"Academic Freedom Is Not Immunity From Robust Debate in the Marketplace of Ideas"

Prof. Hamilton is something of a strange animal -- an at least somewhat conservative leaning (supporter, e.g., of Bush v. Gore) strong supporter of the separation of church and state, someone in fact strongly critical of special privileges sought out by religious groups. She uses a dubious FOIA request to recover old ground. To quote again in response to an earlier (note title) such summary.

I share a lot of Prof. Hamilton's concerns but do think Yoder was rightly decided. There is a difference between such a general applicable law and something that targets religion though free exercise rights should in various cases protect individual claimants in both cases.

The Barnette pledge case, e.g., was decided as a free speech case, but three justices rightly saw it also as a religious liberty case. The essay here also does not really face up to Sherbert. It is correct that a general applicable law particularly should not be put to the strong test of RFRA but the "undue burden" test cited in Yoder is appropriate.

The Sherbert line of cases repeatedly cited the test in Yoder and it was used without the USSC voicing any disagreement (except in special cases like taxation, prisons and the like) until Smith (itself a shock even to the winning side) with the rule. RFRA in hindsight was overcompensation. But, I think she goes too far.

Sherbert was the unemployment case, which Smith carved out as an area where individualized discretion is possible. Yoder was in effect the one other case where the Supreme Court struck down an application of a general applicable criminal law (Smith avoided it by calling it a "hybrid" case, amusingly -- given this was Scalia -- the unenumerated parental rights component), which applied this rule: "A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." A rule found too unduly burdensome in Smith, leading us to RFRA, both local and federal.

There might be something to Yoder being particularly notable -- it in effect is in the same spirit as education cases like Meyer and Pierce. The raising of children in a certain religious tradition is a core aspect of free exercise. "Exercise" -- as Hamilton's old boss Justice O'Connor noted in her separate Smith concurring opinion -- means more than belief. A recent book on the formation of our constitutional religious freedom tradition cited recently on this blog noted the same thing. The provision also means more than some sort of equal protection security or a guard against coercion. It is questionable if this should solely be left to (careful) political discretion, RFRA being as suggested above not quite finely tuned, at least if applied how some wish. The "ministerial exemption" and some degree of institutional freedom in this area underlines the fact. I'd note to that Smith itself was actually an unemployment case, even if the people in question were denied benefits for breaking a criminal law. They weren't prosecuted. That is also how the state court treated the case. Smith was in effect reaching for a change of the law, a bit of judicial activism.

Yoder was careful to note that "philosophical and personal, rather than religious," are not covered by the "religious" liberty at issue, citing Thoreau, though his beliefs had religious overtones. I won't go through them again, but also other cases spoke of freedom of "conscience" as well. This ruling noted:

Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [n6] the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

The note cites a 1940s case that quoted a definition resting on theistic grounds, but by the time of the second case (1970), that would be too restrictive. It was already starting to be back then. As the concurrence cited noted: "a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is [not] within the power of Congress." Justice Harlan's concurrence (as his opinions often were -- see, e.g., Poe v. Ullman) as a whole is interesting reading.

He too notes "mere adherence to ethical or moral beliefs" is not within the constitutional definition of "religion" but accepts the statutory meaning provided by the main opinion of "religious" in the conscientious objector statute might. In effect, beliefs on the level of religion, of equal intensity (a mere religious exemption here to Harlan would violate the Establishment Clause -- cf. the range of charitable/religious/etc. tax breaks). To quote an earlier opinion:

"And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation."

Some argue the discussion of "religion" here should not just be seen as statutory application but guide our First Amendment understanding as well. The Supreme Court and others, as compared to some lower courts, have generally avoided deciding the question. As noted, the Supreme Court has spoke of "freedom of conscience" or "of the mind" from time to time in ways that make it unclear how much this matters. As Harlan noted:

That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that, for most individuals, spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.

This "great intensity" or some inner core of belief is what is protected by religious freedom and beyond. One thing Prof. Hamilton rejects, however, is the application of RFRA's "least restrictive means" test, which as with the attempts in the Hobby Lobby case (cf. U.S. v. Lee) is not "restoring" old law, but expanding individual discretion. Justice O'Connor again cites the old rule:

[W]e have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

Past analysis shows a lack of "substantial" burden in the Hobby Lobby case, but even so, there are compelling state interests and they are "narrowly tailored" -- the "least restrictive means" rule is a lot harder. And, if nothing else, dubious when the government passes a general law that by chance burdens religious practice in some fashion as lots of things do. It especially is troubling when very important matters are involved such as child abuse, a particular concern of Hamilton's.

Anyway, as I said upfront, free "exercise" does warrant some protection even when general applicable laws are involved, but some sort of lower bar should be in place. Likewise, though the "hybrid" analysis seems results orientated, there is something to that. The Supreme Court has rejected some "core" religious concern test, but somehow some cases seem easier here -- be it rules regarding religious instruction or "exercising" what amounts to ritual experiences. Such is why I think N.Y. not allowing Universal Life Church ministers to marry people is clearly a free exercise problem. Realize just what is a "sacrament" can be hard to determine though a private v. public division (such as the public sphere of employment in the Hobby Lobby case) can help.

Hamilton might overcompensate, but she provides important balance all the same.