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Published online by Cambridge University Press: 24 April 2015
This comment on the papers of Father Curry and Professor Firmage is an attempt first, to stress the importance of the history of religious exemptions in America, and second, to suggest some questions relating particularly to the group aspects of that history.
Father Curry argues that two topics “embraced the substance” of church-state discussions: the power of governments to legislate in matters of religion and, more specifically, financial support of clergy. “Through the discussion of these two topics Americans exhibited what they meant by religious freedom.” Father Curry also suggests that other problems existed and that these points (including sabbath legislation or conscientious objection) “became on occasion a hazard for some individuals and groups.” However, he concludes, “these subjects never became the subject of widespread dissent or discussion on church-state matters, nor did they contribute to the clarification of what Americans meant by religious freedom”.
1. While particular aspects of the history of religious exemption have been studied, e.g. McLaughlin's work on exemption from religious taxation, in New England Dissent (1971), the more general history has been largely neglected until recently. McConnell's, article, “The Origins and Historical Understanding of the Free Exercise of Religion,” 103 Harv. L. Rev. 1409 (1990)CrossRefGoogle Scholar, published after the present symposium, observes that “little or no scholarly work has been devoted primarily to the history of the concept of the free exercise of religion.” McConnell's emphasis is on the early history.
2. Curry, , “Church and State in Seventeenth and Eighteenth Century America” 7 J. Law & Relic 261 at 261 n.1 and accompanying text (1991)CrossRefGoogle Scholar
3. Curry, supra note 2 at 269.
4. Id. at 263-64.
5. Borden, M., Jews, Turks and Infidels IX (1984)Google Scholar.
6. Laski, H., Authority in the Modern State 45 (1919)Google Scholar. Laski's point stressed practice: “No state can act in the face of the active opposition of any considerable portion of itself. No state will venture in practice to claim control over certain areas within the competence of other groups. Acts of authority are thus limited by the consciences that purposes different from that of the state can command.” Of course where the exemption is formally recognized, the State still in theory claims supremacy.
7. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (constitutionally protecting private religious education), is an example of the first device, and Wisconsin v. Yoder 406 U.S. 205 (1972) (religious exemption from two years of public education), is an example of the second.
8. See Middleton v. Middleton, 54 N.J. Eq. 692, 35 A. 1065 (1896), litigating the constitutionality of the 1891 New Jersey statute authorizing a divorce from bed and board for a plaintiff with conscientious objections against applying for a divorce from the bonds of matrimony. “The act of 1891…imposes upon certain offenders consequences, which are determined, not by the character of the offense but by the opinions of the injured party.” The statute is contrary to the spirit of the religious liberty provision of the State constitution in that it permits “the religious or moral scruples of another person to deny an offender, however culpable, the right to remarry after his offense by reserving for him a form of divorce not applicable to other wrongdoers of the same kind….”
9. A 1798 Rhode Island statute regulating Marriage and Divorce provided that marriages within certain degrees were null and void but noted also that these provisions did not apply to marriages among Jews within the degrees permitted by their religion. The statute is involved in the well-known conflicts case, In re May's Estate, 305 N.Y. 486 (1953). See Scoles, E. & Hay, P., Conflict of Laws 418 (1982)Google Scholar; also Baade, , Marriage and Divorce in American Conflicts Law, 72 Colum. L. Rev. 329, 355 (1972)CrossRefGoogle Scholar, viewing the Rhode Island statute as an “exceptionally lax local rule on consanguinity.” See generally Hartogensis, , Rhode Island and Consanguineous Jewish Marriages, 20 Publications of the American Jewish History Society 137 (1911)Google Scholar; Weisbrod, , Family Church and State: An Essay on Constitutionalism and Religious Authority 26 J. Fam. L. 741 at 744 n.6 (1987–1988)Google Scholar.
10. The cases on this subject are easily found. Perhaps this is the point to note that I am not suggesting that the legal recognition of an exemption means that there is no penalty attached to using that exemption.
11. R.I. Pub. Laws (1798).
12. See Selective Draft Act ch. 15, 40 Stat. 76 (1917), referring to the “well recognized religious sect or organization” whose creed forbade members from participating in war.
13. Curry, supra note 2, at 270.
14. Kent wrote: “Nor are we bound, by any expressions in the constitution, as some have strangely supposed, wither not to punish at all, or to punish indiscriminately, the like attacks upon the religion of Mahomet or of the Grand Lama, and for this plain reason, that the case assumes that we are a Christian people, and the morality of this country is deeply ingrafted upon Christianity and not upon the doctrines or worship of those imposters…” People v. Ruggles, 8 Johns N.Y. 295 (1811).
15. Such an argument has, of course, been raised in England in connection with the Rushdie affair. It is widely assumed in the United States that remaining blasphemy laws are unconstitutional. See Pfeffer, L., Church State and Freedom 663 ff (2d ed. 1967)Google Scholar.
16. For an introduction to the complexities, see Galanter, M., Competing Equalities (1984)Google Scholar; Bittker, B., the Case for Black Reparations (1973)Google Scholar.
17. See U.S. v. Seeger, 380 U.S. 163 (1965) at 169ff for history of the exemption.
18. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963); Hobbie v. Unemployment Appeals Comm'n of Fla, 430 U.S. 136 (1987).
19. See Reynolds v. United States, 98 U.S. 145 (1878). Justice Waite's argument rests on the idea that there can be no religious exemptions at all, since to “permit this 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,” (at 166-67) quoted in Justice Scalia's opinion Employment Div. Dep't of Human Resources of Oregon v. Smith, 495 U.S. __, 110 S. Ct. 1595 (1990).
20. Curry, supra note 2 at 271-72.
21. 2 U.S. (2 Dall.) 213 (1793).
22. Id.
23. Jonas Phillips.the witness who was excused, was an early advocate of Jewish civil rights in America. See the entry on the Phillips family in the Encyclopedia Judaica; At the very least, the case report suggests that Frankfurter's citation of the case in his dissent in Board of Education v. Barnette, 319 U.S. 624, 655 (1943)—as one in a list of cases for the proposition that “the subjection of dissidents to the general requirement of saluting the flag, …is very far from being the first instance of exacting obedience to general laws that have offended deep religious scruples”—is too simple.