Amicus Curiae Brief — City of Boerne v. Flores

ee,

Pay, Supreme Goart, U.S,

NZ / FILED

No. 95-2074 Phen otis |

In the Supreme Court of the United in ea a |

Se ee me

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

BRIEF FOR THE UNITED STATES CATHOLIC

CONFERENCE, THE EVANGELICAL LUTHERAN

CHURCH IN AMERICA, THE ORTHODOX CHURCH

IN AMERICA, AND THE EVANGELICAL

COVENANT CHURCH AS AMICI CURIAE IN

SUPPORT OF THE RESPONDENT

Of Counsel: MICHAEL W. MCCONNELL

MARK E. CHOPKO 345 S. University Street

JEFFREY HUNTER MOON Salt Lake City, UT 84112

U.S. Catholic Conference (801) 581-6342

3211 4th Street, N.E.

Washington, DC 20017 Counsel of Record

(202) 541-3300

ee —— > -_——— ee (eye,

7 BEST AVAILABLE COPY’

QUESTION PRESENTED

Whether the Religious Freedom Restoration Act is a facially valid

exercise of congressional power to enforce the Fourteenth

Amendment.

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE .......---- 1

SUMMARY OF ARGUMENT ....--------->: 1

I Gu ctucacetececeeetveses 1

I. The Language Of The First Amendment Does

Not Support The Contention That The Protections

Of Free Exercise Are Confined To Discriminatory

OTD OO ne eat ee 2

II. RFRA Is Consistent With The History And

Early Interpretation Of Free Buerciseo .......--: 5

A. The Framers And Ratifiers Did Not Under-

stand Free Exercise To Protect Only

Against Laws Specifically Targeted At

| ee SE re Pe 5

B. Between The Bill Of Rights And The Civil

War, Judicial Interpretations Of The

Free Exercise Principle Were Divided... . 19

c. The Framers And Ratifiers Of The Four-

teenth Amendment Understood It To Extend

To Laws Of General Applicability ...... 23

III. RFRA Is Consistent With The Great Majority Of

This Court’s Precedents Interpreting The Free

Exercise Clause... .--.- eee eee reer erreee 26

COMICTTISIONM oc ce ew ee cere eee cees 30

-jv-

Page

Cases

Braunfeld v. Brown, 366 U.S. 599

EE 6 65 6 eee eee ee oe awe eee 28, 29

Church of the Lukumi Babalu Aye v. Hialeah,

See Whe See ia as oe CRB 29

Commonwealth v. Cronin, 1 Quart. L. J. 128

a 0 sk ear 22

Commonwealth v. Drake, 15 Mass. 161 (1818) ..... 21

Commonwealth v. Wolf, 3 Serg. & Rawle 48

Sb BOSD Ad a COP OR a MUR BS Ss eK 21

Davis v. Beason, 133 U.S. 333 (1890) .......... 27

Eakin v. Raub, 12 Serg. & Rawle 330 (Pa.

SD We ve Es 4 etree PO «oo Ba 21

Edwards v. Aguillard, 482 U.S. 578 (1987) .... 29, 30

Employment Division v. Smith, 494 U.S. 872

eee -6 aa So 6 ee ee oe are eh ox passim

Hamilton v. Regents, 293 U.S. 245 (1934) ..... 27, 28

Lyng v. Northwest Indian Cemetery Protective

Association, 485 U.S. 439 (1988) ........... 3

McGowan v. Maryland, 366 U.S. 420 (1961) ...... 29

-\V-

TABLE OF AUTHORITIES

(continued)

Page

Minersville School District v. Gobitis, 310

I ord cee ere Mie ob: 6 eee 26

Morales v. Trans World Airlines, Inc., 504 U.S. 374

CR. k Be wAs feib se kiwis Ow 8 3

People v. Christian Smith, 2 City Hall Recorder

GD -F0-e. Ba SOREN VE i568 ec ees Kau 20

People v. Philips, Court of General Sessions, City

of New York (June 14, 1813) .......... 19, 20

Permoli v. Municipality No. 1, 44 U.S. (3 How.) 588

TT Ss Fe SC ee i ee eee ie 19

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .. 3

Prince v. Massachusetts, 321 U.S. 158 (1944) ... 27, 29

Reynolds v. United States, 98 U.S. 145 (1878) ... 2, 27

San Diego Building Trades Council v. Garmon, 359

Se EE 6 kn Pe a oo ah. 0 ae ee eo 3

Sherbert v. Verner, 374 U.S. 398 (1963) ......... 29

Simon’s Executors v. Gratz, 2 Pen. & W. 412 (Pa.

oe be ele Ba ee ee Ee 21

Specht v. Commonwealth, 8 Pa. 312 (1848) ....... 22

Stansbury v. Marks, 2 Dall. 213 (Pa. 1793) ....... 21

-Vi-

TABLE OF AUTHORITIES

(continued)

Page

State v. Willson, 13 S.C.L. (2 McCord) 393 (1823) .. 23

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ... 29

The Late Corporation of the Church of Jesus Christ

of Latter-Day Saints v. United States, 136

U.S. 1 Qa i i es eT AS 27

United States v. MacIntosh, 283 U.S. 605 (1931) . 27, 28

United States v. O’Brien, 391 U.S. 367 (1968) ..... 4

West Virginia Bd. of Education v. Barnette, 319 U.S.

G56 CIDR) onc OVE SN ERS Ev a ea 26

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 8

Wisconsin v. Yoder, 406 U.S. 205 (1972) ......... 29

Other Authoriti

ANNALS OF CONGRESS 451 (J. Gales, ed. 1834) ..... 6

Aynes, Richard L., On Misreading John Bingham

and the Fourteenth Amendment, 103 Yale L.J.

Jt CFRPSR 0-00 00006 eee eee 24

Bradley, Gerard, Beguiled: Free Exercise Exemptions

and the Siren Song of Liberalism, 20 Hofstra L.

Rev. SS GF) cieceevere wee evenereen 6

_____________e“O

-Vii-

(continued)

Page

Cobb, Sanford, THE RISE OF RELIGIOUS LIBERTY IN

AMERICA (1902) ....--- eee errr rrrtee 17

Cong. Globe, 42d Cong. (1871-1872) .....----- 24-26

THE DEBATES IN THE SEVERAL STATE CONVENTIONS

ON THE ADOPTION OF THE FEDERAL CONSTITUTION

334 (J. Elliot, 2d ed. Pn <¢aeveenanws 4 5

Durham, W. Cole, Jr., Religious Liberty and the Call

of the Conscience, 42 DePaul L. Rev. 71 (1992) . 6

Extracts from the Original Reports of the Revisers,

REVISED STATUTES OF THE STATE OF NEW

WORK (1GBG) 2 ccc ccc ec wocversccess 20

Hamburger, Philip 4., A Constitutional Right of

Religious Exemption: An Historical Perspective,

60 Geo. Wash. L. Rev. 915 (1992) ....--.- passim

Johnson, Samuel, A DICTIONARY OF THE

ENGLISH LANGUAGE (1755, reprinted a

JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789

(W. Ford, ed. 1905, photo. reprint 1968) ...... 11

Kmiec, Douglas W., The Original Understanding of

the Free Exercise Clause and Religious Diversity,

59 UMKC L. Rev. 591 (1991) ...--- +++ 6

-Vili-

TABLE OF AUTHORITIES

(continued)

Page

Lash, Kurt T., The Second Adoption of the Free Exer-

cise Clause: Religious Exemptions Under the Four-

teenth Amendment, 88 Nw. U. L. Rev. 1106

CRED 4. 4 we © 6 luveteie ee bic een eee eee 23-25

Lincoln, Charles Z., THE CONSTITUTIONAL HISTORY

OP Pee Ce oe es Oe BOGE Ses 16

Madison, James, THE WRITINGS OF JAMES MADISON

(Gaillard Hunt, ed. 1901) ......... 8, 9, 14, 22

Malbin, Michael J., RELIGION AND POLITIcs (1978). . 6

Marietta, Jack, THE REFORMATION OF AMERICAN

QUAKERISM, 1748-1783 (1984) ............ 8

McConnell, Michac! W., Originalism and the Desegre-

gation Decisions, 81 Va. L. Rev. 947 (1995) ... 25

McConnell, Michael W., The Origins and

Historical Understanding of Free Exercise

of Religion, 103 Harv. L. Rev. 1409 (1990) . passim

McLoughlin, William G. NEW ENGLAND DISSENT,

SO eee Ca ree oe 6 HSS RE CRN Be 7

Penn, William, The Great Case of Liberty of Conscience,

in | A COLLECTION OF THE WORKS OF WILLIAM

PENN 457 (London 1726, photo. reprint 1974) ... 7

(continued)

Page

Poore, Benjamin, ed., FEDERAL AND STATE

CONSTITUTIONS, COLONIAL CHARTERS,

AND OTHER ORGANIC LAWS OF THE

UNITED STATES (1878) .--- secs 12

Pratt, John W., RELIGION, POLITICS, AND DIVERSITY:

THE CHURCH-STATE THEME IN NEW YORK HISTORY

PN Gs 1 vie ete seer rye The" 16

Sampson, William, THE CATHOLIC QUESTION IN

AMERICA (1813, photo. reprint 1974),

excerpted in Privileged Communications to

Clergymen, 1 Cath. Lawyer 199 (1955) ...- 19, 20

Washington, George, GEORGE WASHINGTON ON RELIGIOUS

LIBERTY AND MUTUAL UNDERSTANDING (E.

Humphrey, ed. 1932) ..-----ss scr 9

West, Ellis M., The Case Against a Right to

Religion-Based Exemptions, 4 Notre Dame

J. of Law, Ethics, and Public Policy 623

ca ean hes EOS REPT ETT 6

West, Ellis M., The Right to Religion-Based Exemptions

in Early America: The Case of Conscientious

Objectors to Conscription, 10 J. L. & Relig.

eae 10, il

Witte, John, Jr., The Essential Rights and Liberties

of Religion in the American Constitutional

Experiment, 71 Notre Dame L. Rev. 371

Ce diunrees ee res eee eee eS 6, ll

alin aaa ee

INTEREST OF THE AMICI CURIAE

These amici curiae represent diverse religious communities —

Catholics, Lutherans, Orthodox Christians and Evangelical

Christians — and agree that our Constitution provides affirmative

protection for religious exercise, not merely protection from

deliberate discrimination against religion. We believe therefore that

this Court’s contrary conclusion in Employment Division v. Smith

was flawed, and we urge the Court to find the Religious Freedom

Restoration Act (RFRA) constitutional. Through their counsel, the

parties have consented to the appearance of these amici.

SUMMARY OF ARGUMENT

The Constitution protects acts of religious exercise even when

they contravene neutral laws of general applicability. The text,

history, purpose, tradition, and precedent of free exercise

protection in this country all lead to the conclusion that the Free

Exercise Clause prohibits even generally applicable laws that

impose a substantial burden on the exercise of religion. Because

RFRA does no more than restate the import of the Free Exercise

Clause, this Court should uphold the law.

ARGUMENT

This case presents a substantial question under Section Five of

the Fourteenth Amendment only if the substantive requirements of

the Religious Freedor Restoration Act extend significantly beyond

those of the Free Exercise Clause itself. The purpose of this brief

is to show that the Free Exercise Clause is not confined to laws that

specifically target religious practice as such, but extends as well to

neutral laws of general applicability that impose a substantial

burden on the exercise of religion, contrary to this Court’s recent

ruling in Employment Division v. Smith, 494 U.S. 872 (1990). Any

Justice who agrees with this interpretation of the Free Exercise

Clause should vote to sustain the Act on that ground.

We will show that the great weight of the evidence — based

on the text, history, purpose, tradition, and precedent of free

exercise protection in this country — supports the broader

interpretation adopted by Congress in RFRA rather than the

narrower interpretation adopted for purposes of constitutional

judicial review in Smith. But it is not necessary to go that far. In

Smith, this Court was reviewing the act of a sovereign state, which

is entitled to the presumption of constitutionality. If the two

competing interpretations of the Free Exercise Clause were in

x,”

equipoise — each supported by substantial arguments based on text,

history, purpose, tradition, and precedent — the principle of

judicial restraint militated in favor of deferring to the legislature

and upholding the state law in Smith. In this case, however, the

Court is reviewing the facial constitutionality of RFRA; that Act of

Congress is now entitled to the presumption of constitutionality.

Under the same principles of judicial restraint that informed the

Smith decision, the Court in this case must resolve any doubts in

favor of the constitutionality of RFRA.

I. The Language Of The First Amendment Does Not

Support The Contention That The Protections Of Free

Exercise Are Confined To Discriminatory Laws

The Free Exercise Clause provides that “Congress shall make

no law * * * prohibiting the free exercise [of religion].” Reading

each of the key terms — “exercise,” “free,” and “prohibiting” —

in accordance with 18th century (as well as current) meaning, the

Clause is most naturally understood as protecting the exercise of

religion from ail forms of government hindrance or interference,

rather than as protecting the exercise of religion from

discriminatory acts only.’

“Exercise.” Despite intimations in earlier opinions,’ it is now

generally accepted that the Free Exercise Clause, by its plain terms,

extends to conduct as well as belief. “Exercise” means conduct —

“the performance of (or abstention from) physical acts.” Smith, 494

U.S. at 877; see Samuel Johnson, A DICTIONARY OF THE ENGLISH

LANGUAGE (1755, reprinted 1979).* Any interpretation that fails

' Much ink has been spilled on the definition of “religion,” but

that issue is not relevant to this case. The first word of the

Amendment, “Congress,” is also important, but after incorporation

through the Fourteenth Amendment, we will assume that this word

refers to all governmental actors.

2 E.g., Reynolds v. United States, 98 U.S. 145, 164 (1878).

* For a more detailed discussion of this point, see Michael W.

McConnell, The Origins and Historical Understanding of Free

Exercise of Religion, 103 Harv. L. Rev. 1409, 1488-1490 (1990).

&

to give protection to the “exercise” of religion is textually

indefensible. Yet there is serious danger that, if RFRA is held

unconstitutional, states will be able to evade the protections of the

Free Exercise Clause by casting their prohibitions in neutral form.’

“Free.” According to the leading dictionary of the day, the

term “free” means “[uJncompelled” or “unrestrained.” /d. Thus,

by the text of the Amendment, the exercise of religion must not be

“compelled” or “restrained” by the force of government. There is

no hint in any lexicographic source that “free” means “not singled

out” or “treated unequally.” It means not suffering from

governmental compulsion or restraint.

“Prohibiting.” The term “prohibit” is ambiguous in some

contexts, but it does not ordinarily connote discriminatory

treatment. Dr. Johnson’s dictionary offers the following definitions:

“1. To forbid; to interdict by authority * * * 2. To debar; to

hinder.” Jd. In conjunction with the term “free,” it thus refers to

any action of government that forbids or hinders the full and

unrestrained practice of religion. RFRA uses the term “burden,”

which seems roughly synonymous with “hinder.” There is no doubt

that petitioner in this case is attempting to “prohibit” Archbishop

Flores from taking actions he deems necessary and appropriate for

the worship of God.

4 See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386

(1992) (to confine preemptive effect of federal statute to laws

“specifically addressed to the airline industry” as opposed to “laws

of general applicability” would “creatfe] an utterly irrational

loophole”); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,

47-48 (1987); San Diego Building Trades Council v. Garmon, 359

U.S. 236, 244 & n.3 (1959).

5 An example of an ambiguous context is Lyng v. Northwest

Indian Cemetery Protective Association, 485 U.S. 439 (1988),

where the government’s action hindered or prevented, but did not

forbid or punish, religious conduct. For a more detailed discussion

of the original meaning of the term “prohibiting,” see McConnell,

Origins, at 1486-1488.

Xe

In sum, the most natural reading of the Free Exercise Clause,

as it would have been understood by the framers and ratifiers, is

that it applies to any law that hinders, proscribes, or restrains

religious conduct. See Smith, 494 U.S. at 893-894 (O'Connor, J.,

concurring). This is also its most natural meaning today. If a

zoning ordinance restricted land use in a particular neighborhood

to “residential uses,” and a client asked her lawyer whether an ice

cream shop would be “prohibited” there, the lawyer almost

certainly would answer in the affirmative. It would not matter that

the ordinance was not “specifically directed” (Smith, 494 U.S. at

878) at ice cream shops. Similarly, if there were a constitutional

provision stating that “Congress shall make no law prohibiting the

grazing of cattle on public land,” this provision would compel the

government to carve out an exception for cattle if Congress passed

a law reserving the public land for recreational purposes. By the

same token, if a dry county forbade the serving of alcoholic

beverages, this would “prohibit the exercise of religion” as applied

to a church that served communion wine, even if the law were

“generally applicable” and not “specifically directed” at religion.

The alternative interpretation, adopted in Smith, appears to

confuse the idea of a constitutionally protected freedom with the

idea of protection against nondiscrimination. In the latter context,

courts are concerned about whether government “singles out” a

particular activity or class of persons, or acts with that forbidden

purpose. In the context of freedoms, however, the Constitution

protects certain spheres of human activity (property ownership,

rights of contractual obligation, speech, and so forth), and the

question is whether the government has interfered with that activity.

Textually and structurally, the Free Exercise Clause, like the rest

of the First Amendment, protects a freedom.° It focuses on the

effect of the law — whether it hinders the exercise of religion —

not on the form or purpose of the law.

* Even in the context of expressive conduct — which, unlike

religious exercise, is protected only incidentally — laws not

specifically directed at the suppression of free expression are not

thereby exempted from all scrutiny, but must satisfy intermediate

scrutiny. United States v. O’Brien, 391 U.S. 367, 377 (1968).

7.

We recognize that the Court in Smith concluded that the

textual interpretation we are defending is not strictly “necessary”

and that the nondiscrimination reading is “permissible.” 494 U.S.

at 878. But unless courts are free to choose among any possible

meanings that are not foreclosed by the text, it would seem

necessary to ask not only what meanings are “permissible,” but

which meaning is most probable. If, as we maintain, the most

natural reading of the language of the Free Exercise Clause is that

it protects against all laws hindering the exercise of religion, it

would require powerful contrary evidence in the history of the

framing or the subsequent interpretive tradition to reject the natural

reading. As we will show in the next section, the weight of that

evidence supports, rather than contradicts, the natural reading.

II. RFRA Is Consistent With The History And Early

Interpretation Of Free Exercise

A. The Framers And Ratifiers Did Not Understand

Free Exercise To Protect Only Against Laws

Specifically Targeted At Religion

The scope of free exercise protection was not directly debated

in the First Congress or the ratifying legislatures. Nevertheless, the

language used in those deliberations reflects an expansive

understanding of the free exercise guarantee, and suggests no

limitation of the sort endorsed by Smith. Dissatisfied by the lack of

a bill of rights in the original constitution, four of the states

proposed an amendment stating that “all men have an equal,

natural, and unalienable right to the free exercise of religion(,]

according to the dictates of conscience.”’ This broad language

suggests an intention to provide the highest degree of protection to

this important right, and contains no hint that the protection does

no more than prohibit discriminatory laws. Madison proposed a

twofold protection: that “[tJhe civil rights of none shall be abridged

on account of religious belief or worship * * * nor shall the full

7 | THe DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION 334 (J. Elliot, 2d

ed. 1896) (Rhode Island); 3 id. at 659 (Virginia); 4 id. at 244

(North Carolina). The New York proposal differed slightly in

wording. 1 id. at 327.

he

and equal rights of conscience be in any manner, Or On any pretext,

infringed.”* Since the first half of this proposal guarantees against

laws specifically directed against religion (a nondiscrimination

idea), the second half must have provided substantive protection to

all exercises of the rights of conscience. This conclusion is

bolstered by the express statement that these rights should not “be

in any manner * * * infringed.” This language is difficult to square

with the idea that only one particular type of infringement — a

discriminatory law — was intended to be covered.

Given the lack of directly pertinent legislative history, the

most helpful sources are the various state constitutions and colonial

charters that contained provisions protecting the free exercise of

religion, and the general practice regarding conflicts between civil

law and religious conscience.’ There was little direct discussion or

debate about whether the principle of free exercise of religion

entails exemptions from civil law. This is hardly surprising. Most

18th Century Americans viewed the spheres of government and

® 1 ANNALS OF CONGRESS 451 (J. Gales, ed. 1834) (June 8,

1789).

° Greater detail on the original understanding at the time of

adoption of the Free Exercise Clause may be found in McConnell,

Origins, at 1421-1513; Douglas W. Kmiec, The Original

Understanding of the Free Exercise Clause and Religious Diversity,

59 UMKC L. Rev. 591, 599-607 (1991); W. Cole Durham, Jr.,

Religious Liberty and the Call of the Conscience, 42 DePaul L.

Rev. 71, 80-84 (1992); John Witte, Jr., The Essential Rights and

Liberties of Religion in the American Constitutional Experiment, 71

Notre Dame L. Rev. 371 (1996). Contrary views may be found in

Philip A. Hamburger, A Constitutional Right of Religious

Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915

(1992); Ellis M. West, The Case Against a Right to Religion-Based

Exemptions, 4 Notre Dame J. of Law, Ethics, and Public Policy

623 (1990); Gerard Bradley, Beguiled: Free Exercise Exemptions

and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245 (1991);

Michael J. Malbin, RELIGION AND POLITIcs (1978).

Me

religion as distinct, with little overlap or conflict. The vast majority

were Protestant Christians whose religious practice did not conflict

with civil law;° indeed, Protestant teaching emphasized that the

obligation to obey the lawful commands of the sovereign was itself

a religious duty. They bridled at suggestions that they were seeking

the ability to commit criminal acts.'' Moreover, the limited scope

© Quakers, the religious sect whose practices were most likely

to conflict with civil obligations, largely withdrew from politics in

the 1770s and tended not to participate in the movement for greater

free exercise protections. William G. McLoughlin, NEW ENGLAND

DISSENT, 1630-1833, at 595 (1971). Their concerns, therefore,

were not articulated.

The issue of exemptions was most often raised, in

exaggerated caricature, by opponents of broad religious liberty. For

example, William Penn described one of the objections to liberty

of conscience as follows: “at this Rate ye may pretend to Cut our

Throats, and do all Manner of Savage Acts.” William Penn, The

Great Case of Liberty of Conscience, in | A COLLECTION OF THE

Works OF WILLIAM PENN 457 (London 1726, photo. reprint

1974). Penn’s response was to deny that believers sought

exemptions from any laws “that atend to Sober, Just, and

Industrious Living.” Jd. On the other hand, Penn expressly denied

that all enactments called “laws” automatically fell into this

category. Id. at 458. For other examples, see McConnell, Origins,

at 1448; Hamburger, supra note 9, at 942-945.

Hamburger observes that “dissenters who sought an expanded

religious liberty disavowed a right of exemption from civil law”

(id. at 942), but this overreads the evidence. Certainly, the

advocates of expanded religious liberty disavowed any claim of

exemption from all civil laws (the exaggerated claim made by their

opponents), but as Hamburger’s examples frequently show, they

reserved the right to act according to conscience in the (presumably

unusual) case of conflict. For example, see the 1791 sermon of

House of Representatives chaplain William Linn (“[tJhe 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

-8-

of government — largely confined to peacekeeping and basic public

infrastructure — made conflict with religion unusual. The issue of

religious exemptions was, therefore, rarely raised explicitly in the

debates of the day. This suggests that the modern dichotomy

between “generally applicable” and “specifically directed” laws is

anachronistic; that is not how our founders conceived of the

issues.”

Nonetheless, the historical record, on balance, is most

consistent with the broader interpretation of the free exercise

principle. The advocates of religious freedom in early America —

for the most part, intensely religious members of dissenting

evangelical sects — were committed to a worldview in which duties

to God were superior, in principle, to duties to worldly authorities.

To be sure, they did not dwell on the conflict, which seemed to

them remote and hypothetical; but their ultimate loyalty was to God

over all. This general philosophy underlying the free exercise

movement at the Founding was perhaps best articulated by Madison

in his Memorial and Remonstrance Against Religious Assessments,

2 THE WRITINGS OF JAMES MADISON 183 (Gaillard Hunt, ed.

1901) (reprinted in Everson v. Bd. of Educ. , 330 U.S. 1, 28, app.

conscience”). Id. at 945 n.113 (emphasis added) (internal quotation

marks omitted).

'? The more salient question, as seen at the time, was whether

the protection of free exercise was confined to acts of “worship” or

extended to other conduct compelled by religious conviction. See

Jack Marietta, THE REFORMATION OF AMERICAN QUAKERISM,

1748-1783, at 226 (1984) (describing arguments by the Philadelphia

Quaker society for exemptions from military conscription under the

1701 Charter of Privileges “liberty of conscience” provision);

McConnell, Origins, at 1459-1461 (discussing differences between

state constitutions on this issue). This remained a contested question

at the time of adoption of the Fourteenth Amendment (see note 41,

infra), but the distinction between acts of “worship” and other acts

compelled or motivated by religion has not featured in

constitutional doctrine in recent decades. Cf. Widmar v. Vincent,

454 U.S. 263, 269 n.6 (1981) (rejecting as untenable the distinction

between “worship” and other speech).

-9-

at 63 (1947) (Rutledge, J., dissenting)). The duty to the Creator,

Madison wrote, is “precedent both in order of time and degree of

obligation, to the claims of Civil Society.” Jd., 4 1.

Before any man can be considered as a member of Civil

Society, he must be considered as a subject of the Governor

of the Universe: And if a member of Civil Society, who

enters into any subordinate Association, must always do it

with a reservation of the general authority; much more must

every man who becomes a member of any particular Civil

Society, do it with a saving of his allegiance to the Universal

Sovereign.

Id. Madison did not say that duties to the Creator are precedent

only to laws specifically directed at religion, nor was the principle

of religious freedom for which he strived limited to the prevention

of deliberate acts of persecution or discrimination. Rather, the

principle of free exercise was rooted in the precedence of

conscience, which is the duty to God, over lesser obligations.

The purpose of the Religion Clauses was to enable citizens of

many diverse creeds to live together in harmony, without violence

to their consciences — even if it required the majority to make

accommodations, where consistent with public peace and safety. As

George Washington expressed the point in a letter to a group of

Quakers:

[I]n 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 for the protection and

essential interests of the nation may justify and permit.”

This desire to “accommodate” faiths at odds with the majority is

the most important distinguishing feature of American church-state

“separation.” By contrast to the anticlerical disestablishment

proceeding at roughly the same time in France, religion in America

> Letter from George Washington to the Religious Society

Called Quakers (Oct. 1789), in GEORGE WASHINGTON ON

RELIGIOUS LIBERTY AND MUTUAL UNDERSTANDING 11 €.

Humphrey, ed. 1932).

-10-

was Set apart because of its central importance to the lives of the

people. Religion was not submerged in secular society, as in

France, nor subordinated to majoritarian secular concerns. Instead,

the First Amendment extended special and emphatic constitutional

protection to the full and free exercise of religion, achieving the

desire of Washington and Madison (along with many others) to

ensure that “the laws may always be as extensively accommodated

to [religious minorities], as a due regard for the protection and

essential interests of the nation may justify and permit.” RFRA

stands as the modern expression of this commitment of our

founding fathers.

Although conflicts between religious convictions and civil law

rarely arose, the conflicts were typically resolved by granting

exemptions to the religious objectors. The most common

exemptions were from oath requirements, military conscription, and

religious assessments.’* The nearly universal practice of exempting

Quakers and other religious pacifists from military service

demonstrates that exemptions were a common and familiar response

to conflicts between religious practice and civil obligation.”* It has

'* See generally McConnell, Origins, at 1466-1473.

'S Professor Ellis West, a critic of free exercise exemptions,

offers three reasons why the practice of exemptions from

conscription should not be understood to support a more general

principle. Ellis West, The Right to Religion-Based Exemptions in

Early America; The Case of Conscientious Objectors to

Conscription, 10 J. L. & Relig. 367, 376-377 (1994). None of the

reasons withstands scrutiny. First, he points out that “the

exemptions were granted by legislatures, not courts.” Jd. at 376. Of

course. The exemptions of the colonial and revolutionary periods

took place before the Constitution (even before the state

constitutions), and before judicial review. The point of this pre-

constitutional history is to understand the experience against which

the framers and ratifiers would view the proposed Amendment.

Second, West notes that “persons seeking exemptions * * *

did not necessarily argue that the legislatures were legally or

morally bound by either natural law or a constitution to grant the

efit

been suggested that these were granted as a matter of “sympathy,”

political influence, or other public policy concerns rather than out

of a respect for the principle of freedom of conscience,"* but the

language used belies this suggestion. For example, when the

Continental Congress recommended exempting from conscription

those “who, from religious principles, cannot bear arms,” it did so

to avoid “violence to their consciences.”"’ See Witte, supra note

9, at 389-394, for numerous examples of the invocation of “liberty

exemptions.” Jd. at 376. Prior to adoption of formal constitutional

protections, people made whatever arguments they could. Their

principal argument was that the legislature should not violate

religious conscience (as West’s own evidence demonstrates, See,

e.g., id. at 387-391). West’s assumption that dissenters’ use of

terms such as “privilege” and “indulgence” proves they were not

making claims of right (id. at 377) is anachronistic. The term

“privilege” is a constitutional term meaning “right,” as is evident

in the language of the Privileges and Immunities Clause of Article

IV. The term “indulgence,” in English legal usage, simply meant

“exemption.” See McConnell, Origins, at 1428 & n.95.

Third, West asserts that “even when specific constitutional

provisions were cited as the reasons for granting exemptions one

cannot infer that the exemptions were sought as ‘rights’ in the

modern sense of the word.” Rather, he says, such provisions “were

thought of as statements of goals or ideals that a government was

obligated to realize as much as it could.” West, Exemptions, at

377. The framers may not fully have grasped the idea of judicially

enforceable “rights” in its modern form, but there is no historical

basis for reducing the Bill of Rights to the status of goals or ideals,

and certainly no reason for giving the rights of free exercise less

legal protection than other provisions of the Bill of Rights.

6 £.g., Hamburger, supra, at 929: West, Exemptions, at 376-

377.

17 Resolution of July 18, 1775, reprinted in 2 JOURNALS OF THE

CONTINENTAL CONGRESS, 1774-1789, at 189 (W. Ford, ed. 1905,

photo. reprint 1968).

-12-

of conscience” in the years preceding the Constitution. To be sure,

at this juncture, the principle of liberty of conscience was not a

constitutional principle (how could it be?); it was, nonetheless, the

same principle of political morality that was later embodied in the

First Amendment. The means by which this principle had been

effectuated in the recent past (including exemptions from generally

applicable civil obligations) informed the expectations of the

framers and ratifiers about the meaning of the principle when it was

constitutionalized in the First Amendment.

The relative lack of controversy over the Free Exercise Clause

in the First Congress (in marked contrast to its establishment

counterpart) may be attributable to the fact that every state in the

Union (with the exception of Connecticut, which continued to

operate under royal charter) had adopted some version of a Free

Exercise Clause in its state constitution by 1789. It is reasonable to

infer that most framers and ratifiers expected the Clause to mean

roughly what similar provisions had meant at the state level.

The state constitutional provisions typically were lengthier and

more detailed than the federal. While their precise language varied,

almost all of them had a common structure: a guarantee of free

exercise (or liberty of conscience), coupled with a caveat or proviso

limiting the scope of nrotection."* The New York Constitution of

1777, for example, provided:

[T]he free exercise and enjoyment of religious profession and

worship, without discrimination or preference, shall forever

hereafter be allowed, within this State, to all mankind:

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.'*

'® Each of the provisions quoted below, and the other state

constitutional provisions, can be found in Benjamin Poore, ed.,

FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND

OTHER ORGANIC LAWS OF THE UNITED STATES (1878), and are

reprinted in McConnell, Origins, at 1456-1457 & n.242.

'? The terms “discrimination” and “preference” in this provision

-13-

The New Hampshire Constitution of 1784 provided:

Every individual has a natural and unalienable right to worship

GOD according to the dictates of his own conscience, and

reason; and no subject shall be hurt, molested, or restrained

in his person, liberty or estate for worshipping GOD, in the

manner and season most agreeable to the dictates of his own

conscience, * * * provided he doth not disturb the public

peace, or disturb others, in their religious worship.

The Maryland Declaration of Rights of 1776 provided:

([NJo person ought by any law to be molested in his person or

estate on account of his religious persuasion or profession, Or

for his religious practice; unless, under colour of religion, any

man shall disturb the good order, peace or safety of the State,

or shall infringe the laws of morality, or injure others, in their

natural, civil, or religious rights.

The Georgia Constitution of 1777 provided:

All persons whatever shall have the free exercise of their

religion; provided it be not repugnant to the peace and safety

of the State.

The existence of these “peace and safety” provisos strongly

suggests that the state constitutional provisions were understood to

require exemptions for religious conscience. In a regime where all

generally applicable laws are enforced even against contrary

religious conscience, there is no need to specify that the right

should not be “construed as to excuse acts of licentiousness, OF

justify practices inconsistent with the peace or safety of this State”

(quoting the New York provision). In such a regime, the provisos

would be redundant. Only if religious conscience overrides

did not delimit the scope of the liberty, but ensured that the liberty

would be extended nonpreferentially to all denominations. To the

extent that the lack of constitutional protection against generally

applicable laws has the effect of “plac{ing) at 4 relative

disadvantage those religious practices that are not widely engaged

in” (Smith, 494 U.S. at 890), this violates the spirit of equality as

well as freedom evinced by these early provisions.

aaa earmaaaaa ae iacae eammiemeaeimmemaeaana ae e i ee ete,

-14-

generally applicable law (at least in some cases) do the provisos

have legal significance.

Under this interpretation, the state clauses announce a broad

right of free exercise of religion — superior to ordinary legislation

just as freedom of speech and just compensation for takings of

property are superior to ordinary legislation — but exclude from

this freedom certain essential laws of the state: those protecting

basic public order and the rights of others. (In some states, a

broader class of laws is exempted from the free exercise protection,

typically laws relating to licentiousness or immorality.”) By the

same token, Madison, the principal author of the First Amendment,

stated late in life that free exercise should prevail “in every case

where it does not trespass on private rights or the public peace.””

These formulations are strikingly similar to the Religious Freedom

Restoration Act, except that instead of specifying particular

categories of law that override free exercise rights, the drafters of

RFRA chose to speak of laws that serve a “compelling interest.”

In practical application, it is likely that the “compelling interest”

test will protect much the same class of religious practice that

would have been protected under Madison’s approach, or under the

“peace and safety” provisos of the state constitutions.

One legal historian has offered an alternative interpretation of

these provisos. Hamburger, supra note 9. Professor Hamburger

challenges the above interpretation on two grounds. First, he claims

that rather than defining the scope of protected religious exercise,

“(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 fulfull its functions.” Jd. at 918. In other words, the caveats

permitted states to withdraw religious freedom altogether from

those whose beliefs or actions (!) threatened the peace and safety of

* See McConnell, Origins, at 1462-1466, for a fuller

discussion of these differences, and the political theory underlying

them.

* Letter from James Madison to Edward Livingstone (July 10,

1822), in 9 THE WRITINGS OF JAMES MADISON, supra, at 98, 100.

-15-

the state. See id. at 919 (“ instead of implying that the right of free

exercise was very extensive * * * the caveats stated the conditions

upon which religious liberty could be denied”). Second, Hamburger

claims that the “peace and safety” provisos were not understood as

limited to basic public order, but encompassed any and all

“violation of law.” Id. at 918.

Before considering the evidence contradicting this

interpretation, we pause to note that it offers religious exercise far

less protection than it has ever received in this country, and less

protection than it receives under Smith. Not only are believers

obliged to obey all civil law under this interpretation, but if their

“beliefs” (not to mention their “actions”) are thought to “threaten

the capacity of civil society to fulfill its functions,” the government

is not limited to punishing specific injurious acts, but may suppress

the religions that inspire them. As noted below, such an approach

was proposed — unsuccessfully — by anti-Catholic forces in New

York to permit suppression of that religion. Under Hamburger’s

view, provisions that history generally regards as a great advance

for religious liberty were no advance at all.

Moreover, the Hamburger interpretation is inconsistent with

the text of all but a few of the state provisions.” For example,

when the New York provision stated that “the liberty of

conscience, hereby granted, shall not be so construed as to excuse

2 Admittedly, the language of a few provisions, such as those

of the New Jersey Constitution of 1776 and the South Carolina

Constitution of 1778, are susceptible to Hamburger’s narrow

reading, though there is no evidence (and he presents none) that

they were actually read so restrictively. Interestingly, in 1790,

while ratification of the First Amendment was in progress, South

Carolina adopted language inconsistent with the Hamburger

interpretation: “the liberty of conscience thereby declared shall not

be so construed as to excuse acts of licentiousness, or justify

practices inconsistent with the peace or safety of this State.” Even

assuming that Hamburger is correct about the meaning of the older

language, therefore, it is evident that the narrow view of free

exercise reflected by that language was in retreat by the time of

framing and ratification of the First Amendment.

-16-

acts of licentiousness, or justify practices inconsistent with the

peace or safety of this State,” it did mot mean that violators of law

would forfeit their religious liberty, but only that their religious

liberty did not “excuse” or “justify” certain types of illegal act.

Other provisions stated that a believer should not be “restrained”

or “molested” for his religious acts “provided he doth not disturb

the public peace” (New Hampshire), or “unless, under colour of

religion, any man shall disturb the public order” (Maryland), or

“provided it [the exercise of religion] be not repugnant to the peace

and safety of the State” (Georgia). The language of these provisions

makes clear that the caveats permit the state to punish specific

religiously motivated conduct that is inconsistent with public order;

contrary to Hamburger, the caveats do not authorize the states to

abrogate all religious liberty for religions the authorities deem

dangerous.

The drafting history of two of the state provisions — those of

New York and Virginia — confirm our interpretation that the

provisos delimit the scope of the liberty (thus indicating that the

provisions entailed at least some exemptions from generally

applicable laws) rather than authorizing the state to suppress

religions. In New York, anti-Catholic forces led by John Jay made

repeated unsuccessful attempts to exclude Catholics from

protections of the state's free exercise provision. Their first attempt

was a proposal that read:

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.”

*® This account of the New York drafting history, including all

quotations, is taken from John W. Pratt, RELIGION, POLITICS, AND

DIVERSITY: THE CHURCH-STATE THEME IN NEW YORK HISTORY

84-90 (1967). See also Charles Z. Lincoln, THE CONSTITUTIONAL

f7-

If it had been adopted, this provision would have meant precisely

what Hamburger contends the actual state provisions meant: that

“(t]he 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.” Hamburger, supra, at 918. The New York

constitutional drafting committee, however, rejected Jay's draft,

proposing instead that “the free toleration of religious profession

and worship shall forever be allowed to all mankind,” without

limitation. Jay then repeated his attempt on the floor of the

Convention, in similar language; but it was again defeated. He

substituted a proposal that would deny civil and religious rights to

“professors of the religion of the church of Rome” until such time

as they were willing to “renounce and believe to be false and

wicked” various doctrines regarding papal authority. This was

defeated by a vote of 10-19. After that defeat, Jay proposed an

entirely different proviso, limiting the scope of the liberty but not

restricting its availability: “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.” Supporters of free exercise remained suspicious.

Gouverneur Morris inquired whether it was the same 4S Jay's

earlier efforts. Only after the majority was persuaded that Jay's

new proposal was nor 4 restatement of the old was it seriously

considered — and even then, the language was tightened to ensure

that the proviso referred only to overt actions. This drafting

history shows conclusively that the Hamburger interpretation was

expressly considered and rejected in New York.

In Virginia, George Mason and James Madison proposed

alternative versions of a free exercise provision. Mason proposed

“that all men should enjoy the fullest toleration in the exercise of

religion, according to the dictates of conscience, * * * unless under

color of religion any man disturb the peace, the happiness, OF

HisToRY OF NEW YORK (1906).

* Jay did succeed in adding anti-Catholic, but legally

meaningless, language to the preamble of the religious freedom

provision.

-18-

safety of society.” Madison objected to this proposal on two

grounds: that it referred to “toleration” and that the state interest

proviso was too expansive. Madison proposed a substitute that read

that “all men are equally entitled to the full and free exercise of

religion according to the dictates of conscience.” With minor

variation, this was adopted. He also proposed that the caveat be

altered to read: “unless under color of religion the preservation of

equal liberty and the existence of the State are manifestly

endangered.” The Mason proposal was more restrictive than that

adopted by any state other than Delaware; the Madison proposal

was more liberal than that adopted in any other state. In the end,

the Virginia legislators compromised the proviso issue through

silence, adopting the expansive “free exercise” language with no

proviso. Presumably, the legislators expected the meaning to lie

somewhere between the two extremes set forth by Mason and

Madison, and thus to resemble the provisions of the other states.

This episode is highly suggestive for two reasons. First, it

suggests that the federal Free Exercise Clause, also drafted

originally by Madison and lacking an express “peace and safety”

proviso, was expected, like Virginia’s free exercise clause, to strike

a middle ground between extremely broad and extremely narrow

understandings of countervailing governmental interests. Second,

it casts further doubt on the Hamburger hypothesis that the provisos

authorized suppression of dangerous religions. If Hamburger’s

interpretation were correct, then George Mason (traditionally

regarded as a great civil libertarian) was in favor of a provision that

would allow suppression of any religion thought inconsistent with

the “happiness” of the state, and elimination of the proviso, rather

than being a compromise between the two proposals under

consideration, would have amounted to adoption of a view more

liberal even than Madison’s. Given the tenor of the debate, these

conclusions are highly improbable, rendering the premise equally

improbable.

** The proposals and speeches quoted in text may be found in

Sanford Cobb, THE RISE OF RELIGIOUS LIBERTY IN AMERICA 491-

492 (1902).

-19-

The most persuasive interpretation of the state precursors of

the Free Exercise Clause, therefore, is that they provided

substantive protection for religious conduct, except for acts that

violate the peace and safety of the state, or the rights of others.

That is strikingly similar to RFRA.

B. Between The Bill Of Rights And The Civil War,

Judicial Interpretations Of The Free Exercise Principle

Were Divided

The courts of five states decided claims for exemptions from

generally applicable law during the years between ratification of the

Bill of Rights and the Civil War. In two states, exemptions were

required under state constitutions; in two states, exemptions were

rejected; and in one state, the exemption was denied on the facts

without clear statement of law. The only federal free exercise

case prior to 1879 was Permoli v. Municipality No. 1,44 U8. G

How.) 588 (1845), in which the Court held only that the Free

Exercise Clause does not apply to state governments.”

New York. The earliest state court decision expressly

addressing the exemption question was People v. Philips, Court of

General Sessions, City of New York (June 14, 1813), published in

William Sampson, THE CATHOLIC QUESTION IN AMERICA (1813,

photo. reprint 1974), excerpted in Privileged Communications to

2% We do not discuss cases involving blasphemy prosecutions,

religious tests for testimonial competence, OF intrachurch property

disputes. Although parties in these cases often raised free exercise

claims, they were not claims for exemption from formally neutral

laws, and the cases bear more resemblance to modern establishment

claims.

2” It is nonetheless significant that counsel for the city in Permoli

defended the challenged regulation (a ban on open casket funerals

in the French Quarter of New Orleans) on public health grounds,

arguing that the restriction was justified by “the law of necessity.”

44 U.S. at 601 (argument of counsel). This is roughly equivalent

to RFRA’s compelling governmental interest test. That argument

would have been unnecessary and irrelevant if the Smith

interpretation of free exercise had been in effect.

———z_2_———

-20-

Clergymen, 1 Cath. Lawyer 199, 199-209 (1955). A Catholic priest

refused to testify in a criminal trial to revelations made by the

defendant during confession. The four-judge court, presided over

by DeWitt Clinton, mayor of the City, presidential candidate in

1812, and future governor of the State, unanimously ruled that the

free exercise clause of the New York Constitution prohibited

enforcement against the priest of the generally applicable

requirement to give evidence in response to a subpoena. The court

interpreted the “peace and safety” proviso of the state constitution

as inapplicable, on the ground that the Catholic sacrament of

confession does not have a “natural tendency * * * to produce

practices inconsistent with the public safety or tranquillity.”

Privileged Communications, supra, at 208. The court concluded:

Although we differ from the witness and his brethren, in our

religious creed, yet we have no reason to question the purity

of their motives, or to impeach their good conduct as citizens.

They are protected by the laws and constitution of this

country, in the full and free exercise of their religion, and this

court can never countenance or authorize the application of

insult to their faith, or of torture to their consciences.”

Four years later, another New York court accepted the priest-

penitent privilege established in Philips, but denied the motion of

a criminal defendant to bar testimony of a Protestant clergyman on

the ground that the clergyman had no objection, under the canons

of his church, to testifying.” Shortly thereafter, the New York

legislature codified the priest-penitent privilege, commenting that

the Philips decision “is believed to have received general

approbation in this country.” The New York statute became the

national model.

2% Id. at 209.

** People v. Christian Smith, 2 City Hall Recorder (Rogers) 77

(N.Y. 1817), reprinted in Privileged Communications, supra, at

209.

* Extracts from the Original Reports of the Revisers, REVISED

STATUTES OF THE STATE OF NEW YorK (1836).

-21-

Massachusetts. In 1818, the Supreme Judicial Court of

Massachusetts rejected the motion of a criminal defendant to

exclude evidence of an open confession he had made to the

congregation. Commonwealth v. Drake, 15 Mass. 161 (1818). The

prosecutor argued that the confession was “purely voluntary” and

was not made pursuant to “any known ecclesiastical rule.” Jd. at

161-162. Because the court’s opinion did not reveal whether the

decision was based on the facts or on the law, the court's

interpretation of free exercise is not ascertainable. It is significant,

however, that the reported argument for the prosecution was

confined to the factual question whether the confession was

religiously compelled, and did not challenge the defendant's

interpretation of the state constitution as compelling exemptions in

the case of actual religious conflict.

Pennsylvania. \n Commonwealth v. Wolf, 3 Serg. & Rawle 48

(Pa. 1817), the Pennsylvania Supreme Court rejected the claim of

a Jewish merchant who sought an exemption from the state's

Sunday closing law.”' The court reasoned that Jewish law did not

compel him to work on Sunday and the civil law did not require

him to work on Saturday, thus, there was no conflict between

religious and civil obligations. As in the Massachusetts case, the

court did not dispute the claimant’s interpretation of the state

constitution as compelling exemptions in cases of actual conflict.

Fourteen years later, however, in Simon’s Executors v. Gratz,

2 Pen. & W. 412 (Pa. 1831), the Pennsylvania Supreme Court

squarely held that the liberty of conscience clause does not excuse

religious believers from compliance with state law. The court

declined to follow the New York Philips precedent, concluding that

exemptions from generally applicable law are properly a matter of

% An earlier free exercise case was settled before appellate

review. Stansbury Vv. Marks, 2 Dall. 213 (Pa. 1793). The trial court

fined a Jewish witness for refusing to testify on the sabbath, but

before the issue could be reviewed by the appellate court, the party

waived the benefit of this testimony and the fine was discharged.

-22-

legislative policy. Jd. at 414.°° “That every other obligation shall

yield to that of the laws, as to a superior moral force, is a tacit

condition of membership in every society, whether lay or secular,

temporal or spiritual, because no citizen can lawfully hold

communion with those who have associated on any other terms.”

Id. at 417. This statement reads as if it were a deliberate

counterpoint to James Madison’s famous Memorial and

Remonstrance, which affirmed that religious duty “is precedent

both in order of time and degree of obligation, to the claims of

Civil Society,” and that “every man” who becomes a member of

civil society “must always do it with a reservation * * * of his

allegiance to the Universal Sovereign.””

In Specht v. Commonwealth, 8 Pa. 312 (1848), the

Pennsylvania court again rejected a free exercise challenge to a

Sunday closing law. The court reiterated the holding of Simon’s

Executor, but then proceeded to rule that the law imposed no more

than “an incidental worldly disadvantage” on the claimant and that

only if the individual were religiously compelled both to work six

days a week and also to observe a day other than Sunday as the

sabbath would the court “regard[ ] [this] as an invasion of his

conscientious conviction.” Jd. at 326.

Virginia. In Commonwealth v. Cronin, | Quart. L. J. 128

(Va. Richmond Cir. Ct. 1855), a Virginia court relied, inter alia,

on the New York Philips case to find a free exercise exemption

under the Virginia Declaration of Rights. A man accused of

murdering his wife sought testimony from her priest that, he

contended, would prove she was involved in an adulterous

relationship. The court found that the priest-penitent privilege is

* The author of the opinion, Chief Justice John Bannister

Gibson, is best known for his rejection of constitutional judicial

review. Eakin v. Raub, 12 Serg. & Rawle 330, 344-358 (Pa. 1825)

(Gibson, J., dissenting). The emphasis in Simon’s Executor on

division of authority between court and legislature, rather than on

the nature of free religious exercise, suggests that the two opinions

were jurisprudentially connected.

33

See pages 8-9, supra.

-23-

“embraced in the guarantees furnished by our Constitution in favor

of religious toleration” and that this exemption did not “violate any

principle of public policy.” “It is impossible to conceive of more

broad and comprehensive terms than are used in our Bill of Rights,

and our State and Federal Constitutions,” the court observed. Id.

at 137.

South Carolina. In 1823, the Constitutional Court of South

Carolina unanimously rejected a claim by a member of the

Covenanters sect for exemption from service on the grand jury.

State v. Willson, 13 S.C.L. (2 McCord) 393 (1823). The court

observed that all religions required “a ready obedience to the laws

of the country” and held that a “fixed and scrupulous moral

objection to the discharge of a duty required by law, which springs

conscientiously from the religious tenets of a man, [does not]

amount[{ ] to a justification for refusing to perform the duty so

required.” Jd. at 394, 396.

C. The Framers And Ratifiers Of The Fourteenth

Amendment Understood It To Extend To Laws of

General Applicability

In this section, we will show that (whatever may have been the

understanding at the Founding) the framers of the Fourteenth

Amendment understood and intended the principle of free exercise

of religion to extend to all coercive acts of government, including

those formally neutral toward religion.”

Fourteenth Amendment constitutionalism has its origins in the

abolitionist movement. Abolitionism was closely tied to the

religious revival known as the Second Great Awakening, and the

abolitionists were particularly sensitive to denial of religious

freedom to African Americans in the South. One of the most

shocking aspects of slavery, according to prominent abolitionists,

was that the southern states denied both slaves and free persons of

color rights essential to Christian religious practice: the ability to

read (which barred access to the holy scriptures), to assemble for

% For more detailed discussion of this issue, see Kurt T. Lash,

The Second Adoption of the Free Exercise Clause: Religious

Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. Rev.

1106 (1994).

-24-

worship or otherwise, and to preach and spread the gospel.” John

Bingham, principal author of the Fourteenth Amendment, James

Wilson, Chair of the House Judiciary Committee at the time of the

Amendment, Lyman Trumbull, author of the Civil Rights Act of

1866, and many other leaders in the effort to secure the rights of

black citizens after the Civil War, made speeches denouncing such

laws on the ground that they were violations of religious

conscience.” The abolitionist movement also attacked laws against

assisting slaves on the ground that those laws violated the liberty of

conscience. Bingham, for example, stated:

Before [the Fourteenth Amendment], a State, as in the case of

the State of Illinois, could make it a crime punishable by fine

and imprisonment for any citizen within her limits, in

obedience to the injunction of our divine Master, to help a

slave who was ready to perish; to give him shelter, or break

with him his crust of bread. * * * The validity of that State

restriction upon the rights of conscience and the duty of life

was affirmed, to the shame and disgrace of America, in the

Supreme Court of the United States; but nevertheless affirmed

in obedience to the requirements of the Constitution.”

None of these laws was “specifically directed” at religion; yet they

were routinely characterized by the framers of the Fourteenth

* See id. at 1133-1137 and sources cited therein.

* Jd. at 1146.

*” Cong. Globe, 42d Cong., Ist Sess. 84 app. (1871). The final

sentence of this passage reflects Bingham’s theory that the most

serious deficiency in the original Constitution was the lack of

congressional enforcement authority for the Privileges and

Immunities Clause of Article IV. See Richard L. Aynes, On

Misreading John Bingham and the Fourteenth Amendment, 103

Yale L.J. 57 (1993). As this passage shows, Bingham believed that

the Fourteenth Amendment remedied this deficiency. This would

protect against the violations of conscience to which Bingham

referred, however, only if the incorporated free exercise right is

understood to apply to generally applicable laws.

-25-

Amendment as violating the liberty of conscience. When the

framers of the Fourteenth Amendment extended the protections of

the First Amendment to state laws, it was these examples of free

exercise violations that they had in mind.

The exemptions issue became the subject of explicit debate in

the Reconstruction Congress in connection with the bill that

ultimately was enacted as the Civil Rights Act of 1875. In its

earlier versions, the Act would have outlawed discrimination

(including segregation) within a variety of institutions, including

inns, railroads, places of public accommodation, cemeteries,

benevolent institutions, and churches. Since this bill was not

“specifically directed” at religion, but extended to all comparable

organizations, including “benevolent institutions,” it would not

raise a free exercise problem under the rule of Smith. A number of

distinguished members of Congress, however, including Matthew

Carpenter (who argued the first Supreme Court case under the

Fourteenth Amendment), Oliver Morton, and Frederick

Frelinghuysen, argued that this restriction violated the First

Amendment.” “People have a right to say how they will worship,

what they will worship, and with whom they will worship, and if

they have a right to say how they will worship, and with whom

they will worship, then under the Constitution of the United States

you cannot pass this provision with regard to churches,” said

Morton.” “I look on it as an infringement of the Constitution,”

said Frelinghuysen.“

% See Lash, supra note 36, at 1154; Michael W. McConnell,

Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947,

1050-1051 (1995).

% Cong. Globe, 42d Cong., 2d Sess. 759 (Sen. Carpenter), id.

at 847-848 (Sen. Frelinghuysen), id. at 898 (Sen. Morton), see also

id. at 897-898 (Sen. Corbett); id. at 897 (Sen. Anthony); id. app.

at 10 (Sen. Saulsbury); id. app. at 5 (Sen. Lot Morrill).

“ Jd. at 898 (Sen. Morton).

“« Jd. at 896. In contrast to both Smith and RFRA,

Frelinghuysen argued that the Free Exercise Clause protects only

-26-

Charles Sumner, the sponsor of the bill, argued that since it

was not directed at religion but rather imposed a neutral principle

of law upon all incorporated associations, the bill was not

unconstitutional:

To my mind this is simply a proposition to apply to an

incorporated association the great principles of our

Government, and it does not in any respect interfere with

religion, or tend in the least that way.”

Thus, the two views of the Free Exercise Clause — that of RFRA,

and that of Smith — were clearly presented, and were debated in

expressly constitutional terms. Sumner’s view — the view taken in

Smith — lost, and the bill was amended to exclude churches from

its scope.” This is strong evidence that, at least by the time of

Reconstruction, the principle of free exercise was understood to

apply to all laws that infringed on religious practice, and not just

to those targeted at religion.

Itl. RFRA Is Consistent With The Great Majority Of This

Court’s Precedents Interpreting The Free Exercise

Clause

It cannot be said that the rule of Smith — that the Free

Exercise Clause provides no protection against formally neutral

laws of general applicability — is deeply rooted in this Court's

interpretations of the First Amendment. Indeed, the Court’s first

statement of that rule occurred only in 1940, in Justice

Frankfurter’s opinion for the Court in Minersville School District

v. Gobitis, 310 U.S. 586, 595 (1940). Gobitis was overruled three

years later, in West Virginia Bd. of Educ. v. Barnette, 319 U.S.

acts of “worship” and not all “external conduct.” Jd. at 847.

“Id. at 896; see also id. at 611; id. at 823-826; id. at 843

(Sen. Sherman).

* Id. at 899. The vote was close (29-24), but this is because

opponents of the entire Civil Rights bill voted against the

amendment in order to make the measure as “obnoxious” as

possible, as they frankly admitted. Jd. at 897 (Sen. Trumbull); id.

at 897 (Sen. Thurman).

-27-

624 (1943). In no other majority opinion prior to Smith did the

Court hold that the Free Exercise Clause does not apply to

generally applicable laws, and even the author of Gobitis later

abandoned that position.

To be sure, in several cases prior to Gobitis the Court rejected

free exercise claims ~ but not on the ground that the laws

complained of were neutral or generally applicable. In Reynolds v.

United States, 98 U.S. 145 (1879), the Court relied on the

proposition — rejected in Smith and contradictory to the plain

language of the Amendment — that the First Amendment extends

its protection to matters of “religious belief and opinions” but not

to “practices.” Jd. at 166; see also id. at 164. That Reynolds did

not distinguish between “generally applicable” laws and laws

requirement that voters take an oath that they are not members of

an organization that teaches polygamy); The Late Corporation of

the Church of Jesus Christ of Latter-Day Saints v. United States,

136 U.S. 1 (1890) (upholding a statute revoking the charter of the

Mormon Church and confiscating its property).

In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court

held that child labor laws prohibited, and the Free Exercise Clause

did not protect, the right of a nine year old Jehovah's Witness to

distribute religious literature in the company of her guardian. The

Court made no reference to the general applicability of the statute,

indeed, it plainly stated that the law would be unconstitutional if

applied to adults. /d. at 167. Rather, the Court concluded that

“[(tJhe zealous though lawful exercise of the right to engage in

propagandizing the community, whether in religious, political, or

other matters, may and at times does create situations difficult

enough for adults to cope with and wholly inappropriate for

children * * * to face.” Jd. at 169-170. Prince’s analysis of the free

exercise right thus bears no resemblance to that of Smith.

In several cases involving indirect forms of military service,

the Court rejected free exercise claims. See Hamilton v. Regents,

293 U.S. 245 (1934) (free exercise objection to ROTC requirement

at state university rejected); United States v. MacIntosh, 283 U.S.

605 (1931) (denial of naturalization on ground of refusal to commit

—————————

-28-

to fight upheld). In none of these cases did the Court invoke

anything resembling the Smith interpretation of free exercise; the

opinions emphasized, instead, the extraordinary importance of

military obligations. Hamilton, 293 U.S. at 262-263; MacIntosh,

283 U.S. at 620-621.

It was in these cases that four of the most highly regarded

Justices ever to serve on this Court — Chief Justice Hughes and

Justices Holmes, Brandeis, and Stone — had this to say about the

principles and traditions of the Free Exercise Clause:

{In the forum of conscience, duty to a moral power higher

than the state has always been maintained. ‘The reservation of

that supreme obligation, as a matter of principle, would

unquestionably be made by many of our conscientious and

law-abiding citizens. The essence of religion is belief in a

relation to God involving duties superior to those arising from

any human relation. * * * One cannot speak of religious

liberty, with proper appreciation of its essential and historic

significance, without assuming the existence of a belief in

supreme allegiance to the will of God. * * * The battle for

religious liberty has been fought and won with respect to

religious beliefs and practices, which are not in conflict with

good order, upon the very ground of the supremacy of

conscience within its proper field. What that field is, under

our system of government, presents in part a question of

constitutional law and also, in part, one of legislative policy

in avoiding unnecessary clashes with the dictates of

conscience.

MacIntosh, 283 U.S. at 633-634 (Hughes, C.J., dissenting). RFRA

stands in this tradition — what Hughes called “our happy tradition”

(id. at 634) — of avoiding “unnecessary clashes” between religious

conscience and civil law, by granting exemptions in cases where the

government has no compelling interest in coercing obedience.

In Braunfeld v. Brown, 366 U.S. 599, 606 (1961), the Court

upheld application of a Sunday closing law to a Jewish merchant on

the ground that it constituted “only an indirect burden on the

exercise of religion,” by which the Court meant a law that makes

the religious practice more costly but not illegal. The Court

hastened to add — confusingly — that even “indirect” burdens may

-29-

be unconstitutional if the “purpose or effect of a law is to impede

the observance of one or all religions.” Jd. at 607. The Court also

imposed a requirement of least restrictive burden even with respect

to “indirect” burdens. In these respects, RFRA can best be

understood as a tightening of the Braunfeld standard.

Indeed, no Justice in Prince, Braunfeld, or the military cases

interpreted the Free Exercise Clause as exempting generally

applicable laws from judicial scrutiny. Even Justice Frankfurter, in

Braunfeld, retreated from his position in Gobitis. In the case of a

neutral and generally applicable law, he stated that the court should

apply a balancing test: “If the value to society of achieving the

object of a particular regulation is demonstrably outweighed by the

impediment to which the regulation subjects those whose religious

practices are curtailed by it, or if the object sought by the

regulation could with equal effect be achieved by alternative means

which do not substantially impede those religious practices, the

regulation cannot be sustained.” McGowan v. Maryland, 366 U.S.

420, 462 (1961) (Frankfurter, J., concurring in Braunfeld and

related cases); see also id. at 520.

In 1963, the Court formally adopted the constitutional test now

embodied in RFRA. Sherbert v. Verner, 374 U.S. 398 (1963). In

Wisconsin v. Yoder, 406 U.S. 205, 220 (1972), the Court stated

that a “regulation neutral on its face may, in its application,

nonetheless offend the constitutional requirement for government

neutrality if it unduly burdens the free exercise of religion.”

Between Sherbert and Smith, the Court applied that test in at least

ten cases. See Church of the Lukumi Babalu Aye v. Hialeah, 508

U.S. 520, 564-571 (1993) (Souter, J., concurring) (discussing

cases). As Justice Scalia characterized the precedent in Texas

Monthly, Inc. v. Bullock, 489 U.S. 1, 38 (1989) (Scalia, Fig

dissenting) (emphasis in original): the Court has “held that the Free

“ The Smith opinion distinguished Yoder on the ground that it

was a “hybrid” case — 4 combination of free exercise and parental

rights. 494 U.S. at 881-882. That was not the basis for decision set

forth in the Yoder opinion. In any event, every free exercise claim

can be characterized as a “hybrid” with some other constitutional

claim: free speech, privacy, property, and so forth.

-30-

Exercise Clause of the First Amendment required religious beliefs

to be accommodated by granting religion-specific exemptions from

otherwise applicable laws.” See also Edwards v. Aguillard, 482

U.S. 578, 617 (1987) (Scalia, J., dissenting) (characterizing five

cases aS holding that “in some circumstances States must

accommodate the beliefs of religious citizens by exempting them

from generally applicable regulations”).

x KK *

The interpretation of the Free Exercise Clause reflected in

RFRA, therefore, is based on the plain language of the

constitutional provision, accords with the historical evidence

regarding the First and Fourteenth Amendments, and is consistent

with the great weight of precedent. Plainly, Congress has engaged

in a reasonable, well-supported, nonpretextual attempt to enforce

the requirements of the Fourteenth Amendment.

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted.

Of Counsel: MICHAEL W. MCCONNELL

MaRK E. CHOPKO 345 §. University Street

JEFFREY HUNTER MOON Salt Lake City, UT 84112

U.S. Catholic Conference (801) 581-6342

3211 4th Street, N.E.

Washington, DC 20017 Counsel of Record

(202) 541-3300