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 Chapter 7

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 Constitution.

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 government.

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 opinion:

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 courts.

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 ruling.

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 saying,

"The problem with the decision is that the United States Supreme Court has gutted the free exercise clause of the first amendment. "

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 government.

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 duty.

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 interest; and

(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 not provided.

(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.

 

 


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