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In 1991, a talented Constitutional scholar writes, "the survival of the principal of free exercise exemptions is very much in doubt." That priceless promise of protection, the free exercise clause, can no longer be taken for granted, or viewed as an inevitable advance always to grace America's civil liberties landscape. If the doctrine is not defended or salvaged quickly, it will be powerless to bless generations of Americans with the freedom history shows is necessary for substantive societal health. If Supreme Court trends continue in their present direction, the essential meaning of the free exercise clause will be avalanched by the growing fear of drugs, gangs, cults, and terrorism that is steamrolling liberty's embers with a blacktop of order, restriction, and uniformity.
Michael McConnell writes in a recent Harvard Law Review article about the free exercise clause:
What once appeared to be a jurisprudence highly sympathetic to religious claims now appears virtually closed to them. Chief Justice Rehnquist and Justice Stevens have openly declared their opposition to the doctrine [of exemptions for free exercise]. Chief Justice Rehnquist has contended that when a "State has enacted a general statute, the purpose and effect of which is to advance the State's secular goals, the Free Exercise Clause does not...require the State to conform that statute to the dictates of religious conscience of any group." Justice Stevens has stated that there is "virtually no room for a 'constitutionally required exemption' on religious grounds from a valid...law that is entirely neutral in its application."
Is this the historic meaning of the "free exercise" clause? Was it meant to never grant special privilege to the person making a free exercise claim? "Special privilege" here meaning that in a clash between a law and a citizen's religious faith, the presumption of Constitutionality would be on the side of the individual and his religious belief. Either the individual would be granted an exemption, or the offending legislation would be stricken down.
Several factors must be immediately considered in the answer to this critical question. First of all, the protections of the First Amendment stand, to a certain degree, in a hierarchical order. The religion clauses are stated first, and therefore, according to some of the founders, in a place of preeminence. Before the freedoms of speech and press are mentioned in that precious Amendment the establishment and free exercise provisions stand at the gateway. For Thomas Jefferson this ranking of freedoms was not without purpose. Jefferson spoke of religious freedom in a way that distinguished it profoundly from other civil liberties. Jefferson held that the Constitution left to the states and the people the right to judge how far freedom of speech and press might be abridged, indicating that these rights are not absolute. But he left to the same authority the right only of protecting freedom of religious opinions, giving no suggestion of abridgement. The argument has also been made, by no less a personage than Supreme Court Chief Justice John Marshall, that Congress had greater power over the press than over the establishment of religion, because the term "abridging" was less encompassing than the term "respecting". For Jefferson this distinction between religious opinion and other opinions was fundamental. In his Notes on Virginia, Query XVII, he says that the legitimate powers of government extend only to those natural rights which were submitted to government and "the rights of conscience we never submitted, we could not submit." Dumas Malone, a prolific biographer of Jefferson, searched the writings of his hero in vain for even a single statement in which Jefferson defends unconditionally any freedom of opinion other than religious opinion.
McConnell marshals evidence to show that the Framers adopted the terminology "free exercise of religion" in place of what had been the more commonly used alternative "rights of conscience" to ensure protection for religiously motivated conduct and to make clear that protection would not extend to secular claims of conscience.
James Madison, the "Father of the Constitution" and a converted champion of adding the Bill of Rights after the initial ratification of the Constitution, held that religious duty "is precedent both in order of time and degree of obligation, to the claims of Civil Society." In his famous Memorial and Remonstrance, written as part of the advancing movement which led to the wording and the sentiments that went into the First Amendment, he wrote that "every man" who becomes a member of a civil society, "must always do it with a reservation...of his allegiance to the Universal Sovereign." It is plain from these and other sources that Madison believed that free exercise of religion had a higher and prior claim on mankind than civil obligation. He believed that the first duty of a good citizen was to his "Creator." Since every man may have a differing view on the nature of that obligation, the state is bound to step away as to judging the appropriateness of each other person's "free exercise" of religious opinion.
McConnell writes:
"If the scope of religious liberty is defined by religious duty...and if the claims of civil society are subordinate to the claims of religious freedom,it would seem to follow that the dictates of religious faith must take precedence over the laws of the state, even if they are secular and generally applicable."
This conclusion seems startling, based on current usage, yet this is what the First Amendment intended when it stated that Congress could not prohibit free exercise.
This view, like those of Jefferson and Madison expressed above, was widely held among the Framers. These views presume, indeed exalt the legitimacy of exemptions for free exercise claims, contrary to the modern Court's view that there is little, if any, place for a free exercise claim being exempted from a state or federal law, generally applicable.
Three examples from the general time of the ratification of the Constitution are further evidences that the Founders' view of the "free exercise" clause was one which allowed and encouraged exemptions from generally applicable laws. The example of oaths could stand as exhibit one. It was customary at that time for oaths to be taken to help insure honest testimony. But Quakers and certain others were religiously opposed to oaths. The states could have said, "Too bad! Either take an oath or go to jail. This is a generally applicable requirement. What are you hiding that you will not swear to tell the truth?" This would be a caricature of the modern Court position. But this is not the attitude the Founders took. By 1789, virtually all the states had enacted oath exemptions. The free exercise rights of Quakers and others were granted exemption from an otherwise generally applicable law.
Secondly was the issue of military conscription. Especially back in those trying times of Revolution might it be expected that exemptions would not be granted for refusal to be drafted into military service. Yet almost all the states, the Continental Congress included, recognized the high priority of religious claims of Quakers, Moravians, and others and granted them exemptions from the otherwise generally applicable conscription laws. Here are the words granting exemptions from the Continental Congress:
As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.
A third arena showing that the Fathers worked from the standpoint of granting exemptions for the sake of religious conscience is that of religious assessments. States with established churches required payments for the support of those churches. Characteristically these states "accommodated the objection of members of sects conscientiously opposed to compelled tithes."
The above considerations of history must be placed alongside of Justice Scalia's words in the majority opinion of the case of Dept. of Human Resources of Oregon v. Smith. Congressman Stephen J. Solarz (D-N.Y.), sponsor of the Religious Freedom Restoration Act, a bill intending to reverse the effect of the Smith decision, has called the date of the Court's opinion in the Smith case, April 17, 1990, "a day that will live in constitutional infamy", a "devastating blow to religious freedom in the United States." Justice O'Connor, in a separate but concurring opinion says of Scalia's majority opinion:
"To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct".
Though not widely recognized by the American people, their religious liberty has been largely removed. We have entered a new era of the American experiment with democracy, an era obviously not founded, as the first era seemed to be, on a commitment to protect liberty from the intrusion of government. Coupled with the new era we have entered into with a war on terrorism, the future of liberty is not bright. Which is another way of saying we could be entering an era where the citizenry, to gain a greater sense of security, gladly hand over their liberties to a powerful government, or, to use the metaphor of some-- a beast.
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