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.
Case Western Reserve University
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