Native American Indian

Religious Freedom

by Craig R. Smith

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Freedom of Conscience and Freedom of Expression

In the previous chapters, we learned that colonial preachers played an active role in the debate over the founding of the country, the revolution and the ratification of the Bill of Rights. The tradition of ministers and priests criticizing government policy can be traced to the beginning of time. In most ancient cultures, oracles were consulted before decisions were made. In the Bible, Moses and Jesus are portrayed as political as well as religion leaders; both bring "laws" to their followers, laws which not only govern religious conduct, but civic conduct as well. Confucius and Mencius in China as well as Buddha in India established religious tenets that had political impact.

Medieval popes acquired large land holdings, called for holy wars, and one, Julius II, even took part in battles to secure his beloved Papal States. During the Renaissance, as we saw in Chapter One, Martin Luther led the Protestant reformation of the church, but also wrote political tracks and condemned the revolt of the German peasants. Jesuit priests became close advisors to such political leaders as Queen Mary Tudor of England, Queen Isabella of Spain, and King Louis XIV of France. Henry VIII and Oliver Cromwell were not only heads of state but heads of their respective religion sects.

Thus, it should come as no surprise that religion and politics were blended in the American colonies. What was new to the mix was the issue of religious freedom, which was hotly debated in the New World. Clearly, the Spanish colonies were Catholic, and often intolerantly so. After all, they were established during the Spanish Inquisition, instituted by Queen Isabella and King Ferdinand in 1492.

In the English colonies, the tradition was different. Virginia was first settled by adventurers led by Captain John Smith, who were loyal to the English crown, but witnessed its changing commitment to various forms of Catholicism and Protestantism over the years. In 1630, Jonathan Winthrop, a minister, brought his weary band of Puritans to Massachusetts to escape persecution in England and to found a "shining city upon a hill." The Puritans, however, were an intolerant lot believing the sin of one to be the sin of all. Conformity was critical if their city was not to lose its luster. Soon Anne Hutchinson left Massachusetts to found Connecticut and Roger Williams left to found Rhode Island; not surprisingly both colonies were strongly committed to religious freedom. In fact, Providence was the first city in America to erect a synagogue.

The diversity of colonies was astounding. Quakers founded Pennsylvania; Catholics founded Maryland; prisoners settled Georgia; adventurers and speculators settled Virginia; Pilgrims and then Puritans settled Massachusetts. The leadership in many communities centered on the church, and preachers and priests were not shy about making recommendations on political matters.

In the mid-1700s, a religious revolution swept the colonies. Preachers like Samuel Davies, George Whitefield, and Jonathan Edwards preached to large crowds, some gathered out doors. These revivals called for conversion of all individuals regardless of income, race, or gender. This democratization of religion was a prelude to the democratization of the political process. As the colonies moved toward independence from England, religious leaders such as Jonathan Mayhew called for resistance to the crown. All during the revolutionary period, they continued to support independence and religious freedom. Soon they realized that religious freedom also meant religious tolerance.

Free Speech and Religious Freedom

Questions of religious freedom are inextricably linked to freedom of expression not only historically but in case law. The reason is not only that the Founders linked these freedoms but that preachers often defended free speech. Furthermore, the Supreme Court has regularly recognized that religion is rhetorical in nature. In Rosenberger v. University of Virginia, for example, a religious magazine won publication funding from a state school because of its First Amendment right to free press, not its right to free exercise of religion. The Court in 1995 required the University of Virginia to pay printing charges for a student newspaper which "offer[ed] a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia."¹ The Court held that the neutrality required by the Establishment Clause supported payment of the charges since printing charges were paid for other groups. Furthermore, the Court found that in singling out this paper, which discusses from a religious viewpoint topics otherwise worthy of printing cost payment, the University violated the student's free speech rights. Justice Kennedy wrote:

[W]e have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations.²

That case, like many before it reveals that the First Amendment contains two kinds of prohibitions: one exclusive, the other inclusive. The latter forbids the making of laws which abridge free speech, press, petition and assembly. The former--the exclusionary portion--bans the government from establishing a religion or interfering with the free exercise of it. In essence, it guarantees political liberties but not religious ones, thereby prioritizing the former over the latter.

The evolution of this ordering can be traced in large part to Madison's desire to prevent the state from establishing a religion. Madison was re-acting in part to what he perceived church interference in government operations.³ He compared those colonies that were established for religious reasons with those that were not and concluded that the latter were freer and more prosperous. Thus in his anonymous “Memorial and Remonstrance” he called for a strict separation of church and state. Five years later, President Washington addressed the Jews of Newport, Rhode Island claiming that freedom to worship was a “natural right.”

Thomas Jefferson's opinion, a view expressed in a letter to the Danbury Baptist Association in 1802, that the First Amendment's religious clause builds "a wall of separation between church and State"⁴has had more impact than Madison's or Washington’s discourse on this subject. Incorporating Jefferson's understanding of Enlightenment thinking, the Supreme Court generally has ruled that individuals are free to believe what they want but are not at liberty to practice that belief in ways that violate other, more privileged rights.⁵ That is to say, laws made by elected officials of the nation take precedent over religious practices. Perhaps the most important case in this regard is Everson v. Board of Education (1947) which argued that the Framers sought to establish a "high wall" of separation between church and state.⁶ This ruling was meant to clarify the position the Court took in 1940 in Cantwell v. Connecticut which stated that “The [First] Amendment embraces two concepts, – freedom to believe and freedom to act. The first is absolute.”⁷ Cantwell built a paradigm around the difference between belief and action.

In 1961, however, the Supreme Court moved to a new paradigm, one that balanced the interests of one side against another. The most important case in this line came two years later in Sherbert v. Verner,⁸ in which a Jehovah’s Witness in South Carolina was denied benefits for refusing to work on Saturday, a Sabbath for that religion. Justice Brennan writing for the majority argued that the state’s interest was not compelling enough to justify denying benefits and thereby infringing on a person’s right to freely express their religion. Brennan established the “Sherbert Test” in which the courts must “consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant’s First Amendment right.” Brennan went on to established a three step "process for determining when the state could . . . impinge on religious activities, the most important step being a demonstration that . . . [it] had a compelling interest in controlling specific kinds of behavior."

The next major paradigm shift came in 1971 due to the feeling on the Supreme Court that previous rulings had led to a kind of paralysis of the religious clauses of the First Amendment. The new Lemon test, first articulated in Lemon v. Kurtzman (1971) concerned laws in Pennsylvania and Rhode Island which provided funding for secular education to private schools, mainly Roman Catholic, were found to be unconstitutional. Chief Justice Warren Burger wrote that to withstand scrutiny:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.⁹ The language of [the religious clauses] is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state . . . religion. . . . Instead they commanded that there should be 'no law respecting an establishment of religion.'¹⁰

Hence, the Establishment Clause precludes the government from supporting religious activities and the Free Exercise Clause stops it from preventing them. Governments must therefore walk a fine line between neither discouraging nor encouraging religion.¹¹ That fine line was clarified in Bowen v. Kendrick (1987) in which the Court upheld the Adolescent Family Life Act, which enabled governments to provide grants to public or non-profit groups for services and research on teen sex and pregnancy. The Court believed that funds would NOT be placed in “pervasively sectarian” institutions or that the funds would encourage religion. The goal of the act was secular in nature.¹²

More recently, Establishment Clause cases have relied on two additional tests. The coercion test of Lee v. Weisman (1992) provided that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise."¹³ Under this principle a public school in Rhode Island was prohibited from inviting clergy to give invocations and benedictions at graduation ceremonies and providing guidelines for the prayers because they carried the imprint of approval from the school. The Court ruled that such religious activities at public school functions subjected unwilling audience members to religious activities. That decision was reinforced in 1996 in Moore v. Ingrebretsen which effectively struck down a Mississippi law allowing students to give prayers at assemblies and over the school intercom. Finally, in Santa Fe Independent School District v. Doe, the Court ruled that organized prayer at school events was a violation of the Constitution.¹⁴ The school district had rewritten its policy several times to reduce its sectarian nature and to ensure that it was universal in nature. Nonetheless, the Court struck the policy down on a 6-3 vote partially because the “majoritarian process implemented by the District guarantees, by definition, that minority candidates [to deliver the invocations] will never prevail and that their views will be effectively silenced.”¹⁵ Thus, prayer is school is now restricted to private conduct and group associations, where purely voluntary, student-initiated prayer outside of instructional periods remains protected by the First Amendment. “[N]othing in the Constitution,” ruled the Court, “prohibits any public school student from voluntarily praying at any time before, during or after the schoolday.”¹⁶ Clearly then, it is the Establishment Clause that has allowed the Court to build a wall that separates church from state, including state supported schools.

The Free Exercise Clause

However, some holes have been punched in the wall between church and state using the Free Exercise clause. For example, in even the rather restrictive Hazelwood School District v. Kuhlmeier ruling, the Court said that “a student’s personal expression that happens to occur on school premises” must be tolerated unless it contains “material that may be inappropriate for their level of maturity.”¹⁷ As we have seen, in Rosenberger v. University of Virginia, the Court ruled that the dispensing of funds to student publications was neutral, and therefore, funding a student religious magazine did not violate the Establishment Clause:

The neutrality of the program distinguishes the student fees from a tax levied for the support of a church or a group of churches. A tax of that sort, of course, would run contrary to the Establishment Clause concerns dating from the earliest days of the Republic.¹⁸

The neutrality test was also used in a 1993 school case not involving free speech issues. Zobrest v. Catalina Foothills School District centered on the use of a state-paid sign-language interpreter in a sectarian high school. The Court found that Arizona's Individuals with Disabilities Education Act "create[d] a neutral government program dispensing aid not to schools but to individual handicapped children. . . .[T]he Establishment Clause does not prevent [this service.]"¹⁹ Under the ruling, the school district was required to provide this service for the Zobrest child, despite the fact that the child attended a parochial school. This line of thinking was strengthened in 1998 when the Supreme Court refused to take up a case in Wisconsin which allowed for state funding of school vouchers for private and parochial schools. The Wisconsin Supreme Court, following earlier precedents, argued that the legislation was neutral.²⁰

The enforcement of the Establishment Clause can threaten the Free Exercise Clause. The best example came in 1990 when two employees of an alcohol rehabilitation center, Alfred Smith and Galen Black, were fired because they had participated in a Native American ceremony that involved peyote. Aside form its religious significance in Native American culture, it should also be noted that peyote is thought to cure or at least serve as a substitute for alcohol in that culture. Peyote is central to the Native American Church’s practice and beliefs. In Employment Division, Dept. of Human Resources of Oregon v. Smith (1990)²¹, the majority continued their earlier line of thinking when they ruled that a state need not balance laws abridging religious freedom with a compelling state interest unless those policies somehow were coercive, for to limit the applicably of laws would amount to establishing a particular religion. Such action, they admitted, well might lead to the "unavoidable consequence" of placing "at a relative disadvantage those" faiths not widely practiced.²² Justice Scalia’s majority opinion argued that a person “first and foremost, has the right to believe and profess whatever religious doctrines he desires” and the government may not interfere with such belief. But, he continued, the peyote law does not impede with belief nor does it force one on anyone else.²³ The dissenters in this case, and even Justice O’Connor in her concurrence, called for a return to the Sherbert test.

Religion and Education

In earlier decisions where cultural differences are less evident, the Court has provided protection for religious practices if they do not interfere with the operation of government. For example, in 1943 in West Virginia State Board of Education V. Barnette, Justice Robert Jackson wrote that student freedoms must be protected "if we are not to strangle the free mind at its source. . . ."²⁴ Just as important, he recognized the flag salute as a "form of utterance" which is a "primitive, but effective way of communicating ideas."²⁵ For that reason, the Court decided that schools could not require students to salute the flag if it violated their religious convictions, in this case against taking oaths. Said the Court, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."²⁶

Officials in private institutions are given wider latitude in regulating student activities and supporting religion since teachers and school administrators in public institutions are considered representatives of the state. However, private action may be considered public action if the state or federal government is involved in some way, such as subsidizing the institution or providing grants to its professors and students.²⁷ Furthermore, almost 40 states have statutes protecting freedom of expression in all venues, private as well as public. California's provision is typical: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not abridge liberty of speech or press."

Free Exercise versus Non-establishment: The Case of Native Americans

The difficulty in dealing with the religious freedom dilemma can be most graphically illustrated by using the rights of Native Americans as an example. Prior to the First Amendment being extended to Native Americans in 1924, they had been treated with undue prejudice by the state and federal governments. The most famous example of suppressing Native American religion came with the outlawing of the Ghost Dance, a ceremony based on the message of Wovoka, a Paiute born in Nevada in 1858. His promise of "renewal, rebirth, and 'revitalization'" encouraged Indians to envision a brighter future. Demoralized by broken promises, military defeats, loss of their homelands, and assaults on their way of life, Native Americans saw in Wovoka's teachings a promise of "deliverance from their depression and sorrow."²⁸ Word of the prophet's philosophy spread through the West. More than half of Native Americans west of the Missouri participated in a shared cultural and spiritual experience which constituted the largest Indian movement of the nineteenth century.

Wovoka claimed to have returned from heaven graced with God's directions for life and worship.²⁹ His vision promised Indians a new millennium, provided they performed the dance and adopted peaceful ways. The rite itself was an exhausting event producing a "delirium" that enabled "participants" to communicate with "the dead."³⁰ Because of differences among indigenous cultures, the Ghost Dance movement was pluralistic. Each Indian nation created its own mythology embracing the hope of a new millennium. Many traveled to hear Wovoka, returning to their homes with a Messiah Letter that counseled adherents to partake in the dance, live in peace, work with white people, and take heart that their ancestors would return.³¹

Anglo-Americans dubbed the movement a "Ghost Dance" because of the promise to awaken dead ancestors. Induced by lurid newspaper accounts, Anglo-Americans fixated on predictions that redemption would bring destruction of whites. They misperceived an apocalyptic religion proclaiming fraternity and peace as a rebellious Sioux sect driven mad by a savage dance. The government banned the dance because, officials argued, the pseudo-sovereign status of native nations precluded their protection under the Bill of Rights. The banning led to the last tragedy of the Indian Wars, the massacre in South Dakota in which a "dream" based on a "religion of Hope died with the Sioux on the snow-swept plains . . . [of] Wounded Knee."³²

The modern era for Native Americans began with the Indian Citizenship Act of 1924 and the Wheeler-Howard Act of 1934, which granted First Amendment rights to Native Americans, expanded reservations, encouraged self-government, and supported programs affirming of Indian culture. Since then, contemporary conflicts over free speech and religion have become exceedingly complex and Native Americans have turned to the courts to secure their rights. In a string of rulings starting in 1977 with Rosebud Sioux Tribe v. Kneip,³³the Supreme Court has denied First Amendment protection to Native American religious practices established long before the colonization of the United States.³⁴ Similar rulings have allowed infringement on sacred sites. For example, in Sequoyah v. Tennessee Valley Authority³⁵ the Supreme Court refused to grant certiorari when a federal circuit court ruled the flooding of holy places, ancestral burial grounds, and gathering sites did not violate religious freedom of Cherokees because they had no property rights in the area. The Court thus ruled that such property rights supersede ones associated with religion.

The most controversial decision related to the issue of sacred sites is Lyng v. Northwest Indian Cemetery Assn. (1988) in which, as we saw earlier, the Supreme Court refused to extend sacred status to natural terrain.³⁶ In the early 1980s, Indian groups opposed road construction and timber harvesting in the Six Rivers National Forest, a site where various tribes exercised their right to freely exercise their religious beliefs by holding vision quests and gathering medicines.³⁷ The District Court of Northern California and the Ninth Circuit Court used the Free Exercise Clause to uphold an injunction against constructing a road through the area because it "would seriously damage the salient visual, aural, and environmental qualities of the high country,"³⁸ thereby impairing the ability of Native Americans in the area to practice their religion.

The Supreme Court, however, reversed on a five-three decision in which Justice O'Connor, writing for the majority, readily admitted that "[i]t is undisputed that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion."³⁹ She also noted that even "indirect coercion or penalties of free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment."⁴⁰ Nonetheless, the majority held that the Constitution does not protect tribal religious sites used for worship on federal lands unless "effects of government programs" actually "coerce individuals into acting contrary to their religious beliefs." Hence, the government need not offer a "compelling justification"⁴¹for use of "what is, after all, its land."⁴² Consequently, O'Connor wrote, "However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires."⁴³

In his dissent, Justice William Brennan raised several questions about the majority's decision. Even though the Court admitted that the case involved use of "federal land in a manner that threatens the very existence of a Native American Religion," it chose to reverse the lower courts because such usage neither "coerce[s] conduct inconsistent with religious belief nor penalize[s] activity." However, free exercise addresses "any form of governmental action that frustrates or inhibits religious practice." The effect of the decision is to "refuse to acknowledge the constitutional injury the respondents will suffer," thereby leaving them with "absolutely no constitutional protection against perhaps the gravest threat to their religious practices."⁴⁴ The decision in Lyng effectively stripped Native Americans of legal safeguards protecting worship at sacred sites⁴⁵ because it prioritized federal property rights over the needs of a minority religion.

Rulings related to sacramental use of peyote also illustrate how difficult it is to interpret the free exercise clause. In 1909 Native Americans founded what was to become the Native American Church of North America so that they could practice peyotism under the protection of the First Amendment. That move, however, did not go unchallenged. In 1914, for example, when a U.S. District Court failed to prohibit consumption of peyote under anti-alcohol statutes, the Office of Indian Affairs tried to circumvent the courts by defining peyote as a narcotic. Even when localities have recognized the drug as legal, "Indians have . . . [suffered] criminal justice harassments, arrests, prosecutions, convictions, and jail time."⁴⁶

The most significant addressing this issue is Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), which we visited breifly earlier in this chapter.⁴⁷ Several members of the Native American Church lost their jobs and subsequently were denied unemployment benefits by the state of Oregon because they tested positive at drug screenings after using peyote in religious services. The Supreme Court refused them protection, holding that the Free Exercise Clause permits the state to prohibit sacramental use of the substance. The consequent limitation on free exercise was significant. Until Smith, the test applicable in such cases was Sherbert v. Vernor (1963, see above)⁴⁸with its three step approach to this delicate issue. The Oregon Court of Appeals using that precedent held that denying unemployment benefits violated the respondents' free exercise rights. In reversing the Oregon Court, the 1990 Supreme Court struck down the compelling interest test, substituting in its place the "proposition that the right of free exercise of religion had to be linked to some other freedom guaranteed in the Bill of Rights."⁴⁹ Justice Scalia, who wrote the majority opinion, argued that "[t]he present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity," and thus, denied protection. He warranted the Court's endorsement of Oregon's right to deny employment benefits to persons fired for sacramental use of peyote by contending that "the only decisions in which . . . [the Court had] held that the First Amendment bars application of a . . . generally applicable law to religiously motivated action . . . involved not the Free Exercise Clause alone, but . . . [it] in conjunction with other constitutional projections, such as freedom of speech and of the press."⁵⁰

In support of the Sherbet test, Justice O'Connor dubbed his opinion "strained [and] narrow" in her separate concurring opinion.⁵¹ She claimed he disregarded the Court's "consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct."⁵² In addition, she complained about majoritarian bias: "the Court today suggests that the disfavoring of minority religions is an 'unavoidable consequence' under our system of government and that accommodation of such religions must be left to the political process. In my view, however, 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."⁵³

In his dissent, Justice Blackmun made a similar point contending that the Smith decision "effectuates a wholesale overturning of settled law concerning the Religious Clauses of our Constitution."⁵⁴ One consequence of the Smith decision was the passage of the Native American Free Exercise of Religion Act of 1993 by the Congress;⁵⁵the act promised protection of "sacred sites, . . . use of peyote, . . . religions rights of North American prisoners, . . . use of eagle feathers and other surplus animal parts in ceremonies" and "extension of the compelling state interest test to religious practices."⁵⁶ The Supreme Court, however, re-entered the picture on June 25, 1997 and struck down the Religious Freedom Act. Using a new rationale, the Court ruled 6-3 in City of Boerne v. Florida that the act was an infringement on states' rights. Thus, if Native American religious practices are to be allowed states must either exempt them form the laws they violate, or repeal the laws altogether. These eventualities are unlikely where the majority rules and the Supreme Court decides not to protect a minority.

Schools and Religious Freedom

The intersection of education and religious freedom provides a further example of conflict between free exercise and other priorities. In Wisconsin v. Yoder,⁵⁷ the Supreme Court upheld a compulsory school-attendance law and in subsequent rulings has given considerable leeway to school administrators to control the educational environment, most notably in Fraser v. Bethel School District (1986).⁵⁸ In 1993, however, in Alabama & Coushatta Tribes of Texas v. Trustees of Big Sandy Independent School District, the Fifth Court of Appeals overturned a District Court ruling which had validated the right of a school district to regulate hair length even though "many southeastern tribes wore their hair long as a symbol of moral and spiritual strength."⁵⁹ The school district contended that such practice was contrary to a dress code designed to "create . . . an atmosphere conducive to learning,"[t]o foster . . . respect for authority," and "[t]o ensure that the conduct and grooming of students . . . creates a favorable impression for the District and the community."⁶⁰ This case, which ties the free exercise clause to the equal protection provision of the Fourteenth Amendment, is wending its way to the Supreme Court. When it reaches that body, the Court will have to balance free exercise against the government's right to impose a regulation which "advances an unusually important . . . goal." As Judge William Wayne noted in his opinion, however, "[i]t is unclear, after Smith, whether a valid free exercise claim in a civil context, unaccompanied by other constitutional claims" would be subject to the compelling state interest test or to a lesser standard."⁶¹ These cases are significant, not only to Native Americans, but to other religious groups who wish to practice religion in their own way, who wish to send their children to private schools or educate at home, who wish to dress and groom their children in ways consistent with religious practices, and who wish to protect what they believe to be sacred sites. The Court seems to have limited religious freedom based on a narrow reading of the First Amendment and a desire not to interfere in state regulation of various practices. For example, if students wish to meet somewhere to pray, it is permissible at a public school, but officials and teachers may neither discourage nor encourage such activity while acting in their official capacity.

Groups On Campus

Perhaps this is a good place to turn from the plight of religious minorities to the question of religion on campuses. One way to open this question is to link it to the right of assembly which is deeply embedded in the First Amendment. Groups often assemble on campuses and sometimes their speech is offensive. Campuses need to be particularly careful about abridging the right of assembly as a means of stopping offensive speech. As the Court said in De Jonge v. Oregon (1937), "Peaceable assembly for lawful discussion cannot be made a crime," particularly where a national forum has been established by tradition.⁶² Like the Gitlow decision of 1925, De Jonge expanded the application of the First Amendment against the states by incorporating it through the Fourteenth Amendment.

Religious Freedom, Assembly and Discrimination

More recently, in the controversial decision regarding the Boy Scouts of America v. Dale⁶³, the Supreme Court ruled that the right of association protected by the First Amendment allows groups to exclude people from membership. In this case, that right even over-rode the state’s interest to insure freedom from discrimination. They Boy Scouts refused to allow one of its leaders to remain in the organization if that leader was homosexual. In short, freedom of association enables a group to choose its company. Some scholars feel that the Dale ruling my help universities enforce speech codes if they argue that they have the right to exclude people who engage in certain language patterns from their campuses under the right to choose associates. Others argue that the inclusion of gays in the Boy Scouts does not undercut its message or its purpose; likewise, including those who engage in controversial speech would not undermine a universities purpose, on the contrary, it enhances the goals of a university to seek new ideas and test them. The Dale ruling is seen as an extension of rulings which permitted those holding parades to exclude those who would undercut the essential message of the parade participants. Thus, gays were excluded from the St. Patrick’s Day parade in Boston⁶⁴.

Other critics point out that before Dale, the Court had emphasized the more compelling interest of ending discrimination. In Roberts v. United States Jaycees⁶⁵ and Board of Directors of Rotary International v. Rotary Club of Duarte⁶⁶ forced the national organizations to accept the decision of local clubs to admit women despite the claim that the right to association allowed the national organization to exclude women. In these cases, the Court asserted that the inclusion of women did not undercut the message or goals of the clubs.

Thus, the Courts have had to balance the desire to end discrimination against women, gays, and others with the desire to maintain the First Amendment right to association with those whom one chooses.

Religious Doctrine in the Schools

Just as with Native Americans, the conflict between the Establishment Clause and the Free Exercise clause also bedevils campus officials. Normally, the Supreme Court forbids aiding or encouraging a single religious view. In Edwards v. Aguillard (1987), for example, the Supreme Court ruled 7-2 that giving equal time to "creationism" constituted establishing a religion and thereby violated the First Amendment.⁶⁷

Other decisions, however, prevent us from deducing a clear cut rule on this issue. For example, in Brandon v. Board of Education of the Guilderland Central School District (1981), the Court examined a case where several students had organized a group called "Students for Voluntary Prayer," which sought permission to conduct communal prayer meetings in a classroom before the opening of school each day. These students sought no faculty involvement but their request was denied by the principal, the superintendent, and the Board. The students brought suit under the First Amendment. The lower courts did not agree with the students on the grounds that schools could determine activities, that allowing the group to form its own forum constituted encouraging religion, and supervision would be required if the group met on school property. The Supreme Court let the ruling stand.

Only a week earlier, however, in Widmar v. Vincent (1981), the Court ruled that campuses could not deny campus facilities to a group of Christian students if other groups were allowed to use them; the Christian Group was given equal status with other political groups that met on the campus. Justice Powell wrote for the majority that the public forum in question was open to many groups, was already in existence, and would not "confer any imprimatur of state approval" on the Christian group. As in Rosenberger, the neutrality of the rule meant that it was not being applied prejudicially to establish religious activity.

In 1990, this privilege was extended to high school student groups in Board of Education of Westside Community School v. Mergens wherein the plurality on the Court argued that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."⁶⁸ This decision was a direct outcome of the Equal Access Act which requires schools that receive federal funds to avoid discriminating against any student initiated clubs on the basis of religious or political content of their messages. In a 1993 case, Lamb's Chapel v. Center Moriches Union Free School District,⁶⁹ the Court unanimously held that once the school district had opened its facilities for after-hours use by local community groups it could not exclude a religious group's request for space to show a six part film on child-rearing just because the group planned to teach it from a Christian perspective. The reasoning in this case also helped form the foundation of the Rosenberger decision previously discussed. Critics of these decisions argue that they open public high schools to all kinds of fringe groups, including student gangs and the Ku Klux Klan.

Conclusion

Despite the ambiguity of some of these rulings and the way they contradict one another in other cases, several concepts are now part of constitutional law. The First Amendment's religious clauses apply against the states as do its other provisions because of the due process clause of the Fourteenth Amendment. Even though a law may not intend to establish a religion, it may be struck down if that is one of its potential consequences. However, not every law that confers an indirect, remote or incidental benefit upon all religious institutions is constitutionally invalid for that reason alone. The law must further those things the establishment clause intends to prevent in order to be unconstitutional.

To be constitutional, a law must reflect a clearly secular legislative purpose, neither advance nor prohibit religion, and avoid entanglement between religion and government. Thus, a law which requires a healthy and safe environment for all school children whether in public or private schools, is advancing a secular goal, not a religious one, and is therefore permissible.

Study Questions

1. What is religious speech? How is it different than political speech?

2. What criteria does the Supreme Court use to determine which religious practices are protected by the First Amendment?

3. How did Rosenberger v. University of Virginia treat freedom of speech and free exercise of religion?

4. What is the link between Thomas Jefferson and Everson v. Board of Education?

5. What is the Lemon test?

6. What is the Sherbet test?

7. What is the case law surrounding prayer in schools?

8. What rights do religious groups have on school campuses?

9. How does freedom of assembly intersect with free exercise of religion?

10. Why have the courts forbidden the teaching of creationism as science in public schools?

Simulations

1. Divide the class into Native Americans, atheists, Muslims, Jews and Christians. Allow each group to meet privately to frame a statement regarding their position on religious freedom including what they are allowed to practice and what should be forbidden. Have each group present its position. Then have the class synthesize the statements into a single statement that two-thirds of the class endorses.

1. Rosenberger v. Rector & Visitors of University of Virginia 115 S.Ct. 2515 (1995).

2. Ibid., at 2517.

3. See, for example, his letter to Jasper Adams (September, 1833), in Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, Daniel Dreisback, ed. (Lexington: University of Kentucky Press, 1996), p. 117.

4. Saul K. Padover, The Complete Jefferson (New York: Harcourt, Brace, 1943) 519.

5. See Lemon v. Kurtzman, 403 U.S. 602 (1971). In Everson v. Board of Education, 330 U.S. 1 (1947) Justice Rutledge persuaded his brethren that the establishment clause meant no government aid to any religions. At 15 in the majority opinion, Justice Black writes, "Neither [the Federal Government nor the states] can force nor influence a person to go to or to remain away from church against his will or for him to profess belief or disbelief in any religion. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." See also Engel v. Vitale, 370 U.S. 421 (1962) which outlawed prayer in public schools. See Mark Fischer, "The Sacred and the Secular: An Examination of the 'Wall of Separation' and Its Implications on the Religious World View," University of Pittsburgh Law Review, 54 (1990) which concludes, "Underlying many of the theories used in Establishment Clause jurisprudence is an implicit disdain for the religious world view"(340). For further analysis, see Robert S. Alley, "Public Education and the Public Good," William & Mary Bill of Rights Journal, 4 (1995): 277-350.

6 330 U.S. 1 (1947) at 16. This decision reinforced the Court's holding in Reynolds v. United States, 98 U.S. 145 (1878), which prohibited bigamy among Mormons despite their plea for free exercise of their religious rights. Ever since one person can have many spouses as long as one has them one at a time. Chief Justice Waite wrote the majority opinion in which he condemned the odious nature of polygamy in the Western Europe, enlightenment tradition: “Laws ... cannot interfere with mere religious beliefs and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of a religious worship, would it be seriously contended that the civil government under which we lived could not interfere to prevent a sacrifice?”

7 310 U.S. 296, 303 (1940).

8 374 U.S. 398 (1963).

9 403 U.S. 612-613.

10. 403 U.S. 612. Two years later in Committee for Public Education v. Nyquist, the Supreme Court reinforced the Lemon test. Justice Powell, writing for the majority, struck down a New York law that provided assistance to non-public schools on the grounds that such these grants, tuition reimbursements and tax relief provisions advance a religion. (413 U.S. 756, 1973.)

11. This dilemma is most clearly apparent in Zorach v. Clauson, 343 U.S. 306. It also surfaces in the Lemon test, the second prong of which requires that the "principle or primary effect [of government action] must be one that neither advances nor inhibits religion" (403 U.S. 629).

12 483 U.S. 1304 (1987). In addition, the Supreme Court ruled in 2000 in Mitchell v. Helms, 530 U.S. 793 that under the Title VI program, the Establishment Clause does not prohibit certain types of educational equipment and materials such as library books and computers from being loaned to religious schools as long as the materials are distributed on a non-sectarian, equitable basis. The materials could not be put to religious use and had to supplement programs already in place.

13 120 L.Ed. 2d 480-481.

14 530 U.S. _____, 120 S. Ct. 2266 (2000).

15 Ibid., at 2269.

16 Ibid., at 2281.

17 484 U.S. 260, 271 (1988).

18 115 S.Ct. 2522 (1995).

125 L.Ed. 2d 14.

20 Jackson v. Benson, 98-376.

21. 494 U.S. 872. Justice Scalia delivered the opinion of the Court in which Justices Rehnquist, White, Stevens and Kennedy joined. Justice O'Connor filed a separate opinion concurring in the judgment, in Part I and II of which Justices Brennan, Marshall and Blackmun joined without concurring in the judgment. Justice Blackmun filed a dissenting opinion in which Brennan and Marshall joined.

22. 494 U.S. 890.

23. That point had already been established two years earlier. The Court had argued in Lyng v. Northwest Indian Cemetery Assn. (1988) that "even assuming that the Government's actions [would] virtually destroy the Indians' ability to practice their religion," the First Amendment does not mandate redress in this case. 485 U.S. 439. The Supreme Court's consideration of issues related to free exercise relegates matters of cultural difference to the political realm, and thereby, argued Justice Brennan, engages in an "abdication" which "bestow[s] on one party . . . the unilateral authority to resolve all future disputes in its favor, subject only to the Court's toothless exhortation to be 'sensitive' to affected religions." 485 U.S. 473

24 319 U.S. 637. This decision reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) in which Justice Felix Frankfurter wrote a majority decision that claimed that national unity was a rationale for expelling a Jehovah's witness for refusing to salute the flag.

25 Ibid., at 662.

26 319 U.S. 624, 642 (1943).

27 See Isaacs v. Board of Trustees of Temple University 385 F. Supp. 473.

28. L. G. Moses, "'The Father Tells Me So!' Wovoka: The Ghost Dance Prophet," American Indian Quarterly 9 (1985): 336, 335.

29. Mooney describes the prophet's revelation: "God told him he must go back and tell his people they must . . . love one another . . . and live in peace with the whites; that they must work, and not lie or steal; that they must put away. . . [warlike] practices; that if they faithfully obeyed his instructions they would . . . be reunited . . . in this other world, where there would be no more death or sickness or old age. He was then given the dance . . . to bring back to his people." James Mooney, "The Ghost Dance Religion and the Sioux Outbreak of 1890," Fourteenth Annual Report of the Bureau of Ethnology (Washington, D.C.: Government Printing Office, 1896): 770-771.

30. Moses 339.

31. Mooney 23, 780-781.

32. Moses 342.

33. 430 U.S. 584.

34. See also Montana v. U.S., 450 U.S. 544 [1981]; Sioux Nation v. U.S., 448 U.S. 371 [1980]; Lyng v. Northwest Indian Cemetery Assn., 485 U.S. 439 [1988], and Employment Div., Dept. of Human Resources v. Smith, 108 L. Ed. 2d 876 [1990]. In these cases, the Court draws a sharp line between religious beliefs and religious conduct. The Smith case is particularly disturbing because it overturned the three part test established in Sherbert v. Verner, 374 U.S. 398 [1963], which placed a heavy burden on states seeking to restrict religious practices. In Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217, 2233 (1993), a plaintiff won for the first time in twenty years when the Court ruled that "A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous scrutiny." The decision somewhat mitigates Smith but has created confusion. See Rod Fliegel, "Free Exercise and the Religious Freedom Restoration Act of 1993: Where We Are, Where We Have Been, and Where We Are Going," Constitutional Law Journal 5 (1994): 81, 83-88.

35. 620 F. 2d 1159, 1164-65 [6th Cir.] cert. denied, 449 U.S. 953 (1980).

36. Bowen v. Roy, 476 U.S. 633, is a related precedential case cited in the opinion.

37. The Hoopa Valley Indian reservation adjoins the forest and Chimney Rock has historically been used for religious purposes by Yurok, Karok, and Tolowa tribes.

38. Northwest Indian Cemetery Protective Assn. v. Peterson, 790 F. 2d (1986).

39. 485 U.S. 447. Justice O'Connor wrote the majority opinion in which Rehnquist, White, Stevens, and Scalia concurred. Justice Brennan wrote the dissent with Marshall and Blackmun concurring. Justice Kennedy did not participate in the case.

40. 485 U.S. 451.

41. 485 U.S. 490.

42. 485 U.S. 453.

43. 485 U.S. 451, 490, 453, and 452. See also Justice Scalia, writing for the majority in Smith, 494 U.S. 888.

44. 485 U.S. 459.

45. For a careful analysis of this issue, see Luralene D. Tapahe, "After the Religious Freedom Restoration Act: Still No Equal Protection for First Amendment Worshipers," New Mexico Law Review, 24 (1994): 331-363. Tapahe (332) contends that "native claims challenging the development of sacred land sites have not been given the same doctrinal treatment as those claims brought by mainstream Judeo-Christian plaintiffs."

46. Paul E. Lawson and Jennifer Scholes, "Jurisprudence, Peyote and the Native American Church," American Indian Culture and Research Journal 10 (1986): 15, 16, 25.

47. 494 U.S. 872. Justice Scalia delivered the opinion of the Court in which Justices Rehnquist, White, Stevens and Kennedy joined. Justice O'Connor filed a separate opinion concurring in the judgment, in Part I and II of which Justices Brennan, Marshall and Blackmun joined without concurring in the judgment. Justice Blackmun filed a dissenting opinion in which Brennan and Marshall joined.

48. Adell Sherbert had been fired for refusing to work on her Sabbath day, Saturday. The Court ruled that such an infringement on the practice of religion required justification through a "compelling state interest." (374 U.S. at 403.)

49. Vine Deloria, Jr., "Secularism, Civil Religion, and the Religious Freedom of American Indians," American Indian Culture and Research Journal 16 (1992): 13. The consequences of this decision were quickly seen in the lower courts. For example, in Alabama & Coushatta Tribes discussed below, the district court cited Smith to this effect: "It is unclear, after Smith, where a valid free exercise claim in a civil context, unaccompanied by other constitutional claims, would be entitled to the intense scrutiny necessitated by the least restrictive means, or compelling state interest, standard. See Smith, 494 U.S. at 884."

50. 494 U.S. 881.

51. 494 U.S. 892, 895.

52. At 894.

53. At 902.

54. 494 U.S. 908.

55. On November 19, 1990, the Native American Graves Protection and Repatriation Act became law.

56. Walter R. Echo-Hawk, "Native American Religious Liberty: Five Hundred Years After Columbus," American Indian Culture and Research Journal, 17 (1993): 49-50.

57. 406 U.S. 205 (1972).

58. These cases seem to limit the famous injunction from Tinker (1969) that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 393 U.S. 503.

59. 20 F. 3d 469. This case, if upheld, would reverse New Rider v. Board of Education of Independent School District No. 1, Oklahoma (480 F. 2d 693, 10th Cir., cert. denied 414 U.S. 1097 (1973) involving a Pawnee youth who violated school restrictions by wearing his hair in long braids.

60. 1323.

61. 1930.

62 299 U.S. 365.

63 530 U.S. 640 (2000).

64 See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).

65 468 U.S. 609 (1984).

66 481 U.S. 537 (1987).

67 In May of 1995, the Supreme Court let stand a lower court decision requiring a Michigan high school to remove a portrait of Jesus that had hung in the hallway for 30 years (Bloomingdale Public School v. Washesic, 94-1383). This ruling was consistent with a 1980 ruling that required the removal of the Ten Commandments from a wall in a public school.

68 496 U.S. 250.

69 508 U.S. 384. The Court used the precedent set in Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788 (1985).