Two Principles – by Jason Hines

The Court has a tough time defining religion – and rightly so. Being religious scholars is not the Court’s job. Some would say that they do no better in adjudicating cases under the Religion Clauses. Whether that is true or not, I think it is possible to determine the principles that guide the Court both in their adjudication of the Free Exercise Clause and the Establishment Clause of the Constitution. By taking a look at some of the cases in these two lines of jurisprudence, two main principles come to light.

In Free Exercise law, the Supreme Court is ultimately concerned with trying to find the line between protecting freedom of conscience and allowing for actions in line with conscience that may not be in line with the social order. The first case where the Court took up this problem was Reynolds v. US in 1878. This case was test case for the Mormons, who wanted a ruling on the issue of polygamy. So George Reynolds, personal secretary to Brigham Young, was purposefully arrested for having more than one wife. The church argued that the free exercise clause allowed for a religious exemption from polygamy laws. The Court disagreed. While the Court gave credence to Reynolds’ right to believe as he wished, Reynolds could not use his religious beliefs to exempt “actions which were in violation of social duties or subversive of good order.” (ftnte) This was also the first time any justice cited the famous quote from Thomas Jefferson regarding the separation of church and state.

The Court changed its mind in 1963 in the case of Sherbert v. Verner, Sherbert, a Seventh-day Adventist, worked at a textile mill in South Carolina and lost her job because she could not work on the Sabbath. She applied for unemployment benefits and was denied. The state found that she had been fired for just cause, as she could’ve found other work if not for her decision to not work on Saturday. Sherbert sued and lost at every level, the courts finding that receiving these benefits was not an infringement on her religious beliefs. The Supreme Court disagreed and found in Sherbert’s favor in a 7-2 decision. Justice Brennan wrote, “[N]ot only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable.” Instead of focusing on whether the action could be protected, the Court focused on the role of the state. To that end it created a new test, the compelling state interest test, which said that the State must have a compelling interest in order to violate a citizens’ free exercise rights. Finding no such compelling interest here, the Court found in Sherbert’s favor.

It took less than thirty years for the Court to change its mind again. In 1990, two Native Americans were fired from their job after failing a drug test for peyote, a drug they ingested during religious rituals. (Fun fact: the two petitioners worked at a drug rehabilitation clinic.) They, like Sherbert, filed for unemployment benefits and were denied. However, this time the Court ruled against them. Justice Scalia, in a controversial opinion, changed the standard by which free exercise cases would be judged. Instead of focusing on the infringement of the right, the Court in this case focused on the status of the law itself. Scalia opined that if the law was a neutral law of general applicability, than it would be allowed to stand. Scalia then counseled religious minorities to seek redress in the legislature instead of the courts. The Court has wrestled with the amount of freedom to give religious minorities regarding action, but the underlying principle has been the same in all of these cases – that citizens have the freedom of conscience to choose to belief whatever they wish, and that the state cannot interfere with that.

The Court has a different concern under establishment clause law – the non-imposition of morality. The Court in this instance is concerned with spiritual minorities, ensuring that they are not coerced into lending credence to religious ideals that they do not believe in. The Lemon test, established by the Court in Lemon v. Kurtzman, is still the test for whether a state policy violates the Establishment Clause (although it has been adjusted in subsequent years). The test has three parts. First, the law at issue must have a secular purpose. Second the law cannot have the primary effect of advancing religion. Third, the law cannot result in excessive entanglement between government and religion.

We see these issues arise in cases like Engle v. Vitale  and Lee v. Weismann, which involve school prayer. In both those cases school systems promoted prayer, either as a daily exercise in the classroom or as an important part of graduation. In both cases the Court ruled against the school system. The Court’s concern in both cases was the affect that the prayers would have on nonbelievers, regardless of the specific content of those prayers, or the circumstances of how the prayer came to be. In Engle, the prayer although brief, was specific.  “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.” The Court found that a prayer that specific being foisted on elementary school children was a violation of the Establishment Clause. In Lee, the event was a voluntary graduation ceremony where a rabbi gave the prayer at issue in the case. Despite the fact that the ceremony was voluntary, the Court still found that children can feel pressure to be involved in these rites of passage, and to go along with things that are contrary to their beliefs. As such both examples violate the Lemon test. The Court is once again concerned with the pressure that these prayers place on those who do not believe in the religious tenets being expressed by the state.

The same concerns can be found in the cases that have become known as the Ten Commandments cases. The decisions were announced on the same day in 2005, but rendered opposing 5-4 decisions. In Van Orden v. Perry, the Court allowed the monument involved. However, in McCreary v. ACLU the Court ruled against a similar display. The difference between the rulings came down to the circumstances surrounding the erection of the monuments. In Van Orden, the Ten Commandments monument was in a monument park along with thirty-eight other pieces. The monument was present for 50 years before anyone noticed it and decided to sue. The time and the placement of the monument diffused its effect and so the Court allowed the monument to stand. The circumstances were different in McCreary. In 1999, two counties in Kentucky attempted to erect Ten Commandments monuments in their courtrooms. When the ACLU brought suit, the counties attempted to change the monuments in order to have them pass constitutional muster. Citing the Lemon test, the Court found that the monuments did not have a purely secular purpose, despite their attempts to make it seem so.

While these two principles are more prominent in one of the Religion Clauses or the other, the principles reflect each other. It is the non-imposition of morality from the state that allows people the freedom to exercise their conscience. Interestingly enough, Christianity is in many ways based on these same principles. Sinners choose Jesus through the exercise of their own conscience, and that freedom is a freedom that should be given to each person to make that same decision. Unfortunately, just as the Court has wrestled with these issues in its jurisprudence and not always been faithful to them, we Christians have done the same.

Jason Hines is an attorney with a PhD in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at http://thehinesight.blogspot.com.