Religious Liberty (Update 2)

• Author: Thomas C. Berg
• Pages: 2194-2195

Page 2194

Religious liberty in a broad sense?the liberty of persons to make decisions about religious matters?is central to both concepts in the FIRST AMENDMENT'S religion provision, free exercise and nonestablishment. The ESTABLISHMENT CLAUSE secures a person's liberty to reject or refrain from religious activity. But religious liberty in a stricter, positive sense?the liberty to follow religion and engage in religious activity?is the particular concern of the free exercise clause and, where the religious activity involves expression, the FREEDOM OF SPEECH guarantee as well.

The Supreme Court has upheld strong free speech protection for citizens' religious expression. Several recent decisions forbid the government to exclude the speech of private individuals or groups from a public institution or PUBLIC FORUM solely because the speech is religious in content, including LAMB ' S CHAPEL V. CENTER MORICHES SCHOOL DISTRICT (1993), CAPITOL SQUARE REVIEW AND ADVISORY BOARD V. PINETTE (1995), and ROSENBERGER V. RECTOR & VISITORS OF UNIVERSITY OF VIRGINIA (1995).

Sharp controversy continues, however, over the constitutional protection of religious activity that is primarily conduct rather than speech. One narrower view holds that government has power to punish or restrict religiously motivated conduct as long as it does not single it out; that is, the free exercise clause gives religious believers no protection from laws that apply generally to certain conduct. The Court adopted this view?with some potentially significant limits and exceptions?in EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH (1990), holding that a state could apply its "generally applicable" criminal law against peyote use to Native American religious believers who used the drug in their worship services.

A broader view holds that the free exercise of religion requires government to have a strong reason for substantially restricting religious conduct, even when the restriction comes through a law that applies generally. This view, which held sway in the Court from 1963 into the late 1980s, would require the government to accommodate, or exempt, sincere religious practice unless the reason for restricting the practice was important or even "compelling" (the language of SHERBERT V. VERNER (1963) and WISCONSIN V. YODER (1972)).

According to the pro-accommodation view, the free exercise clause recognizes that religious believers claim a duty to a power outside (or above) the state?a belief prevalent at the time of the founding and enunciated, for example, in JAMES MADISON'S Memorial and Remonstrance Against...