Some problems of free exercise doctrine - social good, social harm, and undue burdens: an essay.

• Author: Day, David S.

1. INTRODUCTION

   Professor Marci Hamilton's book, God vs. the Gavel: Religion and the Rule of Law, (1) a provocative, revisionist examination of modern free exercise doctrine and the status of religious liberty in the American constitutional system. I decided to prepare this review essay in order to make some comments about her book and to make some suggestions about the future course of free exercise doctrine. The review essay format provides me with greater flexibility for some thoughts that, although considered for a number of years, are admittedly not "final".

   Hamilton's book addresses two highly controversial decisions in modern constitutional law: Employment Division v. Smith (2) and City of Boerne v. Flores. (3) Flores is normally addressed as a power of Congress case in what would be called the Constitutional Law I course. Smith, of course, is a prominent decision in the free exercise doctrine part of the First Amendment; free exercise doctrine and Smith would normally be addressed in a Constitutional Law II course. However, as students of these matters understand, Smith and Flores are a point of intersection between the plenary powers and free exercise doctrines. Hamilton's book makes a significant contribution to the literature by examining some of the doctrinal connections between Smith and Flores.

   Part of the interface between these doctrines is relatively straight-forward. This constitutional intersection originated from the Smith Court's decision in 1990 about the scope of judicial protection provided by the Free Exercise Clause against government action. The Smith Court decided that, absent purposeful governmental action, the Free Exercise Clause standard would be rational basis--not strict scrutiny. (4) Congress quickly responded to the Smith decision by passing the Religious Freedom Restoration Act of 1990 (RFRA). (5) In RFRA, Congress sought to overturn the Smith decision and reinstate strict scrutiny as the governing standard for judicial review. Seven years later, in Flores, the U.S. Supreme Court struck down RFRA as outside the power of Congress. (6) The rationale for Flores was complex and multi-faceted, and there were many questions about how broadly Flores would sweep. One point, however, was clear: Congress did not have the authority to overturn a constitutional decision by the Supreme Court with a mere statute. (7)

   Hamilton's book is also interesting because it reflects a certain doctrinal reversal on her part, one perhaps shared by other academics (albeit, less publicly). Hamilton was one of the many critics of the Smith decision. (8) But she subsequently changed her view. Indeed, she represented the city in Flores, and she won the Flores decision. (9) As she explains in considerable detail, what turned her into a supporter of Smith was the development of her understanding that religion is not always "pure," or a "good" element in society.

   Religious activity, Hamilton argues at some length, has created much social harm, as well as social good. (10) Hamilton's focus on the socially harmful consequences of protecting religious exercise is a substantial contribution to the recent Free Exercise Clause literature because it addresses an issue often overlooked. Hamilton's work, in my view, helps us to understand that religious exercise must be constitutionally protected even though it can have harmful as well as beneficial consequences.

   As I said earlier, this is a thought-provoking book. I find that it has caused me to reflect on several doctrinal matters. After reviewing the book generally, I shall discuss three matters here: Hamilton's analysis of the Smith decision, the role of the legislative branch in the protection of free exercise values, and the adequacy of the Sherbert-Yoder model to address the harms caused by religion (as identified by Hamilton). Hamilton's book addresses other topics, but time and space limitations persuade me to focus on these selected issues.

2. THE HARM CAUSED BY RELIGION

   In Part I of the book, Hamilton addresses the harm caused by religious exercise. She explains, sometimes in great detail, how religious entities and religious persons have done harm to the general public, or even to some of their own religious adherents. She asserts that religious groups, in the name of free exercise doctrine, have been "lobbying for the right to hurt others without consequences". (11)

   In addressing the harm caused by religion, Hamilton has six chapters categorizing the types of harms. The brief summary provided here neglects many aspects of her presentation, but my focus is on the status of contemporary free exercise doctrine.

   In Chapter Two, Hamilton addresses the harm caused to children. She concludes--not surprisingly--that "religious institutions have been havens for pedophiles ...". (12) In Chapter Three regarding marriage, she discusses the harm caused to women and children, from polygamist relationships and otherwise. In Chapter Four, she discusses religious land use and residential neighborhoods and the harms caused there. In Chapter Five, there is a lengthy discussion of the harm caused by religious entities in schools and educational settings. Chapter Six is a discussion of the harm caused by religious beliefs and religious conduct in prisons and in the military. Finally, in Chapter Seven, Hamilton discusses the harm, mainly in the workplace, caused by the exemptions given to religious entities from otherwise generally applicable anti-discrimination laws. These exemptions also demonstrate, in Hamilton's view, the political power of religious groups and institutions. (13)

   I will not present a detailed discussion of these two hundred pages. It seems to me that most of Hamilton's description of these social harms must be accepted as correct. Of course, religious entities also do much "good"--for individuals and for society. (14) Hamilton recognizes this. Hamilton's objective is to provide information to present a mixed, realistic picture.

3. FREE EXERCISE DOCTRINE

   In Part II of the book, Hamilton discusses various doctrinal issues, including the three I have chosen to review. First, Hamilton has an extended discussion of free exercise doctrine as that doctrine blends into the discussion of the powers of Congress under Section 5 of the Fourteenth Amendment. At the beginning of the free exercise discussion, Hamilton reviewed the historic origins of the "no harm" rule. (15) As to the free exercise doctrine, Hamilton summarizes that the modern doctrine is a "battle ... between republicanism and libertarianism". (16)

   Hamilton begins her analysis of free exercise doctrine with Sherbert v. Verner. (17) Her conclusion about Sherbert is that it was "awkwardly inserted" into the doctrine. (18) Hamilton then turns to the next major decision, Wisconsin v. Yoder. (19) Yoder involved a free exercise claim by Amish challengers against Wisconsin's compulsory school attendance law. Many of us have often wondered whether Yoder was really a major decision or just a "cute case". But, few are as blunt as Hamilton when she asserts that Yoder was simply "wrongly decided". (20)

   After Yoder, Hamilton addresses the Smith decision. Smith involved a free exercise claim by two anti-drug counselors at a private clinic who were discharged for using peyote as part of their Native American religious practice. When the two counselors were denied unemployment benefits, they sued the State of Oregon. Despite the similarity to Sherbert, the challengers lost. Hamilton argues that that the Smith decision was a proper announcement of a "non-persecution principle," consistent with the "no harm rule". (21) Using her no harm principle as her "default rule," Hamilton concludes that "the default rule is only overcome in the face of evidence of persecution of religion". (22)

   One of the admirable aspects of Hamilton's book is that she discusses the major free exercise decisions after Smith and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (23) She discusses, for example, Locke v. Davey. (24) Hamilton understands Locke as consistent with Smith where "respect for the state's disestablishment clause" (in its state constitution) was not purposeful "hostility or animus toward religion". (25) By reviewing the decisions after Smith, Hamilton provides a comprehensive background to her argument.

   1. HAMILTON'S REVISIONIST DEFENSE OF SMITH

      In addition to presenting the general history of free exercise doctrine, Hamilton analyzes the Smith decision in greater depth. Although she now believes Smith reached the correct result, Hamilton does present some criticism of the Smith decision. She suggests, for example, that the Smith decision involved an "overinflated...