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Article Excerpt
MOST every aspect of life in the modern state is exposed to laws and regulations, many of which can have the effect of restricting the free exercise of religion. This gives rise to demands that the state "accommodate" religion by refraining from enforcing commands or prohibitions on believers that are binding on other citizens. Since the end of World War II, the response of the U.S. Supreme Court to these demands has gone through two distinct phases.
In the initial phase, first introduced in 1943 and subsequently refined, the Court set forth a regime of required accommodations: If a state action pursuing a generally valid public purpose has the effect of significantly burdening religious freedom, then the state must show both that the public interests at stake are "compelling" and that its action has been carefully designed to minimize the intrusion on religious practice. If not, then religiously motivated requests for exemptions from the full force of the law enjoy at least presumptive validity.
In 1990, however, in the case of Employment Division v. Smith, the Court turned this regime on its head, deciding that the state of Oregon was not required to exempt Native Americans who use peyote in their religious ceremonies from the requirements of its drug laws. Writing for the majority, Justice Antonin Scalia argued that many laws would fail the compelling state interest test. "Any society adopting such a system," he declared, "would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them." He concluded that
we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation that does not protect an interest of the highest order.... [Such a rule] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every kind.
The Smith decision produced an outraged backlash across a wide range of religious denominations and political affiliations and led to the passage in 1993 of the Religious Freedom Restoration Act, which the Court subsequently nullified. What is ultimately at stake in this debate is not only the right of freedom of conscience but also our understanding of the nature of America's liberal democratic order.
Two views, two cases
Justice Scalia's line of argument struck many observers as wholly unexpected and unprecedented, a legal bolt from the blue. In fact, it drew on an important but largely forgotten episode in U.S. constitutional history, one that dates back to the late 1930s. Acting under the authority of the state government, the school board of Minersville, Pennsylvania had required both students and teachers to participate in a daily pledge of allegiance to the flag. In the 1940 case of Minersville School District v. Gobitis, the Supreme Court decided against a handful of Jehovah's Witnesses who sought to have their children exempted on the grounds that this exercise amounted to a form of idolatry strictly forbidden by their faith. With but a single dissenting vote, the Court ruled that it was permissible for a school board to make participation in saluting the American flag a condition for attending public school, regardless of the conscientious objections of parents and students. Nearly half a century later, Justice Scalia cited the key passage from the majority decision in Gobitis, written by Felix Frankfurter, to bolster his controversial holding in Smith.
But this historical drama had a second act. Quoting liberally from Frankfurter's Gobitis decision, the West Virginia State Board of Education quickly issued a regulation making the flag salute mandatory statewide. When a challenge to this action arose barely three years after Gobitis, the Court reversed itself in 1943 in West Virginia Board of Education v. Barnette by a vote of six to three. To be sure, during the brief interval separating these cases, the lone dissenter in Gobitis had been elevated to Chief Justice, and two new voices, both favoring reversal, had joined the Court. Meanwhile, two supporters of the original decision had departed. But of the seven justices who heard both cases, three saw fit to reverse themselves and set forth their reasons for the change.
This kind of abrupt, explicit reversal is very rare in the annals of the Court, and it calls for some explanation. A clue is to be found in the well-known peroration of Justice Robert Jackson's majority decision overturning compulsory flag salutes:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitation on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
This protected "sphere of intellect and spirit" to which Jackson refers enjoys a central place in the development of American law and culture, and in liberal democratic theory more generally. In a line of cases dating back to the early twentieth century and culminating in Jackson's Barnette decision,...
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