Appeared in Autumn 2001, Vol. XXVI, No. 3

“[N]o society will long survive if in its public structure it is built agnostically and materialistically and wishes to permit anything else to exist only below the threshold of the public.” -Joseph Cardinal Ratzinger

On April 17, 1990 the United States Supreme Court, speaking through Justice Antonin Scalia, decided the case of Employment Division v. Smith. In this case, two men, Alfred Smith and Galen Black,

were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members. When [Smith and Black] applied to [the Oregon] Employment Division . . . for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related “misconduct.”

On appeal from the Supreme Court of Oregon, the U.S. Supreme Court ruled against Smith and Black, because it determined that “neutral, generally applicable” laws, which are directed to some secular purpose, and only incidentally infringe on religious practice, may be enforced even though religious believers are thereby inconvenienced. Oregon’s laws against drug, and specifically peyote, use were not directed against members of the Native American church as such, but were general prohibitions against any use

The court stated that, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibition conduct that the State is free to regulate.”4 moreover,

the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general application on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes.)”5

The Smith decision provoked considerable protest.  A concurring opinion by Justice O’Connor and a dissent by Justice Brennan, Marshall and Blackmum, strongly criticized the basis of the Court’s opinion, charging that it departed from established jurisprudence which forbade governmental infringement with religious freedom “unless required by clear and compelling governmental interest ‘of the highest order.'”6 The Smith decision spurred Congress to pass the religious Freedom Restoration Act, Public Law 103-141, which was signed by President Clinton in November 1993. Although this law has since been judged unconstitutional by the Supreme Court, it is an important example of the “compelling governmental interest” approach to regulate religious conduct, and I will discuss the law further below.

One should note, though, that although many criticized the Court’s opinion in the Smith case, those criticisms were within the definite limits. For example, Justice O’Connor in her concurring opinion stated plainly: “Under our estalished First Amendment jurisprudence,we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute.”7 Practically no one challenged the notion that government had the ultimate say over conduct, even when religiously based and motivated.

A few years later, on June 11, 1993, the Supreme Court decided another free excercise of religion case, Church of Lukumi Babalu v. City of Hialeah.8 This case involved adherents of the Santeria religion, a religion which includes animal sacrifices in its rituals. The city Hialeah, Florida, had proscribed such animal sacrifices in a series of measures that singled out only the religious slaughter of animals, and exempted other animal killings. And so the Supreme Court found that these laws were indeed unconstitutional, because they obviously were targeted at religious practices per se, not simply that they happened to burden religious behav- ior incidentally. “It is a necessary conclusion that almost the only conduct subject to [the] Ordinances … is the religious exercise of Santeria church members. The texts show that they were drafted … to achieve this result.”9 But the Court in this case also expressly reaffirmed the central and controversial point of Smith, “that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”10

The history of the treatment of the Free Exercise Clause 11 of the First Amendment by the United States judicial system, and in particular by the Supreme Court, varies, but as we shall see, it varies only within certain definite limits. In what seems to have been the first free exercise case, the 1878 case of Reynolds v. United States,12 which upheld the law criminalizing the Mormon practiceof polygamy, the Supreme Court took the view that there was no reason why government need hesitate about restricting religious conduct by general and neutral laws. The Court in Reynolds said, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”13 It also noted that “[flaws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”14

In later cases the Supreme Court seemed to take a softer line. For example, in the 1940 case of Cantwell v. Connecticut,15 a case involving the selling of religious literature and soliciting of donations by two Jehovah’s Witnesses, contrary to state law, the Court sided with the Witnesses, although it stated that the Constitution’s requirements for the protection of religious behavior were nevertheless not absolute.

He constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice ofany form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the [First] Amendment embraces two concepts-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.16

Thus the Court did not give up the government’s stated right to regulate or restrict religious conduct in at least some cases. But generally the Court since then has shown more concern and deference toward believers who either were denied some governmental benefit or became subject to some governmental penalty because of their religion. It has often stated, for example, that inorder to abridge someone’s religious freedom the government must show that it has a “compelling state interest” which “no alternative form of regulation” could accomplish.17 The case in which it seems to have given the most latitude toward religious conduct was the 1972 case of Wisconsin v. Yoder,18 the Amish school case. Here the Court said:

But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.19

This represents the outer bounds to which the Supreme Court has approached, for in this case the Court appears to take the position that some religiously inspired conduct is entirely “beyond the power to the State to control,” regardless of what state interests may exist.

Generally, however, the Court has not proceeded this far. More often the question is presented as one of balancing the religious interests of the individual against the proclaimed interests of the authorities. When Congress legislatively attempted to overturn the Smith decision by passing the Religious Freedom Restoration Act, this balancing test was enacted as law. Section 3, subsection(b) of the law stated:

Government may substantially burden a person’sexercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.20

This attempt by Congress to establish a “compelling governmental interest” standard for regulating religious conduct did not, however, succeed. As I mentioned above, the Supreme Court overturned this act,21 basically asserting that it is the courts, not Congress, that have the authority to decide the limits of the First Amendment. In this decision, as in both Smith and Church of Lukumi Babalu Aye, the Court seems to have returned to a stan- dard more similar to Reynolds than to Yoder and other post-World War II cases. Obviously one cannot say which way future decisions will go. But I think that one can confidently predict that they will fall within an area bounded on the one hand by Yoder and on the other by Reynolds and Smith. And although it might seem that these two extremes of opinion differ fundamentally, I will contend that in principle the differences between Yoder and Smith are simply differences of degree. What can be said, then, of the differences between the attitude toward free  exercise of religion contained in Reynolds and Smith, and that contained in the other cases and in the Religious Freedom Restoration Act itself? Reynolds and Smith claim that in making general and neutral laws that deal with matters under its competence, a government need not bother about the fact that some persons’ exercise of religion is thereby burdened. To allow exemptions from lawon account of religious belief “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”22 Or as the Smith opinion put it,

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritualdevelopment.”23

But the other approach, with the possible exception of some passages in the Yoder opinion,24 also asserts the government’s supremacy over all religious conduct except that such regulation must justify itself by, as the Religious Freedom Restoration Act states, “a compelling governmental interest.” We should remember, however, that it is the same government that enacts the statute restricting religious behavior, and that also asserts its “compelling interest” in seeing the statute obeyed. It is true that it must justify itself before an independent judicial branch, but is it that difficult to imagine circumstances inwhich all the branches of government would be united in the same (to them self-evident) opinion? What the government considers its compelling interest depends much on the cultural or intellectual milieu in which live not only congressmen and judges, but the entire body of persons whom congressmen and judges regard as their peers and fellows. Even within the short story of our own country we can see striking changes of opinion about the most important subjects, about religion, slavery, sexuality, the place of women in society, and many other matters. Who would doubt but that what seemed self-evident to a judge of 1800 would differ considerably from what seems self-evident to a judge of today? Not many years ago it seemed clear to most Americans that prohibition of “intoxicating liquors” was socially desirable.25 Although the use of wine for Christian sacramental purposes was exempted from the law, does it require much imagination to think that the society of that time might have deemed even religious s use of wine contrary to a”compelling governmental interest,” and thus outlawed Catholic, Eastern Orthodox, Episcopal and other religious rituals, as some stated do with the peyote in the Native American Church? Justice O’Connor, in her concurring opinion in Smith, reared the same result as the Court’s majority, although she applied the “compelling interest” in doing so.26

The point then, as I see it, is that U.S. jurisprudence unhesitatingly regards all religious conduct, even in religious rituals themselves as subject to at least as important law that is passed, only provided that his law have a neutral and secular purpose, and burden the religious actions only incidentally.  Is this something to be troubled about, or is it simply a common-sense approach to governing? After all, as the court said in Reynolds,

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously conceded that the civil government under which he lived could not interfere to prevent a sacrifice? 27

I think, though, that before one evaluates the Supreme Court’s jurisprudence, it is necessary to see the background and context of the Court’s opinions, and these can be found in none other the John Locke’s (first) Letter concerning Toleration of 1689.28

The kinds of situation which our Supreme Court has had to conform in Free Exercise Clause litigation were discussed some 300 years earlier by Locke, except that instead of the Santeria sacrifices of “chickens, pigeons, doves, ducks, guinea pigs, goats, sheep and turtles,”29 Locke spoke only of calves.  But before considering Locke’s example further, we should begin by examining this entire argument.

Locke’s Letter Concerning Toleration would seem to have been written to further mutual toleration among Christians.  As he says in the very beginning of the letter, “I esteem that toleration to be the chief characteristic mark of the true Church.”30 And following on this genial statement, Locke continues in the same vein,  He says, “If the Gospel and the apostles may be credited, not man can be a Christian without charity and without that faith which works not by force, but by love.”31 Or consider this:

The toleration of those that differ form others in matters of religion is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that is seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light.32

But Locke is not seeking simply to denounce those whom he deems cruel to other Christians; he is also going to “distinguish exactly the business of civil government from that of religion” so that there can be an “end put to the controversies that will be always arising between those that have… on the one side, a concernment for the interest of men’s souls, and, on the other side, a care of the commonwealth.”

With this, Locke begins his argument for his well-known position that government exists “only for the procuring, preserving, and advancing [of]… civil interests.” And what are these civil interests? “Civil interests I call life, liberty, health, and indolence of body;  and the possession of outward things, such as money, lands, houses, furniture, and the like.” Thus, the state’s duty is “by the impartial execution of equal laws, to secure unto all the people… the just possession of these things belonging to this life” and “neither can nor ought in any manner to be extended to the salvation of souls …”34

Since he has limited men’s concerns when coming together into a political society to material affairs, all the laws and power of the state will likewise concern only material matters.  Thus a fellow citizens religious opinions would seem to have nothing to do with how well he will obey the laws of the common wealth, and are thus of no concern to his neighbor.

If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen. The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no. 35

For “the business of laws is not to provide for the truth of opinions, but for the safety and security of the common wealth and of every particular man’s goods and person.”36

Since the power of the ruler extends only to material things, he therefore “has no power to impose by his laws the use of any rites and ceremonies in any Church” nor “any power to forbid the use of such rites and ceremonies as are . . . practiced by any Church.”37 It would seem, then, that Locke has established a regime of the utmost religious freedom, in which each and every man could worship God or gods in any matter of his choosing. But Locke has to deal with an obvious objection, and his answer parallels closely the reasoning of our own Supreme Court. The objection that naturally arises is that if entire freedom is granted to every religion, what if some religion performs outrageous rites in its worship-” if some congregations should have a mind to sacrifice infants, or…, lustfully pollute themselves in promiscuous uncleanness” should this be permitted on the grounds that the state may not meddle with spiritual matters? Locke answers thus: ‘No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting.”38

One might think that this is indeed a reasonable response, since, after all, could anyone really expect that murder would be permitted under color of religious worship? But Locke immediately makes it clear that he is speaking not only of what lawyers call malum in se, but also of what they call malum prohibitum.39

But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that they ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and bum any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man’s goods. And for the same reason he may kill his calf also in a religious meeting.

But almost immediately he goes on to say:

But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter…40

In other words, “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”41 Whenever Locke’s established-only-for-the-sake-of-property government decides about some this-worldly matter, the fact that it requires believers to abstain from, or perorm, some act contrary to their religious beliefs matters not at all. Locke himself opines that “this will seldom happen.” But in answer to his question, “What if the magistrate should enjoin anything by his authority that appears unlawful to the conscience of a private person?” he replies,-

That such a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment….For the private judgement [sic] of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation.42

From the foregoing, one can easily discern that the frameworks within which both Locke and our own First Amendment jurisprudence take place are identical.43 The legislative enactments of neither deal with religious belief itself. Locke has no explicit prohibition, such as our First Amendment, against government legislating on religious belief. But he does not need one, because since his government is limited to only “civil interests” in its enactments, it can never touch religious belief itself. And as to religious conduct, both assert their right to prohibitor regulate it, whenever some “civil interest” of suffi- cient importance makes this necessary.

This method of dealing with conflict between civil and religious prescriptions, especially when applied using the “compelling governmental interest” standardsometimes used by the Supreme Court, might seem to establish a reasonable modus vivendi. In a country suchas the United States, where we have every kind of religion from Appalachian snake handlers to Zen Buddhists, there would surely be chaos if every one were allowed to ignore any law which conflicted with his sincere religious beliefs. Nevertheless, I suggest that present in Locke’s doctrine, and our own, is a latent totalitarianism.


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