Euthanasia and the Supreme Court's Competing Conceptions of Religious Liberty

Euthanasia, or, as it is now called, the right to die, raises profound questions about the meaning and value of human life. Religious groups and religious views thus have been deeply involved in the law's continuing evolution on this subject. Religion's involvement, in turn, raises important issues concerning the proper relationship between government and religion. Given this, it is perhaps not surprising that the Constitution should figure prominently in the legal treatment of end-of-life decisions. What is surprising, however, is the source of the constitutional law that is now of relevance. One might expect that the religion clauses of the first amendment to the United States Constitution, which prohibit government from establishing religion or denying the free exercise of religion, would have some bearing.(1) Yet, as currently interpreted, they do not. Instead, it is the unenumerated right of privacy(2) with which the law on euthanasia must be reconciled. Cases such as Cruzan v. Director, Missouri Department of Health(3) and Planned Parenthood of Southeastern Pennsylvania v. Casey(4) do have real import and lend support to a limited "pro-choice" regime respecting euthanasia.(5) In this apparently backward state of affairs, rights textually specified in the religion clauses are drained of meaning, while a right not mentioned in the text is infused with expanding meanings. The relationship between the Supreme Court's religion and privacy decisions is even closer and more contradictory than it initially appears. It is closer because the privacy decisions of principal relevance to the euthanasia debate are best viewed as elaborations of religious liberty. These decisions implicitly embrace distinctive conceptions of establishment, free exercise, and religion: the three terms that lie at the core of the religion clauses' meaning. The relationship between the privacy and religion cases is more contradictory than first appears because they adopt inconsistent conceptions of religious liberty. This article untangles the competing conceptions of religious liberty at work in the privacy and religion cases, explores some of their implications for the legal treatment of end-of-life decisions, and begins an evaluation of which line of cases represents the better understanding of religious liberty. The argument here will be that the privacy cases are best viewed as articulations of religious liberty and that in important respects they also possibly reflect a more defensible understanding of religious liberty than do the Court's religion cases. This argument, if correct, has important implications. It means that the privacy cases, which are often criticized as illegitimate judicial confections, may to a significant degree constitute justifiable elaborations of provisions in the Constitution whose authoritativeness everyone accepts. It also means that the Court's religion cases reflect a misguided interpretation of those provisions. Finally, it means that the legal and public debate must seriously consider the possibility that the right to die is an extension of, or at least a close analogue to, religious liberty.(6) The Irrelevance of the Religion Clauses as Currently Interpreted The role of religious groups and beliefs in influencing end-of-life decisions pushes one to define all three crucial terms in the religion clauses. Religious groups and beliefs have played a role both at the macro-level formulation of the legal rules and at the micro-level of individual decisionmaking. One question is whether successful macro-level efforts of organized religious groups to make the law respecting euthanasia conform to or accommodate their religious beliefs constitute an "establishment" of religion. Another is whether the micro-level effort of a person to make an end-of-life decision in accordance with his own religious beliefs is the protected free exercise of religion, even when those beliefs lead to a decision contrary to statutory or common law. …