FREE EXERCISE OF RELIGION

1. FREE EXERCISE OF RELIGION 3/26/09

2. The Free Exercise Clause Two key questions involving the free exercise clause: What should be considered a religious activity, and How much freedom should people be given?

3. Defining Religion For free exercise purposes the S.Ct. has given a pretty broad definition of “religion” In Davis v. Beason (1890) the court wrote: The term "religion" has references to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.... In United States v. Seeger (1965) the court ruled that it was religiously based conscientious objection when person held sincere beliefs that held the same place as traditionally defined religious beliefs.

4. Distinction Between Belief & Action However, the right to exercise one’s religious beliefs is not ABSOLLUTE. Protection of BELIEF is absolute. The free exercise clause has been consistently interpreted as providing a right for individuals to adopt whatever type of religious beliefs they choose to adopt--including the right of an atheist to reject the very idea of a deity. The right to ACT on the basis of religious beliefs is not absolute and can sometimes be limited when it conflicts with the very important government interests. Government may demand behavior that a church forbids or may prohibit actions that the church requires.

5. Limitations on Free Exercise of Religion Satanic cults are not immune from prosecution for murder if they incorporate human sacrifice into their church rituals. Although Christian Scientists cannot be forced to undergo medical treatment on the basis of their religious beliefs, they cannot withhold needed medical treatment from their children. Mormons do not have a legal right to engage in polygamy.

6. The Free Exercise Clause Cantwell v. Connecticut (1940) Sherbert v. Verner (1963) Wisconsin v. Yoder (1972) Goldman v. Weinberger (1986) Employment Division v. Smith (1990) Church of Lukumi Balbalu v. Hialeah (1993) City of Boerne v. Flores (1997) Locke v. Davey (2004)

7. Cantwell v. Connecticut (1940) FACTS: Application of anti-soliciting law to Jehovah’s Witnesses. HOLDING: It is not a violation of the free exercise clause of the 1st amendment (as applied to the states through the 14th) for a state to regulate religious solicitation as part of a general statute designed to protect against fraud as long as it treats all forms of solicitation equally.

8. Sherbert v. Verner (1963) FACTS: State refused to pay unemployment benefits to Jehovah’s Witnesses who refused to work on Saturday. HOLDING: It is a violation of the free exercise clause of the 1st amendment (as applied to the states through the 14th) for a state to deny unemployment compensation benefits to persons whose religious convictions prevent them from working on Saturday.

9. Sherbert v. Verner (1963) TEST APPLIED: In order to justify a restriction on religious conduct, the state must establish that the restriction is necessary to achieve a compelling state interest and that the means are narrowly tailored to achieve that interest.

10. Wisconsin v. Yoder (1972) FACTS: Amish parents refused to send their children to school beyond the 8th grade. They were prosecuted for violating state compulsory education law that required students to attend school until they reached the age of 16. Why didn’t the parents want their children to go to school?

11. Wisconsin v. Yoder (1972) HOLDING: It is a violation of the free exercise clause of the 1st amendment (as applied to the states through the 14th) for a state to require children to attend school beyond the 8th grade when those children are part of an isolated religious group in an agrarian society that shuns modern technology (e.g. Amish). TEST APPLIED: Compelling interest test used in Sherbert.

12. Goldman v. Weinberger (1986) SPECIAL CIRCUMSTANCES IN MILITARY It is not a violation of the free exercise clause of the 1st amendment for the United States military from enforcing general dress requirements in situations in which those requirements do not allow the person to wear a religions object (e.g. a yarmulke).

13. Employment Div. v. Smith (1990) FACTS: This is an administrative case in which Alfred Smith and Galen Black filed for unemployment compensation benefits after they were fired for having ingested peyote at a ceremony of the Native American Church. Under Oregon law, Peyote was among the drugs listed as being illegal to use within the state, and no exceptions were made for use in religious ceremonies.

14. Employment Division v. Smith HOLDING: It is not a violation of the free exercise clause of the 1st amendment (as applied to the states through the 14th) for a state to prohibit the religiously inspired use of drugs as part of a comprehensive ban on all uses of the drug. SIGNIFICANCE OF CASE: Majority develops and applies a new “less restrictive” test for free exercise cases.

15. Employment Division v. Smith TEST USED: Is the law in question neutral on its face and of general applicability? a law that is neutral and of general applicability doesn’t have to be justified by a compelling gov. interest, even if the law has the incidental effect of burdening a particular religious practice.

16. Church of Lukumi Balbalu v. Hialeah (1993) FACTS: City of Hialeah tried to prevent a religious group that practiced animal sacrifice from building a church in their community. HOLDING It is a violation of the free exercise clause of the 1st amendment (as applied to the states through the 14th) for a state or local government to pass a law which specifically prohibits the killing of animals as part of a religious ceremony.

17. Church of Lukumi Balbalu v. Hialeah (1993) REASONING Used Smith test Ordinance in question failed to meet the neutral and general applicability part of the Smith test because it was clearly directed at specific religious group and was under-inclusive when it came to meeting secular public health goals.

18. Passage of the Religious Freedom Restoration Act (RFRA) Following the Supreme Court's decision in the Smith case, a coalition of ACLU and various religious groups proposed and Congress passed the Religious Freedom Restoration Act (RFRA).

19. Passage of the Religious Freedom Restoration Act (RFRA) RFRA stated that: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability [unless the government can show that the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."