If judges were angels: Religious equality, free exercise, and the (underappreciated) merits of Smith

Northwestern University Law Review

Volumn 102, Issue 3, 2008, Pages 1189-1275

  Krotoszynski Jr , Ronald J ^a  

^a UNIVERSITY OF ALABAMA SCHOOL OF LAW   (United States)

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EID: 51249085643     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (430)

1. 494 U.S. 872 (1990).
2. See, e.g., Kent Greenawalt, Religion and the Rehnquist Court, 99 NW. U. L. REV. 145, 145, 149-51 (2004) (arguing that "[t]he Rehnquist Court has turned the constitutional law of religion nearly upside down," and noting that the Smith Court "strikingly[] abandoned the free exercise doctrine that prevailed during the previous quarter century"); Douglas Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 2-3 (arguing that "Smith is probably wrong as a matter of original intent" and that "the decision is inconsistent with the apparent meaning of the constitutional text"); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 116-17 (1992) (objecting that the "Court has adopted an interpretation of the Free Exercise Clause that permits the state to interfere with religious practices... without any substantial justification, so long as the regulation does not facially discriminate against religion," and characterizing this position as "moving in the wrong direction").
3. Laycock, supra note 2, at 1.
4. Greenawalt, supra note 2, at 156-57 (discussing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), as illustrating how Smith adversely affected the scope of the Free Exercise Clause).
5. Smith, 494 U.S. at 877-79.
6. See Sherbert v. Verner, 374 U.S. 398, 406 (1963); McConnell, supra note 2, at 137-30, 170-75; see also Michael W. McConnell, The Origins and Historical Understanding of the Free Exercise of Religion, 103 HARV. L. REV. 1409, 1412-20 (1990) [hereinafter McConnell, Origins and Historical Understanding] (discussing Warren Court and Burger Court approach of constitutionally mandated accommodations for religiously motivated conduct that transgresses neutral laws of general applicability incident to the Sherbert decision and subsequent cases in the line, which created a right to judicially crafted exemptions to laws burdening religiously motivated practices).
7. The Religion Clauses consist of the Establishment Clause and the Free Exercise Clause. See U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the Free Exercise thereof. . . .").
8. See Michael J. Perry, Freedom of Religion in the United States: Fin de Siècle Sketches, 75 IND. L.J. 295, 305 n.34 (2000) (describing Laycock and McConnell as "the two most formidable religious liberty scholars of their generation").
9. See Laycock, supra note 2, at 2-4, 7-10, 54-68 (noting the predominantly negative scholarly reaction to Smith; discussing the case, and in his view, the unpersuasive nature of many of Justice Scalia's arguments, including the restoration of the pre-Sherbert belief-conduct dichotomy, and the pernicious enabling effect of Smith on would-be religious discriminators; and positing a series of objections that characterize Smith as providing a "legal framework for persecution"); McConnell, supra note 2, at 137-40, 170-75 (arguing that Smith effectively strands religious believers by treating religious exemption claims as unjustifiable demands for "a special benefit," incorrectly reduces the Free Exercise Clause to a "non-discrimination requirement," and creates a doctrinal framework that unduly empowers government to "homogenize" religion by discriminating against religious groups with unusual or unpopular beliefs).
10. See Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. PA. L. REV. 149, 233 (1991) ("Smith appears to leave the Free Exercise Clause without independent constitutional content and thus, for practical purposes, largely meaningless."); see also Laycock, supra note 2, at 2-4 (objecting to Smith as both "dubious" and "demonstrably wrong as a matter of text, precedent, and original intent" and arguing that post-Smith "the Free Exercise Clause itself now has little independent substantive value"); McConnell, supra note 2, at 138-40 (objecting to Smith on multiple grounds and positing that "[t]he freedom of citizens to exercise their faith should not depend on the vagaries of democratic politics, even if expressed through laws of general applicability"); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1111 (1990) (questioning Smith's legitimacy because of its failure to use standard legal sources, including "text, history, and precedents," in support of its outcome and arguing that "Smith is contrary to the deep logic of the First Amendment").
11. See Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 OHIO ST. L.J. 491, 500 (2004) ("[T]here remains substantial sentiment on the Court to revisit the question of whether the Free Exercise Clause mandates that the government provide some measure of justification before trespassing upon religious practice."). Justice Scalia wrote the majority opinion in Smith and was joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy. Justices Brennan, Marshall, Blackmun, and O'Connor dissented. See Employment Div. v. Smith, 494 U.S. 872, 873 (1990). The Supreme Court effectively reconsidered Smith in City of Boerne v. Flores, 521 U.S. 507 (1997). In Boerne, six Justices agreed that Smith correctly interpreted the Free Exercise Clause (Chief Justice Rehnquist and Justices Stevens, Scalia, Kennedy, Thomas, and Ginsburg), and three Justices urged that Smith be reconsidered (Justices O'Connor, Souter, and Breyer). Id. at 509. Assuming that the voting patterns of the incumbent Justices have not changed in the last ten years, Smith appears to have the allegiance of five members of the current Court (Justices Stevens, Scalia, Kennedy, Thomas, and Ginsburg) and to be opposed by two members (Justices Souter and Breyer). The views of Chief Justice Roberts and Justice Alito on Smith are not yet known. Even if both new members of the Court vote to repudiate Smith, it would still be necessary to obtain one additional vote to overturn the precedent.
12. See, e.g., FCC v. Beach Comme'ns, Inc., 508 U.S. 307, 313-16 (1993) (describing and applying the traditional rationality review standard). Under true rationality review - also called rational basis review - the plaintiff bears the burden of disproving any theoretical rational relationship between a governmental enactment and a legitimate state purpose; the government has no burden of proof or obligation to defend the enactment at all. See id.
13. See, e.g., United States v. Virginia, 518 U.S. 515, 532-33 (1996) (describing the intermediate scrutiny test as whether the government could establish a substantial relationship to an important governmental interest, a burden requiring "an exceedingly persuasive justification" for the gender-based classification); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (holding that intermediate scrutiny applies to test gender-based classifications and that this standard requires the government to establish a substantial relationship between the classification and achieving an important governmental objective).
14. Hernandez v. Comm'r, 490 U.S. 680, 699 (1989) ("The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling government interest justifies that burden."); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141 (1987) (holding that laws burdening religiously motivated conduct "must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest"); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance the legitimate claims to the free exercise of religion."); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (describing the inquiry as "whether some compelling in-terest ... justifies the substantial infringement of appellant's First Amendment right").
15. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 220, 224, 227, 237 (1995); Shaw v. Reno, 509 U.S. 630, 643 (1993); Korematsu v. United States, 323 U.S. 214, 216 (1944). For a thoughtful discussion of the Supreme Court's use of tiered scrutiny, see Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 494-515 (2004).
16. See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (describing equal protection under the Warren Court as "aggressive ... with scrutiny that was 'strict' in theory and fatal in fact").
17. McConnell, supra note 2, at 127-28 (footnotes omitted).
18. Id. at 128; see also infra text and accompanying notes 191-237.
19. McConnell, supra note 2, at 128.
20. See infra notes 191-237 and accompanying text.
21. See Bowen v. Roy, 476 U.S. 693, 699-701 (1986).
22. See Perry, supra note 8, at 301, 303-06 (arguing that government may not justly treat some religions and religionists with "diminished concern and respect" or act out of "hostility" toward a religion, and that government should be able to proffer a "sufficiently good reason" for enforcing a rule when doing so impedes religiously motivated conduct in order to ferret out governmental actions motivated by "hostility and indifference").
23. In this Article, I use a variety of terms to describe individuals and groups that hold odd or nontraditional religious convictions (at least when viewed through the prism of the dominant religious culture in the contemporary United States). Terms such as "minority religion," "unpopular sects," "nondominant religion" "nonmainstream religion," and the like, including variations using " religionists" rather than "religion," are meant to arrive at the same basic taxonomic concept: some religions have shorter, newer histories in the United States and maintain belief systems that do not look very much like those of preexisting religious denominations, and some religions have significantly fewer members than others. These newer, smaller, "weirder" groups will face more difficulty in convincing legislators, judges, and even fellow citizens to take seriously their claims for equal dignity and respect. Moreover, democratic politics are an unlikely source of relief for such groups. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135-81 (1980). And, although Ely - and most scholars of the Free Exercise Clause - would argue that this state of affairs calls for more aggressive judicial review of laws imposing burdens or withholding benefits for members of minority religions, this ignores the basic fact that judges are no less a product of the common socio-legal culture and are subject to the same fears, phobias, and prejudices as everyone else. See Christina Wells, Fear and Loathing in Constitutional Decision-Making, 2005 WIS. L. REV. 115, 117 ("Judges are ... human. They remain subject to the same passions, fears, and prejudices that sweep the rest of the nation."); see also infra text and accompanying notes 236-89.
24. See Sherbert v. Verner, 374 U.S. 398, 403 (1963) (holding that any "incidental burden on the free exercise of appellant's religion" must be justified "by a compelling state interest in the regulation of a subject within the State's constitutional power to regulate" (citations omitted) (internal quotation marks omitted)).
25. See Employment Div. v. Smith, 494 U.S. 872, 894 (1990) (O'Connor, J., concurring) (arguing that the Free Exercise Clause's "express textual mandate" requires "the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest").
26. Wisconsin v. Yoder, 406 U.S. 205 (1972).
27. Id. at 218-20, 234.
28. See McConnell, supra note 2, at 172 ("On the other hand, some would expand the scope of the Free Exercise Clause by treating the free exercise right as a right of personal autonomy or self-definition.").
29. See id. at 188 ("A final threat to religious autonomy arises from governmental control over many of the institutions of education and culture.").
30. See Bernadette Meyler, The Equal Protection of Free Exercise: Two Approaches and Their History, 47 B.C. L. REV. 275, 306-12 (2006) (arguing that state practice prior to the adoption of the Fourteenth Amendment under state constitutions and early federal practice under the First Amendment both conceived of free exercise as an antidiscrimination, equality norm).
31. See CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 13-16 (2007) (arguing for an "Equal Liberty" approach to both of the Religion Clauses and suggesting that "an equality-based approach to free exercise is fair and workable, and is likely in the end to protect religious believers more effectively than the awkward idea that religiously-motivated conduct should be presumptively exempt from legal regulation").
32. As Professor William Marshall has observed, for example, crediting a free speech claim as "speech" is not the same as crediting a religious point of view, which implies divine sanction. "A holding under the Free Speech Clause that racist speech is protected does not have this same legitimizing effect because, unlike the free exercise claim, the protection of racist speech does not require the court to find that the idea in question stems from a divine belief." William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 323 n.79 (1991).
33. "Gozer" worshippers provided the main antagonists in director Ivan Reitman's 1984 comic masterpiece Ghostbusters and, in the movie, were seeking to bring about the end of days by uniting two fictional Sumerian deities, "Zuul" and "Gozer," in contemporary New York City's fashionable Central Park West district (and at 55 Central Park West, to be precise). See Synopsis for Ghost Busters [sic] (1984), www.imdb.com/title/tt0087332/synopsis (last visited May 19, 2008); see also GHOSTBUSTERS (Sony Pictures 1984). Although Ghostbusters was an entirely fictional work, people do sometimes take fictional sources of religious inspiration more seriously than the author probably intended. For example, the creators of the Church of the Flying Spaghetti Monster clearly intended it as a snide attack on the proponents of Intelligent Design (and nothing more). See Church of the Flying Spaghetti Monster, www.venganza.org (last visited May 19, 2008) (home site of the Church of the Flying Spaghetti Monster, including links to Church dogma and accepted forms of worship). Oddly enough, however, "FSM," as its adherents call it, has taken on many of the attributes of a real religion (albeit a kind of fervent antireligion). See Justin Pope, Pasta Theology: Scholars Mull Spaghetti Monster, USA TODAY, Nov. 16, 2007, http://www.usatoday. com/news/religion/2007-11-16-spaghettimontster_N.htm (describing FSM and noting that some experts on religion argue that "Flying Spaghetti Monsterism exhibits at least some of the traits of a traditional religion - including, perhaps, that deep human need to feel like there's something bigger than oneself out there"); see also Dan Vergano, Insta-Faith: Just Add Hot Wa-ter; Internet Fuels Cheesy Spoof of Evolution-Creation Wars, USA TODAY, Mar. 26, 2006, at D1. Although my research assistant and I could not find evidence of active Gozer worship in the contemporary United States, there are signs that the Ghostbusters fictional Sumerian deities have attained at least some measure of acceptance and legitimacy. See, e.g., Necronomicon Transhumanism - Glossary, http:// necronomicontranshumanism.com/glossary.html (last visited Apr. 25, 2008) (listing "Gozer" on a list of mythological deities and using the descriptions from the motion picture).
34. In fact, although the political economy of this proposition might seem deeply counterintuitive, equality would be enhanced, not reduced, if no group received exemptions from neutral laws of general applicability. From my perspective, however, this is not a troubling proposition because a serious commitment to prohibiting both overt and covert discrimination against unpopular minority religions and religionists would do a better job of securing both equality and significant breathing room for religiously motivated practices. Thus, the "no religious freedom for anyone" objection to an equality approach fails to take into account the potential power of the antidiscrimination regime that this Article advocates. See infra text and accompanying notes 405-27.
35. See infra notes 148-90 and accompanying text.
36. See infra notes 190-237 and accompanying text.
37. See infra notes 383-404 and accompanying text.
38. See FCC v. Beach Comme'ns, Inc., 508 U.S. 307, 313-16, 320 (1993); Williamson v. Lee Optical, 348 U.S. 483, 487-89 (1955). But cf. Romer v. Evans, 517 U.S. 620, 631-33 (1996) (purporting to apply mere rationality review, but shifting the burden to the government to demonstrate the actual reason for its decision and furthermore requiring a basis other than fear or prejudice against gay or lesbian persons); City of Clebume v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442-45 (1985) (same with respect to mentally retarded persons); see also Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O'Connor, J., concurring) ("When a law exhibits ... a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review."); Goldberg, supra note 15, at 512-18 (describing and critiquing enhanced rationality review).
39. See, e.g., Romer, 517 U.S. at 632-33; Cleburne Living Ctr., 473 U.S. at 440-45; U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 538 (1973); see also Goldberg, supra note 15, at 534-41 (questioning the merits and analytical power of tiered scrutiny given the Supreme Court's consistent cheating with the scheme over time and suggesting that a more theoretically sound approach would be better, perhaps an " intracontextual" approach).
40. See infra text and accompanying notes 284-315; see also Sisk, Heise & Morriss, supra note 11, at 501 ("[R]eligion-based variables proved to be steady influences on judicial disposition of religious freedom claims, emerging as statistically significant across multiple models and independent of other background and political variables commonly used in empirical tests of judicial behavior.").
41. McConnell, supra note 2, at 116-17, 137-40 (arguing that Smith adopts an "interpretation of the Free Exercise Clause that permits the state to interfere with religious practices ... without any substantial justification, that a better reading of the Clause would "preserve what Madison called 'the full and equal rights of conscience' of religious believers and communities to define their way of life, so long as they do not interfere with the rights of others," and that Smith makes the state "more powerful" to advance "homogenization" of religion, by marginalizing unpopular religions with nontraditional practices, treating free exercise as an unwarranted "special benefit," and rendering the Free Exercise Clause little more than a weak " nondiscrimination" requirement); McConnell, Origins and Historical Understanding, supra note 6, at 1413-16 (arguing that the historical evidence supports "Sherbert's interpretation of the free exercise clause").
42. See infra notes 325-71 and accompanying text.
43. See infra notes 49-69 and accompanying text.
44. 98 U.S. 145, 166 (1879).
45. Id. at 164.
46. Id. at 165.
47. 321 U.S. 158, 166-67 (1944).
48. White-Slave Traffic (Mann) Act, 18 U.S.C. §§ 2421-2422 (2000); see also Hoke & Economides v. United States, 227 U.S. 308, 322-23 (1913) (upholding the constitutional validity of the Mann Act). The Mann Act, also known as the "White Slavery Act," prohibited the transportation of a woman across state lines "for the purpose of prostitution or debauchery or any other immoral purpose." Polygamy, unlike prostitution or "debauchery," can occur in a stable set of consenting relationships and does not necessarily imply promiscuity or sexual licentiousness. In other words, fidelity within a polygamous relationship is not an oxymoron and arguably distinguishes such relationships in a material way from prostitution and debauchery. See Cleveland v. United States, 329 U.S. 14, 26-27 (1946) (Murphy, J., dissenting) (arguing that polygamy is an accepted part of some cultures and that it is entirely distinguishable from prostitution, debauchery, or "immoral purposes," and that to classify polygamy with these practices "do[es] violence to the anthropological factors involved").
49. Cleveland, 329 U.S. at 18-19.
50. Braunfield v. Brown, 366 U.S. 599 (1961).
51. Id. at 601-02.
52. Id. at 603.
53. Id.
54. Id. at 603, 605.
55. Id. at 606.
56. Id. at 607.
57. Id. at 610 (Brennan, J., concurring in part and dissenting in part).
58. Id. at 611.
59. Id. at 612-14 (arguing that strict judicial scrutiny should apply "as the test of legislation under all clauses of the First Amendment" and then asking, "What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship?").
60. 374 U.S. 398 (1963).
61. Id. at 406; see id. at 403 (quoting the compelling state interest test as used in free speech and free association cases, and holding it to be applicable in context of free exercise claims). South Carolina argued that maintaining the financial solvency of the state unemployment program and avoiding fraudulent claims required categorical exclusion of all persons able, but unwilling, to work in an otherwise available job (for whatever reason). Id. at 407-08. Justice Brennan found that the interest asserted was not sufficient and, moreover, that the means selected were not narrowly tailored to achieve the interest in preserving the solvency of the fund. See id. at 407 ("For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.").
62. See id. at 406 ("Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian's religious liberty."); id. ("The unconstitutional of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina's general statutory scheme necessarily effects.").
63. 406 U.S. 205, 215 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). To be sure, it would be plausible to cite Sherbert as establishing a generic rule of strict scrutiny review for laws that prohibit or impede religiously motivated behaviors. See Sherbert, 374 U.S. at 406 ("We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right.").
64. Yoder, 406 U.S. at 207-08.
65. Id. at 220.
66. Id. at 221.
67. See supra text and accompanying notes 12-16.
68. See ELY, supra note 23, at 75-77, 87-88, 101-03, 116-17, 135-79 (arguing that constitutional text should be interpreted to facilitate "representation reinforcement" by correcting for systematic failures of democratic institutions to protect minority groups); see also United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) (noting that courts generally will presume the constitutional validity of legislative classifications provided that they rationally relate to a legitimate state purpose, but that courts must engage in more careful judicial review when a classification burdens a "discrete and insular minority" that might face systemic prejudice in a democratically elected legislature or when a law infringes a "fundamental right," such as the freedom of speech).
69. See infra text and accompanying notes 191-237.
70. See infra text and accompanying notes 212-37.
71. Employment Div. v. Smith, 494 U.S. 872 (1990).
72. Id. at 877.
73. Id. at 878.
74. See id. at 879 ("We first had occasion to assert [the belief-conduct dichotomy] in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice.").
75. Id. at 879 (citations omitted).
76. It bears noting that Justice Scalia did not formally overrule any prior precedents in Smith, but instead made nominal efforts to distinguish specific cases in the Sherbert-Yoder line that granted religious exemptions. See id. at 881-85. With respect to the unemployment cases, he argued that the programs involved individualized determinations not present in "a generally applicable criminal law" banning the possession or use of peyote, see id. at 884-85; with respect to the other exemption-granting cases, like Yoder itself, Justice Scalia argued that they all involved "hybrid" claims that implicated the Free Exercise Clause and some other substantive constitutional right, such as fundamental substantive due process rights, see id. at 881-82. The dissenting members of the Supreme Court, including Justices O'Connor and Blackmun, persuasively refuted these arguments. See id. at 895-97, 900-02 (O'Connor, J., dissenting); id. at 908-09 (Blackmun, J., dissenting). Moreover, scholarly commentary on this aspect of Smith has been uniformly critical. See, e.g., Laycock, supra note 2, at 2-4, 7-10, 12, 17-21, 41-53 (critiquing both the merits of Smith and Justice Scalia's treatment of past precedent); Marshall, supra note 32, at 308-09 ("The Smith opinion itself, however, cannot be readily defended. The decision, as written, is neither persuasive nor well crafted. It exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction.").
77. See Meyler, supra note 30, at 276 ("Recent religion clause jurisprudence has placed a priority upon equality - whether rejecting only those laws targeted against, rather than those burdening, the practices of minority religions or upholding the evenhanded distribution of public funds to religious and nonreligious providers.").
78. 508 U.S. 520 (1993).
79. Id. at 531-32.
80. Id. at 534. Justice Scalia objected to this methodology because it shifts the focus from "the object of the laws at issue to consider the subjective motivation of the lawmakers." Id. at 558 (Scalia, J., concurring). Because the legislative enactments themselves reflected facial discrimination based on religious belief, for example by specifying only animal "sacrifice" for proscription and then exempting all other slaughter methods, including other religiously inspired methods, such as those associated with kosher food preparation, Justice Scalia argued that the strict scrutiny standard of review applied and that Hialeah's ordinances failed to meet this standard of review. Id.
81. See id. at 534-42 (majority opinion).
82. Id. at 545-46.
83. See id. at 546-47.
84. Id. at 533-35, 540.
85. In fact, the majority even invokes equal protection reasoning, and case law, in support of its general analysis of the Church's Free Exercise Clause claim. See id. at 540-41.
86. The case also shows that the standard of review can be decoupled from the underlying theory of the Free Exercise Clause; in Church of the Lukumi Babalu Aye, the Supreme Court deployed strict scrutiny in the service of promoting equality, rather than autonomy. See id. at 533-42. Obviously, though, even if one applied rationality with bite, Hialeah still would have lost the case because hatred of Santeria is not a legitimate governmental interest. See Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O'Connor, J., concurring); see also U.S. Dep't of Agric. v. Moreno, 413 U.S. 528,538 (1973). Even if one applies strict scrutiny in cases involving overt forms of religious discrimination, this does not answer the question of the most appropriate standard of review in a case where the facts do not provide a "smoking gun." To make the framework a binary one - strict review or no review - underprotects religious minorities from clever discriminators.
87. See infra notes 383-404 and accompanying text.
88. See Locke v. Davey, 540 U.S. 712, 720 (2004).
89. Id. at 720-21.
90. Id. at 721.
91. See Cutter v. Wilkinson, 544 U.S. 709, 714-16 (2005).
92. See City of Boeme v. Flores, 521 U.S. 507, 532-34 (1997).
93. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
94. See City of Boerne, 521 U.S. at 546 (O'Connor, J., dissenting) ("I continue to believe that Smith adopted an improper standard for deciding free exercise claims.); id. at 565-66 (Souter, J., dissenting) (arguing that Smith was wrongly decided and noting the existence of "serious doubts about the precedential value of the Smith rule and its entitlement to adherence"); id. at 566 (Breyer, J., dissenting) ("I agree with Justice O'Connor that the Court should direct the parties to brief the question whether [Smith] was correctly decided, and set the case for reargument."); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 564, 570-71 (1993) (Souter, J., concurring) (calling for reconsideration of Smith). O Centro Espirita cited Smith in a neutral fashion and treated it as a background principle of law without provoking a concurring opinion. See O Centro Espirita, 546 U.S. at 424, 431-32, 439. Whether this says anything about a change of heart among the Smith skeptics is open to serious doubt because the case involved a purely statutory claim, involving the application of the Religious Freedom Restoration Act to the federal government, rather than the Free Exercise Clause itself.
95. But cf. EISGRUBER & SAGER, supra note 31, at 81-90, 93-120 (defending Smith in a limited way and arguing that "an equality-based approach can provide a robust basis for accommodating religious conduct").
96. Laycock, supra note 2, at 4.
97. Id.
98. Id. at 14.
99. Id. at 14-15.
100. See generally ELY, supra note 23.
101. Laycock, supra note 2, at 42; see also id. at 54 (warning that post-Smith the federal courts "may be myopic or deferential in considering claims that analogous secular behavior has gone unregulated"); id. at 59 (arguing that a meaningful commitment to religious equality requires that "laws that burden religious practice ... be scrutinized for evidence of anti-religious motive, religious gerrymander, or secular exemptions not available to churches or believers").
102. Id. at 54.
103. Id. at 59.
104. Greenawalt, supra note 2, at 154.
105. Id. at 155.
106. See id. at 154; Laycock, supra note 2, at 1-4, 7-10, 59-68; McConnell, supra note 2, at 172-75.
107. McConnell, supra note 2, at 116 (emphasis added).
108. Douglas Laycock, Formal Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1000 (1990) (emphasis added). 109 See Wisconsin v. Yoder, 406 U.S. 205, 225, 227, 229 (1972) (invoking the age of the religion as reason for taking seriously the request for an exemption from a neutral law that prohibits truancy).
109. McConnell, supra note 2, at 172.
110. Id.
111. Id. at 173.
112. Id. at 188 (emphasis added).
113. A comparison of statutory enactments that define rights by reference to equality norms with statutes that define abstract rights to equality and invite open-ended balancing of autonomy claims against general governmental or social interests is highly instructive. Compare, e.g., 42 U.S.C. § 1981 (2000), and id. § 1982, and Voting Rights Act, 42 U.S.C. §§ 1973-1973aa-6, with, e.g., Americans with Disabilities Act, 42 U.S.C. §§ 12,101-12,213, and Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1 to cc-5, and Title VII, 42 U.S.C. § 2000(e)(j) (proscription of discrimination based on religion, which is subject to an "accommodation" standard). See also Laura S. Underkuffler, "Discrimination " on the Basis of Religion: An Examination of Attempted Value Neutrality in Employment, 30 WM. & MARY L. REV. 581, 581-96, 610-11, 615-19, 624-25 (1989) (examining the phenomenon of employers with overtly religious identities and proposing that "[a]n employer's religious policies or practices should be considered discriminatory" only when they effectively preclude "equal employment opportunity" but suggesting that religious "reasonable accommodation" rules should protect a worker who "objects to exposure to a religious work environment," and canvassing the statutory rules and case law on this subject, because "religious neutrality" in employment cannot, and perhaps should not, be the goal of Title VII). Asking what constitutes a "reasonable accommodation" is a far less choate and limited inquiry than determining if African Americans have the same rights to "make and enforce contracts" as "white citizens," see 42 U.S.C. § 1981, or whether election officials in Bolivar County, Mississippi, are applying different registration rules based on race. See US Airways, Inc. v. Barnett, 535 U.S. 391, 396-98 (2002) (discussing the reasonable accommodation concept in the context of the Americans with Disabilities Act (ADA)); Sutton v. United Air Lines, 527 U.S. 471, 475, 477-89 (1999) (reading the ADA narrowly to exclude correctable conditions from the scope of the Act); cf. St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609-13 (1987) (discussing scope of § 1981 and defining "racial discrimination" very broadly, to include all forms of ethnicity, as ethnicity was understood in the nineteenth century when Congress enacted § 1981); City of Rome v. United States, 446 U.S. 156, 173-78 (1980) (discussing and applying section 1 of the Voting Rights Act, which bans racially discriminatory voting practices, and the cases arising under it, and concluding that section 1 prohibits practices that have a discriminatory impact on voting based on race); Runyon v. McCrary, 427 U.S. 160, 168-69 (1976) (holding that § 1981 of Title 42 provides a private right of action for racial discrimination in the making or enforcement of private contracts). Leveling up to the standard that the majority sets for itself is an easier task than asking abstractly "what's fair?" Of course equality can be complicated too, because sometimes equal treatment requires different treatment. See Catherine L. Fisk, Privacy, Power, and Humiliation at Work: Re-Examining Appearance Regulation as an Invasion of Privacy, 66 LA. L. REV. 1111, 1123-25 (2006); E. Gary Spitko, He Said, He Said: Same-Sex Sexual Harassment Under Title VII and the "Reasonable Heterosexist" Standard, 18 BERKELEY J. EMP. & LAB. L. 56, 80-89 (1997).
114. Perry, supra note 8, at 299; see also MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES 13-14, 24-29 (1997) (arguing that, at a minimum, the Free Exercise Clause prohibits governmental discrimination based on religious belief, and might also conceivably require some affirmative accommodations of religionists).
115. Perry, supra note 8, at 299.
116. Id. at 301.
117. See WINNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM 1-2, 8 (2005) (discussing the existence and effects of cultural bias on religious autonomy claims and positing that "[w]hat is arguably impossible is justly enforcing laws granting persons rights that are defined with respect to their religious beliefs or practices"); see also id. at 154 (noting that "religion is not always, in fact, absolutely free, legally speaking," and that "[t]he right kind of religion, the approved religion, is always that which is protected, while the wrong kind, whether popular or unpopular, is always restricted or even prohibited").
118. State v. Kargar, 679 A.2d 81 (Me. 1996) (reversing a criminal conviction for genital kissing after reviewing evidence regarding prevailing Afghan cultural practices).
119. See Katherine M. Franke, Putting Sex to Work, 75 DENV. U. L. REV. 1139, 1144-52 (1998) (examining the importance of cultural understandings of sexual behavior in the specific context of a traditional Pacific Island culture with non-Western adulthood rites). But cf. Kargar, 629 A.2d at 82-83 (discussing decision to charge and prosecute a Maine father for kissing his son's penis in public).
120. See SULLIVAN, supra note 118, at 151 ("While the legal protection of religious freedom as a political idea was arguably once a force for tolerance, it has now arguably become a force for intolerance.").
121. Perry, supra note 8, at 303.
122. Id. (footnote omitted).
123. In his book, Perry argues that a meaningful commitment to equality requires "government to maximize the space for religious practice by exempting religious practice from an otherwise applicable ban or other regulatory restraint that would interfere substantially with a person's ability to engage in the practice, unless the exemption would seriously compromise an important public interest." PERRY, supra note 115, at 25. This formulation of the test entirely tracks Justice Brennan's regime of strict scrutiny, and would accordingly lead to the same results in the real world.
124. Greenawalt, supra note 2, at 159.
125. Id.
126. Id.
127. Id. at 160.
128. Laycock, supra note 2, at 37.
129. Id.; see RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-C ULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH 185-89, 215-17 (2006) (discussing the importance and limitations of constitutional text in protecting human rights).
130. Laycock, supra note 2, at 38. Laycock actually answers his own objection later in the same article, arguing that "[t]he Free Exercise Clause stands as textual evidence that religious speech is central to the First Amendment, like fully protected political speech and not like commercial speech, obscenity, or other categories of speech with only limited constitutional protection." Id. at 45. Thus, Laycock acknowledges that establishing the centrality of religious speech constitutes work that the Free Exercise Clause undertakes post-Smith.
131. See Douglas O. Smith, The Establishment Clause: Corollary of Eighteenth-Century Corporate Law?, 98 NW. U. L. REV. 239, 302 n.69 (2003) (collecting and describing authorities on the commonplace practice of maintaining an established, official church in the states in the pre-Revolutionary and even post-Revolutionary period).
132. For evidence that this interpretation of the Free Exercise Clause enjoys substantial support in the legislative history of the First Amendment, see infra text and accompanying notes 325-73.
133. See, e.g., Stephen Pepper, Taking the Free Exercise Clause Seriously, 1986 BYU L. REV. 299, 308 ("As the analysis implied above suggests, including religion with race as suspect classifications under the equal protection clause has the same effect under modern doctrine as does such a limited interpretation of the free exercise clause."). Of course, Pepper's argument presumes either a facial religious classification or that the plaintiff can establish religiously discriminatory intent with respect to a facially neutral classification. It would be possible to read the Free Exercise Clause to impose a burden of justification on the government even where discriminatory purpose is not evident on the face of a classification or in its legislative history. See infra text and accompanying notes 381-404. Such an approach would give the Free Exercise Clause an independent effect that would go well beyond existing Equal Protection Clause doctrine. Cf. Washington v. Davis, 426 U.S. 229, 239-43, 247-48 (1976).
134. See Eakin v. Raub, 12 Serg. & Rawle 330, 346-47, 353-56 (Pa. 1825) (Gibson, J., dissenting) (arguing that legislators are no less bound to enforce constitutional norms, and no less capable of this duty, than are judges; that courts should not invalidate a law "if that law has been passed according the forms established in the constitution"; and that "it rests with the people [rather than the courts], in whom full and absolute sovereign power resides to correct legislation, by instructing their representatives to repeal the obnoxious act"); see William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 16-29 (noting that the fact that "the Constitution is a 'written' one yields little or nothing as to whether acts of Congress may be given the force of positive law notwithstanding the opinion of judges," that "[u]nwillingness of the courts to give effect to acts of Congress which the Supreme Court might conclude were repugnant to the Constitution is thus quite unnecessary to the accomplishment of several significant purposes which might still be served," and that nothing in the text of the Constitution itself compels the conclusion that the Judiciary must enjoy primacy over the executive and legislative branches in interpreting and enforcing constitutional limitations on the federal and state governments); cf. id. at 34-45 (arguing that the merits lie with Chief Justice John Marshall's claim for judicial supremacy in interpreting the Constitution if one takes into account extratextual sources, such as James Madison's Notes on the Federal Convention, the Federalist Papers, and the contemporary practice at the time of the Framing in several state supreme courts, which enjoyed the power of judicial review).
135. See U.S. CONST. art. I, § 3, cl. 6 ("The Senate shall have the sole power to try all impeachments.").
136. See Nixon v. United States, 506 U.S. 224, 229-38 (1993). Writing for the majority, Chief Justice Rehnquist explained that in addition to the clear "textual commitment" of the issue to the Senate, id at 236, there was no "judicially manageable standard" to apply in policing the metes and bounds of the power "to try," id. at 230, and the Constitution's language "does not provide an identifiable textual limit on the authority which is committed to the Senate," id at 238.
137. U.S. CONST. art. IV, § 4 (providing, in relevant part, that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government").
138. See Luther v. Borden, 48 U.S. (7 How.) 1, 42-45 (1849); see also Baker v. Carr, 369 U.S. 186, 218-26 ( 1962) (discussing Luther and the other cases holding the Guaranty Clause to be nonjusticiable).
139. See Baker, 369 U.S. at 220-22; see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-67 (1803) (observing in dicta that "the President is invested with certain important political powers in the exercise of which he is to use his discretion, and is accountable only to his country in his political character, and to his own conscience"; that the Judiciary possesses "no power to control that discretion"; and accordingly that "the decision of the executive is conclusive" over such matters, thus establishing the theoretical, textual, and doctrinal basis for the political question doctrine, under which the Supreme Court subsequently has held that the Guaranty Clause is not subject to judicial enforcement).
140. U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."). For an argument that the federal courts should undertake greater efforts to enforce the Ninth Amendment, see Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006). See also BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT: A CALL FOR LEGISLATIVE AND JUDICIAL RECOGNITION OF RIGHTS UNDER SOCIAL CONDITIONS OF TODAY (1955); Knowlton H. Kelsey, The Ninth Amendment of the Federal Constitution, 11 IND. L.J. 309 (1936).
141. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Roe v. Wade, 410 U.S. 113, 120-22 (1973).
142. See U.S. CONST. amend. I ("Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances.").
143. See Ronald J. Krotoszynski, Jr. & Clint Carpenter, The Return of Seditious Libel, 55 UCLA L. REV. 1239 (2008); see also McDonald v. Smith, 472 U.S. 479, 482-85 (1985).
144. McDonald, 472 U.S. at 482.
145. Id. at 485.
146. U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
147. Of course, the test might still be defensible as a method of advancing the sum total of religious autonomy-if any sect wins claims against the government that would not be viable under Smith, then the Sherbert-Yoder approach enhances and advances religious liberty/autonomy. The identity of the winners and losers only matters if one thinks that the Free Exercise Clause should advance religious equality at least as much as it advances religious liberty.
148. 133 U.S. 333, 341 (1890).
149. Id.
150. Id. at 341-42.
151. Id. at 343.
152. Id. at 345-47.
153. Reynolds v. United States, 98 U.S. 145, 161-67 (1879).
154. Id. at 164.
155. See The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 5-8 (1890); see also Laycock, supra note 2, at 62-63 (discussing the pervasive persecution of the Mormons by both the federal and the state governments).
156. Church of Jesus Christ of Latter-Day Saints, 136 U.S. at 49.
157. Id at 64.
158. See John Dougherty, After Polygamist Leader's Arrest, Community Carries On, N. Y. TIMES, Sept. 4, 2006, at A10 (discussing Jeffs and what many term his "polygamous cult"). The recent travails of the members of the Fundamentalist Church of Jesus Christ of Latter Days Saints (FLDS), in Eldorado, Texas, provide a powerful example of how highly transgressive behavior can bring down a heavy state response. On April 3, 2008, the Texas Department of Family Protective Services raided the Yearning for Zion Ranch, a compound on which FLDS church members and their children lived, and "took possession of all 468 children at the Ranch without a court order." In re Tex. Dep't of Family & Protective Servs., 51 Tex. Sup. Ct. J. 967, slip op. at 2 (Tex. May 29, 2008) (per curiam), available at http://www.supreme.courts.state.tx.us/historical/2008/may/080391.pdf. Although a local trial court sustained the ex parte seizure of all 468 children on an "emergency basis," resting the decision on the theory that the FLDS parents would subject the girls to sexual abuse and inculcate the sexual abuse of women as a religious precept in the boys, see In Re Sara Steed, No. 03-08-00235-CV, 2008 Tex. App. LEXIS 3652, *4-5 (Tex. Civ. App. May 22, 2008), mandamus denied sub nom In re Tex. Dep't of Family & Protective Servs., 51 Tex. Sup. Ct. J. 967, the Texas Court of Appeals reversed this order and required the Department to immediately return the children to their parents. See id. at *8-15. The Texas Supreme Court subsequently declined to review the Court of Appeals decision. See In re Tex. Dep't of Family & Protective Servs., 51 Tex. Sup. Ct. J. 967, slip op. at 5. The FLDS parents litigated and won the appeal not on the basis of religious freedom, but rather on the state's violation of more general parental rights protected under both the Due Process Clause of the Fourteenth Amendment and the Texas Family Code. Moreover, the Texas appellate courts considered and decided the appeal solely on the basis of parental rights and Texas statutory protections of those rights. This approach to the litigation reflects a very prudent strategic decision by the lawyers for the FLDS parents: it is much easier to successfully invoke a right to equal treatment than it is to demand respect for highly transgressive religious beliefs and the conduct that such beliefs mandate. See Stephanie Simon, Role of Belief in Polygamy Case, WALL ST. J., Apr. 25, 2008, at A10 (discussing the litigation strategy of the FLDS parents and the Department's view that the inculcation of the FLDS beliefs constituted a serious form of child abuse).
159. 329 U.S. 14 (1946).
160. For a description of the Mann Act, also known as the "White Slavery Act," see supra note 48.
161. Cleveland, 329 U.S. at 19.
162. See James v. United States, 127 S. Ct. 1586, 1603 (2007) (Scalia, J., dissenting) ("The rule of lenity, grounded in part on the need to give 'fair warning' of what is encompassed by a criminal statute, demands that we give [an ambiguous criminal statute] the more narrow reading of which it is susceptible." (citation omitted)); see also United States v. Bass, 404 U.S. 336, 348 (1971); McBoyle v. United States, 283 U.S. 25, 27 (1931).
163. Cleveland, 329 U.S. at 25 (Murphy, J., dissenting).
164. Id.
165. Id at 25-26.
166. Id. at 26.
167. Id.
168. Id.
169. Id.
170. 321 U.S. 158 (1944).
171. Id. at 174 (Murphy, J., dissenting).
172. Id. at 175.
173. Id. at 175-76 (citation omitted).
174. Id. at 170 (majority opinion).
175. United States v. Macintosh, 283 U.S. 605, 625 (1931) (citation omitted).
176. Id. at 617-18.
177. Id. at 626.
178. Id.
179. Thomas v. Review Bd., 450 U.S. 707, 709-11 (1981).
180. Id. at 715.
181. See, e.g., Tony & Susan Alamo Found, v. Sec'y of Labor, 471 U.S. 290, 304-05 (1985) ("Even if the Foundation were to pay wages in cash, or if the associates' beliefs precluded them from accepting the statutory amount, there is nothing in the Act to prevent the associates from returning the amounts to the Foundation, provided that they do so voluntarily. We therefore fail to perceive how application of the Act would interfere with the associates' right to freely exercise their religious beliefs." (footnote omitted)). Justice White essentially rewrites the associates' theology to permit them to accept payment for good works provided that they relinquish the payment. A religious commitment could plausibly prohibit even the initial receipt of wages for good works-the very contention asserted by the Alamo Foundation with respect to its members' beliefs. Needless to say, it seems odd for the Supreme Court to school a religion on the proper interpretation of its own doctrines. Justice White provides a cf. citation to United States v. Lee, a case in which the Court accepted as valid a religious objection by the Old Order Amish against paying into or receiving benefits from the Social Security system. See id. at 305 (citing United States v. Lee, 455 U.S. 252, 257 (1982)). Thus, the Old Order Amish enjoy a presumption of doctrinal legitimacy that the Supreme Court proves unwilling to afford the Alamo Foundation.
182. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("We come then to the quality of the claims of respondents concerning the alleged encroachment of Wisconsin's compulsory school-attendance statute on their rights ... to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries.").
183. Id. at 226-27 ("The independence and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country are strong evidence that there is at best a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education.").
184. Id. at 235 ("Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities ..., and the hazards presented by the State's enforcement of a statute generally valid as to others.").
185. Id. at 235.
186. Id. at 236.
187. Id. at 225-26.
188. Id at 222.
189. Id. at 226.
190. See supra text and accompanying notes 318-73.
191. See MULFORD Q. SIBLEY & PHILIP E. JACOB, CONSCRIPTION OF CONSCIENCE 18-36 (1952); see also Alan E. Brownstein, Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 OHIO ST. L.J. 89, 166-67 (1990) ("Given the centrality of non-violence to the religious beliefs of many pacifist sects and the long history of political acceptance of religiously based exemptions from conscription, a strong case may be made on balance that these exemptions should be sustained against establishment clause challenge." (footnote omitted)).
192. 485 U.S. 439, 452 (1988).
193. See id. at 450-51.
194. Id. at 451.
195. Cf. id. at 465-66 (Brennan, J., dissenting) ("The land-use decision challenged here will restrain respondents from practicing their religion as surely and completely as any of the governmental actions we have struck down in the past, and the Court's efforts simply to define away respondents' injury as nonconstitutional are both unjustified and ultimately unpersuasive.").
196. 476 U.S. 693 (1986).
197. See id. at 699-701.
198. Id. at 696.
199. Id. at 699; see id. at 700 ("The Free Exercise Clause affords an individual protection from certain forms of government compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.").
200. Id. at 703 ("There is no claim that there is any attempt by Congress to discriminate invidiously or any covert suppression of particular religious beliefs.").
201. Id. ("It may indeed confront some applicants for benefits with choices, but in no sense does it affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons." (footnotes omitted)).
202. See, e.g., Frazee v. III. Dep't of Employment Sec., 489 U.S. 829 (1989); Thomas v. Review Bd., 450 U.S. 707 (1981). In Sherbert itself, a claim of differential treatment could have served as the basis for the decision in favor of Sherbert. See Sherbert v. Verner, 374 U.S. 398, 406 (1963) ("Significantly, South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian's religious liberty."). Chief Justice Burger expressly acknowledges this point in Roy: "We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons." Roy, 476 U.S. at 706. In rum, this difference in the import of direct versus indirect burden free exercise claims "is relevant to the standard that the government must meet to justify the burden," id. at 707, which must mean that some sort of "strict scrutiny life" applies in indirect burden cases (Sherbert's language to the contrary notwithstanding).
203. Roy, 476 U.S. at 709.
204. Id. at 709-11.
205. Id. at 711-12.
206. Indeed, Chief Justice Burger's odd-and consistent-capitalization of "government" is itself meant to signify where the merits lie.
207. Roy, 476 U.S. at 710.
208. Id. at 711-12.
209. See Courtney Megan Cahill, Same Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 NW. U. L. REV. 1543, 1544-45, 1550-54 (2005) (describing, discussing, and critiquing the "slippery slope" trope as a rhetorical feature of legal arguments and decisions, with particular focus on its use in the context of same-sex marriage).
210. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-51 (1988); Roy, 476 U.S. at 709-11; Goldman v. Weinberger, 475 U.S. 503, 509-10 (1986) (rejecting a free exercise exemption from Air Force regulations that prohibited a Jewish officer from wearing a yarmulke while on duty and measuring the burden of an exemption to the dress code on the military by positing a kind of dress code free-for-all); id. at 512-13 (Stevens, J., concurring) (warning that religious exemptions from the Air Force dress code regulations would result in a rag tag military or require unjustified discrimination against some religionists); Braunfield v. Brown, 366 U.S. 599, 608-09 (1961); see also Employment Div. v. Smith, 494 U.S. 872, 905-06 (1990) (O'Connor, J., concurring) (analyzing the social cost of exemption from a general criminal ban on peyote for members of the Native American Church by assuming a generalized social effect flowing from the exemption, rather than measuring the social effect based on the very small number of number of persons belonging to the Native American Church, and therefore, entitled to the exemption were the courts to recognize one); cf. Wisconsin v. Yoder, 406 U.S. 205, 228-29 (1972) (balancing the social cost of a limited exemption from the state's truancy laws for the Old Order Amish, but no other groups, when determining the potential social cost of recognizing an exemption from the state's general policy).
211. 455 U.S. 252 (1982).
212. Id. at 260 (citations omitted).
213. See id. at 257 ("Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.").
214. See supra note 211.
215. 475 U.S. 503.
216. Id. at 504-05.
217. Id. at 509.
218. Id. at 509-10. Justice Stevens reached the same result, but used overtly equalitarian reasoning to support his conclusion: "If exceptions from dress code regulations are to be granted on the basis of a multifactored test ..., inevitably the decisionmaker's evaluation of the character and the sincerity of the requestor's faith - as well as the probable reaction of the majority to the favored treatment of a member of that faith - will play a critical part in the decision." Id. at 512-13 (Stevens, J., concurring).
219. National Defense Authorization Act for Fiscal Years 1988 and 1989, Pub. L. No. 100-180, § 508, 101 Stat. 1019, 1086-87 (1987) (codified at 10 U.S.C. § 774 (2000)).
220. 490 U.S. 680 (1989).
221. Id. at 684.
222. Id. at 691.
223. Id. at 699.
224. Id. (citations omitted) (internal quotation marks omitted).
225. Id. at 702.
226. Id. at 704 (O'Connor, J., dissenting).
227. Id. at 709-11.
228. See Elbert Lin et al., Faith in the Courts? The Legal and Political Future of Federally-Funded Faith-Based Initiatives, 20 YALE L. & POL'Y REV. 183, 223 (2002) ("[W]hile the idea of funding mainstream churches is exceedingly popular, only 38% of Americans approve of giving federal money to mosques, only 29% of Americans are willing to support the Nation of Islam with taxpayer[] dollars, and 26% support granting public funds to the Church of Scientology."). See generally Paul Horwitz, Scientology in Court: A Comparative Analysis and Some Thoughts on Selected Issues in Law and Religion, 47 DEPAUL L. REV. 85 (1997).
229. See The Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 5-8 (1890) (describing legislation enacted by Congress disbanding the Mormon Church and seizing its assets for the public treasury).
230. Cf. id. at 48-50 (attacking the Mormon faith for advocating the practice of polygamy and analogizing the practice to the "right of assassination," the "practice of suttee by the Hindu widows," and the "offering of human sacrifices," and sustaining the federal government's seizure of Church property and revocation of the Church's corporate charter).
231. Bob Jones Univ. v. United States, 461 U.S. 574, 577-82 (1983).
232. Id. at 603-04. This was the same methodology that Chief Justice Warren deployed in Braunfield v. Brown, 366 U.S. 599 (1961). In Braunfield, Orthodox Jews objected to being forced to close on Sundays under Pennsylvania state law when their day of worship ran from sundown Friday to sundown Saturday, rather than on Sunday. Id. at 601-02. Rejecting a free exercise claim, Chief Justice Warren explained that "[c]ompulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden," but "this is not the case at bar." Id. at 603. According to Warren, "the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets." Id. "[T]he Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive." Id. at 605. He concluded that "[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature." Id. at 606.
233. Bob Jones Univ., 461 U.S. at 604.
234. Id.
235. One particularly disturbing consideration relates to the pattern of claimants whom the Supreme Court finds have properly invoked the Free Exercise Clause versus those it views as complaining only about an "indirect burden." See, e.g., Braunfield, 366 U.S. at 603, 605-07. The religions that fail to establish a claim are almost uniformly non-Christian; the only Christian groups that fail to at least cross the threshold of invoking the Free Exercise Clause are racial discriminators (Bob Jones University). The non-Christian plaintiffs in Braunfield, Lyng, and Hernandez all evidently complained of merely noncognizable "indirect burdens," whereas the plaintiffs in cases like Sherbert, Frasee, Thomas, Hobbie, Yoder, and Lee all raised complaints about "direct" burdens that were sufficient to trigger the application of the Free Exercise Clause. As Mark Tushnet observes, "the pattern of the Court's results in mandatory accommodation is troubling because, put bluntly, the pattern is that sometimes Christians win but non-Christians never do." Mark Tushnet, "Of Church and State and the Supreme Court": Kurland Revisited, 1989 SUP. CT. REV. 373, 381. Tushnet overstates the matter somewhat - it would be more accurate to say that Christians were more successful at invoking the Clause, even when the facts suggested that only an indirect burden on religious practice existed (for example, Sherbert). This is, of course, quite significant because the benefit of heightened scrutiny will only obtain if the plaintiffs meet the threshold requirement of establishing a "prohibition" on the free exercise of their religious beliefs.
236. For another example of this approach, see O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). In Estate of Shabazz, the Supreme Court sustained New Jersey prison offsite work regulations that effectively precluded Muslim prisoners from observing mandatory Friday prayers (Jumu'ah). Chief Justice Rehnquist wrote that "[w]hile we in no way minimize the central importance of Jumu'ah to respondents, we are unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end." Id. at 351-52. New Jersey accommodated Christian religious observance by not scheduling offsite work details on Sunday; the Muslim religionists could have been accommodated by a rule exempting them from offsite work details on Friday. The burden was direct, and the state prison officials protected Christian prisoners from being excluded from Sunday services. An equalitarian focus would likely produce a different outcome in Estate of Shabazz, in that the differential treatment seems to suggest discrimination against a non-Christian sect. See id. at 361-63 (Brennan, J., dissenting) (noting that Muslim prisoners throughout the federal penitentiary system are permitted to participate in Jumu'ah and that this accommodation has not proven unduly disruptive to "safety, security, and good order" in the federal prison system); Richard Delgado, Organically Induced Behavioral Change in Correctional Institutions: Release Decisions and the "New Man " Phenomenon, 50 S. CAL. L. REV. 215, 243-44 (1977) (discussing systematic discrimination against African-American Muslims in state prison systems and the failure of the lower federal courts to reliably remediate this discrimination via the Free Exercise Clause).
237. See generally SULLIVAN, supra note 118. Professor Sullivan served as an expert witness in the Warner case, a small but highly telling free exercise case arising under Florida's state Religious Freedom Restoration Act; the case involved efforts by the city of Boca Raton, Florida, to force the families of persons buried in a city-owned cemetery to remove "vertical" (i.e., raised) memorials and shrines. See id at 9-12, 82-88. Her experience as an expert witness in this case led Professor Sullivan to become deeply skeptical about the ability of the legal system in the contemporary United States to protect idiosyncratic and highly individualized forms of religion and religious expression. Id. at 1-9, 138-39, 147-59.
238. JOSEPH F. BYRNES, THE PSYCHOLOGY OF RELIGION 151 (1984).
239. SULLIVAN, supra note 118, at 147-49 (noting that "there is no religious center in the United States" today, that because of this "lines must be drawn," and that "[d]ecisions about legal accommodation can be an appropriate acknowledgment of differences but they can also be discriminatory, giving legal muscle to only some easy competing anti-egalitarian normative regulatory schemes"); see also Elizabeth Harmer-Dionne, Note, Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy as a Case Study Negating the Belief-Action Dichotomy, 50 STAN. L. REV. 1295, 1310-19 (1998) (discussing psychological, anthropological, and economic causes for hostility toward strange or offensive religious beliefs in general and toward the now-abandoned practice of polygamy in particular). Professor Sullivan also observes that judges do not necessarily shrink from the prospect of "talking theology all day" and applying their own religious experiences and beliefs to judge the value, if not the legitimacy, of the beliefs held by plaintiffs seeking religiously motivated accommodations. See SULLIVAN, supra note 118, at 136-37. Deep-seated cultural understandings operate at both a conscious and an unconscious level to shape the metes and bounds of both "religion" and religiously motivated behavior-something that worked very much to the detriment of the Warner plaintiffs. See id. at 1-8, 96-99, 108-09, 133-37, 147-59.
240. BYRNES, supra note 239, at 157.
241. In fact, Professor Leon Festinger, the originator of the concept of "cognitive dissonance," based his early work on the idea of a doomsday cult and its reaction when the ostensible day of absolute reckoning came - and went - without incident. See LEON FESTINGER, WHEN PROPHECY FAILS (1956); see also LEON FESTINGER, CONFLICT, DECISION, AND DISSONANCE (1964).
242. BYRNES, supra note 239, at 153 (quoting LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 3 (1957)). For a discussion of cognitive dissonance theory, see JACK W. BREHM & ARTHUR R. COHEN, EXPLORATIONS IN COGNITIVE DISSONANCE (1962). See also Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U. PITT. L. REV. 589, 618-20 (2002).
243. BYRNES, supra note 239, at 152.
244. Id. at 156.
245. Id. at 157-58 (quoting 2 GEORGE A. KELLY, THE PSYCHOLOGY OF PERSONAL CONSTRUCTS 688 (1955)).
246. Id. at 158 (quoting 2 KELLY, supra note 246, at 702).
247. See Harmer-Dionne, supra note 240, at 1310-15, 1319-40 (discussing sources of religious prejudice and belief and examining the social and political history of the early Mormon Church's advocacy of polygamy as a prism for ways in which culture and belief can conflict, with the Mormon Church ultimately abandoning its endorsement of polygamy as a theological necessity in order to avoid further governmental efforts at suppression of the group and also to achieve broader social acceptance within the national community); see also Stern, supra note 243, at 619-20 (describing and explaining psychological research that shows how individuals within larger groups take their cues from other group members, and how shared points of view can provide powerful reinforcement to "groupthink"; and concluding that "there is a bias in favor of belief perseverance," that "people strive for consistency between their attitudes and behaviors," and that "public commitments exacerbate the consistency bias"). Whether the efforts of the Mormon Church and its members to achieve broad-based acceptance within the national culture has been successful unfortunately remains open to serious doubt. See Laurie Goodstein, Romney's Run Has Mormons Wary of Scrutiny, N. Y. TIMES, June 11, 2007, at A1 (discussing the pride of Church members in Governor Mitt Romney's (ultimately unsuccessful) bid for the GOP presidential nomination but noting also that "the moment is fraught with anxiety because his candidacy is bringing intense scrutiny to their church, and could exacerbate longstanding bigotry," and noting that "many Mormons hope that Romney's candidacy will re-introduce Americans to a church that has been maligned and misunderstood").
248. BYRNES, supra note 239, at 158.
249. As Professor Davis explains, "[n]ew religions which demand a high degree of commitment from adherents are bound to be disturbing to outsiders, especially to family members of those who join." Dena S. Davis, Joining a "Cult": Religious Choice or Psychological Aberration?, 11 J.L. & HEALTH 145, 172 (1996-1997).
250. David G. Bromley & J. Gordon Melton, Violence and Religion in Perspective, in CULTS, RELIGION, AND VIOLENCE 1, 2 (David G. Bromley & J. Gordon Melton eds., 2002).
251. Id; see also Cynthia Norman Williams, Note, America's Opposition to New Religious Movements: Limiting the Freedom of Religion, 27 LAW & PSYCHOL. REV. 171, 173 (2003) ("Whichever definition is chosen, a cult is a religious practice that goes against the mainstream by displacing the ideals of the majority and embracing its own unique brand of worship.").
252. Davis, supra note 250, at 172.
253. See David G. Bromley, Dramatic Denouements, in CULTS, RELIGION, AND VIOLENCE, supra note 251, at 11, 20-23; see also Davis, supra note 250, at 147-51; James T. Richardson & Mary White Stewart, Medicalization and Regulation of Deviant Religions: An Application of Conrad and Schneider's Model, in REGULATING RELIGION: CASE STUDIES FROM AROUND THE GLOBE 507, 521-23 (James T. Richardson ed., 2004).
254. Bromley, supra note 254, at 21.
255. See id. at 21-23. On the history of the Unification Church in the United States, and its generally hostile reception in many quarters, see generally CARLTON SHERWOOD, INQUISITION: THE PERSECUTION AND PROSECUTION OF THE REVEREND SUN MYUNG MOON (1991); for a more negative and critical approach to the subject, see ERICA HEFTMANN, DARK SIDE OF THE MOONIES (1982).
256. Bromley, supra note 254, at 23.
257. J. Gordon Melton & David G. Bromley, Challenging Misconceptions About the New Religions-Violence Connection, in CULTS, RELIGION, AND VIOLENCE, supra note 251, at 42, 42.
258. Id; see also Davis, supra note 250, at 145-46 (noting that parents justified abusive deprogramming for their children in part by claiming that "these were not 'genuine' religious movements-i.e., not worthy of tolerance and respect - and the converts' choices were not actually free choices at all, but the result of 'brainwashing,' sometimes called 'coercive persuasion,' 'thought reform,' or 'mind control.'"). For an argument that coercive deprogramming efforts should not be viewed as violative of Establishment Clause principles, see Richard Delgado, When Religious Exercise is Not Free: Deprogramming and the Constitutional Status of Coercivefy Induced Belief, 37 VAND. L. REV. 1071 (1984).
259. Melton & Bromley, supra note 258, at 43.
260. Id.; see also Davis, supra note 250, at 149 ("Anti-cult evangelicals, not surprisingly, while vociferous against groups such as DLM [Divine Light Movement] and the 'Moonies' [the Unification Church], protest that 'aggressiveness and proselytizing ... are basic to authentic Christianity,' and that Jews for Jesus and Campus Crusade for Christ are not to be labeled as cults.").
261. Melton & Bromley, supra note 258, at 43.
262. Davis, supra note 250, at 149.
263. Melton & Bromley, supra note 258, at 45.
264. LIONEL ROTHKRUG, DEATH, TRUST, & SOCIETY: MAPPING RELIGION & CULTURE 39 (2006); see also Williams, supra note 252, at 174 ("Mainstream America feels threatened by new religious movements that allow and even encourage physical and sexual abuse, sexual deviation and experimentation, and mass suicides.").
265. See WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? 20-31, 39-41 (2006); see also Justin T. Wilson, Note, Preservationism, or the Elephant in the Room: How Opponents of Same-Sex Marriage Deceive Us into Establishing Religion, 14 DUKE J. GENDER L. & POL'Y 561 (2007). See generally ANDREW KOPPELMAN, THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW (2002); ANDREW KOPPELMAN, SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES (2006).
266. See Harmer-Dionne, supra note 240, at 1332-40 (canvassing the history of polygamy in the Mormon Church and the decision to abandon the tenets of the faith requiring the practice of polygamy as part of a "radical assimilation and accommodation" effort that "secularized Mormon theology, turning it toward Protestant neoorthodoxy," thereby becoming "models of patriotic, law-abiding citizenship" with Church leadership "no longer composed of radical visionaries, but rather ... drawn from the ranks of successful businessman, attorneys, scholars, and LDS church bureaucrats"). As Harmer-Dionne argues, "for a liberal polity such as the United States that purports to value the freedom of religion, speech, and conscience, there is a marked philosophical difference between theological developments that result from organic evolution and those that result from massive persecution and forced cessation of social customs and marital practices." Id. at 1339; see also Goodstein, supra note 248, at A1 (noting that "[t]he Church of Jesus Christ of Latter-day Saints ... has been fighting for legitimacy since its founding 177 years ago in upstate New York" but that "Mormons are by now successfully integrated and prospering in the American mix"; even so, however, "memories of that persecution are still fresh").
267. Williams, supra note 252, at 176.
268. Id.
269. Id. at 182.
270. See supra notes 147-94 and accompanying text.
271. See supra text and accompanying notes 147-68.
272. Cleveland v. United States, 329 U.S. 14, 24-27 (1946) (Murphy, J., dissenting).
273. BYRNES, supra note 239, at 167.
274. Bromely & Melton, supra note 251, at 3; see Horwitz, supra note 229, at 118-27 (discussing Germany's efforts to proscribe the Church of Scientology); see also Michael Browne, Should Germany Stop Worrying and Learn to Love the Octopus? Freedom of Religion and the Church of Scientology in the United States, 9 IND. INT'L & COMP. L. REV. 155 (1998); Michael Cieply & Mark Landler, Plot Thickens in a Tom Cruise Film, Long Before Cameras Begin to Roll, N. Y. TIMES, June 30, 2007, at B7.
275. See United States v. Ballard, 322 U.S. 78, 86-87 (1944).
276. Id. at 79-80.
277. Id.
278. Id at 80-81.
279. Id. at 86.
280. Id. at 92 (Jackson, J., dissenting).
281. Tushnet, supra note 236, at 400.
282. See Marshall, supra note 32, at 311 ("A court is more likely to find against a claimant on definitional grounds when the religion is bizarre, relative to the cultural norm ...."); Tushnet, supra note 236, at 381-83 ("[A] subtle preference for claims readily understandable by those adherents of mainstream religion .... occurs because it is a normal human reaction to be skeptical about the sincerity of a person who claims to hold unconventional beliefs.").
283. See supra notes 193-203, 221-31, and accompanying text; supra note 236.
284. See supra text and accompanying notes 192-216.
285. Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 957-58 (1989).
286. Id. at 958.
287. Id. (footnote omitted).
288. Id.
289. John Wybraniec & Roger Finke, Religious Regulation and the Courts: The Judiciary 's Changing Role in Protecting Minority Religions from Majoritarian Rule, in REGULATING RELIGION: CASE STUDIES FROM AROUND THE GLOBE, supra note 254, at 535.
290. Id. at 540-42.
291. Id. at 542.
292. Id. 294 Id.
293. Id.
294. Id.
295. Id.
296. Id.
297. Id.
298. Id. at 542-49.
299. Id.
300. Id. at 542.
301. Id.
302. Id. at 543-44.
303. Id. at 545.
304. See id. at 546-48.
305. Id. at 548.
306. Id. at 549.
307. Id.
308. Id.
309. The empirical study undertaken by Professors Sisk, Heise, and Morriss, which considered both constitutional and statutory claims for religious exemptions at the state and federal level, found that "religious affiliation variables-both those of judges and of claimants-were the most consistently significant influences on judicial votes in the religious freedom cases included in [the] study." Sisk, Heise & Morriss, supra note 11, at 501. It bears noting, then, that the problem of judicial bias might depend on the precise source of the legal claims at bar; the Sisk, Heise, and Morriss study found higher success rates for minority religionists than other studies found, but it also considered statutory and other constitutional avenues of seeking relief. Id. at 567-71. Because the study considered multiple means of securing judicial protection, including pure equal protection and free speech claims, it is less useful in isolating the question of judicial bias with respect to only those litigants asserting a free exercise claim. See id. (positing that clever litigants would adopt alternative theories to support their legal claims, finding a "notable change in litigant strategy" along these lines because of the reduced "litigative potential of the Free Exercise Clause" post-Smith, and noting that their study "considered not only multiple claim cases in which religious expression or religious discrimination claims were raised in addition to Free Exercise claims, but also those cases in which litigants sought to bypass Smith altogether by eschewing any reliance on the Free Exercise Clause and instead couching a claim solely upon free speech or equality principles"). These findings tend to support, rather than undermine, my argument that enforcement of the Free Exercise Clause vel non presents cultural difficulties not present with respect to minority religionists raising free speech or equal protection claims. In other words, asking a court to vindicate a free exercise claim triggers a different judicial reaction than asking a judge to validate a free speech or equal protection claim.
310. Wybraniec & Finke, supra note 290, at 549.
311. Again, one cannot overestimate the importance of culture in prefiguring the ability of a judge to credit a claim that God commands a particular course of conduct (regardless of its legal status). As Professor Stephen Carter has noted, "[a] devout Christian will not see the world the same way as a devout Muslim, who will not see the world the same was as a devout Jew, who will not see the world the same way as a devout Hindu." STEPHEN L. CARTER, GOD'S NAME IN VAIN: THE WRONGS AND RIGHTS OF RELIGION IN POLITICS 30 (2000). Carter suggests that differences between and among communities of faith "are not trivial" and that they fundamentally affect the way a person exists in the world; in a word, "[t]hey are about life." Id.
312. James T. Richardson, Regulating Religion: A Sociological and Historical Introduction, in REGULATING RELIGION: CASE STUDIES FROM AROUND THE GLOBE, supra note 254, at 1, 8.
313. Id.
314. The conclusions are also consistent with the larger findings of the Sisk, Heise, and Morriss empirical study. See Sisk, Heise & Morriss, supra note 11, at 614 ("In our study of religious freedom decisions, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion - religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community.").
315. The results of this study appear in a grid form in the Appendix.
316. See Robert L. Boone, Comment, Booker Defined: Examining the Application of United States v. Booker in the Nation's Most Divergent Circuit Courts, 95 CAL. L. REV. 1079, 1094 (2007) ("As legal scholars and practitioners are aware, the Fourth Circuit has come to be known as the most conservative federal court of appeals. Conversely, the Ninth Circuit has a reputation as the most liberal circuit court.").
317. See Stephen J. Wermeil, Exploring the Myths About the Ninth Circuit, 48 ARIZ. L. REV. 355, 355-58 (2006) (arguing that, although there is a tendency to overstate the degree to which the Ninth Circuit is a relatively liberal bench, careful examination of decisions does reflect a progressive cast to this Court of Appeals; and introducing an entire symposium dedicated to the normative and empirical study of the U.S. Court of Appeals for the Ninth Judicial Circuit that generally bears out this assertion).
318. See Melanie D. Winegar, Note, Big Talk, Broken Promises: How Title I of the Americans with Disabilities Act Failed Disabled Workers, 34 HOFSTRA L. REV. 1267, 1295 (2006) (describing the Sixth Circuit as "usually moderate"); see also Pierre H. Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990-2000, 68 TENN. L. REV. 771 (2001); Emery G. Lee, III, Horizontal Stare Decisis on the U.S. Court of Appeals for the Sixth Circuit, 92 KY. L.J. 767 (2003) (noting the stability of intracircuit precedent in the Sixth Circuit).
319. See infra Appendix.
320. See supra note 319.
321. See McConnell, Origins and Historical Understanding, supra note 6, at 1473-1513.
322. See infra notes 330-60.
323. See infra Part IV.A.
324. See 1 THE DEBATES AND PROCEEDINGS OF THE CONGRESS OF THE UNITED STATES 434-35 (Joseph Gales & W.W. Seaton eds., 1834) (June 8, 1789) [hereinafter ANNALS OF CONG.] ("The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.... No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."). Note that two printings exist of the first two volumes of the Annals of Congress. They contain different pagination, running heads, and back titles. The printing with the running head "History of Congress" conforms to the remaining volumes of the series, while the printing with the running head "Gales & Seaton's History of Debates in Congress" is unique. All page citations herein are to the former printing. Readers with the "Gales & Seaton's History" printing can most easily find parallel citations by referring to the date. See McConnell, Origins and Historical Understanding, supra note 6, at 1427 n.84.
325. In a similar fashion, some state constitutions use the phrase "law of the land," rather than "due process of law," to express the concept that government must act in a fundamentally just fashion. See Ronald J. Krotoszynski, Jr., Fundamental Property Rights, 85 GEO. L.J. 555, 592-94 & n.247 (1997). The use of "law of the land," dating back to the Magna Carta, rather than the use of the more contemporary "due process of law," does not indicate a difference in substantive content; rather, it is simply another means of expressing the same basic concept of rational, fundamentally fair governance. See id. at 593 n.247; see also Edwin S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 380-84 (1911) (discussing the "law of the land" clause in the North Carolina bill of rights as endowing rights equivalent to those guaranteed by clauses requiring "due process of law"); A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 881-82 (1976) ("Long before the adoption of the Fourteenth Amendment, state courts had begun to develop a body of substantive due process law, drawing on state constitutional due process or 'law of the land'provisions."); Andrew T. Hyman, The Little Word "Due," 38 AKRON L. REV. 1, 10-11 (2005) ("It is well-known that the federal Due Process Clause has its origins in the 'Law of the Land' clause of Magna Carta."); Robert E. Riggs, Substantive Due Process in 1791, 1990 WIS. L. REV. 941, 948-84 (tracing the development of the concept of due process from Magna Carta's "law of the land" clause in Chapter 39 to the early years of the Republic and concluding that state law cases from the late eighteenth and early nineteenth centuries "unquestionably establish that law of the land clauses and other provisions in state constitutions protecting life, liberty, and property could be treated by courts as limitations upon legislative competence" and that some of the cases "suggest an underlying theory closely akin to substantive due process"). See generally Hyman, supra, at 10-20 (discussing "law of the land" clauses in state constitutions in the early years of the Republic).
326. See infra notes 381-85, 425-26 and accompanying text.
327. See infra notes 374-380 and accompanying text.
328. Wallace v. Jaffree, 472 U.S. 38, 97-98 (1985) (Rehnquist, J., dissenting) (noting that James Madison "undoubtedly was the most important architect among the members of the House of the Amendments which became the Bill of Rights"); see Arlin M. Adams & Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. PA. L. REV. 1559, 1586-87 (1982) ("No Founder contributed to the cause of religious liberty more than Madison, who is considered the chief architect of the Constitution and prime drafter of the Bill of Rights."); Brace Fein, On Reading the Constitution, 90 MICH. L. REV. 1225, 1227 (1992) (describing Madison as the "chief architect of the Bill of Rights"). See generally JACK RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEALS IN THE MAKING OF THE CONSTITUTION (1996).
329. 1 ANNALS OF CONG., supra note 326, at 434 (June 8, 1789).
330. McConnell, Origins and Historical Understanding, supra note 6, at 1481.
331. Id.
332. See 1 ANNALS OF CONG., supra note 326, at 434-35 (June 8, 1789) (suggesting the amendments as modifications to existing text).
333. Id. at 435.
334. McConnell, Origins and Historical Understanding, supra note 6, at 1481-83.
335. 1 ANNALS OF CONG., supra note 326, at 440-41 (June 8, 1789) (noting his fear that "there is more danger of those powers being abused by the State Governments than by the Government of the United States" and specifically reiterating the need to prohibit states from "violatjmg] the equal right of conscience").
336. Id.
337. Id. at 436.
338. Id.
339. Id. at 440.
340. Id.
341. Id. at 440-41.
342. Id. at 441.
343. McConnell, Origins and Historical Understanding, supra note 6, at 1443, 1481-83.
344. 1 ANNALS OF CONG., supra note 326, at 665 (July 21, 1789).
345. Id.
346. See U.S. CONST. art. I, § 2, cl. 3.
347. See U.S. CONST. art. V. 350 1 ANNALS OF CONG., supra note 326, at 729 (Aug. 15, 1789).
348. Id.; see also id at 435 (June 8, 1789).
349. Id. at 730 (Aug. 15, 1789).
350. Id.
351. See id. at 731 (reporting on a proposal by Representative Livermore to modify the committee's language to provide that "Congress shall make no laws touching religion, or infringing the rights of conscience").
352. Id. (noting that the House of Representatives adopted Representative Livermore's proposed language by a vote of thirty-one to twenty).
353. Id at 766 (Aug. 20, 1789).
354. Id.
355. Id. at 766-67.
356. Id.
357. Id.
358. See McConnell, Origins and Historical Understanding, supra note 6, at 1500-03.
359. Id. at 1501.
360. Id. (emphasis added).
361. Id. at 1482-83.
362. Id. at 1488.
363. See id. at 1488-1500.
364. Id. at 1490.
365. Id.
366. See 1 ANNALS OF CONG., supra note 326, at 767 (Aug. 20, 1789).
367. Id. at 913 (Sept. 24, 1789).
368. It bears noting that the legislative history of the Free Exercise Clause in the Senate is largely lost to history because "the Legislative as well as Executive sittings of the Senate were held with closed doors until the second session of the third Congress, with the single exception of the discussion of the contested election of A. Gallatin, as Senator from Pennsylvania, during which discussion the galleries were opened by a special order of the Senate." Id. at 15. The closed nature of Senate deliberations in the first Congress accordingly explains "the meagemess of the report of the Senate proceedings." Id. Moreover, James Madison, then a member of the House of Representatives, has generally been credited as the principal architect of the Bill of Rights. See supra note 330. Accordingly, even without the lack of a similar record of the Senate's proceedings, Madison's views should be of particular relevance to understanding the original intention of the Free Exercise Clause.
369. Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970) ("Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."); see also Locke v. Davey, 540 U.S. 712, 718-19 (2004) (quoting and applying the "play in the joints" metaphor to sustain the exclusion of divinity school studies related to preparation for a career in the ministry from a Washington State scholarship program). See generally Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1, 3-4, 24-34 (discussing permissible governmental accommodation of religion, which represents the operationalization of the "play in the joints").
370. See supra notes 123-45 and accompanying text.
371. Leo Pfeffer, Equal Protection for Unpopular Sects, 9 N.Y.U. REV. L. & SOC. CHANGE 9, 11 (1980-1981) ("The purpose of the first amendment's guarantee of freedom of religion was and is the protection of unpopular creeds and faiths.").
372. United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring).
373. Id.
374. Bowen v. Roy, 476 U.S. 693, 716 (1986) (Stevens, J., concurring in part and concurring in the result).
375. Abner S. Greene, The Political Balance of the Religion Clauses, 102 YALE L.J. 1611, 1626 (1993).
376. See Pfeffer, supra note 374, at 11 ("It needs no constitution to assure security for the Episcopalians, Methodists, Presbyterians, or other well-established and long-accepted religions. The heart of the first amendment would be mortally wounded if the religions we now call cults were excluded from the zone of its protection because of their disfavor in the eyes of government officials or of the majority of Americans.").
377. United States v. Ballard, 322 U.S. 78, 92 (1944) (Jackson, J., dissenting).
378. Pepper, supra note 134, at 328.
379. Id.
380. See supra notes 189-233 and 236-66 and accompanying text.
381. Ronald J. Krotoszynski, Jr., Building Bridges and Overcoming Barricades: Exploring the Limits of Law as an Agent of Transformational Social Change, 47 CASE W. RES. L. REV. 423, 440 (1997).
382. Id.; see supra notes 236-85 and accompanying text.
383. See Employment Div. v. Smith, 494 U.S. 872, 879-85, 890 (1990) (holding that neutral laws of general applicability receive only rationality review and do not trigger heightened judicial review in the absence of evidence that the law or policy reflects religious animus, i.e., it was adopted because of, not despite, its effect on a particular religious group, or that the claim implicates another coordinate constitutional right, such as the freedom of speech or substantive due process, rendering it a "hybrid" claim); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 529-32 (1993) (applying strict scrutiny review to Hialeah, Florida ordinances prohibiting ritual animal sacrifice because the plaintiffs successfully established that the ordinances facially targeted the practices of the Santerian Church and that the legislative history of the enactments at the time of their adoption reflected pervasive, open, and outrageous hostility toward the Santerian Church); Steven R. Salbu, AIDS and the Blood Supply: An Analysis of Law, Regulation, and Public Policy, 74 WASH. U. L.Q. 913, 966 (1996) ("Because motives exist in the mind of the individual, they are subject to degrees of concealment and subterfuge. A prospective discriminator who is clever and reasonably well versed in the law can achieve a discriminatory goal while leaving no evidence of discriminatory motives." (footnote omitted)). See generally Michelle Adams, Causation and Responsibility in Tort and Affirmative Action, 79 TEX. L. REV. 643 (2001) (arguing that effective enforcement of constitutional antidiscrimination norms requires a more nuanced understanding of causation, such as the creative approaches used in tort law, because imposing a highly formalistic approach that places a heavy burden on government to show a clear causal link, the "cause in fact," in tort nomenclature, between past participation in discriminatory outcomes and a current remedy through affirmative action results in the systematic inability of government to correct effectively for its past contributions to a less equal society). As Adam suggests, a highly formalistic approach to proving discriminatory intent has the same effect by precluding claims that have merit but lack the overwhelming proof present in Church of the Lukumi Babalu Aye.
384. See Perry, supra note 8, at 299-303 (discussing the free exercise norm as an antidiscrimination norm).
385. At the meeting to consider one of the anti-animal sacrifice ordinances, representative comments included statements by council members such as '"people were put in jail for practicing this religion'" in pre-revolution Cuba, the statement that the Santerian Church's members "are in violation of everything this country stands for," and '"What can we do to prevent the Church from opening?"' Church of the Lukumi Babalu Aye, 508 U.S. at 541. Indeed, comments from members of the city council, city officials, and members of the public all reflect strong and overt prejudice against the church and the Santerian religion in general. See id. at 541-42.
386. Indeed, Justice Scalia would not even permit plaintiffs to rely on the legislative history of a facially neutral law to establish discriminatory purpose; instead, he would require plaintiffs to establish discrimination on the face of the statute or ordinance. See id. at 558 (Scalia, J., concurring).
387. See Meyler, supra note 30, at 276 ("[A]pproaching the Free Exercise Clause from the vantage point of equality - or, more specifically, equal protection - is neither new nor entirely susceptible to those critiques that have been articulated.").
388. 517 U.S. 620, 631-33 (1996).
389. 473 U.S. 432, 440-42, 447 (1985).
390. 457 U.S. 202, 216-17, 217 n.14, 223 (1982). Justice O'Connor's concurring opinion in Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O'Connor, J., concurring), also reflects a "rationality with bite" approach, in that it demands a concrete policy, other than mere dislike of sexual minorities, to sustain a ban on same-sex, but not opposite-sex, sodomy (whether as written or as enforced).
391. For a discussion of the various burdens of proof under tiered scrutiny, see supra notes 38-39 and accompanying text. See also Goldberg, supra note 15, at 484-94, 508-27.
392. See Romer, 517 U.S. at 631-36 (invoking the rationality standard of review, but putting the burden of proof on the government to establish an actual reason for the classification at issue other than simple animus toward gay and lesbian persons); Cleburne Living Ctr., 473 U.S. at 440 (same with respect to mentally retarded persons); Plyler, 457 U.S. at 217-20, 223-24 (same with respect to the children of illegal immigrants residing unlawfully in the United States); see also Peter J. Rubin, Reconnecting Doctrine and Purpose: A Comprehensive Approach to Strict Scrutiny After Adarand and Shaw, 149 U. PA. L. REV. 1, 12-18 (2000) (exploring the theoretical, doctrinal, and policy considerations that could justify heightened judicial scrutiny of governmental actions; suggesting a truth in advertising approach could better serve these interests; concluding that "[t]he theoretical inadequacies of any approach based on consideration in the abstract of the characteristics of a particular class or classification, and the Court's inability to apply this approach with any even apparent consistency, suggest that there is a need for a different way of understanding what should and does trigger strict scrutiny"; and positing that "an examination of the Court's cases provides just such an understanding," namely that "a decision to examine a classification closely reflects a judgment that there are particular harms or risks that may render the use of a characteristic in the particular way at issue inconsistent with basic principles of human dignity").
393. I am indebted to Michael Perry for making this point. It is true that the Supreme Court has deployed identical standards of review to equality claims arising under the Equal Protection Clause and to autonomy claims arising under the doctrine of substantive due process. There is no necessary relationship between a right being premised on equality or autonomy and the specific standard of review to be used in measuring the merits of a claim; thus, rationality review, rationality with bite, intermediate scrutiny, and strict scrutiny could apply to either autonomy- or equality-based claims. My concern is with adopting a theory, and a standard of review, that both acknowledges and attempts to control for the fact of cultural bias with respect to religious groups.
394. I do not insist that rationality with bite is the only possible standard or even the best standard of review; my claim is more limited. We know that judges will not apply strict scrutiny in an evenhanded fashion and that true rationality review underprotects religious minorities. Rationality with bite would be a logical standard of review, but arguably intermediate scrutiny might work equally well. The key inquiry in either case would be whether judges are capable of applying the standard equally to all claimants. See generally Pat Cain, Good and Bad Bias: A Comment on Feminist Theory and Judging, 61 S. CAL. L. REV. 1945 (1988) (discussing the difference between "good" bias and "bad" bias in judging).
395. See 5 U.S.C. § 706(2)(A) (2000) (a reviewing court must set aside agency action if the action is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law").
396. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983) (citations omitted) (internal quotation marks omitted).
397. Id.
398. Id. at 42, 57.
399. Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285 (1974); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,416 (1971) ("Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its own judgment format of the agency.").
400. Citizens to Preserve Overton Park, 401 U.S. at 419 (citation omitted).
401. Bowman Transp., Inc., 419 U.S. at 285-86.
402. See supra note 33.
403. Lupu, supra note 286, at 947.
404. See supra notes 195-233 and accompanying text.
405. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (emphasis added).
406. Id. at 887.
407. See McConnell, supra note 2, at 139 (arguing that religions "close to the center of prevailing culture in America" will either be unregulated or will obtain legislative exemptions whereas "[r]eligous groups whose practices and beliefs are outside the mainstream are most likely to need exemptions" but will not receive them); id. (arguing that Smith is objectionable because "it introduces a bias in favor of mainstream over non-mainstream religions" and that this bias "is not consistent with the original theory of the Religion Clauses"). But see Mark Tushnet, The Emerging Principle of Accommodation of Religion (Oubliante), 76 GEO. L.J. 1691, 1700 (1988) (arguing that legislative accommodations of religion will produce an "overall distribution of benefits and burdens [that] is likely to be reasonably fair").
408. See SULLIVAN, supra note 118, at 149-50 (questioning the use of religion as a construct for protecting human rights because "[f]air legal accommodation of differences among humans is a major problem for the law"; asking "[w]hat would be lost if the law focused not on the special category of religion but on the accommodation of difference generally, and what compromises any such accommodations imply for commitments to equality?"; and asserting that "equality has arguably been and continues to be the dominant political value of American politics and of constitutional jurisprudence").
409. Hernandez v. Comm'r, 490 U.S. 680, 696-700 (1989) (affirming the IRS's decision to deny members of the Church of Scientology the ability to deduct payments for Church-provided "auditing" sessions because of the quid pro quo nature of the payments and refusing to consider seriously whether the IRS has permitted the deducibility of arguably indistinguishable quid pro quo payments for religious services procured by adherents of more traditional religious groups).
410. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-48 (1993) (invalidating local ordinances dealing with the ritual slaughter of animals by Santerians because the city council manifested overt and obvious religious bias against the Santerians at the time it adopted the ordinances and, moreover, because the city council tailored the ordinances to target religious practices in general, and Santerian animal sacrifice in particular, but specifically excluded from the scope of the laws some religiously motivated rules that address the killing of animals).
411. See Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 CAL. L. REV. 741, 745-50 (1994); Ronald J. Krotoszynski, Jr., Dissent, Free Speech, and the Continuing Search for the "Central Meaning" of the First Amendment, 98 MICH. L. REV. 1613, 1625 (2000); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 6, 9-25 (1984); see also Kim Forde-Mazrui, Jural Districting: Selecting Impartial Jurors Through Community Representation, 52 VAND. L. REV. 353, 354-58, 360-65, 385-89 (1999) (discussing the systematic exclusion of minorities from juries and the implications of the failure to adequately represent various groups on juries, notably including inaccurate or unjust jury verdicts); Heather K. Gerken, Second Order Diversity, 118 HARV. L. REV. 1099, 1106-08, 1121-26, 1134-35, 1144-45 (2005) (discussing how majority rule often implies bad things for minorities, with particular attention to problems of discrimination against electoral minorities (however constituted); and arguing that rethinking the structures of government to vest minorities with decisional authority over smaller units of government might achieve fair outcomes more reliably than would placing more minorities in majority-dominated institutions, where their voices will necessarily be rather muted); David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Seizures Without Cause, 3 U. PA. J. CONST. L. 296, 296-304, 307 (2001) (describing and critiquing the myriad studies that show persistent race bias in law enforcement across jurisdictions (local, state, and federal) and at all points in the criminal process, from police stops, to prosecutorial charging and plea negotiations, to jury behavior, to judicial sentencing practices); Steven H. Shiffrin, Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 CORNELL L. REV. 43, 81-84 (1994) (discussing the importance of facilitating the participation of minorities, whether racial, religious, cultural, or otherwise, in the process of democratic deliberation, and arguing that courts should strive to confer the broadest First Amendment protection on dissenting speech by members of such groups because they face the highest prospect of governmental efforts to silence them); Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African American Males: An Overview, 23 CAP. U. L. REV. 23 (1994) (documenting and critiquing disturbing patterns of bias by juries in cases with racial minority defendants); Note, Bias Crimes: Unconscious Racism in the Prosecution of "Racially Motivated Violence, " 99 YALE L.J. 845 (1990) (arguing that, perhaps ironically, racial bias affects the legal system's effort to enforce laws aimed at eradicating hate crimes).
412. Tushnet, supra note 236, at 381.
413. Id. at 380.
414. Id.
415. Id.
416. Id. at 382.
417. Id.
418. Id.; see also United States v. Ballard, 322 U.S. 78, 92-93 (1944) (Jackson, J., dissenting) ("If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.").
419. Tushnet, supra note 236, at 382.
420. Marshall, supra note 32, at 310-11.
421. Id. at 311 (footnote omitted).
422. Id.
423. Id. at 316, 318.
424. Id.
425. So does Judge McConnell. See McConnell, supra note 2, at 127-28 (noting that the Supreme Court rejected most mandatory accommodation requests and that "the Supreme Court rejected all but one claim for free exercise exemption outside the field of unemployment compensation"). McConnell observes that "[t]he doctrine was supportive, but its enforcement was half-hearted or worse." Id. at 128.
426. See Laycock, supra note 108, at 1015-16; Laycock, supra note 2, at 10-15, 42-43; Marshall, supra note 32, at 318-19; McConnell, supra note 2, at 139; Perry, supra note 8, at 299-301; Tushnet, supra note 410, 1700-01. Thus, both supporters and opponents of Smith agree that legislative indifference to minority religions and religionists presents a serious problem for securing religious equality.
427. The Supreme Court's standard modus operandi is, of course, to assume the universal availability of an exemption and to weigh the government's interest from this vantage point. See, e.g., Bowen v. Roy, 476 U.S. 693, 699-701 (1986); Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986); United States v. Lee, 458 U.S. 252, 258-61 (1982); see also supra notes 195-233 and accompanying text; cf. Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972).
428. See Strauder v. West Virginia, 100 U.S. 303 (1879).
429. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
430. The results come from two searches on LexisNexis. The first one was a narrow search using the terms "religion and free exercise and neutral and discrimination," which was performed in each of the three circuits. The second search was a broader search for the terms "free exercise and religion," which also covered each circuit. All searches were limited in time from January 1, 1890 (shortly after Reynolds) to May 24, 2006. All searches were Shephardized in an effort to minimize the risk of missing important cases. Only cases in the U.S. courts of appeals for a given circuit were recorded, and no data were recorded on any state court cases, U.S. district court cases, or U.S. Supreme Court cases. The researcher disregarded all unpublished opinions, all opinions to which citation is limited by the local or federal rules of procedure, and all cases in which the opinion does not reveal the religious beliefs or affiliations of the litigants. All litigants who were not mainstream Protestants, Catholics, or Jews were considered minorities for this study, with the excepted religions being considered majorities.