By Diego Lopez
Edited by Sahith Mocharla, Jia Lin, and Paras Patel
For more than three decades, Employment Division, Department of Human Resources of Oregon v. Smith (1990) has been the controlling opinion for the Supreme Court on matters of Free Exercise. The Free Exercise Clause is found in the First Amendment of the U.S. Constitution, which states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”[1] Though the writing is increasingly on the wall for the overturn of the Smith precedent by the Court, there is still debate on what theory of religious liberty should replace it.
Rather than returning to a pre-Smith standard for religious liberty, the Court should adopt James Madison’s principle of noncognizance as expressed in his “Memorial and Remonstrance.” The principle of noncognizance requires the government to be “religion-blind,” which means it can never act on the basis of religion except in rare circumstances. The Madisonian principle has the benefit of being practically feasible, effectively balancing the competing interests of the state and religious believers, being rooted in the Nation’s history and practices, and having a solid philosophical basis in American natural law tradition.
When the Supreme Court ruled on Employment Division, Department of Human Resources of Oregon v. Smith, it was seen by many as a significant change that put long-standing judicial precedent into serious question. Before the Smith ruling, the Supreme Court had generally offered more protection for religious exercise than was given in Smith. For example, two landmark cases, Sherbert v. Veneer (1963) and Wisconsin v. Yoder (1972), held that the Free Exercise Clause of the U.S. Constitution entitled religious believers to exemptions from generally applicable laws that burden religious freedom–unless the government’s enforcement of such laws was proven to have a compelling interest. Proving compelling interest is a requirement of highest level of judicial scrutiny, the highest level of judicial scrutiny, and the most challenging to adhere to.
When the Court ruled on Smith, it lowered the requirements by which the Government could restrict religious liberty. According to Smith, the Government can infringe on a person’s free exercise of religion as long as the law is generally applicable and not motivated by religious animus.[2] Religious animus describes the action of discriminating against or regulating some or all religious beliefs or practices merely because they are undertaken for religious reasons.
Regarding the definition of general applicability, Justice Roberts claims that “A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”[3] In the case of Smith, the Court ruled that the Government denying unemployment benefits to two members of the Native American Church for using the illegal drug, peyote, for religious ritual was not a violation of their Free Exercise rights.[4] If the law fails to be generally applicable or neutral, then it is subject to strict scrutiny.
The Smith ruling has received heavy criticism. Academics have criticized Smith as a shoddy precedent that insufficiently protects religious liberty.[5] In 1993, overwhelming majorities in Congress voted to restore the pre-Smith compelling interest standard by passing the Religious Freedom Restoration Act (RFRA). In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). Both RFRA and RLUIPA provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws.[6] And even the Court itself has, after Smith, ruled on a line of cases that call Smith into question, if not entirely ignore it as the controlling opinion for Free Exercise cases. In Fulton v. City of Philadelphia (2021), the Court ruled that the City of Philadelphia had violated the Free Exercise rights of Catholic Social Services by refusing to contract with them for the provision of foster care services because Catholic Social Services had refused to certify same-sex couples for foster parents. In his opinion, Justice Gorsuch, joined by Justices Thomas and Alito, wrote in concurrence that “Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice.”[6]Though Fulton did not directly overrule Smith, it has helped to enforce serious doubts on its precedential value, which has existed for some time now.
It would not be unreasonable to say that the Smith precedent is on its way out. The more urgent question becomes what will replace it. Opinions are divided; for example, in Fulton, Justice Alito says he would overrule Smith, replacing it with a rule that, much like pre-Smith analysis, would mandate that any law that burdens religious exercise would be subject to strict scrutiny.[7]Professor Marci Hamilton, a constitutional law scholar at the University of Pennsylvania, worries about restoring the pre-Smith stringency, pointing out that some religious practices can result in serious, unnecessary harm to others.[8]Religious liberty, therefore, should be curtailed when its exercise results in harm to others, a standard which carries strong historical precedent going back to the original state constitutions of the early American colonies.[9]
Historical precedent has played an increasingly important role in the Court’s approach to constitutional law and its interpretation. For example, the Court in the landmark Second Amendment case New York State Rifle & Pistol Association v. Bruen (2022) ruled that the Government could only justify the regulation of firearms if such regulations were proved to be consistent with the “Nation’s historical tradition of firearm regulation.”[10] Other recent cases have also demonstrated the Court’s commitment to a deeply historical approach to constitutional interpretation. In Dobbs v. Women’s Health Organization (2022), the Court tied the Fourteenth Amendment’s liberty guarantee to practices that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”[11]Proponents of the history-and-tradition approach to constitutional law have argued that it provides judges with, in the words of Justice Scalia, “objective, value-neutral methods” that judges can use to decide cases without appealing to judges’ personal commitments and preferences.[12]
Regardless of the value of such an approach to constitutional interpretation, it will play a crucial role in theCourt’s current interpretation of the Free Exercise Clause. In imagining a better and workable theory of constitutional religious liberty, it is important that we recognize the role of historical precedents that follow theCourt’s use of history in constitutional interpretation.
When engaging in a historical interpretation of the Constitution, the Court has often referred to the writings and political examples of the Founding Fathers. For instance, sources such as the Federalist Papers, which contains works by Alexander Hamilton, James Madison, and John Jay, have played a key role in the Court’s understanding of the meaning and purpose of many provisions in the Constitution. Madison, in particular, stands out for his immense intellectual contributions to the creation of the Constitution. Not only did he write many of the Federalist Papers supporting the Constitution’s adoption by the states, but he played an outsized role in the intellectual debates of the Constitutional Convention; his thorough note taking provided invaluable insight for modern-day constitutional interpretation.
A brilliant political thinker and theorizer, Madison contributed to and cared deeply about the issue of religious liberty in America. Eventually, he put forward a political principle outlining the just relationship between Government and the free exercise of religion. Madison’s principle of religious liberty, perhaps best articulated by Vincent Philip Muñoz, can be understood as the principle of “noncognizance.” The principle of noncognizance requires the Government to “be blind to the religious affiliation of citizens”; they can never “act on the basis of religion.”[13] Essentially, they must behave as if unaware of, or non-cognizant of, any citizen's religious affiliation or beliefs. Madison believed that under the noncongizance principle, Government would be more likely to respect the free exercise of religion. He believed that a person’s religious convictions are exclusively a matter between the individual, their conscience, and their independent reason. Therefore, all people’s religious belief and practice should exist outside the concern or legal control of the government and civil societyThis principle does not mean that courts themselves cannot recognize religion, such as in cases where religion itself is the basis for a suit against the government. Rather, it requires courts to interpret the constitutionality of the government’s action according to whether or not the government’s action was affected by any recognition of religion.
Madison laid out his most philosophical defense of the noncognizance principle in his “Memorial and Remonstrance,” drafted in 1785 during an intense political debate over Patrick Henry's proposed bill, “Establishing a Provision for Teachers of the Christian Religion.” Madison’s arguments in the “Memorial” are meant both to advance his philosophical principle of religious liberty and as a political attack on Henry's proposed bill. In the Memorial, Madison traces the origins of his principle of noncognizance to natural law. Madison’s own understanding of natural law is derived from the writings of the English political philosopher John Locke. The writings of Locke were quite influential to Madison and many of the Founding Fathers. In turn, many of Locke’s theories served as critical inspiration for the ideals of the American Revolution and the formation of the United States.[15] In his “Memorial,” Madison focused on Locke’s writing about the origin of civil society and natural rights in Locke’s Second Treatise of Government.
In the Second Treatise, Locke states that before the formation of civil society, humanity originally existed in the “state of nature.” Without a government to enforce laws or mediate disputes, the state of nature was characterized by war, violence, fear of losing one’s property and life, uncertainty, and rule by force and might. Wanting to secure their property and lives better, people united under a mutual social contract to form civil societies. In civil society, a mutually recognized authority–the state–was established to solve disputes among individuals better using the rule of law expressed by the citizen majority rather than arbitrary violence.
When individuals enter civil society, they take with them the natural rights they had in the state of nature. These natural rights, Locke claimed, are those rights which are inherent to every human being. They include a person’s right to “life, liberty, and property and the right to execute the laws of nature.”[16] The role of government, Locke claims, is to “preserve and enlarge freedom.”[17] That is, to protect and perfect the natural rights people originally held in the state of nature.
Of the natural rights of man, Madison recognizes that “Men have a natural right to exercise religion according to conviction and conscience.”[18] This natural right, Madison says, is a fundamental and absolute truth. Because religious beliefs are matters of personal opinion formed by independent evaluation of evidence and arguments alone, religious opinions can neither be imposed on others nor accepted if one does not believe, on their own evaluation of the evidence, that they are true. Opinions, unlike other forms of property like money or food, cannot be ceded or lost unless one were to lose their mind; and unlike those forms of property which can be transformed from a natural right to possession to a civil right to property, the right to one's opinions cannot be alienated or transformed in this way. Therefore, religion, which is built up of opinions, is an inalienable natural right.
In his Letter Concerning Toleration, Locke distinguishes between the goal of civil society, which is to avoid war and poverty, and that of religious activity, which is the good of the soul. From this distinction, Madison concluded that religious duties are precedent “in order of time and degree of obligation, to the claims of Civil Society.”[19] A person’s religious duties exist prior to their citizenship. Most importantly, however, is that the goods of the soul are of higher worth than the goods of the body. It would, therefore, be wrong, that our civic obligations outweighed our religious ones. From this argument, Madison also concludes that religious freedom is an inalienable natural right.
Having firmly grounded religious freedom on the natural rights of humanity, Madison comes to his philosophical conclusion in the “Memorial” on religious freedom:
We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. (article 1)[20]
Being an inalienable natural right, religious practice and belief stands entirely outside of the social compact a citizen has with their government. It cannot, therefore, be either regulated by civil society, or even recognized in any meaningful sense by the state.
The extent of Madison’s position is evident in a historical example. In early 1790, the U.S. House of Representatives was preparing to conduct the national census in accordance with Article 1, Section 2, of the Constitution, which mandates that Congress shall carry out a census every ten years in “such manner as they shall by Law direct.” [21] While Madison proposed the census take account of useful information such as the percentage of the population engaged in industries such as agriculture and commerce, he argued that it could not, according to the First Amendment, ask if a citizen was a religious minister. This would, according to Madison, have constituted wrongful government interference in religion and classification of citizens by religion, both in violation of constitutional principles.[22]
A Madisonian approach to the Free Exercise Clause would require the Court to remain “religion blind” when adjudicating cases involving religious exercise. According to the principle of noncognizance, the Government could neither make laws that “single out a religion or religious exercise from unfavorable treatment” nor any “laws or exceptions singling out a religion or religion generally from favorable treatment under the law.”[23]In effect, the Madisonian principle would have a similar effect to the Smith ruling, which barred the government from allowing religious exceptions to generally applicable laws that were not motivated by religious animus, essentially, so long as the law doesn’t target a specific religion, exceptions will not be allowed.
Critics of the Madisonian principle might raise the concern that by not allowing for religious exemptions of any kind, the principle of noncognizance would be allowing for an unjust burden of religious exercise. Such concerns were raised by the Court in the case of Sherbert v. Verner (1963). In Sherbert, the Seventh-Day Adventist appellant was discharged by her employer “because she would not work on Saturday, the Sabbath Day of her faith.” She was then unable to obtain unemployment insurance because she would not work on Saturdays. The Court ruled that she should be granted religious exemptions from the general requirements for unemployment insurance. The Court argued that in Sherbert’s case, she was forced to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning none of the precepts of her religion in order to accept work, on the other.” The imposition of such a choice put the same kind of burden on Sherbet’s religious exercise “as would a fine imposed against appellant for Sunday worship.”
It is conceivable that, under the Madisonian principle of noncognizance, the Government would be similarly permitted, at least through more indirect means like requirements for unemployment insurance, to burden religious exercise significantly. An interpretation of the Free Exercise Clause that would have the effect of indiscriminately undermining religious exercise without allowing the courts the freedom to make reasonable and well-tailored exceptions to both preserve and enlarge religious practice in our country seems antithetical to the spirit and purpose, both historic and contemporary, of the religious protections enshrined in our American Constitution.
Furthermore, as was the Court’s seeming concern in Sherbert, the facial or purely textual absence of discrimination in a law must be contextualized within the practical effects of that law. For freedom to exist in a meaningful sense often requires the courts to look beyond a law’s textual provisions towards the law’s practical consequences as understood by individuals who live under that law’s wider framework. “Law is not merely formalism,” as Justice Kennedy wrote in the majority opinion of Lee v. Weisman. In that case, the Court applied the Establishment Clause of the First Amendment in ruling that a prayer given by a rabbi at a school-sponsored graduation ceremony constituted indirect Government coercion toward creating “a state-sponsored and state-directed religious exercise in a public school.”[24] Students were expected to stand silently and respectfully as the rabbi gave his prayer, and though attendees could always just choose not to attend the graduation ceremony, the Court recognized this argument as too formalistic since attendees felt immense social pressure to attend because of strong cultural and social importance in American society of graduation ceremonies.[25]
Should the Court adopt the Madisonian principle of noncognizance, or would doing so have a worse effect on the state of religious freedom than would the adoption of a more “religion friendly” application of the Free Exercise Clause? As Jeffrey Sikkenga argues, the Madisonian principle of noncognizance not only allows but necessitates that the government make some religious exceptions to neutral, generally applicable laws.[26] Sikkenga’s view directly opposes that of Muñoz, who concluded that “Madisonianism... would prohibit all religiously based exemptions from such laws, whether by the judiciary or by ordinary legislation.”[27]
As evidence of his view that Madisonianism permits such religious exceptions, Sikkenga cites Madison’s public support for the inclusion of religious-based exemptions for mandated federal militia service. Madison’s legislative proposal for religious exemptions was meant to support a petition by the Quakers to Congress; the Quakers argued that the Government should give them an exception from mandated militia service on the grounds that mandated service would “materially affect us, and our fellow members in general, in the free exercise of conscience.” In proposing religious-based exemptions for Quakers and others like them, Madison’s view was that “it was important for Congress to establish the precedent that the right to free exercise necessarily entails an exemption for religious objectors who had well-known views and had made a direct request to Congress for an exemption.”[28]
Madison’s legislative proposal would have required those seeking exemptions based on religious scruples to “make a declaration of the same before a civil magistrate” and pay an unspecified “penalty.”
The government’s cognizance of religion is occasionally essential to meaningful religious liberty because by forcing religious groups like the Quakers to engage in activities diametrically opposed to their conscience and beliefs, “the federal government would be trying to cause them to act against their consciences,” which would be an illegitimate assumption of government influence on religious exercise. In these scenarios, “the Madisonian understanding of religious liberty requires religious exemptions.” Furthermore, in “Federalist # 10,” Madison wrote that the Government could refuse to give religious exemptions for “actions that are factious—i.e., actions that harm ‘the rights of other citizens’ or ‘the permanent and aggregate interests of the community’”[29] or any actions which “trespass on private rights or the public peace.”[30]
Having added the possibility of religious-based exemptions to the principle of noncognizance, how does the Madisonian principle differ from both the Smith standard and the more religiously accommodating standard set by the Sherbert/Yoder cases? Without admitting any of the religious exemptions that Sikkenga does, the Madisonian principle would admit no exemptions from neutral and generally applicable laws, much like the Smith standard does. However, if we are to add to this principle Madison’s religion-based exemptions to neutral and generally applicable laws, the ones supported by Sikkenga, the Madisonian principle looks less like the Smith standard and more like the Sherbert/Yoder principle of Free Exercise. Yet the Madisonian principle is different in that the threshold for achieving religious-based exemptions is significantly higher for those seeking exemptions. In addition to filing suit against the government, religious objectors would have to make a direct appeal to Congress for exemptions, pay some kind of penalty, and convince the courts of the sincerity of their religious convictions as it relates to the sought-after exemption.
It seems, then, that the Madisonian principle strikes what seems to be a happy medium between the Smith and the Sherbert/Yoder standards for Free Exercise, avoiding the ideological excesses of each. On the one hand, the Madisonian principle’s staunch religion-blindness would prevent the United States from, in the words of Justice Scalia, “courting anarchy” by allowing “every citizen to become a law unto himself” through the use of religious exemptions to neutral and generally applicable laws.[30] On the other hand, the rare yet narrowly tailored exemptions embedded in the Madisonian principle would prevent the government from indirectly trampling on the free exercise rights of citizens and, furthermore, would ensure that any exemptions made are not damaging to the rights of others or the fundamental and most important interests of the public as whole. Regardless of whether or not the Court chooses to adopt the Madisonian principle anytime soon, there should be little doubt that a full understanding of the thought of one of America’s greatest founding fathers regarding religious freedom is an excellent place to start.
[1] Interpretation: The Free Exercise Clause | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/the-constitution/amendments/amendment-i/interpretations/265 (last visited Nov 9, 2023).
[2] Employment Division v. Smith, 494 U.S. 872 (1990), Justia Law, https://supreme.justia.com/cases/federal/us/494/872/ (last visited Nov 9, 2023).
[3]Fulton v. City of Philadelphia, (2020), https://www.oyez.org/cases/2020/19-123.
[4]Employment Division v. Smith, 494 U.S. 872 (1990), Justia Law, https://supreme.justia.com/cases/federal/us/494/872/.
[5]Michael McConnell, Free Exercise Revisionism and the Smith Decision, 57 University of Chicago Law Review 1109 (1990), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12578&context=journal_articles.
[6]Fulton v. Philadelphia, 593 U.S. ___ (2021), Justia Law, https://supreme.justia.com/cases/federal/us/593/19-123/.
[7] Fulton v. City of Philadelphia, (2020), https://www.oyez.org/cases/2020/19-123.
[8]A Debate about Religious Liberty in America - Podcast | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/news-debate/podcasts/a-debate-about-religious-liberty-in-america.
[9]A Debate about Religious Liberty in America - Podcast | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/news-debate/podcasts/a-debate-about-religious-liberty-in-america.
[10]The Bruen Decision and Concealed-Carry Licenses, LII / Legal Information Institute, https://www.law.cornell.edu/constitution-conan/amendment-2/the-bruen-decision-and-concealed-carry-licenses.
[11]Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901 (2023), https://houstonlawreview.org/article/77671-how-history-and-tradition-perpetuates-inequality-_dobbs_-on-abortion-s-nineteenth-century-criminalization.
[12]Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901 (2023), https://houstonlawreview.org/article/77671-how-history-and-tradition-perpetuates-inequality-_dobbs_-on-abortion-s-nineteenth-century-criminalization.
[13]Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901 (2023), https://houstonlawreview.org/article/77671-how-history-and-tradition-perpetuates-inequality-_dobbs_-on-abortion-s-nineteenth-century-criminalization.
[14]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[15]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[16]John Locke, The Free Speech Center, https://firstamendment.mtsu.edu/article/john-locke/.
[17]Locke: “where there is no law, there is no freedom” / in propria persona, https://inpropriapersona.com/articles/locke-where-there-is-no-law-there-is-no-freedom/.
[18]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[19]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[20]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[21] US Census Bureau, Census in the Constitution, Census.gov, https://www.census.gov/programs-surveys/decennial-census/about/census-constitution.html (last visited Nov 15, 2023).
[22]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[23]Vincent Phillip Muñoz, James Madison’s Principle of Religious Liberty, 97 The American Political Science Review 17 (2003), https://www.jstor.org/stable/3118218.
[24]Lee v. Weisman, (1991), https://www.oyez.org/cases/1991/90-1014.
[25]Lee v. Weisman, (1991), https://www.oyez.org/cases/1991/90-1014.
[26]Jeffrey Sikkenga, Government Has No "Religious Agency": James Madison's Fundamental Principle of Religious Liberty, American Journal of Political Science (2012), https://www-jstor-org.ezproxy.lib.utexas.edu/stable/pdf/23316018.pdf?refreqid=fastly-default%3A985a7eb5d19763161fda299285d331da&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1.
[27]Jeffrey Sikkenga, Government Has No "Religious Agency": James Madison's Fundamental Principle of Religious Liberty, American Journal of Political Science (2012), https://www-jstor-org.ezproxy.lib.utexas.edu/stable/pdf/23316018.pdf?refreqid=fastly-default%3A985a7eb5d19763161fda299285d331da&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1.
[28]Jeffrey Sikkenga, Government Has No "Religious Agency": James Madison's Fundamental Principle of Religious Liberty, American Journal of Political Science (2012), https://www-jstor-org.ezproxy.lib.utexas.edu/stable/pdf/23316018.pdf?refreqid=fastly-default%3A985a7eb5d19763161fda299285d331da&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1.
[29]Jeffrey Sikkenga, Government Has No "Religious Agency": James Madison's Fundamental Principle of Religious Liberty, American Journal of Political Science (2012), https://www-jstor-org.ezproxy.lib.utexas.edu/stable/pdf/23316018.pdf?refreqid=fastly-default%3A985a7eb5d19763161fda299285d331da&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=&initiator=&acceptTC=1.
[30]Employment Division v. Smith, 494 U.S. 872 (1990), Justia Law, https://supreme.justia.com/cases/federal/us/494/872/.