The Debate About the Original Meaning of the Free Exercise Clause


My amicus brief in Fulton v. City of Philadelphia, which argues that the Court was right in Employment Division v. Smith when it said the Free Exercise Clause is a nondiscrimination provision, deliberately doesn't discuss the original meaning arguments: I have 8000 words for my brief, and I don't want to use them to duplicate arguments that will doubtless arise in other amicus briefs. But I know our readers are interested in this question, so I thought I'd pass along the Justices' most detailed discussion of the issue, from City of Boerne v. Flores (1997). What follows is an excerpt, which omits many of the specific details; you can see those details in the full decision (focus on Justice Scalia's concurrence and Part II of Justice O'Connor's dissent).

Here is Justice Scalia's argument (which I generally think is right) for why the Free Exercise Clause was originally understood as only preventing discriminatory persecution of religious people and practices because of their religiosity:

[A.] {[T]he protections afforded by} various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights … are in fact more consistent with Employment Div. v. Smith's interpretation of free exercise than with the dissent's understanding of it….

[T]he early "free exercise" enactments cited by the dissent protect only against action that is taken "for" or "in respect of" religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken "on account of" religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or "discriminat[ory]" action (New York Constitution); or, finally (and unhelpfully for purposes of interpreting "free exercise" in the Federal Constitution), action that interferes with the "free exercise" of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to … would not constitute action taken "for," "in respect of," or "on account of" one's religion, or "discriminatory" action.

Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since they contain "provisos" that significantly qualify the affirmative protection they grant…. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct.

The "provisos" in the enactments negate a license to act in a manner "unfaithfull to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behav[e]" in other than a "peaceabl[e] and quie[t]" manner (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace [and] safety of th[e] State" (New York, Maryland, and Georgia Constitutions), or "demea[n]" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws. "[E]very breach of a law is against the peace." Queen v. Lane, 87 Eng. Rep. 884 (Q.B. 1704).

Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of "peace": "8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace." {The word "licentious," used in several of the early enactments, likewise meant "[e]xceeding the limits of law."} This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right "to do only what was not lawfully prohibited." "Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions." Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992).

{The same explanation applies, of course, to George Mason's initial draft of Virginia's religious liberty clause. When it said "unless, under colour of religion, any man disturb the peace … of society," it probably meant "unless under color of religion any man break the law." Thus, it is not the case that "both Mason's and [James] Madison's formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person's interest in freely practicing his religion was to be balanced against state interests," at least insofar as regulation of conduct was concerned.}

And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O'Connor, or any of Smith's other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"—i.e., that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct.

[B.] [T]hat legislatures sometimes (though not always) found it "appropriate" to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause…. [Likewise, t]here is no reason to think [that Framers' statements about proposed legislative enactments] were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable.

Thus, for example, the pamphlet written by James Madison opposing Virginia's proposed general assessment for support of religion does not argue that the assessment would violate the "free exercise" provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators. Likewise, the letter from George Washington to the Quakers by its own terms refers to Washington's "wish and desire" that religion be accommodated, not his belief that existing constitutional provisions required accommodation….

The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises"; but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) [("Jefferson's understanding of the scope and rationale of free exercise rights, however, was more limited even than Locke's. Like Locke, he based his advocacy of freedom of religion on the judgment that religion, properly confined, can do no harm: 'The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.'")]….

[C.] Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the know­ledge of the academic defenders of the dissent's position, none exists.

The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips (N.Y. Ct. Gen. Sess. 1813). Even this lone case is weak authority, not only because it comes from a minor court [conducted by the Mayor, who had never been a jurist], but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege.

On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent's view. In Philips v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who "refused to be sworn, because it was his Sabbath." {Indeed, the author of Philips could well have written Smith: "[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established."} …

[D.] The historical evidence marshalled by the dissent … is more supportive of [Smith] than destructive of it. And … that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith….

And here is Justice O'Connor's argument that the Free Exercise Clause did require religious exemptions even from religion-neutral, generally applicable laws:

[A.] 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 government's ability to intrude on religious practice….

[I]n 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: "[N]o person … professing to believe in Jesus Christ, shall from henceforth be any ways 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 belief or exercise of any other Religion against his or her consent, so as they be not unfaithful to the Lord Proprietary, or molest or conspire against the civil Government." [Archaic spelling updated here and in the next paragraph.—ed.]

Rhode Island's Charter of 1663 used the analogous term "liberty of conscience." It protected residents from being in any ways "molested, punished, disquieted, or called in 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." 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.

These documents suggest that, early in our country's history, several Colonies acknowledged that freedom to pursue one's 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….

[B.] 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.

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 Constitution's 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."

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."

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."

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."

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established 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."

[This language] 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 not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience—there 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 Declaration 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."

Mason's 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 Mason's use of the term "toleration," contending that the word implied that the right to practice one's religion was a governmental favor, rather than an inalienable liberty.

Second, Madison thought Mason's 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: "That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered."

Thus, Madison wished to shift Mason's language of "toleration" to the language of rights. Additionally, under Madison's proposal, the State could interfere in a believer's religious exercise only if the State would otherwise "be manifestly endangered." In the end, neither Mason's nor Madison's language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution's 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."

For our purposes, however, it is telling that both Mason's and Madison's formulations envisioned that, when there was a conflict, a person's 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 Mason's narrower and Madison's broader notions of the right to religious freedom.

[C.] 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….

For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority…. [Many colonies] exempted Quakers from military service [as did the Continental Congress]….

States and Colonies with established churches … 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. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments….

[Likewise, b]oth 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 [that barred uncle-niece marriages, which Jewish law accepted—ed.]; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial 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 Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded….

NEXT: My Argument for Preserving Employment Division v. Smith

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  1. I think the goal of the Free Exercise Clause is pretty obvious in light of the Framers fear of tyranny and Montesquieu’s writings—the Framers wanted to perpetuate America’s robust religious society with multiple strong churches. So having a single church makes tyranny more likely and the Framers believed religion (especially Protestantism) and civic virtue went hand in hand.

    1. You’re thinking of the Establishment Clause.

      1. The Establishment Clause and the FEC go hand in hand. The key was perpetuating the serendipity of a robust religious society with strong churches. Remember the Framers’ feared of tyranny AND anarchy. So the Constitution was in response to the trend toward anarchy under the AoC but with a healthy heaping of fear of tyranny. So the EC is obviously only concerned with tyranny while the FEC concerns both preventing both tyranny AND anarchy because religion and civic virtue went hand in hand.

  2. I keep coming back to my original question: why is Gay not considered a religion?

    I define a religion as a set of shared beliefs, values, & behaviors which must be accepted on the basis of faith.

    Now folks will say “but, but, but, psychologists say” and I will respectfully point out that real science has agreed with much of the Kosher dietary laws, but that doesn’t mean that they aren’t religious in nature.

    So how other than faith can one believe that a biological male, with XY chromosomes and male plumbing, can possibly be female? And why do we respect this belief — because we respect other people’s religions….

    1. “Gay” isn’t considered a religion because it has none of the attributes of a religion. It could have a religion come up around it, but “gay” itself still wouldn’t be a religion.

      1. Wiki defines “religion” as: “a social-cultural system of designated behaviors and practices, morals, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that relates humanity to supernatural, transcendental, or spiritual elements. However, there is no scholarly consensus over what precisely constitutes a religion.”

        A social-cultural system of designated behaviors and practices — behaviors and practices. How is that *not* LBGTQ?

        1. It seems to have escaped your notice that LBGTQ has four letters in addition to “G”.

          1. According to the Style Manual of the American Psychological Association, the word “Gay” may be used for all the letters.

            Take it up with them.

            1. So you’re referencing the tenets of the “Gay religion” as clarified by the style manual of a different (in the sense of actually existing) organization?

              I, for one, am excited to see what effect changes to the Associated Press Style Manual will mean for Roman Catholicism.

    2. What does being gay (or Gay, for that matter) have to do with “believ[ing] that a biological male, with XY chromosomes and male plumbing, can possibly be female”?

      1. The “T” does. See above.

        1. Milo would beg to differ.

    3. “Gay” has nothing to do with believing “that a biological male, with XY chromosomes and male plumbing, can possibly be female”.

      I suggest that YOUR religion on this matter is sorely confused.

      1. I suggest it is a quid pro quo — I respect your religious belief that a biological male, with XY chromosomes and male plumbing, can be somehow perceived as female, and you respect my religious beliefs.

        I think that’s “tolerant.”

        1. Who you want to bone is not a belief.

          Gays and straights alike can think transgenders are a real thing.

          Also not a church: disagreeing with Ed.

          1. Actually many religions promote polygamy but the American federal government had a jihad against Mormons and polygamy over 100 years ago. So American Mormons were forced into exile because of this jihad. The cherry on top of the shit sundae was Justice Kennedy perpetuating this religious discrimination in his Obergefell opinion which was seething with animus for religions that practice polygamy as part of their deeply held religious beliefs.

            1. I believe UT’s Senate just voted to decriminalize polygamy last week.

              1. The big issue I see is how are spousal pension benefits treated?? So apparently a big deal in LGBT rights was getting spousal benefits for pensions that were already underfunded. So LGBT didn’t fight for 401k but to extend an already broken system to LGBT partners.

                1. Big issue in Massachusetts that no one is willing to talk about….

    4. how other than faith can one believe that a biological male, with XY chromosomes and male plumbing, can possibly be female?

      Believing this does not depend on being gay.

      real science has agreed with much of the Kosher dietary laws,

      Care to provide a cite for this claim?

        1. Shellfish and cheeseburgers cause Trichinosis?

          1. No, eating undercooked pork does, and it was impossible to properly cook pork to an internal temperature of at least 145 F with the cooking technology they had back then.

            As to the shellfish caught in the Mediterranean Sea, with the rowboats they had at the time — well we know that filter feeders (which shellfish are) concentrate both bacteria and algae toxins. With no sewerage treatment plants in Biblical times, human and animal fecal bacteria undoubedly were present and the fecal nutrients inevitably led to algae blooms.

            Not all the shellfish was toxic, but some was — some is today, except that we have state labs routinely monitoring it.

            And as to the cheeseburger, it’s a known fact that milk enzymes breaks down beef — a traditional Yankee dinner involves using sour cream to tenderize a tough cut of meat while it is being baked. Again, the constant heat kills the bacteria that otherwise would be problematic.

            1. Maybe we don’t all know — “filter feeders” repeatedly draw water in and out of their bodies, filtering out microscopic stuff that they eat. They don’t build up a level high enough to kill themselves, but if you eat more than one of them, you concentrate the toxins in your body.

              For example, the Quabbin Reservoir serves as drinking water for Boston. Yet the fish in it are posted as containing PCBs, which apparently come from the four towns that were flooded in the 1930’s. The water is safe to drink but the fish aren’t safe for pregnant women to eat.

  3. Even if we take this position, how many exemptions can you write into a law, or implement as a practical matter, before it ceases to be a law of general application? You can make something generally illegal, pass out exceptions for everything but “X”, and it’s indistinguishable from just making “X” illegal.

    1. Indeed, how many examples of that unicorn, the neutral and generally-applicable law, is it possible to find?

      Even the anti-peyote law the Supreme Court upheld against religious dissenters in Smith is only neutral and generally applicable if you look at in terms of “look, here is a law against peyote,” and ignore the things (like alcohol) which the authorities allowed to be consumed in public in the context of religious services.

    2. The problem with the Free Exercise of Religion Clause is, ironically, that in 2020 nothing is sacred. So because Americans can say anything they want about religion with no repercussions that makes religion less important at a societal level. Contrast that with Muslim countries in which the society enforces the sacred nature of Islam. So a US Congresswoman that is Muslim, Tlaib, says to her Allah is a woman!?! Can you imagine her saying that in her parents’ homeland of Palestine?? So because Americans can say anything we can also say we worship Thor and Thor is just as real as Jesus.

      1. So you’re saying that the Free Exercise clause requires that courts (and public authorities more generally) interrogate the sincerity of people’s beliefs more stringently? That’s one approach, I guess.

        1. Nope, in 2020 everyone’s religious beliefs are equally legitimate AND everyone’s religious beliefs are equally NOT sacred to those that do not subscribe to those particular beliefs.

        2. RFRA does require a sincere belief. Most of the time, everyone seems to be afraid to question sincerity, but it’s technically part of the test. That being said, it can be a sincere idiosyncratic belief and the fact that the belief conforms to no known religion is not enough to say it’s insincere or unprotected.

          1. Go read about the Taliban in the NYTimes—they have sincere religious beliefs that include slaughtering infidels. So the current incarnation of American progressives celebrates the Taliban’s sincere religious beliefs while at the same time attempts to destroy American Christians that behave according their beliefs when they nicely decline gay customers and politely tell them to get someone else to bake their wedding cake.

            1. the current incarnation of American progressives celebrates the Taliban’s sincere religious beliefs


              Laws against murder are of general application. Only those who think all religiously motivated behavior should be exempt from the laws would favor letting the Taliban carry on.

              1. One man’s Jihad is another man’s murder. That’s why Obama would explain to brown foreigners that they didn’t know how to practice their own religion and it was necessary for an American with Ivy League degrees to tell them how to properly practice Islam.

            2. I don’t think American progressives actually celebrate the Taliban. Certainly, they wouldn’t celebrate a request from any member of the Taliban (which is a political organization, but I digress) for exemptions from generally applicable laws. As a general rule, the left is opposed to RFRA laws right now. All that being said, laws against murder would likely survive strict scrutiny.

    3. Even if we take this position, how many exemptions can you write into a law, or implement as a practical matter, before it ceases to be a law of general application?

      So long as the exemptions are relevant to the statutory scheme, this shouldn’t matter.

      Here’s an example of a generally applicable law:

      1. Trespass, definition:
      a. Except as provided in subdivision (b), any person who intentionally enters onto the land of another is guilty of trespass.
      b. Notwithstanding subsection (a), it shall not be a trespass to enter onto the land of another for any of the following purposes: (i) fire prevention or firefighting; (b) policing, provided that such intrusion is permissible under the Fourth Amendment to the Constitution; (c) meter reading; (d) occupational safety and health inspections; (e) any inspection permitted by any occupational licensing law; (f) mail or package delivery, so long as the mail or package is duly addressed to the property and the deliveryperson is employed with a company that is regularly engaged in the business of mail or package delivery; (g) where the person entering the property reasonably perceives that there is an imminent threat to someone’s safety or property; or (h) where a person enters the property because he or she reasonably fears for his or her own safety.

      Here’s an example of a law that is not generally applicable:

      1. Trespass, definition:
      a. Except as provided in subdivision (b), any person who intentionally enters onto the land of another is guilty of trespass.
      b. Notwithstanding subsection (a), it shall not be a trespass for a person with natural blonde hair to enter onto the land of another.

      1. But then you get to regulatory schemes like the ACA, which are somewhere in between; You have lists of exempted organizations, and who is and isn’t exempt seems somewhat arbitrary.

        1. I believe Our Lady of the Worthless Miracle got their exemption. Btw, did you hear about Pope Francis’ latest “miracle”? He wants the fact his Fiat has never broken down to be counted as a miracle for his sainthood. 😉

  4. It may be useful to add some historical context as to the kinds of “licentious” acts, or violations of the “laws of morality,” these colonial charters and state bills of rights had in mind.

    Some Quakers went through a phase where they went naked in public places as a sign from God. They also disrupted the services of other religious groups. These practices, which by the time of the Bill of Rights had been dropped by the Quakers themselves, would be examples of the sorts of disorders, and violations of the laws of morality, that were aimed at.

    Likewise the “Ranters” of the mid-seventeenth century who were probably antinomians – they deemed themselves saved, in such a way that whatever they did could not be sinful, even fornication and suchlike, so they went right ahead and did these things.

    I can’t find examples of threats to the social order by bakers, florists, etc., choosing which events to cater.

    1. PS – even if the stuff about the Ranters was exaggerated by their opponents, the cultural memory would provide the context in which people could think of unprotected religious activity.

  5. Professor Volokh…Thank you! This post has really helped me understand more about the free exercise clause, and what was originally meant by the Founders.

    One implication I took away from Justice Scalia’s opinion is that protecting the peace (and safety) of society was primary, with religious practice as secondary for the sake of maintenance of good order and peace.

    Consider the restrictions in place now around the country. At what point does protecting the peace and safety of society give way to allowing in-person religious services? Or does it ever? What is the measure (or bright line) that tells a Magistrate….Ok, you have to allow for in-person religious services?

    1. Thank you as well for the enlightening posts. Commenter_XY has a very interesting question. I would be very curious as to any good framework to think about the problem.

      1. I looked into this at the beginning of this … thing we are currently experiencing.

        Unsurprisingly, most the quarantine laws and court cases are fairly old. Those that are less old tend to be … somewhat less on-point (for example, various cases dealing with emergency powers for quarantines involving diseases of plants and animals, and destruction thereof).

        As a rule of thumb, the general trend tends to be one of both deference and legal realism; no tribunal wants to hastily override an emergency order that protects life and/or slows the spread of a communicable disease, and a great deal of deference is given to the legislative and executive branches of state government. Generally, when it comes to public health and safety, and especially when it comes to emergent situations and/or emergency powers, Courts would prefer to duck the issue and, at best, provide compensation down the road.

        That said, these interests and balances can and will shift over time. An emergency order of two weeks is different than one of two months, and that is different than one that is indefinite.

        Finally, while I am predisposed to not be very sympathetic to the specific issue of large religious gatherings (given that religious gatherings, along with cruise ships and a few sporting events/parties, tend to be epicenters of mass outbreaks of COVID19), I also think that it is incumbent under our legal order (whether it be federal or state constitution, or statutory/RFRA) that the government make a minimum showing that they are treating “large gatherings” in a similar fashion, and not just saying, “No religious services.”

        1. loki13…Is it a fair restatement to say: There is no bright line, but you cannot discriminate?

          1. In my opinion, yes. In a way, that’s what Empl. Div. v. Smith was getting at as well out side of this specific context. Discriminating against religion is bad, but general laws that happen to affect religion … that happens.

            I’d argue the same point should be made with regard to shutdowns; singling out religious services qua religious services (at least once you get past the first week or so and can more narrowly word the restrictions) is improper; but having general prohibitions against gatherings using neutral criteria would be acceptable.

            1. Although it is now mooted in most of California because Newsom has declared all but 11 counties in California to be in phase 3 of reopening, what was your take when only phase 2 businesses (e.g., retail and manufacturing) could be opened? I thought California never explained why religious services belonged in phase 3 (along with hair salons and gyms), but they should have been given the opportunity to do so.

              1. Again, it was complicated.

                As a matter of policy, I am fully in favor of it. The treatment of indoor religious services (“churches”) qua churches makes a lot of sense. For various reasons, churches present issues with the spread of this particular virus; I think that there are a number of reasons for it (close proximity, large groups, issues with particular aspects of some religious services, less staff to clean/sanitize, etc.), but it makes sense from a public health standpoint.

                But it’s not just a matter of policy; IMO, to treat them differently than other gatherings runs afoul of our legal order. I may not agree with that as a matter of policy, but it’s what is; there is a higher standard when it comes to religious services.

                Again, IMO.

    2. Other than the faulty gun metaphor, the only other scenario that comes to mind is banning sex to stop a novel and deadly STD epidemic, for a period of time, at a particular campus.

  6. Incidentally, as a matter of originalism, I’m just saying that Smith was wrong, not that the specific RFRA formulation was what the Founders had in mind. IMHO, RFRA simply gives a close-enough-for-government-work rule which avoids the errors of Smith and not allowing the government to step all over minority or unpopular religions, while acknowledging the government’s power to stop certain religious excesses (eg. human sacrifice, ritual sex, polygamy, public nudity, disrupting church services) .

    1. Yes, RBRAs are definitely intended to protect unpopular religions, and that is definitely the effect they have in practice.

  7. I cannot account for Thomas agreeing with this decision, except for his standard of concurring in a judgment that fits previous precedent. He would not agree with Scalia, here, because Scalia again only reads the law back to the Constitution, and not the Revolutionary rights that allowed that document to come into existence.

    Laws mandating certain religious beliefs, or injurious to religious belief, are matters of human rights and privileges that precede the Constitution.

    These were supposed to be preserved by the XIV Amendment but are ignored by Justice-made law and those whose Originalism begins in 1789. Hence O’Connor is far better on this topic than Scalia.

  8. A difficulty here is that Justice Scalia is taking terms with clear, a long-standing, narrow and specific common-law meaning – breach of the peace meaning violence or neighbor-annoying noise and disorder; licentiousness meaning violation of traditional sexual morality rules – and claims they refer to any violation of any law, based on his interpretation of isolated passages from select authors. This seems a tough sell.

  9. The Court in Smith narrowed its focus to peyote and said “look, a neutral law against peyote!”

    Why couldn’t they have broadened their vision and seen that religious bodies that use alcohol in their services get a break from the controlled-substances laws – e.g., exemptions from regulations on importing alcohol, exemptions from local-option laws, and exemptions from the ban on serving alcohol to minors?

    See Oregon statutes 471.404(1)(b), 471.405(2), 471.410(4), 471.430(2), 471.510

    This begs the question of whether the distinction between alcohol and peyote is “neutral” as far as religious believers is concerned.

    And this is the paradigmatic case of a supposedly neutral law!

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