The Redundant Free Exercise? The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation Mark Tushnet, The Redundant Free Exercise?, 33 Loy. U. Chi. L. J. 71 (2002). Published Version http://lawecommons.luc.edu/luclj/vol33/iss1/4/ Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:12956300 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA Loyola University Chicago Law Journal Volume 33 Article 4 Issue 1 Summer 2002 2001 The Redundant Free Exercise? Mark Tushnet Georgetown University Law Center Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the First Amendment Commons Recommended Citation Mark Tushnet, The Redundant Free Exercise?, 33 Loy. U. Chi. L. J. 71 (2002). Available at: http://lawecommons.luc.edu/luclj/vol33/iss1/4 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. The Redundant Free Exercise Clause? Mark Tushnet* I. INTRODUCTION Suppose the Free Exercise Clause were simply ripped out of the Constitution. What would change in contemporary constitutional law? Justice Kennedy has written, "[t]he Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment ....2 The parallels may be so close that the lines actually coincide. The reasons for the near-identity of the protection afforded by the Free Exercise Clause and that afforded by other constitutional provisions are founded in two doctrinal developments. 3 First, although the Free Exercise Clause could be, and * Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. I would like to thank Kevin Quinn, S.J., for his assistance in locating material on Roman Catholic moral teaching, Andrew Koppleman, Eugene Volokh, and participants at a Faculty Research Workshop at Georgetown University Law Center for helpful comments. I regret that personal considerations made it impossible for me to attend, and therefore to profit from the discussions at, the Loyola University Chicago School of Law Conference on Law and Religion for which this Article was prepared. 1. I put the question this way so that I can concede the importance of the Free Exercise Clause in the history of free expression law. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995). "[I]n Anglo-American history ....government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince." Id. at 760. I am interested not in what the Free Exercise Clause has contributed to the development of civil liberty, but what the contemporary Free Exercise Clause adds to our civil liberties. 2. Lee v. Weisman, 505 U.S. 577, 591 (1992). 3. A note on the nature of my enterprise seems appropriate. In what follows, I offer what I believe to be the most natural readings of the relevant cases. I acknowledge that there are other plausible readings, some of which would provide distinctive protection to religious liberty through the Free Exercise Clause. See, e.g., infra note 82 and accompanying text (describing a more aggressive reading of the protection afforded by the Free Exercise Clause when state laws are not "generally applicable"); see also Michael W. McConnell, The Problem of Singling Out Religion, 50 DEPAUL L. REV. 1, 3 (2000) (noting that exceptions articulated in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), "if generously interpreted, could prove to be a substantial exception" to the case's central holding). My sense is that those who offer these alternative case readings do so because they disagree with the cases' natural reading and believe that the Free Exercise Clause ought to give religious liberty more protection than the Supreme Court appears to believe it should. Loyola University Chicago Law Journal [Vol. 33 has been, interpreted differently in the past, today the Clause protects only against statutes that target religious practice for regulation. Under the notorious peyote case, Employment Division, Department of Human Resources v. Smith,4 the Clause does not require states to accommodate their neutral statutes of general applicability to religious practices.5 The present scope of the Free Exercise Clause, that is, is quite small.6 Second, other constitutional doctrines protect a wide range of actions in which religious believers engage. Much religious activity is speech, pure and simple, and therefore protected by the Free Speech Clause. The free speech doctrine includes a non-discrimination requirement, which the Supreme Court has invoked with respect to religious speech.7 Many regulations singling out religious speech for adverse treatment fall under the non-discrimination requirement. Further, much religious activity, while not conducted in words, may fairly be described as symbolic speech, triggering free speech protection. In addition, some aspects of religious practice not covered by free speech principles might be protected by a constitutional right of intimate association. Finally, a newly emerging doctrine defining a right of expressive association could provide substantial protection for the internal activities of religious organizations, where those activities are in some sense constitutive of the religious community itself.8 Thus, the protection afforded the exercise of religion by clauses other than the Free Exercise 9 Clause is relatively large. 4. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990). 5. See infra note 29 and accompanying text (discussing the neutrality and generality requirements of enforceable laws). 6. Of course my argument would fail if the Clause's scope expanded, for example by a judicial repudiation of the peyote case. 7. Rosenberger v. Rectors & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (holding that a university regulation prohibiting the use of funds for student religious organizations was a form of viewpoint discrimination, violating the First Amendment). 8. See infra Part III (arguing that the Free Speech Clause in combination with the Free Exercise Clause would protect religious practice left unprotected after the peyote case). 9. Steven Gey has recently argued that governments may invoke the Establishment Clause to justify restrictions on religious expression that would not be allowed were the government invoking its general police powers to restrict non-religious expression. Steven G. Gey, When Is Religious Speech Not "Free Speech"?, 2000 U. ILL. L. REV. 379, 400 (2000). I do not address Gey's argument in this Article because my concern is with what might be called the coverage of religious expression-whether it would have special constitutional weight absent the Free Exercise Clause-and not with the question of the circumstances in which limitations on such expression might be justified. In my terms, the title of Professor Gey's article is a bit misleading because the article does not address the2 question of "When is religious speech not 'free speech'?," but rather the question, "When is religious speech permissibly subject to regulation in circumstances where secular speech would not be subject to regulation?." 2001] The Redundant Free Exercise Clause? Together these observations suggest my conclusion: Contemporary constitutional doctrine may render the Free Exercise Clause redundant. 10 II. RELIGIOUS EXPRESSION AS SPEECH According to the Supreme Court, "private religious speech.., is as fully protected under the Free Speech Clause as secular private expression."'1 We must, of course, have in hand an analysis of free speech law before we can analyze the extent to which religious activities are "fully protected under the Free Speech Clause." Today there are two available structures for free speech analysis. 12 These two structures sometimes yield different results, and make sense of sets of Supreme Court decisions that differ slightly. As I will argue, they do 10. According to some approaches to constitutional interpretation, that conclusion is a reason to reject contemporary constitutional doctrine. Such approaches insist that every constitutional provision have some independent meaning. See, e.g., United States v. Lopez, 514 U.S. 549, 588 (1995) (Thomas, J., concurring). In Lopez, Justice Thomas argues against the view that Congress has the power to regulate activities that affect interstate commerce because if it did, many of Congress' other enumerated powers under Art. I, § 8, [would be] wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl.4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl.6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl.7, or to grant patents and copyrights, cl.8, or to "punish Piracies and Felonies committed on the high Seas," cl.10. Id. Frederick Mark Gedicks defends a position similar to the one developed here. Frederick Mark Gedicks, Towards a Defensible Free Exercise Doctrine, GEO. WASH. L. REV. (forthcoming 2001). Professor Gedicks argues that free speech and related doctrines should be developed in ways that acknowledge the presence of a religious interest. This, Professor Gedicks argues, would avoid making the Free Exercise Clause redundant. I am not sure that it would. Professor Gedicks argues, for example, that religious expression should be treated as a form of high-value speech, but I doubt that doing so requires that we treat the fact that speech is religious as something that changes the application of standards for determining when speech is high-value.