Constitutional-Literacy-10

=**Section 10: Free Exercise Clause (Part 2)**=

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.
 * 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.
 * 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."
 * Scalia said the Barnette case ruled how they did because of speech (reading the decision, one can see that’s not true).
 * 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).

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.
 * 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.
 * 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.
 * 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.
 * The Free Exercise Clause is the only right in the Bill of Rights that is under this type of restriction.
 * 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.
 * 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.


 * 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?**


 * Comprehension Question: What was good about the RFRA and negative in the Supreme Court ruling it as unconstitutional?**

How can the Free Exercise Clause be protected today?
 * Some states have RFRA legislation at the state level that guarantees the same protections prior to Smith…but only for state laws.
 * 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.
 * 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.
 * 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.


 * 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."**

**Overall: Summarize the main idea of this section and why it's important.**

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