American Democracy in Context. Joseph A. Pika
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disagreed, however, saying that the memorial failed both the effect and entanglement prongs. A fractured 7–2 ruling by the Supreme Court ultimately held that the cross did not violate the establishment clause.86
The issue of separation of church and state is not unique to the United States. Article I of the French Constitution says that France shall be a “secular” republic, and since 1905, France has had a law requiring the separation of church and state.87 In 2004, France passed a controversial law that banned the wearing of conspicuous religious symbols such as Muslim headscarves, Sikh turbans, Jewish skullcaps, and Christian crucifixes in government-operated primary and secondary schools.88 Although the law was couched in the language of separation of church and state, many denounced it as a violation of religious freedom.
In the United States, the establishment clause and the free exercise clause are similarly apt to be at odds. The Supreme Court decided the Everson case the way it did partly because if the government had denied reimbursement of transportation costs to parents of children who went to religious schools while reimbursing parents of children who went to secular schools, the former group could feel that it was being penalized for its religious beliefs: a violation of the free exercise clause. Such tension between the establishment and free exercise clauses is not unusual. Whatever the tension, a majority of Americans seem to support the idea of a clear separation between church and state (see Figure 4.2).
Figure 4.2 Separation of Church and State
How did those surveyed in this poll respond when asked whether they agreed that “The First Amendment requires a clear separation between church and state”? What do you think “a clear separation between church and state” means? Is the answer obvious?
Source: First Amendment Center, State of the First Amendment Survey, 2010.
The Free Exercise Clause
We take our right to worship for granted, but many countries restrict the free exercise of religion—sometimes brutally. For example, Eritrea—a small country in the northeastern part of Africa—bars many religious groups from practicing their faith publicly. Those who do are subject to arbitrary arrest and detention. Thousands of religious prisoners have been tortured or otherwise ill-treated, sometimes resulting in death. Members of the armed forces face severe punishment for the possession of any religious material, including Bibles. The government is especially fearful of Protestant Evangelical, Pentecostal, and other Christian denominations not traditional to Eritrea.
Among those persecuted in Eritrea are Jehovah’s Witnesses. They are denied government-issued identity cards and therefore cannot get legal recognition of marriages and land purchases. Jehovah’s Witnesses who, on religious grounds, have refused to serve in the military have been summarily imprisoned—sometimes for over a decade—without a trial. Children of Jehovah’s Witnesses have been expelled from their schools for refusing to salute the flag (Jehovah’s Witnesses believe that such salutes are forbidden by the Bible). And, like members of other unrecognized religious sects, Jehovah’s Witnesses are regularly arrested without charge and imprisoned.89
Jehovah’s Witnesses have also faced persecution in this country. Persecution of Jehovah’s Witnesses was especially rampant during World War II because of their refusal to salute the American flag and their attempts to secure religious exemptions from military service—actions that led to charges that they were un-American. Some even claimed that Jehovah’s Witnesses were Nazi sympathizers when, in fact, the Jehovah’s Witnesses’ campaign to do away with flag salutes had actually begun when Jehovah’s Witnesses in Nazi Germany were sent to concentration camps for refusing to salute Hitler and the Nazi flag.90
Thousands of Jehovah’s Witnesses were arrested in the United States during World War II for refusing to serve in the military, and the sect’s members became targets of mob violence. Their door-to-door proselytizing and their harsh denunciation of organized religion, especially Catholicism, also fueled strong feelings against them. Between 1938 and 1946 alone, Jehovah’s Witnesses were at the center of 23 Supreme Court cases. One of these cases, Cantwell v. Connecticut (1941), incorporated the free exercise clause of the First Amendment.91
Cantwell and many other free exercise cases rest on the distinction between religious belief, which is absolutely protected by the free exercise clause, and religious action, which is not. Similar to the distinction between speech and conduct, the so-called belief–action distinction was recognized by the Supreme Court in 1879 when it unanimously upheld an act of Congress that outlawed polygamy.92 Mormons claimed that the law violated their free exercise rights, but the Court said that the law applied equally to everyone and restricted only action, not belief.
The Court also grappled with the belief–action distinction in Cantwell. Newton Cantwell and his two teenage sons traveled from state to state spreading the word of Jehovah. In New Haven, Connecticut, an overwhelmingly Catholic city, their proselytizing met harsh resistance. After several people complained to the police, the Cantwells were arrested and convicted for violating a state law that prohibited individuals from soliciting money for any cause without a license. They were also convicted of breaching the peace.
The Court unanimously struck down the Connecticut law because it allowed the government to pick and choose what causes were eligible for solicitation. The Court reaffirmed the belief–action distinction but concluded that the law violated the First Amendment because it allowed the same action to be treated differently depending upon the beliefs of those carrying out the action. The Court also overturned the breach of the peace conviction on the grounds that the Cantwells’ actions were not “noisy, truculent, overbearing or offensive” nor did they draw a crowd or impede traffic. However, the breach of the peace conviction could have been upheld under the belief–action distinction if the Cantwells’ actions had done any of those things.
Deciding when it is permissible for a generally applicable law to restrict free exercise rights can be tricky, as can deciding what exactly constitutes a protected religion. Do federal laws that criminalize drug use restrict the free exercise rights of Native Americans who use peyote as part of their religious worship services? Can a Muslim woman’s driver’s license be revoked if she refuses on religious grounds to remove her veil for a driver’s license photo? Can localities use animal cruelty laws to prevent animal sacrifice when it is used as part of a religious worship service? The legal tests used to judge such cases have changed over time, but since 1990, the Court has held that generally applicable laws—those that apply equally to everyone, regardless of their religious beliefs—are presumed to be constitutional as long as they have a rational basis, even if they incidentally restrict some free exercise rights.93 (For a full discussion of the rational basis test, see Chapter 14.)
Recently, the Court has considered cases involving the religious freedom of owners of businesses and public accommodations. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Court ruled 5–4 that the provision of the Affordable Care Act requiring family-owned corporations to include, in opposition to their religious beliefs, contraceptive coverage as part of their health insurance plans violated the federal Religious Freedom Restoration Act (RFRA). Four years later, the Court ruled 7–2 in favor of the owner of a bakeshop in Colorado who refused, on religious grounds, to create a wedding cake for a same-sex couple.
The Right of Privacy
In addition to the specific guarantees of the Bill of Rights, such as freedom of speech, the Supreme Court has recognized one of the most controversial constitutional rights: the unenumerated right of privacy. This recognition has raised a whole host of questions. What is the basis for this right? After all, the word privacy never appears anywhere in the Constitution. Is it permissible for the Court to “discover” new rights and use them to strike down laws? Or do such discoveries amount