Religious Liberty

• Author: Leo Pfeffer
• Pages: 2185-2192

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Although the FIRST AMENDMENT'S mandate that "Congress shall make no law respecting an ESTABLISHMENT OF RELIGION, or prohibiting the free exercise thereof" is expressed in unconditional language, religious liberty, insofar as it extends beyond belief, is not an absolute right. The First Amendment, the Supreme Court said in CANTWELL V. CONNECTICUT (1940), "embraces two concepts?freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation of society."

Although the Court has repeated this dualism many times, it does not explain what the free exercise clause means. There is no need for a constitutional guarantee protecting freedom to believe, for, as the COMMON LAW had it, "the devil himself knows not the thoughts of man." Even if freedom to believe encompasses freedom to express what one believes, the clause adds nothing, since FREEDOM OF SPEECH and FREEDOM OF THE PRESS are specifically guaranteed in the amendment. Indeed, before Cantwell was decided, the Court applied the free speech rather than free exercise guarantee to challenges against state laws allegedly impinging upon religious liberty. Moreover, the word "exercise" connotes action or conduct, thus indicating that the framers had in mind something beyond the mere expression of a belief even if uttered in missionary activities.

In America the roots of religious liberty can be traced to ROGER WILLIAMS, whose pamphlet, "The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace," asserted that it was God's command that "a permission of the most Paganish, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all Nations and Countries." Another source was THOMAS JEFFERSON ' SVIRGINIA STATUTE OF RELIGIOUS LIBERTY, adopted in 1786, which declared that no person should be compelled to frequent or support any religious worship nor suffer on account of religious opinions and beliefs.

By the time the First Amendment became part of the Constitution in 1791, practically every state in the Union,

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to a greater or lesser degree, had enacted constitutional or statutory provisions securing the free exercise of religion. Indeed, it was the absence of a BILL OF RIGHTS whose proponents invariably called for a guarantee of religious freedom, that was the most frequently asserted objection to the Constitution presented to the states for approval. The necessary approval was obtained only because the Constitution's advocates promised that such a bill would be added by amendment after the Constitution was adopted.

Although the First Amendment was framed as a limitation of congressional powers, Supreme Court decisions have made it clear that executive and judicial action were likewise restricted by the amendment. Thus in Anderson v. Laird (1971) the Supreme Court refused to review a decision that the secretary of defense violated the First Amendment in requiring cadets in governmental military academies to attend chapel. As to the judiciary, unquestionably a federal court could not constitutionally disqualify a person from testifying as a witness because he was an atheist. (See TORCASO V. WATKINS.)

Since the Court's decision in Cantwell the states are subject to the restrictions of the free exercise clause no less than the federal government. Because our federal system leaves to the states what is generally called the POLICE POWER, there were few occasions, prior to Cantwell, when the Supreme Court was called upon to define the meaning of the clause. The few that did arise involved actions in the TERRITORIES, which were subject to federal laws and thus to the First Amendment. Most significant of these was REYNOLDS V. UNITED STATES (1879), wherein the Supreme Court upheld the constitutionality of an act of Congress criminalizing POLYGAMY in any American territory. In rejecting the defense that polygamy was mandated by doctrines of the Holy Church of Latter-Day Saints (Mormons) and thus was protected by the free exercise clause, the Court stated what was later echoed in Cantwell, that although laws "cannot interfere with mere religious belief, they may with practice." It could hardly be contended, the Court continued, that the free exercise clause barred prosecution of persons who engaged in human sacrifice as a necessary part of their religious worship.

Since Reynolds was charged with practicing polygamy, the Court's decision did not pass upon the question whether teaching it as a God-mandated duty was "mere religious belief" and therefore beyond governmental interference. In DAVIS V. BEASON (1890) the Court decided that such teaching was "practice," and therefore constitutionally subject to governmental restrictions.

Teaching or preaching, even if deemed action, is however not beyond all First Amendment protection, which encompasses freedom of speech as well as religion. In GITLOW V. NEW YORK (1925) the Supreme Court declared for the first time that the free speech guarantee of the First Amendment was incorporated into the FOURTEENTH AMENDMENT by virtue of the DUE PROCESS clause in the latter and thus was applicable to the states. Accordingly, the Jehovah's Witnesses cases that first came to the Court in the 1930s were initially decided under the speech rather than the religion clause (LOVELL V. GRIFFIN, 1938; Schneider v. Irvington, 1939). It was, therefore, natural for the Court to decide the cases under the CLEAR AND PRESENT DANGER test that had first been announced in SCHENCK V. UNITED STATES (1919), a case involving prosecution for speaking against United States involvement in World War I.

In another sense, this too was quite natural since, like Schenck, the Witnesses were pacifists, at least in respect to wars in this world. (In Sicurella v. United States, the Court in 1955 ruled that a member of the sect was not disqualified from conscientious objector exemption because the sect's doctrines encompassed participation by believers in serving as soldiers in the Army of Christ Jesus at Armageddon.) Nevertheless, unlike Schenck and other opponents to American entry in World War I, the Witnesses (like the Friends) did not vocally oppose American entry into the war but limited themselves to claiming CONSCIENTIOUS OBJECTION status.

The Court did not apply the clear and present danger test in a case involving a member of the Jehovah's Witnesses whose child was expelled from public school for refusing to participate in the patriotic program of flag salute. In that case, Minersville School District v. Gobitis (1940), the Court, in an opinion by Justice FELIX FRANK-FURTER, rejected the assertion as a defense of religious freedom. (See FLAG SALUTE CASES.) The antipolygamy law, he stated, was upheld in Reynolds not because it concerned action rather than belief, but because it was a valid general law, regulating the secular practice of marriage.

The majority of the Court, however, soon concluded that Gobitis had been incorrectly decided, and three years later the Court overruled it in West Virginia State Board of Education v. Barnette (1943). There the Court treated the Witnesses' refusal to salute the flag as a form of speech and therefore subject to the clear and present danger test. In later decisions, the Court returned to Cantwell and treated religious freedom cases under the free exercise rather than free speech clause, although it continued to apply the clear and present danger test.

Unsatisfied with that test, Justice Frankfurter prevailed upon his colleagues to accept a differently worded rule, that of BALANCING competing interests, also taken from Court decisions relating to other freedoms secured in the Bill of Rights. When a person complains that his constitutional rights have been infringed by some law or action of the state, it is the responsibility of the courts to weigh

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the importance of the particular right in issue as against the state's interest upon which its law or action is based. For example, the right of an objector not to violate his religious conscience by engaging in war must be weighed against the nation's interest in defending itself against foreign enemies, and, in such weighing, the latter interest may be adjudged the weightier.

The majority of the Court accepted this rule, but in recent years it has added an element that has almost turned it around. Justice Frankfurter believed that a citizen who challenged the constitutionality of state action had the burden of convincing the court that his interest was more important than the state's and should therefore be adjudged paramount. Establishing an individual's right superior to the state's interest was a particularly heavy burden to carry, but it was made even heavier by Justice Frankfurter's insistence that any doubt as to...