Constitutional Law II: Religious Freedom (Part 1)

Course and Instructor Information

  • Course: PSC 3180: Constitutional Law II

  • Topic: Religious Freedom (Part 1)

  • Instructor: Jeremy Castle

  • Institution: MSU Denver

  • Text: Constitutional Law for a Changing America, A Short Course, Ninth Edition by Lee Epstein, Kevin T. McGuire, Thomas G. Walker

Announcements

  • Event: Meet + Greet + Eat

  • Date: Monday, February 2nd and Tuesday, February 3rd

  • Time: Noon to 1:00 PM

  • Location: Political Science Department, 4th Floor King Center

  • Benefits: Conversations, free food, and community engagement with Political Science majors & minors.

Key Questions

  • Why is religious freedom important?

  • How are religious free exercise and religious establishment connected?

  • How has the Supreme Court interpreted the free exercise clause?

Established Churches in the Colonies

  • Many American colonies established official churches, leading to:

    • A declaration of an official church for a colony or state.

    • Financial support via taxpayer funds to a specific church.

    • Example: In 1779, the Episcopal Church was the official church of Virginia, supported by tax money.

    • Mandatory church attendance was enforced.

The Virginia Statute for Religious Freedom

  • Authored by: Thomas Jefferson in 1779.

  • Key Argument: Supports separation of church and state in Virginia.

Excerpts from the Virginia Statute for Religious Freedom

  • Jefferson states that compelling contributions for beliefs violates natural rights:

    • “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical… our civil rights have no dependence on our religious opinions…”

    • Argues against discrimination in civil rights based on religious belief, calling it an infringement of natural rights.

  • Legislative proposal:

    • “No man shall be compelled to frequent or support any religious worship… all men shall be free to profess and maintain their opinions in matters of religion.”

    • Asserts these rights are part of the natural rights of mankind.

Legislative Journey

  • Jefferson's bill initially did not pass (1779).

  • Patrick Henry proposed a competing bill requiring contributions to a Christian church.

  • James Madison authored Memorial and Remonstrance Against Religious Assessments in 1785, opposing Henry’s bill.

  • In 1786, Madison helped pass a modified version of Jefferson’s bill in Virginia.

The Bill of Rights Today: Freedom of Religion

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

    • First clause: Establishment Clause (separation of church and state).

    • Second clause: Free Exercise Clause.

Religious Free Exercise Policies

  • Policies can range from:

    • Libertarian: Strict protection of religious liberty.

    • Communitarian: Community can legislate against certain religious practices.

Policy Examples

  • Libertarian or Communitarian classifications:

    • Community bans on drugs like peyote used in religious contexts.

    • Kentucky clerk Kim Davis refusing to issue marriage certificates to same-sex couples.

    • Community bans on animal sacrifice within religious ceremonies.

    • Denial of unemployment benefits for those not working on the Sabbath.

Absolutist Approaches to Religious Free Exercise

  • Flaws in absolute approaches:

    • Libertarianism: Should religious objectors be exempted from taxes?

    • Communitarianism: Targeting religious groups under the guise of universal laws undermines religious freedom.

  • Need for a middle ground approach balancing both sides.

Historical Context of Free Exercise Law

  • Free exercise law lacks consistency and has few cases prior to the early 1900s.

  • Key case: Burlington & Quincy Railroad v. City of Chicago (1897) began selective incorporation of the Bill of Rights, making free exercise applicable beyond federal law.

  • Initial cases focused on unpopular religious minorities (Mormons, Jehovah’s Witnesses) where the Court favored community regulation.

Reynolds v. United States (1879)

  • Facts: George Reynolds charged under federal law against bigamy in Utah Territory.

  • Reynolds defended himself based on his membership in the LDS Church, which allowed plural marriage.

Court Decision in Reynolds

  • The Court ruled against Reynolds, establishing a belief/action distinction:

    • The First Amendment protects beliefs but not all actions.

    • Justice Waite: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land…”

Cantwell v. Connecticut (1940)

  • Key Facts: CT law prohibited door-to-door sales without a license.

  • Couple performs solicitation as Jehovah's Witnesses, leading to their arrest.

Court Decision in Cantwell

  • Reinforces belief/action distinction

  • Test: Valid Secular Policy Test:

    • If a policy serves a legitimate government goal

    • Is not aimed at a specific religion

  • Connecticut's law was unconstitutional due to arbitrary restrictions on religious causes by a government official.

Prince v. Massachusetts (1940)

  • Key Facts: Massachusetts law prohibits minors from selling newspapers (child labor prevention).

  • Related to Prince and her niece distributing religious pamphlets.

Court Decision in Prince

  • State regulates child labor actions broadly, prioritizing children's well-being over parenting rights.

Discussion Points

  • Does the belief/action distinction and the valid secular policy test lean more towards communitarian or libertarian principles?

    • Both hinge on neutrality principles.

    • How did neutrality relate to Reynolds’ case evaluation?

Sherbert v. Verner (1963)

  • Key Facts: Adell Sherbert is a Seventh-Day Adventist denied unemployment benefits for not working on Saturdays.

  • Legal question: Can South Carolina withhold unemployment benefits for religious adherence?

Court Decision in Sherbert

  • Established a Compelling State Interest Test for exemptions:

    • Does the law impose a burden on free exercise?

    • Is there a compelling state interest justifying this burden?

    • Are there less restrictive means available?

  • The court ruled Sherbert was entitled to unemployment benefits despite not being available for work.

Justice Harlan's Dissent

  • Warning about implications of the decision allowing state funding for those not available for work due to religious motivation.

Wisconsin v. Yoder (1972)

  • Key Facts: Wisconsin law requires school attendance until 10th grade; Amish families object based on cultural practices.

Court Decision in Yoder

  • Court applies the Sherbert test, recognizing a burden on free exercise but affirms compelling interest in education.

  • Allows Amish exception based on non-restrictive means.

Discussion on Sherbert Test

  • Perceived as more libertarian compared to previous communitarian approaches.

Conclusion

  • Overview of the evolution of religious free exercise law from Reynolds to Sherbert, displaying the shift from community regulation towards favoring individual freedoms.

  • Emphasis on the importance of protecting the rights of minority religious groups.

Next Session Preparation

  • Next Topic: Religious Free Exercise (Part 2)

  • Readings:

    • EMW Ch. 12 pgs. 369-381

    • Employment Division v. Smith (1990)

    • Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

  • Class coverage will include:

    • Burwell v. Hobby Lobby (2014)

    • Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

  • Consider changes in the Court's interpretation of religious free exercise during the 1990s and the pushback to those interpretations.