Freedom's Edge: Religious Freedom, Sexual Freedom, and the Future of America by Frank S. Ravitch

Author:Frank S. Ravitch [Ravitch, Frank S.]
Language: eng
Format: azw3
Publisher: Cambridge University Press
Published: 2016-09-30T00:00:00+00:00

c Example 3: The Free Exercise Clause

As you learned in Chapter 2, the history of claims for exemptions to generally applicable laws under the Free Exercise Clause is full of twists and turns, but in the end it demonstrates that as rights became more broadly recognized, a retrenchment occurred turning the promise of more religious freedom into a tale of less religious freedom. The U.S. Supreme Court’s initial struggles with the issue led to the development of a dichotomy between belief and practice. Reynolds v. U.S.51 is generally considered a major early precedent for this dichotomy. Essentially, the dichotomy suggests that belief must be protected to have religious freedom, but behavior/practice may be regulated (under generally applicable laws in the modern version) for the good of society. This dichotomy was formally altered in the landmark case of Sherbert v. Verner,52 and in turn this was undermined by the Court’s decision in Employment Division v. Smith,53 which is discussed at length in Chapter 2.

I have argued elsewhere that this account of the evolution of free exercise rights and their subsequent destruction in Smith is flawed.54 Sadly, the free exercise rights set forth in Sherbert were on the decline within fifteen years after that decision as the Court began to chip away at the broad protection recognized in that case. Also of note is the fact that religious minorities (especially non-Christian religious minorities) did not reap great benefits from Sherbert.55

In Sherbert, the Court abandoned the belief/practice dichotomy and held clearly that a state must have a compelling governmental interest for denying a religious exemption when a generally applicable law substantially burdens someone’s religion.56 In that case, the plaintiff was denied unemployment benefits after being fired for refusing to work on her Sabbath. The Court held that the state did not have a compelling interest for denying the benefits and, in fact, noted that the state unemployment laws contained a number of exemptions including one for Sunday Sabbatarians. Sherbert offered a broad recognition of rights under the Free Exercise Clause. Earlier cases had been a mixed bag, although as Philip Hamburger explains, the application of any test, including the compelling interest test, may narrow free exercise more than originally intended by the framers of the Free Exercise Clause.57

After Sherbert, it remained to be seen how the Court in subsequent cases would greet this broad reading of the Free Exercise Clause. In Wisconsin v. Yoder,58 the Court held that Amish families with high school age children were entitled to exemptions from the state’s compulsory education laws in the absence of a compelling state interest and narrow tailoring. The Court looked at the Amish community’s track record of good citizenship, hard work, and the success of its young people within the community to demonstrate that the state had no compelling interest for denying the exemption.

Following Yoder, however, the Court decided a string of free exercise exemption cases in which the plaintiffs almost always lost, and in which non-Christian plaintiffs always lost.59 With the exception of a few unemployment cases,60 the compelling interest test was turned into a paper tiger.

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