The essays that follow were originally presented at a conference held in connection with the bicentennial of Georgetown University. The topic, the constitutional status of claims for exemption based on religion from general legislation, fit well into the bicentennial's theme “Learning, Faith, Freedom.” The connection between claims based upon faith and the freedoms we exercise could be illuminated by a scholarly examination drawing upon the disciplines of law, history, and theology.

The historical studies provide an overview of the background of the religion clauses of the first amendment, and a case study of the implementation of the principles of those clauses in the nineteenth century. Father Curry's essay stresses the inconsistency between the articulated principles of nonestablishment and free exercise, and the actual practices in the colonies and early republic. By bringing the historian's sense of the complexity of experience to the subject, he provides a useful corrective to the lawyer's usual effort to rely too heavily on historical experience to justify contemporary positions about the meaning of the first amendment. At the same time, Father Curry does not hesitate to say that the inconsistencies between historical practice and principles should probably be resolved in favor of principles, on the ground that practices were unreflective and habitual, whereas principles were articulated in the midst of controversies that required Americans to think seriously about the nature of their most fundamental commitments.

The history of Church-State relations in seventeenth and eighteenth century America is the account of the process by which the arguments of those who asked for exemptions from contemporary Church-State practices became the accepted norms for society at large.

There is an essential distinction, however, between the demand for exemptions in that period and modern claims for exemptions on account of religion. In our time, religious people ask for exemptions from laws that society generally sees as inherently secular; and they generally ask for exemptions for themselves or their group, but do not specifically attack the laws and usually have little difficulty with others being bound by them. In the seventeenth and eighteenth centuries, laws such as proclamations of days of prayer and fasting, or laws for the financial support of clergy, were essentially religious in nature but were passed for the secular purpose of bolstering the moral fabric of society. Moreover, although those opposing them were often willing to settle for exemptions only for themselves, they usually attacked the legislation as bad for society, as a violation of religious liberty.

Thomas Curry's synopsis of church-state practices in seventeenth and eighteenth century America is notable for its modesty and balance. When lawyers and judges paint the religious history of that period they picture events like cows on a hillside—all pointing in the same direction. (Of course the cows point different ways in different pictures; it depends on which way the wind is blowing.) The scene Curry describes is more disorderly. This makes it harder to identify trends that we might say were embodied in first amendment principles. But it prefigures, and helps explain, our messy first amendment practices.

Curry argues that two topics dominated church-state discussions from 1600 to 1800: (1) the government's power to legislate about religion, and (2) public financial support for ministers. As to the first issue, Americans gradually accepted the principle, espoused by Roger Williams, that government had no power over matters of religious worship and practice. But they did not live up to this principle. They passed laws about sabbath observance, blasphemy, days of prayer and fasting, and religious qualifications for office. In this, they followed the practice of John Cotton, who thought that the two tables of the Ten Commandments (religion and morals) must stand or fall together. “The principle was the principle of Williams, but the practice was the practice of Cotton.” As to the second issue, financial support for ministers, practice converged more with principle. But there were exceptions, as in New England. And those who opposed support often did so for no principle more lofty than the fear that it would go to the Church of England.

The Mormon cases present a fascinating study of diversity and conformity in the United States in the nineteenth century. From their beginning the Mormons were a gathered people. Almost immediately, from their origins in New York, the Mormons challenged the legal systems in the nation and the states where they resided to protect or at least tolerate their idiosyncracies. Mormon belief and practice came to include communal economics, theocratic government, and most challenging and offensive of all to the larger national community, a radically different marital and social practice—polygamous marriage.

Mormon history began in New York and continued briefly in Ohio where Mormons first gathered. Mormons experienced their most savage suppression in Missouri, where the Governor, Lilburn Boggs, finally issued an extermination order and the “Mormon war” finally saw Mormons driven into Illinois to seek refuge and a new community. After the community initially welcomed Mormon refugees, the abrasiveness of a people who were so incapable of assimilation into the existing society led to conflict again, culminating in the murder of Joseph Smith, the founder of Mormonism, and his brother Hyrum. The Mormon exodus to the Great Basin of the American West followed, under the direction of Brigham Young, one of this nation's leading colonizers. But the story of free exercise of religion among the Mormons in nineteenth century America had just begun.

This comment on the papers of Father Curry and Professor Firmage is an attempt first, to stress the importance of the history of religious exemptions in America, and second, to suggest some questions relating particularly to the group aspects of that history.

Father Curry argues that two topics “embraced the substance” of church-state discussions: the power of governments to legislate in matters of religion and, more specifically, financial support of clergy. “Through the discussion of these two topics Americans exhibited what they meant by religious freedom.” Father Curry also suggests that other problems existed and that these points (including sabbath legislation or conscientious objection) “became on occasion a hazard for some individuals and groups.” However, he concludes, “these subjects never became the subject of widespread dissent or discussion on church-state matters, nor did they contribute to the clarification of what Americans meant by religious freedom”.

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.

Free exercise jurisprudence is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.

There are a number of tensions underlying the notion of constitutionally compelled exemption and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. Thus, as the Court noted recently, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.

My first reflex in the face of a good debate within a discipline other than my own is to try to find a way through the melee. One would like to stand so to speak outside the fray in order to adjudicate or mediate. In this case I cannot do that. The two players, Marshall and Pepper, seem to a layman to be playing on the same field, with some of the same landmarks on the skyline, but they seem to be playing by different rules, each team having brought along its own ball and its own referee. I see no way, and I am not sure there is a need, to stand between or above the two positions to adjudicate their difference.

I therefore must attempt to come at the conversation from two other perspectives, grateful to have been educated just a little by watching the expert jousting laid before us. I shall attempt, once as amateur historian of American culture, and once as simple “religious” citizen, to describe what seems to me to be at stake, giving attention especially to the gaps where the two papers — in what they agree about more than in their debate — leave this reader dangling.

What is more miserable than uncertainty!

Martin Luther, ON THE BONDAGE OF THE WILL

Accordingly, those who thus philosophize more subtly over these terms appear to be ridiculous

John Calvin, INSTITUTES OF THE CHRISTIAN RELIGION

Commentators agree about two things concerning the free exercise clause of the first amendment: first, that its primary purpose is to protect religious liberty; and second, that its jurisprudence seems unguided and incomprehensible. Scholars and courts have proposed various free exercise tests, none of which has proven satisfactory in producing consistency and predictability. Moreover, such tests invariably require judges to make subjective inquiries into beliefs; such inquires are harmful to religious freedom. This article proposes a clear, practical and objective free exercise test for granting judicial exemptions to individuals, based on the underlying value of safeguarding religious liberty.

Ever since the Puritans sighted their earthly Paradise somewhere near Plymouth Rock, the New World has been a nesting ground for sects, cults, revivals and alternative religions, both homegrown and imported. Today's cult religious groups, such as the Unification Church or the Church of Scientology, are like their predecessors in offering their adherents not merely an alternative religion but an alternative life style. The English Puritans, for example, were a small sect, most of whose members lacked political and economic status in the dominant culture. Their religion offered them an alternative vision of human worth that required their removal from the larger culture and acceptance of a counter-cultural life, including homogeneity in dress and demeanor, and a daily regimen in which most of their thoughts and activities focused on the religious community and its goals. In return for their immersion in the sect, adherents were granted membership in a family of like-minded people and the sense that their lives had meaning and value.