The Kim Davis situation raises interesting questions about the
meaning and practical effect of the freedom of religion. Although, for
reasons that I will explain, the issue today is one of public policy,
rather than constitutional law, the evolution of constitutional
principles in this realm is illuminating.
The First Amendment
forbids government to make any law "prohibiting the free exercise" of
religion. At its core, this guarantee forbids government from intentionally interfering
with the freedom of individuals to practice their religion. Thus, the
free exercise principle at least presumptively forbids the government to
enact laws expressly prohibiting Muslim women to wear burkas, expressly
prohibiting Jews to circumcise their male children, or expressly
forbidding Catholics to use sacramental wine. Such laws are paradigmatic
violations of the free exercise principle, because their very purpose is to restrict the religious practices of particular faiths.
The Kim Davis situation is different. Consider, for example, a law that prohibits anyone
to use peyote. Does such law violate the free exercise principle when
it is applied to a member of a religious group that uses peyote as a
sacrament? Or consider a law that compels military service. Does such
law violate the free exercise principle when it is applied to a member
of a religion that teaches pacifism? Or consider a law that prohibits
discrimination on the basis of sexual orientation. Does such a law
violate the free exercise principle when it is applied to apply to an
elevator operator in a government building who refuses to allow in "his"
elevator people he regards as sodomites?
The difference between
the paradigmatic violations of the free exercise principle and these
latter examples is that in the paradigmatic situations the laws at issue
are expressly and purposely directed at the free exercise of
religion, whereas the latter examples involve what is commonly referred
to as the "incidental effects" problem.
In the incidental effects situation, a law that is not otherwise problematic on its face is claimed to be impermissible because, in application, it incidentally interferes with some individual's asserted "rights." This happens all the time.
Consider,
for example, the freedom of speech. A law prohibiting speeding has
nothing to do with free speech. But suppose an individual who is
arrested for speeding insists that he should be exempt from the
anti-speeding law because he was rushing to a lecture. Or, suppose an
individual who is arrested for littering by dropping thousands of
leaflets from a helicopter maintains that he should be exempt from the
anti-littering law because this was an efficient way for him to
communicate his views to others. Or, suppose a reporter who is arrested
for burglary for breaking into a person's home asserts that he should be
exempt from the law against burglary because this was a good way for
him to get a story.
As common sense would suggest, in all of these
examples the individual demanding the exemption will lose. Put simply,
and except in truly extraordinary circumstances, the Supreme Court does
not look kindly on incidental effects claims in the free speech context.
Why is this so? There are at least four pretty good reasons.
First, once one opens the door to such claims, every tomdickandharry
will assert them. "I robbed that guy so I could give money to my
favorite presidential candidate -- Donald Trump." "I parked illegally so
I could go to the bookstore." "I was naked at the beach so I could
protest laws against nudity." And so on.
Second, in such
circumstances, it would be next to impossible for courts to determine in
each instance which free speech claims are sincere and which are a
sham. It all rests in the mind of the actor, and everyone who does
anything illegal would be tempted to cook up a free speech explanation.
Sorting it out would be a fact-finding nightmare.
Third, even if a
particular a claim is in fact sincere, and even if the individual did
in fact violate the law in order to communicate, it would be daunting,
indeed, to figure out in each instance whether the individual's free
speech interest is sufficiently important to override the legitimate
reason for the law. Is speeding to get to a lecture sufficiently
"important" to justify speeding? Is being naked on a beach to protest
nudity laws sufficiently "important" to justify the nudity?
Fourth,
in most of these situations, with just a little creativity, the
individual claiming the exemption could have expressed herself in some
other manner, without violating the law. In such circumstances, the
denial of an exemption does not significantly interfere with free
speech.
For all of these reasons, the Supreme Court has
consistently looked skeptically on claims that incidental effects on
free speech violate the First Amendment. Such exemptions are granted
only in truly extraordinary circumstances.
For similar reasons,
the Supreme Court has generally -- though not always -- been similarly
skeptical of incidental effects claims in the free exercise context. In
1878, for example, George Reynolds, a Mormon, claimed that a federal
anti-polygamy law infringed his right to the free exercise of his
religion, because Mormonism called for polygamous marriage.
The
Court denied the challenge, explaining in no uncertain terms that to
exempt individuals from criminal prohibitions on account of their
religious beliefs would make "the professed doctrines of religious
belief superior to the law of the land, and in effect ... permit every
citizen to become a law unto himself." In short, laws having incidental
effects on religious freedom, like laws having incidental effects on
free speech, were presumptively constitutional.
That remained the
law until the 1963, when the Warren Court reconsidered the question.
Seventh Day Adventist Adell Sherbert claimed that her free exercise
rights had been violated when she was denied unemployment benefits
because her religious beliefs forbade her to work on Saturdays. The
Court held that the government could not require Sherbert to work on
Saturdays in order to be eligible for unemployment compensation, because
the state's interest in applying the law to her was not sufficiently
weighty to overcome her right to the free exercise of her religion.
This
doctrine, which revolutionized the law, wobbled around inconsistently
for roughly twenty-five years as courts struggled to apply the new
doctrine to a range of factual situations that weren't quite as neat as
Sherbert's. In some cases, there were doubts about whether the religion
really required the individual's behavior; in some, there were doubts
about whether the claimant really held the belief; in some, there were
doubts about whether the claimant could have meet her religious beliefs
in other ways; in some, there were difficult questions about whether the
government's interest in not granting an exemption was sufficiently
weighty to override the religious claim. It short, it was messy.
Then, in 1990, in Employment Division v. Smith,
the Supreme Court reversed course once again. Galen Smith was fired
from his job because he had ingested peyote for sacramental purposes at a
ceremony of the Native American Church. He was then denied
unemployment compensation because he had been terminated for
employee-related "misconduct." He maintained that the denial of
unemployment benefits to him violated his rights under the Free Exercise
Clause.
In an opinion by Justice Antonin Scalia, the Court
jettisoned its earlier doctrine and held that Smith was not entitled to
an exemption. In effect, the Court reinstated the incidental effects
doctrine as it had first been enunciated by the Court more than a
century earlier in the polygamy case.
Whatever one thinks of Smith
as a constitutional decision, it does not resolve the larger social
question. Even if something is not unconstitutional, it might still be
bad public policy. Indeed, in the years after Smith, a broad
coalition of groups as diverse as the ACLU and the National Association
of Evangelicals came together to enact legislation at both the federal
and state levels that presumptively prohibits government from
disadvantaging an individual for acting on his religious beliefs even
when the applicable law has only an incidental effect on his behavior.
The
ultimate question is whether this policy can in fact be pursued in a
manner that accommodates sincerely-held religious beliefs without
creating so many problems of implementation, and so many incentives for
false claims, that the costs of the policy outweigh its benefits.
Although
I am not a religious person, I believe that, as a matter of sound
public policy, we should bend over backwards not to penalize individuals
for the honest exercise of their sincerely-held religious beliefs. Why
penalize someone for acting out of a sincerely-held religious belief
unless there is at least a reasonable justification for doing so?
The
answer, of course, is that for the reasons noted earlier, the doctrine
might just be too complicated to implement in a predictable, sensible,
even-handed, and fair-minded manner. The plain and simple fact is that
the doctrine invites all sorts of abuse and sham claims, and compels
judges and other government officials to make complex and potentially
offensive judgments about the content of religious belief, both for the
religion and for the individual.
On the other hand, the virtue of
such a doctrine might be not only that it respects sincere religious
beliefs, to the extent it can discern them, but also that it can protect
members of minority religions. In the real world, the members
of mainstream religious groups will rarely, if ever, find themselves in
need of this principle, because those who make the laws will almost
always carve out explicit exceptions for them.
As an example,
compare Prohibition, which carved out an express exemption for the use
of sacramental wine, with the laws prohibiting the use of peyote, which
did not carve out an express exemption for the Native American
Church. Or, think of the Seventh Day Adventists. Predictably, the
unemployment compensation law did not require individuals to work on
Sunday, thus privileging mainstream religions. But those who enacted the
unemployment compensation law did not carve out a similar exemption for Seventh Day Adventists.
A doctrine that permits courts to recognize exemptions even for minority
religions thus offers an important safeguard of equality and
even-handedness in an otherwise predictably unequal and unjust approach
to the legislative recognition of explicit legislative exemptions.
In
the end, then, it is fair to say that, as a general matter, there is no
obvious "right" answer. This is a difficult issue. There is a "right"
answer, however, in the Kim Davis situation. Indeed, her case is not
even a hard one. A public official, who acts as an agent of the
government, simply cannot place her own religious beliefs above those of
the constitutional obligations of the state and the constitutional
rights of our citizens. Davis should have found a way to reconcile her
personal religious beliefs with her official responsibilities, or she
should have resigned.
Davis is the moral equivalent of the
elevator operator in a government building who, for her own religious
reasons, refuses to let gays and lesbians ride in "her" elevator, which
is the only one in the building. This, quite simply, she cannot do.
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