What should the word religion mean in the First Amendment? The Pew Forum recently released the results of a survey revealing that nearly 23% of Americans describe themselves as religiously unaffiliated – as atheist, agnostic, or more typically “nothing in particular.” See Pew Forum. Should this mean that this group should receive no protection under the Free Exercise of Religion Clause of the First Amendment? I leave aside the fact that the majority of this group believes in God, but does not affiliate with an institutional church. The Free Exercise Clause should centrally be read to protect freedom of conscience whatever its source. When government forces someone to do something they feel morally obligated not to do or forbids someone not to do something they feel obligated to do, a just system would recognize that this burden on freedom of conscience is at least regrettable and often impermissible.
Sometimes burdens on freedom of conscience are permissible. If a person feels a moral obligation to engage in human sacrifice, certainly the law should recognize that the interest in human life outweighs the religious interest. Sometime burdens on freedom of conscience should not be permitted. For example, it is widely understood that the Supreme Court erred when it determined that Native Americans could be prohibited from using peyote in their religious ceremonies. Since burdens on conscience could sometimes be permissible and sometimes not permissible, it seems that balancing the relevant interests at stake is necessary if just results are to be achieved.
With respect to association of religion claims, no normative weight should be placed on the fact that the claim is religious in character. For example, it seems to me that Catherine Corbin, Larry Sager, and Chris Eisgruber are right in concluding that religious freedom of association claims should not be regarded as special. The Court has ruled that religious institutions may pick ministers for any reason whatsoever, and surely they should be able to pick ministers according to their doctrinal requirements even if those requirements are obnoxious. So too the Sierra Club should be able to pick officers according to their mission. But suppose a church decides to discriminate on the basis of race in selecting a minister when it is no part of its religious doctrine to do so. The so-called ministerial exception would permit this exercise of bigotry in the name of church autonomy. That position is decidedly unattractive.
As a qualification to this discussion, I would first observe that it should be possible to raise Free Exercise claims in situations in which a religious practice is not supported by a claim of conscience. That is, the practice is not required by conscience, but is a part of the religious tradition. If it is supported by tradition, but not required by conscience, I would think that is entitled to less weight than conscience claims. On the other hand, this may be an instance in which religion should have an entitlement to be considered where secular claims do not.
Second, there is an important secular claim to conscience that I do not consider to be within the scope of the religion clause. Consider a utilitarian who believes herself morally obligated to maximize human happiness. The problem with this moral position is that it renders virtually all actions of the utilitarian as morally required, and it would make all those actions cognizable under the Free Exercise clause. That is too much not only for the law to administer, but I also doubt that utilitarians actually experience all their choices as morally freighted and I further doubt that when the law impinges on choices they would otherwise make that they regularly experience these foreclosed choices as impingements on their moral life. Of course, there will be such experiences for utilitarians, but I suspect those experiences are rooted in something more particular than a general commitment to utilitarianism.
Finally, I think the flight of many (most?) secular liberals from a strong conception of religious freedom accompanied by opposition to religious freedom restoration acts strikes me as wrong-headed. It fails to appreciate that religious freedom has always been balanced against other interests. It is short sighted because it appears to be rooted in the view that the religious right has a monopoly on religious freedom claims – a reading of politics belied by our history. And it raises again the question why the secular left defends so many hateful and harmful views under the speech clause, but seems prepared to let its rightful opposition to right wing religious views morph into a nearly full scale abandonment of the defense of religious views it has historically maintained.