Not by Faith Alone

Religion, Law, and Adolescence

Roger J. R. Levesque

• Publisher: NYU Press
• Year: 2002
• ISBN:
  9780814752845
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

Teens are often seen as challenging social mores. They are frequently perceived to engage in activities considered by adults to be immoral, including sexual behavior, delinquent activities, and low-level forms of violence. Yet the vast majority report surprisingly high levels of religiosity. Ninety-five percent of American teens aged 13-17 believe in God or a universal spirit, and 76% believe that God observes their actions and rewards or punishes them. Nearly half engage in religious practices, such as praying alone or attending church or synagogue services.

Adolescents' religious beliefs are clearly important to them. Yet, the law does not know how to approach adolescents' religious rights and needs. In Not by Faith Alone, Roger J. R. Levesque argues that teens' search for meaning does not always serve adolescents or society well. Religious doctrines and institutions are not all "good," with violence linked to religious beliefs, for example—particularly racial/ethnic and sexual orientation harassment—becoming an increasing concern.

Not by Faith Alone is the first attempt to integrate research on the place of religion in adolescent development and to discuss the relevance of that research for policies and laws which regulate religion in their lives. Levesque asks how religion, broadly defined, influences the development of teens' inner moral compasses, and how we can ensure that religion and the apparent need for "religious" activity lead to positive outcomes for individual adolescents and for society.

PART III

Regulating Adolescents’ Religious Orientations and Environments

4

Shifts in the Regulation of Religion

We live in a land of religious freedom, but our legal system in reality highly regulates religion. The legal foundation of the United States, the Constitution, contains the First Amendment’s “religious clauses,” which affirm that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… .” These two clauses delineate a spectrum of possible relations among the government, religious institutions, and individual religious believers (and, by implication, nonbelievers). In general, the Free Exercise Clause may require the government to exempt religions and religious believers from general laws, while the Establishment Clause may prevent the government from providing funding or special preferences to religious entities. These two poles delimit a gray area where government may acknowledge religion without being required to do so. Determining what governments properly do within these two poles remains quite challenging, controversial and even somewhat ephemeral.

The Constitution’s statements on religion may appear self-explanatory, but how we are to remain faithful to them has seemed far from obvious, required judicial interpretation, and evolved to face new challenges. Indeed, the wide reach of the First Amendment’s religion clauses emerged only quite recently, and it was only after the U.S. Supreme Court established its own expansive reach that the clauses were essentially revived from nearly one hundred fifty years of dormancy to contribute to much heated judicial, scholarly, and public debate about religion’s role in public life. As suggested by the phrase “Congress shall make no law …” the clauses actually regulate only the federal government, and they were applied only to acts of Congress until the 1940s. Through case law and judicial interpretation of historical accounts, the Supreme Court made the Free Exercise Clause applicable to the states by “incorporation,” an interpretive process by which the Court extended to the liberties protected from federal encroachment by the First Amendment similar protections from state encroachment through the Fourteenth Amendment’s Due Process Clause. The case in question, Cantwell v. Connecticut (1940), involved a Connecticut law that prohibited door-to-door solicitation, a law declared unconstitutional because it violated the Free Exercise rights of Jehovah’s Witnesses. It was seven years later that the Court similarly extended the reach of the Establishment Clause. In that case, Everson v. Board of Education (1947), the Court, while supporting a very high standard of church-state separation, held constitutional a New Jersey statute that reimbursed parents for the cost of busing their children to parochial school. From a constitutional and historical perspective, then, the mandate for states to follow the Constitution’s provisions regulating religion appears quite momentous, even amazing, when we recognize that this interpretation of the religion clauses, catalyzed by the two cases, emerged largely as a phenomenon of the second half of the twentieth century, a period that itself witnessed, largely due to legal changes, dramatic transformations in the role of religion in public life.

The cases that extended the Constitution’s reach to state and local governments have significance beyond the actual law they settled. The cases created an important breakthrough for understanding the legal regulation of religion. Given that most religion cases arise as a result of state rather than federal judicial action or legislation, the cases instrumentally fostered litigation to which the Supreme Court could respond in efforts to guide and help address religious issues confronted by all levels of government. Since incorporation, the federal courts have largely determined national, state, and local policy on the proper role of religion in public life. Such enormous federal power seems especially dramatic in view of the cogent arguments put forth asserting that the incorporation cases actually repealed the Constitution’s provision that Congress may make no laws regulating religion—that the clauses regulating religion amounted to a decision by the federal government not to address questions concerning the proper relationship between religion and the government (see Smith, 1995). This approach would mean that there would be no national law, and thus no constitutional law, theory, or principle prescribing the proper relationship between government and religion and that the regulation of religion would rest solely with the states. Given the latter possibility, it is not surprising to find that considerable judicial and political work still continues the task of interpreting the Constitution’s clauses as applicable to states and local governments (see Glendon & Yanes, 1991).

Litigation constantly challenges where and how the law can draw lines to separate the government, religion, and individuals, and the resulting jurisprudence draws and implements those lines with important opportunities to respond to changing conceptions of religion’s role in public and private life. That legal institutions can respond to religion’s role in society is evidenced by the Court’s significant doctrinal shifts in its regulation of religion and by the federal and state legislatures’ adaptation to those shifts. Given these shifts, analyzing how the law determines the role of religion in adolescents’ lives necessarily must start with an understanding of how and why the legal system regulates religious institutions, practices, and even beliefs.

Free Exercise Jurisprudence

The Supreme Court’s Free Exercise jurisprudence defines the limits on how much government regulation may intrude into citizens’ religious practices. The Court must define that limit, given that the Court itself has interpreted the Constitution’s Free Exercise Clause as providing religious believers with the right to exemptions from laws that infringe on their religious practices. The right to exemptions, by implication, raises the question of the extent to which the Constitution requires that citizens be protected from laws that regulate religious beliefs (important attempts have been made to distinguish beliefs from practices and the legitimate right of the state to regulate either or neither). To understand how the Court balances these concerns, one must understand how it has developed relevant jurisprudential standards and how it envisions further developments in the application of those standards.

The Court’s first major free exercise case set the standard for nearly a century. That case, Reynolds v. United States (1878), involved the constitutionality of a federal law that prohibited bigamy by male Mormon settlers, who claimed that they had a religious duty to marry more than one woman. While the Court acknowledged that the Free Exercise Clause prevented the government from prosecuting citizens for their religious beliefs, it distinguished that from the enforcement of laws governing conduct and held that Mormons could not claim a constitutional exemption. The Court interpreted the Free Exercise Clause as, in actuality, a freedom of belief clause that merely protects religious opinion: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order” (Reynolds v. United States, 1878, p. 164). As a result, the Court found that the state had a legitimate right to apply general laws that could infringe on religious adherents’ sincere practices. The Court’s rigid deference to congressional will resulted, in this case, in particularly onerous intrusions, given that Mormon doctrine required male members of the Church to practice polygamy when circumstances permitted and that the penalty for failure to do so would be “damnation in the life to come” (Reynolds v. United States, 1878, p. 161). From the outset, then, the legal system arrogated to itself considerable power—it would judge how people practice their religions and could even require individuals to act against their faith.

Although Reynolds continues to be the subject of considerable commentary and controversy, for our purposes the case provides two fundamental lessons. From its first analysis of laws that impact religion, the Court assumed that the legal system possessed the authority to regulate religious conduct in the name of advancing social welfare. That authority meant that the Court had to defer to the state’s regulatory power. Equally important, in the Court’s first analysis of these laws, it took the opportunity to limit the freedom to follow the dictates of a religious practice. In fact, even though the Court had asserted that the Free Exercise Clause may require a religious exemption from a general law that regulates conduct when legislation conflicts with religious precepts, the Court never granted such an exemption until it shifted its standard of analysis in the 1960s. Until that time, the Court’s reasoning in Reynolds helped decide a long line of cases that allowed the government to prohibit religious practices even when individuals had acted under the loftiest spiritual motives as required by their religious beliefs.

It was during the socially and politically tumultuous years of the 1960s that the Court, rather than simply relying on the government’s interests, developed important standards to protect citizens making free exercise claims. Two cases involving observance of the Saturday Sabbath illustrate the major shift. In Braunfeld v. Brown (1961), the Court upheld Sunday closing laws that burdened a Jewish businessman’s ability to compete, since he observed a Saturday Sabbath. The Court found no unconstitutional burden on the plaintiff’s religious practice, since nothing in the plaintiff’s faith required him to run a business and the legislature could not operate effectively if every law that increased costs to some religious adherents were unconstitutional.

The Court shifted its analysis in a case that followed two years later. That case, Sherbert v. Verner (1963), involved a Seventh-Day Adventist who lost her employment because she refused to work on her Sabbath day, Saturday. Her refusal to violate her religious beliefs meant that she did not qualify for state unemployment benefits after her discharge because she had “refused suitable work” (Sherbert v. Verner, 1963, p. 401). The Supreme Court departed from rulings in prior cases by applying strict scrutiny to the state law, a level of scrutiny that seeks to determine whether the challenged regulation burdened religious beliefs and whether the state had a compelling interest in enforcing a narrowly tailored regulation. As a result, the Court held that the state must justify the rule by showing not only a neutral governmental intent but also a compelling government interest. Under this rule, the Court discerned that the unemployment compensation law unconstitutionally burdened the plaintiff’s religious practice and found no sufficiently compelling government objective that would justify that burden. In addition, the Court found that permitting the plaintiff to receive an exemption from unemployment compensation laws did not interfere with the operation of the state unemployment compensation system, because the state always used a case-by-case analysis to evaluate individuals’ qualifications for benefits. Thus, the Court reasoned that the right was so compelling that it justified burdening the state, especially since the state could adapt appropriately and address the religious objector’s claims without excessively burdening itself.

A decade later, the Court used this “strict scrutiny” test to establish the high-water mark for religious protection under the Free Exercise Clause. In Wisconsin v. Yoder (1972), the Court sided with Amish parents who refused to comply with the state’s compulsory school attendance statute after their children had completed the eighth grade. In an effectively unanimous opinion, the Court recognized that enforcing the statute would “gravely endanger if not destroy the free exercise of respondents’ [the Amish parents’] religious beliefs” (Wisconsin v. Yoder, 1972, p. 219). Moreover, the Court fully rejected the outmoded distinction between belief and action, stating that, at least in the case of the Amish, “belief and action cannot be neatly confined in logic-tight compartments” (Wisconsin v. Yoder, 1972, p. 220). Most important, the opinion demonstrated the Sherbert approach’s potentially strong protective stance toward religious liberty. When subjected to “strict scrutiny,” Wisconsin’s interest in preparing students for participation in modern life could not stand against the success and agrarian self-sufficiency of the Amish people. Religious freedom would be secured against undeniably neutral legislation that served highly laudable goals. Quoting Sherbert, the Court in Yoder indicated that, to be “compelling,” the interest a state regulation must address would have to involve “some substantial threat to public safety, peace, or order” (Wisconsin v. Yoder, 1972, p. 230). Given that the Amish traditions posed no such compelling threat to the general public, the state had to accept and provide an exemption.

While the strict-scrutiny standard introduced in Sherbert and affirmed in Yoder promised extensive protections for religious believers burdened by state and federal laws, the cases’ significance was not as profound as it might appear. Although the robust “strict-scrutiny” test developed in Sherbert and Yoder greatly influenced lower-court decisions, the Supreme Court itself appeared markedly less hospitable to subsequent Free Exercise claims. Virtually all of its later decisions, while often invoking strict scrutiny, ruled in favor of government regulations and rejected exemptions to accommodate religious claims. In fact, religious adherents’ claims for exemptions from generally applicable laws remain for the most part unsuccessful. Thus, in Lyng v. Northwest Indian Cemetery Protective Association (1988), the Court permitted the U.S. Forest Service to build a road through government land that was located on areas sacred to Native Americans; in Goldman v. Weinberger (1986), the Court upheld a military dress code that barred the plaintiff, an ordained rabbi, from wearing a yarmulke while in uniform; in Bob Jones University v. United States (1983), the Court denied an exemption from antidiscrimination laws to a religious university that claimed that its religious beliefs required racial discrimination; and in United States v. Lee (1982), the Court required an Amish employer to pay social security taxes, despite his religious objections. The newly applied strict-scrutiny standard, then, hardly resulted in a wholesale protection of religious rights and claims.

The Court’s move away from protecting free exercise claims, despite its rigorous scrutiny of alleged infringements, became even more obvious in the context of unemployment, the very context in which Sherbert introduced the high-scrutiny standards. In this context, the Court’s approaches again reveal dramatic shifts in thinking. At the end of the 1980s, the Court closely followed Sherbert in resolving disputes involving eligibility for unemployment compensation. Most notably, in Frazee v. Illinois Department of Employment Security (1989), the Court upheld the right to compensation of a worker who objected to working on Sunday, even though he did not belong to a particular Christian sect. However, a year later, even that context no longer benefited from the strict-scrutiny approach. The Court formally abandoned the strict-scrutiny standard in Employment Division, Oregon Department of Human Resources v. Smith (1990) and upheld the state’s decision to withhold unemployment benefits from Native American plaintiffs terminated from their positions as drug rehabilitation counselors because they had made sacramental use of peyote in one of their religious ceremonies. While the Court acknowledged that, like the law in Sherbert, the Oregon law forced the plaintiffs to choose between upholding their religious beliefs and accepting state benefits, it concluded that “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs … contradicts both constitutional tradition and common sense” (Employment Division, Oregon Department of Human Resources v. Smith, 1990, pp. 885–890). Smith explicitly limited Sherbert to the employment compensation context where “the State has in place a system of individualized exemptions” (Employment Division, Oregon Department of Human Resources v. Smith, 1990, p. 884). Equally important, the Court did not even require a compelling government interest before denying the free exercise claim. The Court explained that the only cases that justified free exercise exemptions from generally applicable laws were those where there was more than one constitutional right at issue (Employment Division, Oregon Department of Human Resources v. Smith, 1990, p. 881), such as a combination of free exercise claims and claims involving the right to free speech or freedom of the press. The Court noted, for example, that it would uphold exemptions for religious exercise combined with the right of parents to direct the upbringing of their children, as in Wisconsin v. Yoder (1972). Essentially, the Court held that, as long as religious exercise is free from deliberate political persecution, the Free Exercise Clause does not require the Court to provide heightened “strict scrutiny” to laws that burden the exercise of religion.

It was in the wake of the Smith decision that Congress swiftly acted to pass the Religious Freedom Restoration Act (RFRA) (1994). RFRA explicitly restored the strict-scrutiny test of Sherbert, which required narrowly tailored laws to achieve the government’s compelling interest when the law “substantially” burdens a religious belief or practice. Congress argued that it had the power to pass RFRA because, under § 5 of the Fourteenth Amendment, it was required to protect citizens’ liberty interests in practicing religion unimpaired by government interference. However, in City of Boerne v. Flores (1997), the Supreme Court found RFRA unconstitutional on the grounds that it violated the separation of powers between the legislative and the judicial branches of government. In that case, zoning authorities denied Flores, the archbishop of San Antonio, a building permit to expand a church in Boerne, Texas. The archbishop challenged the permit denial, claiming that the authorities could not restrict the church building plans, even though the church was located in a historic preservation district. The Court, applying the Smith standards, decided that the archbishop could not obtain an exemption from this neutral law of general applicability by relying on the invalid test prescribed by RFRA. According to the Court, RFRA impermissibly violated the Establishment Clause, since it gave special benefits to religious believers that nonreligious citizens and organizations could not share. The Court explained that applying the Sherbert and the RFRA compelling-interest test would create “an anomaly in the law, a constitutional right to ignore neutral laws of general applicability” (City of Boerne v. Flores, 1997, p. 513).

Although the Court took a seemingly strong stance against efforts to elevate religious rights, religious rights still enjoy considerable protection. The likelihood of protection is particularly great when the laws that impact religion are neither neutral nor general in nature, as when a law specifically targets certain religious practices. The Court’s approach in these contexts is highlighted well by Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). In that case, the Court examined several city ordinances that effectively prohibited the ritualistic sacrificial killing of animals, a practice of the Santeria religion. The Court’s majority first noted that, “[a]lthough the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection’” (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 1993, p. 531). It continued by agreeing with the Church’s assertion that animal sacrifice is an integral part of its religion and that it cannot be deemed bizarre or incredible. Given the centrality of the prohibited sacrifices to the Church’s religious beliefs, the Court proceeded to address the constitutional claim. In its analysis, the Court first returned to Smith for the proposition that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice” (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 1993, p. 531). The Court noted, however, the existence of an important interrelationship between “neutrality” and “general applicability” and added that failure to satisfy one suggests the failure to satisfy the other. As a result, it concluded that “[a] law failing to satisfy these requirements must be justified by a compelling government interest and must be narrowly tailored to advance that interest” (Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 1993, pp. 531–532). Because the ordinances aimed to suppress the central element of the Santeria worship service, the Court found that the ordinances were neither neutral nor of general applicability. In its defense, the city advanced two interests it had sought to target with the ordinances: protection of the public health and prevention of cruelty to animals. The Court found the ordinances to be underinclusive on both counts because they failed to prohibit nonreligious condu...