LDS Freedom Forum

While there have not been many legal tests of the “free-exercise” clause, existing precedence has generally held federal law superior to religious practice. In Reynolds v. United States (1878), the Mormon Church sued over the Morrill Anti-Bigamy Act in an attempt to continue their polygamist practices. The majority opinion declared that the law was constitutional since it neither interfered with religious belief nor selectively outlawed religious practice. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land,” wrote Chief Justice Morrison Waite, “and, in effect, permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Almost a century later, Reynolds was reaffirmed in Employment Division v. Smith (1990). Oregon’s Employment Division fired Alfred Smith, a public employee, after he used peyote in a Native American Church ceremony. Justice Antonin Scalia, in the majority opinion, explained that the ban applied to everyone equally and that it would be unfair to give a private excuse. He held that religious exceptions would have undermined the law.

The Sherbert Test

While Reynolds and Smith can be used to argue that the free-exercise clause has a rather narrow application, a concurring opinion in Smith by Justice Sandra Day O’Connor applied the test of “compelling government interest.” She argued that the government can only infringe on religious liberty when a compelling interest exists to do so. This test, established by Justice William Brennan, has been used in defense of religious liberty. In Sherbert v. Verner (1963), Adell Sherbert sued her employer when he extended her hours to include Saturdays—a day on which Sherbert, a Seventh-day Adventist, was religiously obliged not to work. The court ruled that the employer had placed a “substantial burden” on her and that the government lacked a compelling interest to deny benefits.

The hence-named “Sherbert Test” requires that an individual must prove sincere religious beliefs and substantial burden through government action. If these are established, the law is unconstitutional unless the government proves a “compelling state interest” and that the interest was pursued in the least intrusive way possible. The Sherbert Test had lasted fewer than 30 years when Smith changed the precedent; since then, the legal community has grown to scorn such tests. Nonetheless, Congress became concerned that religious exercise was at risk and passed the bipartisan Religious Freedom Restoration Act of 1993 (RFRA) to legislatively establish the Sherbert Test. Though President Clinton strengthened the laws through executive orders, Boerne v. Flores (1997) established that Congress can only strengthen federal religious freedoms. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) thus became the first use of RFRA and the Sherbert Test. Coincidentally, the Court ruled in Gonzales that the government had not established a compelling interest to limit the use of peyote tea in a New Mexico Native American ceremony.

Free Exercise Today

The Sherbert Test and free-exercise clause play into arguments over two current exercise events: gay rights and contraceptive coverage. Though these two issues are different and apply separate constitutional arguments, each rests principally on the role of religious liberty within American society.

Sixteen states have approved laws allowing citizens to “ignore state regulations or laws that contradict his or her sincerely held religious beliefs,” and Kentucky seems likely to approve a similar bill soon. Though applied broadly, these laws are a thinly veiled attempt to allow employment, housing, and other forms of discrimination against homosexuals. In essence, the laws apply a version of the Sherbert Test to states—groups establish sincerely held beliefs and then demonstrate a burden originating from following the law. Because the Sherbert Test applies only at the federal level, it could be seen as either changing state law or as unconstitutional based on Smith’s precedent. Considering many religious objections to gay marriage, any verdict on the issue could have future implications for the debate over who is required to acknowledge marriage between homosexual couples.

This requires something of a tricky legal balance. Even many liberals do not think religious institutions should be forced to perform same-sex marriage, but Smith might not allow for that if same-sex marriage were granted on constitutional grounds. But, the free-exercise clause could allow for private groups to discriminate against homosexual couples (for example, by not catering certain weddings). While states that legalize same-sex marriage can easily outline precisely what discrimination is acceptable, courts are much less able to navigate a middle ground.

Stephen L. Carter, professor at Yale Law School, described for the HPR what he calls the “accommodationist” position of the free-exercise clause. “The law must generally accommodate itself to the needs of religious organizations rather than the other way around,” he argues, because “religionists are entitled to exemptions as long as their positions are sincerely held and long-standing—that is, except when the regulation in question is narrowly tailored to serve a compelling state interest.” This common sense approach rejects Smith, and argues instead that the religious should not be required to do anything against their religion. While Justice Scalia argued that this could undermine the law, Carter’s approach essentially requires judgment as to whether the religion’s practices are sincerely held beliefs; thus, there is minimal fear that a new religious practice could be created to undermine the law. Though at times religious institutions have abused the balance of church and state in the past, Carter and many others believe that politicians are the ones overreaching right now, particularly on issues such as contraceptives.

Religious Freedom

Current legal precedent has stripped the free-exercise clause of any scope, beyond reiterating the illegality of ad hoc laws. A conservative court ruling could change that, but for now religious practices in the United States are subject to federal, state, and local laws. Depending on whom you talk to, this is either good legal practice or an infringement on religious freedom. Upcoming rulings from the Supreme Court and various legislative compromises will have long-term ramifications on exactly where the line is drawn between the two. It is certainly possible that the Court will argue that religious practice is free only within the limits of the law.

If that happens, America, it seems, will have certainly shed its “Christian” ideals and taken up secular replacements. If, on the other hand, religious freedoms are held as superior to the law, America will affirm its commitment to individualism and aggressive protections of the Bill of Rights. Both paths represent potentially far-reaching ramifications for Obamacare and, perhaps more importantly, protections from discrimination for homosexuals. While elected officials have the power to decide these issues, courts can defer to the Constitution as a sort of trump card. Indeed religious freedom, as much as anything else, is a balancing act between the different branches of government.

lemuel wrote:Still pondering why it happened, but trying to see it from the brethren's point of view. I think I see what they're scared of. Not sure it's the right move, but they must be really scared to take such drastic and unpopular action.

I'm not sure what the law's standard is for when they get to tell religions what to do, but perhaps a court could rule that the harm done to gay parents that don't get to attend their child's temple wedding is so great, that the gay parents must be admitted to the temple for the wedding. If the relationship between the parent and child is severed before the child becomes a member, then the legal case to admit the gay parents is weaker, since there is no relationship.

http://iop.harvard.edu/limits-religious-freedom

While there have not been many legal tests of the “free-exercise” clause, existing precedence has generally held federal law superior to religious practice. In Reynolds v. United States (1878), the Mormon Church sued over the Morrill Anti-Bigamy Act in an attempt to continue their polygamist practices. The majority opinion declared that the law was constitutional since it neither interfered with religious belief nor selectively outlawed religious practice. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land,” wrote Chief Justice Morrison Waite, “and, in effect, permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Almost a century later, Reynolds was reaffirmed in Employment Division v. Smith (1990). Oregon’s Employment Division fired Alfred Smith, a public employee, after he used peyote in a Native American Church ceremony. Justice Antonin Scalia, in the majority opinion, explained that the ban applied to everyone equally and that it would be unfair to give a private excuse. He held that religious exceptions would have undermined the law.

The Sherbert Test

While Reynolds and Smith can be used to argue that the free-exercise clause has a rather narrow application, a concurring opinion in Smith by Justice Sandra Day O’Connor applied the test of “compelling government interest.” She argued that the government can only infringe on religious liberty when a compelling interest exists to do so. This test, established by Justice William Brennan, has been used in defense of religious liberty. In Sherbert v. Verner (1963), Adell Sherbert sued her employer when he extended her hours to include Saturdays—a day on which Sherbert, a Seventh-day Adventist, was religiously obliged not to work. The court ruled that the employer had placed a “substantial burden” on her and that the government lacked a compelling interest to deny benefits.

The hence-named “Sherbert Test” requires that an individual must prove sincere religious beliefs and substantial burden through government action. If these are established, the law is unconstitutional unless the government proves a “compelling state interest” and that the interest was pursued in the least intrusive way possible. The Sherbert Test had lasted fewer than 30 years when Smith changed the precedent; since then, the legal community has grown to scorn such tests. Nonetheless, Congress became concerned that religious exercise was at risk and passed the bipartisan Religious Freedom Restoration Act of 1993 (RFRA) to legislatively establish the Sherbert Test. Though President Clinton strengthened the laws through executive orders, Boerne v. Flores (1997) established that Congress can only strengthen federal religious freedoms. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) thus became the first use of RFRA and the Sherbert Test. Coincidentally, the Court ruled in Gonzales that the government had not established a compelling interest to limit the use of peyote tea in a New Mexico Native American ceremony.

Free Exercise Today

The Sherbert Test and free-exercise clause play into arguments over two current exercise events: gay rights and contraceptive coverage. Though these two issues are different and apply separate constitutional arguments, each rests principally on the role of religious liberty within American society.

Sixteen states have approved laws allowing citizens to “ignore state regulations or laws that contradict his or her sincerely held religious beliefs,” and Kentucky seems likely to approve a similar bill soon. Though applied broadly, these laws are a thinly veiled attempt to allow employment, housing, and other forms of discrimination against homosexuals. In essence, the laws apply a version of the Sherbert Test to states—groups establish sincerely held beliefs and then demonstrate a burden originating from following the law. Because the Sherbert Test applies only at the federal level, it could be seen as either changing state law or as unconstitutional based on Smith’s precedent. Considering many religious objections to gay marriage, any verdict on the issue could have future implications for the debate over who is required to acknowledge marriage between homosexual couples.

This requires something of a tricky legal balance. Even many liberals do not think religious institutions should be forced to perform same-sex marriage, but Smith might not allow for that if same-sex marriage were granted on constitutional grounds. But, the free-exercise clause could allow for private groups to discriminate against homosexual couples (for example, by not catering certain weddings). While states that legalize same-sex marriage can easily outline precisely what discrimination is acceptable, courts are much less able to navigate a middle ground.

I imagine the court could argue that, even if we don't allow sinners into temples it's really no big deal if we do, since unworthy adulterers enter temples every day. So perhaps giving gays a special classification (apostates) that is not given to adulterers helps the church make the argument that it is extra grievous if gay parents come to their kid's temple wedding.

Stephen L. Carter, professor at Yale Law School, described for the HPR what he calls the “accommodationist” position of the free-exercise clause. “The law must generally accommodate itself to the needs of religious organizations rather than the other way around,” he argues, because “religionists are entitled to exemptions as long as their positions are sincerely held and long-standing—that is, except when the regulation in question is narrowly tailored to serve a compelling state interest.” This common sense approach rejects Smith, and argues instead that the religious should not be required to do anything against their religion. While Justice Scalia argued that this could undermine the law, Carter’s approach essentially requires judgment as to whether the religion’s practices are sincerely held beliefs; thus, there is minimal fear that a new religious practice could be created to undermine the law. Though at times religious institutions have abused the balance of church and state in the past, Carter and many others believe that politicians are the ones overreaching right now, particularly on issues such as contraceptives.

Religious Freedom

Current legal precedent has stripped the free-exercise clause of any scope, beyond reiterating the illegality of ad hoc laws. A conservative court ruling could change that, but for now religious practices in the United States are subject to federal, state, and local laws. Depending on whom you talk to, this is either good legal practice or an infringement on religious freedom. Upcoming rulings from the Supreme Court and various legislative compromises will have long-term ramifications on exactly where the line is drawn between the two. It is certainly possible that the Court will argue that religious practice is free only within the limits of the law.

If that happens, America, it seems, will have certainly shed its “Christian” ideals and taken up secular replacements. If, on the other hand, religious freedoms are held as superior to the law, America will affirm its commitment to individualism and aggressive protections of the Bill of Rights. Both paths represent potentially far-reaching ramifications for Obamacare and, perhaps more importantly, protections from discrimination for homosexuals. While elected officials have the power to decide these issues, courts can defer to the Constitution as a sort of trump card. Indeed religious freedom, as much as anything else, is a balancing act between the different branches of government.

I think I see what they're scared of. Not sure it's the right move, but they must be really scared to take such drastic and unpopular action.