Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality

The title of this Symposium, "Beyond Separatism," may foreshadow important changes in Religion Clause doctrine in the years ahead. However, it is always difficult to accurately forecast constitutional developments. This is particularly true if we are projecting our constitutional pre-vision beyond the doctrinal preferences of the current Court and into the more distant future. Part of the problem in predicting changes in Religion Clause doctrine should be self-evident. The constitutional case law grounded on a wall of separation between church and state has certainly had its share of problems. Some decisions seem particularly difficult to defend. The doctrinal replacement for "Separatism," however, has not been tested, because it has not been formally established yet. If and when a new model is accepted, its utility and costs will be evaluated over time. It may be that the value of separating church and state will be better understood and appreciated after our society experiments with alternative doctrinal approaches and confronts the problems they create. As Justice Holmes once intimated, all life is an experiment. "Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. "Constitutional law is no different. The core of our legal and political culture has been pragmatism and experimentation, not a commitment to unchangeable absolutes and fixed principles. 2 Nothing is, or has been, sacred in constitutional law. But constitutional law is not always a one-way ratchet either. Sometimes what we learn from an experiment is that we were better off under existing doctrine and that a change was for the worse. In this essay, I want to critically examine two developments that have become rooted in doctrine over the last ten to twenty years. One is the continuing and expanding protection of religious activities under the Free Speech Clause of the First Amendment. The other is the growing acceptance of formal neutrality as a framework for protecting the free exercise of religion. Both of these developments are part of the evolving replacement for Separatism. The first, the subsuming of religion under the rubric of speech, has been accepted largely uncritically. The other, manifested by the Court's holding in Empwyment Division v. Smith, received overwhelming criticism at first. Over time, however, there has been greater acceptance of this approach. Critics, while still rejecting Smith, on its face as it were, have started to make the best of it and are trying to build a shield for religious practices and institutions from the bones the Court tossed to religious liberty in deciding that case. I believe both of these developments are problematic. They are false messiahs. Evaluating burdens on religious practices as the regulation of speech has some virtues, but the problems with this approach may outweigh its benefits. Moreover, many of the purported benefits that result from protecting religion as speech are only advantageous when they are evaluated against the anemic free exercise regime established by the Smith decision. If we compare a vigorously enforced Free Exercise Clause against the religion as speech model, the perceived utility of the latter approach dissipates dramatically.