alt="A visual representation of religion in the United States." target="_blank" rel="nofollow" href="#fb3_img_img_08daec0d-47c6-5892-935c-cca49fac7f4c.jpg"/>Description
Source: Pew Research Center, “America’s Changing Religious Landscape,” May 12, 2015, www.pewforum.org/2015/05/12/americas-changing-religious-landscape/.
The Court rejected this compelling state interest test, however, in Employment Division, Department of Human Resources v. Smith (1990), when it held that if the infringement on religion is not intentional but is rather the by-product of a general law prohibiting socially harmful conduct, applied equally to all religions, then it is not unconstitutional.24 The Court found that the compelling state interest test, while necessary for cases dealing with matters of race and free speech, was inappropriate for religious freedom issues. Under the Smith ruling, a number of religious practices have been declared illegal by state laws on the grounds that the laws do not unfairly burden any particular religion.
Religious groups consider the Smith ruling a major blow to religious freedom because it places the burden of proof on the individual or church to show that its religious practices should not be punished, rather than on the state to show that the interference with religious practice is absolutely necessary. In response to the Smith decision, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA). This act, supported by a coalition of ninety religious groups, restored the compelling state interest test for state action limiting religious practice and required that when the state did restrict religious practice, it be carried out in the least burdensome way. However, in the 1997 case of City of Boerne v. Flores, the Court held that the RFRA was an unconstitutional exercise of congressional power.25 Congress amended the act in 2003 to apply only to the federal government, and in 2006 the Supreme Court affirmed the amended federal RFRA when it ruled that the act protected a New Mexico church’s use of tea containing an illegal substance for sacramental purposes, reinstating the compelling state interest test.26
Supporters of greater freedom for religious institutions were heartened greatly in 2012, when the Supreme Court issued a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which the New York Times called perhaps “its most significant religious liberty decision in two decades.”27 In Hosanna-Tabor, the Court held that the hiring practices of religious groups could not be regulated by federal employment law (in this case, law that prohibited discrimination against an employee with a disability), because that would essentially give government the right to tell such groups whom they could hire. Still, the sweeping decision has not stopped critics of the Court’s earlier Boerne ruling from arguing that to protect religious freedom, the Constitution should be amended to make RFRA the law of the land.28
Concern over religious freedom among church members grew after the full implementation of the Patient Protection and Affordable Care Act (ACA) in 2014. The Obama administration interpreted the ACA requirements as meaning that employer-based health insurance should provide birth control coverage, but in 2012 the Supreme Court ruled, in Burwell v. Hobby Lobby, that corporations that are not publicly traded (so-called closely held corporations) did not have to provide such coverage if it violated the owners’ religious beliefs. This case not only upheld the right of employers not to provide contraception coverage if it conflicted with the employer’s religious beliefs but also affirmed that right for some kinds of corporations as well as for individuals.
Meanwhile, when the federal law appeared to be in jeopardy, many states passed their own RFRAs to protect religious practices at the state level, and they have been used to protect a variety of controversial practices on religious grounds, including the denial of services and rights to those in the LGBTQ community. Such laws proliferated again in 2015 and 2016 in the wake of the Supreme Court’s ruling that constitutionalized marriage equality. States such as Indiana, Mississippi, and North Carolina suffered serious blowback from companies that considered the intent of such laws to be discriminatory and chose to take their business elsewhere. (We will read more about this in Chapter 5.)
In Your Own Words
Describe how the First Amendment protects both church and state, as well as individuals’ religious freedom.
Freedom of Expression: Checking government by protecting speech and the press
Among the most cherished of American values is the right to free speech. The First Amendment reads that “Congress shall make no law . . . abridging the freedoms of speech, or of the press” and, at least theoretically, most Americans agree.29 When it comes to actually practicing free speech, however, our national record is less impressive. In fact, time and again, Congress has made laws abridging freedom of expression, often with the enthusiastic support of much of the American public. As a nation we have never had a great deal of difficulty restricting speech we don’t like, admire, or respect. The challenge of the First Amendment is to protect the speech we despise.
freedom of expression the right of the people to free speech
Why Is Freedom of Expression Valuable?
It is easier to appreciate what is at stake in the battles over when and what kind of speech should be protected if we think about just why we value free speech so much in the first place. Freedom of speech can help to empower citizens and limit government in four ways:
Free speech is important because citizens are responsible for participating in their government’s decisions and they need information provided by an independent, free press to protect them from government manipulation. Mediated citizenship gives us many more channels through which to access information, but that means many more channels to monitor for truth and reliability. In an age in which the president of the United States feels free to label unflattering or critical news coverage “fake news,” the imperative to maintain a free press is more critical than ever.
Free speech can limit government corruption. By being free to voice criticism of government, to investigate its actions, and to debate its decisions, both citizens and journalists are able to exercise an additional check on government that supplements our valued principle of checks and balances.
Denying free speech sets a dangerous precedent. Censorship in a democracy usually allows the voice of the majority to prevail. One of the reasons to support minority rights as well as majority rule, however, is that we never know when we may fall into the minority on an issue.
Free speech ensures the vigorous protection of the truth. According to the nineteenth-century English philosopher John Stuart Mill, by allowing the expression of all speech, we discover truths we had previously believed to be false and we develop strong defenses against known falsehoods like racist and sexist ideas.
free press a press that is able to report fully on government’s activities
If free speech is so valuable, why is it so controversial? Like freedom of religion, free speech requires tolerance of ideas and beliefs other than our own, even ideas and beliefs that we find personally repugnant. Those who are convinced that their views are absolutely and eternally true often see no real reason to practice toleration. Many people believe that, in a democracy, the
