Concerning Their Hearts and Minds: State of Oregon v. Beagley, Faith-Healing, and a Suggestion for Meaningful Free Exercise Exemptions

Colin M. Murphy, Concerning Their Hearts and Minds: State of Oregon v. Beagley, Faith-Healing, and a Suggestion for Meaningful Free Exercise Exemptions, 46 Gonz. L. Rev. 147 (2011).

[PDF]    [Westlaw]    [LexisNexis] %CODE1%
Who in the rainbow can draw the line where the violet tint ends and the orange tint begins? Distinctly we see the difference of the colors, but where exactly does the one first blendingly enter into the other?

Herman Melville: Billy Budd, Sailor

I. Introduction

Religious liberty is most easily cast aside when the one casting it away does not take religion too seriously. Perhaps like democracy itself, to love religion well one should love it moderately.[1] But when one truly accepts the tenets of a particular church or religious persuasion, such devotion entails a latent choice that is always lurking in the wings—a choice that moderately religious or nonreligious people neither conceive of or will ever have to make: Do I follow my religion to the peril of my liberty, or do I follow the law to the peril of my eternal soul? The choice may cause many to simply roll their eyes. After all, most modern people would see anyone who would find themselves seriously faced with such a choice to be fanatical by nature. But therein is the problem. Often a failure to respect or take seriously the religious beliefs of others poisons our ability to see the very real conflict some good and conscientious people are forced to make, almost daily.

Perhaps there is no more disturbing illustration of the conflict between religious liberty and the laws of the State than a situation that involves the death of a child, especially when the death is clearly preventable. When a parent teaches a child that instead of seeking traditional medical care one should respond to an illness with faith alone, most people immediately react negatively, as they perhaps should. It just seems wrong to teach a child this sort of thing. But such “wrongness” is based on the conviction we have in ourselves that such a teaching is simply not true; that we must judge the religious teaching. Admittedly, we want to intervene and correct the harmful teaching. We want to tell the child that there is nothing wrong with going to a doctor. We want to call it abuse to teach a child such a thing. But we cannot do so without also branding the teaching itself as false. %CODE2%
Of course, the most heart-wrenching situation occurs when a child, acting on the teachings of his parents and his religion, decides to forgo traditional medical care and essentially chooses to die in accordance with his religious beliefs, hoping all along that his faith is strong enough for God to heal him. In such a case, we want to hold the parents accountable for teaching this cruel concept to the child. How terrible that a child must be subject to death, simply because he was born into a certain religion. Indeed, in such a situation, how does one justify the death of a child?

This paper seeks to strike a balance between the concerns of government and the free exercise concerns of religious liberty in faith-healing cases, using the recent trial and conviction of Jeffrey and Marci Beagley in Oregon City, Oregon. I argue that the Beagleys’ conviction for criminally negligent homicide should be set aside as violating the First Amendment. To come to that conclusion, I suggest a new test for deciding free exercise cases: the “utterly overwhelming governmental interest test.” Under this test, the government would be required to grant free exercise exemptions for religiously-motivated conduct unless the government is able to show four stringent factors. The test is very deferential to religious liberty and much stricter than the oft argued for “compelling state interest test.”

I argue that the Supreme Court’s current jurisprudence concerning the Free Exercise Clause is highly destructive to religious liberty, but the solution is not to return to the previous jurisprudence. Instead, I suggest a new standard that will adequately protect religious liberty while safeguarding the right to life in faith-healing cases. Ultimately, I acknowledge that any sort of “test” will always be susceptible to borderline situations, but that it is more important to protect religious liberty than it is to jeopardize it by having the brutally clear line the Supreme Court currently uses.

In Part I, the facts of the Beagley case are presented along with the free exercise issues the case raises. In Part II, I describe the background of Oregon’s laws on this subject. In Part III, I outline and respond to the various arguments against granting free exercise exemptions to faith-healers. In Part IV, I take up a comprehensive examination of the current free exercise doctrine and demonstrate its failure to adequately protect the free exercise of religion. In Part V, I discuss why a return to the older standard of strict scrutiny is not enough to protect free exercise. In Part VI, I outline the elements of the “utterly overwhelming governmental interest test.” Finally, in Part VII, I apply this new test to the Beagley case as well as to a similar case, showing how the test protects free exercise while safeguarding the rights of children.

II. A Tragic Case

On February 2, 2010, Jeffrey and Marci Beagley were each convicted of criminally negligent homicide in Clackamas County, Oregon because they allowed their son Neil to die instead of taking him to a doctor.[2] Neil died on June 17, 2008 due to a blockage in his urinary tract.[3] While Neil’s parents apparently gave him the option of going to a doctor, the sixteen year-old elected to follow his religious teachings and not seek traditional medical attention.[4] His parents honored that choice.[5] Neil was a member of the infamous Followers of Christ Church in Oregon City, Oregon.[6] His parents are also members of the Church, and they raised Neil to believe in the tenets of the Church.[7]

One belief of the Church is that people should generally not seek traditional medical care when facing illness.[8] The Church instead relies on “faith-healing,” including the “laying on of hands,” as well as faith and prayer.[9] The State contended that because Neil’s father had said that going to a doctor showed a “lack of faith,” Neil’s decision to forgo traditional medical treatment was largely influenced by his parent’s teachings.[10] Following conviction, both Jeffrey and Marci Beagley were each sentenced to sixteen months in prison on March 8, 2010.[11]

During sentencing, Judge Steven L. Maurer stated, “‘[t]he fact is, too many children have died. Unnecessarily, needlessly, they died . . . [i]t has to stop. This has to stop.’”[12] Judge Maurer apparently aimed some of his comments directly at the Followers of Christ Church when he noted that they “‘are most likely to place their children at risk.’”[13] Understandably, one of the defense attorneys stated that the case had largely become a “referendum” on the Followers of Christ Church.[14]

For example, Clackamas County District Attorney, John Foote, noted afterwards that he planned “to reach out to church members once the emotional impact of the Beagley case subsides.”[15] However, he made it clear what he truly means by reaching out when he stated: “‘We can’t seem to get through to the members of the church that they can’t refuse to give their kids medical care, particularly when their kids’ lives are at risk.’”[16] Ironically, Mr. Foote does not seem to realize that in order to “get through to the members of the church,” the members will basically have to abandon a strong tenet of their religion, perhaps to their eternal damnation. Even more ironic is his suggestion that “[t]his all lies in the hearts and souls of the members of the church.”[17] Such a phrase is reminiscent of a similar and notorious phrase used over forty-five years ago as the chief strategy to convert a small nation in Southeast Asia to our mindset of civilization: “So we must be ready to fight in Viet-Nam, but the ultimate victory will depend upon the hearts and the minds of the people who actually live out there.”[18]

It is true that in this sort of case, the State has a strong interest in the welfare of the child. It is also true that in order to achieve what the State interprets as the welfare of the child, it must necessarily dismiss and override the religious claims of those who rely on faith-healing alone. Furthermore, situations like this lie at the heart of the conflict between the free exercise[19] of religion and the State’s justifiable interest in protecting its citizenry. Jesus of Nazareth once taught that no one is able to “serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other.”[20] The same is true in politics. The State cannot concede every claim a religion makes to be excused from the law, otherwise “the professed doctrines of religious belief [would be] superior to the law of the land . . . . Government could exist only in name under such circumstances.”[21] Naturally, it follows that if the laws of the government are superior to religious practices the free exercise of religion “could exist only in name under such circumstances” as well.[22] It seems to be a zero-sum game. Either religious freedom must yield to the State, or the State must yield to religious freedom.[23] The problem is strangely congruent to the one identified by Alexander Hamilton that eventually led to the U.S. Civil War: “the political monster of an imperium in imperio[; of an empire within an empire].”[24]

While the defense attorneys in the Beagley case sought to dismiss the religious concerns, contending that the parents saw no immediate emergency in Neil’s situation, the way the case was adjudicated clearly shows the law’s condemnation of the Beagleys’s faith.[25] Regardless of the arguments of the Beagleys’s lawyer—the State, the judge, and the community all saw this case as being about religious beliefs versus the law.[26]

III. Background of Oregon Faith-Healing Law

Unfortunately, this is not a singular or unique case. According to one estimate, between 1955 and 1998, seventy-eight children apparently have died in connection to the faith-healing beliefs of the Followers of Christ Church.[27] Recently, in July of 2009, Carl and Raylene Worthington (related to the Beagleys) were acquitted of charges of manslaughter by an Oregon jury.[28] Nevertheless, Carl Worthington was found guilty of criminal mistreatment in connection with the death of their fifteen month-old daughter, Ava, who died from untreated pneumonia.[29] Both parents are members of the Followers of Christ Church.[30] Thus, this issue is certainly not new to Oregon, and it is unlikely to abate anytime soon.

As of 2004, thirty-nine states gave religious exemptions to parents for certain misconduct where faith-healing was used instead of traditional medical treatment.[31] However, in 1999, Oregon modified its law, repealing many previous religious exemptions for faith-healing, essentially forcing parents to face prosecution for certain crimes if they failed to provide traditional medical treatment to their children.[32] The new changes eliminated the faith-healing affirmative defenses to manslaughter, criminal non-support, and criminal mistreatment.[33] But, the Beagleys were not charged for any of those crimes. Instead, they were charged with criminally negligent homicide, under ORS 163.145, which never had an affirmative defense for faith-healing.

To illustrate, in 1998, Loyd Hays sought to overturn his conviction for criminally negligent homicide in a faith-healing case on the grounds that the law was unconstitutionally vague and that the Religious Freedom Restoration Act prohibited his conviction.[34] The Oregon Court of Appeals rejected his arguments noting that “[t]reatment by prayer or other spiritual means continues not to be a defense to . . . criminally negligent homicide.”[35] Thus, while the 1999 changes to Oregon’s laws are significant in the tenor of this whole debate, such changes were not legally significant in the Beagley case. The State could have charged the Beagleys under the criminally negligent homicide statute with or without the 1999 changes.

Even though such changes were not specifically significant in this particular case, they do inform the overall understanding of the faith-healing debate as it is occurring in Oregon. For instance, when the U.S. Supreme Court decided that the First Amendment did not require states to give religious exemptions to laws that were neutral and generally applicable, it later cautioned that strict scrutiny would still apply to any laws that targeted religious activity.[36] Because the 1999 Oregon repeals of faith-healing as a defense to the crimes of manslaughter, criminal non-support, and criminal mistreatment were motivated largely out of concern for the practices of the Followers of Christ Church,[37] such repeals should have to satisfy strict scrutiny to survive constitutional analysis.

IV. The Faith Healing Debate

The debate over faith-healing is not new; it has been around for quite a long time. Underscoring the debate is perhaps the most essential element in the equation—the U.S. Supreme Court’s current position on religious liberty. In Employment Division v. Smith, the Court determined that the Free Exercise Clause of the First Amendment does not require exemptions for religious conduct to neutral laws of “general applicability.”[38] Thus, so long as a law is neutral and applies generally to all, there is no constitutional need to grant an exemption to religious practices from the law.[39] The Free Exercise Clause is not offended.[40] Naturally, states may choose to grant exemptions on the basis of religious practices, but the Constitution does not currently require them to. Consequently, many of the post-Smith arguments surrounding faith-healing center on legislative grants of exemptions for faith-healing. This article will return to the issue of exemptions under the First Amendment in Part IV.

Current scholar, Marci A. Hamilton, law professor at the Benjamin N. Cardozo School of Law at Yeshiva University, is a leading voice against religious exemptions for faith-healing.[41] Hamilton forcefully argues that exemptions for “medical neglect” (what she refers to as a reliance on faith-healing alone) are the product of “overzealous state legislatures that have confused liberty with lawlessness and sacrificed children on the altar of religious anarchy.”[42] Understandably, Hamilton focuses on the effects of faith-healing exemptions on children, arguing that such a policy “devalues the lives of children who die at the hands of their religious parents.”[43] Thankfully, Hamilton concedes that “[r]idding society of religion is no answer.”[44] However, she specifically states that religious practices must be subject “to the rule of law—unless they can prove that exempting them will cause no harm to others.”[45]

For Professor Hamilton, the solution is in what she refers to as “the no-harm principle.”[46] Quoting Holmes, that “the life of the law has not been logic: it has been experience,”[47] Hamilton claims that “the public good requires the deterrence and punishment of harmful actions, regardless of the identity of the actor.”[48] This is the “no-harm principle.”[49] Under this principle, “parents do not have an unfettered right to act in ways that harm their children, even if they are acting on religious beliefs.”[50] Therefore, in terms of faith-healing, while parents have a free exercise right to practice their religion, they may not “act in ways that harm others without consequence.”[51]

On the surface, Hamilton makes a compelling and rational argument. No right-minded person desires to harm children. The no-harm principle certainly has value in the situation where the right of the parent to their religious practices conflicts with the right of the child to live—both constitutionally protected values.[52] Thus the no-harm principle is correct when applied to children too young to choose for themselves whether to follow their religion or to go to a doctor. But application of the no-harm principle to all situations involving children and faith-healing has two fatal flaws: First, Professor Hamilton fails to recognize that proponents of faith-healing believe they are actually helping their children, not hurting them. Second, her no-harm principle is short-sighted and one dimensional in that it only recognizes “harm” in a limited, physical sense.

When parents forgo traditional medical treatment for their child and rely on faith-healing alone, they are actually seeking to help the child, not cause harm. For example, the Faith Assembly religion not only teaches that “healing is experienced through faith,” but also that seeking traditional medical treatment is “satanic.”[53] To this religion, demons inhabit medication and live inside hospitals.[54] Seeking such treatment “is an act of unbelief” that leads to being cursed.[55] Thus, traditional medical care actually harms children from this religion’s viewpoint.[56]

It is appropriate to pause here and examine one’s immediate reaction to this concept. Most people might find it ridiculous and irrational to consider medical treatment as satanic. Furthermore, the idea that actual demons dwell in the halls of hospitals is almost laughable to most people. The more unreasonable a religious belief seems to the American public, the more political will exists to outlaw its corresponding faith-healing practice.[57] But reactions of this kind involve very delicate constitutional issues, and blur the line between assessing the lawfulness of parenting decisions and judging the truth of the religion’s beliefs.[58]

To be sure, many mainline American religious beliefs, such as the notion of God dying on a cross to free humanity from sin, might seem laughable to those who believe neither in the “Incarnation”[59] nor in the “Passion of Christ.”[60] Indeed, many question why an all-powerful God would have to kill himself to forgive, unless he is not really all-powerful.[61] The notion seems nonsensical to those either unschooled in Christian thought, or those who are well-versed but simply do not believe. For example, German philosopher, Friedrich Nietzsche is notorious for ridiculing Christianity, noting that the idea of “‘god on the cross’” is a paradoxical absurdity.[62] Niccolo Machiavelli similarly criticized Christianity as a religion of weakness, making men into “effeminate” beings who “think more of enduring their beatings than of avenging them.”[63]

Spiritual understanding of the sacred and the sacrilegious often motivate human action in different ways. Take, for example, the various religious beliefs and practices associated with wine. To some religions alcohol is absolutely forbidden and evil.[64] To others, wine serves as the Holy Eucharist itself.[65] The point is that what is absurd to one is often sacred to another, and vice versa. Moreover, categorically condemning a religious practice like faith-healing necessarily passes negative judgment on the religion that teaches it.

Although Hamilton’s no-harm principle seems to distinguish ideas such as “god on the cross” or the nature of the Eucharist—the real issue is the harmful effects of certain religious practices, especially faith-healing.[66] Nevertheless, whether it is a belief or an action that is at issue, the parents of children who are treated with faith-healing alone often act in accordance with what they see as the best interest of the child.[67] This leads to the second of Professor’s Hamilton’s flaws—the error of defining harm one dimensionally, or only in a limited, physical sense.

A basic overview of the no-harm principle reveals that Hamilton understands “harm” to mean only physical harm.[68] Indeed, the idea of spiritual harm appears unknown to Hamilton’s argument. Thus, the no-harm principle fails to grasp the spiritual harm that may occur to people who take religion very seriously. As used here, “spiritual harm” does not denote governmental limitations to the free exercise of religious beliefs. Instead, spiritual harm evokes eternal suffering of the soul—even possible eternal damnation. Avoiding this type of harm is far more important to highly religious people than mere physical harm.[69] Two examples help illustrate the principle.

The First example is made relevant by the fact that this country is full of Christians.[70] It is commonly known that Christianity claims reliance on, and belief in, the Bible, or the “Scriptures.”[71] However, a famous story from the Bible shows a major problem in the faith of Christianity. In the twenty second chapter of the Book of Genesis, God gives Abraham a most alarming commandment: “Take now thy son, thine only son Isaac, whom thou lovest, and get thee into the land of Moriah; and offer him there for a burnt offering upon one of the mountains which I will tell thee of.”[72]

Abraham diligently obeyed, and if it were not for the intervention of an angel, he would have surely killed his son with a knife and offered him up as a sacrifice to Jehovah.[73] Obviously, any parents today seeking to kill their child and offer him up as a sacrifice on their backyard barbeque would be rightfully subject to prosecution.[74] The religious freedom I here advocate does not go so far, as will be discussed later. However, the point is that Abraham clearly considered it his duty to obey the command of God.[75] We can only speculate what the consequences would have been if he would have responded as Bill Cosby’s Noah did when commanded to build the Ark: “Right! . . . How come you want me to do all these weird things?”[76] Possibly, Abraham’s eternal well-being, as well as Isaac’s depended upon their obedience. The point is not that child sacrifice needs to be exempted from the law. The point is that faith-healing parents see their actions to be in the best interests of their children because God has commanded them to seek healing only through faith. To these parents, the situation is as it was for Job: “Though he slay me, yet will I trust in him.”[77]

The second example is more similar to the Beagley case. Victor Hugo’s Les Miserables contains a pointed exchange between a French revolutionary and a Catholic priest where the revolutionary tells the story of a Protestant woman, persecuted by the French Catholic State, who had to choose between her child’s health or allegiance to her religion:

Monsieur, Monsieur, I lament Marie Antoinette, archduchess and queen, but I lament also that poor Huguenot woman who, in 1685, under Louis le Grand, monsieur, while nursing her child, was stripped to the waist and tied to a post, while her child was held before her; her breast swelled with milk, and her heart with anguish; the little one, weak and famished, seeing the breast, cried with agony; and the executioner said to the woman, to the nursing mother, ‘Recant!’ giving her the choice between the death of her child or the death of her conscience.[78]

While the situation with faith-healing may not seem as immediately dramatic as Hugo’s illustration, the essential choice remains the same. The Beagleys could “recant” their faith and do as Professor Hamilton would have them do, or they could choose to obey what to them was the higher law and risk the consequences of their child’s death and legal punishment. However, this soul-wrenching experience seems lost on Professor Hamilton. Her “no-harm principle” relies only on the one-dimensional aspect of physical harm while ignoring the possibility of the eternal harm that may result if the religious tenets are disobeyed. Because Professor Hamilton ignores religious and spiritual harm, she fails to take account of what may in reality be a much greater harm than the one she seeks to eradicate. Unless Professor Hamilton can reliably demonstrate that a certain religiously-motivated practice is a product of a patently false belief system, she cannot escape the possibility that her “no-harm principle” actually may be employed to enact greater and everlasting harm.

Professor Richard A. Hughes takes a less direct approach to faith-healing. He argues, “[t]he tremendous suffering that children of faith healing parents endure as they end their lives should be enough evidence that religious exemption clauses must be removed from all forms of law.”[79] However, Hughes sees the solution not in retributive or utilitarian principles of criminal law, but rather in restorative justice.[80] Hughes correctly argues that punitive-based punishment will not be effective against those who treat their children through faith-healing alone because, “[t]hey believe that their practices are required by divine law.”[81] Hughes notes that “the benefits [these parents] seek for themselves and their children and their fear of violating God’s law far outweigh any temporal punishment they might anticipate for themselves or their children from complying with the law.”[82] The solution must reside in changing the perspective of the parents.[83] Because more punitive styles of punishment will be ineffective, Hughes suggests a three-point system of response based upon restorative justice.[84]

First, Hughes argues that “faith healing parents should be forced to confront their children in the context of physical reality without fatalistic, projective, or dogmatic conceptions of death and illness.”[85] This way, parents will gain an actual understanding of what really has occurred as they recognize the wrongfulness of their acts.[86] Second, the parents must take full responsibility for the death of the child.[87] Finally, “parents need to open channels of communication with health care facilities” to realize that such facilities are not bad.[88] Hughes illustrates the resulting epiphany by reference to a case where the judge noted that the parents “had ‘awakened from a terrible nightmare and were determined never to let that happen again.’”[89] To Hughes, these steps can help parents overcome odious medical neglect practices, and thereby restore themselves to the community.[90]

Considering that Hughes is a professor of religion,[91] his suggestion of deprogramming parents’ religious beliefs is curious indeed. Most individuals who are firm in their faith probably see official government attempts to convert them away from their faith as both very threatening and offensive. It tells the religious believer that government does not take their belief as a serious one, or that it is the result of an almost cultish, belief system, not worthy of the name religion.[92]

This is reminiscent of the film Conan the Barbarian where Conan and his companions must rescue the daughter of King Osric from the cannibalistic lairs of the evil snake cult, “Set”—effectively saving the princess from the awful influence of Thulsa Doom.[93] Surely, Professor Hughes cannot realistically believe that parents will be able to see past the “fatalistic, projective, [and] dogmatic conceptions of death and illness” that plague their minds due to their dubious religious beliefs.[94] One might as well posit that the solution to the Arab-Israeli conflict resides in convincing the Jews to abandon Zionism and realize that Jerusalem is not their “eternal capital.”[95] After such transformation, the Israelis would then surely retreat back to their pre-1967 boundaries and obey all those United Nations resolutions they consistently ignore.[96]

Hughes’s suggestion of re-educating faith-based parents is simply unrealistic and fails to take their religious beliefs seriously. Unfortunately, Clackamas County District Attorney, John Foote, does not realize this point either.[97] His hopes to reach out to the Followers of Christ, backed by the threat of criminal prosecution if they do not recant, will likely fall on deaf and offended ears.[98]

A third, more aggressive suggestion is posited by Paula A. Monopoli, who argues that all exemptions for faith-healing should be repealed on a national level through the use of the judiciary, legislatures, and regulatory powers.[99] Monopoli makes the bold argument that the U.S. Supreme Court should “strike down [state] exemptions on public policy grounds.”[100] To bolster her claim, she quotes Prince v. Massachusetts that “[t]he right to practice religion freely does not include liberty to expose . . . the child . . . to ill health or death.”[101] Monopoli also argues that exemptions for faith-healing violate the Establishment Clause of the First Amendment “because they necessarily engage the courts in an evaluation of the . . . basic tenets of religious sects.”[102]

Monopoli is correct that the Prince Court relied upon public policy grounds in deciding that case, but she distorts the principle grossly. Prince states:

But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.[103]

In making its pronouncement, the Court stated that the family may be regulated in the public interest,[104] it does not follow that it must be regulated pursuant to constitutional authority. Prince upheld a Massachusetts statute on public policy grounds, but it did not strike down a Massachusetts exemption on public policy grounds.[105] In Part VII, I show how the test I offer actually is supported by Prince. However, Monopoli’s argument takes Prince to an entirely different level. Her argument is that the Supreme Court should “strike down” laws on public policy grounds.[106] Perhaps there is no greater example of pure judicial activism than for the Court to abandon the Constitution as its standard and to begin striking down laws on public policy grounds, as if they were unconscionable contracts.[107] While such a Court could eradicate the need for legislatures all together, it would also be the judicial embodiment of Plato’s philosopher kings.[108]

Equally startling is Monopoli’s assertion that the allowance of faith-healing exemptions violates the Establishment Clause.[109] Monopoli takes no notice that the Court has clearly stated that “[w]e are a religious people whose institutions presuppose a Supreme Being.”[110] In being neutral on religion, the Establishment Clause does not require “government to be hostile to religion.”[111] Surely, if the Establishment Clause allows government to authorize release time for students,[112] allow for reimbursement to parents of children attending parochial schools for busing costs,[113] allow parents to use government-issued vouchers to attend private religious schools,[114] and even allow Texas to keep a stone monument of the Ten Commandments on its capital grounds,[115] a state may constitutionally grant religious exemptions to protect religious liberty without establishing a religion. As Chief Justice Rehnquist has noted, “there is room for play in the joints” between the Establishment Clause and the Free Exercise Clause.[116]

Finally, Professor David E. Steinberg offers one of the few views that does not seek to vilify faith-healing across the board.[117] Steinberg argues that many “attacks on spiritual healing often are overbroad and insensitive to legitimate free exercise interests and parental rights.”[118] Instead, Steinberg suggests “that a State should intervene only where a parent’s refusal to seek conventional medical treatment potentially may cause a child to suffer serious physical harm or illness.”[119] Also, “the State should be required to show that conventional medical treatment offers a fair probability of substantially improving the child’s health.”[120]

While Professor Steinberg’s argument distinguishes itself from the previous authors noted above, in the end it is not much different. Steinberg carves out exemptions that frankly no one would worry about too much.[121] For example, Professor Hamilton probably does not lose sleep over the Christian Scientist who does not take her seven-year old daughter to the doctor when she has a bout of stomach flu because such is against their religion. It probably gets under her skin, but it likely is not too big of a deal. Yes, a doctor could administer a medication that would stop her vomiting a few hours earlier than the normal course of “getting over it,” but there is probably not much harm to the child beyond the inconvenience of the moment.

It is the situations where children die that concern the critics of faith-healing (or where a child suffers permanent injury).[122] In these situations, Steinberg’s argument defaults into Hamilton’s “no-harm principle.”[123] For it is precisely the situations where a child risks significant physical injury or death that an exemption is needed, not the situations for which Steinberg allows. Without an exemption in these situations, the right to free exercise has no teeth. It is, in effect, a hollow right.

As the forgoing sample of scholars’ arguments makes clear, the vast majority of scholarship (along with the view of many everyday people) appears to be against the idea of granting exemptions to parents who rely on faith-healing alone. This may largely be because the dilemma of having to choose between the health of a child and one’s religious conscience is a matter that will likely never come before most people. Thus people simply cannot internalize the reality of the choice. One cannot value the significance of the situation when one does not take the time to consider it from the standpoint of these believers. Unfortunately, the more important point is also lost. If we fail to protect the religious views of those with whom we emphatically disagree, we put our own most sacred views in jeopardy. This is why exemptions are so important, even constitutional exemptions.

V. The First Amendment and Smith

No discussion on the validity of faith-healing exemptions can escape the obvious shadow of the First Amendment to the United States Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[124] The First Amendment applies to the States as well as the Federal Government via the Due Process Clause of the Fourteenth Amendment.[125] Thus when the amendment states that “Congress shall make no law,” it today means that government “shall make no law.”

The text itself effectively declares an exemption for religious conduct because it states that legislatures cannot enact any law that prohibits free exercise.[126] A legislature can enact any law it wants. Thus, the effect of the First Amendment only operates seriously in the judicial review of such laws. If the First Amendment required the courts to declare null and void any law that prohibited the free exercise of religion, several laws would be null and void on their face, leading to anarchy; because, any person could simply declare such to be in conflict with their religious beliefs.

The only way such a declaration can work in reality is to require exemptions for religiously-motivated conduct where the law interferes with that conduct. Otherwise, the First Amendment is reduced to a prohibition on targeting religious conduct rather than an affirmative declaration that the free exercise of religion is to be exempt from congressional regulation.[127] However, the First Amendment does not state that “Congress shall make no law” that targets religious conduct as such.[128] Rather, it seeks to invalidate the effect of laws that prohibit the free exercise of religion.[129] Nothing in the text declares intentional discrimination as a necessary condition.[130] Therefore, the First Amendment compels religious exemptions for faith-healing and for any other religious practice that does not interfere with the rights of others and does not clearly cause serious social harm.

A. The Smith Decision

Before Employment Division v. Smith, the Court had relied on the notion that religious exemptions were required by the First Amendment when a law burdened religious practices, unless the State could show a compelling governmental interest that was narrowly tailored to achieve that interest.[131] However, in Smith, the Court changed directions drastically (or returned to an earlier jurisprudence, according to the Court’s rationale), holding that if the law at issue was neutral, and generally applicable, no exemption was mandated by the Free Exercise Clause.[132] Rather than overrule Sherbert v. Verner, the Court distinguished it saying that its holding was restricted to unemployment compensation situations.[133]

In Smith, the Court stated that the Free Exercise Clause means, “first and foremost, the right to believe and profess whatever religious doctrine one desires.”[134] “Thus, the First Amendment obviously excludes all ‘governmental regulation of beliefs as such.’”[135] The Court stated “that a State would be ‘prohibiting the free exercise [of religion]’ if it sought to ban such acts or abstentions only when they are engaged in for religious reasons.”[136] The Court then stated its conclusion in a firm tone:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-595 (1940): “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).” We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1878), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices . . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.[137]

This statement is troubling for a number of reasons. First and foremost, Justice Scalia (the author of Smith) is commonly known as a champion of “textualism.”[138] Yet the Smith decision is anti-textualist. Justice Scalia emphatically disclaims the label “strict constructionist” for himself.[139] The difference to Justice Scalia is that a textualist construes text neither strictly nor leniently.[140] Rather, he construes it “reasonably, to contain all that it fairly means.”[141] He then gives an example: A drug trafficking case came before the Court where the applicable statute allowed for increased jail time if “‘during and in relation to’” the drug crime the defendant “‘uses . . . a firearm.’”[142] The defendant in the case tried to buy drugs with an unloaded gun.[143] The issue before the Court was whether the defendant had fallen within the statute so as to allow the increased jail term to stand.[144]

While the Court upheld the sentence, Justice Scalia dissented noting that the reasonable interpretation of “‘uses a gun’” means using it “for what guns are normally used for, that is, as a weapon.”[145] He used a hypothetical case involving a cane, stating that when someone asks, “‘Do you use a cane?’ you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.”[146] Justice Scalia then defends textualism against attacks that it is “formalistic.” He states, “The answer to that is, of course it’s formalistic! The rule of law is about form . . . . Long live formalism. It is what makes a government a government of laws and not of men.”[147]

Oddly, this champion of “formalism” appears to convert to “functionalism” for purposes of the Smith decision, making us a government of men and not of laws.[148] As Justice O’Connor points out: “The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices.”[149] Justice Scalia has no response.[150] While it is true that the text of the First Amendment can be read to apply only to situations where government has intentionally sought to ban religious practices as such,[151] such a reading necessarily requires an inferential limitation that is absent from the text. The most reasonable reading is that the amendment disallows the effect of all laws that infringe upon the free exercise of religion. The former reading reduces the First Amendment to a prohibition of singling out religion for attack; the latter reading takes the text at its word and protects the free exercise of religion against all governmental interference.

As Justice O’Connor perfectly notes: “A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion.”[152] Justice O’Connor further points out the unreasonableness in reading the clause Justice Scalia’s way by pointing out that his interpretation “‘relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides.’”[153] Consequently, Justice Scalia cannot be faithful to his textual obsession and hold the interpretation he gives in Smith at the same time.

Adding to the unreasonableness of Justice Scalia’s reading of the Free Exercise Clause is the fact that his reading essentially destroys the essential protection the clause stands for, rendering it nearly a dead letter.[154] Again, Justice O’Connor points out the obvious: “If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.”[155] Justice Scalia’s interpretation literally destroys the essence of the clause, gutting its value to those who most desperately need its protection.

B. Smith’s Reliance on Reynolds and Gobitis

Another troubling aspect of Justice Scalia’s interpretation is his reliance upon Reynolds and Gobitis.[156] Reynolds denoted the difference between belief and action, noting that Congress could not legislate concerning the former, but was free to do so concerning the latter “to reach actions which were in violation of social duties or subversive of good order.”[157] However, Justice Scalia apparently did not dig as deep into Reynolds as he perhaps should have. While Reynolds upheld the applicability of the federal law against plural marriage in U.S. territories, Justice Scalia failed to examine just what that 1862 law said.[158]

The Church of Jesus Christ of Latter-day Saints (hereinafter “LDS Church”) was not a well-regarded organization in the eastern United States during the nineteenth century.[159] Reports of Mormons practicing polygamy in the Utah Territory caused great alarm.[160] Polygamy was seen as antithetical to the traditional Christian understanding of the Bible and “carried with it sinister suggestions of sexual licentiousness. Worse than slavery, it formally challenged the accepted sexual code of the rest of the country.”[161]

In response, the Republican Platform of 1856 declared the intention to use the federal power “to prohibit in the Territories those twin relics of barbarianism, polygamy and slavery.”[162] The Democrats also got on board with one southern politician writing to President Buchanan: “‘I believe that we can supersede the Negro-Mania with the almost universal excitements of an Anti-Mormon crusade.’”[163] This crusade to fix the social problem Mormonism presented led to the statute at issue in Reynolds.[164] On July 1, 1862, Congress (obviously devoid of the confederate states) passed “An Act to punish and prevent the Practice of Polygamy in the Territories of the United States and other Places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah.”[165]

This law not only criminalized plural marriage but took special aims directly at the LDS Church and its practices.[166] In other words, it did precisely what Scalia’s Free Exercise Clause prohibits – it intentionally targeted a religion as such.[167] In this Law, Congress nullified the incorporation of the LDS Church and all acts of the Utah Assembly that supported plural marriage.[168] It then stated that the right “‘to worship God according to the dictates of conscience’” limited the act, but that such did not include “polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.”[169]

The point is that this law not only forbade plural marriage, but it unilaterally declared the doctrine of the LDS Church to be a sham, a doctrine “disguised by . . . ecclesiastical solemnities . . . or other contrivances.”[170] This was no “neutral law of general applicability.”[171] This was a law that openly insulted Mormonism and specifically attempted to eradicate the offensiveness of certain parts of Mormon theology and practice.[172] However, Justice Scalia saw fit to cite Reynolds and this example as a foundation for his undercutting of the Free Exercise Clause in Smith.[173] If Smith relies on Reynolds for its validity, then where is that validity? Reynolds allows what Smith claims not to.[174] There can be no true doubt —Reynolds was not about laws of general applicability.[175] Reynolds is an embarrassing example of how supposedly neutral laws of general applicability can actually be aimed directly at religious societies we find less palatable and still pass constitutional muster. Reynolds thus illustrates the need for exemptions.

Oddly enough, Reynolds poses a situation that it distinguished from its holding.[176] In Regina v. Wagstaffe, a British couple was found not guilty of manslaughter when they did not bring in traditional medical treatment for their child based on religious grounds.[177] The Court in Reynolds thus noted the difference between the situations where a religious exemption was requested for a “positive” act (such as plural marriage), as opposed to where parents were effectively given an exemption for faith-healing.[178] However, the court in Wagstaffe did not grant an express religious exemption.[179] Instead, the court simply allowed the jury to return a verdict of not guilty after considering the religious motivations of the parents.[180] Nevertheless, Reynolds is important to note because the Supreme Court took pains to explain that there was a difference between a request for a free exercise exemption for an act of commission (such as plural marriage) and an act of omission (like faith-healing).[181]

Next, Justice Scalia’s quoting of Justice Frankfurter in Gobitis is even more perplexing than his reliance upon Reynolds.[182] Gobitis was emphatically overruled just three years after it was decided.[183] Such a reference is therefore about as constitutionally convincing as quoting Plessy v. Ferguson[184] for precedent in an affirmative action case. In quoting that overruled opinion, Justice Scalia selected this phrase from Justice Frankfurter: “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”[185] Few would disagree entirely with Justice Frankfurter’s upholding of the “relevant concerns of a political society.”[186] Even Sherbert allows for it, provided such relevancy is demonstrated to be so relevant as to justify the burden on religious exercise by showing a compelling state interest.[187]

But in West Virginia Board of Education v. Barnette, the Court overruled Gobitis and gave a strong answer to Justice Frankfurter’s opinion with this now famous phrase:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.[188]

Justice Scalia sadly misses this point. This is not the kind of situation that he so often decries where rights are being invented that were unknown to the Founders (such as abortion rights or rights to homosexual intimacy, etc).[189] This is a situation where the right to the free exercise of religion is clearly and textually spelled out in plain language in the First Amendment.[190] The amendment itself directly forbids voting on this right by declaring that “Congress shall make no law . . . .”[191] Consequently, by leaving the issue of exemptions to legislatures, Smith makes free exercise subject to voting, so long as legislatures pass neutral laws of general applicability.[192]

Justice Scalia makes no reference to the possibility of significant consequences that may flow from the Smith decision.[193] For example, the State of Wisconsin could have a “second go” at the Amish because the theory in Wisconsin v. Yoder[194] is now arguably replaced by the Smith rationale (even though Justice Scalia says that situation is saved by the so-called “hybrid claim”).[195] Ironically, Yoder rests squarely on the First Amendment (applied to the states via the Fourteenth Amendment), not a “hybrid claim.”[196] The Court in Yoder made sure to distinguish situations that were secular in nature—such as Thoreau wishing to find philosophic solace at Walden Pond—from religious situations, such as the Amish.[197] Frankly, Justice Scalia’s attempt to distinguish Yoder from the rule in Smith is quite unconvincing.[198]

The essential situations in Smith and Yoder are congruent. The Native American Church members in Smith had to either choose their jobs or their religion.[199] So too in Yoder, the Amish were faced with a situation where they “must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.”[200] While the situations were similar, the analysis was completely different: Yoder required free exercise exemptions where the State could not demonstrate an overriding interest[201]—Smith declares any law that effectively destroys free exercise to be constitutional so long as it is a neutral law of general applicability that does not involve other constitutional concerns.[202]

C. Smith and Originalism

The devastating effect of the rule in Smith was foreshadowed by Professor Michael W. McConnell in his groundbreaking article on the origin of free exercise rights.[203] McConnell responded to the no-exemption analysis by stating what may be considered the exact problem with the Smith rule: “In other words, the government’s perception of public need defines the boundaries of freedom of conscience.”[204] McConnell, quoting Professor Walter Berns, further states, “one renders unto Caesar whatever Caesar demands and to God whatever Caesar permits.”[205] The unavoidable conclusion is that “[w]hen individual conscience conflicts with the governmental policy, the government will always prevail and the individual will always be forced to submit or suffer the punishment.”[206] This makes the First Amendment right to freely exercise one’s religion no right at all, because it is always subject to government’s delineation of the public good. This is exactly the situation Justice Jackson, in Barnette, said the Bill of Rights was meant to prevent—subjecting our fundamental rights to a vote.[207]

Considering Justice Scalia’s attraction to Originalism, it is appropriate to compare the Smith decision with evidence from the founding era to consider the meaning of free exercise. Professor McConnell commences his analysis of the original understanding of free exercise rights by humbly noting that he can only predict the “probable understanding” of the Founders on this point.[208] Obviously, any look into a historical record immediately has the disadvantage of not being able to account for what was not recorded, along with the fact that all readings of history receive an interpretive gloss from the one reporting it.[209] However, McConnell raises several powerful points that inform this discussion.

McConnell pays special attention to the writings of John Locke.[210] In so doing, he points out that it is generally agreed that Locke had a major influence upon the Founders.[211] However, McConnell notes several instances where the Founders departed from Locke’s thinking.[212] The dispositive point then becomes the fact that we have no reliable way to determine exactly which of Locke’s interpretations of government were also favored by a consensus of the First Congress, and which were not.

It is indisputable that Locke’s view of religious exemptions from neutral, generally applicable laws was exactly Justice Scalia’s view in Smith—none should be given.[213] Locke, in A Letter Concerning Toleration, directly states that “things [that] are not lawful in the ordinary course of life [are not lawful] in the worship of God, or in any religious meeting.”[214] Also, “those things that are prejudicial to the commonweal of a people in their ordinary use . . . ought not to be permitted to churches in their sacred rites.”[215] However, Locke then adds that “the magistrate ought always to be very careful that he do not misuse his authority to the oppression of any church, under pretence of public good.”[216] Locke appears to simply be willing to trust in the benevolence of government to not abuse such a trust. Such an admonition might as well come from C.S. Lewis’ The Screwtape Letters.[217]

McConnell argues that Locke’s view should not be relied upon as the Founder’s view of free exercise because Americans moved “towards a more expansive notion of religious liberty” than that which Locke conceived.[218] According to McConnell, there was an “Evangelical Impetus Toward Religious Freedom.”[219] To illustrate, McConnell notes the way in which free exercise was safeguarded in early America as opposed to Locke’s understanding:

The same evangelical forces converged in support of protections for religious liberty through free exercise provisions in state constitutions. It is no accident that Locke’s vocabulary (“toleration of religion”) was rejected in favor of more sweeping terms—not just the “exercise,” but the “free exercise” of religion, or “full and equal rights of conscience.” When George Mason proposed the term “toleration” for the religious liberty clause of the Virginia Bill of Rights, Madison objected on the ground that the word “toleration” implies an act of legislative grace, which in Locke’s understanding it was. Madison proposed, and the Virginia assembly adopted, the broader phrase: “the full and free exercise of [religion].”[220]

This is an important observation because the phrase “free exercise” is not found in Locke’s writings.[221] Thus, for the American ideal to include the phrase “free exercise” of religion represents a further step then Locke beheld, especially because the word “exercise” necessarily denotes some form of conduct.[222]

McConnell then explores the various state constitutions and other documents existing at the time.[223] For example, New York’s 1777 Constitution stated that “the free exercise and enjoyment of religious profession and worship” was to be safeguarded so long as it would “not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State.”[224] This New York understanding is more consistent with the compelling state interest test of Sherbert than the rule in Smith.[225] Furthermore, Maryland denied punishment of any individual for “his religious practice.”[226] Finally, McConnell points out that the word “exercise” is found in at least six of the state constitutions of the time, defined by contemporaneous dictionaries (one of Justice Scalia’s favorite methods of discerning the original meaning of the constitutional) as “action.”[227]

None of these examples is dispositive proof that the Framers of the First Amendment would have required exemptions per se.[228] However, for an originalist such as Justice Scalia, there is certainly nothing in these documents that denotes that government could disregard the free exercise of religion, so long as it did so with neutral, generally applicable laws. Instead, the documents seem to suggest that the right to free exercise was to be safeguarded, but that it was not absolute.[229] It would not be allowed to be a cloak for destructive practices—which is precisely what the Sherbert opinion holds through the employment of strict scrutiny.[230] From this analysis, it appears that Sherbert is more congruent to the Founding than Smith.[231]

D. Smith’s Defenders and the Argument Against Exemptions

Smith is not without its defenders.[232] Professor William P. Marshall argues that while Smith “is neither persuasive nor well-crafted,” and even though “its use of precedent borders on fiction,” the central holding of the case is correct.[233] To Marshall, “exemption analysis threatens free exercise values because it requires courts to consider the legitimacy of the religious claim of the party seeking the exemption.”[234] It is true that courts will have to decide which claims are actually religious and which are not when assessing exemptions.[235] However, just because this undertaking is difficult does not mean that courts should err on the side of disallowing the freedom entirely.[236] Courts often have a difficult time deciding what exactly is free speech,[237] but that does not mean the First Amendment rights to free speech should be tossed out in the trash because it is too hard for courts to make these decisions. Frankly, that is the job of a court—to draw tough lines.[238]

Marshall also argues that “the exemption balancing process necessarily leads to underestimating the strength of the countervailing state interest.”[239] However, Marshall fails to realize that free exercise exemptions have never been handed out like candy by courts.[240] As Professor Frederick M. Gedicks notes, “surprisingly few exemption cases [have] reached the Supreme Court, and religious objectors [have] lost virtually all of them.”[241] Marshall’s claim that free exercise exemptions result in inequality is also unpersuasive.[242] Marshall states that exemptions for free exercise leads to “a constitutional preference for religious over non-religious belief systems.”[243] To illustrate this awful “favoritism,” Marshall notes how the Court in Yoder was willing to give the Amish an exemption because of their religious beliefs, but not the philosophic beliefs of Thoreau.[244] The immediate answer is “so what?” If a “would be” Thoreau wants to make a constitutional argument for his beliefs under equal protection or substantive due process, so be it. However, the unavailability of such an argument fitting into the Free Exercise Clause is not constitutionally significant because the free exercise clause is designed to protect religious freedom, not equality of religious ideas in contrast to secular ideas.[245] One part of the Constitution does not become ineffectual because it does not include everyone in the protections it grants. The Sixth Amendment right to trial does not become ineffectual to criminal defendants because people excommunicated from their churches did not have their claim adjudicated by a jury. Marshall compares apples to oranges. The Free Exercise Clause protects religious conduct—not philosophical conduct.[246] If that is an infringement on equality, the solution is to seek a remedy for the right elsewhere in the Constitution, not to punish the right already protected.

The most disturbing of Marshall’s arguments is one that Ms. Monopoli has alluded to—the idea that granting exemptions violates the Establishment Clause.[247] Marshall claims that “[s]pecial treatment for religion connotes sponsorship and endorsement [that] sends a clear message of second-class status.”[248] Again, this is more of an argument against the existence of the Free Exercise Clause than an explanation of why the clause does not compel exemptions. His point boils down to the chaotic claim that the meaningful protection of the Free Exercise Clause violates the Establishment Clause.[249] Even if Marshall’s argument was correct, he fails to state why the Establishment Clause concern defeats the Free Exercise Clause concern, rather than the other way around.[250]

University of Richmond political scientist Ellis West also argues against a right to religion-based exemptions.[251] Professor West identifies six reasons to not grant a right to exemptions.[252] First, the court violates government neutrality toward religion when granting exemptions.[253] Second, exemptions “create[] ill will and divisiveness among the American people.”[254] Third, exemptions will “encourage false and deceptive claims, many of which are granted.”[255] Fourth, “there is no clear, workable, or fair way of limiting the number and kinds of exemptions to be granted.”[256] Fifth, courts will end up “making judgments on doctrinal or theological issues.”[257] Finally, “the existence of such a right makes it almost impossible for the Supreme Court to develop a coherent, persuasive body of church-state law based on the religion clauses of the first amendment.”[258]

Again, these arguments are more appropriately arguments for why we should repeal the Free Exercise Clause, not why the clause gives no right to an exemption for religious conduct. The first reason West cites is the same reason given over and over again—we cannot enforce the Free Exercise Clause without violating the Establishment Clause, so we should not enforce the Free Exercise Clause.[259] Once again, there is no suggestion that the Court should abandon the requirement of government neutrality because neutrality may conflict with free exercise exemptions. It is just assumed that the Establishment Clause is more important than the Free Exercise Clause, which of course begins to look like hostility towards religion in general.

As for the idea that “ill will and divisiveness” will result from exemptions, the argument leads nowhere.[260] One could make the exact same argument (and many correctly do) that requiring school integration under the Equal Protection Clause would result in “ill will and divisiveness”.[261] Naturally, few people today complain about the necessity of sending the 101st Airborne to desegregate Little Rock Central High School.[262] Certainly, the realization of constitutional freedom during the Civil Rights Era caused some “ill will and divisiveness.”[263] Nevertheless, we did not cower away from constitutional freedom when civil rights were at issue.[264] Thus we should not back away from religious freedom when First Amendment rights are at issue.

The third argument West considers is that exemptions will encourage false claims and deceptions.[265] The problem with this argument is two-fold. First, West only cites tax abuses as an example, without any other examples.[266] Second, West makes no reference to the scores of non-religious claims for constitutional protection that regularly come before courts that are actually deceptive – claims of free speech being among the foremost. West’s fourth identification is closely related, that exemptions will lead to numerous claims.[267] This is the typical slippery slope argument. West asserts the runaway train of religious exemptions, but fails to recognize that most of these claims lose anyway, as Professor Gedicks clearly points out.[268] Such a fact takes the wind out of West’s sail.

West’s identification of a “fifth objection” is that courts will become involved in “theological issues.”[269] As noted before, this is true to an extent.[270] However, one does not have to say as Nietzsche did that “I find it necessary to wash my hands after I have come into contact with religious people.”[271] Courts should be able to intelligently and objectively decide religious exemption cases without having to decide theological issues; because, the issue is whether there is an honest free exercise claim, not the validity of the theology such a claim rests upon. Naturally, there will be problematic situations, of course. That is the nature of law. But the existence of a problem does not justify an abandonment of constitutional rights.

The final objection is quite curious, that exemptions will muddy the waters of religion clause jurisprudence by making it difficult for courts to develop a clear body of law.[272] If we take this as a reason to not grant free exercise exemptions, we would be “throwing out the baby with the bathwater.”[273] This argument could be advanced for why the Constitution itself should not be enforceable, because from Marbury v. Madison to the present, the Court has consistently been inconsistent in its development of constitutional law – as any first-year law student can attest.[274] Naturally, no argument is advanced here by West that we should abandon the Establishment Clause doctrine of government neutrality because such a requirement has caused a labyrinth of unclear jurisprudence.[275] Once again, it is religious freedom that is the lesser-valued constitutional norm. Perhaps underlying all of this is a more explosive issue: Have we outgrown religion? The implication of such a possibility leads to the next question.

E. Is It Too Late for Exemptions?

Professor Gedicks argues that free exercise exemptions are no longer a viable solution to the problems facing religious liberty.[276] He gives this argument “reluctantly,” stating that “the commitment of contemporary legal culture (and, indeed, of American society) to equality will likely prevent the success of any such effort.”[277] Gedicks outlines the dichotomy of seeing the religion clauses from a “liberty” perception compared with an “equality” perception.[278] He argues that we have shifted our understanding, beginning with Smith, of the Free Exercise Clause away from a “liberty” aspect to an “equality” aspect.[279] The problem is that exemptions give believers a benefit that non-believers are not eligible for, and this strikes against the “rhetorical power of equality [that] is evident in contemporary constitutional scholarship.”[280] Instead of exemptions, Professor Gedicks suggests that “religious practices should receive the same kind of constitutional protection afforded to expression and association under the Speech and Equal Protection Clauses.”[281]

While Professor Gedicks makes a respectable argument, we should not throw in the towel on exemptions any more than we should give up any other liberties. By abandoning the doctrine of exemptions as a concession to the forces of “equality,” we tacitly allow a subtle erosion of free exercise rights. Professor Gedicks uses the Battle of Gettysburg as an example of defending religious liberty.[282] He argues that we should abandon the lower, less defensible ground of exemptions for the “high ground” of treating free exercise like free speech, just as the Union army arguably won the battle by taking the high ground on the first day of battle.[283] However, we would do well to remember that Neville Chamberlain’s appeasement at Munich arguably emboldened Hitler to take more of Europe.[284] Rather than give up the “Sudetenland” and retreat, we should vigorously strive for the correct understanding of free exercise rights. Otherwise, we will see the First Amendment forever relegated to a prohibition against direct religious discrimination. Rather than retreat—I suggest that we advance.

VI. A Return to Strict Scrutiny Is Not Enough

Regardless of the unsoundness of Justice Scalia’s opinion in Smith, he later made a very important statement concerning the Sixth Amendment’s Confrontation Clause: “By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable . . . .”[285] The First Amendment is written in absolute terms, that “Congress shall make no law . . . .”[286] However, if taken as an absolute, the Amendment would allow people to invade other constitutional rights (such as the right to life) under the protection of religious liberty.[287] An absolutist First Amendment would protect Abraham in offering up Isaac.[288] Thus we are left with a choice when constitutional values conflict—either balance the interests, or abandon one of them. Justice Scalia is correct that “open-ended balancing tests” do violence to constitutional guarantees.[289] Therefore, when a balancing test is employed it should be as strictly composed as possible. However, the strict scrutiny test formerly employed in Sherbert is not enough to protect free exercise rights.[290] We need a balancing test that is stronger.

Strict scrutiny generally requires the government to show a compelling state interest that is narrowly tailored before its burden on a fundamental constitutional right will be allowed.[291] Exactly what a “compelling state interest” is remains unclear. Justice Blackmun pointed out the problem in his concurring opinion in Illinois State Bd. of Elections v. Socialist Workers Party: “I have never been able fully to appreciate just what a ‘compelling state interest’ is . . . I feel, therefore, and have always felt, that these phrases are really not very helpful for constitutional analysis. They are too convenient and result oriented . . . .”[292] The point is that the use of a “compelling state interest” standard for “strict scrutiny” may make it about as strict as a wet noodle, depending upon the judge wielding the test on any given day.

For example, while Justice O’Connor’s concurrence in Smith does an excellent job of exposing the fallaciousness of the Court’s analysis, she too ultimately ends up being incorrect in the case. Justice O’Connor finds the Oregon law at issue to pass strict scrutiny analysis.[293] Justice O’Connor boldly claims “[t]he compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests ‘of the highest order.’”[294] This sounds wonderful. Indeed, government should not invade religious liberty unless it can show an interest of the highest order. However, Justice O’Connor then turns around and allows an interest that is not “of the highest order” to do precisely that.[295]

Justice O’Connor concludes that “[a]lthough the question is close, I would conclude that uniform application of Oregon’s criminal prohibition is ‘essential to accomplish’ its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance.”[296] Thus, because peyote “is inherently harmful and dangerous” and because there is a “societal interest in preventing trafficking in controlled substances,” Oregon has a compelling state interest.[297]

While many may agree with Justice O’Connor about the dangerousness of peyote, many do not agree, including the federal government.[298] For example, while peyote (the sacrament of the Native American Church at issue in Smith) is a hallucinogen, the federal government grants a religious exemption under 42 U.S.C. § 1996(a) for certain religious users, noting that it has done so since 1965.[299] There is no overwhelming concern that Native Americans’ use of peyote will cause major societal harm. Thus, it is difficult to follow how Justice O’Connor sees Oregon’s ban on the use of the substance being an interest of the highest order.[300] This is a perfect illustration of “strict scrutiny” being anything but strict.

In Oregon, the courts have also shown that a strict scrutiny standard would not be enough to protect the Beagleys and other parents even if there were a constitutional need for religious exemptions to criminally negligent homicide.[301] As noted above, in State v. Hays, the Oregon Court of Appeals dismissed a vagueness argument and a RFRA argument in a faith-healing defense to a criminally negligent homicide case.[302] In dicta, the court went even further and explained that “[p]rotecting the lives and welfare of children is unquestionably a compelling state interest.”[303]

Other states have done the same. In Walker v. Superior Court, the California Supreme Court decided that the First Amendment did not require an exemption for a parent prosecuted for the death of her child after she treated the child with faith-healing alone.[304] The Court stated that “[i]mposition of felony liability for endangering or killing an ill child by failing to provide medical care furthers an interest of unparalleled significance: the protection of the very lives of California’s children . . . .”[305] In other words, the issue is not even a close call for this court. It is important to note that this case was decided under the Sherbert compelling state interest test, not under the Smith rationale.[306] Consequently, faith-healing parents appear to be out of luck regardless of whether the courts use either the Sherbert approach or the Smith approach. Under either standard devout believers such as the Beagleys will see their rights to religious exercise fall victim to popular opinion about the reasonableness of their beliefs.

VII. A More Appropriate Standard in Faith-Healing Cases

When religious liberty clashes with the death of a child a new standard is needed to protect both the child and the religious views of the parents. While the Smith and Sherbert standards both effectively safeguard the right to life for children, neither of these rationales effectively supports the free exercise rights of the parents. I propose a new test for the Free Exercise Clause that has the ability to both safeguard the rights of children to life and the rights of parents to the free exercise of religion. The test is applicable in all free exercise cases and seeks to solve the age old problem of imperium in imperio, alluded to earlier.[307]

When laws clash with the free exercise rights of parents, the First Amendment compels exemptions for religiously motivated conduct unless the State can show an utterly overwhelming interest.[308] To satisfy this review, the State must show: (1) that a failure to proscribe the religious practice would result in the deprivation of the rights of others; (2) that the prohibition of the practice is absolutely devoid of intentional discrimination towards the religious beliefs and practices at issue, no matter how odious they may appear; (3) that the practice, if left alone, would undoubtedly result in serious and potentially substantial social harm; and (4) that there is no reasonable alternative nor less restrictive way to achieve the government’s interest. However, a showing by clear and convincing evidence that a practice interferes with the rights of others alone will allow for reasonable restrictions on the religious practice, but only so far as is reasonably necessary to protect the rights of others.[309]

This test is heavily weighted towards protecting the free exercise of religion. Even so, it adequately provides a means for government to deal with abuses of this right by subjecting the right to free exercise to the rights of society in certain extreme situations. Nevertheless, a close reading of this test reveals that if a practice results “in serious and potentially substantial social harm,” but does not deprive others of their rights—then the exemption will be upheld. Some may understandably find this alarming. But this distinction is intentional. By having such a deferential standard, religious liberty is protected from judges who unduly think a certain practice causes great social harm where others would potentially disagree. Yet, there is also a built-in safeguard. A practice that truly would “result in serious and potentially substantial social harm” is one that will almost always infringe upon the rights of others. These twin requirements do not contradict. Instead, they seek to inform and regulate each other, while allowing judges some room to navigate.

For example, if a religion seeks to commune with a god (or a devil, or mother nature, etc.) through mass orgies, such a practice is protected even though it may be shown to have serious social harm. If that social harm is so serious that it rises to an interference with the rights of others (and there are various ways it could, depending on the particular situation), then the practice may be proscribed in such a way as to alleviate the harm to the rights of others. Such an analysis protects the religious belief even though most people would find this religion to be most distasteful. However, a religion that practices the same sexual indulgences with minor children will be susceptible to regulation upon a showing that such practices interfere with the rights of others, namely the children. Thus, if the practice is egregious enough, the test subtly allows judges to find justifications for regulating the practice. In the most extreme of situations, such as a religion that seeks to usher in the coming of Satan by sacrificing its adherents’ first-born virgin daughters, my proposed standard obviously allows society to intervene.

It may be asked why religious liberty should be privileged to have such a high preference in our society. The answer lies in the fact that religious liberty is central to our existence as human beings. It is paramount to remember that the right to free exercise of religion protects the right to not engage in religious conduct as much as it protects the right to engage in such conduct. No one in this country is forced to accept any religious tenet. People are free to believe or not believe as they wish. The twin doctrines of the separation of church and state along with the guarantee of the free exercise of religion provides an environment where each individual may pursue the purpose of life and happiness according to his or her own conscience and beliefs about the infinite. Protecting religious exercises safeguards the atheist as much as it protects the believer because it shows the seriousness of safeguarding religious liberty. As the Court has stated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[310]

VIII. Application to the Beagley Case

Application of the utterly overwhelming governmental interest test to the prosecution of Jeffrey and Marci Beagley shows that the First Amendment compels a Free Exercise exemption in this case. But such an exemption is not constitutionally compelled in the case of Ava Worthington’s death.[311] Members of The Followers of Christ Church have every right to practice their religion but not to the point where it interferes with the right to life of a fifteen month-old child, too young to assert that right for herself. Allowance of exemptions for faith-healing that result in the death of children too young to decide for themselves does violate the rights of the child to life and leads to serious and substantial social harm. This is because the child is not in a position to make a rational decision on the issue. The right to free exercise of religion is sacred, but it is neither more nor less sacred than the right to life. Neither right allows for the subordination of the other to it.

Applying this standard in the case of Jeffrey and Marci Beagley, Oregon is not able to show that the failure to grant a religious exemption would result in the deprivation of the rights of others. The Beagleys did not kill their son; they honored his religious wishes.[312] Neil was an older boy who was capable of choosing for himself whether he wanted to live his religious beliefs or choose to go to a doctor.[313] Neil’s parents made it clear that if Neil wanted to go to a doctor, they would have taken him.[314] If Neil’s parents categorically had said they would not take him to a doctor, then the situation would be different.[315]

Many people may be appalled by this situation. Perhaps they, like the prosecutor in Beagley, would argue that Neil was only trying to please his parents and that if he had not been indoctrinated by this religion, he would be alive today.[316] Such people would perhaps argue that the Beagleys’ deference to the wishes of their 16 year-old son represents a “serious and potentially substantial social harm” under the proposed standard. But that is not enough under this standard. The “harm” must show itself to be beyond contemporary opinion by a demonstration that Neil’s right to life was also infringed upon. Perhaps that argument can be made, but it is unlikely. Neil was a competent 16 year-old boy who was capable of asserting his rights to live the religion he was taught and sincerely believed.[317] In this case, Oregon is not able to show an utterly overwhelming governmental interest that supersedes the Beagleys’ Free Exercise rights under the First Amendment. Therefore, the conviction should be vacated as a violation of the Free Exercise Clause.

Lest anyone think that the “utterly overwhelming governmental interest test” would allow faith-healing to run unchecked to the death of small children, the application of the test to the death of fifteen month-old Ava Worthington shows a different result. Ava, being fifteen months old, was unable to assert her right to life or even to decide for herself what she would like to do.[318] Parents do not own their children as property.[319] The right to raise a child in one’s religion does not translate into the right to subordinate a child’s right to life to the parent’s religion.[320] The child must be able to choose for herself whether to adhere to the religious teaching or to choose to see a doctor. And if she is unable to so choose, because of tender age, then her rights are infringed upon if the parents effectively choose the parents’ religious persuasion over the child’s right to life.

Applying this standard to the Worthington situation, Oregon is able to show that a failure to proscribe faith-healing alone in the case of a fifteen month-old child will result in the deprivation of the rights of others, namely Ava Worthington’s right to life.[321] Thus the first element is satisfied. As for the second element, Oregon would be able to show that the prosecution of the Worthingtons was not about their religious beliefs, but about the results of their conduct.[322] While the defense would point to the inevitable discussion of their religious motivations for the conduct, the fact remains that the State of Oregon prosecuted them for the death of their child—not for practicing faith-healing.[323] The third requirement is also satisfied because if the State were to leave alone the faith-healing practices that result in the deaths of small children, several more would likely die; because, future parents with identical beliefs, facing similar situations, are likely to take the same approach as the Worthingtons.[324] This results in serious and potentially substantial social harm. Finally, because the government cannot prosecute for this crime without the death of the victim, there is no other reasonable way to combat the social harm but to proscribe the religious practice of faith-healing alone in this case. No less restrictive means are available. Therefore, applying the utterly overwhelming governmental interest test, the First Amendment would not require an exemption in this case.

The “utterly overwhelming governmental interest test” is an effective remedy to these situations. It gives strong preference to the rights of people and parents to practice their religion while also safeguarding the rights of others and prohibiting massive social harm. Naturally, the difficulty with this test is the same as with any other test – the borderline situation. Suppose the child at issue was a ten year-old child, who at one point said, “I want to have faith in God; don’t take me to a doctor.” At another time, while under extreme pain, the child, while crying begs to go to a doctor, or exclaims “Mommy—make it stop hurting!” This is the truly difficult situation.

Regardless of how we try, these situations will always require line drawing. The quote from Melville’s Billy Budd, Sailor at the beginning of this paper seeks to highlight the problem.[325] No test can be fashioned that will perfectly apply to every situation. As Aristotle noted, this is one of the shortcomings to being ruled by law rather than by a perfect king – laws only command in the sense of general commands and not to the particulars.[326] Nevertheless, in a constitutional republic, this is the best we can do. If this article makes people on both sides of this debate uneasy in some way, it will have achieved its purpose. For in drawing lines in accordance with people’s greatest (and conflicting) values, there must always be some give and some take.

IX. Conclusion

In Constitutional law, there are virtually no “slam dunk” arguments, especially concerning an issue such as this. Very intelligent and conscientious people are going to disagree on this subject as much as they will disagree on religion or constitutional law in general. To be candid, I freely admit that I may be wrong. I do not claim to have any great wisdom on this subject. I merely here assert the primacy of religious liberty, especially when it strikes us as most difficult to do so. Because religious liberty is such a central and important liberty, I cannot cast it aside or make an exception when it appears proper to do so from the standpoint of someone who feels the religion to be misguided.

Empirically speaking, none of us are able to prove whether there is life after death, or what that life may be like. But because religious liberty is so potentially tied to our eternal welfare or existence, the State should not endeavor to interfere with religion unless it is utterly necessary to protect the same sacred rights of others. In closing, we should remember these wise words of Justice Jackson: “[T]he price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.”[327] Even so, we must always remember that until we are able to absolutely prove that a certain religious belief, however far-fetched, is “rubbish,” it may be our beliefs that are actually “rubbish.” That is why we must protect religious liberty as far as we are able.


* Articles Editor, Willamette Law Review; AAS Ricks College, BA Brigham Young University, Master of Politics, Braniff Graduate School of Liberal Arts, The University of Dallas. Paper written for Professor Steven K. Green’s First Amendment Class, Spring Semester, 2010, Willamette University College of Law, Salem, OR.

[1]. Pierre Manent, Tocqueville and the Nature of Democracy 132 (John Waggoner trans., 1996) (1993).

[2]. Steve Mayes, Jeffrey, Marci Beagley found guilty in Oregon City faith-healing trial, (Feb. 2, 2010, 9:02 PM),

[3]. Nicole Dungca, Portrait of Neil Beagley emerges during faith-healing trial, (Jan. 30, 2010, 11:00 PM),

[4]. Id.

[5]. Id.

[6]. Id.

[7]. See id.

[8]. Steve Mayes, Oregon City trial raises new questions in faith-healing debate, (Jan. 9, 2010, 6:20 PM),

[9]. Dungca, supra note 3.

[10]. Id.

[11]. Steve Mayes, Judge sends message with prison terms in faith-healing case, (Mar. 8, 2010, 8:15 PM),

[12]. Id.

[13]. Id.

[14]. Id.

[15]. Id.

[16]. Id.

[17]. Id.

[18]. Lyndon B. Johnson, Remarks at a Dinner Meeting of the Texas Electric Cooperatives, Inc. (May 4, 1965), available at

[19]. U.S. Const. amend. I.

[20]. Matthew 6:24 (King James).

[21]. Reynolds v. United States, 98 U.S. 145, 167 (1878).

[22]. Id.

[23]. One must seemingly hold an ultimate trump card over the other. The two cannot equally exist side by side in the same civil society because each claims to be an exception to the other. If religious liberty is an exception to governmental power, then it overrides such power by nature of being an exception to it. The reverse is also true: if government decides when and to what extent religious liberty is to receive governmental protection, then religious liberty really is dependent upon governmental benevolence; for, the very courts that are to protect it are also empowered to interpret it and thus place limitations on it. Consequently, it appears that in extreme situations one must necessarily yield to the other.

[24]. The Federalist No. 15, at 103 (Alexander Hamilton) (Clinton Rossiter ed., 2003).

[25]. Mayes, supra note 2.

[26]. Mayes, supra note 11.

[27]. Richard A. Hughes, The Death of Children by Faith-Based Medical Neglect, 20 J.L. & Religion 247, 247 (2005).

[28]. Tom Wolfe, Worthingtons acquitted on all but one charge in daughter’s faith-dealing death, (July 23, 2009, 9:15 PM),
index.ssf/2009/07/ worthington_jury_has_reached_a.html.

[29]. Jerry Casey, Jury acquits Worthingtons of all but 1 charge in daughter’s death, (July 23, 2009, 7:31 PM),

[30]. Id.

[31]. Hughes, supra note 27, at 248.

[32]. Id. at 247.

[33]. 1999 Or. Laws 2346-48.

[34]. State v. Hays, 964 P.2d 1042, 1044, 1046 (Or. Ct. App. 1998).

[35]. Id. at 1045 n.1.

[36]. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).

[37]. Mark Larabee, Bill aims to lift all Oregon religious shields, The Oregonian (Jan. 22, 1999),

[38]. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990).

[39]. Id.

[40]. Id.

[41]. Marci A. Hamilton, God vs. the Gavel: Religion and the Rule of Law (2005).

[42]. Id. at 35.

[43]. Id. at 36.

[44]. Id. at 5.

[45]. Id.

[46]. Id. at 240.

[47]. Id. at 238.

[48]. Id. at 240.

[49]. Id.

[50]. Id. at 32.

[51]. Id. at 272.

[52]. See U.S. Const. amend. I; U.S. Const. amend. XIV, § 1; see also Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”).

[53]. Hughes, supra note 27, at 250-51.

[54]. See id. at 251.

[55]. Id.

[56]. See id. at 251-52 (explaining that to ward off the influence of evil, adherents to the faith must abstain from medical treatment and disuse all medical devices).

[57]. See Catharine Cookson, Children and Freedom of Religion in the United States, in Encyclopedia of Religious Freedom 39, 41 (Catharine Cookson ed., 2003).

[58]. See Hughes, supra note 27, at 256-57.

[59]. The “Incarnation” is the idea that the Son of God took upon Himself the form of man. See U.S. Catholic Conference, Inc., Catechism of the Catholic Church 116 (1994) [hereinafter Catechism].

[60]. The “Passion” references the suffering of Christ on the cross for the forgiveness of sins. Id. at 158-59.

[61]. See John H. Hick, Philosophy of Religion 40 (4th ed. 1990) ([I]f God is all-powerful, God must be able to abolish all evil. But evil still exists; therefore God cannot be . . . omnipotent.”).

[62]. Friedrich Nietzsche, Beyond Good and Evil (1886), reprinted in Basic Writings of Nietzsche 250 (Walter Kaufmann, trans. & ed., Modern Library 2000); see also Friedrich Nietzsche, Genealogy of Morals (1887), reprinted in Basic Writings of Nietzsche 528 (Walter Kaufmann, trans. & ed., Modern Library 2000). Nietzsche writes:

God himself sacrifices himself for the guilt of mankind, God himself makes payment to himself, God as the only being who can redeem man from what has become unredeemable for man himself—the creator sacrifices himself for his debtor, out of love (can one credit that?), out of love for his debtor!


[63]. Niccolo Machiavelli, Discourses on Livy 131 (Harvey C. Mansfield & Nathan Tarcov trans., Univ. Chi. Press 1996).

[64]. See, e.g., Jamila Hussain, Islam: Its Law and Society 145 (2d ed. 2004) (“The consumption of alcohol in moderation was at first allowed in Islam. Later, it was forbidden completely. The jurists consider that the prohibition applies with equal force to drugs and other intoxicants of whatever kind. The penalty for drinking alcohol is either 40 or 80 lashes, depending on which school of law is followed.”).

[65]. See Catechism, supra note 59, at 336.

[66]. See Hamilton, supra note 41, at 31–35 (discussing the no-harm principle only as applied to cases of medical neglect).

[67]. See Hughes, supra note 27, at 256-57.

[68]. See Hamilton, supra note 41, at 32.

[69]. See, e.g., Hughes, supra note 27, at 251-52 (discussing the particular teachings of the Faith Assembly).

[70]. See Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion 213 (John Witte, Jr., ed., 1993) (“‘[T]he influence of Christianity seems to be, if we look not merely to the numbers but also the intelligence of the persons influenced, greater and more widespread in the United States than in any part of western Continental Europe, and probably as great as in England.’” (quoting 2 James Bryce, The American Commonwealth 778 (1910)).

[71]. See Catechism, supra note 59, at 31 (“For Holy Mother Church . . . accepts as sacred and canonical the books of the Old and the New Testaments, whole and entire, with all their parts, on the grounds that, written under the inspiration of the Holy Spirit, they have God as their author . . . .”).

[72]. Genesis 22:2 (King James).

[73]. See Genesis 22:10-12 (King James).

[74]. See Daniel O. Conkle, Free Exercise Clause, in Encyclopedia of Religious Freedom, supra note 57, at 136, 137.

[75]. See generally Genesis 22:12-18 (King James). The passage reads:

And [the angel] said, [l]ay not thine hand upon the lad, neither do thou any thing unto him: for now I know that thou fearest God, seeing thou hast not withheld thy son, thine only son from me. . . . And the angel of the Lord called unto Abraham out of heaven the second time, [a]nd said, By myself have I sworn, saith the Lord, for because thou hast done this thing, and hast not withheld thy son, thine only son: That in blessing I will bless thee, and in multiplying I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore; and thy seed shall possess the gate of his enemies; [a]nd in thy seed shall all the nations of the earth be blessed; because thou hast obeyed my voice.


[76]. Bill Cosby, Noah: Right!, on Bill Cosby is a Very Funny Fellow . . . Right! (Warner Bros. Records 1963).

[77]. Job 13:15 (King James).

[78]. Victor Hugo, Les Miserables 37-38 (Charles E. Wilbour trans., Modern Library 1931) (1862).

[79]. Hughes, supra note 27, at 264.

[80]. See id. at 260-61.

[81]. Id. at 260.

[82]. Id. at 260-61.

[83]. See id.

[84]. Id. at 261-62.

[85]. Hughes, supra note 27, at 262.

[86]. See id.

[87]. Id. at 263.

[88]. Id.

[89]. Id.

[90]. See id. at 262-63.

[91]. See id. at 247 n.†.

[92]. See Michael Belknap & Cathy Shipe, Cults and the Law, in Religion and American Law: An Encyclopedia 112, 113 (Paul Finkelman ed., 2000) (explaining that “[t]he term [‘cult’] has often been employed pejoratively . . . to stigmatize” minority religious movements and to impede their efforts “to claim for themselves the same rights as more traditional religions”).

[93]. Conan the Barbarian (Universal Pictures 1982).

[94]. Hughes, supra note 27, at 262.

[95]. Statements of the Prime Minister David Ben-Gurion Regarding Moving the Capital of Israel to Jerusalem, The Knesset, (last visited Sept. 9, 2010) (asserting the deeply-rooted Zionist view that, “for the State of Israel there has always been and always will be one capital only – Jerusalem the Eternal”).

[96]. See Noura Erakat, Litigating the Arab-Israeli Conflict: The Politicization of U.S. Courtrooms, 2 Berkeley J. Middle E. & Islamic L. 27, 31 (2009) (“Israel continues to occupy the West Bank and the Gaza Strip in spite of U.N. Resolution 242 (1967), which called on Israel to immediately withdraw its armies from ‘territories occupied in the recent conflict.’ . . . [T]he Israeli occupation . . . [is now] the longest military occupation in modern history.” (footnote omitted) (quoting Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, 44 Harv. Int’l L.J. 65, 81 (2003))).

[97]. See Mayes, supra note 11.

[98]. See id. (“This all lies in the hearts and souls of the members of the church.”).

[99]. Paula A. Monopoli, Allocating the Costs of Parental Free Exercise: Striking a New Balance Between Sincere Religious Belief and a Child’s Right to Medical Treatment, 18 Pepp. L. Rev. 319, 351-52 (1991).

[100]. Id. at 321.

[101]. Id. at 319 (quoting Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)).

[102]. Id. at 346.

[103]. Prince, 321 U.S. 158, 166 (1944) (footnotes omitted) (citations omitted).

[104]. See id.

[105]. See id. at 170.

[106]. Monopli, supra note 99, at 321.

[107]. See generally 8 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 18:1 (4th ed. 1998). Contract law teaches as follows:

[W]hile freedom of contract has been regarded as part of the common law heritage so that absent mistake, fraud or duress, parties who have made a contract are bound although it may be unwise and even foolish, equity has often refused to enforce some agreements when, in its sound discretion, these have been deemed unconscionable.


[108]. See Plato, The Republic of Plato 153 (Allan Bloom trans., 1968).

[109]. See Monopoli, supra note 99, at 344-46.

[110]. Zorach v. Clauson, 343 U.S. 306, 313 (1952).

[111]. Id. at 314.

[112]. See id. at 313-14.

[113]. Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

[114]. Zelman v. Simmons-Harris, 536 U.S. 639, 662-63 (2002).

[115]. Van Orden v. Perry, 545 U.S. 677, 691-92 (2005).

[116]. Locke v. Davey, 540 U.S. 712, 718 (2004) (quoting Waltz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970)).

[117]. See generally David E. Steinberg, Children and Spiritual Healing: Having Faith in Free Exercise, 76 Notre Dame L. Rev. 179 (2000).

[118]. Id. at 181.

[119]. Id.

[120]. Id. at181-82.

[121]. Id. at 199-207.

[122]. See Hamilton, supra note 41, at 31-32 (“Whether they see imminent harm or state interference, they may be motivated to hide their extremely ill children from the authorities whose job it is to ensure that children do not die or suffer permanent disability from medical neglect.”).

[123]. See id. at 240.

[124]. U.S. Const. amend. I.

[125]. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

[126]. See U.S. Const. amend. I.

[127]. See Emp’t Div. v. Smith, 494 U.S. 872, 878-79 (1990).

[128]. See U.S. Const. amend. I.

[129]. See id.

[130]. See id.

[131]. See Sherbert v. Verner, 374 U.S. 398, 406 (1963).

[132]. Smith, 494 U.S. at 878-79.

[133]. Id. at 883.

[134]. Id. at 877.

[135]. Id. (quoting Sherbert, 374 U.S. at 402).

[136]. Id.

[137]. Id. at 878-79.

[138]. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 23 (Amy Gutmann ed., 1997).

[139]. Id.

[140]. Id.

[141]. Id.

[142]. Id.

[143]. Id. at 23-24.

[144]. Id.

[145]. Id. at 24.

[146]. Id.

[147]. Id. at 25.

[148]. See Emp’t Div. v. Smith, 494 U.S. 872, 884-85 (1990).

[149]. Id. at 894 (O’Connor, J., concurring in judgment).

[150]. Id. at 886 (majority opinion).

[151]. Id. at 877.

[152]. Id. at 893 (O’Connor, J., concurring in judgment).

[153]. Id. at 894 (quoting Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136, 141-42 (1987).

[154]. See id. at 893.

[155]. Id. at 894.

[156]. Id. at 879 (majority opinion).

[157]. Reynolds v. United States, 98 U.S. 145, 164 (1878).

[158]. See Smith, 494 U.S. at 879.

[159]. See John T. Noonan, Jr., The Believer and the Powers That Are 194 (1987).

[160]. See id. at 194-95.

[161]. Id. at 194.

[162]. Id. at 195 (quoting George D. Ellis, Platforms of the Two Great Political Parties 13 (1928)).

[163]. Id. (quoting Normam F. Furniss, The Mormon Conflict 1850-1859, at 74-75 (1960)).

[164]. See Act of July 1, 1862, ch. 126, 12 Stat. 501; see also Reynolds v. United States, 98 U.S. 145, 168 (1878).

[165]. 12 Stat. at 501.

[166]. Id.

[167]. See Em’t Div. v. Smith, 494 U.S. 872, 877 (1990) (“The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86–88 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v. Valente, 456 U.S. 228, 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma.”).

[168]. § 2, 12 Stat. at 501.

[169]. Id. (emphasis added).

[170]. Id.

[171]. See Smith, 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in judgment)).

[172]. § 2, 12 Stat. 501.

[173]. Smith, 494 U.S. at 879.

[174]. Compare id. at 890, with Reynolds v. United States, 98 U.S. 145, 166-68 (1878).

[175]. Reynolds, 98 U.S. at 166-68.

[176]. Id.

[177]. Id. at 167 (citing Regina v. Wagstaffe, (1868) 10 Cox Crim. Cases 530, 530-34).

[178]. Id.

[179]. 10 Cox Crim. Cases at 534.

[180]. Id.

[181]. See Reynolds, 98 U.S. at 167.

[182]. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594 (1940).

[183]. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[184]. Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954).

[185]. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990).

[186]. Id.

[187]. See Sherbert v. Verner, 374 U.S. 398, 406-07 (1963).

[188]. Barnette, 319 U.S. at 638.

[189]. Lawrence v. Texas, 539 U.S. 558, 603 (2003) (Scalia, J., dissenting) (“What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”); Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in judgment and dissenting in part) (“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”).

[190]. U.S. Const. amend I.

[191]. Id.

[192]. See Emp’t Div. v. Smith, 494 U.S. 872, 878-79 (1990).

[193]. See id.

[194]. Wisconsin v. Yoder, 406 U.S. 205, 235-36 (1972) (holding that the Amish had a free exercise exemption under the First Amendment to not send their children to school beyond the eighth grade).

[195]. Smith, 494 U.S. at 881-82.

[196]. Yoder, 406 U.S. at 220 (“But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability.”).

[197]. Id. at 216.

[198]. See Smith, 494 U.S. at 881-82.

[199]. Id. at 874.

[200]. Yoder, 406 U.S. at 218.

[201]. Id. at 235-36.

[202]. Smith, 494 U.S. at 879.

[203]. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410 (1990).

[204]. Id. at 1434.

[205]. Id. at 1434-35 (quoting Walter Berns, The First Amendment and the Future of American Democracy 44 (1985)).

[206]. Id. at 1435.

[207]. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 638.

[208]. McConnell, supra note 203, at 1414-15.

[209]. See Steven K. Green, “Bad History”: The Lure of History in Establishment Clause Adjudication, 81 Notre Dame L. Rev. 1717, 1730 (2006) (“Despite their commitment to objectivity, historians also understand—in a manner that is apparently incongruous to many jurists—that history is not objective. Any exploration into history is selective, and all (good) accounts of history are interpretive.”).

[210]. McConnell, supra note 203, at 1430.

[211]. Id.

[212]. See id. at 1443-45.

[213]. See Emp’t Div. v. Smith, 494 U.S. 872, 884-85 (1990).

[214]. John Locke, A Letter Concerning Toleration 39 (The Liberal Arts Press 1950) (1689).

[215]. Id. at 40.

[216]. Id.

[217]. See generally C.S. Lewis, The Screwtape Letters (Norman P. Ross ed., Time Inc. 1961) (1942) (A work satirical of Christian morality told through a compilation of hypothetical letters where a senior devil teaches a junior devil how to destroy a man’s soul).

[218]. McConnell, supra note 203, at 1435.

[219]. Id. at 1437.

[220]. Id. at 1443 (alteration in original) (footnote omitted).

[221]. See id.

[222]. See id. at 1459.

[223]. Id. at 1456-58.

[224]. Id. at 1456 (quoting N.Y. Const. of 1777, art. XXXVIII, reprinted in 2 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 1328, 1338 (2d ed. 1924)).

[225]. Compare Sherbert v. Verner, 374 U.S. 398, 403 (1963), with Emp’t Div. v. Smith, 494 U.S. 872, 877-78, 884-85 (1990).

[226]. McConnell, supra note 203, at 1459 (quoting Md. Declaration of Rights of 1776, art. XXXIII, reprinted in 1 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States 817, 819 (2d ed. 1924)).

[227]. Id. at 1459.

[228]. See Green, supra note 209, at 1730.

[229]. See McConnell, supra note 203, at 1461.

[230]. See Sherbert, 374 U.S. at 406-07.

[231]. See Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990).

[232]. William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 308-09 (1991).

[233]. William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 308-09 (1991).

[234]. Id. at 310.

[235]. Id.

[236]. Id. at 311.

[237]. Compare Cohen v. California, 403 U.S. 15, 25 (1971) (acknowledging a First Amendment right to display clothing in public containing an infamous four-letter word. “[W]hile the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nonetheless often true that one man’s vulgarity is another’s lyric”), with id. at 27 (Blackmun, J., dissenting) (“Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech.”).

[238]. See, e.g., Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting) (“We may regret that the line was drawn just where it was, but drawn somewhere it had to be.”).

[239]. Marshall, supra note 233, at 312.

[240]. Frederick Mark Gedicks, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence 38 (1995).

[241]. Id.

[242]. Marshall, supra note 233, at 319.

[243]. Id.

[244]. Id.

[245]. See Michael W. McConnell, A Response to Professor Marshall, 58 U. Chi. L. Rev. 329, 330 (1991).

[246]. See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972).

[247]. Monopoli, supra note 99, at 344-46.

[248]. Marshall, supra note 233, at 320.

[249]. Id.

[250]. See id.

[251]. See generally Ellis West, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J.L. Ethics & Pub. Pol’y 591 (1990).

[252]. Id. at 600.

[253]. Id.

[254]. Id. at 602.

[255]. Id. at 603.

[256]. Id. at 604.

[257]. Id. at 609.

[258]. Id. at 611.

[259]. See id. at 600-01.

[260]. Id. at 602.

[261]. See Irving J. Spitzberg, Jr., Racial Politics in Little Rock 1954-1964, in American Legal and Constitutional History 1, 197-98 (Harold Hyman & Stuart Bruchey eds., 1987).

[262]. Id. at 13.

[263]. See id.

[264]. See id.

[265]. West, supra note 251, at 603.

[266]. Id. (“The history of existing exemptions given to churches by our tax laws bears witness to the scope of this problem. Increasingly, persons motivated by nothing more than greed pretend to be religious or to be organized as churches in order to take advantage of religion-based exemptions.”).

[267]. See id. at 604-05.

[268]. See Gedicks, supra note 240, at 38.

[269]. West, supra note 251, at 609.

[270]. See Marshall, supra note 233, at 310.

[271]. Friedrich Nietzsche, Why I Am a Destiny, reprinted in Basic Writings of Nietzsche 782 (Walter Kaufmann trans. & ed., Modern Library 2000).

[272]. See West, supra note 251, at 611.

[273]. See Cheng Lim Tam, Advanced English Idioms for Effective Communication 52 (2002).

[274]. Compare Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (holding that state-sanctioned racial segregation based upon the doctrine of “separate but equal” violates the Fourteenth Amendment), with Plessey v. Ferguson, 163 U.S. 537, 550-51 (1896) (upholding state laws of racial segregation in railway cars based upon the “separate but equal doctrine”); compare Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that state sodomy laws violate the Fourteenth Amendment), with Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding the constitutionality of state sodomy laws).

[275]. One can literally take one’s pick as to which Supreme Court test or doctrine one wishes to use to decide the constitutionality of an Establishment Clause issue. Indeed, the constitutionality of any sort of separation of church and state issue largely depends upon which doctrine the Court decides to use on any given day. Compare Van Orden v. Perry, 545 U.S. 677, 681, 686 (2005) (upholding the constitutionality of a Ten Commandments monument on the Texas State Capital grounds while sidestepping the so-called Lemon test), with Lee v. Weisman, 505 U.S. 577, 592 (1992) (holding that if government sanctioned prayer or religious activity creates a subtle atmosphere of psychological coercion, then the practice violates the Establishment Clause), and Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (holding that any law that does not have a secular purpose, or that either advances or inhibits religion, or creates excessive governmental entanglement with religion violates the Establishment Clause).

[276]. Frederick Mark Gedicks, An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions, 20 U. Ark. Little Rock L.J. 555, 557 (1998).

[277]. Id. at 557.

[278]. Id. at 568.

[279]. Id. at 569.

[280]. Id. at 571.

[281]. Frederick Mark Gedicks, Towards a Defensible Free Exercise Doctrine, 68 Geo. Wash. L. Rev. 925, 927-28 (2000).

[282]. Id. at 951-52.

[283]. Id. at 952.

[284]. See generally Cato, Guilty Men 53-59 (1940).

[285]. Crawford v. Washington, 541 U.S. 36, 67-68 (2004).

[286]. U.S. Const. amend I.

[287]. See id.

[288]. See Douglas Laycock, Theories of Interpretation: Free Exercise Clause and Establishment Clause, in Religion and American Law: An Encyclopedia, supra note 92, at 516, 518.

[289]. Crawford, 541 U.S. at 67-68.

[290]. See Sherbert v. Verner, 374 U.S. 398, 406-07 (1963).

[291]. See generally id.; Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Cantwell v. Connecticut, 310 U.S. 296 (1940).

[292]. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188-89 (1979) (Blackmun, J., concurring).

[293]. Emp’t Div. v. Smith, 494 U.S. 872, 905 (1990) (O’Connor, J., concurring in judgment).

[294]. Id. at 895 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).

[295]. Id. at 895, 905.

[296]. Id. at 905 (citation omitted) (quoting United States v. Lee, 455 U.S. 252, 257 (1982)).

[297]. Id.

[298]. See 42 U.S.C. § 1996a (2006).

[299]. Id.

[300]. See Smith, 494 U.S. at 895, 905.

[301]. See State v. Hays, 964 P.2d 1042, 1045-47 (Or. Ct. App. 1998).

[302]. Id.

[303]. Id. at 1047 (citing Ginsberg v. New York, 390 U.S. 629, 640-41 (1968).

[304]. See generally Walker v. Superior Court, 763 P.2d 852 (Cal. 1988).

[305]. Id. at 869.

[306]. Id. at 870.

[307]. The Federalist No. 15, supra note 24, at 103.

[308]. See U.S. Const. amend. I; Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (2006); Laycock, supra note 288, at 519.

[309]. The author must confess the influence on his argument of the following religious text:

We believe that religion is instituted of God; and that men are amenable to him, and to him only, for the exercise of it, unless their religious opinions prompt them to infringe upon the rights and liberties of others; but we do not believe that human law has a right to interfere in prescribing rules of worship to bind the consciences of men, nor dictate forms for public or private devotion; that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul.

The Doctrine and Covenants of The Church of Jesus Christ of Latter-day Saints 134:4 (1979).

[310]. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

[311] Casey, supra note 29.

[312]. Dungca, supra note 3.

[313]. Id.

[314]. Dungca, supra note 3.

[315]. Id.

[316]. Mayes, supra note 2.

[317]. Dungca, supra note 3.

[318]. Casey, supra note 29.

[319]. See U.S. Const. amend. XIII.

[320]. See Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

[321]. Casey, supra note 29.

[322]. Joel Odom, Worthington faith-healing trial: Secular and spiritual laws collide, (June 29, 2009, 8:50 AM),

[323]. Kathleen Glanville, Prosecution rests case in Oregon City faith healing trial, (July 6, 2009, 12:15 PM),

[324]. Tom Wolfe, Judge Rejects claim of vindictive prosecution in faith-healing death, (June 15, 2009, 5:48 PM),

[325]. See Herman Melville, Billy Budd 76 (Tom Doherty Assocs., Inc. 1988) (1889).

[326]. Aristotle, The Politics 111 (Carnes Lord trans., Univ. of Chi. Press 1984).

[327]. United States v. Ballard, 322 U.S. 78, 95 (1944) (Jackson J., dissenting).

Comments are closed.