Category Archives: religion

Bowen v. Kendrick

487 U. S. 589

June 29, 1988

In the Adolescent Family Life Act (AFLA), Congress allowed grants to be given to organizations for the education of children. The children would be encouraged toward premarital chastity and adoption instead of premarital sex and abortion. Grant applicants were required to state how they could involve religious organizations (among other community organizations) in the program). Some religious affiliated groups received grants, and some allegedly used the grant money to teach religious doctrines about sex and pregnancy to children. The AFLA was thus attacked both facially and as-applied.

The Supreme Court upheld the act 5-4. Rehnquist considered the facial challenge first, under the Lemon test. It had an obvious secular objective, and it did not illicitly advance religion. Though the statute referred to religious organizations, they were merely among many community players to be brought in for the education of children. Even though funds sometimes went directly to religious organizations, this had been allowed in other cases, such as aid to Catholic hospitals, or aid to nominally religious colleges. Looking at the record, Rehnquist did not think most grant recipients could be described as ‘pervasively sectarian’ in the way that parochial elementary schools were. Although the law did not specifically prohibit teaching religious doctrines, Rehnquist trusted grant recipients to abide by the Constitutional separation of church and state, and noted that recipients had to check in with the government from time to time.

Rehnquist summarily added that these check ins would not result in excessive entanglement – the final, much maligned Lemon prong. Finally, he turned to the as-applied challenge, and said that a remand would be necessary to determine which grant recipients had actively taught religious doctrines. O’Connor, in concurrence, denied that the Court was retreating from a strong commitment to the Establishment clause. Kennedy, joined by Scalia, noted that even ‘pervasively sectarian’ organizations should be able to receive grant money so long as they refrained from using it to teach religious doctrines.

Blackmun, joined by Brennan, Marshall, and Stevens, wanted to strike the law down altogether. He felt that discrete violations on the record should be considered in a facial challenge, and that any law which so easily allowed for the smuggling in of religious teaching should be struck down. He argued that the majority found, without proper analysis, that most recipients were not ‘pervasively sectarian,’ and that the record suggested the opposite. He noted that the Court had usually required much stronger safeguards against money flowing to any religious teaching, and that the statute’s lack of a ban on religious teaching was inexcusable. He contended that the education of young children was much different than a hospital healing the sick, or even a college teaching less impressionable minds. Finally, he showed that policing grant recipients to ensure that no religious doctrines were imparted would certainly involve excessive entanglement.

Here is another case where the dissent was definitely right on what the various precedents had established, but I would still vote with the majority because those precedents are wrong and stupid. I wish the majority had the courage to overrule the entire Everson-Lemon line, but they didn’t. Instead, we got yet another confusing and contradictory twist in the miserable world of Establishment clause jurisprudence – albeit one that at least had the correct final result.

Ever since Everson, the Court’s liberals have displayed a fierce, sickening, and (I dare say it) religious sort of mania in Establishment clause cases. Here, for example, Blackmun speaks of the Court’s duty to show “unwavering vigilance” in any cases potentially involving government money going to religious activity (just try to imagine a liberal Justice talking about “unwavering vigilance” with respect to, say, the Interstate Commerce clause). He exhorts the reversed District Court judge to “not grow weary” on remand, after all his noble “labors thus far.” Liberals don’t use this really creepy tone for any clause other than the Establishment clause. They despise the God of Israel with a passion, and despise the very thought that even a single cent of tax money might accrue, however remotely or indirectly, to His honor.

The AFLA is one of those very rare pieces of government legislation that truly fights evil. There is not a single social phenomenon more destructive to contemporary civilization than premarital sex. When it comes to generating more abortions, more divorces, more poverty, more sexual assaults, more broken hearts, and more souls turned away from God, nothing else even comes close. For decades, our culture has been poisoned unto death by the lie that sex before marriage is no big deal. The AFLA was one of the few initiatives which actually fought back against the lie.


Employment Div., Dept. of Human Resources of Ore. v. Smith

485 U. S. 660

April 27, 1988

Alfred Smith used some peyote for a Native American religious ceremony. Because of this, he was fired from his job as a (wait for it…) drug abuse counselor. Smith was subsequently denied unemployment benefits, and so he sued, citing the traditional Free Exercise & unemployment benefits cases of Sherbert, Thomas, and Hobbie. The Employment Division responded that this case was different because Smith’s act of ingesting peyote was actually illegal.

By a 5-3 vote the Court remanded the case to Oregon for more clarification on peyote’s legal status (Kennedy did not participate). The previous cases all involved legal religious activity like not working on the Sabbath, which the state had no compelling interest to thwart. In contrast, Stevens said that illegal conduct was a compelling reason to withhold benefits from those claiming religious free exercise. If they could Constitutionally put you in jail for it, they could deny you benefits for it as well. Nonetheless, it wasn’t entirely clear whether ceremonial peyote use actually violated Oregon law, so a remand was necessary to figure that out.

Brennan, joined by Marshall and Blackmun, dissented. He said that the courts in Oregon had already denied the Employment Division any right to deny benefits based on illegal activity. Because, according to Oregon, illegal activity could not be a valid reason for benefits being withheld, the legal status of ceremonial peyote use was irrelevant. In the end, said Brennan, the case really was just like Sherbert and the others. What’s most remarkable about this case is how little warning there was that such a massive change in Free Exercise jurisprudence would come when the case returned in 1990.

Lyng v. Northwest Indian Cemetery Protective Assn.

485 U. S. 439

April 19, 1988

The government wanted to build a road and harvest timber on federal lands that some Indians considered sacred sites integral to their faith.The Indians claimed that this would run afoul with the Free Exercise clause. The government responded that they were neither positively forcing nor coercion the Indians to do anything contrary to their religion. And thus was the issue joined.

The Court ruled 5-3 that the Indians lost (Kennedy did not participate). O’Connor said that the government could not function if it had to worry about every action it took that offended someone’s religious sensibilities. She likened the case to Bowen v. Roy (1986), where someone objected to issuance of Social Security numbers. In both cases, the government had the rights to conduct its own business so long as it didn’t actually target religious groups, or affirmatively compel or prohibit activity. O’Connor also worried that Indians might one day demand that no one but them be allowed to even enter the land, and that this particular slippery slope needed to be stopped right now. Finally, an argument about a statutory law for Indian religious rights was turned away because the law had no teeth.

Brennan, joined by Marshall and Blackmun, dissented vigorously. The government’s plan would essentially destroy the ability of Indians to practice their religion. The real world impact was so dire that it was unfair to blandly assert that nothing had been positively compelled or prohibited. He said that Yoder required courts to consider the impact of an action on religious groups, and was flabbergasted that the Court could not distinguish Roy. Issuing a number for internal use in Washington was very different from actually desecrating a sacred site. Brennan concluded that the government had a duty to ask if its action would strike at the central tenets of a religious faith.

So here it is: the first major battle in the great Free Exercise war that rages to this day. Come for the novelty of seeing the liberals stand up for religious freedom; stay for the mind bending philosophical questions that are raised. A few years ago, I sort of naively believed that perfect religious neutrality was mostly possible, with the government accommodating most claims like this one. Now, I’m more seeing that any nation is always going to have a reigning theology, and that rival theologies will inevitably be kept down.

In the Bible, it is shown as perfectly normal for a nation to say that one god is true, and other gods are false, and govern accordingly. Good kings like Hezekiah and Josiah were right to eliminate public practices directed toward other gods. And even America does the same thing today – which is why it’s social suicide to speak against things like democracy, liberty, self-determination, and separation of church and state. These things are part of our national theology. I support robust Free Exercise rights as long as Christians can practice their faith and potentially gain power. But broad Free Exercise governance is not a sustainable model for the long run.

Gary North had it right: “So let us be blunt about it: We must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will be get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”

Karcher v. May

484 U. S. 72

December 1, 1987

New Jersey passed a law allowing for a moment of silence before each school day. Predictably, some folks got the courts to prevent the law’s enforcement on the grounds that it secretly conscripted poor schoolchildren into abject theocratic tyranny. Karcher and Orechio, the Speaker and Senate President of the Legislature, were the only state officials to step forward and defend the law. Unfortunately, during the course of the appeals, both lost their offices, and their successors refused to fight for the law. The question was whether the duo had judicial standing anymore.

Unanimously, the Court ruled that they did not. O’Connor pointed out that Karcher and Orechio had always contended that they were suing in their capacities as Speaker and Senate President, and in no other capacities at all. They could not now backtrack, and claim to be appealing merely in their capacities as individual legislators. To add insult to injury, O’Connor would not vacate the lower court decision on the grounds that there was no one left to appeal. Their successors as Speaker and Senate President could still appeal, and the fact that they chose not to didn’t matter. White, concurring in judgment, said that Karcher and Orechio might be able to try again from scratch in their capacities as legislators.

If there was ever an instance of Court finding any excuse in the world to avoid reaching a case’s merits, this is it. This is one of the most trivial, ticky-tacky, makeweight objections to jurisdiction that I’ve ever seen. And the annoyances in this case don’t end there. Why the heck are state attorney generals allowed to pass on defending a state law? The power of the people to make laws means nothing if no one has a duty to defend them. Finally, I remain amazed by the tenacity with which moment of silence laws were challenged. The objectors really did seem to believe that the asinine and meaningless silent minute was in fact full-blown despotic theocracy. Someone ought to have told these people to chill out.

Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos

483 U. S. 327

June 24, 1987

A gymnasium run by a Mormon non-profit decided to fire an employee because he was not in good standing with the LDS church. A 1972 law allowed religiously affiliated organizations to freely hire or fire on the basis of religion, but the fired gym employee challenged this law, arguing that it violated the Establishment Clause’s Lemon test. By giving religious organizations this power, the law allegedly had the effect of advancing religion.

A five Justice majority upheld the law against the Lemon test challenge. White wrote that exempting religious bodies from generally applicable laws had long been held a neutral and secular governmental purpose. More to the point, a law which grants churches more autonomy does not “advance” religion, because in subsequent proceedings the church is the actor rather than any agent of the government. Finally, White affirmed that laws affording special exemptions to the religious were not unconstitutionally discriminatory against the non-religious.

The other four Justices concurred in judgment that the firing was valid. Brennan, joined by Marshall, said that he would find a bright line rule exempting religious non-profits from judicial scrutiny in religious discrimination cases, due to the difficulty courts might have in understanding religious doctrines. Nonetheless, he hinted that but for this judicial abstention, he might find the law unconstitutional, as it allowed for religion-based firing of employees with purely secular job duties. In a similar concurrence, O’Connor expressed qualms about the majority opinion’s broad statement that a law which left all action to the churches did not “advance” religion. Blackmun said he agreed with most of O’Connor’s opinion.

The voting alignment truly shocked me. Usually, it’s Brennan, Marshall, Blackmun, and O’Connor who are more sensitive to protecting religious freedom. Ultimately, it seems they sympathize most with the single private individual in religion cases. Here, they felt that the fired employee’s freedom of religion was being unduly coerced by the LDS church. On the flip side, it was downright surreal to see Stevens provide the fifth vote for White’s opinion, especially since many of its strong statements seem directly contrary to what Stevens wrote back in Ansonia. A win’s a win, so I’ll take it – I don’t say this often, but good job Stevens!

Overvaluing individual autonomy has been an enduring theme in American history. Human history too, going all the way back to the beginning. In Genesis 3, the serpent tells Adam and Eve to reject God’s authority, and use their own private religious judgments to decide how to live their lives. And so it goes today – there are countless instances like this one of individuals flatly rejecting church teachings, and then acting outraged when they are fired or excommunicated as a result. People forget that submission to authority is one of the highest values in religion. “Father, if You are willing, remove this cup from Me; yet not My will, but Yours be done” – Luke 22:42.

Edwards v. Aguillard

482 U. S. 578

June 19, 1987

In 1981, Louisiana passed a law requiring creation science to be taught whenever evolution was taught in public school science classes. The state legislature said that this law’s purpose was preserving academic freedom. Immediately, a federal court enjoined the act’s enforcement, on the theory that it had no valid secular purpose, and thus violated the establishment clause’s Lemon test.

The Court ruled 7-2 that Louisiana’s law was unconstitutional. Brennan wrote the majority opinion, which stressed the particular importance of keeping religion out of public schools. Turning to the act’s alleged purpose of academic freedom, he declared it a sham. By forcing educators to either avoid teaching evolution or teach it alongside creation science, the act notably constricted rather than expanded academic freedom. Brennan then reviewed some statement’s of the law’s sponsor and leading proponents, and surmised that the law was really intended to bring God into school, and to discredit evolution on the basis of Christian opposition. To conclude, he defended the lower court’s decision to issue summary judgment without a trial, claiming that the law’s unconstitutionality was plain and undeniable.

Powell, joined by O’Connor, concurred, and gave some additional snippets from legislative history which illustrated the plainly religious motivations and doctrines at the heart of ‘creation science.’ Then, in a feeble attempt to play good cop, he added a few paragraphs about how schools could still teach about religion in certain appropriate contexts. White concurred in judgment. Two lower courts with Louisianans as judges had found a religious purpose, and White did not feel it was the Supreme Court’s place to second guess their interpretation. And then there was the Scalia dissent, which was joined by Rehnquist.

Scalia’s dissent is a dazzling tour de force which cannot be done full justice in only a few sentences. He first reviewed Lemon precedents to show that a pro-religious motivation does not automatically make a law unconstitutional. Next, he reviewed the legislative history in excruciating detail, and proved that Louisiana legislators could conceivably have believed that the law’s purpose was totally secular. Parsing the record further, Scalia explained that the “academic freedom” justification simply meant that students ought to be able to hear the pros and cons of evolution, and be given the ability to make up their own minds on the issue. Finally, Scalia lambasted the Lemon test’s purpose inquiry, arguing that discerning a law’s objective purpose was impossible. He demonstrated that no reliable or principled method existed to ascertain the actual purposes in the heads of state legislators.

This last section is an absolute joy to read. I wish I could quote more of it, but here’s one of the best bits: “If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility or were simply attempting to “balance” the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill’s sponsor is alone enough to invalidate it – on a theory, perhaps, that even though everyone else’s intent was pure, what they produced was the fruit of a forbidden tree?”

Edwards v. Aguillard is probably the most well remembered case from 1987; justly so too, for what a national education system teaches children about the origins of mankind is of foundational and paramount importance. Scalia was correct that the majority acted prematurely in finding a religious purpose. Nonetheless, despite Scalia’s valiant legalistic defense, I must admit as a realistic matter that the law almost certainly was religious at heart. Simply stated, Louisiana wanted God in schools. America’s legal ruling class wanted Him out.

As great theologians throughout history have pointed out, the concept of ‘neutrality’ is largely a mirage. To quote Christ, “he who is not with Me is against Me; and he who does not gather with Me scatters.” When schools teach non-theistic evolution as the origin of mankind, they are not neutral toward Christianity – they oppose it. Abraham Kuyper, a Dutch Prime Minister from the early 1900s, was one of the first politicians to figure this out. He knew that public schools were not religiously neutral, but inherently anti-theistic, and accordingly advocated for government funding of religious schools in the interest of fairness.

Justice Hugo Black actually grasped much of this logic back in 1968, when he dissented from the Court’s decision that states could not ban the teaching of evolution. He wrote “If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to school children? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so, too, have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines?”

One great irony of the case is that the Louisiana legislature was not actually honoring God. God merits preeminence, but Louisiana was only willing to give Him equal time. The law was like ancient Israel declaring that they would equally celebrate both God and Ba’al. The American culture of pluralism is so strong that not even the devout Baptists and Catholics of Louisiana dared to recognize God’s dominion. So long as the establishment clause exists, Christians will never be able to completely live out their faith. As Kuyper explained, God is sovereign over absolutely everything – politics included. A faithful Christian cannot leave behind their allegiance to God in the voting booth, or in the statehouse. A faithful Christian cannot simply turn off his or her faith while deciding what laws to pass. But as Justice Brennan makes clear, this is precisely what the establishment clause directs Christians to do.

Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc.

482 U. S. 569

June 15, 1987

At LAX airport, which is owned by the city of Los Angeles, a resolution was passed which banned all “First Amendment activities” in the airport terminal. It was drafted in response to groups like Jews for Jesus, who often distributed literature to travelers coming or going. Jews for Jesus argued, rather sensibly, that a resolution banning all First Amendment activity probably violated the First Amendment. One important question was whether an airport terminal should be considered a public or nonpublic forum.

O’Connor wrote for a unanimous Court, and concluded that no matter what type of forum the airport was, the resolution remained unconstitutionally overbroad. Read literally, she noted that the resolution would ban passengers from wearing shirts with writing on them, or even from talking while they walked through the terminal. Furthermore, she pointed out that there was no obvious other way to read the text of the resolution. O’Connor brushed aside the airport’s pathetic attempt to explain that it only banned activity that wasn’t “airport related,” observing that this proposed saving construction was laughably vague. White, joined by Rehnquist, grumbled in a brief concurrence that the Court should have decided whether an airport was a public or non-public forum.

This case is notable for marking Jay Alan Sekulow’s debut before the Supreme Court. As a Messianic Jew himself, winning this case unanimously must have felt especially gratifying. Incidentally, I have found that the most important and foundational truths are quite often the very things worldly governments are most eager to ban. Here, the distinctly Jewish message of God’s saving gospel was the object of zealous censorship. The very next case in United States ReportsEdwards v. Aguillard – might possibly be an even better example. The maniacal intensity that federal judges display in their quest to keep children from learning about creation only serves to underscore and illustrate creation’s indelible significance and centrality.

O’Lone v. Estate of Shabazz

482 U. S. 342

June 9, 1987

Shabazz was an inmate at a New Jersey prison, and was a devout Muslim. He desired to observe Jumu’ah every Friday with other prisoners of the Muslim faith. For some time, this was allowed, until the prison changed the rules, citing security and logistical concerns. Shabazz claimed that denying him the opportunity to participate in Jumu’ah violated the Free Exercise clause.

In a 5-4 decision, Rehnquist sided with the prison authorities. Citing Turner v. Safley, decided just eight days earlier, Rehnquist said that the legal test in prisons when fundamental rights (like free speech, marriage, or religion) were implicated was whether the regulations were reasonable and related to penological interests. He observed that concerns over security, and the logistical difficulty of accommodating the Jumu’ah meeting were reasonable ones. He further observed that Muslim prisoners already received a good deal of accommodation, and that prisons had a right to discourage affinity groups from forming.

Brennan dissented, and was joined by Marshall, Blackmun, and Stevens. They observed that fundamental Constitution rights ought not be abrogated on the basis of “reasonableness,” even in the prison context. Even assuming that standard though, Brennan thought the prison was unreasonable. He pointed out that federal prisons allowed Jumu’ah to be observed, and that Jumu’ah was as central to the Islamic faith as Mass was to Catholicism. Finally, he showed that the prison’s asserted interest did not appear to be backed up by any factual findings, and thus argued that these interests should not be afforded blind deference.

A puzzle is why Stevens dissented. As we’ve seen before, he is almost invariably against religious claimants. This is the only time I’m aware of that he ever dissented in favor of a religious claim. My best guess is that he knew how tacky it would look to abandon wholesale the logic of the Turner dissent that he had joined just eight days earlier. As for the majority, its analysis was highly disappointing. This was yet another hammer blow in the slow and tragic death of the Free Exercise clause at the hands of the conservatives. Fortunately, the Religious Land Use and Institutionalized Persons Act of 2000 mitigated some of the damage done by O’Lone.

The brief discussion about affinity groups caught my eye. The prison said “any time you put a group of individuals together with one particular affinity interest . . . you wind up with . . . a leadership role and an organizational structure that will almost invariably challenge the institutional authority.” Interesting. Islam, and Christianity for that matter, do indeed challenge institutional authority. Both declare that God is above America, and that His laws trump a nation’s civil laws. In 1987, this thought apparently terrified conservatives. Today, it terrifies liberals to an almost unthinkable degree. It just goes to show that everyone on the political spectrum, to one level or another, hates the idea of God’s sovereign authority (Cf. Romans 8:7).

Shaare Tefila Congregation v. Cobb

481 U. S. 615

May 18, 1987

The Shaare Tefila synagogue was vandalized with anti-Semitic obscenities. The congregation attempted to bring a section 1982 racial discrimination claim, but faced the response that Jews were not a racial minority, and thus could not file such a claim. The Court ruled unanimously that Jews could be considered a race for section 1982 purposes. White wrote that the case was squarely controlled by the Court’s holding the same day in Al-Khazjari. The exact same analysis applied.

These two cases were unanimous for a reason. There really couldn’t be much argument based on the legislative history. Together, they illustrate how slippery the concept of race really is. While I accept that race is almost entirely a social construct (and a harmful one at that), the Jews ironically have a better claim than anyone else to actually being a true race. The scriptures testify over and over again that they are God’s separate and chosen people, blessed with His Word, protected by His hand, and beloved in His heart.

Hobbie v. Unemployment Appeals Comm’n of Fla.

480 U. S. 136

February 25, 1987

Paula Hobbie converted to Seventh Day Adventism, and was later fired from the jewelry store she worked at for her refusal to work on Saturdays. When she applied for unemployment compensation, she was denied with the explanation that compensation was not provided to employees who were fired due to “misconduct.” Hobbie contended that this denial violated the free exercise clause.

Brennan wrote for an 8-1 majority in favor of Hobbie. He found that the case was controlled entirely by two earlier and almost identical precedents, Sherbert v. Verner and Thomas v. Review Board. He quickly dismissed some attempts to distinguish those cases on the grounds that Hobbie was a convert, and that the denial of benefits was slightly less onerous than in the precedents. Brennan also specifically reaffirmed the Court’s commitment to subjecting all government burdens on free exercise to strict scrutiny, requiring the government to prove a compelling interest.

Powell concurred in judgment. He found that the Sherbert and Thomas precedents controlled, but bizarrely objected to Brennan’s restatement of the compelling interest test. Stevens, knowing he was bound by the precedents, concurred in judgment without offering any explanation as to why he did not join the majority opinion. As I explained previously, Stevens is always a passive-agressive tool in religion cases. Rehnquist dissented, adhering to his view that Thomas was wrongly decided.

This case was very sad to read. The decision itself was great, but I read it knowing full well that the free exercise clause would never be quite this strong again. In the next several years, Scalia and White would fall away from the compelling interest standard, and judicially cripple freedom of religion. It was also heartbreaking to see Brennan writing the majority opinion, knowing that no liberal Justice would ever do such a thing today. It’s even more striking to see Brennan caring about religious Americans being disfavored by unemployment commissions when you remember that he joined the majority in Wimberly. It was a different era indeed.