The application of the free exercise clause as you describe it would be no guarantee of free exercise at all. Holding an opinion or a belief is not an exercise of anything. The clause doesn't say the free belief in religion but the free exercise of religion, which is clearly descriptive of an action, not merely a mental process.
This was why the compelling interest and least restrictive means requirement were necessary. Just as freedom of speech does not protect slander or the making of terrorist threats, free exercise of religion does not protect every religious activity (such as human sacrifice, to use an extreme example). As I understand it (admittedly from a layman's perspective), Employment Division v. Smith took this reasonable test and reduced it to an anti-discrimination clause, which is a VERY different animal from a guarantee of Free Exercise.
There is a substantial difference between "a license for anarchy" and giving the state a blank check to require or prohibit anything it wants to as long as it places the same burden on every person. The free exercise of my faith that is only protected until the state decides otherwise is no free exercise at all. If the state is going to compel its citizens to choose between their God and their government, it SHOULD have to demonstrate a compelling interest beyond "Well, we want to." It SHOULD be able to show that what they propose is the least restrictive means of defending that compelling interest.
Otherwise, all our talk of free exercise and religious freedom is nothing more than Pollyannic wishful thinking.
Brad Pardee
| Gene Garman <[EMAIL PROTECTED]>
Sent by: [EMAIL PROTECTED] 08/03/2005 02:29 PM
|
|
The free exercise of religion cannot be prohibited, but religion is not above the law, except in matters of opinion. The Free Exercise Clause does not say the exercise of religion cannot be abridged, which means reduced. The Free Exercise Clause plainly says the exercise of religion cannot be prohibited, which means totally. All actions are subject to the laws of the land which apply to all citizens equally, regardless of religion.
In 1879 (Reynolds v. U.S.) wording of the Free Exercise Clause, as written, was unanimously understood by the Court :
"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
...
"Can a man excuse his practices ... because of his religious belief? To permit this 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.
...
"It matters not that his belief was a part of his professed religion; it was still belief, and belief only."
The Free Exercise Clause, by its precise wording, is in complete harmony with Reynolds v. U.S. The Free Exercise Clause does not forbid all religion exercise, but it is not a license for anarchy; and, it makes no exception for anyone. All actions are subject to rules of conduct lawfully established, such as probation rules, regardless of religion opinion.
You can also refer to the unanimous decision of Davis v. Beason in 1890.
Gene Garman, M.Div.
America's Real Religion
www.americasrealreligion.org
Samuel V wrote:
Can anyone point me to an article, preferably available online,
discussing whether probation requirements violate free exercise? For
example, is a free exercise problem created whensuch as when the
effect of the restriction is to prohibit the probationer to attend the
church of his choice (because he can't leave town, can't be near
children, can't be near wine, etc.).
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