A New Approach to Nineteenth-Century Religious Exemption Cases

Wesley J. Campbell

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In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion of the original meaning of the Free Exercise Clause. Seven years later, however, Justice O’Connor’s dissenting opinion in City of Boerne v. Flores attacked the Smith holding on originalist grounds, and Justice Scalia responded in kind. After engaging with various founding-era sources, Justice Scalia remarked that “the most telling point made by the dissent” was the lack of early state or federal cases in which the court granted a religious exemption to a neutral and generally applicable statute. Indeed, the dissent provided no account of early religious exemption cases and offered only silence in response to Justice Scalia’s critique of such an omission.

This Note disputes Justice Scalia’s claim that the dearth of successfully litigated nineteenth-century exemption claims reveals a lack of historical support for religious accommodations.  Rather than being “the most telling point,” the absence of exemption decisions reflects historical differences that call into question overly simplistic originalist arguments. In particular, prevailing theological views, skepticism of courtroom declarations, and judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. Understanding these factors also helps explain the apparent erosion of support for religious accommodations in the middle of the nineteenth century. This reinterpretation of the historical record suggests not only that Smith and Boerne may be inconsistent with original meaning but also that an originalist approach to the Free Exercise Clause may not be able to account for shifts in ideas about religious freedom preceding the adoption of the Fourteenth Amendment.

Theology. In the late eighteenth century, robust protection of the freedom to practice religion presented little threat to the uniform application of American laws. Federal and state laws were limited in scope and therefore unlikely to interfere with religious exercise. Moreover, prevailing theological views generated few conflicts between law and religion, partly because religious doctrine was communally defined—typically at the denominational level—which served as a check on the adoption of theological positions that might conflict with the law. Moreover, even as revivals in the early nineteenth century eroded the authority of religious elites, revivalists also emphasized the sole authority of scripture, which effectively limited the scope of potential religious objections to those based on Biblical text. And when conflicts did arise, such as with Quaker objections to militia service, statutes or common practice usually accommodated these minority views.

Skepticism. Unlike modern jurists, judges in the early nineteenth century were highly doubtful of individual declarations of faith and often applied their own views on matters of religious doctrine.  This skepticism—broadly defined as an unwillingness to acknowledge the sincerity of religious claims—pervades early free exercise cases and helps explain why most exemption claims were rejected. Contemporary evidence rules, for instance, generally prevented testimony from self-interested individuals, including the parties to a suit. Since individuals claiming religious scruples plainly had an interest in receiving exemptions, it should be of little surprise that judges did not accept self-made religious declarations at face value. One related area of law in which judicial skepticism was on full display was the procedure that courts used to determine whether an individual lacked the religious beliefs necessary to swear an oath. Rather than trusting a prospective witness to declare his own religious sentiments before testifying, American courts only considered his out-of-court statements through the in-court testimony of other witnesses. (Out-of-court statements could be trusted, courts thought, because the individual presumably had nothing to gain at the time of making the declaration.) Given this deep distrust of individual declarations of belief, and given the prevailing understanding that theological matters were determined communally, courts unsurprisingly looked to denominational teachings rather than individual declarations when considering whether to grant religious exemptions.

Judicial Deference. In addition to skepticism of courtroom declarations of belief, early nineteenth-century exemption claims were heavily constrained by contemporary notions of judicial deference, which required that laws be enforced unless doing so would be a clear constitutional violation.  This made judicial enforcement of free exercise exemptions highly unlikely, notwithstanding the possibility of such exemptions in theory. First, if a court was uncertain whether an individual’s religious views genuinely conflicted with the law, the court faced the risk of granting an exemption without either legislative or constitutional approval. That is, if a claimant’s sincerity was not clearly established, then a fortiori the constitutional basis for an exemption was not clearly established. Courts also worried that deciding how to evaluate sincerity was itself a discretionary judgment best left to legislatures.

The record of nineteenth-century exemption cases supports the theory that courts acknowledged the principle of constitutionally mandated accommodations but were nonetheless heavily influenced by prevailing theological views, skepticism of courtroom declarations of belief, and contemporary notions of judicial deference. These factors clarify tensions and ambiguities in early opinions that have gone unexplained in the existing literature. For instance, when considering whether to hold Catholic priests in contempt for not revealing the contents of a parishioner’s confession, courts granted exemptions, finding that these claims were well-supported by established doctrine, and that the priests’ sincerity was beyond repute.  When claimaints’ conscientious scruples were questionable, however, courts rejected their claims, though occasionally noting that religious accommodations could be required in different circumstances.

These three interconnected factors—theology, skepticism, and deference—also help explain a mid-nineteenth century shift in attitudes towards religious exemptions. The challenges of Mormon polygamy and Catholic immigration, liberalization in evidence rules, and reduced emphasis on judicial deference converged in the 1850s to make religious exemptions far more destabilizing. Consequently, courts generally reacted by denying that constitutionally protected religious liberty included an exemption right. This culminated in the Supreme Court’s famous rejection of the constitutional basis for religious exemptions in Reynolds v. United States (1878).

The mid-nineteenth century transition in judicial treatment of religious exemption claims raises difficult questions about how an originalist should interpret the Free Exercise Clause. For originalists, 1791 is not the only point of reference for the meaning of the First Amendment. Originalists must also consider the meaning of the right in 1868 when it was incorporated against the state governments. Assuming that incorporated rights operated equally with respect to the federal and state governments, this Note suggests that originalism cannot offer a coherent interpretation of the Free Exercise Clause.


Copyright © 2011 Stanford Law Review.

About the Author: Wesley J. Campbell graduated from Stanford Law School in 2011.

Citation: Wesley J. Campbell, A New Approach to Nineteenth-Century Religious Exemption Cases, LEGAL WORKSHOP, Oct. 23, 2011, https://legalworkshop.org/2011/10/23/nineteenth-century-religious-exemption-cases.

Based on: Wesley J. Campbell, A New Approach to Nineteenth-Century Religious Exemption Cases, 63 STAN. L. REV. 973 (2011).

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