Religious Fraud and the First Amendment

Francis J. Conklin, Religous Fraud and the First Amendment, 2 Gonz. L. Rev. 35 (1967)


With unquestioned confidence in an earlier age’s reliance upon the self-evident truth of “the law,” the Supreme Court announced in Reynolds v. United States, that although the federal government could not punish religious beliefs, it could regulate religious practices.  Unfortunately, the explication of this clear and distinct idea merely outlines an area for adjudication and does not unravel the complexities of specific situations. At what point does a “belief” become a “practice”?  I may believe that I am God and can cure cancer, etc. Under our Constitution the civil magistrate has no interest in my private thoughts, and governmental action cannot touch this area. Yet, even in Russia and Red China a man is theoretically as free to think what he wants as he is in the middle of Iowa. In other words, the “absolute freedom” to interiorly believe as one chooses may be a relatively meaningless freedom.

The immediate conclusion, then, is that the frequently quoted distinction between “beliefs” and “practices” is rather meaningless.  If a “practice” embraces any and every expression of a belief, the free exercise clause of the First Amendment to the United States Constitution must have been intended to exclude some areas of religious practice from the competence of the civil government.  And even in Reynolds the Court took a qualifying step in that direction, stating that the state can reach actions which are “. . . in violation of social duties or subversive of good order.”  Presumably, all other religious practices are constitutionally protected.

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