Pagans and Christians in the City

by Steven D. Smith

  18. McConnell, “Origins and Historical Understanding,” 1467–72.

  19. People v. Phillips, Court of General Sessions, City of New York (June 14, 1813), published in William Sampson, The Catholic Question in America (University of Michigan Library, 1813). The decision was privately reported but has been frequently reprinted. See, e.g., Michael W. McConnell et al., Religion and the Constitution, 3rd ed. (2011), 139.

  20. Paul Horwitz, “The Hobby Lobby Moment,” Harvard Law Review 128 (2014): 167 (partially quoting McConnell, “Origins and Historical Understanding,” 1466).

  21. See, e.g., Simon’s Executors v. Gratz, 2 Pen. & W. 412 (Penn. Sup. Ct. 1831) (rejecting claim for accommodation of Jewish Sabbath).

  22. Reynolds v. United States, 98 U.S. 145 (1878). In an interpretation seeking to minimize the value and historic importance of the accommodation, Ira Lupu relies primarily—or rather, solely and entirely—upon Reynolds to characterize the pre-1963 constitutional jurisprudence of free exercise. Lupu, “Hobby Lobby,” 48–49.

  23. Davis v. Beason, 133 U.S. 333 (1890); Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890).

  24. See, e.g., Lupu, “Hobby Lobby,” 48; Daniel O. Conkle, Religion, Law, and the Constitution, Concepts and Insights Series (Saint Paul, MN: Foundation Press, 2016), 15–17.

  25. Reynolds, 98 U.S. at 164.

  26. Reynolds, 98 U.S. at 164–67.

  27. Reynolds, 98 U.S. at 165–66.

  28. Reynolds, 98 U.S. at 166.

  29. Clark B. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence and the Challenge of Polygamy: The Relevance of Nineteenth-Century Cases and Commentaries for Contemporary Debates about Free Exercise Exemptions,” Oregon Law Review 85 (2006): 369, 403–23.

  30. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence,” 398–403.

  31. Lombardi, “Nineteenth-Century Free Exercise Jurisprudence,” 432–41.

  32. Reynolds, 98 U.S. at 166.

  33. Reynolds, 98 U.S. at 167.

  34. Although it is usually reported, as noted, that the Supreme Court did not build the accommodation requirement into constitutional doctrine until 1963 (see, e.g., Lupu, “Hobby Lobby,” 49), that report is not quite accurate. The Court had explicitly rejected any categorical belief-conduct distinction and had implied a qualified obligation to accommodate religious conduct much earlier in the well-known case of Cantwell v. Connecticut, 310 U.S. 296, 303–4 (1940). Lawyers and scholars are aware of the Cantwell statement (see, e.g., Conkle, Religion, Law, and the Constitution, 17) but usually fail to regard it as an actual statement of law, perhaps because it was not offered in the formulaic terms that legal “doctrines” later commonly came to take. For a critical and perceptive discussion of this “formulaic” style, see Robert F. Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1989), 121–55.

  35. Employment Division, 494 U.S. at 890.

  36. See Conkle, Religion, Law, and the Constitution, 121–23.

  37. Conkle, Religion, Law, and the Constitution, 123–24.

  38. William J. Clinton, “Remarks on Signing the Religious Freedom Restoration Act of 1993,” American Presidency Project, November 16, 1993, http://www.presidency.ucsb.edu/ws/?pid=46124.

  39. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2763 (2014); Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).

  40. For my own, much lengthier but still very summary discussion, see Steven D. Smith, Rise and Decline, 17–43.

  41. Matt. 22:20–21.

  42. See Hugo Rahner, Church and State in Early Christianity, trans. Leo Donald Davis, SJ (San Francisco: Ignatius, [1961] 1992), 51–60.

  43. Rahner, Church and State, 133–224.

  44. Rahner, Church and State, 235–37.

  45. Rahner, Church and State, 174.

  46. See generally Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 85–113.

  47. See Brian Tierney, The Crisis of Church and State, 1050–1300 (Toronto: University of Toronto Press, 1964).

  48. For a cogent discussion of the relevance of these medieval precedents to contemporary American law, see Richard W. Garnett, “ ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense,” Journal of Contemporary Legal Studies 21 (2013): 33.

  49. See Steven D. Smith, Rise and Decline, 36–38.

  50. See, e.g., Elisha Williams, The Essential Rights and Liberties of Protestants: A Seasonable Plea for the Liberty of Conscience, and the Right of Private Judgment, In Matters of Religion, Without any Controul from human Authority (Boston: S. Kneeland and T. Green, 1744), 12 (italics omitted) (arguing that “if CHRIST be the Lord of Conscience, the sole King in his own Kingdom; then it will follow, that all such as in any Manner or Degree assume the Power of directing and governing the Consciences of Men, are justly chargeable with invading his rightful Dominion; He alone having the Right they claim”).

  51. See generally Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (New York: Oxford University Press, 2012). With respect to one influential Protestant figure, Isaac Backus, Miller explains: “Backus ultimately rested his defense of full religious liberty on the three points common to Locke, Elisha Williams, and [William] Penn: (1) all spiritual knowledge is personal; (2) there is no ultimate earthly spiritual authority; and (3) therefore, the civil power has no jurisdiction in spiritual matters” (106).

  52. Cf. Vincent Blasi, “School Vouchers and Religious Liberty: Seven Questions from Madison’s Memorial and Remonstrance,” Cornell Law Review 87 (2002): 783, 789 (observing that the term “cognizance” as used by Madison could not have meant “knowledge” or “awareness” but must rather be understood to mean “responsibility” or “jurisdiction”).

  53. James Madison, “Memorial and Remonstrance against Religious Assessments [Virginia] 1785,” in Church and State in the Modern Age: A Documentary History, ed. J. F. Maclear (New York: Oxford University Press, 1995), 59.

  54. Virginia Act for Religious Freedom, in Maclear, Church and State in the Modern Age, 63, 64.

  55. See Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Vintage Books, 1996), 309–10.

  56. See Robert E. Rodes Jr., Ecclesiastical Administration in Medieval England (Notre Dame: University of Notre Dame Press, 1977), 56–59.

  57. See below, 338–39.

  58. For a forceful argument to this conclusion, on both theoretical and historical grounds similar to those presented here, see Michael Stokes Paulsen, “The Priority of God: A Theory of Religious Liberty,” Pepperdine Law Review 39 (2013): 1159.

  59. For a forceful statement of this objection, see Jean L. Cohen, “Freedom of Religion, Inc.: Whose Sovereignty?” Netherlands Journal of Legal Philosophy 44 (2015): 169.

  60. For similar reasons, it should be unsurprising that in advocating a version of immanent religion, as we saw in chapter 9, Ronald Dworkin also argues against religious accommodation or special legal treatment of “religion.” See Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013), 105–49.

  61. See generally Cohen, “Freedom of Religion, Inc.”; see also Cécile Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017).

  62. See, e.g., Marvin Lim and Louise Melling, “Inconvenience or Indignity? Religious Exemptions to Public Accommodations Laws,” Journal of Law and Policy 22 (2014): 705; Louise Melling, “Religious Refusals to Public Accommodations: Four Reasons to Say No,” Harvard Journal of Law and Gender 38 (2015): 177.

  63. For brief summaries of the episode, see Steven D. Smith, “The Tortuous Course of Religious Freedom,” Notre Dame Law Review 91 (2016): 1553, 1561–65; Patrick J. Deneen, “The Power Elite,” First Things, June 20
15, http://www.firstthings.com/article/2015/06/the-power-elite.

  64. See Douglas Laycock, “The Campaign against Religious Liberty,” in The Rise of Corporate Religious Liberty, ed. Micah Schwartzman et al. (New York: Oxford University Press, 2016), 231, 248 (“The public debate over the Indiana RFRA presented mostly falsehood from both sides”). For further discussion of the mendacious quality of the debate, see Steven D. Smith, “Tortuous Course,” 1563–65.

  65. See Laycock, “Campaign against Religious Liberty,” 249–50. See also an interview of Douglas Laycock: “Why Law Professor Douglas Laycock Supports Same-Sex Marriage and Indiana’s Religious Freedom Law,” Religion and Politics, April 1, 2015, http://religionandpolitics.org/2015/04/01/why-law-professor-douglas-laycock-supports-same-sex-marriage-and-indianas-religious-freedom-law.

  66. Such mendacity has become a recurring spectacle. Much the same display occurred in another episode leading (just last week, as of the time I write) to the veto of a similar law in Georgia.

  67. See David McCabe, “Indiana’s Memories Pizza Reopens after Gay Rights Furor,” Hill, April 10, 2015, http://thehill.com/blogs/blog-briefing-room/news/238415-indiana-pizza-parlor-embroiled-in-religious-freedom-law-reopens.

  68. Hobby Lobby, 573 U.S. ___ , 134 S. Ct. 2751; Zubik v. Burwell, 578 U.S. ___ , 136 S. Ct. 1557 (2016).

  69. Holt v. Hobbs, 574 U.S. ___ , 135 S. Ct. 853 (2015).

  70. For an extended discussion and criticism of the arguments and a systematic defense of religious accommodation, see Kathleen A. Brady, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence (New York: Cambridge University Press, 2015).

  71. Ronald Dworkin’s more recent objection sounds in both the establishment and equality rationales. See Dworkin, Religion without God, 114–16.

  72. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

  73. See Steven D. Smith, Rise and Decline, 48–66. In this vein, at the conclusion of a recent study, Donald Drakeman explains that “It is important to appreciate that [the establishment clause] was not the statement of a principle of secularism, separation, disestablishment, or anything else. It was the answer to a very specific question: Would the new national government countenance a move by the larger Protestant denominations to join together and form a national church? The answer was no. . . . At the time it was adopted, the establishment clause addressed one simple noncontroversial issue, and the list of those who supported it demonstrates that it cannot reasonably be seen as encompassing a philosophy about church and state.” Donald L. Drakeman, Church, State, and Original Intent (New York: Cambridge University Press, 2010), 330.

  74. See Estate of Thornton v. Caldor, 472 U.S. 703 (1985).

  75. See, e.g., Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). Cf. Richard W. Garnett, “Accommodation, Establishment, and Freedom of Religion,” Vanderbilt Law Review En Banc 67 (2014): 39, 41 (arguing that “it often makes sense and is the right thing to do—it is not only ‘permissible’ but also ‘praiseworthy’—to accommodate religious believers through exemptions from otherwise generally applicable laws, including laws that the majority regards as well-meaning and wise”). In recent years, several scholars have attempted to distinguish this earlier acceptance of accommodation by arguing that although accommodation per se is not unconstitutional, accommodation becomes unconstitutional if it imposes harms on third parties. See, e.g., Frederick M. Gedicks and Rebecca Van Tassell, “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,” Harvard Civil Rights–Civil Liberties Law Review 49 (2014): 343. This argument has at best a tenuous grounding in the case law, and it is embarrassed by the fact that in the best-known and settled instance of religious accommodation—namely, exemption of religious pacifists from military service—the harm to third parties seems both real and severe: for every Quaker exempted from serving in Vietnam, someone else will presumably have to serve (and perhaps die) in his place. Proponents of the third-party-harm position sometimes attempt to distinguish the military case by arguing that accommodation is unconstitutional only when a burden falls on identifiable third parties, but the relevance of this qualification is far from obvious. If we know that third parties are being burdened or harmed, what difference should it make whether we can identify precisely who those third parties are? For a cogent critique of the third-party-harm argument, see Marc O. DeGirolami, “Free Exercise by Moonlight,” San Diego Law Review 53 (2016): 105, 131–44.

  76. Dworkin, Religion without God, 125–26.

  77. The issue has been extensively discussed in legal literature. The classic treatment is Peter Westen, “The Empty Idea of Equality,” Harvard Law Review 95 (1982): 537. For application of the point to current controversies, see Richard W. Garnett, “Religious Accommodations and—and among—Civil Rights: Separation, Toleration, and Accommodation,” in Institutionalizing Rights and Religion: Competing Supremacies, ed. Leora Batnitzky and Hanoch Dagan (Cambridge: Cambridge University Press, 2017), 42–56. See also Steven D. Smith, “Equality, Religion, and Nihilism,” in Research Handbook on Law and Religion, ed. Rex Ahdar (Northampton, MA: Edward Elgar Publishing, 2018).

  78. People may, of course, be “similarly situated” for some purposes but not for others. Thus, a law forbidding blind people to vote would violate equality, because for purposes of voting blind people and sighted people are similarly situated. But a law forbidding blind people to drive would not violate equality, because with respect to driving there is an adequate justification for distinguishing between people who are blind and people who are not.

  79. See, e.g., Michael W. McConnell, “Accommodation of Religion,” Supreme Court Review 1985 (1986): 1, 15–24.

  80. See Robert P. George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism (Wilmington, DE: Intercollegiate Studies Institute, 2013), 147–52. George explains how in a version of the Gettysburg Address printed for distribution by the progressive American Constitution Society, the society used an earlier draft of the talk that did not contain the words “under God,” even though historians agree that the language was included in Lincoln’s actual address. “These groups know exactly what they are doing,” George asserts, “and, to achieve the result they want, they are willing to violate scholarly consensus, common sense, and the memorization of generations of schoolchildren” (151–52).

  81. Zorach v. Clauson, 343 U.S. 306, 312 (1952).

  82. Reynolds, 98 U.S. at 167.

  83. See T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (1987): 943, 948–52. The Reynolds Court’s all-or-nothing approach to the legal validity of a statute is apparent at Reynolds, 98 U.S. at 166–67.

  84. Employment Division, 494 U.S. at 885.

  85. Employment Division, 494 U.S. at 879, 885, 890.

  86. See, e.g., Fair Labor Standards Act, 29 U.S.C. § 213 (providing exemptions for minimum wage requirements of section 206); Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) (defining an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees”).

  87. See, e.g., Cal. Penal Code § 198.5 (allowing for use of deadly force in the home if there is a “reasonable fear of imminent peril or great bodily injury”); Ariz. Rev. Stat. Ann. § 13–411 (justifying the use of deadly force in preventing crime); see also “Self Defense and ‘Stand Your Ground,’ ” National Conference of State Legislatures, March 9, 2017, http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx (citing as many as twenty-four states with codified self-defense exemptions).

  88. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).

  89. Every law has a finite scope; it applies to some class of people but not to people outside the class. An exception is simply a way of defining the scope of the law. It no more makes anyone a “law unto himself” than the fact that a law applies only to a defined class makes everyone outside that
class a “law unto himself.”

  90. Opponents of religious accommodation often argue that there is no good justification for giving “special treatment” to religion. See, e.g., Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2013); Micah Schwartzman, “What If Religion Is Not Special?” University of Chicago Law Review 79 (2012): 1351; Gemma Cornelissen, “Belief-Based Exemptions: Are Religious Beliefs Special?” Ratio Juris 25 (2012): 85; Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007); Anthony Ellis, “What Is Special about Religion?” Law and Philosophy 25 (2006): 219; James W. Nickel, “Who Needs Freedom of Religion?” Colorado Law Review 76 (2005): 941. But in fact, it is their position that singles out religion for special treatment by making it an impermissible basis of legal accommodation.

  91. See James Madison, “Memorial and Remonstrance against Religious Assessments [Virginia] 1785,” in Church and State in the Modern Age: A Documentary History, ed. J. F. Maclear (New York: Oxford University Press, 1995), and above, 312–13.

  92. For a spirited presentation of this view, see Cohen, “Freedom of Religion, Inc.” In a similar vein, Laborde, Liberalism’s Religion; B. Jessie Hill, “Kingdom without End? The Inevitable Expansion of Religious Sovereignty Claims,” Lewis and Clark Law Review 20 (2017); Richard Schragger and Micah Schwartzman, “Against Religious Institutionalism,” Virginia Law Review 99 (2013): 917, 939–45.

  93. To be sure, there was something curious about the contexts in which the Supreme Court expressed this concern. As a general matter, the nineteenth-century Supreme Court seemingly had no strong reservation about acknowledging a higher authority. This was after all essentially the same Court that struck down an Illinois law authorizing women to practice law on the ground that “the law of the Creator” had ordained that women should fulfill the role of wives and mothers. Bradwell v. Illinois, 83 U.S. 130, 141 (1873). And the same Court would later declare that “we are a Christian nation.” Holy Trinity Church, 143 U.S. at 470. The “law unto itself” remark in Reynolds is perhaps best explained as an overwrought expression of the abhorrence felt by many nineteenth-century Americans toward Mormonism and Mormon polygamy. Justice Scalia’s expression of the “law unto himself” worry in Smith likewise seems curious, given Scalia’s open and unapologetic religiosity; but then a good deal in Scalia’s Smith opinion seems odd, and difficult to defend. See Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” University of Chicago Law Review 57 (1990): 1109.