1. U.S. Const. amend. I (“Congress shall make no law … prohibiting the free exercise [of religion].”). The Supreme Court declared the free exercise clause applicable to the states in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

2. McConnell, , Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 48Google Scholar; Merel, , The Prolection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. Chi. L. Rev. 805, 810 (1978)CrossRefGoogle Scholar. See also Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963) (purpose of free exercise clause “is to secure religious liberty in the individual by prohibiting invasions thereof by civil authority”); Braunfeld v. Brown, 366 U.S. 599, 610 (1961) (“[T]he values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.”) (Brennan, J., concurring and dissenting).

3. See Choper, , The Free Exercise Clause: A Structural Overview and an Appraisal of Recent Developments, 27 Wm. & Mary L. Rev. 943, 946 (1986)Google Scholar (“The Court's decisions in Yoder and Sherbert highlight a major difficulty with the Court's approach under the religion clauses, one of both logic and policy.”); Giannella, , Religious Liberty, Nonestablishment, and Doctrinal Development (pt. 1), 80 Harv. L. Rev. 1381, 1422 (1967)CrossRefGoogle Scholar (Sherbert balancing test “involves certain hazards, since a balancing test tends to substitute subjective judgment for objective standards”); Johnson, , Concepts and Compromise in First Amendment Religious Doctrine, 72 Calif. L. Rev. 817, 839 (1984)CrossRefGoogle Scholar (“Doctrinally, first amendment religion law is a mess.”); Leedes, , Court-Ordered Exemptions to Secure Religious Liberty, 21 U. Rich. L. Rev. 335, 339 (1987)Google Scholar (“There are many problems associated with ad hoc balancing which, by its very nature, produces some case rulings that favor the government because of demonstrable administrative necessities.”); Pepper, , The Conundrum of the Free Exercise Clause — Some Reflections on Recent Cases, 9 N. Ky. L. Rev. 265, 303 (1982)Google Scholar (“The Supreme Court has failed to provide coherent guidance for the lower courts, leaving them to pick and choose, or to stumble, in the application of the Free Exercise Clause.”); Tushnet, , Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm. & Mary L. Rev. 997, 1008 (1986)Google Scholar (“The jurisprudence of the religion clauses is in a mess.”) [hereinafter Tushnet, Reflecturns]; Tushnet, , The Constitution of Religion, 18 Conn. L. Rev. 702, 710 (1986)Google Scholar (“Contemporary constitutional law just does not know how to handle problems of religion.”) [hereinafter Tushnet, Constitution]; Note, , Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350, 352 (1980)Google Scholar (“The approach adopted by the courts has been ill-conceived and unconvincing.”) [hereinafter Note, Exemptions], See infra text accompanying notes 11-82.

4. “Courts and commentators have offered various tests and distinctions as rules of decision in free exercise cases, but these tests are either artificial, productive of inconsistent results, or incapable of explaining the true policies behind the free exercise clause.” Dodge, , The Free Exercise of Religion: A Sociological Approach, 67 Mich. L. Rev. 679, 681, 697 (1969)CrossRefGoogle Scholar (proposes “sociological test” applicable only to “mature” religions).

Currently the Supreme Court uses the Sherbert test put forth in Sherbert v. Verner, 374 U.S. 398 (1963) (see infra text accompanying notes 14-17; see note 17 on the present status of the Sherbert test). For other proposed tests, see Garvey, , Free Exercise and the Values of Religious Liberty, 18 Conn. L. Rev. 779, 792–97 (1986) (theory of values based on avoiding special suffering, conflicting duties, nullification and civil disobedience)Google Scholar; Giannella, supra note 3, at 1390 (three part balancing test includes secular value underlying law, proximity of law to it, and impact of exemption); Merel, supra note 2, at 817 (substitute alternate means of achieving government objective when previous means inhibits free exercise); Leedes, supra note 3, at 344 (deny exemption only when incremental benefit of law applied to religious objectors outweighs their incremental loss from its enforcement); Note, Exemptions, supra note 3, at 350 (approach religious accommodations based on competing sources of authority, analogous to conflicts of laws determinations).

5. See infra text accompanying notes 83-141.

6. This distinction with regard to religious exemptions has been suggested most fully by Clark, , Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 345, 361 (1969)CrossRefGoogle Scholar. While Clark recognizes this distinction, he does not develop a rationale underlying it. Instead, he focuses on how it could be administered in practice, often ending with troubling results. Among other things, he argues that the government could discourage undesirable passive exemptions through the use of economic sanctions. Id. at 349. A few other writers have mentioned this distinction, but without offering any rationale for adopting it. See Choper, supra note 3, at 944; Dodge, supra note 4, at 683, 707; and Giannella, supra note 3, at 1422.

The Supreme Court has never used this distinction as a basis of decision, but Justice Brennan appears to have acknowledged it. See infra text accompanying notes 184-193. This article's contribution lies in providing a philosophical origin for the distinction and a rationale supporting its use as a meaningful, religiously neutral basis for deciding free exercise cases.

7. See infra text accompanying notes 13-17.

8. See infra note 77 and accompanying text.

9. It may be naive, and perhaps undesirable, to assume that judges will disregard completely what they view as the importance of particular religious activities. Importance may also come to be a factor — whether or not delineated as such — in determining if a state could afford an exemption. However, judges would be able to avoid making findings on record that plaintiffs' practices are not particularly important to their religion; the current balancing test encourages such determinations. See infra text accompanying notes 18-26, 38-50.

10. Arguably, courts already use a form of the affordability test: the “least restrictive means” test. When there is a clash between government objectives and religious free exercise, the government must achieve its goals in the narrowest possible way in terms of infringing upon free exercise. The court in Callahan v. Woods, 736 F.2d 1269, 1275 (9th Cir. 1984) (remanding case to district court “to consider whether the government had a reasonable opportunity to establish the cost of exempting” plaintiff from obtaining social security number to receive social welfare benefits) noted: “The purpose of almost any law … can be traced to a fundamental concern of government. Balancing an individual's religious interest against such a concern will inevitably make the former look unimportant. It is therefore the ‘least restrictive means’ inquiry which is the critical aspect of the free exercise analysis.” Id. at 1272. See also Thomas v. Review Bd., 450 U.S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”); Quaring v. Peterson, 728 F.2d 1121, 1127 (8th Cir. 1984), aff'd by an equally divided Court sub nom. Jensen v. Quaring, 472 U.S. 478 (1985) (“A state's interest in avoiding an administrative burden becomes compelling only when it presents administrative problems of such magnitude as to render the entire statutory scheme unworkable …. The record contains no evidence, however, that allowing religious exemptions to the photograph requirement [on drivers' licenses] will jeopardize the state's interest in administrative efficiency.”); Moody v. Cronin, 484 F. Supp. 270, 276-77 (C.D. Ill. 1979) (plaintiff schoolgirl excused from participating in religiously offensive coeducational physical education classes; state demonstrated compelling state interest, but did not use least restrictive means to achieve it).

11. 98 U.S. 145 (1878) (denying Mormon defendant exemption from polygamy laws).

12. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Id. at 166.

13. Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940) (striking down Massachusetts statute that required permit to disseminate religious literature).

14. 374 U.S. 399 (1962) (plaintiff who lost job upon refusal to work on Sabbath granted state unemployment benefits).

15. Id. at 399 n.1. In Sherbert, there was no question of the appellant's sincerity. A plaintiff must establish that he has a sincere religious belief in order to have standing to assert a free exercise claim. Findings of insincerity seem rare, and sincerity often is stipulated by the parties. See. e.g., Wisconsin v. Yoder, 406 U.S. 208, 209 (1972) (excusing Amish children from mandatory school attendance after completing eighth grade or reaching age sixteen); Mozert v. Hawkins, 827 F.2d 1058 (6th Cir. 1987) (public school students required to use religiously offensive basic reader series); Frazee v. Illinois Dep't of Employment Sec., — U.S. —, —, 109 S. Ct. 1515, 1517 (1989) (plaintiff refusing job involving Sunday work not denied unemployment benefits). Under the test here proposed, plaintiffs would still have to establish sincerity as a matter of standing.

16. 374 U.S. at 403.

17. Id. at 406. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”).

Immediately prior to the publication of this article, the Court placed the future of the Sherbert test in considerable doubt. In Employment Div. v. Smith, — U.S. —, 110 S. Ct. 1595 (1990) (holding that Oregon may constitutionally deny unemployment benefits to persons who lost their jobs due to religious, but illegal, use of peyote), Justice Scalia, writing for the Court in an opinion joined by four other Justices, determined that the compelling state interest test does not apply in criminal contexts (as in this case), and suggested that it should not be applied at all. See id. at 1602-06. Justice Scalia offered no alternative standard, other than suggesting that religiously neutral laws should not be invalidated on first amendment grounds; he seems intent on emasculating the free exercise clause altogether. See id. at 1606. Justice O'Connor, concurring in the judgment, nevertheless applied the Sherbert test in her separate opinion, as did Justice Blackmun (joined by Justices Brennan and Marshall) in his dissent.

18. United States v. Ballard, 322 U.S. 78, 86-87 (1944).

19. For cases in which religious exemptions have been denied in part because the beliefs violated were not important enough, see Smith v. North Babylon Union Free School Dist., 844 F.2d 90, 94 (2d Cir. 1988) (injunction to move high school graduation ceremonies from day of plaintiff's Sabbath denied; denial not burden on “core” religious belief); Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1533, 1541 (9th Cir.), cert. denied, 474 U.S. 826 (1985) (injunction to remove religiously offensive book from public school curriculum denied; in spite of what “[p]laintiffs allege that they believe,” court found “[t]he burden on [their] free exercise was minimal”).

20. 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983).

21. Id. at 738.

22. Id.

23. Id. at 743 (quoting Unitarian Church West v. McConnell, 337 F. Supp. 1252, 1257 (E.D. Wis. 1972), aff'd, 474 F.2d 1351 (7th Cir. 1973), vacated and remanded on other grounds, 416 U.S. 932 (1974)).

24. Id. at 743 (quoting Geller v. Secretary of Defense, 423 F. Supp. 16, 17 (D.D.C. 1976)).

25. Id. at 743.

26. Id. at 744-45. Courts sometimes rely on “experts” in determining the importance of religious beliefs. See, e.g.. United States v. Merkt, 794 F.2d 950, 956 (5th Cir. 1986), cert. denied, 480 U.S. 946 (1987) (defendent convicted of illegally importing El Salvadorians in spite of religious motivation: “Representatives of Catholic and Methodist clergy testified at the pretrial hearing and at trial. None suggested that devout Christian belief mandates participation in the ‘sanctuary’ movement.”). This practice, however, in addition to harming plaintiffs by telling them what their religious beliefs “really are,” seems directly at odds with the well-established principles that “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect” and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd., 450 U.S. 707, 714, 715-16 (1981). See also Azez v. Fairman, 604 F. Supp. 357, 362 (C.D. 111. 1985) (same).

27. See. e.g., EEOC v. Pacific Press Pub. Ass'n, 676 F.2d 1272 (9th Cir. 1982) (requiring plaintiff employer to observe mandates of Title VII “does not infringe [its] free exercise of its religious beliefs”); Inupiat Community v. United States, 548 F. Supp. 182, 188 (D. Alaska 1982) (certain fishing areas allowed to be developed in spite of free exercise clause claims put forth by Inupiat people; claims found to be “without foundation” in absence of showing religious, as opposed to merely “cultural,” infringement).

In the test proposed in this article, in order to qualify for free exercise clause protection, beliefs must be religious. The proposed test changes this aspect of current doctrine only by requiring that all doubts about the religiosity of beliefs to be decided in favor of plaintiffs. Some courts have already suggested this standard. In United States v. White, 421 F.2d 487, 492 (5th Cir. 1969) (petitioner's objection to selective service was rooted in genuine religious belief, therefore he was entitled to conscientious objector classsification), for example, the court concluded that the Supreme Court has so mandated: “[United States v. Seeger, 380 U.S. 163 (1965)] suggests that doubts as to the religious sufficiency of a belief must be resolved in favor of the registrant.” See also Martinez v. Industrial Comm'n, 618 P.2d 738, 740 (Colo. Ct. App. 1989) (plaintiff who quit job because religion prohibited him from digging earth in any way denied unemployment benefits). Professor Tribe has also suggested such a standard. Tribe, L., American Consitutional Law 1186, 1179–88 (2d ed. 1988)Google Scholar. Not all courts, however, adhere to this standard. See, e.g., Africa v. Pennsylvania, 662 F.2d 1025, 1033 (3d Cir. 1982) (prison inmate denied special diet because MOVE, his faith, held not to be religion; court noted “we concede that the matter is not wholly free from doubt”).

28. 620 F.2d 1159 (6th Cir. 1980).

29. Id. at 1160, 1162.

30. Id. at 1163-65.

31. Wilken, R., The Christians as the Romans Saw Them 48–67 (1984)Google Scholar. See generally Wiess, , Privilege, Posture and Protection: “Religion” in the Law, 73 Yale L.J. 593, 613–14 (1964)Google Scholar (“Religion is not always a clear or separate domain.”).

32. Courts, in effect, tell plaintiffs what their religious beliefs “really are” each time they rule, contrary to plaintiffs' assertions, that the latters' religious beliefs are not infringed. See, e.g., supra text accompanying notes 27-31.

33. 781 F.2d 1362 (9th Cir. 1986).

34. Id. at 1368.

35. Id.

36. 401 U.S. 437 (1971).

37. Id. at 839. Obviously, such a distinction favors some religions (those that object to all wars) over others (those that do not) solely on the basis of their religious beliefs, as judged by a secular court.

38. In some cases, judges unnecessarily belittle particular beliefs. In International Soc'y for Krishna Consciousness v. Bowen, 600 F.2d 667 (7th Cir. 1979), for example, the court granted plaintiffs the right to disseminate and sell religious literature and solicit contributions at a state fair. The court nevertheless felt the need to mention the following: “Finally, we are not unmindful, as anyone cannot be who has travelled through a major airport facility in recent years, that practitioners of Sankirtan have been regarded as annoying and often downright irritating by those they approach …. Distaste for what is being expressed, and often absolute revulsion, appear to be the hallmarks of the exercise of First Amendment rights.” Id. at 670-71. See also United States v. Ballard, 322 U.S. 78, 87 (1944) (held truth or falsity of religious claims not for jury deliberation: “The religious views espoused by respondents might seem incredible, if not preposterous, to most people.”).

39. 385 F. Supp. 395 (D.N.H. 1974).

40. Id. at 397.

41. Id. at 398.

42. Id. at 400.

43. Id. at 401. The children were excused, however, from audio-visual presentations made only for “entertainment,” rather than instructive, purposes.

44. Id. at 397.

45. Id. at 405. Such a belief is neither new nor novel in the Christian religion. Augustine, for example, writing in the fourth century, felt that a single piece of music — a hymn — could have both secular and sacred qualities, and reproached himself for enjoying the secular ones. Augustine, St., Confessions 238–39 (Pine-Coffin, R.S., trans. 1961)Google Scholar.

46. 385 F. Supp. at 405 (emphasis added).

47. Id.

48. Id.

49. Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969) (courts may not determine matters of religious faith).

50. 385 F. Supp. at 404-05.

51. Id. at 400.

52. Id. at 401.

53. Id. at 405.

54. Id.

55. 475 U.S. 503 (1986).

56. Id. at 515.

57. Id. at 516-17.

58. 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983).

59. Id. at 741-42.

60. 761 F.2d 921 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986).

61. Id. at 926.

62. See supra note 17.

In State v. Brashear, 593 P.2d 63, 70 (N.M. Ct. App. 1979) (defendant's conviction of possession and distribution of marijuana upheld over religious objections), the court seemed to indicate that all state interests are compelling by definition: “Our point is this: The legislative judgment that certain conduct is criminal, sufficiently establishes a compelling state interest in enforcing the particular criminal statute involved.”

It seems ironic that such seemingly trivial interests are found “compelling” enough to trump religious free exercise, in light of the exalted manner in which judges generally speak of the latter. See, e.g., Frank v. State, 604 P.2d 1068, 1070 (Alaska 1979) (allowing Athabascan Indian to kill moose out of season for use in religious ceremony: “No value has a higher place in our constitutional system of government than that of religious freedom.”); People v. Woody, 394 P.2d 813, 821-22 (Cal. 1964) (“The varying currents of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of the Indians who honestly practiced an old religion in using peyote at a meeting in a desert hogan near Needles, California.”). Of course, both of these courts were granting religious exemptions. Had they been denying them, it is far from clear whether either would have placed such a value on religious freedom.

63. 406 U.S. at 205.

64. 455 U.S. 252 (1982).

65. “Do not be conformed to this world.” Romans 12:2 (Revised Standard Version)Google Scholar.

66. Leedes, supra note 3, at 343-44.

67. Pepper, , Taking the Free Exercise Clause Seriously, 1986 B.Y.U. L. Rev. 299, 325 (1986)Google Scholar.

68. Compare Goldman v. Weinberger, 475 U.S. 503 (1986) (Air Force rabbi not allowed to wear yarmulke while in uniform in violation of dress regulations) with Geller v. Secretary of Defense, 423 F. Supp 16 (D.D.C. 1976) (Air Force rabbi allowed to wear beard in violation of dress regulations). Compare Wilson v. Schillinger, 761 F.2d 921 (3d Cir. 1985) (Rastafarian inmate forced to cut his hair in violation of religious beliefs) with Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975) (Native American inmate allowed to wear religiously motivated long braided hair in violation of prison regulations). Compare Davis v. Page, 285 F. Supp. 395 (D.N.H. 1974) (elementary school children not excused from classroom during religiously offensive audio-visual presentations, health or music classes) with Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972) (high school student not required to attend ROTC program even though physical education classes not otherwise offered). See also Giannella, supra note 3, at 1381; Clark, supra note 6, at 330.

69. Pepper, supra note 3, at 268.

70. Id.

71. Id.

72. See cases cited in Note, Exemptions, supra note 3, at 361.

73. See supra note 3.

74. See Pepper, supra note 67, at 310. See also Clark, supra note 6, at 330.

75. Tushnet, Constitution, supra note 3, at 706.

76. Scholars have written extensively on these points. See, e.g., Tribe, , First Amendment Trends: Ad Hoc Doctrines Do Not a Constitution Make, 1981–1982 The Supreme Court: Trends and Developments 209, 211 (1982)Google Scholar; Leedes, supra note 3, at 343; Dodge, supra note 4, at 687; Tushnet, Constitution, supra note 3, at 723-24.

77. See, e.g., United States v. Lee, 455 U.S. 262 (1982) (denying social security tax exemption to Amish employer). In Lee, Justice Stevens noted that “a standard that places an almost insurmountable burden on any individual who objects to a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) … explains most of this Court's holdings.” Id. at 264, n.3 (Stevens, J., concurring).

In Callahan v. Woods, 736 F.2d 1269, 1275 (9th Cir. 1984) (holding that requiring plaintiff to obtain social security number infringed religious beliefs, but remanding to “consider whether the government had a reasonable opportunity to establish the cost of exempting” plaintiff) Judge Nelson noted: “The purpose of almost any law … can be traced to a fundamental concern of government. Balancing an individual's religious interest against such a concern will inevitably make the former look unimportant.” Id. at 1272.

See also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (“Government has a fundamental, overriding interest in eradicating racial discrimination … [that] outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.”); Wilson v. Schillinger, 761 F.2d 921 (3d Cir. 1985) (Rastafarian prisoner forced to cut his hair even though certain other prisoners were not); Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert. denied, 464 U.S. 956 (1983) (mountain peaks sacred to Indian plaintiffs desecrated in order to develop ski areas); Badoni v. Higginson, 638 F. Supp 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1980) (plaintiff's gods drowned and sacred prayer sites submerged in interests of water storage and tourism); Davis v. Page, 385 F. Supp 395, 397 (D. N.H. 1974) (school children not excused from watching audio-visual presentations; they had “the option of placing their heads on the desk, turning their chairs away, or standing in the back of the classroom”; children also not excused from religiously offensive music or health classes); Denver Urban Renewal Auth. v. Pillar of Fire, 552 P.2d 23 (Colo. 1976) (structurally sound original church building of denomination condemned for city planning reasons). See also Clark, supra note 6, at 330-31; Dodge, supra note 4, at 687; Leedes, supra note 3, at 338-39.

78. Note, Exemptions, supra note 3, at 360. See also McConnell, supra note 2, at 27. See also Justice Scalia's recent discussion of this in Employment Div., Dep't of Human Resources v. Smith, — U.S. —, —, 110 S. Ct. 1595, 1604 (1990) (holding that Oregon may constitutionally deny unemployment benefits to persons who lose their jobs due to religious, but illegal, use of peyote).

79. Pepper, supra note 67, at 326. See also Garvey, supra note 4, at 788-92 (discussion of autonomy as value in individual identity and dignity).

80. Clark, supra note 6, at 337. Cf. McConnell, supra note 2, at 15-16 (“For the state to maintain that its authority is in all matters would be to deny the possibility that a transcendent authority could exist.”).

81. Johnson, supra note 3, at 842.

82. Giannella, supra note 3, at 1385.

83. See Cicero, , De Legibus, in Readings in Jurisprudence and Legal Philosophy 376 (Cohen, M. & Cohen, F. eds. 1951)Google Scholar (law is “the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite”) [hereinafter Readings]. See also Cicero, , De Re Publico, in Introduction to Jurisprudence 70 (Lloyd, D. ed. 1965)Google Scholar [hereinafter Jurisprudence]; Aquinas, Summa Theologica, in id. at 377 (“law is a rule and measure of acts, whereby any one is induced or is restrained from acting”); Blackstone, Commentaries, in id. at 384 (law “is properly denned to be ‘a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong’ ”); Kelsen, H., Pure Theory of Law 126 (Knight, M. trans. 1967)Google Scholar (law regulates human behavior, which “may be a positive or negative behavior, that is, it may be a specific action or refrainment”); Hart, H.L.A. & Honore, A.M., Causation in the Law 131 (1959)Google Scholar (“human conduct can be described alternatively in terms of acts or omissions”).

For further examples, see Bentham, , An Introduction to the Principles of Morals and Legislation, in Approaches to Ethics 262 (Jones, W.T., Sontag, F., Beckner, M., & Foglein, R. eds. 3d ed. 1977) [hereinafter Approaches]Google Scholar; Casey, , Killing and Letting Die: A Reply to Bennett, in Killing and Letting Die 133 (Steinbock, B. ed. 1980)Google Scholar [hereinafter Killing]; Duguit, The Law and the State, in Jurisprudence, this note, at 83; Dworkin, R., Taking Rights Seriously 44 (1977)Google Scholar; Findlay, J., Values and Intentions 339 (1961)Google Scholar; Hobbes, , My Opinion about Liberty and Necessity, in Approaches, this note, at 187Google Scholar; Singer, , Negative and Positive Duties, 15 Am. Phil. Q. 97 (1965)CrossRefGoogle Scholar; Steinbock, B., Killing, this note, at 6Google Scholar; Thompson, J., Some Questions About Government Regulation of Behavior, in Rights, Restitution, and Risk 154 (Parent, W. ed. 1986) [hereinafter Rights]Google Scholar.

84. Hart, H.L.A., The Concept of Law 194 (1961)Google Scholar. See also J. Findlay, supra note 83, at 362; Fitzgerald, P., Salmond on Jurisprudence 352 (12th ed. 1966)Google Scholar.

85. Rawls, J., A Theory of Justice 114 (1971)Google Scholar. Because of the intimate relationship between legal and moral philosophy, it is appropriate to consider the principles of both, particularly where the distinction is not discernable. As Fitzgerald notes, law and morals “form intersecting circles.” P. Fitzgerald, supra note 84, at 215.

Much time has been spent elaborating on the connections and similarities between law and ethics. See Banner, W., Ethics 18 (1968)Google Scholar; Bishen, W. & Stone, C., Law, Language, and Ethics vii (1972) [hereinafter Law]Google Scholar; Devlin, , Morals and the Criminal Law, in Law this note, at 1143Google Scholar; R. Dworkin, supra note 83 at 184; Feibleman, J., Justice, Law and Culture 65, 72–78 (1985)CrossRefGoogle Scholar; Fuller, L., The Morality of Law (1964)Google Scholar; H.L.A. Hart, supra note 84, at 181; H. Kelsen, supra note 83, at 62; Kent, E., Law and Philosophy 255, 549 (1970) [hereinafter Philosophy]Google Scholar; Mooney, C., Public Virtue 54 (1986)Google Scholar; Richards, D.A.J., Reasons for Action 101 (1971)Google Scholar; Tushnet, Constitution, supra note 3, at 708; Weinrib, , The Case for a Duty to Rescue, 90 Yale L.J. 247, 264 (1980)CrossRefGoogle Scholar.

86. D.A.J. Richards, supra note 85, at 184.

87. L. Fuller, supra note 85, at 6; Hartmann, N., 2 Ethics 231 (1963)Google Scholar (minimum moral commands are negative).

88. Singer, P., Practical Ethics 184 (1979)Google Scholar.

89. J. Findlay, supra note 83, at 357.

90. B. Steinbock, Killing, supra note 83, at 5.

91. H.L.A. Hart, supra note 84, at 167.

92. P. Fitzgerald, supra note 84, at 215.

93. H.L.A. Hart, supra note 84, at 167.

94. D.A.J. Richards, supra note 85, at 23.

95. H.L.A. Hart, supra note 84, at 189-95.

96. Hart's first truism is “human vulnerability.” We are both occasionally prone to and vulnerable to bodily attack. Id. at 190. Second is our “approximate equality.” No one person can dominate for long over others without cooperation. Id. at 191. Third is “limited altruism.” People are a mean between devils and angels. Id. at 191-92. Fourth is “limited resources.” We must respect private property and the production of food and clothing in order to survive. Id. at 192. Finally, Hart identifies “limited understanding and strength of will.” Sanctions are sometimes needed to enforce mutual forbearance. Id. at 193.

97. Id. at 188.

98. Harman, , Moral Relativism Defended, 84 Phil. Rev. 3, 12 (1975)CrossRefGoogle Scholar.

99. Id. at 12-13. Some of Harman's arguments are summarized and explained in Russell, On the Relative Strictness of Negative and Positive Duties, in Killing, supra note 83, at 215, 221-22. Other philosophers have proffered similar arguments. See generally, e.g., J. Rawls, supra note 85. H. Kelsen, supra note 83, at 193, describes law as a normative order that regulates the behavior of people. Society exists on a “basic norm,” from which all other norms spring. The validity of the latter norms comes from their relation to the basic norm, and not from their mere assertion. Thus they are “lower norms” in relation to the more important “higher norm.” Id. at 193-95.

This becomes relevant to free exercise adjudication in the context of cases in which the Court must decide the validity of a particular law in relation to the religious adherent involved in the suit. Both parties have valid claims — the government wishes to enforce its power to legislate and the religious adherent wants to vindicate his right to free exercise. In this instance, a “higher norm” accepted by society is that positive duties are less strict than negative ones. Keeping this in mind, the Court, especially in the absence of any other meaningful standard, could determine the validity of the norm in question (i.e. the law being broken) by reference to the higher norm concerning the strictness of duties. If the law imposes a positive duty, it ought not be enforced where it creates personal hardship, is coercive, or infringes upon personal liberty. In a free exercise context, positive commands do all of these things, and so should not be enforced.

100. See Exodus 20:1–17 (Revised Standard Version)Google Scholar.

101. Bonhoeffer, , The First Table of the Ten Commandments, in Preface to Bonhoeffer 49, 50 (Godsey, J., ed. 1965)Google Scholar.

102. Exodus 20:13–15 (Revised Standard Version)Google Scholar.

103. Bonhoeffer, supra note 101, at 56.

104. Id. at 50-51. Devlin notes that “the law is concerned with the minimum and not the maximum; there is much in the Sermon on the Mount that would be out of place in the Ten Commandments.” Devlin, , Morals and the Criminal Law, in Philosophical Issues in Law 54, 64 (Kipnis, K. ed. 1977)Google Scholar.

For other examples of scholars using the Ten Commandments to illustrate the fundamental place of negative commands in human society, see Anshen, , “Thou Shalt Not …”, in Moral Principles of Action 3 (Anshen, R. ed. 1952)Google Scholar; L. Fuller, supra note 85, at 6; N. Hartmann, supra note 87, at 231; P. Singer, supra note 88, at 150; B. Steinbock, Killing, supra note 83, at 2.

105. Rad, G. Von, I Old Testament Theology 194 (Stalker, D.M.G. trans. 1962)Google Scholar.

106. Id. at 191.

107. Id. at 195. Von Rad observes also how Old Testament Classical Prophets protect individual freedom by focusing primarily on negative exhortations: “How little the prophets' work was aimed at a life lived under the yoke of the law is made particularly clear in those places, which are, of course, few in number, where they go beyond negative accusations to positive demands.” Rad, G. Von, II Old Testament Theology 186 (Stalker, D.M.G. trans. 1965)Google Scholar.

108. Mendenhall, , Ancient Oriental and Biblical Law, in 3 The Biblical Archaeologist 1, 8 (Campbell, E. & Freedman, D. eds. 1970) (emphasis added) (citation omitted)Google Scholar.

109. Id. at 8.

110. Trammel, Saving Life and Taking Life, in Killing, supra note 83, at 166, 169.

111. Id. Likewise, it seems more likely that positive acts will produce harmful effects on third parties — externalities — than will negative acts. See Dukeminier, J. & Krier, J., Property 52–57 (1981)Google Scholar.

112. Fitzgerald, , Acting and Refraining, 27 Analysis 133, 138–39 (1967)CrossRefGoogle Scholar.

113. Id. at 138 (emphasis in original).

114. Trammel, supra note 110, at 168. See aho Fitzgerald, supra note 112, at 138-39.

115. J. Findlay, supra note 83, at 353.

116. Siegler, , Omissions, 28 Analysis 98 (1967)CrossRefGoogle Scholar; Frankena, , Obligation and Ability, in Contemporary Ethical Theory 335, 341 (Margolis, J. ed. 1966)Google Scholar thereinafter Theory]. See also J. Findlay, supra note 83, at 352 (“Duty, being relevant to the individual person, must obviously limit its demands to what a man can do.”).

117. J. Findlay, supra note 83, at 354. Russell, admittedly arguing against the norm in asserting that positive duties should be as strict as negative ones, qualifies with, “as long as complete fulfillment of them does not infringe upon a person's basic interests,” for this “is essentially connected to notions of personal dignity and worth.” A free exercise dispute satisfies this exception. Russell, On the Relative Strictness of Negative and Positive Duties, in Killing, supra note 83, at 215, 229.

118. Aristotle, Nicomachean Ethics, in Approaches, supra note 83, at 61.

119. L. Fuller, supra note 85, at 79 (discussing Jefferson).

120. Id. Eighteenth-century lists of “natural rights,” which had an enormous influence on the development of political thought in America, were dominated by negative in rem rights, or rights against the world at large. Feinberg, Duties, Rights and Claims, in Philosophy, supra note 85, at 143, 147. See also P. Fitzgerald, supra note 84, at 353.

121. See Giannella, supra note 3, at 1422 (“Government regulations that compel action contrary to conscience probably are regarded as more serious interferences with religious liberty than those which merely subject more or less passive religious dissenters to government action.”); Dodge, supra note 4, at 707 (“[G]overnment compulsion of action or submission touches a sensitive nerve in the American conscience.”).

122. Feinberg, supra note 120, at 148-49.

123. Frankfurt, , Coercion and Moral Responsibility, in Essays on Freedom of Action 65 (Honderich, T. ed. 1973)Google Scholar.

124. Bentham, Theory of Legislation, in Readings, supra note 83, at 606.

125. P. Fitzgerald, supra note 84, at 352-53. Not all scholars agree that positive duties are inherently more restrictive of personal liberty than negative ones. See, e.g., Feinberg, J., Harm to Others 163 (1984)Google Scholar (“Are affirmative duties … in their very nature more restrictive of personal liberty than prohibitions? Obviously not. Some prohibitions may be very onerous; others hardly at all. What accounts for these differences are factors other than whether the legal requirements are ‘affirmative’ or ‘prohibitive.’”). See also infra note 143.

126. This distinction is far from being universally accepted, however. See, e.g., Kluge, E., The Ethics of Deliberate Death 28 (1981)Google Scholar (“The distinctions between active and passive euthanasia and direct and indirect euthanasia, although perhaps of psychological relevance and physiological significance, are essentially irrelevant from a moral point of view.”); Tooley, An Irrelevant Consideration: Killing Versus Letting Die, in Killing, supra note 83, at 56, 56-57 (“[T]he idea that there is a crucial moral difference between intentionally killing and intentionally letting die … is admittedly very common. But I believe that it can be shown to reflect either confused thinking or a moral point of view unrelated to the interests of individuals.”). See also infra notes 155, 158, 166.

127. See Bennett, Whatever the Consequences, in Killing, supra note 83, at 126; Davis, The Priority of Avoiding Harm, in Killing, supra note 83, at 172; H.L.A. Hart & A.M. Honore, supra note 83, at 398.

128. Trammel, supra note 110, at 170; Russell, supra note 117, at 215.

129. For example, active euthanasia generally is illegal, but passive euthanasia generally is not. In addition, active infanticide is illegal, but in certain cases, passive infanticide is not. See Rachels, Active and Passive Euthanasia, in Killing, supra note 83, at 63, 68. See also Dodge, supra note 4, at 720-22 (discussion of allowing passive suicide by denial of blood transfusions on religious grounds). In a 1988 poll of lawyers across the country, however, 56.8% indicated that active euthanasia should be legal when a terminally ill, mentally competent patient requests it; 31.7% indicated that it should not; 11.5% were undecided. Reidinger, , Should Active Euthanasia be Legal?, A.B.A. J., 06 1, 1988, at 20Google Scholar. See also Bennett, supra note 127, at 109; see infra text accompanying notes 166-67 (discussion of legal duty to rescue).

The United States Supreme Court recently addressed this issue for the first time in Cruzan v. Director, Mo. Dep't of Health, — U.S. —, 110 S. Ct. 2841 (1990). The Court ruled 5-4 that the State of Missouri may require “clear and convincing evidence” to be presented of a person's desire to have life sustaining treatment withdrawn when that person lies, as petitioner, in a “persistent vegetative state.” 110 S. Ct. at 2854. The Missouri Supreme Court ruled in the lower case, Cruzan v. Harman, 760 S.W. 2d 408 (Mo. 1988), that such evidence was not presented, and thus that petitioner's life sustaining treatments could not be terminated. The Supreme Court affirmed this decision.

It is interesting to note that Judge Robertson, writing for the Missouri Supreme Court, framed the issue as active euthanasia: “[T]his is not a case in which we are asked to let someone die. Nancy is not dead. Nor is she terminally ill. This is a case in which we are asked to allow the medical profession to make Nancy die by starvation and dehydration.” 760 S.W. 2d at 412.

130. The American Medical Association has adopted the following position:

The intentional termination of the life of one human being by another — mercy killing — is contrary to that for which the medical profession stands and is contrary to the policy of the American Medical Association. The cessation of the employment of extraordinary means to prolong the life of the body where there is irrefutable evidence that biological death is imminent is the decision of the patient and/or his immediate family.

Statement of the House of Delegates of the American Medical Association (December 4, 1973), reprinted in Rachels, supra note 129, at 63. The Hippocratic Oath also prohibits active euthanasia, as the Court noted in Roe v. Wade, 410 U.S. 115, 130-32 (1972) (right to privacy protects decision to have abortion). “Members of the medical profession generally reject the idea of euthanasia, seeing their role as healing and prolonging life rather than ending it.” B. Steinbock, Killing, supra note 83, at 9. In a 1988 survey conducted by the American Medical Association, however, 78% of the 1,000 physicians polled favored passive euthanasia (15% were opposed; 7% were unsure). Van Pelt, , Physicians Support Forms of Euthanasia, Insight, 06 27, 1988, at 57Google Scholar. The status of active euthanasia has been the subject of “heated” debate recently within the medical community. See Reidinger, supra note 129, at 20.

131. See infra text accompanying notes 134-136.

132. B. Steinbock, Killing, supra note 83, at 14.

133. Foot, , The Problem of Abortion and the Doctrine of the Double Effect, 5 Oxford Rev. 5 (1967)Google Scholar. See also J. Thompson, Killing, Letting Die, and the Trolley Problem, in Rights, supra note 83, at 78, 81.

134. “The doctrine has figured most commonly in Catholic moral theology, but it would be quite wrong to think that only Catholics embrace it.” Frey, R., Rights, Killing, and Suffering 113 (1983)Google Scholar. “Secular” writers have employed it to support their views on abortion, Foot, supra note 133, at 5, infanticide, Bennett, supra note 127, at 109, and euthanasia, Rachels, supra note 129, at 63. The usefulness of the DDE as an analytical tool, however, has been questioned, criticized, and rejected by some scholars. See, e.g., id. at 118-140; E. Kluge, supra note 126, at 15-18; Davis, The Priority of Avoiding Harm, in Killing, supra note 83, at 172; Foot, supra note 133, at 5, 13.

135. Foot, supra note 133, at 6. See also B. Steinbock, Killing, supra note 83, at 12-14; J. Thompson, supra note 133, at 80.

136. Adapted from J. Thompson, supra note 133, at 80.

137. Dinello, On Killing and Letting Die, in Killing, supra note 83, at 127, 129. See also J. Findlay, supra note 83, at 360. According to Hart and Honore, for example, European writers “feel a difficulty about the causal status of omissions” and this feeling has “led to heroic attempts to demonstrate that omissions are ‘really’ something, i.e. positive acts.” H.L.A. Hart & A.M. Honore, supra note 83, at 396, 398.

138. J. Thompson, supra note 133, at 82. See also J. Thompson, The Trolley Problem, in Rights, supra note 83, at 94.

139. Bennett, supra note 127, at 123.

140. Bentham, in Readings, supra note 83, at 606 (emphasis added).

141. Hare, Ought and Imperatives, in Theory, supra note 116, at 103, 105.

142. J. Thompson, supra note 83, at 154.

143. Keeton, W., Dobbs, D., Keeton, R., & Owen, D., Prosser and Keeton on Torts 373 (5th ed. 1984) [hereinafter Torts]Google Scholar. In the latter part of the twentieth century, however, the growth of the welfare state and increasing regulation may have changed this somewhat. In Thomas v. Review Bd., 450 U.S. 707 (1981) (employee who quit job for religious reasons could not be denied state unemployment benefits), Justice Rehnquist noted “the growth of social welfare during the latter part of the 20th century” and that “such legislation touches the individual at so many points in his life.” Id. at 721 (Rehnquist, J., dissenting). See also Feibleman, J., Justice, Law, and Culture 69 (1985)CrossRefGoogle Scholar (“The United States has moved in the last few decades from an open democracy in which the principle of least government was the dominant consideration to … a welfare state in which the guarantee of an economic minimum to all citizens was interpreted as giving the government through its various agencies the right to interfere in those transactions by citizens which affect them individually and even to legislate concerning them.”). See also generally Ackerman, B., Social Justice in the Liberal State (1980) (growth of activist state)Google Scholar.

144. See Fitzgerald, supra note 112, at 138-39 (demonstrates “the reluctance of the common law to attach liability to omissions … which is a notable feature throughout the law” with same three areas); Austin, A Plea for Excuses, in Approaches, supra note 83, at 468, 475 (uses same three areas to illustrate when and what excuses are appropriate for positive acts).

145. Care should be taken not to overestimate the importance of the distinction in these areas of the law; rather than being a central organizing principle, it is probably more accurately described as arising in various, sometimes isolated, contexts. Viewed from the proper perspective, however, this broad, general principle may inform our thought in the free exercise area.

146. Dodge, supra note 4, at 707.

147. Johnson, P., Criminal Law 1 (3d ed. 1985)Google Scholar; P. Fitzgerald, supra note 84, at 382.

148. Clark, supra note 6, at 345-46. However, the law punishes certain omissions as criminal. See, e.g., P. Johnson, supra note 147, at 56-63; Kirchheimer, , Criminal Omissions, 55 Yale L.J. 615 (1942)Google Scholar.

149. Fitzgerald, supra note 112, at 138. This rule is also part of property law. See J. Dukeminier & J. Krier, supra note 111, at 10, 25. For a more complete explanation of the law of larceny and cases thereon, see id. at 10; P. Johnson, supra note 147, at 679-83.

150. 402 U.S. 558 (1971).

151. 355 U.S. 225 (1957).

152. 402 U.S. at 558.

153. 355 U.S. at 227.

154. Id. at 242-43 (citations omitted).

155. In dissent, Justice Frankfurter disagreed with the Court's articulation of the passive/active distinction.

[W]hat the Court does here is to draw a constitutional line between a State's requirement of doing and not doing. What is this but a return to the Year Book distinctions between feasance and nonfeasance — a distinction that may have significance in the evolution of common-law liability, but is inadmissible as a line between constitutionality and unconstitutionality.

Id. at 231 (Frankfurter, J., dissenting).

156. 42 Eng. Rep. 687 (Ch. 1852)Google Scholar, reprinted in Kessler, F., Gilmore, G., & Kronman, A., Contracts 1075 (3d ed. 1986) [hereinafter Contracts]Google Scholar.

157. Id. at 1077.

158. Since at least the seventeenth century, Anglo American law has treated specific performance as an exceptional remedy, available only when money damages are inadequate. Contracts, supra note 156, at 1070. See also Murray, J., Murray on Contracts 439–40 (1974) (money damages usual remedy)Google Scholar. On the reluctance of courts to enforce performance of acts, see Odgers, W.B.. & Odgers, W.B., 2 Odgers on the Common Law of England 501 (3d ed. 1927)Google Scholar (“Courts will not enforce specific performance of a contract for personal services.”); Pomeroy, J., 4 A Treatise on Equity Jurisprudence 1038 (1941)Google Scholar (contracts for personal acts not enforced “as an almost universal rule”). Cases in which courts sometimes do require specific performance usually involve the transfer of unique goods, such as land, antiques, and heirlooms. Kronman, , Specific Performance, in The Economics of Contract Law 181 (Kronman, A. & Posner, R. eds. 1979)Google Scholar; J. Murray, this note, at 441.

In recent times, however, the rule seems to have been changing somewhat. See Contracts, supra note 156, at 1332 (“The once ‘exceptional’ remedy of specific performance is rapidly becoming the order of the day.”). In civil law countries, specific performance generally is the rule, rather than the exception. Id. at 1069.

159. J. Pomeroy, supra note 158, at 1033.

160. See, e.g., Contracts, supra note 156, at 1079 n.3 (specific performance for personal services likened to involuntary servitude); Kronman, , Paternalism and the Law of Contracts, 92 Yale L.J. 763, 778–79 (1983)CrossRefGoogle Scholar (contracts of self-enslavement distinguished by giving employee no alternative to pay damages rather than perform; such contracts legally unenforceable). There are other reasons for courts disfavoring specific performance, such as difficulty of enforcement. Even if the Lord Chancellor could have made Wagner sing, it does not follow that he could have made her sing well.

161. Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, in Readings, supra note 83, at 235. This distinction goes back to at least the year 1400. Torts, supra note 143, at 659 n.17.

162. 159 N.E. 896 (N.Y. 1928)Google Scholar.

163. Id. at 898.

164. Id. at 899.

165. Plaintiff sued (and lost) on other grounds as well. See id at 897-99.

166. Torts, supra note 143, at 373-77 (see cases cited therein). See also Weinrib, supra note 85, at 247 (no general duty to rescue). Where there is a special relationship, however, such as husband and wife or parent and child, or where the situation is a result of the defendant's own negligence, a court may impose such a duty. Torts, supra note 143, at 377. In addition, when one has undertaken a rescue or a beneficial activity, he may be liable for completing it. See Cardozo's discussion and examples in United States v. International Minerals & Chem. Corp., 159 N.E. 896, 898-99 (N.Y. 1928). Punitive damages are less likely to be awarded in cases of nonfeasance than in those of misfeasance. Torts, at supra note 143, at 373 n.4.

Many authors have argued for a duty to rescue. See, e.g., P. Johnson, supra note 147, at 61 (“The American rule that there is no duty to assist a stranger in need of rescue, which applies to both civil and criminal liability, has been the subject of frequent criticism.”); Weinrib, supra note 85; James, , The Duty to Relieve Suffering, 93 Ethics 4, 20 (1982)CrossRefGoogle Scholar (“our obligation to prevent harm is greater than we usually admit”). Hawaii, Wisconsin, Minnesota and Vermont all have limited duties of rescue, P. Johnson, supra note 147, at 61, and at least fifteen European countries have enacted similar “easy rescue” laws. See J. Feinberg, supra note 125, at 127, 256.

There is at least one fundamental difference, however, between imposing a duty to rescue and imposing a duty to act contrary to one's religious beliefs. In the former case, the state has a fundamental interest in saving accident victims; in the latter, however, no such interest exists. Indeed, the state has a strong contrary interest in preserving religious freedom.

167. See Weinrib, supra note 85, at 279. J. Feinberg, supra note 125, at 163-65, argues to the contrary.

168. See the discussion in Weinrib, supra note 85, at 267. Weinrib traces this tradition from older works, Kant, I., The Metaphysical Principles of Virtue (Gregor, M. trans. 1964)Google Scholar, to the more modern, Epstein, , A Theory of Strict Liability, 2 J. Legal Stud. 151, 203 (1973)CrossRefGoogle Scholar.

169. 85 F. 271 (6th Cir. 1898), modified and aff'd, 175 U.S. 211 (1899).

170. See supra text accompanying notes 134-36.

171. See generally 85 F. at 272-79.

172. Id. at 278.

173. Id. at 282.

174. Supra text accompanying notes 134-36.

175. Bork, R., The Antitrust Paradox 26 (1978)Google Scholar.

176. Id. at 29, 30.

177. (1983). For example, a lawyer may reveal such information as necessary to “establish a claim or defense” against his client, or to defend himself against allegations, civil suits, or criminal charges brought by his client. Rule 1.6(b)(2). In addition, a lawyer must disclose information if a court so orders. Rule 1.6, Comment 19. For other examples, see Rule 1.6, Comment 20.

178. Rule 1.6(b)(1). The older Model Code of Professional Responsibility (1980) contained roughly the same schema. Under DR 4-101(B), a lawyer generally could not reveal the confidences of his client; under DR 4-101(C)(3), he could reveal “[t]he intention of his client to commit a crime and the information necessary to commit a crime” (references omitted). The former exception permitting disclosure was broader than the current one; “imminent death” and “substantial bodily harm” were not requirements for disclosure. Currently, thirty states have enacted the MODEL RULES, and most of the remaining states follow the Model Code. Simon, , Fee Sharing Between Lawyers and Public Interest Groups, 98 Yale L. J. 1069, 1071 n.5 (1989)CrossRefGoogle Scholar.

179. See Rule 1.6, Comment 14; Rule 1.16(a)(1).

180. Rule 1.6, Comment 15. For the limited circumstances in which a lawyer must disclose, see supra note 178.

181. Rule 1.6, Comment 4.

182. In certain circumstances, a judge may impose a duty to inform. See, e.g., Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (Cal. 1976) (psychotherapist liable for failing to warn victim whom he knew his patient planned to kill). But see Hawkins v. King County, 602 P.2d 361 (Wash. App. 1979) (court refused to impose duty to inform where client was threat only to himself, and not to third party).

183. Cf. Fortas, A., Concerning Dissent and Civil Disobedience 59–60 (1968)Google Scholar (harms of massive disobedience often exaggerated in nation as large and dispersed as United States).

184. 374 U.S. 203 (1963).

185. U.S. Const. amend I (“Congress shall make no law respecting the establishment of religion”).

186. 374 U.S. at 250 (Brennan, J., concurring) (emphasis added and in original).

187. —U.S.— 108 S. Ct. 1319 (1988).

188. Id. at 1325.

189. Id. at 1335 (Brennan, J., dissenting) (emphasis added).

190. Id.

191. —U.S.—, 108 S. Ct. 1444 (1988). The most recent manifestation of this case is discussed infra text accompanying notes 206-208.

192. Id. at 1453. Brennan cited Sherbert v. Venter, discussed infra text accompanying notes 211-213, Hobbie v. Unemployment Appeals Comm'n, discussed infra text accompanying notes 217-218, and Thomas v. Review Bd., discussed infra text accompanying notes 214-216.

193. 108 S. Ct. at 1453.

194. For examples of active exemptions denied by the Supreme Court, see Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (holding Massachusetts law unconstitutional which granted churches “veto” over issuance of liquor licenses in their vicinity); McGowan v. Maryland, 366 U.S. 420 (1961) (disallowing operation of business in violation of Maryland Sunday closing laws); Cleveland v. United States, 329 U.S. 14 (1946) (Mormons not allowed to transport polygamous wives in violation of Mann Act); Prince v. Massachusetts, 321 U.S. 1S8 (1944) (disallowing child to sell proselytizing material in violation of Massachusetts child labor laws); Chatwin v. United States, 326 U.S. 455 (1945) (disallowing Mormons to violate federal kidnapping laws for religious reasons); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (religious proselyte had no right to disturb public decorum). But see Cantwell v. Connecticut, 310 U.S. 296 (1940) (striking down Massachusetts licensing statute as applied to dissemination of religious literature); Taylor v. Mississippi, 319 U.S. 583, 584 (1943) (state statute prohibiting dissemination of literature “calculated to encourage violence, sabotage, or disloyalty” to United States held unconstitutional as applied to Jehovah's Witnesses).

Lower courts have been somewhat more generous in granting active exemptions. See International Soc'y for Krishna Consciousness v. Bowen, 600 F.2d 667 (7th Cir. 1979) (state officials not permitted to confine proselytizing to assigned booths at state fair); Frank v. State, 604 P.2d 1068 (A1. 1979) (Native Americans allowed to kill moose out of season for religious ceremony); Felix v. Milliken, 463 F. Supp. 1360 (E.D. Mich. 1978) (state constitutional amendment making drinking age twenty-one does not apply to religious ceremonies); People v. Woody, 394 P. 2d 813 (Cal. 1964) (American Indians allowed to use peyote in religious ceremonies); State v. Whittingham, 504 P.2d 950 (Ariz. Ct. App. 1973) (same).

For examples of active exemptions denied by lower courts, see Smith v. North Babylon Union Free School Dist., 844 F.2d 90 (2d Cir. 1988) (Orthodox Jew not permitted to compel school board to change graduation ceremonies from Saturday); Pilla v. American Bar Ass'n, 542 F.2d 56 (8th Cir. 1976) (plaintiffs denied exemption to practice law without licenses); United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470 U.S. 1004 (1985) (defendant's conviction for use and distribution of marijuana upheld in spite of religious motivations); United States v. Warner, 595 F. Supp. 595 (D.N.D. 1984) (non-Native American plaintiff denied exemption to use peyote in religious ceremonies); Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo. 1977) (petitioner not allowed to use or sell marijuana or LSD for religious purposes).

195. 98 U.S. 145 (1878).

196. Id. at 163 (quoting 12 Hening's Stat. 84) (emphasis added).

197. Id. at 166.

198. 366 U.S. 599 (1961).

199. Id. at 603 (emphasis added).

200. Id. at 601.

201. Id. at 607.

202. 475 U.S. 503 (1986).

203. Id. at 505.

204. Id. at 507-08.

205. Id. at 528 (O'Connor, J., dissenting).

206. — U.S. —, 110 S. Ct. 1595 (1990).

207. Id. at 1597-98.

208. Id. at 1606.

209. See, e.g., Gillette v. United States, 401 U.S. 437 (1971) (allowing exemption from compulsory military duty for objectors to all wars, but not for those who object to one particular war only); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (disallowing religious exemption from legally required vaccinations).

210. See, e.g., United States v. Carroll, 567 F.2d 955, 957 (10th Cir. 1977) (defendant's refusal on religious grounds to answer questions or produce documents relating to her tax returns was “a subterfuge and a sham”); Gray v. Gulf, Mobile & Ohio R.R. Co., 429 F.2d 1064 (5th Cir. 1970) (employee forced to pay union dues in spite of religious objections); Davis v. Page, 385 F. Supp. 395 (D.N.H. 1974) (child not allowed to leave classroom during use of audio-visual machines, or during music or health classes).

211. 374 U.S. 399 (1962).

212. See supra text accompanying notes 14-17.

213. 374 U.S. at 406.

214. 450 U.S. 707 (1981).

215. Id. at 711-12.

216. Id. at 718.

217. 480 U.S. 136 (1987).

218. Id. at 144.

219. — U.S. —, 109 S. Ct. 1515 (1989).

220. Id. at 1516 (citation omitted).

221. Id. at 1517.

222. Id.

223. 268 U.S. 510 (1925).

224. Id. at 532.

225. 406 U.S. 205 (1972).

226. 401 U.S. 437 (1971).

227. Id. at 447.

228. See also Wooley v. Maynard, 430 U.S. 701 (1977) (religious objector granted exemption from criminal sanctions for failing to display state motto “Live Free or Die” on license plate); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (compulsory flag salute statute unconstitutional).

229. Vaccination laws, for example, are troublesome in at least two respects. On their face, they appear to be positive commands (“You must be vaccinated”), exemptions from which would be passive (“You may be excused from being so”). The danger, however, is that the person so excused actively intermingles with society, possibly spreading infection. Thus, the effects on third parties are particularized (upon those getting sick) and immediate in ways that many other passive exemptions are not (e.g., staying home from school, not working on one's Sabbath). Thus, vaccinations may present a case in which society simply cannot afford to allow exemptions, because of the externalities involved. See supra note 111. See also Jacobson v. Massachusetts, 197 U.S. 11 (1905) (denying exemption from vaccination laws).

230. Many authors have employed similar theoretical constructs. See, eg., Locke, J., Two Treatises of Government 307–18 (Laslett, P., rev. ed. 1963)Google Scholar; J. Rawls, supra note 85, at 118-92. The state of nature here proposed should not be confused with or interpreted by such other works.

231. 423 F. Supp. 16 (D.C. Cir. 1976).

232. 475 U.S. 503 (1986).

233. Two other similar cases with seemingly contradictory holdings also illustrate the state of nature starting point of analysis. In Wilson v. Schillinger, 761 F.2d 921 (3d Cir. 1985), the Third Circuit denied the plaintiff, a Rastafarian prison inmate, an exemption from regulations requiring him to cut his hair. In Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975), however, the Eighth Circuit granted an American Indian prison inmate such an exemption. Using the state of nature starting point of analysis, we would reach the decision of the Third Circuit.

234. 374 U.S. 399 (1962).

235. Infra text accompanying notes 249-261.

236. See 374 U.S. at 404. The Court, however, did not grant Sherbert the exemption because it was passive; it did not distinguish between passive and active exemptions.

237. See infra text accompanying notes 240-248, especially discussion of Lee, infra text accompanying notes 243-248.

238. 374 U.S. at 405.

239. In Quaring v. Peterson, 728 F.2d 1122 (8th Cir. 1984), aff'd by an equally divided Court sub nom. Jensen v. Quaring, 472 U.S. 478 (1985), Quaring obtained an exemption from the photograph requirement for obtaining a driver's license. Driver's licenses, like most licenses, are conditioned upon many things, such as age, physical health (particularly vision), mental and physical abilities, and one's driving record. As such, they are privileges granted by the state to certain people. Quaring's exemption from the conditions, then, was an active one.

In Bob Jones Univ. v. United States, 461 U.S. 605 (1983), however, the Court denied a tax exemption to the University on the grounds that the University racially discriminated. Bob Jones University officials did not argue that paying taxes violated their religion. If they had, the exemption they sought would have been passive. See infra text accompanying notes 281285 (Passive Guideline Seven regarding taxes). Instead, however, they argued that they fell within Sections 170 and 501(c)(3) of the Internal Revenue Code and thus were entitled to an exemption. Such exemption was a privilege granted only to those that met its requirements. As such, the exemption Bob Jones University sought was active.

240. 781 F.2d 1362 (9th Cir. 1986).

241. Id. at 1364.

242. Id. at 1369.

243. 455 U.S. 252 (1982). Lee in particular has drawn attention to the inadequacies in the current doctrine, and has been the subject of much scholarly criticism. See, e.g., Choper, supra note 3, at 953 (“The highly questionable result in Lee indicates the Justices' discomfort with their own doctrine.”); Leedes, supra note 3, at 349 (“Lee illustrates that balancing tests are notoriously unreliable.”); Pepper, supra note 67, at 324 (Lee “demonstrates the lack of consistency in the Court's use of the Sherbert-Yoder doctrine.”). Under the test and guideline here proposed, however, a rationale underlying the decision emerges.

244. 455 U.S. at 254.

245. Id. at 261 (emphasis added).

246. This line of analysis would differ when the activity involved is “religious.” It seems unlikely, for example, that Congress could constitutionally require the Roman Catholic Church to employ bishops or priests without regard to gender.

The Court in Murdock v. Pennsylvania, 319 U.S. 105 (1943), granted Jehovah's Witnesses an exemption from a state law taxing solicitation. The Court stressed the religious nature of the activity: “The hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of the printing presses …. It is more than preaching; it is more than distribution of religious literature. It is a combination of both…. But the mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into commercial enterprise.” Id. at 108, 109, 111. The Court implied that had the Witnesses been engaged in the latter, the outcome may have been different. See id. at 112.

Similarly, in State v. Sacred Heart Ministries, Inc., 607 P.2d 1102 (Kan. 1980), appeal dismissed, 449 U.S. 802 (1980), the Kansas Supreme Court denied defendants an exemption from the state's licensing requirement for operating a children's home, in part because of the state's special interest in the welfare of children, id. at 1109, but also because the activity was secular. The court noted: “The teaching of religious doctrine cannot be equated with every aspect of the physical care of children on an around-the-clock basis for First Amendment purposes.” Id. at 1111.

247. One could argue that Lee's personal exemption would be detrimental to the social security system as a whole, and thus would affect everyone involved in it. There are at least three responses to this: first, he would collect nothing from the system, and so his non-participation is neither a plus nor a minus; second, in a system so enormous, he is personally irrelevant to its functioning; and third, nearly all religious exemptions involve some cost to society, but they are mandated nevertheless — at least in some situations — by the free exercise clause.

248. See infra text accompanying notes 269-273.

249. 753 F.2d 1528 (9th Cir. 1985), cert. denied, 474 U.S. 826 (1985).

250. Id. at 1533.

251. 476 U.S. 693 (1986) (plurality opinion).

252. Id. at 696-98.

253. Id. at 699, 702, 711-12.

254. Id. at 713, 714 (Blackmun, J., concurring in part) (emphasis added).

255. Id. at 716 (Stevens, J., concurring in part and concurring in the result).

256. Id. at 716-17.

257. Id. at 720.

258. Id. at 724 (O'Connor, J., concurring in part and dissenting in part).

259. Id. at 728.

260. Azeez v. Fairman, 604 F. Supp. 357 (C.D. Ill. 1985), also illustrates Guideline Three. Plaintiffs were prison inmates who wanted an injunction requiring prison officials to recognize and use their adopted Muslim names. The court ruled that the inmates could not require the prison officials to use the adopted names in internal record-keeping (active denied), but also that the inmates could not be disciplined for failing to acknowledge their old names (passive granted). Thus, the passive/active distinction emerges within this single case.

For other cases in which individuals were not permitted to control the government, see Larkin v. Grendel's Den, Inc. 459 U.S. 116 (1982) (Massachusetts statute granting churches “veto” over issuance of liquor licenses within 500-foot radius violated Establishment Clause); Native Am. Church of Navajoland v. Arizona Corp. Comm'n, 329 F. Supp. 907 (D.Ariz. 1971), aff'd mem., 405 U.S. 901 (1972) (members of Native American Church not allowed to compel State Corporation Commission to confer corporate status to Church which was organized in part for illegal purpose of furthering use of peyote); Smith v. North Babylon Union Free School Dist., 844 F.2d 90 (2d Cir. 1988) (Jewish plaintiff unsuccessful in suit to require school to change graduation ceremonies from Saturday); Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97 (2d Cir. 1981) (plaintiffs unsuccessful in preventing Postal Service from investigating their mail order company for possible fraud); Via v. City of Richmond, 543 F. Supp. 382 (E.D. Va. 1982) (atheist plaintiffs not allowed to force city public library to accept and display gift subscription of their magazine).

261. See supra text accompanying notes 211-22.

262. 495 U.S.—, 108 S. Ct. 1319 (1988).

263. Id. at 1325.

264. Id. at 1327 (emphasis in original).

265. 708 F.2d at 735. The details of this case are discussed supra text accompanying notes 20-26, 58-59.

266. 708 F.2d at 742 n.3.

267. In Badoni v. Higginson, 455 F. Supp. 641 (D. Utah 1977), aff'd, 638 F.2d 172 (1980), cert. denied, 452 U.S. 954 (1980), for example, the District Court denied Native American plaintiffs an injunction preventing the Secretary of the Interior from developing certain lands. The court noted: “First, as defendants have pointed out, plaintiffs do not allege nor do they have any property interest in the Rainbow National Monument.” Id. at 644. In affirming the District Court's decision, however, the Court of Appeals stated: “At the outset, we reject the conclusion that plaintiff's lack of property rights in the Monument is determinative.” 638 F.2d at 176.

268. 552 P.2d 23 (Colo. 1976).

269. For example, in In re Estate of Brooks, 205 N.E.2d 435 (Ill. 1965), Brooks, a Jehovah's Witness, suffered from a peptic ulcer and objected on religious grounds to receiving blood transfusions. Her doctor and several public attorneys applied to a county court for the appointment of a conservator to authorize the administration to blood to Brooks as needed. Although the plaintiffs prevailed at the lower level, the Illinois Supreme Court ruled in favor of Brooks. Under the Guideline here proposed, Brooks would not have prevailed, because although she could have refused treatment, she could not have required a doctor to treat her in a way repugnant to him.

270. 331 F.2d 1000 (D.C. Cir. 1964), cert. denied, 377 U.S. 978 (1964).

271. Id. at 1008.

272. Id. See also John F. Kennedy Memorial Hosp. v. Heston, 279 A.2d 670 (N.J. 1971) (22-year-old female severely injured and rendered unconscious in automobile accident required operation and blood transfusion to stay alive; court held that mother could not prevent such on religious grounds, and ratified transfusion).

273. 331 F.2d at 1008. Judge Underwood distinguished In re Estate of Brooks from Georgetown College on the basis that no child was involved in the former. See 205 N.E.2d at 440.

274. For example, in the criminal context, the defense of infancy is “universally recognized and uncontroversial” because “we do not consider small children to be sufficiently rational to hold them fully accountable for their behavior.” P. Johnson, supra note 147, at 356.

275. 321 U.S. 158 (1944).

276. Id. at 167.

277. Id. at 168.

278. Id. at 170.

279. See, e.g., Jehovah's Witnesses in Washington v. King County Hosp., 278 F. Supp. 488 (W.D. Wash. 1967), aff'd per curiam, 390 U.S. 598 (1968) (upholding state statutes empowering superior court judges to declare children dependents to allow authorization of blood transfusions); State v. Heart Ministries, Inc., 607 P.2d 1102 (Kan. 1980) (disallowing defendant religious organization to operate childrens' home without state license); Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 198S) (defendant parents convicted of manslaughter for failing, on religious grounds, to seek medical help for their child).

280. See supra text accompanying notes 269-73.

281. That is, a tax on money he spends on religious purposes. See, e.g., Foley v. Commissioner, 844 F.2d 94 (2d Cir. 1988) (petitioner allowed to deduct portion of income spent on religious rituals). But see Graham v. Commissioner, 822 F.2d 822 (9th Cir. 1987) (opposite holding on similar facts).

282. Such a broad tax exemption may prove unworkable, depending on the number of taxpayers seeking exemption on sincere religious grounds. It seems unlikely, however, that enough taxpayers would claim sincere religious exemptions for there to be a sizable effect on revenue; it is easy to overestimate such adverse effects. See, e.g., A. Fortas, supra note 183, at 59-60 (harms of massive disobedience often exaggerated in nation as large and dispersed as United States); cf. Bowen v. Roy, 476 U.S. 693, 728-29 (1986) (possibility remote that exemption from social security number requirement for welfare benefits would encourage fraudulent religious claims) (O'Connor, J., concurring in part and dissenting in part).

Nevertheless, if it came to the point where the government could not afford to grant tax exemptions on religious grounds, then it simply would have to deny them, regardless of their passive nature. This suggestion may seem unprincipled at first, but it is hardly a unique idea. In dissenting from Goldman v. Weinberger, 475 U.S. 503 (1986) (Air Force member not permitted to wear yarmulke in violation of dress code), for example, Justice Blackmun suggested that the Air Force be required to allow Goldman and others an exemption, but perhaps not in the future if it proved unworkable. Id. at 527-28 (Blackmun, J., dissenting).

283. See supra text accompanying notes 249-261. See also supra text accompanying notes 262-268 (use of property depends on ownership).

284. See supra notes 240-248 and accompanying text.

285. See discussion of Lee, supra text accompanying notes 243-248. See also discussion of Murdock, supra note 246.