A s the cases challenging the Health and Human Services mandate make their way through the courts, the main claim is that those who object to the mandate on the basis of religious conscience should be exempted from the law’s requirement of providing objectionable drugs and services. The goal is admirable, but this way of thinking isn’t. I’ve become convinced that we should see protecting religious freedom as grounds for limiting political power, which means striking down laws that threaten that freedom rather than granting exemptions to laws that otherwise stand intact.
The idea that the First Amendment could be the basis of a constitutionally required exemption from otherwise universal legal duties did not arrive in American law until 1963, in Sherbert v. Verner. The case concerned a Seventh-day Adventist who would not work Saturdays and thus was denied unemployment benefits. The Supreme Court held that the free exercise of religion required an exemption from an otherwise valid policy.
A number of interesting cases followed the Sherbert precedent, notably Wisconsin v. Yoder (1972), exempting the children of Old Order Amish from a requirement to attend school until age sixteen. The bar remained high for religious claimants, but they won occasional exemptions. Then in Employment Division v. Smith (1990), the Court held that members of the Native American Church could not claim a religious exemption for unemployment benefits after they were fired for using peyote, a criminal offense in Oregon. The Court’s reasoning seemed to bring the exemptions experiment to an end.
But Smith was comprehensively criticized—including in the pages of this magazine—and a remarkable inter-religious coalition gathered together to advocate the passage of the Religious Freedom Restoration Act three years later, in an effort to re-establish, by statute, the legal template for religious exemptions to otherwise generally applicable laws. It’s this act that provides the basis for the primary legal strategy of the litigants against the HHS mandate.
I wish them every success. However, I don’t think exemptions will work over the long haul. We need to recapture something of an older approach to the law of religious freedom, which prevailed in the decades before Sherbert was decided a half-century ago.
In Sherbert, the plaintiff was a Seventh-day Adventist. In Yoder, an Amish family. In Smith, members of the Native American Church. What do they have in common? I mean no moral judgment here when I say that, sociologically speaking, these are oddball faith communities: small, distinctive minorities, with decidedly out-of-the-mainstream religious beliefs.
It is easy to see how laws enacted in good faith can fail to take the beliefs of oddball groups into account, often unwittingly. It is also easy to see that exemptions for small and distinctive minorities cause little dislocation to the law in general, which continues to apply with near universality. This was true with exemptions from militia service for Quakers early in our history. Quakers were few, and there was little reason to fear that this would amount to a high number of exemptions. In short, the carving out of exemptions for small and unusual groups does not “honeycomb” the law with great gaps that call its (almost) universal character into question.
A concern to uphold the universal character of the law predominated in pre-Sherbert thinking about religious freedom. And the pioneers in litigating religious freedom claims were one of America’s most distinctive religious minorities. The Jehovah’s Witnesses were the key parties in virtually every significant case in which religious freedom was litigated in the 1930s and 1940s, at a time when the entire field of religious freedom law came into being.
Some of these cases they won and some they lost, but in none of them did the Witnesses claim or receive an exemption from an otherwise generally applicable law. During this time, the justices of the Court did not seriously consider exemption as an appropriate alternative to upholding or invalidating the law as it applied to everyone.
The two famous flag salute cases, Minersville School District v. Gobitis (1940) and West Virginia Board of Education v. Barnette (1943), illustrate the point. In each case, the issue was compulsory performance of a flag salute by children in public schools, a sign of patriotic loyalty to the nation that implied obligations to defend it. Could the state compel such an avowal of belief contrary to what their religion taught them? The Witnesses’ faith taught that such salutes and utterances were forbidden idolatry, directly condemned in the Decalogue, and that they did not owe the United States either their allegiance and loyalty or their efforts to come to its defense.
The Witnesses lost the first case, Gobitis, in 1940, by an eight-to-one vote of the Supreme Court. A wave of anti-Witness hostility, both official and unofficial, followed in the ruling’s wake. In 1943—whether because of this spike in anti-Witness abuse and violence or not is difficult to say—the Court reversed itself in the Barnette case, overturning the Gobitis precedent by a six-to-three vote.
The reasoning in the Barnette case is worth dwelling on. Rather than granting an exemption, the Court overturned the compulsory flag salute in its entirety. While pledging allegiance to the flag (with a more subdued physical salute) continues to this day to be routine in America’s public schools, for the seventy years since Barnette it has been unlawful to compel any student to participate, and no student who elects not to participate is obliged to give any reason for that choice. The Pledge of Allegiance is, from a legal standpoint, an entirely voluntary exercise.
Notably for our purposes, at all stages of the Barnette litigation in the courts below—as in Gobitis before it—the issues had revolved entirely around the schoolchildren’s claim regarding their free exercise of religion. But in his majority opinion, Justice Robert Jackson changed the subject. Now the case was about freedom of speech, and not about (or almost entirely not about) freedom of religion.
The core of Jackson’s argument in his opinion for the Court was that the obligatory flag salute and pledge constituted compelled speech. The law required “affirmation of a belief and an attitude of mind,” and Jackson asserted that the Witnesses’ motive for refusing to comply was not the hinge on which the case turned. For “many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.”
At the time, Jackson’s approach of downplaying freedom of religion to the vanishing point did not sit well with all his colleagues in the majority. Chief Justice Harlan Stone wrote an internal memorandum to Jackson, urging him to make religious freedom the central issue in the case, but to no avail. Stone held his peace in public, but Justice Frank Murphy published a concurring opinion, emphasizing that religious freedom was what Barnette was truly all about.
Most scholars praise Jackson for “widening” the reach of his opinion by converting the religious freedom claim into a free speech claim, and the decision is routinely treated as one of the strongest vindications of civil liberties in twentieth-century American law. But there is more music than sound reasoning in Jackson’s opinion. In various settings, the government compels speech without anyone thinking anything is amiss, and not just in the context of testimonial honesty. For example, in the naturalization process that makes citizens of aliens, the government compels the statement of a comprehensive pledge of loyalty to the nation.
More significantly, it is impossible to credit the notion that a minority objecting to the flag salute on the basis of a generalized intellectual disagreement with the propositions in the pledge, as opposed to a religious objection, would have won. Jackson wrote as though the followers of Jehovah were on the same plane as those of John Stuart Mill. But the legal victors had to be people like the Jehovah’s Witnesses, plaintiffs who claimed that God made commands known to them that they must obey or else endanger their immortal souls.
If we read Barnette aright as a religious freedom case, we can draw on its best insights. Instead of carving out an exemption for the Witnesses, it struck down the compulsory character of the flag salute altogether. The Witnesses’ claim resulted in a net increase of freedom for everyone—even those for whom the flag salute requirement worked no hardship. After Barnette, anyone could decline to salute the flag, for reasons good or bad.
It’s this approach the courts should take today. The strategy of granting ad hoc exemptions is appealing. It leaves the challenged laws generally undisturbed, while specially suspending them for groups small enough not to make the exemptions terribly conspicuous or bothersome. But it’s constitutionally incoherent, and not substantially improved by reliance on RFRA as a statutory basis.
Now the incoherence is becoming clear. In the HHS mandate cases, generally applicable laws are being challenged by large, mainstream faith communities. Understandably, the challenge rests first and most heavily on RFRA’s exemption standards. But there are too many claimants for the desired exemption, which is why liberals resist it so strenuously. If the Obama administration made way for every sincere religious claim to be relieved of the HHS mandate, the legal landscape would be pocked with enormous craters where the routine administration of the law had been exploded.
Seeking exemptions from a forced recognition of same-sex marriage—a claim arising more and more frequently now—presents the same problem. Again, there are just too many Christians, Jews, Muslims, and others who refuse to regard marriage as possible between two persons of the same sex. To credit and make way for every sincere exemption claim on religious grounds would result in too many encounters for same-sex “married” couples in which their fellow citizens refuse to treat them as married, in employment, housing, education, provision of faith-based social services, and so on.
So, given the law’s need for (nearly) universal applicability, no system of widespread exemption will work. That’s why liberals resisting exemptions have a point: Law without uniformity of recognition of its basic requirements and obligations begins to look like no law at all. A few exceptions are tolerable. Great masses of exceptions, on the other hand, begin to eat up the rule of law.
The rule of law is exactly why we need to return to a Barnette-style approach to freedom. Since the HHS mandate invades the religious freedom of people who regard abortion or contraception as an affront to the moral teachings of their faith, the correct constitutional outcome is to toss out the mandate itself. Like the obligatory Pledge of Allegiance, it should not be a lawful command to anyone. Coverage of such alleged “preventive care” should return to being voluntary for all employers, as it was in the past, an arrangement the vast majority of Americans found entirely reasonable.
In the more difficult same-sex marriage context, a Barnette approach would recognize a universal freedom not to recognize same-sex couples as “married.” This freedom would come about—and could only come about—as a result of religious objections, but the freedom so won would be available to all private actors in their capacity as moral agents: schools, hospitals, employers, businesses of all kinds in many different transactions that touch on marital status.
It may be difficult to envision this freedom. We conceive of marriage as a public reality only to the degree that it is recognized by society, and a freedom not to recognize others’ state-sanctioned marriages seems counterintuitive. But surely such a civil-libertarian argument does not overtax the legal imagination. Our legal elites are presently convinced of a “right to marry,” which suggests nothing if not creativity. If the state redefines marriage, the least it can do is neither pick my pocket nor break my leg by forcing me to go along with the redefinition.
Pursued with the right kind of arguments and with sufficient vigor, an escape from the “exemptions ghetto” can bring us out into an open field of religious freedom in full—and of moral freedom in full for all, thanks to the indispensable leadership role of religious conscience, and the recognition of the duty of men and women to obey God before any authority of the state.
Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.
