The Single Religion Clause: Non-Established, Free, and Independent Exercise
By
By
Gregory Velloze[1]*
The First Amendment requires that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but courts have erroneously broken this single cohesive unit into two separate clauses: the so-called Establishment and Free Exercise Clauses. [2] In doing so, courts have obscured the original functionality of the First Amendment, deconstructing the elements of the single Religion Clause as contradictory, as requiring inclusion, as prioritizing nondiscrimination, or as poor candidates for incorporation. But the single post-incorporation Religion Clause should be understood more simply—government can neither help nor harm religious institutions, where both non-establishment and free exercise stand for a single, unifying textual principle of religious independence, separation, and autonomy. Nondiscriminatory views, while justifications for the First Amendment, are instead the legal purview of the Fourteenth Amendment, where the single Religion Clause is otherwise better read as a narrower protection of non-established, free, and independent exercise.
There is an ongoing debate about the relationship of the Free Exercise and Establishment Clauses, and whether the two clauses are two separate provisions or instead form a single provision with two elements. The former view has been dominant since Reynolds v. United States, in which the Supreme Court cited to James Madison’s “Memorial and Remonstrance” and Thomas Jefferson’s letter to the Danbury Baptist Association in the Court’s interpretation of the First Amendment.[3] Famously, Justice Morrison Waite quoted former President Thomas Jefferson:
I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between church and State.[4]
But subsequent scholars have paid little attention to the fact that Jefferson had listed both the Establishment and Free Exercise Clauses in justifying a “wall of separation,”[5] even where it was possible that both provisions acted in congruence to ensure the separation and independence of religion from government. And in the many decades since then, recent court decisions have gone on to describe the two elements as separate clauses, leading the former halves of a cohesive unit to spiral in opposing and sometimes conflicting directions.[6]
But in the following Article, I will first demonstrate that the text and history of the original single Religion Clause presumes a parity between the so-called Establishment and Free Exercise Clauses, predicated on the understanding that free exercise is better understood as a narrower limit on prohibitions of free, independent exercise, rather than a more broadly enumerated individual right of conscience. As such, both clauses together require the structural independence and separation of church and state. And in line with this understanding, the Religion Clause functions as one—Congress can neither help nor harm autonomous religion.
In the next Section, I will discuss how scholars like Carl Esbeck and Kent Greenawalt have tried to distinguish the clauses in a cohesive manner,[7] while Rodney J. Blackman, Mary Ann Glendon, and Raul Yanes have tried to form them into a cohesive unit,[8] but how none have truly grasped the uniform first principles of independence and autonomy underlying the single Religion Clause. This is because the original meaning of the clause has been obscured because of its bifurcated, piecemeal incorporation, resulting in a departure from the original functionality of the Religion Clause’s elements, and scholars have since made the mistake of applying post-incorporation meanings of nondiscrimination or accommodation when fusing or differentiating the whole.[9] Glendon and Yanes specifically note how the Supreme Court’s “piecemeal approach to incorporation” is to blame, but wrongly see the separationist approach to establishment as at fault for a too‑limited free exercise, even where exemptions and accommodation are post-incorporation departures from an original less expansive reading.[10] Dissenting in Everson, Justice Rutledge saw the uniform nature of a clause that states the word “Religion” only once.[11]
In the Section after that, I will then describe the how this single Religion Clause was split in two during its selective incorporation, where the modern nondiscriminatory Establishment Clause wrongly adopted elements of the Fourteenth Amendment’s equal protection requirements and where the modern Free Exercise Clause wrongly adopted elements of the distinct Freedom of Speech and Press Clauses.[12] In our discussion of original meaning, it will be important to distinguish: (1) the Founding Era’s structural concerns as they relate to the text, (2) the publicized intent of the Fourteenth Amendment’s framers in favor of incorporating an individual right, and (3) the cross-pollination of nondiscrimination because of the piecemeal incorporation approach.
In this Section, I will also discuss how Justice Rehnquist’s dissent in Wallace v. Jaffree provided for the incorrect cross-pollination of nonpreferentialism and nondiscrimination.[13] While nonpreference was undeniably one of the justifications for the Religion Clauses, it was not a guiding textual principle in the federal Constitution, and by treating it as such, Justice Rehnquist undermined the uniformity of non-establishment and free exercise. This departure from an autonomy-focused original meaning led to the erroneous “play in the joints” doctrine, recently at issue before the Supreme Court in Carson v. Makin, in which the Court was called on to deal with a supposed conflict.[14] This supposed conflict has even led some scholars and Justice Thomas to suggest that the severed Establishment Clause resists incorporation.[15] But overall, the Religion Clause should be understood as: (1) a structural Founding-Era provision requiring separation that was (2) incorporated as a refined individual right to religious autonomy, which should (3) not be misconstrued as either a right against discrimination or a broader individual right of accommodation.
Finally, in the last Section, I will go on to revisit and revise the “play in the joints” doctrine, as well as to demonstrate that the original single Religion Clause is not in conflict. The two restrictions of neither helping nor hurting religion, as originally understood as structural limitations, function better in accordance with their first principles and should be restored. The single Religion Clause is best understood as maintaining an independence and separation of church and state.[16]
The text is the logical starting point for interpretation, and history allows us to narrow the range of plausible interpretations.[17] But as Akhil Amar notes:
Textual argument as typically practiced today is blinkered (“clause‑bound” in Ely’s terminology), focusing intently on the words of a given constitutional provision in splendid isolation. By contrast, [a more holistic form of textualism] always focuses on at least two clauses and highlights the link between them.[18]
Here, the First Amendment should be understood in its full textual context, as a part of a “single, coherent” Constitution we are expounding.[19]
Furthermore, history is important to understanding the even broader context of the Constitution because interpreting the Constitution faithfully requires “ascertaining and adhering to the original functions of the constitutional text—its ‘spirit.’”[20] Abiding by both the historical and textual context of the Constitution thus preserves the more cohesive and consistent function of the Constitution,[21] as is most relevant to the First Amendment. Allowing non-textual justifications to supersede guiding textual principles erodes the determinacy of the text,[22] resulting in the detrimental construction of vagueness and contradiction out of original ambiguities.[23]
Moreover, Founding-Era principles regarding the text are relevant to our context even where meaning might have changed upon incorporation. Scholars like Akhil Amar take the view that the Founding-Era Bill of Rights contained structural federalist provisions that were reconstructed and refined as individual rights under the Fourteenth Amendment.[24] And as I will later argue, this refinement should have expanded upon the original principles of independence and autonomy underlying the single Religion Clause rather than contravening these textual principles. And I describe a single Religion Clause, not to argue that non-establishment and free exercise always need to be cited together, but to emphasize that the provisions together stand for a singular textual principle of autonomy and should always be interpreted in light of their uniformity and shared meaning.
The textual approach I use here presumes an originalist methodology of interpretation, where the Constitution’s “writtenness ceases to perform its function of constraining political actors if meaning can be changed by these actors in the absence of an equally written modification or amendment.”[25] But for those opposed to originalism, principles of religious autonomy are more relevant than ever. Nonoriginalists should also understand the value of keeping religious and governmental concerns independent in an increasingly secular nation,[26] especially where the expanded goal of government has resulted in a greater potential for establishment,[27] and where modern religious freedom claims come into increasing conflict with burgeoning civil rights.[28] Most importantly, originalist arguments should prove useful to nonoriginalists, where still in support of their positions, at a time when the Court is more originalist than ever.
The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[29]
Notably, the section on religion is separated by a semi-colon, where “religion” is stated only once, and where “freedom thereof” folds back upon the same element. Rodney Blackman uses this separation to argue that “the two Religion Clauses ought to be read together as a single entity rather than as two separate clauses.”[30]
But there is more uniformity here than meets the eye.
The Religion Clause notably uses a similar structure among its elements, suggesting parity with its two gerund verbs. “Respecting” applies to an “establishment of religion” and “prohibiting” applies to the “free exercise” of religion.[31] And given that Madison disagreed with distinguishing “respecting” from “abridging” and that both Jefferson and Madison saw “respecting” as applying to both of the Religion Clause’s mandates, it should not matter that the text forbids “laws respecting an establishment” rather than “laws establishing,” where such a distinction is one of style rather than substance.[32]
While Blackman is correct to see the Clause as a cohesive unit, his analysis takes the wrong view of the word “free,” describing it as either an adjective or an adverb relative to “exercise thereof,” and viewing it as a broader individual right that can be promoted by government action.[33] He writes that, “[u]nder the first view presented above, ‘free’ is part of the nominative phrase, which could be rephrased as ‘the Right to Freedom of Religious Exercise.’ Under the second view, ‘free’ is an adverbial modifier that could be rephrased as ‘the Right to Religion Freely Exercised.’”[34]
However, these views are both wrong.
First, the word “free” should be juxtaposed against the later clauses of the First Amendment. In the Free Exercise Clause, “free” is a modifier, but with regards to Speech and Press, the text reads “freedom of,” and assembly and petition are each described as a “right.” While rights and freedoms are textually listed in a similar manner, denoting an individual or collective right that the Constitution protects, the qualifier “free” has a separate usage in the Constitution. Here, this distinction in language hints at a distinction in the underlying principles of the text.
The word “free” instead narrows and qualifies its description of a right rather than merely enumerating the right itself. “Free” as an adjective describes that rights pertaining to religious exercise only apply to “free exercise,” rather than denoting a “freedom of exercise.” Using the language of the time, alongside the “Constitution as its own dictionary of sorts,”[35] we can see that the qualifier “free” is more synonymous with independent or unencumbered exercise (non-established exercise, if you will), and more consistent with a narrower autonomy-based limitation, than it is with freedom of exercise or a right of exercise or conscience as in more broadly enumerated individual rights. To that point, an established exercise of religion would fall outside of the clause. And once we recognize that government support of free exercise is inconsistent with the text, the constructed tension between the two provisions dissipates. The word “free” is a qualifier rather than an enumerator—it narrows the right rather than pronouncing it broadly.
Continuing our comparison of language, the Second Amendment describes “free State[s],” denoting the independence of a state militia relative to the federal government, also hinting at some underlying federalism from before incorporation.[36] Next, Article I, Section 2 does describe “free Persons,” but does so to denote non-enslaved persons, not to describe a freedom of personhood. And another similar phraseology is used in the Articles of Confederation to describe “free ingress,” describing unencumbered ingress rather than a freedom of ingress. In these examples, the word “free” is used to qualify a term rather than to specifically enumerate the term as a right. Much like “free States,” the qualified “free exercise” is consistent with the pre‑incorporation federalist reading of the clause, where the autonomous and independent exercise of Religion would have occurred separately in the several states.
The first two definitions in Johnson’s Dictionary Online describe “free” as “1. At liberty; not a vassal; not enslaved; not a prisoner not dependant,” and “2. Uncompelled; unrestrained.”[37] By contrast, the second definition of “freedom” describes “Privileges; franchises; immunities,”[38] and while the first definition does describe “independence,” that would not have been the applicable meaning for a “freedom of,” instead applying to the word “free” when used as a noun without a preposition. Moreover, throughout the entire Federalist Papers and the Declaration of Independence, “free” does not denote a “freedom of.”[39]
This is important because, per the Constitutional language, free exercise is structured differently than freedom of exercise, freedom of conscience, or freedom of speech. And if free exercise is a narrower right focused more on autonomy, its application should also be narrower. If free exercise only applies to independent exercise, then accommodations required by freedom of speech jurisprudence would run contrary to narrower free exercise language,[40] where the Free Exercise Clause and its twin Establishment Clause would instead share the same concerns with separation, independence, and autonomy. Simply put, free exercise originally denoted exercise that was independent of government and unencumbered by government, here described as independent exercise to emphasize the distinction—providing an additional textual basis for separation.
And more importantly, by viewing free exercise as requiring independence and un-encumbrance, we can better understand the parity between the two elements of the Religion Clause. A neither help nor harm principle underlies the split nature of the dual clauses, where government can neither help dependent and established religion nor hurt the free and independent exercise thereof—both requirements emphasize an independence of church (exercise) and state (establishment).
Additionally, this focus on independent exercises allows us to better understand the parity between non-establishment and free exercise. Because religion is textually only stated once, both non-establishment and free exercise must apply to the once-stated religion in the same manner, akin to a consistent series qualifier. Both provisions emphasize religion as something that must be independent, creating parity in application. If non-establishment requires an independence of religion rather than its exclusion, then free exercise should not require inclusion for religious individuals, but instead should require a protection for religion that is independent (in the sense that harming an independent exercise harms the independence of that exercise). Consistent with these textual principles, only one legal test is necessary to find a violation of the single Religion Clause: does government help or harm religion, diminishing its independence and autonomy?
Next, let us turn to history, with regards to the drafting of State and Federal Constitutions, the language of the time, and the opinions of Madison and Jefferson. An underlying principle of independence provides for a more consistent reading of a uniform Religion Clause, rather than a reading of separate provisions in constructed tension. At this point, it is important to remember the three phases of constitutional meaning that muddy our inquiry: (1) the more structural nature of enumerated rights at the time of the founding, (2) the more individualistic and libertarian reading of rights as privileges or immunities at the time of the Fourteenth Amendment, and (3) the present confusion of a doctrine lost in this muddiness.
It is because of this muddiness that our understanding of the text should precede our restatement of history. Our Founding-Era history is more relevant to the understanding of underlying textual principles than it is to historical expectations at the time of the Fourteenth Amendment. Incorporation under the Fourteenth Amendment could not change the text itself, nor the relationship between parts of the text themselves. But as I will later explain, incorporation occurred at a time when the Bill of Rights was understood as individualistic rather than structural.
But let us start with the founding: the only point at which this history directly relates to the text as adopted and written in the Constitution. Following the ratification of the Constitution, a core complaint of Anti‑Federalists was that the new Constitution lacked a bill of rights.[41] State legislatures suggested amendments, with New Hampshire specifically suggesting “no laws touching Religion,” a proposal which was later briefly adopted by the House.[42] By comparing this single-gerund proposal to the final text, we can see how concerns regarding the independence of church and state were seemingly broken up into two clauses that maintained a similar meaning.
But the scope of this original clause, as with all enumerations in the Bill of Rights, was inherently more structural and jurisdictional prior to incorporation. At that time, the original First Amendment was only applied against Congress, and not against the states.[43] Kurt Lash explains how federalism was an underlying principle of both non-establishment and free exercise, describing an underlying principle of “no power” at the federal level,[44] a structural rather than individual rights formulation. “[T]he primary concern of the Founders was the right of the majority to representative government, not the needs of minorities (and minority faiths).”[45] In line with this underlying structural focus, the First Amendment’s “Congress shall make no law” directly matches Article I, section 8’s “Congress shall have power,” and this parity would have been more apparent had the Amendments not been placed separately at the end of the Constitution.[46] With this structural nature in mind, a separation of church and state is comparable to a separation of powers, keeping authorities distinct.
However, a post-incorporation change could easily retain the structural roots of the original language—a separation of state and federal concerns could inform our reading of a separation of religious and governmental concerns. Free exercise that was independent from the federal government, through the federalist independence of states, could thereafter be refined as the independence of individuals from state government, as demonstrable with the other broader rights of the First Amendment.
At the time of the founding, eleven states had some forms of multiple establishments, where states would tax citizens to pay for the support of churches, distinct from the European understanding of the Church of England’s Establishment.[47] Unlike European Establishment, “[n]o single law created the established church. Rather, it was constituted by a web of legislation, common law, and longstanding practice.”[48] This distinction is important because, even pre-incorporation, the public understanding of the clause was not so narrow as to only prohibit the literal establishing of a national church, instead prohibiting a national web of legislation at a time when such a web was instead the concern of the states.
And where establishment was understood as occurring through a web of legislation, rather than a literal church, the interrelated nature of non‑establishment and free exercise is more apparent, even where neither was yet incorporated:
To the extent a state created a coercive establishment, decreeing that individuals profess a state creed or attend a state serve or pay money directly to a state church, such coercion would implicate bodily liberty and property of discrete individuals and would thus intrude upon paradigmatic privileges and immunities of citizens. (Put another way, all these examples also seem like textbook violations of religious “free exercise.”)[49]
In allowing state establishments, pre-incorporation infringements on free exercise were therefore also left to the states, suggesting that both elements of the Religion Clause were rooted in the same structural federalism. Similarly, where different states might have desired different forms of establishment, it was better to reserve to states control of religious exercise occurring free of the federal government.
Moreover, the pre-incorporation First Amendment did not require disestablishment, but instead prevented future establishment at the federal level.[50] Voluntary movements by states towards disestablishment later occurred independently, absent incorporation.[51] Comparatively, Madison’s worry that states were still free to tyrannize minority factions, and his separate proposal that “[n]o State shall violate the equal rights of conscience,” failed to pass the Senate, securing to states control over Religion.[52]
But looking to what did pass the Senate, three versions of the First Amendment were proposed and rejected as follows:
(1) Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.
(2) Congress shall make no law establishing religion, or prohibiting the free exercise thereof.
(3) Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion . . . .[53]
While these proposals all preserved the parity between the non-establishment and free exercise elements of the Religion clause, the framers seemed to notice a distinction between the “rights of conscience” and prohibitions on “free exercise.” In particular, Representative Fisher Ames had proposed that “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience,” distinguishing between what would have otherwise been read as redundant clauses.[54]
Professor Michael McConnell tries to rationalize this distinction, conceding: “[i]n many contexts, the phrases ‘rights of conscience’ and ‘free exercise of religion’ seem to have been used interchangeably. But here, Ames, a notoriously careful draftsman and meticulous lawyer, thought it necessary to use both terms.”[55] McConnell goes on to claim that this distinction is unimportant because no adopted language contrasted the terms and because the framers never spoke to distinguish the terms.[56]
However, it remains likely that the proposals purposely chose to switch between the terms, and that the difference in terminology might just have been less opaque to the framers. As a matter of structure and language, the phrases are not synonymous.
Textually, there are differences between “rights of conscience” and “free exercise,” where conscience encompasses a moral subject matter broader than just religion, and where exercise also denotes protection over conduct.[57] Fisher Ames’s proposal provides proof that this distinction may have existed at the time of the founding, in addition to variations among State Constitutions as discussed below. And while McConnell claims that “free exercise” was the broader protection, relying on State Constitutions in his argument, the inverse may very well prove true.[58] Where the word “free” narrowed and qualified “exercise,” rather than therein enumerating a “right” or “freedom,” the rights of conscience would have been broader. Also of note, Ames’s proposal also describes plural “rights” of conscience, implying that they are a larger subset relative to a singular “exercise.”
Therefore, Ames’s proposal provides proof of the independent, separationist reading of free exercise. One can distinguish between the narrower autonomy-focused nature of non-established free exercise and the broader, individualistic rights of conscience, where the single Religion Clause could be understood as a narrower limit on legislation the helped or harmed Religion, requiring independence and separation rather than enumerating a broader individual right.
The words “free exercise” were likely not a fixed term of art. Antebellum Supreme Court cases used the words in varying contexts, describing a free exercise of commerce, volition, or judgment as independent and unencumbered,[59] or describing an independent and sovereign use of rights or powers,[60] which could then be described as religious or secular in nature.[61] Nonetheless, one aspect of the language was surprisingly consistent—a free exercise was not a freedom of exercise.
The Annals of Congress suggest a diverse usage for the words, excluding the direct quotations of the entire First Amendment in full,[62] and the Annals instead used the words “free exercise” to denote an exercise that was independent, unencumbered, or autonomous—not a freedom of exercise, nor a term of art synonymous with religious freedom of conscience.
Free exercise was often used to describe the independence and autonomy of distinct branches or houses of government, or between the state and federal government. And in a religious context, the words carried an older, underlying principle distinguishing the jurisdiction of church and state. From the “things that are not Caesar’s,” to churches arguing to retain control of ecclesiastical matters against the Roman Empire, this principle of religious autonomy extended into the first principles of free exercise.[63]
In the First Congress, the words “free exercise” were used when questioning the effect of federal judicial establishments on independent state courts.[64] In the Fifth Congress, the words were used when questioning whether the Senate’s authority over advice and consent precluded the House “from the free exercise of opinion on the most interesting concerns of the nation,”[65] or to describe a congressional bill as depriving the president of the “free exercise” of his authority.[66] In the Seventh Congress, the language was used when describing a message from the President as transmitting papers “to both Houses of Congress, trusting that, in the free exercise of the authority which the Constitution has given them on the subject of public expenditures, they will deem it for the public interest to appropriate the sums necessary . . . .”[67] Independence and separation of powers underlies all of these phrasings.
In the Fourteenth Congress, the words had federalist undertones when questioning the power to establish a bank: “Every application, then, of this power by the United States, which has a tendency to embarrass or impair the free exercise of the power reserved to the States, is unwarranted.”[68] Where “to restrain the States from establishing similar institutions, and impair the free exercise of the franchises of those already incorporated, it is warranted by no part of the Constitution.”[69] Other later usages rely on similar federal and state distinctions with regards to the lack of power of state constitutions to punish House members in the free exercise of their rights,[70] the preclusive effect of the Commerce Clause on the free exercise of trade,[71] the state-controlled free exercise of electoral franchise (where state control remained independent of federal control),[72] and on the free exercise of state and municipal surveys for roads and canals independent of general or federal government.[73]
The words “free exercise” were also used in several sessions of Congress when describing the exercise of judgment, opinion, or speech as independent, unencumbered, or unbiased.[74] Notably, this usage was distinct from describing a broader freedom of speech,[75] instead specifically emphasizing that opinions should be unbiased, unhindered, or independent. Unlike the broader freedom of speech, this usage focused on the narrower independence of speech rather than the broader unregulated content of speech.
In the Fifteenth Congress, discussions on expatriation emphasized the distinction between rights and exercise, where “the bill did not propose to give new rights or to take away those which exist, but was introduced with a view of carrying into effect a Constitutional principle, and to secure the free exercise of a right.”[76] Here, rights were distinct from their free exercise, which was an otherwise applicable term. Such phrasing further suggests that free exercise was a narrower subset of a larger unenumerated right of conscience. Later discussion on expatriation applied “free exercise” to “the will in the people” or “of the human will,” where the words were not synonymous with rights but with human independence.[77]
And the words were also often used in the context of national sovereignty, independence, and autonomy, there often applied to the free exercise of religion, but to instead emphasize independence from foreign national powers rather than to speak of religious freedom.[78] The Ninth Congress emphasized this point by using the same language when discussing, in a non-religious context, a non-importation of goods from Great Britain under “the free exercise of our independent rights,” with independent discussion “in the place intended for the free exercise of all powers granted by the Constitution.”[79] Rather than individual rights, these phrasings denote the independence from national foreign powers in their separate internal matters.
And when the First Amendment’s “free exercise” was invoked in discussion against the Alien and Sedition Acts (as part of a notion that harming one part of the First Amendment harmed the whole First Amendment), the whole clause was cited: “The amendment says, in speaking of religion, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’”[80] Representative John Nicholas distinguished the language of the Constitution regarding religion from the language involving freedom of the press, claiming that, where the word “respecting” applied to both non-establishment and free exercise, it could not be construed as broader than abridgements of freedom of press, given the nature of the later-stated rights.[81]
In the Eleventh Congress, then-President Madison returned a bill attempting to incorporate a protestant church in the District of Columbia as exceeding “the rightful authority to which Governments are limited, by the essential distinction between civil and religious functions” in violation of the Establishment provision of the First Amendment.[82] A Congressman stood corrected that the First Amendment did not merely prevent a national church but “precluded Congress from passing laws to incorporate religious societies for the purpose of enabling them to hold property.”[83] Most interestingly, this discussion emphasizes the uniform principle of independence, which we can view as underlying both non-establishment and free exercise even where one provision is invoked without the other.
Other citations emphasized free exercise in the context of a lack of federal power, there focusing more on the pre-incorporation structural nature of the whole First Amendment, where the Constitution was more concerned with state autonomy than individual rights.[84] But in the entire Annals of Congress, searching the entire text, free exercise was never described as a freedom of exercise. And by contrast, freedom of speech was never described as “free speech,” a phrase which never appears in the Annals because it was similarly distinct.
Perhaps, the most telling usage of the language comes from President Thomas Jefferson’s inaugural speech, where he states: “In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government.”[85] Free exercise denoted independence, with the same focus on autonomy as emphasized by the federalist principles of non-establishment, and a similar root in the separation of church and state. Even where separation was rooted in federalist principles, the language of “free exercise” would still carry this textual focus on independence when finally incorporated.
While state constitutions used the words “free exercise,” they often did so within different textual provisions, where a specific phrase in a different linguistic context denotes a separate meaning, and where a term of art (though as described above, “free exercise” was likely not a term of art) could have different meanings varying and depending on surrounding language.[86] Because of this, none of these meanings should suggest that “free exercise” denoted a “freedom of exercise” in and of itself, given distinct contexts prior to incorporation, though the particular circumstances of Virginia’s disestablishment relate to the narrower rights of religious autonomy as emphasized by the U.S. Constitution.
Also of note, state constitutions used longer phrases when enumerating rights, further suggesting that a single federal Religion Clause was not expected to be broken in two much shorter provisions. Instead, where non‑establishment was enumerated alongside free exercise, and absent any preferentialist language, the provisions would together stand for the autonomy principle.
The Virginia Declaration of the Rights of Man protected “free exercise,” but defined it in terms of religious duty[87] in holding:
That Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence: and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other.[88]
This language led in the direction of disestablishment, given that the provision was understood to weaken the web of legislation that made up original establishments by providing against encumbrances. Virginia’s “free exercise” provision prevented “the persecution of Baptist and other preachers,” even if “the Church continued to perform civil functions and taxes continued to be collected for church purposes. Disestablishment came in steps over the ensuing decade.”[89] And as a part of continued legal changes in Virginia that led in the direction of a general and larger freedom of conscience, the overall legal movement was intertwined with separation of church and state, in first requiring no harm before later requiring no help to religion.[90]
James Madison had specifically changed the language in the Virginia Declaration of Rights to use the term “free exercise” instead of mere “toleration.”[91] He did so specifically because the term “toleration” was more consistent with religious establishment, [92] where Edmund Randolph recalled hearing questions as to whether Madison’s specific change was “a prelude to an attack on the established church.”[93]
And as a result of this language, petitions urged that the Assembly “go on to complete what is so nobly begun’ by proceeding to ‘pull down all Church Establishments [and] abolish every Tax upon Conscience and private judgment.”[94] The Virginia legislature responded to these petitions in resolutions to repeal statutes criminalizing religious opinion, requiring attendance at worship services, dictating approved modes of worship, or taxing religious dissenters.[95] Specifically with taxes, which were essential to religious establishment, we can see the interrelated nature of free exercise and disestablishment—they were part of the same unified movement in Virginia.
A compromise bill passed in 1776 that removed church attendance requirements and created tax exemptions, but the bill did not repeal the commonwealth’s authority over dissenting churches to approve meetinghouses and license dissenting preachers.[96] The debates instead left open the idea of a general assessment bill, one that would define Christian churches for support from constituents, and which would then let constituents choose what church would receive their tax support.[97] But amidst further debates over a general assessment, the legislature instead chose to suspend the tax on religious dissenters.[98]
Following the Revolutionary War, Patrick Henry brought back the idea of general assessments.[99] Henry’s views, those of an antifederalist politician, likely provide no direct proof of the Framing generation’s understanding of “free exercise.”[100] Instead, Madison and Virginia’s response to Henry provide for the consensus of views that would later influence the U.S. Constitution.[101] Carl Esbeck describes how:
On November 11, 1784, the two champions, Henry and Madison, debated the proposed general assessment. Madison’s notes of that floor debate have been preserved. His first point was that religion was not within the “purview” of civil authority. His second point was to properly rephrase the issue as not whether religion was necessary to support a republic (he believed it was), but whether an establishment of religion is necessary for religion to flourish (and thereby be of support to government). Madison cited evidence of government’s historical tendency to corrupt any religion it supports. Point three argued that an establishment would make Virginia inhospitable to dissenters, causing reduced immigration into Virginia as well as people leaving due to religious oppression. Madison’s fourth point sought to demonstrate that the social decay the assessment was intended to cure could in fact be remedied by social activity and personal example. His fifth point addressed the practical problems of a multiple establishment, most significantly the difficulty of adjudicating religious questions in a court of law. Such questions were inevitable if only orthodox Christian churches were to be eligible to receive tax payments. It is clear from Madison’s outline that his aim was to protect and liberate religion, not to control or curtail it, as well as to avoid the inevitable civic division that follows when government involves itself in specifically religious doctrine and observance.[102]
Madison’s answer was consistent with the guiding principles of autonomy underlying the construction of “free exercise.” However, Virginia initially sided with Henry, adopting a resolution and appointing a committee to draft a bill—this bill might have passed had Henry not left the legislature to assume his post as Governor.[103]
The eventual “Bill Establishing a Provision for Teachers of the Christian Religion” should not provide proof of nonpreferentialism as a guiding principle of either non-establishment or free exercise.[104] As Esbeck notes:
[T]o call the defeat of the bill some evidence supporting nonpreferentialism will not do because it is so highly speculative. It cannot be said that Henry’s bill would have passed if only the assessment had been available to Jews, Muslims, Hindus, Buddhists, and so on. Rather, the central reason the bill was defeated was that the opposition believed it was best for religion and best for the body politic if support for religion was voluntary.[105]
Following a response by Madison in his Memorial and Remonstrance, as well as the much more popular and then-influential petitions of religious dissenters emphasizing the importance of their religious autonomy, Henry’s bill failed.[106] The immediate follow up was in Jefferson’s Bill for Establishing Religious Freedom, a statutory rather than Constitutional requirement which signified the disestablishment and independence of religious exercise in the Commonwealth of Virginia.[107]
Turning to another source of textual principles, the Georgia Charter of 1732 had a Religion provision that described both “free exercise” and “conscience,” in holding that “there shall be a liberty of conscience allowed in the worship of God, to all persons inhabiting, or which shall inhabit or be resident within our said province, and that all such persons, except papists, shall have a free exercise of religion.”[108] However, this distinction tells us little about the relationship between “free exercise” and “conscience,” even if it remains consistent with the idea that “free exercise” was a narrower subset of the broader rights of conscience.
Professor McConnell distinguishes between the “liberty of conscience,” as applied to “all persons,” and “free exercise,” as refused to “papists,” to argue that “free exercise” must have then been the broader term of art.[109] However, most of this distinction has to do with “conduct” under the state’s interest, rather than the larger distinction between narrower rights of exercise and broader individual rights, where the broader language of “liberty of conscience” was, within the Georgia Charter of 1732, textually limited to “the worship of God.”
This context suggests less about the meaning of an unqualified “liberty of Conscience”[110] that could extend to exercises beyond worship, as “conscience” was here specifically limited to “worship.” We can only speculate as to what liberty of conscience might mean absent that limitation. Furthermore, the article describes “a liberty of conscience,” which further emphasizes that it describes only “a” subset of the whole. So, in this narrow linguistic context, nothing truly implies that an individualistic liberty of conscience was not broader than narrowly applicable free exercise.
And regarding the state establishment of religion in Georgia, we can here see where free exercise weakened it, as “the Church of England enjoyed a privileged position, but the Trustees encouraged immigration by welcoming and tolerating a wide variety of dissenters from throughout Europe, including Scottish Presbyterians, French Huguenots, Swiss Calvinists, Lutherans, Moravians, and even Jews,” even while excluding Catholics.[111] As with the Virginia disestablishment, the free exercise of dissenters could weaken establishment.
The New York Constitution provided one of the first cases dealing with exemptions under the Free Exercise Clause, but this case likely does not imply the existence of exemptions under the First Amendment, as New York’s clause was supplemented with additional nondiscriminatory language in a very different context of language, where:
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.[112]
In the unreported People v. Phillips, the state’s highest court had allowed a Catholic priest an exemption from testifying under subpoena.[113] But here, the different linguistic context of the New York Constitution likely offered a broader formulation, where it promised not only “free exercise,” but a more affirmative description of “enjoyment of religious profession and worship,” and as making up a broader subset of “the liberty of conscience.”[114]
Furthermore, because the whole clause in entirety required no “discrimination or preference,” its required exemptions might not directly comport with the subsequent federal understanding in the Bill of Rights. Again, the different whole context of the New York and Federal clauses might be too different for such logic to apply. One could also argue that New York’s “free,” as a series qualifier, denoted “free employment” as well.
And describing nondiscriminatory free exercise as “the liberty of conscience, hereby granted,” may again suggest that free exercise is among the liberties of conscience, where the latter term then remains broader. Regardless, in line with these broad provisions, New York was unable to create an official establishment of Religion.[115] New York’s inability further hints at the relationship of free exercise and disestablishment.
No history of the Religion Clause is complete without the interpretations of Presidents Thomas Jefferson and James Madison, specifically regarding Jefferson’s famous letter to the Danbury Baptists and Madison’s “Memorial and Remonstrance,” as evidence of the original understanding of the Religion clause.
In Jefferson’s Letter to the Danbury Baptists, he wrote:
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[116]
First off, Jefferson cited to both establishment and free exercise in describing a separation of church and state. This suggests that Jefferson’s wall was created by the two elements of the Religion Clause acting in congruence, rather than by the Establishment Clause acting alone, consistent with Reynolds. Combined with the dual nature of the Religion Clause’s elements, this two-fold quotation makes the overall metaphor clearer—Jefferson’s wall of separation was that Congress could not help religion and that Congress could not hurt religion. Church and state were to be independent, with independence underlying both the free exercise and non-establishment elements.
Second, Jefferson’s language did not necessarily imply the same extent of separation required by the modern formulation of a wall between church and state, which has been formulated by some as requiring the exclusion of religious symbols or principles that neither help nor harm religion.[117] His metaphor better describes the underlying principle of autonomy, that the concerns of state and religion ought to be independent, rather than separation for the sake of separation.
And to that point, we cannot apply his metaphor in lieu of the text—his metaphor is instead useful for expounding the text. Jefferson’s words should be understood in their context, where he was writing to alleviate the worries of the Danbury Baptists, whose free exercise had been curbed by religious establishment in Connecticut.[118] Yet where the pre-incorporation First Amendment meant nothing to state establishments, instead denoting a lack of federal power, Jefferson’s metaphor could only later hint at how the non‑establishment and free exercise principle of independence would be incorporated.
Thomas Jefferson’s role with higher education in Virginia further explains his understanding of separation.[119] Jefferson, along with Madison, thought that the University of Virginia should not support Professorships of Divinity. Even though Jefferson opposed supporting Professors of Divinity, he thought that Professors of Ethics at William and Mary should be allowed to invoke or refer to God,[120] suggesting a distinction between helping religion and merely mentioning or making use of it.[121] Separating the ecclesiastic was different than excluding it altogether, so while helping a professor to preach religion might be impermissible, helping a professor rely on the principles of religion was not.
And under a single Religion Clause, this distinction between help and attenuated help should also apply to distinctions between harm and attenuated harm. This distinction should apply to protections of free and independent exercise, where both non-establishment and free exercise apply to the once‑stated religion in the same manner. Where the same textual principle of independence underlies both provisions, the same stringency of separation would apply to both. Where both provisions are governed by the same principle of religious autonomy, the extent of violations must be similar.
Like Jefferson, James Madison also saw free exercise and non‑establishment as interrelated. Kurt Lash claims that “to Jefferson and Madison, the term ‘respecting’ applied to both the Establishment and Free Exercise—it was an agnostic term representing the intention to reserve power over religion to the states.”[122] In other words, the federal government should not make laws respecting independent state establishments.
Further, in Madison’s “Memorial and Remonstrance against Religious Assessments,” the President brought up free exercise when opposing “A Bill establishing a provision for Teachers of the Christian Religion”:
The Religion then 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. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.[123]
This description is consistent with an independent exercise reading. While Madison took a more favorable view of religion, operating more under the assumption that separation of church and state, as he understood it, was in the best interests of religion[124] (comparable to Jefferson, who thought separation was more for the benefit of government), nothing here suggested that Madison expected the contradictory promotion of free and independent exercise. Here, we can see how Madison and Jefferson had the same understanding of the Religion Clause’s underlying guiding principle of religious autonomy, even if they had different justifications.
And in his Memorial, Madison went on to discuss both elements of the Religion Clause. Describing the Bill as an “establishment,” Madison wrote: “Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”[125] Again, it is important that Madison invoked the Free Exercise Clause when opposing an establishment, lending credence to the independent exercise view with the Establishment Clause working in congruence.
However, this seemingly equalitarian language was later used by Justice Rehnquist, dissenting in Wallace v. Jaffree, to take a nonpreferentialist view of the Establishment Clause—that government could aid religion but not do so discriminatorily.[126] But it is here where Rehnquist led constitutional doctrine in the wrong direction. Madison used nondiscrimination and nonpreferentialism as a justification for non-establishment and free exercise, not as a guiding principle. Preventing funds was guided by a principle of separation, where government should not interfere with religion, and where the interference was then otherwise beneficial because it lessened discrimination. Furthermore, the equal rights of citizens did not describe the equal protection of such religion, but the equal unencumbered rights of citizens before their creation—it was the language of natural rights, not the language of nondiscrimination.
Regarding our distinction between justifications and guiding principles, it is important to note that there were (and are) many justifications for an independence of church and state. There are justifications we have already described: preventing the harm of religion by government involvement, preventing the harm of government by religious involvement, preventing discrimination, preventing federal interference with state concerns pre-incorporation, damaging individual autonomy, and etcetera. The actual text of the Constitution reflects a certain balance of these concerns in its guiding textual principles. It emphasizes preventing harms to religion and government by dependence. Pre-incorporation, it prevented harms to state autonomy. But allowing justifications to supersede the guiding principles of the text undermines the determinacy and consistency of constitutional meaning and upsets the balance of the text’s focus on certain justifications as priorities over others.[127]
And since the time of Wallace v. Jaffree, because of Rehnquist’s interpretation, the nondiscrimination or nonpreference view wrongly severs the Establishment Clause from the Free Exercise Clause and makes little textual or historical sense once revisited in its context.[128] Where the Establishment and Free Exercise Clauses both maintain a guiding principle of independence, the two clauses are in sync. Where the Establishment Clause instead prioritizes nonpreference, and the Free Exercise Clause an individual right, the two are forced to clash.
Much of Rehnquist’s argument results in: (1) mischaracterizing federalist state aid prior to incorporation as nonpreferentialism, even where there was no aid to religion at the federal level, and (2) mischaracterizing the views of Madison. When Rehnquist cited Story’s Commentaries to describe benefits from states, he misunderstood that the First Amendment still prevented all federal aid, and just simply did not apply against states.[129] And when Rehnquist cited Cooley’s Constitutional Limitations, he likely confused what was a discussion of an exception to an exception with a discussion of a general rule or guiding principle.[130] Rehnquist quoted Cooley as saying:
No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse . . . .”[131]
But Cooley’s discussion described an exception to the general rule requiring a separation of church and state, maintaining that separation did not go so far as to prohibit mere recognition of religion. This discussion then qualified that exception by arguing that, where government recognized religion, it should not do so discriminatorily (likely trying to make a good faith construction). But even with regards to discrimination, Cooley maintained that the power of recognition did not violate constitutional principles merely because it could be abused. Additionally, Cooley’s discussion said little about what degree of nonpreference was required, and little about what degree of separation was required.
In citing days of public thanksgiving and legislative chaplains, Rehnquist mischaracterized the views of Madison, and again, described actions that were more recognition of religion than they were aid to religion.[132] In Madison’s “Detached Memoranda,” the former President instead wrote that “Religious proclamations by the Executive recommending thanksgivings and fasts are shoots from the same root with the legislative acts reviewed [the chaplaincies],” and Madison disregarded such recommendations as seeming “to imply and certainly nourish the erroneous [sic] idea of a national religion.”[133] Writing in hindsight after his Presidency, Madison questioned such practices, and while he did not see them as clearly violating establishments of religion, he did see them as questionable practices that bordered on establishment.
Overall, by reassessing the views of Jefferson and Madison, we can see that the single Religion Clause was guided by a cohesive neither help nor harm principle of independence, with stricter elements of separation as modern constructions and with nonpreference as more of a justification than a guiding principle. And in line with the text, drafting history, and state constitutions, these Religion provisions were both structural limitations on Congress rather than extended protections of enumerated individual rights. Per their cohesive original understanding, to justify dependent establishments as promoting free, independent exercise would be an incoherent reading of the single Religion Clause—a reading evinced by the split of incorporation.
The Fourteenth Amendment holds:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[134]
This language, notably again using semi-colons to separate distinct clauses, was originally understood to extend the protections of the Bill of Rights against the States, as well as to establish an equality of citizenship.[135]
The Privileges and Immunities Clause was inspired by constitutional abolitionists[136] who argued that the Privileges and Immunities Clause of Article IV, Section 2, providing protections of citizens “in the several States,”[137] prevented states from abridging the fundamental rights of citizenship. These constitutional abolitionists based their arguments on the dissemination of the Article IV, Section 2 by Justice Bushrod Washington, riding circuit in Corfield v. Coryell.[138] And speaking in Congress, Representative John Bingham and Senator Jacob Howard claimed that their new Amendment would end caste legislation and extend the protections of the Bill of Rights, with newspapers widely publicizing their views.[139] Senator Howard specifically said:
To these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution: such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people: the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail against cruel and unusual punishments.[140]
While Senator Howard did not specifically list any elements of the Religion Clause, he did specifically mention the first eight Amendments in total, which would have included non-establishment and free exercise within the First. The words “such as” denote examples, rather than a complete and exhaustive list.
Additionally, the free and independent exercise of religion was of great importance to the Thirty-Ninth Congress. In the South, there had been “laws prohibiting blacks from reading the Bible, becoming ministers, preaching, and leaving their plantations on ‘Sundays, fast days, and holy days.’”[141] And Representative Bingham, the principal draftsman, would later specifically state that “free exercise” of religion was among the privileges or immunities of the Fourteenth Amendment.[142]
Kurt Lash argues that, unlike at the founding, indirect regulation of religion was viewed as suspect during the adoption of the Fourteenth Amendment.[143] Lash writes that:
[N]umerous laws were passed that indirectly burdened the most basic religious freedoms. For example, laws prohibiting the assembly of blacks at night for any purpose had an unavoidable impact on black religious assemblies. Of course, the “generally applicable” law having the greatest impact on free exercise in the South was the prohibition against teaching slaves how to read and write. This prevented slaves from reading the Bible.[144]
However, rather than describing generally applicable laws requiring exemptions under a broader individual right, these laws would still violate the narrower principles of independence underlying the Free Exercise Clause. Free exercise would not require exemptions to meet the expectations of the Thirty-Ninth Congress. It is hard to see how such laws were “generally applicable” when they made specific mention of Black religious assemblies and slaves, and when they specifically damaged the ability of slaves to exercise their religion with independence. Instead of requiring exemptions, these laws would be void for abridging the autonomy of church and state.
But it is also here where we can see the source of confusion between other aspects of the Fourteenth Amendment and the principles of independence underlying the Religion Clause. Laws that specifically discriminate based on race would violate the equal protection of laws, abridging the privileges or immunities of citizens against discrimination by their home states.
Rehnquist’s subsequent confusion is hardly surprising. The 1791 Framers did not expect the Bill of Rights to be applied against states, and even where the 1868 Framers did, the delay in incorporation would create a disconnect in meaning. It is important to distinguish between how the Supreme Court actually incorporated the Bill of Rights from how it should have been incorporated.
Even though the Supreme Court has relied on the Due Process Clause for incorporation,[145] the originally more structural Bill of Rights was refined through incorporation, applied against the states as individualistic privileges or immunities.[146] Under Akhil Amar’s theory of refined incorporation, on which I here rely, the original Bill of Rights provided more structural and federalist protections that, following incorporation, were transformed and reconstructed as individual rights through subtle refinement.[147]
The First Amendment originally protected the majoritarian freedom of speech of states against a minority federal government, but as a privilege or immunity of the Fourteenth Amendment, it now protects minority speech from majority state governments.[148] And comparatively, where the original federalist Free Exercise Clause prevented federal prohibitions of exercise occurring independently in the states, it should have been incorporated as a right to the independent exercise of religion, and not as a broader freedom of exercise.
A brief overview of “free exercise” language in the Thirty-Ninth Congress[149] maintains the textual distinction between a narrower right of autonomy and a broader freedom of exercise, even amidst the refinement of a structural right into an individual right. The only conflation of free exercise with a broader “freedom of worship” was an erratic mischaracterization by a pro-slavery Senator that likely exceeded the general meaning of the language at the time of the Fourteenth Amendment.[150]
A “free exercise of the right to vote” described the ability of men to declare their independence, with a distinction between the exercise of a right, and the right itself.[151] The “free exercise” language also retained its autonomy focus when used to describe the federalist distinction of state and local powers,[152] the separation of powers in the hands of the President,[153] or the independence of voting processes from both federal encroachment and partisan biases.[154]
And where the language extended to individual rights, it did not escape its older textual roots in autonomy. The interrelated non-establishment and free exercise provisions still shared their underlying unifying principle of an autonomous lack of power (as described by Democrat and Fourteenth Amendment drafter Representative Andrew Rogers):
The first amendment to the Constitution provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Now, can Congress make a law respecting the establishment of religion? If not, can it authorize any Federal officer, by virtue of any order of a military commander, verbal or written, to proscribe any person in any part of the dominions of this county for his religious creed? Can any officer be authorized to refuse to allow any man to exercise the right given him by his Creator to worship Almighty God according to the dictates of his own conscience? That could not be done, because the Constitution says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”[155]
Discussing a singular guiding principle, Rogers’s reading blends both the Founding-Era federalist autonomy with the more libertarian individualistic autonomy of the Reconstruction. And amidst this libertarian shift in rhetoric, the Establishment provision was never described without its Free Exercise pair.[156] And as part of this libertarian shift, as contemplated by Representative Roswell Hart, the Religion Clause became a privilege and immunity of national citizenship:
What, then, is a republican form of government? The distinguished Senator from Massachusetts[, William Seward,] has brilliantly illustrated the true definition of the term in his great speech in the Senate, which displayed the profundity of his learning not less than the resplendency of his intellect. But he derives his definition from the testimony of the framers of the Constitution, from the principles asserted by the fathers preceding the Revolution, and from the utterances of legislative assemblies. While I do not question the exhaustive completeness of his authority and the accuracy of his definition, I think we may find it nearer by—where he that runs may read—in the Constitution itself. The Constitution clearly describes that to be a republican form of government for which it was expressly framed. A government which shall “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty;” a government where “citizens shall be entitled to all privileges and immunities of other citizens;” where “no law shall be made prohibiting the free exercise of religion;” where “the right of the people to keep and bear arms shall not be infringed;” where “the right of the people to be secure in their persons houses, papers, and effects, against unreasonable searches and seizures, shall not be violates,” and where “no person shall be deprived of life, liberty, or property without due process of law.”[157]
The language of free exercise was listed alongside other privileges or immunities of national citizenship and the underlying, uniform principle of autonomy could forge new roots.[158] Hart’s listing was hardly exhaustive, leaving out important rights that Senator Howard and Representative Bingham would elsewhere invoke. In another listing, where President Johnson provided his written objections following a veto of regulations for elective franchise in the District of Columbia, the President specifically described the refined individual protections of the emerging Bill of Rights with the full Religion Clause stated.[159] And in Representative Bingham’s verbatim listing in 1871, in the Forty-Second Congress, he would later describe Southern restrictions on the plural rights of conscience,[160] implying that he saw both non-establishment and free exercise as those restricted rights of conscience.
One of the best examples of this textual distinction comes from Justice Bradley’s pro-incorporation dissent in the Slaughter-House Cases, in which he says:
But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property, without due process of law. These, and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not.[161]
Justice Bradley makes a notable distinction in his description of free exercise because he describes it as an enumerated privilege or immunity even while not describing it as a broader “right” as he does for speech, press, and other broadly enumerated rights.
Professor Akhil Amar disagrees with the incorporation of the Establishment Clause, arguing that at least six states had government-supported churches in 1789, that the clause had its roots in states’ rights, and that a right against federal establishment could not be incorporated to subsequently disestablish.[162] However, Amar does not extend this logic to the interrelated Free Exercise Clause, as part of the same, singular Religion Clause, where states traditionally did not respect the free and independent exercise of religion, nor does he specifically distinguish the publicized intentions of the Fourteenth Amendment’s framers.[163]
Justice Thomas, relying on Amar’s arguments, has maintained that the Establishment Clause is too federalist for incorporation, writing in Town of Greece v. Galloway that:
The Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment. Unlike the Free Exercise Clause, which “plainly protects individuals against congressional interference with the right to exercise their religion,” the Establishment Clause “does not purport to protect individual rights.” Instead, the States are the particular beneficiaries of the Clause. Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.”
. . . .
The most cogent argument in favor of incorporation may be that, by the time of Reconstruction, the framers of the Fourteenth Amendment had come to reinterpret the Establishment Clause (notwithstanding its Federalist origins) as expressing an individual right. On this question, historical evidence from the 1860’s is mixed. Congressmen who cataloged the personal rights protected by the First Amendment commonly referred to speech, press, petition, and assembly, but not to a personal right of nonestablishment; instead, they spoke only of “free exercise” or “freedom of conscience.” There may be reason to think these lists were abbreviated, and silence on the issue is not dispositive. Given the textual and logical difficulties posed by incorporation, however, there is no warrant for transforming the meaning of the Establishment Clause without a firm historical foundation. The burden of persuasion therefore rests with those who claim that the Clause assumed a different meaning upon adoption of the Fourteenth Amendment.[164]
This argument would make a lot more sense were the Establishment and Free Exercise Clauses not wholly intertwined in one cohesive Religion Clause. But since the two elements are intertwined, this description of the Clause would imply that free, independent exercise could not be incorporated without its twin clause in parity (which Thomas anyway describes in language of federalist independence). Within such context, the burden of persuasion should rest elsewhere, especially where Thomas supports incorporating free exercise amidst a broader freedom of conscience.
Conceivably, one could counterargue that the framers of the Fourteenth Amendment just did not understand the Religion Clause as a cohesive unit, even if the framers of the First Amendment thought of it as such. Or instead, one could argue that free exercise should not be incorporated, even though opposing its incorporation would dare to counter significant evidence.[165] But Kurt Lash specifically describes the overlapping nature of non-establishment and free exercise principles at the time of the Fourteenth Amendment, despite maintaining a separate nature of the clauses, writing that:
The antidisestablishment aspect of the incorporated Establishment Clause also raises issues regarding the scope of the incorporated Free Exercise Clause. To our ears, laws that “disestablish” sound a lot like laws “prohibiting the free exercise of religion.” If so, doesn’t the incorporated Establishment Clause render the Free Exercise Clause redundant?
Not at all. The incorporation reading of the Establishment Clause prohibits laws which regulate religion as religion. The slaveholding states violated this principle when they regulated the religious exercise of the slaves, or controlled religious expression as it related to slavery. On the other hand, it is quite possible that generally applicable laws also might unjustifiably burden religious exercise. For example, in addition to southern laws which directly regulated religious exercise, a number of laws indirectly burdened religious exercise in the South.[166]
However, rather than having to argue around possible redundancy, the overlap of the separate elements makes more sense once non-establishment and free exercise are understood as one cohesive unit, and where the worries of accommodation are instead aspects of the Fourteenth Amendment, rather than aspects of free and independent exercise.
And where establishment and free exercise were intertwined, the cohesive Religion Clause should not be too federalist for incorporation, not merely because its Establishment element could be understood as the right to not have one’s funds or taxes paid for the support of religion, capable of achieving the necessary standing,[167] but because non-establishment and free exercise were together understood as parts of the evolved rights of conscience at the time of the Fourteenth Amendment.[168] Notably, when the Slaughter-House Cases delayed incorporation (over the dissent of Justice Bradley, who described free exercise as a privilege or immunity even if not a “right” in the textual sense), the Blaine Amendment tried to reincorporate both non-establishment and free exercise, retaining the uniformity of the single Religion Clause.[169]
Kurt Lash describes how, during the 1860s, state courts had disentangled blasphemy and Sabbath laws from their religious origins, invoking the “liberty of conscience” at the root of both non-establishment and free exercise.[170] “From 1840 to 1860, a variety of claims challenged the notion that the law of the land was based on Christianity. One by one, laws once based on religious principles were reconstrued to conform to the idea that the civil state has no power over the subject of religion.”[171] Both non-establishment and free exercise were adopted by state constitutions as individual rights, no longer operating as federalist provisions.[172] These changes in the law were thus built into the Fourteenth Amendment in what Akhil Amar calls refined incorporation, and what his former student Kurt Lash describes as second adoptions of non-establishment and free exercise.[173]
Additionally, we should distinguish our modern understanding of structural provisions and individual rights from the constitutional language of “privileges or immunities.” Our distinction between structural federalism—a separation of federal encroachment from state establishments—and individual rights—a separation of state involvement from individual independent exercise—is not textually grounded. In constitutional language, incorporation occurs for “privileges or immunities.” Regardless of how we might describe the principles of religious autonomy, as structural or institutional or individual at the time of the Fourteenth Amendment, this principle is a constitutional “immunity” upon which States should not abridge.
In summary, consistent with how incorporation should have occurred, the federalist principles of separation should have been refined into an individualistic separation of church and state, maintaining the underlying guiding textual principle of autonomy. At the time of the Fourteenth Amendment, the principles of religious autonomy had replaced those of federalism, and it is these evolved rights that the text would have incorporated.
But instead of maintaining the principle of autonomy, which had been refined from one of federalism to one of individualism, the Supreme Court incorporated the Religion Clause in two halves, irrespective of the relationship between those clauses.[174]
The first case to incorporate the Free Exercise Clause was Cantwell v. Connecticut, in which Jehovah Witnesses were convicted for religious soliciting.[175] In Cantwell, Justice Owen Roberts initially cited the Religion Clause in full:
The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,—freedom to believe and freedom to act.[176]
First off, the Court described the bifurcated clauses as a singular inhibition on a subject of legislation. But even where Justice Roberts saw the text in full, the Court still engaged in some subtle refinement, more directly associating free and independent exercise with the freedom of conscience. And later in his opinion, Justice Roberts cited free exercise alone, completing the separation by refinement.[177]
Furthermore, the opinion saw an overlap in its constructed freedom of exercise and freedom of speech and press, entangling its separated clause with its broader individual rights neighbors.[178] Glendon and Yanes claim that there is “little doubt that the strength of Cantwell’s free exercise claim was augmented by the free speech interest with which it was inextricably bound.”[179] The Jehovah Witness cases of the 1930’s and 1940’s had relied on the broader freedom of speech rather than the narrower free exercise,[180] but it was here where the qualifying “free” was transformed into the enumerating “freedom of.”
Next, in Everson v. Board of Education, Justice Hugo Black then separated the Establishment Clause, using it to question transportation reimbursements for schoolchildren that did not exclude Catholic parochial schools.[181] While still correctly noting that this aid was to the families rather than to the religious institutions,[182] Justice Black nonetheless refined the structural limitation as an individual right, grounding the text in the history of tax-supported establishments of religion.
Most interestingly, Justice Rutledge’s dissent correctly saw the clauses as operating in unison, even if he arrived at the opposite result:
“Religion” appears only once in the Amendment. But the word governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid “an establishment” and another, much broader, for securing “the free exercise thereof.” “Thereof” brings down “religion” with its entire and exact content, no more and no less, from the first into the second guaranty, so that Congress and now the states are as broadly restricted concerning the one as they are regarding the other.[183]
But by incorporating non-establishment separately, Justice Black allowed the clause-bound interpretations of the clauses to evolve into contradiction, with the independence of free exercise transforming into a freedom of exercise, and the doctrines later evolving into conflict and tension.[184]
Overall, the Supreme Court has wrongly adopted frameworks that interpret the Establishment Clause in terms of exclusion[185] or nondiscrimination,[186] the latter doctrine cross-pollinated by its relation to the separate equal protection doctrine. Free exercise has similarly become entangled with equal protection, another cross-pollination of incorporation, leading the clause into contradiction with its whole.[187] This cross-pollination is primarily the result of two interrelated missteps: (1) Rehnquist’s misstatement of pre-incorporation federalism as nonpreferentialism, and (2) the revolutionary championing of individual rights during the Warren Court through a hasty advancement of piecemeal incorporation.[188]
However, one might argue, if nondiscrimination was the primary motivation for the Fourteenth Amendment, it might not matter if non‑preferentialism was only a justification for the First Amendment—equal protection was adopted anyway, why distinguish it from non-establishment? While interesting, this argument creates a contradiction in the interpretation of the two elements of the Religion Clause. Where the Establishment Clause is misconstrued as requiring nondiscrimination, and where free exercise spirals elsewhere, the two provisions are out of sync. Instead, by relying on the correct clauses in their correct context, we maintain constitutional determinacy, avoiding dysfunctional doctrine and avoiding the tension of misinterpreted clauses.
And while Amar’s theory of refined incorporation does posit that the Privileges and Immunities Clause could transform majoritarian and federalist rights into minority rights,[189] his theory should not be so construed as to undermine the functionality of the text by requiring exemptions under the Free Exercise Clause. Incorporating “free exercise” as a privilege or immunity did not transform it into a “freedom of exercise.” This process merely supplanted federalist autonomy with more direct state and religious
autonomy—reconfiguring a lack of federal power as a lack of state power. The text still mandates a narrower independence, not a broader right including accommodation or support. And additionally, Lash’s history of a second adoption strengthens the idea of a uniform clause, given the antebellum transformation of establishment principles into greater cohesion with free exercise principles.[190]
Regardless, there is likely place elsewhere in the Constitution where modern ideas of religious freedom, and historical opposition to laws that indirectly coerced religion, might find refuge.[191] Assessing discriminatory laws in the South, Steven Calabresi and Abe Salander note how “Nat Turner and Denmark Vesey were also preachers who led significant rebellions against white slave owners” and how “[a]s a result, southerners established harsh laws restricting slaves’ ability to exercise their religion, including draconian regulations on black religious assemblies.”[192]
In this subsection, I hope to demonstrate that many of the present judicial outcomes may be correct even where the doctrine is confused. In arguing for an interpretation of a single Religion Clause, with an underlying principle of autonomy, I do not wish to replace much of the doctrine (with the exception of the “play in the joints” cases), but instead to reorganize it. Our modern understanding of religious freedoms need not start and end at the Religion Clause, and there are important remaining protections in the areas of equal protection and religious speech that can recapitulate everything else.
While a framework of free and independent exercise may seem limited, the Fourteenth Amendment provides other protections beyond solely those extended by incorporation.[193] The equalitarian principles of the Fourteenth Amendment, as now understood through the Equal Protection Clause, prohibit discrimination against protected classes.[194]
And so, by allowing religion to become a protected class under the Fourteenth Amendment, with exemptions as a remedy under heightened scrutiny, courts could preserve the original parity and functionality of the original Religion Clause after incorporation, where the two provisions instead could prevent laws that hurt or harm “religion qua religion.”[195] And religious speech, a separate category in its own right, could be relegated back to the Free Speech Clause.[196] The single Religion Clause could maintain the separation and independence of church (free and independent exercise) and state (establishment), while the Fourteenth Amendment could provide for equal protection and accommodations for religious minorities.
Notably, the equal protection aspects of the Fourteenth Amendment were rooted in the arguments of antebellum constitutional abolitionists and Republicans who maintained that “national citizenship entailed the protection of the laws.”[197] It was thought that civil obedience required a reciprocal duty of protection,[198] which informed Bingham’s “ellipsis theory” that promised requisite national rights for state citizens as ipso facto citizens of the United States.[199]
And when the Slaughter-House Cases nullified the Privileges and Immunities Clause, these rationales were relegated instead to the modern Equal Protection Clause.[200] Speeches on the Ku Klux Klan Act described equal protection as a requirement against state inaction,[201] where “[a]ction or inaction on the part of any branch of the government that results in systemic failure to secure those rights can deny people the equal protection of the laws.”[202] A lack of exemptions could thus be described as a systemic failure to secure accommodations (exemptions in our context) in denying equal protection.[203]
And in his support of exemptions under the Free Exercise Clause, rather than through equal protection, Kurt Lash cites the remarks of Senator Henry Wilson,[204] who after describing the First Amendment as a “positive barrier of absolute prohibition” around a “negative protection,” said:
“Whatsoever ye would that men should do unto you, do ye even so to them,” can ever be allowed free exercise where slavery curses men and defies God. No religious denomination can flourish or even be tolerated where slavery rules without surrendering the choicest jewels of its faith into the keeping of that infidel power which withholds the Bible from the poor. Religion, “consisting in the performance of all known duties to God and our fellow men,” never has been and never will be allowed free exercise in any community where slavery dwarfs the consciences of men.[205]
However, this statement came around nine years before the ratification of the Fourteenth Amendment, prior to the Thirteenth Amendment, and prior to a subsequent focus on equal protection and nondiscrimination in support of the Civil Rights Act of 1866 to counter the Black Codes.[206] Additionally, one could interpret Wilson’s statements as describing a harm to religion in general through a pretextual law that would overall prove void without the need for exemptions as a remedy. And with regards to our method of interpretation, an intent or justification that was not publicized as part of the Fourteenth Amendment should not be allowed to supersede the text. Lash also cites the later speech of John Bingham, who said that:
As slaves were not protected by the Constitution, there might be some color of excuse for the slave States in their disregard for the requirement of the bill of rights as to slaves and refusing them protection in life or property; though, in my judgment, there could be no possible apology for reducing men made like themselves, in the image of God, to a level with the brutes of the field, and condemning them to toil without reward, to live without knowledge, and die without hope.
But, sir, there never was even colorable excuse, much less apology, for any man North or South claiming that any State Legislature or State court, or State Executive, has any right to deny protection to any free citizen of the United States within their limits in the rights of life, liberty, and property. Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights.[207]
This latter and more timely statement mixes invocations of both the Bill of Rights and equal protection of the laws, where the Bill of Rights might have regardless invoked aspects of equal protection per Bingham’s understanding.[208] These statements do not offer direct evidence of which clause was expected to have primary effect, so our understanding should instead embrace a construction that best adheres to the letter and spirit of the Fourteenth Amendment.
As such, both the First and Fourteenth Amendments should function together, with free exercise nullifying laws that prohibit free and independent exercises of religion in the collective while the privileges or immunities of equal protection offer individual accommodations or exemptions against otherwise neutral and generally applicable laws. Drawing such a line would preserve a neither help nor harm principle of independence in the text, along with the original functions expected by both sets of framers.
Nonetheless, the Supreme Court has been unwilling to draw such a line and is unwilling to allow equal protection exemptions or accommodations and free exercise nullification of state action targeting religion. In Sherbert v. Verner, the Supreme Court dealt with the free exercise claim of a Seventh‑Day Adventist who had been denied unemployment benefits after being discharged by a South Carolina employer because she would not work on Saturday, her sabbath.[209] In describing the Free Exercise Clause, Justice Brennan claimed, “Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities.”[210]
In doing so, he failed to draw a line between the narrower formulation of the Religion Clause in requiring independence, through neither help nor harm, and the more accommodationist nondiscrimination views of the Fourteenth Amendment, instead cross-pollinating the two separate guiding principles. And at the end of his opinion, Brennan wrote, “In view of the result we have reached under the First and Fourteenth Amendments’ guarantee of free exercise of religion, we have no occasion to consider appellant’s claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment.”[211]
And in requiring accommodation as part of the carved-out exemption, Brennan was forced to argue that “plainly we are not fostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences.”[212] Taking note of this, Justice Stewart’s concurrence pointed out that the decision would result in “many situations where legitimate claims under the Free Exercise Clause will run into head-on collision with the Court’s insensitive and sterile construction of the Establishment Clause.”[213]
The Court reversed course in Employment Division v. Smith, in which the plaintiffs were fired by a drug rehabilitation organization for ingesting peyote at their Native American Church and were subsequently denied unemployment compensation.[214] The Court distinguished Sherbert by describing peyote prohibition as a generally applicable criminal prohibition, requiring no exemption.[215] Justice O’Connor’s concurrence claimed that “the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a constitutional norm,” never mind the distinct nature of the latter individual rights provisions.[216] She claimed that the Court had “in any event recognized that the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause,” though her citation did not directly support this proposition, nor offer up any historical evidence, instead merely summarizing precedent.[217]
In Church of the Lukumi Babalue Aye, Inc. v. City of Hialeah, the Court more directly dealt with a free exercise claim, where Hialeah specifically targeted the Yoruba animal sacrifice Santeria rites with emergency ordinances.[218] While it was arguably not necessary to look for discrimination, given that the ordinances in question were directly targeting a religion, rather than depriving an individual of conditional benefits, Justice Kennedy still maintained that “the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.”[219]
Interestingly, Justice Scalia’s concurrence joined, except with regards to a section finding a legislative purpose in discrimination, writing:
I do not join that section because it departs from the opinion’s general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, i.e., whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular “motive” of a collective legislative body.[220]
Scalia’s point of distinction may indirectly explain why the Court is so unwilling to rely on equal protection doctrine. Equal protection doctrine has been substantially weakened by requirements for purpose and effect, requiring a look into legislative history to discern purpose or intent, a practice the current Court dislikes.[221]
In Tandon v. Newsom, the Court was able to invert the nondiscriminatory element of free exercise in on itself to evade the standards of Smith by finding a lack of neutrality in a failure to accommodate,[222] and in Fulton v. City of Philadelphia, Justice Barrett questioned “what should replace Smith,” finding that “the textual and structural arguments against Smith are more compelling.”[223]
The answer to Justice Barrett’s question likely lies in both the free exercise element of the Religion Clause and in the equal protection element of the Fourteenth Amendment. Such a formulation is more consistent with the letter and spirit of the Fourteenth Amendment, where the Constitution should provide equal protection of the fundamental privileges and immunities of religious freedom.[224] Where religious groups are underrepresented in the legislative process, the Fourteenth Amendment should reflect that.[225] And certainly, exemptions could be considered proper remedies for violations of the fundamental immunities of the Fourteenth Amendment. Furthermore, the principle of independence and separation that underlies both non‑establishment and free exercise can still push back against laws that entangle church and state,[226] especially where help or harm is somewhat debatable.
In the recent Kennedy v. Bremerton School District, the Court could have relied solely on the individual right of the freedom of speech, but instead relied additionally on a distorted Free Exercise Clause.[227] In Kennedy, the lower courts had found tension between the so-called Establishment and Free Exercise Clauses when a school football coach prayed at midfield after games.[228] But there was no such tension.
The real Religion Clause question should have been categorical: was this an establishment promoting religion in a school, or was this a free and independent religious exercise? But instead of answering a single question of independence, the Court chose to elevate an individualized Free Exercise Clause over a narrower principle of independence,[229] continuing to misunderstand the single unifying principle.
Professor William P. Marshall argues that many free exercise claimants who seek exemptions would find better refuge in the freedom of speech.[230] He describes how free exercise claims, as currently constructed, do not fit in with constitutional analysis, which is focused on individual rather than communal choice.[231] Marshall describes how the doctrine against compelled speech is better suited to cases requiring exemptions.[232]
The point of this Section is somewhat tangential. While I maintain throughout this Article that broader conceptions of accommodation and support are outside the bounds of free exercise, I wish to briefly touch on how these conceptions may find refuge elsewhere in the Constitution—often through provisions that were the source of doctrinal confusion because of their potential overlap. Where certain essential and fundamental rights of conscience and nondiscrimination have been perennial, as relevant today as they were at the founding, any theory that altogether disparages them would be inequitable in a constitution of plenary rights.
In Carson v. Makin,[233] the Supreme Court again incorrectly dealt with the supposed conflict between the free exercise and non-establishment provisions. In his book When Free Exercise and Nonestablishment Conflict, Kent Greenawalt describes this “play in the joints,” and other situations where the doctrines appear to be in conflict.[234] But once the original functionality of the single clause is restored, no conflict remains.
In Locke v. Davey, the Rehnquist Court held that it did not violate the Free Exercise Clause when the State of Washington excluded students pursuing a degree in devotional theology from receiving scholarship money.[235] Under the neither help nor harm understanding of the Religion Clause, we can see that Washington’s policy did not violate the principle of independence and autonomy underlying the Religion Clause. Excluding theology students from aid does not harm free and independent exercise—in fact, it helps free exercise.
In Locke, Rehnquist notes that under the “Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients.”[236] In the single Religion Clause, this broken link cuts both ways. If help is distinguished by an interceding cause, then an alleged harm is distinguished as well.
But the Court makes its mistake in citing to conditional government benefits in freedom of speech cases,[237] none of which apply to the narrower Religion Clause rights. Where a freedom of speech can be bolstered by government support, a right of autonomy and independence is instead hurt by government support. Such dependence harms the independence of religion. If the Washington State Constitution chooses to exclude a conditional benefit, a scholarship as a form of dependence, then it has in fact aided in the independent, free exercise of religion.
In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court was then asked if the Missouri Department of Natural Resources could exclude the Trinity Lutheran Church from receiving state grants to purchase rubber playground surfaces made from recycled tires.[238] Justice Roberts wrongly found that denying grants and dependence interferes with the free and independent exercise of the Church’s religion.[239]
The parties had conceded that there was no establishment in inclusion, but the Court then argued that “The Free Exercise Clause ‘protect[s] religious observers against unequal treatment,’” erroneously adopting nondiscriminatory intent from the Fourteenth Amendment.[240] But along with Locke, if an aid does not violate establishment, then the lack of that aid does not violate free exercise, with the single Religion Clause acting in congruence. Both the non-establishment and free exercise provisions apply to religion in the same manner, so a non-establishment cannot harm an independent exercise—both maintain independence.
And to that extent, the case on which Trinity Lutheran relies, McDaniel v. Paty, is entirely distinguishable—excluding ministers from a legislature is an infringement of electoral rights or equal protection, not discrimination by conditional benefits (McDaniel likely exists because the earlier Court was unwilling to apply equal protection to electoral rights).[241] McDaniel demonstrates the other side of our proposition. Just as a State cannot logically promote dependence of independent, free exercise, a State cannot logically prohibit an exercise to prevent establishment.[242] Under our neither help nor harm principle, one cannot harm independence by refusing to foster dependence. There exists no contradiction.
In Espinoza v. Montana Department of Revenue, in which the Montana legislature “established a program to provide tuition assistance to parents who send their children to private schools,” along with a tax credit for donating to scholarships, the Court again confused the misconstrued Religion Clause.[243] As always, if the scholarship program was permissible under the establishment element of the Religion Clause, then its exclusion should not violate the free exercise element thereof.[244]
But in Espinoza, Justice Roberts wrongly quoted Trinity Lutheran to say that the “Free Exercise Clause, which applies to the States under the Fourteenth Amendment, ‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.’”[245] While misinterpreting the First Amendment, this again demonstrated the extent to which the equal protection elements of the Fourteenth Amendment have cross-pollinated the wrongly isolated Free Exercise Clause through the refinement of incorporation. But still, in the unadulterated context of the First Amendment, exclusion from dependence does not prohibit independent exercise, and the State of Montana was well within its rights under the First Amendment, even if not so readily under the Fourteenth.[246]
In his concurrence, Justice Thomas correctly pointed out how the equality reading of the Establishment Clause was wrong, but in doing so, did not oppose the equality reading of the joint Free Exercise Clause.[247] Justice Sotomayor’s dissent made the same mistake in reverse, finding a potential violation of the establishment but not free exercise element, and reaching the right result for the wrong reasons.[248] And in another concurrence, Justice Gorsuch questioned how free exercise could function without equality:
What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways? What does it mean to tell an Orthodox Jew that she may have her religion but may be targeted for observing her religious calendar? Often, governments lack effective ways to control what lies in a person’s heart or mind. But they can bring to bear enormous power over what people say and do. The right to be religious without the right to do religious things would hardly amount to a right at all.[249]
Justice Gorsuch raised a powerful argument in favor of the fundamental rights of equality embedded in our Constitution. But this poignant argument had less to do with the First Amendment, where such constitutional safeguards better fit within the Fourteenth Amendment.
Finally, we reach Carson v. Makin, recently decided by the Supreme Court.[250] In Carson, the Court held that Maine had violated the Free Exercise Clause because the state’s tuition assistance program applied only to “nonsectarian” schools.[251] But under the original single Religion Clause, the answer is clear. If there is no establishment by helping, then refusing to foster dependence does not interfere with free and independent exercise. If government was not helping religion when aid was given, then government was not hurting religion when aid was not given. In his dissent, Justice Breyer interestingly worries:
[T]o interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.[252]
However, Breyer’s worries turn upon the Court’s long-held misinterpretation of the free exercise provision. When free exercise is understood as free and independent exercise, with established exercise as dependent exercise, the clauses can be correctly joined at the hip without any conflict or tension, other than that in question under equal protection doctrine. Once the separation and independence principles of the Religion Clause are restored, a neither help nor harm principle functions with little conflict. In matters of the Religion Clause, formalism proves more functional.
In When Free Exercise and Nonestablishment Conflict, Kent Greenawalt lists numerous situations in which the current doctrines of the Free Exercise and Establishment Clauses appear to conflict.[253] But once the single clause is reinterpreted as a neither help nor harm autonomy principle, and once free exercise is understood as free and independent exercise, this contradiction dissipates. Greenawalt specifically notes how if “a claimed constitutional violation is about the Establishment Clause, it can be a counter that what has been done helps to promote free exercise, even if the alternative would not prohibit that.”[254] And for independent exercise, this doctrinal counter makes no sense.
Many of the perceived conflicts result from separate government speech,[255] which is not establishment if it does not generally benefit religion. Symbolic recognition of religion was historically not an establishment of religion, nor did it harm the independent exercise of religion. Government speech here does not curb independent speech that remains separate from the government.
By contrast, practices like Bible reading within public schools may result in potential establishments that are simultaneously injurious to free, independent exercise as forms of dependent, established exercise.[256] The free and independent exercise of religion is harmed when Government exceeds the bounds of mere recognition. Only official messages with only symbolic or pyrrhic benefit to religion may invoke neither element of the Religion Clause.[257] We can generally distinguish recognizing holidays, history, and architecture from promoting religion.[258]
And practices within the government, in military and in prisons, not only are distinct of free, independent exercise, but often result in compelling interests with deference to the government and exceptions to the application.[259] Military chaplains can be defended as exceptions to the rule,[260] where the government generally has great deference in its power to raise armies, or where such restrictions could survive strict scrutiny. And prisons are categorically places where persons have been deprived of liberty following due process of law.[261]
Furthermore, tax exemptions do not operate as establishments under the combined Religion Clause.[262] One could argue, with clever lawyering, that a deduction for one is an increased tax burden for another, but our framers arguably understood tax exemptions as the lack of a harm rather than the creation of a benefit, given that states “left in place, enacted, or reenacted statutes either permitting or mandating charitable and religious exemptions . . . concurrently with the disestablishment movement.”[263] Furthermore, individual deductions benefit the individual rather than the religious institution, and neither harm nor help a person who, absent taxes, could donate money unabated.[264]
Next, historically grounded exemptions for conscientious objectors, confidential privileges for clerics, religious vaccine exemptions, and excusals from aiding in objectional practices are distinguishable exemptions from expanding obligations created by government,[265] working to the benefit of maintaining prior independence while government increases non-religious dependence by expanding state functions.[266] Legislatively creating exemptions should generally not violate the Establishment Clause. To remove an obligation is neither a help nor a harm to religion, but the removal of a harm, at least under the negative rights understanding of the Framers.
Overall, Greenawalt summarizes that:
Among the circumstances in which the conflicting values of the two clauses come into play are government practices and symbols of religion. These can promote the exercise of religion of those within government and indirectly support religious outlooks of other citizens but do amount to a kind of establishment. Concessions to religious practices assist free exercise but can be regarded as helping establish religion in a way and, in some situations, interfere with the equality rights of those directly affected by things such as refusals of service.[267]
But in the context of independent exercise, where individuals are more the purview of the Fourteenth Amendment, the single Religion Clause finds that such laws neither respect the establishment of religion nor prohibit the free exercise thereof. There is no dependent exercise and only independent exercise.
In conclusion, the single Religion Clause functions better when its two elements are understood in congruence. The refinement of incorporation has wrongly separated these elements of autonomy into isolated clause-bound literalism, focusing non-establishment on nonpreferentialism and focusing free exercise on broader conceptions of individual rights.
But the originally expected incorporation of the Religion Clause provided for a right more consistent with its first principles. Free exercise and non-establishment both stood for the guiding principle of autonomy and independence, where removing sources of dependence could not harm the free and independent exercise of religion.
It was this independence for which Jefferson and Madison understood and fought, each understanding that when government became involved with religion, such entanglement acted to the detriment of either or both. And it is this singular separationist textual principle we ought to apply today.