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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Humans are animals too. All animals are equal. I said animals not snakes. No humans who think like snakes and smell like one too.
Dem Mayors who rule over sanctuary cities are praying[well, they probably don’t pray..they’re hoping] Trump doesn’t get elected. He’ll have their Dem asses in prison just like the Dem Kim Davis.
The kiddie troll cartoon show should be starting any minute now.
Gavin Newsom allowed his personal beliefs to issue marriage licenses to gay couples when they were against the law. He was beatified, not jailed.
“All animals are equal, some are just more equal than others.” George Orwell
Why is that this women is a political prisoner is in Fed Prison so soon when we have a Lawless President, AG, Clinton, Congress & Judiciary?
Many more of us today are sick to death of all this Commie/Nazi Fascist crap coming out of Obama, the Rinos & the Unconstitutional Supreme Court!
** Muhammad Ali (/ɑːˈliː/;[2] January 17, 1942 –), born Cassius Marcellus Clay Jr., is an American former professional boxer, generally considered among the greatest heavyweights in the sport’s history. A controversial and polarizing figure during his early career, Ali is now highly regarded for the skills he displayed in the ring plus the values he exemplified outside of it: religious freedom, racial justice and the triumph of principle over expedience.[3][4] He is one of the most recognized sports figures of the past 100 years, crowned “Sportsman of the Century” by Sports Illustrated and “Sports Personality of the Century” by the BBC.[5][6]
Ali began training at 12 years old and at the age of 22 won the world heavyweight championship in 1964 from Sonny Liston in a stunning upset. Shortly after that bout, Ali joined the Nation of Islam and changed his name. He converted to Sunni Islam in 1975.
In 1967, three years after winning the heavyweight title, Ali refused to be conscripted into the U.S. military, citing his religious beliefs and opposition to American involvement in the Vietnam War. He was eventually arrested and found guilty on draft evasion charges and stripped of his boxing title. He did not fight again for nearly four years—losing a time of peak performance in an athlete’s career. Ali’s appeal worked its way up to the U.S. Supreme Court, where in 1971 his conviction was overturned. Ali’s actions as a conscientious objector to the war made him an icon for the larger counterculture generation.[7][8] **
https://en.wikipedia.org/wiki/Muhammad_Ali
NO HIJAB, NO SERVICE
~ Kim Davis
Annie,
These Christians would do themselves a favor by reading their own buybull…
ROMANS 13: All of it. It is known as the Government is God’s law chapter.
Somehow Kim and crew think Romans 1 is good enough to justify their stance against the homo-sex-you-alls yet refuse to follow Romans 13. It’s as if they exist in two completely different books.
Can a Muslim DMV worker deny women driver’s licenses just because that Muslim DMV worker believes Allah forbids women driving?
“Isaac:” Pray tell, by what legal authority do so-called “sanctuary cities” write, pass, and administer local laws that make it a crime for a “law enforcement official” to cooperate with Federal Officials enforcing Federal immigration law?
The Sheriff of San Francisco had in his possession an “undocumented immigrant” who illegally crossed the border five times and committed seven felonies. ICE demanded the Sheriff hold the man till they arrived to take him into ICE possession. The Sheriff set the man free, who promptly walked up to an American citizen legally enjoying the day in SF, and shot her and murdered her completely void of provocation. She asked her father for “help” while breathing her last breaths in her father’s arms.
Other than to increase the rolls of persons on the Democratic Party Plantation (“safety net” programs) and to increase the rolls of Democratic Party stalwart voters, I would like to know why the US Attorney General has not arrested and tossed into Federal prison to “rot” as you say, every single Mayor, Supervisor, and Sheriff of every town that has passed Sanctuary City law, till they relent and nullify such law.
Is it similarly OK for cities to pass laws making it a crime to enforce other Federal Laws, such as slavery prohibition?
I was struck by the Thomas v. Review Board, 450 U.S. 707, 714 (1981) quote: “Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
As a non-lawyer I was left wondering whether this implies that religious beliefs don’t even need to be religious? My perhaps not-so-commonsense tells me that beliefs, in order to warrant First Amendment protection, must be religious in nature — even if they are not acceptable, logical, consistent, etc. etc. — but there never seems to be any kind of religious test…
Beldar here. I am wondering how many of you folks who comment here believe in any of the religions which inhabit the Earth? I am wondering whether if you subscribe to a religion then whether notions of science and history come into play or if you just have two views. The Ten Commandments are of interest to me. There seems to be some rules in there which would be good for humans on Earth to follow.
This new Pope is of interest to me as well. He seems a bit more open. Yet that sect has is share of pedophile priests. The Pope needs a new Commandment: Thou Shalt Not Wear A Priest Outfit and Do A Pedophile Act. Are there any Catholics out there who agree with that?
I am from Planet Remulak and am just here to observe.
This is why the Supreme Court would have over-turned at lot of convictions at the Nurenberg Trials. Because, according to the Supreme Court, “I was just doing my job.” is a valid excuse.
BTW, good article Mike. Glad to see you back writing.
“…..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…..”
The logical fallacy here is that if the state were half as accommodating as it requires us to be, that the orderly administration of the “injustice system” could still operate just fine.
Get real. On The Eighth Day God Created Dog whose purpose was to come to Earth to give guidance to mankind. God then got out of the picture. All the other religions are hogwash. God spelled backwards is Dog. And vice versa. If ya dont want to work on Sunday then so be it. But that is Dog Day. We will poop on your yard while you are at work.
http://youtu.be/YQG4pxn_P-A
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
****************
Whose God trumps all others? These are the dominionists who want a government run by God’s law, which means they don’t respect the Constitution as the law of the land.
Great post
The Science Geek
http://www.thesciencegeek.org
When we allow a personal belief to usurp the law of the land, we are no longer a Representative Democracy. If religious people who hold a government job cannot perform the essential duties of their position they have the right to resign. We are not yet a Theocracy, thank God.
Thank you, Mr. Appleton. I’ll say tuned.
Great article Mike!
There is nothing more that need be said. She either follows the law, resigns, complies to taking her name off of the certificates, or rots in jail. No one shall, through their fantasies, affect the legal rights of others.