’Fairer Still the Woodlands’: Mapping the Free Exercise Forest,” Review of Kent Greenawalt, Religion and the Constitution 1: Free Exercise and Fairness (2006) (original) (raw)
Related papers
Free Exercise and the Resurgence of the Religious Freedom Restoration Act
SAGE Open, 2016
This article considers the development of protections of the Free Exercise of Religion, initially under the First Amendment, and later, following Congress’s discontent with the Supreme Court’s decision in Employment Division of Oregon v. Smith, under the Religious Freedom Restoration Act. The article discusses how this development resulted in the Court’s controversial split decision in the case of Burwell v. Hobby Lobby in 2014, and considers why commentators take such diverse views of that case.
American Political Science Review , 2016
Due in part to the influence of Michael McConnell, free exercise exemptionism is generally thought to be compatible with, if not dictated by, the founders' church-state political philosophy. This article rejects that position, arguing instead that America's constitutional tradition offers two distinct conceptions of religious liberty: the founders' natural rights free exercise and modern moral autonomy exemptionism. The article aims to distinguish these two approaches by clarifying how they are grounded upon divergent philosophical understandings of human freedom and by explaining how they advance different views of what religious liberty is, how it is threatened, and, accordingly, how it is best protected. The article also attempts to demonstrate how our modern approach expands the protection for religious liberty in some ways but limits it in others.
Religious Freedom in the United States: ‘When You Come to a Fork in the Road, Take It
2013
, for their useful comments on drafts of the manuscript. I would also like to thank Mrs. Ann Raney of the Curriculum Materials Center at the University of Dayton for her help in locating materials cited in this article, my Assistant, Ms. Elizabeth Pearn for proofreading the manuscript and helping to prepare it for publication, and Mr. Mohamed Al-Hamdani, University of Dayton School of Law, Class of 2013, for his help in researching citations and commenting on a draft of the paper. Finally, I would be remiss if I did not offer my greatest thanks to my wife and love of my life, Debbie Russo, a fellow educator, for proofreading and commenting on drafts of this article in addition to everything else that she does for me in our life together. 1 YOGI BERRA WITH DAVE KAPLAN, WHAT TIME IS IT? YOU MEAN NOW? ADVICE FOR LIFE FROM THE ZENNEST MASTER OF THEM ALL 33 (2002). 2 Bd. of Cnty. Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting) (affirming that the First Amendment protects independent contractors from the termination of or prevention of automatic renewals of at-will government contracts in retaliation for exercising their right to freedom of speech). 364 UNIVERSITY OF DAYTON LAW REVIEW [Vol. 38:3 purposes without prior approval of public officials). But cf. Barron v. Mayor and City Council of Baltimore, 32 U.S. 243, 250-51 (1833) (holding that the Bill of Rights was inapplicable to the states since its history demonstrated that it was limited to the federal government). 8 Although issues associated with the practice of religion are more likely to be covered by the Free Exercise Clause, such disputes are often referred to as Establishment Clause disputes.
Is religion special, and does it, accordingly, deserve unique constitutional protections? A number of leading scholars now say it is not, and it doesn’t. In his recent thought-provoking article, “What if Religion Is Not Special?” Micah Schwartzman contends that “religion cannot be distinguished from many other beliefs and practices as warranting special constitutional treatment.” He thus rejects the originalist construction of Free Exercise exemptions championed by Michael McConnell, at least insofar as it extends exemptions exclusively to religious entities. But what if religious liberty does not mean exemptions? And if religious liberty does not mean exemptions, what protection would the First Amendment offer? Can religion retain its special Free Exercise status while not dictating constitutional exemptionism? My article addresses those questions by taking a different approach to religion’s specialness, one that does not presume the Free Exercise Clause means exemptions. It attempts to set forth an alternative paradigm for the constitutional protection of religious liberty by explaining why the founders thought religion is special and by articulating their attendant constitutionalism of religious freedom. In doing so, it continues a line of inquiry, begun elsewhere, that attempts to distinguish the founders’ natural rights constitutionalism from what I call modern moral autonomy exemptionism. The article, first, documents the founders’ shared understanding that religious liberty is a natural right possessed by all individuals. Secondly, it explains what the American founders meant when they labeled aspects of religious liberty an “unalienable” natural right. The article next clarifies the founders’ understanding of religion’s special constitutional status, which for them primarily meant specific jurisdictional limits on state sovereignty rather than exemptions. Finally, the article attempts to further clarify the founders’ constitutionalism of religious freedom by explaining how they understood natural rights to have natural limits.
1992
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. Declaration of Independence (1776)1 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. This right is in its nature an unalienable right. James Madison, Memorial and Remonstrance (1785)2 1. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). 2. James Madison, Memorial and Remonstrance Against Religious Assessments (1785), reprinted in Everson v. Board of Educ., 330 U.S. 1, 28 app. at 63 (1947) (Rutledge, J., dissenting). 3. See THE DECLARATION OF INDEPENDENCE (U.S. 1776). 4. The First Amendment to the United States Constitution provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... U.S. CONST. amend. I. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment extended the protections of the Free Exercise Clause to the states. Id. at 303; see also infra notes 71-72 and accompanying text. 5. 494 U.S. 872 (1990).-In his dissent, Justice Blackmun lamented that the Smith II decision "effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences 12. Sherbert, 374 U.S. at 403-10. 13. Smith 11, 494 U.S. at 888. 14. Id. at 890. Justice Blackmun, in his dissenting opinion, stated that he did "not believe the Founders thought their dearly bought freedom from religious persecution a 'luxury,' but an essential element of libertyand they could not have thought religious intolerance 'unavoidable,' for they drafted the Religion Clauses precisely in order to avoid that intolerance." Id. at 909 (Blackmun, J., dissenting). 15. Id. at 878; see also id. at 892 (O'Connor, J., concurring). 16. Everson v. Board of Educ., 330 U.S. 1, 8 (1946). According to the Everson majority: The First Amendment. .. commands that a state "shall make no law respecting 1992] 3
Recent Applications of the Supreme Court’s Hands-Off Approach to Religious Doctrine
Law, Religion, and Health in the United States
In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: 1 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 2 Burwell v. Hobby Lobby, Inc., 3 Holt v. Hobbs, 4 and, most recently, Zubik v. Burwell. 5 Although the Court's decisions in these cases addressed-and seemed to resolve-a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the "ministerial exception" and religious rights of a corporate entity, the decisions left a number of questions unanswered, such as the contours of free exercise rights for prisoners and the definition of a religious minister. More dramatically-though anticlimactically-in Zubik, rather than ruling in favor of one of the parties, the Court issued an unusual per curiam opinion instructing the parties to work to find a way to resolve the matter. This chapter suggests that the Supreme Court's inability to answer some of these questions, or even to resolve the controversy in Zubik, is rooted in the Court's continuing, and arguably expanding, hands-off approach to religious doctrine. The hands-off approach, developed in a series of landmark cases, precludes judges from engaging in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims in deference to adherents' characterizations of the substance and significance of a religious practice or belief. 6 Although the Court has offered both constitutional and practical justifications for this deference, the hands-off approach has been subject to considerable criticism among legal scholars. 7 Indeed, notwithstanding some sound 1 See U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. .. .").
International Journal for Religious Freedom, 2022
The free exercise clauses in the First Amendment of the US Constitution and Section 116 of the Australian Constitution are almost identical textually. However, they have been interpreted very differently, with the United States providing broad protection for religious freedom and Australia very narrow protection. I suggest that secularism has influenced First Amendment jurisprudence to some extent but Section 116 jurisprudence more significantly, and that this influence may explain the difference in interpretations. Hence, more secularist approaches to the free exercise clauses appear to contribute to narrower interpretations that undermine religious freedom.
Contextualizing the Free Exercise of Religion
SSRN Electronic Journal, 2000
The level of protection afforded to an individual's First Amendment right to freely exercise religion should depend upon the context within which it is exercised. Put differently, an individual's right to religious liberty should be balanced against other individuals' right to equal protection of the law, and the broader societal interest in protecting individuals from invidious discrimination. This Article proposes a multifactor test that fully protects the right to freely exercise one's religion while simultaneously safeguarding equal protection and antidiscrimination guarantees. Specifically, the level of protection afforded to a free exercise claim should depend, among other things, on whether it occurs in the private or public sphere (e.g., in a house of worship or a business that provides goods or services to the general public), whether an individual asserting such a claim is acting on behalf of a governmental entity, and whether the protection of religious freedom would infringe on equal protection and anti-discrimination principles. Such a test is consistent with the text and original purpose underlying the Free Exercise Cause and with the guarantee of equal protection and liberty for all citizens.
Journal of Catholic Legal Studies, 2009
This article examines one positive result of the Smith decision, namely the rebirth of state constitutional free exercise jurisprudence, which had atrophied in the decades prior to the 1990 decision. Surveying high court case law from several states in the wake of Smith, the author asks whether state constitutions will afford protection to religious believers and others motivated by conscience at a time when religious freedom and rights of conscience are under pressure from those asserting competing "rights" of more recent vintage, such as "reproductive rights" and rights based on "sexual orientation." The author concludes that state constitutional free exercise clauses, especially those worded differently from that found in the federal constitution, may indeed afford greater protection, though how much protection remains to be seen as new rights jostle with those religious and conscience rights that pre-date the Republic for supremacy.