What We Talk About When We Talk About Free Exercise

This Article places the conflict between Congress and the Supreme Court over the Religious Freedom Restoration Act in the context of a long-standing theoretical confusion about the meaning and scope of "the free exercise of religion." Both courts and commentators are inclined to misjudge the scope of the freedom the Clause guarantees. When courts overestimate the extent of a fully realized free exercise guaranty, they tend to retreat out of concern that recognizing the right will dissolve the social contract and create a society in which each person is "a law unto herself." When they underestimate the Clause, they tend to interpret it in ways that strip it of any meaning independent of the Free Speech and Establishment Clauses.The Article explores the contours of a principled definition of "the free exercise of religion" as a liberty distinct from the Constitution's protections of free speech and freedom from establishment. It first discusses the problems raised by defining "religion." The two possible poles of such a definition are Emile Durkheim's purely social and behavioral definition and William James's purely internal and individual definition. Some judges and commentators apparently believe "religion" should be limited to "Judeo-Christian" religious traditions. American history and case law, however, suggest a fourth possible meaning-a religion is protected by the Clause if it agrees to abide by the same rules of civil society that "traditional" American religions obey.A different problem is posed by the words "the free exercise." Historical analysis of this term has proved inconclusive; the Article proposes to educe a principled meaning of the term by viewing it in the context of the Constitution, as embodying a liberty distinct from others guaranteed in the document but limited by them. Such a principled meaning must protect more than "mere opinion," more than opinion and ritual behavior, and perhaps even more than opinion, ritual behavior, and non-ritual behavior with potential consequences in the larger society. Some judges and commentators, in fact, have even extended their definitions to include coercive actions taken by believers against others who do not share their religious commitments.The attempt to define coercive practices as "free exercise" introduces the idea of limitations on the concept. Some are internal; that is, they arise out of the logical meaning of the term. Others are external; they flow not from the logical meaning of "the free exercise" but from the values embodied in unrelated portions of the Constitution. The most prominent is the Establishment Clause, but courts and commentators have mounted arguments for other sections of the Constitution.The Article then argues that the concept of free exercise must be considered within the context in which a specific claim arises. Cases in which individuals assert their own rights against the coercive power of the state are different, in theory and practice, from cases in which religious organizations advocate for their corporate prerogatives. In addition, claims should be adjudicated differently depending on whether they arise in a context of individualized determination, such as an unemployment compensation claim, or of what the Article calls a categorical norm-a legal rule that allows for no individualized exceptions. Challenges to categorical norms seem to implicate the concern for anarchy mentioned above. The Article, however, argues that some norms are only pseudo-categorical in nature: that is, though by their language they seem to apply generally, their structure and history reveal a desire to harm a religious minority. When a free exercise challenger confronts a truly categorical norm, the Article suggests, courts should ask whether the challenge arises because the religious belief asserted opposes the very goal of the norm or because it seeks sincerely to work in concert with the norm by a different path. Religious challenges to the underlying goal of the norm cannot be sustained by a principled definition of "free exercise." However, if the believer can show that her religious practice seeks to further the underlying goal embodied by the norm, and, further, that granting an accommodation will not unduly complicate the general problem of enforcement, courts should craft an exemption. The Article suggests that this kind of case will be far rarer than courts and commentators seem to fear, and that deciding it is within the traditional institutional competence of the judiciary.