Additional Freedom of Religion Cases

The history of the interpretation of the First Amendment’s "free exercise" clause has been one of inconsistent decisions. The Mormon polygamy decision (Reynolds v. U.S.) that Alan refers to (see Handout 7B) stated that it only provides an absolute freedom regarding beliefs not practices (see Lesson 4). Sherbert v. Verner held that if the government places a substantial burden on someone due to their religion, then the government must have a compelling interest to do so (Lesson 6). This marked a major departure from Reynolds. However, Employment Division v. Smith (See Handout 7C) moved in the other direction, allowing a state to deny unemployment benefits to Native Americans fired for using peyote. The Court made a distinction based on Smith involving religious practice that contravened criminal law, and held that it was up to the state whether to grant a religious exemption. Public reaction against the decision led to the passage of the Religious Freedom Restoration Act in 1993 which restored the Sherbert ruling, but the Boerne v. Flores decision made the RFRA unconstitutional on the basis that it took away power that ought to reside in state and local legislatures. In so doing, the issue of striking a balance between government interests and religius freedom still remains uncertain and will require further case law.

Students will be able to:

1. Compare the facts and decisions of major freedom of religion cases throughout our history.
2. Discuss the meaning of the RFRA and why it was declared unconstitutional.
3. Formulate generalizations about how the concept of freedom of religion has developed throughout our history.

Handout 7A, "Students Discuss Major Freedom of Religion Cases;"

Handout 7B, "Reynolds v. U.S.;"

Handout 7C, "Employment Division v. Smith;"

Handout 7D, "Boerne v. Flores;"

Handout 7E, "Overview of Major Freedom of Religion Cases."

1-2 class periods

1. Distribute Handout 7A, "Students Discuss Major Freedom of Religion Cases." Select two students to read the parts of Alan and Beth. Have them read section I. Use the reading to review the Reynolds and Sherbert cases. Have students compare the facts and decisions of the two cases.
2. Distribute Handout 7C, "Employment Division v. Smith (1991)." Review the visual with the class. Obtain some initial reactions from the class regarding how they think the Supreme Court should rule. Have the students portraying Alan and Beth read section II of Handout 7A. After further discussion, point out that the Supreme Court ruled against the Native Americans. Actually the Court sent the case back to the Oregon appeals court and Oregon refused to make an exception for the religious use of peyote.
3. Most students will think that the decision against the Native Americans was unfair. That is a good transition to continue reading Handout 7A, section III. Discuss the meaning of the RFRA with the class. Ask if that law could lead to any problems. Mention that many people in prisons insist on special diets, clothing and conditions due to their religious beliefs.
4. Distribute Handout 7D, "Boerne v. Flores." After students read 7D, read section IV of 7A. Discuss the conflict in the case and whether the RFRA is a good law, or whether it places too much control on what local governments can do. Point out the decision in the case—that the law was declared unconstitutional (see 7E)
5. Distribute Handout 7E, "Overview of Major Freedom of Religion Cases." Divide students into small groups. Have each group develop two or three main generalizations about what all of these cases and decisions indicate about the history of religious freedom in our country.

Divide the class into groups of five students each. Each group will select one of the freedom of religion cases studied in this unit. One student in the group will represent the plaintiff and another student will represent the defendant. Plaintiff and defendant will present his/her case. The remaining three students will act as judges and make a decision in the case. The decision should be based on the arguments freedom of religion versus a compelling state interest (need of the state) e.g. a religion that believes in human sacrifice can be banned from doing so because the state has a compelling interest in stopping killing.

Based on multiple intelligence theory.

Linguistic: Divide the class into three groups of equal size. Each group will take a different position on the Free Exercise Clause of the First Amendment. The positions will be:

People have freedom of belief but do not have freedom of practice;

Each group will prepare a written statement supporting their position. One representative will be selected to read the position to the class. The class may ask questions and make comments. The group representative may seek the assistance of the remaining group members in answering questions and comments.

Logical/Mathematical: The class should think of logical reasons to support or oppose the decisions in the cases studied. Students should select what they believe to be the most logical reason to support or oppose each case. Students should then discuss whether the most logical reason leads to the best decision. Ask students if there are other things to consider besides logic in making a decision.

Kinesthetic: The class should simulate a legislative hearing on the Religious Freedom Restoration Act. A statement of the Act should be written on the chalkboard. Three students in the class will make presentations supporting the Act and three students will make presentations opposing the Act. The three students will have a total of five minutes to make their presentations. The class will act as legislators asking questions and making comments.

Spatial: Students should prepare a collage of pictures that highlight the issues in one or more of the free exercise cases. The collage should express a viewpoint about the cases.

Intrapersonal: Have students write a reflective journal entry explaining how important freedom of religion is to them.

Interpersonal: Divide the class into groups of equal size. Have each group discuss whether the government should have the right to ban a religious practice, because the government has a strong reason or a compelling state interest to do so. The groups should list the kinds of reasons that they believe are important enough to allow the government to ban a religious practice.

Musical: Play religious songs about various holidays and discuss whether these songs should be played in public schools.

Beth: First, the Supreme Court said that "free exercise" only protected beliefs. Therefore, the Mormons could not have several wives (see Handouts 4A & 4B).

Alan: The Sherbert case (see Handout 6A) greatly increased religious freedom. Her religion did not allow her to work on Saturdays. Mrs. Sherbert refused to take any job involving work on Saturday. Therefore, the unemployment agency would not give her any money.

Beth: But Mrs. Sherbert won at the Supreme Court. Her religious beliefs had caused her to lose her unemployment checks. That was a big burden on her. The Court said government couldn’t burden someone due to his or her religious beliefs unless the government has a very strong reason. A strong government reason is called a "compelling state interest."

Alan: I guess an obvious example would be murder. A person could not say that his or her religion required killing someone. The government has a compelling state interest to protect life.

Beth: And Mrs. Sherbert certainly wasn’t committing any crime by not working on Saturdays.

Alan: Well, here’s a case involving illegal drug use and religion. This case also involves losing unemployment benefits.

(Read the visual of Employment Division, Department of Human Resources v. Smith)

Alan: I think the Court should rule in favor of the Native Americans.

Beth: Why?