Euthanasia and the Supreme Court's competing conceptions of religious liberty.

• Author: Stacy, Tom

Euthanasia, or, as it is now called, the right to die, raises profound questions about the meaning and value of human life. Religious groups and religious views thus have been deeply involved in the law's continuing evolution on this subject. Religion's involvement, in turn, raises important issues concerning the proper relationship between government and religion. Given this, it is perhaps not surprising that the Constitution should figure prominently in the legal treatment of end-of-life decisions.

What is surprising, however, is the source of the constitutional law that is now of relevance. One might expect that the religion clauses of the first amendment to the United States Constitution, which prohibit government from establishing religion or denying the free exercise of religion, would have some bearing.(1) Yet, as currently interpreted, they do not. Instead, it is the unenumerated right of privacy(2) with which the law on euthanasia must be reconciled. Cases such as Cruzan v. Director, Missouri Department of Health(3) and Planned Parenthood of Southeastern Pennsylvania v. Casey(4) do have real import and lend support to a limited "pro-choice" regime respecting euthanasia.(5) In this apparently backward state of affairs, rights textually specified in the religion clauses are drained of meaning, while a right not mentioned in the text is infused with expanding meanings.

The relationship between the Supreme Court's religion and privacy decisions is even closer and more contradictory than it initially appears. It is closer because the privacy decisions of principal relevance to the euthanasia debate are best viewed as elaborations of religious liberty. These decisions implicitly embrace distinctive conceptions of establishment, free exercise, and religion: the three terms that lie at the core of the religion clauses' meaning. The relationship between the privacy and religion cases is more contradictory than first appears because they adopt inconsistent conceptions of religious liberty.

This article untangles the competing conceptions of religious liberty at work in the privacy and religion cases, explores some of their implications for the legal treatment of end-of-life decisions, and begins an evaluation of which line of cases represents the better understanding of religious liberty. The argument here will be that the privacy cases are best viewed as articulations of religious liberty and that in important respects they also possibly reflect a more defensible understanding of religious liberty than do the Court's religion cases.

This argument, if correct, has important implications. It means that the privacy cases, which are often criticized as illegitimate judicial confections, may to a significant degree constitute justifiable elaborations of provisions in the Constitution whose authoritativeness everyone accepts. It also means that the Court's religion cases reflect a misguided interpretation of those provisions. Finally, it means that the legal and public debate must seriously consider the possibility that the right to die is an extension of, or at least a close analogue to, religious liberty.(6)

The Irrelevance of the Religion Clauses as Currently Interpreted

The role of religious groups and beliefs in influencing end-of-life decisions pushes one to define all three crucial terms in the religion clauses. Religious groups and beliefs have played a role both at the macro-level formulation of the legal rules and at the micro-level of individual decisionmaking. One question is whether successful macro-level efforts of organized religious groups to make the law respecting euthanasia conform to or accommodate their religious beliefs constitute an "establishment" of religion. Another is whether the micro-level effort of a person to make an end-of-life decision in accordance with his own religious beliefs is the protected free exercise of religion, even when those beliefs lead to a decision contrary to statutory or common law. A final question is whether beliefs on end-of-life decisions, which generally reflect a person's most fundamental values, are religious whether or not they derive from a belief in a god.

As these key terms are currently conceived by the Supreme Court, the religion clauses have no real import for the legal treatment of end-of-life decisions.

"Establishment"

Consider first the establishment clause. Among other groups, born-again Christians and the Catholic church have played an important role in securing the defeat of the physician-assisted suicide measures recently on the ballot in Washington and California.(7) Some religious elements of the right-to-life movement, including born-again Christians, have opposed passive euthanasia in both court cases and legislatures. These groups seek an anti-euthanasia legal regime that reflects their religiously inspired view that human biological life is intrinsically and overridingly valuable, whatever its perceived quality.

Other religious groups seek a legal regime that, while not corresponding to their religious views, will at least accommodate them. The Orthodox Jewish definition of death holds that death occurs only when heartbeat and respiration cease.(8) It is narrower than the legal "whole-brain" definition of death, under which death occurs if the brain loses all function despite artificial maintenance of cardiac and respiratory function. Orthodox Jewish groups have apparently lobbied a few states for a conscientious objection exception to the whole-brain definition of death.(9) The aim is not to make the Orthodox Jewish definition of death the law for everyone. Rather, the aim is only to create an exception to existing law that will accommodate the religious beliefs of Orthodox Jews.

Under existing law, religious groups do not threaten to "establish" religion by seeking a legal rule that either conforms to or accommodates their religious beliefs. Successful efforts of religious groups to make the law conform to their religiously inspired belief in the immorality of euthanasia will rarely, if ever, violate the establishment clause. The Court's establishment jurisprudence, though by no means a model of clarity as a general matter, does rather clearly indicate that an establishment clause violation will be found only when the movement and reasons leading to such a law's passage are exclusively religious.(10) Any anti-euthanasia law that has a realistic chance of enactment will survive this standard. Although the groups variously resisting physician-assisted suicide, active euthanasia, and passive euthanasia include a strongly religious element, neither these groups nor the reasons offered against these practices are exclusively religious.(11) Laws that make express exceptions accommodating religious belief might seem to have an exclusively religious purpose and therefore constitute an impermissible establishment. But in Employment Division v. Smith,(12) the Supreme Court declared in dictum that legislatures are permitted to make such exceptions.(13) According to Smith, then, it would not violate the establishment clause for Orthodox Jews to seek, and for a legislature to grant, exemptions from the whole-brain definition of death for religious objectors.

As currently interpreted, then, the establishment clause imposes no real constraints on the legal treatment of end-of-life decisions. It leaves religious groups free to bring their religious values to bear on the formulation of the law in this area--to abolish or create exceptions to the existing pro-choice regime respecting passive euthanasia, to make physician-assisted suicide and/or voluntary active euthanasia illegal, or to allow persons who satisfy the existing whole-brain definition of death to have their "lives" sustained based on religious objection to that definition.

"Free Exercise"

Religion has been involved not only in macro-level attempts to influence the content of the governing legal rule, but also in micro-level individual decisions. In some cases, a person's decision to forgo life-sustaining treatment is based on religious views. There is a well-known line of cases respecting Jehovah's Witnesses, whose religious views compel them to forgo blood transfusions even when this means death.(14) The Helga Wanglie case(15) indicates that a decision to continue lifesaving treatment may be religiously based. Mrs. Wanglie was in a persistent vegetative state and dependent upon a respirator. Believing continued medical treatment futile, the county hospital petitioned a court to appoint an independent guardian for her in the hope that the respirator could be removed. Her family opposed the appointment on the grounds that Mrs. Wanglie, based on her pro-life religious views, would have favored every effort to maintain her life. The court eventually denied the hospital's petition to appoint an independent guardian.(16)

Cases such as these raise the question of what the "free exercise" of religion means. When a person's religious views dictate that she either accept or refuse life-sustaining treatment, does the person have a first amendment right to freely exercise those views, even when they conflict with what the law otherwise requires?

Under the Supreme Court's 1990 decision in Smith,(17) individuals will virtually never possess a constitutional right to freely exercise religiously inspired end-of-life decisions that conflict with statutory or common law. Smith holds that a person generally may not, based on the dictates of his religion, defy otherwise valid law.(18) The Smith regime distinguishes between a very narrow category of laws aimed at suppressing religious practice as such, which presumptively violates the free exercise guarantee, and the much broader category of neutral, generally applicable laws, which raise no free exercise problem. According to Smith, the free exercise guarantee is concerned only with brazen religious persecution in the first category.(19)

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