Free Exercise Exemptions

One of the most significant questions in free exercise law is whether and when religious beliefs and practices should be granted exemptions from laws to which other citizens must comply. Today’s class will explore exemptions in the modern regulatory state, beginning with two free exercise cases from the 1960s and 1970s and finishing with a pair of statutory exemptions cases.

There is a longstanding debate in legal scholarship about the scope and nature of religious exemptions in early American history. Law professor Philip Hamburger argues that exemptions amounted to absolute protection for a narrow conception of religious liberty:

Early Americans were able to adopt constitutions that guaranteed religious liberty without conditions or even other qualifications because they defined this freedom in ways compatible with government interests. Americans would later expand the definition of their religious liberty and would thereby render this freedom conditional. In the late eighteenth century, however, Americans had some definitions of religious liberty that did not threaten government interests, and on these foundations, in several of their constitutions, including the U.S. Constitution, they protected religious liberty without any qualification.

Hamburger relies heavily on James Madison’s Memorial and Remonstrance. In that 1785 document, Madison famously asserted that free exercise was an “unalienable right” that may not be “abridged by the institution of Civil Society.” Hamburger uses this language to suggest that Madison understood the free exercise of religion to be “utterly unconditional.” But nine years earlier, during the debates of the Virginia Bill of Rights of 1776, Madison proposed limiting free exercise if “under color of religion the preservation of equal liberty and the existence of the State are manifestly endangered.” And in 1822, Madison wrote to Edward Livingston that free exercise should prevail “in every case where it does not trespass on private rights or the public peace.” A literal reading of Madison’s political rhetoric in Memorial and Remonstrance is incompatible with the constitutional language that he proposed in Virginia in 1776 and the pragmatic reflections that he offered in 1822. Hamburger gives us little reason to believe that Madison radically modified his views in the interim, only to revert back to his earlier position.

The little we do know of early appeals to the free exercise clause did not reflect absolute protection from discriminatory laws. Consider Davis v. Beason, the Mormon case we read earlier. The statute in Davis reached speech and association as well as “conduct.” Its discriminatory restrictions included prohibitions against teaching, advising, counseling, or encouraging the practices of bigamy and polygamy, or being a member of any association that taught these practices. Far from being a neutral law of general applicability, the statute in Davis explicitly targeted, among other things, the Mormon practice of “celestial marriage.”  The Supreme Court upheld the law in its entirety, concluding that “[h]owever free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.” The Court elaborated, discussing prohibitions on certain forms of marriage and human sacrifice: “Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretence that, as religious beliefs, their supporters could be protected in their exercise by the Constitution of the United States.”

Davis and its reasoning challenge Hamburger’s claim that the free exercise right provided an absolute protection against discriminatory laws prior to the mid-twentieth century.  But there is a more fundamental problem: the absolute and unconditional free exercise right never existed because the state is incapable of recognizing such a right. There will always be consensus norms that trump the exercise of any right. As Peter de Marneffe has observed: “Some may think of rights as ‘absolute,’ believing that to say that there is a right to some liberty is to say that the government may not interfere with this liberty for any reason. But if this is how rights are understood, there are virtually no rights to liberty—because for virtually every liberty there will be some morally sufficient reason for the government to interfere with it.” De Marneffe’s comments highlight practical limits to civil liberties, including the free exercise clause.

As you read today’s cases about free exercise exemptions, reflect on your own views about the nature of exemptions.  Is it possible for them to be “absolute”? Should they be broad or narrow?  Do they encompass conduct as well as belief?  Consider also this passage from former Secretary of State Hillary Clinton:

Religious freedom is not just about religion. It’s not just about the right of Roman Catholics to organize a mass or Muslims to hold a religious funeral or Baha’is to meet in each other’s homes for prayer, or Jews to celebrate high holy days together.  As important as those rituals are, religious freedom is also about the right of people to think what they want, say what they think and come together in fellowship without the state looking over their shoulder.  That’s why the free exercise of religion is the first freedom enshrined in our First Amendment, along with the freedoms to speak and associate. Because where religious freedom exists, so do the others. It’s also why the Universal Declaration of Human Rights protects freedom of thought, conscience and religion – all three together, because they all speak to the same capacity within each and every human being to follow our conscience, to make moral choices for ourselves, our families, our communities.

Is Clinton right?

Reading Assignment:

  • Sherbert v. Verner, 374 U.S. 398 (1963)

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

  • Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)

  • Groff v. DeJoy, 600 U.S. 447 (2023)

Optional Reading: