In the previous post we looked at the foundational history for First Amendment Jurisprudence with respect to the Free Exercise Clause. This post will conclude this Clause.
The cases here will be discussed in a shorter format to hopefully make the length shorter for you. These cases are more interesting than the previous as they are more prevalent to where the Court is currently at. The previous cases were needed as a background as these build on those (precedents) and there is also a school of thought we will see where Scalia wishes to return to Reynolds.
We left the Court when it was considering a balancing approach when there is an issue of state interest vs individual liberty. Further, as the Prince case concluded on (in the dissent), we will see the Court begin to consider just what sort of interest should trump liberty as we see some new standards emerge. Below are some of the most famous cases in the Court's history.
We will cover here:
- 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)
Braunfeld v Brown (1961): Burden and "purpose or effect" is added to the Valid Secular Policy test
Brought by Jews. Here we have a Pennsylvania statute requiring business to close on Sunday. As Orthodox Jews, though, they had to also be closed on Friday evening and Saturday. This effectively meant they had to be closed a day longer than their competing Christian merchants. These are the so-called "blue laws."
This was a plurality opinion, meaning there was no majority consensus on the opinion. Chief Justice Warren writes for three of the other justices.
Warren cites the Cantwell precedent we saw in the last post and builds on it. He argues:
1. The legislation is constitutional as it is to advance a valid secular goal, despite its indirect burden. The secular purpose was providing for the general welfare a day of rest.
2. Issuing individual exemptions would be too cumbersome upon the state.
You see he notes the valid secular purpose, but also comments on burdens. Although there is an indirect burden to free exercise, it is a general law to advance the State's interest and there is no other way to accomplish its goal by means without such an imposed burden.
Just a quick note on Stewart's dissent as we will see this sentiment discussed in future cases. He dissents because the law "grossly violates" their freedom of religion as it forces an Orthodox Jew to choose between his faith and his economic survival.
Free Exercise Tests
1. He cites Cantwell and builds: If the purpose or effect of law is to discriminate against one or all religions, it is unconstitutional even if the burden is only indirect.
2. If the law is enacted to advance State's valid secular goals, it is valid despite its indirect burden on religion unless the State may accomplish through other means not imposing such a burden.
Sherbet v Verner (1963): The Sherbert Test and genesis of a controversy
Brought by a Seventh-Day Adventist. The plaintiff's employer switched to a six-a-day week which required her to work on the Sabbath. She refused and was fired. When she applied for worker's compensation, she was denied.
It's a 6-3 decision and Brennan is able to write his dissent from Braunfeld into the majority opinion here:
1. An indirect burden is definitely imposed: it forces her to choose between violating religion and forfeiting unemployment benefits. The "choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship."
2. There are no alternative forms of regulation which could combat abuses without infringing on freedom of religion.
We see a Jackson's dissent in Prince appearing here. If you remember, Jackson argued that only the gravest of abuses and danger to the state interest can warrant any degree of limitation on an individual's free exercise of religion.
Brennan argues that in such a sensitive area as religious freedom, "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation." In addition to showing some "compelling state interest," "it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights."
Should government have to prove higher level of interest if it criminalizes behavior as opposed to affecting a person economically?
Free Exercise Tests
This adds on to the Valid Secular Policy:
Compelling Interest Test
a. There must be some compelling state interest for legislation (only against the "gravest abuses" to justify infringement).
b. It must be by the least restrictive means possible.
US v Seeger (1965): The first Conscientious Objector case and "what is religion?"
Brought by a Quaker. He was conscripted into the army but denied conscientious-objector status as his religious beliefs did not constitute "belief in a Supreme being."
Religion does not require belief in a God; it only requires something that is "sincere and meaningful occupies a place in the life of its possessor parallel to orthodox belief in God."
Decision in Welsh v US (1970)
Religious exemption would include moral and ethical beliefs if they are "as sincerely held as traditionally defined religious beliefs."
Conscientious objectors cannot be reserved for those who profess compliance with moral directives from a supreme being. The only thing important is that the belief is "sincere and meaningful" and occupies a place "parallel" to religion.
Wisconsin v Yoder (1972): Foundation for controversies
Brought by the Amish. This is, perhaps, the most well known First Amendment case among the general public. We don't see any new test out of here, but it will be the battling ground of a controversy to come among the justices.
The Amish withdrew their children from school after eighth grade, which violated Wisconsin's compulsory education law. The Amish made an argument that such compulsory education violated their free exercise.
Burger writes for the unanimous majority (Douglas, though, files a partial dissent below). They rule that compulsory education laws violate the Amish's free exercise of religion, arguing:
1. Mandatory public education compels the parents to fundamentally violate their religious beliefs.
2. ...Even though the state has a compelling interest to do so.
3. This is not at odds with Prince as Prince concerned itself with protecting children from grave evils, not extending children a benefit. This lays in his reasoning that this case is "not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare."
4. Amish practice is rooted in religious conviction, not just a personal preference.
On the last point, the Court was considering whether the Amish lifestyle was truly part of their religious beliefs. If it is not inseparable, then it is really just philosophical and therefore does not qualify for protection under the First Amendment. He notes this with a reference to Thoreau: Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.
1. Violates Seeger as Seeger stated philosophical beliefs are protected
2. The emphasis on the Amish's good law and order is irrelevant. (One of the points was that if the children weren't in school, they were receiving a good life/upbringing at home.)
3. The consideration, therefore, is the future of the student: he will be forever harnessed to the Amish way of life <- This is an application of Sherbert
1. Protection of children vs religious faith
2. Difference between philosophical/personal preference and rooted in faith
As you can see here, we're starting to move away from the principles set forth in Sherbert. This continues to happen and, once we move into the Rehnquist Court, we will see us getting further away. Keep this in mind for the next case, which is very important.
Employment Division, Oregon Department of Human Resources v. Smith (1990): Scalia rolls back Free Exercise jurisprudence
Brought by an American Indian of a Native American Church. Smith, who ironically worked at a drug rehabilitation center, was fired for ingesting peyote. It was ingested as part of a religious ceremony, although possession of peyote was a crime. He applied for and was denied unemployment benefits, due to "work-related misconduct." It was for this that Smith sued. His claim is that the state denying the benefits was a violation of his Free Exercise since he had been fired due to religious reasons. (Remind you of Sherbet v Verner?)
Scalia writes the majority opinion here and we are going to see some shifting in the Court. We'll also be revisiting some of those Key Issues/Concepts covered in previous cases, which you should look back at:
1. The criminal law is not specifically directed towards religious practice and only incidentally forbids performance in accordance with religious belief.
2. Previous cases were based on a hybrid of religion and another (seems to relegate religion to second-rung status). He uses this fact to get around the precedents. Remember that previous cases often were a hybrid of religion and speech.
3. Invalidating laws based on an individual's conscience makes it a law unto himself.
4. REYNOLDS sets general rule and SHERBERT/YODER narrow exceptions
We have now completely moved away from the standards and principles set forth in Sherbert and actually revives Reynolds. He has now set forth a new standard which contrasts with it (outlined at the end of this case below).
If you can tell from this brief summary, Scalia dislikes the balancing approach when it comes to anything, as was the foundation of the precedents.
Technically, O'Connor is concurring with the judgment, but her opinion here is a dissent. She is very disturbed by the opinion put forth by Scalia and its disregard for the precedents of Braunfeld's severest burden and Sherbert's compelling-interest.
1. Cites Braunfeld: Making criminal an individual's religiously motivated conduct is the severest burden possible.
2. Results in choosing between religious principle and facing criminal prosecution.
3. Cites WEST BARNETTE: purpose of Bill of Rights is to protect religion against such laws, so indirect or direct burdens do matter
4. SHERBERT/YODER are the binding rules; overruled Reynolds.
1. Government's ability to enforce general legislation prohibiting socially harmful conduct cannot depend on measuring the effect of it.
2. Democratic rule vs Bill of Rights for minorities
3. Valid, neutral law of general applicability vs Compelling interest and less restrictive means.
Free Exercise Tests
THE SMITH TEST:
1. Freedom of religion does not relieve individual of complying with a VALID and neutral law of general applicability
2. When facing criminal punishments, religious believers cannot be protected by Free Exercise Clause as long as the legislation was not meant to penalize the religion specifically.
There's a lot more to this case and could go on for pages as it's quite a fascinating discussion of balancing approaches, burden and effect, Bill of Rights vs majoritarian rule, stare decisis, etc.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993): Just for fun :-)
Brought by Santerians. This is rather interesting. The City learned that a church was going to locate there which practiced Santeria (ritual animal sacrifice). As such, the city passed a law that prohibited the unnecessary killing of animals, private or public, for anything other than a primary purpose of food consumption. They filed suit. The lower courts upheld the law with the new Smith Test.
While the lower courts upheld the law under the Smith Test -- as there was a legitimate government interest for it -- the Supreme Court did not. Rather, it found that the laws were not neutral and "suppressed much more religious conduct than necessary to achieve their stated ends." As such, Kennedy subjected it to the compelling-interest standard and, with a vote of 9-0, ruled the law unconstitutional.
Congress is not at all happy with the Smith Test. The Compelling Interest test, established in Sherbert, resulted in an imbalance towards more liberty creating a higher standard for government to meet in order to infringe on Free Exercise rights. The Smith Test, though, shifts that imbalance to the government, as you can tell by the parameters, and lowers the standard.
Congress does not like this and enacts the Religious Freedom Restoration Act (RFRA) in 1993 nearly unanimously (only three votes against in the Senate). It states that whenever neutral laws burden the individuals right to Free Exercise, the courts must apply the compelling-interest test:
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless the government can show that the burden] 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling government interest.This act, meant to roll back Scalia's rollback of jurisprudence on Free Exercise to expand religious freedom was enacted by that godless liberal, Bill Clinton. With this, it aimed to undo Smith and go back to Sherbert/Yoder, as you'll remember from O'Conner and Scalia's argument in the Smith decision.
City of Boerne v. Flores (1997): The Supreme Court asserts itself over Congress
A Catholic Archbishop applied for a building permit to enlarge his Church's building. It was denied due to local zoning ordinances which prohibited such construction for any building in the area. The suit was brought alleging that it burdened his ability to act on his beliefs, as permitted by the RFRA.
Stevens, writing for the majority, struck down the RFRA as unconstitutional and ruled in favor of the City of Boerne in holding with the Smith Test. Kennedy argued that the RFRA is designed to control "cases and controversies," which is the power of the judiciary and no the legislative. This signaled the end to any further Congressional action (short of an Amendment) to overturn Smith.
Just a quick concurrence by Stevens of applying the First Amendment to the RFRA. He held that the RFRA gives preference to religion over irreligion as it respects an establishment of religion. Therefore, it's unconstitutional via the previous standards we have observed.
O'Connor dissent wasn't specifically over the constitutionality of RFRA. Instead, her argument was that Smith was wrongly decided and is not the correct understanding of the Free Exercise Clause. By correcting Smith it would simultaneously but the Court's First Amendment jurisprudence back on track, thereby rendering RFRA moot.
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal et al. (2006): Boerne limited
A UDV church in NM had some of their tea seized (which contained a Schedule I substance) and sued for an injunction.
Roberts, writing for a unanimous court, upheld the applicability of the RFRA to the federal government, as it had only been ruled in Boerne that Congress had exceeded its power to enforce the Fourteenth Amendment with RFRA. Obviously, the federal government has the right to restrict the degree to which its own officials may restrict the free exercise of religion. Roberts found that the government had failed to apply the strict scrutiny RFRA demands with its actions: the federal government failed to show a compelling-interest.
Looking Forward to Establishment Cases?
This concludes the investigation of the Free Exercise cases of the Supreme Court's jurisprudence. We have visited the Conscientious Objector cases where it was considered what, exactly, constitutes a religion under the First Amendment.
As Scalia joined the bench, we say a step back to the ideas in Reynolds. The Court returned to the idea of exceptions for religions rendering one's conscience a law unto itself.
The governing precedence for Free Exercise cases is Smith where Scalia held that Reynolds set the general rule and Sherbert/Yoder set the narrow exceptions. This remains counter to the prevailing idea before this case that, as O'Connor had argued, Sherbert/Yoder are the binding rules and that they overruled Reynolds.
If you enjoyed this walkthrough of the Free Exercise Clause, along with the first part, let me know and I can continue on with the Establishment Clause. The Establishment Clause relates much more with atheism as that contains all the monuments, displays, and school prayer cases. The Free Exercise cases had to be done first as the Establishment ones build on these ideas.