Religious Liberty and the Common Good
Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.
The Supreme Court might soon address this issue. Four Supreme Court justices (led by Justice Samuel Alito) began 2019 by suggesting their willingness to revisit a landmark decision with stark views on this question. In the 1990 case Employment Division v. Smith, a five-justice majority (led by Justice Antonin Scalia) made it virtually impossible to secure, under the First Amendment's Free Exercise Clause, religious-based exemptions to laws that apply to everyone and do not overtly or covertly discriminate against religion (what lawyers call "neutral laws of general applicability"). The Smith decision presumes a deep tension between religious exercise and the common good. In Smith's view, the democratic process must almost always resolve that tension. Courts, therefore, almost always deny religious accommodation requests. Justice Alito and his colleagues, however, said Smith "drastically cut back on the protection provided by the Free Exercise Clause," and effectively invited requests to reverse it.
Revisiting Smith possesses significant cultural salience. Many of today's progressives, conservatives, and libertarians share — knowingly or not — Smith's critical shortcoming: a failure to explain why religion in particular and religious exercise in particular should shape the common good, even when they go against the grain of secular visions adopted in law. Revisiting Smith provides an opening to address this shortcoming. The Court should take it, as this oversight puts the American tradition of self-government at stake.
Smith and many elements of the modern American left and right possess this shortcoming because they evaluate the social worth of religious pluralism against some set of liberal values that, in their view, should supersede religious duties. For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. For progressives, religious pluralism is good to the extent it supports what law professor Mark Movsesian calls "equality as sameness." Any religious practice, institution, or tradition that understands equality differently is publicly unacceptable. For some conservatives and libertarians, religious pluralism is good simply because self-expression is good. On this view, religious liberty deserves protection simply because self-expression deserves protection — nothing particular to religion here does any work. Finally, for other conservatives who dispute that the common good is served by diverse religious expression, religious liberty is part of the common good only to the extent it establishes a particular religion's orthodoxy.
It is not surprising that what Stanford's Michael McConnell called "the most thoroughly liberal political community in the history of the world" would strive to define even religion around liberal ideals — but it is problematic. Liberal democracy, as Alexis de Tocqueville observed, is "particularly liable to commit itself blindly and extravagantly to general ideas." This is partly because liberalism is, as Samuel Huntington put it in Conservatism as an Ideology, an "ideational" ideology. It "approach[es] existing institutions with an 'ought demand' that the institutions be reshaped to embody the values of the ideology." This "ought demand" is present in social-contract theory, and it poses a particular problem for religious liberty. More often than not, religious exercise is manifested in rituals and institutions that are prior to — and claim to outlast — political liberalism. Reshaping religious exercise around liberal values can therefore dilute religion.
The consequences of dilution are not limited to religion. As our founders recognized, diluting religious exercise poses a problem for political liberalism; self-government presupposes certain moral virtues that religion cultivates and liberalism does not. In a culture that does not appreciate a distinct contribution from religious exercise, engagement with religion, both personally and in public life will erode — along with the corresponding cultivation of religious exercise's personal and public goods. Our founding tradition provides a unique answer to this dilemma. But Smith, as will be explained, considers it irrelevant to the Free Exercise Clause — and many progressives, conservatives, and libertarians neglect it today.
By revisiting Smith, the Court could help the country rediscover religious liberty's place in American society's common good. This place is not superseded by liberal values. Rather, religious liberty is a prerequisite to, and sustainer of, self-government. Duties to the "Universal Sovereign," to use James Madison's term, are prior to — and take precedence over — duties to the political sovereign. Ensuring space for the fulfilment of religious obligations provides an enduring limit on state power — not merely to manifest "choice" or "self-expression," but to fulfill duties. Such a culture is inherently oriented toward the recognition of transcendent, eternal truths, which are the basis for religious duties. As Tocqueville observed, this makes religious exercise (unlike individual autonomy or some other theoretical liberal value) uniquely disposed to turn citizens away from the vice that, as our founders recognized, free political institutions can, at best, mitigate: the ambition, empowered by unrestrained, theorized ideals, to bulldoze any institutions or practices that stand in the way of utopian goals or base desires.
Smith is premised upon the judiciary being blissfully divorced from preserving the proper relationship between religion and free society. As Justice Scalia would admit in City of Boerne v. Flores, Smith permits courts (and, as a result, other government actors) to segregate the founders' "'proper'" understanding of religious obligations from "the constitutionally required relationship." By insisting that all judicial evaluations of religious liberty be subject to a general rule of majoritarianism, Smith is another manifestation of liberalism's "ideational" tendency. It is no coincidence, then, that Smith has enabled decades of attempts to "fit" religious exercise's social worth — if any is recognized at all — into overriding liberal theories. By reviving the tradition of practical accommodation that Smith displaced, the Court could begin to recover an appreciation for religion's role in preserving freedom.
A LIMIT ON STATE POWER
The foremost benefit religious liberty provides to self-government is limiting state power by orienting the public square toward transcendent, enduring moral truths. The founding generation came to appreciate this distinct benefit of religious liberty through a unique harmonization of two factors: an unrivaled (for the time) cultural experience of vibrant religious pluralism; and differing philosophical views as to the interrelationship of religious obligations and political power.
America's harmonized understanding of religious liberty has perhaps its greatest expression in the first reason James Madison gave for opposing a "religious assessment." In his 1785 Memorial and Remonstrance, according to McConnell in The Origins and Historical Understanding of the Free Exercise of Religion, Madison "faithfully reflected the popular understanding of the free exercise provision that was to emerge in both state constitutions and the Bill of Rights." In this famous passage, Madison describes religious liberty as follows:
It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
As this description suggests, religious liberty is different in kind from other individual rights. First, religious liberty is exercised not in service of the individual, but a "Universal Sovereign" beyond the individual or the state. Second, this Universal Sovereign does not grant religious liberty solely (or even primarily) for self-fulfillment, autonomy, or expression. While the founding generation understood other natural rights (that is, rights existing prior to political society) to possess corresponding duties, the distinct sovereignty that religious exercise serves makes exercising the right itself a duty. What is "a right towards men" here in political life, "is a duty towards the Creator" in the divine life. These "duties" or "obligations," Madison says, are also precedent to the political sovereign's claims.
By design then, religious exercise limits political power. Political society must account for the duties its members possess to the Universal Sovereign for whom they save their "allegiance." Political community to Madison is not, therefore, the only kind of community on earth. It is inherently limited by a preceding community organized by duties, not mere free choices, which are owed to a Universal Sovereign, not simply the individual.
In important ways, the Memorial and Remonstrance is distinct from the Lockean view of "toleration" that influenced the founding generation. John Locke premised the toleration of religious duties, as he says in his Letter Concerning Toleration, on political society being "constituted only for the procuring, preserving, and advancing [of individuals'] own Civil Interests." Locke defined such civil interests as an individual's "Life, Liberty, Health, and Indolency of Body, and the Possession of outward things." Such a state, in his view, would not directly target religious exercise because the two were simply oriented toward different concerns. (The state is focused on the here; religion is focused on the hereafter.) It was therefore acceptable to "tolerate" religious exercise so long as it dealt with the hereafter alone. Where, however, "the Jurisdiction both of the...Magistrate and Conscience" are implicated by a state's "Moral actions," "the private Judgment of any person concerning a law enacted in Political Matters, for the publick Good, does not take away the Obligation of that Law, nor deserve a Dispensation." Locke demonstrated this point by refusing to tolerate Roman Catholics. Sir William Blackstone, who stated a view similar to Locke in his Commentaries on the Laws of England, made this point succinctly. If Catholics wanted to "quietly enjoy their seven sacraments," they had "to renounce the supremacy of the pope....[W]hile they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects."
The Memorial and Remonstrance also differs from other "liberty of conscience" advocates in its embrace of religious duties — rather than mere toleration. By tolerating religion on the premise that its exercise has a distinct focus from political society, Locke and Thomas Jefferson (influenced by Locke's toleration arguments, though he would broaden them to tolerate Catholics and atheists) brought a kind of agnosticism toward the enterprise. As Jefferson wrote in Notes on Virginia, "it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket nor breaks my leg." The Memorial and Remonstrance better reflects American popular sentiment. It argues that freeing religious exercise from political control will allow religion to "flourish" — not simply be tolerated. Madison would subsequently make this point explicit in an 1819 letter to Robert Walsh. There, he celebrated the enhanced "number...industry, and...morality of the priesthood and the devotion of the people" that followed from Virginia's disestablishing its official church and "putting all Sects at full liberty and on a perfect level."
Unlike the Memorial and Remonstrance, Jefferson and other Enlightenment liberals advocated for religious toleration precisely because they thought it would dilute — not expand — religious exercise. Jefferson's view was closer to that of Jean-Jacques Rousseau and the French revolutionaries (and those Americans sympathetic to them, like Thomas Paine), who advocated a dramatically different approach toward religious liberty and the common good.
Writing in the Social Contract, Rousseau considered the entertainment of a Universal Sovereign outside popular rule a "clearly bad" idea. The people are sovereign to Rousseau, and their "general will" must predominate. Political society must, in his view, "unite the divine cult with love of the laws," and "mak[e] country," not a Universal Sovereign, "the object of the citizens' adoration." Indulging practices, institutions, or traditions that might cause a person to insist on fulfilling the demands of another sovereign places religious liberty in opposition to how the people have defined their common good. This "set[s] man in contradiction to himself" and is therefore "worthless."
Of course, the Memorial and Remonstrance was written to oppose public assistance to religious institutions — and in that regard, Madison's statements come closer to those of Jefferson, who rejected established churches or financial support for religious exercise. Madison wrote the Memorial and Remonstrance in 1785 in reaction to what he had called in 1774 "that diabolical, hell-conceived principle of persecution" against anyone who exercised religion in deviation from the established Anglican Church of England. Unfortunately, this persecution was not uncommon in early America. As McConnell has explained, "[a]s late as 1775, Baptist ministers...were jailed and sometimes horsewhipped for preaching the gospel." Nor was this persecution confined to Virginia, to whose General Assembly the Memorial and Remonstrance was addressed. Even after 1776, Connecticut, for example, continued to fine both Baptists and Methodists if they did not secure a government certification of attendance at approved churches. This sort of persecution outraged Madison and made him dubious, as the Memorial and Remonstrance says, of "employ[ing] Religion as an engine of Civil policy."
But unlike the minority views of Jefferson or Paine, opposition to establishmentarianism was not a rejection, to Madison or many other founding-era Americans, of religious exercise shaping the common good. Rather, as Edmund Burke explained in his 1775 speech on "Conciliation with the Colonies," America's cultural experience saw religious exercise as a hallmark of liberty; established religion threatened, rather than reinforced, religious exercise's public goods. Burke elucidated the overall American sentiment:
All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in our northern colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion. This religion, under a variety of denominations agreeing in nothing but in the communion of the spirit of liberty, is predominant in most of the Northern Provinces; where the Church of England, notwithstanding its legal rights, is in reality no more than a sort of private sect, not composing most probably the tenth of the people. The Colonists left England when this spirit was high, and in the emigrants was the highest of all; and even that stream of foreigners, which has been constantly flowing into these colonies, has, for the greatest part, been composed of dissenters from the establishments of their several countries, who have brought with them a temper and character far from alien to that of the people with whom they mixed.
That Burke would acknowledge anti-establishment sentiment as dominant in America is important. Burke's observation confirms that America's conception of religious liberty — where the manifestation of religious duties facilitated religion's contribution to the common good — is a function of the country's distinct cultural experience. It cannot, therefore, be characterized as (and thus reduced to) a single, general theory of political liberalism.
Indeed, the American innovation becomes clear when comparing Burke's arguments for religious establishment and the Memorial and Remonstrance's arguments against one. England's established church, Burke said in Reflections on the Revolution in France, was the country's "recognition of a seigniory paramount." This recognition, Burke argues, is of "infinite importance" because it prohibits the people from "imagin[ing] that their will, any more than that of kings, is the standard of right and wrong." By linking the Church of England with the state, Burke argued, the English possessed the means to conform their government to divine law; this reminded those with state power that they "act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society." The English Church's role in limiting the political sovereign was not, for Burke, a result of theological conviction. Rather, Burke saw in the Church of England the means to restrain utopianism. He did not share the view of social-contract theorists like Locke, presuming there was an easy (or even real) separation between the "business" of religion and that of government. Religion tells people how to live here and now with eternal consequences. And government, as he explained in his "Speech on the Petition of the Unitarians," will always have an "interest" in trying to shape the morals of society. These realities make it impossible, in Burke's view, for the state to claim that it will never interfere in any matter "relative to religion." Burke thought that establishment made sense to constrain utopian or base efforts at government pursuing that "interest" in "opinion" shaping. The restraint of establishment accorded, in Burke's view, with English cultural experience, not because God required it.
In America, as Burke recognized and the Memorial and Remonstrance demonstrates, religious diversity produced a different cultural experience — and thus, a different form of restraint was required. By requiring that political society be shaped around "duties" and "obligations" to the Universal Sovereign, as judged by the "allegiance" everyone owes to the Creator, the Memorial and Remonstrance contemplates that greater religiosity among the people would provide the same restraint on political power that Burke saw in the Church of England. At the same time, separating the Universal and political sovereigns — while clearly making the latter secondary — would ensure religious exercise grew in purity and zeal.
While he may not have intended it, Madison's formulation of prior religious duties in the Memorial and Remonstrance provides America with the tools to actualize Burke's insight. Madison likely anticipated (and certainly desired) an American government that would not go beyond the role of securing natural rights in accordance with natural law. But the formulation of religious liberty in the Memorial and Remonstrance possesses refreshed relevance in modern America, where the state clearly has gone beyond such a role. If, no matter its increase in power, governmental legitimacy must be conditioned on its acquiescence to a citizen's duties toward a prior and preceding Universal Sovereign, then political society must, still, be shaped around those obligations — even if the state grows into the areas of civil society where "opinions" are formed.
A CORNERSTONE OF SELF-GOVERNMENT
The American understanding of religious liberty articulated above, as legal scholar Douglas Laycock has noted, "presuppose[s] that religion is in some way a special human activity, requiring special rules applicable only to it." "Presuppose" is the key word: The Memorial and Remonstrance was written to a culture already sympathetic toward vibrant religious exercise — a culture that already understood that obligations to God may diverge from those political society demands. The immediate task before Madison, then, was the institutional arrangement between religion and government, and the assurance of space between the two. But in focusing on the assurance of space, the substance that fills the space — that is, the religious exercise that religious liberty manifests — did not receive much underlying defense.
The focus on preserving a social space for religious duties fails to defend religious exercise's inherent goodness. The consequences of this oversight become clear when the founding's teachings are entrusted to a society that does not share its premises about religion. Many today, for example, dispute that any special solicitude should be offered to divergent religious duties. They claim that other, non-religious, and deeply held, reasoned moral convictions provide the same utilitarian benefits to society that the founding generation saw in religion. As such, there is no basis to see any distinct social benefit to religious exercise — let alone shape political society around the fulfillment of divergent religious obligations.
The founders' choice to prioritize institutional allocations of power over a substantive defense of religious exercise therefore places great weight on subsequent American generations. They must discover for themselves why our political institutions need a culture of robust, manifested religious duties: Nothing else can confront unrestrained, abstracted political ambition.
Tocqueville saw this problem, and he concluded that only religion provided the elements of personal restraint necessary to confront it. As liberalism was born in a repudiation of "castes and classes," Tocqueville explains in Democracy in America that liberal democracy inclines "the human mind" to "imagine the possibility of an ideal but always fugitive perfection....[M]an concludes that...[he] is endowed with an indefinite capacity for improvement." This "blind" and "extravagant" commitment "to general ideas," Tocqueville says, "stretch[es]" the "scope of human perfectibility...beyond reason." An appeal to gratify our passions here and now — be they our highest, noblest aspirations, or our basest, lowest instincts — will therefore always be a tempting path to democratic power. This "ideational" aspect of liberalism, to use Huntington's word, effectively ends up isolating men. As Tocqueville says, "[h]is independence fills him with confidence and pride among his equals, and his debility" in achieving his passions "makes him feel, from time to time, the need of the outside help he cannot expect from any of them....In this extremity, he naturally turns his regard to the immense being that rises in the midst of universal debasement." This being is the state — "the unique and necessary support for individual weakness."
Institutional constraints — be they social, familial, or bodily — channel man's aspirations and desires toward an acceptable use or orientation. But the despot claims that, if he is put in power, the state can remake those constraints around an individual's aspirations or desires. With state support, the despot claims, the individual is finally free. In the end, however, all the despot has done is break individuals away from the institutions that challenge the despot and give meaning to human life. The state may then, as Tocqueville says, "knead [the individual] as it likes." Deeply held individual aspirations or desires are therefore no constraint on a tyrant's potential. In fact, they can all too easily serve as the banner under which the tyrant takes power and breaks institutional constraints.
The unique gift of religious exercise to a free society's common good, then, is restraining the liberal impulse to turn political society into a tool that fulfills either man's utopian fantasies or his most basic instincts. "[W]hile the law," Tocqueville says, "allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare." Joshua Mitchell, writing in The Fragility of Freedom, put it this way: "[F]or Tocqueville, we make our choice: we may obey and be bound by God or by a tyrant," be it the tyranny of a despot or the tyranny of our own passions. By understanding "the object of man's desires [to be] outside and beyond worldly goods and naturally lift[ing] the soul into regions far above the realm of sense," religion helps man orient his passions toward transcendent truths — not to abstract theories or sensory pleasures that must be actualized upon demand.
In short, religion perpetuates humility — both in what man can expect from himself and from others. For example, man builds social-welfare institutions like hospitals, soup kitchens, shelters, schools, and family-support services not to remake the world in his image. He builds them because he is fallen and weak and knows that, but for God's aid, he would need the very help he is now providing to others. Man respects his ancestors' wisdom not to control his contemporaries, but because he knows that the Creator's revealed truths have been revealed for all time. Discarding an insight perceived as outmoded today, simply because doing so attains a present desire, may deprive this generation of benefits that they will realize they miss tomorrow. Religion, in sum, restrains the ideational temptation inherent to democratic life. Rather than see political society as the outlet for man's unsatisfied aspirations and desires, religion, to echo C. S. Lewis, helps man understand that "the only logical explanation" for those unsatisfied desires is that he "was made for another world."
FREE-EXERCISE REVISIONISM
Not every American generation has a consistent record of appreciating this unique inheritance. Nor is that a surprise. As surveyed above, America's understanding of religious liberty harmonizes varying philosophical strands with the founding's unique cultural experience of religious diversity. And this understanding's unique contribution to the common good is one that places religious exercise in ongoing tension with liberalism's ideational tendency. Throughout both the 19th and 20th centuries, unpopular religious practices of varying kinds experienced encroachments from political society that were at odds with America's traditional understanding of religious exercise. But despite those sad chapters in our history, this harmonized understanding endured into the 20th century. Indeed, it underlies one of the Supreme Court's most well-regarded religious-liberty opinions.
In West Virginia State Board of Education v. Barnette, the Court questioned how it should preserve the harmonized understanding of religious liberty against the backdrop of modern, expanded government power. The 1943 case dealt with Jehovah's Witness children being forced to salute the American flag in school. A mere three years earlier, the Court in Minersville School District v. Gobitis held that such children can be forced to pledge allegiance to the U.S. flag without any regard for their religious objections. In Barnette, the Court was keenly aware, as Kevin Seamus Hasson explained in Believers, Thinkers, and Founders, that Gobitis inspired "systematic legal persecution" of Jehovah's Witnesses throughout the United States. Many Americans took the decision as a license to accuse their Jehovah's Witness neighbors of being Nazi sympathizers for refusing to pledge allegiance to the flag. A Kingdom Hall was burned to the ground in Kennebunkport, Maine. "When the flames went out," Hasson related, "the crowd relit them," ensuring that all possessions were burned. Indeed, the outrages attributed to Gobitis (which also included the tarring and feathering of Jehovah's Witnesses) were so shocking that three of the justices in the majority called for its reversal only two years after it was decided.
Gobitis justified its refusal to defend religious liberty partly upon courts possessing "no marked...competence" in determining good, modern public education. Noting this observation, and aware of the effect it had on eroding religious liberty, Barnette said the expansion of government power into areas of life once reserved to civil society (like educating children) "has withered" the "pattern of liberal government in the eighteenth century." Indeed, the Supreme Court seldom confronted any Free Exercise Clause cases before the mid-20th century, largely because federal authority had previously played a much smaller role (and because Bill of Rights protections did not apply to state governments). But after the Progressive era's democratizing efforts and amid the New Deal's expansion of federal regulatory power, Barnette had to resolve how a government much more imposing than the kind contemplated by the Memorial and Remonstrance could still secure religious liberty. Unlike in Gobitis, the Court in Barnette refused to conclude that these "changed conditions" deprived the judiciary of any power to ensure that political society was shaped around the fulfillment of religious obligations. In reversing Gobitis, Barnette said the judiciary "cannot, because of modest estimates of [its] competence...withhold the judgment that history authenticates as the function of this Court when liberty is infringed."
Barnette's premises underlie the judiciary's mid-20th-century attempt to preserve our harmonized understanding of religious liberty against growing government power, particularly the "compelling-interest" test, which was developed in a series of post-New Deal cases decided by the Supreme Court and applied to the Free Exercise Clause in the 1963 case Sherbert v. Verner. This analysis was meant to apply the Free Exercise Clause, case-by-case, to guarantee religious accommodation in two scenarios: if the government lacks a "compelling" interest in burdening a particular religious obligation; or, even if the government possesses such a compelling interest, it is possible to further that interest by alternative means that do not burden the religious objector.
The compelling-interest test strove to ensure that political society accounts for its choices that impose on the claims of transcendent truth. As Alexander Bickel explained in The Morality of Consent, this kind of test reflects the uniquely American harmonization of political sovereignty with the Universal Sovereign. When considering "moral acts of selective objection," Bickel observed, the Court is not simply evaluating a refusal to obey a duly enacted law, but "a plausible claim that the law is bad on principle because," in refusing to account for the duties of conscience, "it is arguably inconsistent with the values of the legal order itself." Case-by-case claims of religious exemption, then, call "the society's attention to issues of...moral principle that often are submerged in the welter of affairs," where general legislation resides. As a body designed to adjudicate individual cases and controversies — and sufficiently removed from political pressure so it can see the effect of discrete cases on self-government's foundations — the Court is well-suited to facilitate such tailored exemptions.
To be sure, the compelling-interest test as applied in the Free Exercise Clause context was not without flaws. Its standards were often applied subjectively and without consistent definition. Indeed, some of the cases Bickel lauded conflated religious-accommodation requests with those sought because of "religion-like," deeply held individual beliefs. This conflation endangers religion's distinct contribution to restraining liberalism's ideational tendency.
Yet rather than refine the compelling-interest test, McConnell wrote that 1990's Smith "propose[d] to solve [its subjectivity and inconsistency] by eliminating the doctrine of free exercise exemptions." Smith explicitly resurrected Gobitis, doubting "that the appropriate occasions for [the] creation" of such exemptions "can be discerned by the courts." And Smith admitted that leaving such requests solely to the political process "will place at a relative disadvantage those religious practices that are not widely engaged in." Although Smith speculated that the political process would be "solicitous" of accommodation requests, it minced no words as to its view of such requests. It called them a "luxury" capable of "courting anarchy," and especially "danger[ous]" given American "society's diversity of religious beliefs."
At no point did Smith make an originalist argument in support of this reasoning. Rather, the decision claims to be a faithful accounting of the Court's free-exercise jurisprudence. But many others — even those who like the result in Smith — dispute this. The University of North Carolina's William Marshall, for example, candidly entitled his article defending Smith as a celebration of its "Free Exercise Revisionism." Professor Douglas Laycock was more direct, stating that "[l]iterally no one, including the Justices in the majority," understood the Supreme Court's prior free-exercise cases in the way Smith presented them.
Smith is, if nothing else, a rejection of any judicial role in ensuring the harmonized understanding of religious liberty in the Memorial and Remonstrance. It presumes — without any investigation of the question — that the judiciary must limit itself to a purely Lockean understanding of toleration, one that presumes a theory of easy separability between government power and religious duties reflects the real world. Justice Scalia all but confirmed this when he finally provided an originalist defense of Smith in a subsequent case (City of Boerne). There, he rejected the Memorial and Remonstrance's relevance in construing the Free Exercise Clause. To Justice Scalia, Madison stated only "what was thought to be legislatively or even morally desirable," not "what was constitutionally required (and judicially enforceable)." At no point did Justice Scalia, or any of the scholarship he relied upon in City of Boerne, explain why Madison's formulation in the Memorial and Remonstrance was applicable to every aspect of government except the judiciary. In creating this dichotomy, Smith rejected more than the compelling-interest test. It rejected the requirement at the core of the Memorial and Remonstrance: that political society must be shaped around duties to the Universal Sovereign. Rather, Smith conceives of religious pluralism as Locke had it: a function of the state's toleration, afforded to the extent the political sovereign deems it consistent with the state's overall goals.
With no defense of religious exercise's substantive contribution to a free society, it is no surprise that the political generation following Smith has shown significant hostility toward religious liberty. To be sure, Smith inspired an immediate backlash, and a broad, bipartisan coalition successfully passed a limited federal statute in 1993 that reinstituted the compelling-interest test (the Religious Freedom Restoration Act, or RFRA). But the three decades following Smith and RFRA are a story of that coalition's collapse. Justice Scalia rhetorically asked in City of Boerne, "Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice?" The answer, it turns out, is many people. This is, of course, not solely a function of Smith's premises. No discussion of the RFRA coalition's collapse would be complete without the cultural trend that Smith did not anticipate: the growing antipathy toward organized religion among some in the academy and politics. But a culture skeptical of religion only finds fodder in Smith's willingness to define acceptable religious exercise around what a political majority is willing to tolerate.
For example, many progressives today view any religious exercise beyond individualized expression — like wearing a hijab, growing a beard, or what one does, as House Speaker Nancy Pelosi put it, "on Sunday, in church" — as potentially threatening "dignitary harms." The source of dignity, according to this view, reflects an ideological commitment to "equality as sameness." Religious expression that reflects one's personal identity could, perhaps, not violate this abstract commitment to equality. And it might even help further ideological goals. In either case, it would be acceptable. But any broader, more institutionally manifested religious exercise — one that attempts to shape any part of the public square or present an alternative moral vision to equality as sameness — is unacceptable. As such, prominent progressive writers or publications often write about religious-liberty issues in those latter institutional contexts by putting the phrase in scare quotes. Others, reflecting this ideological conditioning, describe the invocation of religious liberty by Christians as "religious privilege," not religious liberty.
Conservatives suffer from their own ideational problems. Some conservatives (and libertarian fellow travelers) defend religious liberty merely as a subset of self-expression. From this perspective, religious exercise is no different than any other personal freedom. It is therefore defended with what Mary Ann Glendon denigrated as liberalism's "rights talk" — focusing on a liberty's "legalistic character," "exaggerated absoluteness," "hyperindividualism," "insularity," and a "silence with respect to personal, civic, and collective responsibilities." But defending religious liberty as a mere form of self-expression can only defend more communal or institutional religious duties — like running businesses, hospitals, schools, or foster-care agencies in accordance with religious obligations — by downplaying, or outright ignoring, what these institutions do: offer society alternative, transcendent moral visions.
Perhaps in reaction to this individualistic emphasis, other conservatives put a sectarian gloss on religious liberty. According to these conservatives, religious liberty should be deployed as a means to insist on a certain orthodoxy — one that marginalizes dissenters. This approach rejects the Memorial and Remonstrance too — just in favor of a pseudo-religious establishment that, at most, would take a Lockean toleration approach toward diverging religious views.
RECOVERING RELIGIOUS ACCOMMODATION
Revisiting Smith could restore America's unique appreciation of religious exercise as self-government's prerequisite and sustainer. For such a restoration to occur — and regardless of how, doctrinally, the restoration is implemented — Smith's animating feature, its view of the judiciary in relation to religious exercise, must be addressed.
Smith segregated America's tradition of religious accommodation from the Free Exercise Clause out of a commendable, though misapplied, respect for judicial self-restraint. As mentioned above, Smith is not an originalist decision. Rather, Smith's animating rationale — at the core of both its interpretation of the Court's free-exercise jurisprudence and its commentary on the compelling-interest test — is a certain view of the judicial role: a "prefer[ence]" (to use Smith's word) for democratic decision-making over judicial action regarding religious-accommodation requests.
This preference corresponds with the view of judicial restraint Justice Scalia defended in his excellent essay The Rule of Law as a Law of Rules. By providing a clear — even if incorrect — rule of decision (in this case, a neutral law of general applicability means no religious-based exemptions from courts), the judiciary fulfills its role of ensuring a consistent, predictable rule of law. But as Justice Scalia also explained in that essay, "when one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation." The same could be said of Smith. The decision lacks even an attempted originalist justification. It can be credibly accused of revising the entire body of 20th-century free-exercise jurisprudence. And it segregates the Free Exercise Clause from the founders' understanding of the relationship between the political and Universal sovereigns. Smith critics can therefore be forgiven for claiming that the decision "appears uncomfortably like legislation."
To be sure, serious originalist arguments have been made both for and against Smith. Foremost among the originalist arguments for Smith's rule (though perhaps not Smith itself) are those offered by Columbia's Philip Hamburger. Looking at the same evidence as McConnell, Hamburger concluded in a 1992 article named "A Constitutional Right of Religious Exemption: An Historical Perspective" that "the First Amendment assumes Congress can avoid enacting laws that prohibit free exercise." Because the political and Universal Sovereign spheres were "distinguishable," Hamburger reasoned, it is wrong to "suppose that civil laws will in some respects prohibit the free exercise of religion and that exemptions will be necessary."
This view presumes that the Lockean account of toleration — premised on an easy separability of religion and governmental concerns actually existing in practice — predominated at the time of the founding. But the formulation articulated in the Memorial and Remonstrance (as well as in numerous other founding-era publications and speeches) teaches, as Barry Shain explained in Liberty and American Experience in the Eighteenth Century, that "spiritual liberty" was "the most important form of liberty." The right to fulfill religious duties — the same kind of freedom prioritized by the Memorial and Remonstrance — "resulted from," as Shain explains, spiritual liberty (the freedom to set self aside and do what God requires). There were myriad Protestant denominations at the American founding (including, as Shain notes, "Socinians, Arians, Arminians," and many other "Protestant pietists and humanists," to say nothing of the Baptists, Methodists, Catholics, Jews, and other denominations). And they possessed diverging views on the duties that spiritual liberty must fulfill. Madison's formulation of shaping political society around religious obligations better reflects the lived American experience of ensuring that spiritual liberty remained precedent to the claims of political society in the face of religious diversity. And, crucially, that formulation ensures "spiritual liberty" fulfills its unique role in restraining liberalism's ideational tendency.
Although Hamburger does not say so explicitly (unlike Smith, his essay focuses on the Free Exercise Clause's original meaning, not the judicial role), his assessment of the founding-era evidence puts courts in a position that would normally give a restrained judge pause. Presuming that the "business" of religion and government can be easily separated gives courts a draconian choice: either strike a law down simply because it interferes with someone's religious obligations, or ignore a law's interference with an individual's religious duties altogether simply because the law generally falls within government's "business." Smith creates a similar dynamic. By encouraging courts to defer accommodation to the political branches, judges are encouraged to engage in what Justices Gorsuch and Alito called "after-the-fact maneuvering" to deem a government policy "neutral" toward religion. What Justice Scalia surely intended as a clear rule can be, in practice, dependent upon judicial subjectivity, not restraint.
Notably, even Hamburger has expressed doubt as to whether his assessment of the founding-era evidence is responsive to modern government power, which belies any notion that religious duties and governmental power are neatly separated in practice. In 2015 (23 years after his originalist defense of Smith's rule), Hamburger acknowledged that the growth of political decisions outsourced to administrative agencies — on premises that often disregard religious considerations in order to regulate areas of life once reserved to civil society (while still relying on religious organizations to fulfill many governmental policy goals) — "seriously truncate" the presumptions underlying Smith and, in his view, the Free Exercise Clause's original understanding. "It therefore must be asked," Hamburger said in Exclusion and Equality: How Exclusion from the Political Process Renders Religious Liberty Unequal, "how the Free Exercise Clause and the doctrine in Smith should be applied where the courts are open but the political process is not." This is not all that different from the question that confronted the Court in Barnette: How, in the wake of modern American life and its dramatically different conception of government power than the founding era, can religious liberty be preserved?
The Memorial and Remonstrance provides an answer. Modern American government comes closer to the one Burke described in explaining his defense of religious establishments alongside religious diversity: a government involved in shaping "opinions," moral formation, and relying on religious organizations to fulfill public policies. The formulation laid out in the Memorial and Remonstrance — where political society must be shaped around duties owed to a separate, Universal Sovereign — can remain viable in such a society if those religious duties receive accommodation. Ultimately, the interpretive question distills to whether the point of free religious exercise is simply to keep the political and Universal sovereigns separate, or, to ensure, as the Memorial and Remonstrance evidently sought, that the Universal Sovereign retains not merely separation but also precedence. If liberalism's ideational tendency is to be restrained, the latter must be the point.
The judiciary is also perfectly capable of being a part of this. As Justice Scalia in United States v. Virginia powerfully explained, the restrained judge should "preserve our society's values," not "revise them." "For that reason," he continued, "whatever abstract tests" are used to protect those traditions, "they cannot supersede — and indeed ought to be crafted so as to reflect — those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts." Applying that kind of judicial self-restraint to the Free Exercise Clause counsels that the Court must preserve, not revise, America's "constant and unbroken national tradition" of religious accommodation case by case, as reflected best by the Memorial and Remonstrance. This approach will not resolve all controversy of course — the ideational temptation in liberalism will always see divergent religious practices as a threat. But it would ensure that the founding's unique experience with, and lessons from, religious diversity would again be reflected in the Free Exercise Clause and the operation of the political sovereign.
The Court is increasingly restoring what Justice Alito has called this "spirit of practical accommodation." As George Washington put it in his Farewell Address, religion is an "indispensable support" to "political prosperity." One hopes that the Court will soon recover and articulate the substance behind that important insight.