Religious Freedom

Religious Freedom


♪♪music♪♪ For this session I wanna talk
about the 1st Amendment, but particularly, a particular
clause of the 1st Amendment, the Free Exercise Clause. But before we do that, we have
to realize that that’s not the only clause in the 1st Amendment
that deals with religion, so let me just read those two clauses
together and maybe challenge you to think about how the two
clauses might clash together sometimes. “Congress shall make no law
respecting an establishment of religion, comma, or prohibiting
the free exercise thereof.” They seem like two, and they
are, two distinct… One distinct prohibition and one
right. So government cannot establish a
religion; that’s not the subject of this talk. And government cannot make a law
respecting, ah, or prohibiting the free exercise of your
religion. But how could they potentially
clash together? Well, if government did
establish a religion, or we imagine some scenario in which
one religion was preferred over another for example, um, which
didn’t violate that clause, and there are some jurors out there,
many who imagine something like that to be possible. Well, that would implicate free
exercise issues, potentially. And recognizing some free
exercise rights for some religions as opposed to others,
as we’ll talk about today, might privilege certain religions over
others; for example, if we recognize and give lots of free
exercise rights to a particular form of Christianity but don’t,
say, give the same ones for a particular form of Satanism, we
would implicitly be preferring one over the other. And it’s not that these clash to
the point where they’re impossible to make sense of, but
it is important for us to understand how indeterminate
they are at times. Nevertheless, today’s talk is
about the Free Exercise Clause. The Free Exercise Clause, we
have to understand, er, understand, was not really
litigated on a national, federal level, in the big, interesting
cases that I’ll talk about in the 20th century, during the
19th century. And the simple answer to that
question of why there weren’t many cases at all, I’ve
mentioned one on the federal level, concerning this issue,
What does free exercise mean? What counts as free exercise
that would then be protected by the government? The answer to that is simply
because the Bill of Rights was not incorporated against the
states. Remember, the first word in the
1st Amendment says “Congress shall make no law.” Doesn’t say “South Dakota shall
make no law,” or “Virginia shall make no law;” it says “Congress
shall make no law.” So if Congress wasn’t making any
laws and we didn’t understand this right to be as binding on
the states as it is on the federal government, there’s no
issue. And there’s no cases. We do have some. One is Reynolds vs. the United States in 1875, which
is a federal law banning polygamy. And banning polygamy, again the
question here was, “Polygamy is a free exercise of my religion
as a member of the Church of Latter-Day Saints.” Um, the government, though, does
not recognize that as legitimate, and makes an
important distinction that will continue through free exercise
cases in the future, up until today. And that is the distinction
between thought and action. So the Court says, It’s one
thing to have free exercise of thought about your religion and
your religious beliefs and tenants. Right? It’s another thing though, under
the Constitution, and it’s very important to make this
distinction, between the actions that you would take in support
of or following through with, certain beliefs or tenants. The Court would say you have- by
the way, they use this distinction too in free speech
cases as well; you have the freedom of thought in terms of
exercise. So it would certainly be
unconstitutional for us to have, you know, the Catholic Church
come in and make everybody, force everybody to convert, or
vise versa or something like that. Um, but we have to make a
distinction between freedom of thought as exercise, and free
exercise as action. So, again, that case was upheld
by the Court, and that distinction there- there was
some overriding, more important, compelling purpose that the
federal government had that overrode or trumped the free
exercise action interest of Mormons. I hope that distinction between
thought and action is clear; the Court is not making any kind of
substantive judgment about polygamy as a, as a theoretical
or religious thought that you might have or belief that you
may have; they’re talking about the action that might result
from thought. But as the Supreme Court began
to interpret other provisions, particularly of the 1st
Amendment in the 1920s, Gitlow for example, Gitlow vs. New York incorporates the free
speech clause against the states. It is soon thereafter that the
free exercise and establishment clauses are applied to the
states, and again the idea here, the idea of incorporation is
that certain provisions of the Bill of Rights will apply to the
states and be as binding on them as they are and always have been
binding against the national government. So states cannot establish a
religion; states cannot burden your free exercise of religion. Same question remains though:
what does free exercise mean and how are we to understand it? The case that incorporated the
free exercise clause against the states, a case called Cantwell
vs. Connecticut in 1940, and this is
one of many free exercise cases that involve the Jehovah’s
Witnesses, who are absolutely crucial to the development of
civil liberties in the United States because they are such a
marginalized and controversial group. And what Mr. Cantwell did was,
he and his two sons would walk around New Haven, Connecticut,
where Yale is. They would walk around New Haven
and try and knock on doors and stop people on street corners
and proselytize to them. They would do it in a kind of
interesting and kind of in-your-face way too; they would
actually carry a phonograph with them at the time, and they would
stop somebody, they would say, “Would you like to hear…” Anybody’s witnessed anybody who
has to had tracts and they hand them to you, “Would you like to
hear what I have to say?” And they put, they put the
record on. And this was an anti-religion
message that was being delivered, but particularly an
anti-Catholic message that was being delivered. If anybody’s been to New Haven
you know there’s a large Catholic Italian American
community there. And Mr. Cantwell made the
decision to go take his record player (laughs) into the
Catholic community, and these two men that he was witnessing
to were not happy and there was almost a fight. There was almost a fight. But nevertheless, he was fined
for not getting the right license to go out and do this. He took his case all the way to
the Supreme Court and won, and the Court said you cannot have
some individual administrator, like a major or a city council
member or even some appointed person in the city, in the city
office, deciding who gets a permit and who doesn’t with
terms of religion. And so not only is that statute
unconstitutional, but the Court applies the free exercise clause
to the states. What that then means, though,
it’s important to understand that if we apply a portion of
the Bill of Rights to the states, the Court is gonna give
that strict scrutiny, just as it would always have given its
strict scrutiny on the federal level. So now it becomes really
difficult. Strict scrutiny is the highest
level of scrutiny that a court will give; there has to be a
compelling state interest, and that interest in the way the law
is structured has to be narrowly tailored to achieve a legitimate
end. And that becomes very difficult
then for states for any law that’s challenged as violative
of a fundamental right in the Bill of Rights to pass
Constitutional muster. The application of strict
scrutiny is almost always fatal. In other words, it almost
always, the Court almost always rules laws unconstitutional
that- in which they use the doctrine of strict scrutiny. So, free exercise, strict
scrutiny on a state level. And the next big case that comes
along is in 1963, a case called Sherbert vs. Verner, and this is a case
that’s representative of the problem and really the argument
that will characterize the free exercise debate from the 60s
even up unto today, and that is rather otherwise generally
applicable laws are fatal if they happen to burden your free
exercise rights. The kind of language that the
Court will use will be “significantly burden.” So here, in Sherbert, is one of
the best examples. South Carolina has an
unemployment compensation; this woman is a Seventh Day
Adventist, she works in a mill, in a textile mill, and her
Sabbath day is a Saturday. She can’t work on a Saturday,
and she’s fired. She applies for uninsurance- er,
for unemployment insurance, she’s denied the benefits. Because one of the provisions in
there is that you must actively- you must actively seek and
except work when it’s offered to you. But her Sabbath prevents her
from being qualified, or does not make her attractive at all
to any employer down there who’s running their mill on Saturday,
maybe it’s the biggest day and they want everybody there. So she’s denied unemployment
compensation. Well, the Court… Here’s the real challenge here:
this was not a law passed, and nobody made the argument, that
any member of the South Carolina state legislature or any member
of the state agency that was heading up the unemployment
system there, had any intent whatsoever to deprive anybody of
the free exercise of their religion in this case. It was a generally applicable
law that applied to everyone equally; everybody was held to
the same standards and was bound by the law in the same way in
its provisions and would get its benefits if it followed the
rules and wouldn’t if it didn’t. So here’s the challenge: to what
extent are generally applicable laws… Um, how should we look at them
when they do seem to impact the free exercise of religion? Here, the court said that this
was unconstitutional and that she should get unemployment
compensation. This idea of generally
applicable laws having the potential to violate free
exercise would be reaffirmed just a few years later in the
early 1970s in a case called Wisconsin vs. Yoder involving the Amish. The Amish, or the state of
Wisconsin required that all children go to grade school or
to school up until a certain age. The Amish did not believe,
though, that their children needed to go to high school;
they believed they needed to go to grade and to portions of
middle school, but they didn’t think they needed to learn
anything for their way of life past a certain age. And that age conflicted with the
state’s requirement. Again, the same kind of idea’s
going on; we have an otherwise generally applicable law, nobody
was making the argument that the state of Wisconsin passed this
law to harm the Amish community. It just happened to be the case
that the way that the law operates, it’s harming the Amish
community, at least in their eyes; that it’s abridging their
free exercise rights. The Court sided with the Amish. Um, the Court said that there
should be an exception, and that the state’s interest in
education here was not so compelling that, um… In other words, it wasn’t the
fact that the Amish weren’t sending their kids to school at
all. You know, they were learning, as
the Amish, as the lawyers for Yoder said, the three Rs,
Reading, Writing, and ‘Rithmatic; that’s all we would
need. It’s not that they’re rejecting
that at all, they just have a different idea of what age is
appropriate for education. So, you know, by the late 1970s,
early 1980s, what is the state of free exercise jurisprudence
in the United States? It is: it gets strict scrutiny,
and even generally applicable laws, if they significantly
burden free exercise, can violate the 1st Amendment and
will be found unconstitutional. That is, until 1990, in a very,
very seminal case called Employment Division vs. Smith out of the state of
Oregon. This is a case replete with
ironies. This is a case of- and it’s
similar to Sherbert vs. Verner in the sense that this
was somebody who was, two people who were terminated from their
jobs and denied unemployment compensation. Just happened to be that the two
people who were terminated from their jobs worked at a drug
rehabilitation facility, and they were terminated for the
ingestion of illegal controlled substances. They were American Indians who
ingested peyote. Now, the Oregon state law says,
you know, if you do this, you’re not gonna get the unemployment
benefits. Um. The controversial part of this
case is that- led, interestingly enough, by Justice Scalia, was
that the Court lowered the scrutiny level a little bit for
free exercise cases. This was a generally applicable
law; now, before, in the other two examples that we had seen so
far, even generally applicable laws could run afoul of the free
exercise clause. Scalia and the majority of the
Court went to great lengths to say that generally applicable
laws, if not- if you don’t follow generally applicable laws
and you use the free exercise clause, you will become a law
unto yourself and you will invite anarchy into the system,
into the country. So, again, there was a little
bit of a lowering of the scrutiny level with which the
Court used to resolve these sorts of cases. So, what happens next? Well, Congress gets involved,
and in 1993 passes the Religious Freedom Restoration Act, RFRA,
compelling, saying to the Court, “When you get these cases in the
future, you are not to use anything but strict scrutiny. Do not lower that scrutiny level
that you’re using to resolve these cases.” Well, a case comes up, City of
Boerne v. Flores, about a Catholic church
in the city of Boerne, Texas, that was a historic- that was
deemed a historical landmark. What does the Court say? The Court says, “No, no, no,
Congress; only the Court, only- only we can decide what level of
scrutiny we’re going to use;” this had to do with the 14th
Amendment. It’s through the 14th Amendment
that the Bill of Rights are incorporated against the states. At the same time though… So the Court said, “We’re gonna
make our own, our own judgment.” But that didn’t mean that they
were gutting the protection of free exercise, because in the
very same year, another interesting case, the free- if-
the line of cases in the free exercise clause are fascinating
and fun to read. Uh, the Church of- uh, I’m
sorry. The City of Hialeah vs. the Church of Lukumi Babalu Aye,
outside of Miami. Um, this is a church that
practiced the Santería religion, voodoo. And they had an animal
sacrifice. But the city of Hialeah,
Florida, had passed ordinances that, really, when you look at
them, I mean we don’t have time to read all of them, weren’t,
most of you would agree, weren’t generally applicable. They were ordinances, when you
read them, looked like they were designed particularly to apply
to the Santería religion and the Church of Lukumi Babalu Aye. It talked about killing
chickens, not killing chickens, and things like that. And there was some evidence even
introduced that the city council members who introduced this bill
had them in mind. Now, that runs afoul of the free
exercise clause, the Court still said, even though they had in a
sense, kind of lowered, um, free exercise analysis from strict
scrutiny to something a little lower. And that’s where we really stand
right now. The free exercise clause, um,
and this question of what level of scrutiny it should get,
whether otherwise- the extent to which otherwise generally
applicable laws, when they run afoul of free exercise, should
be understood as maybe a balancing test with state
interests, national or state, um, and this distinction between
thought and action: how far are we going to- or where do we draw
the line between thought and action? Thank you. (applause, music) Freedom 101 is
made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit freedom.ou.edu. (music)

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