Lessons from Pharaoh and the Hebrew Midwives: Conscientious Objection to State Mandates as a Free Exercise Right

JurisdictionUnited States,Federal
CitationVol. 39
Publication year2022


Creighton Law Review

Vol. 39


The King of Egypt told the Hebrew midwives . . ., 'When you act as midwives for the Hebrew women and see them giving birth, if it is a boy, kill him; but if it is a girl, she may live.' The midwives, however, feared God; they did not do as the king of Egypt had ordered them, but let the boys live.(fn1)


In October, 2004, the United States Supreme Court denied a petition for writ of certiorari in the case of Catholic Charities of Sacramento, Inc v. California.(fn2) In their petition for the writ, Catholic Charities framed the question presented in this way: "Whether the State may compel an organ of the Catholic Church, contrary to its religious teachings, to include contraceptives in the prescription drug plan it provides to its employees, and thereby to finance conduct that the Church teaches is sinful."(fn3) The denial of a writ of certiorari left in place a California Supreme Court decision that held that California's imposition of a duty on Catholic organizations to cooperate directly in continuous, serious sin is consistent with the Free Exercise Clause of the United States Constitution.(fn4) Denying the writ also meant that the Court missed an opportunity to bring clarity to its free exercise jurisprudence, but the confused nature of its current doctrine insures that it will have many more such opportunities in the near future.

Religious believers fear that the result in Catholic Charities is indicative of a larger trend that threatens to squeeze them out of full participation in civic life under the pressure of regulatory laws requiring them to engage in conduct forbidden by their religion.(fn5) They are faced with increasingly successful political campaigns seeking to mandate actions forbidden by their faith(fn6) and a simultaneous campaign to limit or eliminate entirely statutory "conscience clauses"(fn7) that protect them from at least some of these mandates. Many of the battles over these mandates in recent decades have played out in the health care arena, particularly over controversial procedures at the beginning and end of life. There is nothing in principle, however, that limits the state's power to require "sinful" behavior to those in the health care realm, as Catholic Charities demonstrates.

Because the United States Supreme Court in a controversial 1990 case, Employment Division v. Smith,(fn8) held that most laws of general applicability burdening religion will not receive heightened scrutiny, religious believers find themselves in a precarious position when the State seeks to require "sinful" behavior.(fn9) In the absence of statutory conscience protection, religious believers are faced with the stark choice of either withdrawing from the field of activity imposing the mandate, or committing a sin under the compulsion of the state.(fn10) The wrenching nature of such a decision was illustrated at a recent legislative hearing over a proposed state mandate requiring pharmacists to dispense certain drugs when such an action would be deemed a sin according to the pharmacist's religion: "Fourth generation pharmacist John A. Menges of Collinsville choked back tears and at points broke down completely as he explained his belief that filling prescriptions for emergency contraception violates his core Catholic beliefs."(fn11)

Often this Hobson's Choice is justified by the argument that religious believers who operate in the "civil" or "secular sphere" must not expect special solicitude for their religious scruples.(fn12) Such a stark division between spheres of life is itself a rejection of those religious traditions that exhort their adherents to engage in charitable and educational works to assist all those in need.(fn13) The state-sponsored creation of this kind of dilemma for those with serious religious objections can easily engender the very kinds of religiously-based feelings of resentment and hostility toward the government that the First Amendment was designed, in part, to ameliorate.(fn14)

In this Article, I argue that the Supreme Court, in its haste to withdraw from an overly-broad interpretation of Free Exercise Clause protections that admittedly threatened many practical problems, overshot the mark in Employment Division v. Smith.(fn15) Had the Court looked carefully at its precedents laid out during the thirty-year period during which it granted some free exercise exemptions from neutral laws of general applicability, it would have discerned a relevant distinction among its winning and losing cases that creates a workable judicial rule and eliminates the problems identified in Smith. That distinction turns on whether the claimant is seeking a "conscientious objection" exemption or a "civil disobedience" exemption, terms I will shortly define. As it is, Smith set forth a broad rule largely withdrawing the courts from granting free exercise exemptions from neutral laws of general applicability. At the same time, in an effort to harmonize this holding with precedent that seemed to permit more free exercise protection, the Court carved out two narrow and confusing exceptions to this general rule. The Court should replace Smith's illogical exceptions and mis-reading of precedent with a proper interpretation based on a distinction between conscientious objection and civil disobedience claims for exemptions.

I use the term "conscientious objection claims" when a religious believer seeks to be free of state mandates or state pressure to engage in particular kinds of behavior understood as sinful by his or her religion. In such cases, the believer seeks to do no overt act but rather to remain passive. The believer is thus attempting to obey religious commands that say, "Thou shall not" kill,(fn16) salute graven images or flags,(fn17) work on the Sabbath,(fn18) work in a munitions factory,(fn19) send your children to high school,(fn20) or engage in conduct deemed sinful under the divine law.

On the other hand, I use the term "civil disobedience claims" to indicate the efforts of a religious believer who seeks to overcome a state-imposed ban or burden on a particular kind of conduct that his or her religion enjoins him to engage in. For example, the State has de-clared "thou shalt not" ingest peyote,(fn21) smoke marijuana,(fn22) engage in polygamy,(fn23) operate a business on Sundays,(fn24) wear religious garb with your military uniform,(fn25) or burn widows on the funeral pyres of their husbands. Claimants seeking exemptions from these kinds of laws are seeking to engage in overt conduct they view as religious duties, but which the State has determined should not be allowed.

I argue that conscientious objection claims by religious believers are very close to the core of religious liberty, are in line with the history and tradition of American understandings of the proper limits of free exercise rights, generally present less danger to the community, and should receive a different kind of constitutional analysis compared to claims of those seeking civil disobedience religious liberty rights. Indeed, the citations to important federal cases in the above two paragraphs demonstrate that conscientious objection claims were the predominate winners at the Supreme Court level when it granted religious exemptions, while civil disobedience claims were losers.

A statistical analysis of ninety-eight free exercise cases in federal courts demonstrates that when the Supreme Court permitted courts to craft exemptions, religious conscientious objection claims were almost four times as successful as those in which the claimant sought a civil disobedience religious exemption.(fn26) From 1963 to 1990, 45% of the religious conscientious objection claims identified in my survey were successful, compared to only 12% of civil disobedience claims.(fn27) When one considers that American notions of liberty tend to limit the kinds of state mandates that get enacted in the first place and that statutes typically provide conscientious objection rights to some of the most potentially contentious kinds of state mandates, such as military draft exemptions and the priest-penitent testimonial privilege, the protection of religious conscientious objectors appears to be a very strong American legal norm.

The Supreme Court should reconsider Smith and acknowledge the case does not set forth a coherent reading of its precedents or a workable set of rules. I propose that the Court should return to Smith's precedents and hold that a proper interpretation of the Free Exercise Clause provides a right to conscientiously object to laws mandating actions that violate the moral law of a claimant's religion. An exemption for religious conscientious objectors should be required un-less the state mandate is narrowly tailored to a compelling state interest. A right to conscientiously object to sinful state mandates is consistent with the Court's precedent, ameliorates all of the problems identified in Smith as stemming from a broad right to free exercise exemptions, comports with our nation's traditional understandings of free exercise of religion, and provides a workable and common sense rule for deciding free exercise cases.(fn28)

Part I sets forth a hypothetical law seeking to...

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