I. Introduction

The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" The doctrine of the free exercise of religion was regarded as important as a solution to the religious conflicts that followed the Reformation of the Sixteenth Century where the concern was to prevent the state from deliberately seeking to suppress a particular religion out of support for another religion. Of equal concern today would be the state’s seeking to discriminate against religion, or a religion, for the sake of promoting secularism or some nonreligious ideology. The case of the Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah was noteworthy because it was "one of the few cases the Supreme Court had ever seen where government set out to suppress a single religion." (Laycock 1994, 892) The city of Hialeah, Florida, had passed an ordinance forbidding ritual animal sacrifice which is a central feature of the Santeria religion, a religion with African and Caribbean roots. The Supreme Court was unanimous in declaring the relevant ordinances of the city of Hialeah unconstitutional because it was clear that a particular religion was singled out for unfavorable treatment. The right to religious liberty as an equality right had been violated.

Most modern cases involving free exercise issues, however, are not of this sort. The conflict at issue is usually "the conflict between religions collectively on the one hand and insensitive government regulation on the other." (Laycock 1994, 885) What is at issue in many of these cases is granting religious groups exemptions to what are, on the whole, legitimate regulations. When religious groups claim exemptions that have not been included in the law, sometimes the courts have supported those claims on the basis of the free exercise of religion and sometimes not. In Reynolds v. United States (1878) and in subsequent cases, the Supreme Court refused to grant Mormons exemptions to laws against polygamy, but in Wisconsin v. Yoder (1972), Amish families were granted an exemption to the Wisconsin law requiring school attendance to the age of 16, and in Sherbert v. Verner (1963), the Court overturned the attempt to deny a Seventh Day Adventist unemployment insurance payments if she refused employment that required her to work on the Sabbath. Since 1972 however, the Supreme Court has rejected every claim for a free exercise exemption, other than those involving unemployment compensation (e.g., Thomas v. Review Board (1981)). In Goldman v. Weinberger (1980), the Court rejected the appeal of Air Force Captain Simcha Goldman of his expulsion from the Air Force for insisting on wearing a yarmulke while serving as a psychologist in a military hospital. In Lying v. Northwest Indian Cemeteries Protective Association (1988), members of California Indian tribes challenged the Forest Service’s decision to build a logging road through territory to which Native American spiritual leaders traveled for rituals essential to the religion of their community. Since the government’s plan would "virtually destroy the plaintiff Indians’ ability to practice their religion" (795 F.2d at 6934), and since the government had shown no compelling reason to impose such a burden, the District Court, following the criteria set forth in the Sherbert Decision, decided against the Forest Service. However, by a five-to-three decision, the Supreme Court overturned the District Court decision. In Employment Division v. Smith (1990), the Supreme Court ruled that the state of Oregon could deny unemployment compensation benefits to two Native Americans who were fired from their positions as drug counselors in Oregon for violating narcotics rules because they used Peyote in a sacramental rite in the Native American Church. According to Justice Scalia’s opinion, it was not necessary for the state to show any "compelling state interest" or any reason at all for not allowing for a religious exemption when a religion was seriously burdened by a particular law. (See Laycock 1994, 889.)

II. The Free Exercise of Religion and Political Theories

How should the free exercise clause be interpreted? Various attempts to apply the clause can be correlated with various ideas of neutrality as set forth by political philosophers. We will look at three ways of understanding neutrality as a norm as set forth by Joseph Raz.

1. Liberalism and Neutrality of Intent or Justification

One version of neutralist-oriented liberalism refers to the purpose of government action. According to this position: "No political action may be undertaken or justified on the ground that it promotes an ideal of the good nor on the ground that it enables individuals to pursue an ideal of the good."1 We could see the establishment clause of the First Amendment as an application of this principle. Presumably the principle is meant to include the following corollary:

No political action may be undertaken or justified on the ground that it inhibits an ideal of the good nor on the ground that it makes it more difficult for individuals to pursue an ideal of the good.

The free exercise clause could be seen as an application of this corollary.

There does seem to be a close connection between this version of liberal political theory and Philip Kurland’s view that religion should not be used as a basis for government action at all, whether it involves the granting of rights or privileges, or the imposition of obligations (Kurland 1962, 17-18, 111-112). Before 1990, Kurland’s position had not been accepted by the Supreme Court with respect to either clause of the First Amendment. Its acceptance would suggest that the free exercise clause be regarded as doing no more than forbidding the prohibition of conduct in the context of worship which would otherwise be permitted, and so as not requiring the exemption of individuals from otherwise "neutral" laws.2 In Employment Division v. Smith (1990) the Supreme Court states that "if prohibiting the exercise of religion...is...merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended," and so, in effect, accepted the Kurland position with respect the free exercise clause.

Long before the Smith decision, this view was seen as resolving "the problem of conflict [between the free exercise and establishment clauses] only at a cost of almost total emasculation of the free exercise provision." (Merel 1978, 808; see Choper 1980, 688) That emasculation seems to be what is now occurring in the Smith case. According to Justice Scalia, since drug laws were not passed for the sake of restricting Native American religious practice, no violation of the free exercise clause occurred. Douglas Laycock writes that, on Scalia’s view:

religious liberty is an equality right. Religious liberty consists of not being discriminated against: the law that applies to any religious minority will be the same as the law that applies to anybody else, and as long as that criterion is satisfied, religious liberty is fully protected. (Laycock 1994, 885)3

Consistency would seem to require also using Kurland’s approach with respect to the establishment clause as well, something which the courts have never shown any inclination to do, since to do so would depart radically from precedent and would permit "forms of aid that subvert historical and contemporary aims of the establishment clause." (Choper 1980, 688) Those concerned about the freedom of religion point to equally disturbing consequences of applying this approach to the free exercise clause. OSHA has lifted a fifteen-year-old exemption to the requirement that construction workers wear hard hats that was granted to members to the Sikh religion because of the religious requirement that they wear turbans. (See Wood 1991, 678.) Federal courts have also thrown out cases involving religious objections to autopsies. (See Justice O’Connor’s dissent in City of Boerne v. Flores (1997).) Potential consequences include the possibility of students in public schools being prohibited from wearing rosaries or yarmulkes, or being forced to wear gym uniforms that violate religious ideals of modesty. Charles Larmore’s defense of this sort of neutrality (neutrality of intent or justification) is based on the need for a modus vivendi. One can ask whether the Native Americans involved in the peyote and Forest Service cases will see this answer as compatible with a real modus vivendi. One function of the Bill of Rights is presumably to protect minorities, a function certainly endorsed by a strong element of the liberal tradition. The emasculation of the free exercise provision would most likely especially burden religious minorities. (See Pepper, 650.) Viewed from this more full-bodied liberal perspective, neutrality of intent ought to be regarded only as a necessary condition for a modus vivendi, not also as a sufficient condition.

2. Narrow Political Neutrality: Liberalism and Neutrality of Results

A second version of neutralism, according to Raz, is one that refers to effects and not just to intentions or justifications. According to this version: "No political action may be undertaken if it makes a difference to the likelihood that a person will endorse one conception of the good or another, or to his chances of realizing his conception of the good, unless other actions are undertaken which cancel out such effects." (Raz, 114-115) In this vein, Hugo Black once wrote that: "The ‘establishment of religion clause’ of the First Amendment means at least this: Neither a state nor the Federal Government can...pass laws which aid one religion, aid all religions, or prefer one religion to another." (Everson v. Board of Education (1947); see also Lemon v. Kurtzman (1971).) The free-exercise corollary (one which Black himself may not have accepted) would seem to be that: "Neither a state nor the Federal Government can...pass laws which hinder one religion or hinder all religion."

Both benefits and harms to a religion permitted by the formal neutrality approach could be forbidden by this approach. From Sherbert to Smith, the free exercise clause was understood as prohibiting the government from enforcing laws and policies that "create a serious burden on fidelity to religious belief" unless the government can "show that such compliance is necessary to further a compelling state interest." (Lupu 1986, 762; see also McConnell 1990b, 31.)

While those who disagree with the Smith decision (see O’Connor’s dissent in Flores) regard results as important, putting the matter in terms of "neutrality of results" also has its problems.3 As Raz notes, an argument against the whole approach points out that "whether or not a person acts neutrally depends on the base line relative to which his behavior is judged" (Raz, 121), and thus it is a matter of perspective. Do educational vouchers aid religion, or does taxing families that send their children to nonpublic schools without giving them any aid inhibit religion? Are exemptions to law for religious minorities based on free exercise claims violations of the establishment clause "because the exempting government agent creates a preference for religious over comparable nonreligious experience" (Lupu 1989, 947, n. 64), as some justices have argued, or do such exemptions in fact create "equality and neutrality with respect to religion" (Pepper, 653)? In addition, what counts as a primary effect, as opposed to a secondary one, when the free exercise of religion is interfered with? The Court has tended to regard almost any inhibition of religion as a secondary effect and to "accept virtually any government reasons for imposing a burden on religious practice." (McConnell 1990b, 32; see also Laycock 1994, 901-903.)

3. Comprehensive Political Neutrality

A third version of neutrality-oriented liberalism requires that government actively attempt to "ensure for all persons an equal ability to pursue in their lives and promote in their societies any ideal of the good of their choosing." (Raz, 115) Such a point of view is usually based on a Rawlsian sort of contract theory, perhaps appealed to partially on the grounds that such a theory does in fact best express the framers’ fundamental approach to rights (Richards 1980; 1986, 58-59). The justification for this point of view has been attacked on the grounds that "the framers did not have a single background theory that moral philosophy can elaborate" (Tushnet, 234), and the content has been attacked on the grounds that "by attempting to cover too many activities, the argument offers too little protection." (Garvey, 751) For example, this justification would give little basis for distinguishing between Simcha Goldman’s claim that he should be allowed to wear his yarmulke and someone else’s claim that he should be allowed to wear a cowboy hat. The courts have gotten away with what many would regard as dubious decisions by regarding exemptions to law based on free exercise claims as violations of the establishment clause "because the exempting government agent creates a preference for religious over comparable nonreligious experience." (Lupu 1989, 947, n. 64) But perhaps it is the purpose of the First Amendment to give preference for claims to freedom based on certain reasons, including religious reasons, over claims based on other reasons. (See McConnell 1990a, 1488-1497.) Perhaps none of the versions of neutrality-oriented liberalism would seem to provide an adequate basis for interpreting the First Amendment.

4. The Free Exercise of Religion and Autonomy-based Liberalism

Raz begins his discussion of what he calls comprehensive political neutrality by referring to government’s role in assuring that people have equal opportunities for pursuing the ideals of the good that they already have. But then he extends the discussion to the process of choice itself. What is valued, according to this point of view, is autonomous decision making, and government is required to create "conditions of equal opportunities for people to choose any conception of the good." (Raz, 124)4 So this view would seem to include comprehensive political neutrality (in some sense), basing it on the valuing of autonomy (and thus perhaps also sowing the seeds of possible conflicts between value neutrality and the endorsement of the value of autonomy). This would seem to be Richards’ understanding of liberalism. He relates the free exercise clause to the freedom of the already formed conscience and the anti-establishment clause to the formation of conscience (Richards 1986, 146). His fear of the State’s in any way endorsing sectarian influence on the formation of conscience leads him to a position somewhat similar to Kurland’s in general principle but to strict separation in contemporary application. Autonomy-oriented liberals (whether neutralist, e.g., Richards, or pluralist, e.g., Raz) are likely to disagree with the Court in the Yoder case, since by forcing the Amish children to go to school the State would be protecting the children’s "right to an open future" (Feinberg, 126), and protecting their ability to formulate an independent concept of their good which they could rationally affirm as their own (Richards 1980, 44). The tendency to justify religious liberty on the basis of the value of individual autonomy may be the reason for the phenomenon that some civil libertarians suddenly become unsympathetic to religious liberty when it is exercised by groups, organizations, or churches rather than by individuals.

Charles Larmore attacks the version of liberalism that focuses on autonomy on the grounds that it makes "liberalism yet another controversial and partisan vision of the good life" (Larmore 1990, 357), and so incapable of solving the problem of finding "some way of living together that avoids the rule of force" (Larmore 1990, 357). Furthermore the Constitution was not concerned with "autonomy" (see Garvey, 790), and Madison’s "Memorial and Remonstrance" makes no mention of "autonomy" or "choice" in its fifteen arguments for the separation of church and state (see Sandel, 87), but in fact assumes that beliefs are not a matter of choice (Sandel, 88). Religious people usually do not see themselves as choosing their beliefs, but as being bound by obligations they did not choose (Garvey, 791-792). According to McConnell, for the founders, "Conflicts arising from religious convictions were conceived not as a clash between the judgment of the individual and the state, but as a conflict between earthly and spiritual sovereigns" (McConnell 1990a, 1496). He would thus agree with Sandel that "Religious liberty addressed the problem of encumbered selves, claimed by duties they cannot renounce, even in the face of civil obligations that may conflict" (Sandel, 88).5

III. Conclusion: Consent and Religion as a Special Case

The previous observations suggest that religious duty is a special matter and therefore the freedom of religion should be treated as a special case and not as an application of some general theory. Jefferson and Madison (and Roger Williams) shared the view that "the state’s monopoly over force and coercion is conceived of to protect but not to interfere with the exercise of conscience" (Little 1989, 737). While Jefferson had a limited view of that freedom of conscience (see Little 1976, 59),6 Madison’s view was that religious duties take precedent both temporally and in "degree of obligation, to the claims of Civil Society…We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance." (Quoted in O’Connor, Flores dissent.)

There are good historical reasons to believe that Madison’s views provide "the theoretical underpinning of the free exercise clause" (McConnell 1990a, 1512). The "weak" or "narrow" interpretation of the free-exercise clause seems historically dubious and the various versions of political theory that might be used to justify such an interpretation are suspect. The "Religious Freedom Restoration Act" (RFRA) was passed and signed into law by President Clinton in 1993. Its goal was to provide that the states and the federal government must exempt churches and believers from laws that burden religious practice, unless the burden is part of a formally neutral law and serves a compelling interest by the least restrictive means" (Laycock 1992, 854). The Supreme Court declared the Religious Freedom Restoration Act unconstitutional largely on the grounds that for Congress to pass a law with the purpose of reversing a Supreme Court decision was a violation of the separation of powers found in the Constitution (City of Boerne v. Flores (1997)), a decision which, in spite of Justice O’Connor’s arguments to the contrary, assumed that the Smith case had been decided correctly.

Even if the Court were at some time to return to the pre-Smith position defended in RFRA, this would not prevent the Court from accepting the compelling interest clause, and yet always find that the state had a compelling interest, as in fact Justice O’Connor did in both the Smith and the Lying cases.) For the "compelling interest" clause to mean anything the state’s interest would have to weighed against the burden it imposes on people (see Ball). Feminists have argued against defenders of formal neutrality on the grounds that norms that are supposedly neutral "are often systematically biased in ways that reinforce the subordination of women to men by assuming a male standard of what is normal, or a male perspective of what is real, and then entrench these assumptions by characterizing them as neutral." (Patricia Smith; see Littleton, 45; Whitman, 494)

Even "the equal protection law itself, while assuming to be neutral, in fact assumes a male standard of what is normal" (Smith). It is likely that the attempt to weigh burdens and compelling interests, in the present state of things, will in the same manner assume a secular standard of what is normal and then "entrench these assumptions by characterizing them as neutral," especially when dealing with minority religions. So ‘compelling interest’ wording will not solve the problem by itself.

The philosophical positions previously considered treat the free exercise of religion as something the state should or should not take into account because of some theory about what states should or should not do. They all look at the matter from the top down. But perhaps we should look at it from the bottom up (see Tribe 1982 and Pepper), both from the perspective of individuals and of groups. According to Jeremy Waldron, a basic idea that most liberals share is that "the social order must be one that can be justified to the people who have to live under it" (Waldron, 146), and that an arrangement or institution is illegitimate if it "has not secured, or perhaps could not secure, the consent of the people." (Waldron, 140) Presumably he is talking about real people and not about hypothetical pure rational agents. Taking this seriously would seem to require the bottom-up approach, looking at the matter from the point of view of the person or group asked to consent. If legitimate government depends on consent by real people, the subordination of the free exercise clause to political theory or abstract ideas of formal neutrality is unacceptable. Furthermore, the very point of the Bill of Rights, which was included in the Constitution for the sake of winning the consent of those fearful of autocratic government, is to exclude certain things from the arena of government decision about what proper political theory requires of public policy. (See Justice Jackson in West Virginia Board of Education v. Barnette (1943); see also Justice O’Connor in her dissent in Flores.) Without the free exercise clause, or with an emasculated free exercise clause, religious people would have no reason to consent. So as Lawrence Tribe writes:

If one believes, as the Framers believed, that legitimate power is delegated to the state by individuals and groups, and that certain groups under our constitutional scheme have never relinquished their private authority and autonomy as centers of deeply shared experience and faith, then religious institutions emerge not as repositories of unaccountable, delegated state power, but as irreducible components of our social order, secure against all but the most limited and most compellingly justified forms of government intervention. When viewed this way—from the other end of the telescope as it were—what otherwise appears to be a violation of both religious clauses turns out to be a vindication of free exercise and anti-establishment alike. (Tribe 1982, 32)

Christine Littleton points out three areas of male bias in the law. The law does not deal with uniquely feminine experience, e.g., pregnancy, or with the facts of concrete situations, or with the question of the nonneutrality of social institutions (Littleton’s view as reported in Pat Smith). These areas of male bias are hidden behind the cover of formal neutrality. One could point out parallel problems in the approach of the formal neutrality interpretation of the First Amendment. The formal neutrality approach does not deal with the uniquely religious idea of sacred duty, or with the degree of burden on religious practices in concrete circumstances, or with the possible unfairness of the law toward minorities. Richard Brisbin claims that in the Smith case, the Court’s "use of language of legal neutrality conceals behind symbolic terms the harm done to the interests of disadvantaged religious groups by the categorization of their religious exercise as a type that is not protected by the First Amendment" (Brisbin, 72-73). To a large extent these problems have to do with the failure to look at the matter from the bottom up, which the Court displays in other matters as well. Brisbin writes that in the Smith case the judges made no effort "to envision equal treatment of religious exercise from the vantage point of the disadvantaged religious group." (Brisbin, 73)

Presumably feminists wish to insist that the people who are asked to consent include women, and religious people wish to insist that the people who are asked to consent include those with religious commitments. The first people who were asked to consent to the Constitution of the United States were people for whom religious duties were of supreme importance and who regarded those duties as existing prior to the existence of the state. Imagine this offer (based on liberal political theories) made to individuals who have strong beliefs and group attachments, or to the groups themselves:

Consent to this system of government and your religion will not be interfered with unless that happens as a side effect of pursuing some nonreligious goal, or unless those in power judge that they have a good reason to interfere with it, or unless it gets in the way of our purpose of fostering autonomy for everyone.

Religious people, especially members of minority religions, would have little reason to consent. Such people would have reason to reply in the following way:

Neutrality of intent or justification is a necessary but not a sufficient condition for us to have a good reason to consent. We also want to know something about what kinds of unintended interferences with our religious duties would be permitted and with what kinds of justifications.

So it would seem that there are both good philosophical reasons (following Waldron and Tribe) and good historical reasons (following McConnell, Tribe, Little, Pepper, O’Connor, etc.) to defend a "strong" interpretation of the free exercise clause, following Madison, whose suggested language for the Virginia Declaration of Rights stated: "that no man or class of men ought on account of religion to be...subject to any penalties or disabilities, unless under color of religion the preservation of equal liberty and the existence of the State be manifestly endangered." (Quoted by Pepper, 658).

IV. Postscript

According to Brian Barry, contemporary American neutralist liberalism is a generalization from the establishment clause of the First Amendment as interpreted by the postwar Supreme Court (Barry, 49). Michael McConnell of the University of Chicago Law School says that "the free exercise clause may well be the most philosophically interesting and distinctive feature of the American Constitution" (McConnell 1990a, 1513), and he suggests that focusing on the free exercise clause rather than the establishment clause may suggest a political vision that differs both from Lockean liberal individualism and its neutralist developments, on one hand, and from its competitor, civic republicanism, on the other (McConnell 1990a, 1416). This option seems well worth exploring further. But before we see where the effort to generalize from the free exercise clause as a foundation for a more comprehensive political theory will take us, we must first see to it that the foundation itself is understood and well established.

Notes

1. Raz, 114, also 136. This would seem to be the position, for example, of the modus vivendi liberalism of Charles Larmore (Larmore 1987, 43, 47, 73-7) and Robert Nozick (Nozick, 33, 272-3).

2. One criticism of this point of view is that if this is the correct interpretation, then the free exercise clause is redundant, unnecessary, and irrelevant, since whatever it can accomplish has already been accomplished by the equal protection clause. (See Laycock 1994, 903.)

3. The Court’s approach deviates from the principle set forth by the philosophical defenders of neutrality in that it does not bring up the compensation matter. What could possibly compensate Native American worshipers for a government action that made the practice of their religion impossible? As Ira Lupu puts it, "Free exercise claims are not reducible to ‘interests,’ and the loss imposed by denial of such claims cannot be ameliorated by ‘alternatives’." (Lupu 1986, 778)

4. William Sullivan speaks of "classic liberalism’s historic concern to enhance for individuals the plasticity of life, especially in regard to the constraints of social institutions and cultural norms." (Sullivan, 148)

5. Sandel points out the failure of the modern secular courts to take this seriously. The Supreme Court’s decision in Thorton v. Caldor, Inc. (1985) objected to Sabbath observers having an advantage over others in selecting the preferred day to take off (Sandel 1990, 90), and in the Goldman case Justice Rehnquist never acknowledged that this case involved a religious duty.

6. Little argues that Jefferson’s views on this issue here are based on his own religious views, which included the belief that the only thing worth knowing in religion is the common core of basic morality, discernible by common sense (Little 1976, 60-63), and that anything in religion which conflicted with this had no validity (Little 1976, 70). He also argues that this view was central in the 19th century polygamy cases (Little 1976, 64-72).

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