Thomas C. Berg, the United States

• Citation: Vol. 19 No. 2
• Publication year: 2005

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF

IN THE UNITED STATES

Thomas C. Berg^*

A. THE KEY CHOICE OF RULES: TWO COMPETING APPROACHES TO FREEDOM OF RELIGIOUS PRACTICE

Most of the contentious constitutional questions concerning government and religion in the United States since World War II have involved the "no establishment" provision of the First Amendment to our Constitution¹-the provision that limits state support for religious practices, such as official prayers in state schools, direct government grants to churches or religious schools, and so forth. But the 1990s saw a major dispute over a different question: the scope of the right of private citizens to be free from governmental restrictions on their religious practices. The chief (though not the only) provision in question here is the First Amendment's Free Exercise Clause, which states that "Congress shall make no law . . . prohibiting the free exercise

[of religion]."²

The primary constitutional dispute has been between two approaches to protecting the freedom to engage in religious practices. Under the narrow approach, religious practice and activity should primarily be protected under legal rights available also to individuals and organizations-primarily freedom of expression and association-and the Free Exercise Clause prevents only discrimination against religious activity. Under the broad approach, freedom of religious practice should be a distinctive concern of the law-under the Free Exercise Clause or other provisions-regardless of how the law treats nonreligious viewpoints or other organizations. The Supreme Court opened the battle in 1990 by adopting the narrow approach in Employment Division v. Smith,³holding that the Free Exercise Clause usually does not protect religiously motivated conduct from laws that are "neutral and generally applicable" no matter how great the impact on religious conduct. Congress and a number of states disagreed and responded by enacting "religious freedom restoration" statutes giving distinctive protection to religious freedom⁴- although the federal statute was then partially invalidated by the Court in

1997.⁵

Thus, various American jurisdictions have now chosen between the two general approaches to the question of how far to protect citizens' religious practices from government restrictions. Now courts hearing particular disputes are exploring just what the two approaches mean. For jurisdictions and claims governed by the more protective approach-for example under a religious freedom restoration statute-the challenge now, as we will see, is to ensure that the approach is taken seriously and really gives significant protection. In jurisdictions that follow the narrower approach of Employment Division v. Smith-where religious conduct generally receives no more protection than other kinds of activities-the challenge is to try to maximize religious freedom even under that constraint.

B. SOURCES OF LAW

1. International Law

Religious freedom, like other civil and political rights, is virtually unaffected in the United States by provisions of international law. Congress views many treaties as non-self-executing, enforceable only through separate legislation. Americans are particularly proud of having pioneered the adoption of religious freedom in formal constitutions, and therefore are even less inclined here than in other areas to listen to international criticism. International law did surface briefly in the late 1990s debate whether Congress had power under the Constitution to pass general religious freedom legislation. After the Supreme Court partially invalidated the Religious Freedom Restoration Act ("RFRA") in 1997, it was suggested that Congress might reenact RFRA by relying on, among other things, the power to pass legislation implementing treaties.⁶The treaty arguably supporting RFRA was the Covenant on Civil and Political Rights (CCPR), signed by the U.S. in 1992, which guarantees everyone the right "to manifest his religion or belief in worship, observance, practice and teaching" except where limitation is "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."⁷But the subsequent legislative discussion over reenacting RFRA contained nary a mention of this argument-confirming once again that trying to premise domestic laws on international obligations is a political "non-starter" in America.

2. Constitutional Law

As with other civil and political rights, the most prominent arena for religious freedom disputes has been constitutional law-bolstered by the fundamental American practice of judicial review of the constitutionality of legislation. The highest category of American law is the U.S. Constitution, which supersedes state laws by virtue of the Supremacy Clause of Article VI, Sec.

2, and supersedes federal legislation by virtue of logic and tradition that are most fully expounded in the landmark decision of Marbury v. Madison.⁸

States also have their own constitutions, which prevail over state statutes but which are in turn superseded-"preempted"-by valid federal statutes.

a. Federal Constitutional Law

The battle over broad versus narrow conceptions of religious freedom began with respect to the Free Exercise Clause of the U.S. Constitution. The clause does not explain just what it means for a law to "prohibi[t] the free exercise" of religion, and therefore, as with many of our constitutional provisions, the interpretation has been left to the courts.

Before turning to the controversy, it is worth noting the areas on which there is wide consensus. First is the absolute protection for religious belief, as distinguished from the manifestation of that belief in conduct. The Supreme Court has said that "the Free Exercise Clause categorically forbids government from regulating, prohibiting, or rewarding religious beliefs as such."⁹Seldom in recent history has a government body in America imposed a punishment or restriction on a person solely because he held a certain religious belief or opinion. The most common example of such regulation of belief in modern times was the religious "test oath"-the requirement that public officers swear a belief in God or in Jesus Christ-and it was struck down by the Supreme

Court in the early 1960s in Torcaso v. Watkins.¹⁰Religious test oaths for offices in federal government are barred by an explicit provision in Article VI,

Sec. 3 of the Constitution; Torcaso held that religious oaths for state offices were barred by the First Amendment, as applied to state laws through incorporation in the Fourteenth Amendment's concept of "due process of law."

There is also widespread consensus that religious speech or expression receives strong constitutional protection, as much under the First Amendment's Free Speech Clause as under the Free Exercise Clause. Indeed, religious expression has been crucial in the development of America's modern law of free speech, much of which was formed in decisions involving the Jehovah's Witnesses in the 1940s and the religiously-inspired civil rights movement in the 1960s. In these among other cases, the Court established that speech generally cannot be restricted on the basis of its content or message, including its religious content. In a series of decisions since the early 1980s, the Court has strongly reaffirmed the equal right of religious expression even in governmental settings such as the state schools; it rejected arguments that the speech of students or other private citizens in those settings should be limited in order to preserve a strict separation of church and state.¹¹The government may impose content-neutral restrictions on the "time, place, or manner" of speech, including religious speech, as long as such restrictions leave open some alternative means of communicating the speaker's message.

Conduct has always been more subject to regulation than are belief or expression; as the Supreme Court put it in an early decision involving Mormon polygamy, "laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."¹²Yet in some cases expression and conduct are closely intertwined. The Supreme Court has recognized that the right of expression includes the right to associate for expressive purposes-and correspondingly the right to refuse to associate with others when that association would interfere with one's expression. Thus the Court recently held that a state law forbidding discrimination in "public accommodations" based on sexual orientation could not be applied to prevent the Boy Scouts of America from removing an openly gay assistant scoutmaster.¹³The Court held that application of the anti-discrimination law would "force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," contrary to the Scouts' goal of promoting "morally straight" and "clean" behavior as it understood those terms.¹⁴This principle, though not falling specifically under the First Amendment's Religion Clauses, may provide substantial protection for religious organizations to determine their leaders and members without restriction by law.

Moreover, with respect to the Free Exercise Clause itself, there is wide consensus that government may not single out conduct for restriction because it is religiously motivated-that is, it may not discriminate against religious practices. The Supreme Court unanimously reaffirmed this principle recently in Church of the Lukumi Babalu Aye v. City of Hialeah,¹⁵striking down several ordinances in a south Florida city that prohibited the killing of animals and that were used to prosecute members of the Santeria, an Afro-Caribbean religion that slaughtered small animals for its worship rituals. The ordinances did not mention Santeria, but they contained so many exceptions-permitting hunting...