Now I am a big fan of textualism, but in this case it fails. The literal meaning of “free exercise of religion” is perfectly clear – it includes just about any religiously motivated practice from child sacrifice to spousal immolation. The problem is that taking the words literally is one of those ‘turn the Constitution into a suicide pact’ things, as much or more so than yelling Fire! in a crowded theater.

So that is where original or legislative intent comes in – and I cannot see the original intent of the clause including the right to polygamy or any behavior similarly consequential. The penumbra of the original intent no doubt extends beyond the classic expressions of free exercise to related matters, but they should be given a lesser degree of protection, just as political speech deserves more protection than commercial speech.

So the question is, what other types of peaceful, public nuisance free behaviors are there that government would have a reasonable interest in regulating that would be covered under the penumbra of free exercise?

Michael McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” 103 Harv. L. Rev. 1409 (1990)

McConnell makes a pretty good case for an expansive original understanding of free exercise, noting that there seemed to be a general understanding that religious conduct was protected so long as it was not “repugnant to the peace and safety of the State” or “does not disturb the public peace” or does not “include acts of licentiousness or justify practices inconsistent with the peace or sefty of this State.” What this means is unclear, but it does seem to mean something more than simply building churches and attending the Protestant sect of your choice.

APJ: Who knows what will happen to the hybrid-rights doctrine. I suspect that it will actually survive because its rejection would require the Court to overturn Yoder, which it won’t do, or overturn Smith, which it won’t do. The justices who dislike Smith will stick with it because it preserves Yoder, and the justices who like Smith will stick with it because it perserves Smith. Just my prediction.

My bet is that even if a court bought into a hybrid-rights argument against the criminalization of polygamy (and I doubt that they would), it would not be willing to hold that the argument affirmatively required the state to legally recognize polygamous marriages. I think that you could point to cases like Tax Comm’n v. Waltz for the proposition that while the state may, if it chooses, provide some benefit to religion it is not affirmatively required to do so. All of this requires that you hold to a rather strict benefit v. detriment distinction. Whether or not this is really tenable is unclear. Certainly, the court can ignore this sort of thing if it wishes, as cases decided under the state-action doctrine make abundently clear.

MY SPECULATION: One difference I note is that the Amish were asking to be able to NOT do something (send their kids to school), whereas in Smith the defendants were saying they had to right TO DO something (smoke peyote). I don’t remember that being discussed in the case, but to me it’s notable. Perhaps Scalia, writing in Smith, didn’t want to make that distinction because it would justify things like, oh, polygamists who weren’t seeking legal recognition.

So, call me cynical, but I think Yoder was decided because the court looked at the situation and said, this doesn’t look so bad to us, so we’ll apply strict scrutiny and let the Amish (whose protestant work ethic we admire) slide. Of course, they can’t just say that, because it would pretty much admit that free exercise protection is really just a popularity contest (if we like/admire your religion enough, we’ll let you opt out of certain laws, so long as it doesn’t upset society too much). My cynicism also tells me that, this is why FLDS can’t win…even though they share the self-sufficient, hard-working, keep-to-themselves attitude of the Amish, they also have nasty rumors of child brides and rampant abuse running wild.

(Another perspective may be that, at some level, if we think a religion can do a better job at what the state is doing, like education, we’ll give them the okay to do it on their own)

If that was the case, we might not be able to have restrictions on under age marriage at all, or statuatory rape laws, or consanguinity laws, or obscenity laws, and so on, without requiring to have the courts invent novel legal theories to fit their vision of desirable practice of governmental regulation within such a sweeping principle.

I think that the idea of using the free exercise clause to support drug use for some – as long as you truly and sincerely believe in it – and prohibit it for others, is untenable. What about equal protection?

Given history going back to the time of the Protestant Reformation, it seems clear that the free exercise clause was intended to allow people to exercise religious freedom in the traditional manner – building churches, holding meetings, publishing books, proselyting in public, and other benign activities – all things that would still be subject to reasonable legal regulation, just not regulations that were uniquely hostile to a particular religious viewpoint, religion in general, or the general freedom of assembly and the press.

The other primary purpose of the free exercise clause, it seems to me, is to provide a proper balance for the establishment clause, so that we do not improperly read the Constitution as being hostile to religion of the first kind.

However, I am dubious that there are many activities beyond preaching, teaching, publishing, and assembly that rightly deserve to have strict free exercise clause protections.

It seems there’s a difference between (some) gay marriage advocates and polygamists, in that gays want legal marriage itself. And even civil unions that imply some legal recognition, even if it is not marriage. Polygamists like Holm are not seeking any legal recognition…just to be able to live the lifestyle. So, my question, I guess, is how does the fact that polygamists (at least the ones we’re talking about) aren’t pursuing a fundamental right to marry (legally) fit in to what you’re saying? (honestly curious)

The hybrid rights aspect is interesting; I’ll admit to being a little unsure of what it means. For one thing, I think it’s a little ‘shaky’ to create a whole new doctrine based on what was Scalia’s attempt to distinguish Yoder from Smith. But, you’re right, some courts are embracing it, and the fact that I think it’s ‘shaky’ doesn’t mean much (all you need is the majority of justices, eh). But if you look at Yoder ITSELF, it clearly wasn’t using a hybrid-rights analysis. Yes, it mentions the right of parents to raise their children, but the ANALYSIS is under free exercise doctrine. (In my mind), a very viable alternate interpretation in Yoder is that society in general favors hard-working people like the Amish (Yoder) over peyote-smokers (Smith). We respect the Amish, so we let it slide; we don’t value white guys practicing a Native American religion and smoking peyote (even though from what I understand no one really questioned their sincere religious motivation; it’s just that we don’t VALUE their religion the way we do the hard-working Amish) so we don’t let it slide.

Even beyond the fact that Scalia was probably stretching to make a distinction (not uncommon in opinions, obviously), the constitutionality of ‘hybrid rights’ should be very suspect (in my opinion), because: WHY SHOULD TWO CONSTITUTIONAL VIOLATIONS BE MORE IMPORTANT THAN ONE?! For example, shouldn’t a gross violation of a constitutional right be more protected than a small violation, even if the small one happens to fall under two different rights? I mean, how logical is it to say that criminalizing one practice is ‘kind of ‘ a free exercise violation, and ‘kind of’ a free speech violation (or any combination of Constitutional rights).

So, I’m not disagreeing with you (in fact I agree as to what the current law is): yes, Scalia wrote what he wrote, and yes some courts are using this ‘hybrid-rights’ doctrine (from what I understand), but I just think it stands on a very shaky premise (one that could easily fall out of favor). My initial thought would be that courts are using ‘hybrid rights’ not because they are convinced of its pure logic and constitutional soundness, but because they see it as an easy way to come to what they see as a fair resolution.

In short, I agree with you as to current assessment of law; I’m just arguing that I hope ‘hybrid rights’ doesn’t become too entrenched, because I think it’s wrong.

(Finally): as to my ‘long lost pal prank’ example, I agree with you, it is a stretch and doesn’t really address the main concern. I was just trying to find an argument for vagueness/overbreadth (not actually trying to dispute the analysis of the court or anything), and, admittedly, didn’t do so very convincingly.

I still think it’s interesting (perhaps not very legally significant, but interesting to me) to consider the much-more-likely scenario of a religious man taking on multiple wives with whom he lives, but does not have kids with (e.g. the poor widow who never was sealed to her now-dead spouse, but wants to go to the celestial kingdom, and so gets sealed to a married man, who also provides for her). Again, a stretch, but is this similar enough to marriage (religious marriage coupled with *some* similarities to marriage, albeit without kids or sex, but with the living together and providing for) to be a ‘bigamist’? Of course, this is still a stretch since it’s unlikely to be prosecuted, (although I could see a ‘bigamy’ charge being added on if, for example, the husband was also abusing her or committing fraud against her).