KEEPING OUR BALANCE: WHY THE FREE EXERCISE CLAUSE NEEDS TEXT, HISTORY, AND TRADITION.

• Author: Haun, William J.

In Fiddler on the Roof, the main character--Tevye der Milkhiker--begins the play with an ode to "Tradition." The song recounts how the duties of religion, family, and work ensure continuity amid change. This enduring stability is tradition's virtue--or as Tevye puts it, "how we keep our balance." Without that balance, "our lives would be as shaky as a fiddler on the roof." (1) Fiddler's understanding of tradition--a means to ensure continuity amid change--would be a helpful corrective to current Free Exercise doctrine.

During the past decade, Free Exercise doctrine has become something like a fiddler on a roof. More than before, religious liberty is a prominent feature of the U.S. Supreme Court's docket. These cases raise many doctrinal questions: What is religious speech? (2) When and how is government "neutral" toward religion? (3) What does it mean for religious groups to participate equally in public programs? (4) What protections do the religious have against government discretion? (5) Do those protections change based on corporate status? (6) What if the government admits it could accommodate a religious organization, but refuses to do so? (7) Can a government refuse religious accommodations based on comparisons to secular accommodations, and if so, what is properly comparable? (8) What makes a church employee a "minister"? (9) And to what extent can civil courts intrude into a religious organization's internal decisions? (10) Although these myriad contexts call the Free Exercise "fiddler" to dance to many tunes, one thing is clear: the fiddler is dancing on unstable doctrine.

That is because current doctrine often rests on Employment Division v. Smith. (11) Smith refused to authorize a religious exemption from an "across-the-board-criminal prohibition on a particular form of conduct." (12) The folk understanding of Smith is that the government never has to accommodate religious believers burdened by "neutral" and "generally applicable" laws. This baseline treatment continues even as five sitting Supreme Court justices acknowledge "compelling" reasons to overrule Smith. (13) And, as will be discussed, Smith's premises are disintegrating. In short, the Free Exercise Clause needs surer footing than Smith.

Smith should be abandoned and "text, history, and tradition" should be adopted in its place. This latter approach is taken by standard originalism, (14) fully expressed in the Second Amendment context, and--notably for the Free Exercise Clause--already applies to other Religion Clause doctrines. (15) On this approach, the Free Exercise Clause would presumptively protect a given religious exercise unless the opposing party can show a long, unbroken tradition of restriction that is analogous to the burden at issue. Text and history are already well-established interpretive commitments. (16) But tradition's contribution is less clear. This article explains the role tradition should play in Free Exercise doctrine.

The Free Exercise Clause "has infrequently been interpreted traditionally." (17) The complicating factor is Justice Scalia's opinion for the Court in Smith. (18) There, Smith responded to the textual ambiguity of the Free Exercise Clause toward religious accommodations with Justice Scalia's preference: judicial restraint. (19) Smith admits this was a "prefer[ence]," not a constitutional mandate. (20) And this preference overrode any regard for longstanding practices of religious accommodation--evidence that Smith (and Justice Scalia again in City of Boerne v. Flores (21)) deemed inappropriate for courts to consider. (22) These choices make Free Exercise jurisprudence a doctrinal outlier. (23) Moreover, by jumping straight from the Free Exercise Clause's textual ambiguity on accommodation to Smith's restraint preference, "restraint" is enforced by two abstract standards ("neutrality" and "general applicability") that have no necessary connection to the Clause's semantic or historical meaning--to say nothing of longstanding practices toward religious accommodation. Unsurprisingly, the result of these abstract standards is not restraint, but the interpretive tools that Justice Scalia considered unrestrained: legislative history, decisionmaker motive, and analysis of a law's disparate impacts. These tools not only license judicial manipulation to uphold government burdens on religion, (24) they remove the Free Exercise Clause from its ordinary understanding as a guarantee of religious liberty. (25)

Here, because there are open methodological points related to tradition, (26) it is important to clarify what I mean when I refer to "text, history, and tradition." This article advocates for the use of "text, history, and tradition"--in that order--when interpreting the Free Exercise Clause. Some have argued for a form of "tradition" that disregards text and original public meaning. (27) Others have argued for the role of "liquidation," whereby an ambiguity in the Constitution's original meaning is "settled" by a post-ratification practice or practices, regardless of their temporal endurance before and after ratification. (28) Neither tradition alone nor liquidation is my claim. Rather, a political community's longstanding practices toward particular religious accommodations--practices that can come both before and after the Constitution's ratification--should illuminate what text and history do not definitively resolve about the Free Exercise Clause's original meaning. Illumination would result by the judiciary answering "historical, analogical questions," akin to the Court's approach in the recent Second Amendment decision, New York State Rifle & Pistol Association v. Bruen. (29) As Bruen said, this approach was adopted from a "similar" one governing Establishment Clause doctrine. (30) The church autonomy context reflects this approach too. All these contexts provide strong reasons for extending "text, history, and tradition" to the Free Exercise Clause.

In particular, this article makes three doctrinal suggestions: (1) moving from a grand unified theory governing all Free Exercise cases--as Smith sought--to context-specific rules rooted in historical analogues; (31) (2) limiting any inquiry into "compelling" interests to those that the opposing party shows, through longstanding practice, are well-accepted reasons to burden the religious exercise at issue; (32) and (3) crafting distinct protections for religious institutions. (33) These changes reflect tradition's insight: self-government requires enduring consent, and that consent is demonstrated by the American people's longstanding practices toward their constitutional guarantees. Free Exercise doctrine, in both its substance and its administrability, would benefit from this practical wisdom.

1. TRADITION AS AN INTERPRETIVE AID TO TEXT AND HISTORY

   Tradition's distinct interpretive role is often "elided" when the Supreme Court discusses text and history. (34) It is therefore important to understand what tradition itself brings to the interpretive table. That is this section's subject.

   There are many ways to distinguish tradition from text and history. One could explain why tradition is not as widely used. (35) One could discuss tradition's distinct justifications in morality and politics, contrast tradition with less standard forms of originalism, or distinguish tradition from "liquidation." (36) These distinctions have been drawn well by others, especially Professor Marc DeGirolami. (37) Instead of retreading those grounds, this section will explain tradition's distinct contribution to a jurisprudence of text, history, and tradition. The first subsection will explain how tradition's supplemental contribution to text and history compensates for text and history's potential for overtheorizing and unworkable rules. The second subsection will explain how originalism's standard approach--the approach of text, history, and tradition--provides examples of how to operationalize tradition's supplementary role.

   1. Tradition compensates for the shortcomings of text and history.

      "Almost all interpreters, whatever their school of thought, agree that the constitutional text (including inferences from structure) is the place to begin, and that when the text is clear it is binding." (38) A commitment to the primacy of text is rooted in certain theories about the binding nature of a written constitution. (39) A similar point can made about the importance of history. Among all constitutional interpreters, "[t]he importance of the temporal dimension is well recognized." (40) Where interpreters differ is not so much on the importance of an historical "moment," but what that historical moment should be. For originalists, the history of "the moment at which the Constitution was adopted" matters. (41) For living constitutionalists, the present moment's--purportedly--"better informed understanding" (42) is what matters. But no matter the preferred "moment," history-based jurisprudence is accepted, and text-based jurisprudence is too.

      However, interpreting text and history can be very mechanical and empirical. (43) That is not necessarily a problem. Technical tools and rules can be quite helpful. And for both text and history interpretation--where the inquiries are either semantic or consider the meaning of a word in an isolated "moment"--technical methods can make sense. (44) But tradition-based evidence is different, because tradition does not "view[] authoritative history as the snapshot of a particular moment." (45) Rather, by analyzing longstanding practice, tradition-based interpretation is analogical--finding meaning when "multiple institutions independently reach[] the same conclusion" on a practice "over a long period of time." (46) This analogical inquiry, while necessarily comparative, "is not a mere likeness between diverse objects, but a proportion or relation of object to object." (47) The interpretive insight of tradition comes not from more...