The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress

Munoz, Vincent Phillip, Harvard Journal of Law & Public Policy

Despite the vast quantity of research devoted to understanding religion and the American Founding, the original meaning of the First Amendment's Free Exercise Clause remains a matter of significant dispute. In academic literature and in Supreme Court opinions, two leading interpretations have emerged. One side understands the Free Exercise Clause to grant religious individuals and institutions exemptions from generally applicable laws that incidentally burden religious exercise, absent a compelling state interest in the law's enforcement. Initially adopted by the Supreme Court in 1963 in Sherbert v. Verner, (1) the exemption interpretation received its leading originalist defense in 1990 by distinguished law professor (and now federal appellate judge) Michael McConnell. (2) Justice Sandra Day O'Connor later adopted Judge McConnell's arguments in her dissenting opinion in the 1997 case, City of Boerne v. Flores. (3)

The other interpretation of the Free Exercise Clause denies that the First Amendment encompasses such exemptions. The non-exemption interpretation, first articulated by the Court in 1878 in Reynolds v. United States, (4) was revived for most free exercise issues in the 1990 case, Employment Division v. Smith. (5) Justice Antonin Scalia, Smith's author, has vigorously championed this position, with the concurrence of numerous academic commentators. (6) In Smith, Justice Scalia defended his interpretation without referring to the Founders, (7) but in Boerne he mounted a direct critique of exemptions on historical grounds. (8) Advocates of both the exemption and the non-exemption interpretations of the Free Exercise Clause thus appeal to the Founders and purport to embrace the original understanding of the Free Exercise Clause. It would seem that both sides cannot be correct.

In an effort to help resolve the debate among both scholars and Justices over the most accurate interpretation of history, this Article gathers and examines the relevant evidence available from the First Congress regarding the Clause's original meaning. (9) This Article contends that the drafting of the Free Exercise Clause sheds almost no light on the text's original meaning. In drafting what would become the Second Amendment, however, the First Congress directly considered and rejected a constitutional right to religious-based exemption from militia service. When it considered conscientious exemption, moreover, no member of Congress suggested that such an exemption might be part of the right to religious free exercise. The records of the First Congress therefore provide strong evidence against the exemption interpretation of the Free Exercise Clause. Although some scholars have taken note of the possible relevance of the drafting of the Second Amendment to free exercise jurisprudence, its significance has been underappreciated. (10) Recent scholarship on the topic has overlooked the Second Amendment debate altogether. (11) Likewise, in Boerne, neither Justice O'Connor nor Justice Scalia considered the records related to the drafting of the Second Amendment in their description of historical evidence.

Part I of this Article reviews the different originalist arguments articulated by Justices O'Connor and Scalia in their opposing opinions in Boerne. Part II begins the Article's review of the records of the First Congress. Through a detailed examination of the drafting of what would become the Free Exercise Clause, Part II shows why almost no conclusions can be drawn about the Clause's original meaning from those records. Part III examines the insufficiently explored drafting of what would become the Second Amendment, documenting Congress's consideration and rejection of a right of conscientious exemption from militia service. That Congress both rejected religious exemptions from militia service and appears to have considered such an exemption entirely without reference to what would become the First Amendment strongly suggests that the members of the First Congress did not understand the Free Exercise Clause to grant religious individuals exemptions from generally applicable laws.

I. THE ORIGINALIST TURN IN FREE EXERCISE JURISPRUDENCE: THE O'CONNOR-MCCONNELL, SCALIA-HAMBURGER DISPUTE

After turning to the Founders to guide its first substantive interpretation of the Free Exercise Clause, (12) the Supreme Court's twentieth-century free exercise jurisprudence developed mostly without originalist arguments. (13) In Cantwell v. Connecticut, (14) the 1940 case that incorporated the Free Exercise Clause against the states, and in Sherbert v. Verner, (15) the precedent-setting case that governed free exercise jurisprudence from 1963 until 1990, the Court did not attempt to discover the text's original meaning. In Smith, similarly, the Court dismantled much of Sherbert's balancing test without relying on historical arguments. (16) In 1993, Justice David Souter called for a reconsideration of Smith, in part because that case failed to consider the original meaning of the Free Exercise Clause. (17) Justice Souter labeled the absence of history in the Court's free exercise jurisprudence "curious," and noted that the matter stood in "stark contrast" to the Court's Establishment Clause jurisprudence. (18) In 1997, in her dissenting opinion in Boerne, Justice O'Connor heeded Justice Souter's call for an originalist reconsideration of Smith.

A. Justice O'Connor' s Originalist Defense of Exemptions

The Boerne case was brought to the Court by Patrick Flores, the Catholic Archbishop of San Antonio. (19) Archbishop Flores had filed a lawsuit against the city of Boerne, Texas after local zoning authorities, relying on an historical preservation ordinance, denied the archdiocese a building permit to enlarge a church. (20) Archbishop Flores challenged the permit denial under the Religious Freedom Restoration Act (RFRA), (21) a 1993 federal law that attempted to overturn Smith and reinstitute the "Sherbert test" for free exercise jurisprudence. (22) Under RFRA, generally applicable laws that had the effect of "substantially burden[ing] a person's exercise of religion" were to be held unenforceable unless the government could demonstrate that the burden: "(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that ... interest." (23) In Boerne, the Court ruled against Archbishop Flores by a vote of 6-3, striking down RFRA as applied to state governments. (24) Justice Anthony Kennedy's majority opinion found that Congress had exceeded its authority under Section Five of the Fourteenth Amendment by attempting to make a substantive change in (as opposed to remedying a violation of) a constitutional right. (25)

Unlike Justice Kennedy's majority opinion, which relied on separation of powers arguments, Justice O'Connor's dissent focused on the meaning of religious free exercise. Specifically, Justice O'Connor proposed to examine "the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause"--a type of inquiry, she pointed out, that "the Court in Smith did not undertake." (26) Justice O'Connor did not, however, conduct an examination of the First Amendment's text or its drafting in the First Congress. "Neither the First Congress nor the ratifying state legislatures," she asserted, "debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment's free exercise protection." (27) She went so far as to say that "it is not exactly clear what the Framers thought the phrase ['free exercise'] signified." (28) Nonetheless, Justice O'Connor suggested that other sources that "supplement the legislative history" (29) could be consulted. Following closely Judge McConnell's 1990 Harvard Law Review article, Justice O'Connor focused on the text of early American legal documents (in particular, state constitutions adopted during the Founding period), the Founders' political practice, and the writings of the leading Founders (especially James Madison). (30) The evidence in these historical records, she concluded, "casts doubt on the Court's current interpretation [under Smith] of the Free Exercise Clause" and "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." (31)

1. Textual "Provisos" for Religious Exemptions

According to Justice O'Connor, state constitutions adopted during and after the American Revolution protected religious freedom by establishing a balancing test that allowed judges to grant exemptions from generally applicable but burdensome laws. (32) She noted that "[b]y 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution," (33) and that these state provisions "were typically longer and more detailed than the Federal [First Amendment] Free Exercise Clause." (34) She suggested, furthermore, that the state provisions "are perhaps the best evidence of the original understanding of the Constitution's protection of religious liberty," because "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." (35)

Justice O'Connor discussed the free exercise clauses of four state constitutions--New York, New Hampshire, Maryland, and Georgia--as well as a similar provision in the Northwest Ordinance of 1787, a federal law enacted contemporaneously with the drafting of the Constitution and then reenacted by the First Congress. (36) To take just one example, New York's 1777 Constitution 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. (37)

Justice O'Connor focused on the proviso, "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." She interpreted this text to set forth the condition for when religious exercise could be circumscribed legitimately--that is, that the state could burden religion only when necessary to prevent "acts of licentiousness" or "practices inconsistent with the peace or safety" of the state. (38) Were this not what the proviso meant, Justice O'Connor reasoned:

   [T]here 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. (39)

The presence of provisos demarking the narrow conditions for when the state could burden religion signaled to Justice O'Connor that the Founders foresaw that generally applicable laws would burden religious exercise, and that they intended to exempt religious citizens from such laws in all but the most important cases. (40)

Tracking Judge McConnell's article, Justice O'Connor derived further support for the judicial balancing approach to free exercise from the history of Virginia, whose legislature, she said, "may have debated the issue most fully." (41) According to Justice O'Connor, when Virginia drafted Article XVI of its 1776 Declaration of Rights, its legislature debated what standard should be used to grant exemptions from religiously burdensome laws. (42) George Mason's initial draft declared that "all men should enjoy the fullest toleration in the exercise of religion ... unless, under colour of religion, any man disturb the peace, the happiness, or safety of society." (43) Unhappy with Mason's language, the young James Madison proposed: "all men are equally entitled to the full and free exercise of [religion] ... unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered." (44) According to Justice O'Connor, "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." (45) If the right to religious free exercise did not include exemptions from some generally applicable laws, she said, the Mason-Madison debate would have been "irrelevant." (46) Although the Virginia legislature did not adopt any proviso, Justice O'Connor concluded that it "[p]resumably" intended to adopt a balancing standard that struck "some middle ground between Mason's narrower and Madison's broader notions of the right to religious freedom." (47)

2. The Founders' Exemption-Granting Practices and Rhetoric

Justice O'Connor also found that the political practice of the colonies and the early American states "bears out" the conclusion that the Framers believed religion should be accommodated as extensively as possible. (48) Carolina, she said, interpreted its 1665 charter to allow Quakers to enter pledges in a book instead of swearing oaths when the Quakers found the latter objectionable. (49) Some colonies and, later, states with established churches and legally-enforced religious taxes allowed taxpayers to support their own church or exempted religious dissenters from religious assessments. (50) Some states exempted Quakers from military service on account of their religiously inspired pacifism. (51) Although Justice O'Connor acknowledged that early American legislatures, rather than courts, granted exemptions based on religion, she reasoned,

   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. (52)

3. The Founders' Authoritative Documents

The practice of religious accommodation adopted in the Founding period's laws, Justice O'Connor said, was also expressed in authoritative documents setting forth the views of leading Founders. (53) Justice O'Connor placed particular emphasis on James Madison's Memorial and Remonstrance. (54) In the Memorial, Madison gave two reasons why the right to religious free exercise was "unalienable": (1) because a person's opinions "cannot follow the dictates of other[s]"; and (2) because religion entails "a duty towards the Creator" that is "precedent both in order of time and degree of obligation, to the claims of Civil Society." (55) Madison's argument that duties to God were superior to duties to civil authorities was, according to Justice O'Connor, "consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law." (56) Justice O'Connor argued that statements by Thomas Jefferson (57) and George Washington (58) also supported this view.

4. Justice O'Connor's Conclusions

From early American legal documents, the political practices of the Framers, and the authoritative statements of leading Founders, …

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Publication information: Article title: The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress. Contributors: Munoz, Vincent Phillip - Author. Journal title: Harvard Journal of Law & Public Policy. Volume: 31. Issue: 3 Publication date: Summer 2008. Page number: 1083+. © 2009 Harvard Society for Law and Public Policy, Inc. COPYRIGHT 2008 Gale Group.

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