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mith, argued that ‘‘the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause.’’ 494 U.S. at 901. ship’ without compelling reason.’’ 302 Wisconsin v. Yoder and other decisions holding ‘‘that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action’’ were distinguished as involving ‘‘not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections’’ such as free speech or ‘‘parental rights.’’ 303 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, then, the Free Exercise Clause affords no basis for exemption from a ‘‘neutral, generally applicable law.’’ As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in ‘‘the political process.’’ 304 The ramifications of Smith are potentially widespread. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment, 305 but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of the Lukumi Babalu Aye v. City of Hialeah: ‘‘our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’’ 306 Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression. 307 The result is equal protection, but not substantive protection, for religious exercise. 308 The Court’s ap- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00061 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1074 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 309 Although neutral laws affecting expressive conduct are not measured by a ‘‘compelling interest’’ test, they are ‘‘subject to a balancing, rather than categorical, approach.’’ Smith, 494 U.S. at 902 (O’Connor, J., concurring). 310 494 U.S. at 902-03. 311 Pub. L. 103–141, 107 Stat. 1488 (1993); 42 U.S.C. §§ 2000bb to 2000bb–4. 312 Pub. L. 103–141, § 2(b)(1) (citations omitted). Congress also avowed a purpose of providing ‘‘a claim or defense to persons whose religious exercise is substantially burdened by government.’’ §2(b)(2). 313 521 U.S. 507 (1997). 314 521 U.S. at 519. 315 521 U.S. at 533–34. proach also accords less protection to religiously-based conduct than is accorded expressive conduct that implicates speech but not religious values. 309 On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O’Connor warned, result in less protection for small, unpopular religious sects. 310 Because of the broad ramifications of Smith, the political processes were soon used in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA), 311 Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was ‘‘to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.’’ 312 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores 313 held the Act to be unconstitutional as applied to the states. In applying RFRA to the states Congress had utilized its power under § 5 of the Fourteenth Amendment to enact ‘‘appropriate legislation’’ to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the due process clause. But the Court held that RFRA exceeded Congress’ power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. ‘‘Congress,’’ the Court said, ‘‘does not enforce a constitutional right by changing what the right is.’’ 314 Moreover, it said, RFRA ‘‘reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved ... [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.’’ 315 ‘‘RFRA,’’ the Court concluded, ‘‘contradicts vital principles VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1075 316 521 U.S. at 536. 317 The ‘‘Religious Land Use and Institutionalized Persons Act,’’ P.L. 106-274 (2000); 42 U.S.C. 2000cc et seq.. The Act utilizes Congress’ spending power and its power over interstate commerce to impose a strict scrutiny test on state and local zoning and landmark laws and regulations which impose a substantial burden on an individual’s or institution’s exercise of religion. It utilizes the same powers to impose a strict scrutiny test on state and local governments for any substantial burdens they impose on the exercise of religion by persons in state or locally run institutions such as prisons, mental hospitals, juvenile detention facilities, and nursing homes. 318 See, e.g., In re Young, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811 (1998) (lower court held RFRA to be constitutional as applied to federal bankruptcy law). 319 Torcaso v. Watkins, 367 U.S. 488, 494 (1961). 320 McDaniel v. Paty, 435 U.S. 618 (1978). The plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens, found the case governed by Sherbert v. Verner’s strict scrutiny test. The State had failed to show that its view of the dangers of clergy participation in the political process had any validity; Torcaso v. Watkins was distinguished because the State was acting on the status necessary to maintain separation of powers and the federal balance.’’ 316 Boerne does not close the books on Smith, however. It remains an open issue whether RFRA remains valid as applied to the federal government, and Congress has recently relied on its power over interstate commerce and its power to attach conditions to federal financial assistance to enact legislation providing a higher level of protection than that afforded by Smith to religious institutions involved in land use disputes and to religious practices by persons in state institutions. 317 These issues ensure continuing litigation over the appropriate test for free exercise cases. 318 Religious Test Oaths However the Court has been divided in dealing with religiously- based conduct and governmental compulsion of action or nonaction, it was unanimous in voiding a state constitutional provision which required a notary public, as a condition of perfecting his appointment, to declare his belief in the existence of God. The First Amendment, considered with the religious oath provision of Article VI, makes it impossible ‘‘for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly, profess to have, a belief in some particular kind of religious concept.’’ 319 Religious Disqualification Unanimously, but with great differences of approach, the Court declared invalid a Tennessee statute barring ministers and priests from service in a specially called state constitutional convention. 320 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00063 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1076 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. of being a clergyman rather than on one’s beliefs. Justice Brennan, joined by Justice Marshall, found Torcaso controlling because imposing a restriction upon one’s status as a religious person did penalize his religious belief, his freedom to profess or practice that belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id. at 642, and Justice White found an equal protection violation because of the restraint upon seeking political office. Id. at 643. 321 1 ANNALS OF CONGRESS 434 (1789). Madison had also proposed language limiting the power of the States in a number of respects, including a guarantee of freedom of the press. Id. at 435. Although passed by the House, the amendment was defeated by the Senate. See ‘‘Bill of Rights and the States,’’ supra. 322 Id. at 731 (August 15, 1789). 323THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1148–49 (B. Schwartz ed. 1971). 324 Id. at 1153. 325 The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 ANNALS OF CONGRESS 731–749 (August 15, 1789). There are no records of debates in the States on ratification. The Court’s decision necessarily implied that the constitutional provision on which the statute was based, barring ministers and priests from service as state legislators, was also invalid. FREEDOM OF EXPRESSION—SPEECH AND PRESS Adoption and the Common Law Background Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: ‘‘The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’’ 321 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: ‘‘The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.’’ 322 In this form it went to the Senate, which rewrote it to read: ‘‘That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.’’ 323 Subsequently, the religion clauses and these clauses were combined by the Senate. 324 The final language was agreed upon in conference. Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate. 325 In the course of debate, Madison warned against the dangers which would arise ‘‘from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1077 326 Id. at 738. 327 4 W. BLACKSTONE’S COMMENTARIES ON THE LAWS OF ENGLAND 151–52 (T. Cooley, 2d rev. ed. 1872). See 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1874–86 (1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment. 328 It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of ‘‘[c]ertain self-created societies,’’ by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. BRANT, JAMES MADISON—FATHER OF THE CONSTITUTION 1787–1800 416–20 (1950). ‘‘If we advert to the nature of republican government,’’ Madison told the House, ‘‘we shall find that the censorial power is in the people over the government, and not in the govourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.’’ 326 That the ‘‘simple, acknowledged principles’’ embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. ‘‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.’’ 327 Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment, 328 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00065 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1078 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. ernment over the people.’’ 4 ANNALS OF CONGRESS 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 PAPERS OF JAMES MADISON 147, 161– 62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: ‘‘A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.’’ 13 PAPERS OF THOMAS JEFFERSON 442 (J. Boyd ed., 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: ‘‘The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.’’ 15 PAPERS, supra, at 367. 329 The Act, 1 Stat. 596 (1798), punished anyone who would ‘‘write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.’’ See J. SMITH, FREEDOM’S FETTERS— THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES (1956). 330 Id. at 159 et seq. 331 L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY ch. 6 (1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964). But compare L. LEVY, EMERGENCE OF A FREE PRESS (1985), a revised and enlarged edition of LEGACY OF EXPRESSION, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts. 332 L. LEVY, JEFFERSON AND CIVIL LIBERTIES—THE DARKER SIDE (1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: ‘‘The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.’’ 9 WORKS OF THOMAS JEFFERSON 449 (P. Ford ed., 1905). it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 329 and the use by the Adams Administration of the Act to prosecute its political opponents, 330 something of a libertarian theory of freedom of speech and press, 331 which, however much the Jeffersonians may have departed from it upon assuming power, 332 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite re- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00066 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1079 333 New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ‘‘a national awareness of the central meaning of the First Amendment,’’ id. at 273, which is that the ‘‘right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.’’ Id. at 275. This ‘‘central meaning’’ proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. ‘‘Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.’’ Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 WRITINGS OF JAMES MADISON, 341–406 (G. Hunt ed., 1908). 334 Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar views in 1951: ‘‘The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.’’ Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion). The internal quotation is from Robertson v. Baldwin, 165 U.S. 275, 281 (1897). 335 Patterson v. Colorado, 205 U.S. 454, 461 (1907). cent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I. 333 Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, ‘‘still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . . . . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.’’ 334 But as Justice Holmes also observed, ‘‘[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.’’ 335 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00067 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1080 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 336 249 U.S. 47, 51–52 (1919) (citations omitted). 337 Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920). 338 Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles. 339 274 U.S. 380 (1927). 340 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967). 341 And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Lovell v. City of Griffin, 303 U.S. 444 (1938). But in Schenck v. United States, 336 the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. ‘‘It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’’ Justice Holmes along with Justice Brandeis soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered

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