4. Your Right to the Free Exercise of Religion. **
First, we will see how freedom to exercise religion is working in America today. Second, we will review the atmosphere in which the right was created. Third, we will review American debates involving this right over the past 225 years. Finally, we will consider where that right might go.
1. IS FREEDOM OF RELIGION WORKING IN AMERICA TODAY?
In 2017, there were at least 458 religion or faith denominations in the United states. The largest is Roman Catholicism, which accounts for 23 percent of the population.
There are an estimated 145 Protestant denominations that combine for 49 percent.
Other major religious groups that each account for about 2 percent of of the population include observant Jews, Mormons, and Muslims. Another 3 percent consider themselves non-observant Jews with cultural ties to that population segment.
Other major world religions that have small memberships in the United States include Buddhism, Hinduism, and Unitarianism.
About 22 percent of Americans consider themselves to be atheists, agnostics, or of no opinion an a personal faith. Many members of organized religions are not active or regular adherents of their self-professed faiths.
2. RELIGION IN THE AMERICAN COLONIES
The British sent many religious dissenters to the colonies. The Puritans of the Massachusetts colony exiled Roger Williams and the Baptists to the Rhode Island colony.
The Baptists in the Rhode Island colony welcomed the Jews and established "religious liberty, but Roger Williams attacked the underpinnings of the faith of the Quakers.
The Quakers of the Pennsylvania colony had riots to expel the Catholics.
The Catholics of the Maryland colony guaranteed religious freedom to all Christians but condemned to death the followers of any non-Christian religion.
The Anglicans of the Georgia colony welcomed Jews, Quakers, and Puritans, but prohibited Catholics from settling there.
When the American Revolution ended and the Bill of Rights barred the federal government from establishing a national religion, most of the new states already either had an official religion or used tax dollars to subsidize one religion. The First Amendment did not change that for almost 150 years.
3. WHAT DOES THE "FREE EXERCISE" CLAUSE OF THE FIRST AMENDMENT SAY?
"Congress shall make no law [on religion] respecting the free exercise thereof."
4. DOES THAT APPLY TO STATE AND LOCAL GOVERNMENT?
Newton Cantwell and his three sons were members of the Jehovah's Witnesses faith. They were selling books by playing phonograph records describing the books in public areas of a heavily Catholic neighborhood. They asked two Catholic men if they could play a record for them.
When the record projected a heavily anti-Catholic message, the two men resisted impulses to violence, but asked the local prosecutor to bring charges against the Cantwells. They were prosecuted and convicted both for breach of the peace and failing to secure a license from the "public welfare council" which granted permits for "legitimate" solicitations for charity and denied them to religious solicitors.
The unanimous Supreme Court struck down the Cantwells' conviction and the local statute as a violation of the First Amendment. It held: that to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."
To guide future courts in weighing statutes that might affect religious rights, the Cantwell Court began to outline a balancing test between an individual's rights and a society's responsibilities. It held:
"The Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment."
Cantwell v. Connecticut, 1940.
5. WHAT BALANCING ACT DOES THE SUPREME COURT APPLY?
First, the individual must demonstrate that obeying a law would interfere with the ability to follow a sincerely held religious belief. If it does, the court must balance: the severity of the burden; the strength of the state interest; and the availability of state alternatives to the law.
6. THE SUPREME COURT APPLIED THIS TEST IN "DIRECT BURDEN" CASES.
POLYGAMY: A federal law prohibited polygamy, which was mandated by the Mormon faith. The Supreme Court held that the government's substantial interest in protecting third persons (the children of plural marriages) outweighed the individual's burden on religion.
Reynolds v. United States, 1878.
BELIEVE IN GOD: A Maryland law required public officials to take an oath that they believed in God. The Supreme Court held that this was a violation of the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, and the Fourteenth Amendment Clause to protect all citizens from unconstitutional state action.
Torcasso v. Watkins, 1961.
MILITARY DRAFT: During the Vietnam War, conscientious objectors who objected to particular wars on moral grounds opposed the draft on free-exercise grounds. The Supreme Court upheld the draft as an "incidental burden" that was justified by the government's substantial interest in procuring military manpower by a fairly and uniformly administered system.
Gillette v. United States, 1971,
1. IS FREEDOM OF RELIGION WORKING IN AMERICA TODAY?
In 2017, there were at least 458 religion or faith denominations in the United states. The largest is Roman Catholicism, which accounts for 23 percent of the population.
There are an estimated 145 Protestant denominations that combine for 49 percent.
Other major religious groups that each account for about 2 percent of of the population include observant Jews, Mormons, and Muslims. Another 3 percent consider themselves non-observant Jews with cultural ties to that population segment.
Other major world religions that have small memberships in the United States include Buddhism, Hinduism, and Unitarianism.
About 22 percent of Americans consider themselves to be atheists, agnostics, or of no opinion an a personal faith. Many members of organized religions are not active or regular adherents of their self-professed faiths.
2. RELIGION IN THE AMERICAN COLONIES
The British sent many religious dissenters to the colonies. The Puritans of the Massachusetts colony exiled Roger Williams and the Baptists to the Rhode Island colony.
The Baptists in the Rhode Island colony welcomed the Jews and established "religious liberty, but Roger Williams attacked the underpinnings of the faith of the Quakers.
The Quakers of the Pennsylvania colony had riots to expel the Catholics.
The Catholics of the Maryland colony guaranteed religious freedom to all Christians but condemned to death the followers of any non-Christian religion.
The Anglicans of the Georgia colony welcomed Jews, Quakers, and Puritans, but prohibited Catholics from settling there.
When the American Revolution ended and the Bill of Rights barred the federal government from establishing a national religion, most of the new states already either had an official religion or used tax dollars to subsidize one religion. The First Amendment did not change that for almost 150 years.
3. WHAT DOES THE "FREE EXERCISE" CLAUSE OF THE FIRST AMENDMENT SAY?
"Congress shall make no law [on religion] respecting the free exercise thereof."
4. DOES THAT APPLY TO STATE AND LOCAL GOVERNMENT?
Newton Cantwell and his three sons were members of the Jehovah's Witnesses faith. They were selling books by playing phonograph records describing the books in public areas of a heavily Catholic neighborhood. They asked two Catholic men if they could play a record for them.
When the record projected a heavily anti-Catholic message, the two men resisted impulses to violence, but asked the local prosecutor to bring charges against the Cantwells. They were prosecuted and convicted both for breach of the peace and failing to secure a license from the "public welfare council" which granted permits for "legitimate" solicitations for charity and denied them to religious solicitors.
The unanimous Supreme Court struck down the Cantwells' conviction and the local statute as a violation of the First Amendment. It held: that to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."
To guide future courts in weighing statutes that might affect religious rights, the Cantwell Court began to outline a balancing test between an individual's rights and a society's responsibilities. It held:
"The Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment."
Cantwell v. Connecticut, 1940.
5. WHAT BALANCING ACT DOES THE SUPREME COURT APPLY?
First, the individual must demonstrate that obeying a law would interfere with the ability to follow a sincerely held religious belief. If it does, the court must balance: the severity of the burden; the strength of the state interest; and the availability of state alternatives to the law.
6. THE SUPREME COURT APPLIED THIS TEST IN "DIRECT BURDEN" CASES.
POLYGAMY: A federal law prohibited polygamy, which was mandated by the Mormon faith. The Supreme Court held that the government's substantial interest in protecting third persons (the children of plural marriages) outweighed the individual's burden on religion.
Reynolds v. United States, 1878.
BELIEVE IN GOD: A Maryland law required public officials to take an oath that they believed in God. The Supreme Court held that this was a violation of the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, and the Fourteenth Amendment Clause to protect all citizens from unconstitutional state action.
Torcasso v. Watkins, 1961.
MILITARY DRAFT: During the Vietnam War, conscientious objectors who objected to particular wars on moral grounds opposed the draft on free-exercise grounds. The Supreme Court upheld the draft as an "incidental burden" that was justified by the government's substantial interest in procuring military manpower by a fairly and uniformly administered system.
Gillette v. United States, 1971,
SCHOOL ATTENDANCE: Some Amish families objected to a state requirement for children to attend school, which the Amish believed to be a danger to their salvation. The Supreme Court upheld the Amish challenge because the burden was significant and because past education of children by their families had prepared them to be productive and law-abiding citizens in their community. The state's interest in universal education and the impact on the children did not outweigh the Amish right to free exercise.
Wisconsin v. Yoder, 1972.
NO CLERGY IN PUBLIC OFFICE: A Tennessee law prohibited members of the clergy from holding public office. The Supreme Court held that this was a violation of the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, and the Fourteenth Amendment Clause to protect all citizens from unconstitutional state action.
McDaniel v. Paty, 1978.
NO CLERGY IN PUBLIC OFFICE: A Tennessee law prohibited members of the clergy from holding public office. The Supreme Court held that this was a violation of the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, and the Fourteenth Amendment Clause to protect all citizens from unconstitutional state action.
McDaniel v. Paty, 1978.
SOCIAL SECURITY TAX: An Amish employer objected to paying the Social Security tax on religious grounds. The Supreme Court held that the burden on the employer was outweighed by the government's overriding interest in collecting the tax.
United States v. Lee, 1982.
MINIMUM WAGE FOR CLERGY: Several religious groups objected to a regulation that required them to pay at least a minimum wage to their employees in commercial activities. The Court held that no undue burden fell on the employees who were free to donate back their wages. This was not held to be a significant burden on the first prong of the balancing test.
Alamo Foundation v. Secretary of Labor, 1985.
PRIVATE FIRINGS: The Supreme Court allowed private firms to fire employees who refused to work on Saturdays or Sundays because the Free Exercise Clause applied to government actions but not to decisions by private employers. Relying on the Establishment Clause, the Court struck down a statute which gave employees the absolute right to refuse to work on their chosen day of Sabbath.
Thornton v. Caldor, 1985.
ILLEGAL DRUGS: A drug counselor was fired and denied unemployment compensation because he consumed peyote which he claimed was required by his Native American faith. The Supreme Court remanded the case for the state to determine whether consumption of peyote for religious purposes was illegal. While the Supreme Court did not apply the balancing test to this case in 1988, it might find today that the state interest today was neither significant nor compelling.
Oregon v. Smith, 1988.
ILLEGAL DRUGS: The Supreme Court held that Free Exercise claims regarding the sacramental use of illegal drugs must be made on a case-by-case basis. This case involved a psychedelic drug in a tea shipped from Brazil.
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2004.
ANIMAL SACRIFICE: Four cities in Florida passed ordinances banning animal sacrifice. The Supreme Court overturned the laws because they were aimed at a particular church.
Church of Lukumi Babalu Aye v. City of Hialeah, 1993.
STATE SCHOLARSHIPS: The Supreme Court held that states may deny scholarships to divinity students without violating their Free Exercise rights,
Locke v. Davey, 2004.
ILLEGAL DRUGS: The Supreme Court held that Free Exercise claims regarding the sacramental use of illegal drugs must be made on a case-by-case basis. This case involved a psychedelic drug in a tea shipped from Brazil.
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2004.
ANIMAL SACRIFICE: Four cities in Florida passed ordinances banning animal sacrifice. The Supreme Court overturned the laws because they were aimed at a particular church.
Church of Lukumi Babalu Aye v. City of Hialeah, 1993.
STATE SCHOLARSHIPS: The Supreme Court held that states may deny scholarships to divinity students without violating their Free Exercise rights,
Locke v. Davey, 2004.
7. THE SUPREME COURT APPLIED THIS TEST TO "INDIRECT BURDENS:" Indirect burdens make it more difficult for an individual to pursue religious beliefs.
SUNDAY CLOSING LAWS: Jewish store owners sued because a state law required certain businesses to be closed on Sundays. Although they were free not to work on their Sabbath and on Sunday, they argued that the law imposed an indirect financial burden on their free exercise because it barred them from working two days a week. The Supreme Court held that the state had an important interest in requiring a uniform day of rest for employees.
Braunfeld v. Brown 1961.
REQUIRING SATURDAY WORK: A Seventh Day Adventist was denied unemployment compensation benefits because he would not accept "suitable work" including a job that required Saturday work. The Supreme Court struck down the requirement because it was not necessary to meet a compelling state interest.
Sherbert v. Verner, 1963.
SUNDAY CLOSING LAWS: Jewish store owners sued because a state law required certain businesses to be closed on Sundays. Although they were free not to work on their Sabbath and on Sunday, they argued that the law imposed an indirect financial burden on their free exercise because it barred them from working two days a week. The Supreme Court held that the state had an important interest in requiring a uniform day of rest for employees.
Braunfeld v. Brown 1961.
REQUIRING SATURDAY WORK: A Seventh Day Adventist was denied unemployment compensation benefits because he would not accept "suitable work" including a job that required Saturday work. The Supreme Court struck down the requirement because it was not necessary to meet a compelling state interest.
Sherbert v. Verner, 1963.
CONVERSION TO WAR PLANT: A worker was denied unemployment benefits when he quit work for religious reasons when his factory was converted to manufacturing war materials. The Supreme Court found that the regulation was an unjustified burden on the worker's faith.
Thomas v. Review Board, 1981.
CONVERSION TO ANOTHER FAITH: A worker had been working on Friday nights and Saturday days when he converted to a religion which barred work in those times. He quit and was denied unemployment benefits. The Supreme Court held that this regulation was an undue burden on his new religious practice.
Hobie v. Florida, 1987.
VETERANS' BENEFITS: A conscientious objector who was allowed to serve alternative civilian service sued when he was denied veterans' benefits. The Supreme Court upheld this denial because the plaintiff gained the benefit of less onerous civilian duty and the government had a significant interest in providing benefits to those draftees who served in the military.
Johnson v. Robison, 1974.
MILITARY UNIFORMS: A devout Jew protested that he should be allowed to wear a yarmulke as part of his military uniform. The Supreme Court denied this claim because the government had an overriding interest in making sure that its military uniforms were indeed uniform.
Goldman v. Weinberger, 1986.
THE NUMBER OF THE BEAST: A welfare applicant argued that he should not be forced to accept a government-issued Social Security Number or a random number assigned by the government to protect against fraud because his religion forbid him from accepting the number of the beast. The Supreme Court upheld the government's interest in preventing fraud over the plaintiff's inchoate claim. It is an open question on whether a sincere claim would be upheld.
Bowen v. Roy, 1986.
TAX EXEMPTIONS: Tax exemptions were denied to church-related schools and groups which discriminated on the basis of race. The Supreme Court upheld the government's interest in ending racial segregation over the plaintiffs' claims of religious belief.
Bob Jones University v. United States, 1983.
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