Yale Law Journal
When the Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not protect religious practices from otherwise valid laws that incidentally burden those practices, it followed a particular theory of democratic politics. That some laws might unintentionally burden certain religious practices is, said the Court, an "unavoidable consequence of democratic government [that] must be preferred to a system in which each conscience is a law unto itself." The Court was certainly right in one sense: To claim that conscientious objection to an otherwise valid law should exempt one from that law is to claim that one's values should prevail over the values chosen by the majority. Reading the Constitution to require such exemptions as a matter of right would indeed render each conscience a law unto itself. Although not stated explicitly, the Court's theory of democratic politics recognizes that there will be winners and losers in the political marketplace, where value competes against value for adoption as law. So long as one is able to participate in that competition, one cannot claim a constitutional right to avoid obedience merely because one's values were defeated by a competing set of values that one finds objectionable. Losers as well as winners are bound by the outcome of an open democratic political process. Without paying much attention to this issue, the Warren and Burger Courts read the Establishment Clause to invalidate legislation with a predominant religious purpose, while reading the Free Exercise Clause to give individuals a prima facie right" to exemption from laws that burden their religious practices But this doctrine often was accused of being internally inconsistent, on the theory that religious exemptions infringe Establishment Clause values. This Article seeks to explain the relationship between the religion clauses in a way that accounts for the proper role of religion in politics, and in so doing offers a new defense of the embattled religion-clause doctrine of the Warren and Burger Courts. In brief, I argue that the Establishment Clause should be read to forbid enacting legislation for the express purpose of advancing the values believed to be commanded by religion." Precisely because religion should be excluded from politics in this way, my argument continues, the Free Exercise Clause requires the recognition of religious faith as a ground for exemption from legal obligation. Thus, I reject Smith's implicit political predicate that all values may be offered for majority support to be enacted into law. If the Establishment Clause should be read to place a special burden on the role of religious values in politics, then those values should receive special treatment when they conflict with the values adopted by the legislature. Reading the Free Exercise Clause to require exemptions from law neither favors religion nor renders religious conscience "a law unto itself." Rather, these exemptions are merely the appropriate remedy for the damage that precluding religious values from grounding law causes religious people. The Establishment Clause, I argue in Part I, protects against the exclusion of nonbelievers from meaningful political debate by making it unconstitutional to base law expressly on religious faith. This solution, however, excludes religious believers from full political participation. I argue in Part II that the Free Exercise Clause mitigates the effects of that exclusion. Finally, I explain in Part II why the Constitution should not be read to require exemptions for claims of secular conscience.
Abner S. Greene,
Political Balance of the Religion Clauses, The , 102 Yale L.J. 1611
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/389