| The Free Exercise Clause |
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| Religion-State Separatioin : the Judicial War |
The First Amendment of the US Constitution begins by stating that the US "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof." The first phrase is called the Establishment Clause. The phrase following the comma is called the Free Exercise Clause. Before we even begin to explain the various interpretations of these provisions it is important to point out that these twin prohibitions no longer apply to just Congress alone, but to all levels (and branches) of government. This incorporation of these clauses is a joint result of the addition of the 14th Amendment to the US Constitution in 1868, and a gradual evolution in thought by the U.S. Supreme Court through the years to interpret the Due Process Clause of that amendment as applying most, but not all, of the Bill of Rights to the states as well. The Free Exercise Clause protects individuals from government persecution based on hostility to their religious beliefs, including the right not to believe. The Establishment Clause forbids government favoritism towards any religious group, at the very least, and government endorsement of religion generally. One clause prevents government persecution of religion; the other prohibits government promotion of religion. The combined effect of these two clauses is intended to maintain government neutrality towards religion. But what does it mean that government can't promote or advance religion? Does that mean that government has to pretend that religion doesn't exist? That the local police department cannot investigate a crime if the local priest has had his church robbed? What does it mean exactly that government can't interfere with religion? Does that mean that if your religion requires you to sacrifice your firstborn child, the government can't prevent or punish this act, allowing you to literally get away with murder? Such an untrammeled interpretation of either clause would be absurd. religion/state separation does not mean that government must completely blind itself to the existence of religion. Nor does the "free" exercise of religion mean that one can do whatever he or she wants, using a religious justification. But beyond that, what rules can we develop in interpreting these clauses that everyone -- or at least most people -- could agree were fair and just rules? Is there a principled basis that is clear and understandable for determining how judges should interpret the First Amendment? One thing most commentators agree on, whatever side of the argument they're on, is that the state of jurisprudence regarding religious affairs is in disarray with seemingly contradictory, often incoherent, rules governing how decisions are made by the courts. The Court seems to be scrupulously separationist when it comes to the teaching of evolution in the public school. The mere mention of absurd creationism in the science classroom as a possible competing theory is justifiably forbidden. On the other hand, the existence of chaplains in the legislature, paid for with taxpayer dollars, appears to be a clear victory for the forces of accommodation or non-preferentialism. In other instances, such as in the area of publicly-funded holiday displays, the Court seems to have split the difference between the two sides, with neither side being pleased with the resulting compromise. A crèche, standing alone on public property during the holiday season, is a violation of religion/state separation. However, a Jewish menorah surrounded by two or more secular holiday symbols, such as a Santa Claus and Christmas tree, does not cross the line. Such seemingly contradictory decisions seem to be also present in the history of the jurisprudence of the Free Exercise Clause as well. In the section that follows we will explore the inconsistencies of Supreme Court jurisprudence in this area and what is currently the prevailing view of the Court as to the proper interpretation of this clause. |
Religious freedom and the Free Exercise Clause |
For reasons which will become apparent later, it is easier to start out by examining the second clause first. A good paraphrase for the Free Exercise Clause would now read, "Government shall make no law prohibiting the free exercise of religion." But what does that mean, exactly? It's important first to note that we are not merely talking about belief, or just religious speech, but the exercise of religious practices -- which includes not only activities such as ritualistic worship, but also potentially any religiously-inspired physical activity. The Court has also held that the clause protects people who do not have religious beliefs from being compelled to embrace some religious system, or persecuted for not doing so, the Establishment Clause is often viewed as protecting this freedom as well. If we take the text literally, it means that any time someone has a religious justification for committing some act, the laws of the land can't touch him or her in any way. As the above example illustrated, this would mean that a cult could get away with human sacrifices or some other objectionable behavior. But, of course, this absolutist interpretation cannot be the correct reading -- as the Supreme Court recognized in its first important case dealing with the Free Exercise Clause, Reynolds v. United States (1879). But what hard and fast rules can we develop that would provide a plausible interpretation of the Free Exercise Clause that would be tamper-free from judicial activism? The Reynolds case provided the first hints. George Reynolds was a Mormon polygamist living in Utah, which at the time was not yet a state in the Union. As a territory, it was still subject to federal laws, one of which prohibited marriages to multiple wives. Reynolds claimed that the Free Exercise Clause of the First Amendment prohibited government from passing any law, including a law that required monogamous marriages, that interfered with one's religious practices. The High Court disagreed, arguing that such an interpretation would "make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself." In essence, individuals whose religious practices were burdened by government laws had to obey the same laws as the rest of us -- or at least had to request, and then receive, accommodation through the legislative process; they could not just demand accommodation as a Constitutional right. In sum, the Free Exercise Clause did not automatically excuse religious individuals from obedience to the general laws of the state. But this ruling presented a different problem. If the Constitution did not require exemptions in cases where the law burdened someone's religious practices, what, if anything, did the Free Exercise Clause mean? Was it merely an empty formalism? It wasn't until the twentieth century that the federal courts began to grapple with, and then provide, some tentative answers to this question. At the very least, the High Court held that the Free Exercise Clause was implicated, or triggered, when government's motives for a law that interfered with religious practices were based on hostility towards certain religious beliefs. The remedy for such a law was invalidation. Essentially this meant that determining Constitutionality of a law depended not on the negative impact such laws had on religious practices, but on the intentions of government in passing the law. But the question remained: Did the freedom mean more? At first, it seemed that the non-discriminatory rationale was as far as the courts were willing to go. If government's reasons for passing a law were motivated by a genuine secular purpose -- that is, it was religiously neutral -- then government was under no Constitutional mandate to exempt religious believers from laws that burdened their religious practices. An example of a law that wouldn't pass this minimal test would be a law banning idol worship. It's plain that there is no secular purpose here -- and that such a law would be motivated by persons who oppose the worship of graven images -- clearly a religiously prejudicial rationale. On the other hand, a law could be passed outlawing the ingestion of liquor. The state could justify such a prohibition on the grounds that liquor was an intoxicant and thus a harmful substance that the state could freely regulate. The unintended consequence of such a law, though, would be to keep religious persons such as Roman Catholics and Jews from ingesting wine during the Mass or Seder. Because this hypothetical law would have been motivated by a secular purpose and was not specifically targeting these religious groups out of animus to their beliefs, there would have been no violation of the Free Exercise Clause. Fortunately, when the 18th Amendment did place a general prohibition on the production, sale, transport, and ingestion of liquor, state and national governments made special provisions for these religious groups to be able to continue to use wine in their ceremonies. It's important to note, however, that this was a voluntary act of grace on government's part, and not required by the Free Exercise Clause. But what if government used some fig leaf to hide its hostility? What if it pretended to have some secular reason for a law when its real intention was to target a religious group, based on prejudice? And what if it did not discriminate in the wording of the law, but outlawed some activity for everyone, knowing full well that only a certain group practiced the activity it was outlawing? To cite our former example, what if a town of teetotaling fundamentalists passed a facially neutral law outlawing liquor for everyone, knowing that only a small group of Christian Catholics and Jews who used wine would be inconvenienced? Would this be considered a violation of the Free Exercise Clause? How would a court determine whether the law was motivated by a genuine secular purpose -— to prevent inebriation and its harmful consequences —- or was instead motivated by religious hostility? To make matters more complicated, what if there were dual purposes for the law? What if most of the townspeople thought that the Catholic Christian doctrine of transubstantiation (Transubstantiation (in Latin, transsubstantiatio) is the change of the substance of bread and wine into the Body and Blood of Christ occurring in the Eucharist according to theabsurd and ridiculous teaching of some Christian Churches, including the Roman Catholic Church. In Greek it is called μετουσίωσις) was an affront to God, but that many others wanted the statute in order to keep law and order in a town rife with public drunkenness? Would a court reviewing the case have to examine all motives going into the adoption of such a law, balancing the illegitimate and legitimate factors, before coming to a decision? As Justice Antonin Scalia has argued, such an endeavor would be a very precarious undertaking. Scalia wryly noted that a legislator might vote against a bill simply because he was mad at his wife for being in favor of it. A single legislator might have multiple reasons for voting for or against a bill. Generally speaking, a religious purpose is not enough to invalidate an act of a state legislature simply because the secular motivation for a law happens to coincide with a particular religious viewpoint. Even a bigoted religious motivation does not automatically make such statutes unconstitutional. The religious purpose must predominate. One would not invalidate laws against murder or theft just because these laws were also found in the Old Testament's Ten Commandments. (In the next module we will examine this rule's effect on legislation in such areas as sexuality, public hygiene, and abortion rights, and whether the courts have been judicious in its application.) An even more fundamental question arises. What if a legislature was not even conscious that it was imposing the majority's religious views on a minority when it passed a law? After all, couldn't anti-polygamy laws be seen as based on mainstream Christianity's preference for monogamy over polygamy? Going a step further, isn't the entire corpus of this nation's laws inherently biased in favor of the largest and/or most powerful religions simply because the output of the various legislatures naturally represents their will? So, even when there is no conscious desire to harm a small religious group, doesn't the very fact that the laws of America reflect to some degree the morality of mainstream Christianity make it necessary to give minority religions special consideration when a law burdens their religious practices? This was the impetus behind the Sherbert Test in cases dating between 1963 and 1990. Those taking this view argued that simply protecting religion from religiously-hostile laws was not enough. Even neutral, secular laws could place great burdens on religious practices, especially on those religions that were not politically powerful enough to secure favorable legislation or exemptions protecting their practices. | | Freedom of Non-Belief in Conventional Religions? Why should the Free Exercise Clause protect the rights of non-believers (in religions) too? For as Carl Esbeck persuasively argues:
… the Clause does not protect those who have abandoned their faith (in religions) or do not have a religious faith, that is, the apostate, the atheist, or the agnostic … Liberal theory would broaden free exercise into an individual right that embraces all conscientiously held belief … Their argument is that surely liberty in religious matters cannot end with freedom to embrace and practice a particular faith, because (religious) liberty also includes freedom to resist governmental coercion to practice the faith of others. That argument would be persuasive if the Free Exercise Clause read: "Congress shall make no law ... prohibiting religious freedom." But that is not the text, which only reaches out to individuals who first have a religion, then safeguards their exercise thereof. While it's true that the Free Exercise Clause does not protect someone engaging in an activity for non-religious reasons from government interference, does this also mean that someone must engage in some outward religious practice or else open themselves up to the possibility of government persecution? And if they are persecuted for abstaining from a religious practice -- say a job promotion is held up because they haven't been seen attending a house of worship lately -- under which clause would they seek a legal remedy? The words "Free Exercise" embrace the positive and negative just as the speech clause allows someone to express an opinion, keep their opinion to themselves, or have no opinion to express. Accepting Esbeck's formulation that "Free Exercise" speaks to actions and not simply "religious freedom," would it be plausible to argue that the government can threaten a punishment or withdraw a benefit because it observes that someone does not engage in some outward or visible religious practice? Thus, while the No Religious Test Ban Clause and Free Speech Clause protect an atheist from having to utter an oath stating their belief in God, the Free Exercise Clause protects anyone (whether religious or not) from being discriminated against because they do not engage in religious practices. One should not have to demonstrate faith (whether or not one has one) through outward acts of devotion or worship. To be fair, Esbeck is not insensitive to the rights of atheists and other non-religious, for he argues that the Establishment Clause would protect people of no belief from certain forms of government persecution. But the U.S. Supreme Court is currently in the midst of scaling back the protections of the Establishment Clause so that in many cases it only prohibits religious favoritism, not the advancement of religion generally. If this is the case, the Free Exercise Clause must continue to mean freedom of and from religion if the two clauses together are going to prevent persecution of the non-religious. Whatever clause one chooses to use to protect the freedom of non-believers (in religions), one must remember that a right is not the same as a duty. In this nation voting is a right, but in some countries people are required to vote, and therefore voting becomes a duty like serving on a jury. But a right implies that some form of conduct is both protected and voluntary. It would be absurd to suggest that freedom of the press meant that everybody had a right to become a journalist or that freedom of speech meant that you could express whatever opinion you wanted, but that you had to express some opinion. To take it a step further, The Equal Protection Clause might require government to extend an exemption or benefit given to religious persons to non-religious individuals as well, if their motivation for performing or abstaining from some action occupies a "parallel place" to religion or acts as its "functional equivalent." The following two cases illustrate this point. In both United States v. Seeger (1965) and Welsh v. United States (1970), the Court addressed the question of whether conscientious objectors could be excused from serving in a combat capacity even though they did not belong to any organized religious group or even necessarily believe in God. Both Seeger and Welsh indicated on their draft applications that they held deep, conscientious scruples against taking part in wars where people were killed, yet the statute clearly only exempted those whose religious training and upbringing prohibited them from engaging in warfare. The Court granted them an exemption anyway, holding that their beliefs occupied "a place parallel to that filled by God." It is important to keep in mind, though, that these cases did not directly implicate the Free Exercise Clause, but simply were interpretations of a Congressional act extending an already existent exemption to include others. One final note. In the wake of the Smith decision, explained below, Esbeck's distinction between actions motivated by religious and non-religious causes might be even more meaningless, because the clause can now be interpreted to prevent only discrimination, not to give special rights to religious entities. |
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| That question and others arose in Braunfeld v. Brown (1961) with a law that prohibited businesses from operating on Sunday. Braunfeld, an Orthodox Jewish businessman, was put at an economic disadvantage by this law because for personal religious reasons he could not operate his business on his Sabbath, which was Saturday, and was prevented legally from operating his business on Sunday. He needed to work on Sunday to make his store competitive with Christian businessmen. The Supreme Court rejected his claim of discrimination and did not grant an exemption. First, it noted that not all Orthodox Jews were inconvenienced by the laws -- only those who wanted to work on Sundays. Nor was Braunfeld placed in the position of either facing prosecution or forsaking some religious practice made illegal by the state. The burden was an indirect one and the state could not possibly remove all indirect burdens on religion in a nation as religiously diverse as the United States. The case is interesting for a number of other reasons: (1) This case implicated the Establishment Clause as well as the Free Exercise Clause because on first impression the statute in question -- as an example of what are commonly called Sunday blue laws -- seemed to advance religion by recognizing the Christian Sabbath. Further, it seemed to favor mainstream Christianity over other religions such as Judaism. While it was true that laws forcing businesses to close on Sunday were originally adopted for religious reasons, such laws had, over time, become infused with secular rationales as well. The Court held that government had a genuine interest in imposing a uniform day of rest on its citizens so that they could relax and fraternize as a community. Sunday happened to be the customary day that most Americans regarded as a day of rest, even if they were non-religious. A similar rationale is often advanced with regard to Christmas, which is now recognized by the courts as being both a secular and religious holiday. The implications of this decision extended beyond simple legality. Government would not only be able to prevail when it had a genuine secular reason, but it might also be able to salvage a law if it could come up with secular "cover" for the law that appeared to be motivated by what otherwise might be seen as an unjustifiable religious rationale. (As we will demonstrate in the next section, this subterfuge can also be used in Establishment Clause cases, to advance religion under some sham secular rationale.) (2) Another interesting aspect of this decision was that, even had there been a burden placed on Braunfeld, his decision to follow his religious dictates -- and not open his business on Saturday -- was viewed as a voluntary choice on his part and not one government was compelled to accommodate. No legal authority was forcing him to keep his business closed on Saturday; therefore, the government could not be held accountable for a personal decision that made him less competitive with other businesses. (Interestingly, striking down the law would not have made him more competitive, because a Christian businessman then could open his business all week long and have a seven-day to six-day advantage over Braunfeld.) But this view would be turned on its head in the next big case, Sherbert v. Verner (1963), which seemed to overturn, or at least chip away at, the rationale that had been announced in Reynolds. Mrs. Sherbert was a Seventh Day Adventist whose religion prohibited her from working on Saturdays. Because most of the employers in her area required a six-day work week, Mrs. Sherbert was unable to hold down a job. When she applied for unemployment compensation the state refused her application on similar grounds as Braunfeld; that she had elected not to work for personal reasons and not because she had been unable to find work. In addition, the denial did not in any way seem to be motivated by religious hostility. It was true that most Christians got their Sabbath as a day off, but again this motivation by the state and employers not to require Sunday work did not seem to be based on any hostility to Mrs. Sherbert's religion and had been justified by an independent secular rationale. The unemployment fund itself did not seem to be motivated by any religious discriminatory intent, since it was set up for people that couldn't find work -- not for those who chose not to work, for whatever reason. This case seemed similar to Braunfeld and, yet, the Supreme Court reversed the unemployment board's decision, requiring them to pay Mrs. Sherbert benefits. The Court could have justified its reversal on a less controversial ground, that since mainstream Christians got Sunday off it was only fair that Jews and Sabbatarian Christians received the same consideration for Saturday. But Justice Brennan, writing for the majority, largely ignored that view. He likened the denial of Mrs. Sherbert's claim to placing a fine on her for practicing her religion, because it put Mrs. Sherbert in the unenviable spot of having to choose between economic well-being or violating her religious beliefs. But this seemed to change the whole intent of the law and to rework the rationale established in Reynolds. Again, the law did seem to favor mainstream Christians who did not have to work on Sunday over Sabbatarians. As Braunfeld had shown, this reason was no longer viable because Sunday had become a secular day of rest. Additionally, the decision seemed to discriminate in favor of religion over other compelling personal reasons to avoid work: for example, a single mother unable to find a babysitter for her children on Saturday would not be covered by either the letter of the law or the Supreme Court's reworking of it, and thus would not be eligible for unemployment benefits. In other words, this ruling seemed to extend special treatment to religious persons by privileging religious practices over other beliefs or hardship situations. It also indicated that the Free Exercise Clause not only protected against intentional, religiously hostile laws, but unintentional burdens too -- the rationale the courts had rejected in previous cases since the Reynolds decision almost a century before. |
| The holding in this case did not make the requiring of exemptions an entirely open-ended guarantee, however. If the state could demonstrate a compelling interest for denying an exemption -- as in the case of human sacrifices -- the courts would reject the religious claimant's request for one. Also, there was as yet no indication that the courts would extend their new thinking to other cases outside the unemployment benefit field; for example, into the area of criminal law. As things turned out, the Court would be inconsistent in the test's application in future cases. In Wisconsin v. Yoder (1972), the Supreme Court even seemed to favor one religion over others in the area of Free Exercise Clause exemptions -- not just religious beliefs over non-religious beliefs. The law in Wisconsin at the time required all children to attend school until at least the tenth grade. The Supreme Court held that the law violated the religious freedom of the Old Order Amish, who believed that schooling past the eighth grade exposed their children to an undesirable "worldly" education. The Supreme Court noted that they could not think of any other religion or philosophy -- such as a commune -- that was so situated as to receive the same favored treatment. The state's usual argument for at least a tenth grade education -- that it made students good citizens, economically viable, and law-abiding members of society -- wasn't compelling enough to overcome the unique situation of the Amish. After all, they were pacifists, so by nature they would be law-abiding. In addition, their tight-knit agricultural society seemed to afford ample opportunity for employment so that an extended education seemed unnecessary. Though this rationale seemed to show favoritism towards one religion, the court argued that it did not violate even a non-preferentialist view of the Establishment Clause because no other religious group was harmed or inconvenienced by this dispensation. But this thinking seems to chip away at the Strict Scrutiny Test, or Compelling Interest Test. If the state is able to show a very good reason for denying an exemption, then the hardship faced by the religious group in question should not matter. Even if we concede that the Amish's circumstances were unique, that should not vitiate the state's position that its duty to educate all its citizens was a vital, compelling concern. (In fact, some judges astutely noticed that the Amish's utopia might not always provide what it promises. What if an Amish community ran out of land, or one of their children changed his mind and left his community on his own accord for the wide-open world? Would he have the wherewithal to remain economically viable with only an eighth grade education? There was even evidence that some Amish children wanted an education that went beyond the eighth grade, raising questions of personal autonomy. These questions were sidestepped in Yoder.) In any event, this seemed to change the whole nature of the religious test away from an objective one that only concerned itself with determining whether or not government had a legitimate, genuine, secular purpose for passing a law, to a subjective test which examined the circumstances of the burdened religious group, even in the presence of a government compelling purpose. This kind of balancing test would not only allow for more judicial discretion, which could lead to unprincipled activism on the Court's part. It also seemed to indicate that religious beliefs were more important than the rule of law, a principle that, if it became widespread, could make it difficult for government to enforce its general laws in a modern, religiously-diverse, secular state. | | Faith Healing Religions, Child Neglect Laws, and the Compelling Interest Test Many faith-healing religions such as Christian Science have directed their adherents not to seek medical intervention when they become ill, teaching them to rely on spiritual healing instead -- either because they do not recognize the reality of sickness, or because they trust in religious faith to obtain a cure. Parents who have allowed their children to become grievously sick, even die, in obedience to such dogma often have not been prosecuted, have had their sentences overturned later, or have received lesser sentences because their motives for this neglect were based on a religious rationale. Even in locations where stiffer laws prevail, parents who allow their children to die are sometimes not prosecuted because of the local prosecutor's misunderstanding of the scope of religious freedom or because of overly solicitous judges on the state's highest courts. But even under the most deferential standard for obtaining religious exemptions from the law, allowing these individuals to escape prosecution should not be tolerated. While the Sherbert Test requires exemptions in most cases, even under the most generous reading of the test it also permits government the authority to withhold an exemption when there is a compelling reason for doing so. The prevention of child neglect, especially when it leads to death, would for most people represent a compelling interest. Even states that have retained the Sherbert Test after the Smith decision made it inapplicable to the federal Constitution should not allow this kind of gross neglect to continue in the name of religious freedom. It really isn't much different than the courts countenancing child sacrifice.
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At this point, it seemed that the courts would safeguard religion against laws that both intentionally and unintentionally burdened religious practice. Further, Yoder seemed to indicate that some religions and not others were uniquely situated to receive exemptions, which might seem to violate the Establishment Clause -- even a narrow interpretation of it that prohibited religious favoritism. One reason it did not, it was claimed, was that exemptions did not intrude upon the religious beliefs and practices of others. After these two cases the Supreme Court seemed to waver and send mixed signals with regard to its newly expanded free exercise jurisprudence. In two cases, it expanded upon the rationale for unemployment benefits first announced in Sherbert. In Thomas v. Review Board (1981) the Supreme Court upheld the unemployment compensation claim of a Jehovah's Witness who quit his job after being transferred to work on military equipment. Again, the fund had been set up only for persons who could not find work, but the Supreme Court, following the Sherbert Test, reversed the unemployment board because Thomas's pacifist religious convictions were considered a "good cause" reason to quit work. Generally speaking, many unemployment systems have "good cause" exceptions, giving individuals the right to quit work and receive benefits if they had been, say, harassed on the job. So some justified this decision as being balanced because it had created exemptions for both secular and religious reasons. In Hobbie v. Unemployment Commission (1987) the Court extended this line of reasoning by holding that a new convert to a religion should be given the same consideration as a longstanding member, when she became unemployed for religious reasons. After changing her religion to Seventh Day Adventism, Mrs. Hobbie was discharged when she refused to work on her Sabbath for a private employer. This last case did not really address the possibility that someone might pretend to change religions just to get some benefit they currently weren't receiving. Such a potential for fraudulent manipulation of the unemployment fund apparently did not unduly bother the High Court. In other cases, the Court retreated from this expansive view, especially when the federal government was one of parties involved in a religious controversy. In Goldman v. Weinberger (1986) the Court denied the right of a Jewish officer in the armed forces the right to wear a religious head covering while on active duty. The Court observed that the military required uniformity to ensure its effectiveness. They also noted that an individual's religious rights are diminished in an institutional setting, a rationale they reiterated in O'Lone v. Estate of Shabazz (1987), which denied the petition of Islamic prisoners the right to practice certain aspects of their religion because of the penological interest in security. Finally, in Lyng v. Northwest Indian Cemetery Protective Association (1988) the Court said that the federal government was not required by the First Amendment to stop building a road through government property that would disturb Indian sacred grounds. The Court held that "the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Near the end of the eighties it seemed unclear whether the Court would continue to enforce an expanded view of the Free Exercise Clause or return to the pre-Sherbert era, or simply restrict the use of the Sherbert Test to unemployment cases. There were a number of arguments for keeping the Strict Scrutiny Test: (1) The most modest position was that religious groups were not really asking for special treatment. It was simply that it was difficult to ascertain whether government's purposes were really secular when they passed a law that burdened a religion. They might claim that the burden was unintentional, but who could really tell whether or not a law had been animated by religious hostility? Strict scrutiny would insure that no hostile laws got through without exacting court review. After all, there is evidence that even Reynolds might have been motivated by hostility to the polygamous beliefs of Mormons -- not necessarily, as the government tried to argue, that the law banning multiple marriages was based on a secular purpose of avoiding the social disorder they created. But the response to this argument is that such a "non-discrimination" safeguard was a phony reason for using the Sherbert Test. First of all, instances of actual hostile laws are rare in the U.S., especially in modern times. Also, when a law is motivated by a bogus secular motive, the proper remedy for the court to apply is to invalidate the law -- not merely to grant an exemption. A law motivated exclusively by the desire to discriminate against somebody's religious beliefs cannot, by definition, have a secular rationale. On the other hand, by specifically asking for an exemption, the religious group seems to be acknowledging that the law does possess a genuine secular purpose. Why else would the Court have an interest in salvaging it and requiring everybody else to continue to obey such a law? (2) The stronger argument was that religious beliefs needed the extra consideration because government laws tended to favor mainstream, large religions over smaller, less popular ones. The court-compelled religious exemption simply evens things up for all religions. It fulfilled the spirit, if not the letter, of the religious clauses, which were enacted to protect small religions from the injustices of the democratic process, which would tend to favor those religions with more political clout. But it is the nature of democratic government to favor majorities over minorities. It is one of the disadvantages of living in a democratic regime that legitimate laws injure the interests of minorities -- religious or otherwise. If government were required to grant exemptions every time any minority was burdened, then democracy would simply disappear. Why should religious people have any more clout than non-religious minorities when it comes to laws that injure their interests, but not their rights? (3) A third more brazen argument simply claims that religious beliefs are special and they should be recognized as such in relation to other rights. There are at least two variations to this argument. One argues that religious beliefs are more deeply felt than other kinds of beliefs: that they are difficult to change, and that more psychological trauma would be experienced by adherents compelled to change by secular authorities. In other words, it is not just that the fear of hellfire is much more frightening then simply having your philosophical or political beliefs frustrated by the will of the majority, but that deeply held philosophical beliefs can be as sacred as of the religion if believed and pronounced in a like manner. But while this may be true in some cases, it can be argued that non-religious belief systems can wreak the same kind of psychological trauma on the individual as well. A pacifist atheist may not believe in being punished after he dies for killing another human being, but being forced to do so by the military might make his life a living hell nevertheless. (4) The second variation to this argument was that "man's laws" are secondary to God's. According to this rationale, the nation was founded on the principle that man's duty to his supposed-God is more important than his duty to government. In addition, the compelling interest test would allow government to keep the privileging of religious belief from getting out of control by giving the state the ability to deny the more outrageous requests for religious exemptions. But in the absence of such compelling reasons, religious interests always prevail over other kinds of beliefs -- even secular, generally-applicable laws. It is argued wrongly that this is even more urgent in the modern era because of the pervasiveness of government regulation. As I will argue in later modules, this privileged view of the religion seems to violate the whole spirit of the First Amendment, if not the Constitution, where equal liberty is the guiding norm. Normally when a law violates a Constitutional liberty the proper judicial remedy is invalidation of the law. In such situations either everybody possesses a right or nobody possesses a right. By sustaining the law, but requiring exemptions for religious individuals, the Court creates a Constitutional anomaly that makes a liberty exclusive to a select group of people. |
| Such a power also makes the courts too activist. While leaving exemptions to the legislature is problematic, because religious minorities will not always obtain an exemption, we at least expect that branch of the government to play favorites. Having the courts decree exemptions would be even more inappropriate because they are the branch of government that is supposed to lack "political will." Religious divisiveness would result when the courts regard government as having a compelling reason in one instance for denying an exemption, but not another. Another response to this privileged view is the argument that the Court would utilize in its next big case, Employment Division of Oregon v. Smith (1990). This landmark case brings us full circle to the Reynolds view that such a solicitous treatment of religion would lead to legal anarchy, a problem aggravated even more profoundly by the great diversity of religious groups in this nation. In Smith, two Native American drug counselors were fired from their jobs at a private corporation when it was learned that they had ingested small quantities of peyote in a Native American religious ceremony. The two men applied for unemployment benefits, but the state deemed them ineligible because they had engaged in "job-related misconduct." They sued and the case made its way twice to the U.S. Supreme Court before it was resolved. Using the Sherbert doctrine, the two men argued that Oregon's general drug laws prohibiting religious use of peyote violated their free exercise of religion. Three justices, using the Sherbert Test, agreed. Justice Sandra Day O'Connor, also using the Sherbert Test, disagreed, saying that state's need for uniform enforcement of its drugs codes was sufficiently compelling to supersede the claimants' normal "right" to obtain an exemption. If Oregon was going to be able to effectively fight the war on drugs it needed universal compliance. But the most interesting feature of this case was that five justices, a clear majority, ruled that the Sherbert Test did not apply. In essence the Court held that religious people have to obey the same laws as the rest of us, that the First Amendment did not require exemptions (at least in most cases), and that the Free Exercise Clause was not implicated as long as a law was not animated by religious hostility. Oregon's drug laws were adjudged to be religiously neutral, based on a genuine secular purpose, and thus no longer subject to strict scrutiny. Interestingly, the claimants ended up winning for losing, because soon after this case Oregon passed a law providing exemptions for Native Americans to use small amounts of peyote in supervised ceremonies. Unfortunately, this case did not clear up the confusion of the Sherbert era. Justice Scalia made some comments to the effect that the Sherbert Test would continue to operate in the context of unemployment cases and in hybrid circumstances where the Free Exercise Clause and another unspecified rights were involved. Since the two men were never tried for their drug use, many were unconvinced by his ruling that this was not technically an unemployment case because the two men had violated criminal laws by ingesting the substance. On top of all this, Congress tried to get into the act. In 1994 it passed the Religious Freedom Restoration Act (RFRA), essentially telling the courts to ignore the Smith Rule and to go back to the era of the compelling interest test. Since Congress cannot overrule the Supreme Court on a matter involving the Constitution, the legislators argued that the RFRA simply augmented religious freedom, supplementing the minimal safeguards against discrimination found in the Free Exercise Clause with additional statutory protections. For the few years that the RFRA was in effect, it required religious exemptions in dozens of cases including those giving Sikh children the right to carry knives to school, allowing a Native American to escape prosecution for killing a bald eagle, and excusing an ex-husband from alimony payments, all on religious grounds. But the Act raised fundamental questions about Congress's power to enhance rights. Besides the religious implications, did RFRA violate separation-of-powers doctrine by effectively overruling the Supreme Court? In addition, the national legislature was not only claiming the same authority as states to increase individual liberties beyond the minimal protection provided by the U.S. Constitution; it was telling the states they had to abide by this new heightened protection for religion too. | | Speech and Religious Freedom There have been many occasions when religious freedom and free speech concerns have coincided. While speech can never be protected as much as belief, which is absolute, it generally receives more protection than physical actions, which the state must regulate to some degree in order to preserve social peace and order. The two cases described below raise many questions. Not only do they demonstrate how quickly the Court can change its mind, they also address the question of how religious speech receives Constitutional protection. Moreover, they raise a question about symbolic speech —- speech that involves actions such as the burning of the American flag. Should that kind of speech receive the same protection as verbal speech? Finally, these two cases are not situations of prohibiting something, but require an individual to perform some affirmative act that violates their freedom of conscience. In America the emphasis of most laws is generally about prohibiting people from doing something -— they usually do not require a person to perform some duty. There are exceptions, such as the duty to serve in the military or on a jury when called upon. However, these cases go further. It is one thing to prohibit speech, but can government compel you to advocate a position you do not hold? In Minersville School District v. Gobitis (1940), the Court upheld the expulsion of two students from a public school for not saluting the American flag during the Pledge of Allegiance. The students claimed that as Jehovah's Witnesses their religion forbade them from serving two masters. The Court did not agree. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court reversed itself and allowed a Jehovah's Witness to refrain from saluting the flag without any subsequent punishment. The Court held that while "the State may require teaching by instruction and study in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country," it could not compel students to declare a belief in such principles. The question here is often phrased as one of religious liberty, but shouldn't this right to abstain from swearing to a belief have extended to everyone who did not feel like exhibiting patriotism? Wouldn't it have been far better to view this case as a universal right than one particular to a specific religious viewpoint? Later cases seemed to bear this interpretation out, making enforcement of the speech clause as one concerned with equal treatment of the expression of all ideas, including religious ones. But at the time the case seemed to focus only on religious liberty. |
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| In Boerne v. Floeres (1997) the Supreme Court responded to some of these questions but left others tantalizingly unanswered. In a case involving a Catholic church's attempt to obtain an exemption from a zoning law which prohibited modifications to buildings residing in historic districts, the Court invalidated RFRA on the grounds that Congress lacked the power to enforce its heightened level of protection of religion against the states. It is unclear whether RFRA is still in force against federal agencies, but the ruling essentially returned Free Exercise jurisprudence to the Smith Rule. What does that mean? Well, it's still unclear whether the Smith Rule -- that the Free Exercise Clause does not require exemptions when a generally applicable, religiously-neutral law burdens religion -- applies in all circumstances. In addition, many states still adhere to the Sherbert doctrine or something like it. Some states, for example, do not apply it in the context of prisons, so that a religious claim made by a convict will not have the same force as one made by a law-abiding citizen. Other states seem to offer an even more expansive protection (or privileging) of religious freedom beyond that required by the Sherbert Test. It seems apparent that at the beginning of the republic, hostility was the greatest problem facing the individual who wanted to follow the dictates of conscience. Many powerful interests were concerned with using the apparatus of the law to impose orthodoxy and/or stamp out what they regarded to be apostasy, heresy or non-belief. Because the First Amendment did not apply to the states, protection from religious hostility was often dependent on one's state of residence and that state's laws and constitutional provisions pertaining to this freedom. Oftentimes, these were not adequate to prevent lawful religious discrimination. Today, the pervasiveness of government regulation and the diversity of religious sects make it evident that religious persons are burdened more often by laws which are adopted with no hostile intent. However, it can be argued that modern circumstances make it even more imperative to refrain from giving a carte blanche privilege to religious people to ignore laws that offend their religious sensibilities, because this practice might tend to impart second class citizenship to those who have other strongly-held conscientious beliefs but do not get similar treatment.. Aside from all this confusion and controversy about more expansive protections, the Free Exercise Clause still continues to enforce its core function: striking down religiously-hostile laws that attempt to discriminate against the religious and non-religious alike. In fact, in a case decided only a few years after Smith, the Supreme Court invalidated a statute on precisely those grounds. In City of Hialeah v. Church of Lukumi (1993) the Supreme Court found a law prohibiting the sacrifice of animals for religious reasons to be in violation of the Free Exercise Clause. The Court reasoned that the law was discriminatory because the municipality in question allowed for the killing of animals in many contexts: hunting, trapping, extermination of vermin, animal testing, euthanasia of pets -- but said that a religious rationale for the killing of animals was prohibited. The Court said that the law was, in effect, targeting the reason for killing animals, not the killing itself. Though the decision was unanimous, albeit splintered in reasoning, a few commentators criticized the ruling for ignoring the facts. Law professor Lino Graglia noted that most municipalities place all kinds of restrictions on what kinds of animals can be killed, by what methods and where, and further require the proper disposal of carcasses. The Santeria religion's sacrifices were often considered inhumane and they often left carcasses in public areas. Graglia argued that the ordinance preventing religious sacrifices was little different than one that prohibited dog fights or other forms of objectionable behavior involving animals. Still, even if we discount these objections, the number of cases of actual religious hostility in modern America is relatively rare. The last case to make it to the U.S Supreme Court before Hialeah was McDaniel v. Paty (1978). In this case the Court invalidated a Tennessee law forbidding a member of the clergy of any faith from holding political office. This law not only violated the No Religious Test Ban Clause, which the Supreme Court had extended to the states through the incorporation doctrine, but also violated freedom of religion. Though it didn't seem to be directed towards any religion in particular, the Court held that the challenged provision violated the right to the free exercise of religion because it conditioned that right on the surrender of one's political rights to run for and hold office. In Locke v. Davey (2004) the issue was whether the State of Washington was required to subsidize the scholarship of a student pursuing a theological degree at a religious college. The dissent argued that singling out religious scholarships for exclusion, while funding all other secular scholarships, was tantamount to religious discrimination, and thus a violation of the Free Exercise Clause. While the majority held that there would have been no Establishment Clause violation had the state chosen to fund the religious scholarship, it also said that the state was under no compunction to do so, noting that prohibiting government from funding the ministry had been historically one of the driving forces behind the enactment of that clause. Discrimination would have occurred had the state funded some religious scholarships -- but not others -- violating both the Establishment and Equal Protection clauses of the Constitution. The Court saw no hostility or discriminatory intent in the government's actions and took some pains to distinguish this case from both Hialeah and Rosenberger, while comparing it favorably with Zelman. First, the Zelman case permitted, but did not require, that religious schools could be the beneficiaries of voucher programs. The Hialeah case involved criminal punishment for ritual sacrifice of animals and was discriminatory because the state did not prohibit the killing of animals for secular reasons, such as pest control or food production. In Locke v. Davey there is no punishment, only the withholding of a benefit. Davey is not being prevented from practicing his religion just because the state refuses to fund his religious education. Moreover, government is free to do with its money as it pleases. It could fund science scholarships, but not those benefiting the humanities. Finally, the Court said that the Rosenberger case dealt with the exclusion of religious speech, which was clearly discriminatory under the First Amendment speech clause. The granting of scholarships in Locke v. Davey does not fall under the protection of religious speech or any other provision in that amendment. The state of Free Exercise jurisprudence remains in flux. Because the Smith decision was denounced and supported by conservatives and liberals alike -- Justices Scalia and Stevens both agreed to reject the Sherbert Test -- it is not difficult to predict whether a political change in the nation, such as the Republican takeover of the federal government in 2002, have any effect on adjudication in this area. Given the fundamentalist and extremist religious tone of the former Cocaine-addict President G.W. Bush who invoked Christ for his falsely-justified Iraq attack and mass-murder, he called it a Crusade, exactly as the very Roman Cathoic Christian Hitler said on the eve of his 1939 attack on Poland and while killing Jews and liberal Europeans in Germany and other parts of conquered Europe. One thing is certain, however: there is little chance that jurisprudence in this area of Constitutional law will have a more settled future in the years to come. |
The Bangladesh National Museum at Dhaka, under the Ministry of Culture