On Burke & Fulton

This article was originally published in the Cornell Review (https://www.thecornellreview.org/on-burke-and-fulton-a-review/) as “On Burke and Fulton: A Review”

Religious liberty and clearing a space for the free exercise of sincerely held religious beliefs will play a vital part in structuring and securing our common good and guiding the public square, devoid of government intervention, toward a measured, regulated individuality which ensures the protection and care of all.

As Madison presciently highlighted, religious liberty, for those who are skeptical of religion or view its transcendent qualities with distrust, is important in the temporal sphere as it acts as an enduring limitation on government through its demands and duties placed on citizens to a “Universal Sovereign”, using Madison’s term, which takes precedence over the temporal duties citizens owe to government.

Tocqueville, as evidenced through his writings in Democracy in America, understood the inherent benefits of religious liberty seeing the exercising of this right as the fundamental defense against a political society governed by the ideals of unfettered individuality and freedom. For Tocqueville, fostering a civil society in which religious liberty and free exercise are encouraged inherently orients a society to transcendent, moral truths which are at the heart of religious practice. Consequently clearing space for free exercise and the absolute commitment to religious liberty is, as both Tocqueville and the Founders recognized, the primary tool for directing civil society away from unfettered ambition and base desire. [1]

Religious liberty and free exercise are incumbent upon a regulated individualism. Burke understood that moderation and prudence are not natural traits and recognized that religion and religious practice is the best tool for which to regulate the passions and channel the urges of the citizens toward the common good. [2] Consequently, because these restraints are as important as the liberties which they keep in check, the restraints, as the liberties are, should be viewed as a natural right and subject to the same protections.

The French Revolution and its adherents place their faith in government, hoping to transform society through exogenous means. In contrast, because natural rights are retained in spite of government, Edmund Burke argues, “the moral, and political benefits that flow to liberty from the time-tested beliefs, practices, and institutions beyond the government’s immediate purview…structure social life and cultivate manners and morals”.[3]

As Burke and others highlight, the obligations owed to the transcendent power are precedent to those owed to the temporal authority of the state. Burke explains, “Government is not made in virtue of natural rights [because these natural rights] exist in total independence of it”. Because these rights are naturally endowed, the existence and consequent exercise of them is far more distinct without the interference of human institutions such as government.[4]

At issue today and the premise of this paper is a need to revisit the controlling precedent of Employment Division v Smith in light of Fulton v City of Philadelphia which was heard last November.

As a brief overview, at issue in Fulton is whether the government can discriminate against Catholic Social Services based on their religion. The city shut down the Catholic Social Services foster program not because they were providing an inferior service or because they were the only foster service in Philadelphia and were excluding LGBTQ couples from fostering but because it carries out its service in compliance with their religious beliefs.

Fulton presents a unique opportunity for the Court to revisit the Smith decision of 1990 which made religious exemptions from laws stemming from the Free Exercise clause which, prima facie, are neutral towards religion, virtually impossible to receive.

The operative clause within Smith is that of neutrality. For the Court, if the law is neutral towards religion the Court has no jurisdiction to strike it down. However, the legal scholar Douglas Layock differentiates substantive neutrality from formal neutrality, explaining that government should minimize as much as possible its effect on individuals’ ability or lack of ability to practice their religion. In short, “religion should be left as wholly to the private choice as anything can be”.[5] In a word, the free and private choice of religion must remain sacrosanct otherwise a law violates the principle of substantive neutrality.

Fulton provides an example of a law which, though it is formally neutral, allows the government to interfere with religious practice and belief with no compelling interest to do so outside of political expediency. The City of Philadelphia refused to renew the contract of CSS because CSS, citing their religious belief, does not place children with same sex couples which the City says violates a formally neutral law which forbids discrimination against same sex couples.

The Smith opinion held the Court was unable to protect religious minorities through religious exemptions because the tradeoff to ensuring formal neutrality of the government superseded efforts for religious exemptions. However, McConnell in his seminal work on religious exemptions of 1990 explained “The ‘disadvantaging’ of minority religions is not ‘unavoidable’ if the courts are doing their job. Avoiding certain consequences of democratic government is ordinarily thought to be the very purpose of the Bill of Rights”.[6] The ultimate end of religious liberty, free exercise, and the substantive neutrality of the law is to provide citizens the time and freedom to honor their duties and obligations to the transcendent above their temporal duties to the state. Inherent in this space for exercise and freedom is the understanding, as Burke, Madison, and Tocqueville explained, that a rigorous free exercise tradition structures civil society towards the moral lasting truths found at the foundation of religion, protects the natural, inalienable rights of each person, and limits the effect of the government within the private lives of individuals. Now, the Court is presented with a unique opportunity to realign the jurisprudence back to the original vision of religious exercise and to fulfill their obligation to protect minority groups against the tyranny of the majority.

[1] Ibid

[2] Burke, Edmund. Reflections on the Revolution in France. (Whithorn: Anodos Books, 2019).

[3] Berkowitz, Peter. Burke Between Liberty and Tradition. (Hoover Institution, Policy Review: December 2012 – January 2013. December 1 2012). https://www.hoover.org/research/burke-between-liberty-and-tradition

[4] Ibid

[5] Douglas Layock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993, 1001 – 02 (1990).

[6] McConnel, Michael. “Free Exercise Revisionism and the Smith Decision”. (57 University of Chicago Law Review 1109, 1990. Page 11). Accessed February 2 2018.