The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion

By Nestor, Branton J. | Harvard Journal of Law & Public Policy, Summer 2019 | Go to article overview

The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion


Nestor, Branton J., Harvard Journal of Law & Public Policy


INTRODUCTION

The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. (1) But the Supreme Court has never determined whether this holding reflects the original meaning of the Free Exercise Clause. Justice Scalia's City of Boerne concurrence provides the strongest argument issued by any member of the Court defending Smith on historical grounds. (2) He defends Smith's historical foundation by relying in part upon the provisos to the free exercise guarantees found in the early state constitutions. (3) These provisos withheld protection from, inter alia, conduct that violated the "public peace" or "safety" of the state. (4) Justice Scalia's argument supporting Smith on the basis of these state provisos is twofold. First, he argues that these provisos generally withheld protection from conduct that violated any neutral, generally applicable law that a legislature might enact. That is because any violation of law would necessarily be understood to constitute a violation of the "peace" or "safety" of the state. (5) Second, he concludes that this limited understanding of the free exercise of religion was the one that the federal Free Exercise Clause adopted. (6) In short, Justice Scalia concludes the state free exercise provisos suggest that Smith's rule is on firm historical footing.

This Note offers a different conclusion. It focuses on the provisos to the state free exercise guarantees to advance a two-step argument against Justice Scalia's historical argument for Smith. First, the state free exercise provisos did not withhold protection from all religiously motivated conduct that violated any neutral, generally applicable law that a legislature might enact. Instead, these state provisos represented specifically enumerated, compelling state interests that were narrow exceptions to an otherwise broad free exercise right. And second, the Free Exercise Clause--which lacks any express proviso--should be read to protect religious exercise at least as broadly as the proviso-laden state constitutions. To present its argument, this Note proceeds in three parts. Part I contextualizes this Note within both the broader historical tradition of American protections for religious liberty and the academic debate over the scope of the Free Exercise Clause. Part II focuses on the most important types of free exercise provisos--those relating to peace and safety, morality and licentiousness, and injury to others' rights--to argue that the provisos had narrow, bounded scopes. Part III then turns to the federal Free Exercise Clause. It suggests that the Free Exercise Clause should be read to protect religious exercise at least as broadly as the state constitutions--and likely with even fewer qualifications. (7)

I. CONTEXTUALIZING THE PROVISOS: HISTORY AND DEBATE OVER THE FREE EXERCISE OF RELIGION

The Religion Clauses provide that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." (8) One tool for determining the scope of the "free exercise [of religion]" is the term's historical meaning. That historical meaning is relevant for originalists and nonoriginalists alike. For originalists, history may identify, fix, and constrain the semantic and legal meaning of the Constitution's text. (9) But even for non-originalists, history may still remain important, whether because it informs textual meaning (10) or provides persuasive evidence of how the people of the past applied constitutional norms to the pressing issues of their day. Assuming history's ecumenical importance, (11) this Part contextualizes this Note's later discussion of the state free exercise provisos by providing an overview of the colonial and early statehood protections for religious liberty and the key contemporary debates over the federal Free Exercise Clause.

A. Evolving Colonial and Early Statehood Protections

The Free Exercise Clause did not emerge ex nihilo. …

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