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OConnor, J., dissenting
CITY OF BOERNE, PETITIONER v. P. F. FLORES, ARCHBISHOP OF SAN ANTONIO, AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 25, 1997]
Justice OConnor, with whom Justice Breyer joins except as to a portion of Part I, dissenting.
I dissent from the Courts disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act (RFRA) is a proper exercise of Congress power to enforce §5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Courts holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.
I agree with much of the reasoning set forth in Part
IIIA of the Courts opinion. Indeed, if I agreed with the Courts standard in Smith, I would join the opinion. As the Courts careful and thorough historical analysis shows, Congress lacks the power to decree the substance of the Fourteenth Amendments restrictions on the States. Ante, at 9 (emphasis added). Rather, its power under §5
of the Fourteenth Amendment extends only to enforcing the Amendments provisions. In short, Congress lacks the ability independently to define or expand the scope of
constitutional rights by statute. Accordingly, whether Congress has exceeded its §5 powers turns on whether there is a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Ante, at 10. This recognition does not, of course, in any way diminish Congress obligation to draw its own conclusions regarding the Constitutions meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates. But when it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Courts
exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment.
The Courts analysis of whether RFRA is a constitutional exercise of Congress §5 power, set forth in Part
IIIB of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of
this Courtwithout briefing or argument on the issueinterpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individuals religious beliefs, so long as the prohibition is generally applicable. Contrary to the Courts holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. See Smith, supra, at 892903 (OConnor, J., concurring in judgment). Rather, the Clause is best understood as an affirmative guarantee
of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conductregardless whether it was specifically targeted at religion or applied generallywe required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. See 494 U.S., at 894 (citing Hernandez v. Commissioner, 490 U.S. 680, 699 (1989); Hobbie v. Unemployment Appeals Commn of Fla., 480 U.S. 136, 141 (1987); United States v. Lee, 455 U.S. 252, 257258 (1982); McDaniel v. Paty, 435 U.S. 618, 626629 (1978); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Gillette v. United States, 401 U.S. 437, 462 (1971); Sherbert v. Verner, 374 U.S. 398, 403 (1963)).
The Courts rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their sons autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner, 750 F. Supp. 558, 559 (RI 1990). The Court of Appeals for the Eighth Circuit held that application of a citys zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area. Cornerstone Bible Church v. Hastings, 948 F.2d 464 (CA8 1991); see also Rector of St. Bartholomews Church v. New York, 914 F.2d 348, 355 (CA2 1990) (no Free Exercise claim where citys application of facially neutral landmark designation law drastically restricted the Churchs ability to raise revenue to carry out its various charitable and ministerial programs), cert. denied, 499 U.S. 905 (1991); State v. Hershberger, 462 N. W.
2d 393 (Minn. 1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the States purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice.
Stare decisis concerns should not prevent us from revisiting our holding in Smith.
Accordingly, I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to
justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose
that burden only by means narrowly tailored to achieve that interest.
I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 570571 (1993) (Souter, J., concurring) (stating that it is difficult to escape the conclusion that, whatever Smiths
virtues, they do not include a comfortable fit with settled law); Smith, supra, at 894901 (OConnor, J., concurring); see also McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 11201127 (1990). Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clausean inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (The Courts interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees); School Dist. of Abington Township
v. Schempp, 374 U.S. 203, 212214 (1963).
The historical evidence casts doubt on the Courts current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence.
The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e.g., 1 Annals of Congress 440, 443444, 448459 (Gales and Seaton ed. 1834) (remarks
of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying various exceptions to powers not granted, it would afford a colorable pretext to claim more than were granted. The Federalist No. 84, p. 513 (C. Rossiter ed. 1961). Anti-Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established federal government would overwhelm the rights of States and individuals, they wanted explicit
assurances that the federal government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under the new Federal Government and called for an amendment guaranteeing religious freedom. Id., at 198.
In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const., Amdt. 1. Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendments free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope
of the Free Exercise Clause because the words free exercise had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. Ibid. ([I]t is astonishing to discover that the debate on a Bill of Rights was conducted on a level of abstraction so vague as to convey the impression that Americans of 17871788 had only the most nebulous conception of the meanings of the particular rights they sought to insure). But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest thatcontrary to Smiththe Framers did not intend simply to prevent the Government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the governments ability to intrude on religious practice.
The principle of religious free exercise and the notion that religious liberty deserved legal protection were by
no means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid-1600s. These colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groupsalthough often limited to Christian groupsbeyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths.
The term free exercise appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the free exercise of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425 (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: [N]oe person professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Governemt. Act Concerning Religion of 1649, reprinted in 5 The Founders Constitution 49, 50 (P. Kurland & R. Lerner eds. 1987) (hereinafter Founders Constitution). Rhode Islands Charter of 1663 used the analogous term liberty of conscience. It protected residents from being in any ways molested, punished, disquieted, or called into question, for any differences in opinion, in matters of religion, and do not actually disturb the civil peace of our said colony. The Charter further provided that residents may freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious concernments ; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others. Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663. See New York Act Declaring Rights & Priviledges (1691); Concession and Agreement of the Lords Proprietors of the Province of New Cæsarea, or New-Jersey (1664); Laws of West New-Jersey, Art. X (1681); Fundamental Constitutions for East New-Jersey, Art. XVI (1683); First Charter of Carolina, Art. XVIII (1663). N. Cogan, The Complete Bill of Rights 2327 (Galley 1997).
These documents suggest that, early in our countrys history, several colonies acknowledged that freedom to pursue ones chosen religious beliefs was an essential liberty. Moreover, these colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent licentiousness. In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith casesthat government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.
The principles expounded in these early charters re-emerged over a century later in state constitutions that were adopted in the flurry of constitution-drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitutions protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided:
[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. N. Y. Const., Art. XXXVIII (1777), in 7 Swindler, supra, at 178 (emphasis added).
Similarly, the New Hampshire Constitution of 1784 declared:
Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, provided he doth not disturb the public peace, or disturb others, in their religious worship. N. H. Const., Art. I, §5 (1784), in 6 Swindler, supra, at 345 (emphsis added).
The Maryland Declaration of Rights of 1776 read:
[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights. Md. Const., Declaration of Rights, Art. XXXIII in 4 Swindler, supra, at 374
The religious liberty clause of the Georgia Constitution of 1777 stated:
All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State. Ga. Const., Art. LVI (1777), in 2 Swindler, supra, at 449 (emphasis added).
In addition to these state provisions, the Northwest Ordinance of 1787which was enacted contemporaneously with the drafting of the Constitution and re-enacted by the First Congressestablished a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared:
No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory. Northwest Territory Ordinance of 1787, Art. I, 1 Stat. 52 (emphasis added).
The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to free exercise required, where possible, accommodation of religious
practice. If notand if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious consciencethere would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State. Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.
The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional
Convention wrote a constitution containing a Declara-
tion of Rights with a clause on religious liberty. The
initial drafter of the clause, George Mason, proposed the following:
That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can
be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the
happiness, or safety of society. And that it is the
mutual duty of all to practice Christian forbearance, love, and charity towards each other. Committee Draft of the Virginia Declaration of Rights, 1 Papers of George Mason 284285 (R. Rutland ed. 1970)
Masons proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies
at the Presbyterian College of Princeton. He objected first to Masons use of the term toleration, contending that the word implied that the right to practice ones religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Masons proposal countenanced too much state interference in religious matters, since the exercise of religion would have yielded whenever it was deemed inimical to the peace, happiness, or safety of society. Madison suggested the provision read instead:
Thus, Madison wished to shift Masons language of toleration to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word toleration as belonging to a system where was an established Church, and where a certain liberty of worship was granted, not
of right, but of grace). Additionally, under Madisons proposal, the State could interfere in a believers religious exercise only if the State would otherwise be manifestly endangered. In the end, neither Masons nor Madisons language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitutions religious liberty clause. Like the federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that all men are equally entitled to the free exercise of religion, according to the dictates of conscience. Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler, Sources and Documents of United States Constitutions, at 50. For our purposes, however, it is telling that both Masons and Madisons formulations envisioned that, when there was
a conflict, a persons interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant
if either had thought the right to free exercise did not
include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Masons narrower and Madisons broader notions of the right to religious freedom.
The practice of the colonies and early States bears out the conclusion that, at the time the Bill of Rights was
ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American colonies inhabited by
people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant
Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 (The vast majority of Americans assumed that theirs was a Christian, i.e. Protestant, country, and they automatically expected that government would uphold
the commonly agreed on Protestant ethos and morality). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.
Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in pre-Constitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the colonies and early States thought that, if an individuals religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the laws coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or swear allegiance to civil authority. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64. By 1789, virtually
all of the States had enacted oath exemptions. See Adams & Emmerich 62.
Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600s. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid-1700s. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:
As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles. Resolution of July 18, 1775, reprinted in 2 Journals of
the Continental Congress, 17741789, pp. 187, 189 (W. Ford ed. 1905).
Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations
were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid violence to their consciences, explicitly recognizing that civil laws must sometimes give way to freedom of conscience. Origins of Free Exercise 1468.
States and colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Id., at 1469. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. Ibid. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith. Id., at 1471.
To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil libertiesjudicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendmentmany of whom served in state legislaturesassumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.
The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madisonone of the principal architects of the Bill of Rightsas revealed by the controversy surrounding Virginias General Assessment Bill of 1784, are particularly illuminating. Virginias debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open
the question whether religion might be supported on a nonpreferential basis by a so-called general assessment. Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginiaeither by general assessment or voluntarilywas widely debated. Curry, The First Freedoms, at 136.
By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200. They introduced A Bill Establishing a Provision for the Teachers of the Christian Religion, which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Levy, supra, at 200201; Curry, supra, at 140141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people
of Virginia in his now-famous Memorial and Remonstrance Against Religious Assessments. Levy, supra, at 201. This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. Malbin, supra, at 24. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24.
The Memorial and Remonstrance begins with the recognition that [t]he Religion . . . of every man must be
left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. 2 Writings of James Madison 184 (G. Hunt ed. 1901).
By its very nature, Madison wrote, the right to free exercise is unalienable, both because a persons opinion cannot follow the dictates of other[s], and because
it entails a duty toward the Creator. Ibid. Madison continued:
This duty [owed the Creator] is precedent both in
order of time and degree of obligation, to the claims
of Civil Society. . . . [E]very man who becomes a
member of any Civil Society, [must] do it with a
saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion,
no mans right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. Id., at 184185.
To Madison, then, duties to God were superior to duties to civil authoritiesthe ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate
acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.
Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginias Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only when principles break out into overt acts against peace and good order. In 1808, he indicated that he considered
United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.
Jefferson 428429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that
itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.
George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:
[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests
of the nation may justify and permit. Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed. 1932).
Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment. Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders Constitution, 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that
to the full persuasion of his own mind, where others are not injured thereby.
of the Inhabitants of the State of Massachusetts-Bay,
in Isaac Backus on Church, State, and Calvinism 487
(W. McLoughlin ed. 1968).
These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 2131, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) ([O]ur whole
constitutional history supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances ). As Madison put it in the concluding argument of his Memorial and Remonstrance:
Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich at 31. Finally, all shared the conviction that
The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nations Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believers conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Courts position that freedom of speecha right enumerated only a few words after the right to free exercisehas special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.
Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smithand to
do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.
I respectfully dissent from the Courts disposition of this case.