As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor pointing in that direction. His initial, and most influential, opponents reviewed the historical record and rejected both these positions. But none of these men presented a single instance in which a lawmaker explained his support or opposition to a religion-based statutory exemption. Nor have the academics and practicing lawyers who have continued this constitutional debate.
This article, which presents and analyzes the debates in two eighteenth-century state legislatures that adopted Sunday closing laws including exemptions for sabbatarians (people whose religious beliefs required them to regard Saturday as the Sabbath and refrain from working on that day), thus fills a key gap in the literature. The evidence presented here undermines the pro-exemption claims. And it points to the need for further research into newspaper accounts of Founding Era debates in American state legislatures.
Stanton D. Krauss,
New Light on the History of Free Exercise Exemptions: The Debates in Two Eighteenth-Century State Legislatures,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol71/iss4/9