The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause

By Roberts, Bernard | The Yale Law Journal, October 1991 | Go to article overview

The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause


Roberts, Bernard, The Yale Law Journal


The ascending theme of contemporary free exercise jurisprudence is that the Free Exercise Clause of the First Amendment(1) imposes no presumptive structural limitations upon the state's authority to regulate religious activity. This theme resounds throughout the opinion of the U.S. Supreme Court in Employment Division, Department of Human Resources v. Smith,(2) which held that the state may, without showing a specific compelling state interest, prohibit a person from performing actions that he is religiously obliged to perform.

As a matter of words, one might question the Court's holding and wonder if there is a construction of the Clause more consistent with constitutional precedent and principle.(3) As a matter of history, one might attempt to revisit the religious culture that shaped the time of framing and ratification of the Constitution and observe that contemporary construction is out of touch with that history.(4) Yet, between the overarching method of history and the legal-technical method of construction there lies a middle way: step outside of constitutional law, but not outside of law. Then listen to how this ascending theme resonates with the law's understanding of the relationship between civil and religious authority, and with the law's self-understanding.

This Note shall go the middle way. I hope to demonstrate that the principle at work in Smith, which animates contemporary free exercise jurisprudence, is deeply at odds with a doctrine of American common law that binds civil courts to the holdings of regligious lawfinders in those civil cases that implicate religious law.(5)

There are two reasons why such a demonstration should be of interest for the constitutional lawyer as well as for the legal observer concerned with religious liberty. First, this common law doctrine and its animating logic allow us a glimpse of how the common law understands the nature of the legal relationship between civil and religious authority. The doctrine may also convey the law's understanding of its own structure and of the limits of the state under a system of constitutionalism. These understandings, because they go to the structure of the system of law itself, might inform a contemporary lawyer's evaluation of current constitutional jurisprudence.

The second reason for exploring this tension between classical common law and contemporary constitutional construction is predicated upon a particular model of constitutional interpretation: one way of understanding the Constitution is to read it as a law that draws meaning from the context of surrounding law and tradition.(6) The framing of the Constitution, as well as the ensuing events of its construction, took place within a culture dominated both by the legal terminology, methods, and habits of the common law, and by a certain set of historic traditions respecting the nature of religious organizations.(7) Thus, any attempt to interpret the Constitution should seek some guidance from common law and tradition. At the least, we should be wary of those constitutional interpretations that ignore or defy the interpretive resources of the common law and the accompanying social and historic traditions.

Part I of this Note will consider contemporary free exercise doctrine with an eye toward distilling the basic conception of sovereignty implicit in that modern doctrine. Part II will explore the common law doctrine of legal sovereignty for religious lawfinders, with special attention to the history and the inner logic of that doctrine. Part III will attempt an analysis of this doctrine and suggest a "religious question doctrine," that tracks the structure of the political question doctrine as a device for evaluating the nature and limits of the state's lawfinding authority. Part IV of the Note will offer some speculations about the analytical and legal soundness of contemporary free exercise doctrine.

I. Sovereignty and Contemporary Free Exercise Doctrine

There has lately come a surge of judicial interest in the arduous task of toying with the tangle of our free exercise doctrine. …

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