Supreme Court Cases on the Free Exercise Clause | A Primary Source Close Read w/ BRI

0:00 Hello, and welcome to another Primary Source Close Read. My name is Josh, and today I’m excited to be joined again by our scholar Tony Williams. Hey Tony. Josh. How are you? Hello, everyone. Great. So, Tony am excited today because we’re going to be talking about the Free Exercise Clause. Now, BRI is going to be releasing a new

0:23 Homework Help video soon on the free exercise clause in which we take a look at the history of that clause as well as some Supreme Court case rulings on it. So I thought today, though, that we could actually do a deeper dive into it and look at some opinions, primary source excerpts, and, of course,

0:46 also dive into the history of the Free Exercise Clause. Let’s start off by just looking at our broad constitutional question here, which is what constitutes the free exercise of religion? So this has been a perennial question throughout American history.

1:08 What does it mean to exercise religion? Does that just include believing something? Are you able to act in order to exercise a religion? So there have been many cases, and we’re just taking out a couple of them today. So let’s start off by taking a look at the actual clause. So Congress shall make no law prohibiting the free exercise of religion.

1:33 Tony, why did the Founders include this in the Bill of Rights? What’s the history behind this? Right. Thanks, Josh. I mean, you’re absolutely right. So it constitutes the essential belief among the Founders that religious freedom, religious liberty was a basic inalienable right of man.

1:57 Right. It’s really critical to that duality of civil and religious liberty. In addition to that, though, it’s not only a sincerely held belief of conscience, which is a natural right, but the ability to exercise right, whether it’s to practice the sacraments or to pray or to exercise

2:26 the religious belief in practice essential to whatever religion you hold. So the inseparable idea of religious liberty as a natural right as a matter of conscience, but also exercising, practicing that religion,

2:51 the government cannot restrict that one of the most basic rights of human beings. Great. Yeah. And it seems pretty clear cut there when you put it that way. Right. But of course, as we’ve seen, then it kind of gets gray in some areas. Right. Because then it becomes a question of,

3:12 well, is the government able to regulate this at all? How much are they able to regulate, et cetera. So the first place we’re going to look at is, can’t well be Connecticut? And that involves religious solicitation, I believe. Tony, could you give some background on what happened in that case?

3:37 Yeah, very simply, I mean, the government sought to not only regulate, but prohibit Jehovah’s Witnesses from going door to door and talking about their religion and handing out some religious literature and so forth. And a Catholic community was particularly grieved by this and wanted to put an end to it.

4:00 Great. Yeah. And this case actually incorporated the Free Exercise Clause to apply to the state governments, which in the modern day that we kind of take it for granted that, yes, the Bill of Rights applies to the state governments. But initially it wasn’t set up that way.

4:21 It initially only applied to the federal government. And it wasn’t until the 20th century that the Supreme Court started to apply the Bill of Rights to state governments through the doctrine of incorporation. So we have here an excerpt from justice owen Roberts So the Court did end up

4:42 ruling in favor of the Jehovah’s Witnesses. Tony, what do you take away from this ruling here? What I take away is that the government can regulate certain things about religion related to good citizenship and to civil society and so forth.

5:04 It can pass laws kind of around the edges. For example, we wouldn’t want someone knocking on our door, 2:00 A.m. Trying to persuade us to join their religion, for example. That wouldn’t be very good citizenship. It wouldn’t be very neighborly. However, the government cannot single out any particular religion or

5:26 religions in general and say you cannot solicit. Maybe your Boy and Girl Scouts can in the neighborhood or some businesses, or the local football team is trying to raise money and so they’re going to door to door or maybe a political candidate, so the government can kind of pass regulations on solicitation.

5:49 You can’t do it at 02:00 A.m., for example, but it cannot single out a religious group to put a substantial burden upon that group. So I think all this is pretty clear cut. But it does raise instant questions to say where can the government regulate things? Exactly. Because there’s some interest, right?

6:10 There’s some compelling interests that the state where the government has in regulating behavior. But in this case, it was really singling out a religion which is not permissible. Great. Yeah, I guess maybe one thing that you could say maybe the government has a compelling interest in is when it comes

6:31 to unemployment benefits, which is actually what are conveniently. The next phase we’re going to look at is Sherbert v. Verner. So what happened in this case, Tony? Right. Well, this was related to Seven Day Adventists, which did not work on Saturday because that was their Sabbath day.

6:57 Right. And so the idea was that they would lose their job and therefore unemployment benefits because they were unwilling to work on their Sabbath, which in the end, the Court decided that this was an unfair imposition, that this singled out the 7th

7:20 Day Adventists for practicing their religion, and therefore this was an undue burden on them, and therefore they were indeed entitled to receive those unemployment benefits. Great. Yeah. And it’s interesting here, just in

7:43 in the wording of this decision, again, like you said, that undue burden, the Court is framing it that they’re really making her choose between her religion and basically being able to survive by having money. And so just the way they frame that,

8:05 they are saying this is indeed preventing her from freely exercising her religion. Is that a fair way of putting it? Yes, exactly. And again, we need to think about other examples could impose a burden on someone who just wanted to have Saturdays off or maybe watch

8:30 football on Sunday or something to that effect. These are not reasonable excuses. Right. But when it’s burdening religion and religious freedom, which is protected, and that exercise of religion, when that’s protected on the First Amendment, that has a special protection that, as you said, the government can’t pass a new burden on.

8:54 Great. Yeah. So these two have actually the court has ruled that the government was violating the First Amendment. This next one is actually going to rule in favor of the government in this case of Employment Division v. Smith. This case involved an individual,

9:18 again, who was being denied unemployment benefits, is that correct? Tony but for a very different reason. Right. So the people who are suing for benefits, which they had lost, had used Peyote, a hallucinogenic drug that was banned

9:41 by federal law and they said it was part of their native religious practices. Okay. This is a very interesting case and a famous case. And what the court decides in the end is that having a drug law, whether people agree with it or not,

10:07 a lot of these drug laws are being very heavily debated today. And in fact, I know BRI has had some programs and opportunities to debate this, but if there is a federal law banning the use of marijuana or other drugs

10:27 and people participate in it and they lose their job and they lose their unemployment benefits, basically what the court is saying in this particular case is that that’s acceptable. It needs to balance these laws with religious freedom.

10:52 And in this case, the court decided that since the drug laws applied to everyone, it wasn’t unfairly burdening religion because it didn’t target only religious practices, it banned all citizens from using these illegal drugs. Right? Yeah.

11:13 And you’re seeing in this excerpt that tension between that comes up sometimes the social importance of laws versus religious beliefs. That comes up sometimes. Maybe one thing that comes to mind is Wisconsin v. Doder, where the state of Wisconsin said, we have a compelling interest to require

11:35 students to go to public school until I think, age 16. And then the Samish family said, well, that violates our religious beliefs. And the court needs to decide how can we best balance between the communities interests as well as the very important individual interest in exercising religious belief.

12:02 So we’re going to finish then we have one more case. This one is actually going to involve schools and funding. Tony actually taxes, I should say not funding directly. But what happened in this case yeah. This had to do with state money going to

12:24 tax credits, money going to individuals for sort of private nonprofit organizations for their participation in them. And some of this money, of course, went to Christian Academy. And the question was, is this allowed? And this is an interesting case because it can show some of the tension between

12:49 the Establishment Clause on one hand and the Free Exercise Clause on the other. So in other words, we’ve talked about the Establishment Clause and the government regulating prayer in schools or maybe a commencement ceremonies, maybe at a high school game in Texas, for example.

13:12 And we do need to recognize that religious liberty and the Establishment Clause can sometimes be intention if you’re banning something because of the so called separation state, the Establishment doctrine that bumps up

13:33 against an individual or group’s right to practice their religion. Sometimes there can be tension in that. And in this case there was that tension between, let’s say, supporting the school indirectly or supporting the students who attended that school and their right to attend, their ability to attend

13:55 that school as part of their religious upbringing. And so those are intentions. But again, the Court decides that the government cannot single out religion or religious schools

14:16 with their laws, with their regulations and so upholds the young person’s ability to attend this privilege school. Right great. Yeah, this case was of the four we looked at, this was the closest decision.

14:36 This one was five to four. And as we like to do in these videos, we also like to pull from the dissenting opinion to show that these are rarely a unanimous there are multiple perspectives approaching this. So we have an excerpt here from Justice Breyer who dissented. And this kind of gets to what you had been saying initially about that.

15:00 They’re kind of approaching it from both the Establishment Clause and the Free Exercise clause. So here Breyer is talking about we have this concern about the state funding religious teaching because that would, of course infringe on the Establishment Clause. So do you think, are the Justices just speaking an entirely

15:22 different language here or what do you think? Tony well, I think as with many cases and with many lawsuits or even principles, people are approaching it from different angles. Right. So they are looking at the facts

15:43 of the case and interpreting things a little bit differently. And that’s the way it should be. And as you said in this case, maybe coming from things from more of an Establishment Clause point of view. But the majority of the Justices do decide for religious liberty

16:04 in this case and this tension isn’t necessarily going away. Right. I think the Court has done, I think, to look back on our history, a pretty good job in terms of protecting religious liberty and the Free Exercise Clause.

16:27 And there are various movements to restrict that or take away tax exemption status or tax truce property and so forth. These cases aren’t necessarily going to go away. But I think the court will continue to

16:49 defend religious liberty in a lot of these cases. So expect more cases on the horizon as these perennial issues just maybe don’t go away. Yeah, I’m sure the Supreme Court will never reach a day where they have no more cases coming to them on religious liberty.

17:13 So let’s go back to our original question what constitutes the free exercise of religion? So we’ve talked about four cases here, tony, just in a quick summary, what has the Court ruled? If you could just give me a couple of sentences. How have they determined based on these four cases? One is a free exercise of religion, and in the case of Employment

17:35 Division v. Smith, why was that not a free exercise of religion? I think that the Court has, by and large, supporter unanimity among most of the founders with not only Jefferson and Madison, but also Washington

17:57 and others who believe that religious liberty, that this free exercise of religion was an inherent natural right. And so you see, time again the Court trying to balance the legitimate interests of the state

18:18 with having our harmonious and just civil society with the free exercise village. And I think by and large, at least in the cases that we’ve seen today and in some other cases, has come down firmly on protecting religious liberty and ensuring

18:42 that people have that freedom of conscience and also the ability to exercise those ideas in a reasonable way that’s protected. Right. Well put, Tony. Well, thank you, everyone for joining. As I previously mentioned,

19:03 BRI is soon going to be releasing a new Homework Help video on the free exercise clause, so be sure to check that out when it does come out. As always, you can join our conversation on Facebook, Twitter and Instagram for updates on our programs, events and ways to get involved.

19:23 And of course, we would love to hear from you. So please comment your thoughts on the video below or get in touch with us on social media. Tony, thanks again for joining me today. An important an interesting discussion, so thank you, Josh.