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Civil Liberties


Religious Liberty & the First Amendment. Freedom of Religion ... Implies a freedom to worship without government interference. ... Freedom Restoration ... – PowerPoint PPT presentation

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Title: Civil Liberties

Civil Liberties
  • Religious Liberty
  • the First Amendment

Freedom of Religion
  • Jefferson called religious liberty the right of
    conscience, or the right to think.
  • The framers closely tied it with freedom of
  • Why? Whats the link?

Religion Speech Rights
  • These rights protect unpopular minority views
    from government persecution.
  • Religious liberty possibly the basis of political
    rights because a right of conscience presumes the
    ability to express those views.

History of Religious LibertyEnglish antecedents

Philosopher John Locke (1632-1704) advocated
religious toleration, but only for Protestant
faiths. Yet his views more tolerant than Eng
lish law at the time, and his writings influenced
the framers 100 years later.
History of Religious LibertyEnglish antecedents
  • Under English law, Roman Catholicism had been
    the official faith until 1534, when the Anglican
    Church was established.
  • After that date, Catholics, non-Anglican
    Protestants, non-Christians and other religious
    dissenters faced legal discrimination. Government
    policies spurred the exodus of colonists to the
    Americas, including Pilgrims who settled in
    Massachusetts Bay (1620).

History of Religious LibertyEuropean antecedents
  • Early colonists also from France, where
    Protestant Huguenots faced discrimination as
    heretics in the 16th through 18th centuries.
  • From 1562 until 1598, terrible violence against
    them. A political settlement led to 30 years of
    quiet, but persecution resumed in 1629, getting
    worse after 1685. Every Huguenot church
    destroyed, and believers were burned at the stake
    or sold into slavery. Many fled for the colonies
    and elsewhere in the world.

History of Religious LibertyEuropean antecedents
  • The Dutch were important advocates of religious
    toleration. While Calvinists were influential in
    Holland, other Protestant faiths, Roman
    Catholicism Judaism were tolerated. They
    brought that belief to the colonies, and settled
    in areas of New Jersey New York.

History of Religious LibertyColonial antecedents
  • Once here, however, most colonies perpetuated
    religious intolerance.
  • For example, In Virginia, minority faiths like
    the Baptists, Presbyterians, Catholics and
    Quakers whipped, fined, imprisoned, and taxed to
    support the established Anglican Church.
  • A few colonies punished blasphemy severely
    Massachusetts, for example, executed four Quakers
    by hanging.

Beginnings of religious toleration
  • Maryland Toleration Act of 1649.
  • protected all Protestants from being molested
    because of their religious beliefs, as long as
    they did not undermine the civil government. 

Religious toleration in the colonies
  • Pennsylvania Charter of Privileges (1701).
  • protected anyone who professed a belief in one
    God, as long as the person lived quietly under
    civil government.

Toleration at time of revolution
  • Trend of increasing tolerance up to the
  • About half of the states did not permit any
    taxation to support religion the other half
  • Secular rationale churches "like schools and
    courts," provided societal benefits.

Toleration at time of Constitution
  • Full religious liberty still rare. At the time
    the Constitution was drafted, only Maryland and
    Rhode Island guaranteed it.
  • Six states still had established churches.
  • Consider example of Virginia as a colony and new

  • Anglican Church established, but state gradually
    moved away from establishment.
  • Patrick Henry in 1784 proposed a general tax to
    benefit all Christian religions. Madison,
    Jefferson and others opposed. Some thought it
    would politicize religion and undermine
    government. Others that government would
    interfere hurt religion. Henrys proposal

  • Jefferson then wrote and the state legislature
    passed the Statute for Establishing Religious
    Freedom in 1786.
  • Theme "no man shall be compelled to frequent or
    support any religious worship, place or ministry

Religious liberty the Constitution
  • No discussion at Philadelphia convention.
  • Only relevant provision a ban on religious test
    for office (Art. VI).
  • Lack of explicit protection fueled the movement
    for a bill of rights.
  • Five states attached lists of proposed
    amendments  (Virginia New York especially

Opposition to a bill of rights
  • 1. A Bill of Rights unnecessary.
  • new constitutional government only had
    enumerated powers
  • new government a republic the people were their
    own governors 
  • States had their own bills of rights in effect

Opposition to a bill of rights
  • 2. A Bill of Rights dangerous. 
  • a.) In listing rights, something fundamental
    might be left out.  A written list implied that
    rights not on the list were not covered. 
  • b.) Insistence on a bill of rights could weaken
    the new government. 

Bill of Rights movement
  • To win ratification, supporters of Constitution
    promised a bill of rights.
  • Madison in the House introduced 12 amendments.
    Two later eliminated during House debate.
  • Senate deliberated on 17, revising and
    eliminating some. Finally 12 amendments
    submitted to the states, and the requisite number
    of states ratified all but the first two by 1791.

First amendment religious protections
  • 1. the free exercise clause. Congress shall
    make no law prohibiting the free exercise of
  • 2. the establishment clause. Congress shall
    make no law respecting the establishment of

First amendment religious protections
  • Language seems clear but hides complexity and
    even an inherent tension between the two
  • When Congress grants a tax exemption for church
    property, is that establishment? Yet taxation
    might harm a church's ability to survive.

First amendment religious protections
  • How to evaluate competing liberty claims is the
    basis of many Supreme Court decisions. The
    justices themselves have varied over time in
    their willingness to accept for review or strike
    down laws relating to religious practice (figures
    11.1 11.2).

First amendment religious protections
  • Key question what is religious liberty and how
    is it best secured? This can lead to this
    troublesome question how do we define religion?
  • How does the court distinguish between genuine
    religious claims and those that are fake?

First amendment religious protections
  • Cannot rely on conventional guidelines.
  • New religions such as the Quakers and Baptists
    300 years ago, the Mormons and Seventh Day
    Adventists 100 years ago often faced
    discrimination initially and yet became
    recognized over time.

First amendment religious protections
  • Supreme Court finally answered the question in
    1944 in U.S. v. Ballard.
  • What were the facts of the case?

U.S. v. Ballard
  • A man claimed to have been called by Saint
    Germain to be a divine messenger with
    supernatural powers. Based in California, his
    church used the U.S. mails to solicit generous
    donations. The federal government charged him
    with fraud.
  • How would you evaluate his claim?

U.S. v. Ballard
  • At trial, the district judge instructed jurors
    that they could not evaluate the truth of his
    claims, only the sincerity with which he made
  • William O. Douglas, writing for the Supreme
    Court, adopted this approach and it is now the

  • Textbook mentions de Toquevilles quote about the
    religious aspect of the country, and notes that
    we live in the most religious nation in the
    developed world.
  • Is there a relationship between this religiosity
    and the secularism of the Constitution?

Free exercise of religion
  • Implies a freedom to worship without government
    interference. Is that true?
  • Can the government ban certain religious
    practices, such as snake-handling, use of the
    hallucinogen peyote, animal sacrifice or
  • Consider the following case.

Reynolds v. U.S. (1879)
  • Facts of the case?

Reynolds v. U.S. (1879)
  • Mormons settled in Utah territory to escape
    persecution elsewhere in the country, mostly due
    to the religious dictate that a man have more
    than one wife.
  • In 1874, Congress criminalized polygamy in the
    territories. Reynolds prosecuted when he married
    a second wife. His defense free exercise.

Reynolds v. U.S. (1879)
  • How did the Court rule, and why?

Reynolds v. U.S. (1879)
  • Supreme Court unanimously upheld the federal law
    Reynolds conviction.
  • Congress could regulate religious actions that
    violated social duties or subverted good order.
    (No genuine examination of Congressmotives
  • Justices drew a distinction between belief

Reynolds v. U.S. (1879)
  • Chief Justice Waite wrote that granting an
    exception to the law for Mormons would make
    religious doctrine superior to the law of the
    land, and permit every citizen to become a law
    unto himself.
  • Do you agree with his reasoning in this case?

Reynolds v. U.S. (1879)
  • He ignores the fact that the criminal law was
    specifically targeted at Mormons not a general
  • His test could justify criminalizing much
    religious exercise of unpopular faiths.
  • Further, what good is the free exercise clause if
    it protects only belief and not exercise?

Polygamy free exercise
  • As recently as 1946, a Mormon was prosecuted for
    polygamy and his conviction was upheld. He
    traveled interstate with more than one wife, so
    he was prosecuted under the Mann Act of 1910,
    outlawing transportation of women across
    state-lines for immoral purposes. (Cleveland v.

Court inconsistency
  • Was the Supreme Courts treatment of the Church
    of Latter Day Saints different than its treatment
    of more established faiths?
  • Compare these cases with Pierce v. Society of
    Sisters (1925).

Pierce v. Society of Sisters (1925)
  • Oregon passed a law that required all children
    between 8 and 16 to attend public school.
    Bringing the suit, the Sisters argued that the
    law would destroy their educational system and
    therefore impair their free exercise.
  • The Court agreed and unanimously struck down the

Developments in free exercise caselaw
  • Cantwell v. Conn. (1940)
  • Facts of Case proselytizing on the street
  • Court ruling 9-0 favoring Cantwell
  • Court reasoning time, place, manner regulations
    are okay, but this state regulation unduly
    infringed on free exercise.
  • Test used valid secular policy

Developments in free exercise caselaw
  • Minersville School Dist. v. Gobitis (1940)
  • Facts of Case mandatory flag salute in Penn.
    public schools
  • Court ruling 8-1, upholding the law
  • Court reasoning national unity is the basis of
    national security.

Developments in free exercise caselaw
  • West Virginia Board of Ed. v. Barnette (1943)
  • Facts of Case another state flag salute law.
  • Court ruling 6-3, law struck down
  • Court reasoning critique of Gobitis.
  • Jacksons conclusion 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

Developments in free exercise caselaw
  • Braunfeld v. Brown (1961)
  • Facts of Case mandatory Sunday closing law in
    Philadelphia disadvantaged Jewish company.
  • Court reasoning belief/action dichotomy
    involved. Legislatures can pass general laws to
    advance secular goals, even if they indirectly
    burden religious practice (unless the state can
    advance those secular goals without burdening
    religious practice).

Sherbert v. Verner (1963)
  • Facts of case
  • Court ruling
  • Court reasoning
  • Test used

Sherbert v. Verner (1963)
  • Facts of case Sherbert, a 7th Day Adventist,
    denied unemployment benefits because she refused
    to work on her sabbath.
  • Court ruling 7-2 in favor of Sherbert.
  • Court reasoning states refusal to accommodate
    non-Sunday worshipers violated their free
  • Test used compelling govt interest

Sherbert v. Verner (1963)
  • A new test established in this case Government
    action that substantially burdens a religious
    practice must be justified by a compelling
    government interest, even if it is neutral in its
    application. Government must show it has a
    compelling interest and these are the least
    restrictive means possible (text, p. 121)

Wisconsin v. Yoder (1972)
  • First Burger Court free exercise case.
  • Facts of case
  • Court ruling
  • Court reasoning
  • Test used

Wisconsin v. Yoder (1972)
  • Facts of case State law mandating high school
    education to age 16 challenged by Old Order
    Amish, who refused to send their children past
    the 8th grade (age 14 or so).
  • Court ruling 7-0 favoring the Amish
  • Court reasoning Amish way of life deeply tied to
    their faith older teenagers to be taught at home
    in a manner consistent with the faith and removed
    from worldly influences of high school. State
    interest in education is compelling but is met by
    the Amish alternative.

Wisconsin v. Yoder (1972)
  • Why did Douglas dissent?

Wisconsin v. Yoder (1972)
  • Did the justices follow the Sherbert
  • precedent? What test did they use?

Development of free exercise after Sherbert
  • Thomas v. Indiana Employment Board (1981)
    unemployment benefits denied for Jehovahs
    Witness who resigned rather than build weapons.
  • U.S. v. Lee (1982) Amish employer not paying
    Social Security taxes.
  • Bob Jones University v. U.S. (1983) IRS tax
    exemption lost because of schools racist
  • OLone v. Shabazz (1987) Prisoners denied right
    to attend midday Friday Moslem services.

Development of free exercise after Sherbert
  • Thomas v. Indiana Employment Board (1981)
  • Thomas prevailed 8/1 court cited Sherbert.
  • U.S. v. Lee (1982) Lee lost 9-0 court found
    govt interest in maintaining Social Security
    system compelling no less restrictive means.
  • Bob Jones University v. U.S. (1983) University
    lost on grounds that eradicating race
    discrimination was compelling govt interest.
  • OLone v. Shabazz (1987) Prisoners lost court
    accepted security argument of prison officials.

Goldman v. Weinberger (1986)
  • Court views changing.
  • Facts of case Air Force captain, an Orthodox Jew
    rabbi, wore a yarmulke military said it
    violated indoor military dress code.
  • Court ruling 5/4 against Goldman
  • Court reasoning Military uniformity necessary
    for discipline, cohesion order. Military not
    like civilian world fewer rights.

Goldman v. Weinberger (1986)
  • Dissent in Goldman v. Weinberger argued
  • members of military cannot be stripped of basic
    rights, even though many personal freedoms
  • Court majority too deferential Air Force
    provided no evidence that yarmulke was disruptive
    in any way.
  • Compelling interest test should have been used.
  • Congress passed legislation to permit religious
    apparel indoors if neat conservative.

Oregon v. Smith (1990)
  • First Rehnquist Court decision on free
  • exercise court shift complete.
  • Facts of case
  • Court ruling
  • Court reasoning

Oregon v. Smith (1990)
  • Facts of case Two drug counselors fired then
    denied unemployment benefits because they had
    injested peyote in a religious ritual of Native
    American Church.
  • Court ruling 6-3 to uphold Oregons denial of
  • Court reasoning An individuals religious
    beliefs do not exempt him or her from compliance
    with general criminal laws. Sherbert test
    applies only when cases are hybrids. Otherwise,
    anarchy results.

Oregon v. Smith (1990)
  • Majority held that no compelling government
    interest was necessary if a religious practice
    was burdened, as long as the law was neutral and
    generally applicable, and only burdened the
    practice incidentally.

Oregon v. Smith (1990)
  • Concurrence by OConnor
  • Applying compelling interest test, she upholds
    the majoritys judgment but rejects their
    reasoning as a break with precedent the meaning
    of free exercise. Sherbert precedent applies.
  • Dissent by Blackmun
  • States decision not to prosecute the men shows
    its interest is only symbolic, based on
    speculative harm from providing an exemption.
    Not sufficient to override free exercise rights.

Church of the Lukumi Babalu Aye v. City of
Hialeah (1993)
  • Facts of case Followers of Santeria religion
    planned to build a church in Hialeah, Florida.
    Deep belief in spirits, which need animal
    sacrifice to survive (chickens, doves, ducks,
    guinea pigs, goats, sheep). Animal sacrifice
    practiced at multiple ceremonies. After the
    ritual killing, they are cooked and eaten by the
  • Learning of their plan, the city council passed
    six city ordinances to ban animal sacrifice
    within city limits. Exemptions for hunters,
    fishermen, slaughterhouses, rat exterminators,
    and others who killed animals for nonreligious
    reasons. City cited Oregon v. Smith.

Church of the Lukumi Babalu Aye v. City of
Hialeah (1993)
  • Court ruling 9-0 against Hialeah
  • Court reasoning Law does not meet Smith test
    because not neutral or generally applicable.
    Specifically passed to suppress a core element of
    Santeria worship.
  • Government must have a compelling govt interest
    and law must be narrowly tailored to advance that
    interest. Hialeah has legitimate interests in
    protecting public health and preventing cruelty
    to animals, but less restrictive means available
    (e.g., regulating disposal of remains). Further,
    city does not ban non-religious killings that
    threaten those interests.

Religious Freedom Restoration Act (1993)
  • Passed by Congress following Oregon v. Smith to
    restore the compelling government interest test
    in free exercise cases. House vote unanimous
    Senate 97-3.
  • State local officials concerned that zoning
    laws, anti-noise ordinances, prison regulations
    other measures would be challenged.

City of Boerne v. Flores (1997)
  • Facts of case Archbishop sought permit to
    demolish old church build new one to
    accommodate more people. City denied permit on
    grounds of historical preservation. Church sued
    under RFRA city claimed RFRA unconstitutional.
  • Court ruling 6-3 to strike down RFRA
  • Note 4 new justices since Smith case.

City of Boerne v. Flores (1997)
  • Court reasoning Congress exceeded its power
    under the 14th amendment when passing RFRA.
    Congress can only legislate to enforce provisions
    of the 14th, not add new substantive rights.
    Otherwise, constitutional rights become no more
    than mere statutory law, easily changed.
  • Further, RFRA intrudes into every branch and at
    every level of government, barring official
    actions of almost every description and
    regardless of subject matter. And legislators
    cannot tell the justices how to rule on future
  • RFRA violates the principle of the separation of
    powers and federal balance.

City of Boerne v. Flores (1997)
  • Concurrence by Stevens
  • RFRA unconstitutional because it violates the
    establishment clause. It gives religious
    institutions a legal weapon that non-religious
    institutions cannot claim.
  • Dissent by OConnor
  • Smith ruling used improper standard and should be
    reconsidered here, especially because, as clear
    in this case, legislative action to correct a bad
    decision is practically impossible.

Current status of free exercise law
  • Proposal to pass another version of RFRA stalled.
    In 2000, a scaled back version signed into law
    the Religious Land Use Institutionalized
    Persons Act.
  • Lawsuits challenging the act are in progress.