Monday, July 26

The First Amendment Under A Microscope — Part 2 Of 3 — The “Free Exercise” Clause

The second Pillar of the First Amendment’s temple is …

o The “free exercise” clause


… or prohibiting the free exercise thereof …

Compared to both the linguistic subtleties of the “free exercise” clause and the consequent intricacies of the corresponding case law, the language of the “establishment clause” is as transparently simple as “Row, row, row your boat”.  This exponential increase in complexity and subtlety is due to the fact that, whereas the “establishment” clause pertains only to government action vis a vis religious institutions, teachings, and doctrine, the “free exercise” clause pertains to the myriad ways in which the exercise of religion impinges, not only upon prerogatives of the government, but also upon those of individuals and groups.

There are two interrelated questions at issue:  (1) what criteria are the government to use in regulating the complex jostlings and conflicts that are inevitable when many religious groups, all with co-equal constitutional rights, interact in the public square? and (2) what are the limits of the government’s “compelling interests” in moderating these interactions and the “least restrictive means” to be employed in that moderating process? At what point does religious conflict pose a legitimate hazard to social cohesion and consensus, and what actions are permissible to minimize such conflict? You could write a fairly comprehensive history of the “free exercise” clause in terms of answers that Federal courts have given to these two questions.  From time to time, in fact, even the courts themselves were conflicted about this issue. A couple of examples will illustrate.

-- Saluting the Flag

In 1940, for example, the Supreme Court ruled in Gobitis v. Minersville School District that it was constitutional for schools to require students to recite the Pledge of Allegiance, the students' religious convictions notwithstanding.  The Gobitis case revolved around the children of Jehovah's Witnesses whose religious convictions would not permit the children to pledge allegiance to any secular political regime. Without going into the Court's reasoning in Gobitis, suffice to say that only three years later -- and in the middle of the Second World War -- the Court, in  West Virginia State Board of Education v. Barnette, ruled that the compulsory recitation of the Pledge by school students was unconstitutional as an infringement of the students' rights under the "free exercise" clause. At present, Barnette remains the controlling precedent.

-- Conflicts between employment law and religious liberty

The cases of Sherbert v. Verner and Employment Division v. Smith illustrate the same threading of the jurisprudential needle. In Sherbert, a Seventh Day Adventist woman was denied unemployment compensation because she turned down job offers that would have required her to work on Saturdays, a practice proscribed by the Adventist church. The Supreme Court ruled that requiring Saturday work, with no recourse to work eompensating hours on other days of the week, burdened to an unacceptable degree the woman's "free exercise" liberties, and the woman won her unemployment compensation claim. However, in Smith, the Court held that, whereas cases like Sherbert involved only the particular case of a particular person's religious conscience, Smith involved the question of whether a given State was constitutionally required to accommodate religious practices generally -- in this case, the use of controlled substances in religious rituals --  and the Court decided in the negative:  States may make such accommodations, but are not required by the "free exercise" clause to do so.

(Incidentally, the Smith decision contains the following admonition that people would do well to remember who assert that the "free exercise" clause frees businesses from serving particular "insular minorities" they regard as religiously unclean, e.g., baking wedding cakes for LGBTQ weddings:

The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

Among "laws providing for equality ... for all races", one might ask whether a restaurant owner's religious convictions should exempt him from serving black customers or whether a landlady's religious convictions should exempt her from renting apartments to African-Americans or interracial couples. If we are to allow religious convictions this much latitude, then it is difficult to think of a single civil-rights law, e.g., the Civil Rights Act of 1964, that would not at least be in jeopardy.)

As you might imagine, some of the thorniest matters pertaining to the "free exercise" clause pertain to areas where the religious training of children impinges upon the secular demands of civil society. For example, could a very conservative religious group perform a marriage between an adult and a minor child? Even on the level of a civil contract, there would be issues with the legal competence of a minor child to enter into a civil contract with an adult. And would the consummation of such a marriage violate civil criminal law regarding statutory rape? Judging by the case law, beyond a certain very restrictive point, laws prohibiting child abuse would seem to intervene to prevent some religious practices that would be judged as abusive under criminal law. But if that is the case, then how is the state to view, e.g., the Jewish rite of circumcising male infants (bris)?  And if bris is permitted, then why not female genital circumcision under Islamic law? May, e.g., Amish communities discontinue the formal education of children at ages younger than the civil law mandates? If we examine these cases under the usual "footnote-4 / Carolene Products" criteria of "compelling interest" and "least restrictive means", we may well end up with conclusions that are uncomfortable to all parties concerned, both for reasons of religion and the civil law. There are no easy answers.

This account of "free exercise" case law, though obviously cursory and superficial, should give you some flavor of the daunting complexities and subtleties Federal courts have had to adjudicate in order to apply the "free exercise" clause of the First Amendment equitably. Regardless of your judgment about the correctness of the particular decisions, however, what never fails to impress me is the degree to which American courts, in interpreting and applying the "free exercise" clause, have bent over backwards to be equitable, to the point that the sound of vertebrae crackling was almost audible.  On the whole, I think they have succeeded.

James R. Cowles

Image credits

Scientology protester ... Anonymous photographer ... CC by 2.0
American flag ... JNN1776 ... CC by SA 2.0
Buddha ... Photographer unknown ... Public domain
NY Times ... Haxorjoe ... Creative Commons Attribution-Share Alike 3.0 Unported

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