Law and Religion free essay sample

Law and Religion 4/19/2012 Laws of General Applicability and Their Effect on Religion in America In 1990 the doctrinal landscape of free exercise was greatly altered by the groundbreaking case, Employment Division v. Smith. Prior to Smith, Federal free exercise cases were governed only by the opinion in Sherbert v. Verner. This required any law which placed a substantial burden on the exercise of religion be formed in the least restrictive fashion and to be justified by a compelling state interest. However in Smith the court articulated a new test for laws that placed a substantial burden on the free exercise of religion, holding that the law need not be supported by a compelling state interest so long as the law is neutral and of general applicability. In the analysis below I wish to first address the religiously burdensome laws upheld under the Smith test, requiring only neutrality and general applicability, without regard to a compelling state interest, and second, what laws following the decision in Smith were still shot down notwithstanding their neutrality and general applicability. We will write a custom essay sample on Law and Religion or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The establishment clause in the Constitution states that congress shall make no law respecting the establishment of religion. In Lemon v. Kurtzman it was established that in order for a law to pass under the establishment clause it must have a secular governmental purpose, its primary effect must not be to advance or inhibit religion and lastly the law must not result in excessive governmental entanglement. What we are primarily interested in for the purpose of our analysis however, is the second clause of the first amendment requiring that the government not prohibit the free exercise of religion. Post Smith, under the free exercise clause at common law, a law must only be neutral and of general applicability to survive a constitutional analysis, even where the law substantially burdens religion and the compelling governmental interest standard is not met. In the following discussion we will address what laws have survived under this test and the effect they have had on religion in America. Religiously Burdensome Laws Upheld, and their Consequent Impact on Religion As stated above, it was in Employment Division v. Smith that the court first implemented this standard of neutrality and general applicability. In Employment Division v. Smith, Alfred Smith and Galen Black who were both members of the Native American Church and counselors at a private drug rehabilitation clinic were fired because they had ingested peyote, a powerful hallucinogenic drug, as part of their religious ceremonies. At that time intentional possession of peyote was a crime under Oregon law without an affirmative defense for religious use. The majority opinion in Smith stated that although ordinarily a religiously burdensome law only survives constitutional scrutiny if there is a compelling state interest, when the law applies to everyone equally and the intent behind the law is not to regulate the exercise of religion, a compelling state interest is not required. Under this standard there is no room for the individualized consideration of the reasons a person might have for using peyote. In Smith the Supreme Court has sharply limited scrutiny of incidental burdens in the context of religion. The opinion states that if it permitted a wide approach to prohibiting religiously burdensome laws, it would be too easy for citizens to evade a multitude of important laws. This approach would run contrary to public policy and the very reason that we have a society governed by laws in the first place. Another famous utilization of this standard was in Christian Legal Society v. Martinez. Here a student organization, the Christian Legal Society, required members to subscribe to a Statement of Beliefs and refrain from certain proscribed behaviors, including homosexuality. The school subsequently refused to recognize the group as a student organization pursuant to its Nondiscrimination policy. Following this, CLS sued the school alleging that the policy conflicted with the group’s constitutional right to the free exercise of religion. The court rejected CLS’s free exercise argument, stating that the Nondiscrimination Policy did not single out religious beliefs, but rather was neutral and of general applicability. In this case the application of the Smith standard is perhaps less informative then it was in Smith. Here we are not only using the standard to burden religion, as it was in Smith, but also as a tool to protect against discrimination. With the additional force of Civil Rights available to swell its ranks, the full extent of the standards power is perhaps not visible, however this case does illustrate a new and innovative application of this concept that Smith had first brought to the table. Laws That Failed Because of the Burden They placed on Religion In Lemon v. Kurtzman we saw that in order for a law to pass under the establishment clause it must have a secular governmental purpose, its primary effect must not be to advance or inhibit religion and lastly the law must not result in excessive governmental entanglement. Ordinarily a religiously burdensome law would only be upheld if it survived the strict scrutiny test. However Smith changed this level of review in cases where the law in question was neutral and generally applicable. In Church of Lukumi v. City of Hialeah the U. S Supreme Court held that a religiously burdensome ordinance passed in Hialeah Florida failed the neutrality requirement of the Smith standard and subsequently did not pass strict scrutiny as was required. The Florida ordinance forbade the unnecessary killing of an animal in a public or private ritual or ceremony not for the primary purpose of food consumption. as unconstitutional. The law was enacted soon after the city council of Hialeah learned that the Church of Lukumi Babalu Aye, which practiced Santeria, was planning on locating there. Santeria is a religion practiced in the Americas by the descendants of Africans; many of its rituals involve animal sacrifice. The church filed a lawsuit in United States district court for the Southern District of Florida, seeking for the Hialeah ordinance to be declared unconstitutional. Adhering to the opinion in Smith, the lower court held that the law was in fact constitutional because it supported a legitimate and rational governmental interest. This application of the Smith standard did not require the law to pass the strict scrutiny test because it was a neutral law of general applicability. In the U. S. Supreme Court however this decision was reversed and the limits of the Smith standard were clearly defined. The Supreme Court held that while it was true that the law was technically neutral and generally applicable, there was more to be looked at in such cases. The court held that the surrounding facts of the case must also be taken into account in deciding if a law was neutral, and that in this case the law was clearly targeted at the Santerian Church, being that it was passed in anticipation of the church’s arrival and prohibited one of the church’s core practices. Furthermore the court pointed out that there really was no one else whom the law would effect, thus making it exclusively applicable, rather than generally applicable. Following this realization the court held the nature of this case to mandate a standard of strict scrutiny, requiring the law to be justified by a compelling governmental interest, and to be narrowly tailored to advance that interest. Because the ordinance suppressed more religious conduct than was necessary to achieve its stated ends, it was promptly deemed unconstitutional. What we see from this case is that in utilizing the Smith standard the court is not to rigidly adhere to the technical language of neutral and generally applicable without looking at a law’s motive and practical effect. This opinion, it would seem, was a step in the direction of legal realism, requiring legal standards to take into account the bigger picture rather then adhering to strict and easily manipulated technical language. Another important case that highlights the neutral element of the Smith standard is Watchtower Society v. Village of Stratton. In this case The Village of Stratton, Ohio promulgated an ordinance that, among other things, prohibited canvassers from going in and upon private residential property to promote any cause without first obtaining a permit from the mayors office by completing and signing a registration form. The ordinance imposed criminal sanctions on canvassing or soliciting without a license. The Jehovahs Witnesses, a religious group that publishes and distributes religious materials, sought injunctive relief, alleging that the ordinance violates its First Amendment rights to the free exercise of religion, free speech, and freedom of the press. While at first the lower courts held that the ordinance did pass intermediate scrutiny, the Supreme Court in an 8-1 vote reversed this decision arguing that the law was still unconstitutional. The court held that the law failed even intermediate scrutiny as it placed too great a burden on free speech and the free exercise of religion. Again we see in this case that while subsequent courts adhered to the application of intermediate scrutiny with respect to neutral laws of general applicability, they expanded the scope of what it was that neutrality covered in the first place. First in Church of Lukumi  v. City of Hialeah where the court extended the neutrality standard to exclude laws even with only a non-neutral motive, and then again in Watchtower Society v. Village of Stratton which additionally took into account the practical effect a law would have on free speech and religion. This type of progression is common in our legal system today and represents the ability of laws and legal concepts to evolve and be fine tuned with each new application of their precepts. Specific Exceptions Granted to Religiously Burdensome Laws On the other hand, there are some cases in which the Court allowed a religious motivation to exempt a person from a neutral, generally applicable law. This occurs when the courts find a particular group of people on whose religion a law not only imposes but also to whom the central purpose and policy of the law does not apply. In such cases the courts have been known to grant localized exceptions to the law. In Wisconsin v. Yoder, Jonas Yoder, Wallace Miller and Adin Yutzy, all members of the Old Order Amish religion, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. In a unanimous decision, the Court held that an individuals interests in the free exercise of religion under the First Amendment outweighed the States interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were in sharp conflict with the fundamental mode of life mandated by the Amish religion, and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law’s application. Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder. While the law in question was neutral and generally applicable it did not pass intermediate scrutiny with respect to the Amish. If it had been just an imposition on their religious practices, even the Amish would have been held to the law, but because the law’s central purpose didn’t apply in the first place, with regards to the Amish, an exception was deemed necessary. Following the Supreme Court Ruling in Wisconsin v. Yoder all states are required to grant the Old Order Amish the right to establish their own schools (should they choose) or to withdraw from public institutions after completing eighth grade. In some communities Amish parents have continued to send their children to public elementary schools even after Wisconsin v. Yoder and in most places tensions have eased considerably after the Supreme Court ruling. The Evolution of the Smith Standard and its Effect on Religion Today Initially the Smith standard was viewed with much apprehension by the religious community and its advocates. It was seen to grant the court a new less restrictive power to burden religion, a power that could prove to extend and grow, a power that if left untended could have a substantial negative effect on religion in America. However as the standard stands today, even its critics would agree that these fears have proven to be largely unfounded, and that its predicted harm had been grossly overestimated. Smith introduced a novel concept. While a law that burdens religion ordinarily must pass strict scrutiny, a neutral law of general applicability need only pass intermediate scrutiny. The policy behind this standard being an assurance that laws do not target religion and are not created in an attempt to restrict religious practice. It is this policy and mindset that has guided subsequent judges in their attempt to define the limits of this standard, and it was only in the standard’s repeated application to an ever changing combination of circumstances that the definition has efficiently evolved. From the simple application of the concept’s language, in Smith, where a neutral and generally applicable law happens to burden religion, to the advanced modern analysis of what neutrality really should include, in Church of Lukumi and Watchtower, we now have a clear, historically fine-tuned precedent, guiding us in the application of this novel standard, one which we can be sure will only continue to evolve in the future. [ 1 ]. Harvard Journal of Law and Public policy: A Matter of Constitutional Luck (spring 2003) [ 2 ]. Sherbert v. Verner,  374 U. S. 398  (1963) [ 3 ]. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990) [ 4 ]. The Constitution of The United States,† Amendment 1 [ 5 ]. Lemon v. Kurtzman,  403 U. S. 602  (1971) [ 6 ]. Employment Division v. Smith, 494 U. S. 872 (1990) [ 7 ]. Id. [ 8 ]. http://en. wikipedia. org/wiki/Employment_Division_v. _Smith [ 9 ]. Employment Division v. Smith, 494 U. S. 872 (1990) [ 10 ]. http://en. wikipedia. org/wiki/Employment_Division_v. _Smith [ 11 ]. Christian Legal Society v. Martinez, 561 U. S. ,130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010 [ 12 ]. Id. [ 13 ]. Id. [ 14 ]. Id. [ 15 ]. Id. [ 16 ]. Lemon v. Kurtzman,  403 U. S. 602  (1971) [ 17 ]. Church of Lukumi  Babalu Aye v. City of Hialeah, 508 U. S. 520 (1993) [ 18 ]. Id. [ 19 ]. Id. [ 20 ]. http://en. wikipedia. org/wiki/Church_of_Lukumi_Babalu_Aye_v. _City_of_Hialeah [ 21 ]. Church of Lukumi  v. City of Hialeah, 508 U. S. 520 (1993) [ 22 ]. Id. [ 23 ]. Id. [ 24 ]. Watchtower Society v. Village of Stratton,  536 U. S. 150  (2002) [ 25 ]. http://en. wikipedia. org/wiki/Watchtower_Society_v. _Village_of_Stratton [ 26 ]. Watchtower Society v. Village of Stratton,  536 U. S. 150  (2002) [ 27 ]. Wisconsin v. Yoder,  406 U. S. 205  (1972) [ 28 ]. http://www. oyez. org/cases/1970-1979/1971/1971_70_110 [ 29 ]. Id. [ 30 ]. http://en. wikipedia. org/wiki/Wisconsin_v. _Yoder