Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
Part 5 – The Supreme Court
V. The Supreme Court, Equality, Unalienable Rights and Religious Liberty
Section V surveys notable Supreme Court opinions decided from 1980 to 1993. The era was chosen because with the passage of time the principles of the law transgressed by the case decisions are easier to see and the exigencies or the moment which tend to cloud principles are long past. The author has also considered an analysis of the period from 1994 to the end of the 2004-2005 term and has elected not to pursue such an undertaking at this time. The reasons are several. First, the Court’s jurisprudence has not changed fundamentally in the last dozen years with respect to unalienable rights, equality, the incorporation doctrine or the Lemon test. Second, the expanded analysis would become repetitive as the Court keeps making the exact same errors over and over again. Third, this Article is an analysis, not a treatise.
Turning to the instant analysis, each decision is examined with an eye toward whether or not the Court has recognized the laws of nature and of nature’s God for what they are, acknowledged the Declaration for is positive restatement of that law, and preserved where its Constitutional jurisdiction allows and appropriate judicial review permits, the God-given “equal, natural and unalienable right[s]” of the people to freely and peaceably exercise their religion according to the dictates of conscience. If the Court’s actual references to the law of nature or the Declaration were examined, section V would be a very short section. But legal analysis can nevertheless show how far these principles have been neglected and what may be done to remedy the situation.
The cases are arranged into three categories. This arrangement is intentional and purposeful. The organization of the cases is critical to understanding how the cases fit into larger concepts of Federalism, enumerated powers, unalienable and reserved rights, and equality. Organization in this fashion also provides a guide by which subsequent and future cases can be analyzed and decided on correct principles. Most treatises on the first amendment arrange the cases topically, rather than conceptually. This is one reason why they are unhelpful as an analytical tool and tend to follow the Court rather than reinvigorate the law.
The first category of religion cases pertains to conflicts between compulsory education laws and the unalienable rights of parents to direct the education of their own children,63 including governmental recognition of God at non-compulsory high-school graduation exercises.64 These cases are not really religion cases at all, they are parental unalienable rights cases. But since the Court and litigators treat them as religion cases under the first amendment (since they don’t know what other provision to claim a violation of with the exception of the free speech clause) they are included herein so that it can be better understood how they should be handled.
A second division of cases involves the much maligned, misunderstood and misapplied equality principle. These cases in turn, are of two sub-varieties:
- a) cases litigated consistent with the equality principle. Such cases include equal access to schools,65 equal access to public places,66 and equal access to benefits,67 and;
b) cases where preferential civil privileges based on religious belief, conduct or status are granted or sought, contrary to the principle of equality. These cases include decisions in the area of unemployment compensation,68 special privileges for religious organizations,69 and religious individuals,70 as well as tax deduction,71 and tax exemption cases.72
A third category of cases arises where discharge of civil functions involves necessary and proper reliance on God the Creator, such as use of legislative chaplains,73 cases involving official celebration of holy days,74 and governmental recognition of God or his attributes at public events.75 These cases discuss the proper relationship between God and civil government without also delving into the prohibited relationship between religion and civil government.
* Copyright © 2004, 2006 Kerry L. Morgan. Used with permission.
63. See Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646 (1980); Grand Rapids School District v. Ball, 473 U.S. 373 (1985); Aguilar v. Felton, 473 U.S. 402 (1985); Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987), and Stone v. Graham, 449 U.S. 39 (1980).
64. See Lee v. Weisman, 505 U.S. 577 (1992).
65. See Widmar v. Vincent, 454 U.S. 263 (1981);Board of Education v. Mergens, 496 U.S. 226 (1990); Zobrest v. Catalina Foothill School District, 509 U.S. 1 (1993), and Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
66. See Board of Trustees v. McCreary, 471 U.S. 83 (1985)(affirmed without opinion by an equally divided Court); Board of Airport Commissioners of Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987); and International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).
67. See Witters v. Washington Department of Social Services for the Blind, 474 U.S. 481 (1986).
68. See Thomas v. Review Board, 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1986); Frazee v. Unemployment Compensation Commission, 489 U.S. 829 (1989), and Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
69. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Larsen v. Valente, 456 U.S. 288 (1982); Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985); Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), and Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987).
70. See Goldman v. Weinberger, 475 U.S. 503 (1986); O’Lone v. Shabbazz, 482 U.S. 342 (1987); Jensen v. Quaring, 472 U.S. 478 (1985)(affirmed without opinion by an equally divided Court); Bowen v. Roy, 476 U.S. 693 (1986), and Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
71. See Mueller v. Allen, 463 U.S. 388 (1983); Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989); and Davis v. United States, 496 U.S. 226 (1990).
72. See Bob Jones University v. United States, 461 U.S. 574 (1983); Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990); United States v. Lee, 455 U.S. 252 (1982), and Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).
73. See Marsh v. Chambers, 463 U.S. 783 (1983).
74. See Lynch v. Donnelly, 465 U.S. 668 (1984) and ACLU Greater Pittsburgh Chapter v. County of Allegheny, 492 U.S. 573 (1989).
75. See Lee v. Weisman, 505 U.S. 577 (1992).