Freedom from persecution or protection of the rights of conscience? A critique of Justice Scalia's historical arguments in City of Boerne v. Flores.

• Author: McConnell, Michael W.
• Position: Symposium: Reflections on City of Boerne v. Flores

In City of Boerne v. Flores,(1) the Supreme Court invalidated the Religious Freedom Restoration Act (RFRA or the "Act"),(2) on the ground that it exceeded Congress's power to "enforce" the provisions of the Fourteenth Amendment(3) RFRA would have provided protection against governmental acts that "substantially burden" a person's exercise of religion unless the government could demonstrate they are necessary to achieve a compelling governmental interest.(4)

In Employment Division v. Smith,(5) the Court held that the Free Exercise Clause of the First Amendment provides protection only against governmental action that singles out, or is specifically directed at, religion,(6) Under Smith, neutral, generally applicable laws are not subject to First Amendment challenge no matter how severe an impediment they may be to the exercise of religion.(7) I shall call the Smith interpretation of free exercise the "nondiscrimination" interpretation because it treats the Free Exercise Clause as a protection against discrimination against religion, and I shall call the alternative the "freedom-protective" interpretation because it protects a specific freedom against unnecessary governmental interference. RFRA was Congress's attempt to return to the freedom-protective understanding. The Act was invalidated on the ground that it went beyond the judicial definition of the constitutional right and could not be seen as enforcing the Free Exercise Clause.(8)

In their dissenting opinions, Justices O'Connor, Souter, and Breyer argued, with varying degrees of certitude, that Smith was wrongly decided and urged the Court to invite briefing and argument on that specific question.(9) If the Court overruled Smith, RFRA would no longer present a clash between congressional and judicial interpretations of the Constitution. Justice O'Connor pointed out that Smith had adopted its narrow interpretation of the Free Exercise Clause without briefing or argument by the parties.(10) She argued that the Smith decision contradicted precedent and "has harmed religious liberty," citing four cases in which lower courts had invoked the Smith rule to prevent "searching judicial inquiry" into infringements on religious exercise.(11) She explained that stare decisis should not dissuade the Court from revisiting Smith because the decision was "demonstrably wrong" and because, as a recent decision, it had not "engendered the kind of reliance on its continued application that would militate against overruling it."(12) She devoted the vast majority of her dissenting opinion, however, to a detailed examination of historical evidence that, she concluded, "reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion," than as a mere protection against discrimination.(13) A major part of this evidence consisted of various colonial charters and state constitutions that protected religious liberty subject to a proviso that this liberty not be used to disturb public peace or safety.(14) Justice O'Connor pointed out that these provisos would have been "superfluous" if the liberty so granted had been limited to laws discriminating against religion.(15) I have written previously on these historical points,(16) as have other historians and constitutional scholars.(17) I therefore will not comment further on Justice O'Connor's dissent, with which I largely agree.

In his opinion for the Court, Justice Kennedy did not respond to Justice O'Connor's arguments against the Smith decision, holding that "[w]hen the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles."(18) In other words, RFRA was unconstitutional because it contradicted the Court, and there was no call to consider whether the Court might have gotten it wrong.

This left the substantive defense of Smith to its author, Justice Scalia. Writing a concurring opinion in Flores gave Justice Scalia the opportunity to address the history of the Free Exercise Clause,(19) which he curiously had disregarded in his Smith opinion.(20) Justice Scalia described as "extravagant" Justice O'Connor's "claim that the historical record shows Smith to have been wrong," and contrasted that conclusion to the assessment of someone whom he described as "the most prominent scholarly critic of Smith."(21) After an "extensive review of the historical record," this critic, according to Justice Scalia, "was willing to venture no more than that `constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause."'(22) Actually, the critic went a little farther than that. He stated that "the modern doctrine of free exercise exemptions [before Smith] is more consistent with the original understanding than is a position that leads only to the facial neutrality of legislation."(23) I appreciate the gracious compliment from my former teacher--whether or not it is deserved--but after studying his attempted refutation of Justice O'Connor, I remain of the opinion that Smith was wrong.

1. THE INTELLECTUAL CONTEXT

   Before turning to the colonial and early state legal materials, on which Justice O'Connor and Justice Scalia placed primary emphasis, it is necessary to place this controversy in the context of the wider philosophical and theological debates over religious toleration and freedom of conscience.(24)

   There were many arguments for toleration: that coercion in matters of conscience could breed only hypocrisy and not sincere belief,(25) that civil magistrates are unreliable judges of religious truth,(26) that religious repression causes discord and civil dissension and makes enemies of peaceful citizens,(27) that coercion impedes the search for truth,(28) that it is contrary to the example of Jesus Christ,(29) that it weakens religion by encouraging indolence in the clergy,(30) and that religious intolerance impedes trade and industry,(31) Many of these arguments were but an application of a wider argument for limited government and a liberal state. But by far the most common argument, especially in America, and the argument most pointedly establishing religious freedom as a special case, was based on the inviolability of conscience.(32) Most natural rights were surrendered to the polity in exchange for civil rights and protection, but inalienable rights--of which liberty of conscience was the clearest and universal example--were not.(33)

   The most celebrated presentation of this argument in the American context was Madison's Memorial and Remonstrance Against Religious Assessments:

   It is the duty of every man to render to the Creator

   such homage, and such only, as he believes to be acceptable to

   him. This duty is precedent, both in order of time and in

   degree of obligation, to the claims of Civil Society. Before

   any man can be considered as a member of Civil Society, he must

   be considered as a subject of the Governour of the Universe:

   And if a member of Civil Society, who enters into any

   subordinate Association, must always do it with a reservation

   of his duty to the General Authority; much more must every man

   who becomes a member of any particular Civil Society, do it

   with a saving of his allegiance to the Universal Sovereign.(34)

   This, Madison explained, is why the freedom of religion is "in its nature an unalienable right": because "what is here a right towards men, is a duty towards the Creator."(35)

   This is as clear a statement as can be found of the theory underlying the freedom-protective interpretation of the Free Exercise Clause. The point is not just that governments should not persecute religious dissidents, but that "every man" has a duty to God, defined by conscience, that is "precedent, both in order of time and in degree of obligation, to the claims of Civil Society."(36) While the Smith interpretation of free exercise is adequate to ward off religious persecution, it is not adequate to achieve a full liberty of conscience, so understood. Thus, in his first draft of what ultimately was enacted as the Religion Clauses of the First Amendment, Madison proposed that "[t]he civil rights of none shall be abridged on account of religious belief or worship ... nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed."(37) That civil rights not be abridged "on account of" religious belief or worship protects against persecution or discrimination and approximates the Smith reading of the Free Exercise Clause. That the full and equal rights of conscience not be "in any manner, or on any pretext, infringed" goes beyond that.

   The question naturally arose, however: What if, under claim of conscience, a religious adherent asserts a right to do some terrible thing? The question is found, in some form, in virtually every tract against liberty of conscience, and most of the writings advocating religious toleration offer some variant of the same answer. Pierre Bayle, for example, noted that critics claim that if freedom of religion were adopted, "magistrates would not be able to punish a man who robs or kills, after being persuaded of the lawfulness [meaning lawfulness according to religious law] of these actions."(38) The answer, he said, is that the magistrate "is not obliged to have any regard for conscience except in matters which do not affect the public peace."(39) The magistrate "is obliged to maintain society and punish all those who destroy the foundations, as murderers and robbers do."(40) William Penn described one of the objections to liberty of conscience as follows: "at this Rate ye may pretend to Cut our...