The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress‪.‬

Despite the vast quantity of research devoted to understanding 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 understands the Free Exercise Clause to grant religious individuals and institutions exemptions from generally applicable laws that incidentally burden religious exercise, absent a compelling state interest in the law's enforcement. Initially adopted by the Supreme Court in 1963 in Sherbert v. Verner, (1) the exemption interpretation received its leading originalist defense in 1990 by distinguished law professor (and now federal appellate judge) Michael McConnell. (2) Justice Sandra Day O'Connor later adopted Judge McConnell's arguments in her dissenting opinion in the 1997 case, City of Boerne v. Flores. (3) The other interpretation of the Free Exercise Clause denies that the First Amendment encompasses such exemptions. The non-exemption interpretation, first articulated by the Court in 1878 in Reynolds v. United States, (4) was revived for most free exercise issues in the 1990 case, Employment Division v. Smith. (5) Justice Antonin Scalia, Smith's author, has vigorously championed this position, with the concurrence of numerous academic commentators. (6) In Smith, Justice Scalia defended his interpretation without referring to the Founders, (7) but in Boerne he mounted a direct critique of exemptions on historical grounds. (8) Advocates of both the exemption and the non-exemption interpretations of the Free Exercise Clause thus appeal to the Founders and purport to embrace the original understanding of the Free Exercise Clause. It would seem that both sides cannot be correct.