Desired But Not Required
Antonin Scalia November/December 1997
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We held in Smith that the Constitution's Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." The material that the dissent claims is at odds with Smith either has little to say about the issue or is, in fact, more consistent with Smith than with the dissent's interpretation of the Free Exercise Clause. The dissent's extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that "constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause."
The dissent claims that Smith's interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by colonies, states, and territories in the period leading up to the ratification of the Bill of Rights. But the protections afforded by those enactments are in fact more consistent with Smith's interpretation of free exercise than with the dissent's understanding of it.
The Free Exercise Clause, the dissent claims, "is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law"; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct.
However, the early "free exercise" enactments cited by the dissent protect only against action that is taken "for" or "in respect of" religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken "on account of" religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or "discriminatory" action (New York Constitution); or, finally, action that interferes with the "free exercise" of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution).
It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to-such as zoning laws-would not constitute action taken "for," "in respect of," or "on account of" one's religion, or "discriminatory" action.
Assuming, however, that the affirmative protection of religion accorded by the early "free exercise" enactments sweeps as broadly as the dissent's theory would require, those enactments do not support the dissent's view, since they contain "provisos" that significantly qualify the affirmative protection they grant. According to the dissent, the "provisos" support its view because they would have been "superfluous" if "the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience."
I disagree. In fact, the most plausible reading of the "free exercise" enactments (if their affirmative provisions are read broadly, as the dissent's view requires) is a virtual restatement of Smith: religious exercise shall be permitted so long as it does not violate general laws governing conduct. The "provisos" in the enactments negate a license to act in a manner "unfaithful to the Lord Proprietary" (Maryland Act Concerning Religion of 1649), or "behave in other than a peaceable and quiet manner" (Rhode Island Charter of 1663), or "disturb the public peace" (New Hampshire Constitution), or interfere with the "peace and safety of the state" (New York, Maryland, and Georgia Constitutions), or "demean" oneself in other than a "peaceable and orderly manner" (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping "peace" and "order" seems to have meant, precisely, obeying the laws.
And while, under this interpretation, these early "free exercise" enactments support the Court's judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O'Connor or any of Smith's other critics. No one in that camp, to my knowledge, contends that their favored "compelling state interest" test conforms to any possible interpretation of "breach of peace and order"-that is, that only violence or force, or any other category of action (more limited than "violation of law") which can possibly be conveyed by the phrase "peace and order," justifies state prohibition of religiously motivated conduct.
Apart from the early "free exercise" enactments of colonies, states, and territories, the dissent calls attention to those bodies' and the Continental Congress's legislative accommodation of religious practices prior to ratification of the Bill of Rights. This accommodation-which took place both before and after enactment of the state constitutional protections of religious liberty-suggests (according to the dissent) that "the drafters and ratifiers of the First Amendment . . . assumed courts would apply the Free Exercise Clause similarly." But that legislatures sometimes (though not always) found it "appropriate" (Northwest Ordinance of 1787) to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith: "To say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required."
The dissent's final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of state or federal constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: there is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia's proposed general assessment for support of religion does not argue that the assessment would violate the "free exercise" provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and thus should not be approved by the legislators.
Likewise, the letter from George Washington to the Quakers, by its own terms, refers to Washington's "wish and desire" that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers' views of the "proper" relationship between government and religion, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered "the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises"; but it is quite clear that Jefferson did not, in fact, espouse the broad principle of affirmative accommodation advocated by the dissent.
It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by state constitutions or by the federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none-and to my knowledge, and to the knowledge of the academic defenders of the dissent's position, none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege to protect a Catholic priest from being compelled to testify as to the contents of a confession. Even this lone case is weak authority, not only because it comes from a minor court but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court's simply modifying the common-law rules of evidence to recognize such a privilege.
On the other side of the ledger, moreover, there are two cases from the Supreme Court of Pennsylvania flatly rejecting the dissent's view. In Simon's Executors v. Gratz, the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who "refused to be sworn because it was his Sabbath."
I have limited this response to the new items of "historical evidence" brought forward by today's dissent. (The dissent's claim that "before Smith, our free exercise cases were generally in keeping" with the dissent's view is adequately answered in Smith itself.) The historical evidence marshaled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith.
The dissent's approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: it shall be the people.
Antonin Scalia is an associate justice on the U. S. Supreme Court. This article was adapted from his concurring opinion in Boerne v. Flores.