Regardless of What You Believe

In 1875 George Reynolds, a member of the Church of Jesus Christ of Latter Day Saints (LDS), and a secretary to Brigham Young, was indicted for the crime of bigamy. [1] [2] It was an accepted doctrine of the LDS Church that its male membership was under a duty, if circumstances permitted, to practice polygamy. Reynolds requested the trial court to instruct the jury that he should be found not guilty if he was married to more than one wife because of what he believed to be his religious obligation. The trial court refused to give that instruction, and Reynolds was convicted.

The case made its way to the United States Supreme Court, in order to decide the question of “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.” In deciding that it could not the court said, “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” The religious freedom guaranteed by the First Amendment protects only beliefs, the court held, not actions based on those beliefs. 

Years later, in 1963, the Supreme Court confronted another religious freedom case in Sherbert v. Verner. [3] In this case, Adell Sherbert, a member of the Seventh Day Adventist Church, was fired by her employer because she would not work on Saturdays because of the tenets of her religion. She had difficulty finding other work because of her scruples about working on Saturday, so she applied for unemployment compensation. Her application was denied under her state’s unemployment compensation law on the stated ground that she had turned down employment without good cause, her religious concerns about working on Saturday not being deemed such.

The court determined that if the law that denied Ms. Sherbert unemployment benefits was to survive a constitutional challenge, it would have to be because her disqualification as a beneficiary represented no infringement by the state of her constitutional rights of free exercise, or because any incidental burden on the free exercise of her religion could be justified by a “compelling state interest” in the regulation of a subject within the state’s constitutional power to regulate. In order to demonstrate a compelling state interest, the state would have to show that there were no alternative actions it could take that did not infringe religious freedom. The court found that the state law that resulted in the denial of unemployment benefits to Ms. Sherbert did not pass constitutional muster, and the Sherbert case thus established the “compelling government interest” test for the evaluation of cases where infringement of the constitutional right to the free exercise of religion was claimed. 

Then, in 1990, the Supreme Court reversed course in Employment Division v. Smith. [4] This was another case involving unemployment benefits. Here, Alfred Smith and Galen Black 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, of which they both were members. When they applied for unemployment compensation they were determined to be ineligible for benefits because they had been discharged for work-related “misconduct.” 

But this time the court reached a different conclusion, and applied different reasoning, than it did in the Sherbert case. Noting that ingestion of peyote was against the law for everybody in Smith’s and Black’s state, the court concluded that if prohibiting the exercise of religion is not the object of a law, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. The court even quoted from the Reynolds case in saying that laws “‘are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . .’” Smith’s and Black’s free exercise of religion challenge was, accordingly, rejected. 

There was general public outrage at the Smith decision, and Congress responded with the passage of the Religious Freedom Restoration Act (RFRA). [5] The act provides that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest. The act essentially restored the test established in the Sherbert case for evaluating infringement of religious freedom claims.  

Congress intended the RFRA to apply to the actions of both state and federal governments. But the Supreme Court subsequently held that Congress does not have the constitutional authority to impose such restrictions on state governments. [6] Thus, the RFRA passed by Congress imposes a limit only on federal government actions. As a result, 21 states have passed their own versions of the RFRA [7], the most recent being Indiana.  

Indiana’s law provides that “a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability,” except that a “governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.” [8] In other words, Indiana has specifically rejected the holding of the Smith case (which it may certainly do for cases decided under its own constitution), and established the test of the Sherbert case. 

Strangely, both opponents and proponents of Indiana’s law have claimed that it, in its original form, afforded new rights to discriminate against LGBT individuals. Certainly, if Indiana’s law had that effect, so does the federal RFRA, and the similar laws in 20 other states ought to be subjected to similar scrutiny. What’s more, the Sherbert case must have granted such rights back in 1963, before the Supreme Court returned to its older jurisprudence in the Smith case. The constitutional standard that would have prevented a state from prohibiting a sacramental practice of the Native American Church turns out to be a discriminatory tool according to this way of thinking.

All of this is nonsense, of course. The “compelling government interest” test restored by the RFRA and Indiana’s law has nothing to do with discrimination, and everything to do with protecting citizens against governmental anti-religious zealotry. But it doesn’t matter. The media controls the message, and noted personalities have spoken out and boycotts have been announced. As a result, Indiana’s governor “has signed into law a measure aimed at removing fears that the state's new ‘religious freedom’ law would allow businesses to discriminate against gays and lesbians.” [9] The Indiana law in question now provides that it does not authorize the refusal to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service. [10] 

Now it is to be admitted that the Indiana law, in its original form, might have protected bakers of wedding cakes and wedding photographers from participating in same sex weddings if doing so would violate their religion, though it would not necessarily have had that effect. Your humble servant lacks the theological training to pass on whether and to what extent Catholic bakers and photographers are involved in this connection. He will defer to the Magisterium in any event. But whether or not Catholics are properly involved in this particular controversy, the Catechism informs us that “Man has the right to act in conscience and in freedom so as personally to make moral decisions. ‘He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.’” [11]  

But there is a serious issue pertinent to public order involved in laws that impinge on religiously inspired conduct, because, in the final analysis, there is never a real question of compelling a seriously religious person to violate the tenets of his faith. A person who is a true adherent of his faith will not violate the requirements of his religion, even if the government would compel him to do so. As Peter and the other apostles said to the council, “We ought to obey God, rather than men.” (Acts 5:29) Thus a law that would compel a person to violate his religion is really a law that will accomplish nothing but fining that individual, or, perhaps, incarcerating him. It will not make him acquiesce to the behavior desired if he is serious about his faith. This is something every legislator should consider when setting public policy.


Jack Quirk