Framing the First Amendment

Framing the First Amendment, with particular emphasis on the Establishment Clause. There are two themes underlying the Establishment Clause. One is a theme of federalism. On this view, the authors of the clause sought to prevent the federal government from interfering with decisions by the states either to establish or not to establish a religion. Their fear was that Congress would establish a national religion, thereby pre-empting local establishments or imposing an establishment upon a state that did not want one.

Perhaps too they were afraid that Congress would disestablish religion on a nationwide basis, thus pre-empting religious establishments in every state. The other theme behind the Establishment Clause was a theme of substantive dis-establishment, that is, a goal of preventing an establishment of religion (at least with respect to the federal government) because of a substantive dislike of such practices. There is some evidence in the record to support this view.

In any case, much more can be gleaned from the legislative record of what the House was thinking than what the Senate was thinking, because records were kept of debates in the former chamber. The debate on what became the Free Exercise Clause was considerably thinner. In hindsight, we can see now that the issue we wish they resolved circa 1789 was whether the Free Exercise Clause merely permits the legislature to accommodate distinct religious needs, or requires the legislature to do so. At some point in the course we read excerpts from articles by Michael McConnell and Philip Hamburger on this question.

One might characterize the contest between these two noted scholars as a draw, because there is substantial evidence for both sides. In any case, most, if not all, of the evidence they amass in support of their positions comes from practices and policies of the states in the late eighteenth century, and not from anything said in Congress when the Free Exercise Clause was proposed. Incorporation into the Fourteenth Amendment.

The Religion Clauses of the First Amendment do not by their own terms apply to the states. See Permoli v.New Orleans (1845). It is even unclear, as a matter of pure history, whether the Congress that proposed the Fourteenth Amendment intended to make the Religion Clauses applicable to the states by virtue of that addition to the Constitution. There are some grounds to find such intent, but there are also some grounds to find it lacking. For example, how could a provision of the Constitution that arguably preserved states' autonomy -- the Establishment Clause -- suddenly become susceptible of limiting exactly that autonomy?

In addition, why did Congress in 1875 closely consider the Blaine Amendment, if the Establishment Clause already applied to the states? This amendment would have begun as follows: No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof . . . . By now, of course, the issue is somewhat resolved, in that the Supreme Court has applied the Religion Clauses to the states, and is unlikely to reverse course on that score. But the question of originalism remains, at least as a theoretical matter, with respect to the Establishment Clause.

Perhaps one can accept Kurt Lash's argument that the Establishment Clause acquired a new, non-federalist original meaning when the Supreme Court applied it to the states in Everson v. Board of Education of Ewing (1947). Judicially imposed exemptions from generally applicable laws. Some of the first cases that explored this issue involved the Mormon practice of polygamy. As we saw in such cases as Reynolds v. United States (1878), the Supreme Court early on took the position that the Free Exercise Clause protected only belief, not conduct. Much later, however, the Court took an approach decidedly more favorable to religious claimants.

In Sherbert v. Verner (1963), for example, the Court took the position that a generally applicable law could impose an incidental burden on the free exercise of religion only if the government had a compelling reason to impose that burden, as well as no less restrictive way to achieve its objective short of imposing that burden. Needless to say, this was (or is) a difficult burden for any government to meet. In that case, a Seventh-Day Adventist who lost her job because she refused to work on Saturday, her chosen Sabbath, was denied unemployment benefits by the State of South Carolina because she refused "suitable work when offered.

" The Sherbert Court went through several steps of analysis. First, it asked whether South Carolina's refusal to extend benefits to Sherbert imposed a burden on Sherbert's free exercise of religion. Arguably it did not, because no one was forcing Sherbert to work on Saturday; the state was simply refusing to pay benefits to her because of her choice to abstain from work on her chosen Sabbath. The Court was not persuaded by this argument, however, noting that South Carolina's refusal had the practical effect of requiring Sherbert to choose between her religious scruples and benefits.

Next, the Court asked whether South Carolina had a compelling reason to deny benefits to people who claim an inability to accept employment because of religious scruples. The Court rejected South Carolina's argument that people could assert fraudulent religious reasons for rejecting otherwise suitable employment on a number of grounds, one of which was that South Carolina had not demonstrated that it lacked a less restrictive means of serving this interest.

Sherbert appeared to provide significant judicial protection to religious free exercise, and Yoder followed in its wake, but religious claimants actually tended not to prevail, even under the regime of these cases. Thus, in several cases the Supreme Court held that the law at issue imposed no burden on free exercise, or that the government had significant leeway to act because of the context of the case.

In Lyng v.Northwest Indian Cemetery Protective Association (1988), for example, the Court held that the government's decision to build a road near land sacred to three tribes of Native Americans imposed no burden on the tribes' religious free exercise, because it involved strictly "internal" governmental policies. The Court suggested that such policies have only a remote impact on religious free exercise, and therefore do not trigger the test of Sherbert. The Court used similar reasoning in Bowen v.

Roy (1986), which involved the constitutionality of a federal requirement that states use Social Security numbers to administer certain welfare programs. The Court used also found an insufficient burden upon free exercise in Braunfeld v. Brown (1961), a case that preceded Sherbert by a couple of years. In this case, the Court upheld a law that imposed a solely economic burden on observant Jews who could not open their store on Saturday for religious reasons, and who could not open their store on Sunday because of their Sunday closing laws. The Court reasoned that:

To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e. , legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. (219) In other cases decided after Sherbert, the Court relied upon context to justify denial of claims for religious accommodations.

In Goldman v. Weinberger (1986), for example, the Court refused to order the Air Force to allow a Jewish dentist to wear a skullcap. Similarly, in O'Lone v.Estate of Shabazz (1987), the Court refused to require the operators of a prison to allow Moslem prisoner's to attend to religious matters on their chosen Sabbath, Friday. Finally, in at least one case, Bob Jones University v. United States (1983), the Court held that the government had met the standard of strict scrutiny, and sustained the removal of Bob Jones' status as a tax-exempt organization because it engaged in racial discrimination. In light of the foregoing, one might say that the Court dropped the other shoe, or "got it over with," in Employment Division v.Smith (1990), a case involving facts somewhat similar to those of Sherbert. In Smith, two individuals were fired from their positions at a drug rehab because they had eaten peyote in conjunction with services of their religion, the Native American Church.

The State of Oregon refused to extend unemployment benefits to them because they had been discharged for "misconduct. " Importantly, ingestion of peyote for any reason was illegal in Oregon. The two individuals challenged the refusal, arguing that they were entitled to the same kind of accommodation as Sherbert.

The Supreme Court disagreed, however, holding that the government has little or no obligation to exempt religiously-based conduct from a neutral law of general applicability. The Court reasoned that a holding in the alternative would have the potential of making every person a "law unto himself," and that such an approach would produce anarchy and chaos in a religiously pluralist society like the United States. Under the rule of Smith, a neutral law of general applicability may impose an incidental burden on religious free exercise so long as it satisfies the basic test of being minimally rational.

Although Smith has been much criticized, it is nevertheless very much with us. There are, however, several situations in which it will not apply. -First, it only applies to laws that are truly neutral and generally applicable. As we saw in Church of Lukumi Babalu Ayi?? v. City of Hialeah, it will not apply to a law that exempts claims based on non-religious considerations, but fails to exempt similarly situated claims based on religious considerations.

(In fact, the evidence in that case indicated that the government was actually discriminating against religion, which would provoke strict scrutiny in any case. ) -Second, the government may not regulate pure belief. -Third, strict scrutiny probably still protects so-called "hybrid rights," that is, claims based upon free exercise in conjunction with freedom of speech, of the press, or of the right to parent. This preserves the constitutionality of such decisions as Cantwell v. Connecticut (1940), Murdock v. Pennsylvania (1943), and Wisconsin v.

Yoder (1970). -Finally, the Smith Court left Sherbert standing, at least in the context of unemployment benefits, and perhaps too in the context of any law that is administered via individualized assessments. Actually, if one thinks the matter through, this last "exception" to Smith is really reminiscent of the first, because any law that involves individualized assessments, permits secular accommodations, but does not permit religious accommodations, arguably is not neutral and generally applicable. On this view, Sherbert is actually consistent with Smith.

In the Religious Freedom Restoration Act of 1993 ("RFRA"), Congress purported to "overrule" Smith and reinstate strict scrutiny as the basic test for the protection of religious free exercise. In City of Boerne v. Flores (1997), however, the Supreme Court struck down RFRA, at least with respect to its application to the states and their subdivisions, on the ground that Congress, in enacting the statute, had exceeded its power under 5 of the Fourteenth Amendment.

The Court reasoned that there must be "proportionality and congruence" between federal legislation enacted under  5 and identified violations of the substantive provisions of Fourteenth Amendment, and that such proportionality and congruence was lacking as a basis for RFRA vis-vis actions of the states. Query whether RFRA is also unconstitutional to the extent it applies to federal legislation. The Supreme Court has not resolved this issue, but at least one lower federal court has upheld RFRA as applied to federal legislation. See In re Young (8th Cir. 1998) (applying RFRA to the federal bankruptcy code).