By Mike Appleton, Weekend Contributor

“Smith relegated our national commitment to the free exercise of religion to the sub-basement of constitutional values.”

-Michael P. Farris and Jordan W. Lorence, “Employment Division v. Smith and the Need for the Religious Freedom Restoration Act,” 6 Regent U.L.Rev. 65, 66  (1995)

Several years following the ratification of the Constitution, a man named Jonas Phillips was subpoenaed to testify on behalf of a defendant in a criminal case in Pennsylvania. The problem was that the trial was scheduled for a Saturday and Mr. Phillips was a devout Jew. He refused to be sworn on the Jewish Sabbath and was subsequently held in contempt and fined ten pounds, despite invoking the protection of the Pennsylvania constitution, which provided that “no human authority can in any case whatsoever, control or interfere with the rights of conscience. . . .”  Stansbury v. Marks, 2 Dall. 213 (Pa. 1793). Fortunately, the defendant waived Mr. Phillips’ appearance and the fine was discharged.

Jonas Phillips’ “rights of conscience” were deemed subordinate to the orderly administration of the judicial system in a state which boasted one of the most religiously tolerant constitutions in the young nation. Therefore, when the Supreme Court held in 1878 that rights of conscience likewise could not be raised as a defense to a charge of bigamy, the ruling was hardly earthshattering.  Reynolds v. United States, 98 U.S. 145 (1878). And the decision over one hundred years later in Employment Division v. Smith, 494 U.S. 872 (1990), appeared to confirm a principle that had largely guided free exercise jurisprudence since the nation’s founding: the Religion Clauses do not mandate religious exemptions from valid laws intended to be binding upon all of us. Yet the Smith decision produced a harsh political and academic reaction, resulting in legislation that has radically altered the free exercise landscape. How did that happen?

In its simplest expression, what I refer to as the Reynolds doctrine holds that although my religious belief (or unbelief) is not an appropriate subject of government regulation, my actions are. The Constitution permits the imposition of restraints upon my actions, even if they are motivated by religious belief, when they “conflict with duties imposed upon society as a whole.” The alternative, said the Court, is a nation in which religious expression becomes “superior to the law of the land,” permitting ” every citizen to become a law unto himself.” 98 U.S. at 167.

The Reynolds doctrine dominated free exercise jurisprudence for over 100 years.  In 1890, for example, the Court upheld an Idaho territorial statute disqualifying those engaged in “teaching, advising and counselling the practice of bigamy and polygamy” from voting or holding office. Davis v. Beason, 133 U.S. 333 (1890). In Prince v. Massachusetts, 321 U.S. 158 (1944), a Jehovah’s Witness was convicted of violating state child labor laws by permitting her nine-year old niece to assist her in selling religious literature on the public streets. The conviction was affirmed.

In Braunfeld v. Brown, 366 U.S. 599 (1961), Orthodox Jewish merchants challenged the constitutionality of Connecticut’s Sunday closing laws, arguing that since their religious beliefs required that they be closed from Friday evening to Saturday evening, they were effectively prevented from conducting any weekend business, with serious, even devastating, financial consequences. Nevertheless, the Court concluded that the state’s interest in reserving one day a week for “rest, repose, recreation and tranquility” was intended to advance a lawful secular goal and imposed only an “indirect burden” on religious exercise because the legislation did not purport to “make unlawful the religious practice itself.” 366 U.S. at 606-607.

Opposition to the Vietnam War generated constitutional challenges to the conscientious objector exemption in the Selective Service Act, which requires that a claimant oppose war in any form. One of the petitioners in Gillette v. United States, 401 U.S. 437 (1971) was a Roman Catholic who argued that his religion mandates that the moral permissibility of an armed conflict be examined in accordance with just war doctrine. Although the Court acknowledged the authority of Congress to create a process for addressing selective objection claims, it concluded that it was not mandated by the Free Exercise Clause in view of the difficulty in fairly administering  such a system and the “Government’s interest in procuring the manpower necessary for military purposes, pursuant to the constitutional grant of power to Congress to raise and support armies.” 401 U.S. at 463.

The Court has also consistently rejected religious exemption claims in the context of tax policy. In United States v. Lee, 455 U.S. 252 (1982), the Court upheld a determination that an Amish employer was obligated to pay the employer’s share of social security taxes for his employees. “When followers of a particular sect enter into commercial activity as a matter of choice,” it said, “the limits they accept on their conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” 455 U.S. at 261.  In Bob Jones University v. United States, 461 U.S. 574 (1983), the revocation of a religious university’s tax-exempt status over its discriminatory racial policies was affirmed (under strict scrutiny analysis). The Court has also held that the minimum wage and overtime provisions of the Fair Labor Standards Act apply to non-profit religious organizations. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985). And in Bowen v. Roy, 476 U.S. 693 (1986) the Court ruled that a Native American couple could be compelled to provide a social security number for their minor child in connection with the administration of AFDC and the food stamp program despite their religious objections.

The fundamental strength of these and similar decisions lies in their recognition that the Free Exercise Clause implicates both the notion of separation of church and state and the separation of powers doctrine. With respect to the former, the cases emphasize the essential nature of religious freedom: the state may neither define religion nor question the soundness of particular religious beliefs. Thomas v. Review Board, 450 U.S. 707, 714 (1981) (“Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”); United States v. Ballard, 322 U.S. 78, 86 (1944) (“Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”)

The courts likewise honor the limitations of judicial review when they decline to exercise the legislative function of creating a religious exemption from a law of universal application when it is not constitutionally required. Indeed, the majority opinion in Smith emphasized the role of the legislative branch on this issue. “Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” 494 U.S. at 890.

But if the decision in Smith lay well within the boundaries of traditional free exercise doctrine, how do we explain the harsh reaction and the rush to impose legislative restraints on its application? The answer, as one might expect, combines legal, political, social and religious elements with, I would add, a strongly negative reaction to portions of Justice Scalia’s opinion which appeared incongruously dismissive of legitimate free exercise concerns. Stay tuned.

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