This stuff gets pretty long, but hang in there.  “Things should be made as simple as possible, but not simpler,”    is often attributed to Einstein,  although nobody can really agree who said it.   “Things can be as simple as you want, as long as you say it is just your opinion”  is what I believe in.   I am not giving the whole story, only the bits and pieces I think are important.  So be it.

A case involving Obamacare and religious freedoms has now been accepted to be heard in the Supreme Court.  A similar case has already been decided.  You can call these cases  ACA I and ACA II, where ACA 1  is the Burwell v. Hobby Lobby case   ACA II is the Little Sisters of the Poor v.  Burwell case.   These challenges are based on Religious Freedom Restoration Act (RFRA) cases which can be pronounced  reef-rah if you want to impress folks.

It started with the First amendment, enacted in 1791. The first 16 words of the amendment are, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  Laws are passed by Congress rarely directly  prohibit normal religious exercise.  The Fourteenth Amendment made certain that no State or local government could pass laws prohibiting the free exercise of religion.  If a local government passes a law specifically against a practice of a religion, then it can be held unconstitutional, as occurred in the “Santeria” case

Church of the Lukumi Babalu Aye v. City of Hialeah, 1993 (pre RFRA)

But this case is the exception.  Local communities pass to prohibit other practices or activities, which causes a burden or conflict with  religious groups beliefs or practices.  For example, let us say that your religion requires smoking pot, and the government passes a law against smoking  marijuana, have they violated your right to religion?  Hypothetically, let’s say there’s a noise limitation rule in a community, and early Sunday morning, a Church wants to blast gospel music from their lound speakers.   Does this rule impose a burden on free exercise of religion?

Suppose,  you belong to an Indian tribe, which ingests peyote buttons in religious rituals, and then got fired from your job, when tested for drugs- has the government made your practice of religion more difficult?  This is  “Employment Div. v. Smith” Case. The complaint was denial of unemployment benefits to two individuals (Alfred Smith for one)  belonging to a Native American Church because they tested positive for mescaline.  The Court agreed with the denial of benefits in 1990:

Employment Div. v Smith Case, 1990

Just in case you are wondering, the individuals had eaten peyote buttons, full of mescaline, which is a hallucinogen. You can be stoned up to 12 hours.  Do not use peyote and drive.  Also, stay far behind pick up trucks in places like New Mexico and Arizona, which might drive into the direction of the sun.

The Court decision was based on the fact that the law was religiously neutral.   Smith case was a 6-3 decision, with Justice Scalia writing the majority opinion.  Justice Blackmun dissented, joined by Brennan and Marshall.   O’Connor’s filed a separate opinion, concurring with the judgement but not the reasoning.  She wrote that a law which is religiously neutral (generally applicable), may still pose a burden on the practice or conduct of religious beliefs.  Thus, it is a case of competing interests.

Blackmun’s dissent  pursued the same logic, and felt the drug testing was overly broad, noting harm from peyote could not be demonstrated. So,  the First Amendment rights are neither obvious not absolute.   The court had imposed the “generally applicable” test to allow state’s interests to come before consideration of religious freedoms.  The states’ interests or objectives had to be narrowly tailored.   The alternative would be to require  exemptions for individuals’ religious practices,  but  only when this was practical and not be detrimental to the  overall state’s objectives.

But the issues can be complicated pretty quickly.  Congress got involved with the passage of the Religious Freedom Restoration Act (RFRA), in 1993, which I’ll leave to Part III.   The use of peyote  as part of religious practice in now part of the Oregon statutes as an “affirmative defense”,  as given on the Smith  link.

As we will learn in the next couple of blogs,  how far government must go to accommodate religious exercise has been a controversial issue, involving both the courts and the congress.  State governments have also passed laws, in support of religious groups which oppose certain laws on religious grounds.

Wikipedia has listed on the bottom of the Smith case summary, a chronological listing of the “Free Exercise Clause” notable cases starting in 1879 to 2006. There are 16 cases listed.  One notable case, Burwell v. Hobby Lobby, 2014 did not make the list, because it is likely much more related to RFRA than First Amendment rights to religious freedom.  Hobby Lobby was a 5:4 decision, with the more liberal justices (Ginsburg, Sotomayor, Breyer and Kagan) dissenting.

The court has changed its thinking on how to decide these cases, Also, there isn’t a unified doctrine among the members of the court on how the cases should be decided. But based on the decisions which have been made in the past,  the basis or criteria used in deciding between individual liberties and the ability of government to uniformly apply laws has changed as follows:

1.  1879 to 1963,  Was the law religiously neutral?  Was the law enacted to burden one religion?
2.  1963 – 1990  (beginning with Sherbert and ending with Smith case),  Are there  compelling interests of the state and if so has the law/ rule been narrowly tailored to these interests?   This is consistent with viewing a laws as remedies to a problems, and they are too broad, they can unnecessarily cause conflicts with religious free exercise.
3.  Nov 1993 forward –  Added complications of Religious Freedom Restoration Act to subsequent challenges,

So buckle up, there are some twists and turns in the road.  Things in this blog will not only be explained as simple as possible, but to the best of my abilities, even simpler.  Sorry Einstein or whoever said it.

Stay tuned.

Dave