RELIGION AND THE CONSTITUTION

Vol. 17 No. 1 (January, 2007) pp.71-74

RELIGION AND THE CONSTITUTION: VOLUME 1: FREE EXERCISE AND FAIRNESS, by Kent Greenawalt. Princeton, NJ: Princeton University Press, 2006. 480pp. Cloth. $39.50 / £26.95. ISBN: 0691125821.

Reviewed by L. Joseph Hebert, Department of Political Science, St. Ambrose University, Davenport, IA. E-mail: HebertJosephL [at] sau.edu.

This book is the first in a two-volume series by the distinguished Columbia University legal scholar, Kent Greenawalt, exploring the religious clauses of the U.S. Constitution. Greenawalt, whose previous works have dealt with conflicts between law and private morality in a liberal democracy, gives us an exhaustive account of the legal controversies surrounding the free exercise of religion in the United States.

Written from a “contemporary, analytical perspective” (p.11), FREE EXERCISE AND FAIRNESS takes great pains to balance arguments about what constitutes enlightened policy in a modern democratic setting with considerations taken from court precedents, pertinent legislation, and the constitution itself. Greenawalt covers all the necessary ground – from compelled professions of belief to exemptions from military service, drug laws, educational requirements, military and prison regulations, unemployment compensation qualifications, and Sunday closing laws; from protections for sacred land and confidential communications with clergy to the adjudication of property disputes and tort liability involving religious groups; from discrimination by and against religious believers in the workplace to the rights of religious parents versus state interests in child welfare or the rights of a divorced spouse. Greenawalt is a masterful guide to the range of issues and varied sources concerning free exercise, and teachers and scholars of constitutional law will find his book an invaluable resource on free exercise questions.

The book also aims at developing a theory of free exercise, one that is framed around a question haunting all of the more difficult cases discussed: “Does treating religious individuals and organizations fairly mean regarding them like everyone else or giving them a mix of special benefits and disadvantages?” The chief thesis of Greenawalt’s book is that there is no set answer to the questions whether believers ought to be exempt from general laws and, if so, whether exemptions ought to be extended to non-believers as well. Rather, conclusions hinge on a set of major considerations or general values as applied to the discreet issues involved in different types of cases (pp.1, 256). Greenawalt’s own answers unfold over the twenty-three chapters of the book, as he tackles the sets of cases sketched above, using them to illustrate and develop the general values mentioned in his thesis.

The great advantage of this approach is that it opens the book to readers with different understandings of the religion clauses, allowing “the reader to understand troubling conflicts and [*72] undertake his own critical examination of them” (p.7). Without slighting the importance of moral and legal principles, Greenawalt constantly places them in tension with the diversity of political and social phenomena, testing their ability to resolve the questions judges and legislators must in fact resolve. This volume is not only informational but theoretically stimulating, regardless of one’s views on free exercise and disestablishment.

In this sense, it is true that Greenawalt’s book “does not directly depend” on his own value judgments concerning free exercise (p.4). Still, the book is suffused with such judgments. These can be summarized, however inadequately, by saying that citizens should be exempted from laws that interfere with actions motivated by strongly held religious beliefs unless the law advances a compelling state interest; and that this accommodation should extend to nonbelievers with similarly strong convictions whenever this is feasible – all of this being qualified by the necessity for rules that are easily administered by courts. In other words, Greenawalt advances a certain version of the “Sherbert test,” named after the case, SHERBERT v. VERNER (1963).

This preference places Greenawalt in tension with the U.S. Supreme Court’s EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH (1990), which he identifies as “a crucial divide in free exercise law” (p.81). He accuses the SMITH Court of having “abandoned the free exercise doctrine that prevailed during the previous quarter century” – rooted in SHERBERT – “according to which the state had to show a compelling interest in applying a law against people whose religious exercise is burdened” (p.77). The tension between SHERBERT and SMITH, familiar in free exercise literature (see, e.g., Ryan 1992), comprises a major theme of FREE EXERCISE AND FAIRNESS.

Though Greenawalt explores means to get around SMITH without overturning it (e.g., p.232), he cannot justify doing so without insisting that SMITH was wrongly decided (p.179). As he rightly notes, “to limit free exercise rights to laws that target religion or classify according to religion is sharply to restrict the scope of the Free Exercise Clause” (p.81). The SMITH Court, however, seeks to find a middle ground between these possibilities, allowing courts to overturn or carve out exceptions to laws that target religion, laws that burden religion along with other constitutional rights, or laws that make exceptions for other conflicts, but not for religious ones. What the SMITH Court rejects is the notion that “an individual’s religious beliefs,” all by themselves, “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate” (SMITH, at.878-879).

Greenawalt’s impassioned critique of the precedential value of this decision – he remarks that the Court “fooled no one familiar with free exercise law” (p.78) – while it echoes the sentiments of many, is not especially convincing. Courts will interpret precedents narrowly or broadly in light of what they consider sound constitutional law. The deeper question [*73] is whether the Court’s limitation of the occasions for judicial balancing is sound. On this point some will remark deficiencies in Greenawalt’s treatment of SMITH that also apply to FREE EXERCISE AND FAIRNESS as a whole.

Though Greenawalt distances himself from originalism – the notion that constitutional clauses must be interpreted in accordance with their original meaning – he is at pains to include originalist perspectives in his analysis. And yet he often seems impatient with the concerns of actual originalists. For instance, he comments ironically that the SMITH Court “relied little on original understanding” of the Free Exercise clause, which he believes comports with SHERBERT (pp.31, 179). He notes that Justice Antonin Scalia, SMITH’s author, is “a strong believer in clear lines that reduce judicial discretion,” and that SMITH “decisively leaves to legislatures the choice whether to exempt” (pp.31, 82). Yet Greenawalt never acknowledges that for many, including Scalia, originalism is not simply a matter of abstract interpretation. Rather, it is tied to the desire to limit the interference of courts in the democratic process by narrowing the grounds on which courts can overturn governmental acts. Though Greenawalt is unfailingly precise in noting complex institutional realities when they affect the implementation of his free exercise theory, greater attention to the question of where courts and legislatures ought to fit into our constitutional order and how they ought to contribute to its maintenance would have been welcome in a book on constitutional law.

Greenawalt’s objection to the SMITH Court’s preference for legislative determination of free exercise rights is that legislatures are less likely to provide exemptions for unpopular beliefs than are courts (p.79). Scalia admits as much in SMITH, but calls this an “unavoidable consequence of democratic government,” the only alternatives to which are anarchy or rule by judges (SMITH, at 890). Though this claim is debatable, it rests on reasonable fears about what may become of the rule of law – especially in the context of a wide “diversity of religious beliefs” – if courts deem “presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order” (SMITH, at 888). Greenawalt passes over such fears in this context and gives them little weight in the rest of his book.

Greenawalt’s concern with protecting unpopular religious practices meshes with his view that, if government is to exempt religious believers, it may only do so on the subjective strength of their beliefs and not on consideration of their intrinsic merits (pp.3, 74, 177, 182, 261-262, 309, 372). And yet Greenawalt admits that the state interest against which religious claims must be balanced is itself a kind of judgment passed on those claims. A society whose dominant religion requires human sacrifice will exempt ritual killings from secular murder laws; our society will never do so (pp.299-300). Greenawalt himself would deny, or consider denying, free exercise in cases where it threatens [*74] physical health in ways he (and others) finds unacceptable (pp.302, 308, 325, 402).

Every law is based on some moral view, and every religion implies a set of moral views. Though a given law might be neutral with respect to certain religions that take no position on its subject matter, or whose positions harmonize with the law, no law can be neutral with respect to religion in general. Any practicable system of religious freedom must draw the line somewhere, and it is fair to question whether a law that seeks to minimize its impact on contrary beliefs as such is not undermining the source of its own moral force, whatever that may be.

It would be unfair to accuse Greenawalt of being unaware of these and other questions that could be raised about his premises. As noted, he constantly alerts the reader to moral and philosophical issues that directly bear on the cases he discusses, clearly indicating his own answers (see especially pp.3-4, 394, 439). One can only be impressed by Greenawalt’s ability to trace a coherent free exercise theory through the complex web of precedents, legislation, and scholarly arguments. And yet the absence of any extensive treatment of core notions such as neutrality – a theme he mostly reserves for Volume II of RELIGION AND THE CONSTITUTION – leaves many key judgments in this volume vaguely grounded. This criticism aside, Greenawalt has written a book that will be of immense help in mapping out and grappling with the theory and practice of free exercise law and public policy.

REFERENCES:

Ryan, James E. 1992. “SMITH and the Religious Freedom Restoration Act: An Iconoclastic Assessment.” 78 VIRGINIA LAW REVIEW 1407-1462.

CASE REFERENCES:

SHERBERT v. VERNER, 374 U.S. 398 (1963).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN SERVICES OF OREGON v. SMITH, 494 U.S. 872 (1990).

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