[4.4.3.] Free Exercise of Religion.

 

Again, the first amendment to the Constitution reads, in part,

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …

 

There are thus two religious freedoms guaranteed in this amendment:

·         freedom from government establishment of religion

·         freedom to exercise one’s religion

 

We have been examining the Establishment Clause; now we turn to our Constitutional guarantee of freedom to exercise religion.

 

Controversies about free exercise do not involve mere religious belief; they involve the actions and behavior that accompany religious beliefs.

 

It is easy to list examples of conduct that stems from religious belief and yet is held to be morally questionable by the majority of those in a given society:

·         polygamy among Mormons

·         smoking marijuana among Rastafarians

·         taking peyote among Native Americans

·         refusing the most advanced medical treatment for their children (Jehovah’s Witnesses, Christian Scientists)

 

The Supreme Court has made a clear distinction between religious belief and religious practice. In Reynolds v. United States (1878), it held that the government limitations on certain religious practices do not violate the first amendment.

 

 

[4.4.3.1.] Employment Division v. Smith (1990)

 

The original plaintiffs in this case, Alfred Smith and Galen Black, were employed by a privately-owned drug rehabilitation organization. They were fired when their employer learned that they had ingested peyote, a hallucinogenic cactus, as part of a ceremony conducted by the Native American Church.

 

Smith and Black then applied for unemployment benefits, they were turned down because of the reason they had been fired. They then brought suit, claiming that the first amendment rights to freedom of religious exercise had been infringed. In effect, they were seeking what’s called an accommodation... an exemption from a given law based on their membership in some class (in this case, the class of members of the Native American Church).

 

At that time, several states had laws allowing members of Native American tribes to possess and use peyote for religious purposes; but Oregon was not one of those states.

 

The Oregon Supreme Court found in favor of the plaintiffs, but the state appealed.

 

The Supreme Court heard the case in 1990 and ruled against Smith and Black.

 

Writing for the majority, Justice Antonin Scalia wrote that a law which prohibits some specific activity when it is performed for religious reasons would definitely be a violation of the constitutional guarantee of free exercise.

 

But the laws in question (those banning possession and use of peyote) do not do this. They ban all uses of peyote, religious or otherwise. And according to the Court, this sort of restriction on one’s activity does not count as a violation of the Free Exercise clause of the first amendment:

 

We have never held that an individual's religious beliefs ...  excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. ...

 

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from ... compulsory military service ... to the payment of taxes ... to health and safety regulation such as manslaughter and child neglect ... compulsory vaccination laws ... drug laws ... and traffic laws ...; to social welfare legislation such as minimum wage laws, ... child labor laws, ... animal cruelty laws, ... environmental protection laws, ... and laws providing for equality of opportunity for the races... The First Amendment's protection of religious liberty does not require this. (283-84)[1]

 

(In 1996, a federal law was passed that prohibited states from preventing Native Americans from possessing and using peyote in their religious rituals; so now its use among Native Americans is legal in all fifty states.[2])

 

 

[4.4.3.2.] More Recent Cases.

 

In 1993, Congress passed the Religious Freedom Restoration Act (1993), which reads in part:

 

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

 

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.[3]

 

In the 1997 ruling City of Boerne v. Flores, the Supreme Court ruled that Congress had exceeded its Constitutional power by enacting RFRA. Roughly, the Court interpreted RFRA as having been an attempt by Congress to enforce the 14th Amendment’s Equal Protection Clause.[4] Thereafter, scholars have interpreted RFRA as still be applicable to federal laws.

 

The Supreme Court’s decision in the case of Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) confirmed this interpretation of RFRA. A small church in New Mexico had imported several gallons of ayahuasa, a traditional South American tea consumed during religious ceremonies. The tea contains of a controlled hallucinogen (dimethyltriptamine, or DMT). The tea was seized by Customs agents, but no one was charged with a crime. Nevertheless, the church sued, claiming that because of RFRA, the federal government could not prohibit them from using the tea. The Court held that the federal government had not succeeded in supporting its claim that it had a “compelling government interest” in prohibiting the importation of that drug, even for religious purposes.[5]

 

In October 2006, Ginnah Muhammad went to small claims court against a car rental company. The judge, Paul Paruk, would not let her testify because her face was covered... Muhammad was wearing a traditional Muslim garment that hid her face. She was given the option of testifying with her face uncovered, but she refused. Judge Paruk then dismissed her case.

 

On Thursday March 29, 2007, Muhammad filed suit in federal court against Judge Paruk, claiming that he had “violated her religious rights and denied her equal access to the courts.”[6]

 

Although the news report says it’s a “veil” that’s at issue, the photos of Muhammad at the courthouse show her wearing a black niqab, which covers the entire body except for the eyes (a burqa covers a woman’s entire body, including her eyes).

 

 

[4.4.3.3.] Stephen Carter, The Culture of Disbelief.

 

Stephen Carter (b.1954)

·         Professor of law at Yale University

·         former clerk for Supreme Court Justice Thurgood Marshall

 

Library Journal’s capsule review of The Culture of Disbelief (1993):

 

Carter ... advances the thesis that American law and politics “trivialize” religion by forcing the religiously faithful to subordinate their personal views to a public faith largely devoid of religion. Carter argues that religious faith can and must be a significant element of our public life, even as we affirm the importance of the separation of church and state. He accepts the place of prayer in education and in developing family values, and he questions accepted public policy in matters such as abortion, euthanasia, and capital punishment. (emphasis added)

 

On Carter’s view, the two religion clauses of the first amendment (i.e., the Establishment and Free Exercise clauses) should be interpreted so that they “help avoid tyranny—that is, to sustain and nurture the religions as independent centers of power, the democratic intermediaries.” (284)

 

Today the question of Constitutional guarantees of religious freedom most frequently arises with regard to free exercise, when practitioners of a given religion ask to be exempted, for religious reasons, from laws that apply to everyone else.

 

But Carter believes that it is essential to recognize that “’laws that apply to everybody else’ often reflect, albeit implicitly, the values and teachings of the nation’s dominant religious traditions.” (284)

 

Carter mentions that a few legal scholars, although only a few, have maintained that granting such accommodations itself counts as a violation of the Establishment Clause, since it extends to some people on the basis of their religion rights that others do not have.

 

The Supreme Court has not followed this line of reasoning. But neither has it been very generous in the religious accommodations it is willing to make (e.g., in the case of Employment Div. v. Smith).

 

Carter believes that the courts have not gone far enough and need to allow more religious accommodations than it has in the past. He argues in support of

 

a wider set of religious exemptions from laws of general application. In no other way can we enable the religions to stand as intermediaries between sovereign and citizen, thus limiting the prospect of majoritarian tyranny; and in no other way can we translate the Founder’s idea of religious freedom in a relatively simple society into a new ideal for a new era, one characterized by a regulatory regime far more intrusive than the Founders could possibly have contemplated. (285)

 

He describes the distinction between accommodation (as described above) and neutrality, “the idea that the state should not favor religion but also should not oppress it.” (286) And he argues that accommodation is much more in line with the Founders’ conception of Free Exercise [see the two closing paragraphs of the excerpt, p.287.]

 

 

Stopping point for Wednesday April 4. No new reading for next time. As an introduction to the subject of legal rights, we’ll discuss Roe vs. Wade.