William & Mary Bill of Rights Journal
This Article uses the Supreme Court’s recent opinion in Christian Legal Society
v. Martinez as a point of departure for analyzing the current state of free exercise doctrine. I argue that one of the most notable features of the Christian Legal Society (CLS) case is its almost total lack of engagement with the Free Exercise Clause. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs: the group claimed that it was being excluded from campus life because it required its members to live according to shared religious principles and to subscribe to a Statement of Faith. Yet notwithstanding the clear religious basis of its claims, CLS devoted a mere two pages to the Free Exercise Clause in its brief. The Court’s Free Exercise Clause analysis was similarly elliptical: the majority dispensed
with the free exercise argument in a single footnote. For his part, Justice Alito did not even mention the Free Exercise Clause once in his lengthy dissent.
What accounts for this paucity of treatment? The following sections explore
this question. I begin by tracing the fading status of the Free Exercise Clause from Employment Division v. Smith in 1990 to Christian Legal Society v. Martinez in 2010. I show that while the Clause has occasionally played a supporting role in Supreme Court decisions over the past two decades, it has not provided an independent basis for constitutional relief in a single case since 1993. I then suggest that the fact that the Free Exercise Clause has become so doctrinally otiose is itself an argument for reinvesting the Clause with independent meaning.
But what kind of meaning should it have? Unlike commentators who have reasoned that free exercise doctrine must either treat all citizens equally or give religious believers special privileges, I outline an approach to the Free Exercise Clause that seeks to accomplish both. Specifically, I propose that the Clause be reinvigorated to provide some exemptions from generally-applicable laws for conscientious objectors—but that these exemptions must be available to religious and secular claimants on an equal footing. To illustrate how my proposal might operate in practice, I then apply the reinvigorated Free Exercise Clause to Christian Legal Society v. Martinez itself.
I conclude that even though a reinvigorated Free Exercise Clause might not have changed the result in the CLS case, there are nevertheless strong arguments in favor of giving greater weight to the Clause in future cases.