In 1940, in a ruling where her last name was misspelled, the USSC (8-1) upheld the requirement that young Lillian Gobitas pledge allegiance to the flag, even though it was against her religious beliefs. The one dissenter was influenced by his time hearing conscientious objector claims during WWI. He specifically was concerned on the effects -- it "operates" here against a mostly powerless minority. She herself went to a religious school and later married a fellow Jehovah Witness, one who spent time in a concentration camp (such a bland word) for not properly saluting Nazi symbols.
Though you might not know it from Justice Scalia's citation of the case in Oregon v. Smith, the USSC quickly overturned the ruling (6-3) within three years. Scalia quoted the Gobitis ruling while citing Barnette later only part of a string of cases to show that free exercise as to action alone could not trump a law not itself talking a specific religious group. Justice Jackson did highlight freedom of belief, framing the balance this way:
The main opinion did not seem to separate free exercise actions (and pledging is an act) from belief as clear as Oregon v. Smith suggested. Three justices as well as the court below also expressly partially relied on a firm free exercise argument. The court below was a particularly interesting bit of USSC vote counting, combining three justices expressly changing their mind in a separate statement, the one dissenter and another case where the Gobitis ruling was distinguished. Unlike current treatment of Baker v. Nelson, a decades old summary dismissal, this treatment of a two year old case was somewhat dubious. The opinion noted:
The ultimate Barnette ruling was decided after many attacks on Jehovah Witnesses and our entering WWII plus more concerns over how we stood vis-a-vis the Nazis regarding freedom of conscience and other matters (see, e.g., the Skinner case regarding sterilization of certain classes of people). Such events did not change Justice Frankfurter's mind as to the Barnette case (this makes him accepting striking down the provision in Skinner of special note), even though as he emotionally noted in his dissent one might think he could particularly relate to the religious minority here and decide otherwise. Again, these things are judgment calls, with some dissent.
An obituary provides a chance to remember the personal stories behind such overall debates. The twelve year old that is fairly popular in school, but has to leave because she believes the wrong thing. The child who is questioning of his or her sexuality and is teased or worse. The person who desires to be a notary but cannot without violating his conscience because of a test oath. And, any number of other scenarios. The people deal with the issue, but as it is addressed, they also continue living. Hopefully, long and happy lives, which seems to be the case here.
A word more on the freedom of conscience and belief. The pledge seems a pretty easy case for a range of reasons, including because a school child is involved, an act is forced upon the person (cf. an adult not being able to use peyote), the apparently trivial burdens involved in an exemption and the thin line here between belief and action. Hobby Lobby et. al. shows there are harder cases. Barnette is rightly seen as a constitutional highlight, but just how far it should be taken is another question.
It might be useful to try to put aside somewhat the "easy" cases. It is somewhat telling that the primary free exercise case one recalls where the litigants won where a "neutral"* law is involved was Wisconsin v. Yoder, the Amish school case. There might be something to viewing this as a bit of a "hybrid," of a piece with Meyer and Pierce, other cases involving parental discretion over childhood educational choices. When children are involved, it is seen as particularly sensitive for Establishment Clause purposes. Discretion over religious education is important generally speaking.
Note also that the pledge is labeled a sort of "ceremony" -- this too opens up a special situation. The concurring justices noted the connection to forbid test oaths -- a major controversy in colonial days and in England before there even were colonies was the need to say certain oaths that clashed with some people's conscientious beliefs. This was also an issue back in Roman times, when Christians could not conscientiously swear pagan oaths in honor of the emperor. There too patriotism was cited.
It's somewhat tangential to the immediate problem, but "acts" with a "ceremonial" character also provide perhaps an "easier" free exercise problem. For instance, a marriage ceremony -- I have repeatedly noted that I believe that it is partially a free exercise problem if you do not allow ULC or other "Internet ministers" to preside over weddings while allowing other clergy members. We are talking here about a special ceremonial act with religious significance where -- going back to the quote from the USSC -- the act is much more private in nature than public. Marriage is a personal right, if one with obvious public significance.
In this fashion, Scalia's "hybrid" rights in Oregon v. Smith need not merely be seen as a makeweight way to deal with troublesome precedent, which very well might be how he saw it, but a sensible Breyer-esque balancing. Freedom of religion involves both belief and action. The latter cannot be absolute, but does exist -- however tricky the line drawing might be.
[ETA: The peyote "ceremony" at issue in Oregon v. Smith is a tricky business. It is a step beyond a marriage ceremony which is a form of religious speech & association, but does have a personal sacramental character. Justice Souter noted that hybrids were involved here too. He also has something to say about de facto neutrality. If that is going to be the test, to me it needs to be applied stronger than implied by Smith -- Gobitis' dissent concern for what is done in "operation" comes to mind.
The attempt in a later case to distinguish the case as one dealing with "outward physical acts" when it involved a religious ceremony that seems pretty internal is also somewhat dubious. Sexual acts would be another case where physical actions are an important part of association and related liberties. The fact drug counselors were involved does seem a reasonable way to narrowly rule there. The drug trade and the effects on others of drugs also is a way to differentiate. Still, at least policy-wise, the peyote exemption etc. is a reasonable way to protect religious exercise here.]
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* Just how "neutral" a law might be, especially when it is the product of assumed norms, is complicated. Still, the term has some value, even if unintended bias or de facto non-neutrality can be shown. Some sorts of legal or other realism find neutrality a fiction, but that is overcompensating.
Though you might not know it from Justice Scalia's citation of the case in Oregon v. Smith, the USSC quickly overturned the ruling (6-3) within three years. Scalia quoted the Gobitis ruling while citing Barnette later only part of a string of cases to show that free exercise as to action alone could not trump a law not itself talking a specific religious group. Justice Jackson did highlight freedom of belief, framing the balance this way:
The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.I would quickly compare this non-interference with the claim, e.g., that an employer can deny coverage to an employee. But, as we know RFRA was not really about "restoration" to former doctrine, even if one might be confused by its name and think that. A forced pledge (recall this was before "under God" was in there) would be an act of coercion that seems to be a clear case (though it was not a few years earlier) of breaching "free exercise" though the claim was that this "ceremony" (telling name?) was not meant to be religious, so it wasn't a forced religious act but one of various duties that might in some fashion conflict with a religious belief. It was a legitimate and important patriotic exercise (immigrant Justice Frankfurter saw special importance in such civic exercises). Like saying "under God"?
The main opinion did not seem to separate free exercise actions (and pledging is an act) from belief as clear as Oregon v. Smith suggested. Three justices as well as the court below also expressly partially relied on a firm free exercise argument. The court below was a particularly interesting bit of USSC vote counting, combining three justices expressly changing their mind in a separate statement, the one dissenter and another case where the Gobitis ruling was distinguished. Unlike current treatment of Baker v. Nelson, a decades old summary dismissal, this treatment of a two year old case was somewhat dubious. The opinion noted:
It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.The lower court opinion, as did an earlier USSC ruling, also noted that free exercise was not mere belief:
The right of religious freedom embraces not only the right to worship God according to the dictates of one's conscience, but also the right "to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which, is not prejudicial to the public weal."Quoting an old state case that seems to provide a well cited definition of the freedom of conscience, one somewhat vague -- what does "prejudicial to the public weal" mean, for instance? A judgement call. The case cited is interesting - it involves a juror who voiced an inability for religious reasons to find a person guilty of murder if the punishment was death. The judge accepted the prosecutor's challenge for cause and the juror was excused. On appeal, this was upheld, the religious beliefs here seen as "prejudicial to the public weal." The judge cited by the Barnette court in fact dissented, arguing that the juror's beliefs wasn't prejudicial for or against the accused specifically, but only "abstract" in nature.
The ultimate Barnette ruling was decided after many attacks on Jehovah Witnesses and our entering WWII plus more concerns over how we stood vis-a-vis the Nazis regarding freedom of conscience and other matters (see, e.g., the Skinner case regarding sterilization of certain classes of people). Such events did not change Justice Frankfurter's mind as to the Barnette case (this makes him accepting striking down the provision in Skinner of special note), even though as he emotionally noted in his dissent one might think he could particularly relate to the religious minority here and decide otherwise. Again, these things are judgment calls, with some dissent.
An obituary provides a chance to remember the personal stories behind such overall debates. The twelve year old that is fairly popular in school, but has to leave because she believes the wrong thing. The child who is questioning of his or her sexuality and is teased or worse. The person who desires to be a notary but cannot without violating his conscience because of a test oath. And, any number of other scenarios. The people deal with the issue, but as it is addressed, they also continue living. Hopefully, long and happy lives, which seems to be the case here.
A word more on the freedom of conscience and belief. The pledge seems a pretty easy case for a range of reasons, including because a school child is involved, an act is forced upon the person (cf. an adult not being able to use peyote), the apparently trivial burdens involved in an exemption and the thin line here between belief and action. Hobby Lobby et. al. shows there are harder cases. Barnette is rightly seen as a constitutional highlight, but just how far it should be taken is another question.
It might be useful to try to put aside somewhat the "easy" cases. It is somewhat telling that the primary free exercise case one recalls where the litigants won where a "neutral"* law is involved was Wisconsin v. Yoder, the Amish school case. There might be something to viewing this as a bit of a "hybrid," of a piece with Meyer and Pierce, other cases involving parental discretion over childhood educational choices. When children are involved, it is seen as particularly sensitive for Establishment Clause purposes. Discretion over religious education is important generally speaking.
Note also that the pledge is labeled a sort of "ceremony" -- this too opens up a special situation. The concurring justices noted the connection to forbid test oaths -- a major controversy in colonial days and in England before there even were colonies was the need to say certain oaths that clashed with some people's conscientious beliefs. This was also an issue back in Roman times, when Christians could not conscientiously swear pagan oaths in honor of the emperor. There too patriotism was cited.
It's somewhat tangential to the immediate problem, but "acts" with a "ceremonial" character also provide perhaps an "easier" free exercise problem. For instance, a marriage ceremony -- I have repeatedly noted that I believe that it is partially a free exercise problem if you do not allow ULC or other "Internet ministers" to preside over weddings while allowing other clergy members. We are talking here about a special ceremonial act with religious significance where -- going back to the quote from the USSC -- the act is much more private in nature than public. Marriage is a personal right, if one with obvious public significance.
In this fashion, Scalia's "hybrid" rights in Oregon v. Smith need not merely be seen as a makeweight way to deal with troublesome precedent, which very well might be how he saw it, but a sensible Breyer-esque balancing. Freedom of religion involves both belief and action. The latter cannot be absolute, but does exist -- however tricky the line drawing might be.
[ETA: The peyote "ceremony" at issue in Oregon v. Smith is a tricky business. It is a step beyond a marriage ceremony which is a form of religious speech & association, but does have a personal sacramental character. Justice Souter noted that hybrids were involved here too. He also has something to say about de facto neutrality. If that is going to be the test, to me it needs to be applied stronger than implied by Smith -- Gobitis' dissent concern for what is done in "operation" comes to mind.
The attempt in a later case to distinguish the case as one dealing with "outward physical acts" when it involved a religious ceremony that seems pretty internal is also somewhat dubious. Sexual acts would be another case where physical actions are an important part of association and related liberties. The fact drug counselors were involved does seem a reasonable way to narrowly rule there. The drug trade and the effects on others of drugs also is a way to differentiate. Still, at least policy-wise, the peyote exemption etc. is a reasonable way to protect religious exercise here.]
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* Just how "neutral" a law might be, especially when it is the product of assumed norms, is complicated. Still, the term has some value, even if unintended bias or de facto non-neutrality can be shown. Some sorts of legal or other realism find neutrality a fiction, but that is overcompensating.