A COMPARATIVE ANALYSIS OF PROTECTION AFFORDED
TO FREE EXERCISE OF RELIGION BY THE FREE EXERCISE
AMD FREE SPEECH CLAUSES OF THE FIRST AMENDMENT
Gerrit M. Pronske
Independent
Research
Professor Rodrick Schoen
Texas Tech University School of Law
Sepember 23, 19 83
ooim
INTRODUCTION
The free exercise clause of the first amendment"'"
affords three basic protections of individual
liberty:
First, the clause protects those who engage in religious
2
activity;
second, the clause protects those who wish to
forego compulsory involvement in activities because of religious conscience ;
and third, the clause protects
freedom
of
belief. 4 may
In be
the forced
first to
two yield
areas,
freedoms sought
be protected
to the
a compelling
state to
interest,
5
but in the third, the protection is absolute.
6
In this paper it will be shown that the free exercise
clause of the first amendment runs concurrently to the free
speech clause almost to the point of complete inclusion of
free exercise rights into the free speech area.
7
sphere of religious activity/religious speech,
In the
where
those
attempting to invoke first amendment protection have prevailed, the Court has decided
a vast majority of the cases
g
on free speech grounds,
and in the cases where free exercise
claims were unaided by free speech
claims the challenges
9
were left without vxndication.
In those cases where exemp-
tion from a compulsorylaw was sought based on religious
conscience, the Court has granted such exemption based on
both the free speech and free exercise clauses.
0 6 1 B 4
In these
"exemption" cases, the courts have often looked to the nature
of the activity sought to be exempted to determine how central
or essential to the religious belief the practice
is.^
Although this centrality principle has not been precisely
defined or isolated by the Supreme Court as such, it is
applied only in free exercise analysis and therefore
shows
a possible basis for different results between the two
clauses in. exemption cases.
In cases where an exemption
is sought fro® compulsory laws for an activity that is
neither labeled "speech" nor integrally related to speech,
the free exercise clause is without counterpart in the free
speech clause.
The free speech clause does not protect
12
that which is acivity unrelated to speech.
The free ex-
ercise clause, however, has never been held to protect only
activities which possess a speech related component.
That
several cases have been decided applying free exercise an13
alysis where non-speech activity was at issue
shows a
major distinction in theory between free speech and free
exercise clause analysis.
In freedom of belief cases,
the results m u s t necessarily be the same bacause both the
clauses have been held to provide absolute protection. 14
The establishment clause of the first amendment
has likewise not proven to create any intelligible
between the free speech and free exercise clauses.
distinctions
In rel-
igious speech cases, if the Court finds the presence of a
15
"public forum
no discrimination or differentiation will
be allowed on the content of the speech. ^
excludes establishment clause janalysis.
g m
This virtually
In cases where
an exemption from compulsory laws is sought, the
C o u r t has resigned itself to the tension w h i c h it
is inherent between the establishment and free
Supreme
feels
exercise
c l a u s e s and h a s allowed the free exercise claims as
"nothing
m o r e t h a n the governmental obligation of neutrality
in the
face o f religious differences.
. . .
R E L I G I O U S W O R S H I P A S SPEECH UNDER WIDMAR
V.
VINCENT.
1 8
19
In Widmar,
the question was whether a state
s i t y , w h i c h m a d e its facilities generally available
a c t i v i t i e s of registered
for
student groups, could close
f a c i l i t i e s to a student group desiring to use the
for religious w o r s h i p and discussion.
m e e t i n g s of registered organizations.
its
facilities
The University of
M i s s o u r i a t K a n s a s City routinely provided
20
facilities
for
Cornerstone, a
registered religious organization, had held meetings
u n i v e r s t i y facilities for four years which included
h y m n s , B i b l e commentary, and discussion of religious
21
iences.
univer-
in
prayer,
exper-
In 1977, the university informed Cornerstone
could no longer m e e t in u n i v e r s i t y facilities.
This
it
decision
w a s based on a regulation w h i c h prohibited the use of university b u i l d i n g s for
22 purposes of religious worship or
religious teaching.
Eleven m e m b e r s of Cornerstone
suit to challenge the regulation on the grounds that
fdr.fw
brought
their
rights of free exercise, equal protection, and free speech
were being
denied.^
The Supreme Court said that a campus of a public
university
"possesses many of the characteristics of a
24
public forum. "
In a university public forxim, students
enjoy first amendment rights of speech and
Citing Heffron
Sciousness,
v. 25
International
Inc.,
and discussion
Society
association.
For Krishna
Con-
the Court held that religious worship
are forms of speech and association pro-
tected by the first amendment,and so the case was 2
decided
6
on free speech grounds, not free exercise grounds.
In
a dissenting opinion, Justice White took issue with the majority's generic classification of speech, arguing that the
religious nature of speech is cognizable and, in this case,
its presence should have allowed the University of Missouri
at Kansas City to exclude Cornerstone from its facilities
27
because of the establishment clause.
In a footnote,
Justice White raised the point that the majority was, in
effect, creating new law on the categorization of religious
speech.
White said that
Heffron
did not stand for the
proposition that religious worship was speech.
the religious group in Heffron
zation, i.e., talking about
worshipping.
religious
Rather,
was engaging in proselyti-
religion, rather than actually
White rejected the majority's inclusion of
worship into the category of speech,
concluding
that "talk about religion and religious beliefs. . . is
28
not the same as religious services of worship."*'
Also
in a f o o t n o t e , 2 9 the majority found three difficulties
in
the soundness of White's distinction between religious
services of worship and talk about religion and talk about
religion and religious beliefs.
First, argued the major-
ity, the dissent failed to establish that an intelligible
distinction between the two could be made.
indication when
"There is no
'singing hymns, reading scripture, and
teaching biblical principles.
. .' cease to be
'singing,
teaching, and reading,' - all apparently forms of
'speech,'
despite their religious subject matter - and become unprotected
'worship. 1
Second, even if it were possible to
draw such a distinction, it would be highly doubtful that
to do such would be in the realm of judicial competence.
In practice, this would require the university, and ultimately the courts, to inquire into the significance of
words and phrases to different faiths.
This type of in-
quiry would tend to entangle the state with religion in
violation of the third prong of the establishment
announced by the Supreme Court in Walz
v. Tax
test
31
Comm'n.
Finally, the dissent failed to establish the relevance of
such a distinction.
The majority said there was no sub-
stantial reason why the establishment clause would
require
different treatment for religious speech designed to win
religious converts than for religious worship by persons
0 0 1 fifl
already
converted.
The Court, in equating religious worship to speech,
and deciding that the University of Missouri had discriminated against the student group in not allowing their religious worship, then proceeded with the balancing test to
determine whether there existed a compelling state
to justify the infringement.
interest
The university claimed that
its compelling state interest derived from the establishment clause.
The Court held that an "equal access" policy
32
would not be violative of the establishment
clause.
Central to the Court's establishment analysis is that by
creating a forum with equal access the university does not
endorse or promote any of the particular ideas aired there.
Despite the fact that the religious group would enjoy benefits from access to university facilities, such benefits
would be merely "incidental," and therefore not violative
of the prohibition against "primary advancement" of religion.
There are two reasons for classifying such benefits
as "^incidental":
first, an open forum in a public univer-
sity does not confer imprimatur of state approval on religious sects or practices.
This seems a very important
statement in the sanction it gives to religious organizations to use public forums clear of establishment
problems.
clause
It seems unlikely that many instances could be
conceived of in which the imprimatur of state approval
6
would be conferred by allowing such access to public for33
urns.
Second, the forum is available to a broad class of
non-religious as well as religious speakers, so that the
"primary effect" of the forum is not the advancement of
religion.
The Court in Widmar
stressed the notion that the
denial of general benefits to religious groups would cause
such results as a church not being afforded police and
fire protection.
Obviously, the purpose of the establish-
ment clause does not require such harsh results.
The effect of the pronouncement of Widmar
and far reaching.
seems direct
Religious worship is now speech protected
by the first amendment, and virtually impregnable to establishment clause molestation, at least in cases where
non-religious speech would be protected.
Despite the ostensible breadth of the Court's pronouncement in Widmar,
two questions have apparently been
left unanswered:
1.
If a plaintiff argues that his right to religious free speech has been denied, but couches
his argument only in free exercise
language,
what result; i.e., does the free exercise clause
actually afford less deference to "religious
speech" than the free speech clause?
If a case were argued under free exercise alone, the
free speech requirement of content neutrality would obviously not be present.
It would seem that the Court would have
to weigh the rights of the free exercise claimant against
J)§1?0
the requirements of the establishment clause.
The Widrnar
C o u r t w a s apparently trying to obviate the necessity of
doing this, perhaps attempting to relieve some of the tension w h i c h presently exists between the free exercise and
establishment c l a u s e s .
If this type of establishment
an-
alysis w e r e required, the Court would go through the traditional three-pronged test:
"First, the governmental
pol-
icy m u s t have a secular legislative purpose; second,
its
p r i n c i p l e or primary effect must be one that neither
ad-
v a n c e s nor inhibits religion.
must n o t foster
. .; finally, the policy
'an excessive government entanglement
with
34
religion,*"
2.
The second question is whether the free exercise
c l a u s e c o u l d be held to actually afford more
p r o t e c t i o n to religious free speech than the
free speech
clause.
It seems p o s s i b l e that if there were no
establish-
ment c l a u s e p r o b l e m s to countermand a given religious
speech
r i g h t , t h a t analysis under the free exercise clause could
subject this right to greater protection than would
analy-
sis u n d e r the free speech clause.
There is no hint of an
answer t o this q u e s t i o n in Widmar;
indeed, no case
t o have dealt w i t h this p o t e n t i a l fact situation.
seems
However,
it could at least be argued that to completely subsume
igious free exercise rights into the free speech
rel-
clause
w h e r e religious speech was in question would empty the
free exercise clause of its independent meaning and pur-
pose.
EXEMPTIONS FROM OTHERWISE COMPULSORY LAWS BASED ON REL-
GIODS CONSCIENCE
In cases where an exemption from an otherwise compulsory law is sought, courts have found both the free
clause and the free exercise clause applicable.
speech
The basic
test to be applied in free exercise cases was announced
by the Supreme Court in Sherbert
challenged under the Sherbert
two-part analysis:
v. Verner.^^
Regulations
test are scrutinized under a
First, it must be found that the law
or regulation actually burdens the religious
er's free exercise of religion.
practition-
Second, if such burden is
found, the state, in order to justify such burden, must
be advancing a compelling state interest using the least
36
restrictive means available.
The Sherbert
test was ad-
opted almost verbatim
37 from the free speech test
in MMMCP
V. Button.
articulated
On the surface, it would seem that
the use of identical tests would preclude different
results
to be reached between the free exercise and free speech
clauses when analyzing a given statute, i.e., if an interest is deemed compelling with respect to a speech
challenge
it would similarly be compelling with respect to a free
exercise
challenge.
00172
Two possible exceptions to the above analysis appear
to exist.
The first exception deals with cases where the
law sought to be exempted from infringes on a particular
religious activity
(speech related or non-speech related)
which the court finds to be of central importance to the
religion involved.
In such limited situations, the Court
has added additional weight to the religious
practitioner's
38
side of the Sherbert
balancing equation.
The second
exception deals with cases where the activity sought to be
exempted is neither "speech" nor integrally
incidental to speech.
related or
Here, there is a marked
theoretical
difference between the free exercise
and free speech clauses.
39
In United
States
v. O'Brien,
the Supreme Court refused to
apply the compelling state interest test to an activity
which it found to be lacking in a speech related component.
Since the free exercise clause theoretically protects against
any potential burden on religious practice, speech related
or not, the free exercise clause inherently protects a
class of rights which the free speech clause does not:
non-speech religious
activities.
The first exception shows a possible difference in
the Court's analysis within
the Sherbert
balancing
test
between the free exercise and free speech clauses when
"centrality" is shown to be present.
shows a difference in whether
The second
the Sherbert
test will be
applied, based on the assumption that non-speech
-mm
exception
religious
activities w i l l not require a compelling state interest
p a s s m u s t e r under the free speech
A.
THE "CENTRALITY"
to
clause.
PRINCIPLE
T h e centrality principle,
40
although never
presicely
d e f i n e d or isolated by the Supreme Court, began to emerge
41
w i t h the C o u r t ' s decision in Sherbert
Sherbert,
v. Verner.
In
t h e appellant, a m e m b e r of the Seventh Day A d -
v e n t i s t C h u r c h , was discharged by her e m p l o y e r because
she could not w o r k on Saturday, the day of her
42
Sabbath.
W h e n she applied for unemployment compensation she was
d e n i e d benefits because, contrary to a South Carolina
u t o r y requirement,
stat-
she had failed, without good cause, to
a c c e p t available suitable work when offerred by the e m p l o y 43
s e n t o f f i c e or employer.
A p p e l l a n t calaimed that the South Caroina
statute
h a d abridged her right to the free exercise of her
b y d e n y i n g her unemployment compensation benefits
religion
because
of her religious based conscientious objection to work on
Saturdays. 44
The Court, in announcing
its two-part
balancing
45
test,
first held that it was apparent that the
inability
to receive benefits derived solely from the practice of
her religion and that the pressure upon her to forego
mn}n
that
practice, even though economic by nature, was
present.
unmistakably
The notion that Saturday worship was "a cardinal
46
principle of her religious faith"
seems to have helped
swing the balance in favor of the appellant against the
state's avowed compelling interest in preventing dilution
of the unemployment compensation fund through the filing
of fraudulent claims.
Whether the Court consciously con-
templated centrality as a distinctive doctrine or principle is uncertain.
A year later, the California Supreme Court
the language in Sherbert
siezed
and raised the notion to a 47spec-
ifically enunciated principle.
In People
v. Woody,
a
group of Navajos met in an Indian hogan in the desert near
Needles, California, to perform
a religious ceremony which
48
included the use of peyote.
Defendants were arrested and
49
convicted for the unauthorized possession of peyote.
Defendants pleaded not guilty of the crime of illegal possession of narcotics, contending that their possession of
peyote was incident to the observance of their faith and that
the state could not constitutionally
invoke the statute
against them without abridging their right to the free
exercise of their
religion.^
The California Supreme Court began its analysis
51
by citing the Sherbert
balancing test.
Key to the court's
holding that the free exercise of the defendants had been
violated was the notion that the use of peyote played a
"central role in the ceremony and practice of the Native
52
American Church.
..."
"Although peyote serves as a
sacramental symbol similar to bread and wine in certain
Christian churches, it is more than a sacrament.
Peyote
constitutes in itself an object of worship; prayers are
directed to it much as prayers are directed to the Holy
Ghost.
On the other hand, to use peyote for nonreligious
53
purposes is sacreligious."
In Woody, the People prin54
cipally relied on Reynolds
v. United
States,
wherein
it was held that the prohibition of polygamy did not unconstitutionally violate the religious freedoms of the members
of the Mormon religion.
The court distinguished
Reynolds
on the ground that although polygamy was a basic tenent
of Mormanism, it was not essential to the practice of the
religion.
"On the other hand, peyote is the sine
qua
non
of the defendant's faith; the sole means by which defendants
are able to experience their religion.
In Leary
v. United
States,
the defendant and his
eighteen year old daughter were jointly indicted
on three
57
counts for offenses pertaining to marihuana.
Dr. Leary
w a s a m e m b e r of a Hindu sect of India which used marihuana
for religious illumination and meditation.
58
According
to
the Hindu religion, there are thousands of such roads to
59
illumination to god within a person.
Leary testified
that if he could not use marihuana it would not affect his
religious beliefs but he would consider it a violation of
h i s reigious beliefs and practices, as well as a violation
60
of m o r a l and p o l i t i c a l rights.
His conviction was
ap-
p e a l e d on these grounds.
The Fifth Circuit Court of A p p e a l s said that the
f i r s t amendment e m b r a c e s two concepts:
f r e e d o m to b e l i e v e .
freedom to act
and
Freedom to believe is absolute but
the freedom to act is conditional and relative and may
times b e subordinated to the interests of the public
fare and the protection of
at
wel-
society.
In holding that L e a r y ' s free exercise rights had
been violated the court rejected Leary's attempted
not
dem-
o n s t r a t i o n that the experience he found through the use
o f m a r i h u a n a was the essence of his religion.
There is no evidence in this case that the
u s e of m a r i h u a n a is a formal requisite of the p r a c tice of Hinduism, the religion which Dr. Leary
professes.
At most, the evidence shows that
it is considered by some as being an aid to attain
conciousness expansion by w h i c h an individual
can m o r e easily mediate or c o m m u n i c a t e with his
god.
Even as such an aid, it is not used by
Hindus universally.61
T h e Leary
court dealt w i t h the Woody
tinguishing it on the basis of
case by dis-
centrality.
W e note an essential difference between
Woody and the instant m a t t e r in that peyote in
the Woody case played a "central role in the
ceremony and practice of the Native A m e r i c a n
C h u r c h , a religious organization of the Indians,"
and that the "ceremony, marked by the sacramental
use of peyote, composes the cornerstone of the
p e y o t e religion."62
Other non-0.S. Supreme Court cases have held
against
the individual seeking exemption from governmental
regula-
tions and have felt the need to distinguish Woody
basis of
on the
centrality.^
64
In Wisconsin
v. Yoder,
the Supreme Court again
used centrality in its free exercise analysis.
In
Yoder,
respondents were members of the Old Order
65 Amish religion
and the Conservative Mennonite Church.
Wisconsin's
com-
pulsory school attendance law required them to send their
children to school until they reached the age of sixteen,
b u t respondents refused6 6to send their children to school
past the eighth grade.
Respondents were tried and con-
victed of violating the compulsory
attendance law and fined
67
the sum of five dollars each.
At the trial,
respondents
defended on the ground that the attendance law violated
right to the free exercise of religion.
their
They showed at
trial that their children's attendance at high school was
contrary to the Amish religion and way of life.
It is a
fundamental belief of the Old Order Amish reigion that
salvation requires life in a church community
separate
and apart from the world and worldly influence.
68
This con-
cept is "central to their faith."
The Court reiterated the Sherbert
test, that only
those interests of the highest order can overbalance
itimate claims to the free exercise of religion.
leg-
In dis-
cussing the qualities of respondent's claims, the Court
(jft: 7 8
determined that the Amish were being compelled by statute
to perform acts undeniably at odds with fundamental ten69
ents of their religious belief.
If this fundamental be-
lief had been secularly grounded the exemption would not
have been allowed.
The Court said that a Thoreau-like
personal or philosophical choice would have not been enough
to warrant exemption in this setting.
Because personal
philosophical beliefs are squarely within the protection
of the liberties guaranteed by the free speech
clause and
70
the court-created freedom of association,
it seems the
Court does not elevate the compelling state interest requirement in those
71 cases which rely on freedom of speech
and association.
exacting standard
Therefore, it appears that the more
that the centrality principle
requires
shows a difference in application of the free speech and
free exercise tests.
B.
NON-SPEECH RELATED ACTIVITIES
72
In United
States
v. O'Brien,
the defendant and
three companions burned their Selective Service
registration
certificates on the steps of the South Boston Courthouse
in violation of an amendment to the Universal Military
73
Training and Service Act of 1948.
O'Brien was
indicted,
tried, convicted, and sentenced in the United States Dis-
"fifflTP
trict Court for the District of Massachusetts.
74
In the
trial, O'Brien argued that prohibiting the knowing
destruc-
tion or mutilation of certificates was unconstitutional because it was enacted to abridge free speech and because it
75
served n o legitimate legislative purpose.
On appeal has
argument prevailed; the First Circuit Court of Appeals
held the amendment unconstitutional as a law abridging
76
freedom of speech.
The Supreme Court reversed the First
Circuit Court of Appeals, holding that the burning of the
registration certificate did not constitute an act protected
by the free speech clause.
Analysis under the compelling
state interest standard was thereby obviated.
The Court
said
We note at the outset that the 1965 Amendment
plainly does not abridge free speech on its
face. . . . The Amendment on its face deals with
conduct having no connection with speech.
It
prohibits the knowing destruction of certificates
issued by the Selective Service System, and there
is nothing necessarily expressive about such
conduct.
The Amendment does not distinguish between public and private destruction and it does
not punish only destruction engaged in for the
purpose of expressing views.77
The importance of the O'Brien
decision is that the
Court refused to apply the compelling state interest test
associated with the free speech clause because of their
determination that burning the registration
certificate
was not of the variety of conduct labeled "speech."
is apparent from this case that activities
classified
It
which are not
"speech," or not integrally related to speech,
are not protected by the free speech clause.
- W M
m
78
As opposed to the O'Brien
analysis, religious act-
ivities will be protected by the compelling state interest
test of the free exercise clause if found to be burdened
by a government law or regulation.
This shows a difference
in treatment between the two clauses, at least in this
limited area. An example of this proposition is Thomas
v.
79
Review
Board.
In Thomas,
petitioner, a member of the
Jehovah's Witnesses, was denied state unemployment compensation benefits after he terminated his employment because
his religious beliefs forbade participation in the production
of armaments. 8 0 Thomas had been working in a roll foundry
81
for the Blaw-Knox Foundry and Machinery Co.
When the
roll foundry closed Thomas was transferred to a department
82
that fabricated turrets for military tanks.
After dis-
covering that all remaining jobs available with the company
were weapons related,Thomas quit, asserting that he could
not work on weapons without violating the principles of his
religion. 83
Upon leaving the company, Thomas applied for
unemployment compensation benefits under the Indiana Em84
ployment Security Act.
A hearing was held which concluded
that although Thomas' religious beliefs specifically
pre-
cluded him from producing or directly aiding in the manufacture of items used in warfare and that Thomas had
ated his employment because of those religious
termin-
convictions,
Thomas' termination was not based upon good cause arising
-18-
in connection with his work, as required by the Indiana
85
unemployment compensation
statute.
On appeal, Thomas made the claim of free exercise
violation,
which sent the Court into the two part balancing
Og
test.
That free exercise was burdened could be taken
as true from the Review Board's own determinations,
despite
the fact that Thomas had difficulty enunciating precise
scriptural foundations in support of his view, and that
there was another Jehovah's Witness working in the tank
turret operation who had no difficulty with religious conscience based upon the military related work.
The state interests presented were two-fold:
1) to
avoid widespread unemployment and the consequent burden
on the fund resulting if people were permitted to leave
jobs for personal reasons; and 2) to avoid a detailed8 7probing
by employers into job applicants' religious beliefs.
Although the Court thought these to be "by no means unim88
portant considerations,"
the balance was held to fall in
favor of Thomas' free exercise claim.
First, there was no
evidence that an exemption for religious beliefs would
encompass enough people to create a possibility of widespread unemployment and the accompanying drain on the unemployment compensation fund.
Second, there was no evidence
that the exemption would cause employers to make detailed
inquiry into applicants' religious beliefs.
Thomas
shows that religious activities will be pro-
tected by the free exercise clause where there is no speech
related component.
Furthermore, to explain Thomas
on cent-
88
rality grounds would seem to be tenuous.
that comes from the reading of Thomas
The proposition
and O'Brien
together
is that the free exercise clause subjects state laws which
infringe pure activity to the compelling state interest
test,
where free speech does not protect that which is pure activity
(i.e., not related to speech).
CONCLUSION
That the free speech clause protects an assortment
of rights which almost completely subsumes the protections
of the free exercise clause seems to be neither a logical
non sequitur nor a proposition without practical
The free speech clause protects from government
justification.
intrusion
the expression of ideas and beliefs which are generic by
definition.
mar,
To include, as the Supreme Court did in
Wid-
religious ideas and beliefs into the general category
of "speech" seems mandated by the free speech requirement
of content neutrality.
With respect to practical
justifi-
cation, to allow religious speech to be treated as "speech"
obviates the necessity of further complicating the relation-
-20-
rnr*
ship between the free exercise and establishment
clauses.
Such inclusion also alleviates the necessity of judges and
government administrators in making decisions as to what
is religious or non-religious in subject matter.
The practical significance of Widmar
is the wide
range of religious activities which can be protected as
having a speech related component.
In the limited cases
where religious activity has no relation to speech the
free exercise clause is still available for vindication
of the rights of the religious practioner.
The free ex-
ercise clause is therefore not emptied of independent
pur-
pose but instead can work in conjunction with the free speech
clause to guarantee first amendment
liberties.
FOOTNOTES
1.
"Congress shall make no law. . . prohibiting the free
exercise (of religion]."
U.S.CONST, amend. I.
2.
See, e.g., Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640 (1981)(right to proselytize) .
3.
See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972)(right
to forego compulsory school attendance laws); People v.
Woody, 61 Cal.2d 716, 394 P.2d 813, 40 Cal.Rptr. 69
(1964)(right to exemption from law prohibiting possession of peyote); see also, Bob Jones University v. IRS,
103 S.Ct. 2017 (1983).
4.
See Reynolds v. United States, 98 U.S. 145
5.
See the balancing test adopted in Sherbert v. Verner,
374 U.S. 398 (1963).
If, therefore, the decision of the South
Carolina Supreme Court is to withstand
appellant's constitutional challenge, it
must either be because her disqualification
as a beneficiary represents no infringement
by the State of her constitutional rights
of free exercise, or because any incidental
burden on the free exercise of appellant's
religion may be justified by a "compelling
state interest in the regulation of a subject within the State's constitutional
power to regulate. . ." Id. at 403, citing
NAACP v. Button, 371 U.S. 415, 438 (1963) (a
free speech case).
6.
See, e.g., McDaniel v. Paty, 435 U.S. 618 (1978);
see also Reynolds v. United States, 98 U.S. 145
(1878).
7.
The term "religious speech" was used by the Court in
1978 in McDaniel v. Paty, 435 U.S. 616 (1978). At
least four circuit courts have made use of the term
since 1979.
See Brandon v. Board of Education of the
Guilderland Central School District, 635 F.2d 971 (2d
Cir. 1980), cert, denied 102 S.Ct. 970 (1981); O'Hair
v. Andrus, 613 F.2d 924 (D.C.Cir. 1980); Gilfillan v.
City of Philadelphia, 637 F.2d 924 (3d Cir. 1980);
Collins v. Chandler United School District, 644 F.2d
759 (9th Cir.), cert denied 102 S.Ct. 1716 (1981);
Jaffe v. Alexis, 659 F.2d 1018 (9th Cir. 1981).
(1878).
8.
See, e.g., Lovell v. City of Griffin, 303 U.S. 444
(1938); Widmar v. Vincent, 454 U.S. 263 (1981).
9.
See Pfeffer, The Supremacy
L.REV. 1115, 1130 (1973).
of Free Exercise,
61 GEO.
10.
See L.TRIBE, AMERICAN CONSTITUTIONAL LAW 814-11,
at 862 (1978); see also, e.g., Wisconsin v. Yoder,
406 U.S. 205 (1975); People v. Woody, 61 Cal.2d
716, 394 P.2d 813, 40 Cal.Rptr. 69 (1964).
11.
Indeed, it has been argued that the centrality principle is the only possible exception to the general
proposition that analysis under the free speech clause
and the free exercise clause is identical.
Marshall,
Village of Schaumberg
v. Citizens For a Better
Environment and Religious Solicitation:
Freedom of Speech
and Freedom of Religion Converge, LOY. OF L.A.L.REV.
953, 977 (1980). However, this is probably not accurate
in that the free speech clause does not protect nonspeech activity, whereas the free exercise clause does.
See text accompanying n.12, infra.
12.
See United States v. O'Brien, 391 U.S. 367
13.
See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin
v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Board,
450 U.S. 7 (1981).
14.
"Congress shall make no laws respecting an establishment of religion. . . . "
U.S.CONST, amend. I.
15.
L.TRIBE, AMERICAN CONSTITUTIONAL LAW 688-89
16.
See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Widmar v. Vincent, 454 U.S. 263 (1981).
17.
See Thomas v. Review Board, 450 U.S. 705, 721
quoting Sherbert v. Verner, 374 U.S. 398, 409
18.
454 U.S. 263, 102 S.Ct. 269
19.
Id.
20.
Id.,
21.
Id., 102 S.Ct., at 272, n.2.
22.
The regulation provided as follows:
(1981).
102 S.Ct., at 272.
(1968).
(1978).
(1981),
(1963).
4.D134.0107 No university buildings or grounds
(except chapels as herein provided) may be
used for purposes of religious worship or
religious teaching by either students or nonstudent groups. . . . The general prohibition
against use of University buildings and grounds
for religious worship or religious teaching
is a policy required, in the opinion of the
Board of Curators, by the Constitution and
laws of the State and is not open to any other
construction.
Id., 102 S • Ctl • r clt 272, n.3.
23.
Id.,
102 S.Ct., at 272.
24.
Id.,
102 S.Ct., at 273, n.5.
25.
452 U.S. 640
26.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 274
(1981).
27.
Id.,
28.
Id.
29.
Id.,
30.
Id.
31.
397 U.S. 664, 668
32.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 275
(1981).
33.
Such an instance has been held to exist in the prayer
in public school situation.
Dicta in Brandon v. Board
of Education of the Guilderland Central School Dist.,
635 F.2d 971 (2d Cir. 1980), cert, denied-102
S.Ct.
970 (1981) , said that even if the free exercise rights
of the student group desiring to pray during school
hours had been violated by the denial of permission to
pray, the establishment clause would have provided a
compelling state interest to defeat their claim.
The
rationale for applying the establishment clause in
this case was the symbolic inference that could be
drawn by an impressionable student that the state has
placed its imprimatur on a particular religious creed.
It was said that although in a "public forum" the rights
of poltical speech are the same as those of religious
speech, a secondary school is not such a "public for-
(1981) .
102 S.Ct., at 281-82, n.2
(White, J., dissenting).
102 S.Ct., at 274, n.6.
(1970).
-24-
mim
um." Even though students have first amendment rights
to political speech in public schools, such a right
does not exist to engage in religious speech because of
the establishment clause.
"When the explicit Establish
ment Clause proscription against prayer in the public
schools is considered, the protections of political and
religious speech are inapposite."
Id., 635 F.2d, at
980.
34.
Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971).
35.
374 U.S. 398
36.
Id., at 403.
37.
371 U.S. 415, 438
38.
See Marshall, supra
39.
391 U.S. 367
40.
Centrality has been defined
central or essential to the
affected by the prohibition
AMERICAN CONSTITUTIONAL LAW
41.
374 U.S. 398
42.
Id. at 399.
43.
Id. at 401.
44.
Id.
45.
See note 5 and accompanying
46.
Sherbert v. Verner, 374 U.S. 398, 406
47.
61 Cal.2d 716, 394 P.2d 813, 40 Cal.Rptr. 69
48.
Id.,
40 Cal.Rptr., at 70.
49.
Id.,
at 70-1.
50.
Id.,
at 71.
51.
Id.
52.
Id., at 73.
53.
Id.
(1963).
(1963).
note 11, at 977.
(1968).
as "the element of how
religion is the the practice
or requirement."
L.TRIBE,
§14-11, at 862 (1978).
(1963).
text.
001M
-25-
(1963).
(1964).
54.
98 U.S. 145
(1878).
55.
People v. Woddy, 40 Cal.Rptr., at 76.
56.
383 P.2d 851 (5th Cir. 1967), rev'd on other
grounds
395 U.S. 6 (1969). Although neither of these cases is
of the United States Supreme Court, read together,
Leary and Woody show the isolation of a cognizable concept.
57.
Id.,
58.
Id., at 853.
59.
Id.,
60.
Id.
61.
Id., at 860.
62.
Id., at 861, quoting People v. Woody, 61 Cal.2d
40 Cal.Rptr. 69, 394 P.2d 813 (1964).
63.
See, e.g., People v. Crawford, 69 Misc.2d 500, 508,
328 N.Y.S.2d 747, 755 (1972), aff'd 72 Misc.2d 1021,
340 N.Y.S.2d 848 (1973) (LSD and marijuana not central
to the church of Missionaries of the New Truth); People
v. Collins, 273 Cal.App.2d 486, 487, 78 Cal.Rptr. 151,
152 (1969)(marijuana not essential to religion).
64.
406 U.S. 205
65.
Id., at 208.
66.
Id.
67.
Id.,
at 209.
68.
Id.,
at 211.
69.
Id., at 219.
70.
See Wooley v. Maynard, 430 U.S. 705
71.
See Marshall, supra
72.
391 U.S. 367
73.
Id., at 369-70.
74.
Id., at 369.
383 F.2d, at 852.
at 857.
(1972).
(1968).
note 11, at 977.
(1977).
716,
75.
Id. , at 370.
76.
Id. , at 371.
77.
Id. , at 375.
78.
See, e. g.,
j
Stromberg
79.
450 U.S . 707
80.
Icy. , at 710.
81.
Id.
82.
Id.
83.
Id. , at 711.
84.
Id.
85.
Id. , at 711-12.
86.
Id. , at 719.
87.
Id. , at 719-20.
88.
Id. , at 720.
California, 283 U.S. 359
(1981).
m 1-90
(1931).