Freedom of Religion

1. Freedom of Religion History of the Amendment Defining ‘Religion’ The Establishment Clause The Free Exercise Clause

2. Religion Clauses of the First Amendment • "Congress shall make not law respecting an establishment of religion, or prohibiting the free exercise thereof." The Jeffersonian faction demanded a Bill of Rights to be added to the Constitution signed by delegates in 1787. To ensure the states' ratification of the Constitution, Madison and the Federalists found it expedient to give way to this demand.

3. Constitutions of Virginia, North Carolina & Rhode Island • "The religion or duty which we owe to our Creator, and the manner ofdischarging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others."

4. Key features of the state amendment • This gives a religious or theological basis for religious liberty, following the lead of Milton and Locke: religious liberty must be protected because our supreme duty is to God, and this duty can be fulfilled only by free, uncoerced obedience to God (as represented in one's conscience). • It protects conduct, and not just belief. • It entails neutrality only between "particular sects and societies", not between religion and irreligion.

5. Conduct, or Belief Only? • On the question of religious conduct, the State constitutions contained provisos excepting action incompatible with the peace and safety of the State, and any licentious or immoral behavior. • So, by implication, religiously motivated behavior that is both harmless and morally innocent is given special protection.

6. Madison’s Original Draft • "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, abridged."

7. Why this was modified • It was feared that this would lead to national interference with established state churches. • Final version bars Congress from passing any law "respecting" an establishment: i.e. the federal government is banned from either establishing or disestablishing religion. • The question of establishment is left entirely to the states. Mass, Connecticut and New Hampshire had established Congregationalist church for another 50 years.

8. The “Incorporation” Doctrine • In the 20th century, the Courts began "incorporating" the Bill of Rights into the Due process clause of the 14th amendment: • Gitlow v. New York (1925) (free speech and press) • Cantwell v. Connecticut (1940) -- free exercise clause.

9. Wall of Separation? • Language occurs in a letter written by Pres.Jefferson to a Baptist congregation in 1802 (13 years after passage of First Amendment). • Jefferson was not a member of Congress at the time of passage -- had no direct role in crafting the amendment, so no special authority for interpreting it. • The phrase "wall of separation" was not used by Madison or any other advocate of the Amendment.

10. What is “religion”? • The Court has been all over the map on this crucial question. • The problem: systems recognized as "religions" today have nothing in common, neither beliefs (Buddhism and Taoism are agnostic on existence of God or gods), nor practices (almost anything, from dancing to clothing to the use of peyote, can be invested with religious significance).

11. Three Issues • Individual, personal belief vs. tradition & community. • Theism vs. atheism & agnosticism, secular humanism. • Christianity & Judaism vs. other "religions".

12. Individual vs. Community • Wisconsin v. Yoder (1972) • ”Not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group."

13. Theism vs. Atheism • U. S. v. Seeger (1965) -- conscientious exemption from draft. • Federal law at time: religion = "an individual belief in a relation to a supreme Being involving duties superior to those arising from any human relation." • The Supreme Court: religion = "the devotion of man to the highest ideal he can conceive."

14. Christianity vs. other religions • Allegheny County (1989): "Perhaps in the early days of the Republic these words [of the Establishment Clause] were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing liberty and equality to the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." • Cantwell v. Connecticut (1940): the freedom of conscience "embraces the right to select any religious faith, or none at all."

15. Does the law change as the meaning of words changes? • If the word "religion" once meant something like "moralistic monotheism", does the meaning of the First Amendment automatically change as the meaning of the word "religion" changes? • What if, in the future, the word "religion" becomes synonymous with "golf"? Would this mean that the FA would protect only the free exercise of golf? Surely, the meaning of the FA is fixed by the meanings its words had at the time of ratification.

16. Does “religion” still have a determinate meaning? • In addition, if "religion" no longer applies exclusively to Christianity and similar religions, what does it now mean? • What if, as appears to be the case, the word "religion" now has no clear meaning? How can the SC continue to enforce a radically indeterminate provision (the FA)?

17. A Possible Approach • A "paradigm" theory of the meaning of religion: "religion" in the FA means historic Christianity, and systems of belief and practice that are relevantly similar to Christianity. • Historic Christianity is the paradigm, and other systems of faith are protected by the FA to the extent that they resemble, bear some analogy to, the beliefs and practices of Christianity. • This would extend the protections of the FA far beyond the bounds of Christianity, while not evacuating the amendment of all meaning.

18. Theories of Free Exercise • Personal Autonomy • Political Strife • Higher Duty

19. Personal Autonomy Theory • On this view, each person should have the right to direct his or her own life, in light of one's own highest conception of the ideal life. • This would mean no special protection for "religious" beliefs or religiously motivated actions. • All actions, whether motivated by religion or by personal, philosophical reflection, would receive equal protection

20. Some problems • Why then have "religion" clauses at all? • The autonomy theory incorporates a controversial theory about human nature: that the essence of each human being consists of an autonomous core of free will. On this view, one's religious tradition and community membership are secondary, superficial things, which one must be free to accept or reject. Religion as a "personal preference" or "choice".

21. Is religion principally a matter of private choice, preference? • Many traditional religions reject the idea that one's religion is any kind of "preference". We don't choose God -- God chooses us. On the alternative view, one's religious faith, including one's ongoing participation in a community of tradition, is part of one's core or essence. Consequently, it is not the autonomous freedom of individuals, but the survival of religious communities, that should be the primary focus of the FA.

22. Key case: Wisconsin v. Yoder • Majority saw the case as one of protecting the traditional life of a religious minority. • Douglas dissented, on the grounds that the Court was protecting the parents' rights, at the expense of the Amish children's right to choose their own religious path autonomously.

23. Political Strife Theory • On this view, the essence of the FA is the avoidance of inter-religious conflict and warfare. • Reflects the European experience of the Thirty Years’ War, in which one-third of Germany’s population was killed in religious strife.

24. Two Limitations • Can't be used to justify tolerance of very small,eccentric groups, who would pose no threat to civic peace. E.g., Hare Krishnas, JWs, etc. Makes religious tolerance depend on the balance of power, contingent historical factors. • Can't be used to justify tolerance of conscientious pacifists, who wouldn't disturb the peace, even if they could.

25. Higher Duty Theory • It is wrong to try to force people to act against what they perceive to be their duty to God. Disobedience to God is thought to be a supreme evil, both because of the effect on oneself (damnation), and also because of its effect on God himself (failing to pay him the homage and gratitude he deserves from us). • This would not extend to agnostic or atheistic belief systems, since there is no God to be offended or disrespected. It might apply to polytheistic systems.

26. Religious Neutrality • Of course, it is obviously not a religiously neutral theory. But it seems that this is true of any justification for the FA.

27. The Court’s Implementation of Free Exercise • Two Theories • Exemption theory. • No-exemption theory.

28. The No-Exemption View • Religion cannot exempt believers from any neutral law of general application, no matter how great the effect of this law on their conduct of religion. The FE clause only protects believers from laws that are purposefully aimed at restricting their religion. • Cases representing this view: • Mormon Polygamy cases -- 1878, 1890. • Goldman v. Weinberger (1985) -- Air Force chaplain's wearing of yamulka. • Lyng (1988) -- logging in sacred "High Country" • Employment Division v. Smith (1990) -- smoking peyote in Native American church.

29. Scalia (for the Court) • “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to exercise.”Smith 1990

30. The Exemption View • The Exemption view. If a government regulation substantially burdens a religious practice, it is unconstitutional unless it is narrowly tailored to a compelling state interest. • Sherbert v. Verner (1963). Seventh Day Adventist need not agree to work on Saturday to be eligible for unemployment compensation. • Wisconsin v. Yoder (1972). Amish children cannot be forced to attend school past 8th grade.

31. Scalia’s Objection to the Exemption View • The Court cannot judge when a practice is "central" to the conduct of some religion without becoming entangled in theological questions beyond its competency. (Again, from Smith 1990)

32. Congress vs. the Court • In response to Smith, Congress passed the Religious Freedom Restoration Act in 1993. • Congress invoked its power in Section 5 of the 14th amendment "to enforce, by appropriate legislations" its protections.

33. City of Boerne v. Flores (1997) • The Court declared the RFRA to be unconstitutional. • Kennedy (for the Court) wrote that section 5 gives Congress only "remedial" power to protect the rights of citizens from specific threats. • It is the SC, and only the SC, that has the power to interpret the meaning of the Due Process clause. All this is bald assertion by Kennedy, without any historical support.

34. What is an “Establishment”?Three Possibilities • Any partiality or favoritism toward any religious sect or group of sects (including any favoritism for religion in general). • Partiality or favoritism for some religious sects over others (but not including support for religion in general), • Pervasive and consistent support for one sect, or a small number, which substantially reduces the degree of pluralism and religious variety in society. Theory 3 would require state action to exceed some threshold of significance and consistency

35. Theories of the Rationale behind the No-Establishment clause • Prevention of the forming of a uniform majority. Encourages pluralism. • Protects religion from interference by the state. Also, strengthens religion by encouraging competition, reliance on support of church's members. • Favors evangelistic religions over traditional ones. • Political strife theory. • Strict neutrality theory.

36. Neutrality Theory • The State must not presuppose a controversial, theological opinion in any of its actions. Doing so would relegate nonbelievers to a second-class citizenship. • Key problem with strict neutrality theory: so interpreted, the First Amendment is in conflict with itself. At time of ratification, support for the First Amendment was based on a theological opinion about the religious value of uncoerced religious practice. The FA itself had a religious, not purely secular purpose.

37. Conflict of the Clauses? • Put another way: the strict neutrality theory sets the Free Exercise clause and the No-Establishment clause into mutual conflict. • The free exercise clause is not stricly neutral: it privileges religiously motivated conduct over conduct with purely secular motivation.

38. Court’s Implementation of No-Establishment • Lemon v. Kurtzman. Lemon test: • secular purpose, • principal or primary effect must not be one that either advances or inhibits religion (wouldn't be taken by an objective observer to constitute a state endorsement of a religion), • no "excessive entanglement" of church & state. • Wallace v. Jaffree (1985): struck down moment of silence, because Alabama expressly encouraged prayer during this period. Government "intends to convey a message of endorsement or disapproval of religion."

39. The Unbroken Tradition Rule • Marsh v. Chambers (1983). Nebraska legislature employs chaplains to open sessions with prayer. Refused to apply the Lemon test. "Deeply embedded in the history and tradition of this country." • Lynch v. Donnelly (1984). Creche in Pawtucket, Rhode Island.Secular purpose of solemnizing holiday. Rejects"wall of separation"language (in Everson v. Board of Education, 1947). Lemon test is useful, but Court is not confined to it.

40. Some anomalies • Chaplains (in military, Congress). • Prayer in Congress, Supreme Court. • “In God We Trust” on currency. • “One nation under God” in pledge of allegience. • Thanksgiving. National Day of prayer

41. Possible Explanations • Unbroken tradition rule. • Falls below the threshold of “establishment”. Too isolated, infrequent, unsystematic.

42. Brennan’s proposal (in Lynch dissent) • May accommodate practice of individuals. Closing on Christmas. • May continue practice, even with religious connotation, if today's purpose is wholly secular. • "Ceremonial deism": "lost through rote repetition any significant religious content."