Murad Hussain argues that the courts should adopt a theory of hybrid rights to protect religious minority groups engaged in civic-minded speech. Why extend this protection only to religious minority groups; aren’t secular minorities just as vulnerable? And why only to religious groups who engage in civic dialogue; isn’t private religious expression just as meaningful? And why, of all conceptual possibilities, would one choose hybrid rights to protect anything; do such rights even exist in constitutional law?

I. Hybrid Rights?

If there is a more ephemeral constitutional doctrine than hybrid rights, I don’t know what it is. No court has ever relied on a hybrid rights claim as the principal ground of a decision protecting religious free exercise, and precious few have recognized such claims in any circumstance. This is probably because hybrid rights claims are nonsensical. If a free exercise claim is insufficient for granting relief, and if a free speech claim is insufficient for granting relief, it is difficult to explain how adding them together somehow gets them past the sufficiency test that neither can pass alone. At the end of the day—actually, at the beginning of the day, too—zero plus zero still equals zero.

Mr. Hussain knows this. Hybrid rights don’t do real doctrinal work in his scheme. Rather, they have a communicative function, signaling to the courts that a constitutional claim is especially weighty, informing them that the government action challenged by the plaintiff imposes significant costs on the religious group to which the plaintiff belongs, and not just on the plaintiff. But is it really the case that courts fail to recognize stigmatizing religious group harms because current free exercise doctrine is hybrid-less? Mr. Hussain’s own paradigm authorities for group rights, Cantwell v. Connecticut, and Wisconsin v. Yoder, both managed to arrive at group-protective outcomes despite the absence of a hybrid claim signaling special group harm.

There’s a problem here, to be sure, but it’s not likely to be solved by hybrid rights. American constitutional rights doctrine is relentlessly individualistic, as Mr. Hussain recognizes. To the limited extent that constitutional doctrine protects group rights, it does so only because such protection promotes individual liberty. Second-order group rights exist only to protect first-order individual rights. Every once in a while the Court comes out with a decision that hints at a doctrine of first-order group rights, which tempts law review commentators (including me) to write futilely detailed accounts of the need for a first-order doctrine and what it should look like. This has been going on for more than half a century, and the Court has yet to move its group rights “doctrine” beyond these few scattered hints. At this point, the smart money says that hints are all that a first-order group rights doctrine is ever going to be.

II. Public over Private?

Realizing that an unqualified theory of hybrid rights would trigger strict scrutiny of almost everything the government does, Mr. Hussain articulates a limiting principle: for a hybrid rights claim to be in order, the plaintiff must plead that government burdens on his or her exercise of the “secular” right paired with the free exercise of religion reverberate beyond the plaintiff to threaten the survival of the religious community to which the plaintiff belongs. Thus, Mr. Hussain concludes that a hybrid claim could have been pled for Jesse Cantwell’s anti-Catholic diatribes broadcast on the streets of New Haven, but not for the polygamous marriages of nineteenth-century Mormons in Salt Lake City, because Cantwell was exercising a secular constitutional right to “protect the interests and existence” of his religious community, whereas the Mormons were not. Unlike the religiously motivated polygamy of the Mormons, he argues, <“the religious expression in Cantwell involved members of a religious minority seeking to express their own social culture through their outwardly directed civic identity as Americans.”

This analysis does not explain why hybrid rights are appropriate to protect Cantwell’s religious speech but not the Mormons’ religious polygamy. Notwithstanding Mr. Hussain’s assertions to the contrary, Mormon polygamy was as central to the self-definition of the nineteenth-century Mormon church as public proselytizing was to that of the twentieth-century Jehovah’s Witnesses. Moreover, until the practice was driven underground by federal prosecutions, a Mormon’s entering into a polygamous marriage, while having obvious significance for one’s private religious devotion to Mormonism, also constituted a public affirmation of his or her membership in the Mormon religious community that was as communicative as public proselytizing. The motivation for most devotional acts is complex, and it will be the rare believer for whom communication to outsiders plays no part in his or her religious devotion, especially if self-expression counts as such a communication. A focus on communicative motive will force the courts into implicit judgments about the centrality of a plaintiff’s communicative intentions with respect to acts of devotion, an area that is not formally open to judicial inquiry.

But even if Mormon polygamy were a wholly private activity lacking any claim to an “outwardly directed civic identity,” Mr. Hussain does not explain why it is not entitled to the protection of hybrid rights. For example, restricting this protection to religious groups engaging in civic discourse would have denied hybrid rights protection to the plaintiffs in Yoder, since the Amish eschew virtually any outwardly directed expression or other civic participation.

Mr. Hussain’s theory creates a sort of reverse freedom of (religious) association. The classic freedom of association under free speech doctrine protects group privacy or autonomy when failure to do so would make it difficult for group members to exercise their individual speech rights. Thus, the NAACP was exempted from laws that required public disclosure of the members of foreign corporations in the pre-civil rights South.

Mr. Hussain’s “reverse” freedom of association would recognize hybrid rights when harm to a religious plaintiff is likely to stigmatize the religion to which the plaintiff belongs, making it more difficult for that group to participate in the political process and American civic life generally. This begs the questions whether first-order group rights exist and, if so, why they are restricted to religious groups who participate in the “civic culture’s marketplace of ideas.”

In short, it is not obvious that the words of the Free Exercise Clause— “Congress shall pass no law . . . prohibiting the free exercise” of religion—presuppose religious group rights, much less a privileging of religious groups that participate in civic dialogue over those that don’t, even in the limited context of the freedom of expression.

III. Religious over Secular?

The biggest question left unaddressed by Mr. Hussain is why only religious plaintiffs and religious groups get the benefit of hybrid rights. Many largely secular organizations and their members are undoubtedly stigmatized by the counterterrorism measures he documents—for example, organizations and their members who support a free and independent Palestinian state. It is not difficult to imagine that law enforcement’s close association of these groups with Palestinian terrorism attaches a sufficient stigma to their members that they are handicapped in pursuing a change in American policy towards Israel or, frankly, any other policy goal. Why does it matter that they are primarily secular or political rather than religious?

It is no answer that the First Amendment protects religious beliefs but not secular beliefs. In a radically pluralistic, multicultural society like the United States, the secular is arguably religious, and the religious is arguably secular. The Supreme Court, in fact, has made both arguments: a conscientious objector’s wholly secular “ultimate concern” was held to be “religious” under the Selective Service Act, while judicial interpretation of a church’s governing documents was held permissible if it could be accomplished using “neutral” principles of “secular” law.

Even if it were easy to tell the religious and the secular apart, why is the former more deserving of constitutional protection than the latter? Whatever may have been the situation in 1791 or 1868, it is difficult to argue today that religious interests are inherently more worthy of protection than morally comparable secular interests. Why are the interests of Jews or Christians who wish to observe a weekend Sabbath more deserving of constitutional protection than the interests of an agnostic noncustodial parent who wants more time with his kids when they’re available on weekends? More to the point, why are practicing Muslims more deserving of relief from over-inclusive profiling than nonbelievers who are likewise ensnared because of innocent friendships, unpopular political activity, or ethnic appearance? The lack of satisfactory answers to these questions is what most recommends Smith’s elimination of religious exemptions.

IV. Conclusion

Towards the end of his note, Mr. Hussain declares, “When courts evaluate national security measures designed to protect the many at the expense of the few, they should explicitly consider how our efforts to protect ‘the American way of life’ might instead become self-inflicted wounds to the ideals that define us.”

I wish I had written this sentence. It emphasizes why Madison bequeathed the Bill of Rights to the courts. It exposes the lessons of the Japanese internment as still only half-learned. It recalls Pogo’s famously ironic observation about Vietnam-era government. (For the youngsters, “We have met the enemy, and he is us.” ) It summarizes the flaws of American counter-terrorism policy since 9/11.

For all that, however, this sentence undermines more than it justifies Mr. Hussain’s thesis. While Mr. Hussain has identified a gap in constitutional rights protection in the United States, civic-minded religious groups are not the only ones falling into that gap, and hybrid rights won’t fill it in any event.

Frederick Mark Gedicks is Guy Anderson Chair & Professor of Law at Brigham Young University. His latest article is titled, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment.

Preferred Citation: Frederick Mark Gedicks, Three Questions about Hybrid Rights and Religious Groups, 117 Yale L.J. Pocket Part 192 (2008), http://yalelawjournal.org/forum/three-questions-about-hybrid-rights-and-religious-groups.