Free Exercise and Guns

Balancing test

1. compelling interest to infringe on right

2. no other less restrictive way to accomplish that interest

Sherbert v. Verner (1963)

Vote: 7-2

Facts: Appellant was discharged from her job for refusing to work on Saturday, teh Sabbath for her relig (7th Day Adventist). Her claim for unemployment compensation was denied by the Employment Security Commission b/c her Saturday restriction brought her w/in the disqualifying provision of not accepting “suitable work when offered.” Everyone else worked 6 days a week and had off Sunday, which is the day of rest for MOST people in SC.

Holding: A state may not apply unemployment eligibility provisions so as to constrain a worker to abandon their religious convictions respecting the day of rest.

Opinion:

(1) Compelling interest? Yes, money.

(2) Less restrictive way? Yes, prevent “raid” on treasury by not specifying day person must take off.

(3) If a law impedes the observance of one or all religions, it is not constitutionally valid (Braunfeld v. Brown).

Dissent:

(1) Applicant was denied for not working full time, not her religious beliefs.

(2) States may choose to accommodate religion, but this decision forces them to.

Note: Amish don’t have to school past 8th grade b/c productive and not asking for gov handouts (Wisconsin v. Yoder). Some states allow people to wear religious headwear in ID, some do not.

Oregon v. Smith (1990)

Vote: 6-3

Facts: Alfred Smith and Jalen Black were fired from their jobs as a private drug rehabilitation organization because they took peyote. Both were part of the Native American Church and did so for sacramental purposes in religious ceremonies. They were denied unemployment benefits b/c their discharge was for work-related “misconduct.” State appellate court said free exercise, Oregon Supreme cited Sherbert v. Verner, SC remanded back to Oregon Supreme to determine if state laws made exception for peyote; they did not.

Holding: The sacramental use of peyote is not protected under the Free Exercise clause.

Opinion: Neutrality

(1) An individual’s religious beliefs do not excuse them from complying to an otherwise valid law prohibiting conduct that the state is free to regulate.

Concurring:

(1) State has compelling interest and least restrictive means.

Dissent:

(1) Compelling interest but there are less restrictive means.

(2) This is “symbolic preservation of an unenforced law.”

Note: Real split is 5-4 over compelling interest least drastic means test and Scalia’s new test: if law generally applicable & religiously neutral, fine. Congress tried to make SC use the compelling interest least drastic means test through the passage of the RFRA, SC said 9-0 f no.

303 Creative LLC v. Elenis (2023)

Vote: 6-3

Facts: Lorie Smith founded 303 Creative LLC, a business that offers website design services to individuals. Colorado’s Anti-Discrimination Act prohibits public businesses from discriminating based on sexual orientation , etc. Smith challenged the law in court saying it would force her to create websites for same-sex couples, compelling speech from her that she disagreed with.

Holding: A state law prohibiting public businesses from discriminating based on sexual orientation violates the Free Speech clause.

Opinion:

(1) West VA v. Barnette prohibits government from compelling individuals to articulate the government’s opinion.

(2) Designing website closely akin to Free Speech; this law is content and viewpoint based, so it’s inherently unconstitutional.

(3) She will serve all customers (LGBT included), she just won’t make a website for gay marriage.

Dissent:

(1) Public accommodations laws ensure equal access and equal dignity.

(2) Their rights to equal access trump her right to dislike gay marriage (can dislike, but still need to serve patron).

(3) The First Amendment does not prevent restrictions directed at commerce or conduct from imposing INCIDENTAL burdens on speech.

Note: This potentially opens the door to challenge the Civil Rights Act of 1974. Could come after race next.

D.C. v. Heller (2008)

Vote: 5-4

Facts: A 1976 ordinance in DC banned the possession of handguns and required that rifles in the home be disassembled or disabled by trigger locks. Dick Heller was a special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate to keep his handgun at home and was refused.

Holding: A DC prohibition on the possession of usable handguns in the home violates the Second Amendment.

Opinion:

(1) “the right of the PEOPLE” in the operative clause means this right refers to ALL of us, not just the subset in the militia.

(2) The militia was one of multiple reasons the Second Amend was adopted. The Militia is ineffective if Congress de-arms them.

(3) Miller (1937), the Court was focused on type of weapon, sawed-off shotgun, in question. If this were about militia, they would have said he can’t have weapon b/c not militia.

Dissent:

(1) The second amendment speaks to the militia’s right to keep and bear arms, not the general populace’s.

(2) The militia was historically meant to protect the state. Framers were not concerned about self-defense and hunting, they talked about states’ rights.

(3) Shouldn’t have access to weapons militia would not use (sawed-off shotgun).

Note: The outcome would have been different if banned automatic weapons; the Second Amendment is not absolute. Handguns most common, doesn’t make sense to ban. Individual right, not collective.