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The Case Against the Constitutionally Compelled Free Exercise Exemption

Published online by Cambridge University Press:  24 April 2015

William P. Marshall
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Free exercise jurisprudence is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.

There are a number of tensions underlying the notion of constitutionally compelled exemption and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. Thus, as the Court noted recently, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.

Type
Georgetown Symposium on Church and State and Society and Law Colloquium
Information
Journal of Law and Religion , Volume 7 , Issue 2 , 1989 , pp. 363 - 414
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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References

1. Stone, , Constitutionally Compelled Exemption and the Free Exercise Clause, 27 Wm. & Mary L. Rev. 985 (1986)Google Scholar. As Dean Stone indicates, the constitutionally compelled exemption is not unique to free exercise. Occasionally, exemptions have been made under the speech and assembly clauses. See Brown v. Socialist Workers Party '74 Campaign Comm., 459 U.S. 87, 98 (1982) (the first amendment prohibits a state from compelling disclosure by a minor political party of its campaign contributions and recipients of campaign disbursements when that party has historically been subject to threats and harassment); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 466 (1958) (compelled disclosure of the NAACP's membership lists will probably constitute a restraint on its members' freedom of association).

2. See, e.g., Note: Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L.J. 350, 356 (1980)Google Scholar (“Exemption doctrine has…been unable to provide a principled answer to objections that religion-based exemptions contradict the rule of law, violate general notions of equal treatment, and violate the establishment clause.” (citations omitted)).

3. Employment Div., Dep't of Human Resources of Oregon v. Smith, 110 S. Ct. 1595, 1604, 58 U.S.L.W. 4433, 4437 (1990) [hereinafter Smith II] (“a private right to ignore generally applicable laws…is a constitutional anomaly”); see also Stone, & Marshall, , Brown v. Socialist Workers: Inequality as a Command of the First Amendment, 1983 Sup. Ct. Rev. 583, 584 (noting that constitutionally compelled exemptions are exceptional in constitutional law)Google Scholar.

4. See, e.g., Choper, , The Religion Clause of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980)Google Scholar (examining the tension between the free exercise clause and the establishment clause). But see Lupu, , Keeping the Faith: Religion, Equality and Speech in the U.S Constitution, 18 Conn. L. Rev. 739 (1986)Google Scholar [hereinafter Lupu, Keeping the Faith] (arguing that a close comparison of the principles underlying the religion and equal protection clauses avoids a conflict between the establishment and free exercise clauses).

5. See, e.g., United States v. Seeger, 380 U.S. 163, 174 (1965) (“[I]n no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man's predicament in life, in death, or in final judgment and retribution.”); see also United States v. Ballard, 322 U.S. 78, 86 (1944) (“Men may believe what they cannot prove.”); Weiss, , Privilege, Posture, and Protection: “Religion” in the Law, 73 Yale L.J., 593, 604 (1964)CrossRefGoogle Scholar (“to define the limits of religious expression may be impossible”).

6. See infra text accompanying notes 135-49; see also Heins, , “Other People's Faiths”: The Scientology Litigation and the Justiciability of Religious Fraud, 9 Hastings Const. L.Q. 153, 157–58 (1981)Google Scholar (“The very inquiry into belief, whether by the courts, by government agencies, or by adverse parties through discovery tends to inhibit religious practice and excessively entangles secular bodies in religious doings. This is true whether the inquisitions probe verity or sincerity.” (footnote omitted)).

7. Garvey, , Free Exercise and the Values of Religious Liberty, 18 Conn. L. Rev. 779, 783 (1986)Google Scholar.

8. See Carter, , Evolution, Creationism, and Treating Religion as a Hobby, 1987 Duke L.J. 977, 985Google Scholar.

9. McConnell, , Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 19 [hereinafter McConnell, Accommodation]Google Scholar; Tushnet, , The Constitution of Religion, 18 Conn. L. Rev. 701, 734 (1986) [hereinafter Tushnet, Religion]Google Scholar.

10. See Ingber, , Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233, 283 (1989)CrossRefGoogle Scholar (contrasting the individual choice inherent in religious freedom with the “most fundamental obligations” imposed on “the religious faithful” by religion itself); Sandel, , Religious Liberty — Freedom of Conscience or Freedom of Choice?, 1989 Utah L. Rev. 597, 614–15Google Scholar (“The Court's tendency to assimilate religious liberty to liberty in general…confuses the pursuit of preferences with the exercise of duties and so forgets the special concern of religious liberty with the claims of conscientiously encumbered selves.”)

11. Marshall, , Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 Minn. L. Rev. 545 (1983)Google Scholar.

12. See, e.g., Heffron V. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647-48 (1981) (solicitation by the Krishnas at a fairground implemented both free exercise and speech clauses).

13. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 962 (1984) (charitable fundraising constitutes speech under the first amendment); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632 (1980) (same).

14. Marshall, supra note 11, at 586-87; cf. Prince v. Massachusetts, 321 U.S. 158, 164 (1944) (“[None] of the great liberties insured by the First [Amendment] can be given higher place than the others.”).

15. Marshall, supra note 11, at 565-72.

16. 450 U.S. 707 (1981).

17. See Ingber, supra note 10, at 241; Tushnet, Religion, supra note 9, at 713; see also Pepper, , Taking the Free Exercise Clause Seriously, 1986 B.Y.U. L. Rev. 299, 307 n.36Google Scholar (Pepper notes the theory without denominating it “the reduction principle”).

18. See infra text accompanying notes 23-75.

19. See infra text accompanying notes 76-134.

20. See infra text accompanying notes 135-203.

21. See infra text accompanying notes 204-23.

22. See infra text accompanying notes 224-53.

23. 454 U.S. 263 (1981).

24. Id. at 269.

25. See id. at 269-70 n.6 (refuting the dissent's claim that religious worship falls within the free exercise clause and is unprotected by the speech clause).

26. See infra note 28 and accompanying text; see also Cox v. New Hampshire, 312 U.S. S69 (1941) (challenge by Jehovah's Witnesses to ordinance that required permit before a march could be undertaken analyzed under speech clause); Lovell v. City of Griffin, 303 U.S. 444 (1938) (Jehovah's Witnesses' attack on ordinance proscribing the distribution or sale of literature analyzed under speech clause).

27. See, e.g., Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (The “equal protection claim in this case is closely intertwined with First Amendment interests.”); Karst, , Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20, 20–21 (1975)CrossRefGoogle Scholar (In a number of … cases involving first amendment interests, the Supreme Court has used the framework of equal protection analysis to limit the government's power to restrict free expression.”).

28. See, e.g., Saia v. New York, 334 U.S. 558 (1948) (loudspeaker permit requirement invalidated on free speech grounds where Jehovah's Witness used loudspeaker for preaching); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding conviction of Jehovah's Witness under state child-labor law when she allowed her niece to distribute religious literature on the street, despite claim of religious freedom); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (revenue tax on door-to-door sales of religious books and pamphlets found unconstitutional); Cantwell v. Connecticut, 310 U.S. 296 (1940) (restriction on religious solicitation held a violation of the first amendment); see also Marshall, supra note 11, at 561-65 (“[T]he activities in question in [the Jehovah's Witnesses] cases were as integrally religious as preaching, worship, and proselytizing …”); Pfeffer, , The Supremacy of Free Exercise, 61 Geo. L.J. 1115, 1121–30 (1973)Google Scholar (discussing the interrelation of the free exercise clause and the free speech clause in the Jehovah's Witnesses cases).

29. The only possible exception was Follett v. Town of McCormick, 321 U.S. 573 (1944), which indicated that religious speech could be singled out for special constitutional protection. The Court invalidated a license tax imposed on Jehovah's Witnesses when they distributed religious material door-to-door, holding that the tax burdened their free exercise rights under the first amendment. Id. at 578. Follett has recently been questioned, if not overruled, in Jimmy Swaggart Ministries v. Board of Equalization of Cal., 110 S.Ct. 688, 693-95 (1990) (The Court decided the case “by limiting … Follett to apply only where a flat license tax operates as a prior restraint on the free exercise of religious beliefs.”).

30. See Pfeffer, supra note 28, at 1124-26 (the Jehovah's Witnesses cases were based largely on the speech clause). As Professor Leo Pfeffer has noted in analyzing the Supreme Court's decisions in this area:

The chronicle can be summed up briefly and starkly: In every case in which a claim under the free exercise clause was upheld, it was bracketed with a free speech or free press claim; conversely, whenever free exercise stood alone it was unsuccessful. Realistically, free exercise did not have a separate but equal existence, or even one that was separate and unequal; it had practically no existence at all. Pfeffer, supra note 28, at 1130 (footnotes omitted).

31. See Marshall, supra note 11, at 561-65 (concluding that religious activities typically have been protected under the speech clause rather than the free exercise clause).

32. 319 U.S. 624 (1943).

33. 430 U.S. 705 (1977).

34. See Barnette, 319 U.S. at 634-35 (explaining that religion is only one motive for challenging compulsory flag salute and that those without a religious motive can sustain a challenge based on an infringement of the “constitutional liberties of the individual”).

35. 430 U.S. at 713.

36. Id. at 714 (quoting West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)).

37. See Branti v. Finkel, 445 U.S. 507 (1980) (newly appointed public defender could not dismiss assistants solely because of their political beliefs); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (state law could not constitutionally require non-union public employees to contribute to union political activities which they opposed); Elrod v. Burns, 427 U.S. 347 (1976) (employees could not be forced to pledge allegiance to political party).

38. The Court has been equivocal in deciding whether a right of conscience based on religious or secular beliefs should be protected by the free speech clause or by the religious exercise clause. The Court has employed the free speech clause to uphold the right of a person who may forego an otherwise compulsory activity because of his religious principles. See Wooley v. Maynard, 430 U.S. 705 (1977); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). By the same token, a right of conscience lacking religious motivation was held sufficient, on religion clause grounds, to sustain the right of an atheist to object to taking an oath affirming belief in God. See Torcaso v. Watkins, 367 U.S. 488, 495-96 (1961) (state could not compel notary public to declare belief in God); cf. Welsh v. United States, 398 U.S. 333 (1970) (statutory provision excluding religious conscientious objectors from the draft applied to person whose objection was based on non-religious grounds).

39. Arguably, Barnette and Wooley create only a very limited right of conscience — specifically, a right applicable only to objection to state-compelled speech. There is some merit to this argument. The conscience cases have not been extended to all types of activity. Wooley, however, appears to stand for something more than simply a right of non-speech. See Marshall, supra note 11, at 569 n.131 (“In light of Pruneyard [a later Supreme Court case], Wooley stands for the proposition that freedom of expression also protects a right to be free from governmental attempts to coerce beliefs by forcing individuals to express a message they do not believe in … ”).

40. 374 U.S. 398 (1963).

41. The Court's recent vacillation with respect to the Sherbert test is discussed later. Infra text accompanying notes 60-75.

42. Sherbert, 374 U.S. at 406-09.

43. See, e.g., Dent, , Religious Children, Secular Schools, 61 S. Cal. L. Rev. 864, 880 (1988)Google Scholar (“In free exercise cases the Supreme Court has followed the same general approach used for certain other constitutional rights such as the right of association, free speech and equal protection”); Lupu, , Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 934 (1989)CrossRefGoogle Scholar [hereinafter Lupu, Burdens] (“the government will prevail only if it proves that a favorable response to these claims and others like them would substantially undermine government interests of unusual importance.”).

44. Indeed, the Court's first two modern free exercise cases, Sherbert, and Braunfeld v. Brown, 366 U.S. 599 (1961), were criticized by commentators and members of the Court alike as being hopelessly inconsistent. See Sherbert, 374 U.S. at 417 (in his concurring opinion, Justice Stewart remarked, “I cannot agree that today's decision can stand consistently with Braunfeld v. Brown ….”); Morgan, R., The Supreme Court and Religion 145–47 (1972)Google Scholar (Sherbert and Braunfeld cannot be reconciled); Ely, , Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1322 (1970)CrossRefGoogle Scholar (Sherbert and Braunfeld are as irreconcilable as two cases not involving the same parties can be); Pfeffer, supra note 28, at 1139 (impossible to reconcile the cases); Note, supra note 2, at 354 n.28 (the two cases have never been adequately reconciled).

In Braunfeld, the Court refused to grant an exemption from a Sunday closing law to religious persons whose beliefs forbade them from working on Saturdays, despite the obvious resulting economic hardship. In rejecting the challenge, the Court noted simply that mere inconvenience, economic hardship, or competitive disadvantage was insufficient to compel exemption. 366 U.S. at 605-06. The Court stated that “the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.” Id. at 605.

In Sherbert, on the other hand, the Court created an exemption from a state unemployment compensation law for a Seventh-Day Adventist whose religious beliefs forbidding work on Saturdays also resulted in economic consequences. Under the state unemployment compensation scheme, the religious adherent would be disqualified from receiving unemployment-compensation benefits if she refused Saturday employment. This disqualification placed the claimant in the position of having to choose between adhering to her religious beliefs and forfeiting state benefits, on the one hand, and accepting work in disregard of her religious convictions on the other. The Court concluded that imposing his choice on the appellant was unconstitutional. 374 U.S. at 410. In Sherbert, unlike Braunfeld, economic disadvantage was enough to compel exemption.

The Court's apparent inconsistencies do not end with Sherbert and Braunfeld. Other cases, including two involving the Amish, have similarly led to discordant results. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that the state's interest in compulsory education was insufficient to override the interest of the Amish in removing their children from public schools. Id at 235-36. Yet, in United States v. Lee, 455 U.S. 252 (1982), the Court upheld the constitutionality of the application of social security taxes to the Amish against their religious objection, although the only governmental interest involved was appently ease of administration. Id at 258.

45. 406 U.S. 205 (1972).

46. Strossen, , “Secular Humanism” and “Scientific Creationism”: Proposed Standards for Reviewing Curriculum Decisions Affecting Students' Religious Freedom, 47 Ohio St. L.J. 333, 388–89 (1986)Google Scholar (explaining that the “ruling in Yoder was firmly anchored to the special situation of the Amish faith” and describing this ruling as tied to these particular facts).

47. Yoder, 406 U.S. at 236.

48. See supra text accompanying notes 40-42 (discussing Sherbert and its role in the development of exemptions from free exercise protection).

49. 450 U.S. 707 (1981) (denial of unemployment compensation to a Jehovah's Witness who quit a job that entailed producing weapons because it conflicted with his religious beliefs violated the free exercise clause).

50. 480 U.S. 136 (1987) (denial of unemployment compensation, to Seventh-Day Adventist fired for refusing to work on Saturday violated free exercise clause).

51. 109 S. Ct. 1514 (1989) (denial of unemployment compensation to Christian who refused to work on Sundays violated free exercise clause even though the refusal was not based on the tenets of a particular Christian sect).

52. Hobbie, 480 U.S. at 146 (“[T]he state may not force an employee ‘to choose between following the precepts of her religion and forfeiting benefits, … and abandoning one of the precepts of her religion in order to accept work.’ “ (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963))); Thomas, 450 U.S. at 717-18 (conditioning a benefit upon religiously proscribed conduct or denying a benefit because of religiously compelled conduct places a substantial burden on the free exercise of religion); Sherbert, 374 U.S. at 410 (“[N]o state may ‘exclude individual … members of any … faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.’“ (quoting Everson v. Board of Educ, 330 U.S. 1, 16 (1947)); see also Frazee, 109 S. Ct. at 1516 (citing Hobbie, Thomas and Sherbert).

53. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985) (provisions of the FLSA regarding minimum wages, overtime, and recordkeeping may be compiled with without burdening the religious rights of the regulated parties).

54. United States v. Lee, 455 U.S. 252 (1982) (state's limitation on religious liberty in requiring Amish to pay taxes that fund social security benefits was justified by the government's showing that denying such exemptions was essential to the government's interest in providing these benefits).

55. Bowen v. Roy, 476 U.S. 693 (1986) (free exercise clause is not violated by statutory requirement that a state agency use social security number in administering federal food stamp and welfare programs, notwithstanding that the use of social security numbers violates a central tenet of Native American religious belief, which asserts that using numbers harms an individual's spirit). Bowen is somewhat ambiguous however, as to the extent that it retreats from Sherbert. Apparently there were enough votes to indicate that a majority of the Court might recognize the free exercise claim of a food stamp applicant not to apply for and use a social security number. Id. at 714-15 (Blackmun, J., concurring in part); Id. at 728-29 (O'Connor, J., concurring in part and dissenting in part, joined by Brennan and Marshall, J.J.); Id. at 733 (White, J., dissenting). Justice Blackmun, however, considered the issue moot and a four-Justice plurality actually rejected this claim. See also Laycock, , A Survey of Religious Liberty in the United States, 47 Ohio St. L.J. 409, 429 (1986)Google Scholar (“If the trial court's findings on remand persuade [Justice] Blackmun that the case is not moot, there appear to be five votes to apply the compelling interest test and invalidate the requirement that conscientious objectors personally apply for, and use their social security number.”).

56. McConnell, , Neutrality Under the Religion Clauses, 81 Nw. U. L. Rev. 146, 153 (1986)Google Scholar [hereinafter McConnell, Neutrality] (“The Court frequently [especially recently] rejects free exercise challenges even when the government's secular programmatic interest is relatively weak.”).

57. O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987) (prison regulations prohibiting Islamic from attending religious services do not violate prisoners' rights under the free exercise clause); Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.”).

58. Jimmy Swaggart Ministries v. Board of Equalization of Cal., 110 S. Ct. 688, 698 (1990) (establishment clause does not prohibit imposition of state sales tax on religious organization's sale of religious literature); Bob Jones University v. United States, 461 U.S. 574 (1983) (denial of tax-exempt status to religiously affiliated university that maintained racially discriminatory policies does not violate free exercise clause).

59. See, e.g., Kamenshine, , Scrapping Strict Review in Free Exercise Cases, 4 Const. Commentary 147, 154 (1987)Google Scholar (“[T]he Supreme Court has shown little enthusiasm for strict review in post-Sherbert and Yoder decisions.”); Stone, supra note 1, at 994 (“If one looks to the Court's results, rather than its rhetoric, however, one sees that the actual scrutiny is often far from strict.”).

60. 476 U.S. 693 (1986).

61. 485 U.S. 439 (1988).

62. See supra note 55.

63. Lyng, 485 U.S. at 441-42.

64. Bowen, 476 U.S. at 699; Lyng, 482 U.S. at 448 (quoting Bowen, 476 U.S. at 699).

65. As Professor Lupu indicates, this is not a minor category. See Lupu, Burdens, supra note 43, at 945 (the characterization of Lyng as an “internal procedures” case demonstrates the breadth of that category).

66. Bowen, in fact, came fairly close to rejecting Sherbert altogether. The Bowen Court was badly fragmented on a second free exercise issue raised by the claimants — specifically, whether the government could force them to apply for and use social security numbers in contravention of their religious beliefs. See supra note 55. The prevailing opinion in Bowen announced that “the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.” Bowen v. Roy, 476 U.S. 693, 707-08 (1986). As Justice O'Connor indicated in dissent, this standard relegated free exercise review to the “barest level of minimum scrutiny that the Equal Protection Clause already provides.” Id. at 727 (O'Connor, J., concurring in part and dissenting in part). Bowen's flirtation with minimum scrutiny was later ostensibly rejected. Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987) (quoting the above statement from Justice O'Connor's partial concurrence in Bowen in rejecting Bowen's standard); see also Frazee v. Illinois Dep't of Employment Sec., 109 S. Ct. 1514, 1518 (1989) (stating that the state interests must be sufficiently compelling to override a legitimate free exercise claim).

67. Bowen v. Roy, 476 U.S. 693, 708 (1986).

68. Bowen's characterization of Sherbert and Thomas as merely discrimination cases was later rejected in Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 141-43 & 142 n.7 (1987). However, Smith II, 110 S. Ct. 1595, 58 U.S.L.W. 4433 (1990), suggests that Bowen's narrow view of Sherbert and the other unemployment cases is very much alive. Citing Bowen, the Smith II Court announced: “[O]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Id. at 1603, 58 U.S.L.W. at 4436-37 (citing Bowen v. Roy, 476 U.S. 693, 708 (1986)).

In fact, in Smith II the Court suggested that even Yoder was not a true free exercise exemption case but rather was based on a combination of rights of free exercise along with the rights of parents to direct the upbringing of their children. 110 S. Ct. at 1602 n. 1, 58 U.S.L.W. at 4436 n.1.

69. 110 S. Ct. 1545, 58 U.S.L.W. 4433 (1990).

70. The most recent Smith opinion marks the second time the case has been before the Court. In its first round, the Court signalled its eventual holding in suggesting that free exercise protection would extend to activities that were otherwise “valid.” Employment Div., Dep't of Human Resources of Oregon v. Smith, 480 U.S. 660, 671 (1988) [hereinafter Smith I]. The Court, nevertheless, remanded the case for a determination of whether peyote smoking for religious purposes would be legal in Oregon. Id. at 673-74. On remand the Oregon Supreme Court held that peyote smoking in Oregon was illegal but vindicated the free exercise claim, ostensibly applying the Sherbert standard. Smith v. Employment Div., 763 P.2d 146, 148 (Or. 1988).

71. See supra note 68. The Court also distinguished Sherbert on the grounds that statutory benefit cases invite consideration of the particular circumstances behind an applicant's unemployment and, therefore, lend themselves “to individualized government assessment of the reasons for the relevant conduct.” 110 S. Ct. at 1597, 58 U.S.L.W. at 4436. The Court's apparent argument is that a statutory “mechanism for individualized exemptions,” Id. at 1603, 58 U.S.L.W. at 4436 (quoting Bowen, 476 U.S. at 708), might support a constitutional requirement for free exercise exemptions. The logic behind this contention is not readily apparent.

72. 110 S. Ct. at 1600, 58 U.S.L.W. at 4436 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).

73. 110 S. Ct. at 1603, 58 U.S.L.W. at 4436-37 (citations omitted).

74. Id. at 1607, 58 U.S.L.W. at 4441 (O'Connor, J., concurring).

75. Id. at 1603, 58 U.S.L.W. at 4437.

76. E.g., Pepper, supra note 17, at 308.

77. E.g., Tushnet, Religion, supra note 9, at 717.

78. E.g., Pepper, supra note 17, at 326.

79. See Pfeffer, supra note 28. The commentators differ, as will be discussed subsequently, only in asserting that the sincerity and definition concerns do not outweigh the need for a more stringent free exercise review. See infra notes 132-48 & 200-19, and accompanying text.

80. Pepper, supra note 17, at 335-36.

81. See, e.g., Tushnet, Religion, supra note 9, at 718 (“There is a “fundamental difficulty” in the reduction principle's denying that the first amendment text affirms “a distinction between religion and other forms of expression.”).

82. See Widmar v. Vincent, 454 U.S. 263, 284 (1981) (White, J., dissenting”) (“[Tlhe Religion Clause would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.”); Clark, , Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 336 (1969)CrossRefGoogle Scholar (suggesting that such a textual interpretation would be redundant).

83. Admittedly, whether the source of the limitation is the free exercise clause or the establishment clause is not clear. See, e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979) (claiming “the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine” and opting for “neutral principles of law” when settling church property disputes); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 (1976) (when faced with a church's decision to defrock a bishop, court looked to First and Fourteenth Amendments in stating that “civil courts shall not disturb the decisions of [the church] in their application to the religious issues of doctrine or polity before them”); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (“Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property [because] there are neutral principles of law … which can be applied without ‘establishing’ churches to which property is awarded.”).

84. See Bowen v. Roy, 476 U.S. 693, 703 (1986) (“[H]istorical instances of religious persecution and intolerance … gave concern to those who drafted the free exercise clause.”); see also Douglas v. City of Jeanette, 319 U.S. 157, 159 (Jackson, J., concurring) (1943) (“[T]he First Amendment separately mention[s] free exercise of religion [because of the] history of religious persecution ….”).

85. One case, in fact, does fit the description of a law improperly singling out religion for disfavored treatment. McDaniel v. Paty, 435 U.S. 618, 629 (1978) (law prohibiting clergy from holding public office held violative of the free exercise clause).

86. Ingber, supra note 10, at 242-43.

87. See New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976) (“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations [subject to their passing a rational-relationship test] ….”).

88. See Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (“Neither the First Amendment nor the Fourteenth Amendment mandates a right of access [for the press] to government information or sources of information within the government's control.”); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 798-801 (1978) (Burger, C.J., concurring) (“[T]he history of the [press] clause does not suggest that the authors contemplated a ‘special’ or ‘institutional’ privilege.”); Branzburg v. Hayes, 408 U.S. 665, 683, (1972) (The press clause does not create a special privilege from laws of general applicability.); see also Tribe, L., American Constitutional Law 963 (2d ed. 1988)Google Scholar (“The prevailing view is that the press enjoys no special status under the Constitution.”). But see Stewart, , Or of the Press, 26 Hastings L.J. 631, 633–34 (1975)Google Scholar (the press clause does confer a special status, and a refusal to acknowledge this would make the press clause a “constitutional redundancy”).

89. See L. Tribe, supra note 88, at 963 (“To be sure, despite its separate protection by the first amendment, the prevailing view is that the press enjoys no special status under the Constitution. But the press is protected at least from invidious discrimination)” (citations omitted)).

90. Smith II, 110 S. Ct. 1595, 1599-600, 58 U.S.L.W. 4433, 4435 (1990).

91. Choper, supra note 4, at 676 (footnote omitted).

92. The establishment clause, for example, was intended to protect state churches from a potentially superseding federal establishment. See generally Cord, R., Separation of Church And State: Historical Act And Current Fiction 6 (1982)Google Scholar (amendments proposed at the State Ratifying Conventions “clearly indicated that the states wanted to prevent the establishment of a national religion or the elevation of a particular religious sect to preferred status”).

93. See, e.g., McConnell, Accommodation, supra note 9, at 21-22 (“The principle objects of the Religion Clauses … were to prevent coercion (and lesser forms of government pressure) in matters of religion and to encourage a multiplicity of religious sects.”).

94. See Curry, T., The First Freedoms: Church And State In America To The Passage Of The First Amendment 34, 48–50 (1986)Google Scholar (requisite oaths of allegiance for settlers and for legislators in Virginia and in Maryland, respectively, precluded Catholics, who could not pledge to denounce all spiritual power to a foreign prince, and Quakers, who could not subscribe to any oath, from settling or from holding elected office in those states); Stokes, A. & Pfeffer, L., Church And State In The United States 37 (1964)Google Scholar (many states used religious tests, such as “belief in the Bible's inspiration,” as qualifications for holding public office); Bradley, , The No Religious Test and the Constitution of Religious Liberty: A Machine That Has Gone Of Itself, 37 Case W. Res. L. Rev. 674, 681–94, 714–20 (1987)Google Scholar (much debate at the Constitutional convention concerning religious requirements for holding public office stemmed from the fact that although religious tests were essentially compatible with notions of “freedom of conscience” and “religious liberty” prevalent at the time, some prominent delegates believed such tests were unjust).

95. The one exception to this is the recognition of possible religious objection to military conscription, but that issue has its own peculiar history. In 1789, Madison proposed a constitutional amendment providing for conscientious-objector exemption from military service for “religiously scrupulous” persons. Miller, W., The First Liberty, 123 (1986)Google Scholar. The significance of this as it concerns the historical debate surrounding constitutionally compelled exemptions, however, is not clear. On the one hand, it suggests that the framers were aware of the possibility of conscientious objection to religiously neutral laws. On the other, it indicates that even if the framers were aware of this possibility, they did not view the free exercise clause as addressing the issue. Indeed, the fact that a conscientious-objection amendment was proposed suggests that the free exercise clause was not thought, by itself, to provide for religious exemptions from neutral laws. The rejection of the proposed amendment, in turn, may suggest that the framers also rejected the principle that religious activities should be entitled to special constitutional protection from the application of religiously neutral laws.

Professor McConnell cites the history surrounding the conscientious-objector provision as evidence that the framers indicated that “preferential treatment for religion in some matters is desirable.” McConnell, Accommodation, supra note 9, at 22. This may be true and it may suggest that the framers intended that there be some room for legislatively created exemptions without raising establishment clause concerns. Professor McConnell parenthetically adds, however, that this history may indicate that preferred treatment for religion is “sometimes mandatory.” Id. On this point, as the foregoing suggests, he is on less solid ground.

96. Ahlstrom, S., A Religious History Of The American People, 366–68 (1972)Google Scholar; Boorstin, D., The Lost World Of Thomas Jefferson 151–56 (1960)Google Scholar.

The influence of natural law on constitutional notions of religious freedom may also be found in some of the states' constitutions as they existed during the late 18th century. Some of these constitutions provided that protection should be given to religious practices not “inconsistent with the peace or safety of this State.” E.g., 1 Poore, B.. Federal And State Constitutions, Colonial Charters, And Other Organic Laws Of The United States 383 (1972)Google Scholar (Ga. Const, art. LVI) 1777; 2 Poore, B., Federal And State Constitutions, Colonial Charters, And Other Organic Laws Of The United States 1338 (1972) (N.Y. Const, art. XXXVIII (1777))Google Scholar. The limitation of constitutional protection to acts that do not offend peace and safety appears to reflect natural law philosophical belief in the co-extensiveness of religious liberty and temporal authority. Professor McConnell argues that this suggests a right of “religiously based exemptions from facially neutral legislation …” McConnell, Neutrality, supra note 56, at 151 n.26. However, this conclusion is tenuous without a clearer definition of what was considered peace and safety. Given that state laws at the time were primarily criminal and not regulatory, violations of secular requirements might very well have been considered outside the public order.

97. 98 U.S. 145 (1878).

98. 133 U.S. 333 (1890).

99. Id. at 341-42.

100. Id. at 342.

101. The evangelical philosophy of Roger Williams exerted significant influence. See Howe, M., The Garden And The Wilderness 7 (1965)Google Scholar (As a codification of the metaphor “[t]he wall of separation between church and state,” the first amendment embraced Roger Williams's evangelical affirmation of the importance of protecting churches from worldly corruption no less than it adopted the Enlightenment views of Thomas Jefferson.). Professor Pepper argues that the religion clauses may have been a compromise between the two competing philosophies. The establishment clause, he argues, represented the deist position that the state be secular, while the free exercise clause was the quid pro quo for the evangelical school, thus providing extraordinary shelter for religion. Pepper, supra note 17, at 305-06. Professor Pepper's theory, although plausible, is, as he recognizes, inconclusive as to the examination issue, in part because it assumes the framers were aware of the constitutional-exemption issue.

102. Cf. Sherbert v. Verner, 1374 U.S. 398, 403-06 (1963) (South Carolina unemployment compensation legislation disqualified applicant who failed to accept suitable work because it would require working on the sabbath).

103. Cf. Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972) (Wisconsin compulsory school attendance law required Amish to keep their children in a formal education system until the age of sixteen).

104. See T. Curry, supra note 94, at 79 (“[The] consensus as to religious freedom was firmly embedded in a Christian and Protestant world view. Colonial writers proclaimed liberty of conscience, but they grounded that liberty in the unexamined assumption that the legal systems of the time would uphold and maintain a Christian and Protestant State.”).

105. U.S. Const., art. VI, cl. 3.

106. See Note, , Developments in the Law — Religion and the State, 100 Harv. L. Rev. 1606, 1719 (1987)Google Scholar (“[I]n every instance, accommodation appears both to serve and to undermine equality.”); see also McConnell, Accommodation, supra note 9 at 8-13 (discussing the burden placed on religious adherents by “neutral” laws); Pepper, supra note 17, at 314 (majority inadvertently burdening minority through facially neutral laws). The strongest defense of the free exercise clause as a provision assuring the protection of minority religions is found in Galanter, , Religious Freedom in the United States: “A Turning Point,” 1966 Wis. L. Rev. 217Google Scholar.

107. Pepper, supra note 17, at 314.

108. Tushnet, , The Emerging Principle of Accommodation of Religion (Dubitante) 76 Geo L.J., 1691, 1700 (1988)Google Scholar [hereinafter Tushnet, Emerging Principle].

109. E.g., McConnell, Accommodation, supra note 9, at 14-24 (arguing that accommodation of religion follows directly from an interpretation of the religion clauses based on religious pluralism). While not relying heavily on pluralism, Professor Tushnet acknowledges that pluralism supports accommodation. Tushnet, Emerging Principle, supra note 108, at 1699-1701.

110. Walz v. Tax Comm'n, 397 U.S. 664, 689 (1970) (Brennan, J., concurring); see also Patten, Van, In the End is the Beginning: An Inquiry Into the Memory of the Religion Clauses, 27 St. Louis U.L.J. 1, 84 (1983)Google Scholar (“The diversity of private associations, including religious associations, provides a balance in the extended republic against the domination of any particular group.” (footnote omitted)). For an excellent detailed discussion of religious groups, see Gedicks, , Toward a Constitutional Jurisprudence of Religious Group Rights, 1989 Wis. L. Rev. 99Google Scholar.

111. Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984).

112. See Gedicks, supra note 110, at 161-62; McConnell, Accommodation, supra note 9, at 17-20 (discussing religion as a source of public virtue); Tushnet, Religion, supra note 9, at 73537 (discussing religion as a source of moral responsibility and governmental stability).

113. See generally Michelman, , The Supreme Court 1985 Term: Foreword: Traces of Self-Govemment, 100 Harv. L. Rev. 4, 17–36 (1986)CrossRefGoogle Scholar (discussing republicanism in American constitutional thought). According to Professor McConnell, the civic republican conception, that there should be a diversity of sects from which moral ideas could be generated, shaped the vision of the framers of the religious clauses, particularly Madison. According to McConnell, “l]iberal political theory thus favored religion, but it did not favor any one religion. [Rather], [i]t guaranteed religious freedom in the hope and expectation that religious observance would flourish, and with it morality and self-restraint among the people.” McConnell, Accommodation, supra note 9, at 19-20. The values of religious pluralism are also discussed in Marty, M., Religion And Republic (1987)Google Scholar.

114. Garet, , Communality and Existence: The Rights of Groups, 56 S. Cal. L. Rev. 1001, 1034–35 (1983)Google Scholar; see also Linder, , Freedom of Ass'n After Roberts v. United States Jaycees, 82 Mich. L. Rev. 1878, 1880–81 (1984)CrossRefGoogle Scholar.

115. See, e.g., Esbeck, , Establishment Clause Limits on Governmental Interference With Religious Organizations, 41 Wash. & Lee L. Rev. 347, 369–70 (1984)Google Scholar (socio-political groups such as those based on an ethnic or political alliance also form intermediate communities which may shield the individual from the state).

116. Tushnet, Emerging Principle, supra note 108, at 1696.

117. Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 311-15 (1978) (plurality opinion) (“[O]ur tradition and experience lend support to the view that the contribution of diversity [at an academic institution] is substantial.”).

118. See Garet, supra note 114, at 1034-35 (“[A] decision such as Yoder respects a group right referred back to groupness or communality as its underlying claiming good.”). Marshall, , Discrimination and the Right of Association, 81 N.W. U.L. Rev. 68, 85–88 (1986)Google Scholar (arguing that a “right of cultural association,” which would include national origin, race, or religious affiliation, ought to be recognized).

119. See e.g., Tushnet, Religion, supra note 9, at 736-38 (arguing that the republican tradition can be invoked to “establish … a different balance between individualism and community’ [a balance that is] grounded in the Constitution.”).

120. McConnell, Accommodations, supra note 9, at 15.

121. Garvey, supra note 7, at 779. Not all religions, of course, adopt the notion of transcendental authority. See, e.g., Johnson, , Concepts and Compromise in First Amendment Religious Doctrine, 72 Calif. L. Rev. 817, 832 (1984)CrossRefGoogle Scholar (stating that some religions — Buddhism, for example — have nothing “to do with the concept of a creator God”).

122. Garvey, supra note 7, at 794-95.

123. Choper, , Defining “Religion” in the First Amendment, 1982 U. III. L. Rev. 579, 599Google Scholar; see also Garvey, supra note 7, at 793 (the fear of extratemporal consequences as a cause of suffering “provides an explanation for the uniqueness of religious liberty”).

124. Garvey, supra note 7, at 795-96.

125. See Welsh v. United Slates, 398 U.S. 333, 337 (1970) (objections to killing in war based upon ethical and moral beliefs); United States v. O'Brien, 391 U.S. 367, 370 (1968) (opposition to draft based on political and social objection to war).

126. Gray v. Dobbs House, 357 N.E.2d 900, 903 (Ind. Ct. App. 1976) (“Although parental obligations no doubt constitute good personal reason for termination of employment, they nevertheless lack the objective nexus with employment envisioned by the Act.”); cf. Karst, , The Freedom of Intimate Association, 89 Yale L.J. 624 (1980)CrossRefGoogle Scholar (identifying intimate personal relationships as a source of constitutional protection).

127. As Gail Merel has warned:

Government is ultimately premised upon the subordination of individual conscience to majority rule. Safeguards can, of course, be provided for minority rights, and checks may be placed on purely majoritarian rule; in the end, however, government functions by the passage of a single law, the making of a final decision, the determination of a particular course of action. To permit special exceptions for activities actually singled out by the first amendment is, in itself, administratively difficult. But to protect the exercise of conscience in all things would effectively render every citizen, at his own option, a law unto himself.

Merel, , The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. Chi. L. Rev. 805, 812 (1978) (citations omitted)CrossRefGoogle Scholar.

128. Garvey, supra note 7, at 797.

129. Id. at 798.

130. Id. (“The … problem of understanding natural events in a way wholly at odds with the rest of society occurs frequently in a religious context.”)

131. Id. at 801 (“[F]or the claimant, there is no question of choice. We protect their freedom, then, because they are not free.”).

132. See generally Camus, A., The Myth Of Sisyphus And Other Essays 119 (O'Brien, J. trans. 1969)Google Scholar (attacking the purported certainty of rationality and examining human existence in a world whose understanding is beyond human reasoning); Rorty, R., Consequences Of Pragmatism 160–75 (1982)Google Scholar (detailed discussions about the doctrines of pragmatism, relativism, and irrationalism); Singer, , The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 9, 30–38 (1985)Google Scholar (discussing the fallacy that rational consideration will ultimately lead to an objectively correct result in decision procedures).

133. See, e.g., M. Marty, supra note 113, at 46 (“Theological exceptions abound, but the psychology and sociology of American religion strongly reinforce the voluntaryistic outlook.”); Giannella, , Religious Liberty, Nonestablishment and Doctrinal Development, 81 Harv. L. Rev. 513, 517 (1968)CrossRefGoogle Scholar (“Religious voluntarism, of course, is an important aspect of the freedom of conscience guaranteed by the free exercise clause. But a broad interpretation of the establishment clause also gives vent to the social dimension of this value …”); Sandel, supra note 10, at 608 (“[T]he individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all…. [R]eligious beliefs worthy of respect are the product of free and voluntary choice by the faithful …” (quoting Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985) (footnote omitted) (emphasis added)).

134. Garvey, supra note 7, at 794.

135. See, e.g., Weiss, supra note 5, at 622 (noting that, in attempting to set standards for religious exemption and necessarily defining “religion” in the process, certain religious groups will be excluded and freedom of religion will thereby be harmed); Heins, supra note 6, at 166 (arguing that “to allow adjudication of the verity of beliefs would be to oppress the weaker or less popular faiths by treating them differently from the more popular ones, thereby ‘establishing’ the latter”).

136. A definition of religion will still be required in establishment clause cases. See, e.g., Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (teaching of transcendental meditation in public schools held to constitute establishment of religion).

137. See, e.g.. United States v. Seeger, 380 U.S. 163 (1965) (defining religion for purposes of conscientious objector provision in the Selective Service Act).

138. Ingber, supra note 10, at 241.

139. United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring).

140. 80 U.S. (13 Wall.) 679 (1871).

141. Id. at 728.

142. 319 U.S. 624 (1943).

143. Id. at 642 (1943).

144. 322 U.S. 78, 92-95 (1944) (Jackson, J., dissenting).

145. Braunfeld v. Brown, 366 U.S. 599, 609 (1961).

146. Professor Pepper states “[l]urking behind the inconsistency in the last twenty-five years of Supreme Court free exercise doctrine may be an unwillingness to confront the likelihood of insincere claims.” Pepper, supra note 17, at 325.

147. United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring).

148. McConnell, Neutrality, supra note 56, at 156.

149. Lupu, Burdens, supra note 43, at 953-60.

150. Pepper, supra note 17, at 331-32.

151. See infra notes 202-22 and accompanying text.

152. These are substantially the facts of Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981).

153. Buckley v. Valeo, 424 U.S. 1, 16 (1976). See also Polsby, , Buckley v. Valeo: The Special Nature of Political Speech, 1976 Sup. Ct. Rev. 1, 21Google Scholar (expenditures of money are themselves “speech”). For a criticism of this position, see Wright, , Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001, 1005 (1976)CrossRefGoogle Scholar (“Nothing in the first amendment… commits us to the dogma that money is speech.”).

154. Karst, supra note 27, at 20, 23-26 (“The principle of equal liberty of expression underlies important purposes of the first amendment.” These purposes are “self-government,” “the search for truth,” and “self-expression and equal dignity.”).

155. Id. at 26; see Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). (“But above all else, the first amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”); see also Widmar v. Vincent, 454 U.S. 263, 267-68 & 267 n.5 (1982) (same); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980) (“[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.” (footnote omitted)); Erzonoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975) (same); cf. Stone, , Restrictions of Speech Because of its Content: The Peculiar Case of Subject Matter Restrictions, 46 U. Chi. L. Rev. 81, 83 (1978)CrossRefGoogle Scholar [hereinafter Stone, Restrictions] (questioning whether the Supreme Court should apply the same standard of review used to test content-based restrictions defined “in terms of a particular viewpoint, idea, or item of information” to test those defined “in terms of expression about an entire subject”). See generally Farber, , Content Regulation and the First Amendment: A Revisionist View, 68 Geo. L.J. 727, 727 (1980)Google Scholar (“‘[A]bove all else, the first amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.’ That, in a nutshell, is the principle of content neutrality.” (citation omitted)); Redish, , The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113, 114 (1981)CrossRefGoogle Scholar (examining “the nature of content discrimination” and the appropriate standard of judicial review); Stephan, , The First Amendment and Content Discrimination, 68 Va. L. Rev. 203 (1982)Google Scholar (examining the doctrine of content-neutrality); Stone, , Content Regulation And The First Amendment, 25 Wm. & Mary L. Rev. 189, 189 (1983)Google Scholar (“Perhaps the most intriguing feature of contemporary first amendment doctrine is the increasingly invoked distinction between content-based and content-neutral restrictions on expression.”).

156. See, eg., Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (no violation of free exercise clause where Minnesota Agricultural Society rule required members of International Society for Krishna Consciousness to confine solicitation activities and sales and distribution of religious materials to a fixed location); Prince v. Massachusetts, 321 U.S. 158 (1944) (no violation of free exercise clause where Massachusetts child-labor laws precluded Jehovah's Witness from supplying minor girl with religious periodicals).

157. 321 U.S. 158 (1944).

158. Id. at 164.

159. Texas Monthly, Inc. v. Bullock, 109 S. Ct. 890, 905 (1989) (“Texas' sales tax exemption for religious publications violates the First Amendment… ”); Id. (Blackmun, J., concurring) (the case “at issue touches upon values that underlie three different clauses of the First Amendment: the Free Exercise Clause, the Establishment Clause, and the Press Clause. As indicated by the [four] different opinions issued in this case today, harmonizing these several values is not an easy task.”).

160. See Meiklejohn, A., Political Freedom 96 (1960)Google Scholar (“It is that prohibition [against interference with people's right to participate in electoral activities that] die first amendment expresses in its guarding of the freedom of speech, press, assembly, and petition.”); see also Bork, , Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 26 (1971)Google Scholar (The framers “indicated a value when they said that speech in some sense was special and when they wrote a Constitution providing for representative democracy, a form of government that is meaningless without open and vigorous debate about officials and their policies.”); Kalven, , The New York Times Case: A Noted on the “Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 208Google Scholar (“The [First] Amendment has a ‘central meaning’ — a core of protection of speech without which democracy cannot function …”); Meiklejohn, , The First Amendment is An Absolute, 1961 Sup. Ct. Rev. 245, 256Google Scholar (“[T]here are many forms of thought and expression within the range of human communications from which the voter derives the knowledge, intelligence, sensitivity to human values: the capacity for sane and objective judgment which, as far as possible, a ballot should express. These … must suffer no abridgement of their freedom.”); Stone, Restrictions, supra note 155, at 101 (one of the purposes of free speech is to allow the “marketplace of ideas” to function and it is this process which is “essential to the effective operation of a self-governing society”).

161. See Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) (while political debate is necessary to our system of government, the establishment clause was intended to protect the democratic system from “debate and division” along religious lines); Walz v. Tax Comm'n, 397 U.S. 664, 694 (1969) (Harlan, J., concurring) (“What is at stake [in the establishment clause cases] as a matter of policy is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.”); Freund, , Public Aid to Parochial Schoob, 82 Harv. L. Rev. 1680, 1692 (1969)CrossRefGoogle Scholar (“While political debate and division is normally a wholesome process for reaching viable accommodations, political division on religious lines is one of the principal evils that the first amendment sought to forestall.”).

162. For support for this proposition, see Perry, M., Morality, Politics, And Law: A Bicentennial Essay 7 (1988)Google Scholar (arguing that moral beliefs, including those religious in character, must be a principle ground for political deliberation); Gaffney, , Political Divisions Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis U.L.J. 205, 224–34 (1980)Google Scholar (arguing that the “political divisiveness” test, which allows courts to invalidate legislation that might create controversy among religious groups, is bad public policy); Gedicks, & Hendrix, , Democracy, Autonomy, and Values: Some Thoughts on Religion and Law in Modem America, 60 S. Cal. L. Rev. 1579, 1587 (1987)Google Scholar (arguing for “reintegrating serious religious thought and belief into our culture, particularly our political culture, as legitimate predicates for public action”); Greenawalt, , The Limits of Rationality and the Place of Religious Conviction: Protecting Animals and the Environment, 27 Wm. & Mary L. Rev. 1011 (1985–1986)Google Scholar [hereinafter, Greenawalt, Rationality] (“[P]eople should feel as free to rely on religious perspectives as on other perspectives that help determine political positions.”).

163. See, e.g., McConnell, Neutrality, supra note 56, at 149 (giving as an example of neutral protection of religion a case in which religious speakers seeking access to public parks needed only to ask for the same access accorded any other speaker; Pfeffer, supra note 28, at 1116 (“[T]he Court [will not necessarily] accept a free exercise claim when in a similar fact situation it has rejected free speech claims.”). But see Greenawalt, , Religion as a Concept in Constitutional Law, 72 Calif. L. Rev. 753, 777 (1984)CrossRefGoogle Scholar [hereinafter Greenawalt, Religion] (“Any assumption that the broader liberty of conscience derived from the free speech clause will always encompass a valid free exercise claim is definitely mistaken in the area of communication and very likely wrong in the area of belief.” (footnote omitted)); Pfeffer, supra note 28, at 1115 (arguing that after Yoder the free exercise clause appeared “to have achieved elevated status and more than equal significance in the scheme of first amendment protection.”)

164. Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707 (1981).

165. Id. at 713 (“Only beliefs rooted in religion are protected by the Free Exercise Clause.”).

166. Wisconsin v. Yoder, 406 U.S. 205 (1972).

167. The Yoder Court specifically stated that a parallel non-religious claim would be denied. Id. at 215 (“A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations.”).

168. See supra notes 154-55 and accompanying text.

169. See Note, supra note 2, at 369 (“Any religion-based exemption [from law] arguably has effects outside the religious territory.”).

170. See Greenawalt, Religion, supra note 163, at 1020.

171. See sources cited supra note 163.

172. See McConnell, Accommodation, supra note 9, at 19 (“It was accordingly widely thought by the founders that republican self-government could not succeed unless religion continued to foster a moral sense in the people.”); Tushnet, Religion, supra note 9, at 702 (suggesting “that a reconstituted law of religion might draw on the republican tradition to alleviate existing intellectual disarray by providing to nonbelievers as well as believers a view of the law that affirms the connectedness that religious belief mobilizes and that liberalism denies”).

173. 827 F.2d 1058 (6th Cir. 1987), cert. denied, 108 S. Ct. 1029 (1988) (plaintiffs argued “that they have sincere religious beliefs which are contrary to the values taught or indicated by the reading textbooks [used in the public school system,] and that it is a violation of the religious beliefs and convictions of the plaintiff students to be required to read the books.”).

174. See generally Perry, M., The Constitution, The Courts and Human Rights IX, (1982)Google Scholar (questioning “the legitimacy of constitutional policymaking (by the judiciary) that goes beyond the value judgments established by the framers of the written Constitution (ex-traconstitutional policymaking).”).

175. Lupu, Keeping the Faith, supra note 4, at 769.

176. 80 U.S. (13 Wall.) 679 (1871), quoted in supra text accompanying note 141.

177. 319 U.S. 624, 642 (1943), quoted in supra text accompanying note 143.

178. See supra notes 40-75 and accompanying text; cf. Kurland, , The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 Vill. L. Rev. 3 (1978)Google Scholar (arguing that the Constitution has been irrelevant to judgments of the Supreme Court in the areas of freedom of religion and separation of church and state.)

179. Smith II, 110 S. Ct. 1595, 1605, 58 U.S.L.W. 4433, 4437-38 (1990).

180. Professor Laurence Tribe characterizes the right of speech as the “Constitution's most majestic guarantee.” L. Tribe, supra note 88, at 785.

181. See supra notes 32-39 and accompanying text.

182. 461 U.S. 574, 602-05 (1983) (non-profit private schools that prescribe and enforce facially discriminatory admissions standards on the basis of religious doctrine may be denied favorable tax treatment).

183. 357 U.S. 513 (1958).

184. Goldman v. Weinberger, 475 U.S. 503 (1986) (reasoning that the First Amendment does not require the military to accommodate those who wished to wear yarmulkes).

185. Curiously enough, Justice Stevens characterized Goldman's right to wear a yarmulke, in part, in speech terms. For Stevens, it was an “eloquent rebuke to the ugliness of anti-Semitism.” Id. at 510-11 (Stevens, J., concurring).

186. 393 U.S. 503 (1969).

187. Tushnet, Religion, supra, note 9, at 718. It also may be ill-advised to characterize all religious activity as speech, since legislatively created exemptions for religion might then be suspect under a content-neutrality speech analysis. See infra text accompanying note 202.

188. As Professor Ingber writes “[m]ost religious rituals, rites, or ceremonies … are likely to be recognized and protected as symbolic conduct.” Ingber, supra note 10, at 244 n.61 (citation omitted). He correctly cautions, however, that the right of speech is not implicated every time a person engaging in an activity “intends thereby to express an idea.” Id. (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968)).

189. See supra notes 32-39 and accompanying text for an account of the cases in which rights of conscience have been protected under the speech clause.

Several other cases suggest, however, that matters involving secular conscience may be protected under the rubric of religion. In Welsh v. United States, 398 U.S. 333 (1970), a claimant sought conscientious-objection exemption status from the draft based on his moral and ethical beliefs. The Court held that he was entitled to exemption under section 6(j) of the Universal Military Training and Service Act, although the statute authorized exemption only for those professing a religious objection to war. Id. at 340-43. Of similar effect is Torcaso v. Watkins, 367 U.S. 488 (1961), in which the Court recognized the right to refuse to take a religious oath on grounds of non-belief to be constitutionally protected under the free exercise clause.

Finally, in Thomas v. Review Bd of the Indiana Employment Security Division, 450 U.S. 707 (1981), the Court, under the free exercise clause, protected a Jehovah's Witness who objected to working in an armaments factory but was unable to articulate the nature of his religious objection. The Court protected the claim although there was evidence that the tenets of the Witness' faith did not bar this employment, and the Indiana Supreme Court had concluded the claimant's objection was based on non-religious grounds. Id. at 719.

190. See generally Schauer, F., Free Speech: A Philosophical Inquiry 134–35 (1982)Google Scholar.

[I]t is important to recognize not only the distinction but also the relationship between the strength of a right and the scope of a right…. The scope of a right is its range, the activities it reaches …. The strength of a right is its ability to overcome opposing interests (or values, or other rights) within its cope.”).

191. See Heffron v. International Soc'y for Krishna Consciousness., Inc., 452 U.S. 640 (1981) (“[T]he inquiry must involve not only ISKCON, but also all other organizations that would be entitled to distribute, sell, or solicit”). In Heffron, the Minnesota Supreme Court had originally upheld the right of the Hare Krishnas to engage in peripatetic solicitation at the Minnesota State Fair primarily because there were so few members of the sect present and the state's interests in preventing congestion and fraud was not severely threatened. International Soc'y for Krishna Consciousness, Inc., v. Heffron, 299 N.W.2d 79 (Minn. 1980), rev'd, 452 U.S. 640 (1981).

192. See L. Tribe, supra note 88, at 1247 n.36 (“[T]he right to disseminate ideas lies at the core of religious practice.”); Galanter, supra note 106, at 274 (“[B]elief, prayer, and worship … comprise … the central and essential core of religion.”).

193. Compare Bender v. Williamsport School Dist., 741 F.2d 538 (3d Cir. 1984), vacated on other grounds, 475 U.S. 534 (1986) (speech right to convene prayer group on public school property denied), with Sherbert v. Verner, 374 U.S. 398 (1963) (free exercise right to receive unemployment compensation benefits pursuant to state statute upheld despite religiously based unavailability for work).

194. Treating free exercise claims as expression may not entirely eliminate the constitutionally compelled exemption. In extraordinarily limited circumstances, the speech clause has been interpreted as requiring exemptions from otherwise neutral laws. Specifically, exemptions have been required from the application of disclosure requirements to unpopular groups on the theory that disclosure might open the group's membership or business contacts to reprisals and harassment. See Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 100-01 (1982) (Ohio Campaign Expense reporting law requiring political candidates to report contributors and recipients held not to apply to Socialist Workers Party because of probability of harassment and reprisal); NAACP. v. Alabama, 357 U.S. 449, 462-63 (1958) (NAACP's membership lists protected from state scrutiny because of past public hostility and reprisal).

The purpose behind the free speech exemption is to assure that controversial ideas are not driven from the marketplace. See Stone & Marshall, supra note 3 at 613 (“The potential to drive an unpopular ‘minor’ party out of existence is so severe that extraordinary measures are warranted to avoid that result.”). Accordingly, the standards for this exemption are extremely stringent — they demand a showing that without the exemption, the organization's existence would be threatened. Id.

195. Some answer to this issue might be found in Smith II, 110 S. Ct. 1595, 58 U.S.L.W. 4433 (1990), where the Court heartily endorsed the availability of legislative exemptions even as it was cutting back on constitutionally compelled exemptions. Id. at 1606, 58 U.S.L.W. at 4438. In practice though, the issue of the constitutionality of statutory exemptions for religion and religious activity has had mixed results before the Supreme Court. Compare Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (exemption from Civil Rights Act of 1964 allowing certain types of religious discrimination by religious employers upheld) and Gillette v. United States, 401 U.S. 437 (1971) (Selective Service Act exemption for conscientious objection upheld) with Texas Monthly, Inc. v. Bullock, 109 S. Ct. 890 (1989) (sales tax exemption for religious publications invalidated).

196. McConnell, Accommodations, supra note 9, at 3 (“[B]etween the accommodations compelled by the Free Exercise Clause and the benefits to religion prohibited by the Establishment Clause there exists a class of permissible government actions toward religion, which have as their purpose and effect the facilitation of religious liberty.”).

197. See Marshall, , “We Know It When We See It” The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 497 (1986)Google Scholar. For a criticism of the “no endorsement test,” see Smith, , Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement Test”, 86 Mich. L. Rev. 266 (1987)CrossRefGoogle Scholar (“[T]he ‘no endorsement’ test is riddled with analytical flaws that can only compound confusion and inconsistency afflicting the current establishment doctrine.”).

198. See Laycock, , Toward a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1416 (1981)CrossRefGoogle Scholar (“The state does not support or establish religion by leaving it alone.”); Marshall, & Blomgren, , Regulating Religious Organizations Under the Establishment Clause, 47 Ohio St. L.J. 293, 329–30 (1986)Google Scholar (exemptions for religious organizations may be an appropriate accommodation of church and, therefore, not unconstitutional).

199. Estate of Thornton v. Caldor, 472 U.S. 703, 710 (1985) (Connecticut statute that provided an absolute right to sabbath observers not to work on the sabbath violated the establishment clause because the primary effect was to advance a particular religious practice).

200. See King's Garden, Inc. v. FCC, 498 F.2d 51, 55 (D.C. Cit.), cert. denied, 419 U.S. 996 (1974). In this regard, Judge J. Skelly Wright's observation in addressing a claim that religious broadcasters should be exempt from FCC anti-discrimination requirements is notable: “[S]ponsorship is what this exemption accomplishes. It is a sure formula for concentrating and vastly extending the worldly influence of those religious sects having the wealth and inclination to buy up pieces of the secular economy.” Id. See also, Texas Monthly Inc. v. Bullock, 109 S. Ct. 890 (1989) (Texas sales tax exemption for religious publisher violates establishment clause since it does not provide similar benefits to non-religious publishers); Marshall & Blomgren, supra note 198, at 329-330 (exemptions for religious institutions, especially from regulations affecting the political process, the media, and other areas in which dissemination of ideas is important, confer benefits on these religious institutions).

201. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (holding that section 702 of Title VII of the Civil Rights Act of 1964, which exempted religious ‘organizations’ from a prohibition against religious discrimination in employment, did not violate the establishment clause).

202. 461 U.S. 540 (1983).

203. Id. at 546-51.

204. For an interesting effort to apply economic analysis to religion clause claims, see McConnell, & Posner, , An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L. Rev. 1 (1989)CrossRefGoogle Scholar.

205. See Choper, supra note 94; McCoy, & Kurtz, , A Unifying Theory for the Religion Clauses of the First Amendment, 39 Vand. L. Rev. 249 (1986)Google Scholar.

206. See McConnell, Neutrality, supra note 56, at 156.

207. See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987); Thomas v. Review Bd., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963).

208. 475 U.S. 503 (1986).

209. McConnell, Neutrality, supra note 56, at 156.

210. Id.

211. Id. at 157.

212. Pepper, supra note 17, at 325-31.

213. Professor Pepper advocates a bifurcated approach. Id. at 327-30. He suggests that when an exemption might invite fraudulent claims, such as exclusion from taxes, the recognition of the legitimacy of a claim for exemption should be relatively circumscribed. Id. at 328. In other cases, the Court should face this sincerity question directly by examining such factors as past conduct and by seeking the testimony of corroborating witnesses. Id. Pepper acknowledges the possibility of error in the sincerity inquiry but asserts that such error is “simply … a cost of granting a meaningful constitutional privilege in this area.” Id.

214. United States v. Ballard, 322 U.S. 78 92-95 (1944). (Jackson, J. dissenting) (“If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provides its most reliable answer.”), rev'd on other grounds, 329 U.S. 187 (1946).

215. Pepper, supra note 17, at 332.

216. Lupu, Burdens, supra note 43, at 936 (although many aspects of free exercise have been well canvassed, little has been written about the threshold requirement for all free exercise claims).

217. Id. at 953-60. Lupu also discusses the centrality inquiry that some courts have used in free exercise analysis along with religiosity and sincerity. Id. at 958-59.

218. Id. at 966-77.

219. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).

220. Lupu, Burdens, supra note 43, at 973-76. Lupu also argues that Sherbert, Thomas and Hobbie meet his common law test because they are an infringement on the modern day property concept of “entitlement.” Id. at 977-82. In contrast, government policies which create only “psychic pressure on a religious minority to conform to or to believe in general community norms” would not meet a common law burden inquiry. Id. at 964.

221. Id. at 971.

222. Id. at 970.

223. Id. at 972.

224. See infra notes 225-28 and accompanying text.

225. Carter, supra note, 8 at 985-92 (arguments are addressed to what author terms contemporary liberalism's treatment of religion); see also Gedicks & Hendrix, supra note 162, at 1604-05 (under objective legal analysis, religion appears irrational).

226. See, e.g., Tushnet, Religion, supra note 9, at 729-38 (recognizing the difficulty of fitting religion into constitutional law categories and suggesting that the existing confusion might be alleviated by interpreting the religion clauses under a unifying doctrinal or theoretical approach).

227. See Ingber, supra note 10, at 283 (“Constitutionalism … stresses the sanctity of individual choice, freedom and dignity … [R]eligion itself often is [inconsistent with this individualistic orientation].”); Sandel, supra note 10, at 610 (“Madison and Jefferson understood religious liberty as the right to exercise religious duties according to the dictates of conscience, not the right to choose religious beliefs. In fact, their argument for religious liberty relies heavily on the assumption that beliefs are not a matter of choice.”).

228. Carter, supra note 8 at 992.

229. See, eg.. Lemon v. Kurtzman, 403 U.S. 602, 622-23 (1971) (“Ordinarily political debate and division, however vigorous even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.”). For a critical account of the establishment clause cases see Gaffhey, supra note 162, at 225 (The idea that religion and politics cannot be combined is “bad law, bad politics, and bad theology”).

230. Cf. Rawls, J., A Theory Of Justice (1971)Google Scholar (Justice and a just society are not dependent on each other because there “is no place for the question whether … men's perception of the religious practices of others might not be so upsetting that liberty of conscience should not be allowed.”).

231. See, e.g., Reichley, A.J., Religion in American Public Life 348–49 (1985)Google Scholar (“[Republican government depends for its health on values that over the not-so-long run must come from religion.”).

232. See, e.g., Aguilar v. Felton, 473 U.S. 502 (1985) (assuming teachers employed by the state to teach in a religious school might inculcate religious doctrine, although the record established that there had not been such an incident in the nineteen years the aid program had been in effect); Meek v. Pittinger, 421 U.S. 349, 370 (1975) (A Pennsylvania statute that authorized state funding for teachers of private-school students created “the danger that religious doctrine [would] become intertwined with secular instruction. …”).

233. Cohen v. California, 403 U.S. 15 (1971) (The jacket bore the message “Fuck The Draft”).

234. See generally Karst, supra note 126 (discusses the value of intimate association and the scope of the constitutional doctrines utilized as the underpinnings of this freedom).

235. See Greenawalt, Rationality, supra note 162, at 1062 (“[R]eligious convictions are part of the groundwork against which rational arguments are set.”).

236. See supra note 132 and accompanying text.

237. Posner, R., Economic Analysis Of Law 4 (1986)Google Scholar.

238. Gedicks & Hendrix, supra note 162, at 1604-05.

239. Id. Gedicks and Hendrix would argue, however, that law's language should more actively attempt to accommodate non-rational belief systems. Id. at 1603-10.

240. Garet, supra note 114, at 1003-04, 1029-36; Tushnet, Religion, supra note 9, at 702.

241. For example, Eddie Thomas' objection to working in an armaments factory was apparently idiosyncratic. See Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707 (1981) (refusal of Jehovah's Witness to work on military-related project based on personal interpretation of scripture rather than specific Jehovah's Witnesses doctrine).

242. Garet, supra note 114, at 1008-09 (“[A]ssembly, religion, equality [all] have groupness at their core.”).

243. Ingber, supra note 10, at 283-86 (distinguishing between “group ideology,” which he argues ought to be subordinated to the Constitutional ideology, and religion, which is based on “duties or obligations that precede those made by human beings” and ought therefore not be subordinated to a constitutional ideology).

244. Smith, , The Special Place of Religion in the Constitution, 1983 Sup. Ct. Rev. 83 at 116Google Scholar; see also Carter, supra note 8, at 978 (arguing that the liberal constitutional jurisprudence threatens to turn religious belief into “a kind of hobby”); Pepper, supra note 17, at 307 (“From a modern constitutional perspective, religion is more likely to be perceived as akin to race: of no intrinsic importance, but subject historically to abuse and persecution and therefore ‘inherently suspect’ as a basis for government classification.”).

245. McConnell, Accommodation, supra note 9, at 14-15.

246. Ingber, supra note 10, at 282.

247. Giannella, supra note 133, at 517.

248. See supra notes 180-86 and accompanying text.

249. See supra notes 135-51 & 206-23 and accompanying text.

250. Giannella, supra note 133, at 517 (citations omitted); see also Gedicks, supra note 110, at 161 (“The importance of religious groups to individual and social life, which gives the groups their strong claim to constitutional protection, is intertwined with the assumption that the creation or maintenance of an individual's membership in such a group is voluntary.”).

251. See M. Marty, supra note 113, at 11-14 (discussing the revival of religion in American life); A.J. Reichley, supra note 231, at 2 (“By most measurable indices the United States is a more religious country than any European nation except Ireland and Poland.”).

252. E.g., McConnell, Accommodation, supra note 9, at 14-15.

253. Indeed, some would suggest that it is the absolutist position that demeans religion. See generally Dostoevsky, F., The Brothers Karamazov, “The Grand Inquisitor” 264–70 (Garnett, C. trans. Modern Library ed. 1950) (God offers man freedom, religion offers miracle, mystery, and authority)Google Scholar.