Some day, maybe, if we wish hard enough and clap until Tinkerbell’s light comes back on, the Supreme Court will fix the mess that it’s made of First Amendment religion jurisprudence.
The First Amendment deals with two basic categories of religious rights in the Establishment Clause and the Free Exercise Clause. They read as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
At the time that the First Amendment was enacted, these provisions only applied to Congress, but since then the Supreme Court has applied it to the states as well, under the theory that they were incorporated into the Fourteenth Amendment’s limitations on state power. Also, at the time that the Amendment was enacted, the meaning of these phrases was pretty self-evident.
The Establishment Clause meant that there could be no “established church” — namely, a church that had enjoyed special legal status, that received unique privileges under the law, and that all citizens were either required to belong to or financially support. Established churches were the norm in most European countries at that time, so our Founding Fathers knew well what it meant — all citizens would experience legal coercion to belong to that church, or would suffer penalties for not belonging.
The Free Exercise Clause was also well understood at the time. It meant that the government could not forbid, restrict, or penalize people from practicing their faith. This provision guaranteed that — in the words of the Maryland Toleration Act of 1649 — people would not be “troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof”. Perhaps the best statement of the well-understood meaning of the Free Exercise Clause was by George Washington, in his letter to the Jewish population of Newport, Rhode Island:
The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
As we all know well, one of the main reasons that people have come to America was to enjoy these guarantees of religious freedom. That was true in the colonial era, and it remains true now.
Unfortunately, the Supreme Court has made a complete hash of the religion clauses of the First Amendment, with the result that the freedoms they guarantee have become threatened.
The Establishment Clause Muddle
The most recent example of this came the other day, when the Supreme Court declined to hear an appeal in a case arising out of Utah. A private organization was founded to recognize and remember state troopers who died in the line of duty on the highways of that state. They worked with family members to erect a memorial cross (or another symbol, at the choice of the family) near the site of the trooper’s death. They obtained permission from the state highway authorities to do so, with the understanding that the state did not pay for or endorse the symbol erected.
Naturally, a group of Christophobic atheists brought suit, claiming that the erection of the memorials violated the Establishment Clause. The theory was that the use of the cross as a symbol of remembrance would signal that somehow the State of Utah was endorsing the Christian religion — a particular irony, since the majority of citizens of that state are not Christians, but Mormons.
Anyone who reads the bare words of the Establishment Clause, and considers its original and plain meaning, would find this an easy case — permitting private people to put up a memorial cross on the side of the road does nothing to create a state church, and there’s nothing in such a gesture that would coerce anyone into joining or supporting any such church, or would penalize anyone for not joining.
Sadly, the Supreme Court’s religion jurisprudence is such a mess that the federal Court of Appeals ruled that the memorial crosses violated the Establishment Clause, and the Supreme Court declined to review the case. Justice Clarence Thomas, in his dissent from the Court’s ducking of the issue, commented on the absurdity of it all:
Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t… Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t… A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t… Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t… Such arbitrariness is the product of an Establishment Clause jurisprudence that does nothing to constrain judicial discretion.
The Empty Free Exercise Clause
The Supreme Court has not shown much more wisdom in interpreting the Free Exercise Clause, and in fact has virtually emptied it of any meaning.
In the case of Employment Division v. Smith (1990), the Court was faced with a case involving the denial of unemployment benefits to several Native Americans, under a rule that denied benefits to anyone who couldn’t pass a drug test. But the reason they couldn’t pass the test is because they used the drug peyote in their religious practices — much as we use wine at Mass. They challenged the law, claiming that it would force them to violate their religious beliefs.
At that time, the Native Americans looked to have a good case. The Supreme Court had previously held that a law could not substantially burden a person’s exercise of religion unless the government had a compelling interest and the law was narrowly defined to serve that interest. Under that standard, it would appear that the use of ritual peyote — much like the use of sacramental wine, in the face of blanket alcohol prohibitions — would have to be permitted as an exception to the law.
The Supreme Court instead changed the rules, and held that they were properly denied the benefits. The Court held that the government is not required under the Constitution to grant exceptions to neutral laws that apply to all people, even if that law imposes a burden on a person’s religious liberty. In essence, the Court said that the government can require a person to forego their religious practices — to give up their sacraments — in order to qualify for benefits.
In one decision, the Court essentially gutted the Free Exercise clause. The irony is that the majority opinion was by a man whose religion is frequently a subject for attention and comment — Justice Scalia, who is a Catholic.
Where this Leaves Us
These may seem like arcane bits of legal doctrine, but they are highly relevant to a central issue facing us at this time — the extent of religious liberty in the United States. Policies and laws are being pursued that disqualify Christian and Catholic people from full participation in society, and that penalize churches that disagree with or refuse to comply with government policies.
If applied according to their plain meaning, the Establishment and Free Exercise Clauses would offer protection from such measures. Sadly, the Supreme Court has made such a mess of things that the First Amendment may offer little protection to those whose ancestors who came here to America seeking religious liberty.