The common law sovereignty of religious lawfinders and the free exercise clause.

• Author: Roberts, Bernard
• Position: Case Note

The ascending theme of contemporary free exercise jurisprudence is that the Free Exercise Clause of the First Amendment(1) imposes no presumptive structural limitations upon the state's authority to regulate religious activity. This theme resounds throughout the opinion of the U.S. Supreme Court in Employment Division, Department of Human Resources v. Smith,(2) which held that the state may, without showing a specific compelling state interest, prohibit a person from performing actions that he is religiously obliged to perform.

As a matter of words, one might question the Court's holding and wonder if there is a construction of the Clause more consistent with constitutional precedent and principle.(3) As a matter of history, one might attempt to revisit the religious culture that shaped the time of framing and ratification of the Constitution and observe that contemporary construction is out of touch with that history.(4) Yet, between the overarching method of history and the legal-technical method of construction there lies a middle way: step outside of constitutional law, but not outside of law. Then listen to how this ascending theme resonates with the law's understanding of the relationship between civil and religious authority, and with the law's self-understanding.

This Note shall go the middle way. I hope to demonstrate that the principle at work in Smith, which animates contemporary free exercise jurisprudence, is deeply at odds with a doctrine of American common law that binds civil courts to the holdings of regligious lawfinders in those civil cases that implicate religious law.(5)

There are two reasons why such a demonstration should be of interest for the constitutional lawyer as well as for the legal observer concerned with religious liberty. First, this common law doctrine and its animating logic allow us a glimpse of how the common law understands the nature of the legal relationship between civil and religious authority. The doctrine may also convey the law's understanding of its own structure and of the limits of the state under a system of constitutionalism. These understandings, because they go to the structure of the system of law itself, might inform a contemporary lawyer's evaluation of current constitutional jurisprudence.

The second reason for exploring this tension between classical common law and contemporary constitutional construction is predicated upon a particular model of constitutional interpretation: one way of understanding the Constitution is to read it as a law that draws meaning from the context of surrounding law and tradition.(6) The framing of the Constitution, as well as the ensuing events of its construction, took place within a culture dominated both by the legal terminology, methods, and habits of the common law, and by a certain set of historic traditions respecting the nature of religious organizations.(7) Thus, any attempt to interpret the Constitution should seek some guidance from common law and tradition. At the least, we should be wary of those constitutional interpretations that ignore or defy the interpretive resources of the common law and the accompanying social and historic traditions.

Part I of this Note will consider contemporary free exercise doctrine with an eye toward distilling the basic conception of sovereignty implicit in that modern doctrine. Part II will explore the common law doctrine of legal sovereignty for religious lawfinders, with special attention to the history and the inner logic of that doctrine. Part III will attempt an analysis of this doctrine and suggest a "religious question doctrine," that tracks the structure of the political question doctrine as a device for evaluating the nature and limits of the state's lawfinding authority. Part IV of the Note will offer some speculations about the analytical and legal soundness of contemporary free exercise doctrine.

1. Sovereignty and Contemporary Free Exercise Doctrine

   There has lately come a surge of judicial interest in the arduous task of toying with the tangle of our free exercise doctrine. In the past several years, courts have frequently addressed the constitutional limitation on the authority of the state to regulate religious liberty.(8) The decision of the Supreme Court in Employment Division, Department of Human Resources v. Smith represents a crucial step in this developing doctrine of the Free Exercise Clause.(9)

   In this part of the Note, I will briefly examine the Court's decision in Smith and try to distill the central principle of that case regarding the relationship between civil and religious authority. I will then juxtapose the Smith principle with the antecedent constitutional tradition.

   1. The Rule in Smith

      Alfred Smith was a member of the Native American Church, which has as its central practice the sacramental use of peyote, a growth that occurs naturally in cactus plants.(10) Sacramental usage includes both reverence and ingestion of the peyote. People who embrace the peyote religion believe that peyote embodies the Holy Spirit and, as such, is itself the object of profound reverence. Believers hold that the solemn ingestion of peyote at religious ceremonies allows for an intimate communion between themselves and their maker.(11) Such sacramental usage of peyote, first recorded by Spanish historical sources in 1560, is very likely an ancient practice that has defined much of Native American religious culture for several centuries.(12)

      In 1977 the legislature of Oregon classified peyote, which produces hallucinogenic effects upon ingestion, as a "controlled substance," the possession of which constituted a Class B felony punishable by a maximum of ten years imprisonment.(13)

      The issue in Smith was whether the Free Exercise Clause required the state to either carve out a "religious use" exception in the application of the criminal statute or to demonstrate a compelling state interest as to why it could not make such an exception.

      The Supreme Court, an opinion written by Justice Scalia, limited its holding in Smith to instances of legislation designed to regulate some other social phenomenon, but having incidental or unintended effects upon a person's free exercise of religion.(14) The case at hand involved a statute that targeted the abuse of drugs, and the Court likened it to a statute enforcing the collection of taxes; both are generally applicable statutes that may have the effect of inhibiting the free exercise of religion.(15) The Court found that such incidental inhibition of religious practice was of no constitutional moment and therefore held that the state has presumptive constitutional authority to regulate a person's religious behavior without having to demonstrate a compelling state interest.(16) Thus, Smith established the proposition that the state may always prohibit a religiously required action, so long as that prohibition is indirect.(17)

   2. The Sherbert Line and the Presumption of Sovereignty

      Smith is an important case because it shifts presumption. An intricate legal dynamic flows between civil and religious authority. Religiously devout persons pledge their allegiance simultaneously to both system as those system operate within their appropriate spheres of governance. The rule in Smith comes upon this delicate balance and shifts the presumption of ultimate legal sovereignty(18) squarely to the state.(19) Thus, the animating principle of Smith is that the state is presumed to be legally authorized to regulate religious freedom. Such presumption has lately become settled law when the injured party is an inmate at a prison(20) or an officer at a military base.(21) But presuming the state has legal sovereignty over the religious actions of ordinary citizens in a free soiciety is a remarkable development in our free exercise doctrine.

      The importance of this shift of presumption comes into focus when we consider the law from which Smith diverged: the line of cases beginning with Sherbert v. Verner.(22) Sherbert, a case that awarded unemployment compensation to a Seventh Day Adventist who was fired because she refused to work on Saturdays, crafted a two part analysis for adjudicating the constitutionality of statutes that infringe upon religious liberty. First, the court asks whether the statute imposes any burden upon the person's free exercise of religion. If the court finds such a burden it moves to the second step, asking whether the state has demonstrated a compelling state interest that justifies burdening religious liberty.(23)

      A close look at the Sherbert analysis reveals an understanding of sovereignty that is distant from that of Smith. A statute that interferes with the free exercise of religion is immediately presumed unconstitutional. The state may then, through a separate analysis, overcome this presumption by demonstrating that some compelling state interest justifies the interference.(24) The sphere of religious liberty is thus staked out, and the state may not enter without justification.

      Sherbert recognized that the Free Exercise Clause does not absolutely prohibit the state from regulating any religious conduct. The logic at work in the Sherbert analysis is consistent with the following theory of the Free Exercise Clause: The federal government, as called into being by the Constitution of the United States, is designed with several inherent limitations; inter alia, it is unauthorized to regulate religious libert.(25) But this limitation, while presumptively binding, is not absolute. The presumption of constitutional incapacity can be overcome only if the state can prove, through a separate analysis, a compelling interest that justifies an extraordinary exercise of state power.(26) Sherbert thus described the Free Exercise Clause as a presumptive structural limitation on the ambit of legitimate state authority, placing the burden of proof upon the state to show that it is authorized to exercise power in the specific case.

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