History of First Amendment & Atheism, Part 2

Note: I had this almost entirely completed (except for the last two cases) and it was just sitting around in my drafts. When I was fetching a link to the first part, I noticed I had never published this. I hope you enjoy it as much as the first.

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)

We will also see some more consideration as to "what is religion?" This question, though, is covered more in-depth with Establishment/Assistance cases.

Braunfeld v Brown (1961): Burden and "purpose or effect" is added to the Valid Secular Policy test
Background
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."

Decision
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.

Dissent
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
Background
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.

Decision
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."

Key Issues
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?"
Background
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."

Decision
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."

Key Ideas/Concepts
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
Background
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.

Decision
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.

Dissent
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

Key Issues
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
Background
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?)

Decision
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.

Dissent
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.

Key Issues/Concepts
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 :-)
Background
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.

Decision
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 INTERFERES...
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.

Decision
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.

Concurrence
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
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.

Decision
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.

History of First Amendment & Atheism, Part 1

Whether or not atheism is protected under the First Amendment or not is something that was debated in the Supreme Court quite some time ago. Definitions have changed as to what qualifies as a religion, such as not denying the divinity of Jesus to not denying the existence of a Supreme Being.

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)

Most are familiar with the Lemon Test. We actually won't see that here (at least its development and creation) as that comes about in the Establishment cases.

Reynolds v US (1879): Belief-action distinction
Background
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.

Decision
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 opinions

And, 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.

Key Concepts/Issues
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
Background
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.

Decision
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.

Key Concepts/Issues
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!
Background
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.

Decision
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."

Dissent
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.

To summarize:
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.

Key Concepts/Issues
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
Background
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.

Decision
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
Background
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.

Decision
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.

To summarize:
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."


Dissent
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 religion

As 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.

On Free Exercise of Irreligion

Dan, over at Debunking Atheists, made a post last week about how the court has ruled that atheism is a religion and therefore atheism is a religion. This is, obviously, absurd to anyone who has had even the basic introduction to jurisprudence. He made yet another post on it, though, and this time trying to attribute certain things to the "atheist religion" (though, with his methodology everything including libertarianism, philosophy, computer science, and candle stick making is a religion).

He doesn't seem to grasp the point I was trying to make, so I thought that I would expand it into a full blog post. Within a few days I will also make a post on the history of the Supreme Court's jurisprudence on the Free Exercise and Establishment Clause of the First Amendment. Contrary to what Dan believes, this is not the first time the questions of "what is religion" and "does atheism, philosophy, and other irreligious beliefs covered under the protection of the First Amendment." There was, in fact, nothing new in the court case mentioned in his post. You can read my original comments there.


Technical terms vs lay terms
One of the many things I found interesting about Dan and this whole the courts have decided "atheism is a religion" episode is that it's so much like the battle of terms in evolutionary theory with the public. We know the difference between a lay theory and a scientific theory, so I won't go into it here. If you don't know the difference or have made the argument "evolution is just a theory," I encourage you to read the Wikipedia article on theory vs fact, wherein evolution is used as an example.

The same problem is happening here. The Court considers atheism a religion in a legal sense: for the purpose of protection under the First Amendment. The Court also considers corporations persons in a legal sense as well. Does this mean that, since the Supreme Court has ruled that "corporations are persons" (Santa Clara County v. Southern Pacific R. Co.), corporations are literally people as we understand the term in the laity? Obviously, according to Dan, yes we should.


The mentioned case, Kaufman v McCaughtry
What is interesting about the case he mentions in his blog post, Kaufman v McCaughtry, the judge has actually said that atheism is not a religion, as we understand religions. I have emphasized the portions when it discusses that atheism is only going to be considered a religion for the special purpose of protection under the First Amendment.

An inmate retains the right to exercise his religious beliefs in prison. The problem here was that the prison officials did not treat atheism as a "religion," perhaps in keeping with Kaufman's own insistence that it is the antithesis of religion. But whether atheism is a "religion" for First Amendment purpose is a somewhat different question than whether its adherents believe in a supreme being, or attend regular devotional services, or have a sacred Scripture.

[...]

Without venturing too far into the realm of the philosophical, we have suggested in the past that when a person sincerely holds beliefs dealing with issues of "ultimate concern" that for her occupy a "place parallel to that filled by... God in traditionally religious persons," those beliefs represent her religion.

[...]

We have already indicated that atheism may be considered, in this specialized sense, a religion. ("If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.")

[...]

The Supreme Court has recognized atheism as equivalent to a "religion" for purposes of the First Amendment on numerous occasions...

The Establishment Clause itself says only that "Congress shall make no law respecting an establishment of religion," but the Court understands the reference to religion to include what it often calls "nonreligion." In McCreary Country, it described the touchstone of Establishment Clause analysis as "the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion."

[...]

As such, we are satisfied that it qualifies as Kaufman's religion for purposes of the First Amendment claims he is attempting to raise.

And just why was he raising First Amendment claims? Because he had tried to form an atheist study group which would work "to stimulate and promote Freedom of Thought and inquiry concerning religious beliefs, creeds, dogmas, tenets, rituals and practicies." They were denied the official form which they submitted, entitled "Request for New Religious Practice." While they were rejected, actual religions were allowed, including "Christian, Muslim, Buddhist, and Wiccan" groups.

Since atheism is considered a religion for the purpose of protection under the First Amendment, Kaufman's rights were clearly violated. It's a win for baby-eating atheists everywhere.


Example of how America views atheism as a religion?
The real kicker to all this, though, is that Dan used it as an example of how America views atheism as a religion. The prison officials, though, had denied the request as they didn't view atheism as a religion. As such, they subjected it "under the procedure for forming a new inmate activity group."


The Next Time On DisComforting Ignorance...
As I mentioned at the beginning, I will soon make a post on the history of the Supreme Court's jurisprudence on the First Amendment with regard to the Free Exercise and Establishment Clauses. The history is quite interesting, as it starts with a polygamy case. I will focus especially on its treatment of irreligion under the First Amendment.

Impeaching God

Ray writes:

And it’s clear that the atheists’ aggressive agenda is to remove God’s name from schools, from currency, from nature programs, and history books, and at the same time fill movies and television with His name used in blasphemy.

Why is it that leaders of Christianity feel it necessary to create a fictitious War on Christianity and then pin it on atheists? Can you name one battle front of the War on Christianity, where the goal is the elimination of Christianity? No, because it is perhaps better stated as the War on Christian Tyranny. And it is not the atheists who are waging it, but those who seek to maximize liberty and protect the rights of others.

In the constitution of my state, it reads in Article 1, Section 4:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Christians have forbidden atheists from holding public office in Texas. If atheists and social libertarians who seek to protect the inherent equal rights of all citizens try to get the constitution amended to abolish this, would this be yet another battle front in the War on Christianity?

But what of Ray's lists of charges?

Removal of God's name from schools.

Perhaps this is a reference to Court cases regarding school prayer? It is a popular misconception based on ignorance that these somehow prevent students from praying in school. They don't. Santa Fe ISD vs Doe, for a recent example, found that student initiating and leading prayer over the PA system at the football games violated the Establishment Clause. Does that mean that students can't initiate and lead prayers not on the PA system before the games? No, because that wouldn't be a violation. And was it the agenda of the aggressive atheists? No. The suit was brought by a Mormon and a Catholic -- Christians.

Or what about Abington Township vs Schempp which ruled that school-sponsored biblical prayer was unconstitutional or Engel vs Vitale which ruled that a mandatory daily prayer be recited was unconstitutional? And, in Abington the person who brought the suit was a Unitarian. The religion of the parents in Engel are unknown (as far as I know), but they were supported by a number of religious institutions, including the American Jewish Committee.

In all of these landmark Supreme Court cases, the issue has been state-sanctioned prayer, which is where it all fails. No case has been brought about students themselves praying because there is no violation of rights there, and doing so would be a violation of those students' rights which I would then defend. The aim of atheists, secularists, social libertarians, and the other proponents of equal rights is to protect those rights. Having the government in anyway endorse or sponsor religion or religious services is a violation of the First Amendment.

Removal of God's name from currency.

Again, it's a violation of others' rights. If there were to be "In No God We Trust" or "In Allah We Trust" or "In Satan We Trust" is something you would certainly oppose, as would I, as it violates the First Amendment. Why do Christians decide to use their status as the majority to act as tyrants and go around stamping their god's name on currency, courthouse monuments, and everything else that isn't nailed down... and then stamping it on everything else that is nailed down?

Proponents of equal rights do not oppose you doing it in your churches, private homes and businesses, or soapboxes; just keep it there. And again, it isn't just some group of atheists doing it. The history of court cases regarding religion are, overwhelming, brought by theists. That's because they recognize that it is not a question of religion; it is a question of freedom.

Removal of God's name from nature programs.

Cite an instance.

Removal of God's name from history books.

If God did anything historical and of historical importance, he would be in the history books. Historical religious events are covered in history books, which you would know if you bothered to check your baseless assertions with facts and evidence, those pesky things. The Great Awakenings, for example, are covered in any American History and English class which concern themselves with those times.

Fill movies and television with His name used in blasphemy.

Again, the atheist agenda? Firstly, it's not the atheists, or at least not just the atheists. Secondly, it's not an agenda to "fill" them with blasphemy.

agenda (n): a list, plan, outline, or the like, of things to be done, matters to be acted or voted upon, etc.

The use of blasphemy in movies and television are, by definition, agendaless. It is simply something that occurs. I, personally, hear "Christ!," "God dammit!," and "for God's sake!" used more by theists than atheists. I say "holy cow," on occasion, but that isn't because I seek to blaspheme the sanctity of cows; it is merely an cliche exclamation.

Nonetheless, don't pin it on the atheists or their "agenda." I wouldn't call it the Christian agenda to rape children, just because many of those molesters and rapists are pedophile Christian priests.