Mirror of Justice

I appreciated the article to which Michael linked the other day, about the Smith case and its implications for religious liberty.  Obviously, I'm a fan of religious freedom, and appreciate fully the importance of an accommodations-regime to the health of religious freedom.  Having just returned from a conference on the anniversary of Smith at which it seemed clear that, for many, Smith is worth celebrating precisely because it makes it easier to remove the obstacles that religious-conscience can pose to certain regulatory and other agendas, I like to think I'm not naive about the dangers.  That said, the article's author, Allen Hertzke, writes:

In his majority opinion, Scalia argued that religious practices are not exempt from neutral and generally applicable laws unless legislators write those exemptions into law. At one level this rationale conformed to Scalia’s characteristic deference to legislative will. Religious accommodations are a legislative, not judicial, prerogative. But a deeper reading of his decision indicates something more troubling: the denial that even the most profound religious conscience claims need to be accommodated by authorities. . . .

I do not read as containing any such denial.  Indeed, one of the regrets I heard expressed about Smith at Cardozo was that it was too welcoming, in its language of legislative accommodations.  To say that "religious conscience claims need to be accommodated by authorities" is not, it seems to me, to say that "federal judges ought to have the power to carve out exemptions from generally applicable laws whenever they believe that such exemptions can be extended without jeopardizing a compelling state interest."

Hertzke also writes:

In a landmark volume on the subject sponsored by the Becket Fund for Religious Liberty, Marc Stern, formerly of the liberal American Jewish Congress, meticulously catalogues how law will undercut religious freedom if same-sex marriage is widely adopted or, more likely, imposed by the courts without any provision for religious exemptions. In a remarkably dispassionate tone, Stern analyzes the welter of federal and state statutes, judicial rulings, and regulations on civil rights, harassment, public accommodations, commercial licenses, professional codes, government contracts, service vendors, reproductive technologies, student speech codes, and housing access. Though sympathetic to gay rights and supportive of laws enabling couples to organize their shared lives, Stern reaches a sobering conclusion: Once same-sex marriage is codified in law, this whole governmental apparatus will come down on dissenters—especially orthodox Jews and Christians and their institutions—and there will be little that can be done to ameliorate the effect. The freedom to affirm and to live in accordance with the biblical view of marriage—the view held by the Founders and by most Americans through the centuries—will have been profoundly diminished.

Against this formidable threat, the constitutional doctrine of strict scrutiny provides the most effective shield for believers unwilling to compromise duties they see as transcendent and for religious institutions determined to defend their autonomy. Given the manifest peril, it’s worth investigating new legislative remedies, however daunting the prospects.

But legal theorists and jurists also must take a fresh look. In the current environment of growing elite hostility toward religion, the test of compelling interest, which provides robust justification for accommodation of religious practices and institutions, is truer to the spirit of James Madison than putative neutrality. In his famous Memorial and Remonstrance, Madison anchored religious freedom in the “duty towards the creator” that “is precedent, both in order of time and in degree of obligation, to the claims of civil society.” Because of this prior duty, “no man’s right is abridged by the institution of Civil Society.” Because religious liberty is, in this profound sense, the first freedom, a key measure of a free society is the extent to which people are not forced to choose between sacred duties and citizenship obligations. 

In his day, Madison thought that the prior “duty towards the creator” would be protected if religion were “wholly exempt” from the “cognizance” of civil society and its law; thus he saw no need for religious exemptions or accommodations. In the contemporary environment, however—where zoning boards prevent church construction, where the Amish can’t build their houses in accordance with their faith, where abortion rights trump religious conscience, where support for traditional marriage is equated with bigotry—avoiding “cognizance” of religion in the supposedly neutral application of secular laws will eviscerate religious liberty. In the regulatory age, the compelling interest justification properly recognizes religious liberty as a fundamental right, forged in the crucible of the nation’s social compact. 

I agree -- these warnings and reminders are welcome and appropriate.  It is *not* the case (but, in my view, Smith never says otherwise) that what religious freedom is is merely religion-blind neutrality or non-"cognizance" by government.  More is needed, to guarantee freedom for religion.  My point is just that Smith does not preclude us from doing more.