Commentor John Henry on the Establishment Clause and the Free Exercise Clause

Commentor John Henry asks excellent questions on the Establishment Clause and implicitly about the Free Exercise Clause.

John's questions, with my reply:

1. Is Congress forbidden by the establishment clause to make any law that might compel some people to behave contrary to the doctrines of their faith? For instance, is the Selective Service Act unconstitutional because it punishes Quakers for refusing to go to war?

The first Supreme Court case on this issue was Reynolds vs. United States (1878). Reynolds was a Mormon who committed bigamy, and claimed in his defense that he had a religious duty to do so, and was thereby protected by the Free Exercise.

The Court ruled that he was not exempt from laws prohibiting bigamy. They ruled that the Free Exercise Clause did not exempt individuals from general laws, especially laws with a provenance much older than the Constitution. They ruled that the FEC absolutely protected opinion, but did not absolutely protect practice, if the practice violated a law of well-established provenance that applied to all or represented a compelling state interest.

In my view, that is a reasonable standard. Human sacrifice should be illegal, even for an Aztec. On the other hand, a law that prohibited circumcision would be unconstitutional as applied to Jews, as a prohibition on alcohol would have been unconstitutional applied to Catholics in Mass. I don't believe that Quakers should be required to fight in war, although some kind of non-military national service could be required.

The contraception mandate is clearly not a law of well-established provenance or a compelling state interest, and I believe that it violates the Free Exercise Clause rights of Christians and others who oppose contraception.

2. Or does the establishment clause just mean that people should be granted exemptions under the law if their religion requires certain prohibited behavior? For instance, are we required to exempt Rastafarians from the Controlled Substances Act in the same way we exempted Catholics from the Eighteenth Amendment?

I don't know much about Rastafarianism. If cannabis is a recognized part of genuine Rastafarian liturgy (as opposed to say... a favorite Rastafarian social lubricant), it would seem to me to be protected by the Free Exercise Clause in the same way the use of wine would be for Catholics under prohibition.

3. Or does it just mean that Congress can't make a law the sole purpose of which is to restrict religious exercise? So, for instance, Congress can pass a law requiring employers to pay for sterilization procedures for their employees, even if some Catholic institutions might not be able to comply without violating the tenets of their faith, because the law does not target Catholics specifically, but only requires them to adhere to the same rules that apply to all other employers? So when Congress passes a law (like the Selective Service Act or the Controlled Substances Act or the Patient Protection and Affordable Care Act) how do you think the courts should rule on that law, in light of the establishment clause?

None of these laws involve well-established provenance or any genuine compelling government interest. Clearly the Free Exercise Clause protects Catholics and other Christians from them.

If the FEC never protected practice as well as opinion, then an anti-Semitic legislature could pass a law requiring the monthly consumption of 4 ounces of ham, based on (contrived) health reasons. This would clearly be unconstitutional, because it interferes with the Free Exercise of Religion of Jews, and it is not a law with well-established provenance or a compelling state interest. (like laws against murder, bigamy, etc).

I've been pondering this lately because of the HHS contraceptive mandate. (details here) A lot of people I respect are calling it unconstitutional, but I'm having trouble seeing why, given that we generally expect people to obey the law of the land, even when their religion requires them to do otherwise. (I couldn't get away with things like widow-burning, human sacrifice, or even smoking marijuana just because I happened to belong to a religion that requires them.) I fully believe the mandate is tyrannical but don't see it as unconstitutional.

Please see above. I believe the HHS contraceptive mandate is unconstitutional because it violates the right to Free Exercise of Religion of Catholics and others who oppose contraception for religious reasons, and it is not a law with a well-established provenance or a compelling state interest.

Truth be told, I'm still not 100% sure I fully understand the purpose and implications of the establishment clause in general. Given the author and readership of this blog, I was hoping to be presented with some perspectives I hadn't considered before.

For another post...