One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.

To the surprise of many, the Supreme Court rejected both the Native Americans' claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions (by five to four). Writing for the Court, Justice Scalia said, “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Moreover, in order to preclude such a holding in the future, the Court discarded the “strict scrutiny” test, adopted in its 1963 Sherbert v. Verner decision according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a “compelling” government interest and is the least restrictive means of protecting that interest.

Dr. Josef Mengele injected Sara Vigorito with unidentified substances as part of his infamous “twin experiments,” causing her to remain ill for seven years after being liberated from Auschwitz. Having survived that ordeal, she is now opposed to the scientific use of data from experiments conducted on concentration camp prisoners. In her mind, using the data today would be “like building on top of Auschwitz.”

This Article will argue for the symbolic value of not using the Nazi data. Although symbolic value arguments have been recognized in the expansive literature on this question, they have not occupied center stage. Rather, argument concerning the use of the data has largely been conducted in two discourses, morality and pragmatism, which tend in our culture to have a more universal legitimacy. Putting the issue in these terms, however, misses the point. The question raised by the Nazi data cannot be answered satisfactorily by testing the strength of competing moral maxims or by weighing costs and benefits. We should ponder instead what the use or non-use of the data would say about us as a society. This in turn requires both that we evoke some idea about what we want to be (a substantive conception of good), and that we argue about what use or non-use would mean for that self-image (a theory of how symbols get their meanings).

Recent writings have uncovered a robust interaction between the spheres and sciences of law and religion. Law and religion are conceptually related. They embrace closely analogous concepts of sin and crime, covenant and contract, righteousness and justice. Law and religion are formally related. They both have patterns of liturgy and ritual, concepts of tradition and precedent, sources of authority and power. Law and religion are methodologically related. They maintain analogous hermeneutical methods of interpreting texts, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing their doctrines. Law and religion are professionally related. They both have officials charged with the formulation, implementation, and demonstration of the norms and habits of their respective fields. Law and religion are institutionally related, through the multiple relations between political and ecclesiastical officials and institutions.

A popular conception about the Religion Clauses of the First Amendment is that the Free Exercise Clause is in tension, or conflict, with the Establishment Clause. Accommodation under the Free Exercise Clause seems, in many cases, to conflict with the establishment clause principle that government must neither advance nor favor any religious practice or belief. In response to this seeming tension between the two mandates, Jonathan Nuechterlein, in a recent article, advances the theory that contrary to popular belief, the two clauses are not in conflict. Rather, the mandates of the two clauses fit together like “pieces in a jigsaw puzzle.” The traditional test of required accommodation under the Free Exercise clause5 employed by the courts define the outer limits of what is allowed under the Establishment Clause.

In what may at first seem to be only a marginally related work, Professor Douglas Laycock tackles the task of formulating a workable definition of governmental neutrality towards religion “neutrality” has under the clauses. Recognizing that the term been repeatedly used and “misused” by both courts and commentators, and recognizing the prevalence of a “formal” definition of neutrality that is at odds with religious liberty,” Laycock lays the groundwork for a systematic definition of that term, and proposes a certain “substantive” definition that best promotes religious liberty.

In the contemporary age, when we hear references to the First Amendment religion clauses, we may think of cases in which courts have addressed the legality of prayers in schools, the displays of religious symbols during the holiday seasons, or monetary and other tangible assistance provided by governments to parochial schools. Just this past semester, the United States Supreme Court addressed the question of animal sacrifice occuring in a religious ritual as protected conduct under the free exercise of religion clause. Important as these issues are, they are not the subject of this investigation. My proposal is to address the First Amendment religion clauses in a different context. The goal is to show that it is both Constitutionally permissible and helpful (and quite possibly essential) to American republican democracy that the church (and individuals holding religious beliefs) (can and ought to) participate in the public discourse involving a wide variety of political and social issues with which our local, state, and national communities are concerned.

The effects of Employment Division of Oregon v. Smith, the 1990 Supreme Court free exercise decision, were felt far beyond the members of the Native American Church who were denied the right to ingest peyote as part of a religious ritual. Smith held that as long as a statute was generally applicable and not directed at religion, it would be upheld, regardless of whether it infringed on a religious practice. This unexpectedly broad and severe opinion of the Court galvanized a large number of diverse religious groups as well as various civil rights organizations and the eventual result of their efforts was the Religious Freedom Restoration Act (RFRA), a bill designed to restore free exercise law to its pre-Smith state.

While the RFRA seemed initially to have almost universal backing, it eventually met resistance from various Catholic and anti-abortion groups which feared it could be used to argue for the right to a religiously-motivated abortion. More recently, concerns were expressed regarding the bill's effect on the rights of prisoners. However, despite the concerns, the bill passed both the House and Senate by wide margins and has been signed into law by President Clinton.

The purpose of this survey is to note important case law developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Supreme Court has granted review during the 1993-94 term. The focus here is on significant or interesting cases that may otherwise escape broad attention. Only the facts and rationale of each decision is summarized. No editorial comment on the merits of these cases is intended.