Date of Award
2024
Degree Type
Open Access Dissertation
Degree Name
Political Science, PhD
Program
School of Social Science, Politics, and Evaluation
Advisor/Supervisor/Committee Chair
Vincent P. Muñoz
Dissertation or Thesis Committee Member
Charles R. Kesler
Dissertation or Thesis Committee Member
Joseph M. Bessette
Dissertation or Thesis Committee Member
Ralph A. Rossum
Terms of Use & License Information
Rights Information
© 2024 Eric Russell Coykendall
Keywords
Constitution, First Amendment, Free Exercise Clause, Originalism, Religious Liberty
Subject Categories
American Studies | Legal History | Political Science
Abstract
In the 1963 case Sherbert v. Verner , the Supreme Court read the First Amendment’s Free Exercise Clause to mean that, in certain cases, religious believers should be exempted from otherwise applicable laws. In 1990, the Supreme Court essentially overturned that framework in the case Employment Division of Oregon v. Smith . The Smith case has proved quite controversial, and numerous public-interest law firms, especially those that defend religious litigants, have regularly asked the Court to overturn it in favor of a re-application of the Sherbert precedent. Their contention is often that the Smith ruling is inconsistent with the original intent and history of the Free Exercise Clause, which they maintain was intended to establish a right to religious exemption from law. This dissertation considers the details of the Smith case, then provides an extended historical analysis of the American Founding in search of the original meaning of the Free Exercise Clause with regard to religious exemptions. The question it seeks to answer is whether the original intent of the Free Exercise Clause includes a justiciable right to religious exemptions. The dissertation begins by considering much of the available scholarship and using that scholarship to provide a useful background in seventeenth- and eighteenth-century laws and conditions in the American colonies. With a general view of history established, the dissertation looks to key primary sources to illuminate the contemporary understanding of religious liberty. Chapter 3 compares colonial charters and state constitutions and their language and provisions concerning religious liberty. Chapter 4 examines the legislative fight against religious establishment in Virginia and makes a careful analysis of Thomas Jefferson and James Madison’s writings on the topic of religious liberty. Chapter 5 considers the Constitutional Convention, the text of the Constitution, and The Federalist Papers for clues about how the writers of the Constitution intended to protect religious liberty. Chapter 6 includes a narrative history of the state ratification debates, since these debates provided the energy and some of the original language behind the federal Bill of Rights, including the First Amendment. Chapter 7 details the events and arguments of the First Congress as it deliberated and passed the religious clauses of the First Amendment, considering what they included, what they left out, and why. The dissertation concludes that there is little to no historical precedent at the time of the American founding for the Sherbert -standard of judicially-enacted exemptions for religious believers. While the American founders were concerned with protecting religious liberty, they were careful not to extend broad and unqualified protections of religious practice in their constitutions and bills of rights, but rather provided focused protections limited to belief and worship, and, in some cases, narrow allowances for conscientious objectors from military service. Their deliberation over the Constitution and the Bill of Rights suggests that these were intended to be consistent with contemporary practice, at least on the subject of religious liberty, which did not include a general right to religious exemption. Rather than an aggressive judicial application of a right to religious liberty, the American founders thought that religion could best be protected through the political process. James Madison’s “Federalist 10” and “Federalist 51” provide a guide for protecting all manner of minority positions, especially to include religious practice.
ISBN
9798382742748
Recommended Citation
Coykendall, Eric Russell. (2024). Originalism & Judicially-Enacted Religious Exemptions: Revisiting Employment Division of Oregon v. Smith. CGU Theses & Dissertations, 773. https://scholarship.claremont.edu/cgu_etd/773.
