An Open Letter to the Religious Community

T

he signers of this letter have been active for many years in both scholarship and litigation regarding religious liberty, and have close associations with many in the religious community who are now deciding whether to support the proposed Religious Freedom Restoration Act. Based on both our researches as scholars and our experience as litigators, we enthusiastically endorse the proposed Act and urge you to support it as well. We agree with some of the criticisms of the specific language of the bill in its present form and understand that its sponsors and supporters are open to improvements in the drafting and hearing process. We believe it is important for the religious community to unite in support of the bill's basic approach. If we do hot speak out in support of the freedom of religious conscience, who will?

The Supreme Court's decision in Employment Division v. Smith (1990) was a sweeping disaster for religious liberty. The Court decided that a law forbidding a religious practice presents no issue to be decided under the Free Exercise Clause, so long as it is framed in terms that are ostensibly “neutral” and “generally applicable.” The fact that the case involved a worship service (the sacramental use of peyote in the Native American Church) lends credence to the Court's statements that the importance or centrality of a religious practice is irrelevant. Smith applies only to neutral laws of general applicability, but clever lawyers can state almost any law in formally neutral terms by carefully selecting the level of generality at which the law will be stated. Thus, the implications of Smith affect every free exercise controversy in America.

We are not aware of any disagreement in the religious community about the desirability of overruling Smith. We do understand that some religious leaders and their counsel have reservations about the means. We believe that something like the proposed Religious Freedom Restoration Act is the only promising means.

The principal reservation is that it would be better, as a first step, to attempt to get the Court itself to change Smith. Further litigation might proceed on two fronts. First, litigants might ask the Court to overrule Smith and return to, the law of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), cases holding that the government may not burden the practice of sincerely held religious beliefs unless it is the least restrictive means of attaining a compelling governmental interest. We believe that this has very little chance of success. Prompt overrulings of the Court's mistakes are extraordinarily rare, and they usually result at least in part from new appointments. In this case, new appointments are more likely to increase the majority for Smith. One of the three dissenters has already retired; the other two are over eighty and have health problems. New appointments for the foreseeable future will presumably come from the same political and jurisprudential perspective that created the Smith majority.

Smith has deep roots in the current majority's jurisprudential philosophy, and that is not likely to change. Smith results from the same deference to democratic decision-making that made the Court so reluctant to apply Sherbert and Yoder vigorously and honestly in the years prior to Smith. The Court's avoidance of judicial activism may be a good thing in some contexts; we believe it is misplaced in the context of a textually clear constitutional right.

It is true that the Court decided Smith without briefing or argument on whether the Free Exercise Clause protects religious conduct. The Justices were unaware of Michael McConnell's work on the original understanding of free exercise, and they probably did not appreciate all the implications of what they were doing. But all of this was brought to their attention in the unsuccessful petition for rehearing. The chances of a flat overruling are very low.

The other litigation approach is to fit most free exercise cases into one of the limits or exceptions in the Smith opinion. We (among others) have taken that approach in litigation and discussed its merits and limitations in law review articles. But again, there is little reason for optimism. Competent counsel for state and local governments are arguing with equal vigor that no cases fit into any of the exceptions. It is unlikely that the Court will allow the exceptions to swallow its new rule. It is far more likely that the Court will gradually eliminate the exceptions as inconsistent with the logic of Smith. It is not encouraging that the first lower court decisions applying Smith have given short shrift to its limitations and exceptions.

Either litigation strategy is likely to take several years. We are told by persons whose political judgment we respect, including congressional staff and persons with experience lobbying for religious causes, that the chances of enacting the Religious Freedom Restoration Act will steadily decline over time. The repudiation of prior law is fresh in memory now; the angry reaction is now; much of the coalition is assembled now. The bill's supporters have enlisted more than one hundred cosponsors. If the religious community walks away from those cosponsors now, it will have much less credibility when it returns to seek their help in five years. We believe it would be a serious mistake to let the legislative opportunity pass while we pursue a judicial remedy that is unlikely to succeed.

A second reservation about the bill is closely related to the first. It is that the bill delivers free exercise rights into the hands of Congress, leaving them vulnerable to future amendment or repeal. The dangers of amendment or repeal are real, but the Religious Freedom Restoration Act is not the culprit. The Court in Smith delivered free exercise rights into the hands of Congress and of every state legislature, city council, and administrative agency in the land. Every lawmaking body is now free to forbid religious exercise with formally neutral rules. Exemptions must be won over and over again at every level of government. Every legislative fight for an exemption will be in the context of some specific legislative proposal supported by its own coalition of interest groups, and those coalitions will resist any exemptions. Any exemptions that are granted will be vulnerable to amendment or repeal, or to overriding legislation from another level of government. Needless to say, non-mainstream religions, and those whose tenets are particularly antithetical to powerful political interests, are particularly at risk if exemptions are decided on a piecemeal basis.

The Religious Freedom Restoration Act would confine the issue to Congress and, more importantly, it would present the issue in general terms. Congress would be asked to vote on the principle of exemptions for religious exercise, with a broad coalition urging an affirmative vote. Congress would not be asked to decide the legitimacy of particular religious practices or to balance religious liberty against the demands of other interest groups on a case-by-case basis. By legislating generally. Congress would avoid the danger of protecting only large and influential faiths while ignoring the needs of small or unpopular faiths. The Court has thrown free exercise into the political process, and this bill is the most favorable ground on which to wage the political fight.

A third reservation is that the bill would somehow change the rules of standing, or the rules of substantive law, to create free exercise claims that could not have existed before and that might be undesirable in the judgment of some denominations. We see no basis whatever for this fear. The law of standing will not be affected in any way, and the substantive law will at most be restored to the principles of Sherbert and Yoder. Any claim that could be brought under the Act could be brought under the Free Exercise Clause if Smith did not stand in the way.

Fourth, some have expressed reservations about the substantive standard for governmental interest articulated in the bill: that the restriction be “essential to further a compelling governmental interest.” The concern is that this language, which was taken from numerous Supreme Court free exercise decisions prior to Smith, may not adequately protect religious freedom.

We must acknowledge that one of us (McConnell) has expressed the view in print that the “compelling” interest test is not the best possible formulation of either the original understanding of the free exercise principle or of a workable modern interpretation. Nonetheless, for purposes of this legislation, we agree that the term “compelling interest” is the best formulation for a statute that has as its purpose the restoration of constitutional principles as they existed prior to Smith.

At a verbal level, the “compelling” interest test is the strongest test in constitutional law. In the area where the test originated—invidious discrimination against racial minorities—the Supreme Court has not found the test satisfied in almost half a century. If taken seriously, the test would be more than strong enough to protect religious liberty. To be sure, in a series of decisions in the 1980s, the Supreme Court purported to apply the “compelling” interest test, while giving it so little “bite” that it more closely resembled a “rational basis” test than a “compelling” interest test (for example. United States v. Lee [1982]). The limitations of language are such that no verbal standard is impervious to misapplication.

But the solution to this problem is not to craft new language, which would create great uncertainty about the meaning of this legislation. The better solution is to explain in the committee report that the “compelling” interest test is a reference to the test applied in Wisconsin v. Yoder (1972), Thomas v. Review Board (1981), and Sherbert v. Verner (1963). There is no need for Congress to express a view on whether other cases, in which free exercise claims were rejected by the Court, were correctly decided.

We would also recommend against any attempt by Congress to address specific cases or contexts involving free exercise claims. Conflicts between religious conscience and governmental authority can arise in virtually any context, and it would not be feasible for Congress to anticipate them all. Moreover, almost by definition free exercise claims involve the rights of minorities against the majority. While a broad coalition can agree in principle on the importance of free exercise of religion, it is too much to ask that they agree on the specifics of religious practices about which they will, naturally, entertain different convictions. The “compelling” interest test of the proposed bill, being general, is superior to any attempt to address particular cases in detail.

Finally, some concern has been expressed about the potential impact of the bill on the Supreme Court's interpretation of the Establishment Clause. Many of the religious and civil liberties groups that agree on the proper interpretation of the Free Exercise Clause do not agree about the Establishment Clause. Some think that the Court's current test is too stringent; some think it is too lenient; some think it is about right. It has been suggested by some who are critical of the current Establishment Clause test that Section Six of the proposed bill might freeze that interpretation in place. We do not think this criticism is well founded.

Section Six provides: “Nothing in this Act limits or creates rights under that portion of the first article of amendment to the Constitution that prohibits laws respecting an establishment of religion.” In our judgment, this language is purely precautionary and has no substantive effect at all. The Religious Freedom Restoration Act does not address the Establishment Clause, and (with or without Section Six) does not affect it.

The relation between the Free Exercise and Establishment Clauses is a source of great contention. Some believe that the pre-Smith free exercise interpretation is inconsistent with the Court's current interpretation of the Establishment Clause. Others do not. This bill does not, and should not, resolve that question. All it does is return the question to the same state of contention and confusion that reigned before the decision in Smith.

In conclusion, we strongly endorse the concept of the Religious Freedom Restoration Act (even though we believe the language of the bill should be modified in some respects). We share the regrets and concerns of some critics of the bill that these principles are now to be given mere statutory protection, when we are convinced that they are entitled to constitutional protection. But if statutory protection is available, it can supplement constitutional protection. The fear that statutory protection might be counterproductive is inconsistent with modern experience. Racial minorities have sought protection from the courts and the Constitution, but they also turned to Congress and procured passage of the great civil rights acts. Even more pertinent to our situation is the Equal Access Act, by which Congress protected the constitutional rights of student religious groups struggling against discrimination in the high schools, where years of litigation in the courts had failed to win redress. Congress' emphatic defense of religious free speech rights over countervailing Establishment Clause fears surely contributed to the Supreme Court's thinking on the constitutional question, as well.

We have come to think of the courts as the branch of government most responsible for protecting liberty. But the original conception was that our representative institutions would themselves be the first protectors of our liberties, with the courts serving as backstops when the representative branches failed. One of the virtues of separation of powers is that each branch of government can protect liberty when it is so inclined, and that each branch can fill part of the gap left by the errors and omissions of the other branches.

We therefore believe that passage of a properly worded Religious Freedom Restoration Act is the best practicable means of correcting a grave interpretive error by the Supreme Court, and will help to ensure that all Americans, whatever their religious faith, will be protected in their exercise of religion, as the framers and ratifiers of our Constitution intended them to be.

Edward McGlynn Gaffney is Dean and Professor of Law at the Valparaiso University School of Law.

Douglas Laycock is Robert E. Scott Distinguished Professor of Law at the University of Virginia.

Michael W. McConnell is Director of Stanford Constitutional Law Center.