Free Exercise of Religion Free Exercise: freedom from governmental coercion in selecting a religion or no religion at all. Not absolute (prosecutions for religious practices, but not ______________; e.g., snake handling, taking drugs, businesses and Sunday closings). A. Those supporting strict neutrality in establishment cases thought this was too harsh in free exercise cases. Tension: They wanted to define what religion was in establishment but generally leave it open in free exercise (separationists in establishment cases tend to be accommodationists in free exercise cases). Alternative tests: “least drastic ___________ test” from Sherbert v. Verner (1963). Was there a “less drastic” alternative method for the state to accomplish its secular purpose in the process of violating free exercise (7th Day Adventist refused to work on Sunday but wanted unemployment compensation from state)? Wisconsin v. Yoder (1972): “Court basically balances those claims against competing governmental interests, taking into consideration the _______________ of the regulation [necessary], the centrality of a religious belief, and the equality in treatment of religion” (O’Brien 799). This basically came to be known as the Sherbert Test.

Even if coercive, state interests may be superior (ban on Jewish yarmulkes in ________________ and road construction in a forest where Indian tribe traditionally used for religious purposes. B. Most difficult thing with respect to free exercise: defining religious practice. Who should? Government, Court, or individual? Waite view (upholding law banning ______________ challenged by Mormons; p. 800): Understanding at the time the law was adopted. Rutledge cautioned against any of these attempts because the Court was hesitant to do the same with respect to establishment (800). Implications of narrow definition for establishment and free exercise? Broad? Well, if narrow, then state can not establish national church, and state is far less sensitive to protect individuals practicing any kind of religion they choose or formulate. If broad, then strict separation/neutrality in establishment and claims of religious practice (free exercise) can justify nearly anything claimed to be religious subjectively defined.

United States v. Ballard (1944) on page 800 United States v. Ballard (1944) on page 800. Court ruled not the court’s business to determine if Ballard’s religious claims (beliefs) are true or legitimate. “Men may believe what they cannot __________.” wrote Douglas. Dissenting, Stone argued that the court must engage in defining legitimacy when someone uses religion to make knowingly false statements (800); basically saying that it is a dangerous precedent TO NOT attempt to define religion objectively. Look at Douglas, Jackson, and Stone. Court generally takes a broad/expansive view of what is religion however. Consider the “_______________________” cases. Congressional law allowed someone to refrain from service if their views “in relation to a Supreme being” were violated. Court, however, overturned and required _________________________ for those with contrary views that are not associated with a particular religion (atheists and irreligious; ethics, morals equal to religious convictions). Positive neutrality?

Observation: Irreligion and atheism is being treated as religion in “free exercise” cases but not in “establishment” cases. Basically in Free Exercise cases, the court _____________________ all worldviews (comprehensive set of beliefs and assumptions about how the world fits together). Court’s opinion: Atheists are entitled to conscientious exemption because the test of religious belief is “whether a given belief that is _________________ and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have ____________________ positions in the lives of their respective holders we cannot say that one is ‘in relation to a Supreme Being’ and the other is not.” Clearly, the court in defining religion disregards belief in God or the supernatural and considers all worldviews to be religious (at least in free exercise cases). Sherbert’s test was applied when unemployment compensation was denied individuals who lost jobs due to religious beliefs. This practice was ____________________, however, in Employment Division, Dept. of Human Resources of Oregon v. Smith (1990). Where did Scalia draw the line? New Smith test?

Scalia’s problem with the Sherbert test: 1. Created a “private right to ____________ generally applicable laws.” Instead, as long as the law’s burden on free exercise of religion is merely “an incidental effect of a generally applicable and otherwise valid provision,” it is constitutional. Argues that Sherbert creates a situation where government can only prohibit behavior if the behavior is not “accompanied by religious ______________________.” 2. Won’t do to say those convictions must be “_________” because this would require judges to determine what is and is not a “centrally held belief” of an alleged religion. Not equipped for that. “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” This ruling was criticized from many and should be compared with the ruling in Church of the Lukemi Babula Aye v. City of Hialeah (1993). In this case, for example, Justice Blackmun asserts that the Smith test treats “the Free Exercise Clause as no more than an antidiscrimination principle’ rather than a fundamental right.

Although the Rehnquist court in the Lukemi Babula case asserted that Scalia’s new Smith test had been satisfied, Congress wanted the Court to return to the Sherbert test and passed the Religious Freedom Restoration Act, 1993. Act was challenged in City of Boerne v. Flores (1997). Court ruled that Congress did not have power, under 14th amendment enforcement power (Section 5), to enforce constitutional rights broader than previously interpreted by Court. Court continued to rely upon Smith as the new test. Compare Smith and Sherbert: “In evaluating the claim (unemployment benefits to those who lost jobs due to religious use of peyote), we declined to apply the balancing test set forth in Sherbert, under which we would have asked whether the Oregon’s prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest…The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual’s religion.”

Basically we end up with a kind of _____________ protecting religious minorities according to the degree to which they are being targeted by the state. Between the clauses: Some have argued that the court is contradicting itself. Justices on one side want to accommodate religion in establishment cases, but not in free exercise. Others want strict neutrality in establishment, but not in free exercise. Others accuse the court of selective accommodation: conservative justices are more accommodating to religion in establishment because it is usually Christianity, but less accommodating in free exercise because it is usually a minority religious group. Perhaps liberal justices tend to rule just the _________________. Discuss Locke Case