A new approach to nineteenth-century religious exemption cases.

• Author: Campbell, Wesley J.
• Position: NOTES

INTRODUCTION I. ORIGINAL MEANING II. NINETEENTH-CENTURY CONTEXT A. Theology B. Skepticism C. Judicial Deference III. RELIGIOUS EXEMPTION CASES A. Pre-1850 Cases B. A New Context CONCLUSION INTRODUCTION

In Employment Division v. Smith, (1) the U.S. Supreme Court held that the Free Exercise Clause of the First Amendment does not provide a right to religious exemptions from neutral and generally applicable laws. (2) That is, civil and criminal rules apply to everyone, irrespective of whether those rules conflict with an individual's religious views. In Smith, five Justices accepted Oregon's withholding of unemployment benefits from two Native Americans who had been fired because their sacramental use of peyote was criminal under the state's controlled substance laws. (3) The Court's unexpected overturning of precedent (4) ignited a firestorm of debate among legal scholars, most of whom objected to the majority's holding and methodology. (5) One prominent criticism was the Court's omission of any historical evidence. (6)

The Supreme Court revisited the Free Exercise Clause seven years later in City of Boerne v. Flores. (7) Congress had overridden Smith by passing the Religious Freedom Restoration Act of 1993 (RFRA), (8) which provided religious exemptions from federal and state laws, even if the laws were neutral and generally applicable. (9) In Boerne, the Court declared RFRA unconstitutional as applied to the states. Most Justices agreed that Congress had exceeded its authority under Section 5 of the Fourteenth Amendment; Justice O'Connor dissented, however, arguing on originalist grounds that the Court should overturn Smith. (10)

Justice Scalia's concurring opinion in Boerne responded to Justice O'Connor's originalist critique of the Smith holding. The concurring and dissenting opinions wrestled with early colonial, state, and federal accommodations, such as statutory and constitutional provisions exempting Quakers and other conscientious objectors from conscription laws. Most of the elements of this debate have been thoroughly canvassed elsewhere. (11) Justice Scalia's concluding remark, however, has received insufficient scholarly attention. (12) He wrote:

It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none--and to my knowledge, and to the knowledge of the academic defenders of the dissent's position, none exists. (13) Indeed, the dissent provided no account of early religious exemption cases and offered only silence in response to Justice Scalia's critique of this omission. This Note disputes Justice Scalia's claim that the dearth of successfully litigated nineteenth-century exemption claims reveals a lack of historical support for religious accommodations. Rather than being "the most telling point," the absence of exemption decisions reflects historical differences that call into question overly simplistic originalist arguments. In particular, prevailing theological views, skepticism of courtroom declarations, and judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. Understanding these factors also helps explain the apparent erosion of support for religious accommodations in the middle of the nineteenth century. This reinterpretation of the historical record suggests not only that Smith and Boerne may be inconsistent with original meaning but also that an originalist approach to the Free Exercise Clause does not account for shifts in ideas about religious freedom preceding the adoption of the Fourteenth Amendment.

This Note attempts to explain nineteenth-century federal and state exemption decisions on their own terms. Part I introduces the relevance of early nineteenth-century cases to an understanding of original meaning. Part II surveys the historical background of religious liberty cases, beginning with a description of how contemporary theological views constrained the scope of free exercise claims. It then turns to relatively unexplored evidence--testimonialexclusion cases and statutory-exemption cases--in order to illustrate pervasive skepticism toward courtroom declarations of religious belief. Lastly, the Part discusses contemporary understandings of judicial review and identifies how notions of judicial deference permeated other religious liberty decisions. Part III then evaluates the few reported antebellum religious exemption cases, and contends that skepticism and deference have more explanatory power than other theories in expositing early nineteenth-century outcomes. The Conclusion analyzes the import of this evidence to modern free exercise debates. Responding to Justice Scalia's remark, this Note argues that the number of successfully litigated claims is an inappropriate historical tool for determining whether religious exemptions were constitutionally required.

1. ORIGINAL MEANING

   Originalist methodology has evolved substantially over the past twentyfive years. Initially focused on what the framers intended, scholars gradually shifted their attentions to the elected delegates who ratified the Constitution. Recent efforts have moved a step further, arguing that judges should evaluate constitutional text based on the contemporary public meaning of its words and phrases. (14)

   To ascertain the original meaning of various constitutional provisions, legal scholars often look to early nineteenth-century cases. (15) The similarity of various state declarations of rights to the Federal Bill of Rights makes state decisions a useful source for interpreting the First Amendment. (16) Moreover, early nineteenth-century decisions are particularly important with respect to incorporated rights, which have two points of reference for original meaning. That is, nineteenth-century cases may elucidate the Bill of Rights as ratified in 1791, but they also can clarify what these rights meant when applied to the states in 1868. (17) Although originalists rarely consider original meaning in both periods, at times this dual approach may be critical. It is axiomatic in modern constitutional law that incorporated rights operate equally on the federal and state govemments. (18) Therefore, identifying a single original meaning for provisions of the Bill of Rights relies on there having been consonant understandings in 1791 and 1868.

   This Note offers a new interpretation of early free exercise decisions. It does not aim to prove a particular constitutional meaning of free exercise in 1791 or 1868. Indeed, this Note focuses on the difficulties in proving a particular constitutional meaning of free exercise. To the extent that nineteenthcentury decisions illuminate founding-era public meaning, however, they suggest that Smith and Boerne may be inconsistent with the original understanding of religious freedom. Nevertheless, a significant shift in adjudication of exemption claims around the Civil War casts serious doubt on the viability of a coherent originalist approach to the Free Exercise Clause. Nineteenth-century accommodation cases therefore illustrate an especially problematic feature of attempts to discern the original meaning of incorporated rights.

2. NINETEENTH-CENTURY CONTEXT

   1. Theology

      In the late eighteenth century, robust protection for religious freedom presented little threat to the uniform application of American laws. First, the scope of federal and state laws was generally quite limited and therefore less likely to interfere with religious exercise. (19) Moreover, prevailing theological views also created very few conflicts between law and religion. As William Marshall observes, "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." (20) To be sure, some sects, such as Quakers, had conscientious scruples to obeying militia laws and to swearing oaths. Jews and Seventh-Day Adventists sometimes refused to attend court on Saturdays. But these were about the only examples of direct conflicts between law and religion, and statutes or common practice usually accommodated these minority views.

      Denominational control over religion during this period helps explain not only why there were so few conflicts between law and religion but also why the idea of free exercise exemptions was itself nonthreatening. Even though the Reformation and eighteenth-century Great Awakening had emphasized individual relationships with God, doctrinal matters were still resolved communally-usually at the denominational level. (21) This background understanding of where religious scruples came from had a profound effect on the stability and acceptability of religious accommodations. In particular, communal control over religious doctrine constrained individuals from easily fabricating their own conscientious objections. (22)

      Given this religious context, courts unsurprisingly looked to denominational teachings when considering the sincerity of an individual's religious claims. In an early nineteenth-century case, for example, Samuel McIntire was summoned as a juror but refused to swear to an oath, offering to affirm instead. (23) Affirmations, however, were meant to accommodate only those with religious scruples against swearing. (24) McIntire stated "that he preferred affirming to swearing; that he was not a quaker, nor attached to any particular religious sect." (25) Judge...