Though Adventists have long had an interest in religious liberty issues, many ministers remain ignorant of current religious liberty trends.
In most cases, unless the minister has a specific interest in this narrow field, most just don't have the time to delve into the topic. Yet, considering that our whole freedom to worship and preach is based on the principles of religious liberty, it doesn't hurt for ministers to have a basic understanding of what's been happening in the religious liberty arena. Who knows when, someday, this information could come in handy, especially as we approach the final days when, according to Scripture, religious liberty will be a thing of the past.
First freedom
Free exercise of religion has been described as America's "first freedom." This idea arose, in part, because the two religion clauses are, indeed, the very first two clauses of the First Amendment to the United States Constitution. A second reason why free exercise of religion is a "first freedom" has to do with its fundamental importance to the American experiment. Free exercise was one of the main motivations (along with economic opportunity) that drew the first settlers to our shores. Baptists, Catholics, Puritans, Quakers, and others came over seeking a land where they could practice their religion without the persecution that ravaged Europe for long and bloody centuries.
Dating back to 1791, the religion clauses have played an important role in preserving the independence and vitality of all faiths, major and minor (and, in more recent years, they have been extended to protect unbelief, even atheism). They provide that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The first clause articulates the disestablishment or antiestablishment principle; the second safeguards free exercise. While neither clause has been interpreted in an absolute sense, they have provided substantial and significant protections that have, ideally, placed religious freedom beyond the whims of majoritarian rule.
Sherbert versus Verner
Through over a century of case law, the Free Exercise Clause was interpreted by the United States courts to require government neutrality toward religion. One could not be punished because of religious belief, and religiously motivated conduct that conflicted with law could be punished only under certain conditions. Though hardly foolproof, and with some noticeable failures, these clauses nevertheless worked reasonably well to protect religious freedom, especially in the twentieth century.
In 1963 the Free Exercise Clause arguably reached its zenith in Sherbert versus Verner.1 This landmark free exercise decision involved a Seventh-day Adventist discharged by her South Carolina employer for refusing to work on Saturdays, even though her employer knew that Adventists took the fourth commandment injunction, to rest on the seventh day, as seriously as the other nine.
After being terminated, she could not find another job because she would not work on Saturdays. When she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, the request was denied. State law said that an applicant did not qualify for benefits where he or she failed, without good cause, to accept available suitable work when offered. The law made no exemptions for religious beliefs. Refusing to violate the Sabbath wasn't "good cause." She got a lawyer, and her case went to the U.S. Supreme Court, which ruled that the state imposed an unconstitutional burden on her right to the free exercise of religion. South Carolina, the High Court ruled, didn't prove an overwhelming interest that justified this substantial infringement of her constitutional right. In other words, the state didn't, in fact, have good reason to deny her the benefits.
Under this holding, the proper inquiry is whether the contested law substantially burdens a religious practice; once it is determined that it does, the next question is, Is this burden justified by a compelling government interest? Can the government prove that practice is so bad that it should not be allowed? If a law cannot pass muster under this standard of review, a religious exemption is constitutionally required. This standard is called, in legal jargon, "strict scrutiny." Though hardly flawless, it was nonetheless an important safeguard for the free exercise of religion.
Employment Division versus Smith and the Religious Freedom Restoration Act
In 1990, all this was radically changed by the U.S. Supreme Court, the same body that first established it. In the case, Employment Division versus Smith,2 a Native American employed as a drug counselor in Oregon lost his job because—due to his religious beliefs— he took peyote. Upon termination, the counselor applied for unemployment benefits but was denied them due to the reason for his termination. He sued, and the case went to the U.S. Supreme Court.
This time, however, the results weren't so positive. In a 5-4 majority opinion authored by Justice Scalia, the Court held that states can regulate general conduct and, therefore, no religious exemptions are required. In other words, unless it can be proven that a law was written specifically to stop a person's religious practice, then a law applied across the board, to everyone, cannot be challenged in court on free exercise grounds. There was no more constitutional right to a religious exemption, the Supreme Court now ruled. Thus, overnight, many of the protections of Sherbert were, by one vote, lost. Exemptions could be granted, the Court ruled, but only if the appropriate legislating body were willing to grant them.
What did this mean? Imagine, for example, a mandatory autopsy law that required the autopsy of an Orthodox Jewish victim of an automobile accident, in direct opposition to the sincere religious beliefs of Orthodox Jews against autopsies.3 Or a case where a government prosecutor seeks to compel a clergyman to discuss the contents of a penitent's confession.4 Or the Internal Revenue Service litigating against the Society of Friends (Quakers) for refusing to attach the wages of their employees who refused—for religious reasons—to pay the military portion of their federal taxes.5
All these were real cases, and under the Smith standard the free exercise rights of the plaintiffs were greatly cur tailed because they no longer had the protection of the courts. Religious people now, instead, had to beg politicians for rights which heretofore had been guaranteed to them by the Constitution.
As a result of Smith, a coalition of civil liberties organizations, churches, and non-Christian religious groups— more than 50 organizations in fact— took their concerns to Congress. The result? In 1993 the Religious Freedom Restoration Act ("RFRA") was passed by Congress, providing a federal statutory standard akin to Sherbert versus Verner. More specifically, RFRA prohibited government from placing a substantial burden on a person's exercise of religion—even if the burden resulted from a rule of general applicability— unless the government could demonstrate that the burden "(1) is in furtherance of a compelling govern mental interest; and (2) is the least restrictive means of furthering that . . .interest." RFRA applied to any branch of Federal or State Government, to all officials, and to other persons acting under color of law and included "all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." President Clinton signed it into law in November of 1993.6
City of Boerne versus Flares
Unfortunately, in 1997, the City of Boerne versus Flores7 provided an opportunity for the Supreme Court to overturn RFRA. In Boerne, the Catholic Archbishop of San Antonio applied for a building permit to proceed with renovation and enlargement of a church in Boerne, Texas. Local zoning authorities denied the application pursuant to the local historic preservation ordinance. Subsequently the Archbishop filed suit challenging the denial under RFRA. The case went to the U. S. Supreme Court, which ruled that RFRA was unconstitutional on the grounds that the law itself exceeded congressional power. The U.S. Supreme Court opined that, while Congress certainly has the power and authority to enact legislation enforcing the constitutional right to the free exercise of religion— its power is only preventive or "remedial." Hence statutory enactments extending the interpretation of the Free Exercise Clause exceeded congressional power. The Court ruled that Constitutional interpretation is for the Judiciary, not the Congress.
Where now?
With some exceptions, religious freedom is now left to majority forces in Congress and in the legislative bodies of the states. This means that minority religions—without enough numbers to wield any kind of elective clout—can be left with little or no free exercise protections. How ironic, especially when the Constitution was designed to safeguard freedom of religion for all, not just those who have power at the ballot box! Arguably, it is precisely minority faiths that require constitutional protection, because the majority faith is often adequately protected by legislative bodies.
City of Boerne versus Flares does not mean that the cause of religious freedom is over. On the contrary, defenders of religious freedom are looking at options to help restore free exercise rights, everything from using the commerce clause to protect religious freedom, to an amendment to the U.S. Constitution, to various state RFRAs, in which each state writes its own "mini-RFRA."
Related to these matters but looking beyond America, arguably the most challenging and important global religious liberty question has to do with the extent to which religiously motivated conduct should be exempted from the application of general law. More and more secular observers ask whether religion deserves special treatment. Essentially the question is "Why shouldn't we all play by the same rules?" This question has to do with how law reflects the wider issue of religion-based exemptions. It asks if there should be such exemptions at all, and if so, why they should be granted. What is there about religion that justifies or requires such exemptions, and what are the public policy implications of granting them? It is significant that these questions are being asked at all. How they are answered during the next decade may be even more pivotal for Seventh-day Adventists and other Christians.
Whatever the outcome, events in recent years should show just how dangerous it is to take religious freedoms for granted. We can go to bed one night fairly secure in our religious rights, only to wake up the next morning to find our religious practices are no longer protected. Ministers of every denomination, no matter how large and electorally powerful, need to be concerned, because once the principle is in place that removes protections from any group without compelling reason, it can be only a matter of time before every group is jeopardized.
1 374 US 398 (1963).
2 110 SC 1595 (1990).
3 Montgomery v County of Clinton, 743
FS 1253 (W.D.Mich. 1990).
4 Cf. Mockaitis v Harderoad, No. 96-
35901, before the US 9th Circuit Court of
Appeals, Argued and Submitted December
12, 1996, Filed lanuary 27, 1997.
5 United States v Philadelphia Yearly
Meeting, 753 FS 1300 (E.D. Pa. 1990).
6 42 USCA § 2000bb et seq.
7 117 SC 92157 (1997).
