The Volokh Conspiracy
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I am happy to pass along this guest post from Professor Stephanie Barclay (Notre Dame). She writes about the history that may be relevant to the original understanding of the Free Exercise Clause.
From an originalist perspective, how should we think about protections for individual rights when government has expanded to regulate spheres of society that were dominated by private activity during the Founding-era? This question is relevant in many constitutional contexts, but it has particular salience for the meaning of Free Exercise protections in Fulton v. City of Philadelphia, a case the Supreme Court will hear oral argument in this week. This post discusses a historical example involving the Ursuline nuns in New Orleans that may shed light on this question. But first, it's helpful to understand how this issue arises in Fulton.
One of the issues before the Supreme Court in Fulton is whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children. Catholic Social Services (CSS) has been engaged in providing foster care for over 200 years in Philadelphia. Some might say that CSS basically invented the practice in the City.
In the 1790s, Philadelphia was hit hard by the yellow fever epidemic, and countless children were suddenly left parentless. (As an interesting side note, the Supreme Court actually shut down one of its terms because of the severity of this outbreak.)
In response to this crisis, religious groups, including Catholics and Jews, established orphanages in the area. The first Catholic orphanage in Philadelphia—and one of the first orphanages in the United States—was founded in 1798. See Timothy A. Hacsi, Second Home: Orphan Asylums and Poor Families in America 18 (Harvard 1997). The Sisters of St. Joseph took over St. John's Orphan Asylum in 1847, and by 1910 they were caring for 26,000 children in the City. This ministry included foster care, where the Catholic Children's Bureau would find homes for children in need instead of just keeping them in an orphanage.
Over time, the government became more involved in foster care. Today, the government exercises exclusive control over the power to remove children from their homes and to decide which agencies get to provide core foster care services to families that take in foster children. For example, CSS's representative testified in proceedings below that it would be "breaking the law" for that agency to provide foster care services to foster families without a contract. And the City acknowledged that the foster families currently relying on CSS must either "find a new agency" to work with, or stop fostering children.
This government control of foster care itself hasn't necessarily been a problem, until just two years ago when the City sought to close CSS down unless it agreed to violate its religious beliefs and certify same-sex couples. No couple had ever actually asked for this service from CSS, but the City still wants a commitment in advance that CSS would be willing to violate its beliefs as a condition of being able to continue serving foster families in the City. Because CSS couldn't agree to violate their religious beliefs about marriage, they now stand to lose the ability to continue their longstanding foster care ministry.
In a word, government has expanded to control an activity previously within the realm of private religious ministries. And now, through government's monopoly power, religious groups are forced to choose between violating their beliefs and performing the ministry the government's way or being kicked out altogether. Given that the baseline of a large welfare state didn't exist at our country's Founding, can history shed any light on the original meaning of the Constitution in this type of conflict?
The Founding-era historical example involving the Ursuline nuns seems to support the idea that religious ministries should retain important protections for their original sphere of freedom, even if government exerts control over new aspects of society. Beginning in 1727, Catholic nuns in New Orleans operated a convent that included a school for poor children. When the U.S. Government completed the Louisiana Purchase, the convent fell within the boundaries of the newly acquired territory. As a result, it could have easily been assumed that this property now fell to the ownership and control of the federal government. The nuns wrote a letter in 1804 seeking clarification about the future of their ministry. The nuns stated, "it is not therefore [the nuns'] own cause but that of the Public which they plead — it is the cause of the Orphan, of the helpless child of Want."
Jefferson responded and assured the nuns that "the principles of the constitution" provided a "sure guarantee" that the property would be "preserved to you sacred and inviolate," and that the convent "will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority." He then said that "whatever diversity of shade may appear in the religious opinions of our fellow citizens," the "charitable objects of your institution . . . cannot fail to ensure it the patronage of the government it is under."
Note that this was not just a pledge Jefferson was making magnanimously—he believed that the "principles of the constitution" required preserving this religious ministry, notwithstanding the recent government acquisition of the Louisiana territory. And he did not think that preserving the ministry meant forcing the nuns to run their ministry according to the government's new rules. Rather, he noted that the ministry had a "sure guarantee" that they would operate according to its "own voluntary rules, without interference from the civil authority."
Mark Storslee has written about how examples like this illustrate that the Establishment Clause does not prohibit religious ministries operating even in the context of government funding or property. And I agree. But one could potentially take a further lesson from this example. Specifically, one could argue that there were certain spheres of liberty the Founders understood that religious groups and institutions would be able to operate within free from government interference, notwithstanding government expansion. Or, at the very least, these ministries would receive thick constitutional protection within these spheres even as government exercised control over new realms.
The ministry of churches caring for orphans was widely recognized and appreciated during the early history of our country, and there is (to my knowledge) no Founding-era evidence that government could—or even tried to—interfere with such ministries. Given the expansion of the modern welfare state into these previously private spheres of religious activity, the burden should still remain on the government to justify that it has originalist/historical support for its modern intrusion, not the other way around.
So how would one operationalize this sort of original understanding into a doctrinal test? Two alternatives present themselves. First, to the extent that Employment Division v. Smith remains good law, perhaps certain spheres of liberty where government did not interfere with religious practice during the Founding period operate as an exception to Smith's deferential rule. The Fulton context of religious ministries to orphans seems like a prime candidate for this sort of exception. The Ursuline Nuns that Jefferson wrote to were also caring for destitute children, after all. (At least three other amicus briefs in Fulton discussed this history of religious organizations providing adoption and foster care services in our country. See here, here, and here.)
However, under this first approach, it would likely be fairly easy for religious organizations to argue that religious exemption conflicts are caused by government regulation that extends beyond what was understood as the accepted scope of government during the Founding era. This may be true both in terms of subject matter, but also in terms of volume. As former Attorney General Edwin Meese's amicus brief notes, "Given the ever-increasing encroachment of the modern administrative state into daily life, a course-correction becomes more vital to preserve the Framers' intent that religious duties will take precedence over the demands of the government." In a similar vein, Keith Whittington has noted that the volume of statutes passed by legislatures at the Founding period was much lower than it is now. In fact, "the output of Congress" measured by the number of pages in the Statutes at Large "has far outstripped the judicial review activity of the Supreme Court." Keith E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present 27 (2019). And the amount of policies and regulations passed by agencies dwarfs that ballooning legislative activity by Congress. Thus, higher numbers of judicially created religious exemptions would likely be necessary to even attempt to maintain the scope of religious freedom that was originally understood in the context of free exercise protections.
All of this points to a second alternative doctrinal test supported by the Ursuline nuns' example: overrule Smith altogether and allow for a default rule of heightened scrutiny in religious exemption conflicts. Such a background norm is consistent with the idea that government should justify its ability to burden religious exercise in spheres of liberty government largely left uninhibited during the Founding period. And where government can point to a use of its power that actually advances an interest originally understood as one sufficient to limit religious exercise, such government regulation would likely satisfy strict scrutiny.
On the other hand, if the Court does not adopt at least one of these approaches, the risk is that government could obliterate the "promise of the free exercise of religion" simply through the reality of its never-ending expansion. All the government need do is license or exert control over a new activity, and then condition religious groups' continued participation on their willingness to forfeit their religious beliefs and practices. Whatever the Free Exercise Clause meant, surely it could not have been that.
Stephanie Hall Barclay is an Associate Professor of Law at the Notre Dame Law School, where she also leads the Law School's Religious Liberty Initiative. Elsewhere, she has written about other historical, normative, and doctrinal reasons that support overruling Smith.