The Apostle, Mr. Justice Jackson, and the Pathological Perspective of the Free Exercise Clause

I. IntroductionSince the Supreme Court's decision in Smith? which essentially ended the SherberfjYoder1 regime of strict judicial scrutiny of neutral laws of general applicability that burden religiously motivated conduct,4 the debate about the proper scope of free exercise rights has raged unabated. Critics of Smith denounce the decision as a betrayal of a basic commitment to protecting an important human right - namely, freedom of conscience.5 The defenders, although fewer in number, have responded by suggesting that Sherbert and Yoder produced the anomalous result of increasing, rather than reducing, the net disparity in religious liberty enjoyed by members of minority religious sects.6 The ultimate merits of this debate lie beyond my immediate point of focus, which is a proposition on which all sides of this great debate agree: Whatever else (if anything) the Free Exercise Clause should mean, it should protect religious belief in near absolute terms.7Indeed, going back to early Free Exercise cases decided in the nineteenth century, the Supreme Court itself repeatedly has asserted that the Free Exercise Clause protects religious belief, if not conduct mandated by religious belief, such as the practice of polygamy.8 Even Justice Scalia, writing for the Smith majority, readily acknowledged that the Free Exercise Clause protects freedom of religious belief in nearly absolute terms.9 Thus, although a religious sect would not be free to observe the practice of ritual human sacrifice, it should be-and in theory is-entirely free to hold the belief that this practice is essential to achieving eternal salvation and, moreover, to teach the necessity of ritual human sacrifice among its members.10 In sum, "[f]he door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such."11 Unfortunately, however, our real world commitment to freedom of religious belief might not be as broad as this high sounding judicial rhetoric would suggest.12United States v. Ballard13 presented this issue front and center: Could the federal government put the truth of particular religious beliefs before a jury, on the theory that the beliefs constituted fraud?14 The Ballards (Guy, Edna, and son Donald) presided over the "I Am" sect and claimed to have direct contact with God through the intercession of "St. Germain."15 The Ballards sought and received financial contributions in support of the church.16 In return for these faith offerings, members of "I Am" could look forward to many benefits, including faith healings.17 The government brought criminal fraud charges against all three Ballards.18Justice Douglas, writing for the majority, opined that although government could not put the truth or falsity of the Ballards' religious beliefs on trial, it could charge a jury with ascertaining whether a particular religious leader subjectively believed the doctrines that he espoused.19 Justice Douglas's opinion is a mainstay of First Amendment casebooks and often serves to establish the strong protection that the First Amendment affords to religious belief.20 This might be an unduly sympathetic reading of the Douglas opinion. To state the matter simply, if minority religions and religionists face pervasive forms of discrimination and widespread hostility within the general culture, is a trial limited to subjective belief likely to afford an adequate margin of protection for strange, or even offensive, religious beliefs?21 The question does not admit of any easy or obvious answer.Professor Vincent Blasi famously argued that the Free Speech Clause of the First Amendment could best serve its central purpose by protecting core political speech in times of perceived social and political crisis.22 The "pathological perspective," Blasi argued, implies that judges should be most vigilant in superintending speech restrictions when the social cost of free speech could be jaw-droppingly high. …