What RFRA Hath Wrought-Part 3

By Mike Appleton, Weekend Contributor

“Smith relegated our national commitment to the free exercise of religion to the sub-basement of constitutional values.”

-Michael P. Farris and Jordan W. Lorence, “Employment Division v. Smith and the Need for the Religious Freedom Restoration Act,” 6 Regent U.L.Rev. 65, 66  (1995)

Several years following the ratification of the Constitution, a man named Jonas Phillips was subpoenaed to testify on behalf of a defendant in a criminal case in Pennsylvania. The problem was that the trial was scheduled for a Saturday and Mr. Phillips was a devout Jew. He refused to be sworn on the Jewish Sabbath and was subsequently held in contempt and fined ten pounds, despite invoking the protection of the Pennsylvania constitution, which provided that “no human authority can in any case whatsoever, control or interfere with the rights of conscience. . . .”  Stansbury v. Marks, 2 Dall. 213 (Pa. 1793). Fortunately, the defendant waived Mr. Phillips’ appearance and the fine was discharged.

Jonas Phillips’ “rights of conscience” were deemed subordinate to the orderly administration of the judicial system in a state which boasted one of the most religiously tolerant constitutions in the young nation. Therefore, when the Supreme Court held in 1878 that rights of conscience likewise could not be raised as a defense to a charge of bigamy, the ruling was hardly earthshattering.  Reynolds v. United States, 98 U.S. 145 (1878). And the decision over one hundred years later in Employment Division v. Smith, 494 U.S. 872 (1990), appeared to confirm a principle that had largely guided free exercise jurisprudence since the nation’s founding: the Religion Clauses do not mandate religious exemptions from valid laws intended to be binding upon all of us. Yet the Smith decision produced a harsh political and academic reaction, resulting in legislation that has radically altered the free exercise landscape. How did that happen?

In its simplest expression, what I refer to as the Reynolds doctrine holds that although my religious belief (or unbelief) is not an appropriate subject of government regulation, my actions are. The Constitution permits the imposition of restraints upon my actions, even if they are motivated by religious belief, when they “conflict with duties imposed upon society as a whole.” The alternative, said the Court, is a nation in which religious expression becomes “superior to the law of the land,” permitting ” every citizen to become a law unto himself.” 98 U.S. at 167.

The Reynolds doctrine dominated free exercise jurisprudence for over 100 years.  In 1890, for example, the Court upheld an Idaho territorial statute disqualifying those engaged in “teaching, advising and counselling the practice of bigamy and polygamy” from voting or holding office. Davis v. Beason, 133 U.S. 333 (1890). In Prince v. Massachusetts, 321 U.S. 158 (1944), a Jehovah’s Witness was convicted of violating state child labor laws by permitting her nine-year old niece to assist her in selling religious literature on the public streets. The conviction was affirmed.

In Braunfeld v. Brown, 366 U.S. 599 (1961), Orthodox Jewish merchants challenged the constitutionality of Connecticut’s Sunday closing laws, arguing that since their religious beliefs required that they be closed from Friday evening to Saturday evening, they were effectively prevented from conducting any weekend business, with serious, even devastating, financial consequences. Nevertheless, the Court concluded that the state’s interest in reserving one day a week for “rest, repose, recreation and tranquility” was intended to advance a lawful secular goal and imposed only an “indirect burden” on religious exercise because the legislation did not purport to “make unlawful the religious practice itself.” 366 U.S. at 606-607.

Opposition to the Vietnam War generated constitutional challenges to the conscientious objector exemption in the Selective Service Act, which requires that a claimant oppose war in any form. One of the petitioners in Gillette v. United States, 401 U.S. 437 (1971) was a Roman Catholic who argued that his religion mandates that the moral permissibility of an armed conflict be examined in accordance with just war doctrine. Although the Court acknowledged the authority of Congress to create a process for addressing selective objection claims, it concluded that it was not mandated by the Free Exercise Clause in view of the difficulty in fairly administering  such a system and the “Government’s interest in procuring the manpower necessary for military purposes, pursuant to the constitutional grant of power to Congress to raise and support armies.” 401 U.S. at 463.

The Court has also consistently rejected religious exemption claims in the context of tax policy. In United States v. Lee, 455 U.S. 252 (1982), the Court upheld a determination that an Amish employer was obligated to pay the employer’s share of social security taxes for his employees. “When followers of a particular sect enter into commercial activity as a matter of choice,” it said, “the limits they accept on their conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” 455 U.S. at 261.  In Bob Jones University v. United States, 461 U.S. 574 (1983), the revocation of a religious university’s tax-exempt status over its discriminatory racial policies was affirmed (under strict scrutiny analysis). The Court has also held that the minimum wage and overtime provisions of the Fair Labor Standards Act apply to non-profit religious organizations. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985). And in Bowen v. Roy, 476 U.S. 693 (1986) the Court ruled that a Native American couple could be compelled to provide a social security number for their minor child in connection with the administration of AFDC and the food stamp program despite their religious objections.

The fundamental strength of these and similar decisions lies in their recognition that the Free Exercise Clause implicates both the notion of separation of church and state and the separation of powers doctrine. With respect to the former, the cases emphasize the essential nature of religious freedom: the state may neither define religion nor question the soundness of particular religious beliefs. Thomas v. Review Board, 450 U.S. 707, 714 (1981) (“Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”); United States v. Ballard, 322 U.S. 78, 86 (1944) (“Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”)

The courts likewise honor the limitations of judicial review when they decline to exercise the legislative function of creating a religious exemption from a law of universal application when it is not constitutionally required. Indeed, the majority opinion in Smith emphasized the role of the legislative branch on this issue. “Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” 494 U.S. at 890.

But if the decision in Smith lay well within the boundaries of traditional free exercise doctrine, how do we explain the harsh reaction and the rush to impose legislative restraints on its application? The answer, as one might expect, combines legal, political, social and religious elements with, I would add, a strongly negative reaction to portions of Justice Scalia’s opinion which appeared incongruously dismissive of legitimate free exercise concerns. Stay tuned.

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40 thoughts on “What RFRA Hath Wrought-Part 3”

  1. Isaac, I’ve also said here and elsewhere Davis is an obvious attention whore. But, that sells here and elsewhere. The judge gave her the EXACT attention she desired. Manipulating attention whores are experts @ doing that.

  2. The issue is not left/right Mr. Isaac, sir. I have said many times if you are a free thinker you will be left/center/right on different issues. This issue is hypocrisy and it is clear and simple. Gavin Newsom and his ilk issued gay marriage licenses in California when it was against the law. Newsom and others were not only not hauled into court, they were beatified. And, the same people who beatified Newsom are vilifying this woman. I said back @ the time Newsom should have consequences for his illegality, and I have said here the judge, while heavy handed, was within his purview to lock up Davis. It was not very judicious, but maybe he had a couple martinis @ lunch. People can lose their usually judicial temperament when under the influence. I have said I thought if Davis were truly righteous she would resign. NO ONE has denied the Newsom v Davis hypocrisy. It’s self evident.

  3. Nick

    So, having an opinion that might lean left on one issue and an opinion that might lean right on another makes a person a hypocrite? Perhaps that’s just a free thinker objectively viewing the situation and circumstances before coming to a conclusion. These people don’t have allegiances or names like libertarian, or republican, or socialist, or progressive, etc. These people rely on their own opinion after researching the issue and are beholding to no group.

    Sometimes, often the case, an individual that is not fettered with the rules and dictums of a group will appear as part of one group and sometimes as part of another. Perhaps this is the glue that makes it all work. Hopefully this business with libertarianism, socialism, conservatism, etc is the last vestige of the past horrors.

  4. I have said @ least a couple times on this blog alone that Davis should resign. I have said it elsewhere as well. I am not a duplicitous hypocrite like liberals! Since liberals are such hypocrites they assume others are as well. It’s called projection.

  5. Paul C.: Your comment yesterday at 3:48 is completely illogical and ridiculous.

    Nick: If it was wrong for Gavin Newsom to violate his duty to follow the law, why isn’t it wrong for Davis. Are you suggesting that because someone got away with murder we should not prosecute a copycat killer?

  6. I can’t wait for the epa’s one child policy. Who could protest? Any luck in commie china? What separates us from them is the holy command to be fruitful and multiply…..and the fact that muslims can even by bigomy. So therefore so long as isis exists the seculars lose. Idiots. You are drawing the line between religion and seculars….ya don’t think religions might unite first? You bank on the stat usa is christian…..you don’t bank on the stat usa. Germany. Russia et al are christian. And we probably won’t let muslims nor secularists rule. Just an observation.

  7. Rev,
    Did anyone say she didn’t have a right to protest? She could’ve protested by resigning or by doing what she did which ended up with her being in contempt of court. Now she can continue to protest from jail.

  8. A well used definition: “Religion is Mankind’s pervasive orientation towards life.” May well date back to Hume’s and Kant’s days. Everyone has a belief structure; a pervasive orientation. “No god” is a belief as is everything up to multi-gods. Hatred of the concept of God is a pervasive orientation. Not knowing and not caring? Same thing.

    The Constitution is framed by a pervasive orientation towards life, as are the Amendments. Not all the drafters and signers were Christian; many were Diests. Anglicanism (Church of England) is thought of as a “via media” Christian tradition which has three basic principles summarized by Hooker: Scripture, tradition and reason.

    One of the basic tenets of our Republic is the right to protest. If there is no disobedience and all bow to the law of the land….just how far back do we have to go to undo everything achieved through disobedience. Protestantism has “disobedience” at its core—protest. So Annie, guess you should forfeit your vote and right to own land etc?

    As for others’ insults and ad hominems in this thread, Voltaire does speak to your rights and for us who are combat vets and happen to be Christian. I remember the oath “…support and defend the Constitution…”

    That defense includes the clerk’s right to protest. She faces her consequences, but she faces them with integrity. She was elected by the people of her locality then the law of the land changed.

    In fact, I say that she faces her consequences with more integrity than several on this thread who hurls insults from afar. Insults which smell of the detritus of a troglodyte encampment.

  9. Indeed it is perfect – right down to his ‘observer of human individuals’.

  10. When socialists speak what they really think it’s like a horror movie for us normal folk.

  11. Elspeth

    So, which tyranny do you want, the tyranny of a religious fanatic or the tyranny of the momentum, however imperfect, of the laws upon which the citizens are working at any given time. One often forgets that it is the society that protects the rights of the individual. The individual without the society would be so much target practice for another individual without a society.

  12. Elspeth, What a wonderful, intelligent comment. I hope you stick around. If you care to share, what country do you reside? Yes, individual liberty is in peril. If you haven’t heard, we have a socialist running for President. Socialism is the antithesis of the history of the US.

  13. I am not a US citizen and don’t know much about your constitution, but the idea of individual conscience seems to best function in a society that has a general consensus on world view. In our pluralistic world, whose ‘conscience’ has greater value? yours or mine? A Muslims, a Jews, or an atheists, or the supreme courts?? It all seems to be unravelling!! Perhaps this is a good moment in history for tyranny of the state v’s the individual. I am reading a good book at the moment- by Larry Siedentop called ‘Inventing the individual, The origins of western liberalism’. Context is everything. Whether it be historical or social. It certainly is in the above cases you cite, and it certainly is in the case of the clerk who followed her conscience. This ideal of individual liberty seems to be getting more diminished by the day in the west.

  14. And no, I’m not a Trump lover. But I do like the way he has thrown the political establishment, which includes the MSM, into seizures.

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