fbpx

Freedom of Religion … But What is a Religion?

First Amendment, Not What You Think
October 11, 2020
Lawyer Reacts to Wedding Crashers Mediation Scene
October 26, 2020
Show all

The First Amendment, Freedom of Religion is much more exciting than you imagine.  It involves hangings, wedding cakes, multiple wives and flying monsters. 

Modern American history is not as religiously tolerant as you may believe. The first settlers in Boston were Puritans and a lady named Mary Dyer was a Puritan who, contrary to the teachings of the church, believed that God spoke directly to people and not to the people only through the clergy.  Well, that’s interesting that she thought that, you might think – probably not a lot of people talked to her after church on Sundays…maybe she wasn’t invited to the church bake sale.  Not a big deal – Nope! The laws enacted by the Boston area settlers was a little more Old Testament than that and Mary Dyer was hung for those religious beliefs on June 1st, 1660.  Not very tolerant back then in Boston. But don’t worry Boston, all is forgiven as you also birthed the New Kids on the Block.  Thank you Boston.

So that was the state of religious freedom in the colonies up to the drafting of the Constitution so we can all thank Thomas Jefferson for his insistence on the inclusion of religious freedom into the US Constitution. “Congress shall make no law respecting the establishment or the prohibiting the free exercise of religion” is what it says.

There are two parts to the that sentence – the first part is the “establishment” part and that is where we get the “separation of church and state” that you might have heard of.  No where is “separation of church and state” written in the Constitution but the Courts have put that phrase together over the years interpreting the “Congress shall make no law regarding the establishment of religion” part.  And the second part is the “no prohibition of the peoples exercise of free speech.”  We’ll analyze the Freedom of Religion part shortly – but the first question is “What is a religion?”

At first you might think that whether something is a “religion” is easy, kinda like how Justice Stewart said about pornography “I know it when I see it.”  But take a second to think about it and it’s not that simple.  The Mormon church stems from Joseph Smith’s visit from God and his translation of Egyptian texts given to him by angels in 1827.  In the legal world, Mormons were best known for their former practice of polygamy and their run-ins with the law because of it.  Fortunately, Mormons early on were considered a religion and most of the time convictions for polygamy were successfully defended on First Amendment bases.

As a brief aside – for you young guys out there who hear “polygamy” and get all excited.  I’m married … to a woman … trust me, one is enough.  Quick Joke: What’s the legal punishment for having two wives?  Two mother-in-laws.

In any case, the Supreme Court eventually gave us a tidy definition of religion in 1944 in United States v. Ballard. In that case Mr. Ballard was charged with fraud for asking people for money to heal them – a pretty standard con back in the day. Mr. Ballard alleged at trial something very similar to what John Smith had said 100 years before in founding the Mormon religion– that he was visited by Angels and given special knowledge.  But Mormonism was and is  religion and Ballardism was found not to be.  The Court held that a religion is a sincere and meaningful belief that occupies in its possessor’s life the same place that  a Supreme being holds in more common religions.  Ballardism was not a religion because the trial court found that Ballard did not really believe that he had been visited by angels.  The test is one of sincerity of belief and Ballard was not able to impress upon the jury that he truly believed in his own holiness.

Also a religion?  Scientology.  Yes – because it does teach a sort of reincarnation concept and discusses mankinds role in the universe. So Tom Cruise – you keep doing whatever you do to keep looking young, it’s all legal.

Not a religion?  Pastafarianism.  Pastafarianism is a religion created in 2005 to protest the teaching of creationism in classrooms.  Its belief is that the world was created by an invisible flying monster made of spaghetti (hence PASTAfarianism).  The idea was great, Google it some time, but there are no trappings of sincere belief such as donations to Italian restaurants or not eating grain-based noodles so unfortunately, not a legal religion.  But maybe someday if people truly believe …

Ok, so now that we have a legal definition of what a religion is, you can do whatever you want as long as it’s your religious belief right?  That’s what the First Amendment says!  Not. So. Fast.

In  1988 two members of a Native American Church used peyote – a mild psychoactive drug – before work and were fired for misconduct – a lawsuit ensued with the peyote users arguing that their use of peyote was protected by the First Amendment because peyote is used in religious ceremonies.

Here’s what peyote looks like – ugly bulbous thing.  But did you know peyote has been used in central America for pain and other things for over 5,000 years?  It was even given to women during childbirth – I know I could have used some while my wife was giving birth.

So back in 1988 a shipment of peyote was confiscated and a lawsuit ensued and ended up in the U.S. Supreme Court.  The Court in it is analysis gave us the framework for a religious freedom test of law:  a law which is “neutral” in its language – in other words, a law that doesn’t single out a religion or religious belief, can prohibit a valid religious act IF the government has an interest in the prohibition.  And in the case of Peyote, the Court found that the government does have an interest in restricting usage and sale of psychoactive drugs – therefore the law was upheld.

The peyote case was followed by a case in 1993 involving ritual slaughter of animals in the Santeria religion down in Miami.   Santeria is an interesting religion and of course was made famous by Sublime in its song Santeria. Great song.  Anyways, when the City heard that the Santeria church was going to be slaughtering animals, they said “that’s barbaric” we can’t allow that to happen here (probably discussing it at lunch over hamburgers and fried chicken legs).  The law they wrote specifically outlaws “sacrifice of animals for any type of ritual.”  There was of course a lawsuit and it did get to the Supreme Court who said that this case was very different from the Peyote case because the law was specifically targeted at religious beliefs and not “neutral” and therefore the Court had to have not just an interest, but a “compelling” interest in the outlawed activity and the Court held that the record did not contain any compelling interest at all – just some kind of Puritan prohibition against sacrificing animals.

Which brings us home to the 2018 case of the bakery whose owner refused to bake a wedding cake for a gay couple – citing his religious beliefs against gay marriage. You may have heard of this case.

But now you know the legal analysis:

  1. Is there a religion involved?  The owner was Christian so yes, that’s a recognized religion.
  2. Was the law “neutral” towards religion?  Here the Court said that the law was not neutral because the records before it showed the intent as applied was in essence hostile towards the owner’s religion. And therefore, step 3 – the State had to show a compelling interest in forcing the owner to bake the gay couples cake and the State failed to show a COMPELLING interest because there were numerous other bakeries the couple could go to in order to get their cake.

The law was unconstitutional as applied to the bakery. Speaking of bakery, I am getting hungry and gotta go. 

Jeremy Hogan
Jeremy Hogan
Attorney Jeremy Hogan is a partner at Hogan & Hogan.