Free Exercise, Employment Division v. Smith
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  Free Exercise, Employment Division v. Smith
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Author Topic: Free Exercise, Employment Division v. Smith  (Read 3225 times)
Schmitz in 1972
Liberty
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« on: November 06, 2005, 02:29:14 PM »

Employment Division v. Smith, 494 U.S. 872 (1990)

JUSTICE SCALIA delivered the opinion of the Court.

This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.

***

Because respondents' ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed.
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A18
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« Reply #1 on: November 06, 2005, 02:40:46 PM »

The holding was constitutionally sound. The reasoning was absolutely atrocious.

The Court effectively struck the Free Exercise Clause out of the Constitution. I would have signed on to O'Connor's opinion.
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Emsworth
Junior Chimp
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« Reply #2 on: November 06, 2005, 03:07:37 PM »

The conclusion reached by the court was sound, but the basis on which it was made was highly implausible and dangerous.

It is clear that the free exercise clause does not give every person carte blanche to do as he pleases in the name of religion. Human sacrifices, the refusal to pay taxes, or robbery--although motivated by sincere religious beliefs--are not protected under the free exercise clause. The use of drugs falls within the same category.

It is equally clear, however, that the line of reasoning adopted by the majority was an extremely unsound one. The court ruled that the free exercise clause protects actions only in conjunction with other constitutional protections. Needless to say, this approach reduces the free exercise clause to a mere nullity, a superfluous provision full of sound and fury, signifying nothing.
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A18
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« Reply #3 on: November 07, 2005, 09:38:52 AM »

I would look to American history to discern the limits of the First Amendment's Free Exercise Clause.

The Maryland Assembly enacted the first free exercise clause in 1649: "[N]oe person . . . professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof . . . nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Governemt."

Rhode Island's Charter of 1663 protected residents from being "in any ways molested, punished, disquieted, or called into question, for any differences in opinion, in matters of religion, and do not actually disturb the civil peace of our said colony," and provided that  residents may "freely, and fully have and enjoy [their] own judgments, and conscience in matters of religious concernments . . .; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others."

The Maryland Declaration of Rights of 1776 declared: "[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights."

The New York Constitution of 1777 provided: "[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State."

Georgia's Constitution of 1777 stated: "All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State."

The New Hampshire Constitution of 1784 read: "Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shallbe hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, . . . provided he doth not disturb the public peace, or disturb others, in their religious worship."

These early provisions give us some guidance in ascertaining the boundaries of free exercise.
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Emsworth
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« Reply #4 on: November 07, 2005, 05:37:05 PM »

These early provisions give us some guidance in ascertaining the boundaries of free exercise.
Based on these provisions, how would you interpret the free exercise clause? As protecting any religious activity that is not "licentious" or that does not disturb the "peace and security of the state"?
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