It’s been almost 18 months since the unexpected death of my husband at our home. That clear January night I waited in my driveway for the helicopter that never came. Emergency personnel had obviously rescinded the request when they realized it was too late. Although stunned, I was looking with wonder at the stars that seemed so close.
Among the thoughts racing through my head were German philosopher Immanuel Kant’s words: “Two things fill the mind with ever new and increasing admiration and awe ... : the starry heavens above me and the moral law within me.”
More than ever now, I want to believe in an infinite God who created a vast, expanding universe and also created that inner moral voice that we can hear if we listen, that stamp of the Creator on the created.
I want to believe as a matter of choice, not as a matter of something dictated by a theocratic government. And so it is that I value the First Amendment’s protection of religion at least as much as its protection of freedom of expression.
In the Bill of Rights, freedom of religion is the first right listed: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... .” Of course, the right to freedom of religion includes the right to be free from religion.
Like freedom of expression, the right to freedom of religion isn’t absolute.
If a religion dictated that human sacrifices be made to appease the gods so crops would grow, that clearly wouldn’t be allowed. An Aztec state of mind wouldn’t be tolerated here.
Animal sacrifices, however, are acceptable to the U.S. Supreme Court. In 1993, in Church of Lukumi Babalu Aye v. City of Hialeah, the Court ruled unanimously that ordinances banning animal sacrifice violate the First Amendment’s “free exercise” clause. The religion involved, called Santeria, began in Cuba. It practices ritual sacrifice of animals, which, according to the Court’s list, “include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles.”
The Court made clear that animal sacrifice is part of mainline religions: “Animal sacrifice is mentioned throughout the Old Testament, ... and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son.”
While the free exercise clause permits animal sacrifice, it doesn’t permit something else that’s mentioned in mainline religious works — multiple spouses. King Solomon, according to the Bible, 1 Kings 11:3, had 700 wives and 300 concubines. One man, 1,000 women. Incredible!
Free exercise of religion certainly doesn’t mean a creep wanting to marry a harem of child brides could legally do so. For example, Warren Jeffs married a 15-year-old and a 12-year old. In 2011, he received a sentence in Texas of life plus 20 years. Neither polygamy nor marriage to children fly under U.S. law.
In 1879, in Reynolds v. United States, the U.S. Supreme Court rejected the notion that laws outlawing polygamy couldn’t apply to persons engaging in polygamy as part of their religion.
How about refusing to pay taxes because of religious objections to war? That doesn’t work, either. Government can require conduct despite claims of religious objections. Paying taxes is a prime example. United States v. Lee involved an Amish employer who wanted to be exempt from paying Social Security taxes. Lee argued that his faith didn’t permit paying those taxes or receiving Social Security benefits. But in 1982, the Supreme Court ruled against this religious objection.
The Court said, “There is no principled way ... to distinguish between general taxes and those imposed under the Social Security Act.” For example, some people who consider war sinful might object to paying income taxes used to wage war. The Court protects the tax flow from religious objections: “The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”
But in 1972 in Wisconsin v. Yoder, the Supreme Court decided that Amish parents can refuse on religious grounds to send their children to public high schools.
Say, on religious grounds, a prisoner wants a beard. Prisoners can’t be denied that right, the Supreme Court unanimously decided in 2015 in Holt v. Hobbs, because that would violate a federal law: the Religious Land Use and Institutionalized Persons Act. A Muslim imprisoned in Arkansas wanted a half-inch beard. In 2017, the U.S. Court of Appeals for the 5th Circuit ruled in favor of a Louisiana prisoner who wanted to wear dreadlocks as a tenet of the Rastafari religion.
What about peyote use as a religious practice? It does fly under U.S. law, but it has an interesting history. In 1990 in Employment Division v. Smith, the Supreme Court decided, 6-3, that Oregon could deny unemployment benefits to two Native Americans who had been fired for using peyote, a controlled substance under Oregon law.
According to the Court, the two “were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church ... .” They applied for unemployment benefits and were ruled ineligible because, the Court said, “they had been discharged for work-related ‘misconduct.’”
The Oregon Supreme Court had decided that prohibiting religious use of peyote violated the First Amendment’s “free exercise” clause. But the U.S. Supreme Court disagreed: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
But the high Court didn’t get the last word. In 1994, Congress passed 42 United States Code § 1996a, which carries this heading: “Traditional Indian use of peyote.” It says that “for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life,” and “since 1965, this ceremonial use ... has been protected by federal regulation.” But while at that time 28 states protected religious use of peyote, 22 didn’t, creating “hardship.”
Congress then specifically mentioned the Supreme Court’s peyote decision and concluded that “the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures ... .” So Congress declared that peyote use “by an Indian for bona fide traditional ceremonial purposes” is legal. Period. This use “shall not be prohibited by the United States or any State.”
In other words, Native Americans can get “stoned” on peyote as part of their religious freedom. That certainly is an improvement over the Biblical version of getting stoned in Leviticus 24:16: “And he that blasphemeth the name of the Lord, he shall surely be put to death, and all the congregation shall certainly stone him ... .”
Freedom to worship as one pleases or not to worship at all, the first right of the First Amendment, is arguably the most basic right our Constitution provides.
Sandy Davidson, Ph.D., J.D., teaches communications law at the MU School of Journalism. She is a curators’ distinguished teaching professor and the attorney for the Columbia Missourian.