Vol. 29 No. 4 (April 2019) pp. 40-42WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, by Kent Greenawalt. Cambridge, MA: Harvard University Press, 2017. 293pp. Cloth $39.95. ISBN 9780674972209.
Reviewed by Philip Kronebusch, Department of Political Science, St. John’s University (MN). Email: pkronebusch@csbsju.edu.
At a basic level, the two religion clauses of the First Amendment complement each other; Congress can neither establish a religion nor can it prohibit the free exercise of a religion. Over time, judges and scholarly commentators have often treated the two clauses separately, classifying some cases as establishment clause cases and others as free exercise cases. Kent Greenawalt largely maintains this practice in a large body of published scholarship, having published an earlier two-volume work, RELIGION AND THE CONSTITUTION, with a volume dedicated to each clause.
In his newest work, WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, Greenawalt’s attention turns to issues that present some mixture of the values of the two clauses. While he uses the term “conflict” in the title, he makes it clear early on that he is not looking at just conflicts, but rather he is focusing on issues where the values of each clause have tension with each other. The author’s key point throughout the book is that many cases involving the religion clauses are best analyzed and understood by recognizing the competing values of the establishment clause and the free exercise clause.
The Supreme Court’s school prayer decisions provide an early example of the mixture of competing values. While these cases are usually analyzed as presenting establishment clause issues, Greenawalt asks the reader to recognize that many students in American public schools may wish to take time to pray and that the teacher providing a moment of silence might be facilitating the free exercise of religion. However, Greenawalt does not disagree with the Supreme Court’s majority decision striking down Alabama’s moment of silence in WALLACE v. JAFREE. Rather, the flaw of Alabama’s law was that “voluntary prayer” was included as a purpose of the law. For Greenawalt, “moments of silence should be constitutionally accepted, so long as no one is told she must or absolutely should pray” (p. 31).
Among the strengths of the book is the attention given to religion clause issues beyond those, like school prayer, that have led to several Supreme Court decisions. Greenawalt dedicates a chapter to the challenges presented when a government directly employs a religious minister as a chaplain in the military or in prisons. Here we see a clear example of the tension between establishment clause and free exercise values. Government hiring and payment to a religious minister would, in most contexts, constitute establishment. However, without these ministers, the ability of soldiers and prisoners to exercise their religion freely would be severely limited. Greenawalt argues that the constitutional value of free exercise allows government to do what would otherwise be problematic under the establishment clause. While the book only occasionally discusses historical understandings of the religion clause, the author’s argument is further supported by citing that Congress authorized army chaplains in 1791, the same year it adopted the Bill of Rights (p. 47). Greenawalt goes on to consider a number of additional issues raised by prison chaplains as government employees. He argues that while a prison chaplain should be permitted to write a letter of support for a prisoner’s application for parole, it would be constitutionally impermissible for the chaplain to serve as a member of a parole board.
The examples of prison and military chaplains show that Greenawalt’s interest is not just in the sort of blockbuster religion clause cases that are often studied. He recognizes that standing [*41] requirements as well as other limitations may prevent many issues raised by the religion clauses from coming before a court. For Greenawalt, the absence of Supreme Court cases on a specific issue doesn’t make the underlying religion clause values less important. Even in the absence of court cases, local officials – city council members, school principals, prison wardens, etc. – need to make decisions that implicate the values of the religion clauses. Greenawalt writes, “What is important is that officials in all areas and the rest of us should understand that constitutional coverage is not simply a matter of what courts will determine” (p. 136).
Greenawalt includes a chapter on the timely topics of assessing claims to religiously-based exemptions from laws that are otherwise valid. Here, he reviews the history of EMPLOYMENT DIVISION V. SMITH and Congress’s subsequent adoption of the RELIGIOUS FREEDOM RESTORATION ACT (RFRA) and the RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT. He then turns to BURWELL V. HOBBY LOBBY STORES, INC and the Supreme Court’s decision that the religious views of the owners of Hobby Lobby entitle the business to an exemption from the contraceptive coverage mandate of the PATIENT PROTECTION AND AFFORDABLE CARE ACT. Greenawalt’s analysis is largely critical of the majority’s decision, specifically their approach to interpreting what is a “substantial burden” to religious exercise and whether Hobby Lobby, as a closely-held corporation, is a “person” within the meaning of the RFRA.
The case of ZUBIK V. BURWELL, decided two years after HOBBY LOBBY, raised the question of whether religiously affiliated organizations could refuse to comply with the AFFORDABLE CARE ACT’s notification procedures for seeking exemptions from directly providing contraceptive coverage through an employee health plan. While the court returned the cases to lower courts for further deliberation, the issues raised merit more examination than the brief coverage Greenawalt provides.
At the time this book was completed the Supreme Court had not yet granted certiorari in the MASTERPIECE CAKESHOP. However, because the case had already made news at an earlier stage, Greenawalt is able to discuss the issues raised by the baker who refused to create a wedding cake for a same-sex couple, citing his religious objections to same-sex marriage. The baker’s argument was that his religious beliefs entitled him to an exemption from a Colorado law that bans a business from discriminating on the basis of sexual orientation. In discussing the issue of same-sex marriage and religious exemptions, Greenawalt suggests that “the soundest approach is to distinguish actual participation in a marriage from subsequent treatment of married couples” and that the connection between baking a cake and a ceremony is not “sufficiently direct” (p. 130), though the connection to a wedding videographer would be. Further, businesses would be required to provide public notice of their positions, and the businesses would not be allowed to refuse service if a “couple cannot conveniently find someone else to provide it” (p. 13).
A final chapter examines how to define “religion” and whether exemptions provided for religion should also be extended to deeply-held moral convictions more generally. Greenawalt recognizes that “Exemptions can obviously be seen as a form of free exercise, but granting the concession can also be regarded as a form of establishment, especially if religious objections are privileged over nonreligious ones” (pp. 240-241). In the case of conscientious objectors to a military draft, Greenawalt argues, allowing only religious objectors to avoid the draft would, itself, be a form of establishment. Thus, those with deeply-held moral convictions against military conflict would also be able to claim conscientious objector status.
The issues raised by HOBBY LOBBY, ZUBIK, and MASTERPIECE CAKESHOP are certainly going to continue to be litigated for some time. Each of these cases includes a claim to a religiously-based exemption from an otherwise valid law. Greenawalt’s contribution provides a valuable analysis of issues raised by these cases [*42] and he helpfully draws attention to competing free exercise and establishment clause values in these cases. Certainly, his will not be the last word on this topic, but Greenawalt’s work provides a significant contribution for anyone trying to understand the complexities of the underlying issues as well as some thoughtful proposals for solutions.
CASES:
EMPLOYMENT DIVISION V. SMITH, 494 U.S. 872 (1990).
BURWELL V. HOBBY LOBBY STORES, INC., 573 U.S. ___ (2014).
MASTERPIECE CAKESHOP V. COLORADO CIVIL RIGHTS COMMISSION, 584 U.S. ___ (2018).
WALLACE V. JAFREE, 472 U.S. 38 (1985).
ZUBIK V. BURWELL, 578 U.S. ___ (2016).
REFERENCES:
Greenawalt, Kent. 2006. RELIGION AND THE CONSTITUTION, FREE EXERCISE AND FAIRNESS. Princeton, NJ: Princeton University Press.
Greenawalt, Kent. 2008. RELIGION AND THE CONSTITUTION, ESTABLISHMENT AND FAIRNESS. Princeton, NJ: Princeton University Press.
STATUTES:
PATIENT PROTECTION AND AFFORDABLE CARE ACT, 42 U.S.C. § 18001 et seq. (2010).
RELIGIOUS FREEDOM RESTORATION ACT, 42 U.S.C. § 2000bb et seq. (1993).
RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT, 42 U.S.C. § 2000cc et seq. (2000).
© Copyright 2019 by author, Philip Kronebusch.
