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American Religious Freedom
Reflections on Koppelman and Smith
Published online by Cambridge University Press: 20 April 2015
Extract
Among contemporary scholars of American religious freedom, Andrew Koppelman and Steven Smith are two of the most esteemed. They address, in their respective books, a broad range of important issues. Space limitations constrain me to be selective in this review essay; I comment here on what Koppelman and Smith say, and don't say, about two of the most fundamental issues regarding American religious freedom: the meaning of the nonestablishment norm and the constitutionality of granting conscience-protecting exemptions only to religious believers.
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References
1 See Koppelman, Andrew, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013)Google Scholar (hereinafter “Koppelman”); Smith, Steven D., The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press 2014)Google Scholar (hereinafter “Smith”).
2 The First Amendment to the Constitution states, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Michael McConnell has explained: “The text [of the First Amendment] states the ‘Congress’ may make no law ‘respecting an establishment’ of religion, which meant that Congress could neither establish a national church nor interfere with the establishment of state churches as they then existed in the various states. After the last disestablishment in 1833 and the incorporation of the First Amendment against the states through the Fourteenth Amendment, this ‘federalism’ aspect of the Amendment has lost its significance, and the Clause can be read as forbidding the government to establish religion” (McConnell, Michael W., “Accommodation of Religion: An Update and Response to the Critics,” George Washington Law Review 60 [1992]: 685Google Scholar, 690n19).
3 See Koppelman at 3: “This book offers new answers to three questions: What conception of neutrality is relied on in the interpretation of the Establishment Clause of the First Amendment? Is it coherent? Is it defensible?”
4 In their fine book, Ira Lupu and Robert Tuttle argue persuasively that whereas the free exercise norm is appropriately articulated as a right, the nonestablishment norm (a.k.a “the Establishment Clause”) is best articulated as a principle: “the nonestablishment principle,” Lupu and Tuttle call it. See Lupu, Ira C. and Tuttle, Robert W., Secular Government, Religious People (Grand Rapids, MI : Eerdmans, 2014), 5Google Scholar.
5 Not every religious tenet is one whose affirmation by government violates the central meaning of the norm. Since 1954, the Pledge of Allegiance has echoed Abraham Lincoln's Gettysburg Address in declaring that we are “one nation under God.” (At Gettysburg, Lincoln resolved that “this nation, under God, shall have a new birth of freedom. . .”) In affirming, with Lincoln, that ours is a nation that stands under the judgment of a righteous God, government is not doing what the central meaning of the nonestablishment norm forbids government to do. Here are some other examples of government affirming one or more religious tenets whose affirmation by government does not violate the central meaning of the nonestablishment norm: In 1954, “Congress requested that all U.S. coins and paper currency bear the slogan, ‘In God We Trust.’ On July 11, 1955, President Eisenhower made this slogan mandatory on all currency. In 1956 the national motto was changed from ‘E Pluribus Unum’ to ‘In God We Trust’” (Baer, John W., The Pledge of Allegiance: A Centennial History, 1892–1992 [Annapolis, MD: Free State Press, 1992], 63Google Scholar). The proceedings of many courts in the United States, including the Supreme Court of the United States, begin with a court official intoning “God save the United States and this Honorable Court.”
6 Koppelman at 3; see also 84, 90, 91.
7 Ibid., 91–92, 105.
8 Koppelman suggests that the nonestablishment norm is directed against religiously based coercion (e.g., Koppelman at 117). But it is the free exercise norm that is the barrier—or, at least, the main barrier—to such coercion. As Kent Greenawalt has correctly observed, laws “that enforce a purely religious morality. . . unacceptably impose religion on others” (Greenawalt, “History as Ideology: Philip Hamburger's Separation of Church and State,” California Law Review 93 [2005]: 391Google Scholar). Greenawalt gives as an example “laws against homosexual relations based on the view that the Bible considers such relations sinful” (ibid., 390).
9 Koppelman at 6.
10 See ibid., 46–77. In the course of elaborating, in support of his position, the “corruption” rationale, Koppelman identifies a fifth rationale—the “alienation” rationale—and then argues that as supports for his position, the “divisiveness” rationale and the “alienation” rationale are inferior to the “corruption” rationale. See ibid., 46–49.
11 Koppelman quotes Justice Scalia and discusses Scalia's position at 10 and 39–42. See also “Antonin Scalia Says Constitution Permits Court to ‘Favor Religion over Non-Religion,’” Washington Times, October 2, 2014.
12 Smith sometimes seems to suggest (though perhaps I misread him) that even a congressional declaration that the United States is a Christian nation would not violate the nonestablishment norm were the norm correctly—i.e., very narrowly—interpreted. See, e.g., Smith at 85 et seq. This is not to say that Smith supports such a declaration.
13 Smith objects to Koppelman's use of the terms “neutral” and “neutrality,” which Smith finds, at best, misleading. See Smith at 133–38. Koppelman explains and defends his use of the terms in a chapter titled “The American Specification of Neutrality.” See Smith at 15–45.
14 Smith at 74–75.
15 See Doe v. Elmwood School District, 687 F.3d 840, 872 (7th Cir. 2012) (Posner, J., dissenting):
The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass'n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398–99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can't be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart”).
Many constitutional scholars have said much the same thing. See, e.g., Choper, Jesse H., Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses (Chicago: University of Chicago Press, 1995), 174–76Google Scholar; Amar, Akhil Reed, “Foreword: The Document and the Doctrine,” Harvard Law Review 114 (2000): 119Google Scholar; Van Alstyne, William, “Ten Commandments, Nine Justices, and Five Versions of One Amendment—The First. (‘Now What?’),” William & Mary Bill of Rights Journal 14 (2005): 17Google Scholar. Cf. William M. Janssen, “Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis,” West Virginia Law Review 116 (2013).
16 ACLU of Ohio v. Capitol Square Review & Advisory Board, 243 F.3d 289, 297 (6th Cir. 2001).
17 Calabresi, Steven G. and Agudo, Sarah E., “Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?,” Texas Law Review 87 (2008): 37 and 38Google Scholar.
18 See above, n5.
19 See Koppelman at 2 and 73–77. For thoughtful critical commentary on Koppelman's “grandfathering” argument, see Garnett, Richard W., “Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman,” Pepperdine Law Review 39 (2013): 1152–54Google Scholar.
20 See Smith at 76–110.
21 See Smith at 111–38. According to Smith, “the American settlement” began to be not only seriously challenged but undermined, by certain Supreme Court rulings, in the early 1960s. See id. at 113 et seq.
22 Cf. Kruse, Kevin M., One Nation under God: How Corporate American Invented Christian America (New York: Basic Books, 2015)Google Scholar.
23 See Employment Division v. Smith, 494 U.S. 872, 877 (1990):
[T]he “exercise of religion” often involves . . . the performance of (or abstention from) physical acts . . . [A] State would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious beliefs that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statutes that are to be used for worship purposes,” or to prohibit bowing down before a golden calf.
See also Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
When I say, in the text, “on the basis of” a religion-specific reason, I mean it in the sense that government would not be treating A less well than B “but for” the religion-specific reason.
Government discrimination against a person on the basis of a reason, including a religion-specific reason, regarding the person's beliefs or speech implicates, and sometimes violates, the right to freedom of thought and speech. With respect to beliefs and speech, the free exercise right is redundant. Not that redundancy is never salutary, but it is with respect to conduct—conduct other than speech—that the free exercise right most matters.
24 Cf. Lawrie Breen, “A Chinese Puzzle,” The Tablet (London), Mar. 5, 2005 (reporting that “new regulations confirm that Beijing perceives religion as unscientific, superstitious and an enemy of progress”). “Last year a secret document, issued by the Central Committee's Propaganda Department, called for a new drive to promote Marxist atheism” (ibid.).
25 By “religiously based” conduct I mean conduct animated by one or more of one's religious convictions and commitments.
26 As no more than an antidiscrimination right, the free exercise right reflects what Boucher and Laborde, in their excellent commentary on Brian Leiter's Why Tolerate Religion? (2013), call “a theory of toleration”; it does not reflect what they call “a theory of legal exemptions.” See François Boucher & Cécile Laborde, “Why Tolerate Conscience?,” Criminal Law and Philosophy (published online, Nov. 11, 2014).
27 494 U.S. 872 (1990).
28 However, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. (2012), the Supreme Court ruled that although the free exercise right is only an antidiscrimination right with respect to government action that interferes with “outward physical acts,” it is a broader right with respect to government action that interferes with “internal church decision that affects the faith and mission of the church itself.” For expressions of skepticism about the coherence of that bifurcated understanding of the free exercise right, see Paulsen, Michael Stokes, Calabresi, Steven G., McConnell, Michael W., and Bray, Samuel L., The Constitution of the United States, 2nd ed. (West Academic, 2013), 1133Google Scholar; Schragger, Richard and Schwartzman, Micah, “Against Religious Institutionalism,” Virginia Law Review 99 (2013): 975Google Scholar.
29 And that prevailed before the Supreme Court changed course in Employment Division v. Smith. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). It is noteworthy that during the period when it prevailed, the broader understanding of the free exercise right had little practical bite. See, e.g., Lupu, Ira, “Hobby Lobby and the Dubious Enterprise of Religious Exemptions,” Harvard Journal of Law and Gender 38 (forthcoming)Google Scholar.
30 As more than an antidiscrimination right—as a broad, accommodationist right—the free exercise right reflects what Boucher and Laborde call “a theory of legal exemptions” as well as “a theory of toleration.” See above, n26.
31 For a defense of the accommodationist understanding as more faithful to the original understanding, see McConnell, Michael W., “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103(1990): 1409–1517Google Scholar. For a defense of the antidiscrimination understanding as more faithful, see Hamburger, Phillip A., “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review 60 (1992): 915–48Google Scholar.
32 See Koppelman at 108; Smith at 73–74.
33 See Koppelman at 107–8. Smith's approval of government's sometimes granting religious exemptions is evident here: Smith, Steven Douglas, “Debate: The Contraception Mandate and Religious Freedom,” University of Pennsylvania Law Review Online 161, no. 261 (2013)Google Scholar.
34 Welsh v. United States, 398 U.S. 333, 335 (1970) (Black, J., joined by Douglas, Brennan, and Marshall, JJ.).
35 Id. at 345.
36 Id. at 356.
37 See Boucher and Laborde, “Why Tolerate Conscience?”; Eberle, Christopher J., “Religion and Insularity: Brian Leiter on Accommodating Religion,” San Diego Law Review 51, no. 4 (2014)Google Scholar. For an argument that granting exemptions to religious believers does not violate the original understanding of the nonestablishment norm, see Laycock, Douglas, “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause,” Notre Dame Law Review 81 (2006): 1793Google Scholar.
38 Douglas Laycock too argues that granting conscience-protecting exemptions only to religious believers is inconsistent with the free exercise right: Laycock, Douglas, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues 7 (1996): 326–37Google Scholar.
39 Justice Harlan's answer to the constitutional question rests comfortably with the conclusion that as a matter of political morality, government should protect not only religiously based moral freedom but also moral freedom that is not religiously based. See Perry, Michael J., “Freedom of Conscience as Religious and Moral Freedom,” Journal of Law and Religion 29, no. 1 (2014): 124–41Google Scholar; Perry, Michael J., “A Right to Religious and Moral Freedom? A Reply to Rafael Domingo,” International Journal of Constitutional Law 12, no. 1 (2014): 248–55CrossRefGoogle Scholar.
An important question put to me by Dan Conkle in commenting on a draft of this review essay: Is the Supreme Court's unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC consistent with the position that granting exemptions only to religious believers is unconstitutional? On Hosanna-Tabor, see above, n28.
40 Schwartzman, Micah, “Religion as a Legal Proxy,” San Diego Law Review 51 (2014): 1100–1101Google Scholar (citations omitted). See also Wardle, Lynn D., “Protection of Health-Care Providers' Rights of Conscience in American Law: Present, Past, and Future,” Ave Maria Law Review 9, no. 1 (2010)Google Scholar.
41 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). As of December 2014, twenty states have enacted laws that are substantially like RFRA, except that whereas RFRA applies only to the federal government, each state law applies to the government of the state whose law it is. See http://rfraperils.com/.
42 According to Douglas Laycock, responding the way the Court responded in Welsh is optimal: Laycock, “Religious Liberty as Liberty,” n. #, at 336–37
43 Laycock, “Religious Liberty as Liberty,” 336–37.
44 See Koppelman at 161.
45 Welsh v. United States, 398 U.S. 333, 344 (1970) (plurality op'n), quoted by Koppelman at 133. Cf. Rienzi, Mark L., “The Case for Religious Exemptions—Whether Religion Is Special or Not,” Harvard Law Review 127 (2014): 1409n39Google Scholar (citations omitted): “The federal government has since expressly changed its conscientious objector provisions to embrace both secular and religious conscience objections.”
Responding the way the Court responded in Welsh would have the great virtue of bringing RFRA into alignment with Article 18 of the International Covenant on Civil and Political Rights, to which the United States has been a party since 1992. See Perry, “Freedom of Conscience as Religious and Moral Freedom,” 126–33.