Re: 2012 U.S. Presidential Election
So yeah, as I posted above (but I guess it was ignored), the first amendment is a lot more complicated than just "separation of church and state".
''The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.'' It bars ''governmental regulation of religious beliefs as such,'' prohibiting misuse of secular governmental programs ''to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.'' Freedom of conscience is the basis of the free exercise clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs. Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute ''conduct'' rather than pure ''belief.'' When it comes to protecting conduct as free exercise, the Court has been inconsistent. It has long been held that the Free Exercise Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question. What has changed over the years is the Court's willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.
The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices. So far, the Court has harmonized interpretation by denying that free- exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. ''This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.'' In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was ''fostering an 'establishment' of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.'' Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has also been upheld against Establishment Clause challenge, although it is also possible for legislation to go too far in promoting free exercise.
The Belief-Conduct Distinction .--While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause ''embraces two concepts-- freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.'' In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws ''cannot interfere with mere religious beliefs and opinions, they may with practices.'' The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases, but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause. Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was ''compelling'' and if no alternative forms of regulation would serve that interest was the claimant required to yield. Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection.
Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow. Next the Court held that the test is inappropriate in the contexts of military and prison discipline. Then, more importantly, the Court ruled in Employment Division v. Smith that ''if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.'' Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. Accommodation of such religious practices must be found in ''the political process,'' the Court noted; statutory religious-practice exceptions are permissible, but not ''constitutionally required.'' The result is tantamount to a return to the Reynolds belief-conduct distinction.Within two years the Court in Sherbert v. Verner extended the line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. This denial of benefits could be upheld, the Court said, only if ''her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden on the free exercise of appellant's religions may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . .''' First, the disqualification was held to impose a burden on the free exercise of Sherbert's religion; it was an indirect burden and it did not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice. Second, there was no compelling interest demonstrated by the State. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, ''it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.''''A compelling governmental interest'' was also found to outweigh free exercise interests in Bob Jones University v. United States, in which the Court upheld the I.R.S.'s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government's ''fundamental, overriding interest in eradicating racial discrimination in education''--found to be encompassed in common law standards of ''charity'' underlying conferral of the tax exemption on ''charitable'' institutions--''substantially outweighs'' the burden on free exercise. Nor could the schools' free exercise interests be accommodated by less restrictive means.The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals' religious beliefs, on the other. Sherbert's compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass'n held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: '''the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.''' Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping. It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government's recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections.Finally, in Employment Division v. Smith the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are ''generally applicable'' when they apply across the board regardless of the religious motivation of the prohibited conduct, and are ''not specifically directed at . . . religious practices.'' The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work ''without good cause.'' Sherbert and other unemployment compensation cases thus ''stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason.'' Wisconsin v. Yoder and other decisions holding ''that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action'' were distinguished as involving ''not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections'' such as free speech or ''parental rights.'' Except in the relatively uncommon circumstance when a statute calls for individualized consideration, then, the Free Exercise Clause affords no basis for exemption from a ''neutral, generally applicable law.'' As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in ''the political process.''
The political processes were soon utilized in anattempt to provide additional protection for religious exercise. In the Religious Freedom Restoration Act of 1993, Congress sought to supersede Smith and substitute a statutory rule of decision. The Act provides that laws of general applicability--federal, state, and local--may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was ''to restore the compelling interest test as set forth in Sherbert v. Vernerand Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.' Enactment of the Religious Freedom Restoration Act does not, however, close the book on Smith. Issues concerning the RFRA's constitutionality ensure continuing litigation over the appropriate constitutional test.Yes, the mandate might be valid, as it contains political exemptions as it is - but not so much as to preclude the general applicability of the policies. Because the whole thing is an employer mandate rather than a public program, it is still an interesting question for the judiciary, but it isn't a cut-and-dry apocalyptic destruction of the freedom of religion.The ramifications of Smith are potentially widespread. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment, but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of the Lukumi Babalu Aye v. City of Hialeah: ''our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.'' Similar rules govern taxation. Under the Court's rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression. The result is equal protection, but not substantive protection, for religious exercise. The Court's approach also accords less protection to religiously-based conduct than is accorded expressive conduct that implicates speech but not religious values. On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O'Connor warned, result in less protection for small, unpopular religious sects.
Originally Posted by kurai
