Background

This began as one of those late night political conversations with friends. While discussing the passage of the Religious Freedom Restoration Act, one of my friends asked what practical effect this legislation might have, say for instance on the laws against polygamy. Thus it became my assignment to research this subject and report back to the group. What follows is the result of that research. 

The Early Days

Men may believe what they cannot prove... Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.

U.S. v. Ballard 322 U.S. 78 (1944), Justice Douglas for the majority.

In the middle of the last century this nation was torn apart by a long and bloody civil war. Though that war had many mothers, at its beating heart was the issue of "domestic institutions". One such institution defined the peculiar and odious relationship between a master and a slave. Another institution, less well remembered but which, at the time, was perceived as equally primitive, barbaric, and evil; one that was believed to lead consistently and inevitably to tyranny, despotism and servitude was the institution of plural marriage, also known as polygamy.

At this time the Territory of Utah was settled and politically controlled by members of the Church of Jesus Christ of the Latter Day Saints, also known as Mormons, who were not only permitted but commanded by their religious doctrine to avail themselves of every opportunity to establish polygamous relationships. But remoteness and isolation was no obstacle to the opprobrium of a "civilized" and "enlightened" society. In 1862 the Thirty Seventh Congress passed a law which effectively outlawed polygamy in every province and territory of the United States, including and especially in Utah.

Be it enacted ... that every person having a husband or wife living who shall marry any other person, whether married or single, ... shall ...be adjudged guilty of bigamy and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, and by imprisonment for a term not exceeding five years... And be it further enacted that ... all other acts or parts of acts heretofore passed by the legislative assembly of the Territory of Utah which establish, support, maintain, shield, or countenance polygamy, be, and the same hereby are, disapproved and annulled... And be it further enacted, that it shall not be lawful for any corporation or association for religious or charitable purposes to acquire or hold real estate...of a greater value than fifty thousand dollars.

United States Revised Code, Section 5210

Then in early 1878, George Reynolds, personal secretary of Brigham Young, the leader of the Mormon Church, was married in a religious ceremony to a woman named Schofield, his second wife. He was arrested under the Federal statute and based his defense on the "free exercise" of religion clause found in the First Amendment to the U.S. Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

First Amendment to the United States Constitution, 1787

He was convicted and his conviction was upheld by the Utah Supreme Court. He appealed to the U.S. Supreme Court who heard the case in November of that same year. This being the Court's first direct encounter with the issue of free exercise of religion and with the difficult questions presented by the broad language of the First Amendment, they had a lot of groundwork to do. And so they began at the very beginning:

The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed?

Reynolds v. United States 98 U.S. 145 (1878)

Before the adoption of the Constitution, attempts were made in some of the Colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship. and sometimes for entertaining heretical opinions.

At that time, in Virginia, denial of the Trinity was punishable by imprisonment for three years, and a Unitarian or free thinker could be adjudged an unfit custodian of his own children. Baptists, particularly during the "period of the Great Persecution," 1768 to 1774, were whipped, beaten, arrested, fined and imprisoned, sometimes on bread and water.

The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784 the House of Delegates of that State having under consideration "A Bill establishing provision for Teachers of the Christian Religion," postponed it until the next session, and directed that the bill should be published and distributed and that the People be requested "to signify their opinion respecting the adoption of such a bill at the next session of Assembly."

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance Against Religious Assessments," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government.

Reynolds v. United States 98 U.S. 145 (1878)

I think at this point it's crucial to quote Mr. Madison more fully, because it is instructive to see how the Court selectively and creatively paraphrased him to extract a definition of religion. In his "Memorial and Remonstrance" what Mr. Madison actually said was:

The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right ... because ... what is here a right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society... We maintain therefore that in matters of religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.

Memorial and Remonstrance Against Religious Assessments, James Madison

In the Reynolds case the Court conveniently, I think, chose to ignore the larger context of Madison's remarks because, as we shall see, they were building toward a quite opposite conclusion.

At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson. In the preamble of this Act religious freedom is defined; and after a recital "That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the Church and what to the State.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent, as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion, but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. Five of the States, while adopting the Constitution, proposed amendments. Three, New Hampshire, New York and Virginia, included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof.' thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see, with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties."

Reynolds v. United States 98 U.S. 145 (1878)

Now at this point Jefferson is obviously ranting, going on and on about man and nature and common sense and good intentions. So when says that man "has no natural right in opposition to his social duties" he means that no legitimate social duty could, in his lofty conception, ever be in conflict with the natural rights of man. The Court however makes him out to be saying just the opposite: that a man's "social duties", whatever those might be, would take precedence and overrule his natural rights. So, in this vein, they continue:

Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the Northern and Western Nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offense against society.

Reynolds v. United States 98 U.S. 145 (1878)

After a long historical diatribe against polygamy and a specious affirmation of the "contractual" and hence governable nature of marriage the Court finally comes to the ever popular slippery slope argument.

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

Reynolds v. United States 98 U.S. 145 (1878)

And finally, at the bottom of that slippery slope, the specter of anarchy:

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Reynolds v. United States 98 U.S. 145 (1878)

Although the government's concern over polygamy in general, and the authoritarian practices of the Mormons in particular, may have been genuine and legitimate, the manner in which they dealt with it was drastic.

The church engaged lobbyists, retained the best lawyers it could find, repeatedly petitioned Congress and the presidents, politically organized, and sponsored economic boycotts. When these legal means failed, the church employed illegal means to combat the government, going underground and engaging in civil disobedience in an attempt to thwart federal enforcement efforts... By 1890, it had become clear that the Mormons would lose this confrontation. The church was bankrupt; its assets were in the hands of a federal receiver; its leadership was in prison or in hiding; and legislation that would have disenfranchised Mormons simply by virtue of their membership in the church had been introduced in Congress and seemed likely to pass.

Frederick Mark Gedicks, The Integrity of Survival: A Mormon Response to Stanley Hauerwas, 42 DePaul L. Rev. 167 (1992)

Thus brought to the brink of extinction, church leaders announced a change in doctrine to forbid the practice of polygamy, thereby substantially redirecting the course of Mormonism in America toward status as a "mainstream" religion.

These appear to have been desperate times in America. Between civil rebellion and war, Indian uprisings and massacres, financial panic and robber barons, carpet baggers and the dispossessed, corruption, fear and suspicion ruled the land. It was not a good atmosphere for religious freedom and not a good debute for the "free exercise" clause. The Reynolds decision stood as the last word on this subject for almost a hundred years.

The Sixties

It wasn't until 1963 that things began to change. In a decision granting unemployment compensation to a Seventh Day Adventist who refused to work on Saturday the Court established what has come to be known as the "compelling interest" and "least restrictive means" tests.

We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringements of appellant's First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, "only the gravest abuses, endangering paramount interests, give occasion for permissible limitation," (Thomas v. Collins). No such abuse or danger has been advanced in the present case...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.

Sherbert v. Verner, 374 U.S. 398 (1963)

Then in a 1972 decision granting exemption from compulsory school attendance laws to Amish children, the Court, although raising the threshold for "sincere religious belief" and cloaking its decision in the dubious poetry of "hybrid rights", followed dutifully in the footsteps of the 1963 Sherbert decision and re-affirmed the right of "free exercise". One justice went so far as to predict the eventual overturn of Reynolds.

Action which the Court deemed to be antisocial could be punished even though it was grounded on deeply held and sincere religious convictions. What we do today, at least in this respect, opens the way to give organized religion a broader base than is has ever enjoyed; and it even promises that in time Reynolds will be overruled.

Wisconsin v. Yoder, 406 U.S. 205 (1972)

The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling , the Court departs from the teaching of Reynolds v. United States, where it was said concerning the Free Exercise Clause of the First Amendment, "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." In that case it was conceded that polygamy was a part of the religion of the Mormons. Yet the Court said, "It matters not that his belief [in polygamy] was a part of his professed religion: it was still belief and belief only." 

The Reagan Years

But Reynolds was never in much danger. By the Eighties, packed with the conservative appointments of Presidents Nixon and Reagan, fear and suspicion again began to haunt the Court: the fear of anarchy, the fear of what Justice O'Connor would later refer to as the "parade of horribles", a parade of dubious religious claimants. As Harvard Professor Ira Lupu wrote "Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe." Despite the merits of any individual claim, the Court felt increasingly compelled by this moral dilemma to deny claims which though they might merit exception on their face might open doors to presumably limitless future litigation.

Two subsequent cases highlight what became a steady erosion of the First Amendment's religious freedom guarantee. The first was United States v. Lee 455 U.S. 252 (1982) which upheld the conviction of an Amish employer who failed to withhold payroll taxes. In this case the court considerably expanded what they considered to be a "compelling government interest". And then in Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439 (1988) which overturned an effort by Native Americans to halt the development of government owned land because it would disrupt sacred religious sites, it greatly narrowed what it considered to be a "burden to free exercise."

Then in 1985 the Supreme Court was presented with its first challenge to the laws against polygamy since the 1878 Reynolds decision. Once again the challenge came from Utah. In this case, the court was asked to consider the wrongful termination claim of a police officer involved in a polygamous marriage. In its decision the court declared that Utah:

...has established a vast and convoluted network of other laws clearly establishing a compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.

Potter v. Murray City, 760 F.2d 1065 (10th Cir.), cert denied, 474 U.S. 849 (1985)

This "vast and convoluted network" included such laws as those limiting the right of an individual to marry who is under a prior obligation to support a minor child or children; family expenses and education of children chargeable upon the property of both husband and wife; neither husband nor wife can remove the other or their children from the homestead without consent of the other unless the owner provides suitable alternative homestead; surviving spouse's intestate share; surviving spouse's right to elective share; rights of surviving spouse not provided for in will remarried after execution of will; surviving spouse's homestead allowance; surviving spouse's priority as personal representative during probate.

But even this list, exhaustive though it may be, demonstrates nothing more substantial than bureaucratic inconvenience, and further illustrates the Courts willingness to accommodate almost any governmental interest as a "compelling" one. Needless to say the court did not inquire whether forbidding an exemption to this particular claimant was crucial or even necessary to accomplishing the state's interest. And thus, despite the claimant's demonstrably stable, supportive and loving family environment, evidence that the laws against polygamy are still widely if discreetly ignored in Utah, and an appeal to the Court's precedent setting decision in the 1972 Yoder case, the court declined to hear the petition and let stand the decision of the 10th Circuit Court which had denied his claim.

At this point, in order to demonstrate a burden, government interference had to be significant enough that it could potentially coerce the free-exercise claimant to abandon her faith. Yet such extensive involvement would signify that the government had a compelling interest in the practice in question, particularly considering the court's rather loose definition of "compelling". In other words, to show a burden was to present simultaneously the governments compelling interest. Conversely, if the government's interference was not strong, i.e., its interest was not compelling, it was unlikely that a burden could be demonstrated. After Lyng it seemed the only sure way to demonstrate a burden would be to show that the particular religious practice in question was criminally prohibited. Thus the only certain way of proving a burden was also the surest way of ensuring that the claim would fail.

There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch 22 and let out a respectful whistle.

"That's some catch that Catch-22," he observed.

Catch-22, Joseph Heller

In 1987, two men from Oregon, Alfred Smith and Galen Black, were fired from their jobs as substance abuse counselors after they admitted they had used peyote while participating in ceremonies of the Native American Church. After losing their jobs the two men filed for unemployment benefits but were denied. Oregon officials claimed that the two were fired for just cause. Smith and Black protested that they were merely engaging in the age-old worship practices of their faith and twice their appeal worked all the way up to the Supreme Court. They ultimately lost. But what was really shocking was the broad scope of the ruling and the Court's astonishingly cavalier jettisoning of one the First Amendments fundamental, unequivocal guarantees. After warning of the coming anarchy, Justice Scalia says:

... we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws. and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this.

Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)

With this decision a bare five-justice majority wiped out both the "compelling interest" test and the "least restrictive means" test. In their place the Court introduced a new standard that said any "generally applicable" law that "on its face" was neutral toward religion would survive scrutiny even if its effect would be to obliterate a particular religious practice, and that furthermore, although permitted by the Constitution to make an exception for a particular religious claimant, the States were under no obligation to do so. Thus the decision in Smith achieved wholesale what the Court had already been doing retail. 

The Religious Freedom Restoration Act

But as we saw in Reynolds's, a determined society can easily use "facially neutral" laws to persecute a religious minority and substantially re-direct its future development. Not surprisingly, religious leaders and serious civil libertarians went ballistic. Almost overnight a diverse collection of religious and public policy groups, including Americans United, the ACLU, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals and the Home School legal defense fund dubbed themselves the Coalition for the Free Exercise of religion and petitioned the Court for a rehearing of the Smith Case. When that failed, attorneys representing the various groups of the Coalition drafted the Religious Freedom Restoration Act (RFRA) which they submitted to Congress in July of 1990.

Although RFRA says nothing about abortion, the United States Catholic Conference together with some fundamentalist Protestant hard-liners charged that the measure could be used to shore up abortion rights, and led an ugly and time consuming debate that kept then President George Bush from endorsing the measure, and blocked its passage for three years in a row.

After the election of Bill Clinton in 1992, the USCC abruptly shifted gears and after adding some minor compromise language, finally endorsed RFRA. The measure quickly passed the House and the Senate with minimal opposition and was signed into law by Clinton on November 16th, 1993.

The text of the act simply mimics the Supreme Court's pre-Smith formulation of the compelling interest test and is relatively straightforward:

Government shall not substantially burden a person's exercise of religion even the burden results from a rule of general applicability ... (unless) ... it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Religious Freedom Restoration Act, 1993

Thus Congress basically tossed the ball back to courts, back that is to "compelling interest", and "least restrictive means", and "rational relationships", and "hybrid rights", and "centrality of belief", and on and on. Curiously, in the past fifty years not one governmental interest has been found sufficiently compelling to justify intentional racial discrimination, or to deny freedom of speech or the right to vote. In fact to apply the "compelling interest" test in those contexts is really to dictate the resulting victory for the claimant. Yet during this same period no purely "free exercise" claim (aside from unemployment claims for which there is a clear precedent) has succeeded.

So how will RFRA affect the continued prohibition of polygamy? No doubt nothing much will change. Courts will continue to have little difficulty finding a "compelling state interest" and will end up simply deferring to government as they did prior to Smith.

In actual practice, RFRA may have the unintended effect of making things harder for the "free exercise" claimant: for example the phrase "a burden" to free exercise in Sherbert becomes "a substantial burden" in RFRA. Plus there is the distinct possibility that RFRA itself may be found to be an unconstitutional incursion into the province of the courts, a violation of the "separation of powers", that is: can Congress legitimately instruct the Supreme Court as to how it should interpret the law? And if the courts are unwilling or unable to uphold the Constitution as any fool can read it, then what possible good can be accomplished by a legislative "second", or even a "third"? As Justice Jackson said:

The very purpose if a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones' right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

West Virginia State Board of Education v. Barnette 310 U.S. 586 (1940)

Nearly a century ago James B. Thayer wrote that the process of judicial review "is attended with a serious evil." Namely that "the tendency of common and easy resort to this great function ... is to dwarf the political capacity of the people and to deaden its sense of moral responsibility." For better or for worse, the real lesson of RFRA is found in the unity of reaction to the Smith decision. Religious persons and organizations of every stripe rose up as one and banded together to introduce this legislation and ensure its passage. This was people getting off their butts and entering the arena of political action; this was people standing up and demanding their freedom; this was the democratic process in action.

In his 1960 book, The Spirit of Liberty, Judge Learned Hand wrote:

I often wonder whether we do not rest our hopes too much upon Constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

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