Laws trump illegal or “dangerous” religious actions

Laws trump illegal or “dangerous” religious actions

• Laws trump illegal or “dangerous” religious actions

• But are there situations where free exercise claims should win out over secular laws?

• Should a religious group be given an “exemption” from a law or policy that applies to everyone else?

• If so, when? And how do we balance the competing claims of enforcing the laws and protecting religious freedom?

Compelling interest test established in Sherbert v. Verner (1963)

• Compelling interest test established in Sherbert v. Verner (1963)

• Supreme Court standard of balancing free exercise claims with national and state laws

• Workable (if imperfect) means by which to balance these conflicting goals

Adell Sherbert fired from textile mill (Spartanburg, SC) after her schedule was changed to include working on Saturdays

• Adell Sherbert fired from textile mill (Spartanburg, SC) after her schedule was changed to include working on Saturdays

• Seventh Day Adventist church requires “rest” on Saturday Sabbath

• Filed for unemployment compensation after no new job (all other mills had switched to six-day work week)

• South Carolina rejected her claim

• Sherbert argued her free exercise right was denied – she had to choose between her job and her religious beliefs

• Supreme Court ruled that state should provide unemployment in this case – because to deny it is to restrict Sherbert’s free exercise of religion

• Created new “compelling interest” standard – to help determine when there should be a free exercise exemption to laws or policies

Does the government law or policy create an 'infringement' on a constitutional right to practice religion?

• Does the government law or policy create an 'infringement' on a constitutional right to practice religion?

• Does the government have a compelling state interest which justifies burdening the religious activity in question?

• If a compelling interest does exist, are there any alternative means by which the government can achieve its goal and thus not burden religious action?

1963-1990: Free exercise claimants lost their cases on a number of occasions (50 % of the time ??)

• 1963-1990: Free exercise claimants lost their cases on a number of occasions (50 % of the time ??)

U.S. v. Seeger (1965) Individual can receive exemption from military draft because of vague religious belief in Supreme Being

• U.S. v. Seeger (1965) Individual can receive exemption from military draft because of vague religious belief in Supreme Being

• Wisconsin v. Yoder (1972) Amish children do not have to attend school beyond 14 years old despite state law for attendance until 16

• Wooley v. Maynard (1977) Jehovah’s Witnesses do not have to display required motto “Live Free or Die” on their automobile license plates

• Others …

United States v . Lee (1982) Amish have to pay social security taxes for employees

• United States v . Lee (1982) Amish have to pay social security taxes for employees

• Bob Jones University v. US (1986) Bob Jones University loses tax exempt status over religion-based racial discrimination

• Goldman v. Weinberger (1986) Jewish Air Force psychiatrist cannot wear yarmulke indoors because of service regulations

• Others …

Imperfect but “reasonable” way of balancing competing claims of free exercise and government laws/interests

• Imperfect but “reasonable” way of balancing competing claims of free exercise and government laws/interests

• These cases generally involve secondary free exercise issues (not core religious freedom)

Alfred Smith (an American Indian) and Galen Black (a white man) were “members” of the Native American Church and employees at a private drug rehabilitation clinic

• Alfred Smith (an American Indian) and Galen Black (a white man) were “members” of the Native American Church and employees at a private drug rehabilitation clinic

• Alfred Smith was a recovered alcoholic employed as alcohol counselor for 20+ years

• Both fired because they had ingested hallucinogen peyote as part of their religious ceremonies

• Clinic had a no alcohol/no drug use policy

Possession of peyote was a felony under Oregon law (no religious exemption); neither man was prosecuted for drug possession

• Possession of peyote was a felony under Oregon law (no religious exemption); neither man was prosecuted for drug possession

• Smith and Black filed a claim for unemployment compensation, which was denied because they were dismissed for work-related “misconduct.”

• Supreme Court ruled that that there should be no religious exemption and that Smith and Black should be denied unemployment compensation

Threw out “compelling interest” test except in certain non-law breaking unemployment cases and other “hybrid” cases

• Threw out “compelling interest” test except in certain non-law breaking unemployment cases and other “hybrid” cases

• Returned to “laws supercede religious actions” standard of U.S. v. Reynolds (1879)

Majority (6 – 3) held that no compelling government interest was necessary if a religious practice was burdened, as long as the law was neutral and generally applicable, and only burdened the religious practice incidentally.

• Majority (6 – 3) held that no compelling government interest was necessary if a religious practice was burdened, as long as the law was neutral and generally applicable, and only burdened the religious practice incidentally.

“Other cases have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the Sherbert test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling’ -- permitting him, by virtue of his beliefs, to become a law unto himself, -- contradicts both constitutional tradition and common sense.”

• “Other cases have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the Sherbert test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling’ -- permitting him, by virtue of his beliefs, to become a law unto himself, -- contradicts both constitutional tradition and common sense.”

“Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty.”

• “Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty.”

“The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.”

• “The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.”

• “The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion.”

“Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is essential to accomplish, its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. ... I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents' religiously.”

• “Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is essential to accomplish, its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. ... I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents' religiously.”

• Very simple to rule against Smith and Black by using the compelling interest test

Concerned Women for America (Christian Right): “conservative justices appointed by Reagan “were all the people who stabbed us in the back on this thing. Scalia wrote the opinion, and Rehnquist and Kennedy joined it.”

• Concerned Women for America (Christian Right): “conservative justices appointed by Reagan “were all the people who stabbed us in the back on this thing. Scalia wrote the opinion, and Rehnquist and Kennedy joined it.”

• Witness at Senate hearings on new legislation called Smith “the Dred Scott of first amendment law”

“This opinion is one of the most widely criticized in all of the Court’s recent jurisprudence. Its legal reasoning, its treatment of precedent, and its attitude to the place of religious minorities in majority society have all come in for strenuous criticism, not only from liberals but from religious conservatives such as Michael McConnell, a leading authority on Free Exercise . Scalia not only refuses to apply the Sherbert framework, he insists that it never has been settled law.”

• “This opinion is one of the most widely criticized in all of the Court’s recent jurisprudence. Its legal reasoning, its treatment of precedent, and its attitude to the place of religious minorities in majority society have all come in for strenuous criticism, not only from liberals but from religious conservatives such as Michael McConnell, a leading authority on Free Exercise . Scalia not only refuses to apply the Sherbert framework, he insists that it never has been settled law.”

• Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, p. 153.

Religious Right and Secular Left are outraged and join together to pressure Congress

• Religious Right and Secular Left are outraged and join together to pressure Congress

• (ACLU + NAE)

• Overwhelming support (unanimous House and 97-3 in Senate) for Religious Freedom and Restoration Act of 1993