The fall of free exercise: from 'no law' to compelling interests to any law otherwise valid.

Author:Bonventre, Vincent Martin
Position:Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

The First Amendment explicitly allows "no law ... prohibiting the free exercise" of religion. (1) Currently, however, Supreme Court doctrine permits any law that operates to prohibit the free exercise of religion, unless that law happens to be invalid for some other reason. (2) This enormous gulf and resulting drastic dilution of free exercise protection under federal constitutional case law is the instigation for today's symposium.

The Albany Law Review is among the very oldest (3) and most distinguished law reviews in this country. (4) Among other things, it has a tradition of provocative, enlightening annual symposia, exploring crucial legal-societal issues affecting America and the world. In recent years we have had symposia on torture; on lesbian, gay, bisexual, and transgender families; on violence as a concept in international law; on judicial selection, campaign speech, and activism; on American court reliance on foreign law; and even on human cloning. (5) We are able to sponsor such symposia because of the distinguished participants who visit Albany Law School each year for the event, such as those who are with us today; and also because of the exceptional law review students who work to put these symposia together, such as this year's members and, particularly, our Editor-in-Chief Jerald Sharum and Symposium Editor Peter VanBortel. This year we will be focusing on the current constitutional status of free exercise of religion from a wide range of perspectives. To get things started, let me offer a few introductory remarks to help place our topic in context.


Again, the very language of the First Amendment free exercise protection is rather absolute. It simply and unqualifiedly permits "no law" that prohibits religious exercise. (6) As Hugo Black was fond of saying, '"no law' means no law." (7) But such a strictly literalist approach to the First Amendment generally--and to free exercise specifically--such an unconditional, categorical, absolutist application is hardly realistic, probably impossible, and, indeed, would be reckless to order and civility in a free society. (8)

On the other hand, it is instructive to consider revolutionary-era documents and understandings of religious liberty. Thomas Jefferson's Bill for the Establishment of Religious Freedom in Virginia is, to be sure, among the most seminal. Drafted by Jefferson in 1777 and ultimately passed into law several years hence, owing largely to the efforts of James Madison, (9) it recognized government's justified interference with religious liberty only within the narrowest confines. In Jefferson's words, which were left unchanged in the statute enacted by the Virginia legislature, "it is time enough for the rightful purposes of civil government for its officers to interfere when [religious] principles break out into overt acts against peace and good order." (10) Only "overt acts," and only when they disturbed the "peace and good order," would allow abridgement of the guaranteed freedom of religion.

Thomas Jefferson's formulation was early recognized by the Supreme Court as central to understanding the First Amendment's protection of religious liberty. (11) New York State's constitution, drafted by John Jay and adopted the same year Jefferson authored his religious freedom bill, similarly guaranteed free exercise with only narrow exceptions. (12) "[A]cts of licentiousness" and "practices inconsistent with the peace and safety of this State" were the sole limitations expressed. (13)

Several other state constitutions enacted at the time of the Revolution, among them those of Georgia, (14) Massachusetts, (15) and New Hampshire, (16) as well as the Northwest Ordinance, (17) likewise sharply restricted government's authority over religious exercise. Public disturbances, threats to safety, and other such conduct inconsistent with peaceful society were alone identified as limitations on the immunity of religious practices and duties from government interference. (18)

But whether free exercise of religion is construed to be absolute, as it is stated in the First Amendment, or subject to the limited restrictions identified in early state charters, there is a huge abyss between either of those and the current Supreme Court formulation that subordinates free exercise to any otherwise valid law. There is a huge abyss in terms of legal doctrine between, on the one hand, no law or no law except for state interests in peace and safety, and on the other, any law that passes a minimal legitimate-interest or rational-basis test. But that is presently the test under federal constitutional jurisprudence.


Oregon v. Smith, (19) decided by the Court in 1990 by a 5-4 vote, rejected the compelling state interest test for free exercise of religion. (20) The decision engendered a great deal of surprise, criticism, and reaction at both the federal and state level. (21) It was a clear change in the Supreme Court's jurisprudence, (22) notwithstanding the insistence to the contrary of Justice Scalia, the author of the Court's opinion. (23) It was a clear change from what most scholars and Court observers believed was the settled jurisprudence of fundamental rights, the First Amendment, and religious liberty. (24)

But this is not to suggest that prior to 1990 the Supreme Court had a particularly strong or consistent track record in protecting the free exercise of religion. A very quick recollection of a few of the most notable free exercise landmarks leads to the inescapable conclusion that the Supreme Court has, at the very best, been erratic.

Among the Court's earliest forays into free exercise were the Mormon polygamy cases in the late 1800's. Reynolds v. United States (25) and Davis v. Beason (26) were each unanimous decisions rejecting free exercise challenges to laws targeting the Mormon religious practice of polygamy. In its 1878 ruling in Reynolds, the 9-0 Court upheld a criminal prosecution against a practicing Mormon polygamist in the Utah Territory, under a federal statute criminalizing bigamy in any United States territory. (27) Several years later, in Davis, the Court contemptuously declared that for Mormons to "call their advocacy [of polygamy] a tenet of religion is to offend the common sense of mankind." (28) The Court also confidently declared a distinction between a '"religion' [that] has reference to one's views of his relations to his Creator, and to the obligations they impose," and a "cultus or form of worship of a particular sect"--the latter, in the Justices' view, quite clearly including the Mormons. (29) The 9-0 Davis Court thus had little difficulty upholding a statute of the Idaho Territory which conditioned the right to vote upon an oath against practicing, advising, or encouraging polygamy. (30) Later that same year, the Court approved an act of Congress that dissolved the Mormon Church's corporate charter in Utah and confiscated most of its property. (31)

The Quakers did not fare much better before the Court. In its 1929 decision in United States v. Schwimmer, (32) the Court affirmed the denial of naturalized citizenship to a fifty year old woman who, true to her pacifist convictions as a Quaker, had acknowledged on her application: '"I would not take up arms personally"' in defense of the country. (33) To the majority, this refusal offended "a fundamental principle of the Constitution," namely "the duty of citizens by force of arms to defend our government." (34) In one of the earliest glimmers of hope for free exercise, however, three of the justices took issue with the Court's decision. Oliver Wendell Holmes, joined in his dissenting opinion by Louis Brandeis, reminded the majority of another--"more imperative[]"--fundamental of the Constitution: "the principle of free thought--not free thought for those who agree with us." (35) Moreover, with direct reference to the religious pacifism in question, Holmes expressed his dismay that Quakers could be disqualified from citizenship simply "because they believed more than some of us do in the teachings of the Sermon on the Mount." (36)

Three years later, in Hamilton v. Regents of the University of California, (37) the Court built upon Schwimmer and Macintosh. It rejected the free exercise claims of students who were expelled from the state university for refusing to participate in required classes in military instruction. The Justices were unanimous that the students' religious convictions were "unquestionably" sincere and "[u]doubtedly" included within the 'liberty" safeguarded against state encroachment by the Fourteenth Amendment. (38) Nevertheless, according to the Court, that liberty "[p]lainly" (39) did not include "the right to be students in the State University" without satisfying "the conditions of attendance" imposed by the state--regardless of how objectionable to the avowedly safeguarded religious principles. (40) Subsequently, in its 1945 decision in In re Summers, (41) the Court applied parallel reasoning to uphold Illinois's denial of admission to the bar of a federally certified conscientious objector. Albeit now by a bare 5-4 vote, the Court rejected the claim of an applicant who was disqualified solely for his religious scruples against serving in the state's militia. (42)

The justices were equally unsympathetic to religious freedom challenges to the so-called Sunday "blue laws." These state provisions, prohibiting most businesses from operating on the Christian Sabbath, were variously claimed to violate equal protection, due process, non-establishment, and free exercise. (43) In Braunfeld and Crown Kosher, Orthodox Jewish retail merchants in Pennsylvania and Massachusetts attacked their states' blue laws for unfairly burdening their religious convictions. With Saturday being their own religious Sabbath, and Sunday being the legally mandated one, their work week was reduced to five days. For the Court, however, the...

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