14 Free Exercise before the Warren Court

Neutrality and Accommodation as Competing Approaches to Free Exercise

A harder problem emerges when laws aren’t created to target specific religions but burden them nonetheless. Imagine an early 20th-century state law that prohibits employers from opening on Sundays. Such a law would benefit the majority of citizens—who practice mainstream Christianity—by mandating a day of rest that happens to align with their Christian sabbath. But what of those who have their holy day on Saturday, such as Jews or Seventh-day Adventists? These employers are doubly burdened: they cannot open Sunday without violating the law nor Saturday without violating their faith. Even if the law was not designed, say, to disadvantage Jewish businesses, it still might have that effect.

Or imagine a law that bans all alcohol on public health grounds. Such a law could burden Roman Catholics (who use wine in their Communion ceremony) even though the law was not intended to discriminate against them specifically. Given the wide breadth of religious sects and beliefs in the United States, laws may burden faiths not only due to hostility, but because of ignorance, lack of consideration, or fear that granting exemptions will undermine the law in general.

What to do about such burdens is a central problem in Free Exercise Clause jurisprudence. What does the clause require of legislatures? Does it only require that the government remain neutral towards religion, or among different religions? Under this framing, the clause serves more or less as an anti-discrimination provision. Laws that target religions (either for punishment or benefit) are unconstitutional, but general laws that incidentally burden religious practice—such as a general prohibition on a drug that a religious sect happens to use in its ceremonies—do not. Here the primary job of judges is to assess neutrality or examine whether discrimination was present in the law’s passage of application. The granting of exemptions, by contrast, is the job of legislatures.

Or does the clause require governments to put religious exercise in a preferred place, accommodating such beliefs unless doing so threatens compelling state interests? Under this view, laws that burden religious exercise can be unconstitutional even if they weren’t designed or intended to discriminate. Here judges must go beyond only looking for discrimination and instead assess whether granting an accommodation would harm the government’s ability to carry out an important function, such as safety, public health, and so on. If not, courts may force the state to accommodate the burdened religious beliefs.

The debate between these two positions has remained a vibrant one for decades. There are good arguments for and against each school of thought.

The neutrality approach can prevent the most egregious attacks on religious exercise, while also guarding against “slippery slope” problems that might occur if too many people ask for too many exemptions to general laws. The neutrality approach also guards against the perception that religious individuals are not bound by the law in the same way that others are, a perception that can undermine tolerance of religion.

The main critique of neutrality is that it does not adequately protect minority or unpopular religions that lack the political power to block general laws that disadvantage them. If the Bill of Rights exists in large part to protect individual rights against community overreach, the neutrality approach may not provide adequate protection. Government officials may be clever enough not to openly advertise any discriminatory beliefs they might hold when passing laws that burden unpopular faiths.

The accommodation approach is the mirror image of neutrality in its strengths and flaws. It provides more protection for religious minorities, as state or local governments must convince courts why particular religious practices cannot be accommodated. The accommodation approach is thus more likely to protect religious exercise from the sort of burdens that arise from legislative ignorance, rather than discrimination per se.

However, the accommodation approach can be difficult to apply—deciding when religious accommodations should be granted and when they should be rejected can be difficult to implement consistently. Some justices have also worried that broad accommodation of religious exercise puts the state in danger of violating the Establishment Clause, as it seems to favor religious individuals by granting them an exception from laws that all other individuals must follow.

For most of our history, the Court has more or less endorsed some sort of neutrality approach. Prior to the incorporation of the Free Exercise Clause against the states in 1940 (Cantwell v. Connecticut), there were relatively few religion cases heard by the US Supreme Court. When such issues did arise, they generally involved either conscientious objectors to the federal military draft or the federal government’s management of U.S. territories. Though the Court did not act often enough for a well-developed doctrine to emerge, its approach could be characterized as a rejection of accommodation. The best-known of these early cases—and one that clearly rejects requiring legislatures to accommodate religious practices that violate general law—is Reynolds v. United States (1879), a dispute involving a Mormon’s challenge to the Anti-Bigamy Act.

The history of Mormonism—founded in 1830 by Joseph Smith in New York—is beyond the scope of these materials. It is enough to say that the religion was unpopular when founded and was often met with harassment or mob violence (Smith himself was killed by a mob). Among the more controversial practices of the early Mormon church was polygamy, or men taking multiple wives. Mormons migrated to the Utah territory, where their numbers allowed them considerable political power and the ability to engage in polygamy without significant repercussions. Congress responded in 1862 by passing the Anti-Bigamy Act, which banned marrying more than one spouse on federal land.

President Lincoln lightly enforced the law during his presidency, mainly to keep from driving Utah into the arms of the Confederacy. With the war’s end, however, federal prosecutions of bigamy increased. In one such conviction, Reynolds included the Free Exercise clause as a component of his appeal, arguing that the Anti-Bigamy Act violated the First Amendment. The Supreme Court unanimously rejected his appeal.

Reynolds v. United States

98 U.S. 145 (1879)

Facts: Reynolds, a Mormon, was charged with bigamy within the Utah Territory. Reynolds sued, arguing the law violated his right to free exercise.

[The appeal and opinion also contain criminal procedure issues omitted from this excerpt]

Question: Did the federal Anti-Bigamy Act violate the First Amendment’s Free Exercise Clause?

Vote: No, 9-0

For the Court: Justice Waite

CHIEF JUSTICE WAITE delivered the opinion of the court.

… Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition…

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes This brought out a determined opposition. Amongst others, Mr. Madison prepared a “Memorial and Remonstrance,” which was widely circulated and signed, and in which he demonstrated “that religion, or the duty we owe the Creator,” was not within the cognizance of civil government. At the next session, the proposed bill was not only defeated, but another, “for establishing religious freedom,” drafted by Mr. Jefferson, was passed. In the preamble of this act, religious freedom is defined, and, after a recital “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty,” it is declared “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”

In these two sentences is found the true distinction between what properly belongs to the church and what to the State…

… at the first session of the first Congress, the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted…

… Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England, polygamy has been treated as an offence against society…

… From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests… there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion … the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances…