Some thoughts on Boerne

[Perry Dane]

        1.       As those of us who support religion-based exemptions mourn
yesterday's decision, it might also help to contemplate how we got to this
sorry point.  Part of the reason, I think, was a fatal intellectual failure
in the opinions (Sherbert, Yoder, etc.) that articulated the doctrine of
religion-based exemptions in the first place.

        The heart of Scalia's argument in Smith was that religion-based
exemptions are a "constitutional anomaly" whose logic goes beyond our usual
notion of the structure of constitutional rights.  And he is right.
Religion-based exemptions _are_ "anomalous," in this important sense:
Usually, when an individual challenges a law or rule, even on an
"as-applied" basis, the (at least implicit) claim is that there is something
"defective" about the law or rule itself, that it goes beyond the limits set
on the authority of the legislator.  That is to say, the legislature has in
at least some sense transgressed.  (Note that I am talking tone and theory
here, not doctrine or pleading.)  But the logic of a claim to a
religion-based exemption is different.  It is that an individual deserves an
exemption to a perfectly sound and even admirable law or rule because of an
essentially "accidental" conflict between the law or rule and the
individual's religious commitments.  Scalia was right to say that this is
categorically different from the usual free speech or equal protection claim.

        The problem is that, beginning with Sherbert, the Court treated
religion-based exemptions as just an unproblematic extension of standard
free speech law.  (See in particular Sherbert's invocation of the free
speech "compelling interest" cases.)  Thus, at least in the Court's
decisions, the doctrine of religion-based exemptions never had a solid
foundation, and Scalia only exposed that gap.

        Scalia was wrong in a broader sense.  Religion-based exemptions,
however "anomalous" in our constitutional structure, _can_ be justified.
They can be justified as a species of "substantive neutrality" as some have
done.  Or they can be justified on something like the choice of law metaphor
I used in my Yale Law Journal note way back when.  And there are other
justifications.  But those justifications need to address head on the
"anomalous" character of the doctrine, and it was the failure to do this
that, I think, helped Scalia make his case.  (As an empirical matter, I'm
obviously speculating here.  The legal-realist skeptic might doubt that
ideas matter this much.  But is it so hard to imagine Kennedy, for example,
voting differently in Smith if the intellectual foundations for
religion-based exemptions had been built more carefully and rigorously in
earlier cases?)







        2.      Now that RFRA has had the wind knocked out of it, supporters
of vigorous religious liberty will need to  (a) try to get good state-level
statutes or judicial decisions, and (b) contemplate a constitutional
amendment (the politics of which would be hellish. ugh.)  But we also need
to see what additional meaning we can find in the free exercise clause itself.

        There are several categories of free exercise claims.  The Court has
rejected full-fledged religion-based exemptions from otherwise
unproblematic, neutral, laws.  But that still leaves other possibilities,
beyond the not-all-that-helpful Lukumi Babalu antidiscrimination principle.


        A couple of ideas:




                a.      There must be, even after Smith, a core of religious
autonomy that cannot constitutionally be invaded even by neutral laws of
general applicability.  For example, it's hard to imagine even Scalia
allowing a state, through its general civil rights statutes, to force the
Catholic Church to ordain women priests.  (Maybe I'm wrong about Scalia.
But humor me.)

        Interestingly, this notion of a "core of religious autonomy" is both
narrower and broader than a right to religion-based exemptions.  It is
narrower in that, rather than protecting religion against any "accidental"
conflict with secular law, it carves out a relatively well-defined zone of
protection.   (I'm not sure I could define that zone right now, but an
important element of it would be the range of polity, governance, and
personnel decisions that, even before Sherbert, were held to be beyond state
control.)  But it is also broader in that, unlike claims to religion-based
exemptions, claims to this "core of religious autonomy" need not be
grounded, it seems to me, on particular religious beliefs.  That is to say,
for example, not only should the catholic church not have to ordain women
priests, no church should have to ordain anyone it doesn't have to, whether
or not there is a specific religious objection to that ordination.

        These differences between religion-based exemptions and "core"
religious autonomy are important because they emphasize that "core"
religious autonomy is not "anomalous," and is in fact much more directly
analogous to standard free speech, privacy, etc., claims.  The challenge,
then, is to define that "core" relatively broadly.  For example, I think
that the historic preservations law at issue in Boerne could fairly be
argued to infringe, not just a Sherbert-type right, but the church's "core"
right to define its own religious aesthetics.  (More on that in another post.)




                b.      There's been some discussion of Scalia's infamous
"hybrid" rights in Smith.  If we run with that idea, however, I think that
one avenue that hasn't (as far I know) been explored in depth is the
possibility of "hybrid" claims at the intersection of the free exercise
clause and the establishment clauses.  That is to say, it seems to me that
there are government practices and laws that, while not violating the
establishment clause as such, nevertheless conflict with the religious
practices of out-groups for such historically specific reasons that the
clash is not "accidental" in the sense given above.  For example, the
"Western" norm of removing headgear as a sign of respect does not just
"happen to" conflict with the Jewish norm of wearing a yalmuke.  There is a
history here that, while it would not render a no-headgear rule an
establishment of religion as such, might be enough to consider it a
"semi-establishment" that should entitle dissenters to be protected in their
own practices.  The tough question, of course, is -- if you buy this idea of
a "semi-establishment" "hybridizing" with a free exercise right, how far can
it go?  (This is an honest question.  I'm not trying to make a
deconstructive point that, in some sense, everything is a "semi-establishment.")




      Sorry to burden y'all with this long post.  But I just wanted to get
some conversations going.








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Perry Dane                dane at camden.rutgers.edu
Professor of Law
School of Law
Rutgers University           Work: (609) 225-6004
Fifth and Penn Streets       Fax:  (609) 225-6516
Camden, N.J. 08102           Home: (610) 896-5702
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