The Law and Philosophy Workshop started out winter quarter with Douglas Laycock’s presentation of his paper “Religious Liberty as Liberty.” As Laycock explained at the workshop, this paper was, in a way, a response to John Garvey’s statement that it is possible to imagine a society of skeptics having a guarantee of liberty similar to the one embodied in our Free Exercise Clause, but that this is far-fetched. Laycock’s project was to explain why a society of skeptics should have a Free Exercise Clause, and an Establishment Clause to boot. This is closely tied to his argument for the best interpretation of these clauses: The proper governmental role is to minimize incentives pushing people towards, or away from, religion. This paper is also a response to theorists on both sides of the “culture wars.” Laycock insists that those who argue that the Constitution is either pro- or anti-religion are making a mistake. We are no more a Christian nation than we are a nation that has rejected religion. The Religion Clauses represent the determination that our government should not take a stand either way. Religious questions should be answered privately and the government should interfere as little as possible into the search for these answers. There is one clear exception here that should be noted. The government must take a stand on whether or not the government should be an agent of the church. And it has; the Establishment Clause requires that the government not take on this role.
Laycock’s approach is one of combined history and theory. In addressing why we have religious liberty at all, he points out early on that it should be good enough to trace the guarantee to the Constitution. However, he acknowledges that this answer would clearly be unsatisfying to anyone curious enough to ask the question. Moreover, a theory of why we have religious liberty is likely to be helpful in determining what religious liberty requires in a hard case. Laycock lays out two requirements for such a theory. It must make sense of the ratified text and it cannot rest on doctrine of any particular religion.
There are three secular/historical propositions that Laycock puts forth as the framers’reasons for including special protection for, and against, religion in the First Amendment. The first is that they were aware that attempts to suppress religion had, in the past, caused great human suffering. This suffering was recognized by James Madison to be the direct result of religious persecution that could only be alleviated through a guarantee of “equal and complete liberty.” Religious disagreements are intractable; therefore, the only solution is, in a sense, to agree to disagree. The second proposition is that religious beliefs are of great importance to those who hold them. People will go to great lengths, even die, for them. This is part of why religious disagreements can be some of the bloodiest, but Laycock asserts that this is also an independent reason to allow the parties that care the most about such beliefs to make their own decisions about them. The third proposition is that the government rarely has an important interest in answering religious questions for its people. A person who firmly believes that the state should support religion, or a particular religion, will disagree on this point. But it is difficult, if not impossible, to imagine how this view could be reconciled with the Establishment Clause, so this debate can be seen as settled unless we want to talk about amending the Constitution further. There were times when the majority opinion was that only Christians, or particular kinds of Christians, could be good citizens. But Laycock asserts that the founders were well aware that religious uniformity is not required to ensure the loyalty of citizens. This is not to say that the government never has a legitimate or important interest in the religious beliefs of its citizenry, just that this is not the norm. Some of the founders may have been skeptical about the ability of an atheist to testify under oath, but they did realize that laws prohibiting murder can be respected without any agreement on why they are to be respected. It is important to remember that this section is not so much a justification of the Religion Clauses as an explanation of why the framers included them in the Bill of Rights. The history and the text combined are definitive evidence that the framers did not want the federal government to declare a state religion. This in turn, is very strong evidence that they believed that individuals generally have more salient reasons for keeping their beliefs than the government has for changing them.
In the next section of the paper, Laycock explains the implications of these three propositions. The most obvious implication is that the government cannot legitimately exercise coercive power in order to create incentives for its citizens to accept certain religious beliefs. This is based more on the reasonable prediction that these attempts will fail and lead to intense human suffering than on a worry that they will be succeed. More importantly, though perhaps less obviously, the government often cannot legitimately exercise coercive power in order to create incentives for its citizens to carry out, or refrain from, certain religiously motivated behavior. The first two propositions apply to behavior in exactly the same way that they apply to belief. The third is trickier. As stated above, the government has little interest in why an individual doesn’t kill as long as she doesn’t kill. But what if she does kill? The government then has a strong interest in responding to this behavior, even if it is religiously motivated. In cases like this, where there is a compelling state interest, Laycock does believe that free exercise may be legitimately burdened.
It is clear that the government is exercising coercive power when the police arrest someone; but, Laycock sees coercion in other governmental behavior that is not so clearly forceful. The allocation of money, licenses and privileges are all part of the coercive power of the state. For this reason, the government should never allocate these resources in such a way as to create incentives for people to change their religious beliefs or behavior absent a compelling interest. There is general agreement that the government should be neutral with respect to religion, but there are different types of neutrality. One view, formal neutrality, is that the government merely should not make religious classifications. Under this view, it is not acceptable for the government to ban religiously motivated behavior when that same behavior is allowed when done for secular reasons. Formal neutrality, however, does not require accommodation from generally applicable laws. Substantive neutrality, on the other hand, is concerned less with classification and more with the encouragement or discouragement of certain beliefs and behaviors.
The difference between these types of neutrality can be seen more clearly by comparing and contrasting three important cases interpreting the Free Exercise Clause: Sherbert, Lukumi and Smith. Sherbert involved a Seventh Day Adventist who was not able to work because all of the business in her area required six days of work, the day off being Sunday. Her religion’s day of rest was Saturday. She was denied unemployment because it was argued that she had refused suitable work. The Court held that this violated the Free Exercise Clause and granted her an exemption. In Lukumi, a Florida city banned the ritual killing of animals if the killing was not done for the primary purpose of consumption. It was clear to everyone involved that the law was meant to implicate Santeria (and only Santeria). It has been pointed out that this law was carefully drafted so as to not implicate kosher slaughtering, which is ritual but also for the primary purpose of consumption. This was also seen to violate the Free Exercise Clause and the law was declared unconstitutional. Finally, Smith involved a Native American man who was fired from his job as a result of his use of peyote in a religious ceremony. There was no statutory exception for religious use and the Court refused to find one. In Sherbert, the Court embraced substantive neutrality, while in Smith it opted for formal neutrality. Lukumi was an easy case; the holding is consistent with both types. Justice Renquist’s majority opinion reinforced Smith, while Justice Souter’s concurrence channels Sherbert. One could argue that Sherbert isn’t a perfect example of substantive neutrality because allowing someone to collect unemployment based on her minority religion’s day of rest may encourage membership in that religion. However, this is really more of an empirical question than a theoretical one. In most cases, courts employing this test will be forced to choose between requiring an accommodation that may encourage belief or not requiring it and thereby discouraging belief. It is certainly reasonable to interpret the Court’s holding that there was no compelling interest to deny her claim as a determination that allowing it minimized the sum of religious encouragement and discouragement.
It is plain that substantive neutrality will require exemptions from generally applicable laws in some cases, but not in all, namely when there is a compelling government interest. These claims will be strongest when there are not secular self-interested reasons for wanting a given exemption. If an exemption is desirable for secular reasons there is a worry that too many people would try to claim it, creating a compelling interest to disallow all exemptions. Additionally, substantive neutrality will, in certain cases, require exemptions based on nontheistic beliefs, but only when there is a real analogy to cases where exemptions would be granted based on theistic beliefs. The line here is blurry and Laycock does not provide a clear explanation of when this is the case, but he does provide the motivating principle. “The Religion Clauses guarantee government neutrality with respect to answering religious questions; a new set of answers has become important in our time, and those who give such answers must be treated neutrally.” However, Laycock is not entirely committed to this neutrality. He argues that if judges insist on reading the Free Exercise Clause as exclusively requiring exemptions for theistic beliefs, then they should not also read the Establishment Clause to disallow all exemptions as establishments of religion. This would be unacceptable for him because there is an overwhelming majority of theistic believers in this country. “I would prefer liberty and neutrality for all, but if forced to choose between liberty and neutrality for 95%, or liberty for none and neutrality for all, the constitutional choice is easy.” He argues that the 5% is not significantly better off in the second scenario. There was vigorous disagreement in the workshop on this point. The constitutional injury of “feeling slighted” is not something to be ignored. Laycock responded that when the general law is terribly burdensome, it is extremely likely that the court will find a compelling interest to disallow all exemptions, so the feeling of being slighted will only occur in cases where the effect of the law is smaller and he is not so concerned with it there.
I should point out that substantive neutrality, however, is not the law at the moment. At the time this paper was written, Smith had been overruled by Congress with the Religious Freedom Restoration Act (RFRA). RFRA stated that the Free Exercise Clause should be interpreted the way it had been in Sherbert. The free exercise of religion should not be burdened without a compelling government interest. RFRA was later held to be unconstitutional (at least) with respect to the states, taking us back to the Smith standard.
Next time: 01/12/09 Andrew Koppelman