Why the First Amendment No Longer Protects Religious Conscience Rights
Aaron Miller's excellent post about the law's creeping attack on the conscience rights of Catholics raises the question: Doesn't the First Amendment prohibit laws that interfere with right of conscience?
Answer: It should, but it doesn't any more. From 1963 to 1990, the Supreme Court required the government to show a "compelling interest" to justify a law that interferes with sincere religious beliefs. That changed when the Supreme Court decided that a "neutral law of general application" will be upheld -- even if it interferes with religious practice. In that case (Employment Division v. Smith), the Court upheld an Oregon drug law against a challenge by Native Americans who sought an exception for the use of peyote. The majority opinion -- written by Scalia, no less -- argues that the First Amendment cannot require greater deference to religion, lest every man become a "law unto himself."
I suspect Scalia was reacting to the growth of "religions" that appear designed to flout some law. There have, for example, been numerous attempts to get judicial recognition for the "Church of Marijuana." But I think that Scalia and the majority went too far. As a matter of original intent, the Court could have legitimately narrowed the definition of "religion" to monotheistic faiths; but that would have been politically untenable, so instead they narrowed the protection of "free exercise."
The legacy of Smith is exactly what Aaron was describing: e.g., all health plans must subsidize contraception. And in Massachusetts, all adoption agencies must agree to place children with same-sex couples. States have started to use their licensing powers to force pharmacies to distribute "morning after" pills. Free exercise challenges to laws like this are doomed because they are "neutral laws of general applicability."
As much as I respect Justice Scalia, I would vote to overrule Smith and require the State to show a "compelling interest" before it interferes with religious practice. What do you say?
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Comments :
Jul '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
I'm with you on this, Adam. It's a fine line to walk, though. Clearly, allowing people to create a new "religion" for the sole purpose of circumventing a law they don't like creates an exemption from any law. This is untenable for a society based on the rule of law. How else does the government address this, though? If they try to define what is or is not a religion, that would appear to be a gross violation of the free exercise guaranteed in the 1st Amendment.
Dec '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
No matter how you sugar coat it, government compulsion is always a "satan sandwich."
Dec '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
It seems to me that the situations -- peyote/marijuana vs. health care mandates -- are fundamentally different in another way. In the former, a specific, narrow activity is forbidden or restricted based on a neutral law of general application.
In the latter, a specific, narrow activity is required to be performed or funded. For this, carving out an exemption is easy in many cases. In the case of pharmacists and contraception, for instance, one could easily allow exceptions without any undue burdens.
There's a reductio ad absurdum going on here. Religious practice could advocate murder, rape or (more realistically) statutory rape but we don't carve out religious exemptions, in small part, because that would make enforcement impossible. I, for one, belong to the church of Not Paying Taxes.
Jun '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Since the Law puts most all religions on an equal footing, I don't see how you get away from the Smith decision. It means, you might pay a high price for faithfully following one specific doctrine of a faith, but you're not exactly punished for being of a certain faith. I guess the cure would be to convert a majority of voters to the opinion of your faith, if not converting them completely to your faith. It means some faithful Catholics will suffer, and some polygamous Mormon-offshoot sects in Idaho will suffer. Has to be, if you're going to treat all religions equally.
Jul '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Scalia was wrong. Peyote in the context of native American tradition is the farthest thing possible from an invention to flout the law. Scalia has obviously never visited the spirit plane with a tribal council.
When the state outlaws conscience, men of conscience will be outlaws.
Edited on Aug 7, 2011 at 3:29pmAug '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
I don't think there's any workable "culture-neutral" interpretation of the First Amendment, or indeed most of our Constitutional rights. There's a fundamental difference between a law intended to protect the culture against assault, and a law intended to assault the culture.
For instance, there is a difference between a religion that is historically embedded in the culture, and a religion that attempts to overthrow some aspect of it. The former could include both Christianity and Confucianism, given the large numbers of Chinese immigrants since the Civil War. The latter could include the Church of Marijuana, or radical Islam. I'm not sure how to formulate it in Constitutional terms, but it seems that this difference must somehow be recognized.
There was a time when our law seemed broadly to reflect and represent the dominant culture of the country. For several decades, though, it's taken on the more pernicious role of trying to impose an alternative culture. I don't see a way of defining the proper role of the law without making this distinction.
Aug '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
In my humble, non-expert opinion, Smith should have no effect on one's right to cite religion as justification for refraining from a particular action.
The native Americans in Smith were trying to cite religion as justification for committing an illegal action, the possession and use of an illegal substance.
The First Amendment protects one's right to speak, and to publish. It does not give one the right to commit religious acts which cause harm, as confirmed by Reynolds vs. United States (1878) which Smith, IMHO, simply attempts to reconfirm.
Therefore, one has the right to speak/publish/preach about the benefits of an illegal act, but the state still has the right to prohibit the commitment of that act.
By extension, while one has the right to speak/publish/preach about the goodness or badness of abortion, euthanasia, etc., the state has the right to prohibit harmful acts.
Furthermore, it can be argued that forcing an individual to commit an act that violates their conscience is a violation of the Eighth Amendment (cruel AND unusual punishment, for a thought-crime no less). Therefore, I believe that the Eighth Amendment limits the state's ability to punish inaction.
Edited on Aug 7, 2011 at 3:54pmJul '11
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
I'm not sure such limits exist in practice. I've been following this conversation with interest as I was raised a Christian Scientist. Followers of that faith are routinely coerced into acts that violate their core beliefs. Courts have been increasingly aggressive in pursuing parents who refuse medical attention for their children and virtually all children of Christian Scientists find themselves subject to state-sanctioned "health" classes that go against virtually every aspect of what they believe.
I'm afraid the power and reach of government has followed the trajectory that has been clear for decades: not content with imposing its "wisdom" on religious minorities (it really is for their own good, you know), it now feels entirely justified in forcing the some of the largest religious organizations in the country to conform with its worldview.
This isn't a surprise for people who have been watching.
Dec '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Isn't it interesting to watch as, "Congress shall make no law" becomes Congress mandates? I get that some providers are allowed to opt out, but taxpayers are not and this is a threshold.
Dec '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Government is all about "prohibiting the free exercise thereof" in Houston.
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Misthiocracy raises interesting points, but the 8th amendment generally doesn't come into play because it usually isn't a question of criminal penalty. More often the state is using civil law powers to coerce. In Smith, the Native Americans weren't busted for peyote use, but they were fired from their jobs and the state refused them unemployment benefits. Not a criminal punishment within the 8th amendment, but coercion nonetheless. Same with the state's growing tendency to force health care professionals to support abortion and contraception. And of course public schools are full of anti-religious themes nowadays. The response to free-exercise claims is that parents are free to shell out and send their kids to religious schools -- which doesn't strike me as adequate.
Apr '11
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
Exactly. The problem is that Congress is telling pharmacists what to sell and hospitals what services to provide. That is where the collision with individual freedom happens.
I would point out that the peyote case involved a state law and, pre-Incorporation Doctrine, would by rights never have come before a Federal court. Unfortunately, the "conservative justices" on the SCotUS (with the possible exception of Thomas) seem more interested in upholding the continuity of the Court's wrong decisions than in maintaining continuity with the Constitution.
In this regard, the Catholic Church has shown itself more capable than the Court of returning to "original intent", after 40 years of New Age liturgical ugliness. To those of us who lived through the post-Vatican Council II liturgical deforms, the cries and whines and protests that the upcoming revisions--Gregorian chant!--are dislocating novelty are sweet music to our ears. Those unfamiliar with recent Church history will be amused by the fact that the changes of the 1970s were utterly unfounded in any mandate from the Council: the liberals used their usual tactic of simply making up stuff and claiming the Council required it.
Edited on Aug 7, 2011 at 7:23pmMay '10
Re: Why the First Amendment No Longer Protects Religious Conscience Rights
I agree with Paul. This situation arises from cultural drift, and is only indirectly related to religion.
A conscience clause should not be dependent upon the specific creeds of any religion. What matters is not whether or not a particular action is relevant to any true religion (explicit worldview and code of behavior), but whether or not that action conforms to the most basic standards of behavior necessary to the American character.
American culture was never coterminous with Christianity, but it was founded on Christian traditions. So it is to be expected that American values (which our laws represent) more often coincide with Christian values than with Hindu, Confucian or Apache values.
Such conflicts would be rare, I expect, if not for our government's unjust expansion and centralization.
The words of a British general in India, Sir Charles Napier, say it all.