19 August 2008

The Freedom to Worship and the Courts

Many showdowns over constitutional protections for religion have played out at the U.S. Supreme Court.

By Andrew C. Spiropoulos

“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof….”

When citizens believe that a law violates that principle of the U.S. Constitution, they turn to the courts, constitutionally appointed as the guardians of these principles. Citizens will challenge a law for impermissibly establishing a faith, or for restricting their free exercise of religious practice. The court must decide whether the laws of the day have strayed from that fundamental principle of religious freedom.

EJournal USA  asked Andrew C. Spiropoulos, Professor of Law and Director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University School of Law, to draft a number of hypothetical " free exercise" and “establishment clause” legal cases. For each, Professor Spiropoulos devised fictional places and people. He outlined a set of facts, described the respective legal arguments of the plaintiff and the government, and suggested how a court likely would rule in that particular case. The “rulings”are only interpretations of what a court would say, but they are based on actual court decisions. Read collectively, these scenarios outline the imprecise but real lines between permissible and impermissible government action as it applies to matters of faith.

Scenario 1

FACTS: William Davis practices a Native American religion. One of this faith’s most important sacraments requires the use of a narcotic drug. Possession of this drug is a serious crime under the laws of Davis’s home state of West Mountain. When Davis’s employer discovered that he used the drug as part of his religious worship, Davis was fired from his job. Because Davis was fired for doing something illegal, the state of West Mountain then denied him the usual state benefits for one who loses his job. Davis has sued the state of West Mountain to force it to give him his benefits because he believes that the Constitution of the United States does not allow the state of West Mountain to decide that using this drug for religious worship is illegal.

PLAINTIFF’S ARGUMENT: Davis argues that by withholding his benefits, the state has wrongly limited his right to exercise freely his religion as guaranteed by the First Amendment to the U.S. Constitution. He argues that the law that the state cited to deny unemployment benefits―a statute criminalizing the possession of the narcotic―violates the Constitution because it makes it difficult, if not impossible, for him to practice his religion. The law forces Davis either to violate the rules of his faith or go to jail for violating the drug law. The Constitution, Davis further argues, only permits the state to prevent someone practicing his faith if: (1) the state has a very important reason and (2) the law is the only way for the state to accomplish its goal. Here, Davis argues, the state has no good reason to stop him from using the narcotic in his religious worship. He is causing no harm either to himself or any others; he is not using the drug in the same way as a person who abuses the drug for pleasure; and he does not intend to sell the drug to anyone else. The state, in other words, cannot show how this law makes any sense as applied to Davis. Without a compelling reason for limiting Davis’s freedom of religion, then the Constitution does not allow the state to punish him.

GOVERNMENT’S ARGUMENT: The state argues that it is not taking away the right of Davis to freely exercise his religion. The law forbidding the possession of  the narcotic does not just apply to religious people; it applies to everyone. The state argues that it possesses the Constitutional authority to require Davis to obey this law so long as it requires everyone, both religious and nonreligious, similarly to comply. The state argues that it need not prove that it has a very important reason for the law and that the law is the only way to accomplish that goal. All it has to show is some kind of legitimate reason for the law, and it offers one: that it will be easier for the government to enforce its laws against the illegal use of drugs if it does not have to worry about making exceptions for people like Davis, who believe they have a good reason for violating the law.

LIKELY RULING: In this case, the court likely will rule in favor of the state. The court will likely hold that even if the enforcement of a law makes it difficult ― perhaps almost impossible ― for someone to practice his faith, the Constitution does not give a religious person the right to disobey the law. As the long as the law applies to everyone, religious or nonreligious, and it is enforced fairly against everyone who breaks the law, then the state, as long as it can articulate any kind of sensible reason for the law, can apply the law to the religious person. The state, in other words, does not have to except religious people from the requirements of an impartial law.

Scenario 2

FACTS: The Church of the New Order practices the Utopian faith. Its liturgy encompasses animal sacrifice, including the killing of pigeons, chickens, goats, and sheep. Animal sacrifice is an important part of Utopian services, including sacraments, initiation of new members and priests, prayers for the sick, and an annual celebration. Many residents of the city of Palm Leaf, where the church wishes to locate, are concerned about the church’s practice of animal sacrifice. They find the practice disgusting and disturbing, and believe it could endanger public health. They have asked to city to stop the church from sacrificing animals. The city has passed a law that makes killing an animal illegal, if it is part of a ritual or ceremony and not for use as food or clothing, sport, scientific experiments, or pest control. The church has sued the city in order to prevent interference with its religious services.

This exhibit at a museum in Chicago explains the freedoms of speech, religion, press and assembly.

PLAINTIFF’S ARGUMENT: The church believes that Palm Leaf’s ordinance prohibiting the killing of animals deprives its members of their Constitutionally guaranteed right to freely practice their religion. It argues that the law does not treat religious and nonreligious people equally. While the ordinance, on the surface, looks as if it applies to everyone, a close reading reveals that it really only applies to religious people. Only religious people kill animals as part of a ritual or ceremony, and it is only this killing of animals that is made illegal. Many other kinds of animal slaughter, such as killing for food or hunting for sport, are not prohibited. It is also clear that the city intentionally passed this law to prevent people from practicing the Utopian faith. It only adopted the ordinance in response to the hostile complaints of other city residents. The Constitution, at the very least, requires that government not discriminate between religious and nonreligious citizens or deliberately act with hostility to any one religion. In the Palm Leaf case, one can be charged with a crime for practicing one’s faith while a person who commits the very same act for nonreligious reasons is not so charged. If the government treats religious people differently than the nonreligious, it must have a very important reason for doing so. In this case, there is no real difference between the animal slaughter by the religious and by anyone else.

GOVERNMENT’S ARGUMENT: The city argues that the law is not aimed at religious people and does not treat them unequally. The law applies to everyone, religious or not, who kills animals as a part of a ritual or ceremony, and there are many such ceremonies that are not religious. Hunters who kill for sport or butchers who kill for food, kill animals for a practical purpose, not as part of some ceremony. This differs from ceremonial killing and, therefore, can and should be treated differently by the law. A person is not deprived of his Constitutional right to exercise freely his religion when a law applies equally to everyone, both religious and nonreligious. This is so even though the law makes it difficult to practice one’s faith.

LIKELY RULING: Here, the court will likely rule in favor of the Utopian Church. Even though the ordinance appears to apply to everyone no matter their faith or lack of it, the law clearly does not treat religious and nonreligious people equally. The law was intentionally written to apply to religious people who kill animals as part of their worship services, while exempting everyone who kills animals for other reasons. A person is deprived of his or her right to practice freely their religion when the government treats them differently than the nonreligious, unless the government shows: (1) that there is very important reason for the law and (2) that the law is absolutely necessary to achieve that goal. Here, the reasons to limit or prevent animal slaughter apply equally to religious and nonreligious people. The only sensible explanation for this distinction is government hostility toward the Utopian religion.

Scenario 3

FACTS: Fourteen year old Michelle Rivers recently graduated from a public middle school. The school holds a ceremony to honor the graduating students. These ceremonies are generally very important to the graduating students and their families. The school invited a minister to offer prayers at the beginning and the end of Rivers’ graduation ceremony. The prayers only referred to God generally and did not refer to any particular religion’s beliefs about God. The students were not required to pray or stand during the prayers. The students also were not required to attend the ceremony in order to graduate. Rivers has sued the school because she believes that the Constitution does not allow a public school to sponsor a prayer at a graduation ceremony.

PLAINTIFF’S ARGUMENT: Rivers argues that by sponsoring the prayer, the school (a government institution) violates the First Amendment’s prohibition against establishing a religion. Rivers argues that government does this whenever its actions show that it endorses even a generic religion over nonreligion or when it gives any support to the spread of religion. Here, by offering prayers at the ceremony, the government favors religion and signals willingness to support it. In addition, government is establishing religion by forcing Rivers to pray or, at least, demonstrate respect for beliefs she does not support. Government may not condition her attendance at the ceremony, an important event in her life, upon her demonstration of respect for religion.

GOVERNMENT’S ARGUMENT: The school argues that Rivers is not being forced to demonstrate support or even respect for religion. She is not required to attend the ceremony, and, if she attends, she is not required to pray or even stand while others pray. The school argues that it is not illegally supporting or endorsing religion. It only provides those attending the ceremony the opportunity, if they so wish and so believe, to express their religious belief. Schools and other parts of government have offered these opportunities for prayer since the nation’s beginning, and few would say that these historic practices force people to be religious or provide any tangible support to religion.

LIKELY RULING: In this case, the court likely will rule in favor of Rivers. The government may not force Rivers to choose between attending her graduation ceremony, an important event in her life, and forcing her to express respect for beliefs she does not share. It is unrealistic to expect Rivers, a minor, to face her peers’ disapproval by refusing to stand or stay for the prayers during the ceremony. She therefore will appear to everyone present as if she is praying or at least respects the importance of prayer. The Constitution does not allow the state to force religion upon non-believers. In addition, the government cannot use its power and resources to spread or encourage religious belief. By sponsoring a prayer at a public ceremony, the government tells those in attendance that it believes religion is important and good. When government sends the message that it endorses religious belief, it establishes religion in violation of the Constitution.

Scenario 4

FACTS: The State Capitol building in Metropolis, New Hudson is surrounded by a large state-owned park that contains several monuments. One of the monuments is a two-meter tall stone structure inscribed with the text of the Ten Commandments. The monument is located between the Capitol building, which houses the state legislature, and the building that houses the state Supreme Court. The inscription on the monument says that it was donated to the state by a group of private citizens more than 40 years ago. Henry Mencken, a resident of Metropolis, frequently walks past the monument on his way to work. Mencken does not hold any religious beliefs and is angry that a monument owned and maintained by the state expresses support for particular religious beliefs. He sues to force the state to remove the monument.

PLAINTIFF’S ARGUMENT: Mencken argues that by placing a monument with a religious message on state-owned and -managed property, New Hudson establishes religion in violation of the First Amendment. He argues that any reasonable person who walks through the park—one of the most important public areas in the state—and reads the monument, would conclude that the state of New Hudson supports the religious beliefs articulated in the Ten Commandments. Mencken argues that the Constitution does not permit the government to use its authority and resources to endorse or spread particular religious beliefs. He insists the monument must be removed from public property.

GOVERNMENT’S ARGUMENT: The state argues that nothing about the monument reflects a state effort to establish religion. The monument does not demonstrate that New Hudson is trying to force religion upon its citizens or that it even supports religion. The monument, which is located in a park accommodating more than 30 other monuments, only expresses the historical fact that the beliefs contained in the Ten Commandments were very important to the people who founded the state. Most people who walk through the park and read the monument see it as just one of many monuments recognizing something important in New Hudson history. They do not view the monument as expressing any message about what the state of New Hudson now believes about religion. Nothing about the monument violates the law, the government argues, and it should remain.

LIKELY RULING: In this case, the court will likely rule in favor of the state. The monument expresses neither belief in nor support of religion. Rather, the monument makes a statement about the importance of religious belief in the history of New Hudson. Most people believe the monument expresses a historical, not religious, message, because it is in an area surrounded by other monuments and markers also expressing historical messages. It is also clear that most people who have seen the monument do not believe government is forcing a religious message upon them because the monument has been there for many years without complaint. It is accepted by the people of the state as part of their history, and, therefore, cannot be seen as an attempt by the government to establish religion in violation of the Constitution.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.