Civil Liberties Part I Freedom of Religion freedom

Civil Liberties, Part I Freedom of Religion --freedom from official establishment of religion --free exercise of religion

Amendment I (1791) 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. Amendment XIV (1868) …nor shall any state deprive any person of life, liberty, or property, without due process of law…

The “Establishment” Clause • Initially, it only meant that the national government could not require citizens to support an officially established church. • In the early nineteenth century, several states still had tax-supported churches within their own borders. • In more recent times, broader meaning.

Issues that have arisen under the “establishment” clause: --Prayer and Bible study in public schools --Religious symbols on public property --Teaching of “creation science” in public school science classes --Federal aid to parochial schools and to students attending parochial schools --Inclusion of religious clubs for student activity money at public universities

Engel v. Vitale (1962) Prayer in use at the time in Hyde Park, NY: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country. ” 6 -1 ruling by Justice Hugo Black

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England seek religious freedom in America. . It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. .

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.

It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others— that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

“It is proper to take alarm at the first experiment on our liberties. . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? ” (James Madison quotation)

Dissent by Justice Potter Stewart: With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. . At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has said, ‘God save the United States and this Honorable Court. ’ Both the Senate and the House of Representatives open their daily Sessions with prayer. Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God.

Other cases with similar outcomes • Abingdon School District v. Schempp (1963): struck down the daily study of ten Bible verses in a public school in Pennsylvania (combined with Murray v. Curlett) • Wallace v. Jaffree (1985): struck down Alabama’s minute of silence for “meditation or voluntary prayer” • Santa Fe School District v. Do (2000): struck down student-led prayer at public school football games

• Government aid to education: The Court allows state and federal governments to provide supplies and services (like school bus transportation) to students of parochial schools as long as the state does not involve itself directly with the operation of these schools. “Lemon Test, ” from Lemon v. Kurtzman, 1971 case not allowing state subsidies for Catholic schools in Rhode Island: Government involvement in anything religious must (1) serve a secular function, (2) not help or hinder a religion, and (3) not entangle the government in a religious entity’s operations. The Court has required public universities, if they provide funding to student clubs from student activity fees, to give equal accommodation to religious clubs.

Religious Symbols on Public Property Lynch v. Donelly (1984), from Pawtucket, Rhode Island Based on the record in this case, the city has a secular purpose for including the creche in its Christmas display and has not impermissibly advanced religion or created an excessive entanglement between religion and government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one faith or religion or to all religions inclusion of the creche in the display effects, is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. (Note the “Lemon test” at work here. )

County of Allegheny v. ACLU (1989): Supreme Court ruled against a nativity scene with the words “Glory to God in the highest” in a public building. Glassroth v. Moore (2002, in federal circuit court of appeals, not the Supreme Court): struck down Alabama Chief Justice Roy Moore’s display of the Ten Commandments in a state courthouse in Montgomery, Alabama, as violation of the “establishment clause. ” (Moore was ultimately removed from the bench after refusing to comply. Where have we heard Roy Moore’s name more recently? ) American Legion v. American Humanist Association (2019): Supreme Court ruled 7 -2 that a World War I memorial with a Latin cross in Bladensburg, Maryland, could stay.

Free Exercise If a law conflicts with a person’s religious beliefs, how will the Supreme Court decide whether to let that law stand?

Does freedom of religion guarantee: --the right to use a hallucinogenic drug as part of rituals, if that drug is illegal? --the right to conduct animal sacrifices as part of rituals? --the right to refuse to salute the flag in school, if one’s religion prohibits it? --the right to engage in snake handling services, honoring Jesus’s line “Ye shall take up serpents”? --the right to limit children’s schooling to the eighth grade if one’s religion opposes too much worldly education? --the right of a baker to refuse to make a customized wedding cake for a same-sex couple?

Two possible rules the Court could apply: 1. The law can stand only if the state can prove its necessity, and if it is narrowly tailored to put the least possible restrictions on religious practices. or 2. The law can stand as long as it is generally applicable, does not single out religious practices for special restrictions, and does not exist for the purpose of restricting religious practices.

Generally speaking, the Supreme Court applies rule 2 rather than rule 1, especially when prohibitive laws are involved. Examples of prohibitive laws: anti-drug laws, Sunday closing laws. The Court has used a broader interpretation (more on the side of the religious group rather than the state) when dealing with compulsory laws. Examples of compulsory laws: flag salute, fighting in war, high school attendance.

Cases involving prohibitive laws • Employment Division, Department of Human Resources of Oregon v. Smith (1990): affirmed a state law prohibiting use of hallucinogenic drugs, without requiring an exception for ritual use of peyote by Navajo Indians. • Church of the Lukumi Babalu Aye v. City of Hialeah (1993): struck down a local ordinance prohibiting animal sacrifices in religious observances.

Employment Division v. Smith (peyote case, 1990) Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon's drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs, the rule to which we have adhered ever since Reynolds [1879 Mormon polygamy case] plainly controls. "Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government. "

Church of the Lukumi Babalu Aye v. City of Hialeah (Florida) (1993, animal sacrifice case) The court considered: 1. Minutes of city council meetings showed that the law against animal sacrifices was passed as a direct response to plans to open a Santeria church in the city. 2. While animal cruelty laws and restrictions on “unnecessary” animal killing are valid, the city had not established that ritual sacrifices were any more “unnecessary” than (for example) hunting and fishing for sport. Court struck down city law against animal sacrifices.

Religious Freedom Restoration Act, passed by Congress in 1993: If a state, or the federal government, passed a law which had the effect of impinging on anybody’s religious practice, the state or federal government had to demonstrate that it had a “compelling governmental interest” and that this law was the “least restrictive means” of furthering that interest. (Passed partly in response to the peyote ruling. ) Supreme Court struck down the provisions applying to states in City of Boernes v. Flores (1997).

City of Boerne v. Flores (1997) Under our Constitution, the Federal Government is one of enumerated powers. . The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the “powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. ”

The Amendment's design and [the enforcement clause] are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's restrictions on the States. Legislation which alters the Free Exercise Clause’s meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is….

Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.

The courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. (In other words: You just do your job, Congress, and we’ll do ours. )

Other “free exercise” issues: The Amish and high school attendance: Wisconsin v. Yoder (1972), required the state to grant a religious exemption to school attendance. Snake handling ceremonies: Swann v. Pack (1975 Tennessee State Supreme Court Case, not appealed in federal court) “Tennessee has the right to guard against the unnecessary creation of widows and orphans. Our state and nation have an interest in having a strong, healthy, robust, taxpaying citizenry capable of self-support and of bearing arms and adding to the resources and reserves of manpower. ”

Sales tax on religious products: Jimmy Swaggart Ministries v. California Board of Equalization (1990), refused to require an exemption to the sales tax. Sorry, Jimmy. Jehovah’s Witnesses and flag salute: West Virginia State Board of Education v. Barnette (1943), required the state to grant a religious exemption from saluting the flag if it conflicted with a religious belief.

Phillips v. Colorado (2018) Jack Phillips, owner of Masterpiece Cakeshop, refused to design a customized wedding cake for a same-sex couple, was called to task by the state’s Commission on Civil Rights. Supreme Court, 7 -2, ruled in Phillips’s favor, but not in a way that resolved the central question. Main point: Civil Rights Commission should have treated Phillips’s religious convictions as a favor to be balanced rather than as a non-factor to be dismissed. Majority opinion by Anthony Kennedy.

“Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. ”

Concurring opinion by Clarence Thomas, addressing merits of case more directly: Views Phillips’s freedom of speech as having been violated. 1. Designing a wedding cake is a form of expression, a form of participation in celebration and approval of the wedding. 2. Stating an unwillingness to design a custom cake for a same-sex couple is protected speech even if it offends. “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. ’ ”

Dissenting opinion by Ruth Bader Ginsburg: 1. A gay couple was denied a good or service that would have been available to a heterosexual couple. 2. The quoted disparaging remarks by commission members do not conclusively show that the commission thoughtlessly dismissed Phillips’ religious convictions in arriving at its decision against him.