Religious Freedom, Separation of Powers, and the Reversal of Roles

Observers from outside the United States must be struck by the difference between the broadly tolerant and inclusive character of public attitudes toward religious exercise in this nation, and the narrow compass of constitutional protection provided by its courts. After the Supreme Court's well-known 1990 decision, Employment Division v. Smith,1 the courts ceased to provide any protection under the Free Exercise Clause from any application of a neutral and generally applicable law. Even before Smith, when the Court purported to hold that the government could not interfere with religious exercise without a compelling governmental interest,2 free exercise claimants very rarely prevailed in court. Almost always, the courts ruled either that there had been no burden on religious exercise3 or that the government's justification (even if seemingly weak) was compelling.4 Yet, even a cursory look at the statute books, or a more detailed look at actual practices in the cities and states of the United States, will reveal that the free exercise of religion is an honored value in American life and that members of minority religious groups often are given accommodations and exemptions that enable them to practice their faith even when it comes into conflict with generally applicable laws. Even before Smith, the greatest protection for free exercise of religion was not the prospect of successful litigation-since free exercise litigation was rarely successful-but the ability of religious individuals and groups to persuade government officials to provide reasonable accommodations to their religious needs. The great value of the pre-Smith constitutional doctrine was that it helped persons aggrieved by neutral and generally applicable laws to obtain a second look from an official who might be less impressed by the bureaucratic imperative of enforcing the rules as written, all the time, without exception. This pattern-generous protection for civil liberties by political functionaries and scant protection by the courts-seems to defy our usual expectations about judicial review and about the comparative competence of governmental institutions. Basic political science courses often describe judicial review as fundamental to the protection of individual interests from majority rule. The ability to challenge governmental action in court gives non-majoritarian interests an avenue to overcome the majoritarian pronouncements of the legislatures. The democratic institutions of government represent majority rule, while the courts in our system-or in any system with judicial review-are more amenable to protecting minority interests. If this traditional political science model is applied in practice to the free exercise of religion, we would expect to find laws passed by majoritarian legislatures that violate the free exercise of religion, followed by court decisions protecting religious minorities. (I speak of religious minorities because, even though the First Amendment protects all religions equally, legislation rarely has a negative impact upon the practitioners of large, powerful religions. They are usually able to organize and protect themselves in the political process without ever having to go to court. Or so one would expect from the traditional political science model.) And yet, when we look at the actual record of democratic institutions versus the courts in the United States, it turns out that reality does not conform to the political science model we have been taught. It is very nearly the opposite. Legislatures have shown a remarkable degree of solicitude for minority religious interests, and courts in the United States have repeatedly-- not always, but frequently-struck down the efforts of legislatures to protect minority religious groups as unconstitutional. The most conspicuous example of this exchange of traditional political roles may be seen in the recent interplay between the Congress of the United States and the United States Supreme Court in the wake of the Smith5 decision. …