Homework: Read/OL 13.2 for Tuesday

FrontPage: See next slide

Consider the following case: A small group of devoted followers of the church

known as WKPOC are charged with the murder of one of their own congregation. In its defense, the group claims the “murder” was part of

a once-a-century ceremony in which a human sacrifice is required.

The group claims that the First Amendment gives them the right to freely practice their religion… therefore, they cannot be convicted of murder since their

religion requires this act to be committed, and since it only concerns members of the church, the government cannot interfere.

Now you be the Supreme Court justice and answer the following question:

How would YOU decide this case? Does the group have a right to practice their religion freely,

or can its members be convicted of murder in this case?

THE FREE EXERCISE CLAUSE

The First Amendment

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition the government

for a redress of grievances.

The “Free Exercise” clauseIntended to: Prevent government from interfering

with an individual’s free exercise of religion

 **Question is: How much freedom does this part

of the 1st amendment give?’

Which of the following should be permitted under the Free

Exercise clause? Use poisonous snakes in religious ceremonies?

No for kids, they can get hurt; adults ok Avoid vaccination due to religious beliefs?

No Refusing to work on Saturdays because of

religious reasons Yes

Exemption from paying certain taxes No

Generally speaking…

In what situations do you think government might have to limit the religious practices of a group?

The Free Exercise Clause and the Supreme Court

In determining when Congress (or the states) can limit the “free exercise” of religion, the Court has generally made a distinction between two things:

Belief -

and

Practice

The Free Exercise Clause and the Supreme Court

Belief: You have an absolute right to believe

anything you want

VS.

Practice: Your religious practices can be limited by

the government.

Free Exercise and the Law There are a few things to consider when

trying to determine when/if a law violates the “free exercise” clause

Laws must remain neutral in what they ask of the public; they must apply equally to everyone, and cannot single out a specific group or religion.

Most controversies involve cases in which a neutral law conflicts with the practices of a particular religious group.

Testing Free Exercise

If a law does prevent a group from practicing its religion, the Government has the BURDEN OF PROOF to show the law should be upheld.

What is the burden of proof? The Gov. must show that the law

which prevents the group from performing the particular practice in question is…

1. Generally applicable – it applies to all persons and groups equally, and does not single out or target the practices of a particular group/religion

2. Reasonable – does the law make sense? Is it fair? In short, is it a good law?

What is the “burden of proof”?

**In short, the government can only prevent a religious practice if it can prove it has a

Compelling governmental interest in preventing the practice

**Compelling governmental

interest = a “darn good reason” for the government to

prevent your activity

Homework: Read/OL 13.3 for ThursdayFrontPage: OL on your desk. Turn in FP

Sheet.

Oregon vs. Smith The Court ruled 6-3 that governments may

prohibit the use of drugs in religious ceremonies.

Judge Antonin Scalia, writing for the majority, stated "the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate."

Many religious groups were alarmed by the ruling. Congress has since passed legislation specifically protecting the rights of Native American churches to use drugs in their ceremonies.

Church of Lukumi Babalu Aye vs. Hialeah

The Supreme Court found that the history of the Hialeah law showed that it specifically targeted the Santeria practice of animal sacrifice while providing numerous allowances for other instances of animal slaughter. The Court held that the ordinances were neither neutral nor generally applicable.

The main failure of the law was that it applied exclusively to the church; they singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their purpose.

Locke vs. DaveyThe Decision In a 7-2 opinion delivered by Chief Justice William Rehnquist,

the Court ruled that a state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors.

"The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the Washington Constitution - which prohibits state money from going to religious instruction - does not violate the free exercise clause.

Nothing in either the scholarship program or the state constitution "suggests an unfair attitude towards religion." States have a "historic and substantial interest" in excluding religious activity from public funding.

Gonzales vs. UDV In a unanimous 8-0 decision, the Court held that the

government had failed to prove a compelling interest in regulating the UDV's use of drugs for religious purposes.

Writing for the Court, Chief Justice John Roberts rejected the government's argument that the Controlled Substances Act could accommodate no exceptions.

On the contrary, Justice Roberts wrote, the Court is required by the RFRA to examine individual religious freedom claims and grant exceptions to generally-applicable laws where no compelling government interest can be shown.