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found to be permissible, e.g. the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers. 215 The Court also reversed the lower court’s finding of entanglement based only on ‘‘political divisiveness.’’ 216 Allegheny County was also decided by a 5–4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue. 217 To the majority, the setting of the creche was distinguishable from that in Lynch. The creche stood alone on the center staircase of the county courthouse, bore a sign identifying it as the donation of a Roman Catholic group, and also had an angel holding a banner proclaiming ‘‘Gloria in Exclesis Deo.’’ Nothing in the display ‘‘detract[ed] from the creche’s religious message,’’ and the overall effect was to endorse that religious message. 218 The menorah, on the other hand, was placed outside a government building alongside a Christmas tree and a sign saluting liberty, and bore no religious messages. To Justice Blackmun, this grouping merely recognized ‘‘that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status’’; 219 to concurring Justice O’Connor, the display’s ‘‘message of pluralism’’ did not endorse religion over nonreligion even though Chanukah is primarily a religious holiday and even though the menorah is a religious symbol. 220 The dissenters, critical of the endorsement test proposed by Justice O’Connor and of the three-part Lemon test, would instead distill two principles from the Establishment Clause: ‘‘government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00045 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1058 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 221 492 U.S. at 659. 222 515 U.S. 753 (1995). The Court was divided 7–2 on the merits of Pinette, a vote that obscured continuing disagreement over analytical approach. The portions of Justice Scalia’s opinion that formed the opinion of the Court were joined by Chief Justice Rehnquist and by Justices O’Connor, Kennedy, Souter, Thomas, and Breyer. A separate part of Justice Scalia’s opinion, joined only by the Chief Justice and by Justices Kennedy and Thomas, disputed the assertions of Justices O’Connor, Souter, and Breyer that the ‘‘endorsement’’ test should be applied. Dissenting Justice Stevens thought that allowing the display on the Capitol grounds did carry ‘‘a clear image of endorsement’’ (id. at 811), and Justice Ginsburg’s brief opinion seemingly agreed with that conclusion. 223 459 U.S. 116 (1982). such a degree that it in fact ‘establishes a state religion or religious faith, or tends to do so.’’’ 221 In Capitol Square Review Bd. v. Pinette, 222 the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the State had allowed a broad range of speakers and a variety of unattended displays, the State could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify contentbased restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages. Miscellaneous.—In Larkin v. Grendel’s Den, 223 the Court held that the Establishment Clause is violated by a delegation of governmental decisionmaking to churches. At issue was a state statute permitting any church or school to block issuance of a liquor license to any establishment located within 500 feet of the church or school. While the statute had a permissible secular purpose of protecting churches and schools from the disruptions often associated with liquor establishments, the Court indicated that these purposes could be accomplished by other means, e.g. an outright ban on liquor outlets within a prescribed distance, or the vesting of discretionary authority in a governmental decisionmaker required to consider the views of affected parties. However, the conferral of a veto authority on churches had a primary effect of advancing religion both because the delegation was standardless (thereby permitting a church to exercise the power to promote parochial interests), and because ‘‘the mere appearance of a joint ex- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00046 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1059 224 459 U.S. at 125–26. But cf. Marsh v. Chambers, 463 U.S. 783 (1983), involving no explicit consideration of the possible symbolic implication of opening legislative sessions with prayers by paid chaplains. 225 459 U.S. at 126–27, quoting Abington, 374 U.S. 203, 222. 226 512 U.S. 687 (1994). Only four Justices (Souter, Blackmun, Stevens, and Ginsburg) thought that the Grendel’s Den principle applied; in their view the distinction that the delegation was to a village electorate rather than to a religious body ‘‘lack[ed] constitutional significance’’ under the peculiar circumstances of the case. 227 Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963). 228 Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in original). 229 Braunfeld v. Brown, 366 U.S. 599, 607 (1961). ercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some.’’ 224 Moreover, the Court determined, because the veto ‘‘enmeshes churches in the processes of government,’’ it represented an entanglement offensive to the ‘‘core rationale underlying the Establishment Clause’’— ‘‘[to prevent] ‘a fusion of governmental and religious functions.’’’ 225 Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet, 226 invalidated a New York law creating a special school district for an incorporated village composed exclusively of members of one small religious sect. The statute failed ‘‘the test of neutrality,’’ the Court concluded, since it delegated power ‘‘to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism.’’ It was the ‘‘anomalously case-specific nature of the legislature’s exercise of authority’’ that left the Court ‘‘without any direct way to review such state action’’ for conformity with the neutrality principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general law, the Court explained, there was no way of knowing whether the legislature would grant similar benefits on an equal basis to other religious and nonreligious groups. FREE EXERCISE OF RELIGION ‘‘The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.’’ 227 It bars ‘‘governmental regulation of religious beliefs as such,’’ 228 prohibiting misuse of secular governmental programs ‘‘to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.’’ 229 Freedom of conscience is the basis of the free exercise clause, and government may not penalize VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00047 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1060 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 230 Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 U.S. 488 (1961). 231 Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause’s origins in religious pluralism) with Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 CASE W. RES. L. REV. 357 (1989–90) (arguing that such exemptions establish an invalid preference for religious beliefs over nonreligious beliefs). 232 E.g., Reynolds v. United States, 98 U.S. 145 (1879); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494 U.S. 872 (1990). 233 ‘‘The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.’’ Walz v. Tax Comm’n, 397 U.S. 668–69 (1970). 234 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987). A similar accommodative approach was suggested in Walz: ‘‘there is room for play in or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs. 230 Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute ‘‘conduct’’ rather than pure ‘‘belief.’’ When it comes to protecting conduct as free exercise, the Court has been inconsistent. 231 It has long been held that the Free Exercise Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question. 232 What has changed over the years is the Court’s willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions. The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices. 233 So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. ‘‘This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.’’ 234 In holding that a state could VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00048 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1061 the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference.’’ 397 U.S. at 669. 235 Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord, Thomas v. Review Bd., 450 U.S. 707, 719–20 (1981). Dissenting in Thomas, Justice Rehnquist argued that Sherbert and Thomas created unacceptable tensions between the Establishment and Free Exercise Clauses, and that requiring the States to accommodate persons like Sherbert and Thomas because of their religious beliefs ran the risk of ‘‘establishing’’ religion under the Court’s existing tests. He argued further, however, that less expansive interpretations of both clauses would eliminate this artificial tension. Thus, Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring government to grant exemptions from general requirements that may burden religious exercise but that do not prohibit religious practices outright, and would have interpreted the Establishment Clause as not preventing government from voluntarily granting religious exemptions. 450 U.S. at 720–27. By 1990 these views had apparently gained ascendancy, Justice Scalia’s opinion for the Court in the ‘‘peyote’’ case suggesting that accommodation should be left to the political process, i.e., that states could constitutionally provide exceptions in their drug laws for sacramental peyote use, even though such exceptions are not constitutionally required. Employment Div. v. Smith, 494 U.S. 872, 890 (1990). 236 See, e.g., Walz v. Tax Comm’n, 397 U.S. 664 (upholding property tax exemption for religious organizations); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights Act exemption allowing religious institutions to restrict hiring to members of religion); Gillette v. United States, 401 U.S. 437, 453–54 (1971) (interpreting conscientious objection exemption from military service). 237 See, e.g., Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788–89 (1973) (tuition reimbursement grants to parents of parochial school children violate Establishment Clause in spite of New York State’s argument that program was designed to promote free exercise by enabling low-income parents to send children to church schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales tax exemption for religious publications violates the Establishment Clause) (plurality opinion); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07 (1994) (‘‘accommodation is not a principle without limits;’’ one limitation is that ‘‘neutrality as among religions must be honored’’). not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was ‘‘fostering an ‘establishment’ of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.’’ 235 Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has also been upheld against Establishment Clause challenge, 236 although it is also possible for legislation to go too far in promoting free exercise. 237 The Belief-Conduct Distinction While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exer- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1062 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 238 Cantwell v. Connecticut, 310 U.S. 296, 304 (1940). 239 Reynolds v. United States, 98 U.S. 145, 166 (1878). ‘‘Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.’’’ Davis v. Beason, 133 U.S. 333, 345 (1890). In another context, Justice Sutherland in United States v. Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental power to regulate action in denying that recognition of conscientious objection to military service was of a constitutional magnitude, saying that ‘‘unqualified allegiance to the Nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.’’ 240 Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination); Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor); Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the ‘‘conduct or activities so regulated [in the cited cases] have invariably posed some substantial threat to public safety, peace or order.’’ 241 Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607 (1961): ‘‘[I]f the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.’’ 242 Sherbert v. Verner, 374 U.S. 398, 403, 406–09 (1963). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling state interests in provision of public education, but found insufficient evidence that those interests (preparing children for citizenship and for self-reliance) would be furthered by requiring Amish children to attend public schools beyond the eighth grade. Instead, the evidence showed that the Amish system of vocational education prepared their children for life in their self-sufficient communities. cise Clause ‘‘embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.’’ 238 In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws ‘‘cannot interfere with mere religious beliefs and opinions, they may with practices.’’ 239 The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases, 240 but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause. 241 Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was ‘‘compelling’’ and if no alternative forms of regulation would serve that interest was the claimant required to yield. 242 Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection. Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court pur- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00050 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1063 243 United States v. Lee, 455 U.S. 252 (1982) (holding mandatory participation in the Social Security system by an Amish employer religiously opposed to such social welfare benefits to be ‘‘indispensable’’ to the fiscal vitality of the system); Bob Jones Univ. v. United States, 461 U.S. 754 (1983) (holding government’s interest in eradicating racial discrimination in education to outweigh the religious interest of a private college whose racial discrimination was founded on religious beliefs); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (holding that government has a compelling interest in maintaining a uniform tax system ‘‘free of ‘myriad exceptions flowing from a wide variety of religious beliefs’’’) 244 Goldman v. Weinberger, 475 U.S. 503 (1986); O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). 245 494 U.S. 872, 878 (1990). 246 494 U.S. at 890. 247 Reynolds v. United States, 98 U.S. 145 (1879); cf. Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief defense to Mann Act prosecution for transporting a woman across state line for the ‘‘immoral purpose’’ of polygamy). 248 Murphy v. Ramsey, 114 U.S. 15 (1885). ported to apply strict scrutiny, but upheld the governmental action anyhow. 243 Next the Court held that the test is inappropriate in the contexts of military and prison discipline. 244 Then, more importantly, the Court ruled in Employment Division v. Smith that ‘‘if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.’’ 245 Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to the use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. Accommodation of such religious practices must be found in ‘‘the political process,’’ the Court noted; statutory religious-practice exceptions are permissible, but not ‘‘constitutionally required.’’ 246 The result is tantamount to a return to the Reynolds belief-conduct distinction. The Mormon Cases The Court’s first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against the Mormons because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, inasmuch as it could distinguish between beliefs and acts. 247 But the presence of large numbers of Mormons in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute which barred ‘‘bigamists,’’ ‘‘polygamists,’’ and ‘‘any person cohabiting with more than one woman’’ from voting or serving on juries. The Court sustained the law, even as applied to persons entering the state prior to enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run. 248 Subse- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00051 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1064 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 249 Davis v. Beason, 133 U.S. 333 (1890). ‘‘Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. . . . To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.’’ Id. at 341–42. 250 The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). ‘‘[T]he property of the said corporation . . . [is to be used to promote] the practice of polygamy—a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. . . . The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity had produced in the Western world.’’ Id. at 48–49. 251 For recent cases dealing with other religious groups discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 (1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) (Unification Church). Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Santeria faith). 252 Most of the cases are collected and categorized by Justice Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion). 253 310 U.S. 296 (1940). quently, an act of a territorial legislature which required a prospective voter not only to swear that he was not a bigamist or polygamist but also that ‘‘I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . ,’’ was upheld in an opinion that condemned plural marriage and its advocacy as equal evils. 249 And, finally, the Court sustained the revocation of the charter of the Mormon Church and confiscation of all church property not actually used for religious worship or for burial. 250 The Jehovah’s Witnesses Cases In contrast to the Mormons, the sect known as Jehovah’s Witnesses, in many ways as unsettling to the conventional as the Mormons were, 251 provoked from the Court a lengthy series of decisions 252 expanding the rights of religious proselytizers and other advocates to utilize the streets and parks to broadcast their ideas, though the decisions may be based more squarely on the speech clause than on the free exercise clause. The leading case is Cantwell v. Connecticut. 253 Three Jehovah’s Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant did have a religious cause and to VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00052 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1065 254 310 U.S. at 303-07. ‘‘The freedom to act must have appropriate definition to preserve the enforcement of tha

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