The Belief-Conduct Distinction .--While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause 'embraces two concepts-- freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.' [In england establishments or specific religions must be approved. Puritanism is forever disavowed. Islam, Catholicism, And Wicken are lawfully recognized establishments] In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws 'cannot interfere with mere religious beliefs and opinions, they may with practices.' 190 The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases, 191 but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause. 192 Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was 'compelling' and if no alternative forms of regulation would serve that interest was the claimant required to yield. 193 Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection. Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow. Next the Court held that the test is inappropriate in the contexts of military and prison discipline. Then, more importantly, the Court ruled in Employment Division v. Smith that 'if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.' 195 Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. No compelling interest in use of peyote. - See more at: constitution.findlaw/amendment1/annotation05.html#2
Posted on: Fri, 02 Aug 2013 22:19:27 +0000
Trending Topics
Recently Viewed Topics
© 2015