Erosion of the First Amendment
SECULAR and religious writers alike recognize a
dramatic shift in the interpretation of the First Amendment of the Bill of
Rights. The most significant ruling came in a case sometimes called
"Smith versus the State of Oregon," alternatively the
"Peyote case," handed down by the Supreme Court April 17 1990.
The case involved two American Indians who were drug
counsellors on an Indian reservation in the state of Oregon. The two
counsellors had admitted that they ingested peyote during a religious
ceremony. The state of Oregon had argued that that act disqualified them
as suitable counsellors. The defendants claimed that because the ingestion
of peyote was part of the ancient religious services of the Indians, its
use in religious services was protected by the First Amendment to the
Precedent for this claim was cited from the prohibition
days, when exceptions were allowed for Roman Catholics and some Protestant
groups who used fermented wine in the communion service.
However, the Supreme Court by a six-to-three vote
upheld the dismissal of these workers. Only the three well-known liberal
justices of the time, Justices Harry A. Blackmun, William J. Brennan, and
Thurgood Marshall, accepted the protection of the first amendment as
covering the counsellors’ right to use peyote during a religious
service. We do not wish to comment upon the rights or wrongs of that
particular decision. However, in a somewhat unusual move, Justice Sandra
Day O’Connor, while voting with the majority on the specific case,
vigorously objected to the majority opinion as written by Justice Antonin
Scalia. Rather than rendering a relatively narrow opinion, Scalia chose,
with the support of four other justices, Chief Justice William Rhenquist
and Justices Byron White, John Paul Stevens, and Anthony Kennedy, to
greatly widen the impact of the decision. To most reviewers, the ruling
indicated a dramatic departure from the time-honored American heritage of
protecting the religious rights of minority groups. In what became a
famous report on the decision, David Savage, of the Los Angeles Times, wrote,
In what was called a "radical departure" from
previous rulings protecting religion, the Supreme Court Tuesday forcibly
declared that it would no longer shield believers whose practices violate
general laws. Los Angeles Times, April 18 1990
Savage went on to report,
Religions that are out of the mainstream are most
likely to be affected, because their unconventional practices and lack of
political clout have led them to depend upon the courts for protection.
In reviewing Scalia’s ruling Savage wrote,
But in a sweeping opinion, Justice Antonin Scalia went
far beyond the case and declared that when religious rights clash with the
government’s need for uniform rules, the court will side with the
Even for lay members of the community, this decision
dramatically eroded the protection given to those citizens who were
members of churches not part of the popular or mainstream churches of
America. Savage went on to report,
We cannot afford the luxury "of striking down laws
simply because they limit someone’s religious practice." Scalia
said. He advised religious adherents to look to the political system, not
to the courts for protection.
Such a statement had a hollow ring. A major purpose of
the legal system should be to protect minorities against the majority. The
political system, on the other hand, by its very nature caters to
majorities, for it is majorities who make the larger impact at the ballot
box. It is hard to imagine politicians consistently supporting minority
groups, especially small minorities, who have little effect upon the
outcome of an election.
The architects of the Bill of Rights sought to
safeguard the rights of minorities through the First Amendment. It would
not be going too far to suggest that Scalia’s opinion was a direct
violation of the Constitution of the United States. We question how
justices who had sworn to uphold the Constitution of the United States
could have rendered such an opinion. We are even more surprised that the
majority of the citizens of the nation, or alternatively the members of
Congress, did not rise up more decidedly against such a decision. It would
seem that only a minority of Congressional members held deep concerns
about this ruling.
Naturally the ruling sent nervous shivers into the
midst of the many minority groups in America—not religious minorities
only, but all minority groups in the nation. The question was asked, Could
this lead to the return of the persecution that was all too apparent in
early American History? It would seem to us that such a decision, in the
face of the clear intent of the first amendment, should have been grounds
for impeachment of the justices who formed the majority opinion.
That Scalia, and presumably the other justices, knew
exactly what they were doing, was plain from the words chosen to express
The new ruling "will place at a relative
disadvantage those religious practices that are not widely engaged
in," Scalia conceded, "but that unavoidable consequence of
democratic government must be preferred to a system in which each
conscience is law." Ibid.
It is evident that Scalia saw his opinion as trampling
upon the conscience of minorities. Whence could such a concept come within
the boundaries of the Supreme Court? The foundation for such a decision
comes from a concept of majoritarianism now strongly being taught in many
of the law schools of the United States. Majoritarianism is based on the
idea that laws should be built upon the common practices and beliefs of
the majority of the citizens of the United States: thus decisions should
be made in favor of the majority concepts of mainstream America. The more
liberal law schools, including Harvard, have avoided teaching this
concept. But a conservative Supreme Court was established during the
Reagan-Bush era through the practice of appointing no "liberal"
justices to the court.
Of great significance was the dissenting opinion of one
member of the Supreme Court,
Justice Sandra Day O’Connor, normally on the
conservative side, voted with the majority on the Peyote Case. But she
objected strongly to Scalia’s opinion, which will be binding on lower
His opinion "is incompatible with our nation’s
fundamental commitment to individual religious liberty," she wrote,
"in my view the first amendment was enacted precisely to protect the
rights of those whose religious practices are not shared by the majority
and may be viewed with hostility."
The court dissenters said Scalia’s opinion
effectuates a wholesale overturning of settled law concerning the
religious clause of our Constitution. Had his opinion been law during
prohibition, they noted that government could have banned the use of
sacramental wine during communion. Savage
Savage also quoted the opinion of legal experts:
Legal experts on religion said the opinion marked a
sharp change in the court’s doctrine, and could affect mainstream
religions. For example, one noted that the Roman Catholic Church’s
practice of ordaining only men required that they be exempted from laws
banning sexual discrimination.
While such a conclusion is unlikely because Roman
Catholicism is now considered part of the mainstream of religious life in
America, nevertheless the implication for minority groups would be broad.
Savage pointed out that the Supreme Court has in the past strongly
shielded minority religions such as Jehovah’s Witness and the Amish,
believing that their decisions were fundamental to the first amendment’s
protection of the free exercise of religion.
In his article Savage noted some of the classical
examples of the past when the Supreme Court sometimes rendered unpopular
decisions to uphold the principle of the first amendment. Here are a
number of the examples he quoted.
In the 1940s, in response to appeals from Jehovah’s
Witnesses, the court struck down general laws banning door to door
soliciting. In 1943 in the middle of World War II, the justices struck
down all the mandatory flag-salute laws in the public schools because
children of Witnesses refused to salute the secular symbol.
In 1963, in a much quoted opinion, the court said that
states could not deny unemployment benefits to Seventh-day Adventists who
refused to work Saturdays. Even as late as 1972, the court exempted Amish
children from compulsory school laws. Savage
Surely this was the Supreme Court acting at the highest
level and intent of the first amendment. No longer can minorities expect
such protection. We believe that such decisions could not have held sway,
had the general citizenry of the nation risen up against such
unconstitutional opinions. It is a passive citizenry that permits the
erosion of freedom.
The impact of the Smith versus Oregon case became
apparent very quickly. Less than a year later, in an article by Ruth
Marcus in the Washington Post of March 9 1991, some examples were
given. We quote from that article,
For more than fifteen years, members of the Sikh
Religion, who wear turbans, received an exemption from the federal
regulation requiring construction workers to wear hard hats.
Last November, the Occupational Safety and Health
Administration lifted the exception. The agency was not responding to
reports of injuries but to a Supreme Court ruling on a seemingly unrelated
topic. Washington Post, March 9 1991
That unrelated topic was the ruling of the Supreme
Court in favor of the state of Oregon in the Peyote case detailed above.
When Laotian immigrant Neng Yang died suddenly at age
23, the Rhode Island medical examiner insisted on performing an autopsy.
He overrode the wishes of the man’s parents, Hmong refugees whose
religion views autopsy as an abhorrent mutilation of the body that
prevents the spirit from being set free.
Yang’s parents filed suit claiming that the forced
autopsy infringed on their religious freedom. In January 1990 U. S.
District Judge Raymond J. Pettine upheld their claim. Ten months later
when Pettine was deciding how much money the family should be rewarded the
judge announced—"With deep regret" and "the deepest
sympathy to the Yangs"—that the Smith decision forced him to
reverse his ruling. Marcus
This case is worthy of note. That the claim of the
Yangs was genuine, can be attested by Russell, who spent almost twenty
years as a physician to Buddhists in Thailand, Malaysia, and Singapore.
Never once did relatives grant permission for an autopsy upon the
deceased. It was believed that the autopsy would disturb the spirit of the
dead person. While not sharing this religious conviction, Russell never
breached this Buddhist tenet.
Significantly, this case occurred in the state of Rhode
Island, the very first colony ever to guarantee religious liberty to its
citizens under the wise guidance of Roger Williams.
Further, it will be noted that Judge Pettine found in
favor of the Yangs in January 1990, three months prior to the
"Smith" decision. When he returned to rule on damages in
November, 1990, seven months after the Supreme Court decision
concerning the Smith v. Oregon case, he felt bound by the Supreme Court
Thus the Supreme Court decision had effectively
destroyed the religious liberty of the Yangs. It seems incredible that
five American Justices of the Supreme Court could deprive over a quarter
of a billion citizens of their religious liberty while the Constitutional
guarantee of such liberty was still unaltered.
It is a most serious matter when the Supreme Court
feels at liberty to override the Constitution. Since the justices hold
their posts for life, and thus do not have to face election periodically,
such decisions are even more dangerous. Other lower court decisions
influenced by the Peyote case are cited below.
Just one week after the Smith decision, the justices
overturned a Minnesota Supreme Court ruling that it was a violation of the
free exercise right of an Amish man to display a fluorescent orange
triangular emblem on his buggy—something the Amish consider an improper
worldly symbol. The justices instructed the Minnesota court to reconsider
that decision in the light of Smith.
The justices this week overturned a Washington state
ruling granting a church an exemption from Seattle’s historic
preservation law. They ordered the Washington Supreme Court to review
Smith in reaching its decision. The court also declined to hear a case in
which a federal appeals court, citing Smith, rejected a New York church’s
attempt to overturn its landmark designation.
The Federal Appeals Court in Chicago ordered a lower
court to review a Muslim prison inmate’s complaint about meals
containing pork but noted that "Smith" cut back, possibly to
minute dimensions, the doctrine that requires government to accommodate,
at some cost, minority religious preferences. Marcus
The Washington Post article quoted Forest
Montgomery, counsel for the National Association of Evangelicals, as
"The problem with the decision is that the United
States Supreme Court has gutted the free exercise clause of the first
The article also quoted University of Texas law
professor Douglas Laycock as saying,
"Smith is being taken for all it is worth,"
by lower courts handling religious freedom cases.
Clearly the Supreme Court now views itself as a second
legislature. Instead of delivering judicial decisions on the basis of laws
made by elected legislators and the executive, the Supreme Court now
enacts laws of its own devising. Again we would emphasize that such
unwarranted action of the judiciary is fraught with great peril. Since
Supreme Court justices are not subject to the elective process and are
elected for life, the citizens have no way in which they can express their
dissent from the actions and enactments of the Court. Never should the
justice system be permitted to enact laws. This is not its proper
function. That function belongs to the legislative and executive arms of
President Bill Clinton satisfied some by introducing
the Religious Freedom Restoration Act in 1993. This act did proclaim the
serious consequences of the Smith (Peyote) decision in 1990. In Section 2,
subsection (a), Article 4 of the Act it was stated that—
In Employment Division v. Smith, 494 U.S. 872 (1990)
[the Peyote Case] the Supreme Court virtually eliminated the requirement
that the government justify burdens of religious exercise imposed by laws
neutral towards religion.
However, the law suffers from two serious impediments.
The first was that it has been found necessary to enact religious freedom
in Congress. This should be totally unnecessary, since such freedom is
guaranteed by the Constitution. Once a freedom is reduced to guarantees by
law, then it is evident that the same body, the Congress, with
Presidential consent, can remove that freedom in defiance of the
Constitution. It would have been of far greater worth had Congress
impeached the five Justices for their effort to destroy the First
Amendment through the judicial processes. This would have sent a powerful
signal to all future justices to remain within their proper sphere of
The second impediment was that in Section 3, Subsection
(b) of the Religious Freedom Restoration Act, exceptions were provided to
the provision of religious liberty. This Subsection stated,
3(b) EXCEPTION.—Government may substantially burden a
person’s free exercise of religion only if it demonstrates that
application of the burden to the person—
(1) is in furtherance of a compelling governmental
(2) is the least restrictive means of furthering that
compelling governmental interest.
Manifestly, future governments would be left to
interpret "governmental interest" to their own benefit. The Act
left the door open to religious persecution. This was a matter of no
little import for the future of American religious liberty.
A deeply divided Supreme Court on July 2 1997, cut down
the Religious Freedom Restoration Act. This confirmed the Court’s
decision to support its 1990 opinion in Smith versus the State of Oregon,
which greatly limited the religious freedom guaranteed in the Bill of
Rights. No one who cherishes the hard-won freedom of the past can remain
passive in response to these most dangerous Supreme Court decisions.
While not related directly to the Smith case,
nevertheless we must recognize the powerful impact of majoritarianism in
decisions handed down involving child custody cases resulting from divorce
proceedings. Here are four examples, the first three of which are
personally known to Colin. To protect the individuals concerned, names are
(1) Arizona. A husband and wife had separated and
finally divorced over the alleged incestuous approaches of the father to
the two children. The wife, a devout Christian, held principles which
included a vegetarian diet and no television in the home. Before the judge
ruled on custody, the father and mother were required to undergo an
extensive psychological test evaluation. The test revealed the mother to
be a well adjusted woman, while the father showed evidences of
maladaption, deception, and unreliability. Naturally the mother was
confident of the outcome of the judge’s ruling. But the husband employed
a very shrewd lawyer who painted the mother as fanatical and over-strict
with her children. To her consternation the judge, no doubt following
majoritarian principles, gave custody to the father.
(2) Maryland. A mother, also with deep Christian
principles similar to those in the Arizona case, was, in addition, home
schooling her children. Before the trial, Colin warned her to hire the
very best counsel and experts on health and education that she could. But
unfortunately she did not follow that advice, and she too lost custody to
a husband of doubtful character.
(3) Massachusetts. The outcome of this case was
entirely different. The mother, unhappy with public school and even
Christian school education, had decided to home school her daughter. The
mother, a trained nurse, also possessed very high Christian standards,
even to the point of the daughter being reared on a regimen of two meals a
day. In the providence of God, the regular judge was sick the day of the
trial and a retired judge replaced him. This judge no doubt was trained
long before the principles of majoritarianism were taught in the law
schools of America. This father, too, attempted to point out the
"fanaticism" of his former wife, but at this hearing the judge
made it plain that he thought her a very responsible mother. As a trained
nurse, she explained what she had observed in the lives of those who were
not careful in their dietary habits. The judge, in ruling in favor of the
mother, said that in his own family, his children would have been worth
nothing if he had not been careful in controlling their dietary habits.
(4) Nebraska. The Supreme Court of the state of
Nebraska in 1990 ruled that a Jehovah’s Witness father could not teach
his daughter Jehovah’s Witness belief in competition to his divorced
wife’s Roman Catholic faith when he had the daughter for visitation. He
was warned that if he taught Jehovah’s Witness beliefs to his daughter
he would lose his visitation rights.
Surely this is yet another nail hammered into the
coffin of religious liberty. These are not isolated issues. They are
representative of an increasing number of decisions that are being made in
the lower courts of America. Parents who are members of minority church
groups and hold high moral and spiritual principles are increasingly
losing custody of their children to parents of questionable morality who
are following the crumbling standards of mainline America today. These
decisions are contributing greatly to the erosion of the principles
enshrined in the First Amendment. Only as those who are in the main line
of American thought and practices see the need to protect the rights of
those who are minorities, will there be any hope of reversing this most
dangerous trend in the nation.