Religious Liberty

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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, 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 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 relative weights must be resolved in favor of the state, which would prevail unless its action were patently unreasonable. Recently, however, the Court has taken a more libertarian approach, requiring the state to persuade the courts that the values it seeks to protect are weightier. In the language of the decisions, the state must establish that there is a compelling state interest that justifies infringement of the citizen's right to the free exercise of his religion. If it fails to do so, its law or action will be adjudged unconstitutional. (See thomas v. review board of indiana; united states v. lee.)

In accord with this rule, the Court, in the 1972 case of wisconsin v. yoder, expressly rejected the belief-action test, holding that Amish parents could not be prosecuted for refusing to send their children to school after they had reached the age of fourteen. "Only those interests of the highest order," the Court said, "and those not otherwise served can overbalance the legitimate claim to the free exercise of religion."

Religious liberty is protected not only by the free exercise clause but also by the clause against establishments of religion. In everson v. board of education (1947) and later cases, the Court has stated that under the establishment clause, government cannot force a person to go to church or profess a belief in any religion. In later decisions, the Court has applied a three-pronged purpose-effect-entanglement test as a standard of constitutionality under the establishment clause. The Court has held, in Committee for Public Education and Religious Liberty v. Nyquist (1973), for example, that a challenged statute must have a primary effect that neither advances nor inhibits religion, and must avoid government entanglement with religion. (See separation of church and state.)

The Supreme Court's decisions in the arena of conflict between governmental concerns and individuals' claims to religious liberty can be considered in relation to the four categories suggested by the Preamble to the Constitution: national defense, domestic tranquillity, the establishment of justice, and general welfare. In resolving the issues before it in these decisions the Court has spoken in terms of clear and present danger, balancing of competing interests, or determination of compelling governmental interests, depending upon the date of the decision rendered.

Probably no interest of the government is deemed more important than defense against a foreign enemy. Individual liberties secured by the Constitution must yield when the nation's safety is in peril. As the Court ruled in the selective draft law cases (1918), the prohibition by the thirteenth amendment of involuntary servitude was not intended to override the nation's power to conscript an army of—if necessary—unwilling soldiers, without which even the most just and defensive war cannot be waged.

By the same token, exemption of Quakers and others whose religious conscience forbids them to engage in military service cannot be deemed a constitutional right but only a privilege accorded by Congress and thus subject to revocation at any time Congress deems that to be necessary for national defense. However, even in such a case, Congress must exercise its power within the limitations prescribed by the First Amendment's mandate of neutrality among religions and by the equal protection component of the Fifth Amendment's due process clause. Hence, in exercising its discretion, Congress could not constitutionally prefer some long-standing pacifist religions over others more recently established.

Exemption of specific classes—the newly betrothed, the newly married, the fainthearted, and others—goes back as far as Mosaic times (Deuteronomy 20:1–8). Since all biblical wars were theocratic, there was no such thing as religious exemption. In England, Oliver Cromwell believed that those whose religious doctrine forbade participation in armed conflict should constitute an exempt class. So too did the legislatures in some of the American colonies, the Continental Congress, and a number of the members of the Congress established under the Constitution. Madison's original draft of what became the second amendment included a provision exempting religious objectors from compulsory militia duty; but that provision was deleted before Congress proposed the amendment to the states. The first national measure exempting conscientious objectors was adopted by Congress during the Civil War; like its colonial and state precedents, it was limited to members of well-recognized religious denominations whose articles of faith forbade the bearing of arms.

The selective service act of 1917 exempted members of recognized denominations or sects, such as the Friends, Mennonites, and Seventh-Day Adventists, whose doctrine and discipline declared military service sinful. The 1940 act liberalized the requirements for exemption to encompass anyone who by "reason of religious training and belief" possessed conscientious scruples against "participation in war in any form." In 1948, however, the 1940 act was further amended, first, to exclude those whose objection to war was based on "essentially political, sociological or philosophical views or a mere personal code," and second, to define religion as a belief in a "Supreme Being."

In view of the Court's holding in Torcaso v. Watkins (1961) that the Constitution did not sanction preferential treatment of theistic religions over other faiths, limitation of exemption to persons who believe in a "Supreme Being" raised establishment clause issues. In united states v. seeger (1965) the Court avoided these issues by interpreting the statute to encompass a person who possessed a sincere belief occupying a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualified for the exemption. Applying this definition to the three cases before it, the Court held that Selective Service boards had erroneously denied exemption: to one who expressed a "belief in and devotion to goodness and virtues for their own sakes, and a religious faith in a purely ethical creed"; to another who rejected a relationship "vertically towards Godness directly," but was committed to relationship "horizontally towards Godness through Mankind and the World"; and to a third who defined religion as "the supreme expression of human nature," encompassing "man thinking his highest, feeling his deepest, and living his best."

Because exemption of conscientious exemption is of legislative rather than constitutional origin, Congress may condition exemption on possession of belief forbidding participation in all wars, excluding those whose objection is selective and forbids participation only in what they personally deem unjust wars, such as that in Vietnam. The Court sustained such an act of Congress in Gillette v. United States (1971). However, independent of any statutory exemption, the Court held in Thomas that, at least in peacetime, disqualification of a person from unemployment insurance benefits for conscientious refusal to accept an offered job in a plant that manufactured arms violated the free exercise clause.

Closely related to military service as an aspect of national defense is national unity, cultural as well as political. The relevant constitutional issues reached the Supreme Court in 1923 in three cases involving Lutheran and Reformed schools, and, two years later, in two cases involving a Roman Catholic parochial and a nonsectarian private school. The former cases, reflecting post-World War I hostility to German-speaking Americans, were decided by the Court in meyer v. nebraska (1923) and two companion cases. These involved the conviction of teachers of German who violated statutes forbidding the teaching of a foreign language to pupils before they had completed eight grades of elementary schooling. The Court, in reversing the convictions, relied not only on the constitutional right of German teachers to pursue a gainful occupation not inherently evil or dangerous to the welfare of the community, but also the right of parents to have their children taught "Martin Luther's language" so that they might better understand "Martin Luther's dogma." The cases were decided long before the Court held that the free exercise clause was incorporated in the Fourteenth Amendment's due process clause and therefore were technically based upon the teachers' due process right to earn a livelihood and the parents' due process right to govern the upbringing of their children.

In pierce v. society of sisters and its companion case, Pierce v. Hill Military Academy (1925), the Court invalidated a compulsory education act that required all children, with limited exceptions, to attend only public schools. A single opinion, governing both cases, relied upon Meyer v. Nebraska and based the decision invalidating the law on the due process clause as it related to the school owners' contractual rights and the parents' right to control their children's education, rather than to the free exercise rights of teachers, parents, or pupils. Nevertheless, since the Court's ruling in Cantwell that the free exercise clause was applicable to the states, Pierce has often been cited by lawyers, scholars, and courts as a free exercise case, and particularly one establishing the constitutional rights of churches to operate parochial schools. Had Pierce been decided after Cantwell it is probable that free exercise would have been invoked as an additional ground in respect to the Society of Sisters' claim; the opinion as written did note that the child was not the mere creature of the state and that those who nurtured him and directed his destiny had the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Reference has already been made to the Supreme Court's decision in West Virginia State Board of Education v. Barnette upholding the First Amendment right of Jehovah's Witnesses public school pupils to refrain from participating in flag salute exercises, although there the Court predicated its decision on the free speech rather than the free exercise mandate of the Amendment.

Jehovah's Witnesses' creed and conduct affected not only national defense through pacifism and alleged failure to pay respect to the flag but also governmental concern with domestic tranquillity. What aggravated hostility to the sect beyond its supposed lack of patriotism were its militant proselytizing methods, encompassing verbal attacks on organized religion in general and Roman Catholicism in particular. In their 1931 convention the Witnesses declared their mission to be "to inform the rulers and the people of and concerning Satan's cruel and oppressive organization, and particularly with reference to Christiandom, which is the most visible part of that visible organization." God's purpose was to destroy Satan's organization and bring quickly "to the obedient peoples of the earth peace and prosperity, liberty and health, happiness and life."

This is hardly new or surprising. Practically every new religion, from Judaism through Christianity and Islam to the present, has been predicated upon attacks against existing faiths; indeed, this is implied in the very term "Protestant." Clearly, those who wrote the First Amendment intended it to encompass attacks upon existing religions. (In burstyn v. wilson, 1952, the Court invalidated a statute banning "sacrilegious" films.) Attacks on existing religions are almost invariably met with counterattacks, physical as well as verbal, by defenders of the accepted faiths.

The assaults upon the Jehovah's Witnesses were particularly widespread and intense for a number of reasons. Their conduct enraged many who felt that their refusal to salute the flag was unpatriotic, if not treasonous. Their attacks upon the Christian religion infuriated many others. The evidence in Taylor v. Mississippi (1943), for example, included a pamphlet suggesting that the Roman Catholic Church was responsible for flag saluting. The book Religion, by the Witnesses' first leader, Charles T. Russell, described their operations: "God's faithful servants go from house to house to bring the message of the kingdom to those who reside there, omitting none, not even the houses of the Roman Catholic hierarchy, and there they give witness to the kingdom because they are commanded by the Most High to do so.… They do not loot nor break into the houses, but they set up their phonographs before the doors and windows and send the message of the kingdom right into the ears of those who might wish to hear; and while those desiring to hear are hearing, some of the "sourpusses' are compelled to hear."

The predictably resulting resort to violence and to law for the suppression of the Witnesses' activities gave rise to a host of Supreme Court decisions defining for the first time both the breadth and the limitations of the free exercise clause (and also, to some extent, the free speech clause). Most of the Jehovah's Witnesses cases were argued before the Supreme Court by Hayden Covington; his perseverance, as well as that of his client, was manifested by the fact that before Minersville School District v. Gobitis was decided, the Court had rejected his appeals in flag salute cases four times. The Court had accepted jurisdiction in Gobitis, as well as its successor, Barnette, because, notwithstanding these previous rejections, the lower courts had decided both cases in the Witnesses' favor.

The Witnesses were not the only persons whose aggressive missionary endeavors and verbal attacks upon other faiths led to governmental actions that were challenged as a violation of the free exercise clause and were defended as necessary to secure domestic tranquillity. In kunz v. new york (1951), the Court held that a Baptist preacher could not be denied renewal of a permit for evangelical street meetings because his preachings, scurrilously attacking Roman Catholicism and Judaism, had led to disorder in the streets. The Court said that appropriate public remedies existed to protect the peace and order of the communities if the sermons should result in violence, but it held that these remedies did not include prior restraint under an ordinance that provided no standards for the licensing official.

Jehovah's Witnesses were the major claimants to religious liberty in the two decades between 1935 and 1955. During that period they brought to the Supreme Court a large number of cases challenging the application to them of a variety of laws forbidding disturbing the peace, peddling, the use of soundtrucks, as well as traffic regulations, child labor laws, and revenue laws.

In Cantwell v. Connecticut (1940) the Court held that the First Amendment guaranteed the right to teach and preach religion in the public streets and parks and to solicit contributions or purchases of religious materials. Although a prior municipal permit might be required, its grant or denial might not be based upon the substance of what is taught, preached, or distributed but only upon the need to regulate, in the interests of traffic control, the time, place, and manner of public meetings. In cox v. new hampshire (1940) the Court ruled that religious liberty encompassed the right to engage in religious processions, although a fee might be imposed to cover the expenses of administration and maintenance of public order. The Constitution, however, does not immunize from prosecution persons who in their missionary efforts use expressions that are lewd, obscene, libelous, insulting, or that contain "fighting" words which by their very utterance, the Court declared in chaplinsky v. new hampshire (1942), inflict injury or tend to incite an immediate breach of the peace. The Constitution also secures the right to distribute religious handbills in streets and at publicly owned railroad or bus terminals, according to the decision in Jamison v. Texas (1943), and, according to Martin v. City of Struthers (1943), to ring doorbells in order to offer house occupants religious literature although, of course, not to force oneself into the house for that purpose.

Related to the domestic tranquillity aspects of Jehovah's Witnesses claims to use public streets and parks are the claims of other feared or unpopular minority religious groups (often referred to as "sects" or, more recently, " cults ") to free exercise in publicly owned areas. In heffron society for krishna consciousness (ISKCON) (1981) the Court held that a state rule limiting to specific booths the sale or distribution of merchandise, including printed material, on public fair grounds did not violate the free exercise clause when applied to members of ISKCON whose ritual required its members to go into all public places to distribute or sell its religious literature and to solicit donations.

Discriminatory treatment, however, is not constitutionally permissible. Thus, in Cruz v. Beto (1972) the Supreme Court upheld the claim of a Buddhist prisoner in Texas that his constitutional rights were violated by denying him use of the prison chapel, punishing him for sharing his Buddhist religious materials with other prisoners, and denying him other privileges, such as receiving points for attendance at religious services, which enhanced a prisoner's eligibility for early parole consideration. While a prisoner obviously cannot enjoy the free exercise of religion to the same extent as nonprisoners, the Court said, he is protected by the free exercise clause subject only to the necessities of prison security and discipline, and he may not be discriminated against simply because his religious belief is unorthodox. This does not mean that every sect within a prison, no matter how few in number, must have identical facilities or personnel; but reasonable opportunities must be afforded to all persons to exercise their religion without penalty.

One of the most difficult problems facing a court arises when it is called upon to decide between free exercise and the state's interest in preventing fraud. The leading case on the subject is United States v. Ballard (1944), which involved a prosecution for mail fraud. The indictment charged that the defendants, organizers of the "I Am" cult, had mulcted money from elderly and ill people by falsely representing that they had supernatural powers to heal and that they themselves had communicated personally with Heaven and with Jesus Christ.

The Court held that the free exercise clause would be violated if the state were allowed to seek to prove to a jury that the defendants' representations were false. Neither a jury nor any other organ of government had power to decide whether asserted religious experiences actually occurred. Courts, however, could constitutionally determine whether the defendant himself believed that what he recounted was true, and if a jury determined that he did not, they could convict him of obtaining money under false pretenses. The difficulty with this test, as Justice robert h. jackson noted in his dissenting opinion, is that prosecutions in cases such as Ballard could easily degenerate into religious persecution; juries would find it difficult to accept as believed that which, by reason of their own religious upbringing, they deemed unbelievable.

In providing for "affirmation" as an alternative to "oath" in Article II, section 1, and Article VI, section 3, the framers of the Constitution, recognizing that religious convictions might forbid some persons (specifically Quakers) to take oaths, manifested their intention that no person in the judicial system—judge, lawyer, court official, or juryman—should be disqualified from governmental service on the ground of religion. In Torcaso v. Watkins (1961) the Court reached the same conclusion under the First Amendment as to state officials (for example, notaries public), and in In re Jenison (1963), the Court refused to uphold a conviction for contempt of court of a woman who would not serve on a jury because of the biblical command "Judge not that ye not be judged."

Resort to secular courts for resolution of intrachurch disputes (generally involving ownership and control of church assets) raises free exercise as well as establishment problems. As early as 1872 the Court held in Watson v. Jones that judicial intervention in such controversies was narrowly limited: a court could do no more than determine and enforce the decision of that body within the church that was the highest judicatory body according to appropriate church law. If a religious group (such as Baptist and Jewish) were congregational in structure, that body would be the majority of the congregation; if it were hierarchical (such as Roman Catholic or Russian Orthodox), the authority would generally be the diocesan bishop.

That principle was applied by the Supreme Court consistently until Jones v. Wolf (1979). There the court held that "neutral principles of law developed for use in all property disputes" could constitutionally be applied in church schism litigation. This means that unless the corporate charter or deeds of title provide that the faction loyal to the hierarchical church will retain ownership of the property, such a controversy must be adjudicated in accordance with the laws applicable to corporations generally, so that if recorded title is in the name of the local church, the majority of that body is entitled to control its use and disposition. The Court rejected the assertion in the dissenting opinion that a rule of compulsory deference to the highest ecclesiastical tribunal is necessary in order to protect the free exercise of those who formed the association and submitted themselves to its authority.

Where a conflict exists between the health of the community and the religious conscience of an individual or group, there is little doubt that the free exercise clause does not mandate risk to the community. Thus, as the Court held in jacobson v. massachusetts (1905), compulsory vaccination against communicable diseases is enforceable notwithstanding religious objections to the procedure. So, too, fluoridation of municipal water supplies to prevent tooth cavities cannot be enjoined because of objection by some that drinking fluoridated water is sinful.

Where the life, health, or safety of individuals, rather than communities at large, is involved the constitutional principles are also fairly clear. When the individuals are children, a court may authorize blood transfusions to save their lives notwithstanding objection by parents (such as Jehovah's Witnesses) who believe that the procedure violates the biblical command against the drinking of blood. The underlying principle was stated by the Court in prince v. massachusetts (1944) upholding the conviction of a Jehovah's Witness for violating the state's child labor law in allowing her nine-year-old niece to accompany and help her while she sold the sect's religious literature on the city's streets. "Parents," the Court said, "may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." It follows from this that unless mental incompetence is proved, a court may not authorize a blood transfusion upon an unconsenting adult.

The Court also balances competing interests in determining the constitutionality of enforcing compulsory Sunday laws against those whom religious conscience forbids labor or trade on the seventh rather than the first day of the week. In mcgowan v. maryland and Two Guys from Harrison-Allentown v. McGinley (1961) the Court upheld the general validity of such laws against an establishment clause attack. Although their origin may have been religious, the Court said, the laws' present purpose was secular: to assure a weekly day for rest, relaxation, and family companionship.

Two other cases, Gallagher v. Crown Kosher Super Market (1961) and Braunfeld v. Brown (1961), decided at the same time, involved Orthodox Jews who observed Saturday as their day of rest and refrained from business on that day. In these cases the Court rejected the argument that requiring a Sabbatarian either to abstain from engaging in his trade or business two days weekly or to sacrifice his religious conscience, while requiring his Sunday-observing competitors to abstain only one day, imposed upon the Sabbatarian a competitive disadvantage, thereby penalizing him for his religious beliefs in violation of the free exercise clause. Exempting Sabbatarians, the Court held, might be administratively difficult, might benefit non-Sabbatarians motivated only by a desire for a competitive advantage over merchants closing on Sundays, and might frustrate the legitimate legislative goal of assuring a uniform day of rest. Although state legislatures could constitutionally elect to grant an exemption to Sabbatarians, the free exercise clause does not require them to do so.

In sherbert v. verner (1963), however, the Court reached a conclusion difficult to reconcile with that in Gallagher and Braunfeld. Denial of unemployment insurance benefits to a Seventh-Day Adventist who refused to accept tendered employment that required working on Saturday, the Court held, imposed an impermissible burden on the free exercise of religion. The First Amendment, it said, forbids forcing an applicant to choose between following religious precepts and forfeiting government benefits on the one hand, or, on the other, abandoning the precepts by accepting Sabbath work. Governmental imposition of such a choice, the Court said, puts the same kind of burden upon the free exercise of religion as would a fine imposed for Saturday worship.

The Court upheld statutory tax exemptions for church-owned real estate used exclusively for religious purposes in walz v. tax commission (1970), rejecting an establishment clause attack. In Murdock v. Pennsylvania (1943) and Follett v. Town of McCormack (1944), however, the Court ruled that under the free exercise clause a revenue-raising tax on the privilege of canvassing or soliciting orders for articles could not be applied to Jehovah's Witnesses who sold their religious literature from door to door; in the same cases, the Court stated that an income tax statute could constitutionally be applied to clergymen's salaries for performing their clerical duties.

In United States v. Lee (1982) the Court upheld the exaction of social security and unemployment insurance contributions from Amish employers. The employers argued that their free exercise rights had been violated, citing 1 Timothy 5:8: "But if any provide not…for those of his own house, he hath denied the faith, and is worse than an infidel." Compulsory contribution, the Court said, was nonetheless justified; it was essential to accomplish the overriding governmental interest in the effective operation of the social security system.

To sum up, the Supreme Court's decisions in the arena of religious liberty manifest a number of approaches toward defining its meaning, specifically clear and present danger, the balancing of competing interests, and the establishment of a compelling state interest justifying intrusion on free exercise. On the whole, the Court has been loyal to the original intent of the generation that wrote the First Amendment to accord the greatest degree of liberty feasible in our society.

Leo Pfeffer

(see also: Widmar v. Vincent.)


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Manwaring, David R. 1962 Render unto Caesar: The Flag Salute Controversy. Chicago: University of Chicago Press.

Pfeffer, Leo (1953) 1967 Church, State and Freedom. Boston: Beacon Press.

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——and Pfeffer, Leo 1965 Church and State in the United States. New York: Harper & Row.

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