Kaseff 1
A Religious America: An In Depth Look at the Free
Exercise Clause
Rachel Kaseff
Senior Thesis
Committee Members: Ann Duncan, Kelly Brown Douglas, Nina
Kasniunas
Religion Department
May 2017
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Table of Contents
Introduction…………………………………………………………
3-9
Chapter 1: Historical Overview…..……………………………….
10-24
Chapter 2: The Belief/Action Dichotomy………………………….
25-35
Chapter 3: Government Interests Supersede Free Exercise….….
36-50
Chapter 4: Accommodation Turns to Discrimination………..….
51-61
Chapter 5: Final Remarks…………………………………………
62-64
Bibliography…………………………………………………………
65-67
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Introduction
A. Arlene’s Flowers
Robert Ingersoll’s wedding was fast approaching. There were so many things to plan
and schedule that he never thought making the flower arrangements would become his
biggest problem. He called up his friend and florist, Barronelle Stutzman, who owned
Arlene’s Flowers. He had been a long time customer and it only seemed right to remain
loyal during this joyous occasion. Rob told her the good news: he was marrying the love
of his life, Curt Freed. Barronelle knew that Rob was dating a man and Rob knew that
Barronelle was Christian but they had been friends for some time and those two facts had
never been a problem. Rob asked Barronelle to make a special arrangement for his
wedding and it was then that Barronelle’s religious beliefs came into conflict with her
professional life. Unable to support something that went against her religious beliefs,
Barronelle refused. Barronelle was sued by the Washington State attorney general in
November of 2016 and lost.1
B. Religious Freedom
Much has been written on the subject of religious freedom and the ways in which it
has changed since it was adopted into the First Amendment of the Constitution. One such
scholar, Kathleen A. Brady, a Senior Fellow at the Center for the Study of Law and
Religion at Emory University, writes on the disappearance of religion from discussions
“State of Washington v. Arlene’s FlowersIngersoll v. Arlene’s Flowers,” Alliance
Defending Freedom, n.d., https://www.adflegal.org/detailspages/case-details/state-ofwashington-v.-arlene-s-flowers-inc.-and-barronelle-stutzman.
1
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about religious accommodations.2 She divides the history of religious Supreme Court
cases into two parts. She begins the first part with the case of Reynolds v. United States
(1879). Brady claims that during this case, the Supreme Court first outlined the difference
between religious action and religious belief.3 The second part, she explains, started in
the 1940’s when the Supreme Court recognized the protection of religious actions that
were burdened by neutral laws that were not specifically aimed at religion.4 Brady admits
that the Court has gone back and forth between these two views of the law since the
1940’s. She points out that the Court rejected the right for a religious exemption in the
case of Employment Division v. Smith (1990) but a law was later put into place to protect
such accommodations.5 While the law only applies on the federal level, many states have
adopted similar statues on their own.6 Brady believes that, “The bitterest battles over
religious accommodation have been in the context of same-sex marriage.”7 This is an
interesting observation of religious court cases because marriage is a very sacred
ceremony in most monotheistic and some polytheistic religions. In America, marriage is a
practice that necessitates the presence of government while (most of the time) also
incorporating religion.
Brady makes the distinction early on in her paper of religious exemption and religious
accommodation. A religious exemption is to be pardoned from something whereas a
religious accommodation is an allowance. She argues that support for religious
Kathleen A. Brady, “The Disappearance of Religion from Debates About Religious
Accommodation,” Lewis & Clark Law Review 20, no. 4 (December 2016): 1093.
3
Ibid, 1094.
4
Ibid, 1094-1095.
5
The law being referred to here is RFRA, which will be explained in detail in a later
chapter.
6
Ibid, 1095.
7
Ibid, 1097.
2
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accommodation has faded and support for religious exemption is on the rise.8 The support
for religious exemption can be seen in cases such as Burwell v. Hobby Lobby Stores
(2014) and the case detailed above involving Arlene’s Flowers. Brady also points out that
religious and law scholars have seen a rise in religious exemptions that involve third
parties either directly or indirectly.9 Such involvement can also been seen in Hobby
Lobby and the case involving Arlene’s Flowers. In Hobby Lobby, the third party was the
employees receiving the health care benefits and in the Arlene’s Flowers situation, the
third party was the store’s customers. Overall, Brady believes that religious exemptions
have been woven into American laws since her founding and only recently have such
laws been met with resistance.10
Joseph D. Kearney, a Dean and Professor of Law at Marquette University Law
School and pervious clerk for the late Justice Scalia, very much disagrees with Brady. He
first divides the history of religious freedom into three eras.11 The first era was from the
adoption of religious freedom through the 1960’s. The first era is framed around the idea
that the Free Exercise Clause does not allow for “exemptions from laws of general
applicability.”12 A lot of the cases that came to the Supreme Court in the first era could
have been considered religious freedom cases but were instead treated as free speech
cases.13 The second era that Kearney points to begins around 1963 with the case of
8
Ibid, 1098-1099.
Ibid, 1100.
10
Ibid, 1094.
11
Joseph D. Kearney, “The Supreme Court and Religious Liberty,” Marquette Law
Review 99, no. 2 (2015): 428.
12
Ibid, 429.
13
Ibid, 432.
9
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Sherbert v. Verner (1963)14 and ended around the 1970’s.15 This era would be defined by
Sherbert given that an exemption was made for religious purposes from a law of general
applicability. The third era of the Supreme Court’s handling of religious freedom cases
began in the 1980’s.16 According to Kearney, the defining case of this era was
Employment Division v. Smith (1960).17 In the case of Smith, two Native Americans were
fired for the use of illegal drugs during a religious ceremony. They requested
unemployment compensation but were refused because their termination was for
“misconduct.”18 When taken to the Supreme Court, it was decided that no religious
freedom rights were violated in the refusal of unemployment compensation. Kearney
explains that this era runs along the same ideology as the first era. He says, “The
constitutional decisions that follow Smith, even where they have ruled for the citizen’s
free exercise rights, have not involved some balancing test.”19 Kearney believes that we
are now entering into a fourth era that is more or less like the second era. He comments
that there is a willingness to grant exemptions based on neutral or generally applicable
laws, like before, but now there is a broader definition of what constitutes religion in
America.20 Kearney concludes his piece by saying that it is incorrect to think the
Supreme Court has protected religious liberties since the beginning of religious
freedom.21
14
Sherbert v. Verner (374 U.S. 398 (1963)).
Kearney, 434.
16
Ibid, 435.
17
Employment Division, Department of Human Resources of Oregon v. Smith (494 U.S.
872 (1990)).
18
Kearney, 435-436.
19
Ibid, 437.
20
Ibid, 443.
21
Ibid, 444.
15
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A main question that remains to be answered is, does the Supreme Court and
American culture base its opinions off a particular religious paradigm? I argue that yes,
America and specifically, the Supreme Court, runs on a Christian paradigm. As Kearney
points out, Supreme Court rulings have changed in waves over the past two hundred
years but I argue that we continue to come back to this idea of Christianity as the norm.
C. My Argument
In this paper, I will argue that America and the United States Supreme Court have
made decisions based on a Christian paradigm that is resistant to progress. In order to
define Christian paradigm, I would first like to point out some statistics. In a survey
conducted by the Pew Research Center in 2014, 70% of Americans identified as
Christian. Of those, 25.4% identified as Evangelical Protestant, 14.7% identified as
Mainline Protestant, and 6.5% identified as Historically Black Protestant. Other Christian
based faiths that were included in the survey were Catholics, which made up 20.8% of
the Christian identifiers, Mormons, which made up 1.6%, Orthodox Christian, which
made up 0.5% and Jehovah’s Witness, which made up 0.8%. The rest of America that
identifies with non-Christian faiths made up 5.9% of the population.22 About 245 million
adults were surveyed, including 173 million Christians. From these statistics, it is quite
evident that Christianity is the majority religion in America. To put these numbers to
scale, Pew Research Center organized the statistics as if the U.S. were made up of only
100 people. In such an America, there would be one Muslim, two Jews, and 71
“Religious Landscape Study,” Pew Research Center, n.d.,
http://www.pewforum.org/religious-landscape-study/.
22
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Christians. Of those 71 Christians, 47 of them would be white.23 According to a Gallup
poll taken in December of 2015, 75% of Americans identify with the Christian religion,
which has decreased since 2008 when the percent was 80%. In the survey report, it is
mentioned that although Christian identification numbers have decreased, the only
population to increase in size is those that do not identify with any particular religion.
But, of those that identify with a particular religion, 94% say they are Christians.
Christians, in this survey, included Catholics, Protestants, Mormons, and nondenominational Christians.24 Another Gallup survey concluded that in the years close to
the cases I will be discussing, the percent that identified as Protestant in America was
58% in 1986 (Goldman) and 69% in 1948.25 After looking at these statistics, I will use
the term Christian to represent Evangelical Protestants and Mainline Protestants. In the
last case, the term is broadened to include Catholics, as they have become a large
percentage of the Christian population, according to the numbers above.
Chapter one is an historical overview of the Free Exercise Clause and religious
freedom in America. In order to show this, I have detailed many Supreme Court cases
that show an evolution of the Free Exercise Clause and the different ways in which
religious freedom has been interpreted over the years. While not all of the religious
freedom cases are represented, the ones that have been chosen work to specifically
highlight the Supreme Court’s bias towards a Christian ideology.
“If the U.S. had 100 people,” Pew Research Center, n.d.,
http://www.pewresearch.org/fact-tank/2016/11/14/if-the-u-s-had-100-people-chartingamericans-religious-affiliations/.
24
“Percentage of Christians in U.S. Drifting Down, but Still High,” Gallup, Dec. 24,
2014, http://www.gallup.com/poll/187955/percentage-christians-drifting-down-high.aspx.
25
“Religion,” Gallup, n.d., http://www.gallup.com/poll/1690/religion.aspx.
The earliest survey was 1948 but it is assumed that the number of Christians in America
did not decrease significantly from 1879 to 1948.
23
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Chapter two focuses on the case of Reynolds v. United States (1879), in which a
Mormon man practicing polygamy was on trial for said religious practice. This chapter
will detail not only the case but also the decision of the Supreme Court as well as the
consequences that arose from their decision. I will also explain where the Supreme
Court’s Christian ideology and anti-Mormon sentiment can be seen throughout the case
and in their decision.
Similarly, chapters three and four will focus on the cases of Goldman v. Weinberger
(1986) and Burwell v. Hobby Lobby Stores (2014), respectively. In addition to detailing
both cases, I will also explain how the decisions of the Supreme Court and the
consequences that came about after the decision work to support my argument that both
American culture and the Supreme Court view religious freedom laws through a
Christian lens.
Chapter five will be a concluding chapter that wraps up all three case studies and
attempts to predict where I think religious freedom laws are headed in the future based on
my research.
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Chapter I: A Historical Overview
“It is only because the Constitution can be interpreted and reinterpreted to meet the
needs of contemporary generations that it has been able to remain viable and vigorous
for the century and three-quarters of its existence. The Constitution is dynamic and
evolutionary, not fixed and static.” ~Leo Pfeffer26
The United States of America was founded on religious freedom. English immigrants
left their countries seeking refuge from religious persecution from the Crown. At the time
of the country’s founding, Americans were mostly of the Christian faith and it has been
through that lens that the religious freedom laws have been created. In the centuries since
America’s independence from Britain, the laws of religious freedom have been
challenged from every angle. Time and again, we can see just how much the Christian
faith has shaped the ideology of religious freedom of this country. Scholars like Robert
Bellah detail how America has a civil religion that looks very similar to Christianity. He
defines a civil religion as different from religion itself because civil religion is public
whereas other religions like Christianity are private.27 It would make sense for a country
whose civil religion is loosely based on the popular religion of its citizens to base its laws
and values of off said religion. It is rarely questioned whether a man can believe and
adhere to any religious values he desires but when his beliefs and values turn into
religious actions that do not coincide with Christian beliefs and values, problems arise.
When religious leaders of the newly founded American states were asked if they
Leo Pfeffer, “The Case for Separation,” in Religion in America, ed. John Cogley (New
York: Meridian Books, Inc., 1958), 54.
27
Robert Bellah, “Civil Religion in America,” Daedalus 134, no. 4 (2005):1.
26
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wanted government support for their respective religions in 1791, they refused.28 This
refusal is likely due to the persecution they had previously faced in Britain. In order to
maintain the freedom they sought, the government was kept out of the religious realm.
The first part of the First Amendment reads: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof…” The dual aspect of
this part is thought of by Leo Pfeffer as “separation and freedom.”29 He explains that they
work in relation to each other in a way similar to checks and balances, “that separation
guaranteed freedom and freedom required separation.”30 As Pfeffer also points out, the
need for separation of church and state mostly came about from devoutly religious
Christians who believed that allowing government power over religion was overthrowing
God’s power over everything.31 Another group to argue the need of religious freedom
was the secular humanists. They believed that according to the social contract theory,
which outlined that the government only has as much power as it is given by those being
governed, religion was out of government jurisdiction because belief is of the mind.32
Before the First Amendment was drafted, freedom of religion was a hot topic
amongst the colonies. In Virginia, a statute was adopted in 1768 stating,
That no man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained, molested, or
burdened in his body or goods, nor shall otherwise suffer on account of his
religious opinions or belief; but that all men shall be free to profess, and by
28
Pfeffer, 59-60.
Ibid, 60.
30
Ibid.
31
Ibid, 63.
32
Ibid, 65.
29
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argument to maintain, their opinion in matters of religion, and that the same shall
in no wise diminish enlarge, or affect their civil capacities.33
At the time, in order to take a government position, a man needed to be of a
certain religion but Thomas Jefferson explained that to make a man profess one religion
or another corrupts not only the man but religion itself. To bribe someone to confess
believing in a religion takes away from the integrity of the religion.34 This being
generally understood in Virginia, it only made sense that such a statute finds its way into
all the other colonies’ Assemblies and eventually the entire nation’s Constitution. We can
start to see that even from the beginning, religion has been an important aspect of
America culture.
Historian Leo Pfeffer, who focused mainly on the Constitution, pointed out that there
is a particular relationship between religious freedom in the Free Exercise Clause and the
Constitution itself. He reminds us that the Constitution is a secular document and the
religion clause in the First Amendment is further pledging that characteristic.35 The
founding fathers that wrote the First Amendment in the Bill of Rights of the Constitution
wrote the religion clause with the intention of making the exercise of religion free and
removing all government from said realm.36 The idea of religious freedom works well in
theory but not so in practice. What happens when someone’s religious actions break the
law of the land? Is it the place of the government and the Court to say a religious act,
which the government relinquished jurisdiction over, is not allowed?
33
Bruce Murray, Religious Liberty in America (Amherst: University of Massachusetts
Press, 2008), 11.
34
Ibid, 12.
35
Pfeffer, 72.
36
Ibid, 77.
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The Constitution vows to protect religious freedom but the question that has been
brought to the Supreme Court time and again is: What religious paradigms are protected?
It would seem that monotheism with Christian values has been the default religion that
the Court seeks to make its decisions based upon; it is the norm that most religion claims
are compared to. Over the years, many Supreme Court cases have shaped and evolved
this idea of religious freedom in a progressive manner but overall, the Court continues to
rule based on a Christian worldview. Below are just a few of the impactful cases that
have been brought to the Supreme Court for resolution.
One of the first cases dealing with religious freedom was brought to the Supreme
Court in 1844. In the case of Vidal v. Girard’s Executors, a man by the name of Stephen
Girard died in 1831, leaving in his will the establishment of a college for orphans. He
required that they be taught all subjects except religion. There was to be no religious
affiliation whatsoever, including no clergymen on staff or even on the premises.37 The
Court decided that this exclusion of religion in the college was against Pennsylvania law
because it was hostile to the Christian religion. The Court stated,
First, because of the exclusion of all ecclesiastics, missionaries, and ministers of
any sect from holding or exercising any station or duty in the college, or even
visiting the same, and second, because it limits the instruction to be given to the
scholars to pure morality, and general benevolence, and a love of truth, sobriety,
and industry, thereby excluding, by implication, all instruction in the Christian
religion.38
37
Joseph Tussman, The Supreme Court on Church & State (New York: Oxford
University Press, 1962), 5-6.
38
Ibid, 6.
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The Court saw discrimination against the Christian religion in this case and therefore
decided that religion could not be excluded completely from the institution.
In Vidal, it might be assumed today, that the Court would encourage the lack of
religion in a place of education but back when this case was being seen, religion in an
educational institution was common.39 The Court decided against the banning of religion
in such an institution because it would actually be discrimination against religion,
specifically, Christianity. It can be seen from this case that the Court and the Constitution
favored balance, not just the expulsion of religion all together. Though, it is also
important to remember that this case discussed discriminated against Christianity that
was supposedly taking place at the institution, which may have allowed for biased
opinions. Again, the country was founded on Christian principles so discrimination
against such a highly regarded religion was bound to ruffle feathers.
The first major case that allowed the Supreme Court to begin shaping religious
freedom happened in 1879. In the case of Reynolds v. United States (1879),40 George
Reynolds was accused of bigamy,41 which is against the law. The Court held that
although Reynolds was a practicing member of the Church of Jesus Christ of Latter Day
Saints and polygamy was part of his religious tradition, Reynolds married a second
woman with intention knowing full well that his first wife was alive and still under a
marriage contract with him and that this was against the law. Being that Reynolds’
actions broke the law, the Court ruled that there was criminal intent even though his
This can be assumed based on today’s standards of religion in the classroom. That
being said, prayers in schools was still a common practice back then.
40
Reynolds v. United States (98 U.S. 145 (1879)).
41
In this paper, I use bigamy and polygamy interchangeably, as both are used
interchangeably throughout the case.
39
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beliefs in doing so were strictly religious.42 In the words of Chief Justice Waite, “To
permit [bigamy] would be to make the professed doctrines of religious belief superior to
the law of the land, and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances.”43
While the same decision may not be made by the Supreme Court today because the
anti-Mormon sentiment that was present back then is not present today, it is important to
note, this was the first Mormon case to be seen by the Supreme Court. It was also the
case in which Thomas Jefferson’s phrase, “a wall of separation between Church and
State,”44 makes its way into our judicial system. The separation that Jefferson was
referring to was between belief and action. Congress was able to make legislation on
actions, not beliefs. Better explained, the beliefs of a man are of no concern to the Court
but when a crime is committed due to ignorance, it becomes criminal. The ignorance is
not ignorance of the law but the belief that the law should not exist in the first place, such
as Reynolds believed. Even if Reynolds argued that he believed the law should exist, by
breaking the law with intention, his actions suggested otherwise.
It is here that we begin to see the Christian lens take hold in the Supreme Court.
According to Dereck Daschke and other religious scholars, the Mormon religion is
considered a New Religious Movement, even today.45 Not being a religion that was
around when the country was founded made it new and somewhat unknown by the
general public. Being different from mainstream Christianity, on which the country was
42
Tussman, 20-21.
Ibid, 20.
44
Ibid.
45
New Religious Movements: A Documentary Reader, ed. W. Michael Ashcraft (New
York and London: New York University Press, 2005).
43
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founded, put the Mormon Church under much suspicion and scrutiny. The Mormon
Church in particular gave the Supreme Court a chance to continue defining the First
Amendment for many years to come.
Only eleven years after Reynolds, the Court still seemed to hold the anti-Mormon and
pro-Christian sentiment46 when seeing the case of Davis v. Beason (1890).47 Samuel
Davis, a Mormon, wanted to vote in the Territory of Idaho. In order to do so, he was
forced to take an oath stating that he did not affiliate with a religion or school of thought
that practiced or taught polygamy. Even though he was part of the Mormon Church, he
took the oath anyway. The Court decided that it was unconstitutional for a Territory or
State to prohibit someone from voting because they are involved in or associated with
people who practice polygamy.
The Court stated,
The oppressive measures adopted, and the cruelties and punishments inflicted by
the governments of Europe for many ages, to compel parties to conform in the
religious beliefs and modes of worship to the views of the most numerous sect,
and the folly of attempting in that way to control the mental operations of persons
and enforce an outward conformity to a prescribed standard, let to the adoption of
the Amendment in question. It was never intended or supposed that the
Amendment could be invoked, as a protection against legislation for the
punishment of acts inimical to the peace, good order and morals of society.48
Here, we see that the government reinforced the protection of one’s civil liberties
46
Anti-Mormon and pro-Christian sentiments are different but both apply in this
situation.
47
Davis v. Beason (133 U.S. 333 (1890)).
48
Tussman, 29.
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such as voting over the state’s discrimination of one’s religious beliefs and in doing so,
also protected Davis’s religious freedom. The country was founded because of the
oppression of a religiously driven monarchy. Seeing that the Territory of Idaho was
acting as the monarchy had in restricting participation due to religious beliefs, the Court
realized the importance of civil liberties over all else, including a religion, which
appeared outside of the norm. A step in the right direction from the Court gives hope to
religions that stray from mainstream Christianity but it was not the religion that the Court
was protecting, it was the civil liberties of the individual.
We see further struggles between the Court and the Mormon Church in the case of
The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States
(1890).49 The case was heard by the Supreme Court the same year that it heard Davis.
Both of these cases involved the Mormon Church but had very different outcomes. In
LDS, the government wanted to stop supporting the Mormon Church because it did not
follow Christian ways and the laws of the U.S., specifically in terms of polygamy. The
Court stated:
One pretense for this obstinate course is, that their belief in the practice of
polygamy, or in the right to indulge in it, is a religious belief, and therefore under
the protection of the constitutional guaranty of religious freedom. This is
altogether a sophistical plea. No doubt the Thugs of India imagined that their
belief in the right of assassination was a religious belief; but their thinking so did
not make it so. The practice of suttee by the Hindu widows may have sprung from
a supposed religious conviction. The offering of human sacrifices by our own
49
The Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United
States (136 U.S. 1 (1890)).
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ancestors in Britain was no doubt sanctioned by an equally conscientious impulse.
But no one, on that account, would hesitate to brand these practices, now, as
crimes against society, and obnoxious to condemnation and punishment by the
civil authority.50
In the end, the Court ruled in favor of the government and the church’s funding and
property were taken away due to misuse.51 In the above excerpt, it can be seen that the
limits of the free exercise clause are only that which coincide with common law.
Meaning, if something is against the law but required by one’s religion, the act cannot
take place but one can still believe in the act as religious. This simplified explanation of
free exercise lasted for some time in the American judicial system. It was not until later
in American history that issues of state interest came into the conversation. It is also
interesting to compare how the Court handles a case involving civic duties such as voting
and civic liberties such as the free exercise clause. One directly impacts the government
(civic duty) and the other does not. The Court ruled in favor of the Mormon when ruling
against would infringe on his civic duty but ruled against the Mormon Church when
ruling in favor would essentially mean allowing polygamy.
We can see in these cases involving the Mormon religion that the Court heavily
pushed its Christian agenda that is hidden in the Free Exercise Clause of the First
Amendment and passed judgment based on the underlying anti-Mormon sentiment that
was incorporated in American ideology at the time. The only case in which the Court
sided with the Mormon religion was when American civic duties were being questioned.
In the case of LDS, it is obvious that religious practices that go against Christian values
50
51
Tussman, 34.
Ibid, 35.
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were not acceptable practices in America. The Mormon Church was not the only church
that was discriminated against for going against the norm. In the case of Hamilton v.
Regents of University of California,52 seen by the Court in 1934, two boys applied to the
University of California but refused to fulfill the requirement of ROTC because they
were a part of the Methodist Episcopal Church, which believes in pacifism.53 The
students first applied to be exempt from the ROTC courses but were denied. They then
petitioned the regents asking that the military requirements be made optional for all
students and were again rejected. Shortly after, the students were notified that they were
suspended from the university and may only be readmitted once they agreed to take the
military courses.54
It was up to the Court to decide if the students’ liberties had been infringed upon. The
Court responded saying,
The First Amendment, if it be read into the Fourteenth, makes invalid any state
law ‘respecting an establishment of religion, or prohibiting the free exercise
thereof.’ Instruction in military science is not instruction in the practice or tenets
of a religion. Neither directly nor indirectly is government establishing a state
religion when it insists upon such training. Instruction in military science,
unaccompanied here by any pledge of military service, is not an interference by
the state with the free exercise of religion when the liberties of the Constitution
are read in the light of a century and a half of history during days of peace and
52
Hamilton v. Regents of University of California (293 U.S. 245 (1934)).
Tussman, 66.
54
Ibid, 67.
53
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war.55
The Court’s decision in favor of the university was due to the noncommittal nature of
the military courses. They were not asking the students to use weapons but merely to
learn how to use them. Again we see the Court’s intolerance for what isn’t considered the
norm.
The first in a series of Jehovah’s Witnesses cases that are further examples of the
Court’s biases occurred in 1940.56 This case is an example of how the Court worked to
protect all religions not just Christianity as it does in waves throughout American history.
The case of Cantwell v. Connecticut (1940)57 was brought to the Supreme Court when
Newton Cantwell and his sons, Jesse and Russell were proselytizing, giving out
pamphlets and allowing people to listen to a message on a portable phonograph. After
upsetting two pedestrians, all three were arrested on the grounds that they did not have a
solicitation permit and that they were disturbing the peace.58 The Court found that these
charges were unconstitutional.59 The first problem to be solved was that the Cantwells did
not have permits. It was proposed that a state official grant permits to those he believes
are soliciting for religious causes but that gives the state authority to determine what is
and is not a religious cause, which is unconstitutional.60 The second problem to be solved
was that the Cantwells were said to be disturbing the peace. The state has a right to
protect against peace disturbers. The Court found that after interviewing the upset men
that listened to the phonograph, there was no violence or peace disturbance of any kind
55
Ibid, 71.
Ibid, 72.
57
Cantwell v. Connecticut (310 U.S. 296 (1940)).
58
Tussman, 73.
59
Ibid, 77.
60
Ibid.
56
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nor was there going to be. In the opinion of the Court, Justice Roberts stated that
Cantwell did not pose a threat to the peace, order, or safety of the public because he was
expressing his right to free speech. Cantwell had the right to peacefully express his views
to others, which he did with their permission. Therefore, “he had invaded no right or
interest of the public or of the men accosted…Cantwell’s conduct, in the view of the
court below, considered apart from the effect of his communication upon his hearers, did
not amount to a breach of the peace.”61
Here, the Court has narrowed down the definition of the First Amendment by saying
that “the [First] Amendment embraces two concepts, —freedom to believe and freedom
to act. The first is absolute but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society. The freedom to act must have
appropriate definition to preserve the enforcement of that protection.”62 Speaking directly
to the problem on the protection of belief and the protection of action, this case is the
perfect example of a Court that sees the need for the protection of all religions, not just
Christianity. In this case, the actions taken were not in conjunction with Christian values
but the Court sided with the Jehovah’s Witnesses because, according to the Constitution,
they were acting upon their religious freedoms. It is important to include this case in the
historical overview because it was a turning point for the
Another Jehovah’s Witnesses case was brought to the Court in 1940 that focused on
the necessity of children saluting the American flag in school. Minersville School District
v. Gobitis (1940)63 was concerning two children in public school who refused to salute
61
310 U.S. 269 (1940), Opinion of the Court.
Tussman, 75.
63
Minserville School District v. Gobitis (310 U.S. 586 (1940)).
62
Kaseff 22
the American flag due to their religious beliefs. The Gobitis children were then expelled
for insubordination. The Court decided that the mandatory saluting of the flag did not
infringe on the children’s rights according to the First and Fourteenth Amendments
because the flag was an important symbol for children to associate with their country.64
In the same year, the Court reversed its decision in the case, West Virginia State Board of
Education v. Barnette (1943).65 Again, children adhering to the beliefs of Jehovah’s
Witnesses refused to salute the flag. This time, the Court found that it was
unconstitutional to force a belief on anyone and the salute was deemed an act or means of
communication and was therefore protected by the First Amendment. We can see from
these two cases that the struggle between what was Christian and what was constitutional
was increasing rapidly. Determining what was constitutional seemed to be beating the
need for a “Christian” America.
In later years, it was the Jewish faith that gave the Court much to think about when a
case was determined involving an Orthodox Jewish man in Pennsylvania. The case of
Braunfeld v. Brown (1961)66 was about Abraham Braunfeld who owned a shop and
according to his religious beliefs, he was unable to open the shop on Saturdays.
Pennsylvania blue law only let certain stores remain open on Sundays, meaning
Braunfeld could only keep his shop open five days a week. In order to financially sustain
himself, Braunfeld needed to keep his shop open six days a week but the combination of
Toni Konkoly, “Minersville School District v. Gobitis (1940),” Public Broadcasting
Service, n.d.,
http://www.pbs.org/wnet/supremecourt/personality/landmark_minersville.html.
65
West Virginia State Board of Education v. Barnette (319 U.S. 624 (1943)).
66
Braunfeld v. Brown (366 U.S. 599 (1961)).
64
Kaseff 23
the blue law and his faith prohibited him from doing so67.
The question at hand was whether or not blue laws in Pennsylvania violated the
protection of free exercise in the First Amendment. The Opinion of the Court, written by
Chief Justice Warren, decided that the blue law was not in violation. He stated, “The
freedom to hold religious beliefs and opinions is absolute…However, the freedom to act,
even when the action is in accord with one’s religious convictions, is not totally free from
government restrictions…That an indirect burden, such as economic sacrifice, may be a
result of the statute, does not make the blue law unconstitutional.”68
Interestingly, blue laws in the United States originate from a religious background.
They were put into place to allow for religious observances, Christian religious
observances, to be specific. The origin of the blue law can be seen as a way in which
America has integrated Christian values like the Sabbath on Sunday into the culture. We
see here how the Court is inconsistent when ruling a case involving a religion other than
Christianity.
Another case concerning an Orthodox Jewish man in which the Court resisted to
grant accommodations for a religion that did not adhere to Christian values happened in
1985. In Goldman v. Weinberger (1986),69 S. Simcha Goldman was an Air Force officer
who wished to wear a yarmulke as required by his Jewish faith. An Air Force regulation
prohibited him from doing so while on duty or in Air Force uniform. The question the
Supreme Court had to answer was if the Air Force Regulation and uniform requirements
violated Goldman’s right to free exercise. The Court concluded the regulation was not in
67
Ibid, Opinion of the Court.
Ibid.
69
Goldman v. Weinberger (475 U.S. 503 (1986)).
68
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violation of the Free Exercise Clause because religious apparel such as a yarmulke,
“would detract from the uniformity sought by dress regulations,”70 and was therefore
necessary. Two years later, the Court reversed its decision, allowing religious apparel in a
“neat and conservative” manner. We can see that the original regulations of the Air Force
do not impede on Christian practices in appearance but does interfere with most other
religious doctrines and appearance requirements. One might think that an institution such
as the military, which is so crucial to American ideology, would not allow any
unconstitutional regulations in its charter but the military actually adheres to its own set
of rules and allowances. More will be said on this in chapter 4.
To sum up, throughout the history of religious freedom, it can be seen that Christian
undertones and biases have heavily influenced the Supreme Court’s decisions. Though
there have been small wins for religious minorities, there continues to be a backwards
slide towards discrimination amongst the Supreme Court. The next three chapters will
focus on specific case studies that I believe exemplify the Christian bias of the Supreme
Court. These three cases will also show the ways in which the Court has used the
Constitution to further push a Christian ideology into the American judicial system.
70
Ibid, Opinion of the Court.
Kaseff 25
Chapter II: The Belief/Action Dichotomy:
Reynolds v. United States (1879)
As the first major Supreme Court case to shape the Free Exercise Clause, Reynolds is
an important case to cover in detail. Not only is it the first case to shape religious
freedom, it is also the first major example of the Supreme Court’s bias towards mainline
Christianity and the ways in which Christianity was (and still is) heavily intertwined with
American culture. In this chapter, I will set the scene for this case, look at it in detail, and
then analyze the aftermath and consequences of Reynolds v. United States (1879).
Background
In the 1800’s, it was generally understood that religion was attempting to merely
coexist with the state. The reason religion was able to coexist with the state was because
the majority religion was Christianity and America was built by Christians so their
accommodations were built into the culture and society. Most religions were attempting
this except the Mormon Church.71 Part of the Mormon doctrine is that the Constitution
was divinely inspired so their adherence to it was to be expected. This was true in most
Mormon practices except polygamy, or the marriage of one man to multiple women,
which was and continues to be illegal in the United States and (at the time) the
Territories. Due to their belief in the Constitution, it was understood that although the
practice of polygamy was outlawed, it was protected by the Free Exercise Clause in the
James L. Clayton, “The Supreme Court, Polygamy and the Enforcement of Morals in
Nineteenth Century America,” Dialogue: A Journal of Mormon Thought 12, no. 4 (1979),
47.
71
Kaseff 26
First Amendment.72 As James L. Clayton says,
The [Mormon] church leaders never questioned the right of Congress to regulate
the morals of its constituents, and the Mormon view of the Supreme Court,
despite numerous negative judicial experiences…was one of general respect and
trust.73
Though it was understood that polygamy was against the law, the Mormon
community believed themselves to be exempt due to their religious commitments to the
practice.
It is important to note that part of the reason polygamy was outlawed in America was
because it had been outlawed in England and Wales. Christianity was the law of the land
and polygamy goes against Christianity.74 This having been the law of the land when
America gained her independence, it seemed to make ideological sense that such a law be
carried over. At the time, polygamy was only practiced in places like Asia and Africa.75
Coincidentally, these were also places where Christianity was not the majority religion of
the land. The law that was put into place to outlaw polygamy was the Morrill AntiBigamy Act signed in by President Abraham Lincoln in 1862. The Act stated that, “every
person having a husband or wife living, who shall marry any other person…in a Territory
of the United States…shall be punished by a fine…”76 While this law was applicable to
everyone, the only people it effected in a religious context was the Mormons. This act
just further shows the lengths at which the Mormons were not tolerated in both a cultural
72
Ibid, 49.
Ibid.
74
98 U.S. 145 (1879), Opinion of the Court: Section 5.
75
Ibid.
76
Morrill Anti-Bigamy Act of 1862, 37th Congress: 501.
73
Kaseff 27
and judicial sense.
The key issues at hand were that the Mormon church believed in both their practice of
polygamy and in the sacredness of the Constitution, which protected their right to
practice polygamy. There was underlying anti-Mormon sentiment within the government
and American society that recognized polygamy as illegal, even as a religious practice. It
was up to the Court to decide if the practice was protected or not.
The Case
Polygamy is a practice that was required of the male members of the Church of Jesus
Christ of Latter Day Saints, or the Mormon Church. To not practice polygamy would
mean “damnation in the life to come.”77 In contrast, polygamy was and continues to be
outlawed in the United States. In 1874, leaders of the Mormon Church and the United
States Attorney agreed to test the constitutionality of the Morrill Anti-Bigamy Act, which
solely affected them as a religious community.78 George Reynolds, a member of the
Mormon Church and personal secretary to Brigham Young, who lived in the Utah
Territory where the banning of polygamy was enforced, was picked for the case.
Reynolds was married to two women in accordance with his religious beliefs. Reynolds
had not known that he would be put on trial in order to test the law but nonetheless,
“Reynolds was indicted for bigamy in October 1874 by a grand jury empaneled
according to the provisions of the act of 1862 and on the basis of testimony from
witnesses he himself supplied.”79 The jury, made up of seven Mormons and five non-
77
Ibid.
Clayton, 49.
79
Ibid.
78
Kaseff 28
Mormons, found Reynolds guilty of bigamy but the charge was overturned due to an
inadequate assembly of the jury. Based on his second wife’s testimony at the first trial,
Reynolds was again convicted a year later.
The question posed to the jury was not whether Congress could enforce the antibigamy act in the Territories but rather, if a criminal act can be committed without
criminal intent and still be tried as a crime. To narrow down this question, it could be
posed in two questions: Is outlawing polygamy against the Free Exercise Clause? and,
Are those that practice polygamy religiously exempt and protected by the Free Exercise
Clause?
The Decision
In order for the Court to make an informed decision, it first had to be decided if
Congress even had the power to dictate marriage laws. As Chief Justice Waite said in his
opinion of the Court, “Marriage, while from its very nature a sacred obligation, is
nevertheless, in most civilized nations, a civil contract, and usually regulated by law.”80
By using the words “sacred obligation,” Justice Waite is admitting that marriage is
inherently a religious act but he then explains that the concept of marriage also spills over
into the civil realm, of which Congress has jurisdiction. It was therefore decided that yes,
Congress had legislative power over such laws.
In order to fully understand what a religious obligation is and exactly which rights
were protected by religious freedom, the Court had to determine the meaning of the word
“religion.” During the case, it was acknowledged that, “the word ‘religion’ is not defined
80
98 U.S. 145 (1879), Opinion of the Court: Section 5.
Kaseff 29
in the Constitution,” so they had to look for the meaning in the times that religious
freedom was created.81 The case then goes on to give a brief history of religious freedom
in America detailing which states added such provisions in their drafts of the Constitution
and which figure heads believed it had a place in the document.82 A quote from Thomas
Jefferson stands out as an answer to their inquiries:
Believing with you that religion is a matter which lies solely between man and his
God; that he owes account to none other for his faith or his worship; that the
legislative powers of the government reach actions only, and not opinions,— I
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should ‘make no law respecting an
establishment of religion or prohibiting the free exercise thereof,’ thus building a
wall of separation between church and State.83
Here, it can be seen that belief is protected by the Free Exercise Clause, not action,
and that the laws, which Congress creates, stand even against religious obligations. Does
this mean the law of the land is higher than God? Clayton would say no. Being that
Justice Waite gave his reasoning for convicting Reynolds in a secular manner, it would
stand to reason that the Supreme Court simply did not recognize a higher authority.84 As
Clayton explains, “Since the Constitution does not recognize a higher authority than
itself, neither would the Court.”85
Justice Waite gave three main points in his opinion of the Court as to why they found
81
Ibid.
Ibid.
83
Emphasis added, Ibid.
84
Clayton, 50.
85
Ibid.
82
Kaseff 30
Reynolds guilty. The first point was that polygamy disturbed “peace and good order.”86 It
is important to remember that this trial began on an agreement, not because a complaint
was brought up against Reynolds. The Chief Justice is assuming that polygamy is
disruptive because it was not accepted anywhere else in Western society. Polygamy was
practiced in places that were perceived to be uncivilized so he drew a correlation between
an uncivilized culture and the practice of polygamy. If polygamy was associated with an
uncivilized people, it would not be a far reach for the Chief Justice to assume Mormons
were an uncivilized people as well.
Justice Waite’s second point was that democracy was built on monogamy. He finds
this to be so by running through the following logic: “Since polygamy leads to patriarchy,
and patriarchy leads to despotism, monogamy is the very foundation of the democratic
state.”87 Using polygamy as the complete opposite of monogamy, Justice Waite
understood polygamy to essentially be the enemy of democracy. The lines drawn
between polygamy leading to the end of democracy only added to the discrimination of
the Mormon church for their polygamist practices.
Justice Waite’s third point in convicting Reynolds was that polygamy should not have
protection under the Free Exercise Clause. He backs up this argument using extreme
examples like religious human sacrifice or a wife believing it religiously necessary to
burn with her husband in the funeral pyre. Clayton speaks to this saying, “Finally, having
declared that polygamy was like wife-burning, so odious as to have been everywhere
prohibited in America, that such nefarious marriages led to patriarchy and consequently
ought to be prohibited under the ‘bad tendency’ rubric, that polygamy was as barbaric as
86
87
Ibid, 51.
Ibid.
Kaseff 31
the worst offense imaginable,”88 Justice Waite concluded that the Constitution protected
religious beliefs, not religious actions. In his final statements, Waite went so far as to say,
“To permit [polygamy] would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become a law unto
himself. Government could exist only in name under such circumstances.”89 The Court
ruled that there was criminal intent in the act of polygamy because he purposefully
married a second woman with full knowledge of the law of the land.
Being one of the first Mormon cases to be brought to the Supreme Court, “it is the
Court’s first discussion of the ‘free exercise’ clause of the First Amendment and it is here
that Jefferson’s phrase, “a wall of separation between Church and State” makes its initial
appearance in judicial literature. Congress, said the Court, was deprived of all legislative
power over ‘mere opinion,’ but it was left free to deal with ‘actions’ in violation of social
duties or subversive of good order. The ‘wall’ thus seems to separate the realms of belief
and action.”90 It was not a question of Congress’s power to create and enforce laws in the
Territories but, “as to the guilt of one who knowingly violates a law which has been
properly enacted, if he entertains a religious belief that the law is wrong.”91 The beliefs of
a man are of no concern to the Court but when a crime is committed due to ignorance, it
becomes criminal. The ignorance is not ignorance of the law but the belief that the law
should not exist in the first place.
The Consequences
88
Ibid, 52.
98 U.S. 145 (1879), Opinion of the Court: Section 5.
90
Tussman, 20.
91
98 U.S. 145 (1879), Opinion of the Court: Section 5.
89
Kaseff 32
The impact of the Reynolds case was immediate and lasting. This case began as a
legal crusade aimed at the Mormon community in an effort to eradicate them. Clayton
describes the hardships that not just polygamists faced but all Mormons. Mormons,
whether they practiced polygamy or not, were denied the right to vote, the government
was able to confiscate their property without compensation, and polygamists were
prohibited from providing financial support to plural wives they no longer lived with.
“Reynolds laid the legal groundwork for a national crusade not just against polygamy, but
against the Mormon religion itself,” and speaking towards a future case, Clayton said,
“The effect of the Late Church92 decision was to declare all Mormons beyond the
protection of the First Amendment whether they practiced polygamy or not.”93
The fact that these legal struggles were aimed at all Mormons and not just those that
practiced polygamy shows that these government actions were a form of religious
persecution, not an effort to uphold the law. Another problem that arose from this case
was the belief/conduct dichotomy. In Clayton’s opinion, the distinction between the two
is a, “gross oversimplification of these complex issues.”94 Where does belief stop and
conduct start? He uses the examples of going to mass, praying, and taking the sacrament
to show that these are actions as well, not just beliefs. Though he makes a good point that
his examples as well as the act of polygamy are forms of conduct that should all be
protected, what he failed to recognize is that going to mass, praying, and taking the
sacrament are not illegal in the United States but practicing polygamy is. He then asks,
92
The Late Church case involved the government wanting to stop supporting the
Mormon Church because it did not follow Christian morals and values and the laws of
the U.S. As a result, the government took away their funding and property because the
government decided both were being misused.
93
Clayton, 55.
94
Ibid.
Kaseff 33
“if religious conduct can be proscribed, can it also be required?”95 He uses examples like
being required to attend ROTC even if one’s religion forbids such actions, being required
to salute the flag, and requiring an office holder to believe in God.96 While his first
examples of proscribing conduct do not hold much water in the polygamy conversation,
his latter examples of requirement bring up some interesting questions. The dichotomy of
belief and conduct are too intertwined for one court case to decide them all. The reason
there have been so many Supreme Court cases about this dichotomy is because the
decisions need to be on a case-by-case basis. The case-by-case system would work better
if the Court were more consistent with its decisions but in the few that Clayton brings up,
the Court seems to err on the side of Christian values.
Possibly the most detrimental outcome of the Reynolds case was the toll it took on the
Mormon community. Clayton points out that the Mormons did not seem as though the
Court’s decision would change their practicing of polygamy in any way but that was not
the case. Both in the short term and the long term, the Reynolds case changed the
Mormon culture. Clayton explains,
The Mormons [were not] especially tolerant of their own deviants. Mormon
bishops who refused to practice polygamy because it was illegal after 1879 were
95
Ibid.
The three Supreme Court cases that Clayton is referring to are Hamilton v. Regents of
University of California, Minersville v. Gobitis, and Tarcaso v. Watkins. In the Hamilton
case, the Court decided that the state requiring ROTC in order to graduate from the
university was not an infringement on one’s First Amendment rights even if one’s
religion is one of pacifism. In the Minersville case, the Court decided it was not
unconstitutional to require a child to salute the American flag even if their religious
beliefs forbid it. In the Tarcaso case, the Court decided it was unconstitutional for the
state of Maryland to force an office holder to admit belief in God in order to hold that
position (Oyez).
96
Kaseff 34
frequently released from their offices, and those who openly criticized church
leadership were usually excommunicated. Finally, the Mormons seemed
unimpressed with the idea that states, too, have compelling interests and that ‘a
wall of separation’ which protects religious freedom sometimes requires religious
compromise.97
In the time period right after the case, the Mormon community took an arguably
extreme approach when told their religious practice was illegal but today, the Mormons
have a very different view on the subject. Ironically, today’s Mormons have come to
internalize what the earlier generations worked to repel in their communities. To this
point, Clayton says, “The point is that Mormons now willingly conform to the ideals of
monogamy. The idea of returning to their earlier ways is as abhorrent to them as it once
was to their detractors.”98
This case is the perfect example of how the religious majority can indirectly force an
ideology onto religious minorities. Being that marriage is considered a “sacred
obligation” in America, polygamy was a threat to not only the Christian religious values
of the country but also the values of the entire society. American society is made up of
Christian values that struggle to stray too far from mainstream without some sort of
resistance, hence why marriage is considered a “sacred obligation” and not a civil
obligation. The idea of marriage being sacred is especially present in Catholic rhetoric.
Matrimony is one of the seven sacraments and each union is thought to come from God
and therefore, cannot be broken or undone. It is no wonder the American people would
be so offended by polygamy when such holy significance is put on the sanctity of
97
98
Clayton, 56.
Ibid, 58.
Kaseff 35
marriage.
Reynolds is an example of the belief/action dichotomy that the Supreme Court used to
limit the Free Exercise Clause. The limitation did little to limit Christian practices
because any other laws of the land did not outlaw Christian religious practices. This
limitation did affect religions, which had different practices than those of mainline
Christianity, such as Mormonism. If such a limitation is put in place, how much freedom
can the Free Exercise Clause protect? In the next chapter, we will see how even without
the belief/action dichotomy, the Supreme Court still finds ways to resist reinterpretation
of the Free Exercise Clause to allow non-Christian religions to practice (not just believe)
freely.
Kaseff 36
Chapter III: Government Interests Supersede Free Exercise
Goldman v. Weinberger (1986)
In the previous chapter, we learned that the Supreme Court understood the Free
Exercise Clause to be limited by the belief/action dichotomy in which belief is protected
while action is not. In this chapter, we will be exploring how new limitations on religious
freedom, that replaced the belief/action dichotomy, still allow for religious discrimination
by the Supreme Court. Goldman details the ways in which the government and the
Supreme Court can use government interests to prohibit the free exercise of religious
actions that do not coincide with Christian practices.
Background
The military is one of the staples of this country and a symbol of its freedom. As
such, one would believe that it should be held to the same constitutional standards as
civilians but this does not seem to be the case. Being a unique community, the military
has its own regulations set out by the Department of Defense (DoD) for religious matters
that seem to go against the Constitution at times. As one retired Air Force Colonel
relayed, when in the military, duty comes before all else, even religious obligations. 99
The Case
Simcha Goldman was an Air Force officer in the US military. An observant Jew and
an ordained rabbi, Goldman wished to wear a yarmulke or religious skullcap. During his
99
Air Force Col. Dave Cohen (retired), interviewed by author, January 2017.
Kaseff 37
case Goldman argued that,
The Free Exercise Clause of the First Amendment requires the Air Force to make
an exception to its uniform dress requirements for religious apparel unless the
accouterments create a ‘clear danger’ of undermining discipline and esprit de
corps. He asserts that in general, visible but ‘unobtrusive’ apparel will not create
such a danger and must therefore be accommodated.100
On March 25, 1986, the Court decided that regulations prohibiting Goldman from
wearing his religious garb did not infringe upon his right to freely exercise his religion.101
Goldman had worked in many different positions in the military over the years of his
service including serving as chaplain in the Navy from 1970-1972, and clinical
psychologist in the Air Force starting in 1977. At no point during his service, until May
of 1981, did Goldman have any issues wearing his yarmulke while on duty.102
Goldman was never reprimanded for wearing his religious skullcap before 1981 so it
made sense for him to continue wearing it when he served at March Air Force Base in
1977. Attention to Goldman wearing his yarmulke came in April 1981 when he testified
as a defense witness at a court martial.103 Goldman had also testified in a court martial the
year before and was cross-examined by the same military prosecutor, Captain Bouchard.
During both courts martial, Goldman wore his yarmulke but in the court martial of 1981,
Goldman accused Bouchard of asking irrelevant questions with both frustrated and
100
475 U.S. 503 (1986), Opinion of the Court.
Samuel J. Levine, “Untold Stories of Goldman v. Weinberger,” Air Force Law Review
66 (June 2010), 207.
102
Ibid, 208.
103
Ibid, 210.
101
Kaseff 38
embarrassed Bouchard.104 It was after the second court martial that Bouchard filed the
complaint against Goldman.
On May 8, 1981, the commander of the hospital where Goldman worked, Colonel
Joseph Gregory, called Goldman into his office to inform him that by wearing his
yarmulke, he was in violation of the Air Force dress code. Colonel Gregory instructed
Goldman to remove his yarmulke while both outside and inside the hospital. When
Goldman refused to comply, he was sent a letter of reprimand informing him that he
could be court-martialed.105 It was then that, “Goldman filed suit on the grounds that the
orders violated his First Amendment rights to free exercise of religion.”106 He filed for a
Temporary Restraining Order (TRO) enjoining the Air Force to no longer prohibit him
from wearing his yarmulke.107
In order to proceed with the case, Colonel Gregory had to discern to what extent
Goldman’s religion required him to wear his yarmulke. Even today, in order to receive
religious accommodations in the military, there is a long “background check” like
process to decide if the person requesting the accommodation is sincere in their request.
This process includes questioning the person’s friends on base as well as their
commanding officer and even family members.108 The base chaplain at March Air Force
Base was not Jewish so he was asked to inquire the necessity of a yarmulke to the Jewish
religion. Instead of asking Goldman himself, an ordained orthodox rabbi and former
Navy chaplain, the base chaplain contacted the “Jewish Welfare Board, an organization
104
Ibid, 211.
Ibid.
106
Ibid.
107
Ibid, 213.
108
Army Col. Mike Tetu (retired), interviewed by author, January 2017.
105
Kaseff 39
that acted as the ecclesiastical liaison for the military regarding matters of Jewish
faith.”109 Instead of speaking to a rabbi at the organization, the base chaplain consulted
Dr. Diana Coran, an employee of the organization. The base chaplain claimed that Dr.
Coran told him that, “wearing a yarmulke was not a religious obligation.”110 There were a
few problems with this series of events and the outcomes that resulted. As Levine
explains it, “Disturbingly, in the process of consulting with Dr. Coran, the commanders
not only deferred to the purported position of an individual who was not a rabbi, but they
either misunderstood or intentionally misstated Dr. Coran’s response.”111 It was later
discovered that Dr. Coran had actually told the base chaplain that there was an obligation
for a Jewish male to cover his head at all times but it was up to the individual as to what
that covering would be. He could use a traditional yarmulke, a baseball cap, or even a
military cap. Due to uniform regulations, Goldman could not wear his military cap
indoors so it made Jewish sense to wear a traditional yarmulke instead.112
Unfortunately, this was not the last time in the proceedings of this case that Goldman
was met with discrimination from his superiors. During one of Goldman’s therapy
sessions that he was conducting, he was interrupted by a knock at the door. He was told
by the interrupter that the base commander needed to speak with him. When Goldman
asked if he could finish the therapy session first, he was told he could not. The base
commander asked to meet with Goldman so he could tell him to remove his yarmulke.
Immediately after receiving the order, Goldman attempted to meet with the Vice Wing
Commander but this Commander who also acted as the Inspector General refused to meet
109
Ibid, 212.
Ibid.
111
Ibid.
112
Ibid.
110
Kaseff 40
with Goldman because he was out of uniform due to his yarmulke. Of course, this was
the very matter that Goldman wanted to speak with the Inspector General about. Trying
to find a loophole, Goldman suggested they meet outdoors so he could wear his military
cap but again, the Inspector General refused. It was at this point that Goldman filed for
the TRO.113
The TRO came before Judge Aubrey Robinson Jr., on July 2, 1981. Judge Robinson
granted Goldman’s motion, arguing that, “‘consistent with the requirements of Orthodox
Jewish practice, Goldman wears a skull cap, or yarmulke, at all times.’ Accordingly, he
forcefully explained, ‘there can be no doubt [that] Goldman’s insistence on wearing a
yarmulke is motivated by religious convictions, and is therefore entitled to First
Amendment protections.’”114 Judge Robinson disagreed with the opinion of Major
General Herbert L. Emanuel who submitted an affidavit saying that, “permitting
[Goldman] to wear his yarmulke will crush the spirit of uniformity, which in turn will
weaken the will and fighting ability of the Air Force.”115 Ruling in favor of Goldman,
Judge Robinson explained that the concerns of the Air Force were “unlikely” and that the
concern of the military does not keep a court from doing its civic duty of protecting the
right to free exercise.116 To finalize the granting of the motion,
Judge Robinson observed, these conclusions [of the Air Force] were not the result
of empirical or psychological studies. Instead, he found, they were based on ‘the
personal beliefs and assumptions of Air Force officials’ and were therefore
‘inadequate to withstand constitutional scrutiny.’ Thus, Judge Robinson
113
Ibid, 213.
Ibid, 214.
115
Ibid.
116
Ibid.
114
Kaseff 41
permanently enjoined the Air Force from enforcing the order banning Goldman
from wearing a yarmulke while in uniform.117
The government appealed the ruling in 1983, which was seen in front of the United
States Court of Appeals for the District of Columbia Circuit. A year later, the three-judge
panel reversed Judge Robinson’s decision. Interestingly, the court agreed with Judge
Robinson that Goldman’s free exercise was not at stake and rejected the Air Force’s
claim that not all Orthodox Jews feel a religious obligation to cover their heads at all
times.118 It was understood that Goldman’s wearing of his yarmulke, as an Orthodox Jew
was a protected religious practice. The court continued to categorize the Air Force’s
argument as “weak” when they made the claim that Goldman’s yarmulke posed a safety
hazard.119 The court stated that, “there is no indication that safety within the Metal Health
Clinic was threatened.”120 The Air Force also claimed that if they make allowances for
one religion, they have to make allowances for all but the court also dismissed this
allegation.121
In the end, the court sided with the Air Force. Their argument stated that, “any
exceptions for religious practice would ‘incur resentment from those who are compelled
to adhere to the rules strictly, thereby undermining the goals of teamwork, motivation,
discipline, and the like…’”122 Due to the nature of the claim, the court decided it was out
of their line of expertise to decide what does and does not diminish the Air Force’s goal
117
Ibid.
The Supreme Court decided, “practices based on religious conviction, even if not
universally followed, are protected by the free exercise clause” (Levine, 215).
119
The Air Force claimed, “an unauthorized hat worn on a flight line might fly into a jet
engine and cause it to malfunction and explode” (Levine, 215).
120
Levine, 216.
121
Ibid.
122
Ibid.
118
Kaseff 42
of uniformity and teamwork and therefore, reversed Judge Robinson’s decision. It was
early in 1986 that Goldman appealed his case to the Supreme Court.
The Decision
The decision handed down by the Court, which sided with the government that
prohibiting Goldman from wearing a yarmulke was not an infringement on his First
Amendment rights, was decided based on the military’s need for uniformity.123 The Air
Force believed uniforms encouraged, “the subordination of personal preferences and
identities in favor of the overall group mission.”124 In contradiction, Justice Brennan’s
dissent stated:
Mere personal preferences in dress are not constitutionally protected. The First
Amendment, however, restrains the Government’s ability to prevent an Orthodox
Jewish serviceman from, or punish him for, wearing a yarmulke…The fact that
‘the regulations do not permit the wearing of…a yarmulke,’ does not simply
render military life for observant Orthodox Jews ‘objectionable.’ It sets up an
almost absolute bar to the fulfillment of a religious duty. Dr. Goldman spent most
of his time in uniform indoors, where the dress code forbade him even to cover
his head with his service cap. Consequently, he was asked to violate the tenets of
his faith virtually every minute of every workday.125
Justice Brennan finds it so absurd that not only does the Air Force make the claim
that Goldman’s uniformity is such a threat but that the Court just accepts this claim
123
Ibid, 206.
475 U.S. 503 (1986), Opinion of the Court.
125
Ibid, Brennan, J., dissenting.
124
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without question. Brennan goes on to mock the Air Force by saying, “Non-Jewish
personnel will perceive the wearing of a yarmulke by an Orthodox Jew as an
unauthorized departure from the rules and will begin to question the principle of
unswerving obedience. Thus shall our fighting forces slip down the treacherous slope
toward unkempt appearances, anarchy, and, ultimately, defeat at the hands of our
enemies.”126 Brennan is so baffled by the Air Force’s claim and the Court’s acceptance
that he continues to disprove such an argument by recounting the Air Forces rules on
jewelry. The Air Force allows jewelry when it is neat and conservative. Brennan argues
that yarmulkes cannot be so out of the ordinary that they shouldn’t be treated in the same
fashion. He then goes on to explain how this so called “uniformity” is an illusion because
in attempting to not accommodate anyone and treating all religions the same, the military
is actually just accommodating the majority.
In his dissent, Brennan goes on to explain how this way of regulating faith based
clothing puts people into two categories, “those with visible dress and grooming
requirements and those without.”127 Categorizing religions in this way poses a problem
that the First Amendment was intended to fix. The neutrality of no one getting
accommodations ends up discriminating against the minority faiths that need religious
accommodations.
When this country was first founded and the rules of the military were being formed,
it made sense to allow Christian soldiers to be faithful participants of their religion. No
military rules prohibit Christians from being faithful Christians. One could make a
comparison to the Israeli Defense Force (IDF). Because Israel is a predominately Jewish
126
127
Ibid.
Ibid.
Kaseff 44
state, its military (which is a requirement for all citizens at the age of 18) accommodates
the Jewish faith. Jews that serve in the IDF have no problems being faithful Jews because
the military is set up to accommodate. Similarly, Christians have no problems being
faithful Christians in the US military because it is more or less set up to accommodate in
the same way the American culture accommodates Christians. Understandably, issues
have arisen over the years concerning the US military and soldiers that adhere to religions
other than Christianity.
The ways in which the military was set up seems to be largely based on the kind of
country America was at the time of its founding, meaning with an ideology that focuses
around monotheistic, mainly Christian, values. With that in mind, it does not seem a far
stretch to assume that all Christian practices have already been accommodated in the
regulations set out. Another point to be made is that the accommodation that Goldman
was asking for did not seem to put a huge strain on anyone other than Goldman. The
yarmulke he was asking to wear was probably modest in color and size. In Brennan’s
dissent, he brought up the fact that the Air Force allows jewelry that is considered neat
and conservative so a yarmulke should be judged by the same criteria.128 Brennan pointed
out that Justice Stevens thought it best to apply the “visibility test” to this case but the
visibility test clearly favors Christians as Christians are not required to wear anything
visible as a sign of piety. To the rest of Stevens’ point, Brennan had this to say:
Implicit in Justice Stevens’ concurrence, and in the Government’s arguments, is
what might be characterized as a fairness concern. It would be unfair to allow
Orthodox Jews to wear yarmulkes, while prohibiting members of other minority
128
Ibid.
Kaseff 45
faiths with visible dress and grooming requirements from wearing their saffron
robes, dreadlocks, turbans, and so forth. While I appreciate and share this concern
for the feelings and the free exercise rights of members of these other faiths, I am
baffled by this formulation of the problem. What puzzles me is the implication
that a neutral standard that could result in the disparate treatment of Orthodox
Jews and, for example, Sikhs is more troublesome or unfair than the existing
neutral standard that does result in the different treatment of Christians, on the one
hand, and Orthodox Jews and Sikhs on the other.129
In order to understand the discrimination that was present during this case, it must be
noted that Goldman had worn his yarmulke while on duty on the Marine Corps Recruit
Depot, Parris Island, South Carolina (a Naval base) for two years without a problem.
During his time there, he was, “photographed in uniform and wearing his yarmulke
standing alongside the Secretary of Defense, Melvin Laird…and two other
individuals…including the major general commanding the base.”130
During the case that was brought to the Supreme Court, the justices took no notice of
the religious significance of Goldman’s practice of wearing a yarmulke. The only burden
that the justices discussed was what would be placed on the Air Force if they allowed
Goldman the accommodation.131 They probably disregarded the religious significance of
Goldman’s practice because it was touched on in the court of appeals. Though it was
discussed in the lower courts, their discussions were inadequate to say the least.
According to the free exercise jurisprudence, “the court [must] accept the plaintiff’s
129
Ibid.
Levine, 209.
131
Ibid, 222-223.
130
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understanding of religious practice.”132 In her oral argument in front of the Supreme
Court, the Solicitor General, Kathryn Oberly, said, “although it is a strong, wellestablished practice and tradition of devout Orthodox Jewish males to wear a yarmulke, it
is not a requirement of Jewish law.”133 Technically, wearing a yarmulke is not a
requirement in the Jewish tradition but Goldman recognized the practice as a necessary
part of his faith and as Oberly continued, she admitted that they recognized the sincerity
of Goldman’s religious belief. Still, she remained steadfast that Goldman’s religious
opinions did not matter because the fact was that yarmulkes were not required. The court
is not supposed to take into consideration the religious validity of the actual practice but
rather the religious views of the petitioner.
When questioned about the court’s decision years later, Judge Abner Mikva told
Goldman’s representation that, because he was Jewish, the significance of his yarmulke
was questioned. “Mikva responded that the yarmulke was ‘not that important,’ thus
contributing to an attitude among the panel that minimizing the value of Goldman’s
religious claim.”134 When the case was brought before the Supreme Court, this idea that
Goldman’s religious views of the practice did not matter was kept. Unlike in the
Reynolds case, where the Court questioned the legality of the religious practice instead of
the religious significance of the practice, the government questioned the constitutionality
of the practice itself.135 The treatment of the religious practice makes it seem as though
Jewish religious practices were even less tolerable than the Mormons practice of
polygamy. Again, this is speaking to the Christian ideology of America in which the
132
Ibid, 222.
Ibid.
134
Ibid, 221-222.
135
Ibid, 221.
133
Kaseff 47
mainstream Christian way of life is considered the norm. Their overall decision could
also be categorized as anti-Semitism or at least a complete disregard for religion itself.
The Consequences
What started as an admittedly personal vendetta was blown out of proportion and
made its way up to the Supreme Court. The effects of this case did not last long as
Congress essentially overturned the decision just a couple years later.136 Even so, the
decision did affect Goldman in the time immediately after the case. As Levine points out,
“the Court conceded that not allowing such exceptions would likely render military life
more ‘objectionable’ to some religious adherents,” but that may be putting it lightly.137
Not allowing for religious accommodations makes the military seem unappealing to
possible future servicemen who wish to remain faithful to a religion that may require
going against regulations. This could be considered different than a case involving
employee uniforms that do not allow for religious garb because the military argued for
government interest but in reality, that scenario and Goldman’s situation are similar.
Understandably, Goldman was surprised at the outcome of the case. What puzzled him
more was that other servicemen had gotten away with regulation violations in more
public manners and were not being reprimanded. An unofficial newspaper at the base
where Goldman served printed an article detailing a mission in which a Master Sergeant
wore his “lucky green and white garter [on his] left arm for every launch.”138 This kind of
discrimination between an assumed Christian Master Sergeant and Jewish Captain who
136
Ibid, 223.
Ibid, 217.
138
Ibid, 224.
137
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wishes to adhere to the tenets of his religion is perplexing.
As Justice Stevens pointed out in his concurring, “The Air Force has no business
drawing distinctions between such persons when it is enforcing commands of universal
application.”139 And yet, servicemen who wear garters for luck are not reprimanded while
a pious serviceman is. Stevens also mentions the ramifications this case would have on
future religious personnel in the military. He believed this decision should be held against
any religious personnel whose religion dictates something that goes against military
commands.140
While it would seem that the military’s main interest in this case, as they stated in
their argument, was to keep uniformity, the treatment of Goldman could still be
considered anti-Semitism. Christian soldiers automatically have their religious needs met
as the military, and the country as a whole, is set up to accommodate the Christian
religion and Christian values. As a result, there are no restrictions in place that prohibit
Christians to practice their religious actions.141 Christian men do not need to cover their
heads at all times so when rules and regulations were made about the uniform of a
soldier, that accommodation was not considered. Allowing Goldman to wear his
yarmulke while in doors was not only going to be a change in regulation but it was also
going to be an acknowledgment of the diversity of the military. As was stated in the case,
if allowances are to be made for one religious obligation, they would need to be made for
all. At the time of this case, the idea of allowing all or even most religious
accommodations probably seemed incredibly progressive and unrealistic for an
139
475 U.S. 503 (1986), Stevens, J., concurring.
Ibid.
141
Ibid, Brennan, J., dissent.
140
Kaseff 49
institution like the military. Now, America has become much more pluralistic in most
aspects of society. In January of this year, the military announced it would allow soldiers
to wear head coverings and grow out their facial hair if their religion required it. This
allowance includes not only yarmulkes for Jewish soldiers but also turbans and beards for
Sikh soldiers and hijabs for Muslim soldiers.
By allowing religious accommodations for soldiers, the military can further diversify
its personnel and increase overall moral throughout all branches. By diversifying its
personnel, the military can increase its positive outreach throughout the world. Using
soldiers’ cultural and ethnic experiences to connect with the global community could put
the American military ahead of the other super powers of the world.
It was relayed by one retired veteran that once you make the decision to commit to
the military, no matter the branch, you sign away your personal and individual rights.142
Though this may be an extreme way of looking at it, there is some truth to the sentiment.
That being said, the military is not exempt from abiding by the Constitution; the military
is not above the law it fights to protect. When asked if the he felt the military was tolerant
of religions other than Christianity, the same veteran who is Jewish responded that yes,
the military has been getting more tolerant over time. He recalled a time when he
requested time off for Yom Kippur and was not given permission by his squadron
commander. He believes the reason his squadron commander denied his request was
because, at the time, there were many servicemen from Arabic countries in his squadron
as part of an exchange program and they needed accommodations for many holidays that
were coming up. Using the same argument that was used in Goldman’s case, he believed
142
Air Force Col. Dave Cohen (retired), interviewed by author, January 2017.
Kaseff 50
the reasoning was that if the squadron commander granted permission for one, he had to
grant permission for all.143
Interestingly, when asked about the military’s religious tolerance, another retired
serviceman, a Christian Army Colonel, said he believed the military was quite tolerant.
He said, “Military has become very tolerant and they don’t sweat that [religious] stuff
anymore…They definitely want the soldiers to know that [the military] is a safe haven.
‘We’re not going to stomp on any of your religious or spiritual needs’…We know the
benefit of being able to embrace those [differences].”144 Clearly, the non-Jewish colonel,
who does not need special accommodations to satisfy his religious needs, does not need
to notice if the military is tolerant of different religions whereas the Jewish colonel, who
does need accommodations.
In this chapter, we see how the Supreme Court moved from the belief/action
dichotomy to allowing for compelling government interest to prohibit religious freedom.
In both cases, the Supreme Court is able to proscribe religious acts that stray far from the
Christian norm that is intertwined throughout American culture. In the next chapter, we
will discuss how the Free Exercise Clause and other religious freedom protection laws
can be used to exempt those that wish to discriminate based on their personal religious
beliefs.
143
144
Ibid.
Army Col. Mike Tetu (retired), interviewed by author, January 2017.
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Chapter IV: Accommodation Turns to Discrimination
Burwell v. Hobby Lobby Stores Inc. (2014)
In the previous chapters, we saw how the Supreme Court started interpreting the Free
Exercise Clause based on compelling government interest instead of on a belief/action
dichotomy as it had before. Switching perspectives, we will now discuss the ways in
which those religious protection laws start to protect those who discriminate against third
parties based on their own religious beliefs. In Hobby Lobby, not only is a for-profit
corporation given the status of a person who can claim its own religious beliefs but those
religious beliefs start to affect third parties, their employees, which is a new phenomenon
in the religious freedom realm of the American judicial system. Interestingly, the religion
that Hobby Lobby identifies as is Christian and based on the previous cases, it is not hard
to believe that the Supreme Court upheld their right to express their Christianity.
Background
In order to understand the following case, it is important to first understand the
Religious Freedom Restoration Act of 1993 (RFRA). RFRA came about after the case of
Employment Division, Department of Human Resources of Oregon v. Smith (1990)145 in
which two terminated employees were trying to get unemployment compensation. They
were terminated due to their use of an illegal drug that they claimed was required of their
religious practices. The Supreme Court decided that the state was not required to
compensate them for being fired for the illegal use of drugs even though it was based on
145
494 U.S. 872 (1990).
Kaseff 52
religious beliefs. There was outrage after the case from many different religious and nonreligious organizations. Three years later, RFRA was passed. RFRA prohibits the,
“‘Government from substantially burdening a person’s exercise of religion even if the
burden results from a rule of general applicability’ unless the Government ‘demonstrates
that application of the burden to the person—(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.”146 Under RFRA, it is important to note that, “for-profit
corporations, at least closely held ones, have ‘rights.’”147
In 2010, President Obama passed the Patient Protection and Affordable Care Act
(ACA), which required employment based health care plans. As stated above, RFRA
does consider for-profit corporations such as Hobby Lobby to have religious rights so
when Hobby Lobby refused to provide certain contraceptive methods to their female
employees based on its religious beliefs, the width of RFRA’s reach came into question.
More will be said on this in the following section.
The Case
On Sep. 12, 2012, the Green family, owners of Hobby Lobby Stores, Inc., sued
Kathleen Sebelius, the Secretary of the Department of Health and Human Services
(HHS). David and Barbara Green started Hobby Lobby in Oklahoma City, Oklahoma in
1972 in just a 300 square foot store. Hobby Lobby now has approximately 750 stores and
32,000 employees making it the “largest privately owned arts-and-crafts retailer in the
146
Burwell v. Hobby Lobby Stores (573 U.S. ___ (2014)), Opinion of the Court.
Alex J. Luchenitser, “A New Era of Inequality?,” Harvard Law & Policy Review 9,
no. 1 (January 2015), 63.
147
Kaseff 53
world.”148 As a company, Hobby Lobby commits to, “Honoring the Lord in all we do by
operating the company in a manner consistent with Biblical principles” and, “Providing a
return to the family’s investment, sharing the Lord’s blessings with our employees, and
investing in our community.”149
The Green family’s Christian values came into conflict with the HHS in 2010 when
President Obama signed the ACA, which required employment-based group health care
plans. One common Christian belief that Hobby Lobby adheres to is that certain types of
contraception are immoral because they have been proven to cause abortion.150 But part
of the ACA health care plan provides preventative care, such as FDA-approved
contraceptive methods. Exemptions from this part of ACA health care plans was put into
place for religious employees and non-profit religious institutions but no exceptions were
made for for-profit institutions such as Hobby Lobby. The Green family’s lawsuit against
Kathleen Sebelius, the secretary of HHS at the time, challenged the contraception
requirement using provisions from RFRA. The Green family claimed that providing
contraceptives to female employees was in violation of their rights to religious freedom.
In 2014, President Obama appointed Sylvia Burwell as a replacement for Kathleen
Sebelius, at which time the case name was changed to Burwell v. Hobby Lobby Stores
Inc.
The Decision
In order to come to an informed conclusion of the Burwell case, two professors from
Quote taken from “About” page on the Hobby Lobby website.
Ibid.
150
W. Cameron Casper and Edward J. Schoen, “Burwell v. Hobby Lobby Stores, Inc.:
Lots of Smoke, But No Fire,” Southern Law Journal 26 (2016), 234.
148
149
Kaseff 54
Rowan University, W. Cameron Casper and Edward J. Schoen, who wrote about the case
after the fact, break down the Court’s process into five steps: 1. The Court took a close
look at the history of RFRA, specifically at the parts of the Act, which were being used to
make the claims in this case. 2. The Court examined the sincerity of the religious claims
of the owners of the corporation. 3. The Court applied RFRA to the corporation. 4. The
Court decided if the ACA placed a substantial burden on the owners in their efforts to
exercise their religious freedom. 5. The Court decided if the ACA used the least
restrictive means to achieve its goals.151
The question being asked in Burwell was, Does RFRA allow for-profit companies to
hold religious beliefs that may impact third parties such as refusing to provide
contraception in their health care plan, to which the employees may otherwise be
entitled? Many lower courts found the Act itself was unconstitutional because it violated
the separation of church and state. “In short, Congress had no business telling courts,
including the Supreme Court, how they were to decide cases.”152 Though it was arguably
unconstitutional for Congress to create such an act, many states have enacted their own
versions of RFRA. The Green family used RFRA to protect against having to pay for
contraceptives for its female employees. HHS already exempted religious based nonprofit organizations from paying for such health care benefits on the grounds of religious
belief but there was no exemption in place for companies such as Hobby Lobby.153 As
RFRA requires a compelling government interest in order to allow a substantial burden to
be placed on a religious exercise, it would seem that the HHS mandate fell into that
151
Casper and Schoen, 237.
Ronald B. Flowers, That Godless Court? (Kentucky: Westminster John Knox Press,
1994), 47.
153
Casper and Schoen, 239.
152
Kaseff 55
category but in doing so, HHS needed to provide a least restrictive way of getting the job
done.154
Next, the Court had to better understand the religious obligations of Hobby Lobby
and the Green family. According to Casper and Schoen, the Green family operates its
business “in accordance with Biblical principles.”155 Hobby Lobby Stores are closed on
Sundays and they purchase newspaper ads promoting “Jesus as Lord and Savior.”156
Finding that David, Barbara, and their three children who act as president, vice president,
and vice CEO to the company, do uphold Christian values in their daily lives, it was time
to decide if RFRA was applicable to individuals as it had been previously or if it could
also be applied to corporations.157
In order to decide whether RFRA could be applied to corporations, the Court had to
take a closer look at RFRA itself. The Court firstly noted that RFRA does not define the
word “person” but, using the Dictionary Act, it could be concluded that the word
“person” included corporations.158 The Court further concluded that there was no reason
why the religious freedom benefits that non-profits receive from HHS should not be
extended to for-profits as well.159 HHS was concerned that the decision to allow Hobby
Lobby to be protected under RFRA would open the doors for other larger corporations to
do the same. The Court came back saying there had been no cases of larger corporations
claiming religious freedom in the past. The size of a corporation such as Hobby Lobby is
a contributing factor as to why the claim arose in the first place. Larger corporations with
154
573 U.S. ___ (2014), Opinion of the Court.
Casper and Schoen, 240.
156
Ibid.
157
Ibid.
158
Ibid, 241.
159
Ibid.
155
Kaseff 56
public shareholders will not be concerned as to the values with which that particular
cooperation is run. If other corporations with a few close shareholders have a dispute as
to the religious values of the corporation, that can be handled by state corporation law.
With these findings, the Court concluded that the Greens could claim religious freedom
for their corporation and were able to be protected under RFRA.160
The Court then needed to decide if the HHS mandate caused a substantial burden on
the Greens’ exercise of religion. Through a winding road of reasoning, the Court was able
to conclude that there was, in fact, a substantial burden on the Greens’ exercise of
religion. The reasoning went as follows: in order to adhere to HHS’s mandate to purchase
ACA for their employees, the Greens would be paying a substantial amount of money.
Part of that money would go towards contraceptives for their female employees. Four of
the FDA-approved contraceptives have been known to cause abortions at the embryonic
stage of pregnancy. Abortions at any stage of a pregnancy goes against the religious
beliefs of the Greens. Though the specific family members are not the ones using the
contraceptives, it becomes a question of being an enabler to the act. To sum up, the
Greens would be forced to pay a large sum of money to support an act, which goes
against their religious beliefs. Therefore, the Court found that the mandate caused a
substantial burden on the Greens’ exercise of religion.161
The next question the Court had to ask in order to make an informed decision was
whether ACA utilized the least restrictive means to achieve the government interest. The
Court found two alternative ways in which ACA could accommodate those with religious
objections and therefore concluded that ACA was not utilizing the least restrictive
160
161
Ibid, 242.
Ibid, 242-243.
Kaseff 57
means.162 All these questions allowed the Court to decide that RFRA did apply to
corporations including Hobby Lobby Stores Inc. meaning they were able to claim
religious freedom from keeping with HHS’s mandate of ACA and did not have to provide
their female employees with contraceptives.
In response to the dissent’s worry about impending employment discrimination, the
Opinion of the Court reassuringly said,
The principal dissent raises the possibility that discrimination in hiring, for
example on the basis of race, might be cloaked as religious practice to escape
legal sanction. Our decision today provides no such shield. The Government has a
compelling interest in providing an equal opportunity to participate in the
workforce without regard to race, and prohibitions on racial discrimination are
precisely tailored to achieve that critical goal.”163
The problem with this reasoning is that it is not so much issues of race that would
result from the outcome of this case, it was more a concern of discrimination based on
sexual orientation. Another worry that Justice Ginsburg detailed in her dissent was that
this case would open up the flood gates for those that don’t want to follow any laws164 to
be able to blame their religious views.165 More will be said on Ginsburg’s dissent in the
following section.
The Consequences
The impacts of Hobby Lobby are still being debated. Casper and Schoen state that,
162
Ibid, 244.
573 U.S. ___ (2014), Opinion of the Court.
164
Except tax laws.
165
Ibid, Ginsburg dissent.
163
Kaseff 58
“Hobby Lobby is not likely to have a significant impact in expanding the free exercise
rights.”166 The authors also mentioned that, on a human resources level, the case would
have no significance as well. After stating this, I feel it is important to bring up Justice
Ginsburg’s dissent. She said,
In a decision of startling breadth, the Court holds that commercial enterprises,
including corporations, along with partnerships and sole proprietorships, can opt
out of any law (saving only tax laws) they judge incompatible with their sincerely
held religious beliefs. Compelling governmental interests in uniform compliance
with the law, and disadvantages that religion-based opt-outs impose on others,
hold no sway, the Court decides, at least when there is a “less restrictive
alternative.” And such an alternative, the Court suggests, there always will be
whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the
government, i.e., the general public, can pick up the tab.167
Though Casper and Schoen disagree with Ginsburg and those that feel the case works
to limit the rights of women and expand on religious liberty, as author Alex J.
Luchenitser pointed out, Hobby Lobby allows a few people’s religious beliefs to be
forced on others.168 Therefore, Hobby Lobby lends itself to more religious freedom claims
in the future that involve people who require religious exemptions. As Luchenitser puts
it, “A principal concern about the impact of Hobby Lobby is whether the decision will
open the door for religious objections to override laws that prohibit discrimination in
166
Casper and Schoen, 248.
573 US_(2014), Ginsburg Dissent.
168
Luchenitser, 63.
167
Kaseff 59
employment and other arenas.”169 Later on in his article, Luchenitser gives a few
examples of claims that had already been made since the Hobby Lobby case had been
decided. One example he gave was of an inn in Vermont that claimed their religious
views trumped public-accommodation laws that prohibit discrimination based on sexual
orientation.170 It is cases like these that Justice Ginsburg was worried about. Hobby
Lobby has paved the way for companies to discriminate against both employees and
clients. Luchenitser also brings up that,
If an employer has a sincere belief that associating with certain categories of
people is contrary to the employer’s religion, or that the religion prohibits
facilitating or supporting in any manner (such as by paying wages) conduct
proscribed by the religion (such as becoming pregnant outside of marriage),
courts may well conclude that laws prohibiting adverse employment actions
against disfavored categories of people or conduct impose a ‘substantial burden’
under Hobby Lobby.171
Unfortunately, some courts do not define “substantial burden” as anything more than
putting pressure on someone’s beliefs and in the Hobby Lobby case especially, the
Supreme Court took this approach on the issue.172 He then goes on to say that, “To meet
the ‘substantial burden’ requirement, it appears that all a business’s owners need to do is
truthfully assert that they believe that their faith calls on them not to employ persons who
have certain characteristics or engage in certain conduct.”173
169
Ibid, 64.
Ibid, 73.
171
Ibid, 68.
172
Ibid, 67-68.
173
Ibid, 71.
170
Kaseff 60
Hobby Lobby has essentially rendered any employment anti-discrimination laws
useless. There have been cases in which employers discriminate based on sexual
orientation and the victim claims that they are protected by Title VII but their claims have
been rejected because they are not being discriminated against for their religious
beliefs.174 Such cases beg the question, whose beliefs does RFRA protect? Not only are
some people’s beliefs being protected over others but the line at which a religious
exemption can no longer be considered is incredibly gray. If this line continues to be
debated, it could pose large problems for religious exemptions in general.175
According to Luchenitser, the solution to the entire problem Hobby Lobby has created
is to amend RFRA.176 He claims, “Given the uncertainty of how courts may interpret
RFRA in the future, amending RFRA would be the most effective way to prevent the
statute from being used to justify discrimination based on religion, sexual orientation, or
other grounds.”177 In order to prevent justification of discrimination, RFRA needs to
specify that, in granting a religious exemption, there should be no burden placed on third
parties as a result such as the one that resulted from this case.
Seeing as this case involved Christians, it is hard to say whether the outcome would
have been the same if the owners of the business were of another religion. That being
said, it is easy to think how a claim that providing abortion-causing contraceptives goes
against religious beliefs, clearly a Christian based belief, would be understood in a
predominantly Christian country. The Court clearly saw it fitting to protect the beliefs of
the Christian owners instead of taking into consideration the third-party employees who
174
Ibid, 80.
Ibid, 82.
176
Ibid, 83-84.
177
Ibid.
175
Kaseff 61
may not share their employers’ religious values.
This chapter worked to show us how religious freedom evolved from discrimination
against religions that were not Christian to simply protecting the religious freedom of
Christians. From the belief/action dichotomy to a government interest to just protecting
the rights of the majority religion, the Supreme Court has worked every angle to keep the
Christian ideology of America in place. In my concluding chapter, I will connect all three
case studies and explain where I think the Supreme Court will be in future religious
freedom cases.
Kaseff 62
Chapter V: Final Remarks
All three cases discussed at length in this paper have worked to shape religious
freedom in America in a significant way. I believe, during these cases, the Supreme Court
worked to give the impression of progression but ultimately kept the Free Exercise
Clause at a standstill in terms of its tolerance for religions that do not adhere to a
Christian paradigm. Reynolds started out as an effort to test the laws that were in place
but, in the end, a man was punished for his religious practice. No one brought up a suit
against Reynolds and yet, he was tried for a crime that was supposedly disruptive. The
judicial system worked against him due to his Mormon beliefs. The Supreme Court used
a shield of law to protect themselves against the threat of a religion that did not adhere to
mainline Christianity.
In the case of Goldman, it would be unwise to forget the years of anti-Semitism that
plagued the Western world in years prior. And yet, just forty years after the Holocaust, a
Jewish man who voluntarily served his country was still fighting for the right to express
his religion. Just as in Reynolds, the Supreme Court hid behind their interpretation of the
law to justify their discrimination. The difference between Reynolds and Goldman was
that during Goldman, the Supreme Court pawned their job off on the military. Instead of
treating the case like the civil case it was meant to be, the Court treated it as though it was
out of their expertise because the military comes with its own rules and regulations. It
was never thought that it was the military’s rules that were on trial, not the citizen who
had inherent rights.
As for Hobby Lobby, this unique turn of events that seemed to spawn a new wave of
Kaseff 63
discrimination is not surprising. Again, the Supreme Court disappeared under the blanket
of the law in order to justify their ruling that clearly favored a Christian paradigm. If a
Jehovah’s Witness practitioner owned a company and refused to provide health insurance
that covered hospital bills because a hospital procedure might involve a blood
transfusion,178 it is doubtful that the Court would make room for such an allowance under
ACA. This new interpretation of RFRA and the Free Exercise Clause will undoubtedly
allow for more cases like the Arlene’s Flowers case to stand in court. Such cases that
justify discrimination of a third party based on one person’s beliefs is a dangerous step in
the wrong direction for the Supreme Court and America as a whole.
From Reynolds, in which the Court recognized a need for the belief/action dichotomy,
to Goldman, which allowed the Court to realize compelling government interest has a
place in the judicial system, to Hobby Lobby, which has opened the doors for potential
religious discrimination and exemption from most laws based on religious beliefs, our
Supreme Court has taken many twists and turns when interpreting the Free Exercise
Clause. I think the Supreme Court is still learning but is only recently making an effort to
be open-minded as far as what constitutes religion.
As can be seen from the three case studies in this paper, America has not come far
from the religiously prejudice country she started as. Though the founders of this country
came here to get away from religious persecution, once they became the majority, they
internalized the behavior of their previous tormentors. The Free Exercise Clause of the
“Why Don’t Jehovah’s Witnesses Accept Blood Transfusions?” Jehovah’s Witnesses,
n.d. https://www.jw.org/en/jehovahs-witnesses/faq/jehovahs-witnesses-why-no-bloodtransfusions/.
It is a belief in the Jehovah’s Witnesses tradition that procedures involving blood
transfusions are not acceptable.
178
Kaseff 64
First Amendment was a large step in the direction of non-discrimination and overall
religious freedom but in order for it to work, the Supreme Court must stop basing its
decisions off a Christian paradigm. Only then can the American people be free to both
believe and practice (to an extent) whatever religion they adhere to.
In this paper, I have discussed three main cases, which I think exemplify not only the
Christian bias of the American justice system but also the resistance to progression from
the norm. Though the Free Exercise Clause will continue to be shaped on a case-by-case
basis, I think one overarching change that can be made is that the Supreme Court stops
thinking of religions other than Christianity as different and obscure.
Based on my research, I think the Supreme Court and American culture is headed
towards progression. I am basing this opinion off of the Supreme Court’s recent decision
to legalize gay marriage and the positive feedback that received from the nation. Of
course, there was some pushback from the far right but no matter what legislations or
decisions are put into place, one side or the other will not be happy. While my hope is for
a progressive America, I am not so naïve as to think that the Christian paradigm, through
which our country runs, will disappear with just one case decision. That being said, if
America continues down the road of progression she seems to be headed on, there is no
doubt in my mind that someday, this country will live up to its “Melting Pot” nickname,
even in the judicial system.
Kaseff 65
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