RELIGIOUS DIVERSITY AND THE CONSTITUTION

In their 1993 book One Nation Under God: Religion in Contemporary American Society, sociologists Barry A. Kosmin and Seymour P. Lachman analyze the most extensive survey of American religion ever conducted. More than 113,000 Americans answered questions about their religious identity; nearly 90 percent identified themselves as religious, the overwhelming number (86 percent) as Christian. The remaining 3.3 percent, representing about six million Americans, included not only Jews, Muslims, Buddhists, and Hindus, but also approximately 23,000 Taoists, 18,000 Rastafarians, and 6,000 Shintoists, not to mention 8,000 Wiccans. One ought not, of course, believe that "Christians" represent any kind of monolithic community: 46,000,000 Catholics (26.2 percent of the American population) and 34,000,000 Baptists (19.4 percent), the two largest denominations, are joined in the category "Christian" by no fewer than 40 other groups, none of them containing more than 8 percent of the population. These range from such well-known groups as the Methodists (8 percent) and Presbyterians (2.8 percent) to Mormons (1.4 percent), Jehovah's Witnesses (0.8 percent), Christian Scientists (about 0.15 percent), and even smaller groups such as the Quakers and component groups within the broad category of Christian evangelical or pentacostalist churches. And, of course, one could easily point to dramatic differences within the approximately 2 percent of Americans who are Jews, as one places members of the Reform and Conservative wings of Judaism next not only to the Modern Orthodox, but also to the various Hassidic sects.

There are at least two inferences that one can draw from this list: First, it assumes that we know exactly what we are talking about when we identify persons as "religious" rather than, presumably, "irreligious." But what is it, precisely, that joins together the Evangelical Protestant, Reformed Jew, Buddhist, Scientologist, and Wiccan? It surely is not, for example, belief in a supernatural divinity who commands various behaviors at threat of divine punishment. Perhaps all that unites them is that they ask their adherents to think deeply about the purpose of life.

Why do we care what, if anything, all of these groups have in common? One answer is simple: The first amendment guarantees in its text only the "free exercise of religion," as against, say, a general right to follow one's own moral precepts derived from Kantian moral theory or Benthamite utilitarianism. Several classic Supreme Court cases, particularly from the Vietnam era dealing with conscientious objection, attempted, with notable lack of success, to wrestle with the problem of defining religion. Many other first-rate minds have subsequently confronted the issue, though the various definitions presented have proved satisfying primarily to their authors and, alas, to few other scholars or judges.

Second, even if we are confident we can tell the difference between religious and nonreligious groups, we must confront the fact that the various groups that we call religious differ in far more than belief. There would be relatively little interest in "religious diversity and the Constitution" if all that differentiated religions were theology. The free speech provisions of the First Amendment, at least as interpreted by the modern Court, would be enough to protect the most outrageous theological (or antireligious) opinions. However, what triggers constitutional litigation under the free exercise clause is, not surprisingly, "exercise"; that is, action. The actions in question are, to be sure, predicated on beliefs—slaughtering animals or drinking wine or smoking peyote is a way of showing devotion to one's gods; one is commanded to refrain from participating in immoral wars or simply to refuse to engage in any kind of work on sabbatical days; and so on. But the nub of the matter is the activity believed to follow from such beliefs.

It is a settled tenet of constitutional analysis that belief and action are separable. Or so the Court has consistently claimed at least since the seminal case of reynolds v. united states (1879), where the Court had no compunctions about jailing a Mormon leader for the behavior of bigamous marriage, whatever its linkage to then-central Mormon doctrine. During the 1960s and 1970s, however, the Court seemed to modify the belief-action distinction when, for example, it required state unemployment compensation to be given to Seventh Day Adventists who refused, in violation of state law, to be available for jobs that required working on Saturday, sherbert v. verner (1963), or exempted the Old Order Amish in Wisconsin from having to comply with compulsory education laws that would have required Amish children to attend schools through age sixteen, wisconsin v. yoder (1972).

The belief-action distinction returned with a vengeance in employment division, department of human resources of oregon v. smith (1990), where the Court overturned the Oregon Supreme Court's holding that the free exercise clause required an exemption from Oregon's law prohibiting the use of peyote for Native Americans who ingested the drug as part of religious ceremonies. Implausibly distinguishing the cases mentioned above, the Court held that otherwise neutral laws could be applied to bar religious practices, whatever their importance to the group in question. Whatever the free exercise clause meant, it was not, apparently, the right to engage in any behavior that offended general legal precepts.

The clause did prohibit the state from passing laws that were (or seemed) intended to limit only idiosyncratic religious practices. In church of the lukumi babalu aye, inc. v. hialeah (1993) the Court struck down an ordinance passed by Hialeah, Florida, that was clearly an effort to prohibit members of the Santería religion, a syncretic blend of traditional African and Roman Catholic views and practices, from slaughtering animals. Hialeah made no attempt to protect animals from being shot by hunters or slaughtered by butchers. A truly general protection of animal rights would have been a different case.

In Smith, the Court seemed to suggest that legislatures could in fact allow religious exemptions; such accommodations, however, were not constitutionally required. Congress accepted this apparent invitation in 1993, passing, almost unanimously, the religious freedom restoration act (rfra), which would have put all governments, national, state, and local, to the test of demonstrating that a "compelling interest" justified "burden[ing]" one's religiously motivated behavior. (Congress claimed that this was the standard established in Sherbert and Yoder.) The Court, however, invalidated RFRA in 1997, holding that the law was beyond congressional power, at least when applied to state and local governments; it was deemed an unacceptable challenge to the Court's institutional monopoly over constitutional interpretation. A number of states are passing their own quasi-RFRAs, however, and the general issues posed by the statute will certainly continue to be with us (and RFRA probably remains active as a limitation on the national government).

Even if there were only relatively few religious denominations, it might still be difficult to know in advance what sorts of accommodations a law like RFRA (or expansive reading of the free exercise clause, as in Sherbert and Yoder) might require. Can zoning laws be applied to churches; do prisons have a duty to honor the dietary requirements of all (or any) religions; do Fundamentalist parents have a constitutional right to have their children excused, during the school day, from classes that are teaching "satanic" material; can bankruptcy law be applied to recapture religious tithes made within four months of the declaration of bankruptcy? All of these, and more, were the subject of live lawsuits following the passage of RFRA, and they serve to test any theory of the practical impact of religious diversity on constitutional interpretation.

Sanford Levinson
(2000)

(see also: Nonjudicial Interpretation of the Constitution; Religious Liberty.)

Bibliography

Choper, Jesse H. 1995 Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press.

Eisgruber, Christopher L. and Sager, Lawrence G. 1994 The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct. University of Chicago Law Review 61:1245–1315.

Mc Connell, Michael W. 1990 The Origins and Historical Understanding of Free Exercise of Religion. Harvard Law Review 103:1409–1517.

Note 1978 Toward a Constitutional Definition of Religion. Harvard Law Review 91:1056–1089.

Symposium 1996 Religion and the Constitution. Journal of Contemporary Legal Issues 7:271–1516.