Awakening the Law: Unmasking Free Exercise Exceptionalism

• Jurisdiction: United States,Federal
• Citation: Vol. 72 No. 5
• Publication year: 2023

Awakening the Law: Unmasking Free Exercise Exceptionalism

Berta Esperanza Hernández-Truyol

AWAKENING THE LAW: UNMASKING FREE EXERCISE EXCEPTIONALISM Berta Esperanza Hernández-Truyol^* ABSTRACT

The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism ("FEE"), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment Clause. This FEE is evident in recent rulings.

In the 2020 Espinoza v. Montana Department of Revenue case, the Court ruled that the no-aid provision of tuition assistance programs for parents who enroll children in religious schools discriminated based on religious status rather than religious use. The Court, using a strict scrutiny standard, changed the question from whether a state may choose to fund religious activity to whether it must. A forceful dissent decried the majority opinion for holding, for the first time, that the Constitution requires the government to provide funds directly to a church. Two years later, Carson expanded Espinoza's holding by mandating the funding of religious activities and institutions where such funding is available to nonsectarian institutions. Another forceful dissent emphasized that prohibiting a state from excluding religious schools from participating in a state tuition program made available to secular schools effects a violation of the

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Free Exercise Clause of the First Amendment and the breakdown of the separation of church and state. As evidenced in Carson, the consequence is hugely problematic in that the now-state-funded religious institutions, rather than be bound by general nondiscrimination laws, will be free to openly discriminate against students, staff, teachers, and parents alike.

This Article proposes a new paradigm to resolve tensions and conflicts in constitutional rights that takes account of and seeks to preserve all constitutional values. Awakening the law is a multilayered process that seeks to find justice in complex legal conflicts; it is an ongoing process that requires buy-in from all affected constituencies. The resolution of constitutional tensions requires consideration of all interests involved in a constitutional conflict. The embrace of the proposed awakened paradigm, informed by established human rights norms and the First Amendment's own history, allows for the recognition, exposure, deliberation, and resolution of the injustices effected by FEE.

"I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."^**

"The challenge for those who want to protect religious liberty in the United States, Europe and other similar places is to convince people who are not religious that religious liberty is worth special protection."^***

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TABLE OF CONTENTS

INTRODUCTION........................................................................................ 1063

I. COLLISIONS: FREE EXERCISE EXCEPTIONALISM............................ 1069
II. LEARNING FROM ABROAD............................................................ 1082
III. AWAKENING THE LAW: A NEW PARADIGM................................... 1088

A. Anti-Subordination ............................................................... 1091
B. Multidimensionality .............................................................. 1092
C. Marginability........................................................................ 1096

IV. AWAKENING: RE/VIEWING CARSON.............................................. 1097

CONCLUSION........................................................................................... 1102

INTRODUCTION

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . or the right of the people peaceably to assemble."¹ While each clause is ostensibly clear standing alone, tensions arise because the clauses interact. The Amendment itself creates no hierarchy. Yet the last three terms, the Supreme Court of the United States, through myriad decisions, including religious assembly cases, has embraced Free Exercise Exceptionalism ("FEE"): primacy to the Free Exercise Clause over all other rights and evisceration of the Establishment Clause.² The expansion of the Free Exercise and the consequent supremacy of religion over all rights is problematic³ as one of the most salient and pressing civil and human

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rights concerns of the twenty-first century is the collision of religious rights with liberty⁴ and equality/nondiscrimination rights.⁵

Tensions in civil society based on religion are nothing new. Throughout the world's history, examples abound of religious conflicts.⁶ Various religions promote peace, harmony, and coexistence, yet religion often becomes a deep and delicate source of conflict, fueled by every religion's contention that its tenets contain the one and only truth.⁷ Based on the one truth, religiously-charged violence in the twentieth century included the Troubles,⁸ the Holocaust,⁹ the Six-Day War,¹⁰ and the war on terror that emerged after 9/11,¹¹ to name a few.

In the twenty-first century, Christian Nationalism,¹² a political ideological movement that deploys a "conservative interpretation of Christianity,"¹³ has embraced and promoted FEE; it has sought, with some success,¹⁴ to

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transmogrify the law to reflect its religious principles and beliefs including "nativism, white supremacy, patriarchy, and heteronormativity."¹⁵ Religious desire to define the law has been at work for some time and has fueled many of the challenges to liberty on the grounds of religious beliefs. For example, citing the Free Exercise Clause of the First Amendment, actors in the public square, including photographers,¹⁶ doctors,¹⁷ printers,¹⁸ flower shop owners,¹⁹ adoption

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agencies,²⁰ inns,²¹ wedding venues,²² child welfare providers,²³ pharmacists,²⁴ and hospitals,²⁵ have refused to provide services to some that they otherwise offer to the general public.²⁶ Schools²⁷ have refused to abide by nondiscrimination norms and individual teachers are increasingly claiming religion as a reason to discriminate against particular students.²⁸ Dissimilar as these entities and the services they offer are, the shared motive for their rejection is that offering the services offends their sincerely held religious beliefs.²⁹ It

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could be the identity of the person that is offensive; it could be the services or products—albeit fully legal, and in some instances medically necessary—that are objectionable. The religious—political—objectors insist that if they provide services, or engage in certain employment relationships, they are accepting and, thus, being complicit in, behavior that Christian Nationalism finds sinful.³⁰ However, as a political movement, religious nationalism's³¹ "ultimate goal is power. It . . . seek[s] . . . to replace our foundational democratic principles and institutions with a state grounded on a particular version of Christianity . . . ."³²

While many of the examples cited involve same-sex couples or LGBTQ+ individuals, the rebuffs are by no means limited to homosexuality or LGBTQ+ persons. In one case, a pastor refused to baptize a baby because the mother and father, being unwed, were "living in sin."³³ The denials of contraceptives³⁴ and the pregnancy firing³⁵ involved heterosexual women. In one instance, a doctor refused to treat an infant because her mothers were lesbians.³⁶ An embrace of Christian Nationalist orthodoxy as sufficient reason to deny services in the public sphere threatens liberty.

On the heels of a tense beginning to the third decade of the twenty-first century, rife and raw with the underscoring of racial disparities as well as significant religious divides,³⁷ "we the people" have experienced much

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awakening³⁸ about deeply seeded social realities and persistent inequalities.³⁹ Reliance upon religious liberty as a justification for discrimination against anyone creates an ostensibly intractable tension between rights of the highest value in the international and national spheres: the right to religious freedom on the one hand, and the right to liberty, including equality/nondiscrimination, on the other. Significantly, the Constitution, state and national laws, as well as international, regional, and foreign law, protect religious liberty, as well as other liberties, equality, and nondiscrimination rights.⁴⁰

In the 2020-2022 Terms, in embracing FEE—First Amendment decisions in cases presenting tension with liberty—the Court myopically considered only religion. The Court failed to contemplate the myriad other liberty interests involved in the cases. The Court's adopted approach erases the discriminatory consequences of the decisions on other affected persons whose constitutional rights the cases at best ignored or at worst wholly negated. This work argues that FEE must cede to an awakened analysis. The religion/equality tensions can be resolved by deploying a more holistic approach, an awakened paradigm, that gives voice not only to First Amendment rights but also to the correspondingly significant liberty and equality/nondiscrimination constitutional interests that the single-focus analysis utilized by the Court...