Faith and legal systems

THE ORIGINAL MEANING OF THE FREE EXERCISE
CLAUSE: THE EVIDENCE FROM THE FIRST CONGRESS

ViNGENT PHILLIP MUÑOZ*

Despite the vast quantity of research devoted to understand-
ing religion and the American Founding, the original meaning of
the First Amendment’s Free Exercise Clause remains a matter of
significant dispute. In academic literature and in Supreme Court
opinions, two leading interpretations have emerged. One side
iinderstands the Free Exercise Clause to grant religious indi-
viduals and institutions exemptions from generally applicable
laws that incidentally burden religious exercise, absent a com-
pelling state interest in the law’s enforcement. Initially adopted
by the Supreme Court in 1963 in Sherbert v. Verner} the exemp-
tion interpretation received its leading originalist defense in 1990
by distinguished law professor (and now federal appellate
judge) Michael McConnell.^ Justice Sandra Day O’Connor later
adopted Judge McConnell’s arguments in her dissenting opinion
in the 1997 case. City of Boerne v. Flores?

The other interpretation of the Free Exercise Clause denies
that the First Amendment encompasses such exemptions. The

* Faculty Affiliate, Seattle University School of , and Assistant Professor of
Political Science, Tufts University. The Author would like to thank Richard Aynes,
Gerard Bradley, Rick Gamett, Mark Hall, Marci Hamilton, Elizabeth Herman, Mat-
thew Kenny, Bryan McGraw, Roger Severino, Matthew Shapanka, and G. Alan
Tarr for their comments on earlier drafts of this Article.

1. 374 U.S. 398 (1963). In Sherbert, the Court adopted the exemption interpreta-
tion apart from concerns about the Free Exercise Clause’s original meaning. See id.

2. See Michael W. McConnell, The Origins and Historical Understanding of Free Ex-
ercise of Religion, 103 HARV. L. REV. 1409 (1990). Non-originalist defenses of the
exemption interpretation include: Steven L. Carter, The Resurrection of Religious
Freedom?, 107 HARV. L. REV. 118 (1993); Frederick Mark Gedicks, The Normalized
Free Exercise Clause: Three Abnormalities, 75 IND. L.J. 77 (2000); James D. Gordon III,
Free Exercise on the Mountaintop, 79 CAL. L. REV. 91 (1991) [hereinafter Gordon, Free
Exercise on the Mountaintop]; James D. Gordon III, The New Free Exercise Clause, 26
CAP. U . L. REV. 65 (1997); Douglas Laycock, The Remnants of Free Exercise, 1990 SUP.
CT. REV. 1; Steven D. Smith, Wisconsin v. Yoder and the Unprincipled Approach to
Religious Freedom, 25 CAP. U . L. REV. 805 (1996); David E. Steinberg, Rejecting the Case
Against the Free Exercise Exemption: A Critical Assessment, 75 B.U. L. REV. 241 (1995).

3. 521 U.S. 507, 544-65 (1997) (O’Connor, J., dissenting).

1084 Harvard Journal of & Public Policy [Vol. 31

non-exemption interpretation, first articulated by the Court in
1878 in Reynolds v. United States,^ was revived for most free exer-
cise issues in the 1990 case. Employment Division v. Smith.^ Justice
Antonin Scalia, Smith’s author, has vigorously championed this
position, with the concurrence of numerous academic commen-
tators.* In Smith, Justice Scalia defended his interpretation with-
out referring to the Founders,^ but in Boeme he mounted a direct
critique of exemptions on historical grounds.^ Advocates of both
the exemption and the non-exemption interpretations of the Free
Exercise Clause thus appeal to the Founders and purport to em-
brace the original understanding of the Free Exercise Clause. It
would seem tiiat both sides cannot be correct.

In an effort to help resolve the debate among both scholars
and Justices over the most accurate interpretation of history,
this Article gathers and examines the relevant evidence avail-
able from the First Congress regarding the Clause’s original

4. 98 U.S. 145 (1878).
5. 494 U.S. 872 (1990). For Judge McConnell’s response to Smith, see Michael W.

McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109
(1990). For discussions of Smith, including the extent to which it overturned Sher-
bert, see CAROLYN N. LONG, RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASH
OF OREGON V. SMITH 187-90 (2000); Richard F. Duncan, Free Exercise is Dead, Long
Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. PA.
J. CONST. L. 850 (2001); Richard F. Duncan, Free Exercise and Individualized Exemp-
tions: Herein o/Smith, Sherbert, Hogwarts, and Religious Liberty, 83 NEB. L. REV. 1178
(2005); Gordon, Free Exercise on the Mountaintop, supra note 2.

6. Academic critics of the exemption interpretation of the Free Exercise Clause
include: MARCI A. HAMILTON, GoD vs. THE GAVEL: RELIGION AND THE RULE OF
LAW (2005); MICHAEL J. MALBIN, RELIGION AND PoLmcs: THE INTENTIONS OF THE
AUTHORS OF THE FIRST AMENDMENT (1978); Gerard V. Bradley, Beguiled: Free Exer-
cise Exemptions and the Siren Song of Liberalism, 20 HOFSTRA L. REV. 245 (1991);
Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical
Perspective, 60 GEO. WASH. L. REV. 915 (1992) [hereinafter Hamburger, An Histori-
cal Perspective]; Philip A. Hamburger, More is Less, 90 VA. L. REV. 835 (2004) [here-
inafter Hamburger, More is Less]} Philip B. Kurland, The Irrelevance of the Constitu-
tion: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L.
REV. 3 (1979); William P. Marshall, The Case Against the Constitutionally Compelled
Free Exercise Exemption, 40 CASE W. RES. L. REV. 357 (1990); Mark Tushnet, The
Emerging Principle of Accommodation of Religion (Dubitante), 76 GEO. L.J. 1691 (1988);
Ellis West, The Case Against a Right to Religion-Based Exemptions, 4 NOTRE DAME J.L.
ETHICS & PUB. POL’Y 591 (1990); Ellis M. West, The Right to Religion-Based Exemp-
tions in Early America: The Case of Conscientious Objectors to Conscription, 10 J.L. &
RELIGION 367 (1994) [hereinafter West, The Right to Exemptions].

7. See McConnell, supra note 5, at 1116-17; see also Gordon, Free Exercise on the
Mountaintop, supra note 2, at 93,114.

8. Boerne, 521 U.S. at 537-^4 (Scalia, J., concurring).

No. 3] Original Meaning of the Free Exercise Clause 1085

meaning.’ This Article contends that the drafting of the Free
Exercise Clause sheds almost no light on the text’s original
meaning. In drafting what would become the Second Amend-
ment, however, the First Congress directly considered and re-
jected a constitutional right to religious-based exemption from
militia service. When it considered conscientious exemption,
moreover, no member of Congress suggested that such an ex-
emption might be part of the right to religious free exercise.
The records of the First Congress therefore provide strong evi-
dence against the exemption interpretation of the Free Exercise
Clause. Although some scholars have taken note of the possible
relevance of the drafting of the Second Amendment to free exer-
cise jurisprudence, its significance has been imderappreciated.^”
Recent scholarship on the topic has overlooked the Second
Amendment debate altogether.” Likewise, in Boerne, neither

9. One could, of course, consider other historical evidence. For example. Profes-
sor Bradley argues that judicially-mandated religious free exercise exemptions are
inconsistent with antebellum judicial interpretation, at both the state and federal
levels, of constitutional guarantees of the free exercise of religion. See Bradley,
supra note 6. Professor Hamilton reports that latter eighteenth-century sermons
reveal that the religious leaders of the day did not envision a society Üiat would
permit religion-based exemptions from generally applicable laws. See Marci A.
Hamilton, Religion, the Rule of , and the Good of the Whole: A View from the Clergy,
18 J.L. & POL. 387 (2002). For a different type of argument based on history, see
Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reforma-
tion Era and the Late Twentieth Century, 80 MINN. L. REV. 1047 (1996).

10. Professors Bradley and Hamburger, the leading critics of the exemption ap-
proach from an historical standpoint, mention the drafting of what would become
the Second Amendment only in passing. See Bradley, supra note 6, at 268; Ham-
burger, An Historical Perspective, supra note 6, at 928. Other scholarship that has
noted the possible relevance to interpreting the Free Exercise Clause of the drafting
of what would become the Second Amendment includes: WALTER BERNS, THE FIRST
AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY 54r-55 (1976); Marshall,
supra note 6, at 376 n.95; West, The Right to Exemptions, supra note 6, at 395-400.

11. Recent scholarship that attempts to ascertain the original meaning of the
Free Exercise Clause but fails to examine the drafting of the Second Amendment
includes: NoAH FELDMAN, DIVIDED BY GOD: AMERICA’S CHURCH-STATE PROB-
LEM—AND W H A T W E SHOULD D O ABOUT IT (2005); 1 KENT GREENAWALT, RELIG-
ION AND THE CONSTmmON: FREE EXERCISE AND FAIRNESS 15-25 (2006). ProfesSOr
Michael Malbin’s oft-cited pamphlet, supra note 6, may have discouraged scholars
from investigating the records of the First Congress to ascertain the original mean-
ing of the Free Exercise Clause. The opening paragraph of Malbin’s chapter on the
Free Exercise Clause begins:

The meaning of the free exercise clause is still unclear. After reading the
congressional debates, we can guess that its purpose may have had
something to do with the relationship between conscientious belief and its
expression, but we are not given enough material to be more precise than
that. For this, we shall have to look at the contemporary historical record.

1086 Harvard Journal of & Public Policy [Vol. 31

Justice O’Connor nor Justice Scalia considered the records re-
lated to the drafting of the Second Amendment in their descrip-
tion of historical evidence.

Part I of this Article reviews the different originalist argu-
ments articulated by Justices O’Connor and Scalia in their op-
posing opinions in Boerne. Part II begins the Article’s review of
the records of the First Congress. Through a detailed examina-
tion of the drafting of what would become the Free Exercise
Clause, Part II shows why almost no conclusions can be drawn
about the Clause’s original meaning from those records. Part III
examines the insufficiently explored drafting of what would be-
come the Second Amendment, documenting Congress’s consid-
eration and rejection of a right of conscientious exemption from
militia service. That Congress both rejected religious exemptions
from militia service and appears to have considered such an ex-
emption entirely without reference to what would become the
First Amendment strongly suggests that the members of the First
Congress did not understand the Free Exercise Clause to grant
religious individuals exemptions from generally applicable laws.

I. THE ORIGINALIST TURN IN FREE EXERCISE JURISPRUDENCE:
THE O’CONNOR-MCCONNELL, SCALIA-HAMBURGER DISPUTE

After turning to the Founders to guide its first substantive
interpretation of the Free Exercise Clause/^ the Supreme Court’s
twentieth-century free exercise jurisprudence developed
mostly without originalist arguments.^^ jn Qantwell v. Connecti-

MALBIN, supra note 6, at 19. Malbin then proceeded to deduce conclusions about
the original meaning of the Free Exercise Clause from an investigation of the
adoption of Article XVI of the 1776 Virginia Declaration of Rights and Jefferson
and Madison’s legislative efforts to establish religious freedom in Virginia from
1777 to 1785. His pamphlet, which was one of the first scholarly investigations of
the subject, devoted almost no attention to the records of the First Congress for
the purposes of understanding religious free exercise. His discussion of the draft-
ing of what would become the Second Amendment was limited to one brief foot-
note. See id. at 39 n.4.

12. Reynolds v. United States, 98 U.S. 145,162-^4 (1878).
13. For a discussion of the Court’s use of history in First Amendment religion

clause jurisprudence, see Mark David Hall, Jeffersonian Walls and Madisonian Lines:
The Supreme Court’s Use of History in Religion Clause Cases, 85 OR. L. REV. 563, 567-
71 (2006). A notable exception to the general absence of historical arguments in
free exercise jurisprudence between 1950 and 1997 is McDaniel v. Paty, 435 U.S.
618 (1978) (plurality opinion), in which Chief Justice Burger dted James Madison
to strike down a Tennessee constitutional provision that barred religious ministers
from holding certain political offices. Id. at 623-26. Free exercise cases before

No. 3] Original Meaning of the Free Exercise Clause 1087

CWÍ,” the 1940 case that incorporated the Free Exercise Clause
against the states, and in Sherbert v. Verner}^ the precedent-
setting case that governed free exercise jurisprudence from
1963 until 1990, the Court did not attempt to discover the text’s
original meaning. In Smith, similarly, the Court dismantled
much of Sherbert’s balancing test without relying on historical
arguments.^^ In 1993, Justice David Souter called for a recon-
sideration of Smith, in part because that case failed to consider
the original meaning of the Free Exercise Clause.^” Justice
Souter labeled the absence of history in the Court’s free exer-
cise jurisprudence “curious,” and noted that the matter stood
in “stark contrast” to the Court’s Establishment Clause juris-
prudence.i^ In 1997, in her dissenting opinion in Boerne, Justice
O’Connor heeded Justice Souter’s call for an originalist recon-
sideration of Smith.

A. Justice O’Connor’s Originalist Defense of Exemptions

The Boerne case was brought to the Court by Patrick Flores,
the Catholic Archbishop of San Antonio.^^ Archbishop Flores
had filed a lawsuit against the city of Boerne, Texas after local
zoning authorities, relying on an historical preservation ordi-
nance, denied the archdiocese a building permit to enlarge a
church.20 Archbishop Flores challenged the permit denial under
the Religious Freedom Restoration Act (RFRA),2i a 1993 federal

McDaniel that included passing references to the Framers include: Braunfeld v.
Brown, 366 U.S. 599, 604 (1961), and Wisconsin v. Yoder, 406 U.S. 205, 218 n.9 (1972).

14. 310 U.S. 296 (1940). It is impossible to know for certain why the Court es-
chewed attention to the Framers in Cantwell, but one reason suggests itself. In
Reynolds, the Court interpreted the Free Exercise Clause in light of the Jeffersonian
distinction between acts and opinions; specifically, the Court held that Congress
was deprived of legislative power over opinions but maintained jurisdiction over
actions. Reynolds, 98 U.S. at 164. The Connecticut statute under review in Cantwell,
however, regulated solicitations, a type of action. 310 U.S. at 301. The Jeffersonian
distinction between beliefs and actions, accordingly, did not clearly support the
Court’s decision.

15. 374 U.S. 398 (1963).
16. See Employment Div. v. Smith, 494 U.S. 872, 883-89 (1990); Gordon, Free Ex-

ercise on the Mountaintop, supra note 2, at 93.
17. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

574 (1993) (Souter, J., concurring).
18. Id. at 575. Judge McConnell made the same point in his 1990 Harvard

Review article. McConnell, supra note 2, at 1413-14.
19. Boerne, 521 U.S. at 511-12.
20. Id.
21. 42 U.S.C. § 2000bb (2000).

1088 Harvard Journal of & Public Policy [Vol. 31

law that attempted to overturn Smith and reinstitute the “Sherbert
test” for free exercise jurisprudence.^ Under RFRA, generally ap-
plicable laws that had the effect of “substantially biH’deniing] a
person’s exercise of religion” were to be held unenforceable
unless the government could demonstrate that the burden: “(1)
[was] in furtherance of a compelling governmental interest; and
(2) [was] the least restrictive means of furthering t h a t . . . inter-
est/’23 In Boerne, the Court ruled against Archbishop Flores by a
vote of 6-3, striking down RFRA as applied to state govern-
ments.2* Justice Anthony Kennedy’s majority opinion found
that Congress had exceeded its authority under Section Five of
the Fourteenth Amendment by attempting to make a substan-
tive change in (as opposed to remedying a violation of) a con-
stitutional right.^

Unlike Justice Kennedy’s majority opinion, which relied on
separation of powers arguments. Justice O’Connor’s dissent
focused on the meaning of religious free exercise. Specifically,
Justice O’Connor proposed to examine “the early American
tradition of religious free exercise to gain insight into the original
understanding of the Free Exercise Clause”—a type of inquiry,
she pointed out, that “the Court in Smith did not undertake.”^*
Justice O’Connor did not, however, conduct an examination of
the First Amendment’s text or its drafting in the First Congress.
“Neither the First Congress nor the ratifying state legislatures,”
she asserted, “debated the question of religious freedom in
much detail, nor did they directly consider the scope of the
First Amendment’s free exercise protection.”^^ She went so far
as to say that “it is not exactly clear what the Framers thought
the phrase [‘free exercise’] signified.”^» Nonetheless, Justice
O’Connor suggested that other sources that “supplement the
legislative history”^’ could be consulted. Following closely
Judge McConnell’s 1990 Harvard Review article. Justice
O’Connor focused on the text of early American legal docu-

22. For a deferse of Congress’s actions, see Douglas Laycock, Free Exercise and
the Religious Freedom Restoration Act, 62 FORDHAM L. REV. 883, 895-97 (1994).

23. 42 U.S.C. § 2000bb-l (2000).
24. Boerne, 521 U.S. at 536.
25. Id. at 519.
26. Id. at 548 (O’Connor, J., dissenting).
27. Id. at 550 (citing LEONARD W. LEVY, JUDGMENTS: ESSAYS ON AMERICAN C O N –

STITUTIONAL HISTORY 173 (1972)).

28. Id.
29. Id. at 550.

No. 3] Original Meaning of the Free Exercise Clause 1089

merits (in particular, state constitutions adopted during the
Founding period), the Founders’ political practice, and the
writings of the leading Founders (especially James Madison) .̂ o
The evidence in these historical records, she concluded, “casts
doubt on the Court’s current interpretation [under Smith] of the
Free Exercise Clause” and “reveals that its drafters and ratifiers
more likely viewed the Free Exercise Clause as a guarantee that
government may not unnecessarily hinder believers from
freely practicing their religion.”^!

1. Textual “Provisos” for Religious Exemptions

According to Justice O’Connor, state constitutions adopted
during and after the American Revolution protected religious
freedom by establishing a balancing test that allow^ed judges to
grant exemptions from generally applicable but burdensome
laws.32 She noted that “[b]y 1789, every State but Cormecticut
had incorporated some version of a free exercise clause into its
constitution,”^^ and that these state provisions “were typically
longer and more detailed than the Federal [First Amendment]
Free Exercise Clause.”^ She suggested, furthermore, that the
state provisions “are perhaps the best evidence of the original
understanding of the Constitution’s protection of religious lib-
erty,” because “it is reasonable to think that the States that rati-
fied the First Amendment assumed that the meaning of the fed-
eral free exercise provision corresponded to that of their
existing state clauses.”^^

Justice O’Connor discussed the free exercise clauses of four
state constitutions—New York, New Hampshire, Maryland,
and Georgia—as well as a similar provision in the Northwest
Ordinance of 1787, a federal law enacted contemporaneously
with the drafting of the Constitution and then reenacted by the

30. Id. at 549-64.
31. W. at 549.
32. Id. at 552-53. Justice O’Connor argued that evidence of the exemption-granting

balancing approach could also be found in the earliest colonial legal documents
recognizing religious liberty. Evidence cited by Justice O’Connor includes charters
and laws from colonial Carolina, Maryland, New Jersey, New York, and Rhode
Island. See id. at 551-52.

33. Id. at 552-53 (citing McConnell, supra note 2, at 1455).
34. Id. at 553.
35. Id.; see also McConnell, supra note 2, at 1456.

1090 Harvard Journal of & Public Policy [Vol.31

First Congress.^^ To take just one example. New York’s 1777
Constitution provided:

[T]he free exercise and enjoyment of religious profession and
w^orship, without discrimination or preference, shall forever
hereafter be allovvred, v̂ îthin this State, to all mankind: Pro-
vided, That the liberty of conscience, hereby granted, shall not
be so construed as to excuse acts of licentiousness, or justify
practices inconsistent with the peace or safety of this State. ‘̂’

Justice O’Connor focused on the proviso, “Provided, That the
liberty of conscience, hereby granted, shall not be so construed
as to excuse acts of licentiousness, or justify practices inconsis-
tent with the peace or safety of this State.” She interpreted this
text to set forth the condition for when religious exercise could
be circumscribed legitimately—that is, that the state could bur-
den religion only when necessary to prevent “acts of licen-
tiousness” or “practices inconsistent with the peace or safety”
of the state.̂ ^ Were this not what the proviso meant. Justice
O’Connor reasoned:

[T]here would have been no need for these documents to spec-
ify, as the New York Constitution did, that rights of conscience
should not be “construed as to excuse acts of licentiousness, or
justify practices inconsistent with the peace or safety of [the]
State.” Such a proviso would have been superfluous.̂ ‘

The presence of provisos demarking the narrow conditions for
when the state could burden religion signaled to Justice
O’Connor that the Founders foresaw that generally applicable
laws would burden religious exercise, and that they intended
to exempt religious citizens from such laws in all but the most
important cases.*°

Tracking Judge McConnell’s article. Justice O’Connor de-
rived further support for the judicial balancing approach to
free exercise from the history of Virginia, whose legislature.

36. Boerne, 521 U.S. at 553-54 (O’Connor, J., dissenting). For a hill discussion of
state constitutional protections of religious free exercise from the time before the
Constitution, see McConnell, supra note 2, at 1455-66.

37. N.Y. CONST, of 1777 art. XXXVIII, reprinted in 7 SOURCES AND DOCUMENTS OF
UNITED STATES CONSTITUTIONS 178 (William F. Swindler ed., 1978).

38. Boerne, 521 U.S. at 554 (O’Connor, J., dissenting) (quotation marks omitted).
39. Id. at 554-55.
40. See id. at 555.

No. 3] Original Meaning of the Free Exercise Clause 1091

she said, “may have debated the issue most fuUy.”‘*̂ Accord-
ing to Justice O’Connor, when Virginia drafted Article XVI of
its 1776 Declaration of Rights, its legislature debated what
standard should be used to grant exemptions from religiously
burdensome laws.*^ George Mason’s initial draft declared that
“all men should enjoy the fullest toleration in the exercise of
religion . . . unless, under colour of religion, any man disturb
the peace, the happiness, or safety of society.”*^ Unhappy with
Mason’s language, the young James Madison proposed: “all
men are equally entitled to the full and free exercise of [relig-
ion] . . . unless under color of religion the preservation of
equal liberty, and the existence of the State be manifestly en-
dangered.”^ According to Justice O’Connor, “both Mason’s
and Madison’s formulations envisioned that, when there was
a conflict, a person’s interest in freely practicing his religion
was to be balanced against state interests.”*^ If the right to reli-

41. Id. For a thorough discussion of the debate in Virginia, see McConnell, supra
note 2, at 1462-63.

42. Boerne, 521 at 555-56 (O’Cormor, J., dissenting).
43. Id. at 555. The full text of Mason’s initial draft was:

That religion, or the duty which we owe to our CREATOR, and the manner
of discharging it, can be (directed) only by reason and conviction, not by
force or violence; and therefore, that all men should enjoy the fullest
toleration in the exercise of religion, according to the dictates of conscience,
unpunished and unrestrained by the magistrate, unless, under colour of
religion, any man disturb the peace, the happiness, or safety of society. And
that it is the mutual duty of all to practice Christian forbearance, love, and
charity, towards each other.

George Mason, Committee Draft of the Virginia Declaration of Rights, reprinted in
1 PAPERS OF GEORGE MASON 1725-1792, at 284-85 (Robert A. Rutland ed., 1970).
For a comprehensive account of the drafting of Article XVI of the Virginia Decla-
ration of Rights, see Daniel L. Dreisbach, George Mason’s Pursuit of Religious Liberty
in Revolutionary Virginia, 108 VA. M A G . HIST. & BIOGRAPHY 5 (2000).

44. Boerne, 521 U.S. at 555-56 (O’Connor, J., dissenting) (emphasis removed). The
full text of Madison’s initial revision was:

That religion, or the duty we owe our Creator, and the manner of
discharging it, being under the direction of reason and conviction only,
not of violence or compulsion, all men are equally entitled to the full and
free exercise of it, according to the dictates of conscience; and therefore
that no man or class of men ought on account of religion to be invested
with peculiar emoluments or privileges, nor subjected to any penalties or
disabilities, unless under color of religion the preservation of equal
liberty and the existence of the State be manifestly endangered.

Gaillard H u n t , ]ames Madison and Religious Liberty, in 1 ANNUAL REPORT OF THE
AMERICAN HISTORICAL ASSOCIATION FOR THE YEAR 1901, at 163,166-67 (1902).

45. Boerne, 521 U.S. at 556 (O’Connor, J., dissenting); see also McConnell, supra
note 2, at 1462-63.

1092 Harvard Journal of & Public Policy [Vol. 31

gious free exercise did not include exemptions from some gen-
erally applicable laws, she said, the Mason-Madison debate
would have been “irrelevant.”*^ Although the Virginia legisla-
ture did not adopt any proviso. Justice O’Connor concluded that
it “[pjresumably” intended to adopt a balancing standard that
struck “some middle ground between Mason’s narrower and
Madison’s broader notions of the right to religious freedom.”‘”‘

2. The Founders’ Exemption-Granting Practices and Rhetoric

Justice O’Connor also found that the political practice of the
colonies and the early American states “bears out” the conclu-
sion that the Framers believed religion should be accommodated
as extensively as possible.*^ Carolina, she said, interpreted its
1665 charter to allow Quakers to enter pledges in a book in-
stead of swearing oaths when the Quakers found the latter ob-
jectionable.*^ Some colonies and, later, states with established
churches and legally-enforced religious taxes allowed taxpay-
ers to support their own church or exempted religious dissent-
ers from religious assessments.5° Some states exempted Quak-
ers from military service on account of their religiously
inspired pacifism.^’ Although Justice O’Connor acknowledged

46. Boerne, 521 U.S. at 556 (O’Connor, J., dissenting); see also McConnell, supra
note 2, at 1463.

47. Boerne, 521 U.S at 557 (O’Connor, J., dissenting); see also McConnell, supra
note 2, at 1463. Virginia adopted the following text, lacking a proviso, as Article
XVI of its Declaration of Rights:

That Religion, or the duty which we owe to our CREATOR, and the manner
of discharging it, can be directed by reason and conviction, not by force or
violence, and therefore all men are equally entitled to the free exerdse of
religion, according to the dictates of conscience; and that it is the mutual duty
of all to practise Quistian forbearance, love, and charity, towards each other.

Dreisbach, supra note 43, at 16.
48. Boerne, 521 U.S. at 557 (O’Connor, J., dissenting); see also McConnell, supra

note 2, at 1466-71. For a recent discussion of religious-based exemptions from
generally applicable laws in colonial America and during the Founding era, see
Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Un-
derstanding of the Establishment Clause, 81 NOTRE DAME L. REV. 1793 (2006).

49. Boerne, 521 U.S. at 558 (O’Connor, J., dissenting) (intemal quotation marks
omitted) (quoting THOMAS J. CuRRY, THE FIRST FREEDOMS: CHURCH AND STATE IN
AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 56 (1986)). Justice O’Connor
also noted that by 1789 almost every state had enacted oath exception legislation. Id.
(citing A R U N M . ADAMS & CHARLES J. EMMERICH, A NATION DEDICATED TO REUGIOUS
LIBERTY: THE CONSTITUTIONAL HERITAGE OE THE RELIGION CLAUSES 62 (1990)).

50. See id. at 559 (citing McConnell, supra note 2, at 1469).
51. See id. at 558 (citing McConnell, supra note 2, at 1468). Justice O’Connor also

noted that the Continental Congress passed a resolution in July 1775 recognizing

No. 3] Original …