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Religion And The U. S. Supreme Court - Now

by Bill Schultz

Table of Contents

 


The Law as Things Stand Now

The only real guide which the Supreme Court has is the pure and simple words from the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. As I hope I've shown in earlier portions of this presentation, there is necessarily a tension between those two clauses. When the government acts to promote prayer at official functions, it clearly "establishes" that prayer as an official expression of the government. On the other hand, when the government acts to prevent prayer at official functions, it is just as clearly "prohibiting the free exercise" of religion by those so prevented. This places many governmental officials into a classical "Catch-22" situation, with little to guide them beyond their own personal biases.

Atheists and other unbelievers must come to realize that only by respecting the right of believers to freely exercise their religious beliefs can we expect our own status as unbelievers to continue to be respected. This is the real message of the Constitution to everyone: the moment you establish an official belief (or unbelief), or officially prohibit someone's expression of belief (or unbelief), religious freedom for everybody is that much closer to elimination.

The key concept which permeates First Amendment issues must be governmental neutrality towards religion and religious exercises. The government may neither encourage nor discourage religion or religious exercises. The government need not pretend that religion does not exist, but it may not act in any way which either prefers or disfavors any given expression of belief or unbelief. This means that government cannot act with hostility towards either belief or unbelief. Both must be tolerated in appropriate circumstances.

The arguments which remain, then, all deal with the question of which are, and which are not, appropriate circumstances. No truly general rule presents itself here, so we are necessarly constrained to deal with each situation within its own framework. It is thust appropriate that we individually consider the various situations within which most of these controversies occur.

The Law on School Prayer

This topic covers more than just prayer in schools. Any sort of personal or state-mandated expression of religious beliefs in the schools will be covered here, including various anti-evolution statutes (see Edwards v. Aguillard, 482 U.S. 578 (June 19, 1987) for one such statute).

The people as a whole seem to be way ahead of the Supreme Court on the issue of under what circumstances prayer is appropriate in a school setting. I say this because there seems to be little apparent dispute over the guidelines on religious expression issued by the Department of Education. Yes, you still get fundamentalist Christians claiming that "Jesus has been thrown out of school," but of course, that is just not true.

The First Amendment also controls freedom of speech, and so the best view of what is or is not proper with respect to prayer can probably be gained by analyzing the prayer, or any other religious expression for that matter, as a form of speech. If the particular circumstances are such that any person can say anything within the bounds of overall decency, then prayer and other religious expressions are certainly allowed in any and all circumstances of that sort. But if the circumstances are such that a governmental actor (a school employee, official, or some other person in authority) either speaks in their official capacity or invites their own selected speaker to say something, then prayer and other religious expressions are generally inappropriate because those sorts of expressions become by implication the speech of the government. It should never be appropriate for the government to be telling anybody what is (or is not) the proper way to pray or the proper way to express any particular religious beliefs.

Modern case law involving prayer and other forms of religious expression frequently includes an analysis of the type of "forum" in which this activity is occurring. The "forum" concept is derived from case law on the more general subject of free speech. The required neutrality of the government means that, with respect to prayer and religious expression, the government can choose whether or not to create a "forum," but once a "forum" is created, it cannot engage in "viewpoint discrimination" as to what is or is not presented within that "forum." In a school setting, most speech by students is not "free speech," but is carefully controlled speech. When a class is in session, the individual students are expected to respond as required by the individual teachers. In this sort of a setting, no student should ever expect the right to interrupt the class in order to engage in loud praying in public. A classroom isn't at all a "forum" in the context of "free speech" cases. But during recess, breaks between classes, and lunch hours, students are generally free to speak their minds on a variety of subjects, and in these circumstances, a "forum" is created by the school. The school and its officials must be neutral (that is they must exercise "viewpoint neutrality") with respect to most student speech. This does not generally mean "anything goes," as the school does have a right to prohibit obscene speech and other forms of expression which the Supreme Court has ruled are generally not protected. But when this sort of "forum" exists, the school may not promote relgious expression nor may the school prohibit it. As with all "forum" situations, those in charge of the physical premises may impose reasonable "time, place, and manner" restrictions, but other than that, having created the "forum," they must then adopt a "hands off" attitude with respect to the expressions occurring therein.

The most controversy over governmental prayer seems to occur in the "captive audience" context. In the most recent Supreme Court decision, the ruling was 6-3 against prayer over a government controlled public address system at the beginning of a football game. (Santa Fe Independent School Dist. v. Doe, _ U.S. _ (June 19, 2000). The current tension in this regard comes from the view of the conservative minority of the Supreme Court that it is inconceivable the founding fathers would have had in mind the banning of that sort of activity given the record of their own religious exercises. Starting with the case of Marsh v. Chambers, 463 U.S. 783 (July 5, 1983), they began to pay more attention to this matter of the history of prayer in this nation and what the founding fathers might have thought about its elimination. The conservative minority sees the elimination of prayer in traditional circumstances as being an unconstitutional hostility towards religion.

The Supreme Court seems quite willing to tolerate some form of "official deism" in such matters as the modified Pledge of Allegience ("... one nation, under God, indivisible, ...") and the new national motto ("In God we Trust" replacing "E Pluribus Unum"). Clearly, the tension between this sort of majoritarian religious dogma and the state of the law requiring governmental neutrality towards religious belief and disbelief remains unresolved. Obviously, the religious right presses for a return to official Christianity (which must be admitted for at least the 19th century). But that seems to fly in the face of the increasing religious diversity of this nation of immigrants. Those who would seek to impose official Christianity upon this nation should think long and hard about the implications of such a move. Once Christianity is imposed, will we once again have battles between the Catholics and Protestants over which version of Christianity to recognize? And if the Protestants win that battle, which Protestant sect will be the first to be favored or disfavored? Yes, its a "slippery slope" argument, but who in America would prefer the religious street battles of Northern Ireland to our own Constitutional rules?

Clearly, this is the largest controversy which confronts the First Amendment. Neither side of this issue is provably "wrong" since they both have substantial historical and legal "weight" to their positions. The best view of things is that the imposition of God in the Pledge and motto occurred in the context of the anti-Communist tirades of Senator Joseph McCarthy in the 1950s. Even today, many people equate atheists with Communists. Eventually, as Communism becomes a forgotten legacy of the Cold War and the Russian people become more integrated into the Western system of things, we should be able to put those historical prejudices to one side and return to the secular patriotism of our forefathers. If we cannot, then the demise of Western Civilization seems assured.

Links To Case Summaries (Most Recent First):

  • Santa Fe Independent School Dist. v. Doe, _ U.S. _ (June 19, 2000) prohibited the use of a school-controlled public address system to deliver a prayer prior to the start of a school football game, even when the students had voted to have the prayer and to pick a fellow student to give the prayer on their behalf.

  • Lee v. Weisman, 505 U.S. 577 (June 24, 1992) held that a school official could not select an official clergy member to deliver an invocation and/or benediction at a high school graduation ceremony, distinguishing Marsh v. Chambers, 463 U.S. 783 (July 5, 1983) (allowing a paid chaplain for the Nebraska legislature) on the grounds of compelled attendance and age of participants.

  • Karcher v. May, 484 U.S. 72 (December 1, 1987) held that, in a case involving a "moment of silence" law invalidated by a lower court on constitutional grounds, the presiding officers of the legislature, previously participating in their official capacities, could not appeal to the Supreme Court in their individual capacities after losing their offices and their successors having withdrawn their official participation in the litigation. Thus, the appeal was dismissed.

  • Edwards v. Aguillard, 482 U.S. 578 (June 19, 1987) held unconstitutional a state's requirement to teach creationism if any evolutionary theories were taught.

  • Wallace v. Jaffree, 472 U.S. 38 (June 4, 1985) upheld a "minute of silence" law, but threw out a pair of corresponding laws providing for oral prayer as violations of the Establishment Clause.

  • Stone v. Graham, 449 U.S. 39 (November 17, 1980) summarily declared unconstitutional a state law requiring the posting of the Ten Commandments in schools.

  • Epperson v. Arkansas, 393 U.S. 97 (November 12, 1968) overturned as unconstitutional an Arkansas "anti-evolution" statute. "Arkansas' law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read."

  • Abington School District v. Schempp, 374 U.S. 203 (June 17, 1963) struck down laws and practices allowing or requiring Bible readings, prayers, and other religious exercises during the official opening ceremonies for each school day, holding that "as the state cannot forbid, neither can it perform or aid in performing the religious function."

  • Engel v. Vitale, 370 U.S. 421 (June 25, 1962) Struck down an official government prayer for school children to recite each day, holding "that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943). Explicitly overruled Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940), etc., thereby granting the Jehovah's Witnesses the right to refuse to participate in flag salutes and other ceremonies they viewed as idol worship. The key holding is:

    "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

  • Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010 (June 3, 1940), totally *OVERRULED* by West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943).

Action Items:

  • Work to repeal or have invalidated Title 36, Section 172 of the United States Code, which specifies the "under God" portion of the Pledge of Allegience, and Title 36, Section 186 of the United States Code, which specifies the "In God we Trust" version of the national motto. For more information on this, please see the Pledge Restoration Project web site.

  • Refuse to say the Pledge in its current form. Not only omit the two objectionable words, but sit through any group recitation, as West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943) defines it to be your constitutional right to do so. If you are asked about this conduct, take advantage of the opportunity to educate people about this McCarthy-era holdover in our national consciousness.

  • Work to repeal or have invalidated any and all provisions whereby governments pay for chaplains to perform religious exercises and engage in religious speech at taxpayer expense. Remind people of James Madison's Memorial and Remonstrance (1785) which says, in opposition to a proposed Virginia law to tax the citizens for the support of "teachers" of Christianity:

    [Who does not see t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

  • Work to raise the public consciousness on why "compelled speech" on matters of political opionions, nationalistic expressions, or religious opinions, is (or at least, should be) unconstitutional. Refer to West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (June 14, 1943) for the following quote:

    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

The Law on Aid to Religious Schools

After a decades-long battle between the forces who claim, on the one hand, that any aid given to sectarian schools must be viewed as aid to religion, and, on the opposing side, that aid refused to schools because they are sectarian is discrimination against religion, plain and simple, the latter view has now prevailed. The long battle began perhaps seemed to begin with Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947), but the roots of the struggle reach back as far as Bradfield v. Roberts, 175 U.S. 291 (December 4, 1899), where the Supreme Court found no problem with a government contract with a Catholic order to provide a hospital. Next, in Quick Bear v. Leupp, 210 U. S. 50 (May 18, 1908), the Supreme Court again found no problem with a government contract with the Catholic Church to provide schools for Indians, as was required by the government's treaty obligations to those Indians. So it should not really have been very surprising that the Everson court allowed the government to reimburse parents for the costs of bus fares to get their children to Catholic schools. But the dissent in Everson produced James Madison's Memorial and Remonstrance (1785) as the greatest contemporary example of exactly what the founding fathers meant by the few words of the First Amendment. Madison took alarm that a government "which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever." Thus are the battle lines drawn between those who would not approve one cent of aid to any sectarian school and those who would approve virtually any such aid.

Being of a fair mind in this matter, I find it difficult to criticize what has emerged as the modern compromose between these two extremes. This compromise is expressed in Agostini v. Felton, 521 U. S. 203 (June 23, 1997) and Mitchell v. Helms, _ U.S. _ (June 28, 2000). What these two cases say amounts to more or less this:

  • Government is under no obligation to aid private schools.

  • Should government choose to aid private schools, the aid cannot be discriminatory against those private schools which express some particular religious viewpoint.

  • Government may condition aid on neutral criteria which are in accord with the secular purpose for which the aid is to be provided.

  • While government cannot directly aid in the communication of a religious message (at least, not outside of the context of Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (June 18, 1993) which authorized the providing of a sign-language interpreter), the providing of "dual use" technology (such as motion picture projectors and VCRs) is not prohibited by the Constitution.

One way to understand the reasons for this compromise would be to look at the case of Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925). That case involved a challenge by a Catholic school and a secular military academy. Suppose for a moment that the Supreme Court had held that the secular military academy had a right to continued existence but that the Catholic school did not, since to allow it to continue to exist in parallel with the secular school system would amount to an "establishment" of the Roman Catholic faith. Would that not have been anti-Catholic discrimination? I do hope you can see that as the case. So, what the modern compromise on government aid to private schools really says is this: if the government chooses to aid any private schools, it may not discriminate against private religious schools simply because those schools are including a religious message along with their secular educational program. As the Pierce case holds, the government may set standards for private school education. "No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." Beyond that, however, the parents and private schools have a perfect right to control the education their children receive and the government may not discriminate against the schools of any particular sect, or all sects, or no sects at all. If the government chooses to act, it must do so with a neutrality towards religion.

While I might personally have wished for an elimination of all aid to private schools, that battle is primarily a political one. We can question our legislators as to why they are aiding private schools when there is too little money to maintain the public schools. But if our legislators choose to aid private schools, we cannot complain, even if the primary beneficiary is the Roman Catholic Church, so long as the aid is granted on a basis neutral towards religious viewpoints. And frankly, at the end of the day, I see this as probably the correct standard over the long run.

Links To Case Summaries (Most Recent First):

  • Mitchell v. Helms, _ U.S. _ (June 28, 2000) allowed "Chapter 2" general aid to schools (which allows private schools to receive "loans" of equipment and other instructional materials) could be given to private religious schools even if this involves so-called "dual use" technology which might be diverted to the presentation of a religious message (like projectors and VCRs).

  • Agostini v. Felton, 521 U. S. 203 (June 23, 1997) reversed and overruled the prior precedents of Aguilar v. Felton, 473 U.S. 402 (July 1, 1985), which was overruled completely, and School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (July 1, 1985), to perhaps a lesser degree. The net effect of this is to allow public employees who are providing so-called "Title I" aid to children to provide that aid on the grounds of religious schools, subject to certain restrictions. In the process, the Supreme Court modified the so-called "Lemon Test" from Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971).

  • Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687 (June 27, 1994) held that a New York statute which established a special school district for the benefit of disabled Satmar Jews was an unconstitutional "Establishment" of religion. The dissent noted that New York had created similar districts for secular purposes before, and that this arrangement was apparently the best way to deliver desireable government benefits to handicapped Satmar children.

  • Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (June 18, 1993) held that it was not a violation of the Establishment Clause for a deaf student in a Roman Catholic school to receive the neutral benefit of a government-paid sign language interpreter as provided by law.

  • Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (January 27, 1986) held that the Establishment Clause was not violated by the provision of vocational rehabilitation services to a blind person seeking to pursue a career as a pastor, missionary, or youth director.

  • Aguilar v. Felton, 473 U.S. 402 (July 1, 1985), totally *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997).

  • School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (July 1, 1985), almost totally *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997).

  • Mueller v. Allen, 463 U. S. 388 (June 29, 1983) held that a statute providing tax deductions for costs related to private schools was constitutional in spite of the fact that most of the beneficiaries were parents who were sending their children to religious schools.

  • McKeesport Area School District v. Pennsylvania Department of Ed., 446 U.S. 970 (June 2, 1980) dismissed an appeal challenging a law providing for transportation services for religious schools.

  • Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 (February 20, 1980) held that a revised law which now provided for auditing of state funds paid to private religious schools to ensure proper use of those funds was not unconstitutional, as its predecessor had been declared in Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (June 25, 1973).

  • New York v. Cathedral Academy, 434 U.S. 125 (December 6, 1977) held that a state law, enacted to provide an equitable remedy for sectarian schools who had detrimentally relied upon a promise of payment made in a statute previously declared unconstitutional, was itself unconstitutional, and thus no payments of reimbursable expenses could be allowed.

  • Wolman v. Walter, 433 U. S. 229 (June 24, 1977), totally *OVERRULED* by Mitchell v. Helms, _ U.S. _ (June 28, 2000).

  • Roemer v. Maryland Public Works Board, 426 U.S. 736 (June 21, 1976) found that there was no constitutional violation in a Maryland system of non-categorical grants to colleges for non-sectarian educational purposes.

  • Meek v. Pittenger, 421 U. S. 349 (May 19, 1975), totally *OVERRULED* by Mitchell v. Helms, _ U.S. _ (June 28, 2000).

  • Wheeler v. Barrera, 417 U.S. 402 (June 10, 1974) declined to assess the First Amendment issue with respect to so-called "Title I" educational funds provided to the state because the defendant school districts below had not yet implemented any such program for private schools and thus there was no actual program available for review.

  • Sloan v. Lemon, 413 U.S. 825 (June 25, 1973) held as unconstitutional a state system of reimbursement for private school tuition payments, following Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973).

  • Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 (June 25, 1973) held as violations of the Establishment Clause a series of aid programs designed to assist parents and private sectarian schools, including a program to help defray building maintenance expenses, a program to reimburse private school tuition for low-income families, and a program of income tax deductions for those not qualified under the tuition reimbursement scheme.

  • Hunt v. McNair, 413 U.S. 734 (June 25, 1973) held that a state program to finance and lease back buildings at a sectarian college was constitutional in that it restricted buildings in this program from religious use and involved minimal supervision by the state to ensure compliance with the restrictions.

  • Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (June 25, 1973) held as unconstitutional a New York program to reimburse sectarian schools with fixed sums of money to cover the costs of state mandated services, such as testing and record keeping.

  • Norwood v. Harrison, 413 U.S. 455 (June 25, 1973) upheld a Mississippi law regarding the loan of textbooks to private sectarian schools with the proviso that "The District Court can appropriately direct the appellees to submit for approval a certification procedure under which any school seeking textbooks for its pupils may apply for participation on behalf of pupils. The certification by the school to the Mississippi Textbook Purchasing Board should, among other factors, affirmatively declare its admission policies and practices, state the number of its racially and religiously identifiable minority students and such other relevant data as is consistent with this opinion."

  • Lemon v. Kurtzman, 411 U.S. 192 [Lemon II] (April 2, 1973) held that, after the decision for Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971), the District Court did not abuse its discretion in allowing the religious schools to collect reimbursements due to them up until the time of the decision rendered in that prior case.

  • Tilton v. Richardson, 403 U.S. 672 (June 28, 1971) generally allowed the federal government to fund buildings and other facilities with "strings" attached prohibiting their use for religious purposes, but invalidated as an unconstitutional "establishment" of religion a 20-year limit on the duration of said "strings."

  • Lemon v. Kurtzman, 403 U. S. 602 (June 28, 1971), which was at least partly *OVERRULED* by Agostini v. Felton, 521 U. S. 203 (June 23, 1997), struck down statutes allowing private religious schools to have some or all of the salaries of certain teachers paid by the states. The Court also formulated the so-called Lemon test as a tool for analyzing these and other similar cases.

  • Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (June 10, 1968) upheld as constitutional a law requiring public schools to lend to all students in specified grades the textbooks used in the public schools, even if the students attended private religious schools, following Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947).

  • Flast v. Cohen, 392 U.S. 83 (June 10, 1968) carved out an exception to Frothingham v. Mellon, 262 U.S. 447 (June 4, 1923) which generally bars suits by taxpayers challenging the constitutionality of federal statutes. For the instant case, the Court held that whenever the Constitution can be viewed as a bar to the spending power of Congress, as it is for Establishment Clause cases, then a taxpayer may gain standing to sue to enforce that bar.

  • Everson v. Board of Education, 330 U.S. 1 (Feb. 10, 1947) held that a state law which, among other things, allowed parents to be reimbursed for the cost of bus fare to transport their children to and from school, did not violate the Establishment Clause by failing to eliminate reimbursements where the child attended a religious school. [Read the very important language of this case!]

  • Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 (April 28, 1930) held that it was not a violation of the First Amendment for Louisiana to provide free school books to all students at taxpayer expense when some of those students attended private sectarian schools, with the private school children receiving the same books as the public school children.

  • Quick Bear v. Leupp, 210 U. S. 50 (May 18, 1908) held that certain Indians could not challenge the actions of the federal government in contracting with sectarian (primarily Roman Catholic) schools to educate the Indians because the funds paid on the contract were out of a trust fund provided for Indian education under obligations assumed by treaty, and thus these were not "public funds" but were instead the private funds of the Indians, held in trust for them, and there were no constitutional objections possible when the Indians themselves obviously expressed a desire to obtain their education through this sort of school by their enrolling therein.

Action Items:

  • Recognize that school voucher programs will be approved against a First Amendment challenge by the current Supreme Court. Accordingly, oppose vouchers and other aid to private schools on the grounds of the money any such aid takes away from public schools.

  • However, even the current Supreme Court has not gone so far as to authorize the use of public funds to promulgate a religious message or to perform religious exercises, so be vigilant against any diversions of public aid to those ends.

  • Work to raise the public consciousness on why taxpayers should never pay for anyone to perform religious rituals or engage in religious speech. Remind people of James Madison's Memorial and Remonstrance (1785), as cited as authority by the Supreme Court in Flast v. Cohen, 392 U.S. 83 (June 10, 1968), which Remonstrance says, in opposition to a proposed Virginia law to tax the citizens for the support of "teachers" of Christianity:

    [Who does not see t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

The Law on Religious Practices

The fact that the civil law generally allows certain practices which are in accord with the religious views of the majority and generally disallows certain practices (such as polygamy) which are not in accord with those religious views, but which are in accord with the religious views of some minority group, is not in and of itself a violation of the Constitution. The full protection of the First Amendment attaches to beliefs only, and only to a lesser degree to expressions of belief, and to a still lesser degree to practices founded upon beliefs.

What there is in the way of a legal standard as to what practices may not be disallowed is expressed by the recent case of Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993). Unfortunately, those standards deal far more with the motives for enacting any given prohibition (motives which are rarely easy to prove) and far less with any fixed standard against which to measure any given practice to see if it must be allowed. The standard which has evolved appears to be this:

  • If a law or regulation is seen to burden a religious practice, to survive a challenge, it must be neutral, affecting religious and non-religious actors in the same way. ("... if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral." ... "[n]eutrality in its application requires an equal protection mode of analysis.")

  • Also, if a law or regulation is seen to burden a religious practice, to survive a challenge, it must be generally applicable to everything related to the evil which it purports to address. (This analysis attempts to define whether the challenged law or regulation is either overinclusive or underinclusive, or if it is targeted at exactly the evil it purports to address.)

  • If a law fails either or both of the above challenges (and since the inquiry for both is related, a failure one prong will generally imply a failure of the other), then to survive challenge, the law or regulation "must undergo the most rigorous of scrutiny: it must be justified by a compelling governmental interest, and must be narrowly tailored to advance that interest.

  • There are seemingly two other circumstances where so-called "heightened scrutiny" is justified:

    • 1. "[W]here the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason."

    • 2. In "hybrid" cases involving a mixture of rights (such as a combination of "Free Speech" and "Free Exercise"), the so-called "compelling interest" test may be invoked (particularly where it is called for by one of the other rights at issue therein).

Frankly, the Hialeah ordinances which were invalidated by the Supreme Court in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993) were so obviously enacted in circumstances where it had to be viewed as an attempt to outlaw the practice of the Santeria religion, that the Hialeah case doesn't provide a very good legal standard for determining cases in a general manner in the wake of the major change in the law with Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990). And the huge pressure mounted by the religious right to restore the "compelling interest" test (which never really existed outside of the benefits arena) could have the unintended consequence of eventually requiring that government make special allowances for the practice of "witchcraft" and similar pagan religious rituals.

A more carefully drafted law in Hialeah would have survived constitutional challenge. But it should also have outlawed the slaughter of meat by kosher butchers as well as the Santeria animal sacrifices. The tiny distinction between the two methods of animal killing was not lost on the Supreme Court in its Hialeah opinion. It's enough to make one wonder how many Jewish animal rights activists ever think about how kosher meat is obtained.

What is the morally correct answer here? Well, if we didn't allow the killing of animals for sport, we should not allow the killing of animals for religious purposes; but since we do allow the killing of animals for sport, its hard to justify prohibiting the killing of animals for religious purposes. In the broader sense, no activity should be made illegal simply because some minority group performs that activity as part of its religion. And if you choose to outlaw some religious practice, be certain to outlaw all similar practices, even by favored groups.

But we should never forget the inter-relationship between laws and liberty. Laws should only be enacted when the overall good of the group demands protection. Let us look at this quote from Jacobson v. Massachusetts, 197 U.S. 11 (February 20, 1905):

But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that 'persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.' [Citations omitted.] ... 'The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.'

Links To Case Summaries (Most Recent First):

  • Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993) overturned a series of city ordinances enacted specifically to keep a Santeria church out of the city of Hialeah, FL. The ordinances were nominally enacted to prevent animal cruelty, but were actually designed to prevent the sort of animal sacrifice practiced by the Santeria cult.

  • Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990) broadly limited challenges to religiously-neutral and generally applicable laws on the grounds that they burden a religious practice, limiting the applicability of of other so-called "Free Exercise Clause" precedents to either 1) circumstances where some other right, such as "Free Speech," was at issue; or 2) circumstances where the government was conducting an individualized review of benefit eligibility and was refusing to accomodate a religious practice (the "unemployment compensation" cases).

  • Frazee v. Illinois Dep't of Employment Security, 489 U.S. 829 (March 29, 1989) held that a failure of the employee to identify himself religiously other than just "Christian" was no reason to deny him unemployment benefits for a refusal to work on his Sabbath day, following the cases beginning with Sherbert v. Verner, 374 U.S. 398 (June 17, 1963).

  • Employment Div., Dept. of Human Resources of Ore. v. Smith, 485 U.S. 660 (April 27, 1988) remanded this case to the Supreme Court of Oregon for it to determine whether or not, under Oregon law, the use of peyote as a religious sacrament was illegal (criminal) conduct.

  • Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (April 19, 1988) held that a government program to build a road through, and harvest timber from, a forest area traditionally used by Indians for religious purposes did not violate the Free Exercise Clause.

  • O'Lone v. Estate of Shabazz, 482 U.S. 342 (June 9, 1987) held that in the special circumstances of a prison, it did not offend the Free Exercise clause to keep a Muslim prisoner away from prayers when the operation of the prison made it logistically impossible to allow attendance.

  • Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (February 25, 1987) held that a state may not refuse unemployment benefits to a person who was fired for refusing to work on her Sabbath, citing Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) and cases following that principle.

  • Bowen v. Roy, 476 U.S. 693 (June 11, 1986) upheld a statute requiring a Social Security Number for administration of welfare benefits against a Free Exercise Clause claim by a native American.

  • Goldman v. Weinberger, 475 U.S. 503 (March 25, 1986) held that the Free Exercise clause did not support the claim of a military service member that he should be allowed to wear a Jewish yarmulke while in uniform since the military is a special case, and military regulations are entitled to "great deference."

  • Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (June 26, 1985) held a state statute that granted an unqualified right to workers to refuse to work on their Sabbath day to be an unconstitutional establishment of religion.

  • Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (April 6, 1981) held that a Jehovah's Witness who refused to perform work directly related to weapons production, and who then quit when no non-weapons jobs were offered to him, must be granted unemployment insurance compensation after he was involuntarily transferred from his previous non-weapons-related job.

  • Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (June 16, 1977) held that a union employee, who was prevented by the contractually agreed seniority system from avoiding work on his Saturday Sabbath, was not subjected to unlawful discrimination on the basis of religious beliefs.

  • Wisconsin v. Yoder, 406 U.S. 205 (May 15, 1972) held that a parent's right to control their child's education, in combination with the parent's religious beliefs that education beyond the 8th grade would be harmful to those children, and proof that the children received valuable informal vocational training after completing the 8th grade, all operated to excuse those children from the State of Wisconsin's compulsory school attendance law requiring attendance until age 16.

  • Cruz v. Beto, 405 U.S. 319 (March 20, 1972) ordered that the District Court must hold hearings and make findings as to the allegations of a prisoner, an alleged Buddhist, who was claiming religious discrimination against him.

  • Sherbert v. Verner, 374 U.S. 398 (June 17, 1963) held that South Carolina could not exclude a person from unemployment compensation when their status of being unemployed was due to the exercise of their right to observe their Sabbath on a particular day (in this case, Saturday).

  • Poulos v. New Hampshire, 345 U.S. 395 (April 27, 1953) upheld a city ordinance as only creating reasonable time, place, and manner restrictions and thus, when unlawfully denied a permit, the proper remedy was to seek judicial intervention rather than to insist on continuing without the required permit, and thus the resulting criminal convictions were also upheld.

  • Fowler v. Rhode Island, 345 U.S. 67 (March 9, 1953) held that when a statute, as applied, provides "that a religious service of Jehovah's Witnesses is treated differently than a religious service of other sects, ... [t]hat was a discrimination which we held to be barred by the First and Fourteenth Amendments," following Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).

  • Feiner v. New York, 340 U.S. 315 (January 15, 1951) upheld the conviction of a university student for his making of an inflammatory speech which engendered a sufficiently angry reaction that it could be reasonably determined to have been an "incitement to a breach of the peace," of which he was convicted. (c.f., Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951), which see.)

  • Kunz v. New York, 340 U.S. 290 (January 15, 1951) declared unconstitutional a New York City ordinance which made it unlawful to hold a religious meeting on a street without a permit, which permit could be denied for arbitrary reasons. (See also Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951).)

  • Niemotko v. Maryland, 340 U.S. 268 (January 15, 1951) overturned the convictions of two Jehovah's Witnesses for "breach of the peace" due to their conducting a public meeting in a park after a permit for said meeting had been denied for no apparent good reason.

  • Rescue Army v. Municipal Court, 331 U.S. 549 (June 9, 1947) after a lengthy discussion of the unusual procedural posture of the case, the challenged statute, and some of the surrounding facts, dismissed the appeal "without prejudice" to further review should that become necessary. The appeal herein was with respect to the denial of a write of prohibition to prevent a series of criminal prosecutions in the Municipal Court of California for the violation of City of Los Angeles ordinances regulating solicitation of contributions for charitable and religious purposes.

  • Cleveland v. United States, 329 U.S. 14 (Nov. 18, 1946) held that certain Mormons who practices polygamy were properly convicted of violating the Mann Act, making criminal "the transportation in interstate commerce of 'any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose'." The Court found that polygamy was just such an "other immoral purpose."

  • Tucker v. Texas, 326 U.S. 517 (Jan. 7, 1946) overturned a criminal conviction of a Jehovah's Witness for continuing to "peddle merchandise" after having been asked by the property owner's agent to leave. The property was a "company town" owned by the United States, but the Court elected to follow the "company town" precedent for private property decided the same day in Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946) [see below], refusing to allow the property manager to ban or control the distribution of religious literature.

  • Marsh v. Alabama, 326 U.S. 501 (Jan. 7, 1946) overturned a criminal conviction of a Jehovah's Witness for distributing religious literature within a privately owned "company town" against the posted wishes of the property owner. The Court rejected "the state's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms" "of press and religion."

  • United States v. Ballard, 322 U.S. 78 (April 24, 1944) reversed a Court of Appeals reversal of a criminal conviction for mail fraud, noting "we do not agree that the truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury." The case was then remanded to the Court of Appeals for consideration of "other distinct grounds" for the reversal of the convictions.

  • Follett v. McCormick, 321 U.S. 573 (March 27, 1944) held unconstitutional as applied a statute requiring a "business license" for the distribution and sale of religious literature by a Jehovah's Witness, who was convicted of willfully violating the business license requirement.

  • Prince v. Massachusetts, 321 U.S. 158 (Jan. 31, 1944) held as proper a criminal conviction of a Jehovah's Witness mother who used her 9-year-old daughter as part of her street missionary efforts. "The state's authority over children's activities is broader than over like actions of adults."

  • Taylor v. Mississippi, 319 U.S. 58 (June 14, 1943) overturned a Mississippi statute making it a felony punishable by imprisonment for various sorts of speech, writings, and conduct which (among other things) "reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag or government of the United States, or of the state of Mississippi."

  • Douglas v. City of Jeannette, 319 U.S. 157 (May 3, 1943) held that, in light of the decision rendered for Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), there was no reason to suppose that the authorities sought to be restrained herein would not follow those newly-declared principles of law, and thus the decision dismissing the suit was affirmed for want of any equity to be done.

  • Martin v. Struthers, 319 U.S. 141 (May 3, 1943) overturned a ban on doorbell ringing and knocking for the purpose of distributing handbills or literature, but indicated that an ordinance enforcing homeowner signs banning such disturbances would be constitutional.

  • Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943) held that a license tax could not be imposed upon Jehovah's Witnesses who "sold" religious literature in a door-to-door campaign as this infringed their freedoms of speech, press, and religion.

  • Jones v. Opelika, 319 U.S. 103 (May 3, 1943). Decided together with Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), above. Explicitly vacated and overruled Jones v. Opelika, 316 U.S. 584 (June 8, 1942).

  • Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667 (March 8, 1943) held unconstitutional a Paris, Texas municipal ordinance requiring the obtaining of a permit from the mayor before offering printed matter for sale (in this case, Bible tracts, etc.).

  • Jamison v. Texas, 318 U.S. 413 (March 8, 1943) held unconstitutional a Dallas, Texas municipal ordinance making it unlawful to distribute handbills and other sorts of advertising or free speech items.

  • Jones v. Opelika, 316 U.S. 584 (June 8, 1942), totally *OVERRULED* by Jones v. Opelika, 319 U.S. 103 (May 3, 1943). Decided together with Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), above.

  • Cox v. New Hampshire, 312 U.S. 569 (March 31, 1941) affirmed criminal convictions for Jehovah's Witnesses who were found guilty of "'taking part in a parade or procession' on public streets without a permit as the statute required."

  • Cantwell v. Connecticut, 310 U.S. 296 (May 20, 1940) overturned criminal convictions obtained against three Jehovah's Witnesses, holding that the requirement of obtaining a certificate from a state official, who must determine if the cause propounded was a "religious" one, was unconstitutional.

  • Schneider v. State, 308 U.S. 147 (Nov. 22, 1939) overturned as unconstitutional prior restraints a series of municipal laws which 1) forbade the distribution of handbills advertising a political meeting; 2) forbade the distribution of handbills explaining the nature of a labor dispute; 3) forbade the distribution of handbills announcing a meeting to protest certain aspects of the state unemployment insurance system; and 4) prohibiting a Jehovah's Witness from soliciting door-to-door.

  • Lovell v. Griffin, 303 U.S. 444 (March 28, 1938) invalidated a requirement that a license must first be obtained from the City Manager before distribution of printed religious materials could be made within the city.

  • Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299 (February 3, 1890) rejected a writ of habeas corpus seeking the release of a Mormon convicted of polygamy. [The lengthy rant in this case has long been seen as standing for the proposition that the government can outlaw any activity for which a good and sufficient reason can be shown, even if that reason is based solely upon a history grounded in the Christian morality of the founding fathers.]

  • Reynolds v. United States, 98 U.S. 145 (1878) affirmed a criminal conviction for the crime of bigamy. The bulk of the opinion was taken up with the denial of a defense of religious duty, the court holding that with the First Amendment, "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."

  • Letter to the Danbury Baptists (January 1, 1802), by Thomas Jefferson, as President. Justice Scalia has repeatedly criticized the excessive reliance on this letter by the Supreme Court in Reynolds v. United States, 98 U.S. 145 (1878), above.

Action Items:

  • Recognize that "out of the mainstream" religions are feared by the majority, and so any time religion might gain a foothold, try to work with the practitioners of such religions to help you oppose the use of public facilities or funds by mainstream religious groups. Nothing will get prayer out of the schools faster than a Santeria or Wiccan group asking for "equal time." So, work to raise the consciousness of the community with respect to non-mainstream religious practices occurring within your local area. A good human interest story in the local newspaper about a Wiccan group wanting to perform at a school might be all that is needed to kill off an appearance by a Christian missionary.

The Law on Religious Use of Public Property

By now, most governmental bodies have gotten the message that they should not use public funds to support the presentation of religious messages (a few "Ten Commandments" nuts notwithstanding). The modern state of the law with respect to religious use of public property is that religious use is a form of "speech" and thus a neutral analysis of any proposed religious use can generally be performed by using the normal guidelines for any other form of speech on public property. This generally requires an analysis of the public property's characteristics as a "forum" ("traditional," "limited," or otherwise) and an assessment of the appropriateness of the proposed usage under "free speech" case law.

Under the most recent Supreme Court cases, an unconstitutional use of public property occurs only when the religious use of public property creates a substantial impression that one religion (or sect) is "preferred" over any others. (see Allegheny County v. Greater Pittsburgh Chapter, American Civil Liberties Union, 492 U.S. 573 (July 3, 1989), where a Catholic crèche display was given a preferential location on the grand staircase of the courthouse). Government "endorsement" and/or "preference" is almost never found when the area used for the religious use is a "traditional public forum" and the government applies religiously neutral government policies when approving the religious use (i.e., by imposing reasonable time, place, and manner restrictions on the religious use; see, e.g., Capitol Sq. Review Bd. v. Pinette, 515 U.S. 753 (June 29, 1995), where the governmental body was attempting to prevent the display of a cross by the Ku Klux Klan and the Supreme Court ruled that it could not do so consistently with its own neutral policies).

Because the law of the "public forum" now rules religious displays and other religious uses of public property, the government cannot now keep out minority viewpoints. So, if the atheists, Wiccans, pagans, Santerians, and other minority religious groups wish to have public displays of their own, they must be permitted by the government, who is not permitted to show favoritism to any particular person or organization who wishes to use the "public forum." All that the government can do is impose reasonable time, place, and manner restrictions.

Links To Case Summaries (Most Recent First):

  • Capitol Sq. Review Bd. v. Pinette, 515 U.S. 753 (June 29, 1995) held that "a private, unattended display of a religious symbol in a public forum" does not violate the Establishment Clause and must be permitted by the standards of "viewpoint neutrality" applicable to public forums. The case involved a large Latin cross erected by the Ku Klux Klan.

  • Allegheny County v. Greater Pittsburgh Chapter, American Civil Liberties Union, 492 U.S. 573 (July 3, 1989) held that a crèche provided by a Roman Catholic order, and located in the most prominent and accessible part of the courthouse, with no other similar displays nearby, violated the Establishment Clause, and in non-binding portions of his opinion, held that the Chanukah menorah located next to a Christmas tree display in an outdoor area did not violate the Establishment Clause.

  • Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (June 15, 1987) invalidated a ban of "all First Amendment activity" within the terminals of the Los Angeles International Airport.

  • Scarsdale v. McCreary, 471 U.S. 83 (March 27, 1985). 739 F.2d 716, affirmed by an equally divided Court. (The case apparently involved a crèche display.)

  • Lynch v. Donnelly, 465 U.S. 668 (March 5, 1984) held that a city-owned crèche, which was being displayed as part of a much larger display of secular items, and which had been similarly displayed for four decades, did not violate the Establishment Clause.

  • Marsh v. Chambers, 463 U.S. 783 (July 5, 1983) held that the Nebraska legislature did not violate the Establishment Clause by hiring a chaplain using public money and having the chaplain offer an invocation and/or benediction in connection with legislative sessions.

  • Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (January 12, 1982) held that the plaintiffs lacked standing to challenge a gift of surplus governmental real estate to a private Christian college because the disposition occurred under the "Property Clause" of the Constitution and thus had nothing to do with taxes, eliminating the right of taxpayers in general to challenge the actions of the government.

  • Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640 (June 22, 1981) held that a state statute requiring that sales of merchandise, distribution of literature, and donations to organizations could only occur at booths which were allocated in a non-discriminatory manner was not a violation of the Free Exercise Clause with respect to the religious practices of the Krishna movement.

  • Bradfield v. Roberts, 175 U.S. 291 (December 4, 1899) denied a challenge to a hospital corporation established by Congress which was to be run by Roman Catholics on the ground that this amounted to an unconstitutional "establishment" of religion by Congress.

These sorts of concepts also control the use of public school facilities for religious purposes. Also, the federal Equal Access Act compels schools to grant permits for student religious clubs if the school receives any federal funding and if the school has any clubs at all which are not directly related to the curriculum of the school (i.e., a French Club would not trigger the requirement so long as the school has a course in the French language). Most schools are deemed to have created a "limited public forum" with respect to any clubs or other groups which the school allows to meet at the school. Some schools may also have "traditional public forums" where the school has even less of an ability to control exercises of free speech, including religious activities.

About the only major undecided issue is whether or not an elementary school with a "limited public forum" that has never before allowed religious services to be conducted therein must be compelled to admit a youth group to conduct youth religious services if it has opened its forum to other youth groups like the Boy Scouts, etc. That issue will be decided this year (2001) in the case of Good News Club v. Milford Central School, No. 99-2036. Frankly, the case can go either way, depending upon exactly which Supreme Court justices view the issue as "discrimination against religious speech" (and decide the case based upon Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 385 (June 7, 1993), where a church was unconstitutionally denied the use of a school auditorium), or whether they view the exclusion of religious services as a permissible choice for any governmental body which has created a "limited public forum" (and thereby affirm the Court of Appeals decision, which upheld the "limited forum" classification).

It is clear that schools which have created "traditional" public forums, and particularly in cases where the operations of that "traditional" forum are financed with forced exactions from the students (in the form of "student activity fees" and the like), cannot discriminate against those individuals and groups who desire to present a religious message within the context of the forum (see Rosenberger v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (June 29, 1995), where a Christian group was denied certain funding even though it was an otherwise approved student group). And in that same situation, objecting students have no right to a refund or other relief from the burden of supporting speech within the forum with which they disagree (see Board of Regents of the University of Wisconsin System v. Southworth, _ U.S. _ (March 22, 2000), where an objecting student sued to prevent his contribution from being used to support various groups with which he disagreed). But these "student activity fee" cases are really just minor side notes on the overall case law controlling the use of a "traditional public forum." When the governmental entity is doing its job, the fact that the speech in question is religious in nature is little more than an interesting side note.

Links To Case Summaries (Most Recent First):

  • Good News Club v. Milford Central School, No. 99-2036 (By July, 2001), this case will decide whether or not a church youth organization can force a school with a "limited open forum" to allow it to conduct religious services for elementary school children by claiming that those religious services actually constitute "moral and character development."

  • Board of Regents of the University of Wisconsin System v. Southworth, _ U.S. _ (March 22, 2000) upheld a system of forced contributions into a student fund which supported a wide variety of speech activities, some of which were objectionable to the complaining students. The Supreme Court distinguished its prior holdings against this sort of practice in other contexts.

  • Rosenberger v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510 (June 29, 1995) held that a university which had an "open forum" could not refuse to fund religious groups which were properly allowed access to the forum under otherwise neutral rules. Funding must be granted similar to that granted to similar student groups.

  • Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 385 (June 7, 1993) held that a school which had a "limited open forum" which had been used by a wide variety of groups could not legally prevent a similar use by a church that wished to show a series of movies about so-called "family values" issues.

  • Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226 (June 4, 1990) upheld the constitutionality of the "Equal Access Act" (98 Stat. 1302, 20 U.S.C. 4071-4074) as applied to secondary schools receiving federal aid, which act required said schools to permit religious clubs under certain conditions specified by the Act.

  • Bender v. Williamsport Area School Dist., 475 U.S. 534 (March 25, 1986) in a case of alleged religious discrimination (involving the refusal of a school to allow the formation of a religious club), dismissed the appeal of a school board member on the grounds that he had no personal standing to pursue the appeal, noting that the parties had already remedied the alleged discrimination.

  • Widmar v. Vincent, 454 U. S. 263 (December 8, 1981) held that a university, having created a forum "generally open for the use of all student groups," could not exclude from that forum a group whose speech was primarily religious in nature.

  • Zorach v. Clauson, 343 U.S. 306 (April 28, 1952) upheld as constitutional a New York "released time" religious education program whereby some students would be released from public schools in order to attend religious education classes while the remaining students would be retained in the public schools, with appropriate checks to see that the released students did attend the religious classes, etc., distinguishing Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (March 8, 1948) on the grounds that it involved the use of public school facilities for the religious education programs.

  • Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (March 8, 1948) declared unconstitutional "the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education." This invalidated a program where "released time" religious instruction was performed in public school buildings by religious instructors provided by a local council of churches.

Action Items:

  • Organize a group of atheists or other freethinkers to create a "Winter Solstice" display. Pick a local town and find out exactly how the permit process works for the community's usual "Christmas" display. Get there earlier with a better proposal for the next available season. Install your "Winter Solstice" display with celebration of many pagan attributes in lieu of the usual "Christmas" display. See to it that the Christian display is relegated to "third fiddle" as competing freethought displays are generally treated (due to the lateness of the application, etc. etc.). Watch the locals squirm. Heck, help them squirm by sending atheists in singly or in small groups to compliment this year's display! Have fun!

  • Organize groups of atheists, Wiccans, and/or other minority religious members in any school which has active "Christian Club" groups. Make certain that these groups get lots of publicity in the local newspaper, etc. If the school board calls a meeting to consider what to do about "witchcraft" and "satanism" on school premises, appear and remind them that so long as they have any non-curriculum clubs, they have to let all religious groups form clubs under the provisions of the Equal Access Act since virtually all public schools receive at least some federal aid. Again, have fun!

The Law on Religious Exemptions

Religions receive a number of special privileges from the government, and these privileges have been broadly upheld as having a secular purpose.

First, most religious groups and activities are exempt from property and income taxation. (see Walz v. Tax Comm'n of New York City, 397 U.S. 664 (May 4, 1970), where the Supreme Court upheld a series of exemptions from taxation which favored religious groups.) Frankly, these tax exemptions are as readily granted to atheist organizations (such as the Internet Infidels, who hold 501(c)(3) tax exempt status) as they are granted to religious organizations. So, the primary complaint here would seem to be based simply on the quantity of religious organizations receiving those exemptions. But that is a direct relationship to the relative popularity of religious organizations, which is something controlled by the free choices of individuals. In any case, its probably fruitless to attack this sort of exemption since it is so popular and since it is broadly granted to any organization that agrees to play by the rules which govern charities.

Links To Case Summaries (Most Recent First):

  • Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412 (January 10, 1972) A challenge to a tax exemption for a church parking lot which was used as a commercial parking lot during the week was essentially moot, given the subsequent repeal of the challenged statute and the enactment of new legislation. The judgment was vacated and remanded for further proceedings, during which the original plaintiffs would have the opportunity to challenge the new statute.

  • Walz v. Tax Comm'n of New York City, 397 U.S. 664 (May 4, 1970) upheld the granting of property tax exemptions to churches and other religious non-profit groups as not violating the Establishment Clause.

Second, however, even within the overall realm of charity organizations, religions receive "special treatment." However, to the extent I've been able to identify these "special rules" for religious groups, most only appear to extend to an inability to make any secular judgment whatsoever about matters of religious dogma. Accordingly, in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (June 21, 1976) the Supreme Court reiterated the longstanding rule that civil courts must generally defer to the decisions of the defined religious hierarchy in disputes over church property. But in cases like Corporation of Presiding Bishop of Church of Jesus Christ of Later-day Saints v. Amos, 483 U.S. 327 (June 24, 1987), where the Mormon church was held to be exempt from claims of religious discrimination in its hiring practices because federal law allowed just such an exemption, and NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (March 21, 1979), where the Catholic Church was held to be exempt from laws providing its teachers the right to organize unions "absent a clear expression of Congress' intent to bring teachers of church-operated schools within the NLRB's jurisdiction," religious groups did receive some very special privileges. Essentially, there are many ordinary business activities that a church can operate with far fewer regulations than could any equivalent non-church organization, and to at least that extent, these exemptions seem to be grossly unfair.

Links To Case Summaries (Most Recent First):

  • Corporation of Presiding Bishop of Church of Jesus Christ of Later-day Saints v. Amos, 483 U.S. 327 (June 24, 1987) applied a federal law allowing an exemption from anti-discrimination laws for religious discrimination carried out by a religious organization in the course of its operations.

  • Jones v. Wolf, 443 U.S. 595 (July 2, 1979) held that in a property dispute where a congregation had split into a majority and a minority faction, it was not clear that Georgia had applied the correct law, so the Supreme Court vacated and remanded to Georgia for it to consider whether or not the holding of the superior religious body should be followed in lieu of following the neutral property laws of Georgia.

  • NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (March 21, 1979) held that the National Labor Relations Board could not exercise jurisdiction over a labor dispute between lay teachers and church-run schools, holding that the First Amendment prevented that sort of interference in church affairs absent Congress explicitly providing such authority, which did not appear herein.

  • Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (June 21, 1976) overturned a judgment by the Supreme Court of Illinois to the effect that the upper echelon(s) of the Serbian Eastern Orthodox Church had violated its own rules in the removal of a bishop and the reorganization of its churches in the United States and Canada because, as a hierarchical church, the decision of the ruling hierarchy is entitled to deference when any dispute of this sort lands in court.

  • Maryland and Virginia Eldership v. Church of God at Sharpsburg, Inc., 396 U.S. 367 (January 19, 1970) "Since state court's resolution of property dispute between church bodies was made on basis of state law that did not involve inquiry into religious doctrine, the appeal involves no substantial federal question."

  • Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440 (January 27, 1969) held that courts may not try an issue of whether or not church doctrine has changed in resolving a dispute over church property, and in the case of a hierarchical church organization, there must be general deference to the decisions of the church hierarchy.

  • Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (June 6, 1960) found that the common law of the State of New York also could not be used to prevent the proper ecclesiastical body from appointing the head of the Russian Orthodox Church in New York, following Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (November 24, 1952).

  • Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (November 24, 1952) held that New York violated the First Amendment Free Exercise Clause when it enacted a statute to settle a property dispute over control of the Russian Orthodox Cathedral in New York because the duty of secular authorities in resolving church property disputes is to determine what the ruling of the proper ecclesiastical body is and then implement that ruling (at least, in the case of a hierarchical church).

  • Gonzalez v. Archbishop, 280 U.S. 1 (Oct. 14, 1929) held that the courts could not be used to force the granting of a hereditary chaplaincy, along with its income, to an individual who did not meet the requirements of the religious authorities for the holding of that ecclesiastical office.

  • Holy Trinity Church v. United States, 143 U.S. 457, 12 S. Ct. 511 (February 29, 1892) held that a prohibition against the aid or encouragement of alien immigration "to perform labor or service of any kind" could not and did not include an arrangement to hire a foreign minister to server at a US church as Congress could not have intended to bar this particular activity. [This case is primarily known for its long rant by Justice Brewer about how the United States "is a Christian nation."

  • Watson v. Jones, 80 U.S. 679 (1871) defined the three classes of religious trust as 1) an explicit trust (such as that created by a will); 2) an independent congregational church; and 3) a church which is subject to the control of some superior church body. For the latter class, the civil courts are bound to recognize the authority of the superior church body.

  • Vidal v. Girard's Executors, 2 How. 127 (1844) affirmed a lower court's decree dismissing a suit challenging a will which gave a substantial fortune to the City of Philadelphia to found what is now Girard College as an elementary and secondary school for homeless boys. The relatives challenged "anti-Christian" will provisions.

Third, many religious groups seek (and some obtain) exemption from zoning regulations and other general land use controls. (see City of Boerne v. Flores, 521 U. S. 507 (June 25, 1997), where the Catholic Church sought exemption from historical preservation laws; recently, the California Supreme Court narrowly upheld a California law which created exactly that sort of right within the State of California.) Still, while Congress passed, and the President signed, the Religious Freedom Restoration Act, the Supreme Court struck it down as an unconstitutional attempt of the legislature to intrude into a space controlled by the Supreme Court (see Boerne, supra). This category also includes situations where a religious organization is given veto power over land usage decisions, such as liquor licenses and adult businesses.

Links To Case Summaries (Most Recent First):

  • City of Boerne v. Flores, 521 U. S. 507 (June 25, 1997) struck down the Religious Freedom Restoration Act of 1993 (RFRA), holding that Congress exceeded its authority when it tried to force a revision in Supreme Court legal standards for deciding First Amendment cases.

  • Larkin v. Grendel's Den, Inc., 459 U.S. 116 (December 13, 1982) held that a local law which gave churches veto power over the issuance of liquor licenses was an unconstitutional "Establishment" of religion since the government function was allowed to be exercised by the church.

Another privilege (or "religious exemption") accrues to those people who claim "conscientious objector" status in order to get out of being drafted into military service. (But see United States v. Seeger, 380 U.S. 163 (March 8, 1965), where the Supreme Court extended the exemption to anyone whose belief "is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This result was supported by, among others, the American Humanist Association.) [Also see the section on the law on religious discrimination for some related cases dealing with naturalization and the "test oath" used therein.]

Links To Case Summaries (Most Recent First):

  • Gillette v. United States, 401 U.S. 437 (March 8, 1971) affirmed two cases where men were convicted of refusing to report for induction into the armed services, holding that objection to a particular war (in this case, the Viet Nam War) was not within the exemption statute allowing for conscientious objectors which only allowed objectors to "war in any form" to be recognized. The Court rejected an argument that this amounted to picking and choosing which religious beliefs a person is lawfully allowed to follow.

  • Welsh v. United States, 398 U.S. 333 (June 15, 1970) held that this case was controlled by United States v. Seeger, 380 U.S. 163 (March 8, 1965), reasserting that the test for conscientious objector status was whether or not the objection was based upon "A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption."

  • United States v. Seeger, 380 U.S. 163 (March 8, 1965) held that it was proper to grant conscientious objector status to a person who expressed non-traditional theistic beliefs leading them to become a conscientious objector. "The validity of what he believes cannot be questioned. Some theologians, and indeed some examiners, might be tempted to question the existence of the registrant's 'Supreme Being' or the truth of his concepts. But these are inquiries foreclosed to Government."

  • Hamilton v. Board of Regents, 293 U.S. 245 (Dec. 3, 1934) upheld a requirement of the University of California that, as a condition of attendance, all able bodied citizens of the United States must take a course of military training leading to their possible commission as officers in the reserve. The university had refused to make the requirement optional or to make provisions for any conscientious objectors.

You could argue that the Amish and Jehovah's Witness cases, such as the landmark case of Murdock v. Pennsylvania (a.k.a. Jones v. Opelika), 319 U.S. 105 (May 3, 1943), amount to the creation of a special privilege for religious groups, but I believe that would be an erroneous impression. As these cases have developed over the years, freedom of religious speech has been generally absorbed into the overall case law defining the limits of ordinary freedom of speech and freedom of the press. The fact that it was religious speech or religious printed matter was almost incidental to most of these cases. So it is as well with the "abortion" cases which the religious right seems to seek involvement in. The religious issues that underlie these actions get little or no mention. And besides, not all of these cases have been won by the religious claimant. Frankly, while not directly cited by many modern cases, most of these cases rely upon earlier case law which, when traced back, ultimately relies upon the doctrine of substantitive due process as declared by the Supreme Court in the cases of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923) and Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925).

Links To Case Summaries (Most Recent First):

Most of these cases are discussed as part of the discussion for the law of religious practices, above, or the failed attempts to overturn various laws in the next section, below. Please see the Practices discussion or the next section, below, for more cases of this type. (A few "miscellaneous cases" important to the vindication of religious freedoms are also listed in this section.)

  • Bowen v. Kendrick, 487 U.S. 589 (June 29, 1988) refused to find that the Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U.S.C. 300z et seq. (1982 ed. and Supp. IV) was an unconstitutional restriction on the right to an abortion.

  • Larson v. Valente, 456 U.S. 228 (April 21, 1982) held unconstitutional a law which imposed a greater administrative burden on any religious group which collected 50% or more of its income from non-member contributions.

  • Harris v. McRae, 448 U.S. 297 (June 30, 1980) held that the so-called "Hyde Amendment" (which limited or eliminated federal Medicaid funding for abortions) did not violate the Establishment Clause, and that the complaining individuals lacked standing to challenge under the Free Exercise clause, among other issues, and thus the "Hyde Amendment" was fully constitutional.

  • United States v. Christian Echoes National Ministry, Inc., 404 U.S. 561 (January 24, 1972) held that the United States could not use the direct appeal mechanism to vest jurisdiction in the Supreme Court when the successful challenge to governmental action only effected a narrowing of the interpretation of a statute, not its invalidation, and the constitutional issues discussed by the District Court were only obliquely related to the case at hand. (The case involved an IRS revocation of 501(c)(3) status due to political activity, etc.)

  • Wieman v. Updegraff, 344 U.S. 183 (December 15, 1952) held as unconstitutional a test oath which lumped together innocent involvement with "Communist front" groups and knowingly disloyal conduct of the same sort, stating that university teachers could not be terminated for refusing to sign such an oath.

  • Pierce v. Society of Sisters, 268 U.S. 510 (June 1, 1925) held unconstitutional an Oregon initiative statute requiring all children within the State of Oregon between certain ages to attend public schools and providing for criminal sanctions for the failure to do so. The Court relied upon the precedent of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923), which in turn declared the general principles for the construction of the Fourteenth Amendment's protection of the "liberty" of every person.

  • Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923) held unconstitutional a Nebraska statute which criminalized teaching younger children in any language other than English.

  • Jacobson v. Massachusetts, 197 U.S. 11 (February 20, 1905) held that it was permissible under the Constitution for a state to use criminal penalties to enforce its vaccination program against Smallpox. This case is primarily important for its broad statement of the relationships between liberty and restraints on liberty in a modern social order.

Finally, not every decision of this sort has gone in favor of the religious claimant. In Davis v. United States, 495 U.S. 472 (May 21, 1990) the Supreme Court upheld an IRS decision denying tax deductability for payments made by Mormon parents to support their children while they were on their church-required mission. Similarly, in Hernandez v. Commissioner, 490 U.S. 680 (June 5, 1989) the Supreme Court upheld the IRS denial of deductability for payments made to the Church of Scientology for "auditing" services. In Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 (January 17, 1990) the Supreme Court upheld the right of the State of California to impose sales and use tax on religious materials sold or used within the State of California. And in one of the most egregious examples of religious abuse to come to light during this research, in Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (April 23, 1985) the Supreme Court held that a religious ministry that engaged in "rehabilitation" of former criminals and drug addicts was subject to the Fair Labor Standards Act, and thus must make payments of minimum wages and meet various other requirements imposed to prevent abuse of workers. And in two cases which were grounded in Freedom of the Press, the Supreme Court held that the states could not grant exemptions from taxation to one class of publisher (including religious publishers) while forcing another class of publisher to pay the tax. These cases were Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (February 21, 1989) and Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (April 22, 1987), both of which relied upon Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (March 29, 1983) for this basic principle that different classes of publisher could not be subjected to discriminatory taxation.

Frankly, it is very difficult to justify the very different results obtained in NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (March 21, 1979) and in Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (April 23, 1985) as being anything other than a preference for the Roman Catholic Church. Why are the Catholic teachers not protected by the general labor laws while the employees of the Alamos are? Good question!

Links To Case Summaries (Most Recent First):

  • Davis v. United States, 495 U.S. 472 (May 21, 1990) upheld an IRS decision denying tax deductability for payments made by Mormon parents to support their children while they were on their church-required mission.

  • Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378 (January 17, 1990) upheld the right of the State of California to collect non-discriminatory sales and use taxes on the sales and use of religious materials within the State of California.

  • Hernandez v. Commissioner, 490 U.S. 680 (June 5, 1989) held that payments by practitioners of Scientology for "auditing" services were not deductible "contributions" to the Church of Scientology.

  • Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (February 21, 1989) held that the states could not grant exemptions from taxation to one class of publisher (including religious publishers) while forcing another class of publisher to pay the tax. In this case, "Freedom of the Press" trumps the "Free Exercise" of religion.

  • Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (April 22, 1987) held that a non-religious publisher could not be made to pay a tax from which religious publishers were exempt. As above, "Freedom of the Press" trumps the "Free Exercise" of religion.

  • Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (April 23, 1985) held that a religious foundation which "rehabilitated" people through a program during which they provided work was still subject to the provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U.S.C. 201 et seq., and that this did not offend the "Free Exercise Clause."

  • Bob Jones University v. United States, 461 U.S. 574 (May 24, 1983) upheld an IRS revocation of the tax exempt status of a private religious college due to its practice of racial discrimination against a challenge that said racial discrimination was a requirement of its deeply held religious beliefs.

  • United States v. Lee, 455 U.S. 252 (February 23, 1982) upheld a challenge to the Social Security laws by an Amish farmer who claimed that he should be exempt on "Free Exercise" grounds.

  • Johnson v. Robison, 415 U.S. 361 (March 4, 1974) held that benefits provided to military veterans, but which were withheld from those who performed alternative service based upon their status as conscientious objectors, did not unconstitutionally discriminate against said objectors due to their religious beliefs and did not deny members of their class the equal protection of the laws.

Action Items:

  • Recognize that its not very likely that property taxes will be imposed on church property any time soon, so we ought to focus on other areas which are more susceptible to near-term change. Among those would seem to be the re-imposition of neutral general laws on business operations run by churches. Why should a church-run business be exempt from laws banning religious discrimination in its employment practices? Why should church-run schools and other businesses be exempt from unionization by its workers? I suppose you could ask why churches find it necessary to run schools and hospitals in the first place, in competition with private businesses, but thats another place we probably shouldn't go (after all, who likes to think about the money-grubbing profit-making corporation that runs your local hospital?). When lobbying on the imposition of labor and civil rights laws for church-run businesses, we should remember to point to the extreme level of abuse suffered by the workers for the Tony and Susan Alamo Foundation and then ask why the larger church groups should be exempt from these same laws, and thus able to similarly abuse their workers. That just isn't fair!

  • Oppose state-level efforts to exempt church-owned real estate from historical preservation and other zoning laws. Point out the loss to the community when historical church structures are distroyed, and the danger of allowing unregulated buildings to be used by church goers.

The Law on Religious Discrimination

First, I should point out that, at least in the modern era, much of the law on religious use of public property is litigated on the premise that restrictions against religious use constitute an unconstitutional discrimination against religious beliefs. Accordingly, you should also examine that section for more information on this particular subject. Similarly, much of the law on religious practices is litigated on the same premise, so you should also examine that section for still more information on this same subject.

This section is used to highlight those few cases overturning, or refusing to overturn, some law that made the receipt of some particular benefit, or the ability to perform some particular activity, conditional upon some particular religious status, particularly Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961), which held that atheists could not be excluded from public office, and McDaniel v. Paty, 435 U.S. 618 (April 19, 1978), which held that ministers could not be excluded from public office. It is difficult to see either of these cases as being objectively wrong. In the former, a person had been excluded from public office for not being religious enough, and in the latter, a person had been excluded from public office for being too religious. However, neither of these cases indulged in any substantial analysis of the underlying legal principles, so we are left wondering just what sort of "scrutiny" ought to be applied.

Also included in this section is a series of cases from 1961 wherein the Supreme Court refused to overturn so-called "Blue Laws," restricting business activities which may lawfully be carried out on Sunday. Subsequent political activism by Jews and others has largely resulted in the repeal of most of these laws, with most of the remaining laws being largely ignored.

And the trigger for applying "heightened scrutiny" is somewhat unclear in the wake of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (April 17, 1990), which broadly limited the use of "heightened scrutiny" for Free Exercise claims. It could be theorized that the modern Supreme Court would view these cases as "hybrid," but the exact language from Smith itself limits the "hybrid" cases to those involving "communicative activity or parental right." However, the "hybrid" cases themselves are all grounded in Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (June 4, 1923), which in turn declared the general principles for the construction of the Fourteenth Amendment's protection of the "liberty" of every person as including "not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." So long as the right to seek and hold public office can be seen as one "of the common occupations of life," which is a likely scenario should this matter ever come up before the Supreme Court (see McDaniel, where the right to hold office was recognized as a "civil right" within the State of Tennessee), then the "hybrid" theory could be extended to cover these older cases that invalidated a system of religious classification using "heightened scrutiny" or some similar (but unstated and unidentified) standard.

However, the more likely path of analysis for these cases would be that found in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993), where Justice Kennedy, speaking for a very fractured Supreme Court, found that to avoid the use of "heightened scrutiny," he was necessarily forced to find the laws in question were "not neutral" and "not generally applicable." It seems reasonable that this same path of analysis could be followed for the Torcaso and McDaniel cases in order to reach the same result. Thus, it would appear that "heightened scrutiny" has clearly met its death, so far as restrictions upon religious discrimination by the law might go. Instead, the analysis looks for "neutrality" and "general applicability" and, only when those factors are lacking, the law is invalidated "unless it is justified by a compelling interest and is narrowly tailored to advance that interest," which was the standard set forth and used in the Hialeah case.

.

Links To Case Summaries (Most Recent First):

  • Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (June 11, 1993) overturned a series of city ordinances enacted specifically to keep a Santeria church out of the city of Hialeah, FL. The ordinances were nominally enacted to prevent animal cruelty, but were actually designed to prevent the sort of animal sacrifice practiced by the Santeria cult.

  • McDaniel v. Paty, 435 U.S. 618 (April 19, 1978) held that a state law barring ministers from holding public office was an unconstitutional restraint upon the free exercise of religion as it made the ability to serve in public office conditional upon the abandonment of the religious office.

  • Johnson v. Robison, 415 U.S. 361 (March 4, 1974) held that benefits provided to military veterans, but which were withheld from those who performed alternative service based upon their status as conscientious objectors, did not unconstitutionally discriminate against said objectors due to their religious beliefs and did not deny members of their class the equal protection of the laws.

  • Torcaso v. Watkins, 367 U.S. 488 (June 19, 1961) held that "a declaration of belief in the existence of God" as a qualification for the holding of an office in the State of Maryland "unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him."

  • Gallagher v. Crown Kosher Market, 366 U.S. 617 (May 29, 1961) followed the below cases of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961), and Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961), essentially holding that these Jewish merchants did not have a constitutional right to demand an exemption from Sunday closing laws because their Sabbath is on Saturday.

  • Braunfeld v. Brown, 366 U.S. 599 (May 29, 1961) followed the below cases of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961) and Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961) with respect to most of the issues raised against the Pennsylvania "Blue Laws." The appellants herein, orthodox Jewish merchants, complained that the Sunday closing laws, combined with their own religiously compelled closing from sundown Friday until sundown Saturday, worked an extreme disadvantage upon them by imposing the Christian Sabbath upon Jews. The plurality dismissed these claims on the grounds that this is just the natural result of upholding the Sunday closing laws when a person is an observer of a different Sabbath day.

  • Two Guys v. McGinley, 366 U.S. 582 (May 29, 1961) followed the lead case of McGowan v. Maryland, 366 U.S. 420 (May 29, 1961), finding little in the Pennsylvania laws to distinguish this case from the Maryland laws.

  • McGowan v. Maryland, 366 U.S. 420 (May 29, 1961) upheld an amazingly irrational set of Maryland "Blue Laws" against constitutional challenges, finding that even Virginia, while passing its "act for establishing religious freedom," apparently did not repeal any Sunday closing laws, and since that "act" has been taken as evidence of the meaning of the First Amendment, it therefore follows that Sunday closing laws were not viewed by the founding fathers as offensive to the First Amendment.

  • Girouard v. United States, 328 U.S. 61 (April 22, 1946) upheld the granting of US citizenship to a Seventh Day Adventist who stated on his citizenship application that he was not willing to take up arms but would serve as a noncombatant, in the process declaring that United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448 (May 27, 1929), United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570 (May 25, 1931), and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569 (May 25, 1931) were all wrongly decided.

  • In re Summers, 325 U.S. 561 (June 11, 1945) refused to reverse a decision of the Supreme Court of the State of Illinois, which had refused to admit an attorney to the practice of law on the grounds that he was a conscientious objector to war and could not therefore agree to "protect and defend" the State by service in the Illinois militia.

  • United States v. Bland, 283 U.S. 636, 51 S.Ct. 569 (May 25, 1931), totally *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).

  • United States v. Macintosh, 283 U.S. 605, 51 S. Ct. 570 (May 25, 1931), totally *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).

  • United States v. Schwimmer, 279 U.S. 644 , 49 S.Ct. 448 (May 27, 1929), totally *OVERRULED* by Girouard v. United States, 328 U.S. 61 (April 22, 1946).

  • Mormon Church v. United States, 136 U.S. 1 (May 19, 1890) reviewed at length, and completely upheld, an act of Congress which dissolved the Mormon Church's primary corporate holding entity and escheated to the United States all property thereof, with certain identified exceptions, as punishment for encouraging the idea that polygamy ought to be practiced.

  • Murphy v. Ramsey, 114 U.S. 15 (March 23, 1885) refused to overturn a congressional limitation on the right to vote (requiring that Mormons not be in a bigamous or polygamous relationship), but allowed those who could prove that they were unlawfully denied the right to vote to sue for damages (due to overzealous enforcement of said requirement).

Action Items:

  • Work for full equality between religious wedding and ceremony presiders and their secular counterparts. See my Secular Wedding Ceremonies page for more information on your current alternatives.


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The text of this essay is Copyright © 2000-2001, by William A. Schultz. All Rights Reserved. Used by permission of the author.

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