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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 ***.
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 *** 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.
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