THE HISTORICAL ORIGINS OF JUDICIAL RELIGIOUS EXEMPTIONS.

• Author: Barclay, Stephanie H.

INTRODUCTION 57 I. BACKGROUND 63 A. A Brief Sketch of Religious Exemption Cases 63 B. Competing Accounts of Historical Support for Religious Exemptions 67 II. RETHINKING THE HISTORICAL ORIGINS OF RELIGIOUS EXEMPTIONS 69 A. The Limited Historical Record Increases the Need for a Broader Understanding of Judicial Norms 69 B. The Equitable Origins of Judicial Exemptions to Statutes in England 73 C. Equitable Exemptions in the Early American Republic 80 D. The Presumption of Legislative Compliance with the Constitution 90 E. The Evolution of Constitutional Adjudication 96 III. IMPLICATIONS 103 A. Smith Relied on Assumptions Unfounded by Historical Evidence 104 1. Judicially Created Exemptions Were a Default Norm, Not an Anomaly 104 2. Broad, Generally Applicable Statutes Were Not Immune from Judicial Scrutiny 108 3. Exemptions Were a Means of Protecting Rule-of-Law Norms, Not Courting Anarchy 111 B. The Mode of Analysis Courts Used to Create Equitable Exemptions Has Some Resemblance to Modern Strict Scrutiny Analysis 113 IV. COUNTERARGUMENTS 118 A. Are Equitable Exemptions Really a Historical Analog for Modren Exemptions? 118 B. What About the "Congress Shall Make No Law " Text of the First Amendment? 120 C. How Does Equitable Interpretation Interact with Establishment Clause Considerations ? 122 CONCLUSION 124 INTRODUCTION

Religious exemptions have become controversial--and that's putting it mildly. Within the last year, four Justices on the Supreme Court signaled their interest in revisiting whether the Free Exercise Clause requires judges to provide religious exemptions from generally applicable laws. (1) And in a case the Court will hear this term, Fulton v. City of Philadelphia, one of the questions presented specifically raises this question. (2) Reconsidering whether the First Amendment requires religious exemptions would involve evaluating whether Justice Scalia's opinion for the Court in Employment Division v. Smith should remain good law. (3) Some scholars and jurists alike have sharply criticized Smith for eviscerating free exercise protections. (4) On the other hand, Smith has its defenders. (5) Some of these defenders argue, fairly, that revisiting this issue raises important questions about whether judicially crafted exemptions can be justified as a historical matter, particularly with a Supreme Court increasingly focused on grounding constitutional interpretation in originalism. (6)

Much has been written about what the historical evidence tells us regarding the scope of free exercise rights. And a key aspect of this debate has focused on what role, if any, the judiciary would have been understood to play in protecting these rights. Philip Hamburger has argued that there is insufficient historical support for the idea that free exercise protections included the ability of judges to craft exemptions from generally applicable laws. (7) Hamburger argues that the lack of evidence of judicial religious exemptions underscores the fact that the scope of religious exercise rights only included the ability to be free from overt religious government discrimination or persecution based on religion. (8) And Hamburger claims it is "improbable" that the Founding generation would have contemplated a judiciary with the power to craft exemptions. (9) Justice Scalia cited to Hamburger's work in support of his conclusion that judicially created religious exemptions are not historically justified. (10)

In contrast to Hamburger and Scalia, Michael McConnell argues that the most influential Founding-era theory of religious liberty was that it flowed from religious duty, which trumps the claims of civil society. (11) As a result, religious exercise included the right to engage in religious conduct even when that conduct incidentally conflicts with general legal requirements (so long as that conduct did not endanger public health or safety). (12) Regarding judicially created exemptions to protect this right, McConnell asserts that "the advent of judicial review had transformed a principle of free exercise previously enforced solely through legislative action into one enforceable through the courts." (13) McConnell points to this empowerment of the judiciary in support of his important argument that religious exercise was not limited to freedom from religious discrimination. (14)

Gerard Bradley, by contrast, disagrees that such a change regarding the judiciary occurred, and argues that if it had, "the abrupt turn would have left a measurable historical path." (15) Bradley also argues that McConnell and other proponents of religious exemptions fundamentally misunderstand judicial review, and that creating any sort of exemptions for conduct was an invention from the late twentieth century. (16)

While these scholars and jurists disagree about what the evidence shows, they seem to agree that it would have been a new or extraordinary role for the judiciary to protect religious exercise by exempting conduct from laws--a sea change in the law. (17) Such a position logically places a heavier burden on proponents of religious exemptions to demonstrate that the United States, in fact, departed from the English judicial practices and empowered American jurists to take on a new powers. And a failure to demonstrate this judicial departure in the context of religious exercise would provide additional evidence for the idea that religious exercise did not include the ability to engage in religious conduct contrary to general laws. But is that understanding correct?

This Article challenges the conventional wisdom that the judicial practice of exempting conduct from statutes was either new or extraordinary. Just the opposite, this Article shows that under a widely accepted doctrine called equity of the statute, judicially created exemptions were frequently employed during the Founding period to protect a wide variety of liberties from laws that swept too broadly. (18)

As described perhaps first by Aristotle, "laws, being in their nature general, cannot decide rightly in the infinite variety of particular cases." (19) Thus, "[w]hen an exception to the rule occurs... this exception is admitted in equity, which thus supplies the defect of law." (20) Under this doctrine of the equity of the statute, (21) English courts regularly created exemptions to statutes, dating potentially as early as the fourteenth century in England. (22) As Blackstone explained, these courts relied on equity principles to "except[ ] those circumstances" from legislation to avoid results that infringed on a host of personal liberties and common-law norms. (23) Like Aristotle, Blackstone referred to "equity," as a judicial "method of interpreting laws" that involved "correction" where the "law (by reason of its universality) is deficient." (24) This statutory interpretation method should not be confused with remedies specific to courts of equity, as opposed to courts of law. As John Manning explained, "while the modern lawyer equates the term 'equity' with the extraordinary relief dispensed by the chancellor, the doctrine of the equity of the statute also had a life of its own in the run-of-the-mill statutory decisions rendered by the law courts." (25) This interpretation method was the norm understood by leading English and American jurists leading up to and immediately following the American Revolution. (26)

An understanding of these wider judicial practices helps avoid the trend of treating free exercise judicial remedies as an island in the law. Indeed, some of our country's earliest cases granting religious exemptions reflect an understanding of religious exemptions growing out of this background equitable interpretation norm. (27) One could argue that it would have been an "abrupt turn" in the law to place a unique bar on the judiciary's equitable ability to protect just one type of individual right--religious exercise. And if judicially created exemptions would not have been an anomalous means of protecting religious rights, then opponents of religious exemptions cannot rely on that historical argument--the unprecedented nature of judicial exemptions--as evidence that religious exercise was understood narrowly as only a prohibition on legislative discrimination.

An understanding of broader juridical norms regarding equitable interpretation also has important implications for assessing whether the Court's reasoning in Smith is justified as a historical matter. In Smith, Scalia argued that religious exemptions would be a "constitutional anomaly," (28) that neutral and generally applicable statutes were entitled to deference (rather than scrutiny) from the judiciary, (29) and that providing exemptions would undercut rule-of-law norms and create a system that was "courting anarchy." (30) To the contrary, this Article demonstrates that equitable exemptions to statutes were a judicial norm, not an anomaly. (31) Broad, generally applicable laws were often treated with suspicion, not deference. (32) And providing exemptions to laws was understood as more respectful to rule-of-law norms than declaring a law void. (33) Thus, some of the fundamental assumptions on which the Court relied in Smith do not find support in the relevant historical evidence.

Admittedly, the fact that Smith relies on assumptions without basis in history does not go the full distance of establishing that religious exemptions are supported by history. Indeed, even some defenders of Smith acknowledge that the case relies on faulty analysis for a number of reasons. (34) While a full treatment of all the relevant historical evidence is beyond the scope of this Article, understanding the role equitable interpretation plays in judicial exemptions provides potential additional historical support for a modern religious exemption framework.

Specifically, the mischief rule was a form of equitable interpretation that focused on the problem the legislature was trying to solve when it crafted the...