Cline on the Constitution, Interfering with Religious Practices
Over a hundred years ago, Justice Louis Brandeis said, “experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Weeks into it now, the lock down of the American Public in the name of a Health Crisis Emergency continues unabated. Each day from every corner of the nation, bubbles up new rules for how we must live our lives. They emerge from every level of government, top to bottom and sideways from sometimes the most obscure bureaucracies. Some rules are understandable as being reasonably related to the goal of the slowing the spread of the Coronavirus. Others are just plain stupid. Forbidding people at the store to buy groceries from wandering over to purchase garden supplies. Threatening them if they drive to their vacation homes. These and many more are of questionable constitutionality even in a state of emergency.
The truth is there is no sure-fire way of stopping the virus completely. Not every person can be protected from infection. Not every innocent life can’t be saved. At some point there has to be a balance between preserving our society and protecting our precious freedoms and striving for the best possible medical outcomes.
It has been my good fortune to have had a decades long career in public office. And during that time, I have dealt with hundreds of local, state and federal officials, including Judges, Congressmen, Senators and countless elected office holders. Most have special talents and are bright and hardworking. But one must never lose sight of the fact that as Justice Brandeis reminded us, they have the same foibles as the general population and in the same proportion. They can be vain, arrogant, power mad, greedy and protective of their prerogatives. And, being human, when they find themselves in possession of too much power, they will abuse that power. That is true of a Governor as well as a City Councilman; it is true of a Sheriff as well as Judge.
The Framers of our Constitution understood this human frailty and built safeguards in the form of Checks and Balances into the structure of our system of Government. They don’t always seem to be working particularly well right now. The leaders of our Justice system, instead of emulating the courage of our Doctors, nurses, and first responders has opted closure and delay and for self-protection. Many seem to be in hiding. Our elected representatives with a few exceptions, are not even giving lip service to the rights and liberties being trampled on.
This “emergency” has now been going on for weeks, and many say it must continue for months. Is Dictatorial rule to remain in place? No hearings, no legislative findings, no voting by the population on the rules being promulgated about how they may conduct themselves.
As we celebrate Easter, of particular concern is the apparent targeting of religious practices. Gatherings for religious observance are completely banned in some places. In others they are severely limited. And there is very little attempt at accommodation by compromising on distancing, face covers etc., that are acceptable for grocery shopping but not, apparently worshiping one’s God.
Instead there are threats of fines and jail for non-compliance with new rules. In Kentucky the governor threatened to have authorities take license plates numbers of attendees at Easter gatherings and to put them under house arrest for 14 days. No due process, no hearing, no trial. Rules criminalizing behavior issued by fiat, without any legislative or judicial action.
On this Easter Sunday, I thought I would review a few Constitutional principles. I will limit the discussion to Freedom of Religion, though similar concerns are present across the whole array of individual freedoms.
The First Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;”
As can be seen, there are two distinct clauses: The Establishment Clause and the Free Exercise Clause.
The First Clause, The Establishment Clause, contains a prohibition against the “establishment” of a State Religion like the Framers had experienced with the Church of England. Gradually, the Supreme Court expanded the definition to include any “excessive entanglement” by the government in religion including endorsing, furthering or supporting religion. Familiar cases involve challenges to prayer in public schools, posting the Ten Commandments in a Courthouse, or having prayers to open governmental meetings like city councils.
The Second Clause prohibits the government from “Interfering” in an individual’s religious practices. For example, the taking of the sacrament is a religious practice. Government rules prohibiting or requiring it would be unconstitutional.
The targeting we are seeing this Sunday involve The Free Exercise Clause and governmental orders restricting religious practices.
The Supreme Court has had a checkered past in interpreting government rules which have the effect of interfering with religious practices. The tenor of the debate can be traced back to Thomas Jefferson who wrote “I believe that religion is a matter which lies solely between man and his God; that the legislative powers of the Government reach actions only and not opinion.”
Despite the literal reading of the amendment the decisions of the Supreme Court would follow Jefferson and distinguish between “thought” which could not be regulated and “action” which could. For example, Reynolds v. U.S. in 1879 which held the Mormon practice of polygamy could be outlawed. It was a religious practice, but under general law the Court ruled it was an act that could be prohibited.
But then in 1940 the Court overturned convictions of Jehovah’s Witnesses for soliciting funds door to door in violation of local ordinances. Of interest is that what the Court found most troubling was the law in question empowered a single administrative official to decide if an exercise was religious. The Court was concerned that about the potential for arbitrary and capricious action by singular officials. Not unlike the current situation.
Eventually the Warren Court fashioned a formula that embraced the Strict Scrutiny test I have alluded to in other posts. While the government may restrict certain religious practices for valid secular reasons, the Government could only do so by employing the least restrictive means available to achieve a valid governmental purpose. Court decisions in the area have sharply split. There have been many 5 to 4 votes, the Justices reflecting a divide in the how the narrowly the Clause should be interpreted.
Nevertheless, for decades the Supreme Court, when judging whether a governmental rule impinged on a religious practice used the Strict Scrutiny test requiring the government to show that it has an overwhelmingly compelling interest in regulating conduct. For example, the Amish were able to successfully argue there was no compelling interest in requiring them to comply with compulsory school attendance laws. Since it interfered with their practice of religion the laws were found to be unconstitutional as applied to them.
In 1990 things changed. In the case of Employment Division vs. Smith, in an opinion penned by Justice Scalia, on a 5-4 vote, the court held the strict scrutiny test no longer applied. The case involved two Native American men who used peyote in a sacramental ritual. They were fired from their jobs for using the illegal substance off duty. They turned right around and applied for unemployment benefits. A state law denied them unemployment benefits because they were fired for violating a criminal law.
The Supreme Court in reviewing the case, departed from the Strict Scrutiny Test and adopted what became known as The Neutrality test. The denial of their claims was upheld. The new test provided that an individual’s religious beliefs do not excuse a person from complying with valid neutral laws which are applied across the board and not specifically directed at religious practices.
Then things got complicated. Congress got involved. A bipartisan coalition with members as diverse as Ted Kennedy and Orin Hatch felt that this new test would allow too many opportunities for punishing citizens who were engaged in Religious exercises. In 1993 the Religious Freedom Restoration Act was passed by Congress which reinstated the strict scrutiny test. However, the Court took offense and ruled that Congress had encroached on their area and violated the Separation of Powers. Their ruling limited the Law’s application to actions of the Federal government. And to further complicate matters various States, but not all, passed their own Religious Freedom Restoration Acts. Bottom line? Whether Strict Scrutiny applies to local governmental actions interfering with Religious Practices is in a state of flux.
That aside, as matters now stand, actions of the state and local government challenged as interfering with religious practices must satisfy the Neutrality Test. For example, in Mississippi local officials took action last week to prohibit an Easter gathering which contemplated having a drive-up church in which worshipers stayed in cars to hear and participate in the service. A federal judge ruled the actions of the officials unconstitutional because they targeted church gatherings, but not other gatherings like at grocery stores parking lots etc. They failed the Neutrality Test.
As this shut down stretches into the foreseeable future, local and state officials, before they issue new rules, would be wise to take the time to consider how they can accommodate the rights and needs of their citizens. It would require giving some thought to finding the least restrictive means of interfering with the freedoms of the citizens of a democracy. Don’t go overboard. It will be worth it in keeping the support of the citizens rather than criminalizing their behavior.
For more writings by Phil Cline, visit philcline.com