Freedom Of Religion Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Freedom of religion, libertas religionis, is among the oldest internationally recognized rights, and most people today in liberal, secular states around the world consider religious freedom a fundamental human right. Even most states with an official religion allow the practice of other religions within their jurisdictions. How much religious freedom, of course, varies from one state to another.

Religious Freedom In The United States

In the United States, religious freedom takes pride of place in the Bill of Rights, the bedrock of constitutional freedom emulated in emerging democracies in the post–World War II era. The First Amendment (1791) of the United States Constitution (1787) guarantees that “Congress shall make no law . . . prohibiting the free exercise” of religion. Article I of the Constitution also prohibits religious oaths as a precondition for federal elected office. Thus, freedom of religion has been enshrined in the basic law of the country since the earliest days of the constitutional system—in fact, absolutely protected, according to the text of the First Amendment. In Cantwell v. Connecticut (1940) the Supreme Court held that the amendment’s protection also applies against the states: “The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”

The basic constitutional problem, besides defining religion, has been framing the extent to which a believer is free to observe his or her religion. To make exceptions from otherwise valid laws because they curtail someone’s religious practice could seriously impair government’s ability to govern effectively and fairly. The Court in the Cantwell case acknowledged this by holding that “the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” The “nature of things” has changed profoundly. It was difficult enough at the beginning of the Republic when most people were Christians of some sort. Today the problem is compounded greatly because the United States is the most pluralistic country in the world. Every known religion is practiced somewhere in the country, and many laws, from local to national, to some extent restrict the free exercise of religion. Observances of familiar, mainstream religions almost never generated lawsuits. Constitutional disputes have arisen from religious minorities, and when they appeared before the country’s highest court, if the groups prevailed, these disputes tended to be resolved mostly as free speech matters. For example, the Supreme Court held in West Virginia State Board of Education v. Barnette (1943) that government cannot compel Jehovah’s Witnesses—in fact, anyone—to salute the American flag because the freedom of speech clause protected them. When Jehovah’s Witnesses first sought exemption from compulsory flag salutes in public schools in Pennsylvania on free exercise of religion grounds (saluting the flag was akin to worshipping a graven image, in violation of their religion), the Court in Minersville School District v. Gobitis (1940) rejected (8–1) the claim that the free exercise clause required any exception. For most of American history the Supreme Court had given little attention to the meaning of the free exercise clause, and the Gobitis case exemplified that posture.

Protecting The “Exercise” In Free Exercise Of Religion

In 1963, however, that changed. Adell Sherbert was a member of the Seventh-day Adventist Church and refused to work on Saturdays, her religious Sabbath. She had worked for years as a textile mill operator for a company in South Carolina that switched from a fiveto a six-day workweek. After she was fired for refusing to work Saturdays, she filed for workers’ compensation benefits for which she was eligible as long as she was able and available to work but could not find suitable work. The state’s Employment Secur ity Commission denied her benefits when she claimed she was not able or available, for religious reasons, to work on Saturdays. She sued, lost her case, but eventually reached the U.S. Supreme Court, where a 7–2 majority unexpectedly ruled in Sherbert v. Verner (1963) that South Carolina had imposed an unconstitutional burden on her free exercise of religion. Just two years before, the Court had flatly rejected the plea of an orthodox Jew for an exemption from a state’s blue laws, which forced businesses like his to close on Sundays (his Sabbath required him also to close on Saturdays). Fashioning an abrupt reversal of constitutional policy, the majority in Sherbert held that in defeating a free exercise claim for exemption the burden is now on the government to show a “compelling” state interest achievable only by interfering with the religious practice in question. This new standard is very difficult for states or the federal government to pass. Government must not only demonstrate a compelling public interest but also prove that intruding on religious freedom is the least drastic, or perhaps the only, means of promoting that interest. The Court was unconvinced that South Carolina’s denial of Mrs. Sherbert’s benefits was necessary to thwart fraudulent and deceitful compensation claims.

In Wisconsin v. Yoder (1972) the Court reconfirmed its commitment to this new posture. Applying the same test, a unanimous Court ruled that children of the Old Order Amish religion and the Conservative Amish Mennonite Church were constitutionally exempted from Wisconsin’s compulsory school attendance law. Their parents had sued claiming that high school was not necessary to their simple lifestyle and that coercive exposure to modernity through a high school curriculum collided with their free exercise of religion. The Supreme Court agreed, although one justice wanted to leave the decision to the children, not the parents. In Yoder the Court recognized the problem in trying to distinguish between secular and religious: “Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.” However, when Christian fundamentalists objected to mandatory use of certain books in high school curricula offensive to their children’s religious convictions, the Supreme Court refused even to hear their claims. The message thus seemed to be selective constitutional exemptions from general regulatory laws for some religiously inspired conduct. The free exercise predicament and inconsistent results were all too obvious.

Judicial Retreat

Other liberal democracies never went as far as the United States in interpreting their constitutional principles so broadly, and many nonliteral states impose substantial limitations on religious practice. France and Italy, where religious freedom is comparatively very high, nonetheless have not exempted Muslim girls and young women from public school dress codes. Wearing the burka or hijab in public schools has created in both countries the inevitable clash between religious freedom and public order. Having given religious practice a greater value in the conflict of liberty and order at least since the Sherbert case in 1963, in Employment Division of Oregon Department of Human Resources v. Smith (1990), a narrowly split (5–4) Court eliminated this problem altogether by suddenly reversing course. As long as the contested regulation is nondiscriminatory (that is, not aimed specifically at religious behavior) and rationally related to a legitimate governmental goal, no one could henceforth claim immunity on the basis of religious obligation. In reformulating free exercise law, Justice Antonin Scalia’s majority opinion attempted judicially to “distinguish” both Yoder and Sherbert as particular, special exceptions. However, Justice Sandra Day O’Connor, for herself and three other dissenters, complained that the Court “dramatically departs from well-settled First Amendment jurisprudence.” Under this policy, the federal, state, or local government in the United States could ban the hijab in public schools as long as the prohibition was driven by some neutral, secular purpose.

Despite a congressional effort to reverse the Court’s interpretation of the First Amendment, the Smith doctrine has prevailed. The free exercise problem generated by religious pluralism has disappeared. As the Court in Cantwell first ruled, people can believe whatever they want, but free exercise of their religions no longer has constitutional shelter unless government has specifically targeted those religious practices. Other countries where freedom of religion is cherished continue to wrestle with these difficult issues, which increase in number and intensity in accord with the spread of religious pluralism and diversity.

Bibliography:

Employment Division v. Smith, 494 U.S. 872 (1990).
“Global Restrictions on Religion.” Pew Forum on Religion & Public Life. Washington, D.C.: Pew Research Center, December 2009. pewforum. org/docs/?DocID=491.
Knights, Samantha. Freedom of Religion, Minorities, and the Law. Oxford, UK: Oxford University Press, 2007.
Neusner, Jacob, ed. World Religions in America. 4th ed. Louisville, Ky.: Westminster John Knox, 2009.
Nussbaum, Martha Craven. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books, 2010.
Taylor, Paul M. Freedom of Religion: UN and European Human Rights Law and Practice. Cambridge: Cambridge University Press, 2005.
Zacharias, Gary. Freedom of Religion. Detroit, Mich.: Greenhaven, 2005.