The free exercise clause, the Religious Freedom Restoration Act, and the right to active and passive euthanasia.

• Author: Smolin, David M.

One of the ironies of modern constitutional law is the number of establishment clause cases that forbid a form of speech or expression.(1) Similarly, much of the theorizing about the proper scope of the establishment clause proposes that religious citizens, legislators, or judges be restrained, or restrain themselves, from expressing religious reasons for public policies.(2) The underlying purpose of the restrictions on religious expression found in cases and theoretical writings is often stated as governmental neutrality regarding religion.(3)

Religions are concerned with far more than speech and expression; religions generally also are quite concerned with conduct. Religion generally seeks to address the most central spheres of human conduct and experience, including work, procreation, child-rearing, and death.(4) The) modern United States Supreme Court has chosen some of these areas, to differing degrees, as special areas of individual freedom and autonomy, while permitting broader state regulation in others. This judicial process of picking and choosing among certain human activities not mentioned in the text of the United States Constitution has generally ignored the religion clauses, despite the obvious interest of various religious groups in these central areas of human life.

Neither the legislature nor the Supreme Court itself can accomplish actual religious neutrality in areas such as abortion, marriage, work, and death. For example, the constitutional question of whether there is a fundamental right to unilateral elective divorce, or the legislative question of whether to adopt the same right as a matter of state law, inevitably favors or disfavors the various views of divorce found among Orthodox Jews, Reform Jews, Roman Catholics, liberal Protestants, evangelical Protestants, and Mormons. Indeed, the constitutional selection of divorce as a fundamental right about which the individual is autonomous would favor those religions which believe that an individual may ethically divorce his or her spouse on the grounds of personal incompatibility. Of course, it is just as impossible to maintain neutrality between religion and nonreligion in regard to such questions. Thus, since laws will necessarily correspond more closely with some religious views, and sharply contradict others, actual governmental neutrality is impossible.

There are simple and identifiable fears behind the lofty rhetoric of modern religion clause debate. For example, those who believe sexual and reproductive freedom to be central to human life fear that traditional religious limitations on such freedom will be written into law. They therefore look for the principle of religious neutrality to somehow shield them from such laws. Adherents of traditionalist religions can respond that it is hardly "neutral" to exclude only "religious" viewpoints (or only traditionalist religious viewpoints) as legitimate sources of public policy. Moreover, traditionalist religious citizens themselves fear that their own ways of life will be legally disfavored or even prohibited.(5) The Supreme Court's religious neutrality rhetoric encourages citizens to look to the Court to somehow protect them from their religious opponents in the public arena. Thus, despite the obvious impossibility of achieving actual neutrality, judges and commentators are left seeking the best way to approximate religious neutrality.

It could be argued that the government could best approximate religious neutrality by mandating broad individual autonomy in central areas of human life and thereby leave the question of whether to be bound by more restrictive religious rules to the individual.(6) This arguably could have the effect of achieving neutrality both among religions and also between religion and "nonreligion." However, such an approach would advantage those religious and nonreligious views of government that emphasize individual autonomy and would politically cripple all those, whether religious or not, who believe that the public good requires restrictive legislation in important areas of human life. indeed, in the modern welfare-regulatory state areas of central human concern such as education and health care are at the heart of governmental authority.(7) Thus the expansion of the modern state associated with modern "liberalism" itself mitigates against the "liberal" solution of deregulating central areas of human activity in the name of religious neutrality.

Alternatively, the Court could allow both religious and nonreligious political participation, while granting broad religious exemptions for conduct related to central spheres of human life. The latter approach would safeguard the capacity of religious and nonreligious actors to influence governmental policies, while maintaining a partial neutrality through a protection of the religious losers of such public policy debates. However, the provision of only "religious" exemptions would arguably disadvantage nonreligious losers of such public policy debates.

Whatever one might think of such options, or others that could be elaborated,(8) it is clear that the contemporary Supreme Court has failed to act in a way that approximates governmental neutrality regarding religion. The Supreme Court has used the word liberty in the due process clauses to pick and choose among clearly important human activities, rather than protecting all such liberties equally.(9) This picking and choosing among activities such as abortion,(10) adult consensual sodomy,(11) and heterosexual marriage(12) convey to many a kind of religious favoritism. The Supreme Court has largely left the states free to legislate in regard to important areas such as marriage, divorce, work, and death, thus permitting, in effect, some religious views to dominate others in relation to public policy. Finally, the Court, since its 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith (hereinafter Smith II),(13) has refused to protect the religious losers of political disputes regarding central human activities.

A central thesis of this article is that governmental neutrality regarding religion is a primarily rhetorical goal of the modern Court. The Court's holdings enforcing such neutrality typically restrict speech, or rhetoric, largely because the Court's commitment to such neutrality is itself largely rhetorical. The modern Court identifies religion primarily with expressly religious activities such as prayer, worship, religious instruction, and evangelism. The continuing American practice of prayer and the invocation of God in public and official rhetoric, combined with the free speech clause's protection of at least some of this expression, has thus far prevented the Court from truly mandating a secular public arena, with that enormous task left largely to the imagination of the commentators. Thus, even the Court's commitment to policing public rhetoric is largely rhetorical and principally confined to public education of minors.

When faced with centrally religious areas of human life that involve conduct, the Court abandons religious categories and either adopts or defers to legal rules that favor particular religions. Death, examined here in the broad context of active and passive euthanasia, is perhaps as inherently religious" a sphere of human activity as could be imagined.(14) If the religion clauses do not matter in this arena of human conduct, then the effect of the religion clauses would be primarily limited to expressly religious expression such as prayer, worship, and evangelism. Active and passive euthanasia are also useful because they illustrate, as a matter of constitutional law, the intertwining of religion clause and substantive due process doctrines and concerns.

Part one of this article examines the cultural and religious significance of the issues posed by active and passive euthanasia in contemporary America.(15) This analysis underscores the complex manner in which varied religious views address the financial, demographic, medical, and cultural questions raised by active and passive euthanasia. Religion, and religious conflict, are deeply embedded in American debates regarding these issues.

Part two of this article focuses on the application of Smith II to active and passive euthanasia.(16) Justice Scalia's Smith II majority opinion intertwined free exercise and substantive due process analysis through the concept of a hybrid right.(17) This intertwining necessitates an examination of substantive due process/right of privacy case law relevant to euthanasia. The examination of the cases will be unsatisfying to those who seek clarity or coherence, as the article will not seek to impose upon the confused and disordered case law a clarity or vision that is lacking. The ultimate irrelevance of the free exercise clause for most euthanasia issues will be demonstrated.

Part three will examine the impact on euthanasia issues of the newly enacted Religious Freedom Restoration Act (RFRA),(18) to see if this legislation significantly alters the predicted results found under the free exercise clause alone.(19) Surprisingly, application of RFRA would make relatively little difference to most euthanasia-related issues. The same fundamental constraints that limited the reach of free exercise exemptions in this area will also limit the reach of RFRA.

Parts two and three, it should be underscored, are primarily confined to the law as it is, and as it is likely to be. The paradoxes and inconsistencies of law in this area apparently stem from a fundamental tension between the rhetoric of religious neutrality and the actualities of a representative system of government. Upon examination, many spheres of human activity, including dying, killing, and letting die, are matters of intense concern for both government and religion. One cannot both let the people decide and enforce religious neutrality.

A second fundamental...