Constitutional-Literacy-9

  The Free Exercise Clause is also part of the 1st amendment saying that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This clause covers the issues of how government can regulate or interfere with one's right to practice religious beliefs. Right wing and left wing ideologies usually agree with free exercise, while bureaucrats want to regulate religious beliefs.
 * Section 9: Free Exercise Clause **

 State governments as well as the federal government each have laws against discrimination in hiring. However, the Catholic Church requires the priest to be a male. Could this be against anti-discrimination laws since women would be denied the job as a priest based on gender? The church would say the law as applied is unconstitutional (not that the law is completely unconstitutional on its face). In Cantwell v. Connecticut 1940 two Jehovah Witnesses went through a Catholic neighborhood playing anti-Catholic messages. They were arrested for disturbing the peace and not having a permit. The court ruling was in favor of the Jehovah Witnesses. The Supreme Court announced important ideas. The court ruled that the religion clauses bound state governments as well. Religious belief is absolutely protected. However, religious conduct can be regulated. It's recognized that the Free Exercise Clause is not absolute - you can't harm yourself or others and cite religion as the reason. The Founding Fathers didn't want anyone harming others in the name of religious activity. There's never a free exercise issue unless a religious act violates the law.  **Comprehension Question: How did the ruling of the Cantwell case impact the states?** **Comprehension Question: What did the Supreme Court in Cantwell say was absolute in terms of protection?**

The government should never regulate religious actions just because the acts are religious - laws must be general in application and neutral on their face with religion. While some criminal and civil laws might be able to override a religious freedom claim, not all criminal and civil laws ought to override religious freedom. Where did the Founders draw the line? This question has never been addressed by the Supreme Court. In the Lemon case, the Supreme Court simply made up their own rule. The best evidence comes from religious freedom advocates at Brown University in 1774, which at the time was a great Baptist institution. Barnabus Binney said “//By religious liberty, we mean a free uncontrolled liberty of thinking, worshipping, and acting, in all religious matters as we please, provided thereby we are not prejudicial to the state. By this we mean that the state may punish those who pursue immorality such as unlawful disobedience to superiors, murder, adultery, theft, perjury, and those overt acts that are injurious to our fellow creatures of society//.” Advocates of religious freedom claim that religious adherents could do anything they wished – except to pursue immorality à  immorality had a specific definition of God’s moral law of freedom will never violate God’s moral law of responsibility – therefore one can’t use religious freedom to violate laws.What has the Supreme Court done? Starting with the Cantwell Case, they began balancing tests. The problem is it is subjective and the Supreme Court has too much power to determine which is more important. In the court case Sherbert v. Verner, the Supreme Court developed a four step balancing test. (1) Was the person pursuing a sincere religious belief? (2) Did the law impose a substantial burden on the exercise of one's religious beliefs? (3) Does the law fulfill a compelling governmental interest? (4) Could this interest be accomplished in a less restrictive fashion?**Comprehension Question: What was set up by the Sherbert v. Verner case? How does this give the courts more power?**  Examples:   <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Everything was radically reordered in 1990 when an opinion was written by Antonin Scalia, who is usually along with the Founders intent. <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">**Discussion Question: What are some of the differences between the goals of the Establishment Clause and the goals of the Free Exercise Clause? Why are both clauses important?** <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">**Discussion Question: "Religious freedom should allow people to do anything they want except - - - - - -." What do you think should be the principled rule that finishes this statement?** <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;"> <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Justice Scalia's opinion in the Smith Case made free exercise definitions that aren't correct. Scalia's decision has altered the Free Exercise Clause. Scalia usually rules correctly on the intent of the Founding Fathers, but not on this one. In 1990, the Supreme Court ruled in Employment Divisions v. Smith in which two Native Americans were employed as drug counselors. They were taking peyote, an illegal drug, and were fired even though they were taking it for a religious ceremony. A precedent had been set in Sherbert v. Verner in which a Seventh Day Adventist was allowed to have unemployment rather than work on Saturday saying that the state law denying her unemployment benefits kept her from free exercise of her faith. In Thomas v. Review Board a Jehovah's Witness quit because his job required him to make materials that were being used to make war goods. both cases came up because their state laws allowed them to collect unemployment if they quit their job due to a "good cause." The Supreme Court held in both cases that benefits couldn't be denied due to religious grounds. The difference in the Smith case is that it involved a criminal violation even though there was religious activity. Can Native Americans take illegal drugs for ceremonial purposes? In the Sherbert four part test (from part 1), the Natives should've lost just look at that test. The Natives did lose, but Scalia's reason greatly changed the Free Exercise Clause.**Comprehension Question: What is the basic rule from Employment Divisions v. Smith?**The reasoning of the result is what is important. Scalia is usually a hero to social conservatives (the group that is the most outspoken in support of the free exercise of religion), but his theory was shocking. No one argued that the Supreme Court should adopt his theory - he developed it on his own and it would change future cases. The Supreme Court could've just ruled against the Natives with the reasoning that their actions were illegal and that illegal activity was not the original intent of the Free Exercise Clause. However, Scalia's opinion did much more than this.There were no original intent materials or justification, just the rule. The Free Exercise Clause cannot be used to challenge a neutral law of general applicability. For example, all teachers required to be certified is a neutral law - if a person's religion leads them to want to home school, then the Scalia decision wouldn't allow that family to challenge such a law since home school students generally aren't taught by state certified teachers. Scalia wrote "We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” However, there were past cases. <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Nevertheless, Scalia’s writing for the majority opinion has made it clear that no one can seek an exemption from a law for religious reasons in terms of the Free Exercise Clause. <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">**Comprehension Question: How did Justice Scalia's opinion alter the Free Exercise Clause and why is this a danger in terms of the free exercise of religion?** <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">**Comprehension Question: What was good about the RFRA and negative in the Supreme Court ruling it as unconstitutional?**
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Was the person pursuing a sincere religious belief? The only time this issue arises is when a prisoner finds a belief that would change how the prisoner is treated in prison. There was one case of a Jehovah’s Witness in a factory making war goods. Religious beliefs are constitutionally protected and that worker couldn't be fired for not making the war goods.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Did the law impose a substantial burden on the exercise of one’s religious beliefs? The Supreme Court approached this differently than originally intended. In one case when the Amish failed to send children to school after 8th grade, they were prosecuted. It should’ve been sufficient for the Amish to point out their faith and claimed they’d be putting the children’s souls at risk by sending them to a public (secular) school. The Supreme Court looking into the belief as subjective. Usually pointing out one’s belief will win this step, then move to the third step.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Does the law fulfill a compelling governmental interest? Compelling interest test – two separate inquiries – How important is the goal of the government's law or program? The standard is that the government's goal must be “an interest of the highest order.” Does the government program actually achieve the stated government interest? For example when home schooling was an issue – if a state passed a law that said all teachers had to be certified…their compelling interest was to make sure all children were literate and self-sufficient, but another question is that does having ONLY a certified teacher reach this goal? That government program didn’t need to be there to achieve that goal.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Could this interest be accomplished in a less restrictive fashion? Example – Amish buggies – refused to put lights on – but can’t have them at night not being seen – less restrictive alternative allowed reflective tape and still met goal.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Minersville School District v. Gobitis in 1940 allowed schools to expel Jehovah’s Witnesses for not taking part in the flag salute. Violence erupted against J.W.’s with some justifying saying the Supreme Court said they were traitors.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">West Virginia Board of Education v. Barnette 1942 overturned the previous decision…cannot force J.W.’s to do flag salute - Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Scalia said the Barnette case ruled how they did because of speech (reading the decision, one can see that’s not true).
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">There were past cases that ruled on Free Exercise – Murdock v. Pennsylvania and Wisconsin v. Yoder (so Scalia was wrong when saying there weren’t past decisions).
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Example – a number of states and local governments have adopted homosexual rights laws forbidding employers from discriminating based on a person’s sexual orientation. A church in San Francisco was in court due to firing the organist on the grounds of the organist being a homosexual. The church won…this was __before__ the Smith case. This case would be different after Smith. After the Smith case, Scalia's reasoning, the church wouldn’t be able to argue for an exemption to the law based on religious grounds.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Serving alcohol to minors is illegal. Churches that serve wine in communion have been exempted on religious grounds. Technically, after the Smith Case, if charges were brought up against clergy that did this, the Supreme Court would rule against the clergy since the Free Exercise Clause is not grounds for exemption to a law. Now, no local authority is going to be foolish enough (as of now anyways] to challenge this practice in a church or go after a church, but S-Ps are out there). The Supreme Court says that states could punish people for religious acts that violate a law. States don’t have to and can write state codes that put in exemptions.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">What happens if a woman applies to be a pastor or priest in a church that holds the position for men? The church would lose after the Smith Case for discrimination since they can’t use Free Exercise Clause.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">The Free Exercise Clause is the only right in the Bill of Rights that is under this type of restriction.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Religious Freedom Restoration Act in 1993 – coalition of lawmakers in response to the Smith Case. Religious groups from all factions and even the ACLU were all represented and on board. This act protected religious freedom using the Sherbert 4 part test to rule on religious freedom. It passed the House and Senate and was signed by President Clinton.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Victory for religious freedom was short lived because in 1997, the Supreme Court ruled that the RFRA was unconstitutional in Boerne v. Flores saying it was the singular duty of the Supreme Court to interpret laws, not the Congress even though the law didn’t interpret, it merely set guidelines for the Free Exercise Clause.

<span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">How can the Free Exercise Clause be protected today? <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">**Discussion Question: What are some ways that the "political correctness" movement and the Secular-Progressive movement violates the following statement from West Virginia v. Barnette? "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."** **<span style="color: #000000; font-family: "Times New Roman","serif"; font-size: 13.33px;">Overall: Summarize the main idea of this section and why it's important. ** <span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;"> Back to the Constitutional Literacy main page
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">Some states have RFRA legislation at the state level that guarantees the same protections prior to Smith…but only for state laws.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">It's possible to argue on free speech rather than free exercise…Scalia did develop the “Hybrid Rights Theory” that rights could be combined if violated…so one could argue rights are violated in terms of a combination of free speech and free exercise of religion. Lower courts haven’t been friendly with the Hybrid Rights Theory by rejecting it.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">A 2006 decision in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal said RFRA can be applied to the Federal government, but not the states. The 4 part test can be used for Federal laws.
 * <span style="color: #000000; font-family: "Arial","sans-serif"; font-size: 13.33px;">In 2012, Marco Rubio (R-FL) introduced RFRA legislation. It is currently in committee and probably will not be brought out of committee on partisan grounds.