This is the church at issue in Boerne v Flores

Just in case you were curious.

Regarding "Employment Division v Smith"

We caught up on this case in 2306 Monday because this lead to the passage of the national Religious Freedom Restoration Act (RFRA), which was whittled down by the Supreme Court in Bourne v. Flores, which then led to the passage of similar laws on the state level - including the one in Indiana which led to this week's written assignment for 2306.

I hope that was - somehow - at least slightly clear.

The Oyez page on Smith - click here for it - contains a summary of the case and the majority decision, which we spent a little time discussing.

Here are the relevant parts:

Facts of the Case

Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.

Question

Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Conclusion

Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

Decision: 6 votes for Employment Division, 3 vote(s) against

For our look at religious liberty today: Burwell v. Hobby Lobby Stores, Inc.

This 2014 decision is the most recent ruling by the Supreme Court testing the bounds of the free exercise of religion - specifically the meaning of the Religious Freedom Restoration Act.

Here's the question presented to the court:

- Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners?

And here's the holding in the case:

- As applied to closely held corporations, the regulations promulgated by the Department of Health and Human Services requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act.

It was a 5-4 decision - meaning there was disagreement over the outcome.

For detail:

- Scotusblog: Burwell v. Hobby Lobby Stores, Inc.
- Click here for the opinion.
- Wikipedia: Burwell v. Hobby Lobby Stores, Inc.
- Wikipedia: Religious Freedom Restoration Act.

Religious Exemptions to Child Neglect

As we look at religious liberty in 2305, we'll struggle with how the courts have dealt with the extent to which a parents religious beliefs can bu used to justify withholding medical care for their children.

Many states - 37 - have passed laws protecting parents from criminal liability for not providing medical assistance for their children, should they be harmed as a result.

The National District Attorney's Association lists these exceptions:

- Click here for the report.

Interestingly enough, Texas is not one of these states.

From Slate: Getting the History Right - Tracking the real history of corporate rights in American constitutional thought.

One of the questions posed in the Hobby Lobby case - and one answered in the affirmative in Citizens United - is whether a corporate entity has constitutional rights like free speech and free exercise of religion.

Two history professors point out that this is a recent opinion. The idea that corporations - as distinct entities - have rights is a recent invention.

- Click here for the article.

Until the mid-20th century, the corporation was seen as a special and artificial creature of the government. It has never been seen as entitled to the same array of rights guaranteed to citizens.

This view was held not only by lay people and legislators but by the justices of the court itself. Chief Justice John Marshall did not equivocate in Dartmouth College v. Woodward in 1819: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.” In 1839, Chief Justice Roger Taney agreed wholeheartedly in Bank of Augusta v. Earle: “A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law. ... It is indeed a mere artificial being.”

These two powerful architects of original Supreme Court authority insisted upon this artificial status in order to hold early American corporations particularly accountable to the state and to the public at large. Most of America’s first corporations—bridge companies, water companies, transportation companies, banks, and insurance companies—were viewed as essentially public service corporations or public franchises. In addition to grants of property and public financing, the state usually accorded such entities special privileges like monopoly power, the power of eminent domain, or toll-taking authority. In return for those benefits, the government insisted on the special public obligations of corporations. Not only were corporations notexempted in any way from generally applicable regulatory laws, but they were routinely held to higher standards of public service, public accountability, social responsibility, and public trust.

Testing the limits of free exercise: snake handling

This ties into recent 2305 material on religious liberty. I stumbled on the story while reading about the recent death of a snake handling preacher - from a snake bite.

From the Huffington Post:

An East Tennessee serpent-handling pastor’s legal woes are over for now.

After a hearing on Wednesday (Jan. 8), a grand jury decided not to indict the Rev. Andrew Hamblin on charges of violating a state ban on possessing venomous snakes.

In November, state officials seized 53 serpents — including rattlesnakes, copperheads and exotic breeds — from the Tabernacle Church of God in LaFollette, Tenn., where Hamblin is pastor.

Hamblin and his church say the Bible commands them to handle the snakes in worship. They’ve been featured in a National Geographic television series, “Snake Salvation.”

But state law bans the possession of venomous snakes.

Officials from the Tennessee Wildlife Resources Agency cited Hamblin with 53 counts of violating the ban. Each count carried a maximum sentence of almost a year in jail.

Hamblin argued that the ban violates congregations’ religious liberty.

He was thrilled by the grand jury’s decision.

“I’m ecstatic,” he said in a phone interview Wednesday. “All the headlines should read ‘Snake handlers have religious rights in Tennessee.’”

Hambin said he was allowed to address the grand jury for half an hour at the hearing. His defense was simple. The snakes weren’t his, he said. They belonged to the church, and Hamblin said the wildlife officials had no business raiding a church.

. . . Since 1947, Tennessee law has banned venomous snakes during church services or public settings. The state Supreme Court upheld that ban in the 1970s.

Matt Cameron, a spokesman for the Tennessee Wildlife Resources Agency, said its officers acted correctly in raiding Hamblin’s church.

Most of the snakes were in ill health when they were seized, said Cameron. More than half died since the raid, and the rest are being cared for at a Knoxville zoo.

That’s where they will remain, said Cameron.

“As far as returning the snakes — that is not an option,” he said.

State officials don’t plan to take any other action toward the church or Hamblin, said Cameron.

This falls short of establishing a free exercise right to handle snakes from what I can see. He doesn't get his snakes back. He's just not being charged with violating the law. No word on whether he can acquire venomous snakes for religious exercise, or whether the state can confiscate those snakes if he has them.

Here's more on the religious liberty issues raised by snake handing.

- Snake Handling and the Law.
- Tennessee: Where 'Religious Freedom' Frees Snake Handlers to Abuse Animals.
- SACRAMENTAL PRACTICES AND PROVISIONS.

Here's a you tube of Andrew Hamblin speaking after he was no billed.

Freedom of religion or tyranny of the majority?

Democracy ain't easy. The right of the majority to establish the policies it seems best can limit the rights of the minority. This is a major theme of Federalist 10, as well as the Bill of Rights.

This Atlantic article on the promotion of Christianity in Louisiana public schools is just one example - a topical one at that since we revisit these issues continually in Texas as well. Here's the heart of the dispute:

A federal lawsuit filed last week in Louisiana contains some of the most startling allegations you will ever see against public school officials accused of unlawfully turning their school into a bastion of Christian belief. In western Louisiana's Sabine Parish, one family alleges, teachers preach Creationism and mock the theory of evolution, routinely lead their students in Christian prayer, give extra credit for Christian responses to assignments, and actively question or deride the religious beliefs of non-Christian students and parents.

Presumably all this is done with the consent of the majority, but over the wishes of the minority - which of course has little influence in a majoritarian democracy. A public school is a governing institution and even though these operate on the local level, the 14th Amendment makes First Amendment restrictions created to limit the national governmental power applicable to them as well. This is meant to limit what majorioties can impose upon minorities, but it butts up against a tension that exists in the opening clause of the First Amendment.

While a government cannot establish an official church, neither can it restrict free exercise of religion. The line between the two can get muddled though - and this is where problems start. What's happening in the Louisiana schools is an expression of religious belief, but the fact that it is done in a governing institution - a single purpose government - with the authority of the board and administration makes it seem like the religious expression becomes the official "established" one in the institution.

Those who do not adhere to it are seemingly treated in a secondary manner. Which leads to the constitutional conflict.

Two presidential takes on Thanksgving

The Volokh Conspiracy highlights the different approaches Washington and Jefferson took to Thanksgiving.

Washington had little problem using his authority to set aside a day of thanksgiving with explicit religious content, but Jefferson saw it as beyond his authority as president to do so.

Merry Christmas Bill

Governor Perry signed HB 308, which intends to protect school districts from lawsuits related to religious expression:

Under the new law, as long as displays include more than one religious symbol — or at least one secular symbol — and don't encourage adherence to a particular religious belief, districts can put up decorations like nativity scenes, Christmas trees and menorahs on school property. Public school staff and students can also offer each other seasonal greetings like Merry Christmas and Happy Hannukah.

House Bill 308 was intended to help protect school districts from lawsuits, said state Rep. Dwayne Bohac, the Spring Branch Republican who carried the legislation, adding that it would "restore some sanity" to "political correctness run amuck." He said he hoped the bill, which passed overwhelmingly in both the House and Senate, would become a model for other states.

Texas public schools have seen several high-profile lawsuits attempting to define students' rights to religious expression, including the landmark 2000 U.S. Supreme Court decision Santa Fe ISD v. Doe. In that case, the court outlawed student-led prayer over the loudspeakers at football games, saying it amounted to government endorsement of religion, a violation of the First Amendment’s establishment clause. More recently, a state district court judge ruled in favor of cheerleaders who sued their East Texas high school after they were told to stop displaying Bible verses at school events. The school district is appealing the ruling. 

Though the cheerleaders' situation remained an example of the oppression facing those who want to express their faith publicly, Perry said, the new law would not directly apply to their case.

"It's a shame that a bill like this one I'm signing today is even required. But I'm proud that we are standing up for religious freedom in the state," he said. "Religious freedom does not mean freedom from religion.

ion." 

Testing the limits of ther free exercise of religion

It does protect a couple that denies medical treatment for a child in favor of prayer if the child dies as a result. We discussed similar cases earlier in 2305 when we covered the religious freedoms established in the Bill of Rights. Here's an example:

A couple serving probation for the 2009 death of their toddler after they turned to prayer instead of a doctor could face new charges now that another son has died.

Herbert and Catherine Schaible belong to a fundamentalist Christian church that believes in faith healing. They lost their 8-month-old son, Brandon, last week after he suffered from diarrhea and breathing problems for at least a week, and stopped eating. Four years ago, another son died from bacterial pneumonia

. . . A jury convicted the Schaibles of involuntary manslaughter in the January 2009 death of their 2-year-old son, Kent. The boy's symptoms had included coughing, congestion, crankiness and a loss of appetite. His parents said he was eating and drinking until the last day, and they had thought he was getting better.

The Schaibles were sentenced to 10 years' probation.

At a hearing Monday, a judge told the couple they had violated the terms of their probation, noting the Schaibles had told investigators that they prayed to God to make Brandon well instead of seeking medical attention.

"You did that once, and the consequences were tragic," Philadelphia Common Pleas Judge Benjamin Lerner said, according to the Philadelphia Daily News.

Contraception coverage requirement winds up through the court

This may well end up on the Supreme Court docket before the year is out. Does the contraceptive coverage requirement in the Affordable Care Act violate religious freedoms - specifically the free exercise clause - if the employer has a religious opposition to it? More interestingly, what if it is a publicly traded corporation that issue? Does the corporation have religious freedom? Its not a person afterall, but they were granted free speech rights in the Citizens United decision.

ScotusBlog is tracking the many cases winding their way up different federal avenuesend up on the SC docket by the end of the year - but if not, next year for certain.

Here's text from ScotusBlog's story about the Sevent Circuit Court's 2-1 decision to temporarily block the federal government from enforcing the contraception requirement:

Under the new health care law, employers who do not qualify for exemptions must provide their women workers of child-bearing age — without cost — with insurance coverage for the full range of contraceptive drugs and other birth control and pregnancy prevention measures. For non-exempt employers, the mandate is to become effect next Tuesday, January 1. Religious institutions, such as churches, are exempt from it, while other religious-affiliated entities — such as schools, colleges and hospitals — are temporarily exempted from it until the federal government writes a new final rule on implementation of the mandate. What will be in the final rule is expected to be known between now and the end of March.

The majority of the lawsuits challenging the mandate around the country have been filed by religious institutions, but a significant number have been filed by profit-making companies run by people who have religious objections to birth control drugs and devices that they believe will lead to abortion, which they oppose as a matter of their faith.

The majority of the lawsuits challenging the mandate around the country have been filed by religious institutions, but a significant number have been filed by profit-making companies run by people who have religious objections to birth control drugs and devices that they believe will lead to abortion, which they oppose as a matter of their faith.

The Illinois case involves a construction company, Korte & Luitjohan Contractors, Inc., of Highland, Illinois. A Roman Catholic couple, Cyril and Jane Korte, own about eighty-eight percent of the company, which employs ninety full-time workers. About seventy of those are members of a labor union, which provides them with health insurance. The Kortes provide health insurance for the other twenty employees. The Kortes have told the courts that they did not realize until recently that their health plan for those twenty workers did provide for coverage of contraceptives. They want to drop that plan as of January 1, and set up a new one without that coverage, and they sued to get the right to do so free of the new law’s mandate.

The Kortes’ main challenge is under the Religious Freedom Restoration Act, and it was that challenge that the Seventh Circuit majority concluded is likely to succeed when their appeal is decided. The new mandate, it concluded, probably will be shown to impose a “substantial burden” on the couple’s religious faith and on the religious principles on which they run their company. The panel majority also concluded that the federal government has not yet shown a compelling interest, in assuring contraceptive coverage, that was significant enough to justify the burden on the family’s faith.

The Supreme Being Clause

Something to consider as we begin looking at the Texas Bill of Rights. Within the 4 sections regarding religious freedom is the Supreme Being Clause:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Despite not being enforced, it is still on the books and is potentially enforceable.

The Texas Tribune reports on a group that wants to change that arguing that interferes with the right of atheists to run for public office in the state:

There are different opinions about how much the clause affects candidates’ applications for state office. Mattox agreed on behalf of the state not to enforce it, but it has never been removed from the Texas Constitution.

Forms filed by candidates seeking election do not require them to confirm a belief in a higher power, nor does the Texas Election Code, said Republican Party of Texas spokesman Christopher Elam. Some party officials have never even encountered it before. “This is the first time I’ve heard of it,” said Rebecca Acuña, a spokeswoman for the Texas Democratic Party.

Randall “Buck” Wood, an Austin elections attorney, insists that such a law could never be enforced. “If it were, it would be declared unconstitutional. We’ve had so many statutes in the Texas Constitution declared unconstitutional, but they’re still there. As long as nobody’s being injured by these, nobody brings a lawsuit, and they just sit there.”

Greg Abbott intervenes in Kountze cheerleader case

We discussed this case in class so we saw it coming. From the Texas Tribune:

The state of Texas, known for its frequent legal scuffles with the federal government, has picked yet another high-profile courtroom fight.

This time, though, the case centers on one of the state's own school districts, Kountze ISD, which last month ordered high school cheerleaders to stop holding banners bearing Bible verses during football games.

Attorney General Greg Abbott announced Wednesday at a press conference with Gov. Rick Perry that the state had filed a motion to intervene in a suit challenging the order, which the district imposed after it received a letter from the Wisconsin-based Freedom From Religion Foundation calling the display of the verses unconstitutional.

From Wonkblog: Missouri court: Yes, the feds can mandate contraceptive coverage

This dispute will very likely wind up in the Supreme Court:

A number of lawsuits, challenging the health law’s required coverage of contraceptives, are winding their way up through the federal court system. A few have seen preliminary rulings on ripeness (whether the case can even be brought yet) and standing (whether the people bringing the suit have actually suffered damage).
A court in Missouri today became the first to rule on a lawsuit’s merits: Whether, as the case argues, the contraceptives mandate is a violation of the First Amendment freedom to practice religion. In a ruling written by George Bush-appointee Carol Jackson, the Eastern District of Missouri court found the health law provision to be constitutional.

You can read the full 29-page opinion here. The main thrust of the opinion though, is this: The requirement that employers cover contraceptives does not represent a substantial burden on employers’ ability to practice religion.

Looks like we will have opportunities to dig into the meaning and extent of religious freedom.

Thirteen Religious Societies

Here's a reminder that the American colonies - and the early states - were each oriented around their own unique religious identity. One that did not necessarily fit the identities of other states. The federal government prohibited religious tests, established churches and limits on free exercise - as well as not requireing religious oaths to hold office - as a way to be neutral towards religion. To not pick sides between the different denominations in the states.

The author brings this up to draw parallels between the religious parties in the Middle East, and what the US went through two centuries ago:

We should remember that the Thirteen Colonies that made the revolution starting in 1776 were religious societies. They had undergone the Evangelical Great Awakening, and millenarian and anti-papal movements were rife. Religious Americans fought the British for religious as well as material reasons. While the framers of much Federal law and of the Constitution were most often Enlightenment Deists and relatively secular in outlook, the mass of Americans were otherwise. Even the First Amendment to the Constitution, which forbade Congress to designate an official American religion, was considered solely a Federal initiative, and states often had Established religions. Massachusetts had an established church until 1833, and its constitution still mentions requiring state and local institutions to raise money for and support the Protestant church.

The Founding Fathers mostly wanted a separation of religion and state (Thomas Jefferson certainly did), and this aspiration won out in American law and practice over time. The people who deny this separation are being silly. I’m making a different point, that Federal constitutional law covered a relatively small part of society.

So, religious Americans fought for the Revolution, and the post-revolutionary states often used state resources to support Protestantism. Anti-Catholicism was an unfortunate enthusiasm of many of the revolutionaries, and King George III was often seen as having Catholic tendencies, because of the offer of religious freedom to Catholics in Quebec once it was added to Canada, and because high church Anglicanism was hated by American dissidents.
Here are other resources regarding religion in colonial America:

- LOC: Religion and the Founding of the American Republic.
- Religion in Colonial America.
- Religion in Colonial America: Trends, Regulations and Beliefs.
- Religion in the Original 13 Colonies.

Two more cases regarding religious freedom and whether it ought to be balanced against compelling societal interests

1 - This is in Canada so maybe it doesn't count, but regardless - A high school principal allowed Muslim students to pray in the lunch room before he realized that the students would apply rules mandating that the girls sit behind the boys, among other things. Should the freedom to worship according to the dictates of conscience take a back seat to a demand that we not allow discrimination according to gender?

2 - An orthodox rabbi has been jailed for refusing to testify before a federal grand jury against a fellow Jew. He says that his religious beliefs include (mesira) not informing on members of his own faith. Eugene Volock comments on the claim.

From the National Journal: Seven States Sue Over Contraception Law

The conflict will likely come down to how the Religious Freedom Restoration Act is interpreted.

Attorneys generals from Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, and Texas filed the suit, arguing that the rule violates First Amendment freedom of religion rights and the 1993 Religious Freedom Restoration act. That law, passed overwhelmingly by Congress during the Clinton administration, requires the federal government to justify any burdens it places on the exercise of religion.

. . . in a response last week to a separate lawsuit from Belmont Abbey College, a Catholic college in North Carolina, the Obama administration argued that the suit should be thrown out because the contraception rule is not final.

“The forthcoming modifications, among other things, will require health insurance issuers to … offer contraceptive coverage directly to such organization’s plan participants who desire it, at no charge,” said the Justice Department. “At the outset, plaintiff’s suit must be dismissed for lack of jurisdiction because plaintiff has not alleged any imminent injury from the operation of the regulations.”

Since the rule has not been passed, there is nothing to file suit against no way to know if it is in fact unconstitutional. There is as of yet no standing, on anyone's part, to sue.

In response to the Attorney's General, here's an argument that the new rule fits under existing legal precedence, at least as articulated in Employment Division v Smith back in 1990:

The justices said the First Amendment’s protections do not mean individuals are free to violate valid laws simply by claiming a sincere religious objection. To “make the professed doctrines of religious belief superior to the law of the land” would have the anarchic effect of permitting “every citizen to become a law unto himself,” Justice Scalia wrote. The court said the state could exempt religious peyote use from drug laws, but was not constitutionally required to do so. Under the Smith case, the administration policy on contraceptive coverage is clearly constitutional: it is a neutral regulation enacted with no motive to discriminate against religious interests.

The R.F.R.A. statute, however, uses a far stricter standard. Any federal government actions that “substantially burden a person’s exercise of religion,” it says, must advance a compelling interest and be the least restrictive means of doing so. Even under that test, the new contraceptives policy should survive legal challenge. It clearly advances the government’s compelling interest in promoting women’s health and autonomy, and broad participation is the least restrictive way to carry out a complicated national health reform.

But courts should not even reach that question since the provision of preventive services without a co-pay does not interfere with a religious practice or ceremony. There is no impediment to the exercise of religion, especially since the administration has revised its original rule, which exempted churches, mosques and other houses of worship — and now also relieves colleges, hospitals, charities and other religiously affiliated groups from having to provide contraceptive coverage directly. The rule does not interfere with church governance, prevent anyone from voicing opposition, or force anyone to use contraceptives in violation of religious beliefs.

Providing contraception does not interfere with an actual religious practice, the author contends, so the religious freedom argument doe not apply.

A federal district court states that pharmacists with religious objections are exempt from dispensing emergency contraceptives

This might give an indication about how the courts would settle any cases arising from the Obama Administration's recent decision on contraception coverage.

Eugene Volokh highlights critical parts of the judge's decision, and USA Today has an item on it as well.

From the NYT: Religious Groups Given ‘Exception’ to Work Bias Law

We covered this case last semester:

In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

The decision was unanimous. This means that a church can discriminate against its employees, as long as the employee can be claimed to be a minister.

- The full story from ScotusBlog.

Religious Liberty v. Civil Rights

From the National Law Journal, another looming Supreme Court case, and a great illustration of the conflict between civil liberties and civil rights:

On Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA). The high profile of this suit, Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC, is reflected in interest by third parties — 31 amicus briefs have been filed — and by the church's retention of Professor Douglas Laycock of the University of Virginia School of Law, a leading authority on religious liberty, to represent it. . . .

- From Scotus Blog: Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC.