Judge McConnell of the Tenth Circuit Offers the Edwin Sabota ’79 Memorial Lecture

Robert Magee, Staff Writer, RMagee@albanylaw.edu

     The second day of the symposium began in the Dean Alexander Moot Courtroom at Albany Law School with the Edward C. Sebota ’79 Memorial Lecture, delivered by the Honorable Michael McConnell of the 10th Circuit Court of Appeals.  He presented an overview of the judicial interpretation of the Free Exercise Clause as compared to similar interpretations of the Free Speech clause. He further explored the Supreme Court’s historical treatment of these protections and explained why and how and the Religious Land Use and Institutionalized Persons Act (RLUIPA) (1) came to be.

    After graduating from the University of Chicago Law School in 1979, Judge McConnell clerked for Judge James Skelly Wright of the D.C. Circuit and then Justice Brennan of the U.S. Supreme Court, from 1980-1981. He went on to teach at his alma mater and then the University of Utah college of law, where he teaches to this day. (2) 

     Judge McConnell was appointed to the 10th Circuit in September of 2001.  While sitting on the bench Michael McConnell has authored three opinions which have come before the Supreme Court which have been adopted by the Court. (3)

     Judge McConnell began the morning with a remark about Albany’s own history.  In particular, he noted that New York’s constitutional convention of 1777 was the sight of a battle between John Jay (later a Justice of the Supreme Court) and Gouverneur Morris (later one of New York’s first Senators) over how American society was to treat particular religious denominations.  Specifically, Jay sought to exclude Catholics from New York’s free exercise clause believing that their allegiance to the pope precluded them loyalty to the government of New York. (4)  Gouverneur Morris opposed him, arguing that religious liberty prohibited exclusion from civil society of any class of people based on their religion. (5)

   This conflict, which ultimately fortified one our nation’s most fundamental founding tenets, is made all the more interesting by the fact that both John Jay and Geuverneur Morris were descended from Huguenot families. (6)  As such, each was intimately familiar with religious persecution as it existed in the Old World and had strong ideas about the interplay of civil society and religion in New York State.

    Judge McConnell said that when considering RLUIPA we’re tempted to ask: “why is there a statute designed to protect religious land use?” The need for RLUIPA arises out of a long-standing and unresolved debate over the definition of religion and religious freedom within the meaning of the Constitution. It’s an attempt by Congress to add uncertainty to a fundamentally cloudy area of law and it arises out of an even narrower debate: “To what extent should we make accommodations or provide special protections for religious land use?”

     The word ‘accomodation’ when discussing religion and civil society, is best understood as a special provision that enables individual groups to carry out religiously motivated activities that would otherwise be illegal or forgo otherwise required activities for religious reasons. 

     This question comes up in any number of contexts.  One of the earliest cases to deal with Free Exercise dealt with the obligation of all citizens to provide relevant information to authorities about criminal matters via Subpoena. (7)  Should there be a special accommodation for Catholic priests, who are compelled by Catholic law to maintain the confidence of their penitents?  Another example arises out of Title VII prohibition against the use of sex as a hiring criteria. Is the Catholic church, as an employer, then prohibited from refusing to hire women as priests? (8)  Are kosher slaughterhouses bound by government regulations where those regulations would prevent them from preparing food according to their faith? (9) 

     Issues arise out of specific religious obligations and experience shows demonstrates that the more likely there is conflict depends on size of religion, with smaller religions having a more difficult time invoking the free exercise clause than large ones. (10)

   After having outlined the nature of the Free Exercise dilemma in American society, Judge McConnell laid out the road map for the rest of his address.  Judge McConnell was going to consider 1.) the extent to which religious accommodations are required by Constitution, 2.) the extent to which they are prohibited, which will lead to an understanding of 3.) what authority Congress has to pass legislation which concerns religion, and, for the purposes of our symposium 4.)  what implications to answers to these questions have for land use regulation.

     The Free Exercise clause protects both religious belief and action.  This isn’t a matter of debate, the origin of the dispute arises over the nature of this protection.  In this debate, thinkers fall between two polls of thought. On one end of the spectrum are those who interpret the Free Exercise as demanding the government simply not interfere in religious exercise.  On the other end are those who would hold that it, like the equality amendments, forbids government action except in certain exigent circumstances.

     Unlike the Free Exercise clause, other provisions of the Bill of Rights, Judge McConnell noted, have some statement about the limits of government authority.  Take, for example, the Fourth Amendment.  The government may conduct searches and seize property so long as they are not unreasonable.   He considered also the Takings Clause of the Fifth Amendment.  “Just compensation” and “public pupose” serve as limits on the government’s ability to take property.  In both cases, the government’s authority is more clearly outlined.

     Free Exercise is a closer cousin to the Free Speech Clause.  Like the Free Speech clause there is no demarcation of where personal liberty ends or where governmental authority begins.  In the first instance, neither clause has been deemed absolute and in the second it is the courts who are left with the task of drawing the line.  

     The argument has been made, Judge McConnell said, that the Free Exercise clause can be read to protect religious activity unless the government can establish some kind of authority directed at limiting it.  The alternative view (and the view of the Supreme Court) is that the  clause provides protection only against impositions directed specifically against religion. (11)  By this theory, the Free Exercise clause only has to do with laws that relate to religious institutions or laws that deal with religion outright. (12)  

    The Free Exercise clause doesn’t have any application where a law is generally applicable. (13)  The Free Exercise clause, according to Supreme Court precedent, requires only facial governmental neutrality. (14)  Judge McConnell is skeptical of this decision, but it’s established law at this point.

    Returning to the Free Speech/Free Exercise analog, there is a resemblance between this interpretation and laws that have an indirect effect on speech. (15)   Specifically, Justice O’Connor spelled out a four part test in Central Hudson Gas & Electric Co. v. Public Service Comm’n of New York to determine where government authority extends to speech. (16)  O’Connor ruled that so long a provision limiting expressive conduct furthers1.) legitimate governmental objective, which 2.) is unrelated to a limitation on speech, and which is 3.) narrowly tailored while 4.) allowing ample avenues of alternate communication it withstands scrutiny under the Free Speech clause. (17)  The necessary result is a number of laws that are ostensibly and genuinely neutral but which are struck down for their effect on speech.

     If a similar test were adopted for the Free Exercise clause, Judge McConnell went on to say, there would clearly be great deal more protection accorded religious exercise. (18)  One difficulty, Judge McConnell admitted, in apply a Central Hudson type test to free exercise was that for many religions, as Prof. Miller would stress later with respect to Native American religions, there was no “alternative channel” for expression. Still, such wrinkles could be ironed out in case law.

    A further reason for a broader Free Exercise construction is the “substantial historical evidence”, to quote Judge McConnell, that the  Founders understood the Free Exercise clause to provide more protection for religious exercise than it currently does. 

     For example James Madison, the principle author of the Bill of Rights and by extension the First Amendment, (19) speaking before the General Assembly of Virginia in 1785 in opposition to a bill which would levy a special tax to support religious teachers, (20) said:

Because we hold it for a fundamental and undeniable truth, “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.” The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Govenour [sic] of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. (21)

     Madison felt that allegiance to God and expressing that allegiance were a priority for the Founders and that the state ought not to be allowed to overwhelm your obligations to this allegiance. This would suggest that the Free Exercise clause was intended to provide more protection than that of a guarantee against mere non-discrimination.

     Also, there were a number of state laws at the time of the Constitutional Convention which provided protection for religious exercise.  The New York Constitution, the one drawn up between Gouverneur Morris and John Jay, stated that New Yorkers were free to exercise whatsoever religion they chose to the extent that it refrained from “licentiousness” and did not disturb the public peace.  The state was only allowed to step in when religion had gotten out of control.  This suggests greater deference to religious exercise.  Other state constitutions, Judge McConnell said, embodied the same language and understanding of religious exercise.

    There was an historical moment, after the Court decided Sherbert v. Verner, in which the Court ruled that if exceptions to genuinely neutral laws were offered for certain classes of individuals these same exceptions could not then exclude religion for their consideration, (22) that it seemed like religious exercise would recieve the sort of protection the Founders envisioned. But almost immediately the Court retreated from this high water mark of the Free Exercise clause until the door was finally shut in Employment Div. v. Smith.

     Judge McConnell’s reading of the Free Exercise clause would allow government to make exceptions with respect to religion.  In English Common Law the King could issue “indulgences dispensations” from generally applicable laws. (23) These were used generously by James II and Charles II and were generally offered to protect Catholics.  For both these reasons they were unpopular. (24)  A common understanding wouldn’t consider these an “Establishment” for purposes of the Establishment Clause.  As exceptions they were the opposite of establishments.  This power was retained by early colonial governments and were used most often to attract settlers escaping religions persecution on the Continent. (25)

     Another interesting debate occured during the First Congress in which Madison proposed his version of the Second Amendment which would have exempted from bearing arms those who were “religiously scrupulous” of doing do. (26)  The vote was split, nearly 50/50, between those who felt that the language should be adopted and those who felt it should be left to the legislature.  What is significant, Judge McConnell stressed, was that little objection was made on the grounds that it wasn’t in the government’s authority to provide this explicit protection for the Free Exercise of religion. However, where such “indulgences or abatements” are concerned, the Supreme Court has been as close as it has ever been to being consistent in striking them down.  In the lead case on this issue, Cutter v. Wilkinson (27) Justice Bader drew the current Free Exercise test for religious accommodations in a prison setting. Such accommodations will be admissible if they 1.) ease substantial burdens on religious exercise which are created by the government 2.) take into consideration the burden the accommodation will impose on non-beneficiaries, and 3.) if the accommodation is administered equally among all faiths. (28) It was by this standard that RLUIPA first passed constitutional muster.

      The next question to be asked is what Congress’s role is in enforcing the Free Exercise clause. As history has born out, most constitutional rights are protected by statute and not the Courts.  Indeed, these statutes often go beyond what the the Constitution would otherwise provide.  This conception of Congress’s role is contemplated by section 5 of the Fourteenth Amendment which grants Congress the authority to enforce that amendment’s extension of the Bill of Rights to the states.  In enforcing the Fourteenth Amendment, Congress will often expand its practical application, often in tandem with its Commerce Clause authority, as we saw in Congress’s civil rights era legislation.

     The Religious Freedom Restoration Act of 2003 (RFRA) was passed to expand application of the Free Exercise clause beyond that which was provided by the Supreme Court in Smith.  It required that governments have a compelling interest in burdening religious exercise before they could do so constitutionality. The Court, Justice Kennedy writing, stuck down RFRA as an attempt to expand the substantive quality of a constitutional right and insodoing arrogate a power reserved to the Supreme Court. (29) Section 5 of the Fourteenth Amendment only allows Congress to enforce existing rights, not to expand them in the states.

    Judge McConnell takes exception. He argues that expansion of constitutional rights occurs in other instances. In ‘enforcing’ Voting Rights, Congress will enact prophylactic measures that ultimately build on existing rights.  Furthermore, in employment if a member of a particular ‘class’, Title VII creates a presumption that s/he was fired because s/he is a class member and places the onus on the employer demonstrate otherwise. In both instances, the practical effect of congressional enforcement is substantive right expansion.  RFRA was such an attempt at such expansion-by-enforcement, Judge McConnell asserts, and while the Court could applied it’s employment discrimination or voting rights understanding to the Free Exercise clause, it simply decided not to.  

     There have been two areas in which Courts have been receptive to Congress’s enforcement of the Free Exercise clause; 1.) prisons and in 2.) land use.  Notwithstanding Justice Bader’s opinion in Cutter, RIULPA was probably deemed constitutional by the Court because it has to do with prisons and land use, because it is difficult to come up with something that is generally applicable as it concerns land use and because the sorts of impositions on Free Exercise which occur in prisons are more often substantial.  This was bolstered by Congress’s exceptionally broad Commerce Clause power. Finally, Congress provided the Court a full congressional record for RLUIPA  in which it was made clear that Congress had found ostensibly neutral standards being used to discriminate against minority religions and so violate the Free Exercise clause. This was instrumental in getting RLUIPA over the congressional intent prong.

    A lot of these ideas are very abstract and Judge McConnell admitted that many might wonder why we should care about these sorts of issues. In his own experience, Judge McConnell, three of the churches he has been a member of has had gotten into legal battles with local zoning boards over their use of the land. In particular, while living in Washington, D.C. Judge McConnell helped to start a homeless feeding program with the Western Presbyterian Church in Foggy Bottom in DC of which he was a member. The program is now the largest in Washington, D.C. and ultimately earned national recognition. It used to be next to the IMF building, but when the IMF wanted to expand its facilities it offered to move the congregation a few blocks uptown and to build it an entirely new church modeled on their old one. The Western Presbyterian Church decided to accept the offer. (30) 

     Unfortunately, the new location was in a residential part of the city, and residents there took issue with the homeless feeding program. These residents challenged the program as being in violation of code. In particular, the area wasn’t zoned for and the church didn’t have a permit to conduct a restaurant at the location. The District of Columbia Board of Zoning Affairs required they apply for a variance and the church appealed under RFRA, the Civil Rights Act of 1964 and the First and Fifth Amendments.  The church was successful in gaining an injunction against enforcement of the zoning ordinance. (31) As a result, the program exists to this day and “this well-run and necessary effort to minister to the less fortunate residents of this city ought not be arbitrarily restricted and relegated to the less desirable areas of the city because of the unfounded or irrational fears of certain residents.” (32)


1 – The Religious Land Use and Institutionalized Persons Act, Pub.L. 106-274, 42 U.S.C. § 2000cc-1,et seq. (2000).

2 – University of Utah, S.J. Quinny College of Law, Faculty Profiles: Michael W. McConnell available at http://www.law.utah.edu/profiles/default.asp?PersonID=78&name=McConnell,Michael.

3 – O Centro Espirita Beneficient Uniao do Vegetal v. Ashcroft, 546 U.S. 418 (2006) (adopting the logic of Judge McConnell’s concurrence); Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2008) (affirming Judge McConnell’s majority opinion); Begay v. United States, No. 06-11543 (Apr. 16, 2008) (adopting Judge McConnell’s dissent).

4 – Michael W. McConnell, Freedom from Prosecution of Protection of the Rights of Conscience?: A Critique of Justice Scalia’s Historical Arguments in City of Boerne v. Flores, 38 Wm. & Mary L. Rev. 819, 842-43 (1998). John Jay’s proposed Free Exercise clause read thusly:

[T]hat free Toleration be forever allowed in this State to all denominations of Christians without preference or distinction and to all Jews, Turk, and Infidels, other than to such Christians or others as shall hold and teach for true Doctrines principles incompatible with and repugnant to the peace, safety and well being of civil society in general or of this state in particular[,] of and concerning which doctrines and principles the legislature of this State shall from time to time judge and determine.

5 – Id.

6 – The John Jay Institute, John Jay: Biography, available at http://www.johnjayinstitute.org/?get=get.johnjay; James J. Kirschke, Gouverneur Morris: Author, Statesman, Man of the World 2 (2005).

7 – Privileged Communications to Clergymen, I Cath. Law. 199, 199-209 (1955).

8 – Cheryl Y. Haskins, Gender Bias in the Roman Catholic Church: Why Can’t Women Be Priests?, 3 Margins: Md. L.J. Race, Religion, Gender & Class 99 (2003).

9 – See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise, 103 Harv. L.Rev. 1410, 1419 (1990).

10 – Employment Div. v. Smith, 494 U.S. 872 (1990).

11 – Id.

12 – See McDaniel v. Paty, 435 U.S. 618 (1978) (striking down a provision of the Constitution of Tennessee forbidding “ministers of the Gospel or priests of any denomination whatever” from government posts).

13 – Smith, 494 U.S. at 872 (1990).

14 – Id.

15 – Clark v. Community for Creative Non-Violence, 466 U.S. 288 (1984). 

16 – Central Hudson Gas & Electric Co. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).

17 – Id.

18 – Even further protection would have been afforded religious exercise had strict scrutiny applied to law directly regulation religious exercise in the same way strict scrutiny is applied to laws regulating speech. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 665 (1990).  Judge McConnell stated, however, that even strict scrutiny applied to speech isn’t quite the same thing as it used to be, even when applied to speech.

19 – William T. Mayton, From a Legacy of Suppression to the ‘Metaphor of the Fourth Estate’, 39 Stan. L. Rev. 139, 148 (1986).

20 –  Jaye B. Hensel, Ed., Church, State, and PoliticsWashington, D.C. Final Report of the 1981 Chief Justice Earl Warren Conference on Advocacy in the United States.

21 – James Madison, Remarks Before the General Assembly of Virginia: A Memorial and Remonstrance (1785).

22 – Sherbert v. Verner, 347 U.S. 398 (1963).

23 – McConnel, Historical Understanding at 1428.

24 – Id.

25 – McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).

26 – Vincent Philip Muñoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 Harv. J. L. & Pub. Pol’y 1083, 1114-1115 (2008).

27 – Cutter v. Wilkinson,  544 U.S. 709 (2005).

28 – Id. at 720.

29 – City of Boerne v. Flores, 521 U.S. 507 (1997).

30 – Liz Leibold McCloskey, Editorial, Complexities of Community – Washington D.C.’s Western Presbyterian Church Sues to Keep its Homeless Feeding Program, Commonweal, Sept. 9, 1994, available at  http://findarticles.com/p/articles/mi_m1252/is_n15_v121/ai_15822952/pg_2?tag=artBody;col1.

31 – Western Presbyterian Church v. Bo. of Zoning Adjustment of the District of Columbia, 849 F. Supp. 77 (Dist. of Columbia, USDC 1994).

32 – Id.

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