Dissent (Summer 2011), posted with permission
Is religion “special”? Taking this as a philosophical question, we might conclude that it is not, that religion is a specific instance within a more general category of belief or commitment. But a philosophical question is not the same as a constitutional question. After all, the U.S. Constitution might explicitly affirm or implicitly reflect propositions that philosophical reflection would refute. If so, unfettered reason must give way to the law. Jeremy Bentham famously declared, “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts.” He might well be right. But that is not what the Framers thought, and it is their thought that governs us, unless and until we the people decide to discard or emend it.
The First Amendment unmistakably singles out religion for special treatment. Congress may not establish a religion, either by giving it a preferred institutional position or by using its distinctive doctrines as the basis for legislation. But far-fetched as it may sound, there is nothing in the Constitution to stop Congress from establishing a secular doctrine. For example, it can create and fund an economic board whose membership is restricted to Keynesians (or supply-siders), and it can base legislation on its preferred economic theory, even though many experts and ordinary citizens reject it.
There are many reasons why the first U.S. Congress embraced this distinction. Its members knew all too well about religious strife; they had no experience of civil or international conflict sparked by philosophical differences. They knew, as well, that the repression of religious differences had been characterized by exceptional cruelty and went to the core of individual identity. The man who drafted the First Amendment was the author of the famous “Memorial and Remonstrance,” which had placed each individual’s understanding of duties owed to the Creator above, or outside, the proper scope of civil law. Religious free exercise, said James Madison, was “in its nature an inalienable right.”
It followed that proposals to limit religious free exercise would have to discharge a heavy burden of proof. No one doubted, or doubts, the propriety of certain “time, place, and manner restrictions”: free exercise doesn’t entail the right to conduct a loud revival meeting in a residential neighborhood at 2 a.m. In such circumstances, religious noise is on par with secular noise.
But how far does this legal parity extend? No one would seriously argue that the claims of religious free exercise extend to human sacrifice (as opposed to animal sacrifice, which does enjoy First Amendment protection). There are some bedrock civil concerns that the law may enforce, regardless of their effects on particular religions. But for most of our national history, legislators and jurists distinguished between such concerns and the more typical objects of legislation, which were thought not to be so fundamental as to out- weigh religious free exercise. Despite the obvious importance of communal self-defense, many colonies exempted Quakers from serving in battles against the French and indigenous people, an exemption that some colonies continued during the Revolutionary War regarding the British. Madison and the members of the first Congress were well aware of this. Many legal historians disagree with the contention of the authors that the drafters of the First Amendment did not contemplate, and would have opposed, the regime of religious accommodation codified in Sherbert v. Verner.
Many episodes since the ratification of the First Amendment testify to the persistence of this concern—not only our draft laws, but also the least successful constitutional innovation in our history. The Eighteenth Amendment was ratified on January 16, 1920. It was widely understood that without the concurrent legislation authorized in Section 2, the general prohibition on the manufacture, sale, and transportation of alcoholic beverages, would be too vague to enforce. On October 29, 1919, the National Prohibition Act (popularly known as the Volstead Act), which created the legal definition of “intoxicating liquor” and specified penalties for producing it, passed over Woodrow Wilson’s veto and stood as the law of the land until 1933.
The Volstead Act created a number of exemptions to the prohibition regime, of which two are especially noteworthy. First, the act allowed physicians to prescribe liquor to individuals for medicinal purposes and to employ it pursuant to treatment for alcoholism in certified treatment programs. Second, the act stated that nothing it contained should be construed as applying to “wine for sacramental purposes, or like religious rites,” and it permitted the sale or transfer of wine to rabbis, ministers, priests, or an officer duly authorized by any church or congregation.
Suppose the act had not exempted physicians. The omission would have been subject to criticism on policy grounds, but no one would have suggested that it ran afoul of constitutional norms. If the act had failed to exempt wine for sacramental purposes, however, there would have been both a political firestorm and a First Amendment challenge that almost certainly would have succeeded.
The use of sacramental wine lies at the heart of more than one religion. The Code of Canon Law of the Catholic Church prescribes, “The most holy Sacrifice of the Eucharist must be celebrated in bread, and in wine to which a small quantity of water is to be added.” For its part, Jewish law (halacha) commands the drinking of wine during the Passover Seder, specifying not only the famous four cups but also a minimum quantity to be consumed. (There is no maximum.) Comprehensive prohibition without exemptions would have prevented faithful Jews and Catholics from behaving as their religion requires. The Constitution’s presumption in favor of free exercise is designed to reduce to an avoidable minimum the circumstances in which such clashes are resolved in favor of the state.
I don’t want to be understood as espousing an untenable literalism. Although religion is special, it is not completely distinctive. Starting in the 1960s, the Supreme Court has recognized (rightly, in my view) exemptions based on conscientious claims that are not strictly speaking religious. In United States v. Seeger (1965) the Court broadened the conscientious objector section of the draft law to include “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God of those admittedly qualifying for the exemption.” Five years later, in Welsh v. United States, the statute’s reach was further broadened to include explicitly secular beliefs that “play the role of a religion and function as a religion in life.” There are matters of conscience that, like religious claims, shape individual identity and are experienced as binding obligations. So yes, the zone of accommodation extends beyond religion. But it is religion that provides the paradigm for that zone.
Note that by advocating “freedom of conscience” rather than “freedom of religion,” the authors are intensifying rather than evading Justice Antonin Scalia’s concern (expressed in Employment Division v. Smith) that broad accommodation creates a system “in which each conscience is a law unto itself.” This is pure hyperbole; during the three decades that Sherbert was the controlling legal authority, our courts proved perfectly capable of distinguishing legitimate and counterfeit conscientious claims. I don’t understand why so many liberals have been attracted to Scalia’s rather Hobbesian argument, which flouts both the letter and the spirit of Madison’s thought. Indeed, it is a matter of record that Madison’s first draft of what became the First Amendment read, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established; nor shall the full and equal rights of conscience be in any manner, or in any pretext, infringed.” What Scalia sees as Pandora’s Box, Madison regarded as the animating principle of our constitutional order. In this, as in so many other matters, we should remain faithful Madisonians.
(Read our reply to Galston here.)
William Galston is Ezra Zilkha Chair and Senior Fellow in Governance Studies at the Brookings Institution and College Park Professor at the University of Maryland. He is the author of eight books and numerous articles on political philosophy, public policy, and American politics. From 1993 to 1995, he served as deputy assistant for domestic policy to President Bill Clinton.