PROPHYLACTIC FREE EXERCISE: THE FIRST AMENDMENT AND RELIGION IN A POST-KENNEDY WORLD.

• Date: 22 September 2018
• Author: Beery, Brendan

INTRODUCTION

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, (1) the Supreme Court had the chance to resolve the building tension between the equality principle embodied in anti-discrimination laws and the First Amendment's guarantee of free exercise. (2) In that case, a cake maker refused to make a cake for a same-sex couple's wedding, defying a Colorado civil-rights law that required him to do so while invoking his freedom of conscience as a religious believer. (3) Do one's deeply believed biblical convictions excuse one from compliance with neutral and generally applicable laws?

The Court, per Justice Kennedy, avoided the question. (4) Instead, it wagged its finger at the Colorado Civil Rights Commission and gave it a stern talking-to about impartiality and respect, holding merely that in this case, the state had been partial in its dealings with the cake maker. (5)

Justice Kennedy was able to get some of the Court's more liberal justices to sign on to his opinion (albeit with some reservations). (6) It seems safe to say, when one considers the concurring Masterpiece Cakeshop opinions of Justices Gorsuch (7) and Thomas, (8) together with the writings of the Chief Justice (9) and Justice Alito (10) in other cases, that Justice Kennedy caused the result (or the non-result, as it were) in the case. For reasons that will be fleshed out more thoroughly below, had Justice Kennedy not been on the Court (and had a more socially conservative jurist like Justice Brett Kavanaugh been in his place), the Court would likely have decided more broadly that free exercise trumps any generally applicable obligation under a mere state statute. (11)

Part I of this article examines the drift, in free exercise jurisprudence, from the protection of affirmative, active, kinetic religiosity (things like expressing belief, praying, gathering for worship services, participating in rituals and sacraments and rites, and so forth) to the protection of beliefs that conflict with the strictures of generally applicable and seemingly even-handed laws--even laws that simply require state neutrality as to religion. (12) I call this the drift from dynamic free exercise to prophylactic free exercise; under this emerging view (in a historical sense, reemerging), if I am a believer, then I am not just free to do what I please in my religious life, but also free from the application of any law that might cause me angst because of my religious beliefs.

Part II explores Justice Gorsuch's concurring opinion in Masterpiece Cakeshop, which seems to have been laid as a foundation for the Court's post-Kennedy doctrine as to this tension between secular laws and free exercise rights. Part III suggests that, in the new paradigm Justice Gorsuch presages, where belief will be of a higher constitutional rank than non-belief, those who now characterize themselves as non-believers might wish to cast themselves as believers instead--not "believers" in the sense of adhering to sectarian dogmas, but in the sense of having opinions and ideas about religion, spiritual matters, and how the world works. (13) The new Supreme Court majority will likely hold that because the First Amendment protects beliefs and the expression of beliefs, it therefore has no application to the absence of beliefs or their expression--to mere attitudes or disbelief systems. It would be harder, on the other hand, for the Court to ignore arguments that are framed to set up a contest between or among competing beliefs about religion, all of which implicate the First Amendment. Part III therefore proposes a new vocabulary for non-adherents in the free-exercise cases to come: a vocabulary that does not passively deny the truth of perceived falsehoods, but rather assertively expresses those beliefs about religion that may be held even by a secularist.

1. FROM DYNAMIC TO PROPHYLACTIC FREE EXERCISE

   There are two religion clauses in the Constitution. (14) The first is the Establishment Clause, which is widely understood as enjoining governmental entanglement with religion, (15) endorsement of religion, (16) or coercion. (17) According to the Supreme Court, the principle undergirding the Establishment Clause is neutrality: the government may not favor religion over non-religion, non-religion over religion, or one religion over another. (18)

   The second is the Free Exercise Clause, which is also understood, as a matter of the political philosophy prevailing at the time the Constitution's drafting, as requiring the government to be neutral as to religion--as to its existence and its exercise in the lives of citizens: "[The] history [of the union of church and state] prompted John Locke to urge toleration and stress the necessity of distinguishing 'the business of civil government from that of religion' and establishing clear boundaries between them." (19)

   The two clauses, quite famously, tend to come into conflict, as when a public school tries to maintain government neutrality by stopping a student from intoning a sectarian prayer during a commencement speech. (20) When maintaining governmental neutrality is at odds with abiding religious practices, the Court has naturally sought to discover which takes precedence. (21) There was a time when the Supreme Court seemed to suggest a broad exemption for believers offended by the strictures of secular laws: courts were to exempt religious adherents from those strictures when a belief and a stricture were in alleged conflict unless the government had some interest "of the highest order" in play. (22) The Court then lurched in the other direction, holding that one's religious beliefs do not exempt one from complying with a generally applicable and even-handed law. (23) Now, however, the Court is moving back toward the "highest order" standard: a neutral law cannot be enforced against a religious objector unless the government has some compelling interest in enforcing compliance. (24)

   Under this view, not only is the government prohibited from interfering in what a religious adherent does; it is required to respect and abide what the adherent believes, even when the adherent's belief runs afoul of a seemingly neutral law. (25)

   1. Dynamic Free Exercise

   There seems some confusion about the word exercise. Exercise means "the act of bringing into play or realizing in action." (26) It is "[a]n activity carried out for a specific purpose." (27) To exercise something is to engage in "the use of something." (28) "If you exercise something such as your authority, your rights, or a good quality, you use it or put it into effect." (29) The exercise of something cannot, by definition (it would seem), be passive or inert. The exercise of something is, rather, active and kinetic--it is dynamic. The same is true of a number of the freedoms, even outside the First Amendment, guaranteed by the Bill of Rights (30): in the constitutional sense, we are free to, not free from, except in the sense that we're free from the government's interference when we choose to do something that we have a right to do. (31) The free exercise of religion, then, seems to involve a right to practice one's religion and to express it: to pray, to celebrate, to worship, and to indulge whatever ceremonies and rites one sees fit to indulge. (32)

   The Court seemed to take this view, for example, in Church of Lukumi Babalu Aye v. City of Hialeah. (33) There, the issue was whether a city could constitutionally target animal sacrifices that were undertaken as part of religious rituals associated with Santeria. (34) The city's ordinance did not apply across the board; although adherents to Santeria were not allowed to kill chickens as part of any animal sacrifice, others in the city were allowed to kill chickens for other reasons (35) (when I teach this to law students, I call it "the KFC exception"; one wonders whether a chicken with its head on the chopping block really cares one way or the other). This being so, the Court, per Justice Kennedy, applied strict judicial scrutiny (36) and struck down the ordinance as applied against Santeria. (37)

   The Court noted, "[i]n addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." (38) As Justice Kennedy emphasized, animal sacrifice, unlike merely inert religious belief, is a ritual--an overt and active expression of religious belief undertaken in the context of worship and prayer. (39) This is consistent with the notion that the First Amendment protects dynamic free exercise; there is nothing passive or dormant about it.

   In Lukumi, the Court, helpfully, surveyed other cases involving the application of the Free Exercise Clause under then-prevailing norms:

   At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Indeed, it was "historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause"... In McDaniel v. Paty, (40) for example, we invalidated a state law that disqualified members of the clergy from holding certain public offices, because it "impose [d] special disabilities on the basis of... religious status." On the same principle, in Fowler v. Rhode Island, (41) we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service. (42) Under this view, mere religious belief is only protected under the Free Exercise Clause to the extent that it is purposefully targeted by the...