Freedom of Religion Cases:  Overview

    In Cantwell the Supreme Court created a dichotomy under the First Amendment Freedom of Religion Clause of freedom to believe and freedom to act.  Whereas the first is "absolute" the second cannot be.  In this case, however, the method used by the state of Connecticut to regulate solicitation ("action") was unconstitutional because it permitted  standardless discretion to be used by the Secretary of Public Welfare in granting or denying solicitation permits.  This was the imposition of a "prior restraint" on freedom of religon.

    In Braunfeld although the the Pennsylvania "Blue Law" was upheld as a valid regulation of secular activities, Chief Justice Warren indicated that if the state had not been used the "least restrictive means" to achieve the legitimate governmental goal, the law would have violated the Free Exercise Clause.  The law in question did in fact, wrote Warren, use the "least restrictive means" and was therefore constitutional.    The key point in his opinion was the introduction of the "least restrictive means" test which is very close to the concept that "strict scrutiny" will be used by the Court when it examines otherwise valid laws which restrict religious activities.

    In Sherbert the Court (per Justice Brennan)   used the "least restrictive means" test to invalidate the decision by the state Employment Commission denying the plantiff unemployment compensation benefits.   The state had other means to achieve its goal of preventing spurious unemployment claims.  This "facially neutral" law could not withstand the "strict scrutiny" examination required in such cases.  Braunfeld was distinguished in that there the state had a compelling need in providing one uniform day of rest.

    Justice Stewart believes that this case butts up against the Establishment Clause.  He is concerned that to carve out an exception for Seventh Day Adventists from the provisions of the South Carolina law does, under then existing interpretations of the Establishment Clause, constitute a violation thereof.  Justice Stewart, however, does not agree with those interpretations.  He believes that Braunfeld was wrongly decided and should be overruled.  He believes there was a denial of religion freedom there and here as well.

    Justice Harlan and White dissent on grounds the majority opinion rules that if a state chooses to condition unemployment compensation on the applicant's availability to work, it is constitutionally required to carve an exception for those whose unavailability is religionsly based.  Although the State should have the option of doing this, it should not be required to do so as this decision mandates.

    The Yoder case is very unusual in that Chief Justice Burger's opinion, based in large part on his favorable views of the social responsibility encouraged by the Amish religion, carved out an exception to an otherwise clearly valid state compulsory education law.  While recognizing that the law is valid, using the Sherbert reasoning, he affirmed the lower court decision excluding this religious group from applicbility of the valid state law.

    In Employment Division the Court took a very different approach to Freedom of Religion cases.  As in  Sherbert rights to unemployment compensation were involved.  Oregon law denied believits to those who were discharged for work-related misconduct.  Justice Scalia and the majority upheld the denial of benefits using a very different approach than Sherbert utilized.   Although the action-belief dischotomy was maintained the opinion embraced the use of "strict scrutiny" only when the Free Exercise Clause was interpreted in conjunction with other constitutional protections such as freedom of speech or of the press.  Thus, use of the "compelling governmental interest" test was not appropriate here as this was a pure freedom of religion issue versus a valid secular regulation case.  The
"hybrid" approach by Justice Scalia required the joining of two constitutional violations before strict scrutiny would be utilized.

    Justice O'Conner agreed with the result but not the reasoning.  She wanted to apply the Sherbert standard which would have required the use of the "strict scrutiny" test to determine if there was a "compelling governmental need" for the law.  She concluded that there was such a need in this case.  Justices Blackmun, Brennan and Marshall agreed with the use of the "strict scrutiny" test here but concluded that there was no "compelling governmental need." 

    The Boerne case determined that the Congress had no power to reimpose the "compelling governmental interest" test of Smith.   Once again O'Connor dissents on grounds that Smith was wrongly decided and she refuses to follow the principle of stare decisis in this case.