In this post, I will give the history of Free Exercise jurisprudence in the Supreme Court. This breaks from my usual format and content a bit, but if you find it interesting or informative, let me know. If so, I will post a second entry on the Establishment Clause and its history.
In this post, I will try to cover some of the major decisions as well as lines of thought/tests, including:
- Reynolds v. U.S. (1879)
- Cantwell v. Connecticut (1940)
- Minersville v. Gobitis (1940)
- West Virginia v. Barnette (1943) as it relates to Gobitis
- Prince v. Massachusetts (1944)
- Braunfeld v. Brown (1961)
- Sherbert v. Verner (1963)
- U.S. v. Seeger (1965)
- Welsh v. U.S (1970)
- Wisconsin v. Yoder (1972)
- Employment Division, Department of Human Resources of Oregon v. Smith (1990)
- Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
- Boerne v. Flores (1997)
- Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal et al. (2006)
Reynolds v US (1879): Belief-action distinction
Brought by a Mormon. In 1862, Lincoln signs into law the Morrill Anti-Bigamy Act which outlaws polygamy in territories. At this time the Mormons believed it was the man's right and duty to engage in polygamy and failure to do so would result in damnation.
The aftermath of this decision is interesting (though, immaterial to the case). We get the Edmunds Act which bars Mormons from serving on juries, voting, or holding public office. Another act disincorporates the Church. Idaho, for example, required every voter to take an oath affirming he was not a bigamist or polygamist. Shortly after, the Mormon President Woodruff received a divine revelation that men did not have to engage in polygamy and made it practice to comply with anti-bigamy laws.
There's an interesting link between this case and same-sex marriage.
Justice Waite writes that clearly Congress cannot prohibit the free exercise of religion in the territories. This is where we first consider "what is religion?" Waite writes that the "word religion is not defined in the Constitution" and that we must therefore "ascertain its meaning" by looking at the "history of the times" when the First Amendment was adopted.
Waite does not define religion, though, nor makes any ruling on whether or not Mormonism is a religion. This is the case where the famous "wall of separation" makes its way into the Court. He turns to Jefferson's address to the Danbury Baptist Association:
Believing with you that religion is a matter which lies solely between man and his god; that he owes no account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinionsAnd, with this, we get the monumental belief-action distinction. Waite finds that the legislature is deprived of all regulation over mere opinion, but was free to regulate violations of "social duties or subversive of good order."
He concludes with an original intent argument and polls of jurisdiction by finding that polygamy has always been prohibited, including in the times of adoption, therefore religious guaranty mustn't have been meant to protect it.
One of the ideas explored in this case was that of excusing someone for an action because of their religious beliefs while punishing another who does not have those religious beliefs would render religion superior to the law. This is interesting as we will return to this in the late 90s, especially with Scalia.
Free Exercise Tests
We get, in this decision, our first test. This is the belief-action principle:
Congress cannot regulate opinions, only actions when it: (a) violates social duties, and (b) subverts the good order.
Cantwell v. Connecticut (1940): Valid Secular Policy
Brought by a Jehovah's Witness. Connecticut had passed a law requiring a license for religious solicitation (and charged a government official of determining what was a valid religion for it).
The Jehovah's Witness and his sons were going around in a heavily Catholic neighborhood proselytizing. A Catholic neighbor heard one of their phonographs which called Catholics and other organized religions enemies. The neighbor, reportedly, wanted to assault them, but instead the Jehovah's Witnesses were arrested for disturbing the peace and proselytizing without a permit.
Owen Roberts reiterates the belief-action distinction. He focuses on the action regulation, though, and asks what, why, and how the legislature may regulate action when it relates to a person's exercise of religion.
The legislation must serve some legitimate secular purpose and cannot discriminate among the religions. This introduces the neutrality principle which we will come back to time and time again. The neutrality principle states that, if the legislation is legitimate, it must be general and non-discriminatory; not involving any religious test.
This case incorporates the Free Exercise to the states.
This builds on the belief-action distinction by distinguishing what types of action government is allowed to regulate.
Free Exercise Tests
We get the Valid Secular Policy test, which has the components:
a. Must serve legitimate secular purpose
b. May not discriminate against a particular religion
c. Neutrality: may regulate by GENERAL and NON-DISCRIMINATORY legislation
d. Cannot involve any religious test
Minersville v Gobitis (1940): Pledge of Allegiance is challenged before "under God" was even added!
Brought by a Jehovah's Witness. This was brought by Jehovah's Witnesses who say that the requirement to salute the flag violates their free exercise of religion which prohibits such an action. The children, in elementary school, refused to salute the flag, as instructed by their father. The school district then expelled them. This resulted in expulsions of Jehovah's Witness children and teachers in many parts of the country.
As a sidenote, this is also another case where Catholics were involved with the Jehovah's Witnesses. The overwhelming majority of the school was Catholic, as Minersville was almost entirely Catholic and there was hostility in the community already for Jehovah's Witnesses. There were no punishments for refusing to salute the flag at the time. It wasn't until the Jehovah's Witnesses refused to that they changed it so they could expel them. A local Catholic Church also organized a boycott against the family's store which resulted in economic hardship.
The decision was 8-1 against the Jehovah's Witnesses. Frankfurter's first main point is that any general law passed for secular reasons and enforced neutrally cannot be unconstitutional. His other main point is that the Court should not become the school board for the country -- it should exercise judicial restraint in not overruling local school boards.
What is the valid secular policy? He writes that the Pledge fosters patriotism, which children cannot be excused from. National unity is the basis of national security.
Additionally, he makes the point that the school is supposed to awaken the children's minds to things they aren't getting at home, so long as the "parents are unmolested in their right to counteract by their own persuasiveness."
The dissent by Justice Stone is very important here, as it will shape the next case and cases to come. Stone makes a point that what has happened here has far more than a violation of their right to free speech and right to free exercise of religion, it has coerced these children into expressing a sentiment which they disbelieve and abhor as it deeply violates their religious convictions. The Gobitas family (it is misspelled Gobitis in the Court) had actually offered an altered version of the Pledge which they would gladly participate in.
With this, Stone advocated a balancing approach when government interest competed with individual liberty. He insisted for a reasonable accomodation, whenever possible, so as to preserve the essentials of both. There are ways of securing the legitimate, secular end without infringing on the rights of the individual. Such could have been the case here, instead of mandating the pupils to affirm that which they do not.
He also makes a response to the local school board restraint sentiment that the Constitution is more than just requiring the conviction of the people by preserving the democratic process at all cost; there is a freedom of mind and spirit which must be preserved.
1. These convictions are clearly religious and genuine.
2. Interests of government and protected liberty are competing
3. There are other ways to foster patriotism than to expel students for affirming that which violates their religion. [balancing and less-restrictive]
4. Constitution is the ultimate conviction of people through democratic process; no lesser government may overrule it.
If a general law is passed for secular reasons and enforced even-handedly, it cannot be unconstitutional.
West Virginia v Barnette (1943): The Court reconsiders its gross injustice
The result of the Gobitis case is staggering. Thousands of children are expelled in every state of the country. The Gobitis precedent is actually ignored in some lower courts. Federal Judge John J. Parker actually writes in a case before him that judges are recreant in their duty by denying protection of "rights which we regard as among the most sacred of those protected by constitutional guarantees."
It isn't just the children who were persecuted. Jehovah's Witnesses were painted as Nazi sympathizers. America erupted into a violent mob towards Jehovah's Witnesses. Their places of worship were desecrated and burned. Entire towns of Jehovah's Witnesses were jailed. They were tarred and feathered. They were brutally beaten with all kinds of instruments, such as pipes. They were castrated. They were forced to drink oil. They were jailed on all sorts of charges, including sedition.
West Virginia passes a statute requiring all students and teachers to salute the flag. Failure to do so would result in expulsion and possible prosecution of parents with penalty of imprisonment.
They reconsider this in terms of Free Speech, not Free Exercise. Nonetheless, it is important to Free Exercise. This time, they vote 6-3 to overturn their prior decision. Jackson argues that it is a form of utterance (speech), and requires an affirmation of belief. It therefore violates the First Amendment.
He echoes Stone's dissent, though, by saying that "freedom of mind" is beyond the scope of majority of vote and is protected by the Bill of Rights.
Prince v Massachusetts (1944): Parental authority and child welfare
Brought by a Jehovah's Witness. A Massachusetts law prohibits any male under 12 or any female under 18 from distributing pamphlets or other articles. Any parents who permits or requires their children to do so are liable for fines and imprisonment.
The Jehovah's Witness argument is that the street is, for them, their church and denying them access to it is denying them access for religious purposes. Sarah Prince claims that two liberties are at stake: her right to bring her child up and teach him the tenets and practices of their faith. The other is the child's freedom to observe these.
This is a 5-4 decision against the Jehovah's Witness. The importance of this case, though, lies in the dissent.
Rutledge writes for the majority that freedom of press and religion are subject to "incidental regulation to the slight degree." He argues a balancing approach that the Court must balance between state's interest in welfare of child and that of parent's right to bring up child and child's freedom of conscience and religion. The state has more authority over children and it must protect against "possible harms."
The state's authority is broader over the activities of children than adults, especially in matters of public activities and employment (as this was also a law against employing children to distribute materials). He calls child employment an evil most appropriate for legislation due to its crippling effects and the possible harms they are exposed to on the streets. As such, he concludes that it is a valid state exercise to pass legislation which is appropriately designed to prevent and protect against such evils.
1. Freedom of press and religion subject to "incidental regulation to the slight degree."
2. Must BALANCE between state's interest in welfare of child and that of parent's right to bring up child and child's freedom of conscience and religion
3. State has more authority over children; must protect against "possible harms."
As mentioned, the dissent is most important here as its going to predict future decisions, as I'll show you.
His main points are against Rutledge's arguments of "possible harm" and degree of "evils." These "possible harms" are hypothetical and insufficient justification for such restriction of conscience and religion. Regarding the possible harms from the public streets which were referenced in Rutledge's opinion, Jackson writes:
To the extent that they flow from participation in ordinary commercial activities, these harms are irrelevant to this case. And the bare possibility that such harms might emanate from distribution of religious literature is not, standing alone, sufficient justification for restricting freedom of conscience and religionAs such, parents cannot reasonably be liable because of such vague possibilities. The evils which the state aims to protect against must be "grave, immediate, substantial" to warrant incidental regulation of religion. The "legitimate interest of the state is in grave danger."
He writes that religious freedom is too sacred a right to be restricted, regulated, or prohibited in any degree without convincing evidence that a "legitimate interest of the state is in grave danger":
No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against rights of those who dare to express or practice unorthodox religious beliefs. And the Jehovah's Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure.
Conclusion of Part One
Here we have seen the beginning of Free Exercise jurisprudence. They have focused on a belief-action distinction. Obviously the government cannot in any way regulate belief (something touched on again in the Pledge cases). The court began to consider, though, in what ways can action be regulated? What actions necessitate regulation and what actions do the Constitution allow to be regulated?
Seminal questions. As we've seen, the Court has begun to consider the secular interest component of legislation. After the requirement of a legitimate, secular purpose, the question moves into the competition of government interest vs individual liberty.
Jackson's dissent in this last case indicates where the Court will be going. The next question is how to do this balancing approach. As Jackson argues, the state interest must be in "grave danger" to warrant regulation of Free Exercise.
Looking Forward to Part Two
As mentioned, if you found this interesting, let me know. The next part is where the important decisions come in.
The Court begins to consider the intent of laws (regardless of secular purpose) and the burden (direct or indirect) they pose to religion. We see the emergence of the compelling-interest test/principle and revisit the child protection vs religious faith question.
As Scalia joins the bench, we will see the Court start to move backwards as the principles previously decided are called back into question. We will revisit the idea of an individual's conscience rendering it a law unto itself when religion is rendered superior to the law.
We will also see a decline in Jehovah's Witnesses case (there aren't really many important after this). We will see cases brought by Catholics, Indians, and the Amish. We will also start to see the question of irreligion as protected under Free Exercise.
We will also visit the Conscientious Objector cases and just what constitutes "religion" for purposes of the First Amendment.