Presentation for POL 101 Dr. Kevin Lasher

Free Exercise: Compelling Interest Test Laws trump illegal or “dangerous” religious actions But are there situations where free exercise claims should win out over secular laws? Should a religious group be given an “exemption” from a law or policy that applies to everyone else? If so, when? And how do we balance the competing claims of enforcing the laws and protecting religious freedom?

Free Exercise: Compelling Interest Test Compelling interest test established in Sherbert v. Verner (1963) Supreme Court standard of balancing free exercise claims with national and state laws Workable (if imperfect) means by which to balance these conflicting goals

Sherbert v. Verner (1963) Adell Sherbert fired from textile mill (Spartanburg, SC) after her schedule was changed to include working on Saturdays Seventh Day Adventist church requires “rest” on Saturday Sabbath Filed for unemployment compensation after no new job (all other mills had switched to six-day work week) South Carolina rejected her claim Sherbert argued her free exercise right was denied – she had to choose between her job and her religious beliefs Supreme Court ruled that state should provide unemployment in this case – because to deny it is to restrict Sherbert’s free exercise of religion Created new “compelling interest” standard – to help determine when there should be a free exercise exemption to laws or policies

Sherbert v. Verner (1963) Does the government law or policy create an 'infringement' on a constitutional right to practice religion? Does the government have a compelling state interest which justifies burdening the religious activity in question? If a compelling interest does exist, are there any alternative means by which the government can achieve its goal and thus not burden religious action?

Compelling Interest Test 1963-1990: Free exercise claimants lost their cases on a number of occasions (50 % of the time ??)

Compelling Interest Test: Exemption U.S. v. Seeger (1965) Individual can receive exemption from military draft because of vague religious belief in Supreme Being Wisconsin v. Yoder (1972) Amish children do not have to attend school beyond 14 years old despite state law for attendance until 16 Wooley v. Maynard (1977) Jehovah’s Witnesses do not have to display required motto “Live Free or Die” on their automobile license plates Others …

Compelling Interest Test: No Exemption United States v . Lee (1982) Amish have to pay social security taxes for employees Bob Jones University v. US (1986) Bob Jones University loses tax exempt status over religion- based racial discrimination Goldman v. Weinberger (1986) Jewish Air Force psychiatrist cannot wear yarmulke indoors because of service regulations Others …

Compelling Interest Test Imperfect but “reasonable” way of balancing competing claims of free exercise and government laws/interests These cases generally involve secondary free exercise issues (not core religious freedom)

Employment Division, Department of Human Resources Division of Oregon v. Smith

Oregon v. Smith (1990) Alfred Smith (an American Indian) and Galen Black (a white man) were “members” of the Native American Church and employees at a private drug rehabilitation clinic Alfred Smith was a recovered alcoholic employed as alcohol counselor for 20+ years Both fired because they had ingested hallucinogen peyote as part of their religious ceremonies Clinic had a no alcohol/no drug use policy

Oregon v. Smith (1990) Possession of peyote was a felony under Oregon law (no religious exemption); neither man was prosecuted for drug possession Smith and Black filed a claim for unemployment compensation, which was denied because they were dismissed for work-related “misconduct” Supreme Court ruled that that there should be no religious exemption and that Smith and Black should be denied unemployment compensation

Oregon v. Smith (1990) Threw out “compelling interest” test except in certain non-law breaking unemployment cases and other “hybrid” cases Returned to “laws supercede religious actions” standard of U.S. v. Reynolds (1879)

Oregon v. Smith (1990) Majority (6 – 3) 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 religious practice incidentally.

Oregon v. Smith (1990) “Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty.” Very critical concurring opinion

Oregon v. Smith (1990) “Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is essential to accomplish, its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. ... I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents' religiously.” Very simple to rule against Smith and Black by using the compelling interest test Very critical concurring opinion

Post-Smith situation becomes VERY COMPLICATED

Post-Smith Concerned Women for America (Christian Right): “conservative justices appointed by Reagan were all the people who stabbed us in the back on this thing. Scalia wrote the opinion, and Rehnquist and Kennedy joined it.” Witness at Senate hearings on new legislation called Smith “the Dred Scott of first amendment law”

Post-Smith “This opinion is one of the most widely criticized in all of the Court’s recent jurisprudence. Its legal reasoning, its treatment of precedent, and its attitude to the place of religious minorities in majority society have all come in for strenuous criticism, not only from liberals but from religious conservatives such as Michael McConnell, a leading authority on Free Exercise . Scalia not only refuses to apply the Sherbert framework, he insists that it never has been settled law.” Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, p. 153.

Post-Smith Religious Right and Secular Left are outraged and join together to pressure Congress (ACLU + NAE) Overwhelming support (unanimous House and 97-3 in Senate) for Religious Freedom and Restoration Act of 1993

Religious Freedom and Restoration Act of 1993 “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests” Purpose: “to restore the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened”

Free Exercise “Mess” Two federal laws to return to “compelling interest test” at national and state level are partially upheld by the Supreme Court 25 states pass their own laws to return to the “compelling interest test” Litigants and legislators look to other parts of the Constitution (i.e. speech) for fuller and firmer protection of free exercise rights All of this activity was created by the very strange (and unnecessary) decision in Oregon v. Smith

Free Exercise “Mess” Basically, the Supreme Court and other federal and state courts have returned (more or less) to the “compelling interest test” in trying to determine whether there should be exemptions based on the free exercise of religion Compelling interest test applies in the secondary religious issues of employment, land use, rights of prisoners Claims for free exercise exemptions will continue to based on the totality of the free exercise claim and the seriousness of the government law or policy Back to the workable (if imperfect) means by which of balancing free exercise claims with national and state laws

Free Exercise: Conclusion Government cannot interfere in religious beliefs Government does not interfere in the vast majority of religious actions Generally government laws or policies supercede religious actions when there is a conflict between the two Religious exemptions from such laws or policies is still based (more or less) on the compelling interest test Individuals receive or do not receive such exemptions based on the totality of the circumstances in their particular case

The End