Despite a pair of recent responses by Ramesh Ponnuru and another by Professor Vincent Philip Muñoz, we continue to view the original understanding of the Constitution’s free-exercise clause to require exemptions to otherwise generally applicable laws except under certain conditions, such as harm to individuals, danger to the public, or the infringement of equal rights. We read the clause that way because the Founders saw free exercise as a natural right, and thus their understanding of the breadth and limits of natural rights must be read into the understanding of the breadth and limits of the free-exercise clause.
Ponnuru continues to argue that Justice Scalia was right — that the free-exercise clause does not require courts to ever provide religious claimants exemptions to neutral and generally applicable laws — because it was legislatures, rather than courts, that early on in our nation’s history provided such exemptions.
And now Muñoz contends that the religious-exemption reading of the free-exercise clause is wrong because the Founders sought to protect religious liberty through restraints on the power and role of the federal government, rather than exemptions to laws. (We note that Muñoz kindly reached out to us to confirm our views before publishing his piece.)
Ponnuru’s and Muñoz’s arguments are serious and deserve careful consideration. Yet we still disagree. First, they either misunderstand our position or are attacking a straw-man version of our argument. They characterize our position on the free-exercise clause as requiring “exemptions from all laws and regulations that burden the beliefs and practices of religious individuals and institutions.” But to the extent they are saying we believe the religious dissenter will always get an exemption, that’s not correct. We don’t even know if, as Muñoz claims, our understanding of the clause’s original meaning would “deliver exemptions in nearly every case.” That remains to be seen: The majority of free-exercise claims are brought in prisoner or land-use cases, and most of the time those claimants lose, even under the original understanding of the clause, so the “nearly every case” result is highly implausible.
Natural rights, as the Founders believed free exercise was, have limits, as we noted in our original essay. So sometimes the countervailing government concern — harming others, for example — will not allow the exemption. No one gets to sacrifice his child to the god of Moloch. How often religious claimants would win or lose under what we believe to be the original understanding is unclear, but they would likely win more often than they do in the lower courts now under Smith, which is almost never. When religious claimants win now, it’s under Lukumi-like conditions of targeted religious persecution. A free-exercise clause that only protects against intentional discrimination or persecution for a right the Founders viewed as fundamental and preeminent is a rather anemic protection.
And we don’t interpret other constitutional rights to require an explicit textual authorization of judicial exemption, even though only the Constitution’s criminal-procedure provisions about criminal trials orders courts to grant “exceptions.” So under this logic, courts aren’t empowered to block generally applicable laws affecting free speech or press either, or the Second Amendment. But we just don’t think the Founders conceptualized constitutional rights this way.
Further, the argument that before the First Amendment, the right to free exercise was only protected by legislatures, not against legislatures, overlooks the fact that the same was true for all the rights in the Bill of Rights before the Bill of Rights was enacted. And it also overlooks the very wording of the First Amendment: “Congress shall make no law . . .” It is a strange situation where the very actor that is prohibited from infringing free exercise is also the very actor tasked with the discretion of deciding when to protect the same right. It is also evidence that the framers of the Bill of Rights were breaking with the way things had been done before the Bill of Rights was enacted — that they no longer trusted legislatures to protect any of these rights, including free exercise.
They point to a dearth of court cases before 1879 as evidence that it was legislatures, not courts, that decided whether an exemption was warranted. But there were court cases before the late 1800s interpreting the free-exercise clause to require exceptions. People v. Philips was decided in 1813 — just 22 years after the passage of the Bill of Rights — and is considered our nation’s first free-exercise case. There, regarding a prosecution for theft, a Catholic priest who had received and returned the stolen goods from someone who had confessed the crime to him, refused to testify, with the state seeking to compel such testimony. The court noted that “it is a general rule, that every man when legally called upon to testify as a witness, must relate all he knows.”
Yet, rejecting British common-law precedent that would have compelled the priest’s testimony, the New York state court granted the priest an exemption based both on New York’s state constitution, which granted “free exercise and enjoyment of religious profession and worship,” and on the federal Constitution’s free-exercise clause. (Relevant to Muñoz’s arguments, the court observed that “although by the constitution of the United States, the powers of congress do not extend beyond certain enumerated objects; yet to prevent the danger of constructive assumptions, the [First Amendment] was adopted.”) The court concluded that Catholics “are protected by the laws and constitution of this country, in the full and free exercise of their religion.” In short, in 1813 both the New York and the U.S. free-exercise clauses required an exemption from a neutral, generally applicable law.
In all, there were five reported pre–Civil War state cases dealing with the issue, most just interpreting their state constitution, with some finding that an accommodation was required and some not. This number may seem small today, but it was a large number in a day when judicial review was more tentative — and, as noted below, it may be more cases than any other of the rights protected in the Bill of Rights. The only case in federal courts was Permoli v. New Orleans (1845 — much earlier than federal cases on the rest of the Bill of Rights’ rights). There the Supreme Court heard an appeal from Louisiana state court regarding the constitutionality under the free-exercise clause of prohibiting open-casket funerals, and the subsequent prosecution of a Catholic priest for violating the ordinance.
Attorneys both for the priest and the city both seemed to understand the free-exercise clause to require exemptions sometimes; they largely argued over whether the ordinance was a valid health regulation and whether the Court had jurisdiction. The Court didn’t reach the free-exercise issue, instead correctly concluding that the First Amendment did not apply to the states.
And there are a number of Supreme Court cases before 1963 in which the Court allowed religious dissenters an exemption from otherwise valid laws. In the 1943 case of Murdock v. Pennsylvania, a state law prohibited the door-to-door selling of goods without a license. Jehovah’s Witnesses challenged the law as unconstitutional when applied to their selling of religious materials. The Supreme Court agreed, finding that, among other things, it violated the plaintiff’s freedom of religion under the First Amendment. In short, he was exempted from a neutral, generally applicable law on religious grounds under the free-exercise clause, which the Court incorporated against the states.
In additional cases, free-exercise concerns are either explicitly or implicitly driving the outcome: Cantwell v. Connecticut (1943 — finding conviction for religious proselytizing was unconstitutional because the religious message was protected religious speech), West Virginia State Board of Education v. Barnette (1943 — concluding that the First Amendment protected Jehovah’s Witnesses children who refused to salute the American flag for religious reasons), Pierce v. Society of Sisters (1925 — deciding that under the First and 14th Amendments, parents had a right to send their children to a private, religious school), and Watson v. Jones (1871 — holding, among other things, that in a church-property dispute courts may not rule on the truthfulness of religious teaching).
(Of note, in a recent case, Hosanna-Tabor, the Supreme Court held that the free-exercise and establishment clauses both independently required the recognition of the ministerial exemption, which, in that case, allowed a church to not follow otherwise neutral and generally applicable disability-discrimination laws — and it held so after surveying the Founding-era history.)
Additionally, during the congressional debate over the Civil Rights Act of 1875, the initial proposal extended the prohibition of racial discrimination to churches, but due to the opposition of senators who declared this would violate the First Amendment, the final act excluded churches. It’s hard to think of anything more neutral or generally applicable than prohibiting racial discrimination.
What is more, few parts of the Bill of Rights were litigated in our nation’s early history. The first establishment-clause case appears to be in 1947. The first U.S. Supreme Court free-speech case appears to be in 1882, and as Eugene Volokh has observed, there were few Founding-era state cases interpreting the right. The first real freedom-of-assembly case was in 1886. The first freedom-of-petition case wasn’t until arguably 1939. And the first Second Amendment case was in 1939 as well. (All three of these latter rights were noted in an 1876 case holding they did not apply to the states.) The first real searches-and-seizures case was in 1925. The first case on the Constitution’s grand-jury requirement was in 1884. The right to a public trial: 1948. The right to a speedy trial: 1874. The confrontation clause: 1895. The right to a free press: 1931. The right to counsel: 1932. The right against excessive bail: 1951. The right against excessive fines: 1989. We are still waiting for our first Third Amendment case.
Do we really think this means that one has no free-speech right, or freedom of assembly, or right to bear arms, etc., in the face of a neutral, generally applicable law that infringes that right, just because there is little Founding-era litigation on these rights?
This pattern of few early cases can be explained by Muñoz’s point that a limited government was meant to be a protection of liberty. Initially, by design, the powers of the federal government were narrow and there was rarely any conflict between federal law, of which there was little, and religion or any other constitutionally enumerated right. It is only when the administrative state began its expansion — chiefly during the New Deal and World War II — that we begin to get federal conflicts. And of course, we don’t get conflicts with states until we incorporate the right.
Additionally, there is no inconsistency between legislative and judicial exemptions for religious practice. We should expect the branches to be vigilant in protecting individual rights by providing them. It is the same with federalism or any other constitutional issue: The legislature, we wish, would respect the Constitution first and provide an exception, but if they don’t, the Court should. Smith actually undercuts the idea of Marbury, understood not as judicial supremacy but as departmentalism.
Muñoz is surely correct that the Founders thought the Constitution’s restraints on the federal government would protect all rights, including religious liberty. That is the Constitution of 1789. But just two years later the Founders lost the debate with the Anti-Federalists over whether those restraints would be the only avenue for protecting rights, with the adoption the Bill of Rights. Our Constitution does not merely rely on the Founders’ view that a limited government will sufficiently protect rights; starting in 1791, our Constitution also subscribes to the view that rights can be enumerated to be protected.
In other words, the Constitution provides multiple layers of protection to liberty. The first, and perhaps the most important, is the division and limitation of power in the Constitution. Yet we have the additional fail-safe of the Bill of Rights. If the government grows beyond its proper bounds, as it has, then we can still rely on the protection of enumerated constitutional rights, enforced by the Courts as a last resort if the other federal branches and the state governments refuse. After all, as Madison stated when introducing the Bill of Rights, enumerating rights in the Constitution would mean judges would “consider themselves in a peculiar manner the guardians” of those rights.
Further, Muñoz, while correct regarding the federal government, seems to overlook the fact that the state governments (and the people) were given the residual power not granted to the federal government (or withheld from the states). This state police power very much has the potential to trample individual liberty, even if the federal government could not do so if it stuck to the original understanding of its enumerated powers. And so the main limits on state governments are found in constitutional provisions, like the free-exercise clause, that restrain state governments’ power in specific contexts.
So even if we lived in a world with a small and limited federal government, Smith still hurts, given the residual power of state governments and the loss of the additional protection of the free-exercise clause. And it doubly hurts because we no longer live in a world of limited federal power.
Muñoz also relies on the lack of judicially provided exemptions to the Quakers from having to serve in the military. But there was no federal draft, so any exemption to having to bear arms would have applied to state militias, and the First Amendment didn’t apply to the states then.
What is more, the rewording of the Second Amendment during the debate over its passage is possible further evidence that the free-exercise clause was meant to provide exemptions from neutral, generally applicable laws. There was initially a proposal from several states for an amendment providing “that any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Madison altered the wording in his proposal to Congress: “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
The House debate shows that some thought that such an exemption was required to protect religious liberty, but that the government could not even require the religiously scrupulous objector to pay or find someone else to fight for them. Others thought such alternatives were an adequate compromise. Still others opposed the proposed amendment on the grounds that it was not a natural right, but could be provided by the legislature. In the end, the amendment, with Madison’s language, passed the House, but not the Senate, with no evidence as to why the Senate rejected it.
Some, such as Muñoz, interpret that to mean the amendment was not required to protect the natural right of religious freedom. Of course, an alternative interpretation of the Senate’s rejection of the amendment is that it was redundant with the free-exercise clause (which had undergone revisions from Madison’s initial narrower proposal of protecting “religious belief or worship”). And at least some Anti-Federalists had worried that the lack of a free-exercise clause would mean Congress could force the religiously scrupulous to serve in the military. Ultimately, the Senate’s silence could support a number of interpretations.
Finally, Muñoz appears to take a cramped reading of free exercise, limiting it to “religious worship.” (This is similar to the view the Obama administration took of religious liberty.) Thus, the “unalienable” right of religious freedom, recognized by the Founders, meant that if one lived one’s religion outside of worship, the inalienability dissolved. But religion is not like that at all, at least not religion that has any meaning. It infuses everything someone does — they take their religious beliefs, which demand or prohibit certain actions — out into society. And living one’s faith constantly and everywhere is for many the definition of worship, not just what happens in the church or synagogue or mosque. Certainly that seemed to be what Madison was saying in his famous Memorial and Remonstrance:
The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate . . . . It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.
And we agree with John Witte that at the time of the Founding, Americans believed free exercise meant the “right to act publicly” on one’s religious beliefs, subject to restraints inherent in a natural right. If, as Muñoz seems to believe, Madison and other Founders just meant traditional “worship” when they spoke of the free exercise of religion, and that unalienable right could never be infringed by the government, then what of child sacrifice? It is an act of worship for those who historically believed in it. But the Founders also recognized that the laws could prevent it despite its being someone’s free exercise of religion. So worship can also be potentially prohibited by the government, despite being a natural right, just as freely exercising one’s religion outside of formal worship is also free exercise, with its rights and limitations.
And Muñoz relies heavily on Jefferson’s views on natural rights and religious liberty. But Jefferson is a subpar substitute for Madison and others — hardly an authoritative source, for two reasons. First, he tended to take more of an outlier position — a narrower view of both natural rights and religious liberty — than most in his day. Second, he was not involved in the drafting or ratification of the Constitution or the Bill of Rights, so he’s pretty low on the totem pole of Founders as far as gleaning the meaning of either is concerned. And it appears that the passage Muñoz quotes is from seven years after Jefferson left the presidency, and decades after the Constitution and Bill of Rights were ratified.
In the end, we recognize Justice Scalia’s counterarguments and reading of the historical evidence, as put forth by Ponnuru and Muñoz. But given that we view the free-exercise clause’s author, James Madison; the First Congress, which adopted the First Amendment; the majority of state constitutions at the Founding; the first American court case; both parties in the first federal court case; and Congress shortly after the Civil War to have understood the clause to require, at least sometimes (if not more often than not), the accommodation of religious dissenters to otherwise valid laws, we respectfully dissent from the late justice’s views.