privacy rights in intimate association protected under the due process clause. The same Board of Unemployment Compensation that denied unemployment benefits to Eddie Thomas for failing to work in an armaments factory also denied benefits to a person whose failure to be available for work was due to strong convictions about parental obligations. 126

[384]  The conclusion that there is a special suffering associated with the violation of a religious tenet is also overbroad at best. Not all religious beliefs are held with equal fervor by the religious adherent, nor are religious beliefs necessarily more deeply felt than secular beliefs. A person who has a secular, moral objection to killing in war and a religious objection to working on the Sabbath might well suffer a greater psychic harm in being forced to kill than in being forced to work.

Avoiding civil disobedience is also not a persuasive reason to single out religion for special benefits. One reason, of course, is that sacrificing important governmental interests because of fears of non-compliance raises its own concerns. 127 More importantly, the problem of civil disobedience is again not unique to religion. Professor Garvey has drawn a compelling illustration of the harm that might have been caused if Wisconsin chose to arrest the members of the Amish community who refused the requirements of compulsory education; however, even Garvey concludes that concerns of civil disobedience alone do not set religious belief apart from other belief systems. 128

Professor Garvey ultimately concludes that what separates religion from non-religion is that the former “is a lot like insanity.” 129 According to Garvey, this conclusion has two aspects. The first is cognitive. Garvey asserts that the process of understanding reality through religious beliefs is dissimilar to developing that understanding through practical reasoning — the cognitive process by which reality is generally understood in the society. 130 The second aspect is volitional. The religious believer is compelled by his belief to engage in certain activities. He therefore lacks the will in the same way an insane person lacks the will  [385]  to conform his practices to societal expectations. 131 For this reason, Garvey suggests, exempting the religious adherent is appropriate.

There are two deficiencies in Garvey’s thesis. First, it is not at all clear that religion is the only belief system that bases its understanding of the world upon a cognition other than that achieved through practical reasoning. Most other types of beliefs and moral values have non-rational components. Indeed, the contentions that practical reasoning leads to an understanding of reality and that morality may be understood through rational processes are themselves ultimately based on no more than their own non-rational, a priori assumptions. 132

Second, it is unclear that, even if lack of volition underlies religious belief, the appropriate response is to defer to this non-volitional understanding by creating special exemptions. There is, after all, a presumption of free will that underlies the principle of individual freedom expressed throughout the Constitution, and there is a principle of voluntariness which specifically underlies American religion and the religion clauses. 133 The analogy to insanity alone does not support the free exercise exemption.

Nevertheless, although no one factor conclusively establishes a special status for religion and religious belief for constitutional law purposes, it may be, as Garvey suggests, that the aggregation of a number of factors leads to the conclusion that religion is entitled  [386]  to special protection. 134 As will be shown in the next section, however, the constitutional difficulties created by special protection for religion militate against the conclusion that special treatment for religion is constitutionally compelled.

III. THE ARGUMENTS AGAINST THE CONSTITUTIONALLY COMPELLED FREE EXERCISE EXEMPTION

A. Avoiding The Sincerity and Definition Inquiry

Creating constitutionally compelled exemptions under the free exercise clause necessitates inquiry into the sincerity and religiosity of the religious claim. This inquiry poses its own threat to religious values. 135 On the other hand, abandoning the free exercise exemption obviates the need for defining religion in free exercise cases 136 and wholly avoids judicial inquiries into sincerity, except in cases involving legislatively created exemptions. 137 Avoiding religious inquiry thus promotes religious liberty.

The problems inherent in defining religion and the harms definition creates for free exercise purposes are, of course, apparent. As Professor Stanley Ingber has argued:

The danger in defining religion lies in the possibility of violating the very purpose of the religion clauses by proposing a definition that excludes non-traditional religious beliefs from the ambit of the first amendment. To define religion is to limit it . . . . [A]ny attempt to fulfill this mandate risks a delineation of a religious orthodoxy. 138

This exclusion of non-traditional beliefs is one of the most serious threats to religious values. As Justice Stevens has argued, evaluating the merits of religious claims creates “[t]he risk that government approval of some and disapproval of others will be  [387]  perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.”139 Stevens’s position is supported by two of the Court’s most famous pronouncements on the illegitimacy of legal determination of orthodoxy. In Watson v. Jones, 140 the Court stated that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” 141 In West Virginia State Board of Education v. Barnette, 142 it declared, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 143

Similar problems exist with sincerity. If protection of religious practice means anything, it means that the government cannot reject as false particular religious creeds. Yet how can one judge the sincerity of an individual’s belief without judging the reasonableness of the belief? As Justice Jackson argued in United States v. Ballard, the problem is essentially insoluble. 144

Moreover, there is difficulty even in the act of inquiring into an individual’s religious beliefs, since such an inquiry raises the troublesome spectre of state inquisition into religious motivation and governmental attempts to impeach professed religious convictions. According to Chief Justice Warren: “[A] state-conducted inquiry into the sincerity of the individual’s religious beliefs [is] a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees.” 145

It is, thus, not an overstatement to suggest that avoiding the sincerity and religiosity inquiries might alone support abandoning the free exercise exemption. When one combines the possibility that any activity could potentially be characterized as religious with the conclusion that there are no appropriate ways to distinguish legitimate from illegitimate religious assertions, the case against expanding free exercise protection becomes more compelling. 146 Indeed, this concern alone has motivated Justice Stevens  [388]  to suggest placing a virtually “insurmountable burden” on the free exercise claimant seeking an exemption from a neutral law of general applicability. 147

More interestingly, this concern with extensive inquiries into religious beliefs has led some of the strongest proponents of expansive free exercise protection to offer surprisingly limited standards for religious claims to special exemption. Professor McConnell would vindicate such claims primarily when the state has already employed a mechanism for “case-by-case determinations of a subjective nature by responsible officials, or [when] the religious accommodation can be reduced to a simple objective rule that can be administered at the operational level.” 148Concern for the sincerity and religiosity issues has led Professor Lupu to construct a threshold inquiry into what constitutes a burden on free exercise, in part, to weed out free exercise claims before reaching the sincerity and religiosity determinations. 149 Professor Pepper refuses to shy away from the sincerity inquiry but ultimately adopts a definition for deciding what qualifies as “religion” that expands the understanding of “religion” to protect “a core area of liberty” termed “conscience.” 150 The merits of these positions will be discussed below. 151 The point is that even free exercise exemption advocates recognize that powerful arguments in favor of the protection of religion and religious belief support the elimination of the constitutionally compelled free exercise exemption.

B. Elimination of Favoritism for Religious Belief and Exercise

The second argument against the free exercise claim for exemption is that it seeks a favoritism for religion that itself raises serious constitutional concerns. The concern with such favoritism is most evident when the exemption sought is from regulatory measures that directly affect the dissemination of ideas. The exemption of religious proponents vests them with a distinct competitive advantage over their secular counterparts. For example, assume a rule that restricts all solicitations at a state fair to fixed-booth  [389]  locations. 152 If a religious organization, because of the religious belief of its members, is exempted from the rule and accordingly is allowed to engage in unrestricted face-to-face solicitation, it will be better able to raise money, expound its philosophy, and seek converts than will the non-religious groups that remain restricted to fixed locations. Thus, given a religious and a secular organization of similar size and budget, the exempted religious group will be better placed than its secular counterpart to raise funds and exert its influence — a significant advantage given the Supreme Court’s canon that “money is speech.” 153 The special exemption, in effect, grants to those advancing religious views more power than their secular counterparts.

This favoritism toward religious organizations, of course, violates the central principle in speech jurisprudence that every idea has equal dignity in the competition for acceptance in the market-place of ideas. 154 Providing greater protection for religious speakers suggests, in direct opposition to this principle, that there exists a constitutional hierarchy in which religious ideas occupy a higher position than secular ideas. This preferred status undercuts the “equal liberty of expression guaranteed by the first amendment.” 155

[390]  Not surprisingly, the Court’s reliance on equality-of-ideas notions has consistently led it to reject claims under the free exercise clause in circumstances where cognizable speech claims would be denied. 156 For example, in Prince v. Massachusetts, 157 in rejecting a claim for a greater right of free exercise, the Court had this to say:

If by this position appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First [Amendment] can be given higher place than the others. All have preferred position in our basic scheme. All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter’s prime place because they have unity in their human sources and functionings. Heart and mind are not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought. But in the everyday business of living, secular or otherwise, these variant aspects of personality find inseparable expression in a thousand ways. They cannot be altogether parted in law more than in life. 158

Speech clause problems, however, are not the only concerns. Favoritism for religious speech over non-religious speech is also antithetical to establishment clause policies. Singling out religion for special treatment raises establishment concerns in any case, but as the recent Texas Monthly case attests, the difficulty is exacerbated when the special treatment concerns speech. 159 Part of [391]  the underlying theory of freedom of speech is that it creates the discourse necessary for self-government. 160 The establishment clause, however, imposes a unique limitation on direct religious influence over government that does not apply to non-religious sources. 161 Although religion undoubtedly should play a part in the political process, 162 it is untenable to assert that religion ought  [392]  to have special advantage in the public debate. Giving a competitive advantage to religious speech in the marketplace of ideas and in the discourse that leads to self-governance turns the establishment clause on its head.

Perhaps because of the speech and establishment clause problems, the consensus is that when speech and religion overlap, special protection for free exercise claims need not be maintained.163 The primary concern is what is to be protected. Yet, to find the scope of free exercise broader than the scope of free speech ultimately leads to the same kinds of concerns.

The Thomas case, for example, involved a person who objected to working in an armaments factory. 164 Because the person’s objection was based on religious belief, the Court found it constitutionally protected. The Court was equally clear, however, that if the claim were based on secular moral grounds, it would be denied. 165 But why should the objection on religious grounds to working in an armaments factory be entitled to constitutional protection, while an objection to the same work based on moral grounds be denied? A similar problem exists in Yoder. 166 Why should the Amish be exempted from Wisconsin compulsory school education while other groups that desire to have their children free of public school influence not be entitled to the exclusion?167

[393]  If only the religion claim is protected, religious beliefs are accorded a more favorable position in the constitutional hierarchy than are secular beliefs. However, as we have already seen, such a hierarchy is constitutionally suspect, since it denies religious and secular beliefs equal constitutional dignity. 168

Moreover, as with expressive religious activity, favored treatment raises concerns of political effect. Religious beliefs do not exist in a vacuum and, even when they are not political in themselves, they can evolve to political dimensions. 169 In addition to the obviously political and religious issues of abortion and capital punishment, consider also for example, as Professor Greenawalt has done, for example, the religious influence on such issues as animal rights and the environment. 170 Indeed, the infusion of religious beliefs into the political process is an important, necessary, and perhaps even unavoidable part of democratic decision-making. 171Similarly, as has been noted in civic-republicanism theory, religion and religious belief promote the values in the citizenry that are necessary for responsible public decision-making. 172 Religious belief, in short, cannot and should not be segregated from its political effect.

If this is so, however, then freeing religious exercise from neutral strictures gives religious beliefs an unfair advantage over competing value systems in the political marketplace. If religious beliefs are subsidized in a way secular beliefs are not (as in Thomas) or if they are insulated from the societal forces that routinely challenge any belief system (as in Yoder or as was requested by the plaintiffs in Mozert v. Hawkins County Board of Education, 173 the public school textbooks case), they become reinforced  [394]  with an artificial vitality. This favoring of religious ideas runs counter to both establishment clause concerns with religious domination of the political process and speech clause concerns with the need for equality in the marketplace of ideas.

Finally, the creation of constitutionally compelled protection for religious beliefs is also problematic because it judicially legitimizes the religious belief in comparison to the non-religious. The moral authority of the Court is placed, in effect, behind the religious belief. 174 In defending special free exercise protection, Professor Ira Lupu has stated the issue well: “Free exercise exemptions from general regulatory statutes are a form of constitutional tribute to individual acts of faith.”175 Lupu makes the statement approvingly; however, the claim that religion merits special tribute seems ill-founded in light of establishment and equality-of-ideas concerns. This claim also appears to contradict the seminal principles announced in Watson v. Jones 176 and West Virginia State Board of Education v. Barnette. 177 Since the law cannot promote orthodoxy in the truth of belief, so it would seem, the law should not support orthodoxy in the type of belief.

C. Doctrinal Concerns

Abandoning the free exercise claim for exemption is also supported by doctrinal concerns. As we have seen, the Court’s attempts to grapple with Sherbert’s doctrinal support of exemptions have been chaotic. 178 The reason for this may be that doctrinal inconsistency is an inevitable product of the Sherbert methodology. As Justice Scalia has explained, the systematic use of a compelling interest test, taken seriously, would necessarily create havoc in a society comprised of diverse religious beliefs. 179 It is  [395]  therefore not surprising that the cases have commonly denied free exercise relief even while ostensibly applying Sherbert’s standards.

Certainly, doctrinal clarity is not an end in itself and should be abandoned if the doctrine in question does not adequately serve its purposes. However, the argument that free exercise claims for exemption should be denied and relief granted solely under the speech clause does not seriously limit protection of free exercise activity. The most stringent constitutional standard of review, after all, is the one applied in speech cases. 180

Any curtailment in the protection of religious exercise under this theory would occur only in thescope of which activities are covered. Even here, however, it is important not to overstate the significance of the exclusion. As we have seen, protection for religious liberty has been quite extensive under the speech clause, encompassing essential forms of religious exercise such as prayer, proselytism, and even some forms of religious conscientious objection. 181 Moreover, other claims that have been litigated exclusively as free exercise cases might easily be construed as involving protected speech activity as well. For example, in Bob Jones University v. United States, 182 the petitioners’ claim that they should be entitled to tax-exempt status parallels the speech claim of the taxpayer in Speiser v. Randall, 183 who successfully argued that he could not be denied favorable tax treatment simply because he did not sign a loyalty oath. Simcha Goldman’s 184 claim that his religious principles required him to wear religious headgear while serving in the military might have been successfully characterized as speech. 185 In Tinker v. Des Moines Independent Community School District, 186 the Court even recognized a student’s decision to wear black arm bands as a mode of free expression.

Of course, the fact that potential free exercise claims can be  [396]  recharacterized as speech claims does not mean that they will be successful. A military officer who chose to wear a black arm band as a protest against war would probably not be entitled to an exemption from uniform requirements. The critical point, to repeat, is that the breadth of religious activity covered under the speech clause is already expansive and to a large degree includes the core of religious exercise. It is therefore only a modest loss in the scope of protection for religious activities that need be measured against the gains created by avoiding the problems inherent in exempting only religious activity.

It is even possible that some loss in the scope of protection could be remedied by an expansion of the parameters of the speech clause. Such expansion, however, even if moderate, is, as Professor Tushnet asserts, unlikely given the current composition of the Supreme Court. 187 Yet, since much of religious ritual is intended to convey ideas, it would not be too radical a step to protect such activity as symbolic speech. 188 Similarly, protection for the conscientious objection of both religious and non-religious persons could be realized under existing speech precedent. 189

[397]  Nevertheless, even if freedom of speech were expanded, activities protected under this expansively interpreted clause would not necessarily lead to the same protection in result as if only religious exercise were protected. This is because the greater the range of activity for which constitutional protection is sought, the greater becomes the state interest in restricting that activity. 190 For example, although a state’s interest in preventing overcrowding or fraud might not be severely compromised by the existence of eighteen members of a religious sect engaging in wandering solicitation at a state fair, its interest would be seriously compromised if those allowed to engage in that activity included all persons representing other groups protected by the speech clause, including political parties, other religions, and social-advocacy groups. 191 A court would, therefore, be more likely, when faced with the smaller class containing only religious claimants, to invalidate the state restriction.

However, this consideration only points to another of the many absurdities created by the free exercise exemption. The conclusion that a right to engage in a religious activity is more likely to prevail in the balancing equation when it implicates only free exercise (and not speech) leads to a startling conclusion: Because activities at the core of religion, such as prayer, worship, and the dissemination of ideas, are expressive, 192 they are less likely to be constitutionally vindicated under the current balancing test than are non-expressive activities of the periphery of religion.193 There  [398]  is no coherent purpose served by this result. 194

D. Legislative Exemptions for Religion — A Cautionary Note

The previous section demonstrates that establishment and speech concerns lead to the rejection of the constitutionally based free exercise exemption. It therefore raises the issue of whether legislative exemptions for religious activity are unconstitutional as well. 195 Although this Article does not attempt to provide an indepth analysis of the constitutionality of legislative exemptions, a brief response to the contention that a rejection of constitutionally based exemptions requires invalidation of legislative religious exemptions is in order.

The first issue centers on establishment. The arguments against constitutionally compelled free exercise exemptions depend, in part, on anti-establishment policies. These arguments do  [399] not, however, call for the invalidation of legislatively created exemptions under the establishment clause. In certain cases, establishment clause concerns might inform free exercise analysis and, conversely, free exercise concerns may inform establishment analysis without either provision being violated. Professor McConnell is correct when he asserts that there is room between the two clauses for permissible government action. 196 Moreover, the establishment inquiry asks a very different question than does free exercise; specifically, establishment asks whether the challenged government action connotes the endorsement of religion. 197 Legislative exemptions from certain types of regulation do not imply this endorsement as readily as do affirmative grants or subsidies. 198

This is not to suggest that legislative exemptions should be immune from establishment clause review. The Court has indicated, for example, that an “unyielding weighting” of a state provision in favor of religion may raise establishment concerns. 199 Statutory exemptions from regulations directly affecting the dissemination of ideas or otherwise allowing religious groups to disproportionately extend their “worldly influence” may also be particularly suspect under establishment analysis. 200 These establishment  [400]  limitations on legislative exemptions exist, however, irrespective of the specific arguments advanced in this Article.

The conclusion that free exercise is not independent from speech has more serious implications for review of legislative exemptions under the speech clause. If religious activity is speech, favorable treatment for religious activity would presumably violate the content-neutrality requirements of the speech clause. For example, if the hiring and firing of employees is considered symbolic speech, the Title VII exemption from liability of religious employers in certain hiring and firing decisions could be construed as a content-based regulation. The Title VII exemption might, therefore, be unconstitutional under the speech clause, despite being constitutional under the establishment clause. 201

On the other hand, this concern may be overstated. There is no absolute prohibition against statutorily exempting certain speech from government restrictions on expression. For example, inRegan v. Taxation With Representation of Washington 202 the Court held that the exclusion of tax-exempt veterans’ organizations from the lobbying restrictions imposed on other tax-exempt organizations was not an invalid, content-based regulation, even though the exemption, in effect, granted the veterans’ groups a lobbying subsidy. 203 A similar theory could be developed to support some legislative exemptions for religion.

IV. THE SOLUTIONS OF THE COMMENTATORS: HOW LITTLE THE DIFFERENCE?

Perhaps the strength of the argument against the constitutionally compelled exemption is best judged by comparing it with the proposals of those who are more favorable to the free exercise claim for exemption. Particularly interesting is that a substantial  [401]  difference in theory has not led to a substantial difference in result.

To be sure, most commentators, although critical of a minimalist free exercise approach, offer no methodology for deciding free exercise claims. 204 Some have proposed a unitary inquiry for free exercise and establishment, but in their efforts to provide a broad theoretical understanding of the religion clauses, they have left the issue of free exercise exemptions largely unaddressed.205 Professors McConnell, Pepper, and Lupu do provide solutions, but on close inspection their solutions are not significantly different from the current jurisprudence or, indeed, from the free exercise as expression thesis.

Concerned about the threat to religious values posed by governmental inquiry into sincerity and definition, Professor McConnell posits that religious exemptions should be recognized in cases where the government is already reviewing claims on a case-by-case basis:

When decisions must be made quickly, authoritatively, and even-handedly by operational personnel, the government may be entitled to resist interposing requirements of religious accommodation. But when decisions already involve case-by-case, subjective considerations, there should be little procedural objection to requiring the government to take religion into account as well. 206

Certainly McConnell’s distinction does help explain why religious claims were upheld in the unemployment compensation cases 207 while denied in other cases, such as the military uniform case of Goldman v. Weinberger. 208 In the unemployment compensation cases, the state was involved in discretionary decision-making, while in cases such as Goldman it was not.

Nonetheless, why is the threat to religious liberty any less serious when sincerity and definition determinations are made by an individual accustomed to other types of discretionary decision-making than it is with persons “who otherwise . . . exercise little  [402]  discretion to make ad hoc judgments?” 209 McConnell argues that the judgments of the latter would likely be the product of highly subjective perceptions and therefore insufficiently sensitive to the needs and practices of unfamiliar religious faiths. The experienced decision-maker would be in a dissimilar position. 210 Yet, it seems questionable that an unemployment benefits official trained in deciding what constitutes a valid secular reason to be unavailable for work would be able to evaluate, for either sincerity or religiosity, a claim such as that advanced by Eddie Thomas, that his religious conviction forbade him to work in an armaments factory. An unemployment benefits officer and any official unaccustomed to discretionary decision-making would probably be equally incompetent to judge either the sincerity or the religiosity of Thomas’s claim.

Professor McConnell does not limit the situations in which free exercise claims for exemptions should be recognized to cases involving pre-existing procedural mechanisms for case-by-case determinations. He states that “in some instances the religious claim for exemption will be so strong that the government may be required to establish procedures for its protection.” 211Nevertheless, it is clear that the primary mechanism McConnell employs to avoid the definition/sincerity dilemma prevents significantly expanded notions of free exercise protection. Moreover, even his modest proposal does not avoid the inquiries acknowledged as threatening to religious liberty interests.

Professor Pepper, on the other hand, is less deterred by the threats to religious liberty that the inquiry into sincerity and definition creates. He argues that, in order for free exercise to be taken seriously, the sincerity inquiry must also be taken seriously. 212 There is some question, however, whether Professor Pepper’s sincerity inquiry is workable. 213 Justice Jackson’s dissent in [403]  Ballard, in which he questioned the possibility of making any judgments about religious sincerity without also making judgments about religious credibility, still rings true. 214 How can one evaluate the sincerity of a religious claim without evaluating its believability, and if the inquiry into believability is prohibited by the religion clauses, how can one question sincerity at all? Even more important for present purposes, however, is how Professor Pepper would deal with the definition of religion. His response, motivated in part by the “secularization of society,” is to create a generalized protection for conscience, including matters of conscience that are beyond religious derivation. 215 Professor Pepper, in short, agrees with the central contention of this Article: that religious and non-religious rights should be treated equally. He would simply protect non-religious activities through the free exercise clause. Perhaps the difference between the approach advocated by Professor Pepper and the one advocated here is merely a matter of semantics.

Professor Ira Lupu has also advanced a theory worth noting at this point. Lupu’s theory primarily addresses the burden inquiry in free exercise analysis and not the constitutionally compelled free exercise exemption itself. 216 However, since his position implicitly accepts the propriety of the exemption, it sheds light on some of the relevant issues.

Indeed, Professor Lupu begins with one of the central contentions set forth here: The religiosity and sincerity inquiries required in free exercise analysis are highly problematic and potentially threatening to religious values. 217 In fact, his proposal of a threshold burden inquiry is primarily designed to minimize the need for the religiosity and sincerity inquiries.

Specifically, Lupu’s proposal is that the inquiry into whether religious exercise is burdened by government action is best accomplished by reference to common law principles rather than to independent  [404]  religious determination. 218 Courts will be asked to ascertain whether the government action infringes on religious exercise by examining the infringement according to common law constructs. Thus, for Lupu, Lyng 219 is an example of a case where a common-law burden might exist because the Indians in that case had presumably developed a common law analog to an easement on the government property in question. 220 As applied, then, the common law principle becomes “a religion-neutral veil behind which judges in free exercise cases can assess burdens on religion from a more objective vantage point than is otherwise available.”221

Interestingly, Lupu does not seriously dispute that his position “may coincide only roughly and fortuitously with our intuitions about what kinds of government intrusions upon religion are most severe or troublesome.” 222 Nor does he argue why possibly fortuitous claims should be entitled to special and even unique exemption. Rather, instead of a claim for favoritism, Lupu’s position is ultimately based on the conclusion, wholly accepted here, that existing free exercise methodology should be replaced with a more workable and less manipulable approach. 223

V. FAILURE TO TAKE RELIGION SERIOUSLY

At this point, a reader unfamiliar with the literature might be perplexed: If both sides of the free exercise debate agree 1) that the breadth of religious activity currently protected outside the free exercise clause is extensive, 2) that there are problems in either allowing or disallowing the free exercise, constitutionally compelled claims for exemption, and 3) that the results that would be achieved under the competing proposals are not dramatically different, then what is all the fuss about? Why is the debate over free exercise rights so strident?

The answer appears to be that the disagreement is not with  [405]  the free exercise clause at all, nor is it with the constitutionally compelled exemption. Rather, the basic dispute concerns the manner in which existing constitutional law treats religious claims. Critics contend that the current jurisprudence and the approach advocated here are, in essence, antagonistic to religion. 224 If the results in the cases have been criticized as not taking free exercise seriously, then the jurisprudence as a whole has been accused of not taking religion seriously. Purportedly it has failed to incorporate a religious, as opposed to a secular, understanding of religion into its methodology.

There are three manifestations of this criticism. One is that contemporary constitutional theory rejects religion because it sees religion as irrational. 225 A second is that it rejects religion because constitutional theory is individual-rights oriented, while religion is communal. 226 A third is that constitutional theory has failed to accept religion on the latter’s own terms because constitutional theory is based upon notions of freedom of choice, while religion is based upon notions of absolutism and obligations to a transcendent authority, notions which deny the right to choose any competing value systems. 227

There is anger in these criticisms. By treating religion as simply one form of belief, by failing to take religion on its own non-rational terms, liberal constitutional theory, according to the critics, has held religion in contempt. Professor Carter states this attack most strongly in connection with his claim that liberal constitutional theory rejects religion as irrational:

It is [the] intuition — the understanding that religion and reason exist in tension with one another — which bottoms the liberal discomfort from public religious argument. In the end we  [406] come back to the beginning; those who believe that God can heal disease are dangerous primitives. They are primitive because they do not celebrate reason as the path to the knowledge to the world. They are dangerous because if they do not celebrate reason, they may not be amenable to reason, and anyone not amenable to reason is a threat to liberal society. 228

Unfortunately, some needless objection to religion has been set forth in the religion clause jurisprudence. The suggestion in some establishment clause cases 229 and some commentary230 that religion must stay out of politics and public life seems inappropriate, if not impossible.231 Similarly, the underlying premise in the parochial-aid cases, that teachers in religious schools are incapable of teaching secular subjects without inculcating religious values, is particularly unfair. 232 Nevertheless, it is a mistake to ascribe a restrictive view of the legitimacy of the free exercise exemption to hostility towards religion.

First, the argument that constitutional theory rejects religion because of the latter’s supposed irrationality is simply a red herring. A great deal of irrational activity has been protected under the constitution, including that so-called model of rationality, the speech clause. Paul Cohen’s statement on the back of his jacket, for example, was not a form of logical discourse. 233 The protecting of intimate association under the due process clause is also a tribute  [407]  to the constitutional acknowledgment of the value of the non-rational aspects of human life. 234

More importantly, constitutional theory does not blindly accept secular positions as based on reason, nor does it blindly reject religion as based on non-rationality. The two spheres are not mutually exclusive. 235 Rationality does not end where religion begins, nor does rationality begin where religion ends. Indeed, as noted above, first principles, including the notion that reason can be used to solve human problems, are based on their own non-rational beliefs and a prioriassumptions. 236 I personally find the assumption that currently underlies the economic analysis of law, that “man is a rational maximizer of his self-interest,” 237 to be one of the great irrational leaps of faith of the twentieth century.

What is true, as Professors Gedicks and Hendrix claim, is that the languages of law and religion are incongruent. Law’s language of “objectivity, rationality, and empiricism” is not compatible with religion’s language of “faith, belief, and divine judgment.” 238 However, the inability to capture the essence of religion in a logical medium is not hostility to religion; rather, it is the inevitable result of placing any non-rational belief system, religious or secular, into a rational process. 239

The contention that free exercise jurisprudence demonstrates the inability of constitutional law to come to grips with non-individualistic values is perhaps partially correct, but, in any event, essentially misses the point. Constitutional theory has had difficulty providing a framework within which communal rights can be protected. 240 However, free exercise is not the only area in which this has occurred and, indeed, it is not accurate to place free exercise rights solely in the communal-rights camp. Religious exercise is often individualistic, 241 and non-religious value systems  [408]  and beliefs are often communal. 242 More importantly, the non-individualist criticism strays far from the attack on the rejection of the free exercise exemption. Even if the jurisprudence unduly minimizes communal rights, the question remains why religious, and only religious, groups or individuals should be entitled to exemption.

The critics are correct, however, when they contend that constitutional law does not recognize religious claims, or at least the claims of some religions, 243 to transcendent authority. Constitutional law does not recognize that to some religious adherents, religious beliefs are not products of individual choice, but are absolute truths imposed by an external authority. Liberal constitutional theory, in short, treats religion as simply another belief system. As Professor Michael Smith writes, “[t]he very propensity to identify freedom of religion with freedom of speech implies that religion is primarily a secular activity. It assumes that thought and expression, whether in the realm of politics, science or religion, are basically alike.” 244

The mistake, however, is to view this treatment as pejorative. Constitutional theory protects freedom of choice by assuming that there are a number of belief systems that an individual may adopt and that the individual is free to choose among the competing systems. Liberal constitutional theory recognizes the possibility that any one of the belief systems may be true, but because its underlying theory is based on possibility rather than authority, it cannot treat any particular system as the Truth. 245 Thus, liberal theory reacts to the belief of the religious adherent as if that individual chose her particular belief system rather than having had the [409]  truths and obligations of that belief system imposed upon her by transcendent authority.

This approach necessarily creates a tension between liberal constitutional theory and religion (or at least some religion). Liberal constitutional theory treats religious belief as a function of individual choice, while some religion treats religious beliefs as “externally imposed upon the faithful.” 246 That liberal constitutional theory resolves this tension in favor of itself, by assuming that an individual’s beliefs are the product of choice and not of externally imposed authority, is not indicative of hostility. An approach which treats religious beliefs as equal to non-religious beliefs cannot be characterized as hostile to religion; there is no antagonism in equal treatment.

Moreover, the hostility argument loses its force because it cannot seriously be contended that either the Court’s current approach or a speech methodology is non-protective of religious values.247 The constitutional standard applied in speech cases is, after all, the Court’s most stringent.248 The reluctance to inquire into sincerity and religiosity is also based on concerns protective of religious values. 249

Additionally, although reliance on assumptions of individual choice may at some level conflict with absolutist understandings, one should not forget that principles of individual choice and religion are not always antithetical. Indeed, as Professor Giannella has argued, the protection of rights of choice benefits religion:

The growth and advancement of a religious sect must come from the voluntary support of its membership. Religious voluntarism thus conforms to that abiding part of the American credo which assumes that both religion and society will be strengthened if spiritual and ideological claims seek recognition on the basis of their intrinsic merit . . . the free competition of faiths and ideas is expected to guarantee their excellence and vitality to the benefit of the entire society. 250

[410]  It may be, however, that the reason liberal constitutional theory rejects absolutism in favor of its own methodology is more fundamental. Religious issues must be decided according to the methodology of constitutional theory because, after all, it is the constitutional issues involving religion that are being decided. Logically, for a constitutional theory based on freedom of choice to advance absolutism would be to deny itself. All liberal theory can do is recognize the varieties of beliefs and protect the rights of anyone who chooses to pursue a particular mode of belief, including an absolutist one.

The foregoing, of course, is no surprise to the critics. Indeed, it is their central contention. They would argue, however, that if liberal constitutional theory subordinates a religious understanding to, or exorcises it from, its treatment of religious cases, the methodology must be abandoned in favor of one more sympathetic to religious values.

The easy answer to this criticism is that liberal constitutional theory may have its deficiencies, but at least it provides a mechanism for deciding cases. Opposing methodologies have yet to offer solutions for deciding particular disputes.

The second response is a repetition of what has already been stated in this section: A methodology based upon the assumption that individual-choice theory is highly protective of religious activity and voluntarism itself may be beneficial to the development of religion. Religion may be critical of liberal constitutional theory’s methodology, but it cannot be overly antagonistic to its results. Indeed, as to this latter point, it might be noted that, although the pressures of so-called secularism have increased in this century, participation in religion remains particularly robust. 251

Finally, the claims of hostility to religion miss the mark because they ignore the fact that the rejection of the absolutist understanding of religion in favor of individual choice is itself deeply rooted in religious principle. Critics of the constitutional methodology have argued that the liberal state should defer to religion because religion seeks a Truth that is transcendant and because the possibility exists that a religious belief system reflects a transcendent  [411]  truth. 252 This position suggests that it would be consistent with the liberal understanding to grant deference to belief systems that are possibly True. Yet, if there is true knowledge, there must also be false knowledge, and if the state should defer to the possibility of higher Truth, this goal may best be served by supporting notions of individual freedom rather than claims of externally imposed duties. Even though it is theologically controversial, one must not dismiss the argument that even if it does not reflect the religious absolutist’s understanding of religion, liberal constitutional theory reflects a profoundly religious understanding of the search for Truth; specifically that the search must be a product of man’s freedom rather than of his obligation. 253 Therefore, it is not anti-religious secularism to contend that the Constitution protects only freedom of religion and that the protection of religion itself, like the protection of any belief system, religious or secular, true or false, is only derivative.

CONCLUSION

The Supreme Court’s efforts to construct a free exercise analysis which allows for the creation of constitutionally compelled free exercise exemptions have been unsuccessful. The cases have been inconsistent, the results troubling, and the methodology confused.

The difficulties within the free exercise jurisprudence, however, are not only methodological. The maintenance of the free exercise exemption does not intelligibly, or even stringently, protect religious values and religious liberties. Indeed, by requiring investigation into definitions of religion and sincerity of religious claims, the exemption is counterproductive to religious values.

Most importantly, however, the constitutionally compelled free exercise exemption sets forth a false dichotomy between secular and religious belief systems and ignores the similarity of their functions and effects in the political and social environment. By preferring religious belief systems over all others, including philosophical, moral, and political belief systems, this exemption offends the equality-of-ideas notion that is at the core of constitutional  [412]  law. For this reason alone, the argument for constitutionally compelled free exercise exemptions should be rejected. Rejecting constitutionally favored treatment for religion will assure that one type of belief system is not artificially and unalterably fortified to the detriment of another.

Copyright (c) 1990 Case Western Reserve Law Review.
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