The Problem of Singling out Religion

From the earliest days of the Republic, Americans have been debating whether the principle of free exercise entitles religious institutions or religiously motivated individuals to exemptions from generally applicable laws, or to other accommodations in order to alleviate the occasional conflict between the demands of faith and the demands of the state. The principal ground for the debate has been institutional: whether decisions about religious accommodation ought to be made by courts as a matter of constitutional right, or by legislatures as a matter of political discretion. During the drafting of the Bill of Rights by the First Congress, for example, the House of Representatives adopted, but the Senate rejected, James Madison’s proposal to exempt those “religiously scrupulous of bearing arms” from compulsory militia service. ¹ Proponents stated that such a provision was necessary to “show the world that proper care is taken that the government may not interfere with the religious sentiments of any person.” ² The principal ground of opposition was not that religious exemptions are unwarranted, but that the matter ought to be “left to the discretion of the Government.” ³ Similarly, in early litigation under state constitutional equivalents of the Free Exercise Clause, ⁴ two courts interpreted their provisions as protecting religious claimants from the operation of generally applicable law (in cases involving priest-penitent confidentiality), ⁵ while two other courts rejected such an interpretation. ⁶ The latter courts concluded that requests for religious accommodation 412raise “considerations of policy” that should be addressed to the legislature. ⁷