Freedom of Religion Versus Civil Authority in Matters of Health

AuthorRonald B. Flowers
Published date01 September 1979
Date01 September 1979
Subject MatterArticles
Freedom of Religion Versus Civil Authority
in Matters of Health
ABSTRACT: Decisions of the United States Supreme Court
in 1963 and 1972 expanded the scope of the free exercise
clause of the First Amendment beyond any previous inter-
pretation of that clause in American judicial history. Although
it is still understood that government may prohibit religiously
motivated behavior which represents harm to individuals or
to the public welfare, civil authorities now may intervene
only when the religious activity threatens a compelling
state interest. The possibilities of religious activity are
abundant, and government intervention is limited to only
the gravest offenses of the public order. This article examines
some of the areas of health, broadly defined, in which
religious attitudes have conflicted with state interests: the
handling of poisonous snakes and drinking of poison in
religious worship, the use of prohibited drugs in worship,
compulsory blood transfusions for those who have theological
objections to them, and the application of public health laws
to those whose theology rejects medicine altogether. In
the light of these cases, as much as the American constitutional
system exalts religious liberty, it can never be unfettered.
But, even in this area, it is imperative that our governmental
units make religious liberty the rule and its curtailment the
Ronald B. Flowers is Associate Professor of Religion at Texas Christian
University. He received the Ph.D. from the School of Religion at the University of
Iowa, with an emphasis on the history of religion in America. A member of the
Editorial Council of the Journal of Church and State, he has written for Christianity
and Crisis, Religion in Life, Encounter: Creative Theological Scholarship, and the
Journal of Church and State. With Robert T. Miller he co-authored Toward Benevo-
lent Neutrality: Church, State, and the Supreme Court.

IN THE ONE hundred first year religion and, secondly, if it has,
after the Supreme Court initially
whether the state interest is strong
interpreted the free exercise clause
enough to justify the burden. In this
of the First Amendment, it is appro-
balancing, the weight of religious
priate to examine the current under-
freedom is great and demands a
standing of religious freedom. In
compelling state interest to over-
Reynolds v. United States,l a Mormon
come it. As to the nature of a com-
polygamy case, the court declared
pelling state interest, the court said:
that religious belief was subject to
It is basic that no showing merely of
restraints, but that civil authorities
a rational relationship to some colorable
could prohibit religious activity if it
state interest would suffice; in this highly
believed to be harmful to others:
sensitive constitutional area, &dquo;only the
the free exercise clause was not
gravest abuses, endangering paramount
absolute. After Reynolds, the federal
interests, give occasion for permissible
government retained the power to
prohibit all religious action judged
The effect of this language is to
to be subversive to social duties and
further shrink the possibility of civil
good order.
interference in the free exercise of
However, in 1940, Cantwell v.
religion, even when religious be-
Connecticut2 broadened the scope
havior infringes on public welfare.
of religious freedom by declaring
This is amplified by a third part of
that religious behavior was subject
the procedure: if a demonstrated
to government restraint only if the
state interest is to prevail, the state
activity posed a &dquo;clear and present
must show that it has no other way to
danger&dquo; to the public welfare.
accomplish its interest without in-
The &dquo;clear and present danger&dquo;
fringing First Amendment rights.
test for interpreting the free exercise
This concept from Sherbert was
clause was further refined in Sherbert
expanded in Wisconsin v. Yoder.5
v. Verner,3 in which a Seventh-Day
There Old Order Amish parents
Adventist had been denied state
challenged state laws compelling
unemployment compensation bene-
them to send their children to school
fits because she would not accept
through age 16 when they, as a
jobs requiring her to work on Satur-
matter of religious faith, desired to
day. The Supreme Court held that to
limit their children’s formal education
disqualify her for unemployment
to the eighth grade. The Supreme
payments because she would not
Court recognized that Wisconsin
violate her sabbatarian belief im-
had a strong interest in requiring the
posed an unconstitutional burden on
education of children to the level of
the free exercise of her religion.
self-reliance and potential political
In arriving at that decision, the
participation. But, even here the
court used a balancing test which
state interest did not automatically
has become the prevailing means
triumph over the exercise of religion.
of deciding free exercise cases. First,
Following Sherbert, the court said:
it must be determined whether the
The essence of all that has been said
law in question has imposed a
and written on the subject is that only
burden upon the free exercise of
those interests of the highest order and
1. 98 U.S. 145 (1878).
4. Ibid. at 406; citing Thomas v. Collins
2. 310 U.S. 296.
323 U.S. 516 at 530.
3. 374 U.S. 398 (1963).
5. 406 U.S. 205 (1972).

those not otherwise served can over-
substances in their services of wor-
balance legitimate claims to the free
ship, claiming that such use is
exercise of religion.’
protected by the free exercise clause.
Because the Amish
are a law-abiding
group which makes this claim
and productive people, presenting
is the Native American Church.
burden on neither the police nor the
Although the history of this religion
is somewhat difficult to
resources of the state, the
trace, it is
court held in their favor.
clear that it has been a significant
Some feel that the court reversed
part of the lives of many American
itself and shortened the reach of the
Indians since the late nineteenth
free exercise clause in Trans World
century.9 The church has combined
of the
v. Hardison, which held that
teachings of Christianity
and traditional Indian
a corporation need not go to extraor-
religion, in-
dinary efforts to accommodate
cluding the use of
peyote, as an aid
sabbatarian employee’s religion
to achieving what may be described
However, the court probably did not
as a mystical experience.
alter its view of free exercise in that
Peyote comes from a cactus and is
case because it merely construed a
ingested during ceremonial meetings
statute, not
of the Native American Church
constitutional question.
That is confirmed by McDaniel
participants’ chewing the cactus
Paty, in which the
court considered
or drinking tea made there-
the constitutional issue of whether
from. Because the principal con-
Tennessee could forbid
stituent of
an ordained
peyote is mescaline, it
minister to
is a
serve in a constitutional
hallucinogen, causing its user
convention.&dquo; Relying
to see
on Sherbert
bright colors, geometric
and Yoder, the court held that
patterns, scenes of animals or humans,
Tennessee’s action
was an uncon-
creating a heightened sense of
stitutional denial of the minister’s
awareness and friendliness toward
free exercise of religion. Conse-
quently, the Sherbert and Yoder
Others who have appeared in
cases have given the free exercise
to plead for the religious use
of religion
a scope unprecedented
prohibited substances are the
in judicial history.
Neo-American Church (who used
marijuana and LSD),l1 the Church of
Awakening (peyote),12 various
segments of the Universal Life
There are state and federal statutes
Church (marijuana),13 devotees of
controlling the use, sale, and distri-
9. A
convenient short
bution of
narcotics and other
be found
in George de Verges, "Note: Peyote and
trolled substances, including hallu-
the Native American Church," American
cinogens. The rationale for these
Indian Law Review 2 (1974):71-72.
laws is to protect society from ill
10. People v. Woody 394 P.2d 813 at
effects from the widespread
816-817 (1964); Whitehorn v. State 561
use of
P.2d 539 at 543
(1977); Alice Marriott and
drugs. However, the issue is
Carol K. Rachlin, Peyote (New York: New
clouded considerably because some
American Library, 1971).
have used certain of the proscribed
11. United States v. Kuch 288 F. Supp. 439
12. Kennedy v. Bureau of Narcotics and
6. Ibid. at 215.
Dangerous Drugs 459 F.2d 415 (1972).
7. 97 S.Ct. 2264 (1977).
13. Lewellyn v. State 489 P.2d 511 (1971);
8. 98 S.Ct. 1322 (1978).
People v. Mullins 123 Cal. Rptr. 201 (1975).

Hinduism (marijuana),14 and at least
to the worship of the Native American
one individual who claimed no
membership in an organized religion
Although peyote serves as a sacramental
but who said that marijuana helped
symbol similar to bread and wine in
him meditate with the Supreme
certain Christian churches, it is more
Being. 15
than a sacrament. Peyote constitutes in
People v. Woody, handed down by
itself an object of worship; prayers are
the California Supreme Court, is the
directed to it much as prayers are
case which articulated the basic
devoted to the Holy Ghost.... The
ground rules in this
area. Using the
thus establishes...

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