D
The practice of the colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, the First Freedoms, at 219 ("The vast majority of Americans assumed that theirs was a Christian, i.e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality"). Moreover, governments than were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.
Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in pre-Constitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the colonies and early States thought that, if an individual's religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law's coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religious Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirements for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. Id., at 64. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62.
Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600's. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid-1700's. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:
Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid "violence to their consciences," explicitly recognizing that civil laws must sometimes give way to freedom of conscience. Origins of Free Exercise 1468.
States and colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Id., at 1469. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. Ibid. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina And Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their faith. Id., at 1471.
To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties - judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment - many of whom served in state legislatures - assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.
E
The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison - one of the principal architects of the Bill of Rights - as revealed by the controversy surrounding Virginia's General Assessment Bill of 1784, are particularly illuminating. Virginia's debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called "general assessment." Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia - either by general assessment or voluntarily - was widely debated. Curry, The First Freedoms, at 136.
By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 23 (1978); Levy, supra, at 200. They introduced "A Bill Establishing a Provision for the Teachers of the Christian Religion," which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Levy, supra, at 200-201; Curry, supra, at 140-141; Malbin, supra, at 23. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now famous "Memorial and Remonstrance Against Religious Assessments." Levy, supra, at 201. This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. Malbin, supra, at 24. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779. Malbin, supra, at 24.
The "Memorial and Remonstrance" begins with recognition that "[t]he Religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate." 2 Writings of James Madison 184 (G. Hunt Ed. 1901). By its very nature, Madison wrote, the right to free exercise is "unalienable," both because a person's opinion "cannot follow the dictates of other[s]," and because it entails " a duty toward the Creator." Ibid. Madison continued"
To Madison, then, duties to God were superior to duties to civil authorities - the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.
Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only "when principles break out into overt acts against peace and good order." In 1808, he indicated that he considered "'the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.'" 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed. 1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that "'[e]very religious society has a right to determine for itself the time of these exercised, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.'" Ibid.
George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:
"[I]n my opinion, the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit." Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphry ed. 1982).
Oliver Ellsworth, a framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary "to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment." Oliver Ellsworth, landholder, No. 7 (Dec. 17,. 1787), reprinted in 4 Founders Constitution, 640. Isaac Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts ratifying convention of 1788, declared that every person has as unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby." Backus, A Declaration of Rights, of the Inhabitants of the State Massachusetts Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed. 1968).
These are but a few examples of various perspectives regarding the proper relationship between Church and government that existed during the time the First Amendment was drafted and ratified. Obviously, these thinkers approached the issue of religious freedom somewhat differently, see Adams and Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) ("Our whole constitutional historysupports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances") As Madison put it in the concluding argument of his "Memorial and Remonstrance":
"The equal right of every citizen to the free exercise of his religion according to the dictates of his own conscience is held by the same tenure with all our other rightIt is equally the gift of nature; it cannot be less dear to us.;it is enumerated with equal solemnity, or rather studied emphasis." 2 writings of James Madison, at 191.
Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich at 91. Finally, all shared the conviction that "true religion and good morals are the only solid foundation of public liberty and happiness." Curry, The Fist Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich at 72 ("The Foundersacknowledged that the Republic rested largely on moral principles derived from religion"). To give meaning to these ideas-particularly in a society characterized by religious pluralism and pervasive regulation-there will be times when the constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.
III
The Religious Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders conceived of a Republic receptive to voluntary religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, The Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissable governmental interference, even where the believer's conduct is in tension with a law of general application. Certainly, it is no way anomalous to accord heightened protection to a right identified in the rest of the First Amendment. For example, it has long been the Court's position that freedom of speech-a right enumerated only a few words after the right to free exercise-has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.
Although it may provide a bright line, the Rule the Court declared in Smith does not faithfully serve the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its ruling In Smith-and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.
I respectfully dissent from the Court's disposition in this case.
JUSTICE SOUTER, dissenting.
To decide whether the Fourteenth Amendment gives Congress sufficient power to enact the Religious Freedom Restoration Act, the Court measures the legislation against the free-exercise standard of Employment Div., Dept. of Human Resources of Ore v. Smith, 494 U.S. 872 (1990). For the reasons stated in my opinion in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 564-577 (1993) (opinion concurring in part and concurring in judgement, I have serious doubts about the precedental value of the Smith rule and its entitlement to adherence. These doubts are intensified today by the historical arguments going to the original understanding of the Free-Exercise Clause presented in JUSTICE O'CONNOR's opinion, ante, at 5-21, which raises very substantial issues about the soundness of the Smith rule. See also ante, at 1-9 JUSTICE SCALIA, concurring) (addressing historical arguments). But without briefing and argument on the merits of that rule (which this Court has never had in any case, including Smith itself, see Lukumi, supra, at 571-572), I am not now prepared to join JUSTICE O'CONNOR in rejecting it or the majority in assuming it to be correct. In order to provide for adversarial consideration, this case should be set down for reargument permitting plenary reexamination of the issue. Since the Court declines to follow that course, our free-exercise law remains marked by an intolerable tension," Luhumi, 508 U.S., at 574, and the constitutionality of the Act of Congress to enforce the free-exercise right cannot now be soundly decided. I would therefore dismiss the writ of certiorari as improvidently granted, and I, accordingly dissent from the Court's disposition of this case..
JUSTICE BREYER, dissenting.
I agree with Justice O'Connor that the Court should direct the parties to brief the question whether Employment Div., Dept of Human Resources of Ore. v Smith, 494 U.S. 872 (1990) was correctly decided, and set this case for reargument. I do not, however, find it necessary to consider the question whether, assuming Smith is correct, §5 of the Fourteenth Amendment would authorize Congress to enact the legislation before us. Thus, while I agree with some of the views expressed in the first paragraph of part 1 of JUSTICE O'CONNOR'S dissent, with the exception of the first paragraph of part I.
MARCI A. HAMILTON, Yardly, Pa. (LOWELL F. DENTON, DENTON McMAMIE & NAVARRO, AND GORDON L. HOLLON, on the briefs) for petitioner; JEFFREY S. SUTTON, Ohio Solicitor (BETTY D. MONTGOMERY, Atty. Gen., and ROBERT MAIER and TODD MARTI, Asst. attys. Gen., on the briefs) for state amici curiae; DOUGLAS LAYCOCK, Austin, Texas (THOMAS DROUGHT, PATRICIA J. SCHOFIELD, and DROUGHT & PIPKIN L.L.P., on the briefs) for FLORES, respondent; WALTER DELLINGER, Acting Solicitor General (FRRANK W. HUNGER, Asst. Atty. Gen., SETH P. WAXMAN, Dpty. Sol. Gen., PATRICIA A. MILLETT, Asst. to Sol. Gen., and MICHAEL J. SINGER and MATTHEW CVOLLETTE, Dept. of Justice Attys., on the briefs for the federal respondent.
end.