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t protection [of society]. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. . . . [A] State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.’’ Id. at 304. 255 310 U.S. at 307-11. ‘‘In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probabilities of excesses and abuses, these liberties are in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.’’ Id. at 310. 256 Jones v. Opelika, 316 U.S. 584 (1942). 257 Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321 U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying ‘‘only where a flat license fee operates as a prior restraint’’; upheld in Swaggart was application of a general sales and use tax to sales of religious publications. 258 Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicitation context). 259 Prince v. Massachusetts, 321 U.S. 158 (1944). decline a license if in his view the cause was not religious. Such power amounted to a previous restraint upon the exercise of religion and was invalid, the Court held. 254 The breach of the peace count arose when the three accosted two Catholics in a strongly Catholic neighborhood and played them a phonograph record which grossly insulted the Christian religion in general and the Catholic Church in particular. The Court voided this count under the clearand- present danger test, finding that the interest sought to be upheld by the State did not justify the suppression of religious views that simply annoyed listeners. 255 There followed a series of sometimes conflicting decisions. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets, 256 but eleven months later it vacated its former decision and struck down such fees. 257 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held in violation of the First Amendment when applied to distributors of leaflets advertising a religious meeting. 258 But a state child labor law was held to be validly applied to punish the guardian of a nine-year old child who permitted her to engage in ‘‘preaching work’’ and the sale of religious publications after hours. 259 The VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00053 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1066 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 260 E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by Unification Church members). 261 Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton 122 S. Ct. 2080 (2002). 262 494 U.S. 872 (1990). 263 Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940). 264 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). On the same day, the Court held that a State may not forbid the distribution of literature urging and advising on religious grounds that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943). 265 See United States v. Schwimmer, 279 U.S. 644 (1929); United States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 283 U.S. 636 (1931) (all interpreting the naturalization law as denying citizenship to a conscientious objector who would not swear to bear arms in defense of the country), all three of which were overruled by Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (upholding expulsion from state university for a religiously based refusal to take a required Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory ‘‘times, places, and manners’’ terms and which did not seek to regulate the content of the religious message to be communicated. 260 Most recently, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit. 261 The Court stated that the requirement was ‘‘offensive ... to the very notion of a free society.’’ Free Exercise Exemption From General Governmental Requirements As described above, the Court gradually abandoned its strict belief-conduct distinction, and developed a balancing test to determine when a uniform, nondiscriminatory requirement by government mandating action or nonaction by citizens must allow exceptions for citizens whose religious scruples forbid compliance. Then, in 1990, the Court reversed direction in Employment Division v. Smith, 262 confining application of the ‘‘compelling interest’’ test to a narrow category of cases. In early cases the Court sustained the power of a State to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag, 263 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds. 264 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so, 265 only in later cases to cast VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00054 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1067 course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because as conscientious objector he could not take required oath). 266 United States v. Seeger, 380 U.S. 163 (1965); see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970); and see id. at 344 (Justice Harlan concurring). 267 Gillette v. United States, 401 U.S. 437 (1971) (holding that secular considerations overbalanced free exercise infringement of religious beliefs of objectors to particular wars). 268 366 U.S. 599 (1961). See section on ‘‘Sunday Closing Laws,’’ supra, for application of the establishment clause. 269 366 U.S. at 605-06. 270 366 U.S. at 607 (plurality opinion). The concurrence balanced the economic disadvantage suffered by the Sabbatarians against the important interest of the State in securing its day of rest regulation. McGowan v. Maryland, 366 U.S. at 512– 22. Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 610 (Justice Brennan), 616 (Justice Stewart). 271 374 U.S. 398 (1963). 272 374 U.S. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963). doubt on this resolution by statutory interpretation, 266 and still more recently to leave the whole matter in some doubt. 267 Braunfeld v. Brown 268 held that the free exercise clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant who observed Saturday as the Sabbath and was thereby required to be closed two days of the week rather than one. This requirement did not prohibit any religious practices, the Court’s plurality pointed out, but merely regulated secular activity in a manner making religious exercise more expensive. 269 ‘‘If 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.’’ 270 Within two years the Court in Sherbert v. Verner 271 reversed this line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. This denial of benefits could be upheld, the Court said, only if ‘‘her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden on the free exercise of appellant’s religions may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . .’’’ 272 First, the disqualification was held to impose a burden on the free exercise of Sherbert’s religion; it was an indirect burden and it did VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00055 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1068 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 273 374 U.S. at 403–066. 274 374 U.S. at 407. Braunfeld was distinguished because of ‘‘a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers.’’ That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. Id. at 408–09. Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 417 (Justice Stewart concurring), 418 (Justice Harlan and White dissenting). 275 450 U.S. 707 (1981). 276 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987). 277 Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (1989). Cf. United States v. Seeger , 380 U.S. 163 (1965) (interpreting the religious objection exemption from military service as encompassing a broad range of formal and personal religious beliefs). not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice. 273 Second, there was no compelling interest demonstrated by the State. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, ‘‘it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.’’ 274 Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board 275 involved a Jehovah’s Witness who quit his job when his employer transferred him from a department making items for industrial use to a department making parts for military equipment. While his belief that his religion proscribed work on war materials was not shared by all other Jehovah’s Witnesses, the Court held that it was inappropriate to inquire into the validity of beliefs asserted to be religious so long as the claims were made in good faith (and the beliefs were at least arguably religious). The same result was reached in a 1987 case, the fact that the employee’s religious conversion rather than a job reassignment had created the conflict between work and Sabbath observance not being considered material to the determination that free exercise rights had been burdened by the denial of unemployment compensation. 276 Also, a state may not deny unemployment benefits solely because refusal to work on the Sabbath was based on sincere religious beliefs held independently of membership in any established religious church or sect. 277 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00056 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1069 278 406 U.S. 205 (1972). 279 406 U.S. at 215-19. Why the Court felt impelled to make these points is unclear, since it is settled that it is improper for courts to inquire into the interpretation of religious belief. E.g., United States v. Lee, 455 U.S. 252, 257 (1982). 280 406 U.S. at 219-21. 281 406 U.S. at 221. 282 406 U.S. at 221-29. 283 455 U.S. 252 (1982). 284 The Court’s formulation was whether the limitation on religious exercise was ‘‘essential to accomplish an overriding governmental interest.’’ 455 U.S. at 257-58. Accord, Hernandez v. Commissioner, 490 U.S. 680, 699–700 (1989) (any burden on The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. The first two such cases involved the Amish, whose religion requires them to lead a simple life of labor and worship in a tight-knit and self-reliant community largely insulated from the materialism and other distractions of modern life. Wisconsin v. Yoder 278 held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause. The Court first determined that the beliefs of the Amish were indeed religiously based and of great antiquity. 279 Next, the Court rejected the State’s arguments that the Free Exercise Clause extends no protection because the case involved ‘‘action’’ or ‘‘conduct’’ rather than belief, and because the regulation, neutral on its face, did not single out religion. 280 Instead, the Court went on to analyze whether a ‘‘compelling’’ governmental interest required such ‘‘grave interference’’ with Amish belief and practices. 281 The governmental interest was not the general provision of education, inasmuch as the State and the Amish were in agreement on education through the first eight grades and since the Amish provided their children with additional education of a primarily vocational nature. The State’s interest was really that of providing two additional years of public schooling. Nothing in the record, felt the Court, showed that this interest outweighed the great harm which it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance. 282 But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee, 283 the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs. 284 Compulsory payment of taxes was necessary for VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00057 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1070 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. free exercise imposed by disallowance of a tax deduction was ‘‘justified by the ‘broad public interest in maintaining a sound tax system’ free of ‘myriad exceptions flowing from a wide variety of religious beliefs’’’). 285 461 U.S. 574 (1983). 286 461 U.S. at 604. 287 Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas to solicit at fixed booth sites on county fair grounds is a valid time, place, and manner regulation, although, as the Court acknowledged, id. at 652, peripatetic solicitation was an element of Krishna religious rites. 288 As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 (1989). 289 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to perceive how application of minimum wage and overtime requirements would burden free exercise rights of employees of a religious foundation, there being no assertion that the amount of compensation was a matter of religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (questioning but not deciding whether any burden was imposed by administrative disallowal of deduction for payments deemed to be for commercial rather than religious or charitable purposes). the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer. ‘‘A compelling governmental interest’’ was also found to outweigh free exercise interests in Bob Jones University v. United States, 285 in which the Court upheld the I.R.S.’s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government’s ‘‘fundamental, overriding interest in eradicating racial discrimination in education’’—found to be encompassed in common law standards of ‘‘charity’’ underlying conferral of the tax exemption on ‘‘charitable’’ institutions— ‘‘substantially outweighs’’ the burden on free exercise. Nor could the schools’ free exercise interests be accommodated by less restrictive means. 286 In other cases the Court found reasons not to apply compelling interest analysis. Religiously motivated speech, like other speech, can be subjected to reasonable time, place, or manner regulation serving a ‘‘substantial’’ rather than ‘‘compelling’’ governmental interest. 287 Sherbert’s threshold test, inquiring ‘‘whether government has placed a substantial burden on the observation of a central religious belief or practice,’’ 288 eliminates other issues. As long as a particular religion does not proscribe the payment of taxes (as was the case with the Amish in Lee), the Court has denied that there is any constitutionally significant burden resulting from ‘‘imposition of a generally applicable tax [that] merely decreases the amount of money [adherents] have to spend on [their] religious activities.’’ 289 The one caveat the Court left—that a generally applicable tax might be so onerous as to ‘‘effectively choke off an adher- VerDate Aug<10>2004 12:54 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00058 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1071 290 Jimmy Swaggart Ministries, 493 U.S. at 392. 291 485 U.S. 439 (1988). 292 485 U.S. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring). 293 Bowen v. Roy, 476 U.S. 693 (1986). 294 ‘‘In neither case . . . would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity.’’ Lyng, 485 U.S. at 449. 295 Goldman v. Weinberger, 475 U.S. 503, 507 (1986). ent’s religious practices’’ 290 —may be a moot point in light of the Court’s general ruling in Employment Division v. Smith, discussed below. The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals’ religious beliefs, on the other. Sherbert’s compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass’n 291 held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: ‘‘’the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’’’ 292 Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping. 293 It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government’s recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections. 294 Compelling interest analysis is also wholly inapplicable in the context of military rules and regulations, where First Amendment review ‘‘is far more deferential than . . . review of similar laws or regulations designed for civilian society.’’ 295 Thus the Court did not question the decision of military authorities to apply uniform dress code standards to prohibit the wearing of a yarmulke by an officer VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00059 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1072 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 296 Congress reacted swiftly by enacting a provision allowing military personnel to wear religious apparel while in uniform, subject to exceptions to be made by the Secretary of the relevant military department for circumstances in which the apparel would interfere with performance of military duties or would not be ‘‘neat and conservative.’’ Pub. L. 100–180, § 508(a)(2), 101 Stat. 1086 (1987); 10 U.S.C. § 774. 297 O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) ). 298 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987). 299 482 U.S. at 351-52 (also suggesting that the ability of the inmates to engage in other activities required by their faith, e.g., individual prayer and observance of Ramadan, rendered the restriction reasonable). 300 494 U.S. 872 (1990) (holding that state may apply criminal penalties to use of peyote in a religious ceremony, and may deny unemployment benefits to persons dismissed from their jobs because of religiously inspired use of peyote). 301 494 U.S. at 878. compelled by his Orthodox Jewish religious beliefs to wear the yarmulke. 296 A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are ‘‘valid if . . . reasonably related to legitimate penological interests.’’ 297 Thus because general prison rules requiring a particular category of inmates to work outside of buildings where religious services were held, and prohibiting return to the buildings during the work day, could be viewed as reasonably related to legitimate penological concerns of security and order, no exemption was required to permit Muslim inmates to participate in Jumu’ah, the core ceremony of their religion. 298 The fact that the inmates were left with no alternative means of attending Jumu’ah was not dispositive, the Court being ‘‘unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.’’ 299 Finally, in Employment Division v. Smith 300 the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are ‘‘generally applicable’’ when they apply across the board regardless of the religious motivation of the prohibited conduct, and are ‘‘not specifically directed at . . . religious practices.’’ 301 The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work ‘‘without good cause.’’ Sherbert and other unemployment compensation cases thus ‘‘stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hard- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00060 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1073 302 494 U.S. at 884. 303 494 U.S. at 881. 304 494 U.S. at 890. 305 This much was made clear by Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), striking down a city ordinance that prohibited ritual animal sacrifice but that allowed other forms of animal slaughter. 306 508 U.S. 520, 531 (1993). 307 This latter condition derives from the fact that the Court in Swaggart distinguished earlier decisions by characterizing them as applying only to flat license fees. 493 U.S. at 386. See also Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 39–41. 308 Justice O’Connor, concurring in S

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