Faculty Bibliography

More than thirty years after Congress passed the Religious Freedom Restoration Act, the extent of religious freedom enjoyed by military service members remains unsettled. Courts now largely agree that RFRA applies to the military. But scholars and judges disagree over the relationship between RFRA and the Commander-in-Chief power: Should courts follow RFRA’s text and impose strict scrutiny on the President’s decisions, or should they step aside in deference to executive control over the armed forces? This Article argues that history points the way to an answer—one that is, in other contexts, established and workable. Historically, Congress and the President handled religious accommodation internally—beginning with Congress’s creation of the chaplaincy and evolving through executive policies addressing particular religious needs. In repeated instances, Congress exercised its power to “make Rules” for the military by course-correcting the executive’s military religious freedom policies, and each time it did so, the executive acquiesced. Read against that historical pattern, the question of how to apply RFRA in the military is not the simple binary of executive versus judicial authority. It is instead a three-way separation-of-powers inquiry in which Congress has historically played the leading role. With this understanding, due deference to Congress means courts must scrutinize the military’s religious accommodation decisions under RFRA’s demanding test. Deciding such cases is still no easy task. Courts must determine what weight to give military professional judgment, balance government interests of the highest magnitude, and in some cases draw the line between RFRA’s protective sweep and the President’s prerogatives as Commander in Chief. But to answer those hard questions, courts should look to another area where they have traditionally deferred based on similar separation-of-powers concerns. As courts’ experience with prisoner cases shows, they already have a useful framework for applying RFRA in the military—one that respects both Congress’s intervention and the operational realities of military command.

When religious claimants sue to protect their ability to practice their faith, they often invoke legal guarantees that specifically protect religious exercise. Yet historically—and still today—they also rely on secular guarantees like freedom of speech or equal protection. And their victories on these grounds set precedents not just for believers but for everyone. As a result, many rights we now take for granted stem from religious minorities pressing for the ability to preach, proselytize, and publish their religious views. No account of free speech law would be complete, for instance, without considering the pathbreaking decisions won by Jehovah’s Witnesses. Although scholars have recognized the role of Witnesses and other religious actors to First Amendment law, little scholarship has examined the broader phenomenon of religious actors advancing secular rights or traced how their struggles have affected secular individuals in secular contexts. To begin to fill that gap, this Article offers a historical account of how religious minorities inspired much of the Bill of Rights’ secular freedoms and how Jehovah’s Witnesses in particular secured many of those rights in court. The Article also shows how those victories laid the foundation for secular social movements—most notably how Witness cases in the 1930s and ‘40s provided crucial protections for the Black civil rights movement. Better understanding religious minorities’ role in shaping our basic secular freedoms has important implications for how religious-claimant cases—both old and new—should be thought of today. In disputes ranging from a high school coach praying after games to companies like Facebook and YouTube challenging state regulation of their content-feed decisions, litigants and courts must decide both when to resolve religious claimants’ cases on secular grounds and, conversely, whether to resolve secular claimants’ cases by analogizing to protections afforded to religiously-motivated actors.