Ius & Iustitium is happy to present this guest post by O.A.S.
Last month, in its boundless charity, the Supreme Court announced that it would allow a Catholic foster care agency to continue to exist—at least for the time being. More precisely, the Court held that the foster care agency can continue to operate until the City of Philadelphia amends its non-discrimination law to remove a minor and never-before-utilized exemption provision. Once that happens, the City can again move to shut down the Catholic agency, and the parties can spend another several years embroiled in litigation.
Chief Justice Roberts’s majority opinion in Fulton v. Philadelphia has already been roundly panned, including on this blog, for shirking the question presented: Whether Employment Division v. Smith should be overruled. Smith, recall, held that facially neutral and generally applicable laws cannot violate the Free Exercise Clause.
It is simple enough to rebuke the Court for its moral cowardice in Fulton and its persistent refusal to articulate a meaningful standard in similar religious liberty cases. A more difficult task is discerning what rule should replace the one in Smith. Most conservatives—including common-good constitutionalists such as our own Adrian Vermeule and “practical originalists” such as Justice Alito—suggest returning to a proportionality standard, which would essentially require courts to ask whether the burdens that a law places on religious practices are outweighed by the state’s interest in passing the law.
There are reasons to doubt, however, that a return to the pre-Smith proportionality inquiry would either advance the common good or accurately reflect the original understanding of the Constitution’s Framers and ratifiers.
At the outset, Christians and conservatives would do well to pause before embracing yet another amorphous balancing test that invites federal judges to draw upon their own moral intuitions when deciding whether laws that burden religious practices are “proportional” to some countervailing governmental interest. Federal judges have spent the past century embarking on these sorts of balancing inquiries, and their track record is less than heartening. The Supreme Court has recently informed us, for example, that a mother’s interest in medical “privacy” outweighs any interest that her unborn child might have in not being dismembered alive; that a gang member’s right to “engage in loitering” outweighs his community’s interest in being free of intimidation and street violence; that the right of women to access the “unique educational opportunit[ies]” available at all-male military academies outweighs the interests of men in preserving single-sex educational spaces (to say nothing of the national-security interest in preserving single-sex military training); and that the right of consenting adults to “define themselves” however they please supersedes the rights of sovereign states to write their own marriage laws.
As further evidence of their enlightened moral sensibilities, the justices of our highest court have also decreed that the rape and sodomy of young children is not a crime worthy of society’s highest moral condemnation; that a criminal who invades a family’s home in order to commit a felony cannot have his sentence enhanced for committing a “crime of violence”; and that Congress cannot constitutionally outlaw distribution of “simulated” child pornography or pornography involving the sexual torture of animals. This record does not inspire confidence in America’s judges to rule in a way that advances the common good or protects the religious liberty of Christians.
In any event, a legal regime which entertains exceptions to general laws anytime a plaintiff argues the law burdens his religious practices may prove an inadministrable nightmare in a country where the practices of pagans, animists, scientologists, witches, polytheists, occultists, and Satanists are treated as protected “religious” sacraments on equal footing with traditional Judeo-Christian forms of worship. Courts have already heard free-exercise claims demanding, for example, that courts protect the right to ingest hallucinogenic drugs, to engage in “religiously motivated polygamy” with underage children, to sunbathe nude in public, to display Neo-Nazi propaganda in prisons, and to compel state institutions to recognize the Satanic holidays. None of these claims succeeded, but similar claims might succeed in a post-Smith, post-Obergefell America, in which all religious practices are deemed equally valid and in federal judges openly deride the very concept of morality-based legislation. Justice Alito acknowledged as much in his Fulton dissent, where he all but concedes that states would have to permit ingestion of illegal hallucinogens “as part of a [Native American] worship service” if Smith were overruled.
There are also textual reasons to doubt that the Free Exercise Clause allows or requires courts to create after-the-fact, ad hoc exemptions to generally applicable laws. The language of the clause simply says that “Congress shall make no law . . . prohibiting the free exercise [of religion],” which suggests that any federal statute prohibiting religious exercise is entirely ultra vires. In other words, if a law prohibits the free exercise of religion, then Congress lacked power to pass the law in the first place, leaving no room for federal judges to embark on after-the-fact exemption making or proportionality testing.
But if a proportionality test isn’t the solution to the Smith question, what is? One possible answer lies in the original, common-sense meaning of the phrase “exercise of religion.” For the generation of men who drafted our Constitution and ratified the Bill of Rights, the right to freely practice “religion” meant the ability to worship the one “Almighty God”—that is, the omnipotent, monotheistic God described in Jewish and Christian scriptures—according to the dictates of one’s conscience. This protection was widely understood to prohibit Congress from fomenting “rivalry Among Christian sects,” from privileging certain Christian denominations above others, and from outlawing fundamental religious practices embodied within the history and traditions of “general Christianity.” There is little indication, however, that this protection was understood to encompass the pagan, animistic, or occult rites that are now lumped under the modern definition of “religious” practices. Rather, the First Amendment right to freely exercise religion was, it seems, originally understood to protect only the right to engage in traditional forms of monotheistic worship.
On this view, Smith was wrong to hold that all neutral and general laws are permissible. A facially neutral law banning distribution of all alcohol would violate the Free Exercise Clause because consumption of Eucharistic wine is a well-established Christian sacrament. The same would be true for a statute outlawing all head coverings, or a law requiring businesses to stay open on Sundays or other Judeo-Christian Holy days. Such laws impinge on traditional, sacred monotheistic religious practices, and so would be unconstitutional no matter how “generally applicable” or “facially neutral” they might be.
Justice Alito also misses the mark, however, when he suggests that the Free Exercise Clause requires a universalized proportionality inquiry that treats all spiritual practices—including psychedelic drug use—as protected forms of religious devotion. There is no evidence that the men who framed our Constitution and ratified the First Amendment viewed the ingestion of hallucinogens as a core method of “exercising” “religious” devotion, and so—at least under an originalist approach to constitutional interpretation—the use of such drugs is not protected by the Free Exercise Clause. (To his credit, Justice Alito does concede that some extreme pagan rituals, such as human sacrifice, fall entirely outside the scope of the Free Exercise Clause, but he does not explain why that is the case. The reason that human sacrifice is not protected by the Free Exercise Clause is because it is fundamentally un-Christian—Jesus Christ Himself being the last necessary or permissible human sacrifice—not merely because it is extreme.)
A common good constitutionalist could come to a similar conclusion, for the same reason our nation’s forefathers did. Namely, the forms of religious exercise that are “necessary to good government, the preservation of liberty, and the happiness of mankind,” are self-evidently limited to monotheistic forms of prayer and devotion within the general Judeo-Christian religious tradition. They do not extend to pagan rituals, or satanic rites, or to the naturalistic occult practices dreamt up in new-age communes. That is because, as James Wilson explained, humans come to understand the natural law—and with it the foundations for “the common good and publick interest”—by consulting “our conscience, our reason, and the Holy Scriptures” alone. Thus, when natural lawyers like Wilson speak of “religion and law [as] twin sisters, friends, and mutual assistants,” the word “religion” is meant only its narrower sense—the Judeo-Christian sense—not as a catchall phrase encompassing any practice or ritual that arguably could be described as mystical, magical, or spiritual. Similarly, the type of “religious exercise” that requires inviolable constitutional protection is limited to traditional forms of monotheistic devotion. Congress and state legislatures may choose to extend protections to other practices, but this choice is a matter of legislative grace, not a constitutional command.
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There was once a time when our nation’s judges eagerly recognized the simple truths that our country was founded as a “Christian nation” and that the original object of the Free Exercise Clause was “not to countenance, much less advance . . . infidelity by prostrating Christianity,” but rather to protect traditional modes of Christian worship from internecine persecution. That time is long past. Unless or until things change, the Supreme Court’s free-exercise jurisprudence will likely continue to disappoint both originalists and common-good constitutionalists alike.