Free exercise in the states: belief, conduct, and judicial benchmarks.

AuthorFriedelbaum, Stanley H.

State religion clauses, although currently among the least explored sections of state constitutions, have come to exhibit a limited catalog of judicially assigned meanings that set them apart, albeit minimally, from their First Amendment counterparts. Several recent cases reveal these distinctions, particularly in relation to free exercise claims.(1) These distinctions, while tangible, are qualified and have developed slowly in incremental steps. Whether such a modest tendency to modify the decisional status quo will continue remains unclear. Nonetheless, regardless of what the future may hold, the course pursued in selected state cases merits attention. This is especially so in view of the unsettled state of the guidelines that have marked the religion clauses of the Bill of Rights.(2)

RECENT FEDERAL RULINGS: AN OVERVIEW

The inadequacy of First Amendment criteria in free exercise cases has been noted with increasing frequency for at least a decade and, with a lesser degree of disdain, for a longer period.(3) Since the mid-1940s, when the religion clauses of the First Amendment were made applicable to the states,(4) tensions inherent in the clauses have been evident.(5) The late delineation of critical models resulted from delays in the Supreme Court's resort to the Fourteenth Amendment's Due Process Clause as a means of conveying and elaborating upon values associated with First Amendment components.(6) It has long been apparent that an unremitting separation of church and state diminishes the breadth of free exercise.(7) What the Court has sought to achieve in recent years is an accommodation, but one characterized by a division premised on an endorsement corollary to guidelines previously announced. Whether viable standards of decision-making will ultimately emerge remains open to question.

What, then, has been the nature of the national doctrinal design to which objection has been taken? Of late, two sets of precedents have proved to be major sources of discord. The first, centering around Lemon v. Kurtzman,(8) introduced a three-pronged test against which allegations of Establishment Clause violations might be measured.(9) The "cumulative criteria" cited by the Court required that a legislative act, in order to be valid, must have (1) a secular purpose, (2) a primary effect neither to advance nor to inhibit religion, and (3) no intent to foster an "excessive government entanglement with religion."(10) While the ambiguous language of Lemon and its progeny was open to broad interpretation, fears were expressed with respect to the simplistic and indecisive nature of the rules set out, including a charge that the Lemon tests had led to "unworkable plurality opinions."(11)

In an attempt to remedy what appeared to be a growing dilemma, the Court turned to embrace an endorsement corollary that suggested an inquiry into whether and to what extent governmental action provided an endorsement or disapproval of religion.(12) Yet the Justices were closely divided over a primary reliance on endorsement.(13) Versions of the accommodation theory experienced a revival--one that led members of the Court to return to expansive readings of the Free Exercise Clause.(14) But flaws and periodic clashes developed in free exercise applications even in the absence of Establishment Clause complications that often lay at or peripherally beneath the surface. An accommodation of religious practices, like an endorsement test in the interest of promoting religious pluralism, led to friction among the Justices.(15) Neither promoted a common core of agreement for which the proposed formula had been devised.(16) With the recognition of an equal access policy for religious groups, initially on state-supported college campuses by judicial interpretation(17) and in public high schools by statute,(18) Free Exercise claims took on an enhanced meaning, now joined with Free Speech guarantees in judicially conceived hybrid settings.(19) Whether, under specified conditions, Establishment Clause prohibitions would be prompted remained open to question as the Free Exercise Clause assumed a new and unaccustomed vigor amid the spate of judicial formulas being projected.

Among the most significant mid-century precedents touching upon a revitalized Free Exercise Clause was a 1963 case, Sherbert v. Verner,(20) which weighed conscientious scruples raised by a Sabbatarian seeking unemployment compensation against a state's denial of benefits because of the claimant's refusal to work on Saturdays.(21) Free exercise controlled as the Court turned to the historic doctrine of unconstitutional conditions, thereby rejecting the notion that a grant of public benefits could be premised on the recipient's willingness to sacrifice fundamental rights for their realization.(22) The principle in Sherbert continued to prevail in cases decided during the 1980s.(23) The Court even went so far as to extend protection to one who declined Sunday work in the absence of adherence to a specific religious faith or organization as long as the refusal was predicated upon sincerely held beliefs that could not be regarded as "bizarre or incredible."(24) But exceptions to the free exercise revival began to occur outside the narrowly defined context of employment and the limited perquisites to which it gave rise.(25)

Perhaps the most significant conundrum resulted from an Oregon case related to the use of peyote, a drug used at religious ceremonies conducted at Native American churches.(26) Rehabilitation counselors, discharged for having taken the drug, had been denied unemployment compensation benefits because of the misconduct charges based on their use of the drug.(27) When first reviewed by the Supreme Court in Employment Division v. Smith (Smith I),(28) the case was remanded to the state supreme court to determine the lawfulness of peyote use under state law.(29) It was made clear that if sacramental consumption of the controlled substance was to be held lawful, the free exercise claim had to be sustained.(30) But the "unstated premise," seemingly implicit in the State Supreme Court's ruling, needed to be clarified as the basis for a positive message to be conveyed.(31)

The state court's response in Smith was puzzling. On the one hand, the court acknowledged that peyote use violated state law and that no religious exception was permissible.(32) On the other hand, the state court declared that the First Amendment's Free Exercise Clause contravened the prohibition, thus preventing the state from refusing to award benefits to one who had ingested the drug.(33) Unlike past performances by the activist Supreme Court of Oregon, a resort to the Bill of Rights continued to be undertaken, thereby eschewing a more predictable reliance on the state constitution for the judgment rendered.(34) It was incredible that this choice was defensible in view of counterpart state provisions usually found to be wide-ranging. The state court offered few clues to explain the strange course selected.

When Employment Division v. Smith (Smith II)(35) returned to the Supreme Court, a fragmented tribunal rejected the notion of a newly enlarged Free Exercise Clause.(36) Justice Antonin Scalia, writing for the Court, took exception to claims that those acting out of strongly held religious beliefs could refuse compliance with neutral laws founded upon the state's regulatory power.(37) Unless free exercise was combined with other First Amendment guarantees preserving free speech and press (a "hybrid situation"), exemptions from the reach of the police power could not be expected.(38) The Sherbert test, weighing the assertion of religious beliefs against compelling government interests, was all but abandoned, apart from narrowly defined issues of unemployment compensation.(39) Justice Scalia admonished critics saying that any other course would encourage an unacceptable departure from civic responsibilities and obligations contrary to "tradition and common sense."(40) He went on to note that conditions akin to anarchy might result.(41) The permissiveness associated with the application of a compelling interest test was condemned as giving rise to a myriad of broadly conceived religious preferences, upholding the private rights of individuals in disregard of generally applicable laws.(42) If an accommodation of religion was the objective, Justice Scalia counseled, its achievement would be best served by recourse to the political process, even if newly emerging or less known sects might suffer.(43) To do otherwise by way of excessive indulgence in behalf of religious pluralism would countenance a system in which "each conscience is a law unto itself."(44)

Though ostensibly a concurring opinion, Justice Sandra Day O'Connor's assessment was critical of the excessive majoritarianism that Scalia was espousing.(45) She deplored the departures from previously established free exercise jurisprudence.(46) Unlike Justice Scalia's call for almost unerring respect for "neutral" laws, often with criminal penalties attaching, Justice O'Connor reminded the Court of the nation's historic dedication to religious liberty accompanied by a vigorous compelling interest test to justify any infractions.(47) Only her agreement that the regulation of peyote posed a compelling state interest caused her to concur.(48) Like O'Connor, Justice Harry Blackmun objected to the Court's evaluation, but he did so by means of a dissent, one that centered around a less forbearing view of the state's compelling interest in the peyote matter.(49)

As free exercise fell within the doctrinal disarray resulting from the Supreme Court's interpretive gloss in Smith II, it became clear that the reach of First Amendment religious liberties had been substantially restricted and even imperiled with respect to minority sects. An emphasis on state concerns threatened to sustain more widespread encroachments than had been permitted up to that point...

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