Free Exercise Clause Framework

I.     Lonang View.

A.     The definition of Religion. Religion is legally defined as “the duty which we owe to our Creator and the manner of dischargiong it.”

1.     Virginia Declaration of Rights, §16.

a.     Duties owed to the creator (not to “God”).

b.     Mere belief in a creator or the laws of creation is not religious, because the laws of creation apply to nonreligious matters. (Torcaso v. Watkins, contra).

c.     Man’s duties owed to God can be objectively defined (per lonang) without entangling gov’t with religious doctrine.

d.     Once a matter is found to be religious, all further gov’t action or inquiry regarding that matter must cease.

2.     Not a subjective test (such as “sincerely held belief”). The legal definition of religion is objective, not subjective.

a.     A capitulation to secular/religious dichotomy.

b.     Free Exercise Clause covers religious, but not secular, opinions?

c.     A legal definition of religion based on “sincerely held beliefs,” would make every person the judge of his own cause.

3.     Subjective religion => “accommodation.” Religious freedom is not to be “tolerated” or “accommodated.” It is an inalienable right that can never be burdened, no matter how compelling the gov’t interest. But see, Seeger.

a.     Accommodation leads to mere tolerance (not inalienable rights). Accommodated religion is balanced against weight of government interests.

b.     Subjective religious beliefs cannot dictate public policy (because of the secular/religious dichotomy, that is, religious beliefs cannot dictate secular policies).

c.     Thus, under “accommodation,” you can believe whatever you want, but government has total authority over your actions.

B.     Free exercise includes conduct as well as belief.

1.     Freedom of the mind.

a.     Common root with free speech, free press, etc.

b.     The law of jurisdiction – freedom of thought.

c.     The view of Jefferson. The Virginia Statute.
Q: Is religion merely a matter of opinion?

2.     “Religion” includes “manner of discharge.” Thus, free exercise of religion includes belief and conduct.

a.     Jefferson’s Danbury letter.

b.     The position in Reynolds (quoting Jefferson).

c.     Cantwell v. Connecticut.

3.     Civil jurisdiction over deeds is partial, not complete.

a.     Family (Child discipline).

b.     Church (Member discipline).

c.     Civil (Criminal laws).

II.     Religious immunity to civil laws.

A.     There is only one law of nature, and it applies to all creatures (thus, all people) without exception. Civil laws complying with lonang also apply without exception.

B.     There is no civil immunity because of the separation of church and state. Church members are also state citizens, and laws having a valid civil purpose extend to all persons within the polity.

1.     General jurisdictional principles.

a.     Everyone is governed by more than one authority.

b.     The civil ruler must treat everyone equally (no partiality).

c.     This includes individuals, families and churches.

2.     Heavenly citizenship does not exempt anyone from civil laws.

a.     Heavenly citizenship is concurrent, not exclusive.

b.     Heavenly citizenship is individual, not corporate.

c.     Heavenly citizenship does not “erase” our earthly citizenship.

3.     The church is no more separate from the state than the family.

C.     There is no civil immunity based on religious affiliation.

1.     Christians have no added legal rights compared to others. Neither do Church members.

2.     Further, gov’t cannot define what a valid church is, because that is a religious (i.e., a prohibited) inquiry.

3.     Civil rights do not depend on associational ties (what groups a person belongs to).

D.     There is no civil immunity based on religious belief.

1.     Such an immunity presumes that religion is subjectively defined.

a.     But, religion is not defined by a person’s subjective beliefs.

b.     Just as the beliefs of everyone are free from regulation, so the deeds of everyone are subject to some regulation.

2.     A subjective definition of religion defeats liberty of religious conduct.

a.     Subjective religion is belief only (i.e., what a person thinks in their mind).

b.     Mere belief tends to be culturally irrelevant (i.e., society cannot validate any belief, nor verify that it is “sincere.”) And since so many people have differing beliefs, none of them should control society.

c.     Objective religion (Va. Declaration) includes “manner of discharge” (conduct).

3.     Case examples.

a.     Reynolds: Objective religion – no immunity.

b.     Wisconsin v. Yoder: Subjective religion – selective immunity.

c.     Division v. Smith:

1)     Scalia: Religion irrelevant – no immunity.

2)     O’Connor: Subjective religion – some immunity (but not here).

3)     Blackmun: Subjective religion – some immunity (including here).

III.     Modern view – Free Exercise Clause.

A.     Gov’t may not punish or burden anyone on the basis of the person’s religious beliefs.

1.     Gov’t may not require any public office holder or employee to take a religious oath. [Torcaso v. Watkins, 367 U.S. 488 (1961)]

2.     A state may not exclude clerics from holding elective or other public office. [McDaniel v. Paty, 435 U.S. 618 (1978)]

3.     The courts may not declare a religious belief to be “false.” However, a court may determine whether the person is sincerely asserting a belief in a divine being. [U.S. v. Ballard, 322 U.S. 78 (1944)]

4.     Gov’t may not punish conduct just because it is religious or displays religious belief.

B.     Public law as a function of subjective religious beliefs.

1.     Estate of Thornton v. Caldor, Inc. (1985). S.Ct held that a state statute which provided employees with the absolute right not to work on their chosen Sabbath violated the Establishment Clause. Per Burger (majority):

a.     The statute commands that “Sabbath religious concerns automatically control over all secular interests at the workplace.”

b.     No one has the right to force another to conform their conduct to his own religious necessities.

c.     “The statute has a primary effect that impermissibly advances a particular religious practice.”

2.     Lyng v. Northwest Indian Cemetery Protective Association (1988). Court upheld development of federal lands challenged (on Free Exercise grounds) by Native Americans who believe the land involved to be sacred. Per O’Connor (majority):

a.     The beliefs of the Indians are sincere and adversely affected by the land development.

b.     However, “the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”

c.     “Whatever may be the exact line” of unconstitutional behavior, the constitutionality of government action “cannot depend . . . on a religious objector’s spiritual development.”

d.     Brennan (dissent): The majority’s opinion “turns on a distinction” between government action which forces someone to act in violation of their religious belief and actions which merely prevent someone from acting consistent with their beliefs. “In my view, such a distinction is without constitutional significance.”

3.     Wisconsin v. Yoder (1972). The Court required an exemption for the Amish from a neutral law that required school attendance until age 16, because a fundamental tenet of Amish religion forbids secondary education.

a.     Burger (majority):

1)     The Amish are productive and law-abiding, therefore, the right to educate one’s children and the Free Exercise Clause outweighed the state’s interest here.

2)     Test: Only those state interests “of the highest order” can overbalance free exercise claims. State interest in compulsory education is “by no means absolute.”

3)     “The conclusion is inescapable that secondary schooling . . . contravenes the basic religious tenets . . . of the Amish faith.”

4)     Additional schooling beyond the 8th grade does little to serve state interests in the case of the Amish (because of their unique community characteristics).

5)     The Amish are productive members of society who reject public welfare. [Thus, ostensibly, they make good risks w/ respect to state educational interests.]

b.     White (concurring): Sees a conflict between state educational interests and parental religious convictions which needs balancing.

c.     Douglas (dissent): The free exercise rights of the children are at issue here, as well as those of the parents.

IV.     Modern view of religious immunities.

A.     Generally.

1.     States can regulate conduct in general, even if the regulation interferes with a person’s religious practices.

2.     There is no general exemption from civil laws for people whose religious beliefs prevent them from conforming to the law.

3.     The following laws have been held to be religiously neutral regulations, even though certain groups claimed the law interfered with sincerely held religious beliefs:

a.     Prohibition against polygamy [Reynolds v. U.S., 98 U.S. 145 (1878)]

b.     Denial of tax exempt status to schools that discriminate on the basis of race [Bob Jones University v. U.S., 461 U.S. 574 (1983)]

c.     Sunday closing law (requiring certain types of businesses to be closed on Sunday) [Braunfeld v. Brown, 366 U.S. 599 (1961)];

d.     Requirement that employers comply with federal minimum wage laws [Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)];

e.     Requirement that employers pay social security taxes [U.S. v. Lee, 455 U.S. 252 (1982)];

f.     Draft laws and the selective service provision for exemption to conscientious objectors of all war [Gillette v. U.S., 401 U.S. 437 (1971)];

g.     Denial of veterans’ benefits to conscientious objectors [Johnson v. Robison, 415 U.S. 361 (1974)];

h.     Sales and use taxes [Swaggart Ministries v. Bd. of Equalization of California, 110 S. Ct. 688 (1990)].

B.     Case examples.

1.     Goldman v. Weinberger (1986). S.Ct upheld Air Force uniform requirements challenged by person who wanted to wear religious garment (yarmulke)

a.     Rehnquist (majority):

1)     “The military is, by necessity, a specialized society separate from civilian society.”

2)     “Military officials . . . are under no constitutional mandate to abandon their considered professional judgment.”

3)     Uniform regulations serve a valid government interest.

b.     Stevens (concurring): The members of all religious faiths must receive uniform treatment.

c.     Brennan (dissent):

1)     The majority’s opinion uses a “subrational basis standard” to review the validity of the regulation. An “absolute, uncritical ‘deference to . . . military authorities.'”

2)     “The Constitution requires the selection of [headgear] criteria that permit the greatest possible number of persons to practice their faiths freely.”

d.     O’Connor (dissent):

1)     “There is no reason why . . . general principles should not apply in the military, as well as the civilian, context.”

2)     “I would require the Government to accommodate the sincere religious belief of Captain Goldman.”

2.     Employment Division v. Smith (1990). The Court held that no religious exemption was required from a religiously neutral prohibition against use of peyote, even though such prohibition interfered with sincerely held religious beliefs.

a.     Scalia (majority):

1)     “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

2)     “The right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.'”

3)     “Free exercise plus” analysis: This case is unlike Yoder, because it is not a “hybrid situation” where a free exercise claim is connected with any speech rights or parental rights. Yoder is seen as connected to parental rights.

4)     This case is unlike Sherbert, because it involves a generally applicable criminal statute (whereas Sherbert did not).

5)     If the compelling state interest test is to be applied at all, it must be applied “across the board” with respect to all religious claims. “Any society adopting such a system would be courting anarchy.”

6)     Because peyote ingestion is generally prohibited in Oregon, and that prohibition is constitutional, the State may deny unemployment benefits because of violation of that statute.

b.     O’Connor (concurring):

1)     “The First Amendment does not distinguish between religious belief and religious conduct,” thus, presumptively protects “conduct motivated by sincere religious belief.”

2)     The Court has “never distinguished between cases in which a State conditions receipt of a benefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct.”

3)     The critical question is whether accommodating peyote use “will unduly interfere with fulfillment of the governmental interest.” In this case, the state interest in prohibiting use of a controlled substance is compelling.

c.     Blackmun (dissent):

1)     There is no evidence or factual findings to support the assumption that the religious use of peyote is harmful to the user or society.

2)     The Court “must scrupulously apply its free exercise analysis to the religious claims of Native Americans, however unorthodox they may be.”

C.     Unemployment Compensation. States must grant religious exemptions from unemployment compensation laws. Thus, if a person resigns from a job or refuses to accept a job because it conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled.

1.     Sherbert v. Verner (1963). S.Ct. held that a state cannot deny unemployment compensation merely because the applicant quit a job rather work on a “holy day” on which religious beliefs forbid work.

a.     Brennan (majority):

1)     State laws favor Sunday worshippers over Saturday worshippers.

2)     Level of scrutiny: “compelling state interest.”

3)     There is no evidence of fraud or deceit, hence, no compelling interest justifying the above religious discrimination.

4)     Braunfeld distinguished: Sunday Blue Laws enforce “a strong state interest in providing one uniform day of rest for all workers.” Accommodation of Saturday sabbath would render the statutory scheme “unworkable.”

5)     “This is not a case in which an employee’s religious convictions serve to make him a nonproductive member of society.”

b.     Stewart (concurring):

1)     Consistency with Braunfeld would require upholding validity of state law at issue here. Thus, overrule Braunfeld.

c.     Harlan (dissent):

1)     In no proper sense did state law discriminate against religious belief. Appellant chose not to work for reasons personal to her, and was therefore not “available for work” within the statutory definition.

2)     The Court’s holding requires states to carve out an exception and to provide benefits for those who are unavailable to work because of their religious convictions.

2.     A state cannot deny unemployment compensation merely because the applicant quit his job rather than work on production of military equipment after his factory converted from nonmilitary to military production. [Thomas v. Review Board, 450 U.S. 707 (1981)]

3.     A person does not have to be a member of a formal religious organization to receive the above exemptions from unemployment compensation requirements. [Frazee v. Illinois Dept. of Emp. Sec., 109 S. Ct. 1514 (1989)]