Freedom of Religious Exercise

• Author: Ruthann Robson
• Pages: 1074-1181

Robson The First Amendment

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Chapter& Fourteen:& FREEDOM& OF&

RELIGIOUS&EXERCISE&

This Chapter considers freedom of religion in the First Amendment and

in statutory contexts.

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Chapter Outline

I. Belief v. Practice

Reynolds v. United States

Note: The Polygamy Voting Cases

Notes

Note: Fraud or Heresy?

II. The Problem of Neutral Rules of General Applicability and Religious Exercise

Sherbert v. Verner

Lyng v. Northwest Indian Cemetery Protective Association

Employment Division, Department of Human Resources of Oregon v. Smith

III. Legislating Free Exercise

A. RFRA

Text of Religious Freedom Restoration Act (RFRA)

Note: The Constitutionality of RFRA

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal

Burwell v. Hobby Lobby Stores, Inc.

B. RLUIPA

Text of RLUIPA

Note: The Relevance of RLUIPA for RFRA

Note: Prison Litigation Under RLUIPA

IV. Targeting Religion and Ministerial Employees

Church of the Lukumi Babalu Aye v. City of Hialeah

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment

Opportunity Commission

Notes

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Robson The First Amendment

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I.&Belief&v.&Practice&&

Reynolds$v.$United$States$

98 U.S. 145 (1879)

MR. CHIEF JUSTICE WAITE DELIVERED THE OPINION OF THE COURT.

[ERROR to the Supreme Court of the Territory of Utah.

This is an indictment found in the District Court for the third judicial district of

the Territory of Utah, charging George Reynolds with bigamy, in violation of sect.

5352 of the Revised Statutes, which, omitting its exceptions, is as follows:--

'Every person having a husband or wife living, who marries another,

whether married or single, in a Territory, or other place over which the

United States have exclusive jurisdiction, is guilty of bigamy, and shall

be punished by a fine of not more than $500, and by imprisonment for a

term of not more than five years.']

***

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his

alleged second marriage he was, and for many years before had been, a member

of the Church of Jesus Christ of Latter-Day Saints, commonly called the

Mormon Church, and a believer in its doctrines; that it was an accepted

doctrine of that church 'that it was the duty of male members of said church,

circumstances permitting, to practise polygamy ; . . . that this duty was

enjoined by different books which the members of said church believed to be of

divine origin, and among others the Holy Bible, and also that the members of

the church believed that the practice of polygamy was directly enjoined upon

the male members thereof by the Almighty God, in a revelation to Joseph Smith,

the founder and prophet of said church; that the failing or refusing to practise

polygamy by such male members of said church, when circumstances would

admit, would be punished, and that the penalty for such failure and refusal

would be damnation in the life to come.' He also proved 'that he had received

permission from the recognized authorities in said church to enter into

polygamous marriage; . . . that Daniel H. Wells, one having authority in said

church to perform the marriage ceremony, married the said defendant on or

about the time the crime is alleged to have been committed, to some woman by

the name of Schofield, and that such marriage ceremony was performed under

and pursuant to the doctrines of said church.'

Upon this proof he asked the court to instruct the jury that if they found from

the evidence that he 'was married as charged-if he was married-in pursuance of

and in conformity with what he believed at the time to be a religious duty, that

the verdict must be 'not guilty." This request was refused, and the court did

charge 'that there must have been a criminal intent, but that if the defendant,

under the influence of a religious belief that it was right,-under an inspiration,

if you please, that it was right,-deliberately married a second time, having a first

wife living, the want of consciousness of evil intent-the want of understanding

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on his part that he was committing a crime-did not excuse him; but the law

inexorably in such case implies the criminal intent.'

Upon this charge and refusal to charge the question is raised, whether religious

belief can be accepted as a justification of an overt act made criminal by the law

of the land. The inquiry is not as to the power of Congress to prescribe criminal

laws for the Territories, but as to the guilt of one who knowingly violates a law

which has been properly enacted, if he entertains a religious belief that the law

is wrong.

Congress cannot pass a law for the government of the Territories which shall

prohibit the free exercise of religion. The first amendment to the Constitution

expressly forbids such legislation. Religious freedom is guaranteed everywhere

throughout the United States, so far as congressional interference is concerned.

The question to be determined is, whether the law now under consideration

comes within this prohibition.

The word 'religion' is not defined in the Constitution. We must go elsewhere,

therefore, to ascertain its meaning, and nowhere more appropriately, we think,

than to the history of the times in the midst of which the provision was adopted.

The precise point of the inquiry is, what is the religious freedom which has been

guaranteed.

Before the adoption of the Constitution, attempts were made in some of the

colonies and States to legislate not only in respect to the establishment of

religion, but in respect to its doctrines and precepts as well. The people were

taxed, against their will, for the support of religion, and sometimes for the

support of particular sects to whose tenets they could not and did not subscribe.

Punishments were prescribed for a failure to attend upon public worship, and

sometimes for entertaining heretical opinions. The controversy upon this

general subject was animated in many of the States, but seemed at last to

culminate in Virginia. In 1784, the House of Delegates of that State having

under consideration 'a bill establishing provision for teachers of the Christian

religion,' postponed it until the next session, and directed that the bill should

be published and distributed, and that the people be requested 'to signify their

opinion respecting the adoption of such a bill at the next session of assembly.'

This brought out a determined opposition. Amongst others, Mr. Madison

prepared a 'Memorial and Remonstrance,' which was widely circulated and

signed, and in which he demonstrated 'that religion, or the duty we owe the

Creator,' was not within the cognizance of civil government. At the next session

the proposed bill was not only defeated, but another, 'for establishing religious

freedom,' drafted by Mr. Jefferson, was passed. In the preamble of this act

religious freedom is defined; and after a recital 'that to suffer the civil

magistrate to intrude his powers into the field of opinion, and to restrain the

profession or propagation of principles on supposition of their ill tendency, is a

dangerous fallacy which at once destroys all religious liberty,' it is declared 'that

it is time enough for the rightful purposes of civil government for its officers to

interfere when principles break out into overt acts against peace and good

order.' In these two sentences is found the true distinction between what

properly belongs to the church and what to the State.