Author:Nestor, Branton J.


The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. (1) But the Supreme Court has never determined whether this holding reflects the original meaning of the Free Exercise Clause. Justice Scalia's City of Boerne concurrence provides the strongest argument issued by any member of the Court defending Smith on historical grounds. (2) He defends Smith's historical foundation by relying in part upon the provisos to the free exercise guarantees found in the early state constitutions. (3) These provisos withheld protection from, inter alia, conduct that violated the "public peace" or "safety" of the state. (4) Justice Scalia's argument supporting Smith on the basis of these state provisos is twofold. First, he argues that these provisos generally withheld protection from conduct that violated any neutral, generally applicable law that a legislature might enact. That is because any violation of law would necessarily be understood to constitute a violation of the "peace" or "safety" of the state. (5) Second, he concludes that this limited understanding of the free exercise of religion was the one that the federal Free Exercise Clause adopted. (6) In short, Justice Scalia concludes the state free exercise provisos suggest that Smith's rule is on firm historical footing.

This Note offers a different conclusion. It focuses on the provisos to the state free exercise guarantees to advance a two-step argument against Justice Scalia's historical argument for Smith. First, the state free exercise provisos did not withhold protection from all religiously motivated conduct that violated any neutral, generally applicable law that a legislature might enact. Instead, these state provisos represented specifically enumerated, compelling state interests that were narrow exceptions to an otherwise broad free exercise right. And second, the Free Exercise Clause--which lacks any express proviso--should be read to protect religious exercise at least as broadly as the proviso-laden state constitutions. To present its argument, this Note proceeds in three parts. Part I contextualizes this Note within both the broader historical tradition of American protections for religious liberty and the academic debate over the scope of the Free Exercise Clause. Part II focuses on the most important types of free exercise provisos--those relating to peace and safety, morality and licentiousness, and injury to others' rights--to argue that the provisos had narrow, bounded scopes. Part III then turns to the federal Free Exercise Clause. It suggests that the Free Exercise Clause should be read to protect religious exercise at least as broadly as the state constitutions--and likely with even fewer qualifications. (7)


    The Religion Clauses provide that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." (8) One tool for determining the scope of the "free exercise [of religion]" is the term's historical meaning. That historical meaning is relevant for originalists and nonoriginalists alike. For originalists, history may identify, fix, and constrain the semantic and legal meaning of the Constitution's text. (9) But even for non-originalists, history may still remain important, whether because it informs textual meaning (10) or provides persuasive evidence of how the people of the past applied constitutional norms to the pressing issues of their day. Assuming history's ecumenical importance, (11) this Part contextualizes this Note's later discussion of the state free exercise provisos by providing an overview of the colonial and early statehood protections for religious liberty and the key contemporary debates over the federal Free Exercise Clause.

    1. Evolving Colonial and Early Statehood Protections

      The Free Exercise Clause did not emerge ex nihilo. Rather, it evolved from the longstanding protections for religious liberty found in the early colonial charters and state constitutions--which, in turn, reflected the states' complex relationships with their Old World heritage. (12)

      Religious liberty enjoyed deep and longstanding protection in the early colonial charters and state constitutions. Professor McConnell describes the purposes animating the Framers' protection for religious liberty in the following way:

      [The Framers maintained] that coercion in matters of conscience could breed only hypocrisy and not sincere belief, that civil magistrates are unreliable judges of religious truth, that religious repression causes discord and civil dissension and makes enemies of peaceful citizens, that coercion impedes the search for truth, that it is contrary to the example of Jesus Christ, that it weakens religion by encouraging indolence in the clergy, and that religious intolerance impedes trade and industry.... [But] by far the most common argument, especially in America, and the argument most pointedly establishing religious freedom as a special case, was based on the inviolability of conscience. Most natural rights were surrendered to the polity in exchange for civil rights and protection, but inalienable rights--of which liberty of conscience was the clearest and universal example--were not. (13) Taken as true, the view that liberty of conscience was fundamental and inalienable--and that duty to God necessarily superseded obligations to Caesar (14)--suggests that any potential provisos to the free exercise right would likely present narrow and reluctant (albeit necessary) exceptions.

      Nearly all of the colonial charters protected religious liberty as a fundamental, inviolable right. (15) These protections took the form of broad, open-ended guarantees of liberty of conscience, freedom of worship, free exercise of religion, or immunity from discrimination on account of creed. These colonial-era protections are reproduced in Table I. (16) The colonial charters also included more specific protections against expected areas of conflict between religious liberty and state power, most importantly through providing religious-based exemptions against conscription and sworn oaths. (17) To be sure, there were limits to the charters' protections. For example, among other things, protections were often limited to particular groups. (18) However, viewed in context and at an appropriate level of generality, these protections were fairly expansive for the time--and would be significantly expanded over the early statehood period.

      Nearly every state constitution that preceded the federal Constitution similarly contained protections for liberty of conscience or the free exercise of religion. (19) These protections are reproduced in Table II. (20) These state constitutional protections for religious liberty took the form of broad clauses protecting religious liberty, as well as express exemptions for anticipated areas of conflict between the state and religious liberty (such as oaths and conscription). (21) While state protections for religious liberty were not absolute (religious tests and compulsory oaths, for example, persisted in some states, (22) the overarching protections for religious liberty continued to broaden the protection afforded by the colonial charters--confirming the fundamental, longstanding, and ubiquitous nature of religious protections at the Framing.

    2. Debate over Scope and Enforceability

      Two fundamental questions are essential for fully determining the meaning of the Free Exercise Clause but are left aside for purposes of this Note. One question relates to what the "free exercise" of religion encompassed. The possible scope of protection could be either narrow (purely ceremonial conduct) or broad (all religiously motivated conduct). (23) A second question relates to whether the state free exercise guarantees were judicially enforceable or merely precatory. (24) These questions are relevant for this Note's focus on the state free exercise provisos because the provisos' practical impact and doctrinal scope become most apparent once the base free exercise right itself--and its enforceability--are understood. (25) Nonetheless, this Note's limited focus requires leaving aside, as far as possible, extended discussion of these questions to prioritize directly focusing on the state provisos themselves.

  2. Free Exercise Provisos in the State Constitutions

    The early state constitutions drew from the colonial charters to broadly protect the free exercise of religion. But the right was not unlimited. Most early state constitutional free exercise guarantees also contained express provisos. These provisos took several forms: they denied protection for conduct that was not "peaceable" or that violated the "peace or safety of the state" (nine states), that was "licentious[]" or "immoral[]" (four states), that resulted in "civil injury or outward disturbance of others" (one state), that violated "good order" (one state), or that violated the "happiness," as well as the peace and safety, of society (one state). (26) Table II displays the state free exercise guarantees and their provisos. (27) This Part argues, contrary to Justice Scalia's view in City of Boerne, that these provisos did not withhold protection from the free exercise of religion whenever religiously motivated conduct violated any neutral, generally applicable law that a legislature might enact. Instead, these provisos constituted limited exceptions to an otherwise broad free exercise right and only withheld protection from religious exercise that violated expressly and narrowly enumerated compelling state interests. This Part analyzes the three most common free exercise provisos in the state constitutions to support this conclusion: provisos against violating the peace and safety of the state, provisos against...

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