A Puzzle About the Word "Prohibiting" in the Free Exercise ClauseWill Foster

[Ed.: For this guest post we welcome back Will Foster, currently a student at Columbia University.]

In 1986, the Reagan Justice Department under Attorney General Ed Meese published a comprehensive report on the original meaning of the Constitution’s Free Exercise Clause. The document, entitled “Religious Liberty under the Free Exercise Clause,” carefully evaluates the text and history of the Free Exercise Clause. One of the report’s key conclusions -- that the Free Exercise Clause protects against generally applicable laws, not only laws targeted at religion -- is today gospel for many originalists and conservatives. But another important conclusion the Office of Legal Policy reached has been all but forgotten: To state a Free Exercise Clause claim, one must “identify state action ‘prohibiting’ -- forbidding or preventing -- the exercise of religion as opposed to merely discouraging it.”

The Supreme Court, needless to say, has soundly rejected that view. In Trinity Lutheran, Missouri did raise the argument that “merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017). But Chief Justice Roberts’ majority opinion quickly dispatched that argument by citing precedent. Ibid. Among those precedents was Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450 (1988), which stated that “this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.” A case before the Supreme Court right now challenges Maine’s refusal to fund religious schools as part of a tuition assistance program; the Court is widely expected to invalidate that discrimination under the Free Exercise Clause.

This view could turn out to be correct, but it is not an easy question. Founding-era dictionaries suggest that the word “prohibit” had “essentially the same meaning in 1791” as it does today. Fulton v. Philadelphia, 141 S. Ct. 1868, 1896 (2021) (Alito, J., concurring in the judgment). As Justice Gorsuch wrote for the Court just this Wednesday in an unrelated statutory case, “to prohibit something means to ‘forbid,’ ‘prevent,’ or ‘effectively stop’ it, or ‘make [it] impossible.’” Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022) (slip op., at 9). Samuel Johnson’s 1755 dictionary likewise defined “to prohibit” as “[t]o forbid; to interdict by authority,” or “[t]o debar; to hinder.” Noah Webster’s 1828 dictionary defined the word in similar, though slightly more verbose, terms: “To forbid; to interdict by authority; applicable to persons or things, but implying authority or right,” or “[t]o hinder; to debar; to prevent; to preclude.” See also Fulton, 141 S. Ct. at 1896, n. 30 (citing additional dictionaries). Both Johnson and Webster included illustrative examples under the two definitions (more on that in a moment). Based largely on dictionary definitions, the Report to the Attorney General concluded that “‘prohibiting’ connotes a finality, certitude, or damning not present in ‘abridging,’ which connotes limitations falling short of the finality of prohibition or prevention.”

Seizing on the word “hinder” in the above definitions, Professor Michael McConnell argued in a 1991 Harvard Law Review article that “prohibit” in the First Amendment means the same thing as “infringe” or “abridge,” and that the Free Exercise Clause protects against laws that even “discourage” religious practice. (Meese apparently now agrees; in a footnote in a recent amicus brief, he cited McConnell and explicitly renounced the conclusion on this point from the 1986 report.) But McConnell’s attempt to respond to the Report to the Attorney General is not entirely persuasive. For the “hinder” definition of “prohibit,” both Johnson and Webster cited the following lines from Milton’s Paradise Lost: “Gates of burning adamant / Bar’d over us, prohibit all egress.” In context, it seems quite clear to me that Milton means not merely that the residents of hell were disadvantaged in some way or disincentivized from leaving -- Milton means they were completely prevented from leaving.

The two definitions Johnson and Webster provide thus line up perfectly with the 1986 report’s conclusion: “Prohibit” can mean either forbidding or preventing. As the report explained, “Forbidding in this context simply means to make an act unlawful, while preventing means to make the performance of an act impossible. For example, the government may prohibit attendance at college by either making it unlawful to attend school (forbidding) or by compelling would-be students to do something else in its place, for example, enter the armed forces (preventing). The first use is a direct prohibition on attending college. The second, though indirect, has the same effect.” Thus, to make sense of the two definitions of “prohibit,” there is no need to conclude that one of them encompasses mere disincentives.

To be sure, it is possible that educated members of the public at the time of the First Amendment’s ratification would have understood the phrase “prohibiting the free exercise [of religion]” as a sort of term of art, with meaning independent of the ordinary meaning of the word “prohibiting” standing alone (though I am aware of no evidence of this). And, as McConnell has noted, “in the context of the free exercise debate in 1789,” no one “expressed the view that infringements that are not final, certain, or ‘damning’ should be allowed.” But it is not entirely clear what to make of this fact. There can be multiple reasons why certain consequences were not envisioned or commented upon by the enactors of a legal provision. McConnell believes that, had the First Amendment been understood to allow penalties on the free exercise of religion short of total prohibition, members of Congress “would surely have spoken up” to complain. But I am not sure this follows. Indeed, there is some Founding-era evidence that can be turned against McConnell’s position: At the time, a number of states -- including New York, where the First Congress met -- categorically barred clergy from holding government offices, a clear penalty (denial of a benefit or right) on account of religious exercise. This practice was not universally supported by any means, and it is possible that some or all of those Founders who supported clergy disqualification at the state level would not have supported it when imposed by the federal government. But the conflicting evidence here illustrates the difficulty of making originalist arguments from silence. Ultimately, the text of the Free Exercise Clause is the law, and strong evidence must be required to conclude that the text is best read in a sense other than what dictionary definitions and linguistic common sense would suggest.

Professor McConnell does cite one additional, stronger piece of evidence: A quote by James Madison. In his Report on the Virginia Resolutions, Madison wrote the following:

For if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it,” and is not said, “they shall make no law respecting it,” the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only “they shall not prohibit it,” and is not said, “they shall make no law respecting, or no law abridging it.”

From this, McConnell concludes that “the narrow interpretation of ‘prohibiting’ should therefore be rejected,” and “laws that discourage or inhibit religious exercise by denying government benefits” can violate the Free Exercise Clause. But in my respectful view, this conclusion is dubious. First, as McConnell concedes, Madison’s view about the equivalence of the various verbs in the First Amendment was not universally held. More importantly, the Sedition Act against which Madison was inveighing involved criminal sanctions, not mere disincentives or penalties. So the fact that Madison considered criminal sanctions on publication of material to constitute both an abridgement and a prohibition of the freedom of the press does not prove that he would still have considered it a prohibition (or even an abridgement) had the law not imposed any jail time or fines, but rather denied a discretionary government benefit. It is perfectly plausible that what Madison meant was simply that legal prohibitions on certain aspects of religious exercise (say, church attendance) would still be unconstitutional even if the government left other aspects (say, private prayer) untouched.

Additionally, one possibility McConnell seems to overlook is that “abridge” and “prohibit” could be essentially synonymous as used in the First Amendment, but with both being narrower rather than broader in scope. In other words, it is possible for McConnell to be correct that “prohibit” is equivalent to “abridge” or “infringe” and still be wrong about the meaning of “prohibit,” because it is possible that all three terms have narrower meanings than the Supreme Court has generally given them. Justices Scalia and Thomas, for instance, have taken a view of “abridge” in the Free Speech Clause that is remarkably similar to the stringent definition of “prohibit” (more on that below). Under the alternative view this paragraph outlines, both the Free Speech Clause and the Free Exercise Clause would protect only against government action that outlaws free speech or free exercise or makes them impossible, not against minor financial penalties. 

To be sure, even if McConnell is wrong about the meaning of “prohibit,” another possibility is that “free,” rather than “prohibit,” is the key word that expands the Free Exercise Clause to include selective denials of funding. In his Locke dissent, Justice Scalia -- joined by Justice Thomas -- argued that “[t]he First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise—whether by tax or by forfeiture of an otherwise available benefit—religious practice is anything but free.” Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting). Under this understanding, the word “free” is what protects against penalties that coerce. This is a plausible interpretation of the text, but it is not the only plausible interpretation. “Freedom of speech” also includes a version of the word “free,” yet Justices Scalia and Thomas have consistently denied that disincentivizing speech violates the Free Speech Clause (more on that below). In any event, the Report to the Attorney General appears to have anticipated Scalia’s argument about the word “free.” The report’s authors acknowledge that “one could argue … Ms. Sherbert and Mr. Thomas, relative to other workers, were penalized in the amount of their unemployment compensation and that that penalty is as real and substantial to them as the criminal sanctions were” in other free exercise cases. Nevertheless, “there is a difference between the government's compelling an action and its persuading (by encouraging or discouraging) completion of the same act, which may be readily seen in the remedies available in each case.”

Yet another possibility is that the incorporation of the Free Exercise Clause against the states effectively changed its meaning -- i.e., penalties on religious exercise are unconstitutional when imposed by the states, though not by the federal government. This “dual-track” approach to incorporation has fallen out of favor at the Supreme Court, though Justice Thomas has recently expressed some openness to it. But as Professor William Baude wrote in a thoughtful post, it is possible that dual-track incorporation is warranted because (1) “incorporation is an indirect consequence of the Fourteenth Amendment,” in that “the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property” and/or (2) “[t]he public understanding of various constitutional rights was different in 1867/8 than it was in 1791.” 

Now, I am not sure this is right. As Baude concedes, and as Andrew Hyman has argued, “it’s also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8.” Still, the possibility of dual-track incorporation is worth exploring. One intriguing possibility is that the precise language of the Privileges or Immunities Clause -- “abridge” -- effectively replaces “prohibit.” Under this reading, the Free Exercise Clause as incorporated against the states would effectively read “No state shall abridge … the free exercise of religion.” To the extent that “abridge” is broader in coverage than “prohibit,” the free exercise right might be broader as applied to the states than the federal government. But no justice of the Supreme Court has ever suggested this reading, and it is not the only plausible way of reading the “incorporated” Free Exercise Clause. For example, one could read it as “No state shall abridge the right not to be prohibited from freely exercising religion.”

Regardless, one thing seems virtually certain: The Free Speech Clause -- given its use of “abridge” rather than “prohibit” -- must be at least as broad as the Free Exercise Clause in its application to “selective funding” and “unconstitutional conditions.” And the Supreme Court’s most originalist justices have frequently argued that the Free Speech Clause does not prohibit the government from selectively denying funding to speakers. In their view, the First Amendment’s prohibition on “abridg[ing] the freedom of speech” protects only “against the coercing of speech,” and not “against discriminating against or injuring opposing points of view.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U.S. 205, 222 (2013) (Scalia, J., joined by Thomas, J., dissenting). This is because “[n]ot every disadvantage is a coercion.” Id. at 223. Justice Thomas recently reiterated this view, arguing that Congress can decline to subsidize certain speech based on the viewpoint it expresses because such a program “does not compel anyone to say anything,” given that entities “are not compelled to participate in the … program.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 140 S. Ct. 2082, 2090 (2020) (Thomas, J., concurring). 

Likewise, in National Endowment for Arts v. Finley, 524 U.S. 569 (1998), Justice Scalia (joined by Thomas) wrote that “I regard the distinction between ‘abridging’ speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable.” Id. at 599 (Scalia, J., concurring in judgment). That is because “[t]o abridge is ‘to contract, to diminish; to deprive of,” but “[t]hose who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute” (citing T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796)). Id. at 598. As Scalia wrote in another case, “The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily ‘infringe’ a fundamental right is that—unlike direct restriction or prohibition—such a denial does not, as a general rule, have any significant coercive effect.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting). This view seems reasonable enough, but why wouldn’t it extend to Free Exercise Clause cases, where the key word is “prohibit” rather than “abridge” or “infringe”? As far as I can tell, neither Scalia nor Thomas ever provided an answer. If failing to fund speech is not a free speech violation, then failing to fund religious exercise cannot be a free exercise violation. Originalists and textualists cannot have it both ways. “Prohibit” probably is a narrower term than “abridge,” but even assuming it has the same coverage, it is certainly not any broader.

In the end, even if I am right about the Free Exercise Clause, it may well be that Trinity Lutheran and other related cases were correctly decided on originalist grounds anyway. That’s because the Fourteenth Amendment’s equality guarantee -- whether found in the Equal Protection or Privileges or Immunities Clause (or both) -- likely prohibits invidious discrimination against religion. Indeed, that alternate argument was made in Trinity Lutheran, though the Court declined to address it. (The same was true in Locke v. Davey and Espinoza v. Montana, where petitioners even cited desegregation cases.) In a case involving disqualification of clergy to public office, Justice White wrote that “[r]ather than relying on the Free Exercise Clause, as do the other Members of the Court, I would hold ch. 848, § 4, of 1976 Tenn. Pub. Acts unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” McDaniel v. Paty, 435 U.S. 618, 643 (1978) (White, J., concurring in judgment). As Justice White explained, the Free Exercise Clause seemed like a poor fit because it is not clear “in what way McDaniel has been deterred in the observance of his religious beliefs” or “been required to disavow any of his religious beliefs.” Id. at 643-644. The Fourteenth Amendment, with its focus on equality, was more appropriate. 

Chris Green and David Upham have powerfully argued that “[a] great deal of evidence shows that the equal citizenship principle of the Fourteenth Amendment covers creedal as well as racial discrimination.” Green and Upham note that “Republicans took distinctions based on religion or belief to be clear instances of the sort of second-class citizenship against which the Privileges or Immunities Clause was aimed.” They also observe that the “Court’s religion-clause cases have long been shot through with notions of equal citizenship.” (Professor Green just filed another amicus brief making these points.)

As Professor Green wrote on this blog last year, “It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too).” The core inquiry -- whether under the Equal Protection Clause or under the Privileges or Immunities Clause (or perhaps under the Citizenship Clause for the federal government) -- is whether the government has treated “similarly situated” citizens/persons equally. Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O’Connor, J., concurring in judgment). Importantly, the Fourteenth Amendment approach would not necessarily lead to narrower decisions in religious school cases. For example, it is entirely possible (though I express no opinion on the matter) that most or all Blaine Amendments are facially unconstitutional under the original meaning of the Fourteenth Amendment.

The Meese report with which this essay began similarly noted that protection against “purposeful discrimination against religion that burdens but does not forbid or prevent free exercise” could “in most cases be available under the Establishment Clause and/or the Equal Protection Clause (among other constitutional provisions).” The authors frankly acknowledged that they were “not entirely comfortable with the idea that the Free Exercise Clause would not disallow such action under our interpretation. Nevertheless, we believe the only principled approach is to follow the text of the Constitution as we are able to best comprehend its original meaning, despite any misgivings we may have about the results of that approach.” Just so.