In 1959, Pennsylvania made it a crime to sell clothing and home furnishings on Sunday. For the Jewish merchants in Pennsylvania, this law impacted them more than others, as they closed from Friday evening to Saturday evening to observe their Sabbath day, and Sunday was an important day for them to be open. If they were not allowed to remain open on Sunday, they would either have to violate their Sabbath beliefs or lose their businesses.
Feeling that the law criminalizing business on Sunday was a violation of their religious beliefs (as they had a different Sabbath than Sunday), they sued, arguing that the Pennsylvania law was unconstitutional. Their case made it to the U.S. Supreme Court in 1961, cited as Braunfeld v. Brown, 366 U.S. 599 (1961). They argued that they had to choose between their religion or providing for themselves and their families.
In reviewing their arguments, the Supreme Court noted differences in 1) laws that regulate opinions or beliefs and 2) laws that regulate conduct, or actions. The Supreme Court noted that laws that require a forced expression of an opinion or belief in violation of a religious belief are virtually always unconstitutional. Hence, laws requiring the saluting of the flag or repeating the pledge of allegiance are unconstitutional, as the law cannot require a forced statement of belief.
However, the Supreme Court reviewed cases where certain conduct was declared illegal, even though it was mandated by the religion of some U.S. citizens, yet the law was still considered constitutional by reviewing courts:
“Thus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy. And, in Prince v. Massachusetts, 321 U. S. 158, this Court upheld a statute making it a crime for a girl under eighteen years of age to sell any newspapers, periodicals, or merchandise in public places despite the fact that a child of the Jehovah's Witnesses faith believed that it was her religious duty to perform this work.” Braunfeld v. Brown, 366 U.S. 599, 605 (1961).
The Supreme Court noted that Jewish religious practice did not mandate that an individual engage in business on Sunday. Thus, the Court felt that the law did not directly burden a Jew’s religion. The Court was skeptical about agreeing that the Constitution prohibited laws that made it harder for some religions to operate in society when those laws did not stop a person from actually practicing their religion.
The Court did evaluate, though, whether the Pennsylvania law discriminated against Jews. The parties to the case argued that the law should, at most, require one day of rest for business owners, but that it should let them choose which day. It was discriminatory, they argued, to select a day honored by one religion, but not other religions. The Court, however, noted the large increase in “public welfare” type laws, or laws designed to promote the good of a community. The Court felt that Pennsylvania had a non-religious reason to require business closures on Sunday, as a mandated day of rest. The Court stated:
“[W]e cannot find a State without power to provide a weekly respite from all labor and at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity -- a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation.” Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
However, all of the Justices on the Supreme Court did not agree. In a dissent, a Justice argued that:
“The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is -- concededly -- curtailed by these enactments. For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.” Braunfeld v. Brown, 366 U.S. 599, 610 (1961) (emphasis added).
In other words, the dissenting Justices felt that the Court should not be looking at whether Pennsylvania had a valid collective goal to pursue, but at the extent to which personal liberties were invaded by the law. To them, the Constitution was about preserving personal liberty to the highest extent possible.
The dissenting Justice went on to cite a case from 1943 that said that:
“The right of a state to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship, may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the state, it is the more specific limiting principles of the First Amendment that finally govern this case.” Braunfeld v. Brown, 366 U.S. 599, 612 (1961) (emphasis added).
To understand these terms, when the Constitution gave the government direct power to do something, courts would not interfere with the legislation passed if the law had any “rational basis”, or any plausible explanation. This is a low bar, and it is rare that a law fails this test.
But, the dissenting Justice noted, when First Amendment rights were infringed (such as religious rights), the Court had previously required that the government show that it was preventing a “grave and immediate danger” or else the law was unconstitutional (courts later refer to this type of standard as “strict scrutiny”). It would be nice, for example, for people not to say certain words in public (thus there would be a “rational basis” for a law that banned certain words), but such a law would not be preventing a “grave and immediate danger”, or satisfy “strict scrutiny” to justify its violation of the Freedom of Speech).
The dissenting Justice further felt that religious rights were seriously burdened by the law, even though they did not directly require a person to violate their religious beliefs:
“Admittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette, nor do they prohibit outright any of appellants' religious practices, as did the federal law upheld in Reynolds v. United States, 98 U. S. 145 (1878), cited by the Court. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade without being hampered by a substantial competitive disadvantage. Their effect is that no one may, at one and the same time, be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet such a tax, when applied in the form of an excise or license fee, was held invalid…” Braunfeld v. Brown, 366 U.S. 599, 613 (1961).
Overall, this dissenting Justice questioned what governmental interest could possibly justify the requirement that everyone rest on the same day:
“What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, as in Reynolds, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State's traditional protection of children, as in Prince v. Massachusetts, 321 U. S. 158 (1944), for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who, in good faith, observe a day of rest other than Sunday.” Braunfeld v. Brown, 366 U.S. 599, 613-14 (1961) (emphasis added).
Another dissenting Justice was much more to the point. He stated:
“I agree with substantially all that MR. JUSTICE BRENNAN has written. Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me, this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.” Braunfeld v. Brown, 366 U.S. 599, 616 (1961).
While this case ultimately allowed the Pennsylvania law to stand, and the practicing Jews in the case to choose between their business and their religion, the case started America on a course where religion would lose its constitutional protections.
By 1990, the Supreme Court had another case in front of it, this time over a claim that the State of Oregon could not withhold unemployment compensation from individuals who were fired for having an illegal drug in their system. The drug (peyote) was used in a sacramental religious ordinance for a Native American Indian Tribe. Thus, the argument went, the individuals that had been fired (they were not challenging their firing from their jobs, only the denial of unemployment benefits by the State) were being discriminated against by the State on the basis of practicing their religion.
In an interesting lead up to the Supreme Court case, the Oregon Supreme Court had agreed and had ruled that Oregon’s denial of unemployment benefits violated the free exercise of religion of the individuals. Why the U.S. Supreme Court felt it was necessary to review Oregon’s Supreme Court review of Oregon’s own laws is not entirely clear, but the U.S. Supreme Court took the case up twice in its long wind through the court system.
Ultimately, Justice Scalia, one of the ‘conservative’ justices on the Court, issued a ruling that dramatically changed the way that religious claims were evaluated in court. Justice Scalia stated that:
“The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.’” Employment Division v. Smith, 494 U.S. 872, 885 (1990).
In other words, all laws would be upheld as constitutional (at least in the face of a religious freedom challenge) if the law was facially neutral (meaning it did not appear to target religion based on its text) and generally applied (meaning that it applied to everyone, not just particular groups).
Essentially, the Supreme Court felt that it was too much of a burden on government to evaluate the impact of each law on every possible religion. From Jews to Scientologists to Christians to Muslims to Native American Religions, the Court felt that it was simply too much, and all of the exceptions would undermine the rule of law and would require courts to evaluate what is or isn’t central to a person’s religion.
The dissenting justices argued that the Supreme Court should still apply “strict scrutiny”, or the standard of review that required the government to justify why the laws were so essential that they were worth restricting a person’s religion. Without the higher standard of review, the government only had to show a rational basis for a law, and, so long as the laws were written without reference to a religion, they would almost all pass constitutional review.
In other words, religion had lost its constitutional protection. This case created such waves throughout America that the U.S. Congress passed the “Religious Freedom Restoration Act” (“RFRA”) to give some protection again to religion. Most religious freedom cases since Employment Division v. Smith have relied on RFRA or other statutory protections to religious freedom.
So, while many people have celebrated certain recent Supreme Court victories with protecting religion, many of these recent cases are not constitutional, but rather statutory, in nature. This means that the protection can be revoked by repealing RFRA, something that legislation in Congress has, at times, proposed to do in recent years.
In other words, religious freedom needs to be actively protected as it hangs tenderly in the balance by a few laws. Religious freedom has gone from being something fairly fiercely protected by the courts (when they subjected the laws to “strict scrutiny”) to being something that is not protected at all if the laws are facially neutral and generally applied. So, so long as laws are stated politically correct and do not mention a religion, they are generally constitutional and those whose religious practices are substantially burdened by the law must find a law passed by Congress or the State in which they reside to help protect their exercise of their religion.
At Believe, we are promoting the Constitution through education and discussing the relevant issues. These small highlights are part of a bigger monthly discussion, with discussions that may take place in person and/or online. The discussions are free and are aimed at empowering through education. You can view the relevant and upcoming discussions at our page on The Law under the "Constitution Series".