>>Dr. Justin Wert: There’s an inevitable tension
in the 1st Amendment between the two religion clauses in seeking both to prevent an establishment
of religion and guarantee the free exercise of religion. In many cases the state, the
government itself, is in a catch 22 position as it carries out its normal duties. Take
for example a state’s decision to provide workers compensation insurance for workers.
It applies to everyone who works and makes no distinctions between or among those it
covers. Moreover, in administering the program properly and efficiently the state has determined
that those who do not comply with the requirements of the legislation will not receive it’s benefits.
For example, an individual who chooses not to work when work is offered will be ineligible
for the benefit. In this seemingly religiously neutral example the state simply identified
a need; workers compensation insurance, and created a solution that was fair, and that
protected the state from fraud. But now imagine that you’re religiously devout and part of
that devotion entails you observing a day of rest on a Saturday not the traditional
Sunday which most everyone in your town including your employer observes. Now assume you work
at a factory that runs 6 days a week and everyone is expected to work each of those days. What
do you do? Do you choose your livelihood over your spiritual beliefs? What about the state’s
legitimate interest in carrying out its own duties. Cases like this will serve as the
core of our discussion this week about the First Amendment’s Free Exercise clause. And
like in our discussion of Establishment Clause cases, we’ll see the Court has developed certain
tests to help them wade through this often difficult area of jurisprudence. There are two broad themes that the Court
has developed in Free Exercise cases. Not all of them have been followed to a T by the
Court, nor have they remained unchanged or free from controversy. Nevertheless, they
compromise the core issues involved in Free Exercise jurisprudence. The first is that
a law cannot on its face discriminate on the basis of religion. Nor can a law be religious
in nature or purpose. A law which tax Protestants at a lower rate than Catholics, for example,
violates the establishment clause. Second, government, both the state and federal, (remember
the Free Exercise clause is not incorporated against the states until the 1940’s) has necessary
duties to carry out, and enforce the laws it creates. So there needs to be some balancing
between otherwise neutral governmental duties and responsibilities and religious Free Exercise.
Sometimes, government actions win out over Free Exercise claims, like when the Court
ruled that prohibitions against polygamy, mandatory small pox vaccinations, and Sunday
closing laws did not violate the Free Exercise clause. Sometimes Free Exercise wins, like
when the Court ruled that a Maryland law that required government employees to affirm a
belief in God and a Tennessee law which barred ministers and priests from state party delegations
violated the Free Exercise clause. There are other difficult aspects of Free Exercise jurisprudence.
For one, it’s extremely difficult to define religion. What counts as a religion that would
qualify for consideration under the clause? Could I form a religion with three of my friends
where we meet at our local watering hole and then claim the benefits of Free Exercise?
Also, the Court has always maintained a distinction between thought and action, especially with
respect to Free Exercise. In this sense, we’re free to believe whatever we want, but we’re
always potentially limited in carrying out those ideals. Finally, and maybe most importantly,
whose answers to these questions are the most legitimate? We know there will be disagreement
over the answers to these questions: “What’s a religion?” and “How do we properly balance
between thought and action?”, but who should resolve them in a way that is consistent with
the Constitution? Should the Court, made up of nine unelected members (some of whom who
have differing religious beliefs themselves) resolve these fundamental questions for us?
Should Democratic majorities like Congress or a state legislature resolve them? These
are important questions and as you’ll see in these cases for this section, the Court
will grapple with each of them. They’ll try at times to define what religion is and what
it isn’t. They’ll develop a test, called the Least Dramatic Means Test, that will seemingly
help them resolve cases where Free Exercise claims by individuals meet otherwise generally
applicable laws. And they’ll identify and then struggle with how to strike a balance
between religiously neutral state duties and the Free Exercise clause. So as you read the
cases for this section, think about these challenges: How does the Court define religion?
Obviously, just any grouping of people won’t count, but is that still right? In defining
religion, does the Court get close to violating the Establishment clause? In other words,
if some religions are seen as more legitimate than others for purposes of the Free Exercise
clause, does that mean the state favors some kinds of religion over others? What are the
legitimate interests of the state, both the national government and the states themselves?
And once we identify them, how do we deal with Free Exercise challenges that arise?
A state certainly has a duty to protect itself during war for example, and drafts are common.
Some might object for religious and secular reasons; what do we do? How legitimate is
the Supreme Court at making these decisions for us? Are these decisions better made by
Congress, state legislatures, or local communities and government? Enjoy the Free Exercise cases.
They represent some of the most interesting and difficult civil liberties cases that you
will read all semester.