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The Fading Free Exercise Clause William & Mary Bill of Rights Journal Volume 19 (2010-2011) Issue 3 Article 5 March 2011 The Fading Free Exercise Clause Rene Reyes Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons Repository Citation Rene Reyes, The Fading Free Exercise Clause, 19 Wm. & Mary Bill Rts. J. 725 (2011), https://scholarship.law.wm.edu/wmborj/vol19/iss3/5 Copyright c 2011 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj THE FADING FREE EXERCISE CLAUSE René Reyes* ABSTRACT This Article uses the Supreme Court’s recent opinion in Christian Legal Society v. Martinez as a point of departure for analyzing the current state of free exercise doctrine. I argue that one of the most notable features of the Christian Legal Society (CLS) case is its almost total lack of engagement with the Free Exercise Clause. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs: the group claimed that it was being excluded from campus life because it required its members to live according to shared religious principles and to subscribe to a Statement of Faith. Yet notwithstanding the clear religious basis of its claims, CLS devoted a mere two pages to the Free Exercise Clause in its brief. The Court’s Free Exercise Clause analysis was similarly elliptical: the majority dispensed with the free exercise argument in a single footnote. For his part, Justice Alito did not even mention the Free Exercise Clause once in his lengthy dissent. What accounts for this paucity of treatment? The following sections explore this question. I begin by tracing the fading status of the Free Exercise Clause from Employment Division v. Smith in 1990 to Christian Legal Society v. Martinez in 2010. I show that while the Clause has occasionally played a supporting role in Supreme Court decisions over the past two decades, it has not provided an independent basis for constitutional relief in a single case since 1993. I then suggest that the fact that the Free Exercise Clause has become so doctrinally otiose is itself an argument for reinvesting the Clause with independent meaning. But what kind of meaning should it have? Unlike commentators who have rea- soned that free exercise doctrine must either treat all citizens equally or give religious believers special privileges, I outline an approach to the Free Exercise Clause that seeks to accomplish both. Specifically, I propose that the Clause be reinvigorated to provide some exemptions from generally-applicable laws for conscientious objectors—but that these exemptions must be available to religious and secular claimants on an equal footing. To illustrate how my proposal might operate in practice, I then apply the reinvigorated Free Exercise Clause to Christian Legal Society v. Martinez itself. I conclude that even though a reinvigorated Free Exercise Clause might not have changed the result in the CLS case, there are nevertheless strong arguments in favor of giving greater weight to the Clause in future cases. * Visiting Assistant Professor, Villanova University School of Law (Fall 2010). J.D. Harvard Law School, A.B. Harvard College. 725 726 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 19:725 INTRODUCTION At the end of the 2009 term, the Supreme Court issued its opinion in Christian Legal Society v. Martinez.1 The case involved a challenge to a University of California Hastings College of Law policy that required student organizations to accept “all comers” in order to receive official recognition, use campus communication networks, and apply for financial assistance through the law school’s student-activity fee fund.2 The challenge was brought by the Hastings chapter of the Christian Legal Society (CLS), whose bylaws required members and officers to subscribe to a “Statement of Faith” and to live in accordance with certain beliefs and values.3 These bylaws operated to disqualify from membership any students who engaged in “unrepentant homosexual conduct” or who held “religious convictions different from those in the Statement of Faith.”4 Hastings concluded that CLS’s bylaws did not comply with the school’s nondiscrimination policy and refused to grant the group official status as a Registered Student Organization (“RSO”).5 CLS brought suit, claiming that Hastings’s refusal to grant it RSO status violated the organization’s rights to free speech, expres- sive association, and free exercise of religion.6 The Supreme Court rejected all of CLS’s claims.7 Applying limited public forum doctrine, the Court held by a vote of 5-4 that Hastings’s policy was both reasonable and viewpoint-neutral.8 In sum, while “[t]he First Amendment shields CLS against state prohibition of [its] expressive activity, however exclusionary that activity may be,” the organization “enjoys no constitutional right to state subvention of its selectivity.”9 Early assessments of the significance of the CLS decision have been decidedly mixed. Robert Vischer, for example, has opined that the decision is a significant one indeed—though not necessarily at the level of constitutional doctrine.10 Rather, Vischer finds the decision noteworthy at the level of political discourse about diversity, discrim- ination, and associational freedom. He emphasizes the need “to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty,” and appears dismayed by “the shared mindset that appears to have animated the law school’s actions and the 1 130 S. Ct. 2971 (2010). 2 Id. at 2979. 3 Id. at 2980. 4 Id. 5 Id. at 2980–81. 6 Id. at 2981. 7 Id. at 2981–82. 8 Id. at 2978. 9 Id. 10 Robert K. Vischer, Diversity and Discrimination in the Case of the Christian Legal Society, PUBLIC DISCOURSE: ETHICS, LAW, AND THE COMMON GOOD (July 9, 2010), http:// www.thepublicdiscourse.com/2010/07/1410. 2011] THE FADING FREE EXERCISE CLAUSE 727 Justices’ interpretation and evaluation of those actions as reasonable.”11 But while Vischer criticizes the Justices for failing to appreciate the nature and strength of CLS’s associational freedom claims, he nevertheless commends them for distinguishing between the legality and advisability of Hastings’s policy.12 Thus, however mis- guided the Court’s opinion may have been, it does not necessarily mark the end of the debate: for public actors may yet recognize that “even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.”13 By contrast, Steven Shiffrin finds the majority opinion rather unremarkable and “do[es] not see the law declared in the Christian Legal Society case as a serious blow to freedom of religion or freedom of speech.”14 Shiffrin’s conclusion is supported by the limits he notes in the opinion: it did not hold that Hastings could discriminate against religious groups or ban groups with selective membership outright; it merely held that Hastings did not have to formally recognize or subsidize those groups.15 Shiffrin does express doubt about the wisdom of an “all-comers” policy and voices concern that such a policy could potentially hide discriminatory motivations.16 But as long as groups like CLS retain some access to campus facilities and to alternative means of communication with other students—and for purposes of its opinion, the majority assumed that CLS did have such access—then Shiffrin does “not think this case is very significant.”17 Vikram David Amar takes a position somewhere between those of Vischer and Shiffrin: he agrees that CLS v. Martinez is a significant case, but not because of its impact on religious freedom. In his view, the case is significant for what it teaches about the importance of factual concessions and doctrinal frameworks.18 CLS made two key concessions in this case: 1) that Hastings had created a limited public forum, and 2) that Hastings’s policy requires student groups to accept all comers.19 Once these concessions had been made, it was relatively easy for the Court to conclude that limited public forum doctrine was the applicable standard and that Hastings’s policy was viewpoint neutral.20 Of course, Hastings’s policy also had to be reasonable to pass constitutional muster. This requirement leads to the third lesson Amar draws from the 11 Id. 12 Id. 13 Id. 14 Steven Shiffrin, The Insignificance of the Christian Legal Society Case, RELIGIOUSLEFT LAW (June 30, 2010, 5:15AM), http://www.religiousleftlaw.com/2010/06/the-insignificance-of -the-christian-legal-society-case.html. 15 Id. 16 Id. 17 Id. 18 Vikram David Amar, What the CLS v. Martinez Ruling Reveals About the Supreme Court’s Processes, FINDLAW (July 2, 2010), http://writ.news.findlaw.com/amar/20100702.html. 19 Id. 20 Id. 728 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 19:725 case—i.e., that the Court is reluctant to second-guess institutional judgments when evaluating the reasonableness of educational policies at colleges and universities.21 The reactions of Vischer, Shiffrin, and Amar are broadly representative of the nar- ratives that have emerged thus far about CLS v. Martinez.22 However, this Article offers a different take on the case. I argue that the case’s primary significance does not derive from what it says about factual stipulations, limited forum doctrine, or associational freedom under the Free Speech Clause. Instead, I argue that its primary significance derives from what it says—or rather fails to say—about the Free Exercise Clause. Indeed, the absence of engagement with the Free Exercise Clause in this case is striking. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs.
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