As the cases challenging the Health and Human Servicesmandate make their way through the courts, the main claim is that those whoobject to the mandate on the basis of religious conscience should be exemptedfrom the law’s requirement of providing objectionable drugs and services. Thegoal is admirable, but this way of thinking isn’t. I’ve become convinced thatwe should see protecting religious freedom as grounds for limiting politicalpower, which means striking down laws that threaten that freedom rather thangranting exemptions to laws that otherwise stand intact.
The idea that the First Amendment could be the basis of a constitutionallyrequired exemption from otherwise universal legal duties did not arrive inAmerican law until 1963, in Sherbert v. Verner. The case concerned aSeventh-day Adventist who would not work Saturdays and thus was deniedunemployment benefits. The Supreme Court held that the free exercise ofreligion required an exemption from an otherwise valid policy.
A number of interesting cases followed the Sherbert precedent, notably Wisconsin v. Yoder (1972), exempting the children ofOld Order Amish from a requirement to attend school until age sixteen. The barremained high for religious claimants, but they won occasional exemptions. Thenin Employment Division v. Smith (1990), the Court held that members ofthe Native American Church could not claim a religious exemption forunemployment benefits after they were fired for using peyote, a criminaloffense in Oregon. The Court’s reasoning seemed to bring the exemptionsexperiment to an end.
But Smith was comprehensively criticized—including inthe pages of this magazine—and a remarkable inter-religious coalition gatheredtogether to advocate the passage of the Religious Freedom Restoration Act threeyears later, in an effort to re-establish, by statute, the legal template forreligious exemptions to otherwise generally applicable laws. It’s this act thatprovides the basis for the primary legal strategy of the litigants against theHHS mandate.
I wish them every success. However, I don’t think exemptionswill work over the long haul. We need to recapture something of an olderapproach to the law of religious freedom, which prevailed in the decades before Sherbert was decided a half-century ago.
In Sherbert, the plaintiff was a Seventh-dayAdventist. In Yoder, an Amish family. In Smith, members of theNative American Church. What do they have in common? I mean no moral judgmenthere when I say that, sociologically speaking, these are oddball faithcommunities: small, distinctive minorities, with decidedly out-of-the-mainstreamreligious beliefs.
It is easy to see how laws enacted in good faith can fail totake the beliefs of oddball groups into account, often unwittingly. It is alsoeasy to see that exemptions for small and distinctive minorities cause littledislocation to the law in general, which continues to apply with near universality.This was true with exemptions from militia service for Quakers early in ourhistory. Quakers were few, and there was little reason to fear that this wouldamount to a high number of exemptions. In short, the carving out of exemptionsfor small and unusual groups does not “honeycomb” the law with great gaps thatcall its (almost) universal character into question.
A concern to uphold the universal character of the lawpredominated in pre-Sherbert thinking about religious freedom. And thepioneers in litigating religious freedom claims were one of America’s mostdistinctive religious minorities. The Jehovah’s Witnesses were the key partiesin virtually every significant case in which religious freedom was litigated inthe 1930s and 1940s, at a time when the entire field of religious freedom lawcame into being.
Some of these cases they won and some they lost, but in noneof them did the Witnesses claim or receive an exemption from an otherwisegenerally applicable law. During this time, the justices of the Court did notseriously consider exemption as an appropriate alternative to upholding orinvalidating the law as it applied to everyone.
The two famous flag salute cases, Minersville SchoolDistrict v. Gobitis (1940) and West Virginia Board of Education v.Barnette (1943), illustrate the point. In each case, the issue wascompulsory performance of a flag salute by children in public schools, a signof patriotic loyalty to the nation that implied obligations to defend it. Couldthe state compel such an avowal of belief contrary to what their religion taughtthem? The Witnesses’ faith taught that such salutes and utterances wereforbidden idolatry, directly condemned in the Decalogue, and that they did notowe the United States either their allegiance and loyalty or their efforts tocome to its defense.
The Witnesses lost the first case, Gobitis, in 1940,by an eight-to-one vote of the Supreme Court. A wave of anti-Witness hostility,both official and unofficial, followed in the ruling’s wake. In 1943—whetherbecause of this spike in anti-Witness abuse and violence or not is difficult tosay—the Court reversed itself in the Barnette case, overturning the Gobitis precedent by a six-to-three vote.
The reasoning in the Barnette case is worth dwellingon. Rather than granting an exemption, the Court overturned the compulsory flagsalute in its entirety. While pledging allegiance to the flag (with a moresubdued physical salute) continues to this day to be routine in America’spublic schools, for the seventy years since Barnette it has beenunlawful to compel any student to participate, and no student who elects not toparticipate is obliged to give any reason for that choice. The Pledge ofAllegiance is, from a legal standpoint, an entirely voluntary exercise.
Notably for our purposes, at all stages of the Barnette litigation in the courts below—as in Gobitis before it—the issues hadrevolved entirely around the schoolchildren’s claim regarding their freeexercise of religion. But in his majority opinion, Justice Robert Jacksonchanged the subject. Now the case was about freedom of speech, and not about(or almost entirely not about) freedom of religion.
The core of Jackson’s argument in his opinion for the Courtwas that the obligatory flag salute and pledge constituted compelled speech.The law required “affirmation of a belief and an attitude of mind,” and Jacksonasserted that the Witnesses’ motive for refusing to comply was not the hinge onwhich the case turned. For “many citizens who do not share these religiousviews hold such a compulsory rite to infringe constitutional liberty of theindividual.”
At the time, Jackson’s approach of downplaying freedom ofreligion to the vanishing point did not sit well with all his colleagues in themajority. Chief Justice Harlan Stone wrote an internal memorandum to Jackson,urging him to make religious freedom the central issue in the case, but to noavail. Stone held his peace in public, but Justice Frank Murphy published aconcurring opinion, emphasizing that religious freedom was what Barnette was truly all about.
Most scholars praise Jackson for “widening” the reach of hisopinion by converting the religious freedom claim into a free speech claim, andthe decision is routinely treated as one of the strongest vindications of civilliberties in twentieth-century American law. But there is more music than soundreasoning in Jackson’s opinion. In various settings, the government compelsspeech without anyone thinking anything is amiss, and not just in the contextof testimonial honesty. For example, in the naturalization process that makescitizens of aliens, the government compels the statement of a comprehensivepledge of loyalty to the nation.
More significantly, it is impossible to credit the notionthat a minority objecting to the flag salute on the basis of a generalizedintellectual disagreement with the propositions in the pledge, as opposed to areligious objection, would have won. Jackson wrote as though the followers ofJehovah were on the same plane as those of John Stuart Mill. But the legalvictors had to be people like the Jehovah’s Witnesses, plaintiffs whoclaimed that God made commands known to them that they must obey or else endangertheir immortal souls.
If we read Barnette aright as a religious freedomcase, we can draw on its best insights. Instead of carving out an exemption forthe Witnesses, it struck down the compulsory character of the flag salutealtogether. The Witnesses’ claim resulted in a net increase of freedom foreveryone—even those for whom the flag salute requirement worked no hardship.After Barnette, anyone could decline to salute the flag, for reasonsgood or bad.
It’s this approach the courts should take today. Thestrategy of granting ad hoc exemptions is appealing. It leaves the challengedlaws generally undisturbed, while specially suspending them for groups smallenough not to make the exemptions terribly conspicuous or bothersome. But it’sconstitutionally incoherent, and not substantially improved by reliance on RFRAas a statutory basis.
Now the incoherence is becoming clear. In the HHS mandatecases, generally applicable laws are being challenged by large, mainstreamfaith communities. Understandably, the challenge rests first and most heavilyon RFRA’s exemption standards. But there are too many claimants for the desiredexemption, which is why liberals resist it so strenuously. If the Obamaadministration made way for every sincere religious claim to be relieved of theHHS mandate, the legal landscape would be pocked with enormous craters wherethe routine administration of the law had been exploded.
Seeking exemptions from a forced recognition of same-sexmarriage—a claim arising more and more frequently now—presents the sameproblem. Again, there are just too many Christians, Jews, Muslims, and otherswho refuse to regard marriage as possible between two persons of the same sex.To credit and make way for every sincere exemption claim on religious groundswould result in too many encounters for same-sex “married” couples in whichtheir fellow citizens refuse to treat them as married, in employment, housing,education, provision of faith-based social services, and so on.
So, given the law’s need for (nearly) universalapplicability, no system of widespread exemption will work. That’s why liberalsresisting exemptions have a point: Law without uniformity of recognition of itsbasic requirements and obligations begins to look like no law at all. A fewexceptions are tolerable. Great masses of exceptions, on the other hand, beginto eat up the rule of law.
The rule of law is exactly why we need to return to a Barnette-styleapproach to freedom. Since the HHS mandate invades the religious freedom ofpeople who regard abortion or contraception as an affront to the moralteachings of their faith, the correct constitutional outcome is to toss out themandate itself. Like the obligatory Pledge of Allegiance, it should not be alawful command to anyone. Coverage of such alleged “preventive care”should return to being voluntary for all employers, as it was in the past, anarrangement the vast majority of Americans found entirely reasonable.
In the more difficult same-sex marriage context, a Barnette approach would recognize a universal freedom not to recognize same-sex couplesas “married.” This freedom would come about—and could only come about—as aresult of religious objections, but the freedom so won would be available toall private actors in their capacity as moral agents: schools, hospitals,employers, businesses of all kinds in many different transactions that touch onmarital status.
It may be difficult to envision this freedom. We conceive ofmarriage as a public reality only to the degree that it is recognized bysociety, and a freedom not to recognize others’ state-sanctionedmarriages seems counterintuitive. But surely such a civil-libertarian argumentdoes not overtax the legal imagination. Our legal elites are presentlyconvinced of a “right to marry,” which suggests nothing if not creativity. Ifthe state redefines marriage, the least it can do is neither pick my pocket norbreak my leg by forcing me to go along with the redefinition.
Pursued with the right kind of arguments and with sufficientvigor, an escape from the “exemptions ghetto” can bring us out into an openfield of religious freedom in full—and of moral freedom in full for all, thanksto the indispensable leadership role of religious conscience, and therecognition of the duty of men and women to obey God before any authority ofthe state.
Matthew J. Franck is Director of the William E. and CarolG. Simon Center on Religion and the Constitution at the Witherspoon Institutein Princeton, New Jersey.
