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Draft: not for quotation
This draft chapter is being written for a symposium and subsequent book, Justice
Scalia: Rhetoric and the Rule of Law, to be edited by Brian Slocum and Francis J.
Mootz III and published by the University of Chicago Press. Credit for all data
compilation and resulting charts and graphs goes to Eric Nystrom,
http://ericnystrom.org/about/. Mistakes in the analysis and interpretation of the data
are mine. We are continuing to revise and update the compilations and calculations as
we discover new interpretations and questions.
Rhetorical Constructions of Precedent
Linda L. Berger
Table of Contents
I. Introduction
II. The Rhetorical Construction of Precedent
A. This Chapter’s Definitions of Precedent
B. This Chapter’s Use of Close and Distant Reading
C. The Effects of Differences in Philosophy and Ideology on Precedential
Construction
D. Visual Aspects of the Construction of Precedent

Family Foundation Professor of Law, UNLV Boyd School of Law. Special thanks to Eric Nystrom
for his patience, time, and expertise; and many thanks to Laura Vleig for research assistance. Much of this
chapter was inspired by the recent work of Bernadette Meyler, Carl & Sheila Spaeth Professor of Law,
Stanford Law School; Eric C. Nystrom, Assistant Professor of History in the Interdisciplinary Humanities
and Communication Faculty, College of Integrative Sciences and Arts, Arizona State University; and
David S. Tanenhaus, Professor of History and James E. Rogers Professor of History and Law, William S.
Boyd School of Law, University of Nevada, Las Vegas. Credit for all data compilation and resulting images
goes to Professor Eric Nystrom. I am responsible for all misinterpretations and errors in using the data
and images.
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III. The Rhetorical Construction of Precedent in Smith
A. Evolution of Free Exercise Jurisprudence
B. The Background Cases
1. Reynolds
2. Gobitis
3. Barnette
4. Lee
C. The Decision in Smith
1. Majority
2. Disagreement
IV. Application of Close and Distant Reading to Smith
A. Framework for Analysis
B. Preliminary Analysis of Precedential Rules
1. Headnote 2 – general rule providing free exercise framework
2. Headnote 5 – statement of underlying rationales for categorical rule
3. Headnote 6 – new categorical rule
4. Headnote 7 – narrow exception to new rule
5. Headnote 10 – rejecting old rule for new category
V. Questions for Further Research and Analysis
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I.
3
Introduction
This chapter examines the making and unmaking of precedent as a rhetorical process.
In other words, the chapter explores the rhetorical construction of judicial opinions as
precedent, both as created and as reconstructed over time. It asks two questions: first,
how does a Supreme Court justice constitute an opinion “as” precedent in its inception,
and second, do the rhetorical methods and techniques used in the construction affect
the opinion’s reconstitution when it is subsequently relied upon as precedent.
The specific precedential question of the chapter is the interpretation of the free exercise
clause of the Constitution: “Congress shall make no law . . . prohibiting the free exercise
(of religion).”1 Relying first on the rhetorical technique of close reading, the chapter
begins with an explanation of how Justice Antonin Scalia went from that expression to
this interpretation of the rule:
The right of free exercise does not relieve an individual of the obligation to
comply with a “valid and neutral law of general applicability on the ground that
the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).”2
Next, relying on a form of computational analysis and criticism that I call semi-distant
reading, the chapter explores the subsequent treatment of the precedential rules first
First Amendment.
Employment Div. v. Smith, 494 U.S. 872 (1990) (quoting United States v. Lee, 455 U.S. 252,
257-258 (1982) (Stevens, J., concurring)).
1
2
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established in Employment Division v. Smith along the way to this interpretation of the
free exercise clause 25 years later:
The United States Department of Health and Human Services (HHS) may not
demand that three closely held corporations provide health-insurance coverage
for methods of contraception that violate the sincerely held religious beliefs of the
companies’ owners. 3
As Justice Ruth Bader Ginsburg pointed out in the later case, the holdings of Smith and
Hobby Lobby are in conflict:
The First Amendment is not offended, Smith held, when “prohibiting the exercise
of religion . . . is not the object of [governmental regulation] but merely the
incidental effect of a generally applicable and otherwise valid provision.” . . . . The
[Affordable Care Act’s] contraceptive coverage requirement applies generally, it is
“otherwise valid,” it trains on women’s well being, not on the exercise of religion,
and any effect it has on such exercise is incidental.4
Rather than using Justice Scalia’s opinion in Smith as the basis for delving further into
the much-examined evolution of religious freedom law—and the differences between
interpreting the constitutional bar on laws prohibiting free exercise and the statutory
rights conveyed by the Religious Freedom Restoration Act (RFRA)—I will use his
opinion as the jumping off point for an exploration of the rhetorical construction of
precedent.
3
4
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2787 (2014).
Hobby Lobby, 134 S. Ct. at __ (Ginsburg, J., dissenting).
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First, why Smith? There’s a good argument that Smith is a poor choice through which to
study the construction of precedent because of the convoluted history, already implied
above, of constitutional and statutory standards for protection of religious freedom and
free exercise. Still, Smith’s very complexity and history, and the emotional and valueladen intensity of the issues that arisen before, after, and through Smith, suggest that its
analysis might illuminate the making and unmaking of precedent more completely than
an opinion with a simple and straightforward trajectory. And the interpretation of this
particular precedent is sharply and immediately relevant to current disputes centering
on the tipping point between the government’s accommodation of free exercise and the
government’s establishment of religion.5
Given the guiding theme of the symposium—that Justice Scalia enacts his vision of the
“rule of law” through his rhetorical framing—Smith seemed an appropriate choice for
other reasons. Unlike many of Justice Scalia’s dissents, and some of his majority
opinions, the Smith majority had been harshly criticized not for its “rhetoric”—its
language choices and tone—but for its substance. And its substance at first glance
appeared antithetical to Justice Scalia’s ideological preferences. Over time the harshest
critics of the Smith opinion have shifted from one end to the other of the ideological
spectrum. While the Smith opinion had some of the hallmarks of a Scalia majority
As Michael McConnell wrote,
If there is a constitutional requirement for accommodation of religious conduct, it will
most likely be found in the Free Exercise Clause. Some say, though, that it is a violation of
the Establishment Clause for the government to give any special benefit or recognition of
religion. In that case, we have a First Amendment in conflict with itself—the
Establishment Clause forbidding what the Free Exercise Clause requires.
Michael McConnell, Religion and the Constitution (2002).
5
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opinion—a clearly stated and memorable categorical rule, a disdain for balancing—
others were missing. There was a barely-there textual argument, no reference to history
or original meaning, and the argument was built entirely around lawyer-like
presentation and application of case precedent.
Having chosen the Smith opinion, why experiment with a blended approach of close and
distant reading? The dual perspectives appeared to offer the potential to more fully
investigate the process of precedent. In close reading or critical rhetorical analysis, the
reader’s goals are to explain how the author constructed a text within the context of a
particular time and situation, to assess how effective the construction was, and to raise
questions about the process and the result, focusing on what was gained and lost in the
construction. In distant reading, the reader compiles and analyzes data covering
multiple texts over time with the purpose of using the distance of time and place to more
broadly or more precisely identify trends, raise questions, and test hypotheses and
suggestions.6 Over time and after studying subsequent developments, the rhetorical
observer can better understand and support an assessment of the construction of the
opinion as precedent in the first place.
II.
The Rhetorical Construction of Precedent
Not only does the past inform the present case, but the decision in the present
case changes the past.7
6 The concept of distant reading has spread widely: “It was only a matter of time before big data
came for literature.” Open Book, John Williams, NYT Book Review, March 12, 2017.
7 LINDA ROSS MEYER, THE JUSTICE OF MERCY 30 (2010).
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Together, the combination of close and distant reading would explore these questions:
1. From a rhetorical perspective, how do judicial authors construct precedent that
will be recognized as precedent?
2. Does the construction process differ by judicial author; for example, what
kinds of differences might be attributable to the author’s judicial philosophy or
political ideology?
3. How, if at all, does the rhetorical construction process affect the vitality of the
precedent over time (its influence and the constraint it imposes on future
judging)?
A.
This Chapter’s Definitions of Precedent
In this chapter, I use a broad practice-based definition of precedent: the statements
made by a court that another court would feel an obligation to follow. As the basis for
analysis, I have identified five statements made by Justice Scalia in his opinion that a
practicing lawyer would feel comfortable repeating to a court in the brief filed in a
subsequent case with an assertion that they represented what the opinion in Smith
“meant” or “stood for” or “said” or “held.” These range from a general rule framework
for free exercise analysis that Justice Scalia pulled together from a number of prior
cases, to a statement of the rationale and authority supporting his new categorical rule,
the new categorical rule itself, a narrow statement of the only exception to the rule, and
a statement disavowing as inapplicable the former test applied to cases falling within the
category governed by his new rule.
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Almost all (perhaps all) lawyers and judges would agree that judges should feel some
obligation to follow precedent or to explain why they are not doing so—at the very least,
judges should explain that despite all appearances, they actually are following precedent
when you look closely. It seems likely that most would also agree with the general idea
that referring to and remembering the past can provide lessons and guidance about the
future. The whole concept of developing expert knowledge is tied to the opportunity to
gain experience in closely precedential circumstances—and to receive accurate feedback
on your decisions in those circumstances so that you can generate the most appropriate
options to follow.8
In the law, the concept of precedent takes on authoritative tones and predictive quality:
in some circumstances, it becomes “binding” or “mandatory.” This conceptualization of
precedent as constraining judging coincides with the formalistic view that precedent can
be uncovered or found; after that, it can simply be consulted to control the decisionmaking process. The core concept of contemporary rhetoric—that the meaning of a text
is constructed over time through a series of human interactions and that its meaning
remains contingent and contextual—seems at odds with that view of precedent.
But there is play in the joints. As Frederick Schauer noted, “the word “precedent” is
capacious [enough that it] encourages the failure to distinguish genuinely constraining
precedents from those previous decisions of various courts that either did not deal with
8
Judicial Hunch.
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precisely the same question or did not emanate from a court whose decisions are
binding on the court deciding the current case.”9
Following Schauer’s terms, the analysis in this chapter will at times differentiate
between the concept of vertical precedent (following the courts above) and the concept
of stare decisis (let the decision stand or horizontal precedent).10 Given that the basic
idea of precedent is that there is a “(not necessarily conclusive) obligation of a decision
maker to make the same decision that has been made on a previous occasion about the
same or similar matters,” vertical precedent is somewhat like obeying your parents. The
concept becomes truly important, as Schauer pointed out, only when the lower court
disagrees. Stare decisis, on the other hand, is the court’s responsibility to follow a
decision made by the same court. This is “in essence, about treating a prior decision as if
it came from above, even if it did not, and is accordingly about following an earlier
decision solely because it came earlier. Horizontal precedent is about treating temporal
priority as sufficient grounds for authoritativeness in its own right.”11 Justice Scalia
often rejected stare decisis as inconsistent with his obligation to properly interpret and
apply the Constitution: “[t]he whole function of [stare decisis] is to make us say that
what is false under proper analysis must nevertheless be held to be true.” 12
Beyond jurisprudential factors and interpretive flexibility, the scope of mandatory
precedent is limited because the cases that are litigated and appealed usually involve
Schauer 2009: xx.
Schauer 2009: 36–37.
11 Schauer 2009: xx.
12 Scalia 1997: 139. The other side of the argument was stated by Justice Louis Brandeis in Burnet
v. Coronado Oil & Gas. Co., 285 U.S. 393, 406 (1932)): “in most matters it is more important that [the
question] be settled than that it be settled right.”
9
10
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situations that fall outside the clear parameters of past precedent (because lawyers
ordinarily will not bring lawsuits that are unquestionably controlled by prior cases).
Thus, Schauer noted, “the realm of legal disputes in which precedent genuinely
constrains will be a realm that remains largely outside of the domain of reported
appellate opinions.”13
Still, even though Supreme Court justices may not themselves treat prior decisions by
the Supreme Court as binding precedent simply because they were decided by the
Supreme Court, the rest of us do: “[w]e treat judicial rulings, particularly those of the
Supreme Court, as legitimate sources of constitutional authority.”14 But what parts of
the opinion constitute “legitimate sources” of authority? What aspects actually bind
future courts? In law school classrooms, professors often explain the difference between
holding and dicta as the difference between what is essential to the decision and what is
not. They may also declare that what is binding on future courts is what the court did,
usually referred to as the holding, rather than what the court said. The more pervasive
view among both lawyers and judges is that “what matters is not merely what the court
said, but how it said it, such that the court's chosen formulation of a legal rule in a prior
case should be regarded as consequential in (if not dispositive of) a subsequent case
even if the language at issue was not directly implicated in the decision of the prior
Schauer 2009:xx.
Louis Fisher, The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotofsky. As
several authors have noted, the concept of precedent seems to require written opinions. If you need to
decide the current case in a way that is consistent with a prior case, you need at the very least to know in
some detailed sense what the prior opinion said and why (Oldfather 227).] [See Frederick Schauer, Giving
Reasons, 47 Stan. L. Rev. 633, 653 (1995) (discussing the relationship between the “it won't write” concept
and the ideal of rationality).]
13
14
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case.”15 Either way, the opinion itself “serves as the repository of the information to
which litigants and judges refer in subsequent cases in order to determine what the law
is (or might be).”16
B.
This Chapter’s Use of Close and Distant Reading
Both close and distant readings in legal contexts depend initially on literary theory and
methods to analyze the meaning and influence of a judicial opinion. [Insert one
paragraph on JB White and close reading]
The field of digital humanities can be traced to the 1960s, but the Stanford Literary Lab
and the work of Franco Moretti popularized the concept of computational criticism
applied to the study of literature, and in particular, the method of “distant reading.”17 By
examining literary problems through scientific means—including computational
modeling and quantitative analysis—the analysts seek to understand literature not by
studying a particular text but by combining and analyzing large amounts of data.
Although Moretti and others have been criticized for using science “as a legitimizing tool
rather than a truly investigative one,” Moretti embraces the lab’s encounter of “the
empirical and the conceptual.”
In contrast to close reading, which relies on close study of the language used in small
excerpts of text, distant reading relies primarily on the study of images: “time plots,
(Oldfather 230).
(Oldfather).
17 https://litlab.stanford.edu/people/
15
16
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histograms, trees, networks, diagrams, scatterplots. . . . Images come first . . . because—
by visualizing empirical findings—they constitute the specific object of study of
computational criticism; they are our ‘text.’”
In the legal context, for example, the distant reading analyst might look for evidence of
the legal “vitality”18 and effectiveness of precedent cases—and of the more specific
precedential “rules” from those cases—by tracing the subsequent treatment of the
original opinion through the courts. For the purpose of rhetorical analysis, the legal
vitality and effectiveness of a specific precedent would depend not only on its
substantive role (as a statement of the governing rules) in the outcome of subsequent
decisions, but also on “the rhetorical effect of the deployment and arrangement of
precedents within judicial opinions.”19
In her exploration of how precedent functions as a rhetorical trope, Bernadette Meyler
pointed out that the proposition that two cases are alike “has the inevitable effect of
declaring that the meaning of the immediate case is one thing and not another.”20 In this
way, precedents “literally turn the reader to another set of propositions and ask that
reader to see the current issues in light of these other propositions.”21 When Meyler
looked at Justice Breyer’s majority and Scalia’s concurrence in NLRB v. Canning, a
18 The concept of “vitality” is developed in Michael J. Nelson & Rachael K. Hinkle, Crafting the
Law: How Opinion Content Influences Legal Development (tracking vertical influence up and down the
judicial hierarchy and horizontal influence).
19 Bernadette A. Meyler, The Rhetoric of Precedent, in Rhetorical Processes and Legal Judgments:
How Language and Arguments Shape Struggles for Rights and Power, Austin Sarat, ed., New York, NY:
Cambridge University Press, 2016.
20 Meyler, supra note __, at __.
21 As another example, Meyler identified significant differences in the majority and dissenting
opinions’ use of precedent in Adkins v. Children’s Hospital of D.C., a 1923 case challenging minimum
wage laws for women and children.
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lawsuit addressing the power conferred on the President by the Recess Appointments
clause, she found almost total divergence. Justice Breyer cited the classic cases
upholding federal power, Marbury and McCulloch, as well as several cases from the
1920s that used a common-law mode of interpreting the evolving powers of the
President. Justice Scalia, on the other hand, used more recent cases, dating from 1986 to
present, and these cases followed a more formalist understanding of the requirements of
separation of powers. The conclusion of Meyler’s “distant reading” was that this almost
complete divergence between each opinion’s most influential precedents undermined
the possibility of dialogue about how the law should develop.
C.
The Effects of Differences in Philosophy and Ideology
Political scientists who study judicial decision making (and find nothing but politics at
the core) might suggest that Justice Scalia decided as he did in Smith because the
sacramental use of peyote was unfamiliar religious ground for a lifelong practicing
Catholic. On the other hand, the position of the founders of the closely held corporation
in Hobby Lobby resonated emotionally with Justice Alito; his experience and
background indicate he might share their personal religious objections to providing
insurance for reproductive health care to women employees. As Erwin Chemerinsky
wrote, “the best predictor of whether the U.S. Supreme Court finds a violation of the
Fourth Amendment is whether the justices could imagine it happening to them.” 22
22
(Chemerinsky 2012).
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In addition to the much-studied effects of ideology on judging, some scholars believe
that interpretive philosophies may result in different processes of creating arguments
(and thus different approaches to the construction of precedent). For example, Jeanne
Schroeder once wrote that if there is a primary area of difference in the rhetoric of
different categories of speakers and writers, and specifically of feminist authors, the
difference might emanate from the rhetorical process of invention, when and where
creative thought is generated. Upon encountering a particular situation, for example,
neoliberal, feminist, and critical rhetoricians “may imagine different hypotheses and
find different theories worthy of consideration . . . ”23
Because Justice Scalia was a proponent of textual originalism, the rhetorical analyst
would expect his construction of precedent to focus on the text of the legal document in
question and the history and original meaning of that text. Textualism, the idea that
statutes and constitutions should be interpreted according to the plain meaning of the
language used, and not according to their underlying purposes or their drafters’
intentions, is attractive in part because of its purported consistency with the rule of
law.24 Proponents of this view see the text itself as a transparent basis for interpretation,
while choosing among other sources raises the possibility of biased selection and
misunderstanding.25
Jeanne L. Schroeder, “Abduction from the Seraglio: Feminist Methodologies and the Logic of
Imagination,” Texas Law Review 70 (1991): 109, 210.
23
(Schauer (1988), p. 520).
Critics argue that other approaches that more fully analyze the language of the rules are more
faithful to the meaning of the language. Marcin Matczak University of Warsaw, WHY JUDICIAL
FORMALISM IS INCOMPATIBLE WITH THE RULE OF LAW.
24
25
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D.
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Visual Aspects of the Construction of Precedent
The citations used to “shore up” precedent provide a visual image that affects its
rhetorical construction. To take an obvious example, “the habit of accumulating cases,
en masse, as authority, is part of the commitment to the logic of precedent.”26 The more
authority, the better the argument must be. The legal author’s use of citations “reflects a
baseline of acceptable citation levels that would already be seen as intolerable in other
disciplines.”
In addition to the relatively straightforward rhetorical effect of “showing” more support,
numerous citations can back up an initial citation far more than the first reference
because they bring out a web of relations that can only be perceived by the
display of multiplicity . . . . We may thus speak of an epistemology of the string
cite, understanding this citation device as a vehicle for producing an order of
knowledge about the law that involves the meanings embedded in the relations
between cases—a kind of knowledge that the term” authority” does not convey,
insofar as it suggests that the case itself is the unit of meaning, and that multiple
cases merely lend support additively.27
Stern on the String Cite – Margins of Authority, Coke’s Institutes, and the Epistemology of the
String Cite Stern looked in this article at various efforts to manage precedents visually – Sir Edward Coke
in the Institutes (1628-44) placed the citations in the margins – managing textual authority in a way that
lent new significance to the citations. Coke was among the first to suggest citing a range of references –
our cases are the best proof of what the law is (Stern, citing Coke).
26
27
Stern.
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An often-overlooked function of citation is to encourage, require, or allow the reader to
“work back and forth between the text and the references,” both directly and indirectly.
This function supports the text’s effectiveness rhetorically because “the professional, by
implication, is one who presents assertions as contextual, aligned with consensus,
embedded in a densely structured web of law.” Many examples imply an underlying
structure of meaning: the “immediate effect is to indicate a larger structure that houses
the particular point” and that the law works in an organized and coherent way.28
III. The Rhetorical Construction of Precedent in Smith
In the Smith majority opinion, Justice Scalia constructed an elaborate Restatement of
free exercise rules and exceptions.29 Dissenters and many First Amendment scholars
agreed that his free exercise structure depended on weak scaffolding.30
The majority held that the free exercise clause did not prohibit the application of Oregon
drug laws to the religiously motivated, ceremonial ingestion of peyote. As the source of
Stern.
Kathleen Sullivan in Farber writes that “for Justice Scalia, the rule's the thing; originalism and
traditionalism are means, not ends." She goes on to observe what she calls "the codifier at work":
[F]irst, state the general rule; second, rationalize the existing messy
pattern of cases by grandfathering in a few exceptions and doing the
best you can to cabin their reach; and third, anticipate future cases in
which the rule might be thought problematic and dispose of them in
advance by writing sub-paragraphs and sub-sub-paragraphs qualifying
the rule with clauses beginning with 'unless' or 'except.'
Overall, Justice Scalia’s opinions reveal a passion for rules that is tied to his desire for
consistency, the "very foundation of the rule of law."
30 The majority was joined by Justices Rehnquist, White, Stevens, and Kennedy. Justice O’Connor
wrote a concurring opinion, in which she disagreed with the reasoning but concurred in the result.
Justices Blackmun, Brennan, and Marshall joined in Blackmun’s dissent.
Among the academic critics, Michael McConnell wrote that “[having dismissed the text as
ambiguous and ignored the his-tory, the Court in Smith purported to base its decision on precedent. But
its use of precedent is troubling, bordering on the shocking.” [cite] On the positive side, Tushnet.
28
29
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one of the primary rationales, Justice Scalia cited Minersville School District v. Gobitis,
310 U.S. 586 (1940). In particular, he quoted Justice Frankfurter writing that
“[c]onscientious scruples have not, in the course of the long struggle for religious
toleration, relieved the individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs.” Although Justice Scalia used the statement
as a springboard rationale for his decision, he never mentioned that Gobitis itself had
been overruled—only three years after the decision was issued—in Justice Jackson’s
opinion for the Court in West Virginia State Board of Education v. Barnette, 319 U.S.
624 (1943).31
A.
Evolution of Free Exercise Jurisprudence
Today, Smith is mandatory precedent for all free exercise claims brought under the U.S.
Constitution. But Smith provides far less “protection” for religious objectors than the
statutory alternatives. So most “free exercise” lawsuits (that is, lawsuits that do not rely
only or primarily on the First Amendment’s free exercise clause but make essentially the
same claim) filed against the federal government are based upon and decided under
RFRA. And it’s likely that a majority of the free exercise lawsuits challenging actions
taken by state and local governments are based upon and decided under RLUIPA or a
state version of RFRA. So even though Smith is still good law, and even though a
This aspect of Justice Scalia’s construction of precedent might appear ironic in the face of his
disdain for other justices’ reliance on the dicta of the Court’s prior opinions. See St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502 (1993) (emphasis added). Michael McConnell, Free Exercise Revisionism and the
Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990) (“Relying on Gobitis without mentioning Barnette is
like relying on Plessy v. Ferguson without mentioning Brown v. Board of Education.”). See
Jones v. Opelika, 316 U.S. 584, 624 (1942) (opinion of Black, Douglas, and Murphy, JJ.).
31
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plaintiff might allege a constitutional claim as well as a statutory claim, Smith is rarely
cited as the main precedent for a decision on a free exercise objection. 32
An abbreviated timeline helps put Justice Scalia’s construction of precedent in Smith
into context. The timeline shows that the Court from case to case swings back and forth
from something close to allowing all state laws that are not specifically targeted at
particular religious practices to a “compelling state interest”-least restrictive means test
for some burdens on religious exercise.
In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Supreme
Court, in an opinion by Justice Frankfurter with only one dissenting
justice, held that 7th Day Adventist school children had no free exercise
right to refuse to say the pledge of allegiance.
In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), in a
6-3 opinion by Justice Jackson, the Supreme Court held that 7th Day
Adventist school children have a free speech right to refuse to say the
pledge of allegiance.
In 1990, in Justice Scalia’s 5-4 opinion in Smith, the majority held that
members of the Native American church have no free exercise right to use
32 Marci Hamilton, the lead attorney for the challengers in Boerne, recently summed up the
developments: “[RFRA has] increasingly displaced the First Amendment in free exercise cases. No free
exercise case was decided by a legislatively mandated standard before RFRA was passed. Since RFRA’s
inception, the free exercise cases have been almost exclusively decided under a statutory standard.” Cite.
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drugs for sacramental purposes because the free exercise clause “does not
provide an exemption from a neutral law of general applicability.”
In an explicit effort to negate the categorical rule announced in Smith,
Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993.
RFRA also reinvigorated the compelling state interest test.
Four years later, the application of RFRA to state government actions was
found unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997).
The court held that RFRA was unconstitutional as to the states because
Congress had exceeded its power in enacting it.33
In 2000, Congress enacted a new RFRA to apply solely to federal laws and
the Religious Land Use and Institutionalized Persons Act (RLUIPA), which
imposed the same standard against state laws involving land use and
prisons. During this period, state-based RFRAs also were enacted in some
individual states.
In 2014, in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014),
the Court held that because of RFRA, corporations whose religious owners
object can raise a statutory exemption from neutral laws of general
applicability.
33 In his concurrence, Justice Stevens said that the whole of RFRA is a "law respecting an
establishment of religion" that violates the First Amendment to the Constitution. Cite.
19
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B.
20
The Background Cases in Justice Scalia’s Construction
1. Reynolds v. United States
The oldest case in Justice Scalia’s structure was Reynolds v. United States, 98
U.S. 145 (1878), where the Court upheld a federal law banning polygamy. In doing so,
the Court distinguished between religious beliefs and practices based on religious
beliefs, stating that Congress was “deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social duties or subversive to
good order.” Recognizing the defense by Mormons that their religion required
polygamy, the Court said, would “permit every citizen to become a law unto himself.”
2. Minersville School District v. Gobitis
The explanation often given for the decision in Gobitis, 310 U.S. 586 (1940), is that its
outcome was unduly influenced by its being written by Justice Frankfurter and decided
in 1940. In Gobitis, the majority held that a student’s religious scruples did not furnish
the basis for a constitutional right to be exempt from reciting the pledge of allegiance. At
the time, nine states had laws requiring the flag salute and 18 more had statutory
provisions for teaching students about the flag. The federal government adopted a
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21
similar statute in 1942, but that statute simply established “customs of respect” and had
no enforcement provisions.34
Although in 1940, the pledge did not include the phrase “under God,” Jehovah’s
Witnesses and some others refused to say the pledge of allegiance because it
contradicted the religious requirement against serving any other gods than the one
recognized by the religion. In 1935, Lillian Gobitas35 and her brother William stopped
saluting, prompting their expulsion. After mediation failed, the students and parents,
supported by lawyers and the ACLU, sued to enjoin the school board from expelling
students for refusing to say the pledge. The U.S. District Court enjoined the school
district, and the Third Circuit affirmed. The school district went to the U.S. Supreme
Court and the argument focused on whether the flag ceremony was religious.
In his opinion, Justice Frankfurter relied on “two basic principles that resonated far
beyond the immediate controversy.” First, general laws passed for secular purposes and
enforced evenhandedly are not unconstitutional based simply on their failure to provide
religious exemptions. The second principle was judicial deference to the legislature.
Justice Frankfurter wrote that disputes over free speech and free exercise do not provide
exceptions to deference except “where the transgression is too plain for argument.”36
Law Stories.
The spelling is incorrect in the case file.
36 [Some commentators said this was partially a refutation of the argument being made for robust
judicial review in cases involving civil liberties – an argument represented by Justice Stone’s footnote 4 in
Carolene Products.]
34
35
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22
Commentators explained that for Justice Frankfurter, who emigrated from Austria to
the U.S. when he was twelve, the case also centered on national identity and patriotic
assimilation:
The ultimate foundation of a free society is the binding tie of cohesive sentiment.
Such a sentiment is fostered by all those agencies of the mind and spirit which
may serve to gather up the traditions of a people, transmit them from generation
to generation, and thereby create that continuity of a treasured common life
which constitutes a civilization. “We live by symbols.” The flag is the symbol of
our national unity, transcending all internal differences, however large, within
the Framework of the Constitution.
3. West Virginia Bd. of Education v. Barnette
Shortly after Gobitis, several members of the Court who had joined the majority there
declared that if given the chance, they would vote to overrule Gobitis.37 Changing public
opinion was affected by increasing numbers of attacks on Jehovah’s Witnesses.
According to the ACLU, in 1940, 1500 Jehovah’s’ Witnesses were assaulted or attacked
in 335 incidents in 44 states. More than 200 children were expelled from school for
their refusal to pledge allegiance or salute the flag, expulsions occurring in all 48
states.38
37
38
[Chaplinsky footnote]
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23
In Barnette, Justice Jackson shifted the grounds for the holding from the religious
exercise clause to the free speech clause:
Nor does the issue as we see it turn on one's possession of particular religious
views or the sincerity with which they are held. While religion supplies appellees'
motive for enduring the discomforts of making the issue in this case, many
citizens who do not share these religious views hold such a compulsory rite to
infringe constitutional liberty of the individual. It is not necessary to inquire
whether non-conformist beliefs will exempt from the duty to salute unless we
first find power to make the salute a legal duty.
The Gobitis decision, however, assumed, as did the argument in that case and in
this, that power exists in the State to impose the flag salute discipline upon school
children in general. The Court only examined and rejected a claim based on
religious beliefs of immunity from an unquestioned general rule. The question
which underlies the flag salute controversy is whether such a ceremony so
touching matters of opinion and political attitude may be imposed upon the
individual by official authority under powers committed to any political
organization under our Constitution. We examine rather than assume existence
of this power and, against this broader definition of issues in this case, reexamine
specific grounds assigned for the Gobitis decision.
Justice Jackson’s answer to the new question he posed was that compelling speech was
in excess of state power: “No official may require any student to pledge allegiance to the
flag.”
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24
4. United States v. Lee
Finally, Justice Scalia’s new categorical rule came from a concurrence in United States
v. Lee. There, an Amish farmer argued that his religious beliefs precluded him from
paying social security taxes or withholding them from the paychecks of his employees.
The farmer sued in federal court for a refund of the taxes he paid. The Supreme Court
emphasized that the burdens the government places on religion are not automatically
unconstitutional. In this case, the Court found that maintenance of the social security
system was a compelling government interest and that allowing individual exemptions
to social security taxes based on religion was impractical. As a result, the court held that
the requirement that employers withhold and pay social security taxes from their
employees did not violate the Free Exercise Clause. Justice Stevens’s concurrence took
the view that “[t]he Court's analysis supports a holding that there is virtually no room
for a ‘constitutionally required exemption’ on religious grounds from a valid tax law that
is entirely neutral in its general application,” the rationale with which he agreed.
C.
The Decision in Smith
1.
Majority
Two workers who had been fired by a private drug rehabilitation organization for their
illegal drug use brought before the court the question of, in Justice Scalia’s phrasing,
whether the Free Exercise Clause of the First Amendment permits the State of
Oregon to include religiously inspired peyote use within the reach of its general
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25
criminal prohibition on use of that drug, and thus permits the State to deny
unemployment benefits to persons dismissed from their jobs because of such
religiously inspired use?
Alfred Smith and Galen Black were members of the Native American Church, and they
were fired because they ingested peyote “for sacramental purposes” during a church
ceremony. The Oregon Supreme Court held that the Oregon controlled substances
statutes made no exception for the sacramental use of the drug and so they could be
denied unemployment benefits on the basis of their firing. When they reached the
Supreme Court, attorneys for Smith and Black relied primarily on cases in which the
court had held that a state could not condition the availability of unemployment
insurance on an individual’s willingness to forgo conduct required by his religion.
The difference between those cases and Smith, Justice Scalia said, was that the conduct
required by the individual’s religion in Smith was prohibited by law and the conduct
required in the prior cases was not. Moreover, Scalia said the fired employees were
taking their argument outside the bounds of the area within which the Court had found
a clear violation of the free exercise clause: for example, when a state bans acts only
when they are engaged in for religious reasons. He contrasted Oregon’s situation with
one of those obviously unconstitutional examples: “It would doubtless be
unconstitutional, for example, to ban the casting of ‘statues that are to be used for
worship purposes,’ or to prohibit bowing down before a golden calf.”
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26
To reach his conclusion that their “religious motivation” did not “place[] them beyond
the reach of a criminal law that is not specifically directed at their religious practice, and
that is concededly constitutional as applied to those who use the drug for other reasons,”
Scalia built a complex network of arguments.
First, he made a brief textual argument about the phrasing of the free exercise clause,
that the “Congress shall make no law . . . prohibiting the free exercise” of religion.
Because this phrasing is analogous to the phrasing of the free speech and free press
protection, Justice Scalia suggested that if the prohibition on the free exercise of religion
is not the purpose of the law, “but merely the incidental effect of a generally applicable
and otherwise valid provision,” the First Amendment has not been offended. To show
that this reading is a permissible reading of the text, Scalia compared the outcome to the
outcome of analogous free speech claims: “It is a permissible reading of the text . . . to
say that if prohibiting the exercise of religion (or burdening the activity of printing) is
not the object of the tax but merely the incidental effect of a generally applicable and
otherwise valid provision, the First Amendment has not been offended.”
Next, Justice Scalia re-characterized and walled off the past precedent:
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. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition. As described succinctly by
Justice Frankfurter in Minersville: “Conscientious scruples have not, in the
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27
course of the long struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction of religious
beliefs. The mere possession of religious convictions which contradict the
relevant concerns of a political society does not relieve the citizen from the
discharge of political responsibilities.”
In order to extend the record back “more than a century,” Scalia relied on Reynolds, the
case in which the Supreme Court determined in 1878 that laws against polygamy could
be applied without violating religious freedom to those “whose religious beliefs
commanded the practice.” This foundation was buttressed by “[s]ubsequent decisions
[that] have consistently held that the right of free exercise does not relieve an individual
of the obligation to comply with a ‘valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religions prescribes (or
proscribes).’” Id. at _ (quoting United States v. Lee (Stevens., J., concurring)). To
further establish the foundational structure, he cited cases involving social security taxes
(Lee); the pledge of allegiance (Gobitis); child labor laws (Prince v. Massachusetts);
Sunday closing laws (Braunfeld), and selective service (Gillette).
Having established a broad foundation for his new categorical rule, Scalia carved out
narrow exceptions: he wrote that the only exceptions prohibiting the “application of a
neutral generally applicable law to religiously motivated action” had involved so-called
hybrid claims, which relied not only on the free exercise clause but on that clause in
conjunction with other constitutional or well-established protections. Emphasizing the
narrowness of the category, Justice Scalia wrote, “The only decisions in which we have
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28
held that the First Amendment bars application of a neutral, generally applicable law to
religiously motivated action have involved not the free exercise clause but free exercise
in conjunction with free speech of free press—or the right of parents to direct the
education of their children.” Among other effects, Justice Scalia’s characterization of
Barnette as an exception that addressed a question of compelled expression decided
exclusively upon free speech grounds, he was able to (silently) sidestep Barnette’s
overruling of Gobitis and to conclude that “[t]he present case does not present such a
hybrid situation but a free exercise claim unconnected with any communicative activity
or parental right.”
Next, Justice Scalia undermined, but never explicitly overruled, the rule the employees
had relied on, the balancing test set forth in Sherbert v. Verner: governmental actions
that substantially burden a religious practice must be justified by a compelling
governmental interest. Even though Justice Scalia acknowledged that this test has been
applied three times to invalidate state unemployment compensation rules that
conditioned benefits upon an applicant’s willingness to work under conditions
forbidden by his religion, he categorized those cases separately from situations such as
the one presented in Smith. These cases are distinguishable because they were not
exemptions from a generally applicable criminal law, but instead were exceptions
“developed in a context that lent itself to individualized governmental assessment of the
reasons for the relevant conduct.”
Outside that narrow area of unemployment compensation, Justice Scalia proclaimed
that “[a]lthough we have sometimes purported to apply the Sherbert test in contexts
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29
other than that, we have always found the test satisfied (Lee and Gillette).” And, in
recent years, “we have abstained from applying the Sherbert test” (outside the
unemployment compensation field) at all. As a result, the Sherbert decision may stand
only for the proposition that “where the state has in place a system of individual
exemptions, it may not refuse to extend that systems to religious hardship.” Or at the
least, “[w]hether or not the decisions [in Sherbert and related cases] are that limited,
they at least have nothing to do with the across the board criminal prohibition on a
particular form of conduct.” Although the Court has sometimes applied the Sherbert test
in such cases, “we have never applied the test to invalidate one.”
Having confined the conflicting precedent, but in a way that allowed him to claim that
he had paid it all due attention, Justice Scalia cleared the way for his new rule: “The
sounder approach and the approach in accord with the vast majority of our precedents is
to find the Sherbert test does not apply to across the board criminal prohibitions on
conduct. To do otherwise would allow the individual to become a law until himself.”
His final argument was prudential: a “parade of horribles” would result from allowing
religious objectors to argue that “every regulation of conduct is presumptively invalid.”
If the balancing test were applied, many laws would not meet the test. As a result, “[a]ny
society adopting such a system would be courting anarchy, but that danger increases in
direct proportion to the society’s diversity of religious beliefs, and its determination to
coerce or suppress none of them.” Particularly in a diverse society, “we cannot afford the
luxury of deeming presumptively invalid, as applied to the religious objector, every
regulation of conduct that does not protect an interest of the highest order.” Such a rule
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30
“would open the prospect of constitutionally required religious exemptions from civil
obligations ranging from military service, to payment of taxes, to health and safety
regulation, compulsory vaccination, drug and traffic laws, child labor laws, environment
protection laws, and laws providing for equality of opportunity.”
And last, Justice Scalia opened an escape mechanism, the door to state and federal
legislative action. Although not constitutionally required, statutory exemptions were of
course allowed: “To say that a religious practice exemption is permitted is not to say that
it is constitutionally required.” In this way, religious accommodations were left up to the
political process. Justice Scalia acknowledged that doing so might disadvantage
minority and unpopular religions but wrote that he preferred such an outcome to the
situation in which each religious objector’s “conscience is a law unto itself.”
2.
Disagreement
In their concurrence and dissent, Justices O’Connor and Blackmun agreed that the
majority opinion “effectuates a wholesale overturning of settled law concerning the
Religion Clauses of our Constitution.” Justice O’Connor characterized the decision as a
“dramatic departure” from the court’s First Amendment jurisprudence and
“incompatible with our Nation’s fundamental commitment to individual religious
liberty.”
To rebut Justice Scalia’s contentions that the categorical rule he announced had been
long established, Justice O’Connor responded that “[w]e have in fact interpreted free
Berger
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31
exercise to forbid application of a generally applicable prohibition to religiously
motivated conduct.” In Yoder, the Court had explicitly held that a “neutral regulation”
may violate the Constitution if it “unduly burdens the free exercise of religion.” And,
under established free exercise doctrine, the government must “justify any substantial
burden on religiously motivated conduct by a compelling state interest and by means
narrowly tailored to achieve that interest.”
And to respond to Justice Scalia’s analogies to free speech cases, Justice O’Connor
concluded that the balancing test was the same for both free speech and free exercise
challenges to enacted laws: even neutral regulations that affect free speech or free
exercise values are subjected to the “compelling state interest-narrowly tailed means”
requirement. In addition to countering Justice Scalia’s statements about past precedent,
Justice O’Connor critiqued his reasoning on the grounds that “it is surely unusual to
judge the vitality of a doctrine by looking to the win-loss record of the plaintiffs who
happen to come before use.” Finally, pointing to the disproportionate impact of majority
rule on unpopular or emerging religions, Justice O’Connor concluded that “the
compelling interest test reflects the First Amendment’s mandate of preserving religious
liberty to the fullest extent possible in a pluralistic society.”
In dissent, Justice Blackmun also countered Justice Scalia’s claim of what had been the
precedent before Smith: “the court has developed a consistent and exacting standard” –
“I thought it was settled and inviolate” – “the majority dismisses it as a constitutional
anomaly – only by mischaracterizing this Court’s precedent.”
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Rhetorical Constructions of Precedent
IV.
32
Application of Close and Distant Reading of Smith
A.
Framework for Analysis
If the opinion as written is evidence of the law and a legitimate source of authority, close
study of the language used uncovers broader aspects of the judicial decision making and
opinion construction process. In the same way, distant reading to discern the opinion’s
treatment over time sheds light on the relationship between construction and
effectiveness.
Several groups of researchers have compiled and analyzed data on subsequent
treatment of judicial opinions in order to identify trends, raise questions, and even to try
to measure the vitality of a particular precedent by gauging its influence on further
development of the law. As these researchers point out, such assessments are difficult
for many reasons. To give only a few examples, a particular opinion may resolve all the
questions in a discrete area of the law and so it may not be cited at all in the future; an
opinion may be overruled or affected by statute; the social and historical context may
change to such an extent that an opinion becomes irrelevant.39
The number, quality, and nature of subsequent citations to an opinion helps the analyst
hypothesize about possible trends and to formulate questions about the effect the
opinion has had on the course of the law: citations do provide some evidence of
influence on later judges. As Nelson and Hinkle emphasize, however, something more
39
Nelson & Hinkle.
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33
than the sheer number of citations is needed because an opinion may be cited for a
number of reasons, negative and positive.40
In this chapter, I apply data compilation and analysis techniques developed by
Professors Eric Nystrom and David Tanenhaus. Professors Nystrom and Tanenhaus
characterize their techniques as taking a “medium data” perspective to distant reading.41
They use two common legal research tools to try to identify patterns in subsequent
citations: Shepard’s citations coupled with LexisNexis headnote annotations. LexisNexis
has been providing the “cited cases” headnotes relied upon in “citing cases” in Shepard’s
electronic reports ever since LexisNexis incorporated Shepard’s into its online resources
in 1997. [explain with concrete example] LexisNexis headnotes are available for about
93 [check] percent of the cited cases in this analysis.
The use of headnotes allows for finer distinctions than are possible through the use of
Shepard’s treatment signals alone. Transforming the data into more easily analyzable
form means that the researchers can categorize, divide, and regroup along the lines of
whatever similarities and distinctions appear to make sense or to require further
In their studies, Nelson and Hinkle focused on positive treatment of a case on the theory that
such treatment explicitly expands the scope and application of a particular rule. They made assessments
of overall legal vitality by subtracting the number of negative treatments from the number of positive
treatments. They studied two factors they thought might influence the extent to which an opinion is used
later, efficiency (readability and footnotes) and persuasiveness (number of cites and unanimity). But they
found neither of those factors affects Supreme Court use of prior Supreme Court precedent.
41 Tanenhaus & Nystrom, Pursuing Gault, (citing Kellen Funk and Lincoln A. Mullen, “A Servile
Copy: Text Reuse and Medium Data in American Civil Procedure,” Rechtsgeschichte – Legal History:
Journal of the Max Planck Institute for European Legal History 24 (2016): 341-343, DOI:
http://dx.doi.org/10.12946/rg24/341-343. Eric C. Nystrom and David S. Tanenhaus, “The Future of
Digital Legal History: No Magic, No Silver Bullets,” American Journal of Legal History 56 (2016): 150-167.
40
Berger
Rhetorical Constructions of Precedent
34
analysis. The process encourages recursive back and forth between analysis and
speculation on the one hand and data compilation and depiction on the other.
Why Lexis and Shepard’s
Following are the initial questions addressed:
1. What’s the basis for each precedential “rule” established in Smith? What
authorities does Justice Scalia explicitly rely on? What other sources can I
identify? This stage relies on close reading and conventional legal research.
2. What happens to Smith’s rules in subsequent cases? Are they influential
and/or constraining? Does the subsequent treatment depend on the kind of rule?
Does it depend on the rule’s construction? What are the effects of Smith’s rules
horizontally, on subsequent Supreme Court cases? What are the effects vertically,
on subsequent cases by all courts “bound” by the rules established in Smith? This
stage relies mostly on data compilation and analysis.
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35
As of the date on which we last compiled the data (03.27.17)42, Smith had been cited
1880 [check] times. The citations fell into these Lexis categories:
Positive citations
286 – Smith was “followed” by the citing case
Negative citations (the citing case indicated caution should be used when
relying on Smith)
125 – “warning,” “superseded by statute”
43 – “questioned,” “validity questioned by”
67 – “caution”
56 “distinguished by”
12 “criticized by” or “criticized in”
Neutral citations (the citing case mentioned Smith but not in a particularly
favorable or unfavorable way)
239 – a collection of categories including “explained by,” “cited in concurring
opinion,” “cited in dissenting opinion”
1400 – Smith was “cited by” the citing case but not applied or followed
Because the latter “neutral” citation seems more positive than not, in the groupings that
follow, this category was combined within the overall category of positive citations. To
provide a baseline for each subsequent analysis, we compiled this graph of only those
citations that seemed to accept Smith in some way, that is, the LexisNexis treatment
42
A fixed date is necessary for comparison.
Berger
Rhetorical Constructions of Precedent
36
categories of Cited, Cited in Dissent, and Followed, as shown in the first illustration. The
second illustration compares positive, neutral, and negative citations.
Berger
Rhetorical Constructions of Precedent
37
Looking for gaps and convergences, we also ran comparisons of reported and
unreported opinions as well as comparisons of federal and state court opinions. The
number of so-called “unreported” opinions—opinions found on Lexis but not published
officially and under some citation constraints—has risen substantially in recent years,
explaining the similar rise in this comparison. What is as yet unexplained is the sharp
dropoff in reported opinions in the most recent years.
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Rhetorical Constructions of Precedent
38
The comparison of
federal and state
citations appears to
mirror the history of
Smith, including the
years during which
RFRA appeared to
have essentially
supplanted Smith,
with the later decrease
in state court
citations in Smith
perhaps attributable to the increase in individual state RFRAs after Boerne.
B.
Preliminary Analysis of Precedential Rules
To understand the influence of the different kinds of precedential rules, we followed the
treatment of the headnote numbers assigned to specific portions of the Smith opinion.
The table below shows the number of citations to each headnote (note that many citing
cases cite to more than one headnote) and highlights the headnotes that established the
specific rules we followed.
Headnotes43
Citations
Kind of “rule”
HN 2
1386
General rule framework
HN 7
711
Narrow exception
HN 6
455
New categorical rule
HN 9
321
43
The text of all headnotes is Appendix A.
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39
HN 3
133
HN 12
120
HN 10
91
Undermine old rule
HN 5
70
Rationale for new categorical rule
HN 4
46
HN 1
43
HN 11
20
HN 8
4
The first comparison of citations to the individual headnotes is in the next figure. We
dropped headnote 10 (the point of that “rule” was to undermine the old “compelling
state interest” test and courts including citations to it were also citing headnote 6, the
new categorical rule).
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40
As this chart indicates, citations to headnote 2, the general rule framework converged
almost exactly with total citations, an expected result given the nature of the structure
Justice Scalia established, one that provided a baseline for any subsequent court without
committing the subsequent court to any particular outcome. The 1995 drop in headnote
6, the new categorical rule, underlines the adoption of RFRA aimed at overturning
Smith. The consistently few cases citing headnote 5, the reference to Justice
Frankfurter’s rationale in Gobitis, may have several explanations. Almost every case
citing Justice Frankfurter’s rationale also adopts the categorical rule of headnote 6, and
almost every case citing Justice Frankfurter’s rationale fails to note the overruling of
Gobitis: these citations are mostly taken in their entirety from Justice Scalia’s majority
opinion. Other anomalies in the citation patterns await further analysis.
1. Headnote 2: general rule providing free exercise framework
Text supporting headnote:
The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into the Fourteenth Amendment,
provides that “Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof . . ..” The free exercise of religion means,
first and foremost, the right to believe and profess whatever religious doctrine
one desires. Thus, the First Amendment obviously excludes all “governmental
regulation of religious beliefs as such.” The government may not compel
affirmation of religious belief, punish the expression of religious doctrines it
Berger
Rhetorical Constructions of Precedent
41
believes to be false, impose special disabilities on the basis of religious views or
religious status, or lend its power to one or the other side in controversies over
religious authority or dogma.
The first precedential rule is what legal writing professors call a “synthesized rule”—it
brings together and restates in convenient and capsule form what a series of cases may
be said to stand for. From a rhetorical point of view, this is a credibility-boosting move,
especially if the resulting rule reflects and expands in a helpful way on what has gone
before. Moreover, the author who constructs a concise, complete, and memorable
framework rule in an area of continuing controversy has virtually guaranteed himself or
herself a role of authority in future cases. The number and quality of the citations
collected together in support of the general rule may serve to enhance its
persuasiveness. In this instance, Justice Scalia appears to have framed an acceptable,
noncontroversial, and helpful general rule delineating what the government is
prohibited from doing under the free exercise clause.
This is by far the most frequently cited of the headnotes selected for analysis, an
unsurprising result given the usefulness of such a general rule in a range of cases. One
next step will be to compare the subsequent citations of this headnote with those of the
most significant citation Justice Scalia provided for the principles of his general rule
framework:
Sherbert v. Verner’s quotation about governmental regulation of religious beliefs
(Smith HN2 = Sherbert HN3)
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42
2. Headnote 5: statement of underlying rationales for the new categorical rule
Text supporting headnote:
As described succinctly by Justice Frankfurter in Minersville v. Gobitis,
“Conscientious scruples have not, in the course of the long struggle for religious
toleration, relieved the individual from obedience to a general law not aimed at
the promotion or restriction of religious beliefs. The mere possession of religious
convictions which contradict the relevant concerns of a political society does not
relieve the citizen from the discharge of political responsibilities.” We first had
occasion to assert that principle in Reynolds v. United States, . . . where we said,
“Laws . . . are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices.”
As already noted, Justice Scalia’s citation to Gobitis without stating that Gobitis had
been overruled has been criticized by commentators and his fellow justices.44 For
example, Justice Souter called for a re-examination of the Smith rule, stating among
other reasons:
As for the cases on which Smith primarily relied as establishing the rule it
embraced, [Reynolds and Gobitis], their subsequent treatment by the Court
would seem to require rejection of the Smith rule.
44
McConnell
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43
This is the least cited of the five headnotes selected for analysis. As noted above, we will
also compare the subsequent citations of this headnote with those of the most
significant citations Justice Scalia provided:
Gobitis’s Frankfurter quotation (Smith HN5 = Gobitis HN1)
Reynolds quotation about laws and practices (Smith HN 5 = Reynolds text pages
166-67)
3. Headnote 6: new categorical rule
Text supporting headnote:
Subsequent decisions have consistently held that the right of free exercise does
not relieve an individual of the obligation to comply with a “valid and neutral law
of general applicability on the ground that the law proscribes (or prescribes
conduct) that his religion prescribes (or proscribes).”
With the background framework established, and having resurrected what he termed
the governing rationale, Justice Scalia created this new categorical rule. The primary
authority supporting the rule is a concurrence in which Justice Stevens rejects the
reasoning of the majority. Justice Scalia follows with another citation to Gobitis
(collecting cases), which, as already mentioned, was overruled in Barnette.
The critical quotation—a “valid and neutral law of general applicability”—comes from
Justice Stevens’s concurring opinion in United States v. Lee. There, Justice Stevens
writes:
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44
The clash between appellee's religious obligation and his civic obligation is
irreconcilable. He must violate either an Amish belief or a federal statute.
According to the Court, the religious duty must prevail unless the Government
shows that enforcement of the civic duty "is essential to accomplish an overriding
governmental interest." Ante, at 257-258. That formulation of the constitutional
standard suggests that the Government always bears a heavy burden of justifying
the application of neutral general laws to individual conscientious objectors. In
my opinion, it is the objector who must shoulder the burden of demonstrating
that there is a unique reason for allowing him a special exemption from a valid
law of general applicability.
***
I agree with the Court's conclusion that the difficulties associated with processing
other claims to tax exemption on religious grounds justify a rejection of this
claim. I believe, however, that this reasoning supports the adoption of a different
constitutional standard than the Court purports to apply.
The Court's analysis supports a holding that there is virtually no room for a
"constitutionally required exemption" on religious grounds from a valid tax law
that is entirely neutral in its general application. Because I agree with that
holding, I concur in the judgment.
***
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45
Today's holding is limited to a claim to a tax exemption. I believe, however, that a
standard that places an almost insurmountable burden on any individual who
objects to a valid and neutral law of general applicability on the ground that the
law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)
better explains most of this Court's holdings than does the standard articulated
by the Court today.
We will compare the subsequent citations of this headnote with the most significant
citations Justice Scalia provided:
United States v. Lee, Stevens, J., concurring (Smith HN5 = Lee concurrence
footnote 3)
4. Headnote 7: narrow exception to new categorical rule
Text supporting headnote:
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action
have involved not the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of speech and
of the press . . . or the right of parents . . . to direct the education of their children.
This narrowing of the prior cases to create an exception on the basis that the “only
decisions” to result in decisions different from the new categorical rule were so-called
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“hybrid cases” was controversial, as shown by the concurrence and the dissent. Justice
Scalia’s support is found primarily in footnote 1.
Cantwell – Justice Scalia claims in footnote 1 that Cantwell observed that “[t]he
fundamental law declares the interest of the United States that the free exercise
of religion be not prohibited and that freedom to communication information
and opinion be not abridged.” He describes Cantwell in a parenthetical as
(invalidating a licensing system for religious and charitable solicitations under
which the administrator had discretion to deny a license to any cause he deemed
nonreligious).
Murdock – Justice Scalia relies in footnote 1 on this quotation from Murdock:
“We have here something quite different . . . It is one thing to impose a tax on the
income or property of a preacher. It is quite another thing to exact a tax from him
for the privilege of delivering a sermon.” He describes Murdock in a parenthetical
as (invalidating a flat tax on solicitation as applied to the dissemination of
religious ideas).
Yoder – Justice Scalia relies in footnote 1 on this quotation from Yoder: “when
the interests of parenthood are combined with a free exercise claim of the nature
revealed by this record, more than merely a ‘reasonable relation to some purpose
of the State’ is required to sustain the validity of the State’s requirement.” He
describes Yoder in a parenthetical as (invalidating compulsory school attendance
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laws as applied to Amish parents who refused on religious grounds to send their
children to school).
Justice Scalia claims that “some” Supreme Court cases prohibiting compelled expression
were decided “exclusively upon free speech grounds”:
Wooley v. Maynard (invalidating compelled display of a license plate slogan),
and
West Virginia Bd. of Education v. Barnette (invalidating compulsory flag salute
statute challenged by religious objectors).
For this precedential rule, it will be harder to compare the subsequent citations of the
Smith rule with the supporting authorities (Smith HN 7 = Yoder Lawyers' Edition HN16;
Wooley v. Maynard Lexis HN 4; Barnette quotation).
5. Headnote 10 – Rejecting old rule for the new category
Text supporting headnote:
The Sherbert test is inapplicable to challenges to an across-the-board criminal
prohibition on a particular form of conduct. The government’s ability to enforce
generally applicable prohibitions of socially harmful conduct “cannot depend on
measuring the effects of a governmental action on a religious objector’s spiritual
development.” To make an individual’s obligation to obey such a law contingent
upon the law’s coincidence with his religious beliefs, except where the state’s
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interest is “compelling” – permitting him, by virtue of his beliefs, “to become a
law unto himself” – contradicts both constitutional tradition and common sense.
Finally, Justice Scalia shoves aside the old rule, a controverted ruling as shown by the
concurrence, the dissent, and later critiques.
Future comparisons for this precedential rule will include Lyng v. Northwest Indian
Cemetery Protective Association’s spiritual development quotation (Smith HN10 =
Lyng HN5) and Reynolds v. United States for the “law unto himself” quotation (Smith
HN 10 = Reynolds pages 166-67).
V.
Questions for Further Research and Analysis
A. Smith’s Construction
Several tentative conclusions emerged from the first reading of Justice Scalia’s majority
opinion. First, in constructing the rule of law in Smith, Justice Scalia establishes a
complex framework that encompasses most questions about the interpretation of the
free exercise clause, but criticism and questioning of the framework’s underlying
support has been unusually persistent and at time effective. Second, the rhetorical
construction suggests an interpretive philosophy that is not so much originalism as it is
formalism, emphasizing rule-following rather than individual freedoms. Third, Justice
Scalia’s opinion looks like judicial lawyering. Nothing about its construction would be
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surprising were it to be found in written advocacy filed with a court. Brief writers
similarly push against the boundaries of common persuasive techniques in an effort to
persuade a court that it need only straightforwardly apply the precedent that has been
shaped and pruned and characterized in the light most favorable to the argument.
The new categorical rule in Smith was—at best—only indirectly supported by the
precedents Justice Scalia cited. But this is not unusual when the Supreme Court
announces a new rule or when lawyers make arguments. Such arguments are viewed
skeptically when raised by lawyers, of course, and the extent to which Justice Scalia
denied that he was constructing anything new or that he had characterized past
precedent favorably seems unusual—and to raise questions about the effects of his
rhetorical construction on subsequent influence. 45
As Justice Souter pointed out in his dissent in Lukuma, the basis for the new categorical
rule in Smith was not past precedent: “whatever Smith's virtues, they do not include a
comfortable fit with settled law.” Instead, the Reynolds decision upholding a polygamy
conviction “has been read as consistent with the principle that religious conduct may be
regulated by general or targeting law only if the conduct "pose[s] some substantial
threat to public safety, peace or order." And as mentioned earlier, Gobitis was explicitly
overruled three years after the decision was handed down and one year “after three
Justices who originally joined the opinion renounced it for disregarding the
45
Wetlaufer.
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government's constitutional obligation ‘to accommodate itself to the religious views of
minorities.’ ”46
B.
Tracing the Legal Staying Power of Smith
1.
Overall citation frequency
In terms of overall citations, what does the subsequent history show? The hills
and valleys in citations of Smith over time mirror developments in free exercise law,
especially the enactment of RFRA, the holding in Boerne, and the enactment of
RLUIPA. More unusual is that the subsequent treatment of the case approaches an
unusual balance: negative citations sometimes overtake positive citations (using the
Lexis categorization) even when there is no obvious explanation for that result (as when
RFRA is enacted).
2.
Overall treatment of precedential rules
[to come]
46 Arguing that Smith should be reexamined, Justice Souter contended that stare decisis should
not bar reexamination because (1) “the Smith rule was not subject to ‘full-dress argument’ prior to its
announcement,” both parties arguing instead about the strict scrutiny standard; (2) there was no need to
reach the decision reached to resolve the question presented in the case, as shown by Justice O’Connor’s
concurrence; (3) and finally, because “Smith presents not the usual question of whether to follow a
constitutional rule, but the question of which constitutional rule to follow.” Moreover, Smith “did not
consider the original meaning of the Free Exercise Clause, . . . , and “when the opportunity to
reexamine Smith presents itself, we may consider recent scholarship raising serious questions about
the Smith rule's consonance with the original understanding and purpose of the Free Exercise Clause.”
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3.
51
Horizontal Precedent
Shepard’s provides 30 subsequent citations by the Supreme Court to Smith.
The most well-known is Hobby Lobby v. Burwell, where the Court decided that RFRA
bars the United States Department of Health and Human Services (HHS) from
requiring three closely held corporations to provide health-insurance coverage for
methods of contraception that “violate the sincerely held religious beliefs of the
companies’ owners.” The Court reasoned that RFRA prohibits the Federal Government
from taking any action that substantially burdens the exercise of religion unless that
action constitutes the least restrictive means of serving a compelling government
interest.
The majority repeatedly emphasized that its holding did not allow all for-profit
corporations and other commercial enterprises to “opt out of any law (saving only tax
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laws) they judge incompatible with their sincerely held religious beliefs.” The majority
referred to Justice Scalia’s argument in Smith that applying the Sherbert test to all freeexercise claims “would open the prospect of constitutionally required religious
exemptions from civic obligations of almost every conceivable kind.” The majority’s
response:
Congress, in enacting RFRA, took the position that “the compelling interest test
as set forth in prior Federal court rulings is a workable test for striking sensible
balances between religious liberty and competing prior governmental interests.” .
. . The wisdom of Congress’s judgment on this matter is not our concern. Our
responsibility is to enforce RFRA as written, and under the standard that RFRA
prescribes, the HHS contraceptive mandate is unlawful.
In her dissent, Justice Ginsburg relied on Smith as the controlling precedent for the free
exercise claim: “Any First Amendment Free Exercise Clause claim Hobby Lobby or
Conestoga might assert is foreclosed by this Court’s decision in . . . Smith. . . .”
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2787 (Ginsburg, J., dissenting)
(2014).
The only subsequent Supreme Court citation to Smith’s headnote 5, quoting Justice
Frankfurter, came in Justice Scalia’s concurrence in Barnes v. Glen Theatre, where he
said that “the challenged regulation must be upheld, not because it survives some lower
level of First Amendment scrutiny, but because, as a general law regulating conduct and
not specifically directed at expression, it is not subject to First Amendment scrutiny at
all.” Barnes v. Glen Theatre, 501 U.S. 560, 572 (1991)
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4. Vertical Treatment
[to come]
53
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Appendix A
Text of Smith LexisNexis Headnotes
1. Oregon law prohibits the knowing or intentional possession of a controlled substance
unless the substance has been prescribed by a medical practitioner. Or. Rev. Stat. ß
475.992(4) (1987). The law defines controlled substance as a drug classified in
Schedules I through V of the Federal Controlled Substances Act, 21 U.S.C.S. ßß 811-812,
as modified by the State Board of Pharmacy. Or. Rev. Stat. ß 475.005(6) (1987). Persons
who violate this provision by possessing a controlled substance listed on Schedule I are
guilty of a class B felony. Or. Rev. Stat. ß 475.992(4)(a). As compiled by the State Board
of Pharmacy under its statutory authority, Schedule I contains the drug peyote, a
hallucinogen derived from the plant Lophophora williamsii Lemaire. Or. Admin. R. 85580-021(3)(s) (1988). [Employment-Div_v_Smith,HN1]
2. The Free Exercise Clause of U.S. Const. amend. I, which has been made applicable to
the states by incorporation into the U.S. Const. amend. XIV, provides that Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. U.S. Const. amend. I. The free exercise of religion means, first and
foremost, the right to believe and profess whatever religious doctrine one desires. Thus,
the First Amendment obviously excludes all governmental regulation of religious beliefs
as such. The government may not compel affirmation of religious belief, punish the
expression of religious doctrines it believes to be false, impose special disabilities on the
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basis of religious views or religious status, or lend its power to one or the other side in
controversies over religious authority or dogma. [Employment-Div_v_Smith,HN2]
3. It is a permissible reading of U.S. Const. Amend. I to say that if prohibiting the
exercise of religion is not the object of a law, but merely the incidental effect of a
generally applicable and otherwise valid provision, the First Amendment has not been
offended. [Employment-Div_v_Smith,HN3]
4. An individual's religious beliefs do not excuse him from compliance with an otherwise
valid law prohibiting conduct that the state is free to regulate. [EmploymentDiv_v_Smith,HN4]
5. Conscientious scruples do not, in the course of the long struggle for religious
toleration, relieve the individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs. The mere possession of religious
convictions which contradict the relevant concerns of a political society does not relieve
the citizen from the discharge of political responsibilities. Laws are made for the
government of actions, and while they cannot interfere with mere religious belief and
opinions, they may with practices. [Employment-Div_v_Smith,HN5]
6. The right of free exercise does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the ground that the law
proscribes or prescribe conduct that his religion prescribes or proscribes. [EmploymentDiv_v_Smith,HN6]
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7. The First Amendment, U.S. Const. amend. I, bars application of a neutral, generally
applicable law to religiously motivated action only when they involve not the Free
Exercise Clause alone, but the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the press. [EmploymentDiv_v_Smith,HN7]
8. A stance of conscientious opposition does not relieve an objector from any colliding
duty fixed by a democratic government. [Employment-Div_v_Smith,HN8]
9. Under the Sherbert balancing test, governmental actions that substantially burden a
religious practice must be justified by a compelling governmental interest.
[Employment-Div_v_Smith,HN9]
10. The Sherbert test is inapplicable to challenges to an across-the-board criminal
prohibition on a particular form of conduct. The government's ability to enforce
generally applicable prohibitions of socially harmful conduct cannot depend on
measuring the effects of a governmental action on a religious objector's spiritual
development. To make an individual's obligation to obey such a law contingent upon the
law's coincidence with his religious beliefs, except where the state's interest is
"compelling" -- permitting him, by virtue of his beliefs, to become a law unto himself -contradicts both constitutional tradition and common sense. [EmploymentDiv_v_Smith,HN10]
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11. It is not within the judicial ken to question the centrality of particular beliefs or
practices to a faith, or the validity of particular litigants' interpretations of those creeds.
[Employment-Div_v_Smith,HN11]
12. The First Amendment's, U.S. Const. amend. I, protection of religious liberty does not
require deeming presumptively invalid, as applied to the religious objector, every
regulation of conduct that does not protect an interest of the highest order.
[Employment-Div_v_Smith,HN12]
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Appendix B
LexisNexis Citation Signals
58
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