Freedom of Religion

Early Issues: Religion in America

• Religion motivated most Western Europeans to come here.

• Colonists had bitter memories of established religions and persecution – Anglicans/Puritans.

• The Constitution mentions religion only once – Article VI: No religious tests required as a qualification.

Religion in America: The Founding

• As a key to the Bill of Rights promised to states, religious freedom was included.

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

• These clauses were meant to stop persecution that had arisen during the early years of the country.

• This was an experiment because no other nation had total religious freedom.

Defining Religion: The Nineteenth Century

• Reynolds v. U.S. (1879): Polygamy was not supported at the nation’s birth and therefore may be outlawed.

• More generally: Religions not supported by the framers may be regulated.

• BELIEF/ACTION Dichotomy.• Davis v. Beason (1890): Reinforces Reynolds.• Ties religion to belief in God.• Permits regulation of religious practices that are

considered immoral.

Defining Religion: The Twentieth Century

• U.S. v. Ballard (1944): Sincerity of beliefs, rather than the truth, is the proper standard for defining religion.

• U.S. v. Seeger (1965): Beliefs only need to be parallel to a belief in God (any supreme being).

• Welsh v. U.S. (1970): Morality and ethics are the key.

Free Exercise of Religion

• Literal Interpretation: You can do ANYTHING you want to do.

• History does not bear out this interpretation (Jefferson)!

• The Court’s actions do not support this interpretation.

Free Exercise of Religion

• First real debate was whether actions can be regulated.

• Remember Reynolds: Congress can NEVER regulate opinions or thoughts, but CAN regulate actions that violate the social order.

• Upheld religious action in Pierce v. Society of Sisters (1925).

Cantwell v. Connecticut (1940)

• Question: Does requiring a person to obtain a certificate in order to solicit support for their religious views violate the free exercise clause?

• Yes. Unanimously.

• Neutral laws are fine, but in this case the law did not meet this standard.

Valid Secular Policy Test

• Minersville School District v. Gobitis (1940): The state had a legitimate secular reason for flag salutes.

• West Virginia State Board v. Barnette (1943): Overruled Gobitis. WHY?

• Huge criticism of Gobitis in legal community.• State courts ignored Gobitis on a regular basis.• It was a reaction to fascism (1940 to 1943).• The mass persecution of Jehovah’s Witnesses.• NOTE: The Court did not get rid of the

valid secular policy test.

Valid Secular Policy Test

• Prince v. Massachusetts (1940): States may regulate religious practices that may be harmful to kids.

• Labor laws are a valid secular policy.

Downfall of Valid Secular Policy Test

• Braunfeld v. Brown (1961): Laws that burden religion must meet two criteria:

1. They must have an important, neutral, secular end.

2. They must use the least restrictive means.

• Potter Stewart: This is a “cruel choice.”

Sherbert v. Verner (1963)

• Question: May a state deny unemployment benefits to persons whose religious beliefs preclude them from working in Saturdays?

• No. 7-2 vote.

• States must have a compelling interest to regulate on this subject. There is no compelling reason for this regulation.

New Test: Balancing (in theory)

• Must have a COMPELLING STATE INTEREST to regulate religious actions.

• Must use LEAST RESTRICTIVE MEANS.

• Neutral laws may be struck down too!

• Q: Will this always favor the individual?

Wisconsin v. Yoder (1971)

• Question: Do compulsory education laws that force the Amish to send their children to school violate the free speech clause through the Fourteenth Amendment?

• Yes. 6-1 vote.

• The state here would gravely endanger, if not destroy, Yoder’s religious beliefs.

The Compelling Interest Standard

• Thomas v. Review Board of Indiana Employment Security Division (1981): Similar choice as in Sherbert, and the Court ruled in the same way.

• Bob Jones University v. U.S. (1983): Government interest in combating racism. And the policy does not stop BJU from practicing its religion.

• Bob Jones suggests the Sherbert standard may be in jeopardy.

Downfall of the Compelling Interest Standard

• U.S. v. Lee (1982): Government has a compelling interest in collecting Social Security taxes.

• Q: Why is this different from Yoder?

• Goldman v. Weinberger (1986): The military has a special interest in subordinating individual interests for discipline.

Q: Is this a break in precedent or a special case?

• Point: Congress passed a law allowing “neutral and conservative” clothing.

Rehnquist Court and the Sherbert Test

• Hobbie v. Unemployment Appeals Commission of Florida (1987): Compelling interest test applied as it was in Sherbert. Brennan uses the term STRICT SCRUTINY!

• After Hobbie the Rehnquist Court began to chip away at the compelling interest test and allow more government intervention:

• Shabazz• Lyng• Hernandez• Swaggart

Employment Division of Oregon v. Smith (1990)

• Question: May a state deny unemployment benefits to those who lost their jobs because they violated a general law, even when the action taken was based on religious convictions?

• Yes. 6-3 vote.

• While a nondiscriminatory religious practice exemption is permitted, it is not constitutionally required.

The Aftermath of Smith

• Court has come full circle back to Reynolds.

• Incidental Impact Test – the government may regulate actions!

• Church of the Lukumi Babalu v. City of Hialeah (1993): Court could not agree on the standard to use, but agreed the city violated the church’s free exercise.

• Why was Lukumi Babalu unanimous and Smith so divided?

The Aftermath of Smith

• Congress passes RFRA.

• Codified the compelling interest test from Sherbert.

• Challenged in City of Boerne.

City of Boerne v. Flores (1997)

• Does the RFRA impermissibly interfere with local governmental power to decide how to balance individual rights and governmental authority?

• Yes. 6-3 vote.

• The power to interpret the Constitution lies with the judiciary. The RFRA tries to control our cases and controversies, which is beyond congressional power.

Final Overview of Religious Freedom Doctrine

1. Reynolds/Davis (New or unconventional religions not protected)

2. Cantwell (Belief/Action Dichotomy)3. Sherbert (Compelling Interest/Strict

Scrutiny)4. Smith/City of Boerne (Incidental

Impact)