Thoughts on Smith and Religious-Group Autonomy

Brigham Young University Law Review, 2004 by Underkuffler, Laura S

I. INTRODUCTION

Reconciling the federal constitutional guarantee of religious free exercise1 with the collective interests of civil society has long been a difficult problem for First Amendment jurisprudence. For many years, the United States Supreme Court protected claimed religious exercise if it was required by a central religious belief, was substantially burdened by government action, and was not outweighed by a compelling state interest.2 The last prong of this test, in particular, afforded substantial protection to claimed religious exercise when pitted against state laws.3

In Employment Division v. Smith,4 decided little more than a decade ago, the Court abruptly shifted course. Citing the dangers posed to societal norms by claimed religious exemptions, the Court held that the government need only show that a challenged law has no "antireligious bias," that is, that religious and nonreligious individuals and actions are treated equally in intention and effect. If a law is "neutral" in this sense, the fact that it incidentally burdens religious conduct presents no First Amendment problem.5

The holding in Smith-essentially, that religious exercise has no special rights or immunity from "neutral, generally applicable law[s]"6-sits uneasily with another longstanding doctrinal fixture, namely, that of "religious-group autonomy." This doctrine, which has developed in a piecemeal fashion over the years, generally holds that religious groups and institutions are exempt from secular state interference in their selection of clergy, internal doctrinal and property disputes, and other matters that affect their internal organization and internal relations.7 As Professor Perry Dane states in his contribution to this Conference, areas of claimed autonomous exercise "rang[e] from classic church property disputes to more recently developing questions over the extent to which various regulatory regimes, including labor law, civil rights law, and even malpractice, defamation, and contract law, should be permitted to intervene in the internal relations of religious institutions and communities. "8

Thus, the question that immediately arises is this: If religious individuals are precluded by Smith from claiming broad immunity from civil laws and civil courts, can religious groups and institutions continue to claim that immunity, under the doctrine of religious-group autonomy?

The theoretical grounding for the doctrine of religious-group autonomy in Supreme Court jurisprudence is far from clear. Although the Court has often discussed religious-group autonomy in terms that echo First Amendment values,9 the Court has never directly addressed the scope of free exercise protections when government interferes with religious-group affairs.10 It is therefore difficult to deduce, as a matter of doctrinal logic, the extent to which the Smith decision undermines the foundations of the doctrine of religious-group autonomy. To the extent that religious-group autonomy is intended to prevent secular meddling in religious doctrines, ecclesiastical disputes, and other strictly internal affairs-questions in which the secular state has no stake-the logic of Smith may well leave the doctrine of religious-group autonomy untouched. If, however, religious-group autonomy is extended to include immunity from secular laws and secular policies, then its claims, and Smith's seeming subordination of religious exercise to "neutral laws," appear to be on a collision course.11

In their very interesting and provocative contributions to this Conference, Professors Perry Dane and Kathleen Brady attempt an answer to this question that refutes the simple assertion of Smith's supremacy in cases involving conflicts between group free exercise claims and "neutral, generally applicable laws." In different ways, they attempt to establish why the Smith rule-which cuts far back on the idea of religious- individual autonomy-does not necessarily have the same impact on the claims of religious groups. Under Professor Dane's approach, Smith should be seen as primarily concerned with the problem of the "subjective" and "idiosyncratic" nature of individual free exercise exemptions-a problem that, he argues, religious-group autonomy does not involve.12 Under Professor Brady's approach, religious-group autonomy survives Smith because of its particular value for free religious exercise, which Smith explicitly upholds.13

Although their efforts are quite heroic and attractive in many ways, I shall argue that they are, in the end, unconvincing. Whether Smith's core concern is believed to be the problem of individual, nonreviewable, legal-definitional power, or the erosion of civil norms, there is no convincing basis for distinguishing individual religious exemptions, struck down in Smith, from aggressive forms of religious-group autonomy. Nor is the ideal of individual religious freedom necessarily furthered by the broad immunity of religious groups from civil laws. While religious groups may be places that nurture and sustain individual religious belief, they may also be hostile, bitter places, which wield coercive and oppressive power.