Why conservatives, and others, have trouble supporting the meaningful enforcement of free exercise rights.

• Author: Brownstein, Alan

If there are specific areas of life where the role of government should be particularly limited, religion is certainly one of those areas. It is not the government's business to interfere with or attempt to influence religious belief and practice. Democracy is a wonderful system of self-government, but religious truth is not determined through legislative deliberation or at the ballot box. (1)

Unlike the remarks of the other scholars on the religious liberty panel, this Essay focuses on the Free Exercise Clause rather than the Establishment Clause of the First Amendment. It is clear that compared to the people of other western democracies, Americans are a particularly religious people. (2) Further, the First Amendment explicitly protects the exercise of religion. Yet American free exercise jurisprudence is shallow at best. If free exercise doctrine is compared to a fundamental right that is taken seriously, such as freedom of speech, the difference is apparent. The latter is robust; the former is anemic. (3)

Why is it that we have so much trouble taking free exercise rights seriously? There are several answers, (4) and they sometimes cross conventional ideological lines. (5) This Essay will briefly discuss four of them. There are many more possible answers, but these four were selected because they help to explain why conservative jurists, in particular, may be unsympathetic to federal judicial protection of free exercise rights.

First, the scope of religious practice and religiously motivated conduct in the United States is both diverse and extensive. (6) Accordingly, it is inevitable that some religious activities will produce externalities that burden both individuals and the public interest. Thus, there are often legitimate state interests that arguably justify restrictions on religious autonomy. (7) This means that, when adjudicating free exercise claims, courts will often have to engage in some sort of balancing process to weigh religious liberty against the state's reasons for interfering with it.

The strength of the state's reason for burdening religious conduct in particular cases is not the only problem courts confront in rigorously protecting free exercise rights. A second concern involves misgivings about the propriety of the balancing process itself. Doubts about the legitimacy of what he saw as intrinsically subjective, value-based balancing were one of Justice Scalia's central concerns when he wrote the majority opinion in Employment Division v. Smith, the case that sharply limited the scope of free exercise rights in 1990. (8)

We can question whether concerns about balancing are sufficient reasons for undermining the constitutional protection provided to religious liberty. Courts in other countries, such as Canada and South Africa, have forthrightly balanced religious liberty claims against competing state interests in a whole range of cases. (9) In doing so, however, it is fair to say that those courts engage in what Americans would describe as a public policy analysis that is at least quasi-legislative in nature. There may be ways to limit judicial discretion in this area--just as judicial discretion has been limited in the doctrinal approaches courts have developed to protect other fundamental rights-but it is likely that some level of subjective balancing is intrinsic to a meaningful free exercise jurisprudence. (10)

The third problem relates to federalism concerns. Many religious liberty issues arise in circumstances that are traditionally identified with local control, such as land-use regulation, prison administration, and public school administration. A rigorous free exercise jurisprudence would justify federal judicial intervention into these areas of decision making. Federal statutes protecting religious liberty such as RFRA, (11) which was struck down in part in 1997, (12) and RLUIPA, (13) which was enacted in 2000, would also clash with state and local autonomy. (14)

One notable example of this clash between federalism and fundamental rights today occurs in the public schools, although in this context the conflict between federal rights and local control is more often played out under free speech auspices rather than free exercise doctrine. (25) But the core issue remains the same. There is no shortage of commentary by jurists describing public education as a matter of local democratic concern rather than a federal judicial enterprise. (16) Pedagogical and curricular choices are presumptively the prerogatives of parents, teachers, school boards, and school administrators, not unelected federal judges. (17)

Yet other jurists insist that federal judicial intervention is appropriate to protect the rights of teachers and students to practice their faith or to express religious messages during school-sponsored activities. (18) The commitment to student free speech rights Justices Alito and Kennedy expressed in their concurrence in Morse v. Frederick (19)--the "Bong Hits for Jesus" case-may well have been grounded in part in their interest in protecting student religious speech. Concerns about federalism and local control, however, were conspicuously absent from their opinion. (20)

Fourth and finally, religion is a multidimensional constitutional interest which subsumes and implicates several independently recognized constitutional values. Church-state disputes cross constitutional boundary lines. They touch on...