On balance: Religious liberty and third-party harms

Minnesota Law Review

Volumn 84, Issue 3, 2000, Pages 589-671

  Lipson, Jonathan C ^a  

^a UNIVERSITY OF BALTIMORE   (United States)

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EID: 0347917938     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (474)

1. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 159 (William Peden ed., 1972),
2. quoted in Daniel Keating, Bankruptcy, Tithing, and the Pocket-Picking Paradigm of Free Exercise, 1996 U. ILL. L. REV. 1041, 1041 (internal citation omitted).
3. Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943).
4. Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1390 (1981) (footnote omitted).
5. P. J. O'ROURKE, EAT THE RICH 4 (1998).
6. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1128 (1990) (quoting Letter from James Madison to Edward Livingston (July 10, 1822) (internal citation omitted)).
7. As early as June 1776, for example, the Virginia Assembly of Representatives "declared 'that all men are equally entitled to the free exercise of their religion, or the duty they owe to their Creator, and the manner of discharging it according to the dictates of their consciences.'" The Sentiments of the Several Companies of Militia and Freeholders of Augusta, in Virginia, Communicated by the Deputies from the Said Companies and Freeholders to Their Representatives in the General Assembly of the Commonwealth (1776), in 2 PETER FORCE, AMERICAN ARCHIVES: FIFTH SERIES 816 (1851). In an apparent response, certain Virginians wrote to their representatives in October 1776 to say "[w]e take [the foregoing] to be the true and full meaning of their words, without any unjust view of favouring some to the hurt of others . . . ." Id.
8. I acknowledge at the outset that the "private" nature of rights is at best unclear, and at worst incoherent. A critic might point out that, unless you believe in natural law, all rights come from the "state," meaning that there are no "private" rights. As discussed below, I mean only that private rights protect individuals from "harm." What constitutes "harm" is, itself, a difficult question, which cannot be fully defined in this Article. Indeed, my thesis implies that courts should be left to make that determination on a case-by-case basis. The important distinction involves rights typically associated with the "police" power, on the one hand, and rights typically associated with discrete individuals, on the other. In exercising its police power, the state seeks, for its own sake, or the benefit of the diffuse and ill-defined general public, to prohibit an exercise of religion. See, e.g., John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith, 25 IND. L. REV. 71, 99 (1991) (noting that police power encompasses the power to "enact laws for the public health, safety and general welfare" (citations omitted)). Laws forbidding polygamy or the ingestion of peyote come to mind. See, e.g., Reynolds v. United States, 98 U.S. 145, 166-67 (1878) (upholding a bigamy conviction against a free exercise challenge); Employment Div. v. Smith, 494 U.S. 872, 878-83 (1990) (upholding the denial of unemployment benefits for work-related "misconduct" in using of peyote). Such laws do not protect identifiable private individuals in any significant sense. As a practical matter, few private individuals would be able to show that such activities harmed them.
9. Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407 (8th Cir. 1996), reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996), cert. granted, vacated, and remanded, 521 U.S. 1114 (1997), aff'd 141 F.3d 854 (8th Cir. 1998), cert. denied, 119 S. Ct. 43 (1998).
10. 165 F.3d 692 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
11. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (1994); see also City of Boerne v. Flores, 521 U.S. 507, 511 (1997) (holding that Congress exceeded its power under the Fourteenth Amendment in enacting RFRA and therefore RFRA is unconstitutional as it applies to states).
12. See infra Part I.B.
13. See infra Part II.D.1.
14. See infra Part II.D.2.
15. See infra Part I.D.
16. See infra Part II.D.
17. 494 U.S. 872 (1990).
18. Id. at 885 (citing Reynolds v. United States, 98 U.S. 145 (1878)).
19. 80 U.S. (13 Wall.) 679, 728 (1871); see also infra text accompanying notes 53-77.
20. These constitutional values include voluntarism (religious belief should arise voluntarily, and not as the product of government coercion), see Note, Toward A Constitutional Definition of Religion, 91 HARV. L. REV. 1056, 1058 (1978) (noting that "[t]he core of the Free Exercise Clause is voluntarism"), separatism (that government and religion should not intermingle), see, e.g., Everson v. Board of Educ., 330 U.S. 1, 16 (1947), and pluralism (that diversity of belief and practice is inherently valuable in a free society), see, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 689 (1970) (Brennan, J., concurring).
21. BLACK'S LAW DICTIONARY 484 (5th ed. 1979). See generally infra Part III.A.
22. 374 U.S. 398, 402, 408-09 (1963) (holding that a Seventh Day Adventist may not be denied unemployment benefits for refusing to work on days of worship).
23. 406 U.S. 205, 221, 234-36 (1972) (holding the Amish exempt from laws compelling public school attendance).
24. The second half of the problem is whether - and if so, how - courts can balance harms in religious liberty disputes involving third parties. See infra Part II.
25. U.S. CONST. amend I. The First Amendment applies to state law by "incorporation" into the Fourteenth Amendment. See Cantwell v. Connecticut 310 U.S. 296, 303 (1940).
26. Eugene Gressman & Angela C. Carmella, The RFRA Revision of the Free Exercise Clause, 57 OHIO ST. L.J. 65, 69 (1996) (The questions of what is 'free exercise," what is 'religion,' or what is a law 'prohibiting' free exercise, find no answers in the wording of the [Free Exercise] Clause.").
27. See, e.g., United States v. Seeger, 380 U.S. 163, 173-76 (1965) (defining religion in the context of a conscientious objector provision of a statute governing military conscription); Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir. 1986) (assuming arguendo that witchcraft is a religion); Africa v. Pennsylvania, 662 F.2d 1025, 1036 (3d Cir. 1981) (holding that a group described by its founder as a revolutionary religious organization, does not qualify as a religion for free exercise purposes); Malnak v. Yogi, 592 F.2d 197, 199 (3d Cir. 1979) (per curiam) (holding that Transcendental Meditation is a religion for Establishment Clause purposes).
28. See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-6 (2d ed. 1988);
29. Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. ILL. L. REV. 579;
30. George C. Freeman, III, The Misguided Search for the Constitutional Definition of "Religion," 71 GEO. L.J. 1519 (1983);
31. Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 CAL. L. REV. 753 (1984);
32. Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 STAN. L. REV. 233 (1989);
33. Gail Merel, The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. CHI. L. REV. 805 (1978);
34. Note, Reinterpreting the Religion Clauses: Constitutional Construction and Conceptions of the Self, 97 HARV. L. REV. 1468 (1984); Note, supra note 19, at 1083-89.
35. See JOHN CLARK ARCHER, FAITHS MEN LIVE BY 7-16 (1934);
36. Gregory Baum, Definitions of Religion in Sociology, in WHAT IS RELIGION? AN ENQUIRY FOR CHRISTIAN THEOLOGY 25 (Mircea Eliade & David Tracy eds., 1980);
37. HANS MOL, IDENTITY AND THE SACRED at ix-x (1976);
38. ELIZABETH K. NOTTINGHAM, RELIGION: A SOCIOLOGICAL VIEW 6-8 (1971);
39. PAUL TILLICH, THE SHAKING OF THE FOUNDATIONS 57 (1948) ("He who knows about depth knows about god.").
40. The problem of defining religion, whether for theological or sociological purposes, is hardly a new one, and has perplexed distinguished thinkers. See generally AUGUSTE COMTE, A GENERAL VIEW OF POSITIVISM (J. H. Bridges trans., 1957);
41. JOHN DEWEY, A COMMON FAITH (1934);
42. ERICH FROMM, PSYCHOANALYSIS AND RELIGION (1950);
43. IMMANUEL KANT, RELIGION WITHIN THE LIMITS OF REASON ALONE (Theodore M. Greene & Hoyt H. Hudson trans., 1934);
44. MAX WEBER, THE SOCIOLOGY OF RELIGION (Ephraim Fischoff trans., 1963).
45. See Val D. Ricks, To God God's, to Caesar Caesar's, and to Both the Defining of Religion, 26 CREIGHTON L. REV. 1053, 1053 (1993) ("Either the federal constitutional definition of religion is of vital, continuing interest to the law, or someone is paying scholars a lot of money to write about it.").
46. See McConnell, supra note 5, at 1114 ("The conclusion that the [Free Exercise C]lause protects conduct as well as speech or belief would seem to follow from its very words: 'exercise' means conduct.").
47. See, e.g., Seeger, 380 U.S. at 166 (interpreting religion in a conscientious objector provision to include ideas other than an orthodox belief in God).
48. 133 U.S. 333, 346-48 (1890); see also Reynolds v. United States, 98 U.S. 145, 166-67 (1878) (upholding a bigamy conviction against a free exercise challenge).
49. Davis, 133 U.S. at 342.
50. The Framers of the Constitution probably shared similar views. James Madison, for example, characterized religion as "the duty which we owe to our creator, and the manner of discharging it." James Madison, Memorial and Remonstrance on the Religious Rights of Man, in CORNERSTONES OF RELIGIOUS FREEDOM IN AMERICA 84 (J. Blau ed., 1964), quoted in Note, supra note 19, at 1060 n.26.
51. Davis, 133 U.S. at 341.
52. United States v. Ballard, 322 U.S. 78, 86-87 (1944) (describing the diversity of protected religious beliefs).
53. Id. at 86.
54. 367 U.S. 488, 495-96 (1961) (stating that the government cannot constitutionally force people to profess a religious belief).
55. See id. at 489-90 (noting that the state of Maryland sided with those who believe in God).
56. See id. at 495 n.11 ("Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.")
57. See United States v. Seeger, 380 U.S. 163, 164 (1965) (citing Universal Military Training and Service Act, 50 U.S.C. app. § 456(j) (1958)).
58. Id. at 166 (quoting Seeger's letter to the draft board).
59. Id. at 176; see also id. at 180 (citing 2 PAUL TILLICH, SYSTEMATIC THEOLOGY 12 (1957)).
60. See Eduardo Peñalver, Note, The Concept of Religion, 107 YALE L. J. 791, 791-92 (1997).
61. Id. at 791-92. Some have argued that the Framers of the Constitution shared these assumptions. See ARLIN M. ADAMS & CHARLES J. EMMERICH, A NATION DEDICATED TO RELIGIOUS LIBERTY 90 (1990).
62. Note, supra note 19, at 1056. But see Choper, supra note 27, at 594-97 (criticizing this premise).
63. Choper, supra note 27, at 597-604.
64. See Andrew W. Austin, Faith and the Constitutional Definition of Religion, 22 CUMB. L. REV. 1, 33-43 (1991-1992).
65. See Freeman, supra note 27, at 1548 (stating that the attempt to define religion is "misconceived" and that there is no characteristic common to all religions that makes them "religious").
66. See Greenawalt, supra note 27, at 764 (proposing that the determination of a religion should be made by a comparison to that which is "indisputably religious").
67. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 66, at 31-32 (G.E.M. Anscombe trans., 2d ed. 1958).
68. See Peñalver, supra note 44, at 815. The author argues that in determining "family resemblances" among religions, judges should develop baselines "us[ing] in their analogical process . . . the existing set of religions in their diversity of belief and form." Id. at 817. This may help to avoid Judeo-Christian bias as currently constructed, but it still begs the questions of what composes the "existing set" of religions or religious exercise to begin with.
69. This would be so at least in the post-Lochner era, where the state is unrestricted by notions of "substantive due process." To the extent one believes Lochner is not dead, however, one may well ask whether (or to what extent) the government may regulate commercial activity. See generally Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 883-902 (1987) (arguing that numerous cases following Lochner rely on "Lochner-like" principles and that Lochner has not been completely overruled).
70. These cases are often called the "church property cases" because they frequently involve disputes over the disposition of church property. See generally Louis J. Sirico, Jr., Church Property Disputes: Churches as Secular and Alien Institutions, 55 FORDHAM L. REV. 335, 348-53 (1986) (describing the Court's deference test as used in the church property cases).
71. 80 U.S. (13 Wall.) 679, 728 (1871) ("The law knows no heresy.").
72. Jones v. Wolf, 443 U.S. 595, 604 (1979).
73. See Gonzalez v. Archbishop, 280 U.S. 1, 16 (1929).
74. See Ingber, supra note 27, at 247-49; Alfred G. Killilea, Standards for Expanding Freedom of Conscience, 34 U. PITT. L. REV. 531, 538-41 (1972);
75. Mary Harter Mitchell, Secularism in Public Education: The Constitutional Issues, 67 B.U. L. REV. 603, 631-33 (1987);
76. Timothy L. Hall, Note, The Sacred and the Profane: A First Amendment Definition of Religion, 61 TEX. L. REV. 139, 160-161 (1982).
77. Thomas v. Review Bd. of the Indep. Employment Sec. Div., 450 U.S. 707, 714 (1981); see also United States v. Lee, 455 U.S. 252, 257 (1982) ("It is not within 'the judicial function and judicial competence' ... to determine whether [the Amish] or the Government has the proper interpretation of the Amish faith; '[c]ourts are not arbiters of scriptural interpretation.'" (quoting Thomas, 450 U.S. at 716)). The Hernandez Court contains a somewhat analogous line of thought, reasoning that "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Commissioner, 490 U.S. 680, 699 (1989). The Court echoed this reasoning one year later. See Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990) ("It is no more appropriate for judges to determine the 'centrality' of religious beliefs before applying a 'compelling interest' test in the free exercise field, than it would be for them to determine the 'importance' of ideas before applying the 'compelling interest" test in the free speech field.").
78. See, e.g., Larson v. Valente, 456 U.S. 228, 244 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.").
79. Davis v. Season, 133 U.S. 333, 341-42 (1890) ("To call their advocacy [of polygamy] a tenet of religion is to offend the common sense of all mankind.").
80. For instance, in Welsh v. United States, the Supreme Court struggled with the question of whether an ethical objection to war could be considered "religious." 398 U.S. 333, 340-44 (1970). Although the majority treated the question as one of statutory construction, Justice Harlan pointed out that the construction was severely strained and concurred on free exercise grounds. See id. at 344-67 (Harlan, J., concurring). The courts have considered whether certain beliefs or practices constitute a religion in other cases as well. See, e.g., Africa v. Pennsylvania, 662 F.2d 1025, 1034 (3d Cir. 1981) (rejecting the claim that MOVE, described as a "revolutionary" organization "absolutely opposed to all that is wrong," is a religion); Founding Church of Scientology v. United States, 409 F.2d 1146, 1162 (D.C. Cir. 1969) (ruling after considerable discussion that Hubbard Electrometers, or "E-Meters," are parts of religious practice); United States, v. Kuch, 288 F. Supp. 439, 444-45 (D.D.C. 1968) (rejecting the claim that Neo-American Church, devoted to drug use, is a genuine religion); People v. Woody, 394 P.2d 813, 821 (Cal. 1964) (ruling that the use of peyote is a bona fide religious practice of the Native American Church); Fellowship of Humanity v. County of Alameda, 315 P.2d 394, 406 (Cal. 1957) (concluding after a lengthy analysis that the Fellowship of Humanity is a religion despite its lack of belief in a supreme being).
81. See Ricks, supra note 29, at 1061-64 ("[A] definition which did not exclude would not define.").
82. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 727-29 (1871). Although the internal affairs cases have been described as "hoary," Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 959 (1989), modern examples of the basic problem abound.
83. See, e.g., Sara Kehaulani Goo, Church and Diocese Battle Over Religion, Sex, Politics, WALL ST. J., July 7, 1999, at NE1 ("Ever since St. Paul's Church began to break away from its mother religious affiliation, the Episcopal Diocese of Massachusetts, it has been a holy war.");
84. Cindy Richards, A Church Divided, CHI. TRIB., May 13, 1999, § 2, at 1 ("What started out as an intramural flap over the proposed renovation of a historic church in Oak Park[, Illinois] is erupting into a battle over the separation of church and state ....").
85. See Watson, 80 U.S. (13 Wall.) at 691. The resolution required members who believed in the divine character of slavery to "repent and forsake these sins." Id. This presumably required the church members to sell their slaves.
86. See id. at 692. The majority sought to enforce its right to the church property in a diversity action in federal court. See id. at 694. The plaintiffs lived in Kentucky at the time they commenced the suit. The Court ruled that prior Kentucky state court decisions in favor of the pro-slavery minority did not preclude the federal courts' jurisdiction in the pending action because the prior state court decision, Watson v. Avery, 65 Ky. (2 Bush) 332 (1867), dealt only with the legitimacy of the defendants' election as church elders. Watson, 80 U.S. (13 Wall.) at 717. The circuit court granted the majority's request for an injunction, which the minority appealed to the U.S. Supreme Court. See id. at 699-700.
87. See Watson, 80 U.S. (13 Wall) at 691-92. One wonders why - or whether - support for slavery was an especially important element of Presbyterian doctrine prior to 1865.
88. A hierarchical church has a power structure similar to corporate parent and subsidiary relationships. Congregational churches, by contrast, have no such relationships. See generally Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts Over Religious Property, 98 COLUM. L. REV. 1843, 1849-51 (1998) (describing the Court's treatment in Watson of the hierarchical church in contrast with non-hierarchical churches).
89. Watson, 80 U.S. (13 Wall.) at 727.
90. Id. at 729.
91. Sirico, supra note 54, at 352.
92. Id.
93. Arlin M. Adams & William R. Hanlon, Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment, 128 U. PA. L. REV. 1291, 1317 (1980) (discussing Jones v. Wolf, 443 U.S. 595 (1979)).
94. Id.
95. Id. (quoting Jones v. Wolf, 443 U.S. 595, 603 (1979)). The contractual basis of the rule of deference creates at least two problems. First, to the extent that the "locus of control" of the church is "ambiguous," a court would have to undertake the same "searching and therefore impermissible inquiry into church polity." Jones v. Wolf, 443 U.S. 595, 605 (1979) (quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 (1976)). To say that church members impliedly consent to a particular polity assumes that courts can "ascertain" that polity without delving into "forbidden" doctrine. This assumption is ambitious, to say the least. Courts appear to have limited competence to make judgments about the nature of church polities. In the context of the same factual dispute the United Lutheran Church in America was first found to be synodical in character by a federal district court. See Evangelical Lutheran Synod v. First English Lutheran Church, 47 F. Supp. 954, 964 (W.D. Okla. 1942). After the district court was reversed on jurisdictional grounds by the Court of Appeals, see First English Lutheran Church v. Evangelical Lutheran Synod, 135 F.2d 701 (10th Cir. 1943), it was found by the Oklahoma Supreme Court to be congregational. See First English Lutheran Church v. Bloch, 159 P.2d 1006, 1006 (Okla. 1945). Compare Duessel v. Proch, 62 A. 152, 153 (Conn. 1905); Dressen v. Brameier, 9 N.W. 193, 193 (Iowa 1881); Rock Dell Norwegian Evangelical Lutheran Congregation v. Mommsen, 219 N.W. 88, 88-89 (Minn. 1928); Mertz v. Schaeffer, 271 S.W.2d 238, 241 (Mo. Ct. App. 1954); Gudmundson v. Thingvalla Lutheran Church, 150 N.W. 750, 750-02 (N.D. 1914); Fadness v. Braunborg, 41 N.W. 84, 85 (Wis. 1889), all finding the Lutheran Church to be congregational in policy, with First English Evangelical Lutheran Church v. Dysinger, 6 P.2d 522, 524 (Cal. Dist. Ct. App. 1931); Wehmer v. Fokenga, 78 N.W. 28, 29-30 (Neb. 1899); Harmon v. Dreher, 28 S.C.L. ( 1 Speers) 87, 91 (S.C. 1843), all finding the church to be hierarchical. Professor Greenawalt has argued that it may be appropriate to treat a church as hierarchical for certain purposes and as congregational for other purposes. See Greenawalt, supra note 68, at 1879. Second, a contractual rationale implies contractual exceptions to enforcement. It is, for example, well understood that contracts should not be enforced when they result from fraud, mistake, unconscionably unequal bargaining power, and so on. See RESTATEMENT (SECOND) OF CONTRACTS §§ 159-185 (1979). Yet, courts using a strict rule of deference should not make these determinations, because these inquiries require a court to determine the existence or substance of the contract, and therefore, the substance of the church's governance. Such inquiries should theoretically be forbidden. Thus, even where church authorities act "arbitrarily" a court will grant no relief. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 712-13 (1976); see also infra text accompanying notes 104-33.
96. Deference can also be explained on associational grounds, as in Watson, and on Establishment Clause grounds (i.e., taking a position in an internal church dispute would result in the impermissible establishment of a religion). See Watson v. Jones, 80 U.S. (13 Wall.) 679, 713-14 (1872). It is difficult to imagine a religious entanglement greater than declaring the legitimate bearer of a faith.
97. See Laycock, supra note 3, at 1403 ("If one is ill-treated by his church, he can leave it; if he feels bound by faith or conscience to stay in, the government can offer him no remedy."). Deference as a method of resolving internal church disputes also poses other, more general problems. It treats religion as "alien," as something that is beyond judicial experience or expertise. See Sirico, supra note 54, at 351, 353. Additionally, deference assumes that the religious component of disputes involving churches cannot be extracted from larger disputes involving the same claimants. How would Watson have come out, for example, if the organization in question was a non-religious group rather than a church? Would the Court still have permitted the local organization to defy the institutional hierarchy? Probably not. See Watson, 80 U.S. (13 Wall.) at 681. In fact, Watson presumed that because the disputants were religious - even though the dispute was of only marginally religious character - the whole matter was beyond the judicial ken. See id. It seems odd to say that the claimed religiosity of the disputants should govern the treatment of the dispute. Deference will also tend to favor the powerful within a given group. Deference means that courts simply rubber stamp the decisions of the majority (in the case of a congregational church) or a higher decision-maker (in the case of a hierarchical church). Unless one of the exceptions discussed below applies, little inquiry may be made into the fairness or not of a particular policy or action. It is discomforting to acknowledge that courts must sometimes sanction otherwise intolerable results out of respect for larger institutional and constitutional principles. Yet such is the nature of deference.
98. See 80 U.S. (13 Wall.) at 733-35. Justice Powell's thoughtful dissent in Jones v. Wolf characterized the test as a "restrictive rule of evidence." 443 U.S. 595, 611 (Powell, J., dissenting).
99. Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 370 (1970) (Brennan, J., concurring). Exactly which documents are open to examination under the doctrine is unclear. Colorado courts, for example, have examined internal church organizational documents in applying the formal title test. See Bishop & Diocese v. Mote, 668 P.2d 948, 952-53 (Colo. Ct. App. 1983), rev'd en banc, 716 P.2d 85 (Colo. 1986); Bernson v. Koch, 534 P.2d 334, 338-39 (Colo. Ct. App. 1975); see also Sirico, supra note 54, at 356.
100. Prior to the application of the neutral principles doctrine, the Court would presumably have deferred to the decision of the highest church authority. See, e.g., Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 17 (1929) (holding that the archbishop had sole authority to interpret provisions of a will creating chaplaincy); Bouldin v. Alexander, 82 U.S. (15 Wall.) 131, 139-40 (1872) (holding that the will of the majority of the members, not minutes of the church meeting, determines outcome).
101. 443 U.S. 595, 599-601 (1979).
102. See id. at 597.
103. Id. at 598.
104. See id.
105. Id. at 598 (quoting Appellate Record at 235).
106. Id.
107. Id. at 599.
108. Id. at 600.
109. See id. at 601 (citing App. to Pet. for Cert. 9a; 243 S.E.2d 860, 864 (Ga. 1978)).
110. See id. at 600 (citing Presbyterian Church v. Eastern Heights Church, 167 S.E.2d 658, 660 (Ga. 1969)).
111. See Jones v. Wolf, 439 U.S. 891 (1978).
112. Jones, 443 U.S. at 602 (quoting Presbyterian Church v. Hull Church, 393 U.S. 440, 449 (1969)).
113. Id. (citations omitted).
114. Id. (quoting Maryland & Virginia Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368 (1970)) (Brennan, J., concurring).
115. Id.
116. Id. at 603.
117. See id. at 599-604.
118. Id. at 607.
119. Id. at 609 (footnote omitted). The distinction between "neutral" legal documents, which courts may review, and documents of "doctrine," which are forbidden to courts, is unclear. The Book of the Church Order, for example, appears to have had elements of both. See id. Indeed, every "legal" document will imply elements of doctrine. They will, for example, reflect the religious views of a particular group within a church at a particular time. It is strange to say that any document involving transactions among church members could be "secular" (and therefore "neutral"). While such documents may appear secular, and therefore neutral, they must reflect the intentions of their authors and signatories. They would otherwise be largely incoherent.
120. Id. at 608.
121. Id. at 609.
122. See id.
123. See Greenawalt, supra note 68, at 1844 n.3.
124. See Jones, 443 U.S. at 609 n.8 (quoting Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976)).
125. 280 U.S. 1, 16 (1929).
126. See id. at 1-2.
127. See id. at 5.
128. Id. at 16.
129. Id. (emphasis added). One would assume there was no breach of contract claim here both because the transaction was a "gift" and because the heir was a third party beneficiary not in being at the time the gift was made. Even if petitioner had asserted a breach of contract (or similar) claim, the Court's reluctance to consider doctrine would suggest that it would not have passed on the substantive terms of the agreement.
130. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 712 (1976) (quoting Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 447 (1969)).
131. Id.
132. Id. at 713. [N]o "arbitrariness" exception - in the sense of any inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations - is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization .... Id.
133. Id.
134. 322 U.S. 78 (1944).
135. See id. at 79.
136. Id. at 80 (quoting the record, no citation provided).
137. Id. (quoting the record, no citation provided).
138. Id. at 81.
139. Id. (quoting the record, no citation provided).
140. Id. at 81-82 (quoting the record, no citation provided). It is not clear why defendants' "honest" belief mattered. Presumably, scienter was an element of the claim.
141. Id. at 83 (citing Ballard v. United States, 138 F.2d 540 (1944)).
142. Id. (quoting Bollard, 138 F.2d at 545).
143. Id. at 86.
144. Id. (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1871)).
145. Id.
146. Id. at 88 (citing Lutcher & Moore Lumber Co. v. Knight, 217 U.S. 257, 267-68 (1910); Brown v. Fletcher, 237 U.S. 583 (1915)). The Ballard Court appeared to be motivated at least partly by the effect affirmance could have had on minority religions: If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which men could agree .... The religious views espoused by [the defendants] might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. Id. at 87. It is not clear how prosecutions for fraud would necessarily result in the persecution of minority religions. The state could clearly prosecute fraud in solicitation. Bollard appears to stand for the proposition that it could not do so where the basic representations were religious in nature.
147. Id. at 88-89.
148. Id. at 94 (Jackson, J., dissenting).
149. Id. at 93-95.
150. See Jonathan Weiss, Privilege, Posture and Protection: "Religion" in the Law, 73 YALE L.J. 593, 607 (1964).
151. Bollard, 322 U.S. at 93-95 (Jackson, J., dissenting).
152. Id. at 95.
153. The distinction between religious and secular fraud appears to have played an important role in a recent case. See United States v. Lilly, 37 F.3d 1222, 1226 (7th Cir. 1994). There, the U.S. Court of Appeals for the Seventh Circuit held that religious actors could be prosecuted for fraudulent solicitation where the fraud involved misrepresentations about the use of solicited funds. See id. Distinguishing the internal affairs cases, the Seventh Circuit reasoned that: Pastor's Lilly's offense pertained solely to the way in which [the Pastor] procured the "church" funds in the first place. Pastor Lilly obtained the money by, among other things, making fraudulent misrepresentations and omissions of material fact in the sale of the Certificates of Deposit .... Pastor Lilly was convicted not because the government or the court decided that the Church had spent its money unwisely, but because Pastor Lilly did not spend the [solicited funds] in the way that he promised the investors he would, and because he lied to the investors about their ability to recover their investment principal upon certificate maturity. Id.
154. See Jonathan C. Lipson, First Principles and Fair Consideration: The Developing Clash Between the First Amendment and the Constructive Fraudulent Conveyance Laws, 52 U. MIAMI L. REV. 247, 280-81 (1997).
155. See, e.g., Tony & Susan Alamo Found, v. Secretary of Labor, 471 U.S. 290, 295 (1985). Discussions about what constitutes a religious "exercise" frequently collapse into discussions about the nature of the "burden" on exercise. See generally Lupu, supra note 64 (discussing the "character of government activity necessary to constitute a 'burden'"). In this way, courts tend to define religion in relation to the "burden" imposed. But focusing on burdens rather than the underlying activity is simply another form of deference. How does a court know whether a law burdens the free exercise of religion if it does not know what forms the "religion" part of the analysis?
156. Of course, even if a court concludes that an activity is both religious and commercial, an exemption from a generally applicable law may be appropriate. See Attorney General v. Desilets, 636 N.E.2d 233, 238 (Mass. 1994) ("The fact that the defendants' [landlords'] free exercise of religion claim arises in a commercial context, although relevant when engaging in a balancing of interests, does not mean that their constitutional rights are not substantially burdened.").
157. See Leslie Eaton, Banks Put Their Faith in Building Churches, N.Y. TIMES, Jan. 10, 1999, § 1, at 19;
158. Stephen A. Kliment, When Places of the Spirit Face Concrete Realities, N.Y. TIMES, Dec. 27, 1998, § 11, at 1;
159. see also It's Better if You're White, ECONOMIST, Feb. 27, 1999, at 28 (discussing churchsponsored mammography programs in South-Central Los Angeles).
160. See John Ellement & Richard S. Kindleberger, Cleric Seeks to Balance Secular Avocation, BOSTON GLOBE, Dec. 19, 1998, at B1.
161. See Business Bulletin, WALL ST. J., Oct. 15, 1998, at A1.
162. See id. St. Bartholomew's Church has also been the subject of an important religious-use case involving its buildings. In 1990, the Second Circuit Court of Appeals held that the church was not entitled to an exemption from New York's landmark's preservation statute in order to build an office tower where its "historic" community house stood. See St. Bartholomew's Church v. City of New York, 914 F.2d 348, 359-60 (2d Cir. 1990).
163. See Lisa Miller, Religious Institutions Are Invoking Premiums to Inspire the Wealthy, WALL ST. J., Mar. 10, 1999, at A1.
164. See Monica P. Yazigi, The New Social Church, N.Y. TIMES, Nov. 1, 1998, § 9, at 1.
165. See Joan Anderson, Heaven Can Wait: In Pop, the spiritual is soaring, BOSTON GLOBE, Nov. 8, 1998, at L1. "Loosely speaking, a meme is an element of culture: a word, a song, an attitude, a religious belief, a mealtime ritual, a technology."
166. Robert Wright, You Can Copy Off Me, N.Y. TIMES BOOK REV., Apr. 25, 1999, at 12
167. (reviewing SUSAN BLACKMORE, THE MEME MACHINE (1999)).
168. Jon G. Auerbach, Holy Toll Calls: Telecom Companies Now Turn to Heaven, WALL ST. J., Dec. 23 1997, at A1.
169. Compare Laycock, supra note 3, at 1390 ("Any activity engaged in by a church as a body is an exercise of religion." (footnote omitted)), with id. at 1409 ("Even so, [a church's] interest in conducting a worship service is clearly greater than its interest in organizing a trip to a baseball game for the church men's club."). While the distinction Professor Laycock makes has an intuitive appeal, it does not answer the analytically prior questions: (i) who gets to make the distinction, a church or a civil court? and, (ii) does activity that potentially harms third parties change the analysis?
170. 471 U.S. 290 (1985).
171. See id. at 304-06; see also 29 U.S.C. §§ 201-219 (1994).
172. Alamo, 471 U.S. at 292, 299.
173. Id. at 299 (citing Donovan v. Tony & Susan Alamo Found., 567 F. Supp. 556, 573 (W.D. Ark. 1982); Donovan v. Tony & Susan Alamo Found., 722 F.2d 397, 400 (8th Cir. 1983)).
174. See id.
175. Id. at 299.
176. Id. (quoting 29 U.S.C. § 202(a)(3)).
177. 455 U.S. 252, 254-55 (1982).
178. Id. at 261.
179. Id. at 257. (quoting Thomas v. Review Bd. of Indep. Employment Sec. Div., 450 U.S. 707, 716 (1981)); see also Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 137 (1987) (deferring to claim that refusal to work on Sabbath is religious exercise).
180. The continuum appears outside the commercial context, as well. In Smith, for example, the Court appears to have deferred deeply to the claim that smoking peyote was a religious exercise. The Smith Court initially remanded the case to the Supreme Court of Oregon to determine, in part, whether smoking peyote was a religious exercise that violated Oregon's criminal law. See Employment Div. v. Smith, 485 U.S. 660, 673-74 (1988). On remand, the Oregon Supreme Court engaged in a fairly thorough analysis of peyote religions, and concluded that the activity was, indeed, a religious exercise. See Smith v. Employment Div., 763 P.2d 146, 148 (Or. 1988). Back in the Supreme Court, it appears that Justice Scalia did not challenge the Oregon court's analysis. See Employment Div. v. Smith, 494 U.S. 872, 876 (1990). This would be logical if one recognizes a continuum of deference, since it would appear that smoking peyote, even if illegal, posed little likelihood of third-party harm. The analysis would likely differ if, instead, the claimants sought to use a controlled substance that was considered a threat to public welfare, e.g., cocaine, heroin, etc. Compare United States v. Kuch, 288 F. Supp. 439, 444-45 (D.D.C. 1968) (rejecting a claim that the Neo-American Church, devoted to drug use, is a genuine religion), with People v. Woody, 394 P.2d 813, 821-22 (Cal. 1964) (ruling that the use of peyote is a bona fide religious practice of the Native American Church).
181. 366 U.S. 599, 601, 609 (1961).
182. Id. at 605 (emphasis added).
183. See id. at 608-09.
184. 490 U.S. 680 (1989), aff'g Hernandez v. Commissioner, 819 F.2d 1212 (1st Cir. 1987), and Graham v. Commissioner, 822 F.2d 844 (9th Cir. 1987). It is admittedly less than clear that the government as taxing authority is a "third party" akin to the "ordinary commercial businesses" at issue in Alamo. Nevertheless, it is clear that, as taxing authority, the government shares many qualities with other commercial actors, primarily as a creditor asserting claims against the religious debtor. In this sense, the government is not acting in its police power in the abstract, but as a third party seeking payment.
185. Hernandez, 490 U.S. at 685. According to the Court, "auditing" is the process in Scientology by which a person becomes aware of his or her immortal spiritual dimension. Id. at 684.
186. 493 U.S. 378, 389-90 (1990).
187. Id. at 389.
188. 319 U.S. 105 (1943).
189. 321 U.S. 573 (1944).
190. Follett, 321 U.S. at 577; Murdock, 319 U.S. at 109.
191. Murdock, 319 V.S. at 110.
192. Id. at 109 (noting that the activity was "more than preaching ... more than distribution of religious literature. It is a combination of both"); cf. Follett, 321 U.S. at 576 ("We must [] accept as bona fide appellant's assertion that he was 'preaching the gospel' by going 'from house to house presenting the gospel of the kingdom in printed form.'"). The Murdoch Court acknowledged that "[s]ituations will arise where it will be difficult to determine whether a particular activity is religious or purely commercial." 319 U.S. at 110. Although the Court characterized this distinction as "vital," id., it offered little guidance as to how to make it. Relying on biblical references, id. at 108 (quoting Acts 20:20 and Mark 16:15), and analogies to "more orthodox" types of religions, id. at 110, the Court essentially took the view that, whatever else may or may not be "religious" exercise, "it plainly cannot be said that petitioners were engaged in a commercial rather than a religious venture." Id. at 111. It would appear that, in fact, the distinction between the "religious" and the "commercial" was not "vital" because, less than a generation later, in Swaggart, the Court concluded that Murdoch and Follett turned on the prior restraint caused by the state's laws involved in those earlier cases. Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 385-92 (1990) (holding that the levying and collection of generally applicable sales and use taxes imposed no constitutionally significant burden on the appellants (evangelists)). Although the problem of prior restraints is beyond the scope of this Article, it would appear that judicial discomfort with prior restraints is, like concern for third-party harm, one of several constitutional values that courts consider when approaching the definitional question.
193. See Davis v. Reason, 133 U.S. 333, 347-48 (1890) (upholding a law requiring Mormons to swear that they were not polygamists); Reynolds v. United States, 98 U.S. 145, 166-68 (1878) (upholding a conviction for polygamy). Another interesting example, which produced a very different result, is the Lukumi case, where the Court struck down a municipal ordinance intended to stop members of the Santeria faith from sacrificing animals, as required by their faith. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993). The Lukumi case contains a thoughtful and thorough discussion of the role of animal sacrifice in a variety of religions. See id. at 524-30. Unless one believes animals should be treated as third parties in the religious liberty context, it is difficult to see how anyone in Hialeah, Florida would have been harmed by permitting the Santeria to sacrifice pigeons, doves, ducks, guinea pigs, goats, sheep or turtles.
194. The Court undoubtedly believed that all of society would suffer if plural marriage were tolerated. In 1890, the Court upheld an act of Congress annulling the charter of the Church of Latter Day Saints and seizing most of its real estate because the church's basic tenet of polygamy was a "barbarous practice" and a "blot on our civilization." Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 49 (1890). Yet "civilization" is a very broad category. Today, it is difficult to identify who, exactly, would suffer any but the most attenuated harm if the Court were to recognize a plural marriage free exercise exemption.
195. Id.
196. If courts take Smith's hybrid rights theory seriously, perhaps they should recognize a hybrid religious and personal privacy right, conjoining with the right of free exercise the rights enumerated in such decisions as Roe v. Wade, 410 U.S. 959 (1973), Loving v. Virginia, 388 U.S. 1 (1967), or Griswold v. Connecticut, 381 U.S. 479 (1965). Thus, they could recognize a free exercise exemption for plural marriage.
197. See Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407 (8th Cir. 1996), reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996) (holding that the Religious Freedom Restoration Act of 1993 is a defense to a fraudulent conveyance action), cerf. granted sub nom. Christians v. Crystal Evangelical Church, 521 U.S. 1114 (1997) (vacating the judgment and remanding in light of the holding in City of Boerne v. Flores, 521 U.S. 507 (1997) (striking the Religious Freedom Restoration Act of 1993 as applied to a state zoning law)), aff'd 141 F.3d 854 (8th Cir. 1998), cert. denied, 119 S. Ct. 43 (1998).
198. 42 U.S.C. § 2000bb-1 (1994).
199. See 11 U.S.C. § 548 (1994).
200. See In re Young, 82 F.3d at 1410; see also Laurie Goodstein, Religious Groups Fight U.S. in Bankruptcy Case, WASH. POST, May 23, 1994, at Al;
201. Pierre Thomas, Clinton Stops Justice Department from Seeking Forfeiture of Tithes, WASH. POST, Sept. 16, 1994, at A8.
202. See In re Young, 82 F.3d at 1410.
203. See 11 U.S.C. § 548. The Religious Liberty and Charitable Contribution Protection Act amended the Bankruptcy Code to clarify that charitable contributions are not fraudulent transfers unless made with fraudulent intent. The bill applied to pending cases and it preempts state court litigation once a bankruptcy petition has been filed. It protects any organization that is tax-exempt under § 170(c)(1) or (c)(2) of the Internal Revenue Code, without distinguishing religious and secular charities.
204. See Christians v. Crystal Evangelical Free Church (In re Young), 148 B.R. 886, 896 (Bankr. D. Minn. 1992). In the bankruptcy court, the parties stipulated that the only significant issue to resolve was whether the Youngs received reasonably equivalent value in exchange for their donations. The bankruptcy court, acting prior to the enactment of RFRA, granted the trustee's motion and denied the Youngs' motion, holding that the debtors had received no economic value for their tithe. Any benefit the Youngs received was religious, not economic, in nature. See id. at 893-94 & n.10.
205. See Christians v. Crystal Evangelical Free Church (In re Young), 152 B.R. 939, 948-49 (Bankr. D. Minn. 1993). On appeal from the bankruptcy court, the district court upheld the bankruptcy court's finding that the debtors received inadequate consideration. See id. at 949. Goodwill and church services, the district court concluded, were not the sort of fairly concrete benefits that constitute reasonably equivalent value for fraudulent conveyance purposes. See id. at 950.
206. 374 U.S. 398 (1963).
207. 406 U.S. 205 (1972).
208. 42 U.S.C. § 2000bb-1 (1994). RFRA's stated purposes are: "(1) to restore the compelling interest test as set forth in Sherbert v. Verner ... and Wisconsin v. Yoder ... and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." Id. § 2000bb(b). As discussed in Part II, I call this set of tests "strong" protection for religious liberty under the Free Exercise Clause, as distinguished from the "weak" protection afforded by Smith and Boerne.
209. Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1416-17 (8th Cir. 1996), reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996), cert. granted, vacated, and remanded, 521 U.S. 1114 (1997), aff'd 141 F.3d 854 (8th Cir. 1998), cert. denied, 119 S. Ct. 43 (1998).
210. Id. at 1417.
211. Id. (quoting Werner v. McCotter, 49 F.3d 1476, 1480 n.1 (10th Cir. 1995) (citation omitted)). This statement poses several problems. First, it is not clear what distinction a court could draw between a "religious belief," on the one hand, and a "philosophy or way of life," on the other. Certainly it is difficult to understand how, as the Young court concluded, spending money (tithing) is the former rather than the latter. It is also difficult to understand how a court using the Werner formulation could ever determine the sincerity of belief if, as the Hernandez court noted, "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Commissioner, 490 U.S. 680, 699 (1988); see also Employment Div. v. Smith, 494 U.S. 872, 887 (1990) ("It is no more appropriate for judges to determine the 'centrality' of religious beliefs before applying a 'compelling interest' test in the free exercise field, than it would be for them to determine the 'importance' of ideas before applying the 'compelling interest' test in the free speech field."). The Young court addressed none of these problems.
212. In re Young, 82 F.3d at 1418 (citing Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995)).
213. Id. There are other tests that could be applied to determine whether a law imposes a "substantial burden." For instance, a court could consider whether, like the Ninth Circuit, a religious practice is "mandated" by the adherent's religion. Under this test: "the religious adherent ... has the obligation to prove that a governmental [action] burdens the adherent's practice of his or her religion ... by preventing him or her from engaging in conduct ... which the faith mandates. This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine." Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir. 1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680 (1988)). Although tithing (or other forms of religious spending) may be strongly encouraged, it is unclear whether it is mandated, although the meaning of the term "mandate" is admittedly unclear. It is also not clear that tithing commitments must be fulfilled in cash.
214. In re Young, 82 F.3d at 1418.
215. See id.
216. But compare the reasoning of the Bankruptcy Court in In re Newman, which held that tithing is complete in the giving (not necessarily the keeping) of the tithe. See Morris v. Midway Southern Baptist Church (In re Newman), 183 B.R. 239, 251 (Bankr. D. Kan. 1995).
217. In re Young, 82 F.3d at 1418-19 (citing In re Tessier, 190 B.R. 396, 403-04 (Bankr. D. Mont. 1995)). It is not entirely clear why the Young court did not find avoidance of the tithe "merely incidental." Id.
218. See Tony & Susan Alamo Found, v. Secretary of Labor, 471 U.S. 290, 299 (citing Donovan v. Tony & Susan Alamo Found., 567 F. Supp. 566, 573 (W.D. Ark. 1982); Donovan v. Tony & Susan Alamo Found., 722 F.2d 397, 400 (8th Cir. 1983)).
219. Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943).
220. See Freeman, supra note 27, at 1534-48.
221. See Greenawalt, supra note 27, at 762-76.
222. WITTGENSTEIN, supra note 51, § 66, 31-32. If one believes the Old and New Testaments are a guide, it is actually not so clear as one may think. See Keating, supra note 1, at 1055. Both texts contain many references to an obligation to tithe, or at least to an obligation to give back to God out of the material things we are given. Some Old Testament examples include Exodus 23:19 ("Bring the best of the first fruits of your soil to the house of the Lord your God."), and Malachi 3:8 ("'Will a man rob God? Yet you rob me. But you ask, "How do we rob you?' In tithes and offerings."). For more Old Testament references to tithing, see Genesis 28:22 ("[A]nd this stone that I have set up as a pillar will be God's house, and of all that you give me I will give you a tenth.") and Deuteronomy 26:1-14 (explaining procedures for offering first fruits). Yet the Bible would also appear to command the faithful to pay their debts. In the Old Testament, Psalms 37:21 says, "[t]he wicked borrow and do not repay, but the righteous give generously ...." Another Old Testament passage, Proverbs 3:27-28, says: "Do not withhold good from those who deserve it, when it is in your power to act. Do not say to your neighbor, 'Come back later; I'll give it tomorrow,' when you have it with you." Jesus rebuked the Pharisees for focusing on their tithe at the expense of justice to their fellow men in Luke 11:42: "'Woe to you Pharisees, because you give God a tenth ... but you neglect justice and the love of God. You should have practiced the latter without leaving the former undone.'" Since the Bible contains no priority-of-payment rules, one may ask how, as a matter of ecclesiastical law, insolvent debtors should spend their limited funds.
223. See generally Lon Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).
224. The nature of the harm in question is discussed in detail infra Part
225. Consider, in this connection, the Lyng case, where Justice O'Connor refused to stop the federal government from building a road that would "'virtually destroy the ... Indians' ability to practice their religion.'" Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451-52 (1988). If the property in question, the Chimney Rock area of the Six Rivers National Forest, was private property instead, would the result have
226. See generally Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 714-17 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
227. Id. at 696. There was no apparent dispute about the sincerity of their beliefs. See id. The court cited certain passages of the Bible as support for its view of their credibility. See id. at 696 n.2 (citing, e.g., Genesis 2:24). As discussed below, this may have established the landlords' sincere "belief" - but does it also establish that leasing real property is an exercise of that "belief?"
228. Thomas and Baker were not married to each other. Baker's husband, Gary Baker, elected not to proceed with the litigation before the Ninth Circuit Court of Appeals. See id. at 696 n.1.
229. Id.
230. Id. at 696.
231. See id. at 697 (citing ALASKA STAT. § 18.80.240(1) (Michie 1998) and ANCHORAGE ALASKA MUN. CODE § 5.20.020(A)).
232. Id. (citing ALASKA STAT. § 18.80.240(1)).
233. See id. at 697.
234. See id. at 697 n.4. The opinion noted that the district court for the District of Alaska found for the landlords under both the Free Exercise Clause and RFRA. See id. The intercession of Boerne, however, see infra notes 307-17 and accompanying text, eliminated the use of RFRA against state laws such as Alaska's fair housing laws.
235. See Thomas, 165 F.3d at 717. The opinion considered the claims of the landlords to be "ripe," since the landlords had "'concrete plans'" to violate the antidiscrimination laws and there was therefore a "'reasonable threat'" of prosecution. Id. at 698 (citing San Diego Gun Rights Comm'n v. Reno, 98 F.3d 1121, 1126-27 (9th Cir. 1996)). It apparently did not matter to the Thomas court that the Alaska housing and equal opportunity authorities had never even "heard of" - much less prosecuted - the landlords. See id. at 718 (Hawkins, J., dissenting).
236. See id. at 700. (citing Employment Div. v. Smith, 494 U.S. 872 (1990)).
237. See Smith, 494 U.S. at 878-82. "Neutrality" is a complex and loaded term. For most professional readers, an extended discussion of the contours of "neutrality" would be redundant or boring; for non-professionals, it would likely be incoherent. Professor Laycock has noted that "[t]hose who think neutrality is meaningless have a point. We can agree on the principle of neutrality without having agreed on anything at all." Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 994 (1990). He notes, by way of example, that in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 13 (1988), Justice Brennan and Justice Scalia "fundamentally disagreed on almost every issue in the case, but they both claimed to be neutral. Both of them used the word 'neutrality,' but neither of them defined it." Laycock, supra, at 994 (footnote omitted). Yet Professor Laycock is also correct that neutrality has "aspirational" value, that we generally want to believe that a state separated from church can still nourish religion without preference or entanglement. This is, of course, a difficult proposition, well beyond the scope of this Article.
238. See generally Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. PA. L. REV. 555 (1991).
239. Thomas, 165 F.3d at 700 (footnote omitted).
240. See id. at 702.
241. Id. at 696 (footnote omitted).
242. Id. at 712.
243. See id. at 713. In fact, it appears that the choice was more like that held to be constitutionally permissible in Braunfeld v. Brown, where Saturday Sabbatarians were denied the right to open shop on Sunday. 366 U.S. 599, 601, 609 (1961); see also supra notes 157-59 and accompanying text. Like the Jews in Braunfeld, the landlords were not, in fact, "compelled" to do anything. In Sherbert, by contrast, the claimant was affirmatively required to work on Saturday in order to be eligible for unemployment benefits. See Sherbert v. Verner, 374 U.S. 398, 402, 406-09 (1963); see also infra text accompanying notes 250-64.
244. 455 U.S. 252, 261 (1982).
245. Tony & Susan Alamo Found, v. Secretary of Labor, 471 U.S. 290, 299 (1985) (citing Donovan v. Tony & Susan Alamo Found., 567 F. Supp. 566, 573, (W.D. Ark. 1982); Donovan v. Tony & Susan Alamo Found., 722 F.2d 397, 400 (8th Cir. 1983)).
246. Thomas, 165 F.3d at 692, 712 (citing United States v. Lee, 455 U.S. 252, 257 (1982)).
247. See Lee, 455 U.S. at 257. The Lee court reasoned that "[i]t is not within 'the judicial function and judicial competence' ... to determine whether [the Amish] or the Government has the proper interpretation of the Amish faith; '[c]ourts are not arbiters of scriptural interpretation.'" Id. (quoting Thomas v. Review Bd. of Indep. Employment Sec. Div., 450 U.S. 707, 716 (1981)).
248. See Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1520 (1999) (noting in a discussion about discrimination laws that "[t]he reason for most restrictions on conduct is precisely that people think the conduct does harm others"). Professor Volokh acknowledges that the issue is less whether there is harm than "who ultimately defines what constitutes infringement of the private rights of others ...." Id. at 1520-21 (quotation marks omitted). As discussed below, the problem with Thomas is that, by treating the activity of landlord as a form of religious exercise cloaked in strict scrutiny, the court of appeals failed to take seriously its obligation to balance either side of the equation.
249. Thomas, 165 F.3d at 712 (citing Attorney General v. Desilets, 636 N.E.2d 233, 238 (Mass. 1994) (applying Massachusetts' state constitution)).
250. It is, of course, conceivable that large-scale employment exemptions could harm third parties in a variety of ways, including loss of productivity to employers, increased unemployment insurance premiums, etc. In Sherbert, however, such harm appeared not to be a realistic problem. Indeed, the Court noted that the state did not even raise the issue. See Sherbert v. Verner, 374 U.S. 398, 407 (1963).
251. See Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
252. I appreciate the irony of this characterization. Many have argued persuasively that the "strong" standard articulated in Sherbert was "feeble in fact." Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L. REV. 437, 446-47 (1994).
253. 374 U.S. 398 (1963). Indeed, Sherbert, but not its predecessors, forms the basis of RFRA.
254. See generally Sherbert, 374 U.S. at 403-09.
255. 310 U.S. 296 (1940).
256. See id. at 300.
257. Id. at 302 (quoting CONN. GEN. STAT. § 6294 (Supp. 1937)).
258. See McConnell, supra note 5, at 1114-16.
259. 98 U.S. 145, 166 (1878).
260. 133 U.S. 333, 338 (1890).
261. See Davis, 133 U.S. at 338-40; Reynolds, 98 U.S. at 166 ("Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.").
262. Cantwell, 310 U.S. at 303-04 (citing Reynolds v. United States, 98 U.S. 145 (1878); Davis v. Season, 133 U.S. 333 (1890)) (emphasis added).
263. Cf. Gressman & Carmella, supra note 25, at 78 (discussing "signals of movement toward" balancing "as early as 1940").
264. Cantwell, 310 U.S. at 304.
265. Id. at 305.
266. See United States v. Ballard, 322 U.S. 78, 86-88 (1944).
267. See Murdock v. Pennsylvania, 319 U.S. 105, 110-17 (1943).
268. See Follett v. McCormick, 321 U.S. 573, 576-78 (1944).
269. Ballard, 322 U.S. at 79, 86.
270. Id. at 80.
271. See id. at 86 ("[W]e do not agree that the truth or verity of [defendants'] religious doctrines or beliefs should have been submitted to the jury .... The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.'" (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1871))).
272. See Follett, 321 U.S. at 577; Murdock, 319 U.S. at 108-09. Another solicitation case, Larson v. Valente, 456 U.S. 228 (1982), raised similar issues. There, the State of Minnesota required religious organizations that received more than half of their total contributions from non-members to register with the Minnesota Department of Commerce before soliciting contributions in the state of Minnesota. See Larson, 456 U.S. at 231 (citing MINN. STAT. § 309.52 (1969 & Supp. 1982)). The Court struck these provisions under the Establishment Clause as effectively singling out the Unification Church, giving denominational preference to other, better established religions. See id. at 246. The Court, per Justice Brennan, acknowledged that "the State of Minnesota has a significant interest in protecting its citizens from abusive practices in the solicitation of funds for charity ...." Id. at 248. Minnesota's fifty percent rule, however, was not sufficiently "closely fitted" to this legislative goal to justify the preference in fundraising it effectively gave to some religious groups. Id. at 255. Protecting third parties, in other words, was a basis for balancing harms, even if the Court would not necessarily find such harm a basis for upholding a law.
273. Other concerns evident in these cases include the rights to speech, expression and association contained in the First Amendment.
274. See generally T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 943-44 (1987).
275. The levels-of-scrutiny approach was first suggested in United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938), in which the Court recognized that certain rights would receive increased judicial protection in the form of a "more searching judicial inquiry."
276. 374 U.S. 398 (1963).
277. See id at 406-09.
278. See id. at 404.
279. See id. at 404-06.
280. Id. at 404. This analogy seems strained in light of the fact that unemployment benefits were in question. A fine implies that the state took something from Sherbert for exercising her right to worship. But the state provided benefits to which she was entitled notwithstanding the observance requirements of her religion.
281. Id. at 403 (citing Reynolds v. United States, 98 U.S. 145 (1878); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Cleveland v. United States, 329 U.S. 14 (1946)). It is not clear how the polygamy forbidden in Reynolds - which presumably involved consensual marriages among adults - threatened "public safety, peace or order." Id. (emphasis added).
282. See Braunfeld v. Brown, 366 U.S. 599, 606-07 (1961).
283. Sherbert, 374 U.S. at 408-09 (citing Note, State Sunday Laws and the Religious Guarantees of the Federal Constitution, 73 HARV. L. REV. 729, 741-45 (1960)).
284. This is not a terribly persuasive argument. Closing on Saturdays would have deprived Jews of a significant amount of business, which they may or may not have made up if permitted to open on Sunday. If one believes, as the Braunfeld Court claimed to believe, that Sunday closing laws reflected the otherwise legitimate and "secular" desire to have a "day of rest," then presumably most shoppers would have been resting on Sunday, anyway. Sunday Sabbatarians would therefore have lost little business and suffered little harm. Nevertheless, it was reasonable to believe that some business would have been lost, and such loss would have resulted in some third-party harm.
285. Sherbert, 374 U.S. at 407.
286. See Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 FORDHAM L. REV. 883, 885 (1994).
287. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (applying the rational basis standard to prison regulations which hindered the petitioners' ability to attend religious services); Goldman v. Weinberger, 475 U.S. 503, 510 (1986) (applying the rational basis standard to military regulations which forbade the petitioner from wearing a yarmulke); see also Ira C. Lupu, Of Time and the RFRA: A Lawyer's Guide to the Religious Freedom Restoration Act, 56 MONT. L. REV. 171, 191-98 (1995).
288. See, e.g., Baz v. Walters, 782 F.2d 701, 708 (7th Cir. 1986); Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F. Supp. 254, 258 (E.D. Pa. 1984) (mem.); Doherty v. Wilson, 356 F. Supp. 35, 40 (M.D. Ga. 1973); Barlow v. Blackburn, 798 P.2d 1360, 1366 (Ariz. 1990).
289. Compare Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1073 (6th Cir. 1987) (Boggs, J., concurring), with, e.g., Spence v. Bailey, 465 F.2d 797, 800 (6th Cir. 1972), and Moody v Cronin, 484 F. Supp. 270, 277 (C.D. Ill. 1979).
290. See Eisgruber & Sager, supra note 226, at 446-47. Professor Steven Smith has argued that during the Sherbert era, balancing by the Supreme Court was illusory, since the Court did not view the disputes in, for example, Yoder as involving true conflicts of ends, but only of means. See Steven D. Smith, Free Exercise Doctrine and the Discourse of Disrespect, 65 U. COLO. L. REV. 519, 529-31 (1994). Thus, Yoder evaded the obligation to balance harms because the Amish were viewed as proxy for the state in satisfying the legislative goal of educating children. It is interesting to consider whether Yoder would have produced the same result if, instead of seeking an exemption from compulsory education, the Amish in that case sought to engage in conduct that could have harmed third parties, for instance, driving slow-moving vehicles without proper warning signs. Under the constitutions of Wisconsin and Minnesota, the Amish have been exempted from such requirements. See, e.g., State v. Hershberger, 462 N.W.2d 393, 399 (Minn. 1990); Miller v. State, 549 N.W.2d 235, 242 (Wis. 1996).
291. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
292. See id. at 874. The drug rehabilitation center where the claimants worked had a no-tolerance rule for its employees. During the state court proceedings, one of their supervisors testified that employees would similarly have been dismissed had they taken wine during Catholic Mass.
293. See id.
294. See Smith v. Employment Div., 721 P.2d 445, 450-51 (Or. 1986).
295. See Smith, 494 U.S. at 879.
296. Smith, 494 U.S. at 885 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1878)).
297. See id. at 877-79. The Court did not explain why or whether this distinction mattered. Nor did it explain, given that Smith was also an employment case, why the Court should not be bound by its precedent in that area. Presumably, the illegality of ingesting peyote justified the distinction.
298. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1988).
299. See Gillette v. United States, 401 U.S. 437, 461 (1971).
300. See Prince v. Massachusetts, 321 U.S. 158, 168-69 (1944).
301. See Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).
302. See United States v. Lee, 455 U.S. 252, 258 (1982).
303. See Gressman & Carmella, supra note 25, at 73-74 ("A major theme of the Smith opinion ... is that the balancing of competing interests is a function better left to the legislative bodies." (footnote omitted)); id. at 86 ("Smith rejected the balancing approach for generally applicable, facially neutral laws ....").
304. Professor Steven D. Smith has argued that even before Smith, the Court never really "balanced" competing interests in the religious liberty context. See Smith, supra note 264, at 530-31. As discussed below, to the extent this is true, it is an argument for using equity jurisprudence as the basis for balancing harms in this context.
305. See, e.g., John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith, 25 IND. L. REV. 71, 75 (1991) (arguing that Smith "violates core principles expressed in our theory of just punishment within a framework of constitutional criminal law"); James D. Gordon III, Free Exercise on the Mountaintop, 79 CAL. L. REV. 91, 114-15 (1991) (contending that Smith "'depublished' the Free Exercise Clause");
306. Douglas Laycock, The Supreme Court's Assault on Free Exercise, and the Amieus Brief that Was Never Filed, 8 J.L. & RELIGION 99, 102 (1990) (explaining that Smith was "inconsistent with the original intent, inconsistent with the constitutional text, inconsistent with doctrine under other constitutional clauses, and inconsistent with precedent"); Ira C. Lupu, Employment Division v. Smith and the Decline of Supreme Court-Centrism, 1993 BYU L. REV. 259, 260 (describing Smith as "substantively wrong and institutionally irresponsible"); McConnell, supra note 5, at 1120 (stating that Smith's "use of precedent is troubling, bordering on the shocking"); Roald Mykkeltvedt, Employment Division v. Smith: Creating Anxiety by Relieving Tension, 58 TENN. L. REV. 603, 621 (1991); Smith, supra note 264, at 575 (criticizing the majoritarian "intolerance" reflected in Smith). Not all scholars have disparaged the Smith decision.
307. See, e.g., Marci A. Hamilton, The Belief/Conduct Paradigm in the Supreme Court's Free Exercise Jurisprudence: A Theological Account of the Failure to Protect Religious Conduct, 54 OHIO ST. L.J. 713, 749 (1993) ("Smith is not radically different from its forerunners ....");
308. Marci A. Hamilton, The Constitutional Rhetoric of Religion, 20 U. ARK. LITTLE ROCK L.J. 619, 619 (1998) (arguing that Smith represents a "more accurate and vital image of religion" than RFRA);
309. William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 309 (1991).
310. Lupu, supra note 279, at 269.
311. See Employment Div. v. Smith, 494 U.S. 872, 877, 881-82, 890 (1990). In the Lukumi case, the Court used strict scrutiny to strike a facially neutral city ordinance forbidding ritual slaughter because its under-inclusive scope had the effect of impermissibly targeting the Santeria religion. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993).
312. James M. Donovan, Restoring Free Exercise Protections By Limiting Them: Preventing a Repeat of Smith, 17 N. ILL. U. L. REV. 1, 45 n.18 (1996).
313. Smith, 494 U.S. at 881. This assertion, of course, is facially wrong, unless one believes that Sherbert, too, involved a second, protected liberty interest.
314. See id. at 882. Professor McConnell has noted that this may have been a rather disingenuous statement by the Court. See McConnell, supra note 5, at 1120-21. On this logic, Wisconsin v. Yoder would have been wrong, since the adherents in that case had no independent constitutional right to withhold their children from school.
315. See Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 704-05 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
316. See generally Steckler v. United States, Civ. A. No. 96-1054, 1998 WL 28235, at *1-2 (E.D. La. Jan. 26, 1998) (rejecting a hybrid rights claim including takings under the Fifth Amendment); Peter M. Stein, Smith v. Fair Employment and Housing Commission: Does the Right to Exclude, Combined with Religious Freedom, Present a "Hybrid Situation" under Employment Division v. Smith, 4 GEO. MASON L. REV. 141 (1995).
317. See Smith, 494 U.S. at 881.
318. Follett v. Town of McCormick, 321 U.S. 573, 577 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943).
319. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (recognizing that certain rights would receive increased judicial protection in the form of a "more searching judicial inquiry")
320. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
321. William L. Esser, IV, Religious Hybrids in the Lower Courts: Free Exercise Plus or Constitutional Smokescreen?, 74 NOTRE DAME L. REV. 211, 242 (1998); see also Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 705-07 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999) (recognizing the hybrid rights exception to fair housing laws where religious landlords had "colorable" free exercise and Fifth Amendment claims).
322. Cf. EEOC v. Catholic Univ. of America, 83 F.3d 455, 467 (D.C. Cir. 1996) (holding that proper hybrid rights claims must be independently viable); Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir. 1995) (same).
323. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 559 (1993) (Souter, J., concurring).
324. Id. at 567.
325. See Frazee v. Illinois Dep't of Employment Sec., 489 U.S. 829, 835 (1989); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 140-41 (1987); Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 719 (1981).
326. See Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990).
327. Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 SUP. CT. REV. 323, 335.
328. Lukumi, 508 U.S. at 567 (Souter, J., concurring).
329. Joanne C. Brant, Taking the Supreme Court at Its Word: The Implications for RFRA and Separation of Powers, 56 MONT. L. REV. 5, 30 (1995).
330. Esser, supra note 291, at 240 (citation omitted).
331. Id. (citation omitted).
332. See Thomas v. Equal Rights Comm'n, 165 F.3d 692 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
333. 42 U.S.C. § 2000bb-1 (1994).
334. Id. § 2000bb(b)(2).
335. As discussed above, see supra text accompanying notes 23-52, while it is difficult, and perhaps impossible, to "define" religion, there are good reasons to try to form a definition. How can a court protect a right if it does not know the basis of the right? RFRA avoids the problem, containing no definition of religion. RFRA instead defers to First Amendment case law on the question. See 42 U.S.C. § 2000bb-2(4) (defining the exercise of religion to mean the exercise of religion under the First Amendment).
336. See 42 U.S.C. § 2000bb-1(a).
337. 521 U.S. 507 (1997).
338. See Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996), rev'd, 521 U.S. 507 (1997).
339. See Boerne, 521 U.S. at 536.
340. Id. at 507-08 (quoting U.S. CONST. amend. XIV, § 5).
341. Id. at 519.
342. Id. at 519-20. "RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections." Id. at 532.
343. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) ("[A] law targeting religious beliefs as such is never permissible . . . .").
344. See Boerne, 521 U.S. at 533-36.
345. Id. at 537 (Scalia, J., concurring) (quoting Employment Div. v. Smith, 494 U.S. 872, 879 (1990), and United States v. Lee, 455 U.S. 252, 263 n.3 (1982)).
346. Id. at 532.
347. The Boerne Court characterized RFRA as "a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Id. at 534. This trend appears to have its roots in United States v. Lopez. 514 U.S. 549 (1995) (limiting the reach of the Commerce Clause).
348. As noted above, the Lukumi case also suggests a third path, if one can show that underinclusive legislation impermissibly targets religious activity. See Lukumi, 508 U.S. at 543-44; see also supra note 281 and accompanying text.
349. See Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d 854, 856 (8th Cir. 1998).
350. See Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 702 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
351. Every state has enacted one of the uniform fraudulent transfer laws, see UNIF. FRAUDULENT CONVEYANCE ACT, 7A U.L.A. 2 (1918);
352. UNIF. FRAUDULENT TRANSFER ACT, 7A U.L.A. 266 (1984), or a predecessor statute with similar effect. See, e.g., VA. CODE ANN. § 55-81 (Michie 1991); An Acte agaynst fraudulent Deedes Gyftes Alienations, &c., 1571, 13 Eliz., ch. 5 (Eng.)).
353. See 11 U.S.C. § 544 (1994).
354. First Fed. Sav. & Loan Ass'n v. Napoleon, 701 N.E.2d 350, 354-55 (Mass. 1998) (citing Jorden v. Ball, 258 N.E.2d 736 (Mass. 1970); Blumenthal v. Blumenthal, 21 N.E.2d 244 (Mass. 1939)).
355. Id. at 355.
356. See Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d 854, 857 (8th Cir. 1998).
357. See Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1414 (8th Cir. 1996) (citing In re Newman, 183 B.R. 239 (Bankr. D. Kan. 1995)), reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996), cert. granted, vacated, and remanded, 521 U.S. 1114 (1997), aff'd 141 F.3d 854 (8th Cir.1998), cert. denied, 119 S. Ct. 43 (1998).
358. See In re Young, 82 F.3d at 1417 (citing In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995)).
359. In re Newman, 183 B.R. at 251-52. Interestingly, the Newman bankruptcy court cited the Young district court, which was, after the Newman bankruptcy court opinion, reversed by the Eighth Circuit Court of Appeals. In re Young, 82 F.3d 1407, reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996).
360. In re Newman, 183 B.R. at 252.
361. See 11 U.S.C. §§ 1321-1329 (1994). Chapter 13 is similar to Chapter 11 of the Bankruptcy Code, in that its goal is reorganization rather than liquidation. Chapter 13 reorganizations are available only to individuals of somewhat limited means who have a regular income.
362. See In re Tessier, 190 B.R. at 396. The Tessier court also found RFRA unconstitutional. See id. at 405-07. The procedural context of Tessier was quite different from Young or Newman, as the Tessier case involved confirmation of a plan of reorganization, under which the debtor was required to pay all of its "projected disposable income" for three years to creditors. Id. at 397. Charitable contributions were not considered "reasonable living expense[s]," and are not part of the definition of "disposable income" for purposes of this calculation. Id. at 403.
363. Id. at 405. It is not clear how the Tessier court developed this analysis.
364. Id.
365. Id. (citing Sherbert v. Verner, 374 U.S. 398, 406 (1963)). This is not the Sherbert test. As discussed above, the "feeble" nature of Sherbert-era protection for religious liberty was far stingier to religious claimants. See supra notes 226, 264 and accompanying text.
366. Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1420 (8th Cir. 1996), reh'g en banc denied, 89 F.3d 494 (8th Cir. 1996), cert. granted, vacated, and remanded, 521 U.S. 1114 (1997), aff'd 141 F.3d 854 (8th Cir.1998), cert. denied, 119 S. Ct. 43 (1998). As discussed below, it could be argued, contra the Young court, that Tessier was not "substantively similar" to the Youngs' case since, among other reasons, the Tessier trustee's success would directly prevent a future religious exercise, whereas the Youngs' trustee was merely seeking to undo that which the Youngs' had already done. See id.
367. Id.
368. See 42 U.S.C. § 2000bb-1(b) (1994).
369. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989); see also Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 385-92 (1990).
370. See United States v. Lee, 455 U.S. 252, 254-61 (1982); see also Keating, supra note 1, at 1049.
371. See generally Kathleen M. Cerne, Honor Thy Creditors?: The Religious Debtor's Constitutional Conflict with Section 1325(b), 98 COM. L.J. 257 (1993);
372. Michael M. Duclos, A Debtor's Right to Tithe in Bankruptcy Under the Religious Freedom Restoration Act, 11 BANKR. DEV. J. 665 (1995);
373. Nicholas A. Franke, Servitude Without Solvency: The Debtor's Right to Continue Religious Contributions During a Chapter 13 Rehabilitation Plan, 66 WASH. U. L.Q. 183 (1988); Keating, supra note 1; Lipson, supra note 134;
374. Leonard J. Long, Religious Exercise as Credit Risk, 10 BANKR. DEV. J. 119 (1993-1994);
375. Richard Collin Mangrum, Tithing, Bankruptcy and the Conflict Between Religious Freedom and Creditor's Interests, 32 CREIGHTON L. REV. 815 (1999); Bruce W. Megard, Jr., Tithing and Fraudulent Transfers in Bankruptcy: Confirming a Trustee's Power to Avoid the Tithe After City of Boerne v. Flores, 71 AM. BANKR. L.J. 413 (1997);
376. Donald R. Price & Mark C. Rahdert, Distributing the First Fruits: Statutory and Constitutional Implications of Tithing in Bankruptcy, 26 U.C. DAVIS L. REV. 853 (1993);
377. Todd J. Zywicki, Rewrite the Bankruptcy Laws, Not the Scriptures: Protecting a Bankruptcy Debtor's Right to Tithe, 1998 WIS. L. REV. 1223; Troy S. Anderson, Comment, Christians v. Crystal Evangelical Free Church (In re Young): Why Would "Christians" Take Money Out of the Church Offering Plate?, 4 REGENT U. L. REV. 177 (1994);
378. Steven Hopkins, Comment, Is God a Preferred Creditor? Tithing as an Avoidable Transfer in Chapter 7 Bankruptcies, 62 U. CHI. L. REV. 1139 (1995);
379. Carol Koenig, Comment, To Tithe or Not to Tithe: The Constitutionality of Tithing in a Chapter 13 Bankruptcy Budget, 32 SANTA CLARA L. REV. 1231 (1992);
380. Bruce Edward Kosub & Susan K Thompson, Note, The Religious Debtor's Conviction to Tithe as the Price of a Chapter 13 Discharge, 66 TEX. L. REV. 873 (1988);
381. Aric D. Martin, Comment, Chapter 13 and the Tithe: Is God a Creditor?, 56 OHIO ST. L. REV. 307 (1995);
382. Brian Wildermuth, Note, In re Lee: Tithing as Grounds for Dismissal Under Section 707(b) of the Bankruptcy Code, 26 U. TOL. L. REV. 725 (1995).
383. 11 U.S.C. § 548(a)(2) (1994). Although beyond the scope of this Article, the Charitable Protections Act has much to commend it and raises some interesting questions of its own. In expanding the category of protected transactions beyond solely those involving religion, the drafters wisely avoided the Establishment Clause problem that may have arisen by "promoting" religion. See Texas Monthly v. Bullock, 489 U.S. 1, 1 (1989). The Charitable Protections Act suggests, however, by negative inference, that RFRA and Young may not have been strong enough to protect the insolvent religious donor. If, as I argue, Sherbert was not terribly protective of religious liberty in fact, and should not have been used to protect the donations in Young, the clear and discrete carve-out of the Charitable Protections Act appears to be an improvement. Whether Congress should have the power to interfere with state fraudulent conveyance laws, as imported by § 544 of the Bankruptcy Code is, however, another matter, left for further analysis. See generally City of Boerne v. Flores, 521 U.S. 507, 511 (1997) (striking the Religious Freedom Restoration Act of 1993 as applied to a state zoning law).
384. See Keating, supra note 1, at 1049; Lipson, supra note 134, at 303.
385. See, e.g., In re Mortgageamerica Corp., 714 F.2d 1266, 1268-72 (5th Cir. 1983); Wood v. Dummer, 30 F. Cas. 435, 436-38 (C.C.D. Me. 1824) (No. 17,944).
386. Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461 (6th Cir. 1982); see also In re Johnson, 518 F.2d 246, 251 (10th Cir. 1975).
387. See Amussen v. Quaker City Corp., 156 A. 180, 182 (Del. 1931); Geyer v. Ingersoll Publications Co., 621 A.2d 784, 791 (Del. Ch. 1992).
388. Rudy v. Austin, 19 S.W. 111, 113 (Ark. 1892). This equitable maxim is widely cited by courts in the context of fraudulent conveyances. See, e.g., Boston Trading Group, Inc. v. Burnazos, 835 F.2d 1504, 1508 (1st Cir. 1987) (interpreting Massachusetts law); Mercantile Nat'l Bank v. Aldridge, 210 S.E.2d 791, 793 (Ga. 1974); Birney v. Solomon, 181 N.B. 318, 320 (Ill. 1932); First Nat'l Bank v. Frescoln Farms, Ltd., 430 N.W. 2d 432, 436 (Iowa 1988); Lutherville Supply & Equip. Co. v. Dimon, 192 A.2d 496, 498 (Md. 1963); Lafayette Fin. Corp. v. Cunningham, 143 A.2d 700, 702 (R.I. 1958); Durham v. Blackard, 438 S.E.2d 259, 263 (S.C. Ct. App. 1993); Walker v. Loring, 36 S.W. 246, 247 (Tex. 1896); Brimhall v. Grow, 480 P.2d 731, 734 (Utah 1971).
389. See, e.g., In re Mortgageamerica Corp., 714 F.2d at 1266; Dummer, 30 F. Cas. at 435; ; see also Keating, supra note 1, at 1048 (discussing "externalities" created by denying recovery of tithes that are fraudulent conveyances); cf. Zywicki, supra note 340, at 1268 (claiming, without support, that there is "no basis" for the foregoing proposition).
390. Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979).
391. 524 U.S. 498 (1998) (plurality opinion).
392. See id. Justice O'Connor delivered an opinion in which Chief Justice Rehnquist, and Justices Thomas and Scalia joined.
393. Eastern Enters., 524 U.S. at 504. The Takings Clause provides: "[N]or shall private property be taken for public use, without just compensation." U.S. CONST. amend. V. The Takings Clause applies to the states through the Fourteenth Amendment. See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 239 (1897).
394. 26 U.S.C. §§ 9701-9722 (1994 & Supp. II 1997). This Act would have required a company that had long since left the business of coal mining to pay future health benefits for employees (and their dependents) who had been employed by the company when it engaged in coal mining.
395. See Eastern Enters., 524 U.S. at 523 (citing Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979)). Kaiser Aetna held that a court confronting a regulatory takings problem should conduct an "essentially ad hoc, factual inquir[y]" that focuses on (i) the "economic impact of the regulation," (ii) the regulation's "interference with reasonable investment backed expectations," and (iii) the "character of the governmental action." Kaiser Aetna, 444 U.S. at 175. Justice Kennedy, in partial dissent, decried this extraordinary conclusion. The "constant limitation" of the Court's Takings Clause analysis, he wrote, "has been that in all cases where the regulatory taking analysis has been employed, a specific property right or interest has been at stake." Eastern Enters., 524 U.S. at 541 (Kennedy, J., concurring in judgment; dissenting in part). Here, Justice Kennedy pointed out, the Coal Act "does not operate upon or alter an identified property interest." Id. at 540.
396. 524 U.S. at 523 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798)).
397. See, e.g., Brief of Appellant on Remand from the Supreme Court of the United States at 27, Christians v. Crystal Evangelical Free Church (In re Young), 141 F.3d 854 (8th Cir. 1998) (No. 93-2267 MNMI) (citing Michael J. Herbert & Domenic E. Pacetti, Down and Out in Richmond, Virginia: The Distribution of Assets in Chapter 7 Bankruptcy Proceedings Closed During 1984-1987, 22 U. RICH. L. REV. 303, 310-11 & n.30 (1988)) (suggesting that because "some 96% of Chapter 7 bankruptcies are no-asset cases," creditors would suffer little harm by permitting religious debtors to tithe).
398. While that may be rational creditor behavior, it would likely violate the Equal Credit Opportunity Act, which prohibits discriminating in the extension of credit based on such factors. See 15 U.S.C. § 1691(a) (1994) ("It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction ... on the basis of race, color, religion, national origin, sex or marital status ....").
399. Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692 (9th Cir. 1999), opinion withdrawn on grant of reh'g by Thomas v. Anchorage Equal Rights Comm'n, 192 F.3d 1208 (9th Cir. 1999).
400. Id. at 711, 717.
401. Id. at 703. The court gave some attention to the question whether hybrid rights exist. Because "Smith did not overrule Cantwell, Murdock, Follett and Yoder," the court concluded that "[we] are not at liberty to ignore them." Id. Although beyond the scope of this Article, it is worth noting that it is fundamentally unclear whether Smith was simply recognizing a pattern in religious jurisprudence or creating a new rule. Cf. City of Boerne v. Flores, 521 U.S. 507, 562 (1997) (acknowledging the hybrid rights exception; suggesting that hybrid rights are invoked merely by "implicating" another right).
402. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 567 (1993) (Souter, J., concurring). The district court in Thomas, in an unpublished decision, took the view that the landlords had only to show that other rights - property or speech - were "implicated" to be exempt from Alaska's fair housing statutes. See Thomas, 165 F.3d at 703 (quoting the district court opinion).
403. Thomas, 165 F.3d at 703; see also Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998).
404. Thomas, 165 F.3d at 703. Cf. EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (holding that a proper hybrid rights claims must be "independently viable"); Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir. 1995).
405. Thomas, 165 F.3d at 705.
406. "[E]lse the Free Exercise Clause itself vanishes." Id. at 704 (parentheses omitted) (citing Lukumi, 508 U.S. at 567 (Souter, J., concurring)).
407. 165 F.3d at 707. [W]e believe that the best understanding of Smith actually suggests an approach to hybrid-rights claims that falls somewhere between the two extremes marked out by Justice Souter [in Lukumi]. That is to say, an individual claiming to be within the hybrid-rights exception may not rest upon a bald assertion that a companion right exists or the fact that a companion right is somehow "'implicated'" by a government policy. Id. at 705.
408. Id. at 705.
409. Id. at 706.
410. If this is the standard, it raises two questions. First, how is it less strict than the "independently viable" standard? At least intuitively, it would appear the standards are quite similar. Second, and as discussed below, it would appear that the court of appeals did not actually use this stricter test as to the companion property claim. Instead, the court used the "essentially ad hoc" set of tests announced in Kaiser Aetna. See Thomas, 165 F.3d at 708 (citing Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979)). It is not clear how, short of ipse dixit, one can show a "likelihood of success" on "ad hoc" merits.
411. See id. at 709 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982)).
412. See id. at 708 (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-25 (1978)).
413. 503 U.S. 519, 531 (1992) (concluding that because a California mobile-home park had "voluntarily open[ed] [its] property to occupation by others, [it could not] assert a per se right to compensation based on their inability to exclude particular individuals"). In Yee, the Supreme Court held that the Escondido rent control ordinance did not constitute a permanent physical occupation. See id. at 539. In so doing, the Court did not conduct a regulatory takings analysis. See id. at 537-39.
414. See Thomas, 165 F.3d at 708 (citing Kaiser Aetna v. United States 444 U.S. 164, 175 (1979)).
415. Id. (quoting Kaiser, 444 U.S. at 175).
416. Id. (citing Eastern Enters, v. Apfel, 524 U.S. 498 (1998)).
417. Id. at 708.
418. Id. at 708-09.
419. See id. at 709 (citing Loretto v. Teleprompter, 458 U.S. 419, 437 n.15 (1982)). As the dissent noted, Loretto addressed "issues squarely within the area of physical takings, not the regulatory taking which is at issue here." Id. at 725 (Hawkins, J., dissenting).
420. Id. at 709 (quoting Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978)).
421. Id. (quoting Penn Cent., 438 U.S. at 124).
422. Id.
423. Id. (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
424. Thomas also concluded that the landlords enjoyed a "hybrid" right under the Speech Clause because the Alaska statutes forbade the landlords from making "written or oral inquiry" into the marital status of a prospective tenant. Id. at 710. Analysis of that component of Thomas is beyond the scope of this Article. One would imagine, however, that the Ninth Circuit's liberal approach to commercial speech precedent was no different from its creative interpretations of Takings and Religion Clause precedent. See id. at 709. The court noted that "[t]here is no litmus test for distinguishing commercial from noncommercial expression." Id. at 709. It is not clear whether Thomas turned on the "hybrid" of religion plus property, or the "tri-brid" of religion plus property plus speech.
425. Id. at 706.
426. Id. at 708 (citation omitted).
427. Id. at 709 (quoting Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104, 124 (1978)).
428. See id. at 724-25 (Hawkins, J., dissenting).
429. Id. at 725 (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)). Under Lucas, the landlords would have had to show (i) they were deprived of "all economically beneficial use" of their property, and (ii) that the proscribed use was not part of title to begin with. Lucas, 505 U.S. at 1029.
430. See Thomas, 165 F.3d at 708. Enhanced value is a factor under the regulatory takings analysis but not under the permanent physical occupation analysis.
431. See, e.g., Eastern Enters, v. Apfel, 524 U.S. 498, 554 (1998) (Breyer, J., dissenting) (citing Pennsylvania Coal Co. v Mahon, 260 U.S. 393, 415 (1922)).
432. See ALASKA STAT. § 18.80.270 (Michie 1998).
433. One may respond that the effect is the same. An exemption from the penalty is qualitatively equivalent to exemption from the law. Yet if our concern is with the method, then the point is not the result of Thomas, but the analysis. As with so many aspects of the case - standing, ripeness, the viability and application of the "hybrid rights" exception to Smith - the Thomas court appears to have been overeager to reach a result at odds with established precedent.
434. See Thomas, 165 F.3d at 713 (citing Braunfeld v. Brown, 366 U.S. 599 (1961)).
435. Id.
436. See id. at 724 (Hawkins, J., dissenting).
437. Id. at 718. This issue goes more directly to the questions of ripeness, justiciability and standing. On those questions, Judge Hawkins noted in dissent, "[t]he approach of the majority ought to alarm any serious student of judicial restraint." Id.
438. See St. Bartholomew's Church v. City of New York, 914 F.2d 348, 351 (2d Cir. 1990).
439. Other horrors include church exemptions from liability for negligently hiring priests that sexually molest parishioners, see Gibson v. Brewer, 952 S.W.2d 239, 243 (Mo. 1997), and trademark infringement laws, see Maktib Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar, 179 F.3d 1244, 1246 (9th Cir. 1999).
440. At least six state appellate courts have dealt with substantially similar facts. See Swanner v. Anchorage Equal Rights Comm'n, 868 P.2d 301, 308 (Alaska 1994), reh'g granted, withdrawn from bound volume, modified, and reissued per curiam, 874 P.2d 274 (Alaska 1994); Smith v. Fair Employment & Hous. Comm'n, 913 P.2d 909 (Cal. 1996); Donahue v. Fair Employment & Hous. Comm'n, 2 Cal. Rptr. 2d 32, 42 (Ct. App. 1991), review granted in banc, 825 P.2d 766 (Cal. 1992), review dismissed in banc as being improvidently granted, 859 P.2d 671 (Cal. 1993) (not published in the official reporter); Attorney General v. Desilets, 636 N.E.2d 233, 242-43 (Mass. 1994) (reversing summary judgment for the defendant-landlords under the Massachusetts constitution); McReady v. Hoffius, 593 N.W.2d 545, 545 (Mich. 1999) (TABLE, NO. 108995, 108996) (holding that the Free Exercise Clause trumps Michigan's civil rights act); State v. French, 460 N.W.2d 2, 10 (Minn. 1990).
441. Except, perhaps, as fodder for legal scholarship.
442. See generally Gressman & Carmella, supra note 25; Steven D. Smith, Unprincipled Religious Freedom, 7 J. CONTEMP. LEGAL ISSUES 497, 501 (1996).
443. See Smith, supra note 400, at 501-02 ("A prudential approach to religious freedom controversies would not try to find the 'correct' solution to any particular controversy, but would instead seek to work out a relatively acceptable compromise or modus vivendi." (footnote omitted)). See generally STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995). Professor Smith has argued that even before the Smith case, the Court never really "balanced" competing interests in the religious liberty context. See Smith, supra note 264, at 530-31. Rather, as in Yoder, the Court has avoided the difficult task of balancing by claiming that permitting a religious liberty exemption furthers, or at least does not impair, the legislative goal in question (e.g., the schooling of children).
444. Louis Henkin, Infallibility Under Law: Constitutional Balancing, 78 COLUM. L. REV. 1022, 1047 (1978).
445. See Michael C. Dorf, God and Man in the Yale Dormitories, 84 VA. L. REV. 843, 850 (1998) (discussing new approaches to strict scrutiny - including the "hybrid-rights" approach - and suggesting that "within a decade, federal law will have gone from purportedly requiring religious exemptions to not requiring them, back to requiring them then back again to not requiring them, and finally to requiring them again").
446. PETER CHARLES HOFFER, THE LAW'S CONSCIENCE: EQUITABLE CONSTITUTIONALISM IN AMERICA 8 (1990). Although equity is largely foreign to constitutional jurisprudence, it has made modest appearances in both Sherbert and Watson. In his concurrence in Sherbert, for example, Justice Stewart suggested that a balance of equities could perhaps salvage the Court's Establishment Clause jurisprudence. See Sherbert v. Verner, 374 U.S. 398, 414 (1963) (Stewart, J., concurring) ("[T]here are 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." (footnote omitted)). In Watson, the Court noted that the interpretation of a trust benefiting a church would result in no entanglement with religion because the "general doctrine ... of equity as to charities ... seems equally applicable to ecclesiastical matters." Watson v. Jones, 80 U.S. (13 Wall.) 679, 723 (1871).
447. "Methods" exclude, for purposes of this Article, equitable remedies. While equitable remedies may (or may not) be appropriate in religious liberty disputes, the topic is so broad as to be well beyond the scope of this Article. If one views equitable remedies as all judicial action other than an award of money damages, cf. Bowen v. Massachusetts, 487 U.S. 879, 925 (1988) (Scalia, J., dissenting) (noting that "damages after the fact are considered an 'adequate remedy" in all but the most extraordinary cases"), one could conclude that all religious liberty exemptions are a species of equitable remedy. Granting a religious liberty exemption is, in form and effect, an injunction against the ability of the state (or third party) to enforce an otherwise valid right or remedy. See, e.g., Douglas Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687, 742-45 (1990) (discussing injunctions against unlawful speech and counterinjunctions against "prior restraint").
448. HOFFER, supra note 404, at 8.
449. Id. (quoting ARISTOTLE, NICHOMACHEAN ETHICS 313-17 (H. Rockham ed., 1934)).
450. Id. at 161-62.
451. 349 U.S. 294 (1955).
452. HOFFER, supra note 404, at 4.
453. 349 U.S. at 301 (1955).
454. HOFFER, supra note 404, at 7. Other scholars have hinted at the possibility that equity may be appropriate in the religious liberty context. See generally Arnold H. Loewy, Rethinking Free Exercise of Religion After Smith and Boerne: Charting a Middle Course, 68 MISS. L.J. 105, 110 (1998) (The number of relevant factors to be considered under a Constitution dedicated to protecting both equality and free exercise of religion is such that any fair effort to achieve a balanced result requires a court to act virtually as a court of equity."); Volokh, supra note 222, at 1465 (arguing that RFRA-type laws create a "common-law exemption model" under which exemption decisions are initially made by courts and are ultimately revisable by legislatures).
455. See HOFFER, supra note 404, at 147-79.
456. See id. at 147, 157.
457. See id. at 152 (citing Richard's Appeal, 57 Pa. 105 (1868)).
458. Richard's Appeal, 57 Pa. at 113-114.
459. Mat 113.
460. HOFFER, supra note 404, at 147.
461. Id. at 157.
462. Id. at 161-62.
463. 101 N.E. 805, 805 (N.Y. 1913).
464. HOFFER supra note 404, at 171 (citing W. Keeton & C. Morris, Note, Balancing the Equities, 18 TEX. L. REV. 412, 416 (1940)).
465. Id. at 153.
466. See, e.g., Larson v. Valente, 456 U.S. 228, 244-47 (1982) (using the Establishment Clause to strike down solicitation regulations as they applied to the Unification Church because the regulations preferred more traditional religions).
467. See, e.g., Laycock, supra note 212, at 994 (noting the "aspirational" - if not the decisional - value of "neutrality").
468. For more general discussions of legal realism in other contexts, see generally Grant Gilmore, Legal Realism: Its Cause and Cure, 70 YALE L.J. 1037 (1961),
469. and Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976).
470. For a discussion of the benefits and burdens of balancing versus categorical, or "rule" based judging, see Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293, 294 (1992), who argues that neither approach should govern in all disputes.
471. See Reynolds v. United States, 98 U.S. 145 (1879). As discussed above, Reynolds held that criminal laws against polygamy could be applied to Mormons. See id. at 166.
472. See Employment Div. v. Smith, 494 U.S 872, 885 (1990) (holding that peyote worship could be criminalized).
473. See supra text accompanying notes 55-77.
474. See Melville B. Nimmer, The Eight to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935, 939 (1968) ("[A]d hoc balancing ... means that there is no rule to be applied, but only interests to be weighed.").