SECTION TWO: THE CONTENT OF THE LAW - FREEDOM OF RELIGION
The Doctrine of Incorporation: a legal principle that applies part of the Bill of Rights to the states through the 14th Amendment’s Due Process Clause
Significance: citizens have the same fundamental rights at the federal and state levels
The Problem (Before the Doctrine):
Congress shall make no law… (prohibiting religion)
1st amendment was intended by the framers to only address Congress
Can SC?
No- the 14th amendment says no state shall deprive … liberty
Liberty applies to all the freedoms in the 1st amendment
Solution
“Rewrite” the Constitution
Really means reinterpret
14th amendment Due Process Clause
Criticism- stuck all of the rights from the bill of rights into one word “liberty”
Over time all but 3rd and 7th jury for civil
Freedom of Religion
Super important to the framers
1st thing mentioned in the 1st amendment
Super/pretty important to (some) of us
2 parts of freedom of religion-
Establishment Clause
Not on test
Most cases, boring
Free Exercise Clause: “Congress shall make no law prohibiting the free exercise of religion”
Legal Issue: Does the free exercise clause of the 1st amendment protect…
Or: Can the gov regulate/ban…
Step 1: Defining Religion, Is it a “Bona Fide” Religion
What is/makes a “religion”?
Challenge of developing a legal rule
Real v. Fake religion
“Minority” religions v. made up
Need a definition that is broad enough but not too broad
Scotus Struggles, looking for a legal rule
Reynolds v US (1879)
Look to religion at the time of the framers?
Problem- there are new religions
Rule- The government can limit religious practices if they are “subversive to the good order” (Belief-Action Distinction)
Davis v. Beeson (1890)
Rule- Religion “has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will?
US v. Ballard (1944)
Rule: a religion is legitimate if it is a sincerely held belief, not if it is true.
Do not want to get involved in finding out the truth, much can’t be proved
“Conscientious objectors”- can get out of the draft if religions says you can’t fight
Congress previous rule: religion is “belief in relation to a Supreme Being”
US v. Seeger (1965)
Rule- Parallel position test: belief is “sincere and meaningful” and occupies a place in the life of its possessor parallel to … the orthodox belief in God.”
Is the belief as important to you as someone who believes in God?
Welsh v. US (1970)
Refused to enter the military, I'm not religious, I just think killing is wrong
Even moral/ethical beliefs can be religious/protected as long as they are held as sincerely as people hold traditional religious beliefs.
Gillette v. US
Won’t fight a specific group/war (Vietnam)
Court- Gillette lost
Does the individual have a “bona fide” religion?
Importance- so they can have protections under the free exercise clause
Problem- difficult to determine what constitutes a religion
Anything could be a religion
Defining a religion
The Legal Rule- Combine the sincere and meaningful test with parallel test
Can be ethical, moral, or religious
Step 2: Exercising Religious Freedom
What can you do as an exercise of that religion?
Text of the 1st amendment
Has to be some line against extremism
Reynolds v. US
Rule- if it is “subversive to the good order” , the religious practice is unconstitutional
Problem- only came up with it because they don't like mormons/polygamy, what is the “good order”
Pierce v. Society of Sisters
Combined with rule from reynolds
Rule- Government can regulate action “in violation of social duties or subversive to the good order” and that is not “useful and meritorious” (for society)
Cantwell v. Connecticut
Rule- Valid Secular Policy Test
Can regulate religious conduct if the regulation is a valid secular policy
Secular = not religious
Valid = legitimate = some reasonable goal
Can't target one or specific groups
Argument- making society better
Must be all rules (and) must be one (or)
Defining VSP
Minersville School District v. Gobitis: upheld VSP, promoting patriotism is a valid secular policy
Prince v. Massachusetts: The state had a VSP to regulate child labor
After VSP, arrival of the Warren Court
Braunfeld v. Brown
Applies reynolds, can apply rulings as long as they are not overturned
New modified VSP test
Adds more stuff the gov will have to show to prohibit free exercise
Sherbert v. Verner
New rule: Not VSP, because Sherbert would have lost
Compelling State Interest Test-
Is the government policy burdening (indirect or direct) on her exercise of religion?
Dependent on choice
Burden is she is forced to make a choice between her religion and her job, gov is indirectly putting her in that position
Is there a compelling state interest?
Compelling is a much higher burden on the government than valid
“No showing of a rational relationship to colorable state interest” will suffice
Was the method used the least restrictive means?
Could have stopped fraud by investigating her religion
Failed to use least restrictive means
Review: How to Make up Constitutional Law
The Supreme law (Constitution) says…. “Congress shall make no law… prohibiting the free exercise of religion”
The Supreme Court says
Congress means anyone in a government position
No law means some law, freedom to believe v. freedom to act
Religion means any belief that passes sincerity/parallel position test
Prohibiting free exercise means…
Rule 1- subversive/useful and meritorious
Rule 2- the VSP
Effect on religious conduct
Neutrality
Rule applied in Cantwell
Difference between the real world and the legal world
Interpret v. Intent
When the government follows the established legal rule, they can prohibit the free exercise of religion constitutionally
Is not prohibiting free exercise if it meets the legal rule
No Doesn’t Mean No (so what does anything in the Constitution mean?)
Can the government prohibit free exercise….
It Depends on…
Which rule is being used, VERY IMPORTANT
Others: The religion, the action
Summary:
Bona Fide Religion, parallel position test
Can the government restrict the exercise
Useful and meritorious, subversive to the good order
VSP test, if one religion is burdened doesnt matter
Compelling State interest
Burden
CSI
Why does the government have that policy? What is their goal?
Is that answer compelling enough?
Fraud is not a compelling interest
Least Restrictive Means
Any other way that is less burdensome to the free exercise of that religion
CSI Applied
High hurdle of CSI: Strict Scrutiny is “Strict in theory, fatal in fact…”
Said by Justice O’Connor
In theory it's a high hurdle, in reality the government will always fail the test
CSI known as “strict scrutiny”
Very big burden on the government
New Court (Burger)
New justices can change the constitution
Wisconsin v. Yoder
Fits with Prince v. Mass
Does Not- Protecting kids wins
Wisconsin-
Protecting kids doesn’t win
Reframe it, not about protecting kids
Forcing kids to get to the 12th grade
They only had two years left
The “Resurrection” of the CSI