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A Brief for the Free Exercise Clause*

Published online by Cambridge University Press:  24 April 2015

Stephen Pepper
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Extract

What is the role of the constitutional promise of freedom of religion in late twentieth century America? As we enter the third century of life under the Constitution, the answer to this question is not clear, for the place of religion in the American polity has yet to be clearly demarcated. Consider a seemingly simple case. Mrs. Frances Quaring, a Nebraska farm housewife, believes that the Second Commandment prohibits her from having her photograph taken or from carrying or using photographs. The state of Nebraska, however, requires that applicants for a driver's license have their photographs taken and affixed to the license. The state prohibits driving without a valid driver's license. Thus, by state law Mrs. Quaring is denied that primary instrument of freedom and mobility in modern America— use of the automobile—because of her religious beliefs. Is Mrs. Quaring's mobility protected by the Constitutional guaranty of freedom of religion? The Supreme Court doesn't know. Five years ago it split four to four, and was thus unable to decide the case.

Type
Georgetown Symposium on Church and State and Society and Law Colloquium
Information
Journal of Law and Religion , Volume 7 , Issue 2 , 1989 , pp. 323 - 362
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

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Footnotes

*

Presented at the Georgetown University Bicentennial Conference, “Religion and the Constitution: Exemptions Based on Conscience,” Georgetown University Law Center, April 13, 1989.

References

1. The Eighth Circuit Court held that the state must issue Mrs. Quaring a license with-out a photo. Quaring v. Peterson, 728 F. 2d 1121 (8th Cir. 1984), aff'd by an equally divided court in Jensen v. Quaring, 472 U.S. 478 (1985) (per curiam, Justice Powell not participating). For the Court's most recent free exercise clause opinion, see Employment Div. v. Smith, 495 U.S__, 110 S. Ct. 1595 (1990) discussed briefly at note 60, infra.

2. Wisconsin v. Yoder, 406 U.S. 205 (1972). The Supreme Court held the first amendment protected the religious conduct and invalidated the criminal convicitons.

3. In Reynolds v. United States, 98 U.S. 145 (1878), the Supreme Court upheld a criminal conviction for bigamy. See § II. D. below for a brief discussion of the case, and for a brief description of the other cases mentioned in the text.

4. Bob Jones University v. United States, 461 U.S. 574 (1983). The Supreme Court upheld the government's denial of tax exempt status.

5. U.S. Const, amend. I.

6. Bobbit, P., Constitutional Fate 3–119Google Scholar; Fallon, , A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1189–1209 (1987)CrossRefGoogle Scholar.

7. U.S. Const, amend. I.

8. U.S. Const, amends. IV, VILI, V and XIV (emphasis added).

9. One could, of course, focus on words other than those emphasized. See Pepper, , Reynolds, Yoder and Beyond: Alternatives for the Free Exercise Clause, 1981 Utah L. Rev. 309, 353 n. 195Google Scholar. For example, “prohibit”, a different usage than “abridge,” is the word used for the other first amendment freedoms. Does this mean that government can impinge on religious conduct short of outright prohibition, while it cannot even abridge speech and press? Government could prohibit Jews or Catholics from voting or holding office, or tax them at a higher rate, under such a view. But those seem exactly the kind of abuses that the framers intended to prevent, and I know of no scholar or court which has seriously suggested such a wooden reading. But see Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-51 (1988) for an opinion which appears to come close. Cf. id. at 468 and n.4 (Brennan, J. dissenting). Or one could focus on “Congress” as the only governmental entity limited by the amendment, thus leaving all other governmental actors free to impinge on religious conduct as they see fit. But the federal government acts, for the most part, through delegation of congressional authority. (Thus the IRS would clearly be covered.) And there has been no inclination that I know of to interpret the first amendment differentially in its application to the judiciary and executive, as the “Congress” usage might suggest. Moreover, the other nine amendments in the Bill of Rights do not share this usage, suggesting it had no limiting meaning. The religion clauses certainly were not intended to apply to the states, see, e.g., Howe, M., The Garden and the Wilderness 19–23 (1965)Google Scholar; Katz, W., Religion and American Constitutions 8–10 (1964)Google Scholar, but the application of the Bill of Rights to the states is a large and complex issue. Suffice it to note that if the other provisions of the Bill of Rights are held applicable to the states, there is no reason not to also apply the free exercise clause.

10. U.S. Const, amend. I (emphasis added).

11. 1 Stokes, A., Church and State in the United States 480 (1950)Google Scholar (emphasis added).

12. Id at 393-94 (emphasis added).

13. Madison, , A Memorial and Remonstrance (1785)Google Scholar, reprinted in James Madison on Religious Liberty (Alley, R.S. ed. 1985), at 55, 56Google Scholar.

14. Miller, W., The First Liberty 120–21 (1986)Google Scholar; 1 A. Stokes, supra note 11 at 39-50, 538-48. It is worth noting that Madison used the phrase “free exercise of Religion” as early as 1776 in his suggested language for the Virginia Declaration of Rights, Hunt, , James Madison and Religious Liberty, Am. Hist. A. Ann. Rep. For the Year 1901 at 166–67 (1902)Google Scholar, and that he used the same language from the Declaration in his 1785 Remonstrance.

15. Pepper, supra note 9, at 313.

16. “Disestablishment” is somewhat inappropriate because there was no federal establishment to begin with. “Separation of church and state” is somewhat inappropriate because it has a potential meaning far larger than the narrow meaning given above.

17. Pepper, supra note 9, at 311-17.

18. Morgan, R., The Supreme Court and Religion 4–26 (1972)Google Scholar; M. Howe, supra note 9, at 1-31; W. Miller, supra note 14.

19. See M. Howe, supra note 9, at 19-23; W. Katz, supra note 9, at 8-10.

20. Supra note 4.

21. Bowen v. Roy, 476 U.S. 693 (1986).

22. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).

23. Goldman v. Weinberger, 475 U.S. 503 (1986).

24. Pfeffer, L., Church, State and Freedom 91 (rev. ed. 1967)Google Scholar.

25. See e.g., Tribe, L., American Constitutional Law, 1160–61, 1201–04 (2d ed. 1988)Google Scholar.

26. R. Morgan, supra note 18, at 16-18.

27. Madison, supra note 13 at 55, 58.

28. See Pepper, supra note 9, at 378; Pepper, , Taking the Free Exercise Clause Seriously, 1986 B.Y.U. L. Rev. 299, 304–06Google Scholar.

29. A clear difference between Jefferson and Madison will be mentioned at the beginning of the “Doctrine and Precedent” discussion, section II. D. below.

30. See generally, M. Howe, supra note 9, at 1-31.

31. Cover, , Foreword. Nomos and Narrative, 97 Harv. L. Rev. 4, 30 (1983)Google Scholar.

32. The text of the Constitution has only three references to religion; two are oblique and the third excludes religion from political relevance:

(1) the clause exempting Sundays as days to be counted in determining the period of time within which the President must exercise his veto; (2) the dating of the document as “in the year of our Lord on thousand seven hundred and eighty seven,” and

(3) the clause of Article VI proscribing a “religious test” for office.

33. Madison, supra note 13, at 35, 56.

34. Text accompanying note 13, supra.

35. The almost exclusively process oriented nature of the Constitution is one of the primary points of John Ely's much discussed Democracy and Distrust (1980). The choice among processes of course involves substance. See Brest, , The Substance of Process, 42 Omo State L.J. 131 (1981)Google Scholar.

36. See Gedicks, , Some Political Implications of Religious Belief, 4 Notre Dame J. of Law, Ethics and Public Policy 419 (1990)Google Scholar; Gedicks, and Hendrix, , Democracy, Autonomy and Values: Some Thoughts on Religion and Law in Modern America, 60 So. Cal. 1579 (1987)Google Scholar.

37. The right to assemble to petition for redress of grievances is the one first amendment right that does not fit easily into this understanding.

38. “The religion clauses of the Constitution seem to me unique in the clarity with which they presuppose a collective, norm-generating community whose status as a community and whose relationship with the individuals subject to its norms are entitled to constitutional recognition and protection.” Cover, supra note 31, at 32 n. 94. See Gedicks, , Toward a Constitutional Jurisprudence of Religious Group Rights, 1989 Wisc. L. Rev. 99Google Scholar; McConnell, , Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 17–19Google Scholar.

39. See Tushnet, , The Constitution of Religion, 18 Conn. L. Rev. 701, 729–38 (1986)Google Scholar reprinted in Tushnet, M., Red, White, and Blue (1988)Google Scholar; McConnell, supra note 38, at 19-21.

40. Freedom of association is not explicit; it must be implied from other constitutional provisions. See n. 42 infra. Federalism may be the other explicit support for community, but that is governmental community.

41. For a critique of modern liberalism, and by implication much modern constitutional law and interpretation, see Sandel, M., Liberalism and the Limits of Justice (1982)Google Scholar. For a critique of the critique, see Baker, , Sandel on Rawls, 133 U. Pa. L. Rev. 895 (1985)CrossRefGoogle Scholar.

42. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Roberts v. United States Jaycees, 468 U.S. 609 (1984); Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981); Nowak, J., Rotunda, R., and Young, J., Constitutional Law § 16.41 (3rd Ed. 1986)Google Scholar; L. Tribe, supra note 25, at §§ 12-26 and 14-16.

43. Marshall, , Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 Minn. L. Rev. 545 (1983)Google Scholar; Pepper, supra note 9, at 367-68.

44. This very narrow content for the free exercise clause may be the net effect of the doctrinal reverse in the recent case of Employment Division v. Smith, infra note 60.

45. Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U. L. Rev. 57 (1976)Google Scholar.

46. Text accompanying note 12, infra.

47. See 1 A. Stokes, supra note 11, at 393-94.

48. Hunt, , James Madison and Religious Liberty, Am. Hist. A. Ann. Rep. For the Year 1901 at 166–67 (1902)Google Scholar.

49. 98 U.S. 145 (1878).

50. The opinion is complex and interesting, and I have analyzed it elsewhere at some length. See Pepper, supra note 9, at 317-26. It does rely in part on the assertion that polygamy leads to “stationary despotism.” 98 U.S. at 166.

51. 310 U.S. 296, 303-04 (1940). Cantwell is also significant as the opinion in which the Court clarifies that the free exercise clause is applicable as a limit on governmental action by the states through the due process clause of the fourteenth amendment. The clause has been “incorporated” in the fourteenth amendment to apply against the states.

52. See, e.g., Lovell v. Griffin, 303 U.S. 444 (1938); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943). See Pepper, supra note 9, at 326-30.

53. Under modern doctrine, governmental action intentionally or explicitly discriminating against religion is prohibited by the establishment clause, as is such conduct discriminating among religions. Everson v. Board of Education, 330 U.S. 1, 15-16 (1947); McDaniel v. Paty, 435 U.S. 618, 636-42 (1978) (Brennen, J., concurring); Larson v. Valente, 456 U.S. 228 (1982). Including religion with race as a suspect classification under the equal protection clause also has the effect of rendering most such governmental conduct unconstitutional. Cf. P. Kurland, infra note 107.

54. 374 U.S. 398 (1963).

55. 406 U.S. 205 (1972).

56. 374 U.S. at 403.

57. 374 U.S. at 406.

58. 406 U.S. at 215.

59. See, e.g., L. Tribe, supra note 25, at 1154-1301; Choper, , The Free Exercise Clause: A Structural Overview and an Appraisal of Recent Developments, 27 Wm. & Mary L. Rev. 943 (1986)Google Scholar; Dent, , Religious Children, Secular Schools, 61 So. Cal. L. Rev. 863 (1988)Google Scholar; Lupu, , Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933 (1989)CrossRefGoogle Scholar; Lupu, , Free Exercise Exemption and Religious Institutions: The Case of Employment Discrimination, 67 Boston U. L. Rev. 391 (1987)Google Scholar; Marshall, supra note 43; Pepper, supra notes 9 and 28. The multitude of sources cited in the above will lead the reader into the literature.

60. With its opinion in Employment Div. v. Smith, 495 U.S__, 110 S. Ct. 1595 (1990), the Supreme Court appears to have undone what I refer to in the following text as the “Sher-bert-Yoder” doctrine, retreating from the Madisonian vision back toward Reynolds and a more Jeffersonian view. The case, dealing with peyote usage as a basis for withholding unemployment compensation (and thus quite parallel to Sherbert), somehow became transformed into a test of the constitutionality of criminalizing religious peyote usage. Neither Sherbert nor Yoder was overturned, but the doctrine enunciated by those cases quite clearly is no longer valid. The opinion, handed down in April 1990, approximately one year after this paper was delivered, see note *, supra, deals with a complex and interesting case, involving a fascinating interleaving of state and federal issues. The Supreme Court did at least two rather surprising things in Smith. First it reached out to decide an issue that was not really presented. The facts dealt with unemployment compensation, not the criminal sanction. Second, in doing so, it accorded little respect to the Oregon Supreme Court's interpretation of Oregon law. The Oregon Supreme Court stated that the criminality of the conduct was (1) irrelevant to award or denial of unemployment compensation in Oregon and (2) hypothetical and hence irrelevant in the absence of a criminal proceeding. Smith v. Employment Div. II, 763 P.2d 146, 147 and n.3, 148 (Ore. S. Ct. 1988); Smith v. Employment Div. I, 721 P.2d 445 (Ore S. Ct. 1986). The case includes two opinions each from the Oregon and U.S. Supreme Courts, constituting a sort of tug of war between the two courts, and I shall not essay a description or analysis of it here.

Suffice it to say, Smith is the beginning of a new and drastically constricted free exercise doctrine, the specific contours and nuances of which remain largely undetermined. What is clear is that the post-Sherbert quarter century of free exercise doctrine has been abandoned, although the opinion by Justice Scalia surprisingly did not acknowledge that clear break with precedent. (The concurrence and dissent did provide that acknowledgement, 110 S. Ct. 1595, 1606-1613, 1615-1616, (O'Connor, J., concurring; Blackmun, J., dissenting) Smith thus renders the remainder of this section on “Doctrine and Precedent” of perhaps more historical than prospective interest in relation to judicial decisions under the First Amendment. (The Sherbert-Yoder doctrine may, of course, be of more direct interest in regard to the development of state constitutional law in the area of religious freedom). The remainder of this paper is not affected by Smith, other than by rendering the positions articulated here more of a critique of current doctrine than when they were originally written and presented.

61. See Pepper, supra note 28, at 308-312.

62. This is frequently called the unconstitutional conditions doctrine, and stands for the proposition that a government cannot accomplish indirectly, through denial or conditioning of benefits, that which it is constitutionally prohibited from doing directly. Sherbert is a primary precedent in this line of cases, which recently has become rather complex. It is crucial doctrine for cases like Bob Jones (non-profit status) and Quaring (drivers' license) where what is at issue is in form a government “benefit.” In Sherbert the court stated:

to condition the availability of benefits upon appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. 374 U.S. at 406.

63. This fifth element is but an application of the more general principle frequently referred to as the “least drastic means” analysis. This is usually presented as an inquiry into whether the government can reach its goal or serve its interest through means which do not impinge — or which impinge significantly less — on the constitutional right at issue. In this fifth element of the Sherbert-Yoder doctrine, the “less drastic means” is exempting religious claimants from an otherwise valid legal regulation.

64. See Pepper, supra note 9, at 341-44 and sources cited there.

65. 321 U.S. 158 (1944).

66. Id. at 165, 168.

67. 374 U.S. at 407.

68. 406 U.S. at 213.

69. Id. at 221-229.

70. Supra note 1.

71. Supra note 4.

72. 461 U.S. at 604, (quoting United States v. Lee, 455 U.S. 252, 257-58).

73. Id. See Laycock, , Tax Exemptions for Racially Discriminatory Schools, 90 Tex. L. Rev. 259 (1982)Google Scholar

74. 455 U.S. 252 (1982).

75. Id. at 259-62. For a brief discussion of Lee, see Pepper, infra note 81, at 299-302.

76. 476 U.S. 693 (1986).

77. There is some disagreement as to the holding in Bowen resulting from five opinions. A close reading of the opinions should reveal five justices following the Sherbert-Yoder doctrine to find it unconstitutional to require the father to provide a social security number for his daughter as a condition for receiving welfare benefits. See Pepper, supra note 28, at 319-22; Cf. Marshall, , The Case Against the Constitutionally Compelled Free Exercise Exemption, 7 J. Law & Relic. 363, 373 n.55 (1989)Google Scholar.

78. 476 U.S. at 724.

79. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1986); discussed in Lupu, supra note 59. See also Pepper, infra note 78 at 281, for a brief discussion of the determinative issue in Lyng. Justice O'Connor also wrote an elaborate dissent in Goldman v. Weinberger, 475 U.S. 503 (1986), a case dealing with the uniform requirements of the military conflicting with the wearing of a yannulke by an orthodox Jew. The Court held against the religious claimant in that case and in O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), a case dealing with a free exercise claim by a prison inmate. In both cases I would suggest that the holdings result more directly from a wariness of the Court concerning the relation between the Bill of Rights and total institutions in general, than from a rejection of the Sherbert-Yoder doctrine. See Pepper, supra note 28, at 322-23, and cases cited therein.

80. But see note 60, supra.

81. I have elaborated elsewhere on this aspect of free exercise law, focusing on several lower court opinions. See Pepper, , The Conundrum of the Free Exercise Clause—Some Reflections on Recent Cases, 9 No. Ky. L. Rev. 265 (1982)Google Scholar.

82. See, e.g., Garvey, , Free Exercise and the Values of Religious Liberty, 18 Conn. L. Rev. 779 (1986)Google Scholar; Smith, , The Special Place of Religion in the Constitution, 1983 Supreme Court Rev. 83Google Scholar.

83. Smith, R., Liberalism and American Constitutional Law 19 (1985)Google Scholar.

84. A few of the difficulties are discussed at Part IV below.

85. John Garvey compares it to madness, supra note 82, at 798. Although I think that comparison only partially apt, it is suggestive of the dominant secular view of our age and of how far we have travelled from 1787.

86. Lupu, , Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 U. Conn. L. Rev. 739, 761–778 (1986)Google Scholar.

87. If the exemption would be applicable to the majority or a substantial minority, the legal provision would probably not have been enacted in the first place. See Pepper, supra note 28, at 313-15. Thus exemption doctrine is unlikely to substantially undermine the effectiveness of government.

88. The issue might be put as one of “formal equality” in opposition to “substantive equality.” For a discussion which identifies the former with “establishment clause neutrality” and the latter with “free exercise accomodation,” see Developments in the Law—Religion and the State, 100 Harv. L. Rev. 1606, 1719 (1987)Google Scholar. See also part IV.A. below.

89. See, e.g., Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 Harv. L. Rev. 1468, 1472–74Google Scholar; Gedicks, supra note 38, at 106-115 and other sources cited supra note 38.

90. Federalism, the existence of the states, is the other protection for community in the Constitution. But few would think the states now are sufficiently small to support the values associated with community life.

91. Interestingly, the Supreme Court has felt the need to create constitutional shelter for aspects of family life even without a textual basis. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978); Moore v. East Cleveland, 431 U.S. 494 (1977); Loving v. Virginia, 388 U.S. 1 (1967); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); L. Tribe, supra note 25, at § 15-20.

92. Tushnet, supra note 39, at 729-38 (1986); supra note 41. I remain uncomfortable with the ambiguity of the usage “liberal” in this context, but will employ it nonetheless. In the more generic usage of “Uberai”, I am not sure it can be identified more with an individualistic than with a communitarian approach to law. See, e.g., Hauerwas, , Vinson, Le, et al., Faith in the Republic: Francis Lewis Law Center Conversation, 45 Wash. & Lee Law L. Rev. 467, 481–84 (1988)Google Scholar.

93. Text accompanying notes 50-53, supra.

94. Employment Div. v. Smith, 495 U.S. _, 110 S. Ct. 1595 (1990).

95. See parts II. A. and B., supra.

96. For a contemporary defense of this view, see Marshall, supra notes 43 and 77.

97. It cannot be denied that significant theoretical and structural aspects of the Constitution support the Jeffersonian approach. As mentioned above, text accompanying note 43 supra, the first amendment can be read as a unit protecting fundamentally communicative activity only (including religious speech, press and possibly worship to the extent it includes symbolic speech, but no other kinds of religious activity.) Also, as mentioned in section II. E. above, the emphasis of our constitutional tradition on equality does not square well, on first thought, with a constitutional protection for religious conduct that extends to no other kind of conduct.

98. Some of my earlier work has made some suggestions in this area. See, e.g., Pepper, supra note 28, at 325-336; Pepper, supra note 81; See also Clark, , Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327 (1969)CrossRefGoogle Scholar; Galanter, , Religious Freedoms in the United States: A Turning Point?, 1966 Wisc. L. Rev. 217Google Scholar.

99. Choper, , The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980)Google Scholar; Pepper, supra note 9, at 345-52.

100. McConnell, supra note 38.

101. See, e.g., note 88, supra.

102. Supra section II. D.

103. It should probably be mentioned, as well, that the view articulated in this paper which leads to a vigorous powerful free exercise clause can also lead to a similarly effective establishment clause. Personally, while I believe establishment clause doctrine leaves a great deal to be desired, I am not convinced that very many of the Supreme Court's cases have been wrongly decided. And most of those which I believe are wrong, such as Lynch v. Donnelly, 465 U.S. 668 (1984)(the nativity scene case), and Mueller v. Allen, 463 U.S. 388 (1982) (tax deductions for parents for some parochial school expenses), err on the side of failing to find an establishment violation where one has occurred.

104. Justice Scalia's cavalier observation in Smith II that “leaving accommodation to the political process will place at relative disadvantage those religious practices that are not widely engaged in …” seems singularly oblivious to the fact that he is interpreting and applying an explicit protection in a Bill of Rights. Employment Div. v. Smith, 495 U.S._, 110 S. Ct. 1595, 1606 (1990).

105. Automobiles are dangerous instrumentalities; unrestricted use by unidentifiable persons may create too much risk to tolerate, too complete a preference for religion, particularly in light of the non-consenting third parties who may be harmed. On the other hand, it might be that “less dramatic means” could be created by a sufficiently flexible government even for this situation. Those who had a genuine religious need not to carry a license (sincerity would be an important dimension of such a case), might register with the state, provide identifying information, and sign a waiver granting, in any situation in which a driver's license is normally required by law enforcement personnel, permission for detention until identification could otherwise be confirmed. This would certainly be a significant administrative burden on the state, but because the number of people claiming the exemption is likely to be very small, the occasions for detention would likely be extremely rare. (Such a waiver would have the incidental effect of helping to test the sincerity of the religious claim.)

106. For a more extended discussion of the sincerity issue and of the positions of Justices White and Stevens, see Pepper, supra note 28, at 325-31.

107. The establishment clause retains vigor under the neutrality view. Government cannot discriminate among religions in the granting of assistance or benefits, and it cannot discriminate in favor of religion generally by granting it benefits or assistance other similar activities or institutions do not receive. Of course, this creates one major discrimination: the constitutional provision discriminating against religion retains vigor and effect; the provision discriminating in favor of religion does not. Professor Kurland has been the foremost academic proponent of the “neutrality” approach, proposing that the clauses be read as a limitation “akin to … the equal protection clause,” prohibiting use of religious classifications “for purposes of governmental action, whether that action be the conferring of rights or privileges or the impostion of duties or obligations.” Kurland, P., Religion and the Law 17–18 (1962)Google Scholar, discussed in Pepper, supra note 9, at 347-48.

108. It is far too easy to forget, or not to notice, the simple fact that the “neutrality” approach is hardly neutral or equal in impact. Laws which impinge on religious conscience inflict an injury of a quite different kind on the believer than the inconvenience or general constraint on liberty that same law inflicts on one whose religion is not affected. Thus, neutrality and equality may lie in the eye of the beholder, and may depend on whether one looks at the face of a legal provision or at the effect on the claimant. For a discussion of similar issues concerning the importance of perspective, see Minow, , Foreword: Justice Engendered, 101 Harv. L. Rev. 10 (1987)Google Scholar.

109. Vitz, , Religion and Traditional Values in Public School Textbooks, 84 Pub. Interest 79 (1986)Google Scholar; Dent, , Religious Children, Secular Schools, 61 So. Cal. L. Rev. 863 (1988)Google Scholar.

110. The causes of this phenomenon are probably complex, and would be an important subject of empirical research. Mixed with misunderstanding of Supreme Court doctrine may well be (1) a preference to avoid even coming near the Constitutional line, (2) a preference for an excuse to avoid the sensitive and controversial questions of religion in public education, and (3) a bias that religion is appropriate in the private realm and inappropriate in the public realm. This, of course, would be in accord with the Enlightenment view of religion and with the dominant modern secular intellectual paradigm. See Dent, supra note 109, at 867-73; Pepper, supra note 28, at 306-07.

111. Eg. Epperson v. Arkansas, 393 U.S. 97, 106 (1968); Abington Township School District v. Schempp, 374 U.S. 203, 225 (1963); McCollum v. Board of Educ, 333 U.S. 203, 235-36 (1948) (Jackson, J. concurring).

112. Note 105, supra, and accompanying text.

113. This may be over-optimistic given the IRS' initially slow and ineffective response to the Universal Life Church claims of tax exemption for their “churches.” See Universal Life Church v. United States, 372 F. Supp. 770 (E.D. Cal. 1974); Note, , Mail Order Ministries, the Religious Purpose Exemption, and the Constitution, 33 Tax Law. 959 (1979–1980)Google Scholar; Schwartz, , Limiting Religious Tax Exemptions: When Should the Church Render Unto Caesar, 29 Fla. L. Rev. 50, 62 notes 81 and 82 (1976)Google Scholar. See also Heins, , “Other People's Faiths”: The Scientology Litigation and the Justifiability of Religious Fraud, 9 Hastings Const. L. Q. 153 (1981)Google Scholar.

114. 647 F. Supp. 1194 (E.D. Tenn. 1986), rev'd, 827 F. 2d 1058 (6th Cir. 1987)).

115. Id. at 1202, 1203.

116. In United States v. Lee, 455 U.S. 252 (1982), for example, the Court's apparent failure to follow the Sherbert-Yoder doctrine may have stemmed from concern that an opinion dealing with the narrow situation of the Amish and the Social Security tax might be misunderstood as applying to taxes in general, including income taxes. The opinion may also be based on the related concern that religion based exemptions from taxation are more likely to create sincerity and fraud problems than are exemptions from other governmental regulations. For a discussion of Lee, see Pepper, supra note 81, at 299-302.

117. See note 110 supra.

118. Employment Div. v. Smith, 495 U.S. _, 110 S. Ct. 1595 (1990), is a clear exception turning the articulated doctrine in a quite different direction.

119. Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Indiana Employment Security Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Compensation Appeals Comm'n of Florida, 480 U.S. 136 (1987); Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989).

120. Bowen v. Roy, 476 U.S. 693 (1986).

121. That they are not issues of major consequence does not mean that they are not of great importance to the individuals involved, or that how the state treats such individuals is not itself of major importance. Here I am addressing the consequences from the state's point of view of accomodating these individuals in the particular contexts in which the Court has held such accommodation required by the free exercise clause.

122. Pepper, supra note 9, at 333-45.

123. Id. at 344.

124. Mozert v. Hawkins County Public Schools, supra note 114. Several lower court decisions are examined in Pepper, supra note 81.

125. See Pepper, supra note 28, at 325-35.

126. Supra note 49.

127. In this regard it is interesting to note that in the last several years two of the “Forewords” to the Harvard Law Review's annual Supreme Court issue have been based on free exercise clause cases, but have been concerned with far broader matters. See Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)Google Scholar; Michelman, , Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986)Google Scholar. Each seems to have been imagining a legal regime with more room for difference, with significant legal space for community. Imagining a free exercise clause taken seriously leads in this direction.

128. See Pepper, , The Case of the Human Sacrifice, 23 Ariz. L. Rev. 897 (1981)Google Scholar, for some imagining along these lines testing the outer limits of freedom of religion. See also Hauerwas, , Self-Sacrifice as Demonic: A Theological Response to Jonestown, in Levi, K., Violence and Religious Commitment: Implications of Jim Jones's People's Temple Movement (1982)Google Scholar, for a discussion of the Jim Jones tragedy.

129. For an argument that such inequality is unfair, see Marshall, , The Case Against the Constitutionally Compelled Free Exercise Exemption, 7 J. Law & Relig. 363 (1989)CrossRefGoogle Scholar.

130. For discussions of defining religion under the First Amendment see Greenawalt, , Religion as a Concept in Constitutional Law, 72 Calif. L. Rev. 753 (1984)CrossRefGoogle Scholar; Choper, , Defining “Religion “ in the First Amendment, 1982 U. Ill. L. Rev. 579Google Scholar; Pepper, supra note 9, at 353-64 and sources cited there.

131. See L. Tribe, supra note 25, at Chap. 15.