b"AN OPEN ACCESS CASEBOOK\nL. JOE DUNMAN\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cAN OPEN ACCESS CASEBOOK\n\nL. Joe Dunman\nAssistant Professor of Legal Studies\nMorehead State University\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cReligion in the Law: An Open Access Casebook \xc2\xa9 2021 by L. Joe Dunman\nFirst Edition - August 2021\n\nThis book is licensed under Attribution-ShareAlike 4.0 International. Any part of this publication may be copied and redistributed in any medium or format, remixed, transformed, and built\nupon for any purpose as long as appropriate credit is given, a link to this license is provided, and\nthe making of changes is indicated. No suggestion that the licensor endorses such use should be\nmade. Any copy, remix, transformation, or changes to the material must be distributed under\nthe same license as the original. No application of legal terms or technological measures to legally restrict others from doing anything the license permits is allowed.\nTo view a copy of this license, visit http://creativecommons.org/licenses/by-sa/4.0/\nNote to readers \xe2\x80\x93 Though its permissive license allows commercial re-use, this book is meant to\nbe free and you should pay no money to read it.\n\nAll photographs and other images in this textbook are used for non-profit educational purposes\nonly, with preference given to images in the public domain or with permissive licenses.\nCredit/source attribution is included wherever possible.\nCover photo of the United States Supreme Court east pediment by David King (CC BY 2.0).\nAll court decisions excerpted in this textbook are public records not subject to copyright.\n\nCover and title page text is set in\nand Sabon LT. The interior headers, headings,\nbody text, and footers are set in Sabon LT. The footnotes and image captions are set in Century\nSchoolbook.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cContents\nContents .........................................................................................v\nPreface .......................................................................................... ix\nIntroduction .................................................................................. 1\nFirst Principles ............................................................................... 7\nWatson v. Jones .........................................................................................13\nReynolds v. United States .........................................................................18\nCantwell v. Connecticut............................................................................23\nUnited States v. Ballard.............................................................................28\nUnited States v. Seeger ..............................................................................34\nAfrica v. Commonwealth..........................................................................41\n\nEstablishment .............................................................................. 49\nPart One: Open Endorsement of Religious Morality ..................................50\nUpdegraph v. Commonwealth .................................................................55\nBerea College v. Commonwealth .............................................................60\nNaim v. Naim ...........................................................................................65\nEx Parte H.H. ...........................................................................................69\nPart Two: Morality as Police Power ............................................................75\nScopes v. State ...........................................................................................84\nRoth v. United States ................................................................................90\nParis Adult Theatre I v. Slaton .................................................................98\nBarnes v. Glen Theatre ...........................................................................106\nBowers v. Hardwick ...............................................................................114\nLawrence v. Texas ...................................................................................120\nObergefell v. Hodges ..............................................................................129\nPart Three: The Establishment Clause .......................................................141\nEverson v. Board of Education ..............................................................152\nMcGowan v. Maryland ..........................................................................160\nSchool District of Abington v. Schempp ................................................171\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cvi Religion in the Law\n\nLynch v. Donnelly ...................................................................................179\nStone v. Graham .....................................................................................190\nMcCreary County v. ACLU ...................................................................194\nVan Orden v. Perry .................................................................................205\nMarsh v. Chambers .................................................................................215\nTown of Greece v. Galloway ..................................................................222\n\nFree Exercise.............................................................................. 235\nPart One: Constitutional Free Exercise ......................................................235\nMinersville School District v. Gobitis .....................................................247\nBraunfeld v. Brown .................................................................................253\nSherbert v. Verner ....................................................................................261\nWisconsin v. Yoder ..................................................................................268\nThomas v. Review Board........................................................................276\nUnited States v. Lee.................................................................................282\nEmployment Division v. Smith...............................................................285\nChurch of the Lukumi Babalu Aye v. Hialeah .......................................296\nPart One and a Half: In re COVID-19 ......................................................307\nRoman Catholic Diocese v. Cuomo .......................................................310\nSouth Bay United Pentecostal Church v. Newsom................................319\nTandon v. Newsom .................................................................................325\nPart Two: Statutory and Institutional Free Exercise ..................................329\nBurwell v. Hobby Lobby ........................................................................339\nMasterpiece Cakeshop v. Colorado Civil Rights Commission ..............354\nTrans World Airlines v. Hardison...........................................................365\nHosanna-Tabor Evangelical Lutheran Church v. EEOC......................373\nHolt v. Hobbs..........................................................................................381\nCarpenter v. Wilkinson ...........................................................................388\nRuley v. Stovall........................................................................................395\nMiller v. Davis .........................................................................................398\nPart Three: Proselytizing, Protest, and Provocation ..................................405\nState v. Chaplinsky ..................................................................................414\nChaplinsky v. New Hampshire...............................................................419\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cSnyder v. Phelps ......................................................................................421\nBible Believers v. Wayne County ............................................................429\nHeffron v. ISKCON................................................................................443\nMadsen v. Women\xe2\x80\x99s Health Center ........................................................449\nMcCullen v. Coakley...............................................................................461\n\nSpecial Problems........................................................................ 473\nPeople v. Kando ......................................................................................482\nState v. Singleton .....................................................................................497\nScott v. Scott ............................................................................................509\nGulf Oil Corp. v. Walker ........................................................................513\nLundman v. McKown.............................................................................520\nHoward v. Covenant Apostolic Church.................................................530\nKliebenstein v. Iowa Conference of the United Methodist Church .......533\n\nAcknowledgments ..................................................................... 537\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cviii Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cPreface ix\n\nPreface\nTHIS CASEBOOK IS FREE. It is free because college textbooks are a racket.1 Traditional\ntextbook publishers gouge students simply because they can. Out of concern for my\nstudents and anyone else who may want to use this casebook, and to promote the\ngeneral philosophy that all education should be free at the point of reception, I decided\nto distribute this book myself at no cost to the reader. It is thus designated as Open\nAccess and given a permissive, free culture license through Creative Commons. A\ngrowing number of educational authors and editors are producing free and/or open\naccess textbooks and I highly encourage others to do the same.\nThis casebook is about the law. I am a lawyer and I teach the law as an Assistant\nProfessor of Legal Studies at Morehead State University in Kentucky.2 Law is a source\ncivilization, a profession, an academic subject, a philosophical approach, and a tool of\npower. It touches nearly every aspect of social (and many aspects of private) life in the\nUnited States. \xe2\x80\x9cLaw is everywhere,\xe2\x80\x9d as they say.3 Being everywhere, the law demands\nto be followed, broken, practiced, contemplated, and discussed endlessly. Discussion is\nthe focus of this casebook, and I created it for special topic seminar classes and any\nsimilar settings that encourage group discussion of challenging topics. The included\ncases have been selected not just because most of them are \xe2\x80\x9clandmarks\xe2\x80\x9d of major legal\nimportance, but also because they tackle difficult \xe2\x80\x93 even impossible \xe2\x80\x93 questions with\nall the clumsy imperfection of American jurisprudence. Thus, they are all great topics\nof discussion.\nThis casebook is also about religion. It is impossible to concisely summarize the\nimportance of religion in the global human experience so I will not try to do that here.\nInstead, I will just say that I have always found religion to be fascinating, not just as a\nmortal human being with constant existential anxiety, but as a lawyer, too. People have\nreligion and people make the law; overlap is unavoidable. This overlap of religion and\nlaw creates conflict and inequality. It touches every meaningful human interest from\nthe most intimate to the most commercial. It is endlessly litigated. It is shamelessly\nexploited by the powerful. How to reach a healthy equilibrium of religion and law \xe2\x80\x93 if\nany such thing is possible \xe2\x80\x93 is a permanent, unsolvable riddle, perhaps like existence\nitself.\n\nHenry Farrell, \xe2\x80\x9cCollege Textbooks are a Racket,\xe2\x80\x9d Washington Post (October 21, 2015),\nhttps://www.washingtonpost.com/news/monkey-cage/wp/2015/10/21/college-textbooks-are-aracket/.\n2 As a lawyer, I have represented clients mostly in disputes involving employment discrimination, wage and hour laws, business contracts, and constitutional rights. I had the pleasure to serve as co-counsel for the Kentucky plaintiffs in Obergefell v. Hodges and Miller v.\nKim Davis. I have briefed and argued cases before the Sixth Circuit Court of Appeals, both\nfederal Districts of Kentucky, and all levels of Kentucky state courts. As a professor, I teach\nclasses including Torts, Law & Individual Rights, Legal Research & Writing, History of\nAmerican Law, and Employment Law. I have published law review articles on topics including employment discrimination, constitutional rights, and criminal procedure.\n3 Owen Fiss, Law Is Everywhere, 117 Yale L. J. 257 (2007).\n1\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cx Religion in the Law\n\nThis riddle is a great subject for a law school or upper-level undergraduate seminar.\nAll of the material in this book was curated, edited, and contextualized to foster among\ngood students hard thoughts and hard discussions. The cases are hard, too \xe2\x80\x93 sometimes, an answer satisfactory to everyone is impossible to find. \xe2\x80\x9cHard cases make bad\nlaw,\xe2\x80\x9d the saying goes, and there is a lot of bad law when it comes to religion. The big\nquestion though, is this: can there ever really be \xe2\x80\x9cgood law\xe2\x80\x9d on religion, and what is\nit? There may be as many answers to that question as there are people who have considered it. Is law \xe2\x80\x9cgood\xe2\x80\x9d only if it miraculously balances unrestrained free exercise with\ntotal governmental neutrality? Or, for those with more theocratic impulses, is the only\n\xe2\x80\x9cgood law\xe2\x80\x9d a legal system totally servile to the one true faith? Determining what constitutes \xe2\x80\x9cgood law,\xe2\x80\x9d like good religion, is wholly subjective and highly debatable.\nIn the contextual introductions to each section and subpart, I have tried to give the\nreader a basis for understanding how the cases came about and why I chose them for\nthis book. I have tried to minimize editorial comment. I have strong opinions about\nsome of the cases but I have kept those to myself. I have cited some scholarship where\nI think it would be helpful, but please do not mistake this as an attempt to produce a\ncomprehensive treatise on the subject of religion in the law. It is a casebook, and a short\none, all things considered. At the end of each introductory part is a short \xe2\x80\x9cfurther reading\xe2\x80\x9d list. I chose those articles because I found each of them interesting and useful to\nunderstanding the topics that precede them. Their selection is not necessarily an endorsement of each author\xe2\x80\x99s arguments, though I do agree with some of them.\nI designed this casebook specifically for my own use in a 400-level undergraduate\nseminar called Law & Society. Class sessions using this book are intended to be student-led, roundtable talks with the professor acting as discussion prompter and neutral\nmediator. Generally, two cases are assigned for each class session. I selected, edited, and\narranged the cases to complement each other thematically and chronologically to the\nbest of my ability. Many of the cases include overlapping topics and could fit into multiple categories, so I took some liberties in their arrangement. Your mileage may vary.\nThe final product seems to work for me, but there will no doubt be many future revisions.\nTeachers: I hope some of you find this book useful for your own classes. Please let\nme know if you use it. Also, I welcome any suggestions for editing or revision, and, as\nthe copyright license suggests, your relentless adoption and modification (with credit,\nplease!).\nStudents: At least it was free. \xc2\xaf\\_(\xe3\x83\x84)_/\xc2\xaf\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cIntroduction 1\n\nIntroduction\nReligion in the Law\nAMERICANS ARE A RELIGIOUS PEOPLE.1 Most believe in a god and most claim affiliation\nwith an organized religion. Though the number of non-religious people is growing, a\nlarge majority of the residents of the United States still profess some kind of faith.\nThis deep religious sentiment is evident in the United States\xe2\x80\x99 laws and legal tradition. The country\xe2\x80\x99s many legislative bodies (federal and state) are representative of a\nmajority of the people, and thus it is no surprise that American laws, created by those\nlegislative bodies, reflect majority religious views. Judges are drawn from this majority\nas well, and their decisions reflect prevailing religious sentiment (despite their good\nfaith claims of being impartial and unbiased).\nWhich religious perspectives are most prominent in America? Historically and still\ntoday, a majority of Americans identify as Christians. According to the Pew Research\nCenter, in 2019, around sixty-five percent of American adults (approximately 165 million people) claimed to be Protestant, Catholic, Mormon, Orthodox, or some other\ntype of Christian.2 Though Christian affiliation has dropped thirteen percentage points\nsince 2007, Christianity remains by far the most dominant religion in the United States.\nFar behind in number of adherents are non-Christian faiths such as Judaism (two percent), Islam (one percent), Buddhism (one percent), and Hinduism (one percent).\nChristianity is a diverse faith with many branches and denominations. Beyond a\ngeneral belief in the divinity and messianic role of Jesus Christ, the Christian faithful\nvary widely in their beliefs and practices, and fall into different categories accordingly.\nForty-seven percent of American adults identify as Protestant, dwarfing other branches\nof Christianity. Within the Protestant branch, there are further divisions between Evangelical (twenty-five percent of U.S. adults), Mainline (fifteen percent), and Historically\nBlack (six and a half percent) and then numerous denominations within those divisions, including Methodist, Episcopal, Baptist, Lutheran, Anabaptist, and Nondenominational.\nCatholics are the next largest group of Christians, totaling twenty percent of adults.\nThe remaining Christian groups are very small. Just under two percent of Americans\nare Mormons, while Orthodox Christians and Jehovah\xe2\x80\x99s Witnesses are each less than\none percent.\nBoth Protestant and Catholic affiliation have declined significantly in recent years.\nBetween 2007 and 2019, Protestant identification dropped eight percent, while five\n\nThe words \xe2\x80\x9cAmerican\xe2\x80\x9d and \xe2\x80\x9cAmericans\xe2\x80\x9d are used (for the purpose of expedience only) as\nshorthand to mean the nation and people of the United States. The more accurate \xe2\x80\x9cUnited\nStatesian\xe2\x80\x9d has not yet entered common parlance.\n2 \xe2\x80\x9cTrends in Religious Composition of U.S. Adults,\xe2\x80\x9d Pew Research Center (2019),\nhttps://www.pewforum.org/wp-content/uploads/sites/7/2019/10/Detailed-Tables-v1-FORWEB.pdf.\n1\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c2 Religion in the Law\n\npercent fewer adults identified as Catholic.3 Notably, the decline in Protestants and\nCatholics has not accompanied a corresponding growth in other religions. The difference has mostly gone to the \xe2\x80\x9cnones,\xe2\x80\x9d those Americans who claim no religious affiliation at all, which is the fastest growing religious category in the United States (twentysix percent in 2019, up ten points since 2007).4\nDespite the steady increase of religious\nnon-affiliated adults in the United States,\nbelief in a god remains overwhelmingly\npopular. According to Pew\xe2\x80\x99s Religious\nLandscape Study of 2014, eighty-three percent of U.S. adults claim to be \xe2\x80\x9cabsolutely\ncertain\xe2\x80\x9d or \xe2\x80\x9cfairly certain\xe2\x80\x9d that a god exists.5 If you expand this category to include\nthose who believe in a god but are \xe2\x80\x9cnot\ntoo\xe2\x80\x9d or \xe2\x80\x9cnot at all\xe2\x80\x9d certain, just shy of\nninety percent of Americans profess some\nkind of belief in a supreme being. Interestingly, these believers include nearly half of\nthose who claim to have no religious affiliation. Only nine percent of Americans say\nthey do not believe in a god at all, and even\nsome atheists still claim to have a religious\naffiliation.6\nSuch is the contemporary religious\nlandscape of the United States \xe2\x80\x93 still very religious, but with a significant and increasing share claiming no affiliation or no belief\nat all.\nAmerican government, ostensibly representative of the people, is very different.\nCongress, for example, is consistently far\n\n\xe2\x80\x9cIn U.S., Decline of Christianity Continues at Rapid Pace,\xe2\x80\x9d Pew Research Center (October\n17, 2019)\n4 A different survey of religion in America, the 2020 Census of American Religion, conducted by the Public Religion Research Institute, suggests that the \xe2\x80\x9cnone\xe2\x80\x9d category has lost\na little bit of ground between 2018 and 2020, but nevertheless still totals around 23%. Jack\nJenkins, \xe2\x80\x9cSurvey: White Mainline Protestants Outnumber White Evangelicals, While\n\xe2\x80\x98Nones\xe2\x80\x99 Shrink,\xe2\x80\x9d Religion News Service (July 8, 2021), https://religionnews.com/2021/07/08/survey-white-mainline-protestants-outnumber-white-evangelicals/.\n5 \xe2\x80\x9cBelief in God,\xe2\x80\x9d Religious Landscape Study, Pew Research Center (2014),\nhttps://www.pewforum.org/religious-landscape-study/belief-in-god/.\n6 Atheism is not limited to religious \xe2\x80\x9cnones,\xe2\x80\x9d of whom only about a third are outright atheists. According to Pew, twenty-seven percent of Buddhists, ten percent of Hindus, and seventeen percent of Jews do not believe in any god, illustrating that religious affiliation sometimes reflects an ethnic identity more than a system of belief. See, https://www.pewforum.org/religious-landscape-study/belief-in-god/.\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cIntroduction 3\n\nmore religious, and specifically more Christian, than are most Americans. In 2021,\nnearly ninety percent of Senators and Representatives claimed to be Christians, compared to sixty-five percent of U.S. adults.7 Fifty-five percent of Congress was Protestant\nand thirty percent was Catholic, which was ten or more percentage points higher in\neach category than the country as a whole. Meanwhile, only one member of the 117th\nCongress claimed no religious affiliation, compared to twenty-six percent of Americans. This near-total dominance of Christianity in Congress has remained unchanged\nfor years. According to Pew, there were 295 Protestants in the 111th Congress (20092010), compared to 294 in the 117th (2021-2022). During that same time span, the\npercent of Protestant Americans overall has dropped more than ten points.\nThis is all just in recent history. Christians \xe2\x80\x93 primarily Protestants \xe2\x80\x93 have dominated\nall branches of federal government since its founding. Nearly every U.S. President has\nidentified as Protestant Christian, with less than a handful of exceptions (two Catholics, a deist, and Abraham Lincoln, who never specified).8 Nearly every U.S. Supreme\nCourt justice has identified as Christian, and the vast majority has been Protestant. The\nfirst Catholic, Roger Taney, did not join the Court until 1836, and he was the only\nCatholic justice in the first century of the Court\xe2\x80\x99s history. The second, Edward White,\nwas not appointed until 1894. More recently, the number of Catholics on the Court\nhas increased, with six members appointed just since 2005, and Catholics have held a\nmajority of the nine seats since 2006. But, overall, just fifteen of 115 total justices have\nbeen Catholic. The first Jewish justice, Louis Brandeis, was not appointed until 1916.\nIn more than a century since then, only seven others have served. No persons of other\nreligious affiliations and no atheists have ever been appointed to the Supreme Court.\nDespite the Christian dominance of American government, the United States is not\na theocracy, and its underlying legal foundation is explicitly secular. The United States\nConstitution contains no reference to a god and does not include any religious doctrine\nor statements of belief. Its few provisions that do refer to religion create a national\npolicy of religious freedom and neutrality. The first sentence of the First Amendment\ndeclares, \xe2\x80\x9cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d Article VI says, \xe2\x80\x9c[N]o religious test shall ever be\nrequired as a qualification to any office or public trust under the United States.\xe2\x80\x9d\nNevertheless, Christianity has had an undeniable influence, explicitly and implicitly, on American law. Since 1789, very many statutes enacted by Congress and state\nlegislatures, and many of the opinions issued by federal and state judges, reflect \xe2\x80\x93 if not\nopenly endorse \xe2\x80\x93 Christian doctrine. American courts have consistently interpreted the\n\xe2\x80\x9cpolice power\xe2\x80\x9d of the state to include the power to legislate Christian morality in the\nform of bans on blasphemy, prostitution, gambling, working on Sundays, same-sex\nrelationships, alcohol distribution, interracial and gay marriage, abortion, as well as\nmandates like school prayer and the posting of the Ten Commandments in public\nbuildings. Historically, much of this morality-based legislation has resisted subsequent\n\xe2\x80\x9cFaith on the Hill: The Religious Composition of the 117th Congress,\xe2\x80\x9d Pew Research Center (January 4, 2021), https://www.pewforum.org/2021/01/04/faith-on-the-hill-2021/.\n8 \xe2\x80\x9cBiden is Only the Second Catholic President, but Nearly All Have Been Christians,\xe2\x80\x9d Pew\nResearch Center (January 20, 2021), https://www.pewresearch.org/facttank/2021/01/20/biden-only-second-catholic-president-but-nearly-all-have-been-christians2/.\n7\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c4 Religion in the Law\n\nconstitutional challenge, with statutes upheld by judges who sometimes openly endorsed its religious origins.\nOver time, however, the overt legal dominance of Christianity has waned. Legislatures, slowly but surely, have started to diversify. Courts have too, and jurisprudential\ntrends have steered away from esoteric, biblical, and natural law theories. From the\nU.S. Supreme Court to state trial courts, judges more often attempt to strike a balance\nbetween the religious impulses of democracy and the secular limitations imposed by\nconstitutions and anti-discrimination statutes. American judges today rarely invoke religious tenets as authority in their opinions, and examine morality-based legislation\nwith more scrutiny than in the past.\nThere is, nevertheless, persistent tension in American law between the sacred and\nprofane. Using introductory explanations and case excerpts, this textbook explores\nhow judges have both increased and decreased this tension as they have weighed the\ncompeting interests of the government, believers, and non-believers. The goal of this\ntext is to foster thought and discussion about the proper role of religion (if any) in the\nlaw of a diverse, democratic society, and about the proper limits (if any) on individual\nreligious freedom.\nAs you read the cases excerpted here, consider these larger questions. Is government required, in order to maintain a democracy responsive to the will of a religious\nmajority, to incorporate popular religious belief into its law? If so, is it possible also to\nprotect minority believers and non-believers from religious imposition, compulsion, or\npersecution? If not possible, should government therefore, regardless of popular religious sentiment, be totally secularized \xe2\x80\x93 stripped entirely of religion in order to avoid\nany risk of \xe2\x80\x9cestablishment\xe2\x80\x9d or infringement of free exercise? Finally, consider whether\na religion-free government, if desirable, is even truly possible in a democracy of religious people.\nThis textbook is divided into five sections, the first of which is this Introduction.\nThe next section, First Principles, tackles the basics, such as how courts define religious\nbelief and exercise, and how they limit their own power to adjudicate crimes and conflicts involving religion. The third section, Establishment, turns to questions of principle, policy, and pronouncement in government action and legal interpretation that are\ninspired or motivated by religious doctrine. The fourth section, Free Exercise, focuses\non conflicts between believers\xe2\x80\x99 interests in religious liberty and the state\xe2\x80\x99s interests in\nmaintaining order and achieving legislative policy goals. The fifth and final section,\nSpecial Problems, explores religious issues that arise in other areas such as criminal law,\nestate law, and torts. Each section will begin with introductory text. The text will set\nthe stage for the case excerpts that follow. The cases come mostly from the U.S. Supreme Court but also from federal appellate and trial courts and state courts as well.\nRelevant concurring and dissenting opinions are included with each case excerpt (if\nthey exist).\nTips for Reading Cases\nAmerican judicial opinions have a customary style. There are several key components to this style, and they usually appear in the same order in each opinion. First, a\ncourt typically introduces the facts of the case and the procedural history. The facts are\nwho, what, when, where, and how. The facts are what happened before the parties got\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cIntroduction 5\n\nto court. The procedural history is what happened after the parties got to court. If the\nopinion comes from a supreme court, this section of a judicial opinion will typically\ntrace the initial complaint or indictment, the result at the trial court, and then the result\nat the intermediate appellate court. There will be less procedural history, however, if\nthe opinion comes from a court lower in the hierarchy. The facts and procedural history\nare important \xe2\x80\x93 do not skip them. This is where the opinion will describe the competing\ninterests at stake and the remedies sought by the parties. Many casebooks cut out the\nprocedural history but therein lies the meat of law practice. There is much strategy\ninvolved in making certain claims and seeking certain remedies, and much can be\nlearned from the mistakes and victories of others.\nWithin the procedural history or immediately after, the court will usually state the\nlegal issue to be resolved. The issue is usually framed as a question or a \xe2\x80\x9cwhether\xe2\x80\x9d\nstatement. For example, the Supreme Court in Snyder v. Phelps phrased the issue as\n\xe2\x80\x9cWhether the First Amendment prohibits holding Westboro [Baptist Church] liable for\nits speech.\xe2\x80\x9d Alternatively, the Court could have stated the issue as a question, such as,\n\xe2\x80\x9cDoes the First Amendment prohibit holding Westboro liable for its speech?\xe2\x80\x9d No matter how judges phrase it, though, the issue is the ultimate legal dispute the court is\ntrying to resolve.\nNext, courts generally cite the rules they will apply to the facts in order to reach\nthe holding. The rules can come from a variety of sources, but the four most common\nsources of rules in American law are constitutions, statutes, regulations, and past judicial decisions (called precedent). Pay very close attention to rules. Judges exercise a\nsignificant amount of discretion in how they select, frame, and apply the rules. Here\njudges make choices, and those choices can drastically change the outcome of a case\nor the persuasiveness of the reasoning. They can also provide a window into the motivations, thinking, and values of each judge.\nNext, courts will apply the rules to the facts. They will identify certain events as\nkey. They will distinguish occurrences that are irrelevant to the issue. Often judges will\nexplain their reasoning at length, showing the reader through examples or analogies\nwhy their conclusion is correct. That conclusion is the holding, and judges usually state\nit at the end of an opinion (though some judges sprinkle it throughout their opinions).\nThe holding settles the legal issue \xe2\x80\x93 it answers the ultimate question in the case. In\nSnyder v. Phelps, the answer was yes, the First Amendment did relieve Westboro Baptist of liability for protesting a soldier\xe2\x80\x99s funeral.\nAs you read each case, look for each of these components, and think critically\nabout them. Did the court omit or downplay facts that seem important? Could the\nplaintiff have made different or additional claims? Did the court fully and accurately\nstate the applicable rules? Did it fairly apply the rules to the facts? Were there other\nplausible holdings the court could have reached? If so, why did the court prefer the\noutcome it chose?\nDo not presume that any judge or any panel of judges is \xe2\x80\x9ccorrect,\xe2\x80\x9d even if you\nagree with a court\xe2\x80\x99s reasoning or holding. Essentially, any conclusion a court reaches is\nautomatically \xe2\x80\x9ccorrect,\xe2\x80\x9d because that conclusion becomes the law. Legal correctness is\nbetter understood as a question of institutional power, not as a question of sound reasoning or accurate interpretation. For most appellate courts, where panels of judges\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c6 Religion in the Law\n\ndecide cases, correctness is also a question of consensus \xe2\x80\x93 both internal and external \xe2\x80\x93\nregardless of what \xe2\x80\x9cthe law\xe2\x80\x9d at issue actually says.\nConsider for example the Fourteenth Amendment. The equal protection clause of\nthat Amendment says, \xe2\x80\x9cNo state shall \xe2\x80\xa6 deny to any person within its jurisdiction the\nequal protection of the laws.\xe2\x80\x9d In 1896, the U.S. Supreme Court held that the equality\ndemanded by this clause was limited to political participation, and thus states were free\nto pass laws socially segregating Black people away from white people in public spaces\nand places of public accommodation.9 At the time, only one justice out of eight disagreed. Then, in 1954, nine different members of the Court unanimously said, no, actually, the equal protection clause prohibits states from segregating Black people away\nfrom white people, even in non-political settings.10 Not a single word in the clause\nchanged in the interim between those rulings. Society changed, and, more importantly,\nthe composition of the Court changed, and thus so did the law.\nInstead of assuming correctness, question everything: the court\xe2\x80\x99s assumptions, its\npremises, its references to precedent, its use of non-legal authorities, its logic, its policy\nconsiderations, its interpretative tricks, and its word choice. Consider which side won\nand which side lost, and thus who the law benefits and who it does not. Consider the\nimplications of each holding, and ask how the world would be different if the court\nhad gone the other way. Consider each case in its historical context. Consider each\njudge in their social context. A question you should often ask is, \xe2\x80\x9cif this case was decided in a different decade, or by a different judge, or involved slightly different parties,\nwould the result have been different, even if the language of the law was the same?\xe2\x80\x9d\nThen consider why.\n\n9\n\nPlessy v. Ferguson, 163 U.S. 537 (1896).\nBrown v. Board of Education I, 347 U.S. 483 (1954).\n\n10\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 7\n\nFirst Principles\nDeference, Delineation, and Definition\nWHAT IS RELIGION? What is its place in our federalist, representative, democratic, ostensibly secular system? How much power do federal and state governments, textually\nlimited by the religion clauses of the U.S. Constitution, have to regulate religious belief\nor conduct on the one hand, or to promote religious ideas and moral codes on the\nother? How should American courts, as government actors, adjudicate religion-involved disputes? Where, if anywhere, does secular jurisdiction end and divine justice\nbegin?\nThese questions are the subject of this section. Over the past 150 years, American\ncourts have tackled each in a variety of ways, to a variety of results. The methods judges\nhave used have evolved over time, while the country, the courts, the legislatures, and\nthe general population have diversified religiously, racially, and ethnically. Their rulings\nhave evolved as well.\nTo put this evolution in context, this section presents several key landmark cases\nin chronological order. This scatters the topics a bit, but the arrangement is useful to\nunderstand how the passing of time has changed the way judges have thought about\nand ruled on religious questions. The cases presented are also notable for their staying\npower \xe2\x80\x93 none of them has been formally overruled, even though some of their holdings\nmay no longer be firmly in line with popular sentiment. Together, these cases establish\nsome basic first principles that American courts have generally followed for many decades. The cases together will help us answer some of the questions posed in the first\nparagraph of this section.\n\nJurisdiction and Regulation: Watson v. Jones and Reynolds v. U.S.\nPeople fight over things. Sometimes they fight over control of a church. Such a\nfight occurred near the end of the Civil War between members of a Presbyterian congregation in Louisville, Kentucky. On one side were members who opposed slavery,\nand on the other side were members who supported it. A bitter struggle over church\ngovernance ensued, with the pro-slavery faction dissolving their bond with national\nchurch governance and physically seizing control of the local church building. Fierce\nlitigation followed, in both state and federal court. Eventually, one of the suits landed\nbefore the U.S. Supreme Court in a case called Watson v. Jones. As tricky as the fight\nover the church was the question of jurisdiction: did federal courts even have the power\nto resolve fights among church members, or was this a dispute outside the realm of\nsecular adjudication? In Watson, the Supreme Court concluded that, under the common law doctrine sometimes called \xe2\x80\x9cecclesiastical abstention,\xe2\x80\x9d government courts are\npowerless to decide questions of religious doctrine and membership and must defer\ninstead to internal church decision-making. Though Watson never mentioned the First\nAmendment (the Court had not yet incorporated the First Amendment through the\nFourteenth Amendment to apply to the states), this abstention doctrine would later\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c8 Religion in the Law\n\nbecome a fundamental principle of constitutional law, now also referred to as the \xe2\x80\x9creligious question doctrine.\xe2\x80\x9d\nShortly after Watson, a new problem arose: free exercise. Internal religious disputes\nare one thing, but what happens when religious doctrine runs headlong into secular\nlaw? Must the courts carve exceptions or create accommodations for religious adherents whose beliefs or practices conflict with legislative will?\n\nGeorge Reynolds\n- Hathi Trust\n\nIn the mid-1800s, members of the Church of Jesus\nChrist of Latter-day Saints (also known as the Mormons)\nmigrated to the Territory of Utah. Under the leadership of\nBrigham Young, the Mormons established their own theocratic government over significant portions of the land, despite the federal government\xe2\x80\x99s claim to it. Within this insular religious society, polygamy was common. Mormon men\nregularly married multiple women. However, most mainline Protestants and Catholics opposed this practice (also\nknown as bigamy or plural marriage) and Congress outlawed it in the Morill Anti-Bigamy Act of 1862. Near the\nend of Young\xe2\x80\x99s life, the federal government seized control\nof Utah from the Mormons and began enforcing the law.\n\nIn 1874, a Mormon elder named George Reynolds volunteered to test the constitutionality of the anti-bigamy law. He turned himself in to federal agents, admitted he\nwas married to multiple women, and stood trial. A jury convicted him and sentenced\nhim to years of hard labor. On appeal to the U.S. Supreme Court, Reynolds argued\nthat the First Amendment\xe2\x80\x99s free exercise clause protected his marriage practices. Unfortunately for Reynolds, the Supreme Court rejected his argument. Drawing a clear\nline between belief and behavior, the Court concluded that the government, within its\nrobust \xe2\x80\x9cpolice power,\xe2\x80\x9d could ban religious actions that threatened the health, welfare,\nand morals of the country. Reynolds was free to believe that God endorsed bigamy,\nbut he was not free to engage in the practice if Congress had chosen to ban it.\nSince then, the Supreme Court has expanded the concept of free exercise beyond\nreligious belief to include some behavior, has increased the level of scrutiny it applies\nto religious freedom claims, and has declared marriage to be a \xe2\x80\x9cfundamental right,\xe2\x80\x9d\nstriking down interracial marriage bans in 1967 and gay marriage bans in 2015.1 All\nof this has cast a shadow over Reynolds, but so far, the case has never been overruled.\n\nIncorporation and Sincerity: Cantwell v. Connecticut and U.S. v. Ballard\nThis distinction between religious belief and action would become a major issue\nagain in the 1930s and 1940s as minority religious groups began to proliferate and\nproselytize. In the east, the Christian fundamentalist Jehovah\xe2\x80\x99s Witnesses engaged in\nincreasingly confrontational public outreach and civil disobedience. Meanwhile in the\nwest and midwest, Guy and Edna Ballard established the I AM Movement, an esoteric\nbelief system centered on reincarnated historical figures known as Ascended Masters.\n\n1\n\nSee Loving v. Virginia, 388 U.S. 1 (1967); and Obergefell v. Hodges, 576 U.S. 644 (2015).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 9\n\nBoth groups soon found themselves in trouble with the law, and, before long, standing\nbefore the U.S. Supreme Court.2\nIn the late 1930s, several members of the Cantwell family walked the streets of\nNew Haven, Connecticut distributing literature produced by the Jehovah\xe2\x80\x99s Witnesses.\nThere were two problems. First, they failed to get a license from the city government\nto distribute religious material. Second, two local Catholics responded aggressively to\nthe playing of a record called \xe2\x80\x9cEnemies,\xe2\x80\x9d an anti-Catholic lecture by Witness leader\nJudge J.F. Rutherford. Just before a brawl ensued, police arrested the Cantwells for not\nhaving a license and breach of the peace. They raised constitutional defenses to both\ncharges, arguing that the First Amendment protected their peaceful proselytizing and\nthat the state could not condition their conduct upon the paying of a fee. In Cantwell\nv. Connecticut, the Court agreed with them on both counts, and in so doing, imposed\nthe First Amendment\xe2\x80\x99s free exercise clause upon the states for the first time. The ruling\nalso reinforced fundamental rules about the limits of state power and the contours of\nreligious freedom.\nIn the early 1930s, Guy Ballard founded the theosophical I AM Movement, a religious order dedicated to the teachings of the supernatural, reincarnated Ascended Masters led by Saint Germain. Guy died in 1939, when\nI AM had as many as one million followers. Two\nyears later, federal agents arrested his wife Edna\nand their son Donald for mail fraud. The government accused them of misrepresenting their religious experiences and healing powers in order to\nsolicit donations. At trial, a federal judge instructed\nthe jury to question only the Ballard\xe2\x80\x99s sincerity of\nbelief, not the truth of the beliefs themselves, when\nEdna and Guy Ballard\nassessing their guilt; the jury could only find them\n- Getty Images\nguilty of fraud if they were knowingly insincere.\nSincere as they may have been, the jury nevertheless convicted them on all counts.\nOn appeal, the Ninth Circuit reversed, saying the judge improperly limited the jury.\nThey should have been allowed to question the Ballard\xe2\x80\x99s actual beliefs as well as their\nsincerity. The Supreme Court disagreed and reversed the Ninth Circuit, ruling in United\nStates v. Ballard that no jury could ever consider the truth of a person\xe2\x80\x99s religious beliefs,\nonly the sincerity. Justice William Douglas\xe2\x80\x99s majority opinion enshrined important distinctions between belief and action and strictly limited the extent of judicial inquiry\ninto questions of faith. Nearly a decade later, Douglas would extrapolate this principle\nin Fowler v. State of Rhode Island, writing for the Court \xe2\x80\x9cit is no business of courts to\n\nBetween 1938 and 1955, the Supreme Court heard twenty cases involving the religious\npractices and protests of the Jehovah\xe2\x80\x99s Witnesses. See First Amendment Encyclopedia Case\nCategories: Jehovah\xe2\x80\x99s Witnesses and Free Speech, The Free Speech Center at Middle Tennessee State University, https://www.mtsu.edu/first-amendment/encyclopedia/case/60/jehovah-s-witnesses-and-free-speech.\n2\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c10 Religion in the Law\n\nsay what is a religious practice or activity for one group is not religion under the protection of the First Amendment.\xe2\x80\x9d3\n\nIncreasing Diversity: U.S. v. Seeger and Africa v. Commonwealth\nThe 1940s and 1950s were conservative decades in the United States, and the government promoted Christianity as a foil to the communism of the rival Soviet Union.\nMembership in mainline Protestant and Catholic churches remained strong, with adult\nchurch membership (not mere religious belief) hovering consistently above seventy percent.4 By the 1960s and 1970s, however, so-called \xe2\x80\x9cNew Age\xe2\x80\x9d faiths and philosophies\nbegan to proliferate, immigrant communities grew, and many Americans converted to\nminority religions or developed their own personal conceptions of spirituality.\nAn increasing number of Americans who considered themselves \xe2\x80\x9creligious\xe2\x80\x9d were\nno longer members of organized churches or adherents to traditional faiths, and some\nof them received pushback from government actors and institutions unwilling to accept\nreligious diversity. As conflicts arose, courts had to reconsider what qualifies as \xe2\x80\x9creligion\xe2\x80\x9d for constitutional and statutory purposes.\nThe Constitution does not define \xe2\x80\x9creligion,\xe2\x80\x9d and the Supreme Court has not conclusively defined the term, either. In practice, the Supreme Court generally assumes that\nthe beliefs espoused by claimants are religious before moving on to other questions.\nLike former Justice Potter Stewart once said in a very different context, the Court just\nseems to \xe2\x80\x9cknow it when [they] see it.\xe2\x80\x9d5 Lower federal and state courts do not always\ngive so much deference, however, as one excerpt below will illustrate.\nLegislative acts also use \xe2\x80\x93 but do not fully define \xe2\x80\x93 the term \xe2\x80\x9creligion,\xe2\x80\x9d which creates interpretive problems for the courts. Such was the case in United States v. Seeger,\nwhen several people applied for \xe2\x80\x9cconscientious objector\xe2\x80\x9d exemptions to military service. The Universal Military Training and Service Act, now known as the Military Selective Service Act, granted exemptions from service for\nthose whose religious beliefs prohibited them from participating in war. Daniel Seeger (a nontheistic Quaker)\nand others with similar beliefs sought exemptions, but\ntheir beliefs did not include a supreme being in the traditional or orthodox sense of the term, as the text of the\nstatute seemed to require. For that reason, the military\ndenied or limited their exemptions. The Supreme Court\nruled in Seeger\xe2\x80\x99s favor, however, adopting a nuanced and\ninclusive understanding of religious belief that favored diversity. A person could hold religious beliefs without recDaniel Seeger\nognizing a Supreme Being, the Court concluded.\n- American Friends Service\nCommittee\n345 U.S. 67, 70 (1953) (\xe2\x80\x9cNor Is it in the competence of courts under our constitutional\nscheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings.\xe2\x80\x9d)\n4 Jeffrey M. Jones, \xe2\x80\x9cU.S. Church Membership Down Sharply in Past Two Decades,\xe2\x80\x9d Gallup\n(April 18, 2019), https://news.gallup.com/poll/248837/church-membership-down-sharplypast-two-decades.aspx.\n5 Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, concurring) (describing\n\xe2\x80\x9chardcore pornography\xe2\x80\x9d).\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 11\n\nSeeger was not a First Amendment case, and it did not define \xe2\x80\x9creligion\xe2\x80\x9d for constitutional purposes. Yet state and federal courts still face a regular flow of accommodation claims from parties of many different faiths, traditions, and creeds, and still have\nto determine which fall under the First Amendment umbrella and which do not. To fill\nthe interpretative gap left by the Supreme Court, the federal Circuit Courts of Appeals\nhave created and applied their own religious tests.\nA good illustration comes from Africa v. Commonwealth. Frank Africa, a member of the Philadelphia-based Black radical organization MOVE, was sentenced to\nstate prison in the early 1980s. For\nyears, he and fellow MOVE activists\nhad been in constant conflict with local\npolice. When Frank was convicted, nine\nother members of the group were already serving extensive terms after a police officer was shot from behind while\ntrying to raid their shared residence.\nAs part of their revolutionary ideology, Frank and other members of\nMOVE ate only raw, uncooked food. Members of MOVE, 1978\n- Getty Images\nThe first jail in which he was held accommodated his dietary needs, but the prison to which he was being transferred refused. Frank sued for an injunction under the First Amendment. He argued that his\nmembership in MOVE compelled him to adopt a raw food diet, and their beliefs functioned as a religion in his life. To determine whether he was constitutionally entitled to\nan accommodation, the Third Circuit Court of Appeals applied a three-part test, probing the \xe2\x80\x9cfundamental and ultimate questions,\xe2\x80\x9d \xe2\x80\x9ccomprehensiveness,\xe2\x80\x9d and \xe2\x80\x9cstructural\ncharacteristics\xe2\x80\x9d of Frank\xe2\x80\x99s ideology. Quoting Frank\xe2\x80\x99s own descriptions of his beliefs,\nthe Third Circuit concluded that they were not sufficiently religious to earn constitutional protection, and rejected his claim.6\nAs you read this section and the rest of the cases in this textbook, note how the\npassage of time has changed the way judges, especially justices of the Supreme Court,\ndiscuss religion. Would the Seeger Supreme Court of 1965 have ruled the same way in\nReynolds as the Supreme Court of 1878? Would the justices who decided Reynolds\nhave ruled the same way as their counterparts did in Ballard nearly seventy years later?\nFrank Africa survived his sentence (despite the lack of dietary accommodation) only to be\nkilled in 1985 at the age of 26 when Philadelphia police dropped a bomb from a helicopter\nonto the roof of a rowhouse he shared with other members of MOVE. The bombing and subsequent fire were part of a daylong siege in which police killed Frank, five other adults, and\nfive children. The fire caused by the bomb ultimately destroyed sixty other homes in the\nneighborhood. See Oona Goodin-Smith, \xe2\x80\x9cOn the Anniversary of MOVE Bombing, Fresh Pain\nand Calls for Accountability on Osage Avenue,\xe2\x80\x9d Philadelphia Inquirer (May 13, 2021),\nhttps://www.inquirer.com/news/philadelphia/move-bombing-philadelphia-anniversarymarch-20210513.html. See also Lindsey Norward, \xe2\x80\x9cThe Day Philadelphia Bombed its Own\nPeople,\xe2\x80\x9d\nVox.com\n(August\n15,\n2019),\nhttps://www.vox.com/the-highlight/2019/8/8/20747198/philadelphia-bombing-1985-move.\n6\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c12 Religion in the Law\n\nThe actual text of the First Amendment has not changed at all since 1789, but the\nSupreme Court has interpreted it in very different ways over the years. How have different trends in interpretive methods made this possible?\nAlso, be sure to consider the role of power. Which people are creating law in the\nUnited States throughout its history? Who typically serves as a member of Congress or\na state legislature, or as President, or as a judge? Are they Mormons like George Reynolds, Quakers like Daniel Seeger, or MOVE adherents like Frank Africa? If most members of Congress were members of a non-theistic or polytheistic religion, would the\nconscientious objector clause of the Universal Military Service and Training Act look\ndifferent? Finally, consider the cumulative effect of power over more than two centuries. How has the uninterrupted, near-total dominance of one religion in the halls of\nAmerican government shaped the country\xe2\x80\x99s laws over time?\nFURTHER READING\nMichael Helfand, Litigating Religion, 93 B. U. L. Rev. 493 (2013).\nCourtney Miller, \xe2\x80\x98Spiritual But Not Religious\xe2\x80\x99: Rethinking the Legal Definition of Religion, 102 Va. L. Rev. 833 (2016).\nStephen Senn, The Prosecution of Religious Fraud, 17 Fla. St. U. L. Rev. 325 (1990).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 13\n\n80 U.S. 679\nSupreme Court of the United States\n\nWatson v. Jones\nApril 15, 1872\n[During the Civil War, the Presbyterian Church of the United States formally declared\nits opposition to slavery and the Confederacy and ordered all member churches to\ncomply with its decrees. The Presbytery of Louisville refused to obey. Subsequently,\nthe members of the Walnut Street Presbyterian Church in Louisville, Kentucky divided among Unionists and Confederates. Most members supported the national\nchurch\xe2\x80\x99s anti-slavery position while a minority supported the local Presbytery\xe2\x80\x99s proslavery position. Despite being outnumbered, the pro-slavery group, led by Watson,\ntried to exclude the anti-slavery group, led by Avery, from church governance.\nAvery and his allies sued in the Louisville Chancery (trial) Court, which ruled that\nWatson\xe2\x80\x99s faction had to allow Avery\xe2\x80\x99s faction to participate in governance. In protest,\nWatson and his pro-slavery crew essentially shut down the church. The Chancery\nCourt then took control of the church through its marshal, ordering the church to\nstay open for services, and ruled that both sides must govern the church together.\nFurther escalating tensions, Watson\xe2\x80\x99s faction then split from the national organization\nunder the new banner of the \xe2\x80\x9cPresbyterian Church of the Confederate States\xe2\x80\x9d and\nappealed the Chancery Court\xe2\x80\x99s decrees to the Kentucky Court of Appeals. In the case\nof Watson v. Avery, the Court of Appeals reversed the Chancery Court on relatively\ntechnical grounds, but essentially came to the same conclusion: everyone needed to\nplay nice and run the church together.\nMEANWHILE, another group of anti-slavery church members, led by Jones, sued\nWatson and his faction in the federal Circuit Court for the District of Kentucky. Jones\nsought an order from the federal court preventing Watson and his allies from further\nefforts to wrest control of the church from the Presbyterian Church of the United\nStates and Avery\xe2\x80\x99s anti-slavery faction. The federal court ruled that the national antislavery organization had rightful claim to the church and enjoined Watson and others\nfrom interfering in any way. Watson then appealed to the United States Supreme\nCourt.]\nMr. Justice MILLER delivered the opinion of the court.\nThis case belongs to a class, happily rare in our courts, in which one of the parties to a\ncontroversy, essentially ecclesiastical, resorts to the judicial tribunals of the State for the maintenance of rights which the church has refused to acknowledge, or found itself unable to protect\xe2\x80\xa6.\nReligious organizations come before us in the same attitude as other voluntary associations\nfor benevolent or charitable purposes, and their rights of property, or of contract, are equally\nunder the protection of the law, and the actions of their members subject to its restraints\xe2\x80\xa6.\nIt is the case of property acquired in any of the usual modes for the general use of a religious\ncongregation which is itself part of a large and general organization of some religious denomination, with which it is more or less intimately connected by religious views and ecclesiastical\ngovernment.\n\nWatson v. Jones, 80 U.S. 679 (1872)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c14 Religion in the Law\nThe case before us is one of this class, growing out of a schism which has divided the congregation and its officers, and the presbytery and synod, and which appeals to the courts to\ndetermine the right to the use of the property so acquired. Here is [a] case of \xe2\x80\xa6 property purchased for the use of a religious congregation, and so long as any existing religious congregation\ncan be ascertained to be that congregation, or its regular and legitimate successor, it is entitled\nto the use of the property. In \xe2\x80\xa6 cases of this character we are bound to look at the fact that the\nlocal congregation is itself but a member of a much larger and more important religious organization, and is under its government and control, and is bound by its orders and judgments.\nThere are in the Presbyterian system of ecclesiastical government, in regular succession, the presbytery over the session or local church, the synod over the presbytery, and the General Assembly\nover all. These are called, in the language of the church organs, \xe2\x80\x9cjudicatories,\xe2\x80\x9d and they entertain\nappeals from the decisions of those below, and prescribe corrective measures in other cases.\nIn this class of cases we think the rule of action which should govern the civil courts,\nfounded in a broad and sound view of the relations of church and state under our system of\nlaws, and supported by a preponderating weight of judicial authority is, that, whenever the\nquestions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by\nthe highest of these church judicatories to which the matter has been carried, the legal tribunals\nmust accept such decisions as final, and as binding on them, in their application to the case\nbefore them.\nWe concede at the outset that the doctrine of the English courts is otherwise. In the case of\nthe Attorney-General v. Pearson \xe2\x80\xa6 the proposition is laid down by Lord Eldon \xe2\x80\xa6 that it is the\nduty of the court in such cases to inquire and decide for itself, not only what was the nature and\npower of these church judicatories, but what is the true standard of faith in the church organization, and which of the contending parties before the court holds to this standard\xe2\x80\xa6.\nThe church in England is not a free church in the sense in which we apply the term in this\ncountry, and it was much less free in Lord Eldon\xe2\x80\x99s time than now. Laws then existed upon the\nstatute-book hampering the free exercise of religious belief and worship in many most oppressive forms, and though Protestant dissenters were less burdened than Catholics and Jews, there\ndid not exist that full, entire, and practical freedom for all forms of religious belief and practice\nwhich lies at the foundation of our political principles\xe2\x80\xa6.\nIn this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality\nand property, and which does not infringe personal rights, is conceded to all. The law knows no\nheresy, and is committed to the support of no dogma, the establishment of no sect. The right to\norganize voluntary religious associations to assist in the expression and dissemination of any\nreligious doctrine, and to create tribunals for the decision of controverted questions of faith\nwithin the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves\nto such a body do so with an implied consent to this government, and are bound to submit to\nit. But it would be a vain consent and would lead to the total subversion of such religious bodies,\nif any one aggrieved by one of their decisions could appeal to the secular courts and have them\nreversed. It is of the essence of these religious unions, and of their right to establish tribunals for\nthe decision of questions arising among themselves, that those decisions should be binding in all\ncases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.\nNor do we see that justice would be likely to be promoted by submitting those decisions to\nreview in the ordinary judicial tribunals. Each of these large and influential bodies \xe2\x80\xa6 has a body\nof constitutional and ecclesiastical law of its own, to be found in their written organic laws, their\nbooks of discipline, in their collections of precedents, in their usage and customs, which as to\neach constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to\n\nWatson v. Jones, 80 U.S. 679 (1872)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 15\nbecome familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are\nin reference to their own. It would therefore be an appeal from the more learned tribunal in the\nlaw which should decide the case, to one which is less so.\nWe have said that these views are supported by the preponderant weight of authority in this\ncountry, and for the reasons which we have given, we do not think the doctrines of the English\nChancery Court on this subject should have with us the influence which we would cheerfully\naccord to it on others.\nWe have already cited the case of Shannon v. Frost, in which the appellate court of [Kentucky], where this controversy originated, sustains the proposition clearly and fully:\nThis court, having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline. Our only judicial power in the case arises\nfrom the conflicting claims of the parties to the church property and the use\nof it. We cannot decide who ought to be members of the church, nor whether\nthe excommunicated have been justly or unjustly, regularly or irregularly cut\noff from the body of the church.\n\xe2\x80\xa6One of the most careful and well-considered judgments on the subject is that of the Court\nof Appeals of South Carolina, delivered by Chancellor Johnson in the case of Harmon v. Dreher.\nThe case turned upon certain rights in the use of the church property claimed by the minister\nnotwithstanding his expulsion from the synod as one of its members:\n\xe2\x80\xa6It belongs not to the civil power to enter into or review the proceedings of\na spiritual court. The structure of our government has, for the preservation of\ncivil liberty, rescued the temporal institutions from religious interference. On\nthe other hand, it has secured religious liberty from the invasion of the civil\nauthority. The judgments, therefore, of religious associations, bearing on their\nown members, are not examinable here, and I am not to inquire whether the\ndoctrines attributed to [the defendant] were held by him, or whether if held\nwere anti-Lutheran; or whether his conduct was or was not in accordance\nwith the duty he owed to the synod or to his donomination\xe2\x80\xa6. When a civil\nright depends upon an ecclesiastical matter, it is the civil court and not the\necclesiastical which is to decide. But the civil tribunal tries the civil right, and\nno more, taking the ecclesiastical decisions out of which the civil right arises\nas it finds them.\xe2\x80\xa6\nThe Supreme Court of Illinois, in the case of Ferraria v. Vasconcelles, refers to the case of\nShannon v. Frost with approval, and adopts the language of the court that:\n[T]he judicial eye cannot penetrate the veil of the church for the forbidden\npurpose of vindicating the alleged wrongs of excised members; when they became members they did so upon the condition of continuing or not as they\nand their churches might determine, and they thereby submit to the ecclesiastical power and cannot now invoke the supervisory power of the civil tribunals.\nIn the very important case of Chase v. Cheny, recently decided in the same court, Judge\nLawrence, who dissented, says \xe2\x80\xa6 \xe2\x80\x9cin the administration of ecclesiastical discipline, and where\nno other right of property is involved than loss of the clerical office or salary incident to such\ndiscipline, a spiritual court is the exclusive judge of its own jurisdiction, and that its decision of\nthat question is binding on the secular courts.\xe2\x80\x9d \xe2\x80\xa6\nWe cannot better close this review of the authorities than in the language of the Supreme\nCourt of Pennsylvania, in the case of the German Reformed Church v. Seibert:\n\nWatson v. Jones, 80 U.S. 679 (1872)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c16 Religion in the Law\nThe decisions of ecclesiastical courts, like every other judicial tribunal, are final, as they are the best judges of what constitutes an offence against the word\nof God and the discipline of the church. Any other than those courts must be\nincompetent judges of matters of faith, discipline, and doctrine; and civil\ncourts, if they should be so unwise as to attempt to supervise their judgments\non matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt which would do anything but improve\neither religion or good morals.\xe2\x80\xa6\nThe Court of Appeals of Kentucky, in the case of Watson v. Avery, while admitting the\ngeneral principle here laid down, maintains that when a decision of an ecclesiastical tribunal is\nset up in the civil courts, it is always open to inquiry whether the tribunal acted within its jurisdiction, and if it did not, its decision could not be conclusive.\nThere is, perhaps, no word in legal terminology so frequently used as the word jurisdiction,\nso capable of use in a general and vague sense, and which is used so often by men learned in the\nlaw without a due regard to precision in its application. As regards its use in the matters we have\nbeen discussing it may very well be conceded that if the General Assembly of the Presbyterian\nChurch should undertake to try one of its members for murder, and punish him with death or\nimprisonment, its sentence would be of no validity in a civil court or anywhere else. Or if it\nshould at the instance of one of its members entertain jurisdiction as between him and another\nmember as to their individual right to property, real or personal, the right in no sense depending\non ecclesiastical questions, its decision would be utterly disregarded by any civil court where it\nmight be set up. And it might be said in a certain general sense very justly, that it was because\nthe General Assembly had no jurisdiction of the case\xe2\x80\xa6.\nBut it is a very different thing where a subject-matter of dispute, strictly and purely ecclesiastical in its character,\xe2\x80\x94a matter over which the civil courts exercise no jurisdiction,\xe2\x80\x94a matter\nwhich concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,\xe2\x80\x94becomes the\nsubject of its action. It may be said here, also, that no jurisdiction has been conferred on the\ntribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it, or that the laws of the church do not authorize the particular form of proceeding\nadopted; and, in a sense often used in the courts, all of those may be said to be questions of\njurisdiction. But it is easy to see that if the civil courts are to inquire into all these matters, the\nwhole subject of the doctrinal theology, the usages and customs, the written laws, and fundamental organization of every religious denomination may, and must, be examined into with\nminuteness and care, for they would become, in almost every case, the criteria by which the\nvalidity of the ecclesiastical decree would be determined in the civil court. This principle would\ndeprive these bodies of the right of construing their own church laws, would open the way to\nall the evils which we have depicted as attendant upon the doctrine of Lord Eldon, and would,\nin effect, transfer to the civil courts where property rights were concerned the decision of all\necclesiastical questions.\nAnd this is precisely what the Court of Appeals of Kentucky did in the case of Watson v.\nAvery. Under cover of inquiries into the jurisdiction of the synod and presbytery over the congregation, and of the General Assembly over all, it went into an elaborate examination of the\nprinciples of Presbyterian church government, and ended by overruling the decision of the highest judicatory of that church in the United States, both on the jurisdiction and the merits; and,\nsubstituting its own judgment for that of the ecclesiastical court, decides that ruling elders, declared to be such by that tribunal, are not such, and must not be recognized by the congregation,\nthough four-fifths of its members believe in the judgment of the Assembly and desired to conform to its decree.\n\nWatson v. Jones, 80 U.S. 679 (1872)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 17\nBut we need pursue this subject no further. Whatever may have been the case before the\nKentucky court, the appellants in the case presented to us have separated themselves wholly\nfrom the church organization to which they belonged when this controversy commenced. They\nnow deny its authority, denounce its action, and refuse to abide by its judgments. They have first\nerected themselves into a new organization, and have since joined themselves to another totally\ndifferent, if not hostile, to the one to which they belonged when the difficulty first began. Under\nany of the decisions which we have examined, the appellants, in their present position, have no\nright to the property, or to the use of it, which is the subject of this suit.\nThe novelty of the questions presented to this court for the first time, their intrinsic importance and far reaching influence, and the knowledge that the schism in which the case originated has divided the Presbyterian churches throughout Kentucky and Missouri, have seemed\nto us to justify the careful and laborious examination and discussion which we have made of\nthe principles which should govern the case. For the same reasons we have held it under advisement for a year; not uninfluenced by the hope, that since the civil commotion, which evidently\nlay at the foundation of the trouble, has passed away, that charity, which is so large an element\nin the faith of both parties, and which, by one of the apostles of that religion, is said to be the\ngreatest of all the Christian virtues, would have brought about a reconciliation. But we have\nbeen disappointed. It is not for us to determine or apportion the moral responsibility which\nattaches to the parties for this result. We can only pronounce the judgment of the law as applicable to the case presented to us, and that requires us to affirm the decree of the Circuit Court\nas it stands.\nDECREE AFFIRMED.\n[Because Watson and his allies had formally split from the Presbyterian Church of\nthe United States, which was the governing body over the Walnut Street Presbyterian\nChurch, the Supreme Court held that the federal Circuit Court had power to enjoin\nthem from interfering with church business. Had they not split, the dispute would\nhave remained internal to the church and thus not been subject to federal court jurisdiction.]\nMr. Justice CLIFFORD, with whom concurred Mr. Justice DAVIS, dissenting.\n\xe2\x80\xa6I am of the opinion that the [federal] Circuit Court had no jurisdiction to hear and determine the matter in controversy, as there were two courts of common law exercising the same\njurisdiction between the same parties in respect to the same subject-matter, within the same territorial limits, and governed by the same laws\xe2\x80\xa6.\n\nWatson v. Jones, 80 U.S. 679 (1872)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c18 Religion in the Law\n\n98 U.S. 145\nSupreme Court of the United States\n\nReynolds v. United States\nJanuary 6, 1879\n[In 1862, Congress passed the Morrill Anti-Bigamy Act, which prohibited bigamy\n(also known as polygamy or plural marriage) in federal territories such as Utah. The\nlaw directly targeted the family practices and property ownership of the members of\nthe fast-growing Church of Jesus Christ of Latter-Day Saints (LDS), also known as\nthe Mormons. Subsequent laws, such as the Edmunds-Tucker Act of 1887, further\nattacked the Mormon church, going so far as to strip its corporate charter, remove\nMormons from local judgeships, and impose an anti-polygamy oath upon all public\nofficials serving in Utah.\nGeorge Reynolds, secretary to LDS church leader Brigham Young, volunteered to\ntest the constitutionality of the bigamy ban and subsequently turned himself over to\nfederal prosecutors. The federal government indicted him for marrying Amelia\nSchofield while still married to May Tuddenham, in violation of the bigamy ban:\nEvery person having a husband or wife living, who marries another,\nwhether married or single, in a Territory \xe2\x80\xa6 is guilty of bigamy, and shall\nbe punished by a fine of not more than $500, and by imprisonment for a\nterm of not more than five years.\nRejecting his argument that the free exercise clause of the First Amendment exempted\nhim from the law, a jury convicted Reynolds, and the trial judge sentenced him to\ntwo years hard labor. The Utah Territorial Supreme Court upheld his conviction and\nhis sentence. Reynolds then sought review in the U.S. Supreme Court.]\nMR. CHIEF JUSTICE WAITE delivered the opinion of the court.\n\xe2\x80\xa6Should the accused have been acquitted if he married the second time, because he believed\nit to be his religious duty? Did the court err in that part of the charge which directed the attention\nof the jury to the consequences of polygamy? These questions will be considered in their order\xe2\x80\xa6.\nAs to the defence of religious belief or duty.\nOn the trial, [Reynolds] proved that at the time of his alleged second marriage he was, and\nfor many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints,\ncommonly called the Mormon Church, and a believer in its doctrines; that it was an accepted\ndoctrine of that church \xe2\x80\x98that it was the duty of male members of said church, circumstances\npermitting, to practise polygamy; . . . that this duty was enjoined by different books which the\nmembers of said church believed to be of divine origin, and among others the Holy Bible, and\nalso that the members of the church believed that the practice of polygamy was directly enjoined\nupon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the\nfounder and prophet of said church; that the failing or refusing to practise polygamy by such\nmale members of said church, when circumstances would admit, would be punished, and that\nthe penalty for such failure and refusal would be damnation in the life to come.\xe2\x80\x99\nHe also proved \xe2\x80\x98that he had received permission from the recognized authorities in said\nchurch to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in\nsaid church to perform the marriage ceremony, married the said defendant on or about the time\n\nReynolds v. United States, 98 U.S. 145 (1879)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 19\nthe crime is alleged to have been committed, to some woman by the name of Schofield, and that\nsuch marriage ceremony was performed under and pursuant to the doctrines of said church.\xe2\x80\x99\nUpon this proof he asked the court to instruct the jury that if they found from the evidence\nthat he \xe2\x80\x98was married as charged\xe2\x80\x94if he was married\xe2\x80\x94in pursuance of and in conformity with\nwhat he believed at the time to be a religious duty, that the verdict must be \xe2\x80\x98not guilty.\xe2\x80\x9d This\nrequest was refused, and the court did charge \xe2\x80\x98that there must have been a criminal intent, but\nthat if the defendant, under the influence of a religious belief that it was right,\xe2\x80\x94under an inspiration, if you please, that it was right,\xe2\x80\x94deliberately married a second time, having a first wife\nliving, the want of consciousness of evil intent\xe2\x80\x94the want of understanding on his part that he\nwas committing a crime\xe2\x80\x94did not excuse him; but the law inexorably in such case implies the\ncriminal intent.\xe2\x80\x99\n\xe2\x80\xa6[T]he question is raised, whether religious belief can be accepted as a justification of an\novert act made criminal by the law of the land. The inquiry is not as to the power of Congress\nto prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates\na law which has been properly enacted, if he entertains a religious belief that the law is wrong.\nCongress cannot pass a law for the government of the Territories which shall prohibit the\nfree exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now\nunder consideration comes within this prohibition.\nThe word \xe2\x80\x9creligion\xe2\x80\x9d is not defined in the Constitution. We must go elsewhere, therefore, to\nascertain its meaning, and nowhere more appropriately, we think, than to the history of the\ntimes in the midst of which the provision was adopted. The precise point of the inquiry is, what\nis the religious freedom which has been guaranteed.\nBefore the adoption of the Constitution, attempts were made in some of the colonies and\nStates to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion,\nand sometimes for the support of particular sects to whose tenets they could not and did not\nsubscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of\nDelegates of that State having under consideration \xe2\x80\x98a bill establishing provision for teachers of\nthe Christian religion,\xe2\x80\x99 postponed it until the next session, and directed that the bill should be\npublished and distributed, and that the people be requested \xe2\x80\x98to signify their opinion respecting\nthe adoption of such a bill at the next session of assembly.\xe2\x80\x99\nThis brought out a determined opposition. Amongst others, [James] Madison prepared a\n\xe2\x80\x98Memorial and Remonstrance,\xe2\x80\x99 which was widely circulated and signed, and in which he\ndemonstrated \xe2\x80\x98that religion, or the duty we owe the Creator,\xe2\x80\x99 was not within the cognizance of\ncivil government. At the next session the proposed bill was not only defeated, but another, \xe2\x80\x98for\nestablishing religious freedom,\xe2\x80\x99 drafted by [Thomas] Jefferson, was passed. In the preamble of\nthis act religious freedom is defined; and after a recital \xe2\x80\x98that to suffer the civil magistrate to\nintrude his powers into the field of opinion, and to restrain the profession or propagation of\nprinciples on supposition of their ill tendency, is a dangerous fallacy which at once destroys all\nreligious liberty,\xe2\x80\x99 it is declared \xe2\x80\x98that it is time enough for the rightful purposes of civil government\nfor its officers to interfere when principles break out into overt acts against peace and good\norder.\xe2\x80\x99 In these two sentences is found the true distinction between what properly belongs to the\nchurch and what to the State.\nIn a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States.\xe2\x80\x99 Of this convention Mr. Jefferson was not a member,\n\nReynolds v. United States, 98 U.S. 145 (1879)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c20 Religion in the Law\nhe being then absent as minister to France. As soon as he saw the draft of the Constitution\nproposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of\nan express declaration insuring the freedom of religion, but was willing to accept it as it was,\ntrusting that the good sense and honest intentions of the people would bring about the necessary\nalterations.\nFive of the States, while adopting the Constitution, proposed amendments. Three\xe2\x80\x94New\nHampshire, New York, and Virginia\xe2\x80\x94included in one form or another a declaration of religious\nfreedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted\nupon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious\nfreedom, and was adopted.\nMr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury\nBaptist Association, took occasion to say: \xe2\x80\x98Believing with you that religion is a matter which lies\nsolely between man and his God; that he owes account to none other for his faith or his worship;\nthat the legislative powers of the government reach actions only, and not opinions,\xe2\x80\x94I contemplate with sovereign reverence that act of the whole American people which declared that their\nlegislature should \xe2\x80\x98make no law respecting an establishment of religion or prohibiting the free\nexercise thereof,\xe2\x80\x99 thus building a wall of separation between church and State. Adhering to this\nexpression of the supreme will of the nation in behalf of the rights of conscience, I shall see with\nsincere satisfaction the progress of those sentiments which tend to restore man to all his natural\nrights, convinced he has no natural right in opposition to his social duties.\xe2\x80\x99 Coming as this does\nfrom an acknowledged leader of the advocates of the measure, it may be accepted almost as an\nauthoritative declaration of the scope and effect of the amendment thus secured. Congress was\ndeprived of all legislative power over mere opinion, but was left free to reach actions which were\nin violation of social duties or subversive of good order.\nPolygamy has always been odious among the northern and western nations of Europe, and,\nuntil the establishment of the Mormon Church, was almost exclusively a feature of the life of\nAsiatic and of African people. At common law, the second marriage was always void, and from\nthe earliest history of England polygamy has been treated as an offence against society. After the\nestablishment of the ecclesiastical courts, and until the time of [King of England] James I., it was\npunished through the instrumentality of those tribunals, not merely because ecclesiastical rights\nhad been violated, but because upon the separation of the ecclesiastical courts from the civil the\necclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and\noffences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.\nBy the statute of 1 James I., the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation\nto England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant\nfact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that \xe2\x80\x98all men have an equal, natural,\nand unalienable right to the free exercise of religion, according to the dictates of conscience,\xe2\x80\x99 the\nlegislature of [Virginia] substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, \xe2\x80\x98it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.\xe2\x80\x99\nFrom that day to this we think it may safely be said there never has been a time in any State\nof the Union when polygamy has not been an offence against society, cognizable by the civil\ncourts and punishable with more or less severity. In the face of all this evidence, it is impossible\n\nReynolds v. United States, 98 U.S. 145 (1879)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 21\nto believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature\na sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations\nand social obligations and duties, with which government is necessarily required to deal. In fact,\naccording as monogamous or polygamous marriages are allowed, do we find the principles on\nwhich the government of the people, to a greater or less extent, rests.\n[Columbia University Professor Franz] Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism,\nwhile that principle cannot long exist in connection with monogamy. [Columbia University\nChancellor James] Kent observes that this remark is equally striking and profound. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time\nwithout appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate\nscope of the power of every civil government to determine whether polygamy or monogamy\nshall be the law of social life under its dominion.\nIn our opinion, the statute immediately under consideration is within the legislative power\nof Congress. It is constitutional and valid as prescribing a rule of action for all those residing in\nthe Territories, and in places over which the United States have exclusive control.\nThis being so, the only question which remains is, whether those who make polygamy a\npart of their religion are excepted from the operation of the statute. If they are, then those who\ndo not make polygamy a part of their religious belief may be found guilty and punished, while\nthose who do, must be acquitted and go free. This would be introducing a new element into\ncriminal law. Laws are made for the government of actions, and while they cannot interfere with\nmere religious belief and opinions, they may with practices. Suppose one believed that human\nsacrifices were a necessary part of religious worship, would it be seriously contended that the\ncivil government under which he lived could not interfere to prevent a sacrifice? Or if a wife\nreligiously believed it was her duty to burn herself upon the funeral pile of her dead husband,\nwould it be beyond the power of the civil government to prevent her carrying her belief into\npractice?\nSo here, as a law of the organization of society under the exclusive dominion of the United\nStates, it is provided that plural marriages shall not be allowed. Can a man excuse his practices\nto the contrary because of his religious belief? To permit this would be to make the professed\ndoctrines of religious belief superior to the law of the land, and in effect to permit every citizen\nto become a law unto himself. Government could exist only in name under such circumstances.\nA criminal intent is generally an element of crime, but every man is presumed to intend the\nnecessary and legitimate consequences of what he knowingly does. Here the accused knew he\nhad been once married, and that his first wife was living. He also knew that his second marriage\nwas forbidden by law. When, therefore, he married the second time, he is presumed to have\nintended to break the law. And the breaking of the law is the crime. Every act necessary to\nconstitute the crime was knowingly done, and the crime was therefore knowingly committed.\nIgnorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not\nignorance of the law. The only defense of the accused in this case is his belief that the law ought\nnot to have been enacted. It matters not that his belief was a part of his professed religion: it was\nstill belief, and belief only.\nIn Regina v. Wagstaff, the parents of a sick child, who omitted to call in medical attendance\nbecause of their religious belief that what they did for its cure would be effective, were held not\nto be guilty of manslaughter, while it was said the contrary would have been the result if the\n\nReynolds v. United States, 98 U.S. 145 (1879)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c22 Religion in the Law\nchild had actually been starved to death by the parents, under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which\nis knowingly done, it would be dangerous to hold that the offender might escape punishment\nbecause he religiously believed the law which he had broken ought never to have been made.\nNo case, we believe, can be found that has gone so far.\nAs to that part of the charge which directed the attention of the jury to the consequences of\npolygamy. The passage complained of is as follows: \xe2\x80\x98I think it not improper, in the discharge of\nyour duties in this case, that you should consider what are to be the consequences to the innocent\nvictims of this delusion. As this contest goes on, they multiply, and there are pure-minded women\nand there are innocent children,\xe2\x80\x94innocent in a sense even beyond the degree of the innocence\nof childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these\ncases come up in the Territory of Utah, just so do these victims multiply and spread themselves\nover the land.\xe2\x80\x99\nWhile every appeal by the court to the passions or the prejudices of a jury should be\npromptly rebuked, and while it is the imperative duty of a reviewing court to take care that\nwrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862,\nsaw fit to make bigamy a crime in the Territories. This was done because of the evil consequences\nthat were supposed to flow from plural marriages. All the court did was to call the attention of\nthe jury to the peculiar character of the crime for which the accused was on trial, and to remind\nthem of the duty they had to perform. There was no appeal to the passions, no instigation of\nprejudice. Upon the showing made by the accused himself, he was guilty of a violation of the\nlaw under which he had been indicted: and the effort of the court seems to have been not to\nwithdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make\nthem partial, but to keep them impartial.\nUpon a careful consideration of the whole case, we are satisfied that no error was committed by the court below.\nJudgment affirmed.\nMR. JUSTICE FIELD, concurring in part and dissenting in part (on the question of witness\ntestimony at trial)\xe2\x80\xa6.\nNOTE.\xe2\x80\x94At a subsequent day of the term a petition for a rehearing having been filed, MR.\nCHIEF JUSTICE WAITE delivered the opinion of the court.\nSince our judgment in this case was announced, a petition for rehearing has been filed, in\nwhich our attention is called to the fact that the sentence of the court below requires the imprisonment to be at hard labor, when the act of Congress under which the indictment was found\nprovides for punishment by imprisonment only. This was not assigned for error on the former\nhearing, and we might on that account decline to consider it now; but as the irregularity is one\nwhich appears on the face of the record, we vacate our former judgment of affirmance, and\nreverse the judgment of the court below for the purpose of correcting the only error which appears in the record, to wit, in the form of the sentence\xe2\x80\xa6.\n[Reynolds served a total of five years in federal prison and was released in 1881. Four\nyears later, he married a third wife, and ultimately fathered thirty-two children. President Grover Cleveland pardoned him in 1894.]\n\nReynolds v. United States, 98 U.S. 145 (1879)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 23\n\n310 U.S. 296\nSupreme Court of the United States\n\nCantwell v. Connecticut\nMay 20, 1940\nMr. Justice ROBERTS, delivered the opinion of the Court.\nNewton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah\xe2\x80\x99s witnesses, and claiming to be ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and common law offenses. After trial in the Court of Common Pleas of New Haven County each of them was convicted on the third count, which charged a violation of s 6294 of the General Statutes of Connecticut, and on the fifth count, which charged commission of the common law offense of inciting a breach of the peace. On appeal to the Supreme Court the conviction of all three on the\nthird count was affirmed. The conviction of Jesse Cantwell, on the fifth count, was also affirmed,\nbut the conviction of Newton and Russell on that count was reversed and a new trial ordered\nas to them.\n[In their petition for writ of certiorari], the appellants pressed the contention that the statute\nunder which the third count was drawn was offensive to the due process clause of the Fourteenth\nAmendment because, on its face and as construed and applied, it denied them freedom of speech\nand prohibited their free exercise of religion. In like manner they made the point that they could\nnot be found guilty on the fifth count, without violation of the Amendment.\nWe have jurisdiction on appeal from the judgments on the third count, as there was drawn\nin question the validity of a state statute under the federal Constitution, and the decision was in\nfavor of validity. Since the conviction on the fifth count was not based upon a statute, but presents a substantial question under the federal Constitution, we granted the writ of certiorari in\nrespect of it.\nThe facts adduced to sustain the convictions on the third count follow. On the day of their\narrest the appellants were engaged in going singly from house to house on Cassius Street in New\nHaven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, each of which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted he asked\nthe person to buy the book described and, upon refusal, he solicited such contribution towards\nthe publication of the pamphlets as the listener was willing to make. If a contribution was received a pamphlet was delivered upon condition that it would be read.\nCassius Street is in a thickly populated neighborhood, where about ninety percent of the\nresidents are Roman Catholics. A phonograph record, describing a book entitled \xe2\x80\x9cEnemies\xe2\x80\x9d,\nincluded an attack on the Catholic religion. None of the persons interviewed were members of\nJehovah\xe2\x80\x99s witnesses.\nThe statute under which the appellants were charged provides:\nNo person shall solicit money, services, subscriptions or any valuable thing for\nany alleged religious, charitable or philanthropic cause, from other than a\nmember of the organization for whose benefit such person is soliciting or\nwithin the county in which such person or organization is located unless such\ncause shall have been approved by the secretary of the public welfare council.\n\nCantwell v. Connecticut, 310 U.S. 296 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c24 Religion in the Law\nUpon application of any person in behalf of such cause, the secretary shall\ndetermine whether such cause is a religious one or is a bona fide object of\ncharity or philanthropy and conforms to reasonable standards of efficiency\nand integrity, and, if he shall so find, shall approve the same and issue to the\nauthority in charge a certificate to that effect. Such certificate may be revoked\nat any time. Any person violating any provision of this section shall be fined\nnot more than one hundred dollars or imprisoned not more than thirty days\nor both.\nThe appellants claimed that their activities were not within the statute but consisted only\nof distribution of books, pamphlets, and periodicals. The State Supreme Court construed the\nfinding of the trial court to be that \xe2\x80\x9cin addition to the sale of the books and the distribution of\nthe pamphlets the defendants were also soliciting contributions or donations of money for an\nalleged religious cause, and thereby came within the purview of the statute.\xe2\x80\x9d 126 Conn. 1, 8\nA.2d 535. [The state court rejected the argument that the statute] offends the due process clause\nof the Fourteenth Amendment, because it abridges or denies religious freedom and liberty of\nspeech and press. The court stated that it was the solicitation that brought the appellants within\nthe sweep of the Act and not their other activities in the dissemination of literature. It declared\nthe legislation constitutional as an effort by the State to protect the public against fraud and\nimposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes.\nThe facts which were held to support the conviction of Jesse Cantwell on the fifth count\nwere that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record \xe2\x80\x9cEnemies\xe2\x80\x9d, which attacked the religion and church of the\ntwo men, who were Catholics. Both were incensed by the contents of the record and were\ntempted to strike Cantwell unless he went away. On being told to be on his way he left their\npresence. There was no evidence that he was personally offensive or entered into any argument\nwith those he interviewed.\nThe court held that the charge was not assault or breach of the peace or threats on Cantwell\xe2\x80\x99s part, but invoking or inciting others to breach of the peace, and that the facts supported\nthe conviction of that offense.\nFirst. We hold that the statute \xe2\x80\xa6 deprives [the Cantwells] of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty\nembodied in that Amendment embraces the liberties guaranteed by the First Amendment. The\nFirst Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.\nThe constitutional inhibition of legislation on the subject of religion has a double aspect.\nOn the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice\nof any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the\nother hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment\nembraces two concepts,\xe2\x80\x94freedom to believe and freedom to act. The first is absolute but, in the\nnature of things, the second cannot be. Conduct remains subject to regulation for the protection\nof society. The freedom to act must have appropriate definition to preserve the enforcement of\nthat protection. In every case the power to regulate must be so exercised as not, in attaining a\npermissible end, unduly to infringe the protected freedom. No one would contest the proposition\nthat a state may not, by statute, wholly deny the right to preach or to disseminate religious views.\nPlainly such a previous and absolute restraint would violate the terms of the guarantee.\n\nCantwell v. Connecticut, 310 U.S. 296 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 25\nIt is equally clear that a state may by general and non-discriminatory legislation regulate\nthe times, the places, and the manner of soliciting upon its streets, and of holding meetings\nthereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment\xe2\x80\xa6.\nThe appellants urge that to require them to obtain a certificate as a condition of soliciting\nsupport for their views amounts to a prior restraint on the exercise of their religion within the\nmeaning of the Constitution. The State insists that the Act, as construed by the Supreme Court\nof Connecticut, imposes no previous restraint upon the dissemination of religious views or teaching but merely safeguards against the perpetration of frauds under the cloak of religion. Conceding that this is so, the question remains whether the method adopted by Connecticut to that\nend transgresses the liberty safeguarded by the Constitution.\nThe general regulation, in the public interest, of solicitation, which does not involve any\nreligious test and does not unreasonably obstruct or delay the collection of funds, is not open to\nany constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise.\n[T]he Act requires an application to the secretary of the public welfare council of the State;\nthat he is empowered to determine whether the cause is a religious one, and that the issue of a\ncertificate depends upon his affirmative action. If he finds that the cause is not that of religion,\nto solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision\nto issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an\nopinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a\ndenial of liberty protected by the First Amendment and included in the liberty which is within\nthe protection of the Fourteenth.\nThe State asserts that [only] if the licensing officer acts arbitrarily, capriciously, or corruptly,\nhis action is subject to judicial correction\xe2\x80\xa6. Upon his decision as to the nature of the cause, the\nright to solicit depends. Moreover, the availability of a judicial remedy for abuses in the system\nof licensing still leaves that system one of previous restraint which, in the field of free speech and\npress, we have held inadmissible\xe2\x80\xa6.\nNothing we have said is intended even remotely to imply that, under the cloak of religion,\npersons may, with impunity, commit frauds upon the public. Certainly penal laws are available\nto punish such conduct. Even the exercise of religion may be at some slight inconvenience in\norder that the state may protect its citizens from injury. Without doubt a state may protect its\ncitizens from fraudulent solicitation by requiring a stranger in the community, before permitting\nhim publicly to solicit funds for any purpose, to establish his identity and his authority to act for\nthe cause which he purports to represent. The state is likewise free to regulate the time and\nmanner of solicitation generally, in the interest of public safety, peace, comfort or convenience.\nBut to condition the solicitation of aid for the perpetuation of religious views or systems upon a\nlicense, the grant of which rests in the exercise of a determination by state authority as to what\nis a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the\nConstitution.\nSecond. We hold that the conviction of Jesse Cantwell on the fifth count must be set aside.\nDecision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not\nabridged. The state of Connecticut has an obvious interest in the preservation and protection of\npeace and good order within her borders. We must determine whether the alleged protection of\n\nCantwell v. Connecticut, 310 U.S. 296 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c26 Religion in the Law\nthe State\xe2\x80\x99s interest, means to which end would, in the absence of limitation by the federal Constitution, lie wholly within the State\xe2\x80\x99s discretion\xe2\x80\xa6.\nConviction on the fifth count \xe2\x80\xa6 is based on a common law concept of the most general\nand undefined nature. The court below has held that the petitioner\xe2\x80\x99s conduct constituted the\ncommission of an offense under the State law\xe2\x80\xa6\nThe offense known as breach of the peace embraces a great variety of conduct destroying\nor menacing public order and tranquility. It includes not only violent acts but acts and words\nlikely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the\nprivilege to exhort others to physical attack upon those belonging to another sect. When clear\nand present danger of riot, disorder, interference with traffic upon the public streets, or other\nimmediate threat to public safety, peace, or order, appears, the power of the state to prevent or\npunish is obvious. Equally obvious is it that a state may not unduly suppress free communication\nof views, religious or other, under the guise of conserving desirable conditions\xe2\x80\xa6.\nHaving these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was\nupon a public street, where he had a right to be, and where he had a right peacefully to impart\nhis views to others. There is no showing that his deportment was noisy, truculent, overbearing\nor offensive. He requested of two pedestrians permission to play to them a phonograph record.\nThe permission was granted. It is not claimed that he intended to insult or affront the hearers\nby playing the record. It is plain that he wished only to interest them in his propaganda. The\nsound of the phonograph is not shown to have disturbed residents of the street, to have drawn\na crowd, or to have impeded traffic. Thus far he had invaded no right or interest of the public\nor of the men accosted.\nThe record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to man; it then singles out the Roman Catholic\nChurch for strictures couched in terms which naturally would offend not only persons of that\npersuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were in fact highly offended. One of them said he felt like hitting Cantwell and the other that\nhe was tempted to throw Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question \xe2\x80\x9cDid you do anything else or have any other reaction?\xe2\x80\x9d\n\xe2\x80\x9cNo, sir, because he said he would take the victrola and he went.\xe2\x80\x9d The other witness testified\nthat he told Cantwell he had better get off the street before something happened to him and that\nwas the end of the matter as Cantwell picked up his books and walked up the street.\nCantwell\xe2\x80\x99s conduct, in the view of the court below, considered apart from the effect of his\ncommunication upon his hearers, did not amount to a breach of the peace. One may, however,\nbe guilty of the offense if he commit acts or make statements likely to provoke violence and\ndisturbance of good order, even though no such eventuality be intended. Decisions to this effect\nare many, but examination discloses that, in practically all, the provocative language which was\nheld to amount to a breach of the peace consisted of profane, indecent, or abusive remarks\ndirected to the person of the hearer. Resort to epithets or personal abuse is not in any proper\nsense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.\nWe find in the instant case no assault or threatening of bodily harm, no truculent bearing,\nno intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell,\nhowever misguided others may think him, conceived to be true religion.\nIn the realm of religious faith, and in that of political belief, sharp differences arise. In both\nfields the tenets of one man may seem the rankest error to his neighbor. To persuade others to\nhis own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification\n\nCantwell v. Connecticut, 310 U.S. 296 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 27\nof men who have been, or are, prominent in church or state, and even to false statement. But\nthe people of this nation have ordained in the light of history, that, in spite of the probability of\nexcesses and abuses, these liberties are, in the long view, essential to enlightened opinion and\nright conduct on the part of the citizens of a democracy.\nThe essential characteristic of these liberties is, that under their shield many types of life,\ncharacter, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield\nmore necessary than in our own country for a people composed of many races and of many\ncreeds. There are limits to the exercise of these liberties. The danger in these times from the\ncoercive activities of those who in the delusion of racial or religious conceit would incite violence\nand breaches of the peace in order to deprive others of their equal right to the exercise of their\nliberties, is emphasized by events familiar to all. These and other transgressions of those limits\nthe states appropriately may punish.\nAlthough the contents of the record not unnaturally aroused animosity, we think that, in\nthe absence of a statute narrowly drawn to define and punish specific conduct as constituting a\nclear and present danger to a substantial interest of the State, the petitioner\xe2\x80\x99s communication,\nconsidered in the light of the constitutional guarantees, raised no such clear and present menace\nto public peace and order as to render him liable to conviction of the common law offense in\nquestion.\nThe judgment affirming the convictions on the third and fifth counts is reversed and the\ncause is remanded for further proceedings not inconsistent with this opinion. So ordered.\nReversed and remanded.\n\nCantwell v. Connecticut, 310 U.S. 296 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c28 Religion in the Law\n\n322 U.S. 78\nSupreme Court of the United States\n\nUnited States v. Ballard\nApril 24, 1944\nMr. Justice DOUGLAS delivered the opinion of the Court.\nDefendants/Respondents were indicted and convicted for [the federal crimes of] using, and\nconspiring to use, the mails to defraud.\nThe indictment was in twelve counts. It charged a scheme to defraud by organizing and\npromoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought \xe2\x80\x9cby means of false and fraudulent representations, pretenses\nand promises\xe2\x80\x9d. The false representations charged were eighteen in number. It is sufficient at this\npoint to say that they covered respondents\xe2\x80\x99 alleged religious doctrines or beliefs. They were all\nset forth in the first count. The following are representative:\n[T]hat Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George\nWashington, and Godfre Ray King, had been selected and thereby designated\nby the alleged \xe2\x80\x9cascertained masters,\xe2\x80\x9d Saint Germain, as a divine messenger;\nand that the words of \xe2\x80\x98ascended masters\xe2\x80\x99 and the words of the alleged divine\nentity, Saint Germain, would be transmitted to mankind through the medium\nof the said Guy W. Ballard.\nThat Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald\nBallard, by reason of their alleged high spiritual attainments and righteous\nconduct, had been selected as divine messengers through which the words of\nthe alleged \xe2\x80\x98ascended masters,\xe2\x80\x99 including the alleged Saint Germain, would be\ncommunicated to mankind under the teachings commonly known as the \xe2\x80\x98I\nAm\xe2\x80\x99 movement.\nThat Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald\nBallard had, by reason of supernatural attainments, the power to heal persons\nof ailments and diseases and to make well persons afflicted with any diseases,\ninjuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure\npersons of those diseases \xe2\x80\xa6 and did further represent that the three designated\npersons had in fact cured either by the activity of one, either, or all of said\npersons, hundreds of persons afflicted with diseases and ailments.\nEach of the representations enumerated in the indictment was followed by the charge that\nrespondents \xe2\x80\x9cwell knew\xe2\x80\x9d it was false. After enumerating the eighteen misrepresentations the\nindictment also alleged:\nAt the time of making all of the representations \xe2\x80\xa6 the defendants \xe2\x80\xa6 well\nknew that all [the] representations were false and untrue and were made with\nthe intention on the part of the defendants \xe2\x80\xa6 to cheat, wrong, and defraud\npersons intended to be defrauded, and to obtain from persons intended to be\ndefrauded by the defendants, money, property, and other things of value and\nto convert the same to the use and the benefit of the defendants.\n\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 29\n[All twelve counts alleged the same as above. The Ballards moved to dismiss the indictment\nbecause] the indictment attacked [their] religious beliefs \xe2\x80\xa6 and sought to restrict the free exercise\nof their religion in violation of the Constitution of the United States. These motions were denied\nby the District Court. Early in the trial, however, objections were raised to the admission of\ncertain evidence concerning respondents\xe2\x80\x99 religious beliefs. \xe2\x80\xa6 At the request of counsel for both\nsides the court advised the jury of that action in the following language:\nFirst, the defendants in this case made certain representations of belief in a\ndivinity and in a supernatural power. Some of the teachings of the defendants,\nrepresentations, might seem extremely improbable to a great many people\xe2\x80\xa6\nWhether that is true or not is not the concern of this Court and is not the\nconcern of the jury-and they are going to be told so in their instructions. As\nfar as this Court sees the issue, it is immaterial what these defendants preached\nor wrote or taught in their classes \xe2\x80\xa6 Therefore, the religious beliefs of these\ndefendants cannot be an issue in this court.\nThe issue is: Did these defendants honestly and in good faith believe those\nthings? If they did, they should be acquitted. I cannot make it any clearer than\nthat.\nIf these defendants did not believe those things, they did not believe that Jesus\ncame down and dictated, or that Saint Germain came down and dictated, did\nnot believe the things that they wrote, the things that they preached, but used\nthe mail for the purpose of getting money, the jury should find them guilty.\nTherefore, gentlemen, religion cannot come into this case.\nThe District Court reiterated that admonition in the charge to the jury and made it abundantly clear. The following portion of the charge is typical:\nThe question of the defendants\xe2\x80\x99 good faith is the cardinal question in this case.\nYou are not to be concerned with the religious belief of the defendants, or any\nof them. The jury will be called upon to pass on the question of whether or\nnot the defendants honestly and in good faith believed the representations\nwhich are set forth in the indictment, and honestly and in good faith believed\nthat the benefits which they represented would flow from their belief to those\nwho embraced and followed their teachings, or whether these representations\nwere mere pretenses \xe2\x80\xa6 and, were the representations made for the purpose of\nprocuring money, and were the mails used for this purpose.\n[The jury convicted the Ballards on all counts of fraud. They appealed, arguing that\nthe trial court unfairly modified the indictments against them by giving these instructions. The Ninth Circuit Court of Appeals reversed the convictions and ordered a\nnew trial, holding that the trial court improperly restricted the issue to a question of\ngood faith belief when it should also have allowed the jury to consider the truth of\nthe beliefs. The U.S. government then sought review by the Supreme Court, arguing\nthat the original convictions should be upheld without need for a new trial.]\nThe case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. The United States contends that the District Court withdrew\nfrom the jury\xe2\x80\x99s consideration only the truth or falsity of those representations which related to\nreligious concepts or beliefs and that there were representations charged in the indictment which\nfell within a different category, [including:]\n(1) A portion of the scheme as to healing \xe2\x80\xa6 which alleged that respondents\n\xe2\x80\x9chad in fact cured either by the activity of one, either, or all of said persons,\nhundreds of persons afflicted with diseases and ailments\xe2\x80\x9d; (2) The portion of\nthe scheme relating to certain religious experiences described in certain books\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c30 Religion in the Law\n\xe2\x80\xa6 \xe2\x80\x9cthat the defendants represented that Guy W. Ballard, Edna W. Ballard,\nand Donald Ballard actually encountered the experiences pertaining to each\nof their said names as related and set forth in said books, whereas in truth and\nin fact none of said persons did encounter the experiences\xe2\x80\x9d; (3) The part of\nthe scheme concerning phonograph records sold by respondents on representations that they would bestow on purchasers \xe2\x80\x9cgreat blessings and rewards in\ntheir aim to achieve salvation\xe2\x80\x9d whereas respondents \xe2\x80\x9cwell knew that said records were manmade and had no ability to aid in achieving salvation.\xe2\x80\x9d\nThe argument is that this latter group of representations was submitted to the jury, that they\nwere adequate to constitute an offense under the Act, and that they were supported by the requisite evidence [and therefore the original convictions should be affirmed]\xe2\x80\xa6.\n[W]e are of the view that all of the representations charged in the indictment which related\nat least in part to the religious doctrines or beliefs of respondents were withheld from the jury\xe2\x80\xa6.\nA careful reading of the whole charge leads us to agree with the Circuit Court of Appeals on\nthis phase of the case that the only issue submitted to the jury was the question as stated by the\nDistrict Court, of respondents\xe2\x80\x99 \xe2\x80\x9cbelief in their representations and promises.\xe2\x80\x9d\nThe United States contends that respondents acquiesced in the withdrawal from the jury of\nthe truth of their religious doctrines or beliefs and that their consent bars them from insisting on\na different course once that one turned out to be unsuccessful. \xe2\x80\xa6The real objection of respondents is not that the truth of their religious doctrines or beliefs should have been submitted to the\njury. Their [motion to dismiss] made clear their position that that issue should be withheld from\nthe jury on the basis of the First Amendment. Moreover, their position at all times was and still\nis that the court should have gone the whole way and withheld from the jury both that issue and\nthe issue of their good faith. [They sought] dismissal of the entire indictment. Their argument\nthat the truth of their religious doctrines or beliefs should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They never\nforsook their position that the indictment should have been dismissed and that none of it was\ngood\xe2\x80\xa6.\nAs we have noted, the Circuit Court of Appeals held that the question of the truth of the\nrepresentations concerning respondent\xe2\x80\x99s religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial\xe2\x80\xa6.\n[W]e do not agree that the truth or verity of respondents\xe2\x80\x99 religious doctrines or beliefs\nshould have been submitted to the jury. Whatever this particular indictment might require, the\nFirst Amendment precludes such a course, as the United States seems to concede. \xe2\x80\x9cThe law\nknows no heresy, and is committed to the support of no dogma, the establishment of no sect.\xe2\x80\x9d\nWatson v. Jones, 13 Wall. 679, 728. The First Amendment has a dual aspect. It not only \xe2\x80\x9cforestalls compulsion by law of the acceptance of any creed or the practice of any form of worship\xe2\x80\x9d\nbut also \xe2\x80\x9csafeguards the free exercise of the chosen form of religion.\xe2\x80\x9d Cantwell v. State of Connecticut, 310 U.S. 296. \xe2\x80\x9cThus the Amendment embraces two concepts, freedom to believe and\nfreedom to act. The first is absolute but, in the nature of things, the second cannot be.\xe2\x80\x9d Id. at\n303, 304. Freedom of thought, which includes freedom of religious belief, is basic in a society\nof free men. West Virginia State Board of Education v. Barnette, 319 U.S. 624. It embraces the\nright to maintain theories of life and of death and of the hereafter which are rank heresy to\nfollowers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe\nwhat they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.\nReligious experiences which are as real as life to some may be incomprehensible to others. Yet\nthe fact that they may be beyond the ken of mortals does not mean that they can be made suspect\nbefore the law.\n\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 31\nMany take their gospel from the New Testament. But it would hardly be supposed that they\ncould be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after\ndeath, the power of prayer are deep in the religious convictions of many. If one could be sent to\njail because a jury in a hostile environment found those teachings false, little indeed would be\nleft of religious freedom.\nThe Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious\ncreed on which all men would agree. They fashioned a charter of government which envisaged\nthe widest possible toleration of conflicting views. Man\xe2\x80\x99s relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man\nfor the verity of his religious views.\nThe religious views espoused by respondents might seem incredible, if not preposterous, to\nmost people. But if those doctrines are subject to trial before a jury charged with finding their\ntruth or falsity, then the same can be done with the religious beliefs of any sect. When the triers\nof fact undertake that task, they enter a forbidden domain. The First Amendment does not select\nany one group or any one type of religion for preferred treatment. It puts them all in that position. Murdock v. Pennsylvania, 319 U.S. 105. As stated in Davis v. Beason, 133 U.S. 333, 342:\nWith man\xe2\x80\x99s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his\nbelief on those subjects, no interference can be permitted, provided always the\nlaws of society, designed to secure its peace and prosperity, and the morals of\nits people, are not interfered with.\nSo we conclude that the District Court ruled properly when it withheld from the jury all\nquestions concerning the truth or falsity of the religious beliefs or doctrines of respondents\xe2\x80\xa6. The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for\nfurther proceedings [on other grounds raised by the parties\xe2\x80\x99 appeals] in conformity to this opinion.\nReversed.\nMr. Chief Justice STONE, joined by Justices ROBERTS and FRANKFURTER, dissenting.\nI am not prepared to say that the constitutional guaranty of freedom of religion affords\nimmunity from criminal prosecution for the fraudulent procurement of money by false statements as to one\xe2\x80\x99s religious experiences, more than it renders polygamy or libel immune from\ncriminal prosecution. Davis v. Beason, 133 U.S. 333; see Chaplinsky v. New Hampshire, 315\nU.S. 568. I cannot say that freedom of thought and worship includes freedom to procure money\nby making knowingly false statements about one\xe2\x80\x99s religious experiences. To go no further, if it\nwere shown that a defendant in this case had asserted as a part of the alleged fraudulent scheme,\nthat he had physically shaken hands with St. Germain in San Francisco on a day named, or that,\nas the indictment here alleges, by the exertion of his spiritual power he \xe2\x80\x9chad in fact cured hundreds of persons afflicted with diseases and ailments\xe2\x80\x9d, I should not doubt that it would be open\nto the Government to submit to the jury proof that he had never been in San Francisco and that\nno such cures had ever been effected. In any event I see no occasion for making any pronouncement on this subject in the present case.\nThe indictment charges respondents\xe2\x80\x99 use of the mails to defraud and a conspiracy to commit\nthat offense by false statements of their religious experiences which had not in fact occurred. But\nit also charged that the representations were \xe2\x80\x9cfalsely and fraudulently\xe2\x80\x9d made, that respondents\n\xe2\x80\x9cwell knew\xe2\x80\x9d that these representations were untrue, and that they were made by respondents\nwith the intent to cheat and defraud those to whom they were made. With the assent of the\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c32 Religion in the Law\nprosecution and the defense the trial judge withdrew from the consideration of the jury the\nquestion whether the alleged religious experiences had in fact occurred, but submitted to the\njury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty. On this issue\nthe jury, on ample evidence that respondents were without belief in the statements which they\nhad made to their victims, found a verdict of guilty. The state of one\xe2\x80\x99s mind is a fact as capable\nof fraudulent misrepresentation as is one\xe2\x80\x99s physical condition or the state of his bodily health\xe2\x80\xa6.\nSince the indictment and the evidence support the conviction, it is irrelevant whether the religious\nexperiences alleged did or did not in fact occur or whether that issue could or could not, for\nconstitutional reasons, have been rightly submitted to the jury. Certainly none of respondents\xe2\x80\x99\nconstitutional rights are violated if they are prosecuted for the fraudulent procurement of money\nby false representations as to their beliefs, religious or otherwise.\nObviously if the question whether the religious experiences in fact occurred could not constitutionally have been submitted to the jury the court rightly withdrew it\xe2\x80\xa6.\n\xe2\x80\xa6The indictment plainly charged both falsity of, and lack of good faith belief in the representations made, and it was agreed at the outset of the trial, without objection from the defendants, that only the issue of respondents\xe2\x80\x99 good faith belief in the representations of religious experiences would be submitted to the jury. Respondents, who were represented by counsel, at no\ntime in the course of the trial offered any objection to this limitation of the issues\xe2\x80\xa6.\nOn the issue submitted to the jury in this case it properly rendered a verdict of guilty. As no\nlegally sufficient reason for disturbing it appears, I think the judgment below should be reversed\nand that of the District Court reinstated.\nMr. Justice JACKSON, dissenting.\nI should say the defendants have done just that for which they are indicted. If I might agree\nto their conviction without creating a precedent, I cheerfully would do so. I can see in their\nteachings nothing but humbug, untained by any trace of truth. But that does not dispose of the\nconstitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.\nThe Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which\ncharged that their representations were false and that they \xe2\x80\x9cwell knew\xe2\x80\x9d they were false. The\ntrial judge, obviously troubled, ruled that the court could not try whether the statements were\nuntrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could\nbe convicted.\nI find it difficult to reconcile this conclusion with our traditional religious freedoms. In the\nfirst place, as a matter of either practice or philosophy I do not see how we can separate an issue\nas to what is believed from considerations as to what is believable. The most convincing proof\nthat one believes his statements is to show that they have been true in his experience. Likewise,\nthat one knowingly falsified is best proved by showing that what he said happened never did\nhappen. How can the Government prove these persons knew something to be false which it\ncannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the\ndispute from the very considerations which in common experience provide its most reliable answer.\nIn the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is\nnot theology and ceremonies which keep religion going. Its vitality is in the religious experiences\nof many people. \xe2\x80\x9cIf you ask what these experiences are, they are conversations with the unseen,\nvoices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of\n\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 33\nhelp, assurances of support, whenever certain persons set their own internal attitude in certain\nappropriate ways.\xe2\x80\x9d If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real\nones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences,\nlike some tones and colors, have existence for one, but none at all for another. They cannot be\nverified to the minds of those whose field of consciousness does not include religious insight.\nWhen one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.\nAnd then I do not know what degree of skepticism or disbelief in a religious representation\namounts to actionable fraud. James points out that \xe2\x80\x9cFaith means belief in something concerning\nwhich doubt is theoretically possible.\xe2\x80\x9d Belief in what one may demonstrate to the senses is not\nfaith. All schools of religious thought make enormous assumptions, generally on the basis of\nrevelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credility than is invoked by representations of secular fact in commerce.\nSome who profess belief in the Bible read literally what others read as allegory or metaphor,\nas they read Aesop\xe2\x80\x99s fables. Religious symbolism is even used by some with the same mental\nreservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate\njudges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine\nhe teaches and even more difficult to say how far it is reliance upon a teacher\xe2\x80\x99s literal belief which\ninduces followers to give him money.\nThere appear to be persons-let us hope not many-who find refreshment and courage in the\nteachings of the \xe2\x80\x9cI Am\xe2\x80\x9d cult. If the members of the sect get comfort from the celestial guidance\nof their \xe2\x80\x9cSaint Germain,\xe2\x80\x9d however doubtful it seems to me, it is hard to say that they do not get\nwhat they pay for. Scores of sects flourish in this country by teaching what to me are queer\nnotions. It is plain that there is wide variety in American religious taste. The Ballards are not\nalone in catering to it with a pretty dubious product.\nThe chief wrong which false prophets do to their following is not financial. The collections\naggregate a tempting total, but individual payments are not ruinous\xe2\x80\xa6. But the real harm is on\nthe mental and spiritual plane. There are those who hunger and thirst after higher values which\nthey feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and\nseek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money\nthe victims part with half so much as in the mental and spiritual poison they get. But that is\nprecisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a\ngood deal of rubbish.\nProsecutions of this character easily could degenerate into religious persecution. I do not\ndoubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to\nconstruct a church when in fact they are being used for personal purposes. But that is not this\ncase, which reaches into wholly dangerous ground. When does less than full belief in a professed\ncredo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort\northodox as well as unconventional religious teachers, for even the most regular of them are\nsometimes accused of taking their orthodoxy with a grain of salt.\nI would dismiss the indictment and have done with this business of judicially examining\nother people\xe2\x80\x99s faiths.\n\nUnited States v. Ballard, 322 U.S. 78 (1944)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c34 Religion in the Law\n\n380 U.S. 163\nSupreme Court of the United States\n\nUnited States v. Seeger\nMarch 8, 1965\nMr. Justice CLARK delivered the opinion of the Court.\nThese cases involve claims of conscientious objectors under s 6(j) of the Universal Military\nTraining and Service Act, 50 U.S.C.App. s 456(j) (1958 ed.), which exempts from combatant\ntraining and service in the armed forces of the United States those persons who by reason of\ntheir religious training and belief are conscientiously opposed to participation in war in any\nform\xe2\x80\xa6.\nThe parties raise the basic question of the constitutionality of the section which defines the\nterm \xe2\x80\x98religious training and belief,\xe2\x80\x99 as used in the Act, as \xe2\x80\x98an individual\xe2\x80\x99s belief in a relation to a\nSupreme Being involving duties superior to those arising from any human relation, but (not\nincluding) essentially political, sociological, or philosophical views or a merely personal moral\ncode.\xe2\x80\x99 The constitutional attack is launched under the First Amendment\xe2\x80\x99s Establishment and\nFree Exercise Clauses and \xe2\x80\xa6 the Due Process Clause of the Fifth Amendment.\nJakobson (No. 51) and Peter (No. 29) also claim that their beliefs come within the meaning\nof the section. Jakobson claims that he meets the standards of s 6(j) because his opposition to\nwar is based on belief in a Supreme Reality and is therefore an obligation superior to one resulting from man\xe2\x80\x99s relationship to his fellow man. Peter contends that his opposition to war derives\nfrom his acceptance of the existence of a universal power beyond that of man and that this\nacceptance in fact constitutes belief in a Supreme Being, qualifying him for exemption. We\ngranted certiorari \xe2\x80\xa6 because of their importance in the administration of the Act.\nWe have concluded that Congress, in using the expression \xe2\x80\x98Supreme Being\xe2\x80\x99 rather than the\ndesignation \xe2\x80\x98God,\xe2\x80\x99 was merely clarifying the meaning of religious training and belief so as to\nembrace all religions and to exclude essentially political, sociological, or philosophical views.\nWe believe that under this construction, the test of belief \xe2\x80\x98in a relation to a Supreme Being\xe2\x80\x99 is\nwhether a given belief that is sincere and meaningful occupies a place in the life of its possessor\nparallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot\nsay that one is \xe2\x80\x98in a relation to a Supreme Being\xe2\x80\x99 and the other is not\xe2\x80\xa6.\nNo. 50: Seeger was convicted in the District Court for the Southern District of New York\nof having refused to submit to induction in the armed forces. \xe2\x80\xa6[H]e declared that he was conscientiously opposed to participation in war in any form by reason of his \xe2\x80\x9creligious\xe2\x80\x9d belief; that\nhe preferred to leave the question as to his belief in a Supreme Being open, \xe2\x80\x9crather than answer\n\xe2\x80\x98yes\xe2\x80\x99 or \xe2\x80\x98no\xe2\x80\x99\xe2\x80\x9d; that his \xe2\x80\x9cskepticism or disbelief in the existence of God\xe2\x80\x9d did \xe2\x80\x9cnot necessarily mean\nlack of faith in anything whatsoever\xe2\x80\x9d; that his was a \xe2\x80\x9cbelief in and devotion to goodness and\nvirtue for their own sakes, and a religious faith in a purely ethical creed.\xe2\x80\x9d He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral\nintegrity \xe2\x80\x9cwithout belief in God, except in the remotest sense.\xe2\x80\x9d His belief was found to be sincere, honest, and made in good faith; and his conscientious objection to be based upon individual training and belief, both of which included research in religious and cultural fields. Seeger\xe2\x80\x99s\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 35\nclaim, however, was denied solely because it was not based upon a \xe2\x80\x9cbelief in a relation to a\nSupreme Being\xe2\x80\x9d as required by s 6(j) of the Act\xe2\x80\xa6.\nNo. 51: Jakobson was also convicted in the Southern District of New York on a charge of\nrefusing to submit to induction\xe2\x80\xa6. Jakobson \xe2\x80\xa6 stated on the Selective Service System form that\nhe believed in a \xe2\x80\x9cSupreme Being\xe2\x80\x9d who was \xe2\x80\x9cCreator of Man\xe2\x80\x9d in the sense of being \xe2\x80\x9cultimately\nresponsible for the existence of\xe2\x80\x99 man and who was \xe2\x80\x98the Supreme Reality\xe2\x80\x9d of which \xe2\x80\x9cthe existence of man is the result.\xe2\x80\x9d He explained that his religious and social thinking had developed\nafter much meditation and thought. He had concluded that man must be \xe2\x80\x9cpartly spiritual\xe2\x80\x9d and,\ntherefore, \xe2\x80\x9cpartly akin to the Supreme Reality\xe2\x80\x9d; and that his \xe2\x80\x9cmost important religious law\xe2\x80\x9d\nwas that \xe2\x80\x9cno man ought ever to wilfully sacrifice another man\xe2\x80\x99s life as a means to any other\nend\xe2\x80\xa6.\xe2\x80\x9d He submitted a long memorandum of \xe2\x80\x9cnotes on religion\xe2\x80\x9d in which he defined religion\nas the \xe2\x80\x9csum and essence of one\xe2\x80\x99s basic attitudes to the fundamental problems of human existence,\xe2\x80\x9d; he said that he believed in \xe2\x80\x9cGodness\xe2\x80\x9d which was \xe2\x80\x9cthe Ultimate Cause for the fact of the\nBeing of the Universe\xe2\x80\x9d; that to deny its existence would but deny the existence of the universe\nbecause \xe2\x80\x9canything that Is, has an Ultimate Cause for its Being.\xe2\x80\x9d There was a relationship to\nGodness, he stated, in two directions, i.e., \xe2\x80\x9cvertically, towards Godness directly,\xe2\x80\x9d and \xe2\x80\x9chorizontally, towards Godness through Mankind and the World.\xe2\x80\x9d He accepted the latter one. The Board\nclassified him 1\xe2\x80\x94A\xe2\x80\x94O and Jakobson appealed. The hearing officer found that the claim was\nbased upon a personal moral code and that he was not sincere in his claim. The Appeal Board\nclassified him 1\xe2\x80\x94A. It did not indicate upon what ground it based its decision, i.e., insincerity\nor a conclusion that his belief was only a personal moral code\xe2\x80\xa6.\nNo. 29: Forest Britt Peter was convicted in the Northern District of California on a charge\nof refusing to submit to induction. In his Selective Service System form he stated that he was not\na member of a religious sect or organization; he failed to execute section VII of the questionnaire\nbut attached to it a quotation expressing opposition to war, in which he stated that he concurred.\nIn a later form he hedged the question as to his belief in a Supreme Being by saying that it\ndepended on the definition and he appended a statement that he felt it a violation of his moral\ncode to take human life and that he considered this belief superior to his obligation to the state.\nAs to whether his conviction was religious, he quoted with approval Reverend John Haynes\nHolmes\xe2\x80\x99 definition of religion as \xe2\x80\x9cthe consciousness of some power manifest in nature which\nhelps man in the ordering of his life in harmony with its demands(; it) is the supreme expression\nof human nature; it is man thinking his highest, feeling his deepest, and living his best.\xe2\x80\x9d The\nsource of his conviction he attributed to reading and meditation \xe2\x80\x9cin our democratic American\nculture, with its values derived from the western religious and philosophical tradition.\xe2\x80\x9d As to\nhis belief in a Supreme Being, Peter stated that he supposed \xe2\x80\x9cyou could call that a belief in the\nSupreme Being or God. These just do not happen to be the words I use.\xe2\x80\x9d In 1959 he was classified 1\xe2\x80\x94A, although there was no evidence in the record that he was not sincere in his beliefs\xe2\x80\xa6.\nChief Justice Hughes, in his [dissenting] opinion in United States v. Macintosh, 283 U.S.\n605 (1931), enunciated the rationale behind the long recognition of conscientious objection to\nparticipation in war accorded by Congress in our various conscription laws when he declared\nthat \xe2\x80\x9cin the forum of conscience, duty to a moral power higher than the state has always been\nmaintained.\xe2\x80\x9d [Macintosh was overruled in part by Girouard v. U.S., 328 U.S. 61(1946).]\xe2\x80\xa6\nGovernmental recognition of the moral dilemma posed for persons of certain religious\nfaiths by the call to arms came early in the history of this country. Various methods of ameliorating their difficulty were adopted by the Colonies, and were later perpetuated in state statutes\nand constitutions. Thus by the time of the Civil War there existed a state pattern of exempting\nconscientious objectors on religious grounds\xe2\x80\xa6.\nThe need for conscription did not again arise until World War I. The Draft Act of 1917, 40\nStat. 76, 78 \xe2\x80\xa6 required that all persons be inducted into the armed services, but allowed the\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c36 Religion in the Law\nconscientious objectors to perform noncombatant service in capacities designated by the President of the United States. Although the 1917 Act excused religious objectors only, in December\n1917, the Secretary of War instructed that \xe2\x80\x9cpersonal scruples against war\xe2\x80\x9d be considered as\nconstituting \xe2\x80\x9cconscientious objection.\xe2\x80\x9d\xe2\x80\xa6\nIn adopting the 1940 Selective Training and Service Act Congress broadened the exemption\nafforded in the 1917 Act by making it unnecessary to belong to a pacifist religious sect if the\nclaimant\xe2\x80\x99s own opposition to war was based on \xe2\x80\x9creligious training and belief.\xe2\x80\x9d Those found to\nbe within the exemption were not inducted into the armed services but were assigned to noncombatant service under the supervision of the Selective Service System. Congress recognized\nthat one might be religious without belonging to an organized church just as surely as minority\nmembers of a faith not opposed to war might through religious reading reach a conviction\nagainst participation in war\xe2\x80\xa6. Thus, while shifting the test from membership in such a church\nto one\xe2\x80\x99s individual belief the Congress nevertheless continued its historic practice of excusing\nfrom armed service those who believed that they owed an obligation, superior to that due the\nstate, of not participating in war in any form.\nBetween 1940 and 1948 two courts of appeals held that the phrase \xe2\x80\x9creligious training and\nbelief\xe2\x80\x9d did not include philosophical, social or political policy. Then in 1948 the Congress\namended the language of the statute and declared that \xe2\x80\x9creligious training and belief\xe2\x80\x9d was to be\ndefined as \xe2\x80\x9can individual\xe2\x80\x99s belief in a relation to a Supreme Being involving duties superior to\nthose arising from any human relation, but (not including) essentially political, sociological, or\nphilosophical views or a merely personal moral code.\xe2\x80\x9d ...\nThe crux of the problem [here] lies in the phrase \xe2\x80\x9creligious training and belief\xe2\x80\x9d which Congress has defined as \xe2\x80\x9cbelief in a relation to a Supreme Being involving duties superior to those\narising from any human relation.\xe2\x80\x9d In assigning meaning to this statutory language we may narrow the inquiry by noting briefly those scruples expressly excepted from the definition. The\nsection excludes those persons who, disavowing religious belief, decide on the basis of essentially\npolitical, sociological or economic considerations that war is wrong and that they will have no\npart of it. These judgments have historically been reserved for the Government, and in matters\nwhich can be said to fall within these areas the conviction of the individual has never been permitted to override that of the state. The statute further excludes those whose opposition to war\nstems from a \xe2\x80\x9cmerely personal moral code,\xe2\x80\x9d a phrase to which we shall have occasion to turn\nlater in discussing the application of s 6(j) to these cases.\nWe also pause to take note [that] no party claims to be an atheist or attacks the statute on\nthis ground. The question is not, therefore, one between theistic and atheistic beliefs. We do not\ndeal with or intimate any decision on that situation in these cases. Nor do the parties claim the\nmonotheistic belief that there is but one God; what they claim (with the possible exception of\nSeeger who bases his position here not on factual but on purely constitutional grounds) is that\nthey adhere to theism, which is the \xe2\x80\x9cBelief in the existence of a god or gods; \xe2\x80\xa6Belief in superhuman powers or spiritual agencies in one or many gods,\xe2\x80\x9d as opposed to atheism.\nOur question, therefore, is the narrow one: Does the term \xe2\x80\x9cSupreme Being\xe2\x80\x9d as used in s 6(j)\nmean the orthodox God or the broader concept of a power or being, or a faith, \xe2\x80\x9cto which all\nelse is subordinate or upon which all else is ultimately dependent\xe2\x80\x9d? Webster\xe2\x80\x99s New International\nDictionary (Second Edition). In considering this question we resolve it solely in relation to the\nlanguage of s 6(j) and not otherwise.\n\xe2\x80\xa6[I]n no field of human endeavor has the tool of language proved so inadequate in the\ncommunication of ideas as it has in dealing with the fundamental questions of man\xe2\x80\x99s predicament in life, in death or in final judgment and retribution. This fact makes the task of discerning\nthe intent of Congress in using the phrase \xe2\x80\x98Supreme Being\xe2\x80\x99 a complex one. Nor is it made the\neasier by the richness and variety of spiritual life in our country. Over 250 sects inhabit our land.\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 37\nSome believe in a purely personal God, some in a supernatural deity; others think of religion as\na way of life envisioning as its ultimate goal the day when all men can live together in perfect\nunderstanding and peace. There are those who think of God as the depth of our being; others,\nsuch as the Buddhists, strive for a state of lasting rest through self-denial and inner purification;\nin Hindu philosophy, the Supreme Being is the transcendental reality which is truth, knowledge\nand bliss. Even those religious groups which have traditionally opposed war in every form have\nsplintered into various denominations: from 1940 to 1947 there were four denominations using\nthe name Friends; the \xe2\x80\x9cChurch of the Brethren\xe2\x80\x9d was the official name of the oldest and largest\nchurch body of four denominations composed of those commonly called Brethren; and the\n\xe2\x80\x9cMennonite Church\xe2\x80\x9d was the largest of 17 denominations, including the Amish and Hutterites,\ngrouped as \xe2\x80\x9cMennonite bodies.\xe2\x80\x9d This vast panoply of beliefs reveals the magnitude of the problem which faced the Congress when it set about providing an exemption from armed service. It\nalso emphasizes the care that Congress realized was necessary in the fashioning of an exemption\nwhich would be in keeping with its long-established policy of not picking and choosing among\nreligious beliefs.\nIn spite of the elusive nature of the inquiry, we are not without certain guidelines. In amending the 1940 Act, Congress adopted almost intact the language of Chief Justice Hughes in United\nStates v. Macintosh: \xe2\x80\x9cThe essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.\xe2\x80\x9d\nBy comparing the statutory definition with those words, however, it becomes readily apparent that the Congress deliberately broadened them by substituting the phrase \xe2\x80\x9cSupreme Being\xe2\x80\x9d\nfor the appellation \xe2\x80\x9cGod.\xe2\x80\x9d And in so doing it is also significant that Congress did not elaborate\non the form or nature of this higher authority which it chose to designate as \xe2\x80\x9cSupreme Being.\xe2\x80\x9d\n\xe2\x80\xa6\nMoreover, the Senate Report on the bill specifically states that s 6(j) was intended to reenact \xe2\x80\x9csubstantially the same provisions as were found\xe2\x80\x9d in the 1940 Act. That statute, of course,\nrefers to \xe2\x80\x9creligious training and belief\xe2\x80\x9d without more.\xe2\x80\xa6 Under the 1940 Act it was necessary\nonly to have a conviction based upon religious training and belief; we believe that is all that is\nrequired here. Within that phrase would come all sincere religious beliefs which are based upon\na power or being, or upon a faith, to which all else is subordinate or upon which all else is\nultimately dependent.\nThe test might be stated in these words: A sincere and meaningful belief which occupies in\nthe life of its possessor a place parallel to that filled by the God of those admittedly qualifying\nfor the exemption comes within the statutory definition. This construction avoids imputing to\nCongress an intent to classify different religious beliefs, exempting some and excluding others,\nand is in accord with the well-established congressional policy of equal treatment for those\nwhose opposition to service is grounded in their religious tenets\xe2\x80\xa6.\nMoreover, we believe this construction embraces the ever-broadening understanding of the\nmodern religious community. \xe2\x80\xa6The Schema of the [1962-1965 Roman Catholic] Ecumenical\nCouncil included a most significant declaration on religion:\n\xe2\x80\xa6Ever since primordial days, numerous peoples have had a certain perception\nof that hidden power which hovers over the course of things and over the\nevents that make up the lives of men; some have even come to know of a\nSupreme Being and Father. Religions in an advanced culture have been able to\nuse more refined concepts and a more developed language in their struggle for\nan answer to man\xe2\x80\x99s religious questions.\n\xe2\x80\xa6The [Catholic] Church regards with sincere reverence those ways of action\nand of life, precepts and teachings which, although they differ from the ones\nshe sets forth, reflect nonetheless a ray of that Truth which enlightens all men.\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c38 Religion in the Law\nDr. David Saville Muzzey, a leader in the Ethical Culture Movement, states in his book,\nEthics As a Religion (1951), that \xe2\x80\x9c(e)verybody except the avowed atheists (and they are comparatively few) believes in some kind of God,\xe2\x80\x9d and that \xe2\x80\x9cThe proper question to ask, therefore,\nis not the futile one, Do you believe in God? but rather, What kind of God do you believe in?\xe2\x80\x9d\nDr. Muzzey attempts to answer that question:\n\xe2\x80\xa6Religion, for all the various definitions that have been given of it, must\nsurely mean the devotion of man to the highest ideal that he can conceive.\nAnd that ideal is a community of spirits in which the latent moral potentialities\nof men shall have been elicited by their reciprocal endeavors to cultivate the\nbest in their fellow men\xe2\x80\xa6.\nThus the \xe2\x80\x9cGod\xe2\x80\x9d that we love is not the figure on the great white throne, but\nthe perfect pattern, envisioned by faith, of humanity as it should be, purged of\nthe evil elements which retard its progress toward \xe2\x80\x9cthe knowledge, love and\npractice of the right.\xe2\x80\x9d\nThese are but a few of the views that comprise the broad spectrum of religious beliefs found\namong us. But they demonstrate very clearly the diverse manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. They further reveal the difficulties\ninherent in placing too narrow a construction on the provisions of s 6(j) and thereby lend conclusive support to the construction which we today find that Congress intended.\nWe recognize the difficulties that have always faced the trier of fact in these cases. We hope\nthat the test that we lay down proves less onerous. \xe2\x80\xa6 It is essentially an objective one, namely,\ndoes the claimed belief occupy the same place in the life of the objector as an orthodox belief in\nGod holds in the life of one clearly qualified for exemption?\nMoreover, it must be remembered that in resolving these exemption problems one deals\nwith the beliefs of different individuals who will articulate them in a multitude of ways. In such\nan intensely personal area, of course, the claim of the registrant that his belief is an essential part\nof a religious faith must be given great weight\xe2\x80\xa6. The validity of what he believes cannot be\nquestioned. Some theologians, and indeed some examiners, might be tempted to question the\nexistence of the registrant\xe2\x80\x99s \xe2\x80\x9cSupreme Being\xe2\x80\x9d or the truth of his concepts. But these are inquiries\nforeclosed to Government. As Mr. Justice Douglas stated in United States v. Ballard, 322 U.S.\n78, 86 (1944): \xe2\x80\x9cMen may believe what they cannot prove. They may not be put to the proof of\ntheir religious doctrines or beliefs. Religious experiences which are as real as life to some may be\nincomprehensible to others.\xe2\x80\x9d Local boards and courts in this sense are not free to reject beliefs\nbecause they consider them \xe2\x80\x9cincomprehensible.\xe2\x80\x9d Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.\nBut we hasten to emphasize that while the \xe2\x80\x9ctruth\xe2\x80\x9d of a belief is not open to question, there\nremains the significant question whether it is \xe2\x80\x9ctruly held.\xe2\x80\x9d This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact\xe2\x80\x94a prime consideration to the validity of every claim for exemption as a conscientious objector. The Act provides\na comprehensive scheme for assisting the Appeal Boards in making this determination, placing\nat their service the facilities of the Department of Justice, including the Federal Bureau of Investigation and hearing officers\xe2\x80\xa6.\nAs we noted earlier, the statutory definition excepts those registrants whose beliefs are based\non a \xe2\x80\x9cmerely personal moral code.\xe2\x80\x9d The records in these cases, however, show that at no time\ndid any one of the applicants suggest that his objection was based on a \xe2\x80\x9cmerely personal moral\ncode.\xe2\x80\x9d Indeed at the outset each of them claimed in his application that his objection was based\non a religious belief. We have construed the statutory definition broadly and it follows that any\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 39\nexception to it must be interpreted narrowly. The use by Congress of the words \xe2\x80\x9cmerely personal\xe2\x80\x9d seems to us to restrict the exception to a moral code which is not only personal but which\nis the sole basis for the registrant\xe2\x80\x99s belief and is in no way related to a Supreme Being. It follows,\ntherefore, that if the claimed religious beliefs of the respective registrants in these cases meet the\ntest that we lay down then their objections cannot be based on a \xe2\x80\x9cmerely personal\xe2\x80\x9d moral code.\nIn Seeger, No. 50, the Court of Appeals failed to find sufficient \xe2\x80\x9cexternally compelled beliefs.\xe2\x80\x9d However, it did find that \xe2\x80\x9cit would seem impossible to say with assurance that (Seeger) is\nnot bowing to \xe2\x80\x98external commands\xe2\x80\x99 in virtually the same sense as is the objector who defers to\nthe will of a supernatural power.\xe2\x80\x9d 326 F.2d, at 853. It found little distinction between Jakobson\xe2\x80\x99s\ndevotion to a mystical force of \xe2\x80\x9cGodness\xe2\x80\x9d and Seeger\xe2\x80\x99s compulsion to \xe2\x80\x9cgoodness.\xe2\x80\x9d Of course,\nas we have said, the statute does not distinguish between externally and internally derived beliefs.\nSuch a determination would, as the Court of Appeals observed, prove impossible as a practical\nmatter, and we have found that Congress intended no such distinction.\nThe Court of Appeals also found that there was no question of the applicant\xe2\x80\x99s sincerity. He\nwas a product of a devout Roman Catholic home; he was a close student of Quaker beliefs from\nwhich he said \xe2\x80\x9cmuch of (his) thought is derived\xe2\x80\x9d; he approved of their opposition to war in any\nform; he devoted his spare hours to the American Friends Service Committee and was assigned\nto hospital duty.\nIn summary, Seeger professed \xe2\x80\x9creligious belief\xe2\x80\x9d and \xe2\x80\x9creligious faith.\xe2\x80\x9d He did not disavow\nany belief \xe2\x80\x9cin a relation to a Supreme Being\xe2\x80\x9d; indeed he stated that \xe2\x80\x9cthe cosmic order does,\nperhaps, suggest a creative intelligence.\xe2\x80\x9d He decried the tremendous \xe2\x80\x9cspiritual\xe2\x80\x9d price man must\npay for his willingness to destroy human life. In light of his beliefs and the unquestioned sincerity\nwith which he held them, we think the Board, had it applied the test we propose today, would\nhave granted him the exemption. We think it clear that the beliefs which prompted his objection\noccupy the same place in his life as the belief in a traditional deity holds in the lives of his friends,\nthe Quakers\xe2\x80\xa6.\nIt may be that Seeger did not clearly demonstrate what his beliefs were with regard to the\nusual understanding of the term \xe2\x80\x9cSupreme Being.\xe2\x80\x9d But as we have said Congress did not intend\nthat to be the test. We therefore affirm the judgment in No. 50.\nIn Jakobson, No. 51, the Court of Appeals found that the registrant demonstrated that his\nbelief as to opposition to war was related to a Supreme Being. We agree and affirm that judgment.\nWe reach a like conclusion in No. 29. It will be remembered that Peter acknowledged \xe2\x80\x9csome\npower manifest in nature \xe2\x80\xa6 the supreme expression\xe2\x80\x9d that helps man in ordering his life. As to\nwhether he would call that belief in a Supreme Being, he replied, \xe2\x80\x9cyou could call that a belief in\nthe Supreme Being or God. These just do not happen to be the words I use.\xe2\x80\x9d We think that\nunder the test we establish here the Board would grant the exemption to Peter and we therefore\nreverse the judgment in No. 29. It is so ordered.\nJudgment in Nos. 50 and 51 affirmed; judgment in No. 29 reversed.\nMr. Justice DOUGLAS, concurring.\nIf I read the statute differently from the Court, I would have difficulties. For then those who\nembraced one religious faith rather than another would be subject to penalties; and that kind of\ndiscrimination, as we held in Sherbert v. Verner, 374 U.S. 398, would violate the Free Exercise\nClause of the First Amendment. It would also result in a denial of equal protection by preferring\nsome religions over others\xe2\x80\x94an invidious discrimination that would run afoul of the Due Process\nClause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497.\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c40 Religion in the Law\nThe legislative history of this Act leaves much in the dark. But it is, in my opinion, not a\ntour de force if we construe the words \xe2\x80\x9cSupreme Being\xe2\x80\x9d to include the cosmos, as well as an\nanthropomorphic entity\xe2\x80\xa6.\nThe words \xe2\x80\x9ca Supreme Being\xe2\x80\x9d have no narrow technical meaning in the field of religion.\nLong before the birth of our Judeo-Christian civilization the idea of God had taken hold in many\nforms. Mention of only two\xe2\x80\x94Hinduism and Buddhism\xe2\x80\x94illustrates the fluidity and evanescent\nscope of the concept. In the Hindu religion the Supreme Being is conceived in the forms of several\ncult Deities\xe2\x80\xa6. Though Hindu religion encompasses the worship of many Deities, it believes in\nonly one single God, the eternally existent One Being with his manifold attributes and manifestations. This idea is expressed in Digveda, the earliest sacred text of the Hindus\xe2\x80\xa6.\nDoes a Buddhist believe in \xe2\x80\x9cGod\xe2\x80\x9d or a \xe2\x80\x9cSupreme Being\xe2\x80\x9d? That, of course, depends on how\none defines \xe2\x80\x9cGod\xe2\x80\x9d \xe2\x80\xa6[If] \xe2\x80\x9cGod\xe2\x80\x9d is taken to mean a personal Creator of the universe, then the\nBuddhist has no interest in the concept. But if \xe2\x80\x9cGod\xe2\x80\x9d means something like the state of oneness\nwith God as described by some Christian mystics, then the Buddhist surely believes in \xe2\x80\x9cGod,\xe2\x80\x9d\nsince this state is almost indistinguishable from the Buddhist concept of Nirvana, \xe2\x80\x9cthe supreme\nReality; the eternal, hidden and incomprehensible Peace.\xe2\x80\x9d \xe2\x80\xa6\nWhen the present Act was adopted in 1948 we were a nation of Buddhists, Confucianists,\nand Taoists, as well as Christians. Hawaii, then a Territory, was indeed filled with Buddhists,\nBuddhism being \xe2\x80\x9cprobably the major faith, if Protestantism and Roman Catholicism are\ndeemed different faiths.\xe2\x80\x9d Stokes and Pfeffer, Church and State in the United States, p. 560\n(1964). \xe2\x80\xa6 In the continental United States Buddhism is found \xe2\x80\x9cin real strength\xe2\x80\x9d in Utah, Arizona, Washington, Oregon, and California. \xe2\x80\xa6.\nWhen the Congress spoke in the vague general terms of a Supreme Being I cannot, therefore,\nassume that it was so parochial as to use the words in the narrow sense urged on us. I would\nattribute tolerance and sophistication to the Congress, commensurate with the religious complexion of our communities. In sum, I agree with the Court that any person opposed to war on\nthe basis of a sincere belief, which in his life fills the same place as a belief in God fills in the life\nof an orthodox religionist, is entitled to exemption under the statute. None comes to us an\navowedly irreligious person or as an atheist; one, as a sincere believer in \xe2\x80\x9cgoodness and virtue\nfor their own sakes.\xe2\x80\x9d His questions and doubts on theological issues, and his wonder, are no\nmore alien to the statutory standard than are the awe-inspired questions of a devout Buddhist.\n\nUnited States v. Seeger, 380 U.S. 163 (1965)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 41\n\n662 F.2d 1025\nUnited States Court of Appeals,\nThird Circuit\n\nAfrica v. Commonwealth\nOctober 30, 1981\nADAMS, Circuit Judge.\nFrank Africa, who claims to be a \xe2\x80\x9cNaturalist Minister\xe2\x80\x9d for the MOVE organization and\nwho is a prisoner of the Commonwealth of Pennsylvania, appeals from a district court judgment\nholding that the state government is not required, under the religion clauses of the first amendment, to provide him with a special diet consisting entirely of raw foods. He maintains that to\neat anything other than raw foods would be a violation of his \xe2\x80\x9creligion.\xe2\x80\x9d After a careful consideration of the record in this case, we affirm.\nOn July 15, 1981, Frank Africa was convicted of various state offenses by a Pennsylvania\ncourt and was sentenced to serve a term of up to seven years at the State Correctional Institution\nat Graterford, Pennsylvania. Prior to his sentence, Africa had been incarcerated in Holmesburg\nPrison, a facility under the jurisdiction of Philadelphia County. While at Holmesburg, Africa\nrequested and received a special diet of uncooked vegetables and fruits.\nAfrica filed a motion for a temporary restraining order in federal district court on July 16,\n1981, seeking an order either that he remain in Holmesburg for the duration of his sentence or\nthat Graterford, upon his transfer there, be required to provide him with his dietary needs. In\nhis pleading for relief, Africa averred that, as a Naturalist Minister for MOVE, \xe2\x80\x9cI eat an all raw\nfood diet in accordance with my Religious principle. To eat anything else ... would be a direct\nviolation of my Religion and I will not violate my Religion for anyone.\xe2\x80\x9d Africa\xe2\x80\x99s motion was\nassigned to Judge Hannum, who classified the matter as a civil rights action under 42 U.S.C. s\n1983.\nState authorities transferred Africa from Holmesburg to Graterford on July 17, 1981. Later\nthat same day, at Judge Hannum\xe2\x80\x99s request, the Common Pleas Court of Philadelphia entered an\norder directing that Africa be returned to Holmesburg pending resolution of his request for injunctive relief. Pursuant to that order, Africa was sent back to Holmesburg on July 20 and his\nspecial diet was restored.\nOn July 27, 1981, the district court conducted a hearing on Africa\xe2\x80\x99s motion, which was\ntreated as an application for a permanent injunction, and received testimony from Africa himself, Ramona Johnson, a \xe2\x80\x9csupporter\xe2\x80\x9d of MOVE, and Julius T. Cuyler, the superintendent of\nGraterford. At the hearing, Africa acted pro se and was questioned directly by the court. Judge\nHannum sought to determine, among other things, whether Africa\xe2\x80\x99s diet was mandated by his\n\xe2\x80\x9creligion,\xe2\x80\x9d and, if so, whether the Commonwealth could demonstrate a compelling interest sufficient to infringe upon Africa\xe2\x80\x99s dietary practices\xe2\x80\xa6.\nBased on Africa\xe2\x80\x99s testimony and on materials he provided the district court, MOVE is a\n\xe2\x80\x9crevolutionary\xe2\x80\x9d organization \xe2\x80\x9cabsolutely opposed to all that is wrong.\xe2\x80\x9d MOVE was founded,\nalthough the record does not reveal when, by John Africa, who serves as the group\xe2\x80\x99s revered\n\xe2\x80\x9ccoordinator\xe2\x80\x9d and whose teachings Frank Africa and his fellow \xe2\x80\x9cfamily\xe2\x80\x9d members follow.\nMOVE has no governing body or official hierarchy; instead, because \xe2\x80\x9ceverything is level\xe2\x80\x9d and\n\xe2\x80\x9cthere are no ups or downs,\xe2\x80\x9d all MOVE members, including John Africa, occupy an equivalent\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c42 Religion in the Law\nposition within the organization. In fact, MOVE really has only \xe2\x80\x9cone member, one family, one\nbody\xe2\x80\x9d since, according to Frank Africa, to talk to an individual MOVE \xe2\x80\x9cdisciple\xe2\x80\x9d is to \xe2\x80\x9ctalk to\neverybody.\xe2\x80\x9d\nAfrica also summarized what he believed to be the tenets that defined the MOVE organization. MOVE\xe2\x80\x99s goals, he asserted, are \xe2\x80\x9cto bring about absolute peace, to stop violence altogether, to put a stop to all that is corrupt.\xe2\x80\x9d Toward this end, Africa and other MOVE adherents\nare committed to a \xe2\x80\x9cnatural,\xe2\x80\x9d \xe2\x80\x9cmoving,\xe2\x80\x9d \xe2\x80\x9cactive,\xe2\x80\x9d and \xe2\x80\x9cgenerating\xe2\x80\x9d way of life. By contrast,\nwhat they alternatively refer to as \xe2\x80\x9cthis system\xe2\x80\x9d or \xe2\x80\x9ccivilization\xe2\x80\x9d is \xe2\x80\x9cdegenerating\xe2\x80\x9d: its air and\nwater are \xe2\x80\x9cperverted\xe2\x80\x9d; its food, education, and governments are \xe2\x80\x9cartificial\xe2\x80\x9d; its words are \xe2\x80\x9cgibberish.\xe2\x80\x9d Members of MOVE shun matters \xe2\x80\x9csystematic\xe2\x80\x9d and \xe2\x80\x9chazardous\xe2\x80\x9d; they believe in \xe2\x80\x9cusing things (but) not misusing things.\xe2\x80\x9d Thus, according to Africa:\nThe air is first, but pollution is second. Water is first, but poison is second. The\nfood is first, but the chemicals that hurt the food are second.... We believe in\nthe first education, the first government, the first law.... This is the perception\nthat John Africa has given us. The water\xe2\x80\x99s existence is to be drunk and not\npoisoned, the air\xe2\x80\x99s presence is to be breathed and not polluted, the food\xe2\x80\x99s purpose is to be eaten and not distorted. The abuse that life suffers MOVE suffers\nthe same.\nMOVE endorses no existing regime or lifestyle; it yields to none in its uncompromising\ncondemnation of a society that it views as \xe2\x80\x9cimpure,\xe2\x80\x9d \xe2\x80\x9cunoriginal,\xe2\x80\x9d and \xe2\x80\x9cblemished.\xe2\x80\x9d\nAccording to Africa, MOVE is a religion. In fact, he insists that \xe2\x80\x9cjust as there is no comparison between the sun\xe2\x80\x99s perfection and the lightbulb\xe2\x80\x99s failure, there is no comparison between the\nabsolute necessity of our belief and this system\xe2\x80\x99s interpretation of religion.\xe2\x80\x9d Africa testified that\nMOVE members participate in no distinct \xe2\x80\x9cceremonies\xe2\x80\x9d or \xe2\x80\x9crituals\xe2\x80\x9d; instead, every act of life\nitself is invested with religious meaning and significance. In his words:\nWe are practicing our religious beliefs all the time: when I run, when I put\ninformation out like I am doing now, when I eat, when I breathe. All of these\nthings are in accordance to our religious belief.... We don\xe2\x80\x99t take a date out of\nthe week to practice our religion and leave the other days and say that we are\nnot going to practice our religion ... It is not a one-day thing or a once-a-week\nthing or a monthly thing. It doesn\xe2\x80\x99t have anything to do with time. Our religion is constant. It is as constant as breathing.... Every time a MOVE person\nopens their mouth, according to the way we believe, according to the way we\ndo things, we are holding church.\nSimilarly, Africa contends that, since no one day is any more special than another, for\nMOVE members every day of the year can be considered a religious \xe2\x80\x9choliday.\xe2\x80\x9d\nAfrica did not provide the district court with any purportedly official guidelines setting forth\nMOVE\xe2\x80\x99s religious credo. He did submit, however, a document, which he apparently authored,\nentitled Brief to Define the Importance of MOVE\xe2\x80\x99s Religious Diet. That document, which Africa\nasserts is wholly consonant with the teachings of John Africa, sets forth an elaborate explanation\nof the MOVE philosophical framework and consequently constitutes extremely pertinent evidence for purposes of assessing the nature of the organization. In the Brief, Africa contends that\n\xe2\x80\x9cwhile religion is seen as a way of life, our religion is simply the way of life, as our religion in\nfact is life.\xe2\x80\x9d Individuals who subscribe to the MOVE ideology must live in harmony with what\nis natural, or untainted:\nWater is raw, which makes it pure, which means it is innocent, trustworthy,\nand safe, which is the same as God.... Our religion is raw, our belief is pure as\noriginal, reliable as chemical free water, ... nourishing as the earth\xe2\x80\x99s soil that\nconnects us to food, satisfying as the air that gives breath to all life.\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 43\nBy rejecting the \xe2\x80\x9cpolluted\xe2\x80\x9d and the \xe2\x80\x9cfraudulent,\xe2\x80\x9d and by concentrating instead on the\n\xe2\x80\x9chealthy\xe2\x80\x9d and the \xe2\x80\x9coriginal,\xe2\x80\x9d men and women are put \xe2\x80\x9cin touch with life\xe2\x80\x99s vibration.\xe2\x80\x9d Africa\nasserts that, \xe2\x80\x9cwhen flowing, moving along with the activity of life, the less you resist the power\nthat commands this flow the more you become forceful as the flow.\xe2\x80\x9d\nCentral to this conception of an unadulterated existence is what Africa refers to as MOVE\xe2\x80\x99s\n\xe2\x80\x9creligious diet.\xe2\x80\x9d That diet is comprised largely of raw vegetables and fruits; MOVE members\nwho fully adhere to the diet decline to eat any foods that have been processed or cooked. \xe2\x80\x9cThere\nis nothing unusual or special about our diet,\xe2\x80\x9d Africa declares in his Brief; rather, \xe2\x80\x9cour religious\ndiet is common and uncomplicated because our diet is provided by God and already done.\xe2\x80\x9d\nFailure to follow the diet constitutes deviation from the \xe2\x80\x9cdirect, straight, and true\xe2\x80\x9d and results\nin \xe2\x80\x9cconfusion and disease.\xe2\x80\x9d In part, Africa\xe2\x80\x99s total commitment to specific provisions appears\nprudently based, since he asserts that it is \xe2\x80\x9cimpossible\xe2\x80\x9d for an individual\xe2\x80\x99s body to adjust to\nmore traditional fare after it has become accustomed to natural foods. But Africa also insists\nthat he is obligated to follow his diet:\nTo take away our diet is to leave me to eat nothing, for I have no choice,\nbecause when given a choice between eating poison and eating nothing, I have\nno choice but to eat nothing, for I can\xe2\x80\x99t eat other than raw. This would be\nsuicidal and suicide is against life\xe2\x80\x99s ministry.\nAfrica contends that the diet, in conjunction with \xe2\x80\x9cour founder\xe2\x80\x99s wisdom,\xe2\x80\x9d transformed\nhim from a weak, timid, and ailing being to a strong, confident, and healthy individual. \xe2\x80\x9cOur\nreligious diet is work, hard work, simple consistent unmechanized unscientific self-dependent\nwork,\xe2\x80\x9d he concludes; \xe2\x80\x9cour religious diet is family, unity, consistency, (and) uncompromising\ntogetherness.\xe2\x80\x9d\nDietary considerations excepted, Africa shed little light upon what, if any, ethical commandments are part and parcel of the MOVE philosophy. In response to specific questioning by the\ndistrict court, Africa testified that MOVE members would be unable to serve in the armed forces,\nsince \xe2\x80\x9cit is impossible for us to defend this system.\xe2\x80\x9d At the same time, though, he stressed that,\nfrom his point of view, there was nothing inconsistent in seeking judicial intervention to prevent\nhis transfer to Graterford:\nWe are taught to use anything, anything that is necessary to bring about our\npurpose.... I have to do whatever is necessary to get my point across, to teach\npeople.... I am using this system as a bridge to get my purpose to people (and\nto get) the poor people on my side.\n\xe2\x80\x9cWhen you are right, you are deserving of protection,\xe2\x80\x9d Africa declared, \xe2\x80\x9cand everything\nthat is in our interest is right.\xe2\x80\x9d\nAfrica\xe2\x80\x99s discussion of the MOVE organization and its dietary precepts was corroborated by\nthe testimony of Ramona Johnson, a self-labeled \xe2\x80\x9cMOVE supporter.\xe2\x80\x9d Johnson testified that her\n\xe2\x80\x9cbrother\xe2\x80\x9d was \xe2\x80\x9cordained\xe2\x80\x9d as a naturalist minister of MOVE by John Africa, and that he is an\nardent follower of his religion and its mandates. Johnson confirmed, but added little to Africa\xe2\x80\x99s\ndescription of the concerns that lie at the heart of the MOVE ideology. She contended that the\nMOVE \xe2\x80\x9creligion is total; it encompasses every aspect of MOVE members\xe2\x80\x99 lives; there is nothing\nthat is left out.\xe2\x80\x9d And she stressed that Africa\xe2\x80\x99s raw food diet is both a necessary \xe2\x80\x9cpart of\xe2\x80\x9d and a\nsincere \xe2\x80\x9creflection of\xe2\x80\x9d his religious commitment. In support of this last observation, Johnson\ntestified that Africa in fact had gone without food for the four day period in July when he was\nimprisoned at Graterford.\nThe final witness at the hearing in the district court was Julius T. Cuyler, the superintendent\nof Graterford. Cuyler testified that his institution was unwilling to meet the dietary needs of\nFrank Africa. He expressed concern about the possibility of \xe2\x80\x9ca proliferation of other groups\nsurfacing in our prison requesting special diets\xe2\x80\x9d and warned that, were a court to grant Africa\xe2\x80\x99s\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c44 Religion in the Law\ndesired relief, MOVE would attract new \xe2\x80\x9csympathizers.\xe2\x80\x9d Cuyler contended that the prison\xe2\x80\x99s\ncafeteria already made available to inmates a number of raw foods, such as bananas, apples,\nand oranges. There were practical reasons, he explained, why Graterford could not be any more\naccommodating in this regard: it would be \xe2\x80\x9cquite a major problem to buy the items that are\nlisted on this diet in the retail market\xe2\x80\x9d; the prison\xe2\x80\x99s accounting system would be unable to handle\nsuch a \xe2\x80\x9cmajor deviation\xe2\x80\x9d in the procurement process; some of the foods asked for by Africa,\nparticularly the potatoes, rice, corn, and berries, if \xe2\x80\x9cnot kept under strict security, would probably be stolen and used for other purposes,\xe2\x80\x9d such as to \xe2\x80\x9cmake homemade booze\xe2\x80\x9d; accumulation\nof raw food might lead to a \xe2\x80\x9crodent problem\xe2\x80\x9d; and furnishing special diets might delay the\nprison\xe2\x80\x99s feeding process, with the result that \xe2\x80\x9cour entire population will be deprived of just that\nmuch of recreation (time).\xe2\x80\x9d In short, according to Cuyler, providing Africa with a raw food diet\n\xe2\x80\x9ccould be the straw that could break the camel\xe2\x80\x99s back.\xe2\x80\x9d\nOn August 21, 1981, the district court denied Africa\xe2\x80\x99s application for injunctive relief. Africa v. State of Pennsylvania, 520 F.Supp. 967 (E.D.Pa.1981). In an opinion accompanying his\norder, Judge Hannum concluded that \xe2\x80\xa6 Africa had failed to establish that MOVE is \xe2\x80\x9ca religion\nwithin the purview and definition of the first amendment.\xe2\x80\x9d On the contrary, according to the\ndistrict court, \xe2\x80\x9cMOVE is merely a quasi-back-to-nature social movement of limited proportion\nand with an admittedly revolutionary design.\xe2\x80\x9d As an organization, it is concerned solely with\n\xe2\x80\x9cconcepts of health and a return to simplistic living.\xe2\x80\x9d This the district court found to be more\nakin to a \xe2\x80\x9csocial philosophy\xe2\x80\x9d than to a religion\xe2\x80\xa6 Consequently, the district court concluded\nthat both Frank Africa and MOVE itself \xe2\x80\x9care not entitled to the first amendment protections\nand rights respecting the exercise of religion.\xe2\x80\x9d Africa immediately appealed the district court\xe2\x80\x99s\ndecision to this Court\xe2\x80\xa6.\nThe relevant case law in the free exercise area suggests that two threshold requirements\nmust be met before particular beliefs, alleged to be religious in nature, are accorded first amendment protection. A court\xe2\x80\x99s task is to decide whether the beliefs avowed are (1) sincerely held,\nand (2) religious in nature, in the claimant\xe2\x80\x99s scheme of things. United States v. Seeger, 380 U.S.\n163, 185, 85 S.Ct. 850, 863 (1965); Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981). If either\nof these two requirements is not satisfied, the court need not reach the question, often quite\ndifficult in the penological setting, whether a legitimate and reasonably exercised state interest\noutweighs the proffered first amendment claim.\nIt is inappropriate for a reviewing court to attempt to assess the truth or falsity of an announced article of faith. Judges are not oracles of theological verity, and the Founders did not\nintend for them to be declarants of religious orthodoxy. See United States v. Ballard, 322 U.S.\n78, 85-88 (1944). The Supreme Court has emphasized, however, that \xe2\x80\x9cwhile the \xe2\x80\x98truth\xe2\x80\x99 of a\nbelief is not open to question, there remains the significant question whether it is \xe2\x80\x98truly held.\xe2\x80\x99\xe2\x80\x9d\nSeeger, 380 U.S. at 185. Without some sort of required showing of sincerity on the part of the\nindividual or organization seeking judicial protection of its beliefs, the first amendment would\nbecome \xe2\x80\x9ca limitless excuse for avoiding all unwanted legal obligations.\xe2\x80\x9d\nThe requirement of sincerity poses no obstacle to Africa in this case. Although the district\ncourt made no specific findings in this regard, the Commonwealth never intimated, either at the\nhearing below or on this appeal, that Africa\xe2\x80\x99s convictions, however they might be denominated,\nwere other than deeply held and sincerely advanced. Moreover, we are persuaded from our review of the record that Africa\xe2\x80\x99s opinions, especially those having to do with his diet, are \xe2\x80\x9ctruly\nheld\xe2\x80\x9d within the meaning of Ballard and Seeger. We turn, therefore, to the second issue: whether\nAfrica\xe2\x80\x99s beliefs, however sincerely possessed, are religious in nature.\nFew tasks that confront a court require more circumspection than that of determining\nwhether a particular set of ideas constitutes a religion within the meaning of the first amendment. Judges are ill-equipped to examine the breadth and content of an avowed religion; we\nmust avoid any predisposition toward conventional religions so that unfamiliar faiths are not\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 45\nbranded mere secular beliefs. \xe2\x80\x9cReligions now accepted were persecuted, unpopular and condemned at their inception.\xe2\x80\x9d United States v. Kuch, 288 F.Supp. 439, 443 (D.D.C.1968). Nonetheless, when an individual invokes the first amendment to shield himself or herself from otherwise legitimate state regulation, we are required to make such uneasy differentiations. In considering this appeal, then, we acknowledge that a determination whether MOVE\xe2\x80\x99s beliefs are\nreligious and entitled to constitutional protection \xe2\x80\x9cpresent(s) a most delicate question\xe2\x80\x9d; at the\nsame time, we recognize that \xe2\x80\x9cthe very concept of ordered liberty precludes allowing\xe2\x80\x9d Africa,\nor any other person, a blanket privilege \xe2\x80\x9cto make his own standards on matters of conduct in\nwhich society as a whole has important interests.\xe2\x80\x9d Wisconsin v. Yoder, 406 U.S. 205, 215-16\n(1972).\nThe Supreme Court has never announced a comprehensive definition of religion for use in\ncases such as the present one. There can be no doubt, however, that the Court has moved considerably beyond the wholly theistic interpretation of that term expressed in cases such as Davis\nv. Beason, 133 U.S. 333, 342 (1890) (\xe2\x80\x9c\xe2\x80\x98religion\xe2\x80\x99 has reference to one\xe2\x80\x99s views of his relations to\nhis Creator\xe2\x80\x9d). In United States v. Seeger, 380 U.S. 163 (1965), the Court recognized as religious\nfor purposes of the Universal Military Service and Training Act an individual\xe2\x80\x99s \xe2\x80\x9csincere religious\nbeliefs,\xe2\x80\x9d even though not theistic in nature, if \xe2\x80\x9cbased upon a power or being, or upon a faith, to\nwhich all else is subordinate or upon which all else is ultimately dependent.\xe2\x80\x9d 380 U.S. at 176. A\nsimilar \xe2\x80\x9cparallel\xe2\x80\x9d-belief approach was employed in Welsh v. United States, 398 U.S. 333 (1970),\nwhere conscientious objector status was extended to a military conscript even though he declined to profess belief in a Supreme Being. The four Justices in Welsh who considered the constitutional question, in addition to the statutory issue, either expressly or implicitly defined religion to include non-theistic ideologies. Id. 398 U.S. at 356 (Harlan, J., concurring); id. 398 U.S.\nat 367-74 (White, J., dissenting, joined by Burger, C. J., and Stewart, J.); see Malnak v. Yogi, 592\nF.2d 197, 205 (3d Cir. 1979) (Adams, J., concurring). And in Torcaso v. Watkins, 367 U.S. 488\n(1961), the Court struck down as a violation of the establishment clause a Maryland statute\nrequiring public officials to declare their belief in God before taking office. Justice Black, writing\nfor a unanimous Court, concluded that a state could not favor \xe2\x80\x9cthose religions based on a belief\nin the existence of God as against those religions founded on different beliefs.\xe2\x80\x9d Id. 367 U.S. at\n495 & n.11.\nDrawing upon these Supreme Court cases, a number of lower federal courts have adopted\na broad, non-theistic approach to the definition-of-religion question. In considering a first\namendment claim arising from a non-traditional \xe2\x80\x9creligious\xe2\x80\x9d belief or practice, the courts have\n\xe2\x80\x9clook(ed) to the familiar religions as models in order to ascertain, by comparison, whether the\nnew set of ideas or beliefs is confronting the same concerns, or serving the same purposes, as\nunquestioned and accepted \xe2\x80\x98religions.\xe2\x80\x99\xe2\x80\x9d Malnak, 592 F.2d at 207 (concurring opinion). In essence, the modern analysis consists of a \xe2\x80\x9cdefinition by analogy\xe2\x80\x9d approach. It is at once a refinement and an extension of the \xe2\x80\x9cparallel\xe2\x80\x9d-belief course first charged by the Supreme Court in\nSeeger.\n\xe2\x80\xa6In the Malnak opinion, which explicitly adopted the \xe2\x80\x9cdefinition by analogy\xe2\x80\x9d process,\nthree \xe2\x80\x9cuseful indicia\xe2\x80\x9d to determine the existence of a religion were identified and discussed. First,\na religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain\nformal and external signs. Applying these three factors, the concurring opinion in Malnak concluded that the Science of Creative Intelligence-Transcendental Meditation constituted a religion\nunder the first amendment despite the contentions of its leaders to the contrary. After considering\nAfrica\xe2\x80\x99s testimony in light of these guideposts, we reach the obverse result: in spite of his protestations, we conclude that MOVE, at least as described by Africa, is not a \xe2\x80\x9creligion,\xe2\x80\x9d in the sense\nthat that term is used in the first amendment.\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c46 Religion in the Law\nFundamental and ultimate questions. Traditional religions consider and attempt to come to\nterms with what could best be described as \xe2\x80\x9cultimate\xe2\x80\x9d questions-questions having to do with,\namong other things, life and death, right and wrong, and good and evil. Not every tenet of an\nestablished theology need focus upon such elemental matters, of course; still, it is difficult to\nconceive of a religion that does not address these larger concerns. For, above all else, religions\nare characterized by their adherence to and promotion of certain \xe2\x80\x9cunderlying theories of man\xe2\x80\x99s\nnature or his place in the Universe.\xe2\x80\x9d Founding Church of Scientology v. United States, 409 F.2d\n1146, 1160 (D.C.Cir.1969).\nWe conclude that the MOVE organization, as described by Africa at the hearing below,\ndoes not satisfy the \xe2\x80\x9cultimate\xe2\x80\x9d ideas criterion. Save for its preoccupation with living in accord\nwith the dictates of nature, MOVE makes no mention of, much less places any emphasis upon,\nwhat might be classified as a fundamental concern. MOVE does not claim to be theistic: indeed\nit recognizes no Supreme Being and refers to no transcendental or all-controlling force. Moreover, unlike other recognized religions, with which it is to be compared for first amendment purposes, MOVE does not appear to take a position with respect to matters of personal morality,\nhuman mortality, or the meaning and purpose of life. The organization, for example, has no\nfunctional equivalent of the Ten Commandments, the New Testament Gospels, the Muslim Koran, Hinduism\xe2\x80\x99s Veda, or Transcendental Meditation\xe2\x80\x99s Science of Creative Intelligence. Africa\ninsists that he has discovered a desirable way to conduct his life; he does not contend, however,\nthat his regimen is somehow morally necessary or required. Given this lack of commitment to\noverarching principles, the MOVE philosophy is not sufficiently analogous to more \xe2\x80\x9ctraditional\xe2\x80\x9d theologies.\nDespite having concluded that MOVE does not deal with \xe2\x80\x9cultimate ideas,\xe2\x80\x9d we concede that\nthe matter is not wholly free from doubt. Appointed counsel for Africa argues that MOVE\nmembers do share a fundamental concern, namely, an all-consuming belief in a \xe2\x80\x9cnatural\xe2\x80\x9d or\n\xe2\x80\x9cgenerating\xe2\x80\x9d way of life-a way of life that ultimately cannot be reconciled with \xe2\x80\x9ccivilization\xe2\x80\x9d\nitself. According to counsel, Africa\xe2\x80\x99s insistence on keeping \xe2\x80\x9cin touch with life\xe2\x80\x99s vibration\xe2\x80\x9d\namounts to a form of pantheism, wherein\nThe entity of God is the world itself, and God is \xe2\x80\x9cswallowed up in that unity\nwhich may be designated \xe2\x80\x98nature\xe2\x80\x99\xe2\x80\x9d.... (MOVE\xe2\x80\x99s) return to nature is not simply\na \xe2\x80\x9cpreferred\xe2\x80\x9d state. It is the only state. It is the state of being in pure harmony\nwith nature. This, MOVE calls godly. This is pantheism.\nWe decline to accept such a characterization of Africa\xe2\x80\x99s views, however. We recognize that,\nunder certain circumstances, a pantheistic-based philosophy might qualify for protection under\nthe free exercise clause. From the record in this case, though, we are not persuaded that Africa\nis an adherent of pantheism, as that word is commonly defined. His mindset seems to be far\nmore the product of a secular philosophy than of a religious orientation. His concerns appear\npersonal (e.g., he contends that a raw food diet is \xe2\x80\x9chealthy\xe2\x80\x9d and that pollution and other such\nproducts are \xe2\x80\x9chazardous\xe2\x80\x9d) and social (e.g., he claims that MOVE is a \xe2\x80\x9crevolutionary\xe2\x80\x9d organization, \xe2\x80\x9cabsolutely opposed to all that is wrong\xe2\x80\x9d and unable to accept existing regimes), rather\nthan spiritual or other-worldly. Indeed, if Africa\xe2\x80\x99s statements are deemed sufficient to describe a\nreligion under the Constitution, it might well be necessary to extend first amendment protection\nto a host of individuals and organizations who espouse personal and secular ideologies, however\nmuch those ideologies appear dissimilar to traditional religious dogmas.\nThe Supreme Court would appear to have foreclosed such an expansive interpretation of\nthe free exercise clause. In Wisconsin v. Yoder, the Court concluded that Wisconsin could not\nrequire members of the Amish sect to send their children to school beyond the eighth grade,\nwhere there was uncontested evidence that such a course was inconsistent with the Amish religion. The Court arrived at this result only after conducting a searching inquiry into the history\nand customs of the Amish people and into the nature of their religious teachings and practices.\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFirst Principles 47\nIn the course of his opinion for the Court, Chief Justice Burger stressed that the objections of the\nAmish to compulsory secondary education derived from \xe2\x80\x9cdeep religious conviction(s)\xe2\x80\x9d rather\nthan from a \xe2\x80\x9cpersonal\xe2\x80\x9d or \xe2\x80\x9csecular\xe2\x80\x9d philosophy. According to the Chief Justice:\n(I)f the Amish asserted their claims because of their subjective evaluation and\nrejection of the contemporary secular values accepted by the majority, much\nas Thoreau rejected the social values of his time and isolated himself at Walden\nPond, their claim would not rest on a religious basis. Thoreau\xe2\x80\x99s choice was\nphilosophical and personal rather than religious, and such belief does not rise\nto the demands of the Religion Clauses. 406 U.S at 216.\nPrecisely the same distinction had been drawn by the Court in the Seeger and Welsh cases:\nwhile an individual could qualify for conscientious objector status on the basis of a genuine\n\xe2\x80\x9creligious belief,\xe2\x80\x9d reliance upon a \xe2\x80\x9cmerely personal moral code\xe2\x80\x9d was insufficient.\nFor purposes of the case at hand, then, it is crucial to realize that the free exercise clause\ndoes not protect all deeply held beliefs, however \xe2\x80\x9cultimate\xe2\x80\x9d their ends or all-consuming their\nmeans. An individual or group may adhere to and profess certain political, economic, or social\ndoctrines, perhaps quite passionately. The first amendment, though, has not been construed, at\nleast as yet, to shelter strongly held ideologies of such a nature, however all-encompassing their\nscope. As the Supreme Court declared in Yoder, \xe2\x80\x9c(a) way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation ... if it is based on purely\nsecular considerations; to have the protection of the Religion Clauses, the claims must be rooted\nin religious belief.\xe2\x80\x9d 406 U.S. at 215. While we do not necessarily agree with the district court\xe2\x80\x99s\ndescription of MOVE as \xe2\x80\x9cmerely a quasi-back-to-nature social movement of limited proportion,\xe2\x80\x9d Africa, 520 F.Supp. at 970, we conclude that the concerns addressed by MOVE, even\nassuming they are \xe2\x80\x9cultimate\xe2\x80\x9d in nature, are more akin to Thoreau\xe2\x80\x99s rejection of \xe2\x80\x9cthe contemporary secular values accepted by the majority\xe2\x80\x9d than to the \xe2\x80\x9cdeep religious conviction(s)\xe2\x80\x9d of the\nAmish.\nComprehensiveness. The concurring opinion in Malnak stressed that a religion must consist\nof something more than a number of isolated, unconnected ideas. \xe2\x80\x9cA religion is not generally\nconfined to one question or one moral teaching; it has a broader scope. It lays claim to an ultimate and comprehensive \xe2\x80\x98truth.\xe2\x80\x99\xe2\x80\x9d 592 F.2d at 209. The Science of Creative Intelligence qualified\nas a religion, therefore, in part because of its comprehensive nature: its teachings consciously\naimed at providing the answers to \xe2\x80\x9cquestions concerning the nature both of world and man, the\nunderlying sustaining force of the universe, and the way to unlimited happiness.\xe2\x80\x9d Id. at 213.\nIn contrast, we cannot conclude, at least on the basis of Africa\xe2\x80\x99s testimony, that MOVE\nmembers share a comparable \xe2\x80\x9cworld view.\xe2\x80\x9d MOVE appears to consist of a single governing\nidea, perhaps best described as philosophical naturalism. Apart from this desire to live in a\n\xe2\x80\x9cpure\xe2\x80\x9d and \xe2\x80\x9cnatural\xe2\x80\x9d environment, however \xe2\x80\x93 a desire which we already have deemed insufficiently religious to qualify for first amendment protection \xe2\x80\x93 little more of substance can be identified about the MOVE ideology. It would not be possible, we believe, on the basis of the record\nin this case, to place Africa\xe2\x80\x99s dietary concerns within the framework of a \xe2\x80\x9ccomprehensive belief\nsystem.\xe2\x80\x9d Expressed somewhat differently, were we to conclude that Africa\xe2\x80\x99s views, taken as a\nwhole, satisfied the comprehensiveness criterion, it would be difficult to explain why other single-faceted ideologies \xe2\x80\x93 such as economic determinism, Social Darwinism, or even vegetarianism\n\xe2\x80\x93 would not qualify as religions under the first amendment.\nAgain, we acknowledge that our conclusion in this regard is not unassailable. It could be\nargued that Africa\xe2\x80\x99s views are in a sense comprehensive, since, according to his testimony, his\nevery effort and thought is attributable to and explained by his \xe2\x80\x9creligious\xe2\x80\x9d convictions. MOVE\nmembers, according to Africa, \xe2\x80\x9care practicing our religious beliefs all the time,\xe2\x80\x9d even when running, eating, and breathing. The notion that all of life\xe2\x80\x99s activities can be cloaked with religious\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c48 Religion in the Law\nsignificance is, of course, neither unique to MOVE nor foreign to more established religions.\nSuch a notion by itself, however, cannot transform an otherwise secular, one-dimensional philosophy into a comprehensive theological system. It is one thing to believe that, because of one\xe2\x80\x99s\nreligion, day-to-day living takes on added meaning and importance. It is altogether different,\nhowever, to contend that certain ideas should be declared religious and therefore accorded first\namendment protection from state interference merely because an individual alleges that his life\nis wholly governed by those ideas. We decline to adopt such a self-defining approach to the\ndefinition-of-religion problem.\nStructural characteristics. A third indicium of a religion is the presence of\nAny formal, external, or surface signs that may be analogized to accepted religions. Such signs might include formal services, ceremonial functions, the\nexistence of clergy, structure and organization, efforts at propagation, observance of holidays and other similar manifestations associated with the traditional religions. Malnak, supra, at 209 (concurring opinion).\nMOVE lacks almost all of the formal identifying characteristics common to most recognized religions. For example, Africa testified that his organization did not conduct any special\nservices and did not recognize any official customs. Similarly, the group apparently exists without an organizational structure, since MOVE consists of only \xe2\x80\x9cone member\xe2\x80\x9d and since \xe2\x80\x9ceverything is level.\xe2\x80\x9d In this connection, although Africa claimed to be an ordained \xe2\x80\x9cNaturalist Minister,\xe2\x80\x9d he did not make clear what responsibilities and benefits, if any, this title conferred on him\nin contradistinction to other MOVE members. Moreover, MOVE apparently celebrates no holidays, since it takes the position that every day of the year is equally important. Finally, although\nAfrica referred to a series of guidelines that supposedly were written by John Africa and that\nallegedly set forth MOVE\xe2\x80\x99s principal tenets, no such documents were made available to the\ndistrict court; thus, the record contains nothing that arguably might pass for a MOVE scripture\nbook or catechism. Given what we know about the group from the record, we are of the view\nthat MOVE is not structurally analogous to those \xe2\x80\x9ctraditional\xe2\x80\x9d organizations that have been\nrecognized as religions under the first amendment.\nWe conclude first, that to the extent MOVE deals with \xe2\x80\x9cultimate\xe2\x80\x9d ideas, a proposition in\nitself subject to serious doubt, it is concerned with secular matters and not with religious principles; second, that MOVE cannot lay claim to be a comprehensive, multi-faceted theology; and\nthird, that MOVE lacks the defining structural characteristics of a traditional religion. The \xe2\x80\x9cnew\nset of ideas or beliefs\xe2\x80\x9d presented by Africa does not appear to us to \xe2\x80\x9cconfron(t) the same concerns, or serv(e) the same purposes, as unquestioned and accepted \xe2\x80\x98religions,\xe2\x80\x99\xe2\x80\x9d Malnak, 592 F.2d\nat 207 (concurring opinion). We hold, therefore, that MOVE, at least as described by Africa, is\nnot a religion for purposes of the religion clauses. We do not conclude that Africa\xe2\x80\x99s sincerelyheld beliefs are false, misguided, or unacceptable, but only that those beliefs, as described in the\nrecord before us, are not \xe2\x80\x9creligious,\xe2\x80\x9d as the law has defined that term.\nAs the result of our holding in this case, the Commonwealth of Pennsylvania is not required\nunder the first amendment to supply Frank Africa with a special raw-food diet. Such a consequence, however troubling, follows directly from our declaration that MOVE is not a religion.\nWe do not mean to suggest, however, that the requirements of the first amendment also define\nthe proper scope of prudent state penological policy. Especially in light of the apparent willingness of Graterford officials to accede to the dietary requirements of other prisoners, both for\nreligious and for medical reasons, it is not clear from the record why special accommodations\ncannot be made in this instance for a prisoner who obviously cares deeply about what food he\neats. Nonetheless, as a matter of constitutional law, the Commonwealth prevails. Accordingly,\nthe judgment of the district court will be affirmed.\n\nAfrica v. Commonwealth, 622 F.2d 1025 (CA3 1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 49\n\nEstablishment\nPrinciple, Policy, and Pronouncement\nTHE VERY FIRST SENTENCE of the First Amendment warns, \xe2\x80\x9cCongress shall make no\nlaw respecting an establishment of religion\xe2\x80\xa6\xe2\x80\x9d In typical Constitutional fashion, however, the term \xe2\x80\x9cestablishment\xe2\x80\x9d is left undefined. Undefined terms are left up to interpretation. Interpretations vary widely, of course. On one end of the spectrum was\nThomas Jefferson, who believed the establishment clause created \xe2\x80\x9ca wall of separation\nbetween Church & State,\xe2\x80\x9d totally divorcing religion from national government.1 On\nthe other end is Supreme Court justice Clarence Thomas, who believes that the clause\nprohibits nothing more than a national church in which membership is legally forced\nor coerced.2 Between those two poles are a pile of theories that speak generally of \xe2\x80\x9cneutrality\xe2\x80\x9d or \xe2\x80\x9caccommodation\xe2\x80\x9d or otherwise try to strike a conciliatory balance between\nthe religious impulses of the majority and the need for government to be open to all.\nThe establishment clause creates a cause of action. Citizens may sue under the\nclause to challenge government policies or pronouncements that have religious content,\npromote religion in general, or favor one religion over others.3 The outcome of these\nsuits have been, to put it mildly, inconsistent. For example, the Supreme Court has\ninterpreted the establishment clause to prohibit mandatory school prayer, subsidies for\nbooks and teacher salaries in religious schools, and the posting of the Ten Commandments in schools and courthouses. Meanwhile, it has also interpreted the clause to allow legislative prayer, transportation and tuition subsidies for students in religious\nschools, \xe2\x80\x9cSunday closing\xe2\x80\x9d laws, and the posting of the Ten Commandments outside\nstate capitols.\nThis section is not just about litigation under one clause of the Constitution, however. \xe2\x80\x9cEstablishment,\xe2\x80\x9d for our purposes, means something more. Religion (specifically\nChristianity) is woven throughout American law and takes forms beyond a nativity\nscene in front of a municipal building4 or a giant cross in an intersection of a state\nhighway.5 Religion appears in \xe2\x80\x9cpublic morals\xe2\x80\x9d legislation at the heart of the state\xe2\x80\x99s\npolice power. It appears in judicial opinions upholding that legislation. It appears on\nall legal tender, in the pledge of allegiance to the flag, and in the statues and carvings\nthat adorn government buildings. Religion even appears in the call to order of the U.S.\nSupreme Court:\n\nThomas Jefferson, Letter to the Danbury Baptists (January 1, 1802),\nhttps://www.loc.gov/loc/lcib/9806/danpre.html.\n2 Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 608 (2014) (Thomas, concurring).\n3 Government acts that disfavor specific religions are usually litigated under the free exercise clause by members of the disfavored religions.\n4 Lynch v. Donnelly, 465 U.S. 668 (1984).\n5 American Legion v. American Humanist Association, 139 S.Ct. 2067 (2019)\n1\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c50 Religion in the Law\n\nThe Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United\nStates, are admonished to draw near and give their attention, for the\nCourt is now sitting. God save the United States and this Honorable\nCourt.\nThis section has three parts that each explore the concept of \xe2\x80\x9cestablishment\xe2\x80\x9d from\ndifferent angles. The first part features judicial opinions, written in the nineteenth,\ntwentieth, and twenty-first centuries, that openly endorse the religious basis of the\nstate\xe2\x80\x99s police power to regulate morality, invoking \xe2\x80\x9cnatural law\xe2\x80\x9d or divine commandment. The second part shows how courts have upheld \xe2\x80\x93 and curtailed \xe2\x80\x93 government\nimposition of religious morality using ostensibly neutral, secular language articulating\nconstitutional theories other than establishment. The third part explores the inconsistent ways the Supreme Court has interpreted the actual establishment clause of the\nFirst Amendment. As you read the cases in the third part, contrast them with the cases\nin the first and second. Note that American courts have routinely upheld explicitly\nreligious and moral legislation without acknowledging the existence of the establishment clause at all.6\n\nPart One: Open Endorsement of Religious Morality\nEvery government exercises the \xe2\x80\x9cpolice power.\xe2\x80\x9d The police power is the power to\npass laws to protect the public health, safety, welfare, and public morals. Traditionally,\nit includes the power to ban unpopular conduct, even if the conduct is \xe2\x80\x9charmless\xe2\x80\x9d or\n\xe2\x80\x9cvictimless,\xe2\x80\x9d or does nothing more than offend the majority\xe2\x80\x99s sense of religious morality. Despite the establishment clause (and all the individual rights-protecting clauses of\nthe federal and state constitutions), American courts have repeatedly upheld moralitybased legislation, often openly endorsing its religious foundations, even when it curtails\nliberty or discriminates against minorities.\nIn 1700, the colony of Pennsylvania banned public blasphemy; anyone caught criticizing, disparaging, or denouncing religion could be fined for breaching the peace.\nEven after adopting a free speech clause in its own constitution and ratifying the federal\nFirst Amendment, Pennsylvania continued to enforce the law into the nineteenth century.\nIn 1821, a debate society member named Abner Updegraph ran afoul of the blasphemy law. During a debate, he dared to say that the \xe2\x80\x9cHoly Scriptures were a mere\nfable,\xe2\x80\x9d and \xe2\x80\x9ccontained a great many lies.\xe2\x80\x9d He was arrested, charged, convicted, and\nfined ten dollars. Updegraph appealed, arguing that the speech and religious freedom\nprovisions of the federal and state constitutions prevented the enforcement of the blasphemy law. However, in an opinion extolling religious doctrine, the Supreme Court of\nPennsylvania declared that Christianity was part of the common law, and thus the state\n\nThis is not necessarily a purposeful oversight. Courts, including the Supreme Court, generally limit their inquiries to the issues raised by the litigants. If the litigants do not raise\nan establishment clause issue, the courts will usually not do it sua sponte (on their own accord).\n6\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 51\n\nhad the power to protect Christianity from disparagement. The state sanctioned Updegraph not for his beliefs, the court said, but for his disruptive actions. The police\npower allowed punishment for breaches of the peace, even if \xe2\x80\x9cthe peace\xe2\x80\x9d is religious\nsensibility.7\nAfter the Civil War and the retreat of federal troops from the South that ended\nReconstruction, state governments used their police power to carve up society into racially segregated compartments. White legislators passed laws that separated Black\npeople from whites in theaters, in schools,\nin train cars, in public transit, and even in\nmarriage. This period, called Jim Crow,\nlasted a century, from the late-1860s until\nthe late-1960s.\nSegregation had a distinctly religious\ncomponent. Though most legislation\npassed during Jim Crow was facially deSegregated Waiting Room, Georgia 1943\nvoid of any biblical references, courts up- - Esther Bubley\nholding the laws regularly invoked religious doctrine. Keeping Black people away from white people was well within the police power of the state, judges concluded, because the Bible made it clear that the races\nshould be separate. What better for public health and morality than the governmental\nimposition of such an unassailable biblical principle?\nIn 1866, Kentucky amended its constitution to prohibit the teaching of Black and\nwhite students together in public schools. The constitution also segregated municipal\ncolleges such as the University of Louisville (turned public in 1846) and state universities such as the University of Kentucky (founded in 1865). Private colleges, such as\nBerea College, were not subject to the constitution, and thus not obligated to segregate,\nthough all but Berea segregated themselves anyway. By 1904, Berea\xe2\x80\x99s continued integration became a target for the segregationist Kentucky General Assembly, which\npassed an act called the Day Law \xe2\x80\x9cto prohibit white and colored persons from attending the same school.\xe2\x80\x9d8 The state convicted and fined Berea for violating the law.\nBerea appealed all the way to the United States Supreme Court, arguing that the\nDay Law violated the Fifth Amendment\xe2\x80\x99s right of contract and the Fourteenth Amendment\xe2\x80\x99s equal protection mandate. Unfortunately for Berea, the Supreme Court ruled in\nfavor of Kentucky on the narrow grounds that the state was rationally exercising its\nwide discretion to regulate corporations chartered under state law.\nMore important for our purposes was a prior stop along the way. Before reaching\nthe U.S. Supreme Court, Berea\xe2\x80\x99s case was heard by the Kentucky Court of Appeals\n(then the highest court in the state). Instead of focusing on its corporate status, the\nPennsylvania\xe2\x80\x99s ban on blasphemy was eventually struck down as unconstitutional in the\ncase of Kalman v. Cortes, 723 F.Supp.2d 766 (2010), 190 years after Updegraph. Federal\ndistrict judge Michael Baylson\xe2\x80\x99s lengthy opinion in Kalman fully recounts how the incorporation of the First Amendment\xe2\x80\x99s establishment and free exercise clauses made state blasphemy bans obsolete and unenforceable.\n8 Named after bill sponsor Carl Day of the Kentucky House of Representatives.\n7\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c52 Religion in the Law\n\nEdward O'Rear\n- Wikimedia\n\nCourt of Appeals upheld Berea\xe2\x80\x99s conviction because\nracial segregation was a biblical and natural imperative well within the police power of the state. Writing for the Court, Judge Edward O\xe2\x80\x99Rear invoked religious doctrine to bolster his ruling, pontificating on\nthe rightness of all forms of segregation, from train\ncars to colleges. O\xe2\x80\x99Rear\xe2\x80\x99s opinion in Berea perfectly\nillustrates the intersection of Christianity and eugenics that dominated judicial reasoning (and most of\nAmerican academic thought) around the turn of the\ntwentieth century.\n\nIn 1924, Virginia enacted a law \xe2\x80\x9cto preserve racial integrity.\xe2\x80\x9d This Racial Integrity Act formally enshrined a multitude of eugenic theories into law. For example, the law empowered the state government to sterilize anyone legally deemed an \xe2\x80\x9cimbecile\xe2\x80\x9d in order to eliminate mental disability and its assumed symptoms, such as crime and dependency. The U.S. Supreme Court notoriously\nupheld this part of the law in the case of Buck v. Bell.9 The Racial Integrity Act also\ncriminalized interracial marriage for similar reasons. Popular among Christian eugenicists at the time was the idea that children of interracial relationships were biologically\ndeficient, and thus, in order to protect public health and ensure the survival of the\nfittest, state governments should have the power to prohibit interracial relationships.\nEven after the Nazis took American-style eugenics to its next, most horrendous level,10\nthe idea that divine natural law compelled racial segregation remained dominant\nthroughout much of the United States for another two decades.\nIn 1955, a white Virginia woman named Ruby Elaine Naim petitioned for the annulment of her marriage to a Chinese immigrant named Han Say Naim. Ruby cited\nthe Racial Integrity Act as grounds for the annulment. She and Han had gotten married\nin North Carolina before moving back to Norfolk specifically because Virginia law\nprohibited their union. Under Virginia law, all such marriages as theirs were void and\nunenforceable, thus she was entitled to an annulment. The trial court granted Ruby\xe2\x80\x99s\npetition. On appeal, Han argued that the Racial Integrity Act was unconstitutional as a violation of the due\nprocess and equal protection clauses of the Fourteenth\nAmendment.\nThe Virginia Supreme Court rejected Han\xe2\x80\x99s argument and upheld the miscegenation provisions of the\nRacial Integrity Act. Justice Archibald Buchanan\xe2\x80\x99s opinion for the court had two key premises. First, no state\ncourt outside of California had ever struck down an interracial marriage ban, and neither had the U.S. Supreme Court, so there was no legal imperative to rule\n\nArchibald Buchanan\n- SCVAHistory.org\n\n274 U.S. 200 (1927).\nOtto Hoffman, a member of the Nazi SS, specifically cited Buck v. Bell and the similarities between American and Nazi eugenics policies in his defense against war crimes\ncharges at Nuremberg in 1948. See Adam Cohen, IMBECILES (2016) pg. 303.\n9\n\n10\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 53\n\notherwise. Second, interracial relationships were against God and nature and thus the\nstate had full police power to prohibit them in order to protect public health and welfare. Buchanan invoked the same biblical principles that Kentucky Judge O\xe2\x80\x99Rear had\na half century before, and the Racial Integrity Act lived on.\nLegally mandated racial segregation persisted for more than a decade more. Not\nuntil 1964 did the federal Civil Rights Act and similar state anti-discrimination laws\nbegin to kill Jim Crow as official policy, and it would be another three years before the\nU.S. Supreme Court finally dispatched interracial marriage bans in Loving v. Virginia.11\nNearly a century after the ratification of the Fourteenth Amendment, Loving and other\nrulings under Chief Justice Earl Warren finally transformed its due process and equal\nprotection clauses into weapons against racial discrimination rather than shields to\nprotect it.\nDespite this legislative and constitutional sea change, Naim v. Naim was not the\nlast judicial opinion of its kind. Another form of religious discrimination \xe2\x80\x93 sexual orientation discrimination \xe2\x80\x93 lived on into the twenty-first century in the form of bans on\nconsensual sex, adoption by gay couples, and gay marriage. Despite the fact that Christian opposition to homosexuality laid at the base of all these restrictions, courts ignored\nissues of establishment, instead scrutinizing the laws as neutral exercises of the \xe2\x80\x9cpolice\npower.\xe2\x80\x9d Most judges writing in favor of sexual orientation discrimination have done\nso obliquely, omitting Bible passages in favor of more general statements about democracy, tradition, public health, or \xe2\x80\x9cpublic decency.\xe2\x80\x9d Not all judges, however.\nFrom 2001-2003, Roy Moore served as the\nelected Chief Justice of the Alabama Supreme\nCourt. Moore first made a name for himself as a\nstate trial court judge in the 1990s by hanging the\nTen Commandments on the wall of his courtroom\nand opening every hearing with a prayer. In 1995\nthe American Civil Liberties Union sued him for unconstitutional courtroom piety.12 Despite this controversy, Moore ran for and won the top seat on the\nstate\xe2\x80\x99s highest court in 2001, and soon after commissioned a granite monument of the Commandments to occupy the lobby of the building. This act\nRoy Moore\n- NBC News\ntriggered another federal lawsuit by the ACLU,\nwhich ultimately ended with the removal of the\nCommandments \xe2\x80\x93 and Moore from his judicial seat. After Moore repeatedly defied\nfederal court orders to remove the monument, the Alabama Court of the Judiciary\nstripped him of his office in 2003. He would later be re-elected to the position of Chief\nJustice in 2012, only to be suspended for further ethical violations. He eventually resigned in 2016.13\nIn 2002, during his brief first stint as Chief Justice, Moore and his colleagues on\nthe Alabama Supreme Court heard a child custody case called Ex parte H.H. A mother\n388 U.S. 1 (1967).\nEx parte State ex rel. James, 711 S.2d 952 (Ala. 1998).\n13 In 2017, Moore ran for U.S. Senate, very narrowly losing to Democrat Doug Jones.\n11\n12\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c54 Religion in the Law\n\nliving in California sought physical custody rights to her three children who were at\nthe time living with their father in Alabama. The facts were otherwise not notable,\nexcept that the mother was a lesbian. The trial court ruled against the mother on evidentiary grounds, holding that she failed to prove a sufficient change in circumstances\nto justify a new custody order. The Alabama Court of Appeals reversed, concluding\nthat the trial court improperly considered the mother\xe2\x80\x99s sexual orientation when it ruled\nagainst her. The Alabama Supreme Court then unanimously reversed on the limited\ngrounds that the trial court\xe2\x80\x99s order was based on a sufficient evidentiary record and\nwas entitled to deferential review.\nChief Justice Moore went further, writing separately \xe2\x80\x9cto state that the homosexual\nconduct of a parent \xe2\x80\xa6 creates a strong presumption of unfitness that alone is sufficient\njustification for denying that parent custody.\xe2\x80\x9d Citing biblical doctrine in a way reminiscent of Berea College and Naim, Moore explained that homosexuality had long\nbeen recognized as \xe2\x80\x9ca crime against nature\xe2\x80\x9d and \xe2\x80\x9can inherent evil\xe2\x80\x9d by the common\nand statutory law of Alabama and thus the state could deny custody to gay parents as\na routine exercise of its police power. No other members of the Alabama Supreme\nCourt joined his opinion, but none wrote against it, either.\n***\nOpen judicial advocacy of religious beliefs has fallen out of favor. No Supreme\nCourt justice today would declare that \xe2\x80\x9cthis is a Christian nation\xe2\x80\x9d as did Justice David\nBrewer in 1892.14 Divinely inspired \xe2\x80\x9cnatural law\xe2\x80\x9d theories have been replaced by more\nsecular and formalistic approaches to judging. Roy Moore, before his second removal\nfrom office, faced harsh criticism for his religious advocacy from fellow judges and\nlawyers, earning the nickname \xe2\x80\x9cthe Ayatollah of Alabama.\xe2\x80\x9d15 Nevertheless, many judicial opinions (both old and new) that openly endorse and apply religious doctrine\nhave never been overruled, and thus remain binding precedent.\nFURTHER READING\nStephen L. Carter, The Religiously Devout Judge, 64 Notre Dame L. Rev. 932 (1989).\nJoseph R. Duncan, Privilege, Invisibility, and Religion: A Critique of the Privilege that\nChristianity Has Enjoyed in the United States, 54 Ala. L. Rev. 617 (2003).\nSanja Zgonjanin, Quoting the Bible: The Use of Religious References in Judicial Decision-Making, 9 N.Y. City L. Rev. 31 (2005).\n\nChurch of Holy Trinity v. United States, 143 U.S. 457, 471 (1892).\nKent Faulk, \xe2\x80\x9cRoy Moore\xe2\x80\x99s Suspension Upheld by Alabama Supreme Court; Decision Next\nWeek on Senate Race,\xe2\x80\x9d AL.com (Jan. 13, 2019), https://www.al.com/news/birmingham/2017/04/suspended_alabama_supreme_cour.html.\n14\n15\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 55\n\n11 Serg. & Rawle 394 (Pa.)\nSupreme Court of Pennsylvania\n\nUpdegraph v. Commonwealth\nSeptember 13, 1824\nThe opinion of the Court was delivered by DUNCAN, J.\nThis was an indictment for blasphemy, founded on an act of assembly, passed in 1700,\nwhich enacts, that whosoever shall wilfully, premeditatedly and despitefully blaspheme, and\nspeak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scripture of\nTruth, and is legally convicted thereof, shall forfeit and pay the sum of ten pounds.\nIt charges the defendant with contriving and intending to scandalize and bring into disrepute, and vilify the Christian religion, and the scriptures of truth; and that he, in the presence\nand hearing of several persons, unlawfully, wickedly, and premeditatedly, despitefully and blasphemously, did say, among other things, in substance, as follows: \xe2\x80\x9cthat the Holy Scriptures were\na mere fable, that they were a contradiction, and that although they contained a number of good\nthings, yet they contained a great many lies:\xe2\x80\x9d and the indictment concludes, to the great dishonor\nof Almighty God, to the great scandal of the profession of the Christian religion, to the evil\nexample of all others in like case offending, and against the form of the act of assembly in such\ncase made and provided.\nThe jury have found that the defendant did speak words of that substance, in the temper\nand with the intent stated. This verdict \xe2\x80\xa6 finds a malicious intention in the speaker to vilify the\nChristian religion and the scriptures, and this court cannot look beyond the record, nor take any\nnotice of the allegation, that the words were uttered by the defendant, a member of a debating\nassociation \xe2\x80\xa6 in the course of argument on a religious question. That there is an association in\nwhich so serious a subject is treated with so much levity, indecency and scurrility, existing in this\ncity, I am sorry to hear, for it would prove a nursery of vice, a school of preparation to qualify\nyoung men for the gallows, and young women for the brothel, and there is not a skeptic of\ndecent manners and good morals, who would not consider such debating clubs as a common\nnuisance and disgrace to the city. From the tenor of the words, it is impossible that they could\nbe spoken seriously and conscientiously, in the discussion of a religious or theological topic; there\nis nothing of argument in the language; it was the out-pouring of an invective, so vulgarly shocking and insulting, that the lowest grade of civil authority ought not to be subject to it, but when\nspoken in a Christian land, and to a Christian audience, the highest offence contra bonos mores\n[\xe2\x80\x9cagainst good morals\xe2\x80\x9d]; and even if Christianity was not part of the law of the land, it is the\npopular religion of the country, an insult on which would be indictable, as directly tending to\ndisturb the public peace.\n\xe2\x80\xa6[The] assertion is once more made, that Christianity never was received as part of the\ncommon law of this Christian land; and it is added, that if it was, it was virtually repealed by\nthe constitution of the United States, and of this state, as inconsistent with the liberty of the\npeople, the freedom of religious worship, and hostile to the genius and spirit of our government,\nand with it, the act against blasphemy; and if the argument be worth anything, all the laws which\nhave Christianity for their object--all would be carried away at one fell swoop--the act against\ncursing and swearing, and breach of the Lord\xe2\x80\x99s day; the act forbidding incestuous marriages,\nperjury by taking a false oath upon the book, fornication and adultery, et peccatum illud horri-\n\nUpdegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c56 Religion in the Law\nbile non nominandum inter Christianos [\xe2\x80\x9cthat horrible crime not to be named among Christians\xe2\x80\x9d otherwise known as homosexuality]--for all these are founded on Christanity--for all\nthese are restraints upon civil liberty, according to the argument--edicts of religious and civic\ntyranny, \xe2\x80\x9cwhen enlightened notions of the rights of man were not so universally diffused as at\nthe present day.\xe2\x80\x9d\xe2\x80\xa6\nWe will \xe2\x80\xa6 dispose of what is considered the grand objection--the constitutionality of Christianity--for, in effect, that is the question. Christianity, general Christianity, is and always has\nbeen a part of the common law of Pennsylvania; \xe2\x80\xa6this Christianity was one of the considerations of the royal charter, and the very basis of its great founder, William Penn; not Christianity\nfounded on any particular religious tenets; not Christianity with an established church, and\ntithes and spiritual courts; but Christianity with liberty of conscience to all men\xe2\x80\xa6.\nFrom the time of Bracton, Christianity has been received as part of the common law of\nEngland\xe2\x80\xa6. In the justly-admired speech of Lord MANSFIELD, in a case which made much\nnoise at the time--Evans v. Chamberlain of London \xe2\x80\x93 Conscience, he observed, is not controllable by human laws, nor amenable to human tribunals; persecution, or attempts to force conscience, will never produce conviction, and were only calculated to make hypocrites or martyrs.\nThere never was a single instance, from the Saxon times down to our own, in which a man was\npunished for erroneous opinions. For atheism, blasphemy, and reviling the Christian religion,\nthere have been instances of prosecution at the common law; but bare non-conformity is no sin\nby the common law, and all pains and penalties for non-conformity to the established rites and\nmodes are repealed by the acts of toleration, and dissenters exempted from ecclesiastical censures. \xe2\x80\xa6 The great and wise and learned judge observes,\nThe true principles of natural religion are part of the common law; the essential principles of revealed religion are part of the common law; so that a person\nvilifying, subverting or ridiculing them may be prosecuted at common law;\nbut temporal punishments ought not to be inflicted for mere opinions.\nLong before this, much suffering, and a mind of a strong and liberal cast, had taught this\nsound doctrine and this Christian precept to William Penn. The charter of Charles II. recites,\nthat \xe2\x80\x9cWhereas our trusty and beloved William Penn, out of a commendable desire to enlarge\nour English empire, as also to reduce the savages, by gentle and just measures, to the love of civil\nsociety, and the Christian religion, hath humbly besought our leave to translate a colony.\xe2\x80\x9d The\nfirst legislative act in the colony was the recognition of the Christian religion, and establishment\nof liberty of conscience. \xe2\x80\xa6 It is called the great law of the body of laws, in the province of\nPennsylvania, passed at an assembly at Chester, the 7th of the 12th month, December\xe2\x80\xa6:\nWhereas ye glory of Almighty God, and ye good of mankind, is ye reason and\nend of government, and therefore, government in itself is a venerable ordinance of God; and forasmuch as it is principally desired and intended by ye\nproprietary and governor, and ye freemen of ye province of Pennsylvania, and\nterritorys thereunto belonging, to make and establish such laws as shall best\npreserve true Christian and civil liberty, in opposition to all unchristian, licentious and unjust practices, whereby God may have his due, C\xc3\xa6sar his due,\nand ye people their due\xe2\x80\xa6\nIt is enacted by the authority aforesaid, yt no person, at any time hereafter\nliving in this province, who shall confess and acknowledge one Almighty God\nto be ye creator, upholder and ruler of ye world, and that professeth him or\nherself obliged in conscience to live peaceably and justly under ye civil government, shall in any wise be molested or prejudiced for his or her conscientious\npersuasion or practice, nor shall he or she, at any time, be compelled to frequent or maintain any religious worship, plan or ministry whatever, contrary\n\nUpdegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 57\nto his or her mind, but shall freely and fully enjoy his or her Christian liberty\nin yt respect, without any interruption or reflection; and if any person shall\nabuse or deride any other for his or her different persuasion and practice in a\nmatter of religion, such shall be lookt upon as a disturber of ye peace, and\nshall be punished accordingly.\nAnd to the end that looseness, irreligion and atheism may not creep in under the pretence\nof conscience, it provides for the observance of the Lord\xe2\x80\x99s day, punishes profane cursing and\nswearing, and further enacts, for the better preventing corrupt communication, \xe2\x80\x9cthat whoever\nshall speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, or Scriptures\nof Truth, and is thereof legally convicted, shall forfeit and pay five pounds, and be imprisoned\nfor five days in the house of correction.\xe2\x80\x9d\nThus this wise legislature framed this great body of laws, for a Christian country and Christian people. Infidelity was then rare, and no infidels were among the first colonists. They fled\nfrom religious intolerance, to a country where all were allowed to worship according to their\nown understanding, and as was justly observed by the learned chancellor of the associated members of the bar of Philadelphia, in the city of Philadelphia, in his address to that body, 22d of\nJune 1822, the number of Jews was too inconsiderable to excite alarm, and the believers in\nMahomet were not likely to intrude. Every one had the right of adopting for himself whatever\nopinion appeared to be the most rational, concerning all matters of religious belief; thus securing\nby law this inestimable freedom of conscience, one of the highest privileges, and greatest interests\nof the human race.\nThis is the Christianity of the common law, incorporated into the great law of Pennsylvania,\nand thus, it is irrefragably proved, that the laws and institutions of this state are built on the\nfoundation of reverence for Christianity. Here was complete liberty of conscience, with the exception of disqualification for office of all who did not profess faith in Jesus Christ. This disqualification was not contained in the constitution of 1776; the door was open to any believer\nin a God, and so it continued under our present constitution, with the necessary addition of a\nbelief in a future state of rewards and punishments\xe2\x80\xa6.\nUnder the constitution, penalties against cursing and swearing have been exacted. If Christianity was abolished, all false oaths, all tests by oath, in the common form, by the book, would\ncease to be indictable as perjury; the indictment must state the oath to be on the holy Evangelists\nof Almighty God; the accused, on his trial, might argue that the book by which he was sworn,\nso far from being holy writ, was a pack of lies, containing as little truth as Robinson Crusoe.\nAnd is every jury in the box to decide as a fact whether the scriptures are of divine origin? \xe2\x80\xa6\nIt is sometimes asked, with a sneer, why not leave it to Almighty God to revenge his own\ncause? Temporal courts do so leave it. \xe2\x80\x9cBold and presumptuous would be the man who would\nattempt to arrest the thunder of heaven from the hand of God, and direct the bolts of vengeance\nwhere to fall.\xe2\x80\x9d It is not on this principle courts act, but on the dangerous temporal consequences\nlikely to proceed from the removal of religious and moral restraints; this is the ground of punishment for blasphemous and criminal publications; and without any view to spiritual correction\nof the offender\xe2\x80\xa6.\nIt is not an auto-da-fe [\xe2\x80\x9cact of faith,\xe2\x80\x9d a phrase used during the Spanish Inquisition to mean\npublic punishment for heresy], displaying vengeance; but a law, punishing with great mildness,\na gross offence against public decency and public order, tending directly to disturb the peace of\nthe commonwealth. Chief Justice SWIFT, in his System of Laws, 2 vol. 825, has some very just\nreasoning on the subject. He observes, \xe2\x80\x9cTo prohibit the open, public and explicit denial of the\npopular religion of a country, is a necessary measure to preserve the tranquillity of a government.\nOf this, no person in a Christian country can complain; for, admitting him to be an infidel, he\n\nUpdegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c58 Religion in the Law\nmust acknowledge that no benefit can be derived from the subversion of a religion which enforces the purest morality.\xe2\x80\x9d \xe2\x80\xa6\nIt has long been firmly settled, that blasphemy against the Deity generally, or an attack on the\nChristian religion indirectly, for the purpose of exposing its doctrines to ridicule and contempt,\nis indictable and punishable as a temporal offence. \xe2\x80\xa6[It] never was a crime at the commonlaw, seriously and conscientiously to discuss theological and religious topics \xe2\x80\xa6 and persons of\na different religion, as Jews, though they must necessarily deny the authenticity of other religions, have never been punished as blasphemers or libelers, at common law for so doing. All\nmen of conscientious religious feeling ought to concede outward respect to every mode of religious worship.\n\xe2\x80\xa6[A] malicious and mischievous intention is, in such a case, the broad boundary between\nright and wrong, and that it is to be collected from the offensive levity, scurrilous and opprobrious language, and other circumstances, whether the act of the party was malicious; and since\nthe law has no means of distinguishing between different degrees of evil tendency, if the matter\npublished contains any such evil tendency, it is a public wrong. An offence against the public\npeace may consist either of an actual breach of the peace, or doing that which tends to provoke\nand excite others to do it. Within the latter description fall all acts and all attempts to produce\ndisorder, by written, printed, or oral communications, for the purpose of generally weakening\nthose religious and moral restraints, without the aid of which mere legislative provisions would\nprove ineffectual. No society can tolerate a willful and despiteful attempt to subvert its religion,\nno more than it would to break down its laws--a general, malicious and deliberate intent to\noverthrow Christianity, general Christianity. This is the line of indication, where crime commences, and the offence becomes the subject of penal visitation\xe2\x80\xa6.\nNo free government now exists in the world, unless where Christianity is acknowledged,\nand is the religion of the country. \xe2\x80\xa6 Christianity is part of the common law of this state. It is\nnot proclaimed by the commanding voice of any human superior, but expressed in the calm and\nmild accents of customary law. Its foundations are broad and strong, and deep; they are laid in\nthe authority, the interest, the affections of the people. Waiving all questions of hereafter, it is the\npurest system of morality, the firmest auxiliary, and only stable support of all human laws. It is\nimpossible to administer the laws, without taking the religion which the defendant in error has\nscoffed at, that scripture which he has reviled, as their basis; to lay aside these is, at least, to\nweaken the confidence in human veracity, so essential to the purposes of society, and without\nwhich no question of property could be decided, and no criminal brought to justice; an oath in\nthe common form, on a discredited book, would be a most idle ceremony. This act, was not\npassed, as the counsel supposed, when religious and civil tyranny were at their height; but on\nthe breaking forth of the sun of religious liberty, by those who had suffered much for conscience\xe2\x80\x99\nsake, and fled from ecclesiastical oppression.\nThe counsel is greatly mistaken in attributing to the common law the punishment at the\nstake and by the faggot [a stick used for whipping]. No man ever suffered at common law for\nany heresy; the writ de h\xc3\xa6retico comburendo [regarding the burning of heretics], and all the\nsufferings which he has stated in such lively colors, and which give such a frightful, though not\nexaggerated picture, were the enactments of positive laws, equally barbarous and impolitic.\n\xe2\x80\xa6Christianity [forms] a necessary part of our common law; it inflicts no punishment for a nonbelief in its truths; it is a stranger to fire and to faggots, and this abused statute merely inflicts a\nmild sentence on him who bids defiance to all public order, disregards all decency, by contumelious reproaches, scoffing at and reviling that which is certainly the religion of the country; and\nwhen the counsel compared this act against blasphemy to the act against witchcraft, and declared this was equally absurd, I do not impute to him that which I know his heart abhors, a\nscoffing at religion, but to the triteness of the topics \xe2\x80\xa6.\n\nUpdegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 59\nAs I understand this writ of error was taken out with a view to decide the question, whether\nChristianity was part of the law of the land, and whether it was consistent with our civil institutions, I have considered it a duty to be thus explicit. No preference is given by law to any particular religious persuasion; protection is given to all by our laws; it is only the malicious reviler\nof Christianity who is punished. By general Christianity is not intended the doctrine of worship\nof any particular church or sect; the law leaves these disputes to theologians; it is not known as\na standard by which to decide political dogmas. The worship of the Jews is under the protection\nof the law, and all persecutions against Unitarians have been discontinued\xe2\x80\xa6.\nWhile our own free constitution secures liberty of conscience and freedom of religious worship to all, it is not necessary to maintain that any man should have the right publicly to vilify\nthe religion of his neighbors and of the country; these two privileges are directly opposed. It is\nopen, public vilification of the religion of the country that is punished, not to force conscience\nby punishment, but to preserve the peace of the country by an outward respect to the religion\nof the country, and not as a restraint upon the liberty of conscience; but licentiousness, endangering the public peace, when tending to corrupt society, is considered as a breach of the peace,\nand punishable by indictment. Every immoral act is not indictable, but when it is destructive of\nmorality generally, it is, because it weakens the bonds by which society is held together, and\ngovernment is nothing more than public order\xe2\x80\xa6.\nThis is the Christianity which is the law of our land, and I do not think it will be an invasion\nof any man\xe2\x80\x99s right of private judgment, or of the most extended privilege of propagating his\nsentiments with regard to religion, in the manner which he thinks most conclusive. If from a\nregard to decency and the good order of society, profane swearing, breach of the Sabbath, and\nblasphemy, are punishable by civil magistrates, these are not punished as sins or offences against\nGod, but crimes injurious to, and having a malignant influence on society; for it is certain, that\nby these practices, no one pretends to prove any supposed truths, detect any supposed error, or\nadvance any sentiment whatever\xe2\x80\xa6.\n[Despite concluding that blasphemy was a viable criminal charge under the common\nlaw of Pennsylvania, the court nevertheless reversed the defendant\xe2\x80\x99s conviction on\ndue process grounds - the indictment failed to properly state the statutory offense\nwith which he was charged.]\n\nUpdegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c60 Religion in the Law\n29 Ky.L.Rptr. 284\nCourt of Appeals of Kentucky\n\nBerea College v. Commonwealth\nJune 12, 1906\nO\xe2\x80\x99REAR, Judge.\nThere were two indictments against appellant in the Madison circuit court, for alleged infractions of an act of the Legislature, approved March 22, 1904, entitled \xe2\x80\x9cAn act to prohibit\nwhite and colored persons from attending the same school.\xe2\x80\x9d The first indictment, which was\nnumbered 6,009 on the circuit court calendar, charged appellant with operating a school for\nwhites and negroes in violation of the act. The second indictment, numbered 6,045, charges\nappellant with the offense of \xe2\x80\x9cmaintaining and operating a college, school, and institution of\nlearning where persons of the white and negro races are both received, and within a distance of\ntwenty\xe2\x80\x93five miles of each other, as pupils for instruction.\xe2\x80\x9d The act alluded to, the title to which\nhas been given above, is in the following words:\nSection 1. That it shall be unlawful for any person, corporation or association\nof persons to maintain or operate any college, school or institution where persons of the white and negro races are both received as pupils for instruction;\nand any person or corporation who shall operate or maintain any such college, school or institution shall be fined $1000, and any person or corporation\nwho may be convicted of violating the provisions of this act shall be fined\n$100 for each day they may operate said school, college or institution after\nsuch conviction\xe2\x80\xa6.\nSec. 4. Nothing in this act shall be construed to prevent any private school,\ncollege or institution of learning from maintaining a separate and distinct\nbranch thereof, in a different locality, not less than twenty\xe2\x80\x93five miles distant,\nfor the education exclusively of one race or color. Acts 1904, p. 181, c. 85.\nAppellant was found guilty, and fined $1,000 in each case. These appeals involve the constitutionality of the statute. The cases are heard and disposed of together.\nAppellant Berea College is a private nonsectarian school. It was founded some 50 years ago,\nfor the purpose, it is said, of \xe2\x80\x9cpromoting the cause of Christ,\xe2\x80\x9d and to give general and nonsectarian religious instruction to \xe2\x80\x9call youth of good moral character.\xe2\x80\x9d\n...The circuit court sustained the constitutionality of the act in every particular. Appellant\nassails its constitutionality upon the ground that it violates the Bill of Rights embraced in the\nConstitution of this state, as well as that it is in conflict with the fourteenth amendment to the\nConstitution of the United States.\nIt is claimed that the act is repugnant to the [Kentucky] Bill of Rights, in that it violates the\nfollowing, which are guaranties to every citizen: (1) The right of enjoying and defending their\nliberty. (2) The right of worshipping Almighty God according to the dictates of their own consciences. (3) The right of seeking and pursuing their safety and happiness. (4) The right of freely\ncommunicating their thoughts and opinions. (5) The right of acquiring and protecting property.\n(6) That every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.\n\nBerea College v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 61\nThe twenty\xe2\x80\x93sixth section of the [Kentucky] Bill of Rights concludes: \xe2\x80\x9cTo guard against\ntransgression of the high powers which we have delegated, we declare that everything in this Bill\nof Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this constitution, shall be void.\xe2\x80\x9d\nAppellant\xe2\x80\x99s contention is: \xe2\x80\x9cThis act violates the letter or spirit of every one of the provisions\nreferred to. It destroys the rights of the teachers and pupils of Berea College to enjoy their liberties and the right of seeking and pursuing their safety and happiness. It denies the right to worship God according to the dictates of their own consciences by attending and participating in\nnonsectarian religious exercises in a school or institution of their own choice. It denies to the\ntrustees, the teachers, and all others connected with the institution, the right to freely communicate their thoughts and opinions, and it denies to the institution itself and to its assistants and\nemploy\xc3\xa9s of every grade the right of acquiring and protecting property, and the right to follow\ntheir usual and innocent occupations.\xe2\x80\x9d\nWe understand appellant\xe2\x80\x99s argument to reach to the conclusion that the exercise of police\npower by the state is prohibited concerning the subjects enumerated in the Bill of Rights; at least\nit is beneath those rights, and must be exercised so as not to conflict with them.\nNo jurist has dared to attempt to state the limit in law of that quality in government which\nis exercised through what is termed the \xe2\x80\x9cpolice power.\xe2\x80\x9d All agree that it would be inadvisable\nto attempt it. Yet very broadly and indefinitely speaking, it is the power and obligation of government to secure and promote the general welfare, comfort, and convenience of the citizens, as\nwell as the public peace, the public health, the public morals, and the public safety\xe2\x80\xa6. It is not\ninaptly regarded in some of its most important features as the right of self\xe2\x80\x93protection in government, the right of self\xe2\x80\x93preservation in society. It inheres in every state, is fundamental in the\nexistence of every independent government, enabling it to conserve the well\xe2\x80\x93being of society,\nand prohibit all things hurtful to its comfort or inimical to its existence.\nIn view of these definitions of the principle, unsatisfactory as they must be conceded to be,\nit is apparent that even those things reserved by the people in the Bill of Rights from the powers\ndelegated to their magistrates are impliedly subject also to this power to preserve the state.\n\xe2\x80\xa6[L]ife and liberty, either or both, may be forfeited by the citizen under laws enacted under it.\nThe right of worshipping Almighty God according to the dictates of our own consciences\xe2\x80\x94\nprobably the first great moving cause of our early colonial civilization\xe2\x80\x94yields to the proper\nexercise of this power. For example, the practices of polygamy, so inimical to the well\xe2\x80\x93being of\nsociety, though deemed a religious rite, must yield to the police power of the state. If it were held\nhere by some, as it is in some countries, a religious duty that mothers should worship God by\nsacrificing their babes, throwing them into the rivers to appease His supposed wrath, it would\nnot be tolerated by the state, however conscientious the votary of the right. The pursuit of happiness in any useful and innocent employment, or the free movement of one\xe2\x80\x99s person, even when\ndone under considerations of his own safety, are subject to this same power. The most familiar\ninstance, probably, is the application of quarantine and health laws.\nYet this power itself fortunately has its limitations. To be exercised exclusively within the\ndiscretion of the political branch of government, it must have a just and real relation to one of\nthe ends for which that power may be lawfully employed. Mere declaration that the proposed\nexercise is in behalf of such end is not enough. The action must be cognate to one of the subjects\nto which the power properly pertains. The duty is upon the courts upon a proper application,\nto declare void an attempted exercise of such power, which is not fairly and reasonably related\nto a proper end. Thus balanced, there is little danger that oppression can result from its arbitrary\nemployment. The good sense and the honest judgment of each generation must after all furnish\nthe real limit to the police power of government. For each age must judge\xe2\x80\x94and will judge\xe2\x80\x94of\nwhat is hurtful to its welfare, of what endangers the existence of society, of what threatens to\ndestroy the race of people who are applying this primal law of self\xe2\x80\x93protection to their own case.\n\nBerea College v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c62 Religion in the Law\n\xe2\x80\xa6[A]ny new application of the police power of government is regarded with closest scrutiny, not unmixed with apprehension. It can be abused, to the hurt of the people. It can be neglected to the hurt of the state. The application of it by the statute above quoted is new. It has\nnever before been so applied so far as we are certainly aware.\nThe question is, is it a fair exercise of the police power to prohibit the teaching of the white\nand negro races together? Is it a fair exercise of the power to restrain the two races from voluntarily associating together in a private school, to acquire a scholastic education?\nThe mingling of the blood of the white and negro races by interbreeding is deemed by the\npolitical department of our state government as being hurtful to the welfare of society. Marriage\nby members of the one race with those of the other is prohibited by statute. It is admitted freely\nin argument that the subject of marriage is one of the very first importance to society; that it\nmay be regulated by law even as among members of the same race. Inbreeding is known to\nlower the mental and physical vigor of the offspring. So incestuous marriages are prohibited.\nOthers not incestuous, but involving the probable effect upon the vitality of the offspring, are\nprohibited also, and marriages by idiots. Still other inhibitions, such as age, and so forth, are\nimposed, all of which look to the well\xe2\x80\x93being of the future generations. No one questions the\nvalidity of such statutes, enacted as they confessedly are, under the police power of the state.\nUpon the same considerations this same power has been exercised to prohibit the intermarriage\nof the two races. The result of such marriage would be to destroy the purity of blood and identity\nof each. It would detract from whatever characteristic force pertained to either. Such statutes\nhave been upheld in the foregoing cases: Ex parte Hobbs, 1 Woods (U. S.) 537, Fed. Cas. No.\n6,550; State v. Gibson, 36 Ind. 402; State v. Jackson, 80 Mo. 177; State v. Hairston, 63 N. C.\n453; Brook v. Brook, 9 H. L. 193; Green v. State, 58 Ala. 190; Lonas v. State, 3 Heisk. (Tenn.)\n309\xe2\x80\xa6.\nThe separation of the human family into races, distinguished no less by color than by temperament and other qualities, is as certain as anything in nature. Those of us who believe that\nall of this was divinely ordered have no doubt that there was wisdom in the provision; albeit we\nare unable to say with assurance why it is so. Those who see in it only nature\xe2\x80\x99s work must also\nconcede that in this order, as in all others in nature, there is an unerring justification. There exists\nin each race a homogenesis by which it will perpetually reproduce itself, if unadulterated. Its\ninstinct is gregarious. As a check there is another, an antipathy to other races, which some call\nrace prejudice. This is nature\xe2\x80\x99s guard to prevent amalgamation of the races. A disregard of this\nantipathy to the point of mating between the races is unnatural, and begets a resentment in the\nnormal mind. It is incompatible to the continued being of the races, and is repugnant to their\ninstincts. So such mating is universally regarded with disfavor. In the lower animals this quality\nmay be more effective in the preservation of distinct breeds. But among men conventional decrees in the form of governmental prescripts are resorted to in aid of right conduct to preserve\nthe purity of blood. No higher welfare of society can be thought of than the preservation of the\nbest qualities of manhood of all its races.\nIf then it is a legitimate exercise of the police power of government to prevent the mixing of\nthe races in cross\xe2\x80\x93breeding, it would seem to be equally within the same power to regulate that\ncharacter of association which tends to a breach of the main desideratum\xe2\x80\x94the purity of racial\nblood. In less civilized society the stronger would probably annihilate the weaker race. Humane\ncivilization is endeavoring to fulfill nature\xe2\x80\x99s edicts as to the preservation of race identity in a\ndifferent way. Instead of one exterminating the other, it is attempted to so regulate their necessary\nintercourse as to preserve each in its integrity.\nThe maxims of liberty and the pursuit of happiness which are familiar to the common law,\nwherefrom the idea found in our Bill of Rights is probably borrowed, are the principles worked\nout by the Anglo\xe2\x80\x93Saxon race for its own government. In no other country has it ever been at-\n\nBerea College v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 63\ntempted before, at least on so important a scale, to apply such principles alike to so many different races, types, and creeds of men. The experiment is great in its importance. It forms now\none of the biggest questions being worked out by this great North American republic. That\nmuch bitterness has appeared, and some oppression has been practiced, are among the inevitable\nattendants upon the adjustment by people of different races of the rights justly belonging to\neach.\nClashing of antipathies resulting in outbreaks of violence tends to disturb the public peace;\nthreatens the public safety, and so disrupts the serenity of common purpose to promote the\nwelfare of all the people, that the question is become one of the first importance to the section\nwhere the two races live in the greatest numbers. That it is well within the police power of\ngovernment to legislate upon this question so as to repress such outbreaks and to prevent disturbances of the public tranquility, we have no sort or doubt. The seriousness of the situation is\nnot new. Even before the abolition of slavery it was keenly and intelligently anticipated. Since\nthe emancipation of the negro it has not been the least of the grave problems of government\nwhich have been presented to some of the states for solution\xe2\x80\xa6.\nIs not this situation one, if ever there was one, which calls for and amply justifies the exercise\nof police power of the government? Or should this irritating cause be left without restraint or\ncontrol, till by the exhaustion of one side or the other it is settled by the sheer force of superiority\nof numbers or physical power? It is idle to talk of controlling ideas by legislation, or even by\nforce. You cannot bind an idea by a statute. The attempt should be made, and we believe is\nbeing made, in good faith to so control this situation through the law that neither race can have\njust cause for complaint; so that each may have every lawful privilege and right that the other\nhas; so that equality of rights before the law shall be a fact, as well as a high\xe2\x80\x93sounding theory;\nyet so as to conserve the very best of the characteristics of each race, to develop its idea of morality, its thrift, independence and usefulness.\nObservation and study at close hand of both the theory and practical working of this problem of social existence, of the collaboration of two races so different as the white and black in\nthe same state upon a plane of legal equality, where the government is by the people for the\npeople, it has been found \xe2\x80\xa6 that at the very bottom of all the trouble is the racial antipathy to\nthe destruction of its own identity; and that, if that danger is removed, the friction practically\ndisappears. A separation of the races under certain conditions is therefore enforced, where it is\nbelieved that their mingling would tend to produce the very condition which is found to lie at\nthe base of the trouble. In its application it becomes all the more necessary that the overmastering\nprinciples included in the police power of the government be firmly recognized, so that a clashing\nof race prejudices, or race destruction, may be lawfully averted.\n\xe2\x80\xa6[E]ach proposed application of the [police] power is to be determined upon the circumstances under which it is sought to be applied. If it is arbitrary, unreasonable, or oppressive, it\nwill be denied. \xe2\x80\xa6If it be conceded, as we think the fact is, that the ultimate object of this legislation providing separate schools for the two races was to separate the youth of each during the\nmost impressible and least responsible period of their lives, and until ripened judgment and observation can have set them well in the safe ways of thinking, much of the dangers of the shame\nand distress which errors of immaturity might entail would be avoided. The legislation above\nenumerated is all of a kind. It has two great objects. One, the preservation of the identity and\npurity of the races; the other, the avoidance of clashes between the races by preventing their most\nfruitful sources.\nIn upholding this character of legislation in a separate coach regulation the Supreme Court\nof Pennsylvania, in West Chester etc., R. R. Co. v. Miles, 93 Am. Dec. 747, thus stated the\nprincipal thought:\n\nBerea College v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c64 Religion in the Law\n\xe2\x80\xa6[T]he question \xe2\x80\xa6 is whether there is such a difference between the white\nand black races within this state, resulting from nature, law, and custom, as\nmakes it a reasonable ground of separation. The question is one of difference,\nnot of superiority, or inferiority. Why the Creator made one black and the\nother white, we know not; but the fact is apparent, and the races distinct, each\nproducing its own kind, and following the peculiar law of its constitution.\nConceding equality, with natures as perfect and rights as sacred, yet God has\nmade them dissimilar, with those natural instincts and feelings which He always imparts to his creatures when He intends that they shall not overstep the\nnatural boundaries he has assigned to them.\nThe natural law which forbids their intermarriage, and that social amalgamation which leads to a corruption of the races, is as clearly divine as that which\nimparted to them different natures. \xe2\x80\xa6 The natural separation of the races is\n\xe2\x80\xa6 an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature. From social amalgamation it is\nbut a step to illicit intercourse, and but another to intermarriage. But to assert\nseparateness is not to declare inferiority in either; it is not to declare one a slave\nand the other a freeman\xe2\x80\x94that would be to draw the illogical sequence of inferiority from difference only. It is simply to say that following the order of\nDivine Providence, human authority ought not to compel these widely separate races to intermix\xe2\x80\xa6. When, therefore, we declare a right to maintain separate relations \xe2\x80\xa6 it is not prejudice, nor caste, nor injustice of any kind, but\nsimply to suffer men to follow the law of races established by the Creator\nhimself, and not to compel them to intermix contrary to their instincts.\n\xe2\x80\xa6The remaining question is whether the act as construed by this court violates the fourteenth amendment to the Constitution of the United States. That amendment guaranties the\nequal protection of the laws to all citizens of the United States, and prohibits any state from\ndepriving any citizen of the United States of his property, life, or liberty without due process of\nlaw. The act involved applies equally to all citizens. It makes no discrimination against those of\neither race. The right to teach white and negro children in a private school at the same time and\nplace is not a property right. Besides, appellant, as a corporation created by this state, has no\nnatural right to teach at all. Its right to teach is such as the state sees fit to give to it. The state\nmay withhold it altogether, or qualify it. Allgeyer v. Louisiana, 165 U. S. 578. We do not think\nthe act is in conflict with the federal Constitution.\nWherefore, we conclude that the judgment in case 6,009 should be affirmed, and that the\njudgment in case 6,045 should be reversed, and be remanded with directions to dismiss that\nindictment. [The court concluded that Section 4 of the statute was unenforceable and severed it\nfrom the rest of the law, which it upheld.]\nCANTRILL, J., absent. BARKER, J., dissents [in part and concurs in part, without opinion].\n\nBerea College v. Commonwealth, 29 Ky. L. Rptr. 284 (Ky. 1906)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 65\n197 Va. 80\nSupreme Court of Appeals of Virginia\n\nNaim v. Naim\nJune 13, 1955\nBUCHANAN, J., delivered the opinion of the court.\nThis is an appeal from a decree of the court below holding the marriage between the appellant and the appellee to be void under \xc2\xa7 20-54 of the Code of Virginia, 1950, which is part of\n\xe2\x80\x9cAn ACT to preserve racial integrity,\xe2\x80\x9d enacted by the General Assembly and approved March\n20, 1924.\nThe material facts are not in dispute. The suit was brought by the appellee, who is a white\nperson, duly domiciled in Virginia. The appellant is a Chinese and was a non-resident of the\nState at the time of the institution of the suit. On June 26, 1952, they left Virginia to be married\nin North Carolina. They were married in that State and immediately returned to Norfolk, Virginia, where they lived together as husband and wife. It is conceded that they left Virginia to be\nmarried in North Carolina for the purpose of evading the Virginia law which forbade their\nmarriage.\nThe Virginia statute, \xc2\xa7 20-54, in effect at the time of the marriage, is as follows:\nIt shall hereafter be unlawful for any white person in this State to marry any\nsave a white person, or a person with no other admixture of blood than white\nand American Indian. For the purpose of this chapter, the term \xe2\x80\x9cwhite person\xe2\x80\x9d\nshall apply only to such person as has no trace whatever of any blood other\nthan Caucasian; but persons who have one-sixteenth or less of the blood of\nthe American Indian and have no other non-Caucasic blood shall be deemed\nto be white persons\xe2\x80\xa6.\nVirginia statutes regarding the intermarriage of white and colored persons in effect at the\ndate of the marriage, and now in effect, provide that all marriages between a white person and\na colored person shall be absolutely void; that if a white person and a colored person go out of\nthe State for the purpose of being married and with the intention of returning, and after being\nmarried return and reside here, and cohabit as man and wife, they shall be punished as provided\nin \xc2\xa7 20-59, and the marriage shall be governed by the same law as if it had been solemnized in\nthis State. Section 20-59 provides that they shall be guilty of a felony and confined in the penitentiary for not less than one nor more than five years.\nAs stated in appellant\xe2\x80\x99s brief, the only question at issue is whether the marriage of the appellant and appellee could be annulled on the ground of their racial ineligibility to marry one\nanother \xe2\x80\xa6 whether the statute in question is beyond the power of the State to enact under the\nDue Process and Equal Protection clauses of the Fourteenth Amendment.\nMarriage, the appellant concedes, is subject to the control of the States. Nearly seventy years\nago the Supreme Court said, and it has said nothing to the contrary since: \xe2\x80\x9cMarriage, as creating\nthe most important relation in life, as having more to do with the morals and civilization of a\npeople than any other institution, has always been subject to the control of the Legislature.\xe2\x80\x9d\nMaynard v. Hill, 125 U.S. 190. And nine years before that: \xe2\x80\x9cMarriage, while from its very nature\na sacred obligation, is, nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations\n\nNaim v. Naim, 197 Va. 80 (1955)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c66 Religion in the Law\nand social obligations and duties, with which government is necessarily required to deal.\xe2\x80\x9d Reynolds v. United States, 98 U.S. 145. That case was written by Chief Justice Waite, who said, in\nupholding a conviction of bigamy against a defense on the ground of the religious practice of\npolygamy authorized by the defendant\xe2\x80\x99s church, \xe2\x80\x9cit is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most\nimportant feature of social life.\xe2\x80\x9d\nIn the same year, 1878, it was written by this court, in Kinney v. Commonwealth, 71 Va.\n(30 Gratt.) 858, 862:\nThere can be no doubt as to the power of every country to make laws regulating the marriage of its own subjects; to declare who may marry, how they\nmay marry, and what shall be the legal consequences of their marrying. The\nright to regulate the institution of marriage; to classify the parties and persons\nwho may lawfully marry; to dissolve the relation by divorce; and to impose\nsuch restraints upon the relation as the laws of God, and the laws of propriety,\nmorality and social order demand, has been exercised by all civilized governments in all ages of the world.\n\xe2\x80\xa6More recently, in Wood v. Commonwealth, 159 Va. 963, 965, this court said \xe2\x80\x9cthat the\npreservation of racial integrity is the unquestioned policy of this State, and that it is sound and\nwholesome, cannot be gainsaid.\xe2\x80\x9d And in Toler v. Oakwood &c. Corp., 173 Va. 425, 434:\n\xe2\x80\x9cThere can be no question of the public policy of Virginia with reference to miscegenation.\xe2\x80\x9d\nIn State v. Gibson, 36 Ind. 389, a statute prohibiting the intermarriage of negroes and white\npersons was held not to violate any provision of the Fourteenth Amendment or the Civil Rights\nlaws. In the course of a well-reasoned and well-supported discussion of the powers retained by\nand inherent in the States under the Constitution, the court said:\nIn this State marriage is treated as a civil contract, but it is more than a mere\ncivil contract. It is a public institution established by God himself, is recognized in all Christian and civilized nations, and is essential to the peace, happiness, and well-being of society. \xe2\x80\xa6The right, in the states, to regulate and\ncontrol, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered,\nnor can the states suffer or permit any interference therewith. If the federal\ngovernment can determine who may marry in a state, there is no limit to its\npower.\nIt was said in that case that the question was one of difference between the races, not of\nsuperiority or inferiority, and that the natural law which forbids their intermarriage and the\nsocial amalgamation which leads to a corruption of races is as clearly divine as that which imparted to them different natures.\nIn Green v. State, 58 Ala. 190, the question was whether the State could make the marriage\nof a white person with a person of the colored race a punishable offense. The court held that \xe2\x80\xa6\nit is for the peace and happiness of the colored race, as well as of the white, that laws prohibiting\nintermarriage of the races should exist\xe2\x80\xa6.\n\xe2\x80\xa6More than half of the States of the Union have miscegenation statutes. With only one\nexception they have been upheld in an unbroken line of decisions in every State in which it has\nbeen charged that they violate the Fourteenth Amendment; State v. Pass, 59 Ariz. 16, 121 P.(2d)\n882; Dodson v. State, 61 Ark. 57; Jackson v. Denver, 109 Colo. 196; Scott v. Georgia, 39 Ga.\n321; State v. Jackson, 80 Mo. 175; State v. Kennedy, 76 N.C. 251; In Re Shun T. Takahashi\xe2\x80\x99s\nEstate, 113 Mont. 490; In Re Paquet\xe2\x80\x99s Estate, 101 Ore. 393; Lonas v. State, 3 Heiskell (50\nTenn.) 287; Frasher v. State, 3 Tex.App. 263.\n\nNaim v. Naim, 197 Va. 80 (1955)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 67\nThe exception is California, where a divided court held to the contrary with three of the\nseven judges dissenting, in Perez v. Sharp, 32 Cal.(2d) 711. In one of the two concurring opinions\nit was pointed out that \xe2\x80\xa6 the California statutes forbidding miscegenetic marriages were distinguished from such statutes in other States in that they were entirely declaratory, while all the\nothers carried with them punishments for violations, indicating an attitude of comparative indifference on the part of the California legislature and the absence of any clearly expressed sentiment or policy. However that may be, the holding is contrary to the otherwise uninterrupted\ncourse of judicial decision, both State and Federal\xe2\x80\xa6.\nStevens v. United States, 10 Cir., 146 F.(2d) 120, involved the validity of an Oklahoma\nstatute which forbade the marriage of a person of African descent to any person not of such\ndescent, or the marriage of any person not of African descent to a person of such descent, violation of which was punishable as a felony and the marriage declared in effect to be a nullity.\nThe statute was challenged by the party of African descent on the ground that it violated the\nFourteenth Amendment. The court held:\nMarriage \xe2\x80\xa6 is a domestic relation having to do with the morals and civilization of a people. It is an essential institution in every well organized society. It\naffects in a vital manner public welfare, and its control and regulation is a\nmatter of domestic concern within each state. A state has power to prescribe\nby law the age at which persons may enter into marriage, the procedure essential to constitute a valid marriage, the duties and obligations which it creates, and its effects upon the property rights of both parties. Maynard v. Hill,\n125 U.S. 190. And within the range of permissible adoption of policies\ndeemed to be promotive of the welfare of society as well as the individual\nmembers thereof, a state is empowered to forbid marriages between persons\nof African descent and persons of other races or descents. Such a statute does\nnot contravene the Fourteenth Amendment.\nFrom the Slaughter-House Cases, (1873), 16 Wall. (83 U.S.) 36, to Brown v. Board of Education, (1954), 347 U.S. 483, and Bolling v. Sharpe, 347 U.S. 497, the Supreme Court has\nmade no decision at variance with the holding in the Stevens case. It has on numerous occasions\ninvoked the provisions of the Fourteenth Amendment to invalidate State legislation and decision\nwith respect to political and civil rights, but it has not denied to the States the right to deal with\ntheir social and domestic problems and to legislate in regard to the marriage relation. On the\ncontrary, it has been at pains to exclude that relation from the effects of its holdings.\nIn Pace v. Alabama, 106 U.S. 583, an Alabama statute provided that if a white person and\na negro intermarried or lived in adultery or fornication with each other, they should be imprisoned in the penitentiary. Another statute provided smaller punishment for any man and woman\nwho lived together in adultery or fornication. A white woman and Pace, a negro, were convicted\nunder the first-mentioned statute and Pace appealed, claiming that the statute was in conflict\nwith the Equal Protection clause of the Fourteenth Amendment\xe2\x80\xa6. It was held that there was no\ndiscrimination against either race in the statute; that \xe2\x80\x9c\xe2\x80\xa6 the punishment of each offending person, whether white or black, is the same.\xe2\x80\x9d\nIn Plessy v. Ferguson, 163 U.S. 537, the court said, \xe2\x80\x9cLaws forbidding the intermarriage of\nthe two races may be said in a technical sense to interfere with the freedom of contract, and yet\nhave been universally recognized as within the police power of the state.\xe2\x80\x9d \xe2\x80\xa6\nBrown v. Board of Education, reached its conclusion that segregation in the public schools\nwas contrary to the Equal Protection clause on the basis that education is perhaps the most\nimportant function of State and local governments, \xe2\x80\x9cthe very foundation of good citizenship,\xe2\x80\x9d\nand that the opportunity to acquire it, \xe2\x80\x9cwhere the state has undertaken to provide it, is a right\nwhich must be made available to all on equal terms.\xe2\x80\x9d\n\nNaim v. Naim, 197 Va. 80 (1955)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c68 Religion in the Law\nNo such claim for the intermarriage of the races could be supported; by no sort of valid\nreasoning could it be found to be a foundation of good citizenship or a right which must be\nmade available to all on equal terms. In the opinion of the legislatures of more than half the\nStates it is harmful to good citizenship. \xe2\x80\xa6\nIf the prevention of miscegenetic marriages is a proper governmental objective, and within\nthe competency of the State to effect, which we hold it to be, then the Code under attack is a\nvalid enactment unless the classification made by the statute is arbitrary and without reasonable\nrelation to the purpose intended to be effected. As was said in Purity Extract & c. Co. v. Lynch,\n226 U.S. 192: \xe2\x80\x9cIt is also well established that, when a state exerting its recognized authority,\nundertakes to suppress what it is free to regard as a public evil, it may adopt such measures\nhaving reasonable relation to that end as it may deem necessary in order to make its action\neffective.\xe2\x80\x9d \xe2\x80\xa6\nThe only way by which the statute could be made effective was by classification of the races.\nIf preservation of racial integrity is legal, then racial classification to effect that end is not presumed to be arbitrary.\nIt does not appear from this record that the appellant questioned the reasonableness of the\nclassification in the trial court. There is no evidence in the record suggesting that the classification\nmade by the statute is unreasonable or that it is not reasonably related to the purpose intended\nto be accomplished. In the absence of all evidence to the contrary, the presumption of reasonableness is very strong\xe2\x80\xa6.\nThe institution of marriage has from time immemorial been considered a proper subject for\nState regulation in the interest of the public health, morals and welfare, to the end that family\nlife, a relation basic and vital to the permanence of the State, may be maintained in accordance\nwith established tradition and culture and in furtherance of the physical, moral and spiritual\nwell-being of its citizens.\nWe are unable to read in the Fourteenth Amendment to the Constitution, or in any other\nprovision of that great document, any words or any intendment which prohibit the State from\nenacting legislation to preserve the racial integrity of its citizens, or which denies the power of\nthe State to regulate the marriage relation so that it shall not have a mongrel breed of citizens.\nWe find there no requirement that the State shall not legislate to prevent the obliteration of racial\npride, but must permit the corruption of blood even though it weaken or destroy the quality of\nits citizenship. Both sacred and secular history teach that nations and races have better advanced\nin human progress when they cultivated their own distinctive characteristics and culture and\ndeveloped their own peculiar genius.\nRegulation of the marriage relation is, we think, distinctly one of the rights guaranteed to\nthe States and safeguarded by that bastion of States\xe2\x80\x99 rights, somewhat battered perhaps but still\na sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares:\n\xe2\x80\x9cThe powers not delegated to the United States by the Constitution, nor prohibited by it to the\nstates, are reserved to the states respectively, or to the people.\xe2\x80\x9d\nAffirmed.\n\nNaim v. Naim, 197 Va. 80 (1955)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 69\n830 So.2d 21\nSupreme Court of Alabama\n\nEx Parte H.H.\nFebruary 15, 2002\nHOUSTON, Justice.\nThis Court granted the petition for certiorari review filed by H.H. (hereinafter \xe2\x80\x9cthe father\xe2\x80\x9d)\nin this child-custody case in order to determine whether the Court of Civil Appeals improperly\nreversed the trial court\xe2\x80\x99s order denying the motion to modify custody filed by D.H. (hereinafter\n\xe2\x80\x9cthe mother\xe2\x80\x9d). We conclude that it did err, and we reverse and remand.\nThe mother and father, who both lived in Los Angeles, California, were divorced in November 1992. They were awarded joint legal custody of their three minor children, with the\nmother receiving primary physical custody. In 1996, after the mother had begun a homosexual\nrelationship, she petitioned a California court for a custody modification... The California court\ngranted the mother\xe2\x80\x99s petition, and the children moved to Alabama. In February 1999, however,\nthe mother filed in a California court another petition to modify custody, this time requesting\nthat physical custody of the children be returned to her. In April 1999 \xe2\x80\xa6 the case was transferred\nand jurisdiction was vested in Alabama, the current home state of all three children.\nThe trial court held a two-day hearing in June 2000 at which evidence was presented ore\ntenus [in court]. The children were 13, 15, and 16 years old at the time of the hearing. The 13\xe2\x80\x93\nyear\xe2\x80\x93old, A.H., and the 15\xe2\x80\x93year\xe2\x80\x93old, E.H., testified before the trial court; the oldest child, the\nonly daughter (hereinafter referred to as \xe2\x80\x9cthe daughter\xe2\x80\x9d because her initials are, like the father\xe2\x80\x99s,\n\xe2\x80\x9cH.H.\xe2\x80\x9d), did not attend the hearing because she was attending camp.\nAt the hearing, the mother argued that the father was abusive toward the children. Specifically, she alleged that the father had slapped E.H., causing his nose to bleed. She also alleged\nthat the father at one time had slapped the daughter, and that he at times had whipped the\nchildren with a belt. She further alleged that he had once kicked the daughter\xe2\x80\x99s \xe2\x80\x9cboom box\xe2\x80\x9d\nacross the room because the daughter would not turn down the volume.\nThe father disputed this testimony. Although he admits to slapping E.H., he claims he was\npunishing E.H. for hitting the daughter. \xe2\x80\xa6 The father also claims that his son\xe2\x80\x99s nose did not\nbleed as a result of the slap. Both the mother and the father testified that after the mother learned\nof this incident with E.H., she e-mailed the father, calling him \xe2\x80\x9ca great dad.\xe2\x80\x9d Some 15 months\nlater, however, after this litigation began, she reported the incident to the Department of Human\nResources (\xe2\x80\x9cDHR\xe2\x80\x9d).\nThe father further testified that he slapped the daughter after she said, \xe2\x80\x9cI swear on the holy\nf* * * * *g bible,\xe2\x80\x9d and that most of the whippings with the belt occurred before the divorce.\nThe father also claims that, although he did kick the daughter\xe2\x80\x99s boom box, he did not kick it\n\xe2\x80\x9cacross the room.\xe2\x80\x9d The father testified at the hearing that he used many different disciplinary\nmeasures, including \xe2\x80\xa6 having the sons sit with paper bags on their heads (without restricting\ntheir air). DHR did visit the home, but the agency took no action.\nThe mother also alleged at the hearing that the children\xe2\x80\x99s grades have fallen since they\nstarted living with their father and that, although their grades were poor, the father refused to\nsend the children to summer school. The father testified \xe2\x80\xa6 that the daughter did attend summer\nschool. Furthermore, the record indicates that all the children\xe2\x80\x99s grades fell after the mother\nstarted her homosexual relationship\xe2\x80\xa6.\n\nEx Parte H.H., 830 So.2d 21 (Ala. 2002)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c70 Religion in the Law\nThe mother further testified at the hearing that the daughter was sexually active and that\nthe father has failed to take her to a gynecologist. In his brief to this Court, the father indicates\nthat he was told that the daughter was sexually active by a teacher who had overheard a conversation about the daughter. The father testified, however, that the daughter denies that she is\nsexually active.\nE.H. also testified at the hearing. He indicated that he did not like his father because he was\ntoo strict and that he would rather live in California with his mother, who was less strict. A.H.,\nthe youngest child, testified that he did not like his stepmother because she had \xe2\x80\x9ctaken over\xe2\x80\x9d his\ncomputer.\nOn June 27, 2000, the trial court entered an order denying the mother\xe2\x80\x99s request for a modification of custody. The trial court found that the mother had failed to prove a material change\nin circumstances\xe2\x80\xa6. The trial court also found:\n[T]hat the [mother] previously had custody and voluntarily surrendered custody to [the father]. The [mother] says the [father] is a domestic abuser. The\n[father] says the [mother] is an alcoholic lesbian. There can be no surprise that\nthese children have serious issues in their lives. In fact, it is probably remarkable that the children have done as well as they have...\nThe trial court ordered that neither parent interfere with the children\xe2\x80\x99s telephone, E-mail,\nor other communications; that the father attend parenting classes; and that E.H. be enrolled in\ncounseling. The mother appealed the trial court\xe2\x80\x99s decision to the Court of Civil Appeals.\nThe Court of Civil Appeals reversed the judgment of the trial court, holding that the mother\nhad presented substantial evidence indicating that a change in custody would materially promote the children\xe2\x80\x99s best interest and welfare. \xe2\x80\xa6 Specifically, the Court of Appeals indicated that\nthe father\xe2\x80\x99s disciplinary actions, including the two slapping incidents and the whippings,\namounted to physical abuse. \xe2\x80\xa6 The Court of Civil Appeals also held that the mother could\nprovide a better home because she was now sober, she had been active in the children\xe2\x80\x99s extracurricular programs when they lived with her, and there was no evidence indicating her homosexual relationship would have a detrimental effect on the well-being of the children. The father\nsought certiorari review of the Court of Civil Appeals\xe2\x80\x99 decision\xe2\x80\xa6.\nWe hold that the Court of Civil Appeals impermissibly reweighed the evidence in this case.\nAlthough there was some testimony, standing alone, that might suggest abuse, this evidence was\ndisputed at trial. The trial judge, who was in a better position to evaluate the credibility of the\ntestimony and who observed the demeanor of the witnesses, found that, although the father\xe2\x80\x99s\ndisciplinary actions may occasionally be excessive, no abuse had occurred. \xe2\x80\xa6 The trial court\xe2\x80\x99s\nfindings are presumed correct. \xe2\x80\xa6 We disagree with the Court of Civil Appeals\xe2\x80\x99 holding that the\ntrial court\xe2\x80\x99s judgment was unsupported by the evidence; the record contains testimony and evidence that supports the trial court\xe2\x80\x99s determination, and we cannot say that the trial court\xe2\x80\x99s findings are plainly and palpably wrong.\nThe judgment of the Court of Civil Appeals is reversed and the case is remanded for an\norder or proceedings consistent with this opinion.\nREVERSED AND REMANDED.\nMOORE, Chief Justice (concurring specially).\n\xe2\x80\xa6I write specially to state that the homosexual conduct of a parent\xe2\x80\x94conduct involving a\nsexual relationship between two persons of the same gender\xe2\x80\x94creates a strong presumption of\nunfitness that alone is sufficient justification for denying that parent custody of his or her own\nchildren or prohibiting the adoption of the children of others.\n\nEx Parte H.H., 830 So.2d 21 (Ala. 2002)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 71\nIn this case there is undisputed evidence that the mother of the minor children not only\ndated another woman, but lived with that woman, shared a bed with her, and had an intimate\nphysical and sexual relationship with her. D.H. has, in fact, entered into a \xe2\x80\x9cdomestic partnership\xe2\x80\x9d with her female companion under the laws of the State of California. But Alabama expressly does not recognize same-sex marriages or domestic partnerships. \xc2\xa7 30\xe2\x80\x931\xe2\x80\x9319, Ala.Code\n1975. Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime\nagainst nature, and a violation of the laws of nature and of nature\xe2\x80\x99s God upon which this Nation\nand our laws are predicated. Such conduct violates both the criminal and civil laws of this State\nand is destructive to a basic building block of society\xe2\x80\x94the family. The law of Alabama is not\nonly clear in its condemning such conduct, but the courts of this State have consistently held\nthat exposing a child to such behavior has a destructive and seriously detrimental effect on the\nchildren. It is an inherent evil against which children must be protected\xe2\x80\xa6\nAlabama\xe2\x80\x99s courts, even beyond the context of a custody dispute, have expressed a moral\nrevulsion to homosexual activity, reminiscent of that expressed by Sir William Blackstone in his\nCommentaries on the Laws of England. Earlier courts refused even to describe the activity inherent in homosexuality, stating that \xe2\x80\x9c[the crime against nature] is characterized as abominable,\ndetestable, unmentionable, and too disgusting and well known to require other definition or\nfurther details or description.\xe2\x80\x9d Horn v. State, 49 Ala.App. 489, 491 (1973).\nIn 1975, the Alabama Court of Criminal Appeals addressed a defendant\xe2\x80\x99s claim that Alabama appellate courts had not defined the crime of sodomy (under the former Criminal Code)\nas a crime \xe2\x80\x9cinvolv[ing] moral turpitude.\xe2\x80\x9d Williams v. State, 55 Ala.App. 436, 437 (Crim.1975).\nThe Court had \xe2\x80\x9cno hesitancy whatever\xe2\x80\x9d in concluding that \xe2\x80\x9csexual relations between persons\nof the same sex,\xe2\x80\x9d however denominated, \xe2\x80\x9cinvolves moral turpitude.\xe2\x80\x9d \xe2\x80\xa6The Court agreed that\n\xe2\x80\x9c \xe2\x80\x98[t]he practice of sodomy is inherently inimical to the general integrity of the human person,\nand is clearly an offense involving moral turpitude whether defined by common law or by statute.\xe2\x80\x99 \xe2\x80\x9d 55 Ala.App. at 437 (quoting 70 Am.Jur.2d Sodomy \xc2\xa7 2)\xe2\x80\xa6.\nFinally, as if to remove any doubt that homosexuality is disfavored, the court marshaled\nfurther legal precedent [by citing] \xe2\x80\x9cthe record of constant quadrimillennial revulsion of moralistic civilizations from the vice that evoked the total and everlasting destruction of Sodom and\nGomorrah\xe2\x80\xa6\xe2\x80\x9d\nOther Alabama statutes reinforce the idea that homosexuality is an evil disfavored under\nthe law. Art. VIII, \xc2\xa7 182, Ala. Const.1901, lists conviction for sodomy as one of the offenses\nthat will disqualify a person from being able to vote\xe2\x80\xa6.\nThus, the policy of the law in Alabama\xe2\x80\x94from its civil law to its Criminal Code to the\neducational programs provided to its public-school students\xe2\x80\x94consistently condemns homosexual activity and the homosexual lifestyle. The effect of such a lifestyle upon children must not\nbe ignored, and the lifestyle should never be tolerated.\nAmerican law derives its principles from the common law of England, clearly explained in\nCommentaries on the Laws of England by Sir William Blackstone\xe2\x80\xa6 Blackstone\xe2\x80\x99s explanation\nof the common law is important because of the influence it has had upon the American legal\nsystem\xe2\x80\xa6.\nNatural law forms the basis of the common law. Natural law is the law of nature and of\nnature\xe2\x80\x99s God as understood by men through reason, but aided by direct revelation found in the\nHoly Scriptures:\nThe doctrines thus delivered we call the revealed or divine law, and they are\nto be found only in the Holy Scriptures. These precepts, when revealed, are\nfound upon comparison to be really a part of the original law of nature, as\nthey tend in all their consequences to man\xe2\x80\x99s felicity.\n\nEx Parte H.H., 830 So.2d 21 (Ala. 2002)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c72 Religion in the Law\n1 William Blackstone, Commentaries 42. Blackstone\xe2\x80\x99s Commentaries explain that because our\nreason is full of error, the most certain way to ascertain the law of nature is through direct revelation\xe2\x80\xa6..\nThere are impeccable American sources for the above proposition. James Wilson, Associate\nJustice on the first United States Supreme Court and signer of both the Declaration of Independence and the United States Constitution, said:\nHuman law must rest its authority ultimately upon the authority of that law\nwhich is divine.... Far from being rivals or enemies, religion and law are twin\nsisters, friends, and mutual assistants. Indeed, these two sciences run into each\nother.\nJames Wilson, \xe2\x80\x9cOf the General Principles of Law and Obligation,\xe2\x80\x9d in 1 The Works of the Honourable James Wilson, 104\xe2\x80\x9306 (1804)\xe2\x80\xa6.\nOur own Declaration of Independence refers to \xe2\x80\x9cthe laws of nature and of nature\xe2\x80\x99s God\xe2\x80\x9d\xe2\x80\xa6\nIt would be an odd logic to assert that the American colonies could use the law of God \xe2\x80\x9cto\ndissolve the political bonds which have connected them with another, and to assume among the\npowers of the earth, the separate and equal station to which the laws of nature and of nature\xe2\x80\x99s\nGod entitle them,\xe2\x80\x9d but not to decide the fundamental basis of their laws.\nAlabama has adopted the common law, as evidenced by \xc2\xa7 1\xe2\x80\x933\xe2\x80\x931, Ala.Code 1975. \xe2\x80\xa6 Our\ncases have held consistently and frequently that Alabama is a common-law state\xe2\x80\xa6. Our jurisprudence explains that old English statutes are a part of the common law\xe2\x80\xa6\nHomosexuality is strongly condemned in the common law because it violates both natural\nand revealed law. The author of Genesis writes: \xe2\x80\x9cGod created man in His own image, in the\nimage of God He created him; male and female He created them.... For this reason a man shall\nleave his father and his mother, and be joined to his wife; and they shall become one flesh.\xe2\x80\x9d\nGenesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between\nthe genders by stating that \xe2\x80\x9c[i]f a man lies with a male as he lies with a woman, both of them\nhave committed an abomination.\xe2\x80\x9d Leviticus 20:13 (King James).\nFrom the passage in Leviticus 20:13, the early western legal tradition garnered its laws on\nhomosexuality\xe2\x80\xa6. Sodomy was codified by statute as a serious crime early in England. \xe2\x80\x9cThe\nearliest English secular legislation on the subject dates from 1533, when Parliament under Henry\nVIII classified buggery (by now a euphemism for same-sex activity, bestiality, and anal intercourse) as a felony. Penalties included death, losses of goods, and loss of lands.\xe2\x80\x9d Vern L.\nBullough, Homosexuality: A History 34 (New American Library 1979). Taking his cue from\nthis tradition, Sir Edward Coke, the dean of English law, called homosexuality \xe2\x80\x9ca detestable,\nand abominable sin, amongst Christians not to be named, committed by carnal knowledge\nagainst the ordinance of the Creator, and order of nature, by mankind with mankind, or with\nbrute beast, or by womankind with brute beast.\xe2\x80\x9d Blackstone called it \xe2\x80\x9cthe infamous crime\nagainst nature,\xe2\x80\x9d a phrase used interchangeably with sodomy at common law.\nAmerica borrowed from England this steadfast view of homosexuality as an intolerable\nevil. \xe2\x80\x9c[Sodomy] was made a felony by an English statute so early that it was a common-law\noffense in this Country, and statutes expressly making it a felony were widely adopted.\xe2\x80\x9d Rollin\nM. Perkins & Ronald N. Boyce, Criminal Law 465 (3d ed.1982). In its second edition, published in 1910, Black\xe2\x80\x99s Law Dictionary tells us that sodomy \xe2\x80\x9cis often defined in statutes and\njudicial decisions as meaning \xe2\x80\x98the crime against nature,\xe2\x80\x99 ... or as carnal copulation, against the\norder of nature....\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 1094 (2d ed.1910).\nTo disfavor practicing homosexuals in custody matters is not invidious discrimination, nor\nis it legislating personal morality. On the contrary, disfavoring practicing homosexuals in custody matters promotes the general welfare of the people of our State in accordance with our law,\nwhich is the duty of its public servants. Providing for the common good involves maintaining a\n\nEx Parte H.H., 830 So.2d 21 (Ala. 2002)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 73\npublic morality through both our criminal and civil codes, based upon the principles that right\nconscience demands, without encroaching on the jurisdiction of other institutions and the declared rights of individuals.\nThe State may not interfere with the internal governing, structure, and maintenance of the\nfamily, but the protection of the family is a responsibility of the State. Custody disputes involve\ndecision-making by the State, within the limits of its sphere of authority, in a way that preserves\nthe fundamental family structure. The State carries the power of the sword, that is, the power\nto prohibit conduct with physical penalties, such as confinement and even execution. It must use\nthat power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.\nThe family unit does consist, and always has consisted, of a \xe2\x80\x9cfather, mother and their children, [and] immediate kindred, constituting [the] fundamental social unit in civilized society.\xe2\x80\x9d\nBlack\xe2\x80\x99s Law Dictionary 604 (6th ed.1990). To reward a parent, who steps outside that unit by\ncommitting a \xe2\x80\x9ccrime against nature\xe2\x80\x9d with custody of a child would represent a reprehensible\naffront to the laws of family government that the State must preserve. The best interests of children is not promoted by such a subversion of fundamental law, the very foundation of the family\nand of society itself. The State may not\xe2\x80\x94must not\xe2\x80\x94encourage the destruction of the family.\nNo matter how much society appears to change, the law on this subject has remained steadfast from the earliest history of the law, and that law is and must be our law today. The common\nlaw designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.\nIn this case, the Court of Civil Appeals stated that \xe2\x80\x9c[n]o evidence indicated that the mother\xe2\x80\x99s\nhomosexual relationship \xe2\x80\xa6 would have a detrimental effect on the well-being of the children.\xe2\x80\x9d\nThe \xe2\x80\x9cdetrimental effect\xe2\x80\x9d of such conduct is established by the great mass of Alabama law, which\nprohibits and condemns homosexual conduct. Courts must make decisions based on fixed principles. Judges should not make decisions based on the latest psychological or sociological study\nor statistical poll, the interpretations of which are subject to the bias and philosophical leanings\nof the researchers, and which are subject to being refuted by other studies.\nHomosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a\ncrime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies\none\xe2\x80\x99s ability to describe it. That is enough under the law to allow a court to consider such activity\nharmful to a child. To declare that homosexuality is harmful is not to make new law but to\nreaffirm the old; to say that it is not harmful is to experiment with people\xe2\x80\x99s lives, particularly the\nlives of children.\nBlackstone sums up the duty of the judge, who is \xe2\x80\x9csworn to determine, not according to his\nown private judgment, but according to the known laws and customs of the land; not delegated\nto pronounce a new law, but to maintain and expound the old one.\xe2\x80\x9d 1 Blackstone, Commentaries 69.\nSexual relations between persons of the same gender violate both the criminal and civil laws\nof this State and have been declared by our courts to be \xe2\x80\x9cinherently immoral.\xe2\x80\x9d 55 Ala.App. at\n437. \xe2\x80\xa6 The trial judge properly found that D.H. was not entitled to custody under the facts of\nthis case. ... From its earliest history, the law of Alabama has consistently condemned homosexuality. The common law adopted in this State and upon which our laws are premised likewise\ndeclares homosexuality to be detestable and an abominable sin. Homosexual conduct by its very\nnature is immoral, and its consequences are inherently destructive to the natural order of society.\nAny person who engages in such conduct is presumptively unfit to have custody of minor children under the established laws of this State. D.H. is no exception. Therefore, I concur in reversing the judgment of the Court of Civil Appeals in this case.\n\nEx Parte H.H., 830 So.2d 21 (Ala. 2002)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c74 Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 75\n\nPart Two: Morality as Police Power\nJudges do not always openly endorse biblical doctrine when upholding public morals legislation, and much less so in recent decades. More often, they downplay the significance of a law\xe2\x80\x99s religious origin, or describe it in vague terms like \xe2\x80\x9ctradition,\xe2\x80\x9d or\nomit mention of that origin entirely. They focus instead on general principles gleaned\nfrom assorted writings by the Founders, or from governmental tradition, or from the\ncommon law as passed down from monarchical England to its American Colonies, or\nfrom \xe2\x80\x9ccommon sense\xe2\x80\x9d or \xe2\x80\x9crational\xe2\x80\x9d legislative deliberation, or from technical analysis\nof statutory and constitutional text. They speak of \xe2\x80\x9cpolice power\xe2\x80\x9d and \xe2\x80\x9cliberty interests\xe2\x80\x9d in an ostensibly neutral sense, not in a religious sense. Nevertheless, the religious\norigin of the morality laws they scrutinize and apply is undeniable.\nThis part opens with the notorious \xe2\x80\x9cScopes Monkey Trial.\xe2\x80\x9d In April of 1925, Tennessee passed the Butler Act, which made it illegal \xe2\x80\x9cto teach any theory that denies the\nstory of the divine creation of man as taught in the Bible and to teach instead that man\nhas descended from a lower order of animals.\xe2\x80\x9d The American Civil Liberties Union\nquickly recruited a young schoolteacher named John Scopes to challenge the law. After\nhearing testimony from his students that he had taught evolution in class, a Dayton,\nTennessee grand jury indicted Scopes in May. His trial in July quickly became a national spectacle, pitched as an epic battle between science and religion. Former U.S. Secretary of State (and three-time Democratic\npresidential nominee) William Jennings\nBryan was appointed special prosecutor,\nwhile famed attorney Clarence Darrow took\nover Scopes\xe2\x80\x99 defense. In the crowd each day\nwere dozens of journalists from all over the\ncountry, including muckraking journalist and\nsocial critic H.L. Mencken, whose reporting Clarrence Darrow & William J. Bryan\n- Associated Press\nwas later published as a book.1\nAfter eight days of trial in the hot Tennessee summer (which at one point featured\nDarrow cross-examining Bryan himself on the inconsistencies of the creation story in\nthe book of Genesis), a jury convicted Scopes of violating the Butler Act and presiding\njudge John Raulston fined him $100. Scopes appealed. Bryan died shortly after the\ntrial.\nDespite reversing the fine against Scopes and recommending that he not be retried2, the Tennessee Supreme Court upheld the constitutionality of the Butler Act.\nChief Justice Grafton Green wrote the majority opinion. Justice Alexander Chambliss\ndissented (agreeing that the law was constitutional but opposing the reversal of Scopes\xe2\x80\x99\nsentence).\n\nH.L. Mencken, A RELIGIOUS ORGY IN TENNESSEE (Melville House 2006).\nThe trial court judge had erred by imposing the fine himself. Though the Butler Act carried\na $100 penalty, judges in Tennessee at the time could levy fines no higher than $50, and thus\nScopes\xe2\x80\x99 punishment should have been imposed by the jury.\n1\n2\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c76 Religion in the Law\n\nSimilar to the court opinions in Part One of this section, Justice Chambliss offered\na full-throated endorsement of divine creation in his Scopes concurrence, citing foundational documents such as the Declaration of Independence and the Tennessee constitution for their invocations to God and the Creator. \xe2\x80\x9cThat the Legislature may prohibit the teaching of \xe2\x80\xa6 a theory which denies the Divine Creator will hardly be denied,\xe2\x80\x9d he wrote.\nChief Justice Green did not go so far in his majority opinion, however. He did not\nsuggest that banning the teaching of evolution was good policy compelled by God\nHimself. Instead, Green deferred to the power of the government as an employer to\nregulate how its teachers conducted class. Absent a constitutional violation, Tennessee,\nas their boss, could tell its teachers what not to teach, and Green could find no constitutional violation. Scopes\xe2\x80\x99 role as public employee subsumed his due process rights.\nFurther, Green rejected the argument that the evolution ban was an establishment of\nreligion because the Christian community itself could not agree whether or not to embrace evolutionary theory. Some denominations embraced it while others denounced\nit as heresy. It was impossible for Tennessee to \xe2\x80\x9cestablish\xe2\x80\x9d religion through an evolution ban when there was no religious consensus on the topic. It did not matter that the\nexpress purpose of the Butler Act was to squash potential threats to Christianity.3\nScopes is indicative of how most courts have upheld morals legislation through the\nyears. They consider morality to be a political question. They defer to the legislature to\ndecide what is moral and what is not and look only for errors of method. This deference effectively enshrines religious morality in the law, but most courts stop short of\nopen endorsement of the legislatures\xe2\x80\x99 religious assumptions and impositions. The\njudges uphold religious policy on procedural or technical grounds instead.\nThe U.S. Supreme Court has generally followed suit, viewing morality as a political\nquestion and looking only for errors of application.4 The rest of this part focuses on\nhow that Court has addressed four common targets of public morals legislation: obscenity, indecency, sodomy, and gay marriage. More often than not, the Court has upheld public morals legislation, despite its biblical origins and the religious motivations\nof the legislatures that passed it. Unlike in Part One, though, the justices in many of\nthese cases make no explicit appeal to divine authority; they use a more secular tone.\nThese cases are generally not considered \xe2\x80\x9cestablishment\xe2\x80\x9d cases. They usually appear in casebooks under other headings. However, all of these cases involve the legal\nimposition of Christian morality \xe2\x80\x93 the parties simply challenged the laws under other\nclauses of the Constitution, invoking instead their individual rights to free speech, free\npress, free association, privacy, due process, and equal protection. But make no mistake; in every case below, individuals challenged the authority of the government to\nrestrain their action or punish them for offenses to religious sensibility. These cases\n\nThe bill\xe2\x80\x99s sponsor, John W. Butler, said that evolution \xe2\x80\x9crobs the Christian of hope and undermines the foundation of our government,\xe2\x80\x9d which, according to him, was the Bible. See\nRay Ginger, SIX DAYS OR FOREVER?: TENNESSEE V. JOHN THOMAS SCOPES, 3-4 (Oxford 1958).\n4 Granted, the Supreme Court did eventually strike down as unconstitutional an evolution\nban similar to Tennessee\xe2\x80\x99s in Epperson v. Arkansas, 393 U.S. 97 (1968).\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 77\n\ninvolve an \xe2\x80\x9cestablishment\xe2\x80\x9d of religious doctrine just as much as any case about school\nprayer, transportation subsidies, or the Ten Commandments on a wall.5\nOver time, the Supreme Court has chipped away at morality codes, striking down\nor limiting various religiously motivated bans on obscenity, blasphemy, sodomy, birth\ncontrol, abortion, and gay marriage as discriminatory or overly intrusive into the\nhomes and liberties of individuals. The Supreme Court has not stripped all Christian\nmorality from the law, however, and it has not applied consistent constitutional theories to the laws it has struck down. The ideological composition of the Court is ever\nchanging, and the justices\xe2\x80\x99 scrutiny of public morality law often undulates with the\nwaves of national politics and their own personal philosophies.\nWe start with obscenity. In the 1950s, two booksellers were convicted for distributing \xe2\x80\x9clewd\xe2\x80\x9d material, which was banned throughout the country as a threat to public\ndecency. Samuel Roth was found guilty under a federal obscenity statute, which criminalized the distribution of erotica and nude photography. David Alberts violated a\nsimilar California law. Each appealed, arguing that the First Amendment free speech\nand press clauses protected their activities. The U.S. Supreme Court eventually decided\ntheir cases together under the name Roth v. United States.\n\nSamuel Roth\n-Columbia University Library\n\nUnfortunately for Roth and Alberts, the Court upheld their convictions. Six of the justices agreed that the\nFirst Amendment offered them no protection at all.\nThough the laws were rooted in Christian morality, the\nCourt did not consider whether the statutes violated\nthe establishment clause. It focused instead on Roth\nand Alberts\xe2\x80\x99s individual rights arguments. According\nto Justice William Brennan, who wrote for the majority, \xe2\x80\x9cObscenity is not within the area of constitutionally protected speech or press.\xe2\x80\x9d Thus, the Constitution\nprovided no shield to those who trafficked in material\nthe law determined to be obscene.\n\nHow to determine which material is obscene and\nwhich is not was the harder question. Sex and the human form have forever been the subject of what many consider great art and literature,\nBrennan noted. Given too much power to restrict obscenity, a government that banned\nFanny Hill by John Cleland might also ban Botticelli\xe2\x80\x99s Birth of Venus. In Roth, Brennan\nintroduced a test: material is obscene only if its \xe2\x80\x9cdominate theme taken as a whole\nappeals to the prurient interest\xe2\x80\x9d and is \xe2\x80\x9cutterly without redeeming social importance,\xe2\x80\x9d\nas assessed by the \xe2\x80\x9caverage person, applying contemporary community standards.\xe2\x80\x9d\nThis highly subjective and incredibly vague twist on the familiar \xe2\x80\x9creasonable person\xe2\x80\x9d standard earned five votes on the Court in Roth but soon lost majority support.\nOver the next fifteen years, the Court issued numerous plurality decisions in obscenity\ncases (most written by Justice Brennan), with reluctant concurrences and fiery dissents\nall proposing alternative tests or rejecting the constitutionality of obscenity bans entirely. Justice William Douglas, for example, repeatedly argued that obscenity laws\n5\n\nThose cases are the subject of Part Three of this section.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c78 Religion in the Law\n\ncriminalized dirty thoughts, not harmful actions. A person\xe2\x80\x99s thoughts should be offlimits under the First Amendment. Other Justices, including Brennan himself, proposed\nmodifications to the Roth test without much success.6\nDespite the lack of majority consensus for a test, the lower courts continued convicting people for distributing obscenity and the Court kept reviewing their convictions. Sometimes the Court upheld the convictions, other times it reversed them. It did\nnot question, however, the underlying validity of prosecuting individuals for distributing obscene material \xe2\x80\x93 it instead focused on whether, in each case, the material they\ntrafficked in was actually obscene.\nPrivate possession was a different matter. In 1969, the Court ruled that the states\ncould not prohibit home-kept obscenity, overturning on free speech grounds the conviction of a Georgia man who had been arrested for having several pornographic films\nin his home. In Stanley v. Georgia, Justice Thurgood Marshall wrote for a unanimous\ncourt that Georgia had \xe2\x80\x9cno business telling a man, sitting alone in his own house, what\nbooks he may read or what films he may watch. Our whole constitutional heritage\nrebels at the thought of giving government the power to control men\xe2\x80\x99s minds.\xe2\x80\x9d7\nAs for distribution, which remained outside First Amendment protection, the\nCourt soon turned its attention to venues beyond bookstores. In late 1970, local prosecutors sought injunctions against two Georgia adult theaters for showing pornographic movies to paying adult customers. The state trial court denied their injunction\nrequests on free speech grounds. The Supreme Court of Georgia, however, found the\nmovies to be unprotected by the First Amendment and ruled that the theaters could be\nenjoined. The U.S. Supreme Court agreed. In Paris Adult Theatre I v. Slaton, the Court\nheld that \xe2\x80\x9cStates have a legitimate interest in regulating commerce in obscene material\nand in regulating exhibition of obscene material in places of public accommodation,\xe2\x80\x9d\nand thus could prohibit or restrict the showing of \xe2\x80\x9cadult\xe2\x80\x9d movies. Writing for the majority, Chief Justice Warren Burger waved away concerns that religious doctrine improperly motivated the laws. \xe2\x80\x9cThe issue \xe2\x80\xa6 goes beyond whether someone, or even the\nmajority, considers the conduct depicted as \xe2\x80\x98wrong\xe2\x80\x99 or \xe2\x80\x98sinful,\xe2\x80\x99\xe2\x80\x9d Burger wrote. The state\nwas merely protecting its \xe2\x80\x9cneutral\xe2\x80\x9d right to \xe2\x80\x9cmaintain a decent society,\xe2\x80\x9d regardless of\nthe fact that the sense of \xe2\x80\x9cdecency\xe2\x80\x9d at issue was the product of religious doctrine.\nOn the same day it decided Paris Adult Theatre I, the Supreme Court also decided\nMiller v. California.8 In Miller, the Court finally found majority support for a modification of the Roth test for obscenity. Miller changed Roth\xe2\x80\x99s \xe2\x80\x9cutterly without redeeming\nsocial importance\xe2\x80\x9d requirement to a requirement that obscene material lack \xe2\x80\x9cserious\nliterary, artistic, political, or scientific value.\xe2\x80\x9d\nBy this time Justice Brennan, who had originally formulated the Roth test and who\nhad written most of the major plurality opinions in obscenity cases since then, had lost\nfaith in the whole operation. In dissent to Paris Adult Theatre I and Miller, he noted\nthat the Miller modification to the obscenity test was no less vague than its predecessor\nSee Memoirs v. Massachusetts, 383 U.S. 413 (1966) (Opinion of Brennan)(proposing that\nonly \xe2\x80\x9cpatently offensive\xe2\x80\x9d material \xe2\x80\x9cutterly without redeeming social value,\xe2\x80\x9d rather than\n\xe2\x80\x9cimportance,\xe2\x80\x9d be considered obscene).\n7 Stanley v. Georgia, 394 U.S. 557, 565 (1969).\n8 413 U.S. 15 (1973).\n6\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 79\n\nwas. Both \xe2\x80\x9csocial importance\xe2\x80\x9d and \xe2\x80\x9cserious value\xe2\x80\x9d were entirely subjective terms, and\nleaving such determinations to the whims of the courts threatened serious harm to\nindividual liberty. He argued that distribution should only be punished when juveniles\nor non-consenting adults were exposed to obscenity. Yet, once again, Brennan failed to\nattract a majority of his peers, and the obscenity bans lived on.\nFast forward to 1991. By this time, many states had repealed their obscene material\nbans or abandoned serious enforcement of them. However, many state and municipal\ngovernments still regulated other forms of adult entertainment, such as nude dancing,\nwith so-called \xe2\x80\x9cpublic indecency\xe2\x80\x9d restrictions. The fully nude dancers at the Kitty Kat\nLounge nightclub in South Bend, Indiana broke a law that required them to cover their\nnipples and genitals while performing. The nightclub challenged the law as an infringement of the First Amendment free speech clause but the Supreme Court upheld the\nstatute as a lawful \xe2\x80\x9ctime, place, and manner\xe2\x80\x9d restriction. On behalf of a four-justice\nplurality upholding the statute, Chief Justice William Rehnquist wrote in Barnes v.\nGlen Theatre that Indiana\xe2\x80\x99s \xe2\x80\x9cpublic indecency statute furthers a substantial government interest in protecting order and morality. This interest is unrelated to the suppression of free expression.\xe2\x80\x9d The deciding vote in favor of the state was Justice David\nSouter, who wrote that the negative \xe2\x80\x9csecondary effects\xe2\x80\x9d of adult entertainment justified\nthe state\xe2\x80\x99s restriction of nude dancing, despite its interference with expression.\nIn concurrence, Justice Antonin Scalia (who joined Rehnquist\xe2\x80\x99s plurality) approvingly traced the history of indecency laws and the states\xe2\x80\x99 police power to impose religious morality standards. Indeed, the laws were religious, but Scalia found no constitutional problem there. He, and Rehnquist in his plurality opinion, also rejected Justice\nByron White\xe2\x80\x99s dissenting opinion that public indecency statutes should be lawful only\nif limited to protecting juveniles and non-consenting adults from exposure to nudity.\nWhite argued that the Kitty Kat Lounge only admitted paying customers over the age\nof consent, so the state had no good reason to restrict the dancers\xe2\x80\x99 expressive conduct.\nThere was insufficient threat to public health or safety to justify the law.\nJustice White\xe2\x80\x99s consent-focused dissent to Glen Theatre\nis notable because it came just five years after he wrote the\nmajority opinion in Bowers v. Hardwick. In that case, the\nSupreme Court narrowly upheld a Georgia statute that\nbanned certain consensual sexual acts. While serving an expired warrant for a missed court date, a police officer arrested Michael Hardwick in his home for engaging in \xe2\x80\x9csodomy\xe2\x80\x9d with another man. The charges were dropped, but\nHardwick filed a civil rights lawsuit anyway. He argued that\nhe, as a sexually active gay person, would surely violate the\nstate\xe2\x80\x99s sodomy ban again. He attacked the law as an infringement of his constitutional rights to privacy, intimate Michael Hardwick\n- William Berry\nassociation, and due process.9 He did not make an establishment argument, however, even though the Georgia law, like many others still in\n\n9\n\nHardwick v. Bowers, 760 F.2d 1202 (CA11 1985).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c80 Religion in the Law\n\nforce across the country in the mid-1980s, originated from religious opposition to behavior William Blackstone described in 1772 as peccatum illud horribile, inter christianos non nomtnandum [\xe2\x80\x9cthat horrible crime not to be named among Christians\xe2\x80\x9d].10\nIn Bowers, Justice White showed no concern for the fact that Hardwick sought\nonly to engage in consensual sexual conduct in the privacy of his own home. Georgia\xe2\x80\x99s\nban on sodomy was well within its police power to regulate morality, White wrote,\nand the state\xe2\x80\x99s exercise of that power against sodomy had \xe2\x80\x9cancient roots.\xe2\x80\x9d What Hardwick really wanted, White said, was a right to gay sex. The Court was unwilling to\nrecognize such a right in the Constitution. In concurrence, Chief Justice Warren Burger\nelaborated on White\xe2\x80\x99s reference to ancient roots, approvingly noting, \xe2\x80\x9cCondemnation\nof [sodomy] is firmly rooted in Judeo-Christian moral and ethical standards.\xe2\x80\x9d Neither\nWhite nor Burger acknowledged Hardwick\xe2\x80\x99s argument that the laws singled him out\nas a gay person for moral disapproval. Instead they treated the law as a neutral prohibition of certain behavior that the law had always forbidden, regardless of who engaged in it. The law was a neutral restriction on action, not a discriminatory attack on\na minority group.\nIn dissent, Justice Harry Blackmun argued that what Hardwick actually sought\nwas recognition of rights to privacy and due process that the Court had already recognized in similar situations involving sexual conduct.11 Hardwick did not seek a new\nright to specific sex acts, Blackmun said, he simply sought protection for an established\nright to privacy and sexual autonomy. Further, Blackmun rejected the state\xe2\x80\x99s (and the\nCourt\xe2\x80\x99s) invocation of traditional religious values because \xe2\x80\x9clegitimacy of secular legislation depends \xe2\x80\xa6 on whether the State can advance some justification for its law beyond its conformity to religious doctrine.\xe2\x80\x9d12 Georgia had no justification other than\nreligious distaste for gay sexuality, and thus the law was unconstitutional.\nBlackmun\xe2\x80\x99s argument would eventually carry the day, but not until almost a decade after he retired from the Supreme Court in 1994. It was not until 2003 that the\nCourt took up a new challenge to a state sodomy ban, this time that of Texas. In September 1998, Harris County sheriff\xe2\x80\x99s deputies, responding to a bogus emergency call\nby a jilted ex-lover, claimed to have found John Lawrence and Tyron Garner having\nsex in Lawrence\xe2\x80\x99s home. Both men were arrested, charged, and convicted of a misdemeanor for engaging in \xe2\x80\x9cdeviate sexual intercourse with another individual of the same\nsex.\xe2\x80\x9d13 They were each fined $200.14\n\nWilliam Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE FOURTH (Robert\nBell, 1772), pp. 215-17.\n11 See Griswold v. Connecticut, 381 U.S. 479 (1965) (married use of birth control); Stanley,\n394 U.S. 557 (1969) (private possession of sexually explicit material); Eisenstadt v. Baird,\n405 U.S. 438 (1972) (unmarried use of birth control); and Roe v. Wade, 410 U.S. 113 (1973)\n(abortion).\n12 For this rule, Blackmun cited the Court\xe2\x80\x99s establishment precedent, including McGowan\nv. Maryland and Stone v. Graham (both discussed and excerpted below in Part Three).\n13 Texas Penal Code Sex. 21.06 (\xe2\x80\x9cHomosexual Conduct\xe2\x80\x9d).\n14 Lawrence v. State, 41 S.W.3d 349 (Tex. Ct. App. 2001).\n10\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 81\n\nTyron Garner and John Lawrence\n- Christobal Perez\n\nThe two appealed their convictions, making\nessentially the same privacy and due process arguments that Michael Hardwick had made\nnearly twenty years before, while adding sex\nand sexual orientation discrimination claims\nunder the equal protection clause of the Fourteenth Amendment. And like Hardwick, Lawrence and Garner raised no establishment\nclaim.\n\nThis time, the Supreme Court was far more\nresponsive to the plight of gay claimants. Justice White had retired, along with Bowers \xe2\x80\x9cswing\xe2\x80\x9d voter Justice Lewis Powell (who\nlater expressed regret for casting the deciding vote in favor of Georgia\xe2\x80\x99s sodomy ban).15\nPowell\xe2\x80\x99s replacement was Justice Anthony Kennedy, who wrote in Lawrence v. Texas\nthat, actually, the Constitution\xe2\x80\x99s protection of individual sexual autonomy extended to\neveryone, not just people who engage in acts other than sodomy. Lawrence and Garner\nwere entitled, Kennedy wrote, \xe2\x80\x9cto respect for their private lives\xe2\x80\x9d just as was everyone\nelse, and the Court explicitly struck down Bowers.\nJustice Antonin Scalia wrote a scathing dissent, attacking Justice Kennedy\xe2\x80\x99s word\nchoice as well as his reasoning. Scalia accused the majority of signing on to the \xe2\x80\x9chomosexual agenda\xe2\x80\x9d and \xe2\x80\x9ctak[ing] sides in the culture war.\xe2\x80\x9d The Texas law, just like the\nGeorgia law upheld in Bowers, Scalia argued, was well within the police power of the\nstate to impose majority morality. He invoked a slippery slope; if morality alone was\ninsufficient justification for sodomy bans, similar bans on polygamy, incest, prostitution, bestiality, and even gay marriage would be unconstitutional, too. Under the\nCourt\xe2\x80\x99s reasoning in Lawrence, Scalia warned, \xe2\x80\x9cwhat justification could there possibly\nbe for denying the benefits of marriage to homosexual couples?\xe2\x80\x9d In 2013, dissenting\nto the Court\xe2\x80\x99s decision to invalidate the federal Defense of Marriage Act in U.S. v.\nWindsor, Scalia further foretold the fate of state gay marriage bans: \xe2\x80\x9cit is just a matter\nof listening and waiting for the other shoe.\xe2\x80\x9d16\nThe other shoe dropped two years later in Obergefell v. Hodges. Writing again for\na narrow majority, Justice Kennedy struck down state bans on gay marriage as infringements of the fundamental right to marriage under the Fourteenth Amendment.\nThe Court found the states\xe2\x80\x99 arguments based on federalism and a preference for marital procreation to be weak justifications for excluding consenting same-sex couples\nfrom legal wedlock. Religious justifications, too, were not enough, though each of the\nstates were careful to frame Biblical arguments as appeals to an indistinct \xe2\x80\x9ctradition.\xe2\x80\x9d\nNear the end of his opinion for the Court, Justice Kennedy spoke directly to religious opponents of gay marriage, reassuring them that they were still free to engage\nwith their cultural opponents \xe2\x80\x9cin an open and searching debate,\xe2\x80\x9d and could \xe2\x80\x9ccontinue\nto advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage\nRuth Marcus, \xe2\x80\x9cPowell Regrets Backing Sodomy Law\xe2\x80\x9d, Washington Post (October 26,\n1990), https://www.washingtonpost.com/archive/politics/1990/10/26/powell-regrets-backingsodomy-law/a1ae2efc-bec6-47ec-bfb6-1c098e610c5b/.\n16 U.S. v. Windsor, 560 U.S. 744, 800 (2013) (Scalia, dissenting).\n15\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c82 Religion in the Law\n\nshould not be condoned.\xe2\x80\x9d This was the closest Kennedy came to acknowledging that\nthose \xe2\x80\x9cdivine precepts\xe2\x80\x9d were the origin of the marriage bans.\nChief Justice John Roberts as well as Justices Scalia, Clarence Thomas, and Samuel\nAlito each wrote vigorous dissents. Roberts defended federalism and lamented judicial\ninterference in the democratic process. Scalia attacked Kennedy personally, ridiculing\nhis writing style and denouncing his lack of judicial restraint. Thomas and Alito invoked religious concerns, but not as constitutional justification for the now-defunct\nmarriage bans. Instead, both warned that the Court\xe2\x80\x99s decision would in the future be\nused as a social \xe2\x80\x93 and perhaps even legal \xe2\x80\x93 weapon against religious opponents of gay\nmarriage, unfairly branding them as bigots (despite Justice Kennedy\xe2\x80\x99s reassurances to\nthe contrary).\nOne final note on Obergefell. Though none of the justices\xe2\x80\x99 opinions explicitly addressed the issue of religious establishment, one group of plaintiffs in the case had attempted to bring the question before them. In Bourke v. Beshear, the Kentucky plaintiffs seeking recognition of their out-of-state marriages brought a claim under the establishment clause of the First Amendment (along with other constitutional theories).17\nThough the Western District of Kentucky focused only on the plaintiffs\xe2\x80\x99 Fourteenth\nAmendment equal protection claim, it included in a footnote excerpts from legislative\nspeeches in favor of the state\xe2\x80\x99s 2004 constitutional marriage ban. On the floor of the\nstate capitol in Frankfort, the sponsor of the amendment had recited passages from the\nBible and described marriage between men and women as \xe2\x80\x9ca divine institution\xe2\x80\x9d according to \xe2\x80\x9cthe scriptures.\xe2\x80\x9d He called on Kentuckians to amend their constitution to\nban gay marriage \xe2\x80\x9cfor the greater glory of God.\xe2\x80\x9d Another senator \xe2\x80\x9coffered no other\npurpose [for the ban] other than reaffirming the historical and Biblical definition of\nmarriage.\xe2\x80\x9d Kentucky legislators were quite open about their desire to impose conservative Christian values.\n***\nDespite the demise of some morality-based prohibitions, others persist throughout\nthe United States. For example, many states and municipalities maintain bans or other\nrestrictions on nude dancing, polygamy, gambling, alcohol sales, and certain abortion\nprocedures, which courts, including the U.S. Supreme Court, have upheld. In Alabama,\na ban on sex toys was passed in 1998, and it survived nearly a decade of litigation.\nChallengers described the law as irrational and illegitimate, imposed solely out of religious disdain, and unconstitutional under the principles of autonomy declared in Lawrence v. Texas. But, in Williams v. Morgan, the Eleventh Circuit upheld Alabama\xe2\x80\x99s law,\nfinding that \xe2\x80\x9cpublic morality remains a legitimate rational basis for the challenged legislation\xe2\x80\x9d even after Lawrence.18 The Supreme Court denied certiorari.19\n\nBourke v. Beshear, 996 F.Supp.2d 542, 547 (W.D.Ky. 2014). The author of this book\nserved as co-counsel to the plaintiffs in Bourke as well as in its companion case Love v.\nBeshear, 989 F.Supp.2d 536 (W.D.Ky. 2014). Both cases were eventually consolidated with\nothers from Ohio, Michigan, and Tennessee under the name DeBoer v. Snyder, 772 F.3d\n388 (CA6 2014), and then as Obergefell.\n18 Williams v. Morgan, 478 F.3d 1316, 1317 (CA11 2007).\n19 Williams v. King, 552 U.S. 814 (2007). The next year, the Fifth Circuit created a circuit\nsplit by striking down a similar sex toy ban in Texas in Reliable Consultants, Inc. v. Earle,\n17\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 83\n\nFURTHER READING\nSantiago Legarre and Gregory Mitchell, Secondary Effects and Public Morality, 40\nHarv. J.L. & Pub. Pol\xe2\x80\x99y 321 (2017).\nArnold H. Loewy, Morals Legislation and the Establishment Clause, 55 Ala. L. Rev.\n159 (2003).\nDaniel F. Piar, Morality as a Legitimate Government Interest, 117 Penn St. L. Rev. 139\n(2012).\n\n517 F.3d 738 (2008), but no parties in that case sought Supreme Court review, and the split\nremains unresolved.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c84 Religion in the Law\n\n1 Smith (TN) 105\nSupreme Court of Tennessee\n\nScopes v. State\nJan. 17, 1927\nGREEN, C. J.\nScopes was convicted of a violation of chapter 27 of the Acts of 1925, for that he did teach\nin the public schools of Rhea county a certain theory that denied the story of the divine creation\nof man, as taught in the Bible, and did teach instead thereof that man had descended from a\nlower order of animals. After a verdict of guilty by the jury, the trial judge imposed a fine of\n$100, and Scopes brought the case to this court by an appeal in the nature of a writ of error\xe2\x80\xa6.\nA motion to quash the indictment was seasonably made in the trial court raising several\nquestions as to the sufficiency thereof and as to the validity and construction of the statute upon\nwhich the indictment rested. These questions appear on the record before us and have been\npresented and debated in this court with great elaboration.\nChapter 27 of the Acts of 1925, known as the Tennessee Anti\xe2\x80\x93Evolution Act is set out [as\nfollows]:\nSec. 1. Be it enacted by the General Assembly of the state of Tennessee, that it\nshall be unlawful for any teacher in any of the Universities, normals and all\nother public schools of the state which are supported in whole or in part by\nthe public school funds of the state, to teach any theory that denies the story\nof the divine creation of man as taught in the Bible and to teach instead that\nman has descended from a lower order of animals.\nSec. 2. Be it further enacted, that any teacher found guilty of the violation of\nthis act, shall be guilty of a misdemeanor and upon conviction shall be fined\nnot less than one hundred ($100.00) dollars nor more than five hundred\n($500.00) dollars for each offense.\nSec. 3. Be it further enacted, that this act take effect from and after its passage,\nthe public welfare requiring it.\nWhile the act was not drafted with as much care as could have been desired, nevertheless\nthere seems to be no great difficulty in determining its meaning. It is entitled:\nAn act prohibiting the teaching of the evolution theory in all the Universities,\nnormals and all other public schools in Tennessee, which are supported in\nwhole or in part by the public school funds of the state, and to provide penalties for the violations thereof.\n\xe2\x80\xa6The words of a statute, if in common use, are to be taken in their natural and ordinary\nsense. O\xe2\x80\x99Neil v. State, 115 Tenn. 427\xe2\x80\xa6. Thus defining evolution, this act\xe2\x80\x99s title clearly indicates\nthe purpose of the statute to be the prohibition of teaching in the schools of the state that man\nhas developed or descended from some lower type or order of animals.\nWhen the draftsman came to express this purpose in the body of the act, he first forbade\nthe teaching of \xe2\x80\x9cany theory that denies the story of the divine creation of man, as taught in the\nBible\xe2\x80\x9d\xe2\x80\x93\xe2\x80\x93his conception evidently being that to forbid the denial of the Bible story would ban the\nteaching of evolution. To make the purpose more explicit, he added that it should be unlawful\nto teach \xe2\x80\x9cthat man has descended from a lower order of animals.\xe2\x80\x9d \xe2\x80\xa6\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 85\nIt thus seems plain that the Legislature in this enactment only intended to forbid teaching\nthat men descended from a lower order of animals. The denunciation of any theory denying the\nBible story of creation is restricted by the caption and by the final clause of section 1.\nSo interpretated [sic], the statute does not seem to be uncertain in its meaning nor incapable\nof enforcement for such a reason, notwithstanding the argument to the contrary. The indictment\nherein follows the language of the statute. The statute being sufficiently definite in its terms, such\nan indictment is good. State v. Odam, 2 Lea (70 Tenn.) 220\xe2\x80\xa6. The assignments of error, which\nchallenge the sufficiency of the indictment and the uncertainty of the act, are accordingly overruled.\nIt is contended that the statute violates section 8 of article 1 of the Tennessee Constitution,\nand section 1 of the Fourteenth Amendment of the Constitution of the United States\xe2\x80\x93\xe2\x80\x93the law\nof the land clause of the state Constitution, and the due process of law clause of the federal\nConstitution, which are practically equivalent in meaning.\nWe think there is little merit in this contention. The plaintiff in error was a teacher in the\npublic schools of Rhea county. He was an employee of the state of Tennessee or of a municipal\nagency of the state. He was under contract with the state to work in an institution of the state.\nHe had no right or privilege to serve the state except upon such terms as the state prescribed.\nHis liberty, his privilege, his immunity to teach and proclaim the theory of evolution, elsewhere\nthan in the service of the state, was in no wise touched by this law.\nThe statute before us is not an exercise of the police power of the state undertaking to regulate the conduct and contracts of individuals in their dealings with each other. On the other\nhand, it is an act of the state as a corporation, a proprietor, an employer. It is a declaration of a\nmaster as to the character of work the master\xe2\x80\x99s servant shall, or rather shall not, perform. In\ndealing with its own employees engaged upon its own work, the state is not hampered by the\nlimitations of section 8 of article 1 of the Tennessee Constitution, nor of the Fourteenth Amendment to the Constitution of the United States\xe2\x80\xa6.\nA leading case is Atkin v. Kansas, 191 U. S. 207. The court there considered and upheld a\nKansas statute making it a criminal offense for a contractor for a public work to permit or\nrequire an employee to perform labor upon that work in excess of eight hours each day. In that\ncase it was laid down:\n\xe2\x80\xa6It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may choose to adopt, without regard\nto the wishes of the state. On the contrary, it belongs to the state, as the guardian and trustee for its people, and having control of its affairs, to prescribe the\nconditions upon which it will permit public work to be done on its behalf, or\non behalf of its municipalities. No court has authority to review its action in\nthat respect. Regulations on this subject suggest only considerations of public\npolicy. And with such considerations the courts have no concern.\n...This court has indicated a like view in Leeper v. State, 103 Tenn. 500, in which the constitutionality of chapter 205 of the Acts of 1899, known as the Uniform Text Book Law, was\nsustained. In the opinion in that case Judge Wilkes observed:\nIf the authority to regulate and control schools is legislative, then it must have\nan unrestricted right to prescribe methods, and the courts cannot interfere\nwith it unless some scheme is devised which is contrary to other provisions of\nthe Constitution.\n\xe2\x80\xa6 Meyer v. Nebraska, 262 U. S. 390, Pierce v. Society of Sisters of the Holy Names of Jesus\nand Mary, 268 U. S. 510, and other decisions of the Supreme Court of the United States, pressed\nupon us by counsel for the plaintiff in error, deal with statutes affecting individuals, corporations,\nand private institutions, and we do not regard these cases as in point.\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c86 Religion in the Law\nSince the state may prescribe the character and the hours of labor of the employees on its\nworks, just as freely may it say what kind of work shall be performed in its service, what shall\nbe taught in its schools, so far at least as section 8 of article 1 of the Tennessee Constitution, and\nthe Fourteenth Amendment to the Constitution of the United States, are concerned.\nBut it is urged that chapter 27 of the Acts of 1925 conflicts with section 12 of article 11, the\neducational clause, and section 3 of article 1, the religious clause, of the Tennessee Constitution.\nIt is to be doubted if the plaintiff in error, before us only as the state\xe2\x80\x99s employee, is sufficiently\nprotected by these constitutional provisions to justify him in raising such questions. Nevertheless, as the state appears to concede that these objections are properly here made, the court will\nconsider them.\nThe relevant portion of section 12 of article 11 of the Constitution is in these words: \xe2\x80\x9cIt\nshall be the duty of the General Assembly in all future periods of this government, to cherish\nliterature and science.\xe2\x80\x9d\nThe argument is that the theory of the descent of man from a lower order of animals is now\nestablished by the preponderance of scientific thought and that the prohibition of the teaching\nof such theory is a violation of the legislative duty to cherish science.\nWhile this clause of the Constitution has been mentioned in several of our cases, these references have been casual, and no act of the Legislature has ever been held inoperative by reason\nof such provision. In one of the opinions in Green v. Allen, 5 Humph. (24 Tenn.) 170, the provision was said to be directory. Although this court is loath to say that any language of the\nConstitution is merely directory \xe2\x80\xa6 we are driven to the conclusion that this particular admonition must be so treated. It is too vague to be enforced by any court. To cherish science means to\nnourish, to encourage, to foster science.\nIn no case can the court directly compel the Legislature to perform its duty. In a plain case\nthe court can prevent the Legislature from transgressing its duty under the Constitution by declaring ineffective such a legislative act. The case however, must be plain, and the legislative act\nis always given the benefit of any doubt\xe2\x80\xa6.\nIf the Legislature thinks that, by reason of popular prejudice, the cause of education and the\nstudy of science generally will be promoted by forbidding the teaching of evolution in the schools\nof the state, we can conceive of no ground to justify the court\xe2\x80\x99s interference. The courts cannot\nsit in judgment on such acts of the Legislature or its agents and determine whether or not the\nomission or addition of a particular course of study tends \xe2\x80\x9cto cherish science.\xe2\x80\x9d\nThe last serious criticism made of the act is that it contravenes the provision of section 3 of\narticle 1 of the Constitution, \xe2\x80\x9cthat no preference shall ever be given, by law, to any religious\nestablishment or mode of worship.\xe2\x80\x9d\nThe language quoted is a part of our Bill of Rights, was contained in the first Constitution\nof the state adopted in 1796, and has been brought down into the present Constitution.\nAt the time of the adoption of our first Constitution, this government had recently been\nestablished and the recollection of previous conditions was fresh. England and Scotland maintained state churches as did some of the Colonies, and it was intended by this clause of the\nConstitution to prevent any such undertaking in Tennessee.\nWe are not able to see how the prohibition of teaching the theory that man has descended\nfrom a lower order of animals gives preference to any religious establishment or mode of worship. So far as we know, there is no religious establishment or organized body that has in its\ncreed or confession of faith any article denying or affirming such a theory. So far as we know,\nthe denial or affirmation of such a theory does not enter into any recognized mode of worship.\nSince this cause has been pending in this court, we have been favored, in addition to briefs of\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 87\ncounsel and various amici curi\xc3\xa6, with a multitude of resolutions, addresses, and communications from scientific bodies, religious factions, and individuals giving us the benefit of their views\nupon the theory of evolution. Examination of these contributions indicates that Protestants,\nCatholics, and Jews are divided among themselves in their beliefs, and that there is no unanimity\namong the members of any religious establishment as to this subject. Belief or unbelief in the\ntheory of evolution is no more a characteristic of any religious establishment or mode of worship\nthan is belief or unbelief in the wisdom of the prohibition laws. It would appear that members\nof the same churches quite generally disagree as to these things.\nFurthermore, chapter 277 of the Acts of 1925 requires the teaching of nothing. It only forbids the teaching of the evolution of man from a lower order of animals. Chapter 102 of the\nActs of 1915 requires that ten verses from the Bible be read each day at the opening of every\npublic school, without comment, and provided the teacher does not read the same verses more\nthan twice during any session. It is also provided in this act that pupils may be excused from the\nBible readings upon the written request of their parents.\nAs the law thus stands, while the theory of evolution of man may not be taught in the\nschools of the state, nothing contrary to that theory is required to be taught. It could scarcely be\nsaid that the statutory scriptural reading just mentioned would amount to teaching of a contrary\ntheory.\nOur school authorities are therefore quite free to determine how they shall act in this state\nof the law. Those in charge of the educational affairs of the state are men and women of discernment and culture. If they believe that the teaching of the science of biology has been so hampered\nby chapter 27 of the Acts of 1925 as to render such an effort no longer desirable, this course of\nstudy may be entirely omitted from the curriculum of our schools. If this be regarded as a misfortune, it must be charged to the Legislature. It should be repeated that the act of 1925 deals\nwith nothing but the evolution of man from a lower order of animals.\nIt is not necessary now to determine the exact scope of the religious preference clause of the\nConstitution and other language of that section. The situation does not call for such an attempt.\nSection 3 of article 1 is binding alike on the Legislature and the school authorities. So far we are\nclear that the Legislature has not crossed these constitutional limitations. If hereafter the school\nauthorities should go beyond such limits, a case can then be brought to the courts.\nMuch has been said in argument about the motives of the Legislature in passing this act.\nBut the validity of a statute must be determined by its natural and legal effect, rather than proclaimed motives. Lochner v. New York, 198 U. S. 45\xe2\x80\xa6.\nThis record discloses that the jury found the defendant below guilty, but did not assess the\nfine. The trial judge himself undertook to impose the minimum fine of $100 authorized by the\nstatute. This was error. Under section 14 of article 6 of the Constitution of Tennessee, a fine in\nexcess of $50 must be assessed by a jury. The statute before us does not permit the imposition\nof a smaller fine than $100.\nSince a jury alone can impose the penalty this act requires, and as a matter of course no\ndifferent penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and\nwe are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. State, 153 Tenn. 198.\nThe court is informed that the plaintiff in error is no longer in the service of the state. We\nsee nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think\nthe peace and dignity of the state, which all criminal prosecutions are brought to redress, will be\nthe better conserved by the entry of a nolle prosequi [\xe2\x80\x9cwe shall no longer prosecute\xe2\x80\x9d] herein.\nSuch a course is suggested to the Attorney General.\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c88 Religion in the Law\nMr. Justice SWIGGART took no part in the decision. He came on this bench upon the death of\nMr. Justice HALL, after the argument and submission hereof.\nCOOK, J., concurs.\nCHAMBLISS, J. (concurring).\n\xe2\x80\xa6Two theories of organic evolution are well recognized, one the theistic, which not only\nconcedes, but maintains, consistently with the Bible story, that \xe2\x80\x9cthe Lord God formed man of\nthe dust of the earth, and breathed into his nostrils the breath of life, and man became a living\nsoul.\xe2\x80\x9d This is the theory advanced eloquently by learned counsel for Scopes, and held to by\nnumerous outstanding scientists of the world. The other theory is known as the materialistic,\nwhich denies that God created man, that He was the first cause, and seeks in shadowy uncertainties for the origin of life. The act before us, as I view it, prohibits the teaching in public\nschools of the state of this latter theory, inconsistent, not only with the common belief of mankind of every clime and creed and \xe2\x80\x9creligious establishment,\xe2\x80\x9d even those that reject Christ or\nJudaism, and look through Buddha or Mohammed to God, but inconsistent also with our Constitution and the fundamental declaration lying back of it, through all of which runs recognition\nof and appeal to \xe2\x80\x9cGod,\xe2\x80\x9d and a life to come.\nThe Declaration of Independence opens with a reference to \xe2\x80\x9cthe laws of nature and nature\xe2\x80\x99s\nGod,\xe2\x80\x9d and holds this truth \xe2\x80\x9cto be self\xe2\x80\x93evident, that all men are created equal, that they are\nendowed by their Creator,\xe2\x80\x9d etc., and concludes \xe2\x80\x9cwith a firm reliance on the protection of Divine\nProvidence.\xe2\x80\x9d The Articles of Confederation and Perpetual Union read, \xe2\x80\x9cAnd whereas, it hath\npleased the Great Governor of the world.\xe2\x80\x9d And so section 3 of article 1 of the Constitution of\nthis state, which declares that \xe2\x80\x9cno preference shall ever be given, by law, to any religious establishment,\xe2\x80\x9d opens with the declaration \xe2\x80\x9cthat all men have a natural and indefeasible right to\nworship Almighty God,\xe2\x80\x9d while section 2 of article 9 declares that \xe2\x80\x9cno person who denies the\nbeing of God, or a future state of rewards and punishments, shall hold any office in the civil\ndepartment of this state.\xe2\x80\x9d That the Legislature may prohibit the teaching of the future citizens\nand office holders to the state a theory which denies the Divine Creator will hardly be denied.\n\xe2\x80\xa6[W]hat the act aims at and effects is the prohibition of the teaching of any such theory\nonly as denies that man was divinely created according to the Bible story, however this story\nmay be interpreted as to details. So long as the story as told in the Bible is so construed as to\nrecognize the divine creation of man, these words have no limiting effect upon the central and\nessential object of the act as hereinbefore suggested\xe2\x80\x93\xe2\x80\x93to restrain the inculcation into the minds\nof pupils of the public schools of any theory that denies the divine creation of man, and on the\ncontrary traces his origin, in exclusion of the divine, to a lower order of animal life. It is this\nmaterialistic teaching which is denounced, and, so construed, the act may clearly be sustained,\nnegative only as it is, first, of the right to teach in the public schools a denial of the existence,\nrecognized by our Constitution, of the Creator of all mankind; and, second, of the right to teach\nany theory which involves the support or advocacy of either, or any, religious dogma or view\xe2\x80\xa6.\nConceding that \xe2\x80\x9cthe theory of evolution is altogether essential to the teaching of biology\nand its kindred sciences,\xe2\x80\x9d it will not be contended by Dr. Reinke, or by learned counsel quoting\nfrom him, that the theory of evolution essentially involves the denial of the divine creation of\nman, and that, when construed to prohibit such a denial only, the act is objectionable as denying\nto \xe2\x80\x9cthe teacher of biology the use of the most fundamental generalization of his science.\xe2\x80\x9d \xe2\x80\xa6\nThe teaching of all sciences may have full legitimate sway, with the restriction only that the\nteaching shall not convey a denial of man\xe2\x80\x99s divine origin\xe2\x80\x93\xe2\x80\x93God as his Creator. The theories of\nDrummond, Winchell, Fiske, Hibbens, Millikan, Kenn, Merriam, Angell, Cannon Barnes, and\na multitude of others, whose names are invoked in argument and brief, do not deny the story of\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 89\nthe divine creation of man as taught in the Bible, evolutionists though they be, but, construing\nthe Scripture for themselves in the light of their learning, accept it as true and their teaching\nwould not come under the ban of this act.\nMuch that has been said here bears directly upon the contention that section 3, art. 1, of\nour Constitution is violated, in that a preference is given by law to those \xe2\x80\x9creligious establishments which have as one of their tenets or dogmas the instantaneous creation of man.\xe2\x80\x9d As was\nsaid by Chief Justice GREEN, the act gives no preference to any particular religious establishment. The doctrine or tenet of the instantaneous creation of man is not set forth or preferred\nover other conceptions. It is too well established for argument that \xe2\x80\x9cthe story of the divine creation of man as taught in the Bible\xe2\x80\x9d is accepted\xe2\x80\x93\xe2\x80\x93not \xe2\x80\x9cdenied\xe2\x80\x9d\xe2\x80\x93\xe2\x80\x93by millions of men and women\nwho do not interpret it as teaching instantaneous creation, who hold with the Psalmist that \xe2\x80\x9ca\nthousand years in thy sight are but as yesterday when it is past,\xe2\x80\x9d as but a day. It follows that to\nforbid the teaching of a denial of the biblical account of divine creation does not, expressly or\nby fair implication, involve acceptance or approval of instantaneous creation, held to by some\nliteralists. One is not prohibited by this act from teaching, either that \xe2\x80\x9cdays,\xe2\x80\x9d as used in the book\nof Genesis, means days of 24 hours, the literalist view, or days of \xe2\x80\x9ca thousand years\xe2\x80\x9d or more,\nas held by liberalists, so long as the teaching does not exclude God as the author of human life.\nConsidering the caption and body of this act as a whole, it is seen to be clearly negative\nonly, not affirmative. It requires nothing to be taught. It prohibits merely. And it prohibits, not\nthe teaching of any theory of evolution, but that theory (of evolution) only that denies, takes\nissue with, positively disaffirms, the creation of man by God (as the Bible teaches), and that,\ninstead of being so created, he is a product of, springs from, a lower order of animals. No authority is recognized or conferred by the laws of this state for the teaching in the public schools,\non the one hand, of the Bible, or any of its doctrines or dogmas, and this act prohibits the teaching on the other hand of any denial thereof. It is purely an act of neutrality.\nCeaseless and irreconcilable controversy exists among our citizens and taxpayers, having\nequal rights, touching matters of religious faith, and it is within the power of the Legislature to\ndeclare that the subject shall be excluded from the tax\xe2\x80\x93supported institutions, that the state shall\nstand neutral, rendering \xe2\x80\x9cunto C\xc3\xa6sar the things which be C\xc3\xa6sar\xe2\x80\x99s and unto God the things\nwhich be God\xe2\x80\x99s,\xe2\x80\x9d and insuring the completeness of separation of church and state\xe2\x80\xa6.\nMcKINNEY, J. (dissenting).\nAn elemental rule of statutory construction, which is well stated by Mr. Justice Sutherland\nin delivering the opinion of the Supreme Court of the United States in Connally v. General Construction Co., 269 U. S. 385, is as follows:\nthe terms of a penal statute creating a new offense must be sufficiently explicit\nto inform those who are subject to it what conduct on their part will render\nthem liable to its penalties\xe2\x80\xa6; and a statute which [is] so vague that men of\ncommon intelligence must necessarily guess at its meaning and differ as to its\napplication violates the first essential of due process of law.\nApplying the foregoing rule to the statute here invoked, I am of the opinion that it is invalid\nfor uncertainty of meaning. I therefore respectfully dissent from the contrary holding of my associates.\n\nScopes v. State, 1 Smith (TN) 105 (Tenn. 1927)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c90 Religion in the Law\n354 U.S. 476\nSupreme Court of the United States\n\nRoth v. United States\nJune 24, 1957\nMr. Justice BRENNAN delivered the opinion of the Court.\nThe constitutionality of a criminal obscenity statute is the question in each of these cases. In\nRoth, the primary constitutional question is whether the federal obscenity statute violates the\nprovision of the First Amendment that \xe2\x80\x9cCongress shall make no law \xe2\x80\xa6 abridging the freedom\nof speech, or of the press.\xe2\x80\x9d In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code invade the freedoms of speech and press as they\nmay be incorporated in the liberty protected from state action by the Due Process Clause of the\nFourteenth Amendment.\nOther constitutional questions are: whether these statutes violate due process, because too\nvague to support conviction for crime; whether power to punish speech and press offensive to\ndecency and morality is in the States alone, so that the federal obscenity statute violates the Ninth\nand Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, s 8, cl. 7, to establish post offices and post roads,\npre-empted the regulation of the subject matter (raised in Alberts).\nRoth conducted a business in New York in the publication and sale of books, photographs\nand magazines. He used circulars and advertising matter to solicit sales. He was convicted by a\njury in the District Court for the Southern District of New York upon 4 counts of a 26-count\nindictment charging him with mailing obscene circulars and advertising, and an obscene book,\nin violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals\nfor the Second Circuit. We granted certiorari.\nAlberts conducted a mail-order business from Los Angeles. He was convicted by the Judge\nof the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a\nmisdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent\nbooks, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department\nof the Superior Court of the State of California in and for the County of Los Angeles.\nThe dispositive question is whether obscenity is utterance within the area of protected\nspeech and press. Although this is the first time the question has been squarely presented to this\nCourt, either under the First Amendment or under the Fourteenth Amendment, expressions\nfound in numerous opinions indicate that this Court has always assumed that obscenity is not\nprotected by the freedoms of speech and press. \xe2\x80\xa6\nThe guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had\nratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14\nStates provided for the prosecution of libel, and all of those States made either blasphemy or\nprofanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish\n\xe2\x80\x9cany filthy, obscene, or profane song, pamphlet, libel or mock sermon\xe2\x80\x9d in imitation or mimicking of religious services\xe2\x80\xa6. Thus, profanity and obscenity were related offenses.\nIn light of this history, it is apparent that the unconditional phrasing of the First Amendment\nwas not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech.\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 91\nBeauharnais v. People of State of Illinois, 343 U.S. 250, 266. At the time of the adoption of the\nFirst Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently\ncontemporaneous evidence to show that obscenity, too, was outside the protection intended for\nspeech and press.\nThe protection given speech and press was fashioned to assure unfettered interchange of\nideas for the bringing about of political and social changes desired by the people. This objective\nwas made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of\nQuebec:\nThe last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality,\nand arts in general, in its diffusion of liberal sentiments on the administration\nof Government, its ready communication of thoughts between subjects, and\nits consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.\xe2\x80\x99 1 Journals of the Continental Congress 108 (1774).\nAll ideas having even the slightest redeeming social importance\xe2\x80\x94unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion\xe2\x80\x94have the full protection\nof the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity\nas utterly without redeeming social importance. This rejection for that reason is mirrored in the\nuniversal judgment that obscenity should be restrained, reflected in the international agreement\nof over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws\nenacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court\nin Chaplinsky v. New Hampshire, 315 U.S. 568, 571\xe2\x80\x94572:\nThere are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene\xe2\x80\xa6 It has been well\nobserved that such utterances are no essential part of any exposition of ideas,\nand are of such slight social value as a step to truth that any benefit that may\nbe derived from them is clearly outweighed by the social interest in order and\nmorality.\nWe hold that obscenity is not within the area of constitutionally protected speech or press.\nIt is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt\nantisocial conduct which is or may be incited in the persons stimulated to such thoughts. In\nRoth, the trial judge instructed the jury: \xe2\x80\x9cThe words \xe2\x80\x98obscene, lewd and lascivious\xe2\x80\x99 as used in\nthe law, signify that form of immorality which has relation to sexual impurity and has a tendency\nto excite lustful thoughts.\xe2\x80\x9d In Alberts, the trial judge applied the test laid down in People v.\nWepplo, 178 P.2d 853, 855, namely, whether the material has \xe2\x80\x9ca substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires.\xe2\x80\x9d It is insisted that the constitutional guaranties are violated because convictions may be had without\nproof either that obscene material will perceptibly create a clear and present danger of antisocial\nconduct, or will probably induce its recipients to such conduct. But, in light of our holding that\nobscenity is not protected speech, the complete answer to this argument is in the holding of this\nCourt in Beauharnais v. People of State of Illinois, 343 U.S. at 266:\nLibelous utterances not being within the area of constitutionally protected\nspeech, it is unnecessary, either for us or for the State courts, to consider the\nissues behind the phrase \xe2\x80\x9cclear and present danger.\xe2\x80\x9d Certainly no one would\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c92 Religion in the Law\ncontend that obscene speech, for example, may be punished only upon a\nshowing of such circumstances. Libel, as we have seen, is in the same class.\nHowever, sex and obscenity are not synonymous. Obscene material is material which deals\nwith sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature\nand scientific works, is not itself sufficient reason to deny material the constitutional protection\nof freedom of speech and press. Sex, a great and mysterious motive force in human life, has\nindisputably been a subject of absorbing interest to mankind through the ages; it is one of the\nvital problems of human interest and public concern\xe2\x80\xa6.\nThe fundamental freedom of speech and press have contributed greatly to the development\nand well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring\nfederal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and\nopened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of\nfreedom of speech and press for material which does not treat sex in a manner appealing to\nprurient interest.\nThe early leading standard of obscenity allowed material to be judged merely by the effect\nof an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin, (1868). Some\nAmerican courts adopted this standard but later decisions have rejected it and substituted this\ntest: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well\nencompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard\nprovides safeguards adequate to withstand the charge of constitutional infirmity.\nBoth trial courts below sufficiently followed the proper standard. Both courts used the\nproper definition of obscenity\xe2\x80\xa6.\nIt is argued that the statutes do not provide reasonably ascertainable standards of guilt and\ntherefore violate the constitutional requirements of due process. Winters v. People of State of\nNew York, 333 U.S. 507. The federal obscenity statute makes punishable the mailing of material\nthat is \xe2\x80\x9cobscene, lewd, lascivious, or filthy or other publication of an indecent character.\xe2\x80\x9d The\nCalifornia statute makes punishable the keeping for sale or advertising material that is \xe2\x80\x9cobscene\nor indecent.\xe2\x80\x9d The thrust of the argument is that these words are not sufficiently precise because\nthey do not mean the same thing to all people, all the time, everywhere.\nMany decisions have recognized that these terms of obscenity statutes are not precise. This\nCourt, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. \xe2\x80\x9c(T)he Constitution does not require impossible standards\xe2\x80\x9d; all that is\nrequired is that the language \xe2\x80\x9cconveys sufficienty definite warning as to the proscribed conduct\nwhen measured by common understanding and practices.\xe2\x80\x9d United States v. Petrillo, 332 U.S. 1,\n7\xe2\x80\x948\xe2\x80\xa6. That there may be marginal cases in which it is difficult to determine the side of the line\non which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense\xe2\x80\xa6.\nIn summary, then, we hold that these statutes, applied according to the proper standard for\njudging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give mean in acting adequate notice of what is prohibited\xe2\x80\xa6.\nThe judgments are affirmed.\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 93\nMr. Chief Justice WARREN, concurring in the result.\nI agree with the result reached by the Court in these cases, but, because we are operating in\na field of expression and because broad language used here may eventually be applied to the arts\nand sciences and freedom of communication generally, I would limit our decision to the facts\nbefore us and to the validity of the statutes in question as applied.\nAppellant Alberts was charged with willfully, unlawfully and lewdly disseminating obscene\nmatter. Obscenity has been construed by the California courts to mean having a substantial\ntendency to corrupt by arousing lustful desires. People v. Wepplo, 178 P.2d 853. Petitioner Roth\nwas indicted for unlawfully, willfully and knowingly mailing obscene material that was calculated to corrupt and debauch the minds and morals of those to whom it was sent. Each was\naccorded all the protections of a criminal trial. Among other things, they contend that the statutes under which they were convicted violate the constitutional guarantees of freedom of speech,\npress and communication.\nThat there is a social problem presented by obscenity is attested by the expression of the\nlegislatures of the forty-eight States as well as the Congress. To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that\nthere is a strong countervailing interest to be considered in the freedoms guaranteed by the First\nand Fourteenth Amendments.\nThe line dividing the salacious or pornographic from literature or science is not straight and\nunwavering. Present laws depend largely upon the effect that the materials may have upon those\nwho receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the\nbook that is on trial; it is a person. The conduct of the defendant is the central issue, not the\nobscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute\nof the defendant\xe2\x80\x99s conduct, but the materials are thus placed in context from which they draw\ncolor and character. A wholly different result might be reached in a different setting.\n\xe2\x80\xa6Under the California law, the prohibited activity must be done \xe2\x80\x9cwillfully and lewdly.\xe2\x80\x9d\nThe federal statute limits the crime to acts done \xe2\x80\x9cknowingly.\xe2\x80\x9d In his charge to the jury, the district judge stated that the matter must be \xe2\x80\x9ccalculated\xe2\x80\x9d to corrupt or debauch. The defendants in\nboth these cases were engaged in the business of purveying textual or graphic matter openly\nadvertised to appeal to the erotic interest of their customers. They were plainly engaged in the\ncommercial exploitation of the morbid and shameful craving for materials with prurient effect.\nI believe that the State and Federal Governments can constitutionally punish such conduct. That\nis all that these cases present to us, and that is all we need to decide\xe2\x80\xa6.\nMr. Justice HARLAN, concurring in the result in No. 61, and dissenting in No. 582.\nI regret not to be able to join the Court\xe2\x80\x99s opinion. I cannot do so because I find lurking\nbeneath its disarming generalizations a number of problems which not only leave me with serious misgivings as to the future effect of today\xe2\x80\x99s decisions, but which also, in my view, call for\ndifferent results in these two cases.\n\xe2\x80\xa6[T]he problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be\nundesirable because of their nature or supposed deleterious effect upon human conduct. Proceeding from the premise that \xe2\x80\x9cno issue is presented in either case, concerning the obscenity of\nthe material involved,\xe2\x80\x9d the Court finds the \xe2\x80\x9cdispositive question\xe2\x80\x9d to be \xe2\x80\x9cwhether obscenity is\nutterance within the area of protected speech and press,\xe2\x80\x9d and then holds that \xe2\x80\x9cobscenity\xe2\x80\x9d is not\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c94 Religion in the Law\nso protected because it is \xe2\x80\x9cutterly without redeeming social importance.\xe2\x80\x9d This sweeping formula\nappears to me to beg the very question before us. The Court seems to assume that \xe2\x80\x9cobscenity\xe2\x80\x9d\nis a peculiar genus of \xe2\x80\x9cspeech and press,\xe2\x80\x9d which is as distinct, recognizable, and classifiable as\npoison ivy is among other plants. On this basis the constitutional question before us simply\nbecomes, as the Court says, whether \xe2\x80\x9cobscenity,\xe2\x80\x9d as an abstraction, is protected by the First and\nFourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of \xe2\x80\x9cfact,\xe2\x80\x9d to be entrusted to a fact-finder and insulated\nfrom independent constitutional judgment.\n\xe2\x80\xa6Every communication has an individuality and \xe2\x80\x9cvalue\xe2\x80\x9d of its own. The suppression of a\nparticular writing or other tangible form of expression is, therefore, an individual matter, and in\nthe nature of things every such suppression raises an individual constitutional problem, in which\na reviewing court must determine for itself whether the attacked expression is suppressable\nwithin constitutional standards\xe2\x80\xa6.\nI do not think that reviewing courts can escape this responsibility by saying that the trier of\nthe facts, be it a jury or a judge, has labeled the questioned matter as \xe2\x80\x9cobscene,\xe2\x80\x9d for, if \xe2\x80\x9cobscenity\xe2\x80\x9d is to be suppressed, the question whether a particular work is of that character involves not\nreally an issue of fact but a question of constitutional judgment of the most sensitive and delicate\nkind. Many juries might find that Joyce\xe2\x80\x99s Ulysses or Bocaccio\xe2\x80\x99s \xe2\x80\x9cDecameron\xe2\x80\x9d was obscene, and\nyet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are\n\xe2\x80\x9cutterly without redeeming social importance.\xe2\x80\x9d ...\nI concur in the judgment of the Court in No. 61, Alberts v. People of State of California.\nThe question in this case is whether the defendant was deprived of liberty without due process of law when he was convicted for selling certain materials found by the judge to be obscene\nbecause they would have a \xe2\x80\x9ctendency to deprave or corrupt its readers by exciting lascivious\nthoughts or arousing lustful desire.\xe2\x80\x9d\nIn judging the constitutionality of this conviction, we should remember that our function in\nreviewing state judgments under the Fourteenth Amendment is a narrow one. \xe2\x80\xa6 The States\xe2\x80\x99\npower to make printed words criminal is \xe2\x80\xa6 confined by the Fourteenth Amendment, but only\ninsofar as such power is inconsistent with our concepts of \xe2\x80\x9cordered liberty.\xe2\x80\x9d Palko v. State of\nConnecticut, 302 U.S. 319, 324\xe2\x80\x94325.\nWhat, then, is the purpose of this California statute? Clearly the state legislature has made\nthe judgment that printed words can \xe2\x80\x9cdeprave or corrupt\xe2\x80\x9d the reader\xe2\x80\x94that words can incite to\nanti-social or immoral action. The assumption seems to be that the distribution of certain types\nof literature will induce criminal or immoral sexual conduct. It is well known, of course, that\nthe validity of this assumption is a matter of dispute among critics, sociologists, psychiatrists,\nand penologists. There is a large school of thought, particularly in the scientific community,\nwhich denies any causal connection between the reading of pornography and immorality, crime,\nor delinquency. Others disagree. \xe2\x80\xa6[However,] nothing in the Constitution requires California\nto accept as truth the most advanced and sophisticated psychiatric opinion. It seems to me clear\nthat it is not irrational, in our present state of knowledge, to consider that pornography can\ninduce a type of sexual conduct which a State may deem obnoxious to the moral fabric of society. In fact the very division of opinion on the subject counsels us to respect the choice made by\nthe State.\nFurthermore, even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States\nmay be protected by the prohibition placed on such materials. The State can reasonably draw\nthe inference that over a long period of time the indiscriminate dissemination of materials, the\nessential character of which is to degrade sex, will have an eroding effect on moral standards.\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 95\nAnd the State has a legitimate interest in protecting the privacy of the home against invasion of\nunsolicited obscenity.\n\xe2\x80\xa6Since the domain of sexual morality is pre-eminently a matter of state concern, this Court\nshould be slow to interfere with state legislation calculated to protect that morality. It seems to\nme that nothing in the broad and flexible command of the Due Process Clause Forbids California to prosecute one who sells books whose dominant tendency might be to \xe2\x80\x9cdeprave or corrupt\xe2\x80\x9d a reader. I agree with the Court, of course, that the books must be judged as a whole and\nin relation to the normal adult reader.\n\xe2\x80\xa6And so, in the final analysis, I concur in the judgment because, upon an independent\nperusal of the material involved, and in light of the considerations discussed above, I cannot say\nthat its suppression would so interfere with the communication of \xe2\x80\x9cideas\xe2\x80\x9d in any proper sense\nof that term that it would offend the Due Process Clause\xe2\x80\xa6.\nI dissent in No. 582, Roth v. United States.\nWe are faced here with the question whether the federal obscenity statute, as construed and\napplied in this case, violates the First Amendment to the Constitution. To me, this question is of\nquite a different order than one where we are dealing with state legislation under the Fourteenth\nAmendment. I do not think it follows that state and federal powers in this area are the same,\nand that just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same\xe2\x80\xa6.\nThe Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government\xe2\x80\xa6. Whether a\nparticular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has,\nunder the Constitution, a direct substantive interest, that is, the power to act, in the particular\narea involved.\n\xe2\x80\xa6[The] interests which obscenity statutes purportedly protect are primarily entrusted to the\ncare, not of the Federal Government, but of the States. Congress has no substantive power over\nsexual morality. Such powers as the Federal Government has in this field are but incidental to\nits other powers, here the postal power, and are not of the same nature as those possessed by the\nStates, which bear direct responsibility for the protection of the local moral fabric\xe2\x80\xa6.\nNot only is the federal interest in protecting the Nation against pornography attenuated,\nbut the dangers of federal censorship in this field are far greater than anything the States may\ndo. \xe2\x80\xa6 Different States will have different attitudes toward the same work of literature. The same\nbook which is freely read in one State might be classed as obscene in another. And it seems to\nme that no overwhelming danger to our freedom to experiment and to gratify our tastes in\nliterature is likely to result from the suppression of a borderline book in one of the States, so\nlong as there is no uniform nation-wide suppression of the book, and so long as other States are\nfree to experiment with the same or bolder books.\nQuite a different situation is presented, however, where the Federal Government imposes\nthe ban. The danger is perhaps not great if the people of one State, through their legislature,\ndecide that Lady Chatterley\xe2\x80\x99s Lover goes so far beyond the acceptable standards of candor that\nit will be deemed offensive and non-sellable, for the State next door is still free to make its own\nchoice. At least we do not have one uniform standard. But the dangers to free thought and\nexpression are truly great if the Federal Government imposes a blanket ban over the Nation on\nsuch a book. The prerogative of the States to differ on their ideas of morality will be destroyed,\nthe ability of States to experiment will be stunted\xe2\x80\xa6.\n\xe2\x80\xa6Moreover, in no event do I think that the limited federal interest in this area can extend\nto mere \xe2\x80\x9cthoughts.\xe2\x80\x9d The Federal Government has no business [under the First Amendment],\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c96 Religion in the Law\nwhether under the postal or commerce power, to bar the sale of books because they might lead\nto any kind of \xe2\x80\x9cthoughts.\xe2\x80\x9d \xe2\x80\xa6\nMr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.\nWhen we sustain these convictions, we make the legality of a publication turn on the purity\nof thought which a book or tract instills in the mind of the reader. I do not think we can approve\nthat standard and be faithful to the command of the First Amendment, which by its terms is a\nrestraint on Congress and which by the Fourteenth is a restraint on the States.\nIn the Roth case the trial judge charged the jury that the statutory words \xe2\x80\x9cobscene, lewd\nand lascivious\xe2\x80\x9d describe \xe2\x80\x9cthat form of immorality which has relation to sexual impurity and has\na tendency to excite lustful thoughts.\xe2\x80\x9d He stated that the term \xe2\x80\x9cfilthy\xe2\x80\x9d in the statute pertains\n\xe2\x80\x9cto that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends\nto arouse a feeling of disgust and revulsion.\xe2\x80\x9d He went on to say that the material \xe2\x80\x9cmust be\ncalculated to corrupt and debauch the minds and morals\xe2\x80\x9d of \xe2\x80\x9cthe average person in the community\xe2\x80\x9d not those of any particular class. \xe2\x80\x9cYou judge the circulars, pictures and publications\nwhich have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by presentday standards.\xe2\x80\x9d\nThe trial judge who, sitting without a jury, heard the Alberts case and the appellate court\nthat sustained the judgment of conviction, took California\xe2\x80\x99s definition of \xe2\x80\x9cobscenity\xe2\x80\x9d from People v. Wepplo, 178 P.2d 853, 855. That case held that a book is obscene \xe2\x80\x9cif it has a substantial\ntendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful\ndesire.\xe2\x80\x9d\nBy these standards punishment is inflicted for thoughts provoked, not for overt acts nor\nantisocial conduct. This test cannot be squared with our decisions under the First Amendment.\nEven the ill-starred Dennis case conceded that speech to be punishable must have some relation\nto action which could be penalized by government. Dennis v. United States, 341 U.S. 494, 502\xe2\x80\x94\n511. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity?\nThe tests by which these convictions were obtained require only the arousing of sexual\nthoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in\ndozens of ways. Nearly 30 years ago a questionnaire sent to college and normal school women\ngraduates asked what things were most stimulating sexually. Of 409 replies, 9 said \xe2\x80\x9cmusic\xe2\x80\x9d; 18\nsaid \xe2\x80\x9cpictures\xe2\x80\x9d; 29 said \xe2\x80\x9cdancing\xe2\x80\x9d; 40 said \xe2\x80\x9cdrama\xe2\x80\x9d; 95 said \xe2\x80\x9cbooks\xe2\x80\x9d; and 218 said \xe2\x80\x9cman.\xe2\x80\x9d\nAlpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 73.\nThe test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the\njury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful\naction is drastically to curtail the First Amendment\xe2\x80\xa6.\nAs noted, the trial judge in the Roth case charged the jury in the alternative that the federal\nobscenity statute outlaws literature dealing with sex which offends \xe2\x80\x9cthe common conscience of\nthe community.\xe2\x80\x9d That standard is, in my view, more inimical still to freedom of expression.\nThe standard of what offends \xe2\x80\x9cthe common conscience of the community\xe2\x80\x9d conflicts, in my\njudgment, with the command of the First Amendment\xe2\x80\xa6 Certainly that standard would not be\nan acceptable one if religion, economics, polities or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned?\nAny test that turns on what is offensive to the community\xe2\x80\x99s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment.\nUnder that test, juries can censor, suppress, and punish what they don\xe2\x80\x99t like, provided the matter\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 97\nrelates to \xe2\x80\x9csexual impurity\xe2\x80\x9d or has a tendency \xe2\x80\x9cto excite lustful thoughts.\xe2\x80\x9d This is community\ncensorship in one of its worst forms. It creates a regime where in the battle between the literati\nand the Philistines, the Philistines are certain to win. If experience in this field teaches anything,\nit is that censorship of obscenity has almost always been both irrational and indiscriminate\xe2\x80\xa6.\nI can understand (and at times even sympathize) with programs of civic groups and church\ngroups to protect and depend the existing moral standards of the community. I can understand\nthe motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First\nAmendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with antisocial conduct, not with utterances. Thus, if\nthe First Amendment guarantee of freedom of speech and press is to mean anything in this field,\nit must allow protests even against the moral code that the standard of the day sets for the\ncommunity. In other words, literature should not be suppressed merely because it offends the\nmoral code of the censor\xe2\x80\xa6.\nFreedom of expression can be suppressed if, and to the extent that, it is so closely brigaded\nwith illegal action as to be an inseparable part of it\xe2\x80\xa6. As a people, we cannot afford to relax\nthat standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books\nthat judges or juries can place in that category is endless\xe2\x80\xa6.\n\nRoth v. United States, 354 U.S. 476 (1957)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c98 Religion in the Law\n\n413 U.S. 49\nSupreme Court of the United States\n\nParis Adult Theatre I v. Slaton\nJune 21, 1973\nMr. Chief Justice BURGER delivered the opinion of the Court.\nPetitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the style of \xe2\x80\x9cadult\xe2\x80\x9d theaters. On December 28, 1970, respondents, the local state district\nattorney and the solicitor for the local state trial court, filed civil complaints in that court alleging\nthat petitioners were exhibiting to the public for paid admission two allegedly obscene films,\ncontrary to Georgia Code Ann. s 26\xe2\x80\x942101. The two films in question, \xe2\x80\x9cMagic Mirror\xe2\x80\x9d and\n\xe2\x80\x9cIt All Comes Out in the End,\xe2\x80\x9d depict sexual conduct characterized by the Georgia Supreme\nCourt as \xe2\x80\x9chard core pornography\xe2\x80\x9d leaving \xe2\x80\x9clittle to the imagination.\xe2\x80\x9d\nRespondents\xe2\x80\x99 complaints, made on behalf of the State of Georgia, demanded that the two\nfilms be declared obscene and that petitioners be enjoined from exhibiting the films\xe2\x80\xa6. On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a\njury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the\nsingle entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the\ntime of the complaints. These photographs show a conventional, inoffensive theater entrance,\nwithout any pictures, but with signs indicating that the theaters exhibit \xe2\x80\x9cAtlanta\xe2\x80\x99s Finest Mature\nFeature Films.\xe2\x80\x9d On the door itself is a sign saying: \xe2\x80\x9cAdult Theatre\xe2\x80\x94You must be 21 and able\nto prove it. If viewing the nude body offends you, Please Do Not Enter.\xe2\x80\x9d\nThe two films were exhibited to the trial court. \xe2\x80\xa6 On April 12, 1971, the trial judge dismissed respondents\xe2\x80\x99 complaints. He assumed \xe2\x80\x9cthat obscenity is established,\xe2\x80\x9d but stated:\nIt appears to the Court that the display of these films in a commercial theatre,\nwhen surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.\nOn appeal, the Georgia Supreme Court unanimously reversed. 228 Ga. 343. It \xe2\x80\xa6 held that\nthe films were without protection under the First Amendment. \xe2\x80\xa6. After viewing the films, the\nGeorgia Supreme Court held that their exhibition should have been enjoined, stating:\nThe films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that\nthese films are also hard core pornography, and the showing of such films\nshould have been enjoined since their exhibition is not protected by the first\namendment.\nIt should be clear from the outset that we do not undertake to tell the States what they must\ndo, but rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the\nFirst Amendment\xe2\x80\xa6. Miller v. California, 413 U.S. 15, at 23\xe2\x80\x9425; Kois v. Wisconsin, 408 U.S.\n229, 230 (1972); United States v. Reidel, 402 U.S. at 354; and Roth v. United States, 354 U.S.\n476, 485 (1957). [Note: Paris Adult Theatre and Miller were decided on the same day.]\nGeorgia case law permits a civil injunction of the exhibition of obscene materials. ... While\nthis procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material, the Georgia case law permitting civil injunction does adopt\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 99\nthe definition of \xe2\x80\x9cobscene materials\xe2\x80\x9d used by the criminal statute. Today, in Miller v. California,\nwe have sought to clarify the constitutional definition of obscene material subject to regulation\nby the States, and we vacate and remand this case for reconsideration in light of Miller\xe2\x80\xa6.\nWe categorically disapprove the theory, apparently adopted by the trial judge, that obscene,\npornographic films acquire constitutional immunity from state regulation simply because they\nare exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state\ninterest in regulating the exposure of obscene materials to juveniles and unconsenting adults \xe2\x80\xa6\nthis Court has never declared these to be the only legitimate state interests permitting regulation\nof obscene material. The States have a long-recognized legitimate interest in regulating the use\nof obscene material in local commerce and in all places of public accommodation, as long as\nthese regulations do not run afoul of specific constitutional prohibitions.\xe2\x80\xa6\nIn particular, we hold that there are legitimate state interests at stake in stemming the tide\nof commercialized obscenity, even assuming it is feasible to enforce effective safeguards against\nexposure to juveniles and to passersby. Rights and interests \xe2\x80\x9cother than those of the advocates\nare involved.\xe2\x80\x9d Breard v. Alexandria, 341 U.S. 622, 642 (1951). These include the interest of the\npublic in the quality of life and the total community environment, the tone of commerce in the\ngreat city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the\nCommission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. Quite apart from sex crimes, however, there remains\none problem of large proportions aptly described by [Yale Law] Professor [Alexander] Bickel:\nIt concerns the tone of the society, the mode, or to use terms that have perhaps\ngreater currency, the style and quality of life, now and in the future. A man\nmay be entitled to read an obscene book in his room, or expose himself indecently there\xe2\x80\xa6. We should protect his privacy. But if he demands a right to\nobtain the books and pictures he wants in the market, and to foregather in\npublic places\xe2\x80\x94discreet, if you will, but accessible to all\xe2\x80\x94with others who\nshare his tastes, then to grant him his right is to affect the world about the rest\nof us, and to impinge on other privacies. Even supposing that each of us can,\nif he wishes, effectively avert the eye and stop the ear (which, in truth, we\ncannot), what is commonly read and seen and heard and done intrudes upon\nus all, want it or not.\nAs Mr. Chief Justice Warren stated, there is a \xe2\x80\x9cright of the Nation and of the States to\nmaintain a decent society,\xe2\x80\x9d Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (dissenting opinion)\xe2\x80\xa6.\nBut, it is argued, there are no scientific data which conclusively demonstrate that exposure\nto obscene material adversely affects men and women or their society. It is urged on behalf of\nthe petitioners that, absent such a demonstration, and kind of state regulation is \xe2\x80\x9cimpermissible.\xe2\x80\x9d We reject this argument. It is not for us to resolve empirical uncertainties underlying state\nlegislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. \xe2\x80\xa6 Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly\naccepted that a legislature could legitimately act on such a conclusion to protect \xe2\x80\x9cthe social\ninterest in order and morality.\xe2\x80\x9d Roth v. United States, 354 U.S. at 485\xe2\x80\xa6.\nFrom the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial\nand business affairs. ... Understandably those who entertain an absolutist view of the First\nAmendment find it uncomfortable to explain why rights of association, speech, and press should\nbe severely restrained in the marketplace of goods and money, but not in the marketplace of\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c100 Religion in the Law\npornography. \xe2\x80\xa6 The fact that a congressional directive reflects unprovable assumptions about\nwhat is good for the people, including imponderable aesthetic assumptions, is not a sufficient\nreason to find that statute unconstitutional.\nIf we accept the unprovable assumption that a complete education requires the reading of\ncertain books, see Board of Education v. Allen, 392 U.S. 236, 245 (1968) \xe2\x80\xa6 and the well nigh\nuniversal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on\nthe corollary assumption that commerce in obscene books, or public exhibitions focused on\nobscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? \xe2\x80\x9cMany of these effects may be intangible and indistinct, but they are nonetheless\nreal.\xe2\x80\x9d American Power & Light Co. v. SEC, 329 U.S. at 103. Mr. Justice Cardozo said that all\nlaws in Western civilization are \xe2\x80\x9cguided by a robust common sense\xe2\x80\xa6\xe2\x80\x9d Steward Machine Co. v.\nDavis, 301 U.S. 548, 590 (1937). The sum of experience, including that of the past two decades,\naffords an ample basis for legislatures to conclude that a sensitive, key relationship of human\nexistence, central to family life, community welfare, and the development of human personality,\ncan be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data\xe2\x80\xa6.\nThe States, of course, may follow such a \xe2\x80\x9claissez-faire\xe2\x80\x9d policy and drop all controls on\ncommercialized obscenity, if that is what they prefer, just as they can ignore consumer protection\nin the marketplace, but nothing in the Constitution compels the States to do so with regard to\nmatters falling within state jurisdiction. \xe2\x80\xa6 \xe2\x80\x9cWe do not sit as a superlegislature to determine the\nwisdom, need, and propriety of laws that touch economic problems, business affairs, or social\nconditions.\xe2\x80\x9d Griswold v. Connecticut, 381 U.S. 479, 482 (1965)\xe2\x80\xa6.\nEven assuming that petitioners have vicarious standing to assert potential customers\xe2\x80\x99 rights,\nit is unavailing to compare a theater, open to the public for a fee, with the private home of\nStanley v. Georgia, 394 U.S. at 568, and the marital bedroom of Griswold v. Connecticut, 381\nU.S. at 485\xe2\x80\x94486. This Court, has, on numerous occasions, refused to hold that commercial\nventures such as a motion-picture house are \xe2\x80\x9cprivate\xe2\x80\x9d for the purpose of civil rights litigation\nand civil rights statutes. \xe2\x80\xa6 The Civil Rights Act of 1964 specifically defines motion-picture\nhouses and theaters as places of \xe2\x80\x9cpublic accommodation\xe2\x80\x9d covered by the Act as operations\naffecting commerce.\nOur prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included only personal rights that can be deemed \xe2\x80\x9cfundamental\xe2\x80\x9d or \xe2\x80\x9cimplicit in the concept of ordered liberty.\xe2\x80\x9d Palko v. Connecticut, 302 U.S. 319, 325 (1937); Roe v. Wade, 410 U.S.\n113, 152 (1973). This privacy right encompasses and protects the personal intimacies of the\nhome, the family, marriage, motherhood, procreation, and child rearing. \xe2\x80\xa6 Nothing, however,\nin this Court\xe2\x80\x99s decisions intimates that there is any \xe2\x80\x9cfundamental\xe2\x80\x9d privacy right \xe2\x80\x9cimplicit in the\nconcept of ordered liberty\xe2\x80\x9d to watch obscene movies in places of public accommodation. \xe2\x80\xa6 The\nidea of a \xe2\x80\x9cprivacy\xe2\x80\x9d right and a place of public accommodation are, in this context, mutually\nexclusive\xe2\x80\xa6.\nIt is also argued that the State has no legitimate interest in \xe2\x80\x9ccontrol (of) the moral content\nof a person\xe2\x80\x99s thoughts,\xe2\x80\x9d Stanley v. Georgia, 394 U.S. at 565, and we need not quarrel with this.\nBut we reject the claim that the State of Georgia is here attempting to control the minds or\nthoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value\nas communication, Miller v. California, 413 U.S. at 24, 34, is distinct from a control of reason\nand the intellect\xe2\x80\xa6. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution. Cf. United\nStates v. Reidel, 402 U.S. at 359\xe2\x80\x94360 (Harlan, J., concurring).\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 101\nFinally, petitioners argue that conduct which directly involves \xe2\x80\x98consenting adults\xe2\x80\x99 only has,\nfor that sole reason, a special claim to constitutional protection. Our Constitution establishes a\nbroad range of conditions on the exercise of power by the States, but for us to say that our\nConstitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take. Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the\nadult public falls within a State\xe2\x80\x99s broad power to regulate commerce and protect the public\nenvironment. The issue in this context goes beyond whether someone, or even the majority,\nconsiders the conduct depicted as \xe2\x80\x9cwrong\xe2\x80\x9d or \xe2\x80\x9csinful.\xe2\x80\x9d The States have the power to make a\nmorally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to\njeopardize in Mr. Chief Justice Warren\xe2\x80\x99s words, the States\xe2\x80\x99 \xe2\x80\x9cright . . . to maintain a decent society.\xe2\x80\x9d\nTo summarize, we have today reaffirmed the basic holding of Roth v. United States, that\nobscene material has no protection under the First Amendment. \xe2\x80\xa6 In this case we hold that the\nStates have a legitimate interest in regulating commerce in obscene material and in regulating\nexhibition of obscene material in places of public accommodation, including so-called \xe2\x80\x9cadult\xe2\x80\x9d\ntheaters from which minors are excluded. In light of these holdings, nothing precludes the State\nof Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre\nI or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the\nGeorgia courts, meets the First Amendment standards set forth in Miller v. California, 413 U.S.\nat 23\xe2\x80\x9425,. The judgment is vacated and the case remanded to the Georgia Supreme Court for\nfurther proceedings not inconsistent with this opinion and Miller v. California\xe2\x80\xa6.\nMr. Justice DOUGLAS, dissenting.\n\xe2\x80\xa6I [am] convinced that the creation of the \xe2\x80\x9cobscenity\xe2\x80\x9d exception to the First Amendment\nwas a legislative and judicial tour de force; that if we were to have such a regime of censorship\nand punishment, it should be done by constitutional amendment.\nPeople are, of course, offended by many offerings made by merchants in this area. They are\nalso offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offend someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official\ngenerates crime, becomes a blatant offender of the moral sensibilities of the people, engages in\nburglary, or breaches the privacy of the telephone, the conference room, or the home. [Note:\nDouglas was alluding to President Richard Nixon\xe2\x80\x99s Watergate scandal, then still ongoing.] Life\nin this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct.\n\xe2\x80\x9cObscenity\xe2\x80\x9d at most is the expression of offensive ideas. There are regimes in the world\nwhere ideas \xe2\x80\x9coffensive\xe2\x80\x9d to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive.\nOne of the most offensive experiences in my life was a visit to a nation where bookstalls were\nfilled only with books on mathematics and books on religion.\nI am sure I would find offensive most of the books and movies charged with being obscene.\nBut \xe2\x80\xa6 I never read or see the materials coming to the Court under charges of \xe2\x80\x9cobscenity,\xe2\x80\x9d\nbecause I have thought the First Amendment made it unconstitutional for me to act as a censor.\n\xe2\x80\xa6 I never supposed that government was permitted to sit in judgment on one\xe2\x80\x99s tastes or beliefs\xe2\x80\x94\nsave as they involved action within the reach of the police power of government.\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c102 Religion in the Law\n\xe2\x80\xa6I see no constitutional basis for fashioning a rule that makes a publisher, producer,\nbookseller, librarian, or movie house operator criminally responsible, when he fails to take affirmative steps to protect the consumer against literature, books, or movies offensive* to those\nwho temporarily occupy the seats of the mighty\xe2\x80\xa6.\nMr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join,\ndissenting.\nThis case requires the Court to confront once again the vexing problem of reconciling state\nefforts to suppress sexually oriented expression with the protections of the First Amendment, as\napplied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such\ndisharmony of views, and remained so resistant to the formulation of stable and manageable\nstandards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354\nU.S. 476 (1957), and culminating in the Court\xe2\x80\x99s decision today, cannot bring stability to this\narea of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach\xe2\x80\xa6.\nThe essence of our problem in the obscenity area is that we have been unable to provide\n\xe2\x80\x9csensitive tools\xe2\x80\x9d to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into the suppression of the\nlatter. The attempt, as the late Mr. Justice Harlan observed, has only \xe2\x80\x9cproduced a variety of\nviews among the members of the Court unmatched in any other course of constitutional adjudication.\xe2\x80\x9d Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704\xe2\x80\x94705 (separate opinion).\nTo be sure, five members of the Court did agree in Roth that obscenity could be determined\nby asking \xe2\x80\x9cwhether to the average person, applying contemporary community standards, the\ndominant theme of the material taken as a whole appeals to prurient interest.\xe2\x80\x9d 354 U.S. at 489.\nBut agreement on that test\xe2\x80\x94achieved in the abstract and without reference to the particular\nmaterial before the Court\xe2\x80\x94was, to say the least, short lived. By 1967 the following views had\nemerged: Mr. Justice Black and Mr. Justice Douglas consistently maintained that government is\nwholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See,\ne.g., Ginzburg v. United States, 383 U.S. 463, 476, 482 (1966) (dissenting opinions)\xe2\x80\xa6. Mr.\nJustice Harlan, on the other hand, believed that the Federal Government in the exercise of its\nenumerated powers could control the distribution of \xe2\x80\x9chard core\xe2\x80\x9d pornography, which the States\nwere afforded more latitude to \xe2\x80\x9c(ban) any material which, taken as a whole, has been reasonably\nfound in state judicial proceedings to treat with sex in a fundamentally offensive manner, under\nrationally established criteria for judging such material.\xe2\x80\x9d Jacobellis v. Ohio, 378 U.S. at 204\n(dissenting opinion). \xe2\x80\xa6 Mr. Justice Stewart regarded \xe2\x80\x9chard core\xe2\x80\x9d pornography as the limit of\nboth federal and state power. See, e.g., Ginzburg v. United States, 383 U.S. at 497 (dissenting\nopinion); Jacobellis v. Ohio, 378 U.S. at 197 (concurring opinion).\nThe view that, until today, enjoyed the most, but not majority, support was an interpretation\nof Roth \xe2\x80\xa6 adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the author of this\nopinion in Memoirs v. Massachusetts, 383 U.S. 413, (1966). We expressed the view that Federal\nor State Governments could control the distribution of material where:\nthree elements . . . coalesce: it must be established that (a) the dominant theme\nof the material taken as a whole appeals to a prurient interest in sex; (b) the\nmaterial is patently offensive because it affronts contemporary community\nstandards relating to the description or representation of sexual matters; and\n(c) the material is utterly without redeeming social value.\nEven this formulation, however, concealed differences of opinion\xe2\x80\xa6. Nor, finally, did it ever\ncommand a majority of the Court. Aside from the other views described above, Mr. Justice\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 103\nClark believed that \xe2\x80\x9csocial importance\xe2\x80\x9d could only \xe2\x80\x9cbe considered together with evidence that\nthe material in question appeals to prurient interest and is patently offensive.\xe2\x80\x9d Memoirs v. Massachusetts, 383 U.S. at 445 (dissenting opinion). Similarly, Mr. Justice White regarded \xe2\x80\x9ca publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor,\xe2\x80\x9d id., at 460\xe2\x80\x94461 (dissenting opinion), and regarded \xe2\x80\x9c\xe2\x80\x98social importance\xe2\x80\x99 \xe2\x80\xa6 not (as) an independent test of obscenity but (as) relevant only to determining\nthe predominant prurient interest of the material.\xe2\x80\x9d \xe2\x80\xa6\nIn the face of this divergence of opinion, the Court began the practice in Redrup v. New\nYork, 386 U.S. 767 (1967), of per curiam reversals of convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, deemed not to be\nobscene. This approach capped the attempt in Roth to separate all forms of sexually oriented\nexpression into two categories\xe2\x80\x94the one subject to full governmental suppression and the other\nbeyond the reach of governmental regulation to the same extent as any other protected form of\nspeech or press. Today a majority of the Court offers a slightly altered formulation of the basic\nRoth test, while leaving entirely unchanged the underlying approach.\n\xe2\x80\xa6It comes as no surprise that judicial attempts to follow our lead conscientiously have often\nended in hopeless confusion.\nOf course, the vagueness problem would be largely of our own creation if it stemmed primarily from our failure to reach a consensus on any one standard. But after 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while\nat the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating\nthe dissemination of certain sexually oriented materials. Any effort to draw a constitutionally\nacceptable boundary on state power must resort to such indefinite concepts as \xe2\x80\x9cprurient interest,\xe2\x80\x9d \xe2\x80\x9cpatent offensiveness,\xe2\x80\x9d \xe2\x80\x9cserious literary value,\xe2\x80\x9d and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we \xe2\x80\x9cknow it when\n(we) see it,\xe2\x80\x9d Jacobellis v. Ohio, 378 U.S. at 197 (Stewart, J., concurring), we are manifestly\nunable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech\xe2\x80\xa6.\nThe problem is that one cannot say with certainty that material is obscene until at least five\nmembers of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed\nupon this Court.\nBut the sheer number of the cases does not define the full extent of the institutional problem\xe2\x80\xa6. We are tied to the \xe2\x80\x9cabsurd business of perusing and viewing the miserable stuff that\npours into the Court.\xe2\x80\x9d Interstate Circuit, Inc. v. Dallas, 390 U.S. at 707 (separate opinion of\nHarlan, J.). While the material may have varying degrees of social importance, it is hardly a\nsource of edification to the members of this Court who are compelled to view it before passing\non its obscenity. Cf. Mishkin v. New York, 383 U.S. at 516\xe2\x80\x94517 (Black, J., dissenting) (\xe2\x80\x9cI [object] to saddling this Court with the irksome and inevitably unpopular and unwholesome task\nof finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this\nCourt what pornography is too hard core for people to see or read.\xe2\x80\x9d)\xe2\x80\xa6.\nThe [test] adopted by the Court today [is] a restatement of the Roth-Memoirs definition of\nobscenity:\nThe basic guidelines for the trier of fact must be: (a) whether \xe2\x80\x98the average person, applying contemporary community standards\xe2\x80\x99 would find that the work,\ntaken as a whole, appeals to the prurient interest . .. (b) whether the work\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c104 Religion in the Law\ndepicts or describes, in a patently offensive way, sexual conduct specifically\ndefined by the applicable state law, and (c) whether the work, taken as a\nwhole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. at 24.\n\xe2\x80\xa6The differences between this formulation and the three-pronged Memoirs test are, for the\nmost part, academic. \xe2\x80\xa6 The third component of the Memoirs test is that the material must be\n\xe2\x80\x9cutterly without redeeming social value.\xe2\x80\x9d The Court\xe2\x80\x99s rephrasing requires that the work, taken\nas a whole, must be proved to lack \xe2\x80\x9cserious literary, artistic, political, or scientific value.\xe2\x80\x9d Miller,\n413 U.S. at 24.\n\xe2\x80\xa6In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties\nof its own\xe2\x80\xa6. The Court\xe2\x80\x99s approach necessarily assumes that some works will be deemed obscene\xe2\x80\x94even though they clearly have some social value\xe2\x80\x94because the State was able to prove\nthat the value, measured by some unspecified standard, was not sufficiently \xe2\x80\x9cserious\xe2\x80\x9d to warrant\nconstitutional protection. That result is not merely inconsistent with our holding in Roth; it is\nnothing less than a rejection of the fundamental First Amendment premises and rationale of the\nRoth opinion and an invitation to widespread suppression of sexually oriented speech. Before\ntoday, the protections of the First Amendment have never been thought limited to expressions\nof serious literary or political value\xe2\x80\xa6.\nUltimately, the reformulation must fail because it still leaves in this Court the responsibility\nof determining in each case whether the materials are protected by the First Amendment\xe2\x80\xa6.\nAssuming that such a class of expression does in fact exist, I am forced to conclude that the\nconcept of \xe2\x80\x9cobscenity\xe2\x80\x9d cannot be defined with sufficient specificity and clarity to provide fair\nnotice to persons who create and distribute sexually oriented materials, to prevent substantial\nerosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and\nto avoid very costly institutional harms. Given these inevitable side effects of state efforts to\nsuppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression\xe2\x80\xa6.\nObscenity laws have a long history in this country. Most of the States that had ratified the\nConstitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the \xe2\x80\x9cComposing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet,\nLibel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine\nWorship.\xe2\x80\x9d Acts and Laws of Massachusetts Bay Colony (1726). In 1815 the first reported obscenity conviction was obtained under the common law of Pennsylvania. See Commonwealth\nv. Sharpless, 2 S. & R. 91. A conviction in Massachusetts under its common law and colonial\nstatute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336 (1821). In 1821\nVermont passed the first state law proscribing the publication or sale of \xe2\x80\x9clewd or obscene\xe2\x80\x9d material, Laws of Vermont (1824), and federal legislation barring the importation of similar matter\nappeared in 1842. \xe2\x80\xa6 The situation significantly changed after about 1870 when Federal and\nState Governments, mainly as a result of the efforts of Anthony Comstock, took an active interest in the suppression of obscenity. By the end of the 19th century at least 30 States had some\ntype of general prohibition on the dissemination of obscene materials, and by the time of our\ndecision in Roth no State was without some provision on the subject. The Federal Government\nmeanwhile had enacted no fewer than 20 obscenity laws between 1842 and 1956\xe2\x80\xa6.\nBecause we assumed\xe2\x80\x94incorrectly, as experience has proved\xe2\x80\x94that obscenity could be separated from other sexually oriented expression without significant costs either to the First\nAmendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 105\nunprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the\nvagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake.\n\xe2\x80\xa6The opinions in Redrup and Stanley reflected our emerging view that the state interests\nin protecting children and in protecting unconsenting adults may stand on a different footing\nfrom the other asserted state interests\xe2\x80\xa6.\nBut, whatever the strength of the state interests in protecting juveniles and unconsenting\nadults from exposure to sexually oriented materials, those interests cannot be asserted in defense\nof the holding of the Georgia Supreme Court in this case. That court assumed for the purposes\nof its decision that the films in issue were exhibited only to persons over the age of 21 who\nviewed them willingly and with prior knowledge of the nature of their contents. And on that\nassumption the state court held that the films could still be suppressed. The justification for the\nsuppression must be found, therefore, in some independent interest in regulating the reading and\nviewing habits of consenting adults\xe2\x80\xa6.\nLike the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion.\nThe existence of these assumptions cannot validate a statute that substantially undermines the\nguarantees of the First Amendment, any more than the existence of similar assumptions on the\nissue of abortion can validate a statute that infringes the constitutionally protected privacy interests of a pregnant woman.\nIf, as the Court today assumes, \xe2\x80\x9ca state legislature may . . . act on the . . . assumption that\ncommerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency\nto exert a corrupting and debasing impact leading to antisocial behavior,\xe2\x80\x9d then it is hard to see\nhow state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort\nto maintain or create a particular moral tone, may prescribe what its citizens cannot read or\ncannot see, then it would seem to follow that in pursuit of that same objective a State could\ndecree that its citizens must read certain books or must view certain films\xe2\x80\xa6. However laudable\nits goal\xe2\x80\x94and that is obviously a question on which reasonable minds may differ\xe2\x80\x94the State\ncannot proceed by means that violate the Constitution\xe2\x80\xa6.\nEven a legitimate, sharply focused state concern for the morality of the community cannot,\nin other words, justify an assault on the protections of the First Amendment\xe2\x80\xa6. Where the state\ninterest in regulation of morality is vague and ill defined, interference with the guarantees of the\nFirst Amendment is even more difficult to justify.\nIn short, while I cannot say that the interests of the State\xe2\x80\x94apart from the question of juveniles and unconsenting adults\xe2\x80\x94are trivial or nonexistent, I am compelled to conclude that these\ninterests cannot justify the substantial damage to constitutional rights and to this Nation\xe2\x80\x99s judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. \xe2\x80\xa6 I would hold, therefore, that at least in the absence of\ndistribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth\nAmendments prohibit the State and Federal Governments from attempting wholly to suppress\nsexually oriented materials on the basis of their allegedly \xe2\x80\x9cobscene\xe2\x80\x9d contents. Nothing in this\napproach precludes those governments from taking action to serve what may be strong and\nlegitimate interests through regulation of the manner of distribution of sexually oriented material\xe2\x80\xa6.\nSince the Supreme Court of Georgia erroneously concluded that the State has power to\nsuppress sexually oriented material even in the absence of distribution to juveniles or exposure\nto unconsenting adults, I would reverse that judgment and remand the case to that court for\nfurther proceedings not inconsistent with this opinion.\n\nParis Adult Theatre I v. Slaton, 413 U.S. 49 (1973)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c106 Religion in the Law\n501 U.S. 560\nSupreme Court of the United States\n\nBarnes v. Glen Theatre\nJune 21, 1991\nChief Justice REHNQUIST delivered the opinion of the Court.\nRespondents are two establishments in South Bend, Indiana, that wish to provide totally\nnude dancing as entertainment, and individual dancers who are employed at these establishments. They claim that the First Amendment\xe2\x80\x99s guarantee of freedom of expression prevents the\nState of Indiana from enforcing its public indecency law to prevent this form of dancing. We\nreject their claim.\nThe Kitty Kat Lounge, Inc. (Kitty Kat), is located in the city of South Bend. \xe2\x80\xa6 Its proprietor\ndesires to present \xe2\x80\x9ctotally nude dancing,\xe2\x80\x9d but an applicable Indiana statute regulating public\nnudity requires that the dancers wear \xe2\x80\x9cpasties\xe2\x80\x9d and \xe2\x80\x9cG-strings\xe2\x80\x9d when they dance. The dancers\nare not paid an hourly wage, but work on commission. They receive a 100 percent commission\non the first $60 in drink sales during their performances. Darlene Miller, one of the respondents\nin the action, had worked at the Kitty Kat for about two years at the time this action was\nbrought. Miller wishes to dance nude because she believes she would make more money doing\nso.\nRespondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South\nBend. Its primary business is supplying so-called adult entertainment through written and\nprinted materials, movie showings, and live entertainment at an enclosed \xe2\x80\x9cbookstore.\xe2\x80\x9d The live\nentertainment at the \xe2\x80\x9cbookstore\xe2\x80\x9d consists of nude and seminude performances and showings\nof the female body through glass panels. Customers sit in a booth and insert coins into a timing\nmechanism that permits them to observe the live nude and seminude dancers for a period of\ntime. One of Glen Theatre\xe2\x80\x99s dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted\nprofessionally for more than 15 years, and in addition to her performances at the Glen Theatre,\ncan be seen in a pornographic movie at a nearby theater.\nRespondents sued in the United States District Court for the Northern District of Indiana\nto enjoin the enforcement of the Indiana public indecency statute, Ind.Code \xc2\xa7 35\xe2\x80\x9345\xe2\x80\x934\xe2\x80\x931\n(1988), asserting that its prohibition against complete nudity in public places violated the First\nAmendment.\xe2\x80\xa6 We granted certiorari, and now hold that the Indiana statutory requirement that\nthe dancers in the establishments involved in this case must wear pasties and G-strings does not\nviolate the First Amendment.\nSeveral of our cases contain language suggesting that nude dancing of the kind involved\nhere is expressive conduct protected by the First Amendment\xe2\x80\xa6. These [cases] support the conclusion \xe2\x80\xa6 that nude dancing of the kind sought to be performed here is expressive conduct\nwithin the outer perimeters of the First Amendment, though we view it as only marginally so.\nThis, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an\nimpermissible infringement of that protected activity.\nIndiana, of course, has not banned nude dancing as such, but has proscribed public nudity\nacross the board. The Supreme Court of Indiana has construed the Indiana statute to preclude\nnudity in what are essentially places of public accommodation such as the Glen Theatre and the\nKitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 107\nnonconsenting viewers. Respondents contend that while the State may license establishments\nsuch as the ones involved here, and limit the geographical area in which they do business, it may\nnot in any way limit the performance of the dances within them without violating the First\nAmendment. The petitioners contend, on the other hand, that Indiana\xe2\x80\x99s restriction on nude\ndancing is a valid \xe2\x80\x9ctime, place, or manner\xe2\x80\x9d restriction under cases such as Clark v. Community\nfor Creative Non\xe2\x80\x93Violence, 468 U.S. 288 (1984).\n\xe2\x80\xa6In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O\xe2\x80\x99Brien, 391 U.S. 367 (1968), and we turn, therefore,\nto the rule enunciated in O\xe2\x80\x99Brien:\n[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial\ngovernmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.\nApplying the four-part O\xe2\x80\x99Brien test enunciated above, we find that Indiana\xe2\x80\x99s public indecency statute is justified despite its incidental limitations on some expressive activity. The public\nindecency statute is clearly within the constitutional power of the State and furthers substantial\ngovernmental interests. It is impossible to discern, other than from the text of the statute, exactly\nwhat governmental interest the Indiana legislators had in mind when they enacted this statute,\nfor Indiana does not record legislative history, and the State\xe2\x80\x99s highest court has not shed additional light on the statute\xe2\x80\x99s purpose. Nonetheless, the statute\xe2\x80\x99s purpose of protecting societal\norder and morality is clear from its text and history. Public indecency statutes of this sort are of\nancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a\ncriminal offense at common law, and this Court recognized the common-law roots of the offense\nof \xe2\x80\x9cgross and open indecency\xe2\x80\x9d in Winters v. New York, 333 U.S. 507, 515. Public nudity was\nconsidered an act malum in se [\xe2\x80\x9cevil in itself\xe2\x80\x9d]. Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036\n(K.B.1664). Public indecency statutes such as the one before us reflect moral disapproval of\npeople appearing in the nude among strangers in public places.\nThis public indecency statute follows a long line of earlier Indiana statutes banning all public\nnudity. The history of Indiana\xe2\x80\x99s public indecency statute shows that it predates barroom nude\ndancing and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute\npunishing \xe2\x80\x9copen and notorious lewdness, or ... any grossly scandalous and public indecency.\xe2\x80\x9d\nRev.Laws of Ind., ch. 26, \xc2\xa7 60 (1831); Ind.Rev.Stat., ch. 53, \xc2\xa7 81 (1834). A gap during which\nno statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328\n(1877), which held that the court could sustain a conviction for exhibition of \xe2\x80\x9cprivates\xe2\x80\x9d in the\npresence of others. The court traced the offense to the Bible story of Adam and Eve. Id., at 329\xe2\x80\x93\n330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century:\nWhoever, being over fourteen years of age, makes an indecent exposure of his\nperson in a public place, or in any place where there are other persons to be\noffended or annoyed thereby, ... is guilty of public indecency....\xe2\x80\x9d 1881\nInd.Acts, ch. 37, \xc2\xa7 90.\nThe language quoted above remained unchanged until it was simultaneously repealed and\nreplaced with the present statute in 1976.\nThis and other public indecency statutes were designed to protect morals and public order.\nThe traditional police power of the States is defined as the authority to provide for the public\nhealth, safety, and morals, and we have upheld such a basis for legislation\xe2\x80\xa6. [In] Bowers v.\nHardwick, 478 U.S. 186, 196 (1986), we said:\nThe law, however, is constantly based on notions of morality, and if all laws\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c108 Religion in the Law\nrepresenting essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.\nThus, the public indecency statute furthers a substantial government interest in protecting\norder and morality. This interest is unrelated to the suppression of free expression. Some may\nview restricting nudity on moral grounds as necessarily related to expression. We disagree. It can\nbe argued, of course, that almost limitless types of conduct\xe2\x80\x94including appearing in the nude in\npublic\xe2\x80\x94are \xe2\x80\x9cexpressive,\xe2\x80\x9d and in one sense of the word this is true. People who go about in the\nnude in public may be expressing something about themselves by so doing. But the court rejected\nthis expansive notion of \xe2\x80\x9cexpressive conduct\xe2\x80\x9d in O\xe2\x80\x99Brien, saying, \xe2\x80\x9cWe cannot accept the view\nthat an apparently limitless variety of conduct can be labeled \xe2\x80\x98speech\xe2\x80\x99 whenever the person engaging in the conduct intends thereby to express an idea.\xe2\x80\x9d 391 U.S. at 376.\n\xe2\x80\xa6Respondents contend that even though prohibiting nudity in public generally may not be\nrelated to suppressing expression, prohibiting the performance of nude dancing is related to\nexpression because the State seeks to prevent its erotic message. Therefore, they reason that the\napplication of the Indiana statute to the nude dancing in this case violates the First Amendment,\nbecause it fails the third part of the O\xe2\x80\x99Brien test, viz: the governmental interest must be unrelated\nto the suppression of free expression.\nBut we do not think that when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. Presumably\nnumerous other erotic performances are presented at these establishments and similar clubs\nwithout any interference from the State, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and G-strings does not deprive the\ndance of whatever erotic message it conveys; it simply makes the message slightly less graphic.\nThe perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The\nappearance of people of all shapes, sizes and ages in the nude at a beach, for example, would\nconvey little if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil\nthe State seeks to prevent, whether or not it is combined with expressive activity\xe2\x80\xa6.\nThe fourth part of the O\xe2\x80\x99Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As\nindicated in the discussion above, the governmental interest served by the text of the prohibition\nis societal disapproval of nudity in public places and among strangers. The statutory prohibition\nis not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d; Indiana\xe2\x80\x99s requirement that the dancers wear at least pasties\nand G-strings is modest, and the bare minimum necessary to achieve the State\xe2\x80\x99s purpose.\nThe judgment of the Court of Appeals accordingly is Reversed.\nJustice SCALIA, concurring in the judgment.\nI agree that the judgment of the Court of Appeals must be reversed. In my view, however,\nthe challenged regulation must be upheld, not because it survives some lower level of First\nAmendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all.\nIndiana\xe2\x80\x99s public indecency statute provides:\n(a) A person who knowingly or intentionally, in a public place \xe2\x80\xa6 appears in\na state of nudity \xe2\x80\xa6 commits public indecency, a Class A misdemeanor.\n(b) \xe2\x80\x98Nudity\xe2\x80\x99 means the showing of the human male or female genitals, pubic\narea, or buttocks with less than a fully opaque covering, the showing of the\nfemale breast with less than a fully opaque covering of any part of the nipple,\nor the showing of covered male genitals in a discernibly turgid state.\xe2\x80\x9d\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 109\nInd.Code \xc2\xa7 35\xe2\x80\x9345\xe2\x80\x934\xe2\x80\x931 (1988).\nOn its face, this law is not directed at expression in particular. \xe2\x80\xa6The intent to convey a\n\xe2\x80\x9cmessage of eroticism\xe2\x80\x9d (or any other message) is not a necessary element of the statutory offense\nof public indecency; nor does one commit that statutory offense by conveying the most explicit\n\xe2\x80\x9cmessage of eroticism,\xe2\x80\x9d so long as he does not commit any of the four specified acts in the\nprocess.\nIndiana\xe2\x80\x99s statute is in the line of a long tradition of laws against public nudity, which have\nnever been thought to run afoul of traditional understanding of \xe2\x80\x9cthe freedom of speech.\xe2\x80\x9d Public\nindecency\xe2\x80\x94including public nudity\xe2\x80\x94has long been an offense at common law\xe2\x80\xa6 Indiana\xe2\x80\x99s first\npublic nudity statute, Rev. Laws of Ind., ch. 26, \xc2\xa7 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and\nnot just at public nude expression; and all succeeding statutes, down to the present one, have\nbeen the same. Were it the case that Indiana in practice targeted only expressive nudity, while\nturning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, it\nmight be said that what posed as a regulation of conduct in general was in reality a regulation\nof only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative\nelement\xe2\x80\xa6.\nThe dissent confidently asserts that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting,\nadmission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the\ndissenters believe that \xe2\x80\x9coffense to others\xe2\x80\x9d ought to be the only reason for restricting nudity in\npublic places generally, but there is no basis for thinking that our society has ever shared that\nThoreauvian \xe2\x80\x9cyou - may - do - what - you - like - so - long - as - it - does - not - injure - someone\n-else\xe2\x80\x9d beau ideal\xe2\x80\x94much less for thinking that it was written into the Constitution.\nThe purpose of Indiana\xe2\x80\x99s nudity law would be violated, I think, if 60,000 fully consenting\nadults crowded into the Hoosier Dome to display their genitals to one another, even if there\nwere not an offended innocent in the crowd. Our society prohibits, and all human societies have\nprohibited, certain activities not because they harm others but because they are considered, in\nthe traditional phrase, \xe2\x80\x9ccontra bonos mores,\xe2\x80\x9d i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use,\nprostitution, and sodomy. While there may be great diversity of view on whether various of\nthese prohibitions should exist (though I have found few ready to abandon, in principle, all of\nthem), there is no doubt that, absent specific constitutional protection for the conduct involved,\nthe Constitution does not prohibit them simply because they regulate \xe2\x80\x9cmorality.\xe2\x80\x9d See Bowers v.\nHardwick, 478 U.S. 186, 196 (1986) (upholding prohibition of private homosexual sodomy\nenacted solely on \xe2\x80\x9cthe presumed belief of a majority of the electorate in [the jurisdiction] that\nhomosexual sodomy is immoral and unacceptable\xe2\x80\x9d).... The purpose of the Indiana statute, as\nboth its text and the manner of its enforcement demonstrate, is to enforce the traditional moral\nbelief that people should not expose their private parts indiscriminately, regardless of whether\nthose who see them are disedified\xe2\x80\xa6.\nWhile I do not think the plurality\xe2\x80\x99s conclusions differ greatly from my own, I cannot entirely\nendorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates\nthis allegedly expressive conduct, an intermediate level of First Amendment scrutiny: The government interest in the regulation must be \xe2\x80\x9c \xe2\x80\x98important or substantial,\xe2\x80\x99 \xe2\x80\x9d quoting O\xe2\x80\x99Brien, 391\nU.S. at 377.... I think we should avoid wherever possible \xe2\x80\xa6 a method of analysis that requires\njudicial assessment of the \xe2\x80\x9cimportance\xe2\x80\x9d of government interests\xe2\x80\x94and especially of government\ninterests in various aspects of morality.\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c110 Religion in the Law\n\xe2\x80\xa6Moral opposition to nudity supplies a rational basis for its prohibition, and since the First\nAmendment has no application to this case no more than that is needed.\nIndiana may constitutionally enforce its prohibition of public nudity even against those who\nchoose to use public nudity as a means of communication. The State is regulating conduct, not\nexpression, and those who choose to employ conduct as a means of expression must make sure\nthat the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed.\nJustice SOUTER, concurring in the judgment.\nNot all dancing is entitled to First Amendment protection as expressive activity. This Court\nhas previously categorized ballroom dancing as beyond the Amendment\xe2\x80\x99s protection, Dallas v.\nStanglin, 490 U.S. 19, 24\xe2\x80\x9325 (1989), and dancing as aerobic exercise would likewise be outside\nthe First Amendment\xe2\x80\x99s concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the\ndancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances\ndescribed in the record.\nAlthough such performance dancing is inherently expressive, nudity per se is not. It is a\ncondition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the\ncircumstances. But every voluntary act implies some such idea, and the implication is thus so\ncommon and minimal that calling all voluntary activity expressive would reduce the concept of\nexpression to the point of the meaningless. A search for some expression beyond the minimal in\nthe choice to go nude will often yield nothing: a person may choose nudity, for example, for\nmaximum sunbathing. But when nudity is combined with expressive activity, its stimulative and\nattractive value certainly can enhance the force of expression, and a dancer\xe2\x80\x99s acts in going from\nclothed to nude, as in a striptease, are integrated into the dance and its expressive function. Thus\nI agree with the plurality and the dissent that an interest in freely engaging in the nude dancing\nat issue here is subject to a degree of First Amendment protection\xe2\x80\xa6.\nI nonetheless write separately to rest my concurrence in the judgment, not on the possible\nsufficiency of society\xe2\x80\x99s moral views to justify the limitations at issue, but on the State\xe2\x80\x99s substantial\ninterest in combating the secondary effects of adult entertainment establishments of the sort\ntypified by respondents\xe2\x80\x99 establishments.\n\xe2\x80\xa6While it is certainly sound in such circumstances to infer general purposes \xe2\x80\x9cof protecting\nsocietal order and morality ... from [the statute\xe2\x80\x99s] text and history,\xe2\x80\x9d I think that we need not so\nlimit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners\xe2\x80\x99 assertion that the statute is applied to nude dancing because such\ndancing \xe2\x80\x9cencourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity.\xe2\x80\x9d \xe2\x80\xa6\nIn my view, the interest asserted by petitioners in preventing prostitution, sexual assault,\nand other criminal activity, although presumably not a justification for all applications of the\nstatute, is sufficient under O\xe2\x80\x99Brien to justify the State\xe2\x80\x99s enforcement of the statute against the\ntype of adult entertainment at issue here.\nAt the outset, it is clear that the prevention of such evils falls within the constitutional power\nof the State, which satisfies the first O\xe2\x80\x99Brien criterion. See 391 U.S. at 377. The second O\xe2\x80\x99Brien\nprong asks whether the regulation \xe2\x80\x9cfurthers an important or substantial governmental interest.\xe2\x80\x9d\nThe asserted state interest is plainly a substantial one; the only question is whether prohibiting\nnude dancing of the sort at issue here \xe2\x80\x9cfurthers\xe2\x80\x9d that interest. I believe that our cases have addressed this question sufficiently to establish that it does\xe2\x80\xa6.\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 111\nThe third O\xe2\x80\x99Brien condition is that the governmental interest be \xe2\x80\x9cunrelated to the suppression of free expression,\xe2\x80\x9d 391 U.S. at 377, and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression\xe2\x80\xa6.\nBecause the State\xe2\x80\x99s interest in banning nude dancing results from a simple correlation of\nsuch dancing with other evils, rather than from a relationship between the other evils and the\nexpressive component of the dancing, the interest is unrelated to the suppression of free expression\xe2\x80\xa6.\nThe fourth O\xe2\x80\x99Brien condition, that the restriction be no greater than essential to further the\ngovernmental interest, requires little discussion. Pasties and a G-string moderate the expression\nto some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the\nlimitation is minor when measured against the dancer\xe2\x80\x99s remaining capacity and opportunity to\nexpress the erotic message. Nor, so far as we are told, is the dancer or her employer limited by\nanything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose\xe2\x80\xa6.\nJustice WHITE, with whom Justice MARSHALL, Justice BLACKMUN, and Justice STEVENS\njoin, dissenting.\nThe first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment.\xe2\x80\xa6 [The] plurality \xe2\x80\xa6 concedes that \xe2\x80\x9cnude dancing of the kind sought to be performed here is expressive\nconduct within the outer perimeters of the First Amendment....\xe2\x80\x9d This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and \xe2\x80\x9cinherently embodies the expression and communication of ideas and emotions.\xe2\x80\x9d\nHaving arrived at the conclusion that nude dancing performed as entertainment enjoys First\nAmendment protection, the plurality states that it must \xe2\x80\x9cdetermine the level of protection to be\nafforded to the expressive conduct at issue, and must determine whether the Indiana statute is\nan impermissible infringement of that protected activity.\xe2\x80\x9d For guidance, the plurality turns to\nUnited States v. O\xe2\x80\x99Brien, 391 U.S. 367 (1968), which held that expressive conduct could be\nnarrowly regulated or forbidden in pursuit of an important or substantial governmental interest\nthat is unrelated to the content of the expression. The plurality finds that the Indiana statute\nsatisfies the O\xe2\x80\x99Brien test in all respects.\nThe plurality acknowledges that it is impossible to discern the exact state interests which\nthe Indiana Legislature had in mind when it enacted the Indiana statute, but the plurality nonetheless concludes that it is clear from the statute\xe2\x80\x99s text and history that the law\xe2\x80\x99s purpose is to\nprotect \xe2\x80\x9csocietal order and morality.\xe2\x80\x9d \xe2\x80\xa6\n[T]he Indiana statute is not a general prohibition of the type we have upheld in prior cases.\nAs a result, the plurality and Justice SCALIA\xe2\x80\x99s simple references to the State\xe2\x80\x99s general interest in\npromoting societal order and morality are not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the\nO\xe2\x80\x99Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate\nthis expressive conduct in a less than general statute. In other words, when the State enacts a\nlaw which draws a line between expressive conduct which is regulated and nonexpressive conduct of the same type which is not regulated, O\xe2\x80\x99Brien places the burden on the State to justify\nthe distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate.\nLegislators do not just randomly select certain conduct for proscription; they have reasons\nfor doing so and those reasons illuminate the purpose of the law that is passed. The purpose of\nforbidding people to appear nude in parks, beaches, hot dog stands, and like public places is to\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c112 Religion in the Law\nprotect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money\nto see these dances. The purpose of the proscription in these contexts is to protect the viewers\nfrom what the State believes is the harmful message that nude dancing communicates. \xe2\x80\xa6 The\nperceived damage to the public interest caused by appearing nude on the streets or in the parks,\nas I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and\ntaverns. There the perceived harm is the communicative aspect of the erotic dance. As the State\nnow tells us, and as Justice SOUTER agrees, the State\xe2\x80\x99s goal in applying what it describes as its\n\xe2\x80\x9ccontent neutral\xe2\x80\x9d statute to the nude dancing in this case is \xe2\x80\x9cdeterrence of prostitution, sexual\nassaults, criminal activity, degradation of women, and other activities which break down family\nstructure.\xe2\x80\x9d The attainment of these goals, however, depends on preventing an expressive activity.\nThe plurality nevertheless holds that the third requirement of the O\xe2\x80\x99Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied because in applying the statute to nude dancing, the State is not \xe2\x80\x9cproscribing nudity because of the erotic\nmessage conveyed by the dancers.\xe2\x80\x9d The plurality suggests that this is so because the State does\nnot ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden.\nThe perceived evil is not erotic dancing but public nudity, which may be prohibited despite any\nincidental impact on expressive activity. This analysis is transparently erroneous.\nIn arriving at its conclusion, the plurality concedes that nude dancing conveys an erotic\nmessage and concedes that the message would be muted if the dancers wore pasties and Gstrings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the\nperformers. \xe2\x80\xa6The sight of a fully clothed, or even a partially clothed, dancer generally will have\na far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental \xe2\x80\x9cconduct.\xe2\x80\x9d\xe2\x80\xa6 Since the State permits the dancers to perform if they wear pasties and G-strings but\nforbids nude dancing, it is precisely because of the distinctive, expressive content of the nude\ndancing performances at issue in this case that the State seeks to apply the statutory prohibition.\nIt is only because nude dancing performances may generate emotions and feelings of eroticism\nand sensuality among the spectators that the State seeks to regulate such expressive activity,\napparently on the assumption that creating or emphasizing such thoughts and ideas in the minds\nof the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of\nnude dancing performances cannot be neatly pigeonholed as mere \xe2\x80\x9cconduct\xe2\x80\x9d independent of\nany expressive component of the dance. \xe2\x80\xa6\nThat the performances in the Kitty Kat Lounge may not be high art, to say the least, and\nmay not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine.\nThe Court\xe2\x80\x99s assessment of the artistic merits of nude dancing performances should not be the\ndetermining factor in deciding this case\xe2\x80\xa6.\nThe plurality and Justice SOUTER do not go beyond saying that the state interests asserted\nhere are important and substantial. But even if there were compelling interests, the Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated\nevils, as Justice SOUTER seems to think \xe2\x80\xa6 it can adopt restrictions that do not interfere with\nthe expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum\ndistance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. \xe2\x80\xa6 Likewise, the\nState clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny\xe2\x80\xa6.\nAs I see it, our cases require us to affirm absent a compelling state interest supporting the\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 113\nstatute. Neither the plurality nor the State suggest that the statute could withstand scrutiny under\nthat standard.\nJustice SCALIA\xe2\x80\x99s views are similar to those of the plurality and suffer from the same defects.\nThe Justice asserts that a general law barring specified conduct does not implicate the First\nAmendment unless the purpose of the law is to suppress the expressive quality of the forbidden\nconduct, and that, absent such purpose, First Amendment protections are not triggered simply\nbecause the incidental effect of the law is to proscribe conduct that is unquestionably expressive\xe2\x80\xa6.\nAs I have pointed out, however, the premise for the Justice\xe2\x80\x99s position\xe2\x80\x94that the statute is a\ngeneral law of the type our cases contemplate\xe2\x80\x94is nonexistent in this case. Reference to Justice\nSCALIA\xe2\x80\x99s own hypothetical makes this clear. We agree with Justice SCALIA that the Indiana\nstatute would not permit 60,000 consenting Hoosiers to expose themselves to each other in the\nHoosier Dome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around,\ncavort, and revel in the nude for hours in front of relatives and friends. It is difficult to see why\nthe State\xe2\x80\x99s interest in morality is any less in that situation, especially if, as Justice SCALIA seems\nto suggest, nudity is inherently evil, but clearly the statute does not reach such activity. As we\npointed out earlier, the State\xe2\x80\x99s failure to enact a truly general proscription requires closer scrutiny\nof the reasons for the distinctions the State has drawn.\nAs explained previously, the purpose of applying the law to the nude dancing performances\nin respondents\xe2\x80\x99 establishments is to prevent their customers from being exposed to the distinctive\ncommunicative aspects of nude dancing. That being the case, Justice SCALIA\xe2\x80\x99s observation is\nfully applicable here: \xe2\x80\x9cWhere the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional.\xe2\x80\x9d\n\nBarnes v. Glen Theatre, 501 U.S. 560 (1991)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c114 Religion in the Law\n\n478 U.S. 186\nSupreme Court of the United States\n\nBowers v. Hardwick\nJune 30, 1986\nJustice WHITE delivered the opinion of the Court.\nIn August 1982, respondent Hardwick (hereafter respondent) was charged with violating\nthe Georgia statute criminalizing sodomy1 by committing that act with another adult male in\nthe bedroom of respondent\xe2\x80\x99s home.\n[Georgia Code Ann. \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 (1984) provides, in pertinent part, as follows:\n(a) A person commits the offense of sodomy when he performs or submits to any\nsexual act involving the sex organs of one person and the mouth or anus of another....\n(b) A person convicted of the offense of sodomy shall be punished by imprisonment\nfor not less than one nor more than 20 years....]\nAfter a preliminary hearing, the District Attorney decided not to present the matter to the\ngrand jury unless further evidence developed. Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual\nsodomy. He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as\nadministered by the defendants, placed him in imminent danger of arrest, and that the statute\nfor several reasons violates the Federal Constitution. The District Court granted the defendants\xe2\x80\x99\nmotion to dismiss for failure to state a claim\xe2\x80\xa6.\nA divided panel of the Court of Appeals for the Eleventh Circuit reversed \xe2\x80\xa6 [holding] that\nthe Georgia statute violated respondent\xe2\x80\x99s fundamental rights because his homosexual activity is\na private and intimate association that is beyond the reach of state regulation by reason of the\nNinth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was\nremanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.\nBecause other Courts of Appeals have arrived at judgments contrary to that of the Eleventh\nCircuit in this case, we granted the Attorney General\xe2\x80\x99s petition for certiorari questioning the\nholding that the sodomy statute violates the fundamental rights of homosexuals. We agree with\npetitioner that the Court of Appeals erred, and hence reverse its judgment.\nThis case does not require a judgment on whether laws against sodomy between consenting\nadults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize\nhomosexual sodomy, or of state-court decisions invalidating those laws on state constitutional\ngrounds. The issue presented is whether the Federal Constitution confers a fundamental right\nupon homosexuals to engage in sodomy and hence invalidates the laws of the many States that\nstill make such conduct illegal and have done so for a very long time. The case also calls for\nsome judgment about the limits of the Court\xe2\x80\x99s role in carrying out its constitutional mandate.\nWe first register our disagreement with the Court of Appeals and with respondent that the\nCourt\xe2\x80\x99s prior cases have construed the Constitution to confer a right of privacy that extends to\nhomosexual sodomy and for all intents and purposes have decided this case. The reach of this\nline of cases was sketched in Carey v. Population Services International, 431 U.S. 678, 685\n(1977). Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390\n(1923), were described as dealing with child rearing and education; Prince v. Massachusetts, 321\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 115\nU.S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U.S.\n535 (1942), with procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage; Griswold\nv. Connecticut, and Eisenstadt v. Baird, with contraception; and Roe v. Wade, 410 U.S. 113\n(1973), with abortion. The latter three cases were interpreted as construing the Due Process\nClause of the Fourteenth Amendment to confer a fundamental individual right to decide\nwhether or not to beget or bear a child. Carey v. Population Services International, 431 U.S. at\n688\xe2\x80\x93689.\nAccepting the decisions in these cases and the above description of them, we think it evident\nthat none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the\nother has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any\nclaim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court\xe2\x80\x99s opinion in Carey twice asserted that the privacy right, which the\nGriswold line of cases found to be one of the protections provided by the Due Process Clause,\ndid not reach so far. 431 U.S. at 688, n. 5, 694, n. 17.\nPrecedent aside, however, respondent would have us announce, as the Court of Appeals\ndid, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It\nis true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken,\nthe cases are legion in which those Clauses have been interpreted to have substantive content,\nsubsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the\nconstitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases\nfrom Griswold to Carey.\nStriving to assure itself and the public that announcing rights not readily identifiable in the\nConstitution\xe2\x80\x99s text involves much more than the imposition of the Justices\xe2\x80\x99 own choice of values\non the States and the Federal Government, the Court has sought to identify the nature of the\nrights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U.S. 319, 325,\n326 (1937), it was said that this category includes those fundamental liberties that are \xe2\x80\x9cimplicit\nin the concept of ordered liberty,\xe2\x80\x9d such that \xe2\x80\x9cneither liberty nor justice would exist if [they] were\nsacrificed.\xe2\x80\x9d A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those\nliberties that are \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition.\xe2\x80\x9d See also Griswold v.\nConnecticut, 381 U.S. at 506.\nIt is obvious to us that neither of these formulations would extend a fundamental right to\nhomosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have\nancient roots. \xe2\x80\xa6 Sodomy was a criminal offense at common law and was forbidden by the laws\nof the original thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth\nAmendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In\nfact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. \xe2\x80\xa6 Against this background, to claim that a right to engage in such conduct is\n\xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition\xe2\x80\x9d or \xe2\x80\x9cimplicit in the concept of ordered\nliberty\xe2\x80\x9d is, at best, facetious.\nNor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes\nnearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution\xe2\x80\xa6.\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c116 Religion in the Law\nRespondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U.S. 557 (1969),\nwhere the Court held that the First Amendment prevents conviction for possessing and reading\nobscene material in the privacy of one\xe2\x80\x99s home: \xe2\x80\x9cIf the First Amendment means anything, it\nmeans that a State has no business telling a man, sitting alone in his house, what books he may\nread or what films he may watch.\xe2\x80\x9d Id., at 565.\nStanley did protect conduct that would not have been protected outside the home, and it\npartially prevented the enforcement of state obscenity laws; but the decision was firmly\ngrounded in the First Amendment. The right pressed upon us here has no similar support in the\ntext of the Constitution, and it does not qualify for recognition under the prevailing principles\nfor construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough,\notherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless\ncrimes, such as the possession and use of illegal drugs, do not escape the law where they are\ncommitted at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11. And if respondent\xe2\x80\x99s\nsubmission is limited to the voluntary sexual conduct between consenting adults, it would be\ndifficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed\nto prosecution adultery, incest, and other sexual crimes even though they are committed in the\nhome. We are unwilling to start down that road.\nEven if the conduct at issue here is not a fundamental right, respondent asserts that there\nmust be a rational basis for the law and that there is none in this case other than the presumed\nbelief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is\nconstantly based on notions of morality, and if all laws representing essentially moral choices\nare to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even\nrespondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the\nsodomy laws of some 25 States should be invalidated on this basis.\nAccordingly, the judgment of the Court of Appeals is Reversed.\nChief Justice BURGER, concurring.\n\xe2\x80\xa6As the Court notes, the proscriptions against sodomy have very \xe2\x80\x9cancient roots.\xe2\x80\x9d Decisions of individuals relating to homosexual conduct have been subject to state intervention\nthroughout the history of Western civilization. Condemnation of those practices is firmly rooted\nin Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under\nRoman law. \xe2\x80\xa6 During the English Reformation when powers of the ecclesiastical courts were\ntransferred to the King\xe2\x80\x99s Courts, the first English statute criminalizing sodomy was passed.\nBlackstone described \xe2\x80\x9cthe infamous crime against nature\xe2\x80\x9d as an offense of \xe2\x80\x9cdeeper malignity\xe2\x80\x9d\nthan rape, a heinous act \xe2\x80\x9cthe very mention of which is a disgrace to human nature,\xe2\x80\x9d and \xe2\x80\x9ca\ncrime not fit to be named.\xe2\x80\x9d The common law of England, including its prohibition of sodomy,\nbecame the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature\npassed the statute at issue here, and that statute has been continuously in force in one form or\nanother since that time. To hold that the act of homosexual sodomy is somehow protected as a\nfundamental right would be to cast aside millennia of moral teaching.\nThis is essentially not a question of personal \xe2\x80\x9cpreferences\xe2\x80\x9d but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the\nstatute challenged here.\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 117\nJustice POWELL, concurring.\nI join the opinion of the Court. I agree with the Court that there is no fundamental right\xe2\x80\x94\ni.e., no substantive right under the Due Process Clause\xe2\x80\x94such as that claimed by respondent\nHardwick, and found to exist by the Court of Appeals. This is not to suggest, however, that\nrespondent may not be protected by the Eighth Amendment of the Constitution. The Georgia\nstatute at issue in this case, Ga.Code Ann. \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 (1984), authorizes a court to imprison a\nperson for up to 20 years for a single private, consensual act of sodomy. In my view, a prison\nsentence for such conduct\xe2\x80\x94certainly a sentence of long duration\xe2\x80\x94would create a serious Eighth\nAmendment issue\xe2\x80\xa6.\nIn this case, however, respondent has not been tried, much less convicted and sentenced.\nMoreover, respondent has not raised the Eighth Amendment issue below. For these reasons this\nconstitutional argument is not before us.\nJustice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice\nSTEVENS join, dissenting.\nThis case is no more about \xe2\x80\x9ca fundamental right to engage in homosexual sodomy,\xe2\x80\x9d as the\nCourt purports to declare, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about\na fundamental right to place interstate bets from a telephone booth. Rather, this case is about\n\xe2\x80\x9cthe most comprehensive of rights and the right most valued by civilized men,\xe2\x80\x9d namely, \xe2\x80\x9cthe\nright to be let alone.\xe2\x80\x9d Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).\nThe statute at issue, Ga.Code Ann. \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 (1984), denies individuals the right to decide\nfor themselves whether to engage in particular forms of private, consensual sexual activity. The\nCourt concludes that \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 is valid essentially because \xe2\x80\x9cthe laws of ... many States ... still\nmake such conduct illegal and have done so for a very long time.\xe2\x80\x9d But the fact that the moral\njudgments expressed by statutes like \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 may be \xe2\x80\x9cnatural and familiar ... ought not to\nconclude our judgment upon the question whether statutes embodying them conflict with the\nConstitution of the United States.\xe2\x80\x9d Roe v. Wade, 410 U.S. 113, 117 (1973), quoting Lochner v.\nNew York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that\n\xe2\x80\x9c[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the\ntime of Henry IV. It is still more revolting if the grounds upon which it was laid down have\nvanished long since, and the rule simply persists from blind imitation of the past.\xe2\x80\x9d Holmes, The\nPath of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must analyze Hardwick\xe2\x80\x99s claim\nin the light of the values that underlie the constitutional right to privacy. If that right means\nanything, it means that, before Georgia can prosecute its citizens for making choices about the\nmost intimate aspects of their lives, it must do more than assert that the choice they have made\nis an \xe2\x80\x9cabominable crime not fit to be named among Christians.\xe2\x80\x9d Herring v. State, 119 Ga. 709,\n721 (1904)\xe2\x80\xa6.\nThe core of petitioner\xe2\x80\x99s defense of \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932, \xe2\x80\xa6 is that respondent and others who engage\nin the conduct prohibited by \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 interfere with Georgia\xe2\x80\x99s exercise of the \xe2\x80\x9cright of the\nNation and of the States to maintain a decent society,\xe2\x80\x9d Paris Adult Theatre I v. Slaton, 413 U.S.\nat 59\xe2\x80\x9360, quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C.J., dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in \xc2\xa7 16\xe2\x80\x936\xe2\x80\x93\n2 \xe2\x80\x9cfor hundreds of years, if not thousands, have been uniformly condemned as immoral\xe2\x80\x9d is a\nsufficient reason to permit a State to ban them today.\nI cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court\xe2\x80\x99s scrutiny.\xe2\x80\xa6\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c118 Religion in the Law\nThe assertion that \xe2\x80\x9ctraditional Judeo-Christian values proscribe\xe2\x80\x9d the conduct involved cannot provide an adequate justification for \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932. That certain, but by no means all, religious\ngroups condemn the behavior at issue gives the State no license to impose their judgments on\nthe entire citizenry. The legitimacy of secular legislation depends instead on whether the State\ncan advance some justification for its law beyond its conformity to religious doctrine. See, e.g.,\nMcGowan v. Maryland, 366 U.S. 420, 429\xe2\x80\x93453 (1961); Stone v. Graham, 449 U.S. 39 (1980).\nThus, far from buttressing his case, petitioner\xe2\x80\x99s invocation of Leviticus, Romans, St. Thomas\nAquinas, and sodomy\xe2\x80\x99s heretical status during the Middle Ages undermines his suggestion that\n\xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 represents a legitimate use of secular coercive power. A State can no more punish\nprivate behavior because of religious intolerance than it can punish such behavior because of\nracial animus. \xe2\x80\x9cThe Constitution cannot control such prejudices, but neither can it tolerate\nthem. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.\xe2\x80\x9d Palmore v. Sidoti, 466 U.S. 429, 433 (1984). No matter how uncomfortable a certain group may make the majority of this Court, we have held that \xe2\x80\x9c[m]ere public\nintolerance or animosity cannot constitutionally justify the deprivation of a person\xe2\x80\x99s physical\nliberty.\xe2\x80\x9d O\xe2\x80\x99Connor v. Donaldson, 422 U.S. 563, 575 (1975)\xe2\x80\xa6.\nNor can \xc2\xa7 16\xe2\x80\x936\xe2\x80\x932 be justified as a \xe2\x80\x9cmorally neutral\xe2\x80\x9d exercise of Georgia\xe2\x80\x99s power to \xe2\x80\x9cprotect the public environment,\xe2\x80\x9d Paris Adult Theatre I, 413 U.S. at 68\xe2\x80\x9369. Certainly, some private\nbehavior can affect the fabric of society as a whole. Reasonable people may differ about whether\nparticular sexual acts are moral or immoral, but \xe2\x80\x9cwe have ample evidence for believing that\npeople will not abandon morality, will not think any better of murder, cruelty and dishonesty,\nmerely because some private sexual practice which they abominate is not punished by the law.\xe2\x80\x9d\nH.L.A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. BlomCooper ed. 1961). Petitioner and the Court fail to see the difference between laws that protect\npublic sensibilities and those that enforce private morality. Statutes banning public sexual activity are entirely consistent with protecting the individual\xe2\x80\x99s liberty interest in decisions concerning\nsexual relations: the same recognition that those decisions are intensely private which justifies\nprotecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be\npunished when it takes place in public cannot dictate how States can regulate intimate behavior\nthat occurs in intimate places. See Paris Adult Theatre I, 413 U.S. at 66, n. 13 (\xe2\x80\x9cmarital intercourse on a street corner or a theater stage\xe2\x80\x9d can be forbidden despite the constitutional protection identified in Griswold v. Connecticut, 381 U.S. 47 (1965)).\nThis case involves no real interference with the rights of others, for the mere knowledge that\nother individuals do not adhere to one\xe2\x80\x99s value system cannot be a legally cognizable interest, cf.\nDiamond v. Charles, 476 U.S. 54, 65\xe2\x80\x9366 (1986), let alone an interest that can justify invading\nthe houses, hearts, and minds of citizens who choose to live their lives differently\xe2\x80\xa6.\nJustice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.\n\xe2\x80\xa6Sodomy was condemned as an odious and sinful type of behavior during the formative\nperiod of the common law. That condemnation was equally damning for heterosexual and homosexual sodomy. Moreover, it provided no special exemption for married couples. The license\nto cohabit and to produce legitimate offspring simply did not include any permission to engage\nin sexual conduct that was considered a \xe2\x80\x9ccrime against nature.\xe2\x80\x9d The history of the Georgia\nstatute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy\xe2\x80\xa6.\nBecause the Georgia statute expresses the traditional view that sodomy is an immoral kind\nof conduct regardless of the identity of the persons who engage in it, I believe that a proper\nanalysis of its constitutionality requires consideration of two questions: First, may a State totally\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 119\nprohibit the described conduct by means of a neutral law applying without exception to all\npersons subject to its jurisdiction? If not, may the State save the statute by announcing that it\nwill only enforce the law against homosexuals? \xe2\x80\xa6\nOur prior cases make two propositions abundantly clear. First, the fact that the governing\nmajority in a State has traditionally viewed a particular practice as immoral is not a sufficient\nreason for upholding a law prohibiting the practice; neither history nor tradition could save a\nlaw prohibiting miscegenation from constitutional attack. Loving v. Virginia, 388 U.S. 1 (1967).\nSecond, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of \xe2\x80\x9cliberty\xe2\x80\x9d protected by\nthe Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U.S. 479\n(1965). Moreover, this protection extends to intimate choices by unmarried as well as married\npersons. Carey v. Population Services International, 431 U.S. 678 (1977); Eisenstadt v. Baird,\n405 U.S. 438 (1972).\n\xe2\x80\xa6Society has every right to encourage its individual members to follow particular traditions\nin expressing affection for one another and in gratifying their personal desires. It, of course, may\nprohibit an individual from imposing his will on another to satisfy his own selfish interests. \xe2\x80\xa6\nBut when individual married couples are isolated from observation by others, the way in which\nthey voluntarily choose to conduct their intimate relations is a matter for them\xe2\x80\x94not the State\xe2\x80\x94\nto decide. The essential \xe2\x80\x9cliberty\xe2\x80\x9d that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual\nconduct that others may consider offensive or immoral\xe2\x80\xa6.\nIf the Georgia statute cannot be enforced as it is written\xe2\x80\x94if the conduct it seeks to prohibit\nis a protected form of liberty for the vast majority of Georgia\xe2\x80\x99s citizens\xe2\x80\x94the State must assume\nthe burden of justifying a selective application of its law. Either the persons to whom Georgia\nseeks to apply its statute do not have the same interest in \xe2\x80\x9cliberty\xe2\x80\x9d that others have, or there\nmust be a reason why the State may be permitted to apply a generally applicable law to certain\npersons that it does not apply to others.\nThe first possibility is plainly unacceptable. \xe2\x80\xa6 From the standpoint of the individual, the\nhomosexual and the heterosexual have the same interest in deciding how he will live his own\nlife, and, more narrowly, how he will conduct himself in his personal and voluntary associations\nwith his companions. State intrusion into the private conduct of either is equally burdensome.\nThe second possibility is similarly unacceptable. A policy of selective application must be\nsupported by a neutral and legitimate interest\xe2\x80\x94something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified\nany such interest in this case. The Court has posited as a justification for the Georgia statute\n\xe2\x80\x9cthe presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.\xe2\x80\x9d But the Georgia electorate has expressed no such belief\xe2\x80\x94instead, its\nrepresentatives enacted a law that presumably reflects the belief that all sodomy is immoral and\nunacceptable. \xe2\x80\xa6 [The] Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment.\nNor, indeed, does the Georgia prosecutor even believe that all homosexuals who violate this\nstatute should be punished. \xe2\x80\xa6 Georgia\xe2\x80\x99s prohibition on private, consensual sodomy has not\nbeen enforced for decades. The record of nonenforcement, in this case and in the last several\ndecades, belies the Attorney General\xe2\x80\x99s representations about the importance of the State\xe2\x80\x99s selective application of its generally applicable law.\nBoth the Georgia statute and the Georgia prosecutor thus completely fail to provide the\nCourt with any support for the conclusion that homosexual sodomy, simpliciter, is considered\nunacceptable conduct in that State, and that the burden of justifying a selective application of\nthe generally applicable law has been met\xe2\x80\xa6.\n\nBowers v. Hardwick, 478 U.S. 186 (1986)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c120 Religion in the Law\n\n539 U.S. 558\nSupreme Court of the United States\n\nLawrence v. Texas\nJune 26, 2003\nJustice KENNEDY delivered the opinion of the Court.\n\xe2\x80\xa6The question before the Court is the validity of a Texas statute making it a crime for two\npersons of the same sex to engage in certain intimate sexual conduct.\nIn Houston, Texas, officers of the Harris County Police Department were dispatched to a\nprivate residence in response to a reported weapons disturbance. They entered an apartment\nwhere one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter\ndoes not seem to have been questioned. The officers observed Lawrence and another man, Tyron\nGarner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight,\nand charged and convicted before a Justice of the Peace.\nThe complaints described their crime as \xe2\x80\x9cdeviate sexual intercourse, namely anal sex, with a\nmember of the same sex (man).\xe2\x80\x9d The applicable state law is Tex. Penal Code Ann. \xc2\xa7 21.06(a)\n(2003). It provides: \xe2\x80\x9cA person commits an offense if he engages in deviate sexual intercourse\nwith another individual of the same sex.\xe2\x80\x9d The statute defines \xe2\x80\x9c[d]eviate sexual intercourse\xe2\x80\x9d as\nfollows:\n(A) any contact between any part of the genitals of one person and the mouth\nor anus of another person; or (B) the penetration of the genitals or the anus of\nanother person with an object.\xe2\x80\x9d \xc2\xa7 21.01(1).\nThe petitioners \xe2\x80\xa6 challenged the statute as a violation of the Equal Protection Clause of the\nFourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1,\n\xc2\xa7 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere\n[\xe2\x80\x9cno contest\xe2\x80\x9d] were each fined $200 and assessed court costs of $141.25.\nThe Court of Appeals for the Texas Fourteenth District \xe2\x80\xa6 rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals\nconsidered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the\nfederal due process aspect of the case. Bowers then being authoritative, this was proper. We\ngranted certiorari\xe2\x80\xa6\nWe conclude the case should be resolved by determining whether the petitioners were free\nas adults to engage in the private conduct in the exercise of their liberty under the Due Process\nClause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary\nto reconsider the Court\xe2\x80\x99s holding in Bowers.\n\xe2\x80\xa6The facts in Bowers had some similarities to the instant case. \xe2\x80\xa6 One difference between\nthe two cases is that the Georgia statute prohibited the conduct whether or not the participants\nwere of the same sex, while the Texas statute, as we have seen, applies only to participants of\nthe same sex\xe2\x80\xa6.\nThe Court began its substantive discussion in Bowers as follows: \xe2\x80\x9cThe issue presented is\nwhether the Federal Constitution confers a fundamental right upon homosexuals to engage in\nsodomy and hence invalidates the laws of the many States that still make such conduct illegal\nand have done so for a very long time.\xe2\x80\x9d Id., at 190. That statement, we now conclude, discloses\nthe Court\xe2\x80\x99s own failure to appreciate the extent of the liberty at stake. To say that the issue in\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 121\nBowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply\nabout the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure,\nstatutes that purport to do no more than prohibit a particular sexual act. Their penalties and\npurposes, though, have more far-reaching consequences, touching upon the most private human\nconduct, sexual behavior, and in the most private of places, the home. The statutes do seek to\ncontrol a personal relationship that, whether or not entitled to formal recognition in the law, is\nwithin the liberty of persons to choose without being punished as criminals.\nThis, as a general rule, should counsel against attempts by the State, or a court, to define\nthe meaning of the relationship or to set its boundaries absent injury to a person or abuse of an\ninstitution the law protects. It suffices for us to acknowledge that adults may choose to enter\nupon this relationship in the confines of their homes and their own private lives and still retain\ntheir dignity as free persons. When sexuality finds overt expression in intimate conduct with\nanother person, the conduct can be but one element in a personal bond that is more enduring.\nThe liberty protected by the Constitution allows homosexual persons the right to make this\nchoice.\nHaving misapprehended the claim of liberty there presented to it, and thus stating the claim\nto be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court\nsaid: \xe2\x80\x9cProscriptions against that conduct have ancient roots.\xe2\x80\x9d Id., at 192. In academic writings,\nand in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions\nin Bowers. We need not enter this debate in the attempt to reach a definitive historical judgment,\nbut the following considerations counsel against adopting the definitive conclusions upon which\nBowers placed such reliance.\nAt the outset it should be noted that there is no longstanding history in this country of laws\ndirected at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the\nReformation Parliament of 1533. The English prohibition was understood to include relations\nbetween men and women as well as relations between men and men. See, e.g., King v. Wiseman,\n92 Eng. Rep. 774, 775 (K.B.1718) (interpreting \xe2\x80\x9cmankind\xe2\x80\x9d in Act of 1533 as including women\nand girls). Nineteenth-century commentators similarly read American sodomy, buggery, and\ncrime-against-nature statutes as criminalizing certain relations between men and women and\nbetween men and men. \xe2\x80\xa6 The absence of legal prohibitions focusing on homosexual conduct\nmay be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. \xe2\x80\xa6 Thus early\nAmerican sodomy laws were not directed at homosexuals as such but instead sought to prohibit\nnonprocreative sexual activity more generally. This does not suggest approval of homosexual\nconduct. It does tend to show that this particular form of conduct was not thought of as a\nseparate category from like conduct between heterosexual persons.\nLaws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there\nare surviving records were for predatory acts against those who could not or did not consent, as\nin the case of a minor or the victim of an assault. \xe2\x80\xa6 Instead of targeting relations between\nconsenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations\nbetween adults implicating disparity in status, or relations between men and animals\xe2\x80\xa6.\nThe policy of punishing consenting adults for private acts was not much discussed in the\nearly legal literature. We can infer that one reason for this was the very private nature of the\nconduct. Despite the absence of prosecutions, there may have been periods in which there was\npublic criticism of homosexuals as such and an insistence that the criminal laws be enforced to\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c122 Religion in the Law\ndiscourage their practices. But far from possessing \xe2\x80\x9cancient roots,\xe2\x80\x9d Bowers, 478 U.S. at 192,\nAmerican laws targeting same-sex couples did not develop until the last third of the 20th century.\nThe reported decisions concerning the prosecution of consensual, homosexual sodomy between\nadults for the years 1880\xe2\x80\x931995 are not always clear in the details, but a significant number\ninvolved conduct in a public place\xe2\x80\xa6.\nIt was not until the 1970\xe2\x80\x99s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so\xe2\x80\xa6 Over the course of the last decades, States with\nsame-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark.\n600 (2002); Gryczan v. State, 283 Mont. 433 (1997); Campbell v. Sundquist, 926 S.W.2d 250\n(Tenn.App.1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.1992); see also 1993 Nev.\nStats. p. 518 (repealing Nev.Rev.Stat. \xc2\xa7 201.193)\xe2\x80\xa6.\nIt must be acknowledged, of course, that the Court in Bowers was making the broader\npoint that for centuries there have been powerful voices to condemn homosexual conduct as\nimmoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial\nconcerns but profound and deep convictions accepted as ethical and moral principles to which\nthey aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of\nthe State to enforce these views on the whole society through operation of the criminal law.\n\xe2\x80\x9cOur obligation is to define the liberty of all, not to mandate our own moral code.\xe2\x80\x9d Planned\nParenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).\nChief Justice Burger joined the opinion for the Court in Bowers and further explained his\nviews as follows: \xe2\x80\x9cDecisions of individuals relating to homosexual conduct have been subject to\nstate intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao\xe2\x80\x93Christian moral and ethical standards.\xe2\x80\x9d 478 U.S. at 196. As with\nJustice White\xe2\x80\x99s assumptions about history, scholarship casts some doubt on the sweeping nature\nof the statement by Chief Justice Burger as it pertains to private homosexual conduct between\nconsenting adults. \xe2\x80\xa6 In all events we think that our laws and traditions in the past half century\nare of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters\npertaining to sex. \xe2\x80\x9c[H]istory and tradition are the starting point but not in all cases the ending\npoint of the substantive due process inquiry.\xe2\x80\x9d County of Sacramento v. Lewis, 523 U.S. 833,\n857 (1998) (KENNEDY, J., concurring)\xe2\x80\xa6.\n\xe2\x80\xa6The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In\nthose States where sodomy is still proscribed, whether for same-sex or heterosexual conduct,\nthere is a pattern of nonenforcement with respect to consenting adults acting in private. The\nState of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those\ncircumstances. State v. Morales, 869 S.W.2d 941, 943.\n\xe2\x80\xa6In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal\ndecisions relating to marriage, procreation, contraception, family relationships, child rearing,\nand education. Id., at 851. In explaining the respect the Constitution demands for the autonomy\nof the person in making these choices, we stated as follows:\nThese matters, involving the most intimate and personal choices a person may\nmake in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of\nliberty is the right to define one\xe2\x80\x99s own concept of existence, of meaning, of the\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 123\nuniverse, and of the mystery of human life. Beliefs about these matters could\nnot define the attributes of personhood were they formed under compulsion\nof the State.\nPersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right\xe2\x80\xa6.\nEquality of treatment and the due process right to demand respect for conduct protected by\nthe substantive guarantee of liberty are linked in important respects, and a decision on the latter\npoint advances both interests. If protected conduct is made criminal and the law which does so\nremains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal\nby the law of the State, that declaration in and of itself is an invitation to subject homosexual\npersons to discrimination both in the public and in the private spheres. The central holding of\nBowers has been brought in question by this case, and it should be addressed. Its continuance\nas precedent demeans the lives of homosexual persons.\nThe stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is\nbut a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal\noffense with all that imports for the dignity of the persons charged. The petitioners will bear on\ntheir record the history of their criminal convictions.\xe2\x80\xa6\nThe rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice STEVENS came to these conclusions:\nOur prior cases make two propositions abundantly clear. First, the fact that\nthe governing majority in a State has traditionally viewed a particular practice\nas immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation\nfrom constitutional attack. Second, individual decisions by married persons,\nconcerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of \xe2\x80\x9cliberty\xe2\x80\x9d protected by the Due\nProcess Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.\nJustice STEVENS\xe2\x80\x99 analysis, in our view, should have been controlling in Bowers and should\ncontrol here. Bowers was not correct when it was decided, and it is not correct today. It ought\nnot to remain binding precedent. Bowers v. Hardwick should be and now is overruled.\n\xe2\x80\xa6[This] case [involves] two adults who, with full and mutual consent from each other,\nengaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to\nrespect for their private lives. The State cannot demean their existence or control their destiny\nby making their private sexual conduct a crime. Their right to liberty under the Due Process\nClause gives them the full right to engage in their conduct without intervention of the government. \xe2\x80\x9cIt is a promise of the Constitution that there is a realm of personal liberty which the\ngovernment may not enter.\xe2\x80\x9d Casey, at 847. The Texas statute furthers no legitimate state interest\nwhich can justify its intrusion into the personal and private life of the individual\xe2\x80\xa6.\nIt is so ordered.\nJustice O\xe2\x80\x99CONNOR, concurring in the judgment.\nThe Court today overrules Bowers v. Hardwick, 478 U.S. 186 (1986). I joined Bowers, and\ndo not join the Court in overruling it. Nevertheless, I agree with the Court that Texas\xe2\x80\x99 statute\nbanning same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment\xe2\x80\x99s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause\xe2\x80\xa6.\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c124 Religion in the Law\nThe statute at issue here makes sodomy a crime only if a person \xe2\x80\x9cengages in deviate sexual\nintercourse with another individual of the same sex.\xe2\x80\x9d Tex. Penal Code Ann. \xc2\xa7 21.06(a) (2003).\nSodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats\nthe same conduct differently based solely on the participants. Those harmed by this law are\npeople who have a same-sex sexual orientation and thus are more likely to engage in behavior\nprohibited by \xc2\xa7 21.06.\nThe Texas statute makes homosexuals unequal in the eyes of the law by making particular\nconduct\xe2\x80\x94and only that conduct\xe2\x80\x94subject to criminal sanction\xe2\x80\xa6.\nTexas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational\nbasis existed to justify the law, pointing to the government\xe2\x80\x99s interest in promoting morality. 478\nU.S. at 196. The only question in front of the Court in Bowers was whether the substantive\ncomponent of the Due Process Clause protected a right to engage in homosexual sodomy. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection\nClause to criminalize homosexual sodomy when heterosexual sodomy is not punished.\nThis case raises a different issue than Bowers: whether, under the Equal Protection Clause,\nmoral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual\nsodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare\ndesire to harm the group, is an interest that is insufficient to satisfy rational basis review under\nthe Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, 413 U.S. at 534;\nRomer v. Evans, 517 U.S. at 634\xe2\x80\x93635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause\nto justify a law that discriminates among groups of persons.\nMoral disapproval of a group cannot be a legitimate governmental interest under the Equal\nProtection Clause because legal classifications must not be \xe2\x80\x9cdrawn for the purpose of disadvantaging the group burdened by the law.\xe2\x80\x9d Id., at 633. Texas\xe2\x80\x99 invocation of moral disapproval\nas a legitimate state interest proves nothing more than Texas\xe2\x80\x99 desire to criminalize homosexual\nsodomy. But the Equal Protection Clause prevents a State from creating \xe2\x80\x9ca classification of persons undertaken for its own sake.\xe2\x80\x9d Id., at 635. And because Texas so rarely enforces its sodomy\nlaw as applied to private, consensual acts, the law serves more as a statement of dislike and\ndisapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy\nlaw \xe2\x80\x9craise[s] the inevitable inference that the disadvantage imposed is born of animosity toward\nthe class of persons affected.\xe2\x80\x9d Id., at 634....\nA law branding one class of persons as criminal based solely on the State\xe2\x80\x99s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the\nConstitution and the Equal Protection Clause, under any standard of review. I therefore concur\nin the Court\xe2\x80\x99s judgment that Texas\xe2\x80\x99 sodomy law banning \xe2\x80\x9cdeviate sexual intercourse\xe2\x80\x9d between\nconsenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.\nJustice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting.\n\xe2\x80\xa6Texas Penal Code Ann. \xc2\xa7 21.06(a) (2003) undoubtedly imposes constraints on liberty. So\ndo laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more\nthan 60 hours per week in a bakery. But there is no right to \xe2\x80\x9cliberty\xe2\x80\x9d under the Due Process\nClause, though today\xe2\x80\x99s opinion repeatedly makes that claim. \xe2\x80\xa6 The Fourteenth Amendment\nexpressly allows States to deprive their citizens of \xe2\x80\x9cliberty,\xe2\x80\x9d so long as \xe2\x80\x9cdue process of law\xe2\x80\x9d is\nprovided\xe2\x80\xa6\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 125\nOur opinions applying the doctrine known as \xe2\x80\x9csubstantive due process\xe2\x80\x9d hold that the Due\nProcess Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521\nU.S. at 721. We have held repeatedly, in cases the Court today does not overrule, that only\nfundamental rights qualify for this so-called \xe2\x80\x9cheightened scrutiny\xe2\x80\x9d protection\xe2\x80\x94that is, rights\nwhich are \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x9d \xe2\x80\xa6 All other liberty interests\nmay be abridged or abrogated pursuant to a validly enacted state law if that law is rationally\nrelated to a legitimate state interest.\nBowers held, first, that criminal prohibitions of homosexual sodomy are not subject to\nheightened scrutiny because they do not implicate a \xe2\x80\x9cfundamental right\xe2\x80\x9d under the Due Process\nClause, 478 U.S. at 191\xe2\x80\x93194. Noting that \xe2\x80\x9c[p]roscriptions against that conduct have ancient\nroots,\xe2\x80\x9d that \xe2\x80\x9c[s]odomy was a criminal offense at common law and was forbidden by the laws\nof the original 13 States when they ratified the Bill of Rights,\xe2\x80\x9d and that many States had retained\ntheir bans on sodomy, Bowers concluded that a right to engage in homosexual sodomy was not\n\xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x9d id., at 192.\nThe Court today does not overrule this holding. Not once does it describe homosexual\nsodomy as a \xe2\x80\x9cfundamental right\xe2\x80\x9d or a \xe2\x80\x9cfundamental liberty interest,\xe2\x80\x9d nor does it subject the\nTexas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual\nsodomy is \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s history and tradition,\xe2\x80\x9d the Court concludes that the\napplication of Texas\xe2\x80\x99s statute to petitioners\xe2\x80\x99 conduct fails the rational-basis test, and overrules\nBowers\xe2\x80\x99 holding to the contrary. \xe2\x80\x9cThe Texas statute furthers no legitimate state interest which\ncan justify its intrusion into the personal and private life of the individual.\xe2\x80\x9d\xe2\x80\xa6\nAfter discussing the history of antisodomy laws, the Court proclaims that, \xe2\x80\x9cit should be\nnoted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.\xe2\x80\x9d This observation in no way casts into doubt the \xe2\x80\x9cdefinitive [historical]\nconclusio[n],\xe2\x80\x9d on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general\xe2\x80\x94regardless of whether it was performed by same-sex or oppositesex couples\xe2\x80\xa6\nIt is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were \xe2\x80\x9cdirected at homosexual conduct as a distinct matter.\xe2\x80\x9d Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only\nrelevant point is that it was criminalized\xe2\x80\x94which suffices to establish that homosexual sodomy\nis not a right \xe2\x80\x9cdeeply rooted in our Nation\xe2\x80\x99s history and tradition.\xe2\x80\x9d The Court today agrees that\nhomosexual sodomy was criminalized and thus does not dispute the facts on which Bowers\nactually relied.\nNext the Court makes the claim, again unsupported by any citations, that \xe2\x80\x9c[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.\xe2\x80\x9d\nThe key qualifier here is \xe2\x80\x9cacting in private\xe2\x80\x9d\xe2\x80\x94since the Court admits that sodomy laws were\nenforced against consenting adults (although the Court contends that prosecutions were \xe2\x80\x9cinfrequen[t].\xe2\x80\x9d). \xe2\x80\xa6 There are 203 prosecutions for consensual, adult homosexual sodomy reported\nin the West Reporting system and official state reporters from the years 1880\xe2\x80\x931995. \xe2\x80\xa6 There\nare also records of 20 sodomy prosecutions and 4 executions during the colonial period. \xe2\x80\xa6.\nBowers\xe2\x80\x99 conclusion that homosexual sodomy is not a fundamental right \xe2\x80\x9cdeeply rooted in this\nNation\xe2\x80\x99s history and tradition\xe2\x80\x9d is utterly unassailable.\nRealizing that fact, the Court instead says: \xe2\x80\x9c[W]e think that our laws and traditions in the\npast half century are of most relevance here. These references show an emerging awareness that\nliberty gives substantial protection to adult persons in deciding how to conduct their private lives\nin matters pertaining to sex.\xe2\x80\x9d (emphasis added). Apart from the fact that such an \xe2\x80\x9cemerging\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c126 Religion in the Law\nawareness\xe2\x80\x9d does not establish a \xe2\x80\x9cfundamental right,\xe2\x80\x9d the statement is factually false. States continue to prosecute all sorts of crimes by adults \xe2\x80\x9cin matters pertaining to sex\xe2\x80\x9d: prostitution, adult\nincest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced \xe2\x80\x9cin\nthe past half century,\xe2\x80\x9d in which there have been 134 reported cases involving prosecutions for\nconsensual, adult, homosexual sodomy\xe2\x80\xa6\nIn any event, an \xe2\x80\x9cemerging awareness\xe2\x80\x9d is by definition not \xe2\x80\x9cdeeply rooted in this Nation\xe2\x80\x99s\nhistory and tradition[s],\xe2\x80\x9d as we have said \xe2\x80\x9cfundamental right\xe2\x80\x9d status requires. Constitutional\nentitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior\xe2\x80\xa6.\nI turn now to the ground on which the Court squarely rests its holding: the contention that\nthere is no rational basis for the law here under attack. This proposition is so out of accord with\nour jurisprudence\xe2\x80\x94indeed, with the jurisprudence of any society we know\xe2\x80\x94that it requires little\ndiscussion.\nThe Texas statute undeniably seeks to further the belief of its citizens that certain forms of\nsexual behavior are \xe2\x80\x9cimmoral and unacceptable,\xe2\x80\x9d Bowers, at 196\xe2\x80\x94the same interest furthered\nby criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.\nBowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, \xe2\x80\x9cfurthers no legitimate state interest which can justify its\nintrusion into the personal and private life of the individual,\xe2\x80\x9d (emphasis added). The Court embraces instead Justice STEVENS\xe2\x80\x99 declaration in his Bowers dissent, that \xe2\x80\x9cthe fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.\xe2\x80\x9d This effectively decrees the end of\nall morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is\nnot even a legitimate state interest, none of the above-mentioned laws can survive rational-basis\nreview.\nFinally, I turn to petitioners\xe2\x80\x99 equal-protection challenge, which no Member of the Court\nsave Justice O\xe2\x80\x99CONNOR embraces: On its face \xc2\xa7 21.06(a) applies equally to all persons. Men\nand women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual\nintercourse with someone of the same sex. To be sure, \xc2\xa7 21.06 does distinguish between the\nsexes insofar as concerns the partner with whom the sexual acts are performed: men can violate\nthe law only with other men, and women only with other women. But this cannot itself be a\ndenial of equal protection, since it is precisely the same distinction regarding partner that is\ndrawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.\nThe objection is made, however, that the antimiscegenation laws invalidated in Loving v.\nVirginia, 388 U.S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only\ndistinguished between the races insofar as the partner was concerned. In Loving, however, we\ncorrectly applied heightened scrutiny, rather than the usual rational-basis review, because the\nVirginia statute was \xe2\x80\x9cdesigned to maintain White Supremacy.\xe2\x80\x9d Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law\nthat makes no mention of race. No purpose to discriminate against men or women as a class\ncan be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers\xe2\x80\x94society\xe2\x80\x99s belief that certain forms\nof sexual behavior are \xe2\x80\x9cimmoral and unacceptable,\xe2\x80\x9d 478 U.S. at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based\nupon the identity of the partner\xe2\x80\x94for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.\nJustice O\xe2\x80\x99CONNOR argues that the discrimination in this law which must be justified is not\nits discrimination with regard to the sex of the partner but its discrimination with regard to the\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 127\nsexual proclivity of the principal actor.\nWhile it is true that the law applies only to conduct, the conduct targeted by\nthis law is conduct that is closely correlated with being homosexual. Under\nsuch circumstances, Texas\xe2\x80\x99 sodomy law is targeted at more than conduct. It is\ninstead directed toward gay persons as a class.\nOf course the same could be said of any law. A law against public nudity targets \xe2\x80\x9cthe conduct that is closely correlated with being a nudist,\xe2\x80\x9d and hence \xe2\x80\x9cis targeted at more than conduct\xe2\x80\x9d; it is \xe2\x80\x9cdirected toward nudists as a class.\xe2\x80\x9d But be that as it may. Even if the Texas law does\ndeny equal protection to \xe2\x80\x9chomosexuals as a class,\xe2\x80\x9d that denial still does not need to be justified\nby anything more than a rational basis, which our cases show is satisfied by the enforcement of\ntraditional notions of sexual morality.\nJustice O\xe2\x80\x99CONNOR simply decrees application of \xe2\x80\x9ca more searching form of rational basis\nreview\xe2\x80\x9d to the Texas statute. Justice O\xe2\x80\x99CONNOR [does not] explain precisely what her \xe2\x80\x9cmore\nsearching form\xe2\x80\x9d of rational-basis review consists of. It must at least mean, however, that laws\nexhibiting \xe2\x80\x9ca desire to harm a politically unpopular group,\xe2\x80\x9d are invalid even though there may\nbe a conceivable rational basis to support them.\nThis reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex\ncouples. Justice O\xe2\x80\x99CONNOR seeks to preserve them by the conclusory statement that \xe2\x80\x9cpreserving the traditional institution of marriage\xe2\x80\x9d is a legitimate state interest. But \xe2\x80\x9cpreserving the traditional institution of marriage\xe2\x80\x9d is just a kinder way of describing the State\xe2\x80\x99s moral disapproval\nof same-sex couples. Texas\xe2\x80\x99s interest in \xc2\xa7 21.06 could be recast in similarly euphemistic terms:\n\xe2\x80\x9cpreserving the traditional sexual mores of our society.\xe2\x80\x9d In the jurisprudence Justice\nO\xe2\x80\x99CONNOR has seemingly created, judges can validate laws by characterizing them as \xe2\x80\x9cpreserving the traditions of society\xe2\x80\x9d (good); or invalidate them by characterizing them as \xe2\x80\x9cexpressing moral disapproval\xe2\x80\x9d (bad).\nToday\xe2\x80\x99s opinion is the product of a Court, which is the product of a law-profession culture,\nthat has largely signed on to the so-called homosexual agenda, by which I mean the agenda\npromoted by some homosexual activists directed at eliminating the moral opprobrium that has\ntraditionally attached to homosexual conduct\xe2\x80\xa6\nOne of the most revealing statements in today\xe2\x80\x99s opinion is the Court\xe2\x80\x99s grim warning that\nthe criminalization of homosexual conduct is \xe2\x80\x9can invitation to subject homosexual persons to\ndiscrimination both in the public and in the private spheres.\xe2\x80\x9d It is clear from this that the Court\nhas taken sides in the culture war, departing from its role of assuring, as neutral observer, that\nthe democratic rules of engagement are observed. Many Americans do not want persons who\nopenly engage in homosexual conduct as partners in their business, as scoutmasters for their\nchildren, as teachers in their children\xe2\x80\x99s schools, or as boarders in their home. They view this as\nprotecting themselves and their families from a lifestyle that they believe to be immoral and\ndestructive. The Court views it as \xe2\x80\x9cdiscrimination\xe2\x80\x9d which it is the function of our judgments to\ndeter. So imbued is the Court with the law profession\xe2\x80\x99s anti-anti-homosexual culture, that it is\nseemingly unaware that the attitudes of that culture are not obviously \xe2\x80\x9cmainstream\xe2\x80\x9d; that in\nmost States what the Court calls \xe2\x80\x9cdiscrimination\xe2\x80\x9d against those who engage in homosexual acts\nis perfectly legal; that proposals to ban such \xe2\x80\x9cdiscrimination\xe2\x80\x9d under Title VII have repeatedly\nbeen rejected by Congress; that in some cases such \xe2\x80\x9cdiscrimination\xe2\x80\x9d is mandated by federal\nstatute, see 10 U.S.C. \xc2\xa7 654(b)(1) (mandating discharge from the Armed Forces of any service\nmember who engages in or intends to engage in homosexual acts); and that in some cases such\n\xe2\x80\x9cdiscrimination\xe2\x80\x9d is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640\n(2000).\nLet me be clear that I have nothing against homosexuals, or any other group, promoting\ntheir agenda through normal democratic means. Social perceptions of sexual and other morality\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c128 Religion in the Law\nchange over time, and every group has the right to persuade its fellow citizens that its view of\nsuch matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one\xe2\x80\x99s fellow citizens is one thing, and imposing one\xe2\x80\x99s\nviews in absence of democratic majority will is something else\xe2\x80\xa6.\n\xe2\x80\xa6The people may feel that their disapprobation of homosexual conduct is strong enough\nto disallow homosexual marriage, but not strong enough to criminalize private homosexual\nacts\xe2\x80\x94and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has\nrecently occurred in Canada\xe2\x80\xa6. At the end of its opinion\xe2\x80\x94after having laid waste the foundations of our rational-basis jurisprudence\xe2\x80\x94the Court says that the present case \xe2\x80\x9cdoes not involve\nwhether the government must give formal recognition to any relationship that homosexual persons seek to enter.\xe2\x80\x9d\nDo not believe it. More illuminating than this bald, unreasoned disclaimer is the progression\nof thought displayed by an earlier passage in the Court\xe2\x80\x99s opinion, which notes the constitutional\nprotections afforded to \xe2\x80\x9cpersonal decisions relating to marriage, procreation, contraception,\nfamily relationships, child rearing, and education,\xe2\x80\x9d and then declares that \xe2\x80\x9c[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.\xe2\x80\x9d\n(emphasis added). Today\xe2\x80\x99s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal\nrecognition in marriage is concerned. If moral disapprobation of homosexual conduct is \xe2\x80\x9cno\nlegitimate state interest\xe2\x80\x9d for purposes of proscribing that conduct; and if, as the Court coos\n(casting aside all pretense of neutrality), \xe2\x80\x9c[w]hen sexuality finds overt expression in intimate\nconduct with another person, the conduct can be but one element in a personal bond that is\nmore enduring,\xe2\x80\x9d what justification could there possibly be for denying the benefits of marriage\nto homosexual couples exercising \xe2\x80\x9c[t]he liberty protected by the Constitution?\xe2\x80\x9d Surely not the\nencouragement of procreation, since the sterile and the elderly are allowed to marry. This case\n\xe2\x80\x9cdoes not involve\xe2\x80\x9d the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court\xe2\x80\xa6.\nJustice THOMAS, dissenting.\nI join Justice SCALIA\xe2\x80\x99s dissenting opinion. I write separately to note that the law before the\nCourt today \xe2\x80\x9cis uncommonly silly.\xe2\x80\x9d Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct\nwith another adult does not appear to be a worthy way to expend valuable law enforcement\nresources.\nNotwithstanding this, I recognize that as a Member of this Court I am not empowered to\nhelp petitioners and others similarly situated. My duty, rather, is to \xe2\x80\x9cdecide cases agreeably to\nthe Constitution and laws of the United States.\xe2\x80\x9d Id., at 530. And, just like Justice Stewart, I \xe2\x80\x9ccan\nfind [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,\xe2\x80\x9d or as the Court terms it today, the \xe2\x80\x9cliberty of the person both in its spatial and more\ntranscendent dimensions.\xe2\x80\x9d\n\nLawrence v. Texas, 539 U.S. 558 (2003)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 129\n\n576 U.S. 644\nSupreme Court of the United States\n\nObergefell v. Hodges\nJune 26, 2015\nJustice KENNEDY delivered the opinion of the Court.\nThe Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The\npetitioners in these cases seek to find that liberty by marrying someone of the same sex and\nhaving their marriages deemed lawful on the same terms and conditions as marriages between\npersons of the opposite sex.\nThese cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. The petitioners are 14 same-sex couples and\ntwo men whose same-sex partners are deceased. The respondents are state officials responsible\nfor enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth\nAmendment by denying them the right to marry or to have their marriages, lawfully performed\nin another State, given full recognition\xe2\x80\xa6.\nFrom their beginning to their most recent page, the annals of human history the transcendent importance of marriage. The lifelong union of a man and a woman always has promised\nnobility and dignity to all persons, without regard to their station in life. Marriage is sacred to\nthose who live by their religions and offers unique fulfillment to those who find meaning in the\nsecular realm. Its dynamic allows two people to find a life that could not be found alone, for a\nmarriage becomes greater than just the two persons. Rising from the most basic human needs,\nmarriage is essential to our most profound hopes and aspirations.\nThe centrality of marriage to the human condition makes it unsurprising that the institution\nhas existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together\xe2\x80\xa6. There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures,\nand faiths, as well as in art and literature in all their forms. It is fair and necessary to say these\nreferences were based on the understanding that marriage is a union between two persons of\nthe opposite sex.\nThat history is the beginning of these cases. The respondents say it should be the end as\nwell. To them, it would demean a timeless institution if the concept and lawful status of marriage\nwere extended to two persons of the same sex. Marriage, in their view, is by its nature a genderdifferentiated union of man and woman. This view long has been held\xe2\x80\x94and continues to be\nheld\xe2\x80\x94in good faith by reasonable and sincere people here and throughout the world.\nThe petitioners acknowledge this history but contend that these cases cannot end there.\nWere their intent to demean the revered idea and reality of marriage, the petitioners\xe2\x80\x99 claims\nwould be of a different order. But that is neither their purpose nor their submission. To the\ncontrary, it is the enduring importance of marriage that underlies the petitioners\xe2\x80\x99 contentions.\nThis, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it\nfor themselves because of their respect\xe2\x80\x94and need\xe2\x80\x94for its privileges and responsibilities. And\ntheir immutable nature dictates that same-sex marriage is their only real path to this profound\ncommitment\xe2\x80\xa6. Their stories reveal that they seek not to denigrate marriage but rather to live\ntheir lives, or honor their spouses\xe2\x80\x99 memory, joined by its bond.\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c130 Religion in the Law\nThe ancient origins of marriage confirm its centrality, but it has not stood in isolation from\ndevelopments in law and society. The history of marriage is one of both continuity and change.\nThat institution\xe2\x80\x94even as confined to opposite-sex relations\xe2\x80\x94has evolved over time\xe2\x80\xa6.\nUntil the mid\xe2\x80\x9320th century, same-sex intimacy long had been condemned as immoral by\nthe state itself in most Western nations, a belief often embodied in the criminal law. For this\nreason, among others, many persons did not deem homosexuals to have dignity in their own\ndistinct identity. A truthful declaration by same-sex couples of what was in their hearts had to\nremain unspoken. Even when a greater awareness of the humanity and integrity of homosexual\npersons came in the period after World War II, the argument that gays and lesbians had a just\nclaim to dignity was in conflict with both law and widespread social conventions. Same-sex\nintimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted\nby police, and burdened in their rights to associate\xe2\x80\xa6.\nIn the late 20th century, following substantial cultural and political developments, same-sex\ncouples began to lead more open and public lives and to establish families. This development\nwas followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the\nrights of gays and lesbians soon reached the courts, where the issue could be discussed in the\nformal discourse of the law.\nThis Court first gave detailed consideration to the legal status of homosexuals in Bowers v.\nHardwick, 478 U.S. 186 (1986). There it upheld the constitutionality of a Georgia law deemed\nto criminalize certain homosexual acts. \xe2\x80\xa6 Then, in 2003, the Court overruled Bowers, holding\nthat laws making same-sex intimacy a crime \xe2\x80\x9cdemea [n] the lives of homosexual persons.\xe2\x80\x9d Lawrence v. Texas, 539 U.S. 558, 575.\n[In] 1996, Congress passed the Defense of Marriage Act (DOMA), defining marriage for\nall federal-law purposes as \xe2\x80\x9conly a legal union between one man and one woman as husband\nand wife.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 7\xe2\x80\xa6. Two Terms ago, in United States v. Windsor, 570 U.S. 744 (2013),\nthis Court invalidated DOMA to the extent it barred the Federal Government from treating\nsame-sex marriages as valid even when they were lawful in the State where they were licensed\xe2\x80\xa6.\nAfter years of litigation, legislation, referenda, and the discussions that attended these public\nacts, the States are now divided on the issue of same-sex marriage. Under the Due Process Clause\nof the Fourteenth Amendment, no State shall \xe2\x80\x9cdeprive any person of life, liberty, or property,\nwithout due process of law.\xe2\x80\x9d The fundamental liberties protected by this Clause include most of\nthe rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147\xe2\x80\x93149\n(1968). In addition these liberties extend to certain personal choices central to individual dignity\nand autonomy, including intimate choices that define personal identity and beliefs. Eisenstadt v.\nBaird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. 479, 484\xe2\x80\x93486 (1965).\nThe identification and protection of fundamental rights is an enduring part of the judicial\nduty to interpret the Constitution. That responsibility, however, \xe2\x80\x9chas not been reduced to any\nformula.\xe2\x80\x9d Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires\ncourts to exercise reasoned judgment in identifying interests of the person so fundamental that\nthe State must accord them its respect. See ibid. That process is guided by many of the same\nconsiderations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but\ndo not set its outer boundaries. That method respects our history and learns from it without\nallowing the past alone to rule the present\xe2\x80\xa6.\nApplying these established tenets, the Court has long held the right to marry is protected by\nthe Constitution. In Loving v. Virginia, 388 U.S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is \xe2\x80\x9cone of the vital personal rights essential to\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 131\nthe orderly pursuit of happiness by free men.\xe2\x80\x9d The Court reaffirmed that holding in Zablocki v.\nRedhail, 434 U.S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this\nprinciple in Turner v. Safley, 482 U.S. 78, 95 (1987), which held the right to marry was abridged\nby regulations limiting the privilege of prison inmates to marry. Over time and in other contexts,\nthe Court has reiterated that the right to marry is fundamental under the Due Process Clause\xe2\x80\xa6.\nIt cannot be denied that this Court\xe2\x80\x99s cases describing the right to marry presumed a relationship involving opposite-sex partners. \xe2\x80\xa6 Still, this Court\xe2\x80\x99s cases have expressed constitutional\nprinciples of broader reach. In defining the right to marry these cases have identified essential\nattributes of that right based in history, tradition, and other constitutional liberties inherent in\nthis intimate bond. \xe2\x80\xa6 And in assessing whether the force and rationale of its cases apply to\nsame-sex couples, the Court must respect the basic reasons why the right to marry has been long\nprotected\xe2\x80\xa6.\nThis analysis compels the conclusion that same-sex couples may exercise the right to marry.\nA first premise of the Court\xe2\x80\x99s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.\xe2\x80\xa6 Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the\nConstitution, decisions concerning marriage are among the most intimate that an individual can\nmake. Indeed, the Court has noted it would be contradictory \xe2\x80\x9cto recognize a right of privacy\nwith respect to other matters of family life and not with respect to the decision to enter the\nrelationship that is the foundation of the family in our society.\xe2\x80\x9d Zablocki, at 386\xe2\x80\xa6.\nThe nature of marriage is that, through its enduring bond, two persons together can find\nother freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation\xe2\x80\xa6.\nA second principle in this Court\xe2\x80\x99s jurisprudence is that the right to marry is fundamental\nbecause it supports a two-person union unlike any other in its importance to the committed\nindividuals. This point was central to Griswold v. Connecticut, which held the Constitution\nprotects the right of married couples to use contraception. 381 U.S. at 485. Suggesting that\nmarriage is a right \xe2\x80\x9colder than the Bill of Rights,\xe2\x80\x9d Griswold described marriage this way:\nMarriage is a coming together for better or for worse, hopefully enduring, and\nintimate to the degree of being sacred. It is an association that promotes a way\nof life, not causes; a harmony in living, not political faiths; a bilateral loyalty,\nnot commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Id., at 486, 85 S.Ct. 1678.\n\xe2\x80\xa6A third basis for protecting the right to marry is that it safeguards children and families\nand thus draws meaning from related rights of childrearing, procreation, and education. \xe2\x80\xa6 As\nall parties agree, many same-sex couples provide loving and nurturing homes to their children,\nwhether biological or adopted. And hundreds of thousands of children are presently being raised\nby such couples\xe2\x80\xa6.\nThat is not to say the right to marry is less meaningful for those who do not or cannot have\nchildren. An ability, desire, or promise to procreate is not and has not been a prerequisite for a\nvalid marriage in any State. In light of precedent protecting the right of a married couple not to\nprocreate, it cannot be said the Court or the States have conditioned the right to marry on the\ncapacity or commitment to procreate. The constitutional marriage right has many aspects, of\nwhich childbearing is only one.\nFourth and finally, this Court\xe2\x80\x99s cases and the Nation\xe2\x80\x99s traditions make clear that marriage\nis a keystone of our social order. \xe2\x80\xa6 In Maynard v. Hill, 125 U.S. 190 (1888), the Court [explained] that marriage is \xe2\x80\x9cthe foundation of the family and of society, without which there\nwould be neither civilization nor progress.\xe2\x80\x9d Marriage, the Maynard Court said, has long been\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c132 Religion in the Law\n\xe2\x80\x9ca great public institution, giving character to our whole civil polity.\xe2\x80\x9d Id., at 213\xe2\x80\xa6. The States\nhave contributed to the fundamental character of the marriage right by placing that institution\nat the center of so many facets of the legal and social order.\nThere is no difference between same- and opposite-sex couples with respect to this principle.\nYet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just\nmaterial burdens. Same-sex couples are consigned to an instability many opposite-sex couples\nwould deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching\nthat gays and lesbians are unequal in important respects. It demeans gays and lesbians for the\nState to lock them out of a central institution of the Nation\xe2\x80\x99s society\xe2\x80\xa6. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with\nthe central meaning of the fundamental right to marry is now manifest\xe2\x80\xa6.\nObjecting that this does not reflect an appropriate framing of the issue, the respondents\nrefer to Washington v. Glucksberg, 521 U.S. 702, 721 (1997), which called for a \xe2\x80\x9ccareful description\xe2\x80\x9d of fundamental rights. They assert the petitioners do not seek to exercise the right to\nmarry but rather a new and nonexistent \xe2\x80\x9cright to same-sex marriage.\xe2\x80\x9d Glucksberg did insist\nthat liberty under the Due Process Clause must be defined in a most circumscribed manner, with\ncentral reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the\napproach this Court has used in discussing other fundamental rights, including marriage and\nintimacy. Loving did not ask about a \xe2\x80\x9cright to interracial marriage\xe2\x80\x9d; Turner did not ask about\na \xe2\x80\x9cright of inmates to marry\xe2\x80\x9d; and Zablocki did not ask about a \xe2\x80\x9cright of fathers with unpaid\nchild support duties to marry.\xe2\x80\x9d Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class\nfrom the right\xe2\x80\xa6.\nThat principle applies here. If rights were defined by who exercised them in the past, then\nreceived practices could serve as their own continued justification and new groups could not\ninvoke rights once denied. This Court has rejected that approach, both with respect to the right\nto marry and the rights of gays and lesbians. See Loving, 388 U.S. at 12; Lawrence, 539 U.S. at\n566\xe2\x80\x93567.\n\xe2\x80\xa6Many who deem same-sex marriage to be wrong reach that conclusion based on decent\nand honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy,\nthe necessary consequence is to put the imprimatur of the State itself on an exclusion that soon\ndemeans or stigmatizes those whose own liberty is then denied\xe2\x80\xa6.\nIt is now clear that the challenged laws burden the liberty of same-sex couples, and it must\nbe further acknowledged that they abridge central precepts of equality. Here the marriage laws\nenforced by the respondents are in essence unequal: same-sex couples are denied all the benefits\nafforded to opposite-sex couples and are barred from exercising a fundamental right. Especially\nagainst a long history of disapproval of their relationships, this denial to same-sex couples of the\nright to marry works a grave and continuing harm. The imposition of this disability on gays and\nlesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the\nDue Process Clause, prohibits this unjustified infringement of the fundamental right to marry.\nSee, e.g., Zablocki, at 383\xe2\x80\x93388; Skinner, 316 U.S. at 541.\nThese considerations lead to the conclusion that the right to marry is a fundamental right\ninherent in the liberty of the person, and under the Due Process and Equal Protection Clauses\nof the Fourteenth Amendment couples of the same-sex may not be deprived of that right and\nthat liberty. The Court now holds that same-sex couples may exercise the fundamental right to\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 133\nmarry\xe2\x80\xa6.\nThe dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation\xe2\x80\x99s courts are open to injured individuals\nwho come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader\npublic disagrees and even if the legislature refuses to act. The idea of the Constitution \xe2\x80\x9cwas to\nwithdraw certain subjects from the vicissitudes of political controversy, to place them beyond\nthe reach of majorities and officials and to establish them as legal principles to be applied by the\ncourts.\xe2\x80\x9d West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). This is why \xe2\x80\x9cfundamental rights may not be submitted to a vote; they depend on the outcome of no elections.\xe2\x80\x9d It\nis of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the\ndemocratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry\xe2\x80\xa6.\nThe respondents also argue allowing same-sex couples to wed will harm marriage as an\ninstitution by leading to fewer opposite-sex marriages. This may occur, the respondents contend,\nbecause licensing same-sex marriage severs the connection between natural procreation and\nmarriage. That argument, however, rests on a counterintuitive view of opposite-sex couple\xe2\x80\x99s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry\nand raise children are based on many personal, romantic, and practical considerations; and it is\nunrealistic to conclude that an opposite-sex couple would choose not to marry simply because\nsame-sex couples may do so. \xe2\x80\xa6 The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed,\nwith respect to this asserted basis for excluding same-sex couples from the right to marry, it is\nappropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.\nFinally, it must be emphasized that religions, and those who adhere to religious doctrines,\nmay continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex\nmarriage should not be condoned. The First Amendment ensures that religious organizations\nand persons are given proper protection as they seek to teach the principles that are so fulfilling\nand so central to their lives and faiths, and to their own deep aspirations to continue the family\nstructure they have long revered. The same is true of those who oppose same-sex marriage for\nother reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree\nwith their view in an open and searching debate. The Constitution, however, does not permit\nthe State to bar same-sex couples from marriage on the same terms as accorded to couples of\nthe opposite sex\xe2\x80\xa6.\nNo union is more profound than marriage, for it embodies the highest ideals of love, fidelity,\ndevotion, sacrifice, and family. In forming a marital union, two people become something\ngreater than once they were. As some of the petitioners in these cases demonstrate, marriage\nembodies a love that may endure even past death. It would misunderstand these men and\nwomen to say they disrespect the idea of marriage. Their plea is that they do respect it, respect\nit so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization\xe2\x80\x99s oldest institutions. They ask for\nequal dignity in the eyes of the law. The Constitution grants them that right.\nIt is so ordered.\nChief Justice ROBERTS, with whom Justice SCALIA and Justice THOMAS join, dissenting.\n\xe2\x80\xa6[This] Court is not a legislature. Whether same-sex marriage is a good idea should be of\nno concern to us. Under the Constitution, judges have power to say what the law is, not what\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c134 Religion in the Law\nit should be.\xe2\x80\xa6\nAlthough the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to\nmarry does not include a right to make a State change its definition of marriage. And a State\xe2\x80\x99s\ndecision to maintain the meaning of marriage that has persisted in every culture throughout\nhuman history can hardly be called irrational. In short, our Constitution does not enact any one\ntheory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition\xe2\x80\xa6.\nUnderstand well what this dissent is about: It is not about whether, in my judgment, the\ninstitution of marriage should be changed to include same-sex couples. It is instead about\nwhether, in our democratic republic, that decision should rest with the people acting through\ntheir elected representatives, or with five lawyers who happen to hold commissions authorizing\nthem to resolve legal disputes according to law. The Constitution leaves no doubt about the\nanswer.\nPetitioners and their amici base their arguments on the \xe2\x80\x9cright to marry\xe2\x80\x9d and the imperative\nof \xe2\x80\x9cmarriage equality.\xe2\x80\x9d There is no serious dispute that, under our precedents, the Constitution\nprotects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes \xe2\x80\x9cmarriage,\xe2\x80\x9d or\xe2\x80\x94more precisely\xe2\x80\x94who decides what constitutes \xe2\x80\x9cmarriage\xe2\x80\x9d?\nThe majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. \xe2\x80\xa6 As the majority acknowledges, marriage \xe2\x80\x9chas existed for millennia and across civilizations.\xe2\x80\x9d For all those millennia, across all those civilizations, \xe2\x80\x9cmarriage\xe2\x80\x9d\nreferred to only one relationship: the union of a man and a woman\xe2\x80\xa6.\nThis universal definition of marriage as the union of a man and a woman is no historical\ncoincidence. Marriage did not come about as a result of a political movement, discovery, disease,\nwar, religious doctrine, or any other moving force of world history\xe2\x80\x94and certainly not as a result\nof a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a\nvital need: ensuring that children are conceived by a mother and father committed to raising\nthem in the stable conditions of a lifelong relationship\xe2\x80\xa6.\nThe premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual\nrelations between a man and a woman. When sexual relations result in the conception of a child,\nthat child\xe2\x80\x99s prospects are generally better if the mother and father stay together rather than going\ntheir separate ways. Therefore, for the good of children and society, sexual relations that can\nlead to procreation should occur only between a man and a woman committed to a lasting\nbond.\nSociety has recognized that bond as marriage. And by bestowing a respected status and\nmaterial benefits on married couples, society encourages men and women to conduct sexual\nrelations within marriage rather than without\xe2\x80\xa6.\nThis singular understanding of marriage has prevailed in the United States throughout our\nhistory. The majority accepts that at \xe2\x80\x9cthe time of the Nation\xe2\x80\x99s founding [marriage] was understood to be a voluntary contract between a man and a woman.\xe2\x80\x9d Early Americans drew heavily\non legal scholars like William Blackstone, who regarded marriage between \xe2\x80\x9chusband and wife\xe2\x80\x9d\nas one of the \xe2\x80\x9cgreat relations in private life,\xe2\x80\x9d and philosophers like John Locke, who described\nmarriage as \xe2\x80\x9ca voluntary compact between man and woman\xe2\x80\x9d centered on \xe2\x80\x9cits chief end, procreation\xe2\x80\x9d and the \xe2\x80\x9cnourishment and support\xe2\x80\x9d of children. \xe2\x80\xa6 To those who drafted and ratified\nthe Constitution, this conception of marriage and family \xe2\x80\x9cwas a given: its structure, its stability,\nroles, and values accepted by all.\xe2\x80\x9d \xe2\x80\xa6\nThe Constitution itself says nothing about marriage, and the Framers thereby entrusted the\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 135\nStates with \xe2\x80\x9c[t]he whole subject of the domestic relations of husband and wife.\xe2\x80\x9d \xe2\x80\xa6 There is no\ndispute that every State at the founding\xe2\x80\x94and every State throughout our history until a dozen\nyears ago\xe2\x80\x94defined marriage in the traditional, biologically rooted way. The four States in these\ncases are typical. Their laws, before and after statehood, have treated marriage as the union of\na man and a woman\xe2\x80\xa6.\nAs the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture,\nthe doctrine by which a married man and woman became a single legal entity, with laws that\nrespect each participant\xe2\x80\x99s separate status. Racial restrictions on marriage, which \xe2\x80\x9carose as an\nincident to slavery\xe2\x80\x9d to promote \xe2\x80\x9cWhite Supremacy,\xe2\x80\x9d were repealed by many States and ultimately struck down by this Court. Loving, 388 U.S. at 6\xe2\x80\x937.\nThe majority observes that these developments \xe2\x80\x9cwere not mere superficial changes\xe2\x80\x9d in marriage, but rather \xe2\x80\x9cworked deep transformations in its structure.\xe2\x80\x9d They did not, however, work\nany transformation in the core structure of marriage as the union between a man and a woman.\nIf you had asked a person on the street how marriage was defined, no one would ever have said,\n\xe2\x80\x9cMarriage is the union of a man and a woman, where the woman is subject to coverture.\xe2\x80\x9d The\nmajority may be right that the \xe2\x80\x9chistory of marriage is one of both continuity and change,\xe2\x80\x9d but\nthe core meaning of marriage has endured\xe2\x80\xa6.\nWhen the majority turns to the law, it relies primarily on precedents discussing the fundamental \xe2\x80\x9cright to marry.\xe2\x80\x9d Turner v. Safley, 482 U.S. 78, 95 (1987); Zablocki, 434 U.S. at 383;\nsee Loving, 388 U.S. at 12. These cases do not hold, of course, that anyone who wants to get\nmarried has a constitutional right to do so. They instead require a State to justify barriers to\nmarriage as that institution has always been understood. In Loving, the Court held that racial\nrestrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions\nbased on child support debts did not suffice. In Turner, restrictions based on status as a prisoner\nwere deemed impermissible.\nNone of the laws at issue in those cases purported to change the core definition of marriage\nas the union of a man and a woman. The laws challenged in Zablocki and Turner did not define\nmarriage as \xe2\x80\x9cthe union of a man and a woman, where neither party owes child support or is in\nprison.\xe2\x80\x9d Nor did the interracial marriage ban at issue in Loving define marriage as \xe2\x80\x9cthe union\nof a man and a woman of the same race.\xe2\x80\x9d \xe2\x80\xa6 Removing racial barriers to marriage therefore did\nnot change what a marriage was any more than integrating schools changed what a school was.\nAs the majority admits, the institution of \xe2\x80\x9cmarriage\xe2\x80\x9d discussed in every one of these cases \xe2\x80\x9cpresumed a relationship involving opposite-sex partners.\xe2\x80\x9d\nIn short, the \xe2\x80\x9cright to marry\xe2\x80\x9d cases stand for the important but limited proposition that\nparticular restrictions on access to marriage as traditionally defined violate due process. These\nprecedents say nothing at all about a right to make a State change its definition of marriage,\nwhich is the right petitioners actually seek here. \xe2\x80\xa6 Neither petitioners nor the majority cites a\nsingle case or other legal source providing any basis for such a constitutional right. None exists,\nand that is enough to foreclose their claim\xe2\x80\xa6.\nOne immediate question invited by the majority\xe2\x80\x99s position is whether States may retain the\ndefinition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F.Supp.2d 1170\n(Utah 2013), appeal pending, No. 14\xe2\x80\x934117 (CA10). Although the majority randomly inserts\nthe adjective \xe2\x80\x9ctwo\xe2\x80\x9d in various places, it offers no reason at all why the two-person element of\nthe core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to samesex marriage is much greater than one from a two-person union to plural unions, which have\ndeep roots in some cultures around the world. If the majority is willing to take the big leap, it is\nhard to see how it can say no to the shorter one.\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c136 Religion in the Law\nIt is striking how much of the majority\xe2\x80\x99s reasoning would apply with equal force to the\nclaim of a fundamental right to plural marriage. If \xe2\x80\x9c[t]here is dignity in the bond between two\nmen or two women who seek to marry and in their autonomy to make such profound choices,\xe2\x80\x9d\nwhy would there be any less dignity in the bond between three people who, in exercising their\nautonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise \xe2\x80\x9csuffer the stigma of knowing their\nfamilies are somehow lesser,\xe2\x80\x9d why wouldn\xe2\x80\x99t the same reasoning apply to a family of three or\nmore persons raising children? If not having the opportunity to marry \xe2\x80\x9cserves to disrespect and\nsubordinate\xe2\x80\x9d gay and lesbian couples, why wouldn\xe2\x80\x99t the same \xe2\x80\x9cimposition of this disability,\xe2\x80\x9d\nserve to disrespect and subordinate people who find fulfillment in polyamorous relationships?\n\xe2\x80\xa6I do not mean to equate marriage between same-sex couples with plural marriages in all\nrespects. There may well be relevant differences that compel different legal analysis. But if there\nare, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State \xe2\x80\x9cdoesn\xe2\x80\x99t have such an institution.\xe2\x80\x9d But that is exactly the\npoint: the States at issue here do not have an institution of same-sex marriage, either\xe2\x80\xa6.\nToday\xe2\x80\x99s decision \xe2\x80\xa6 creates serious questions about religious liberty. Many good and decent\npeople oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is\xe2\x80\x94\nunlike the right imagined by the majority\xe2\x80\x94actually spelled out in the Constitution.\nRespect for sincere religious conviction has led voters and legislators in every State that has\nadopted same-sex marriage democratically to include accommodations for religious practice.\nThe majority\xe2\x80\x99s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to \xe2\x80\x9cadvocate\xe2\x80\x9d\nand \xe2\x80\x9cteach\xe2\x80\x9d their views of marriage. The First Amendment guarantees, however, the freedom\nto \xe2\x80\x9cexercise\xe2\x80\x9d religion. Ominously, that is not a word the majority uses.\nHard questions arise when people of faith exercise religion in ways that may be seen to\nconflict with the new right to same-sex marriage\xe2\x80\x94when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption\nagency declines to place children with same-sex married couples. Indeed, the Solicitor General\ncandidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will\nsoon be before this Court. Unfortunately, people of faith can take no comfort in the treatment\nthey receive from the majority today.\nPerhaps the most discouraging aspect of today\xe2\x80\x99s decision is the extent to which the majority\nfeels compelled to sully those on the other side of the debate. \xe2\x80\xa6 By the majority\xe2\x80\x99s account,\nAmericans who did nothing more than follow the understanding of marriage that has existed\nfor our entire history\xe2\x80\x94in particular, the tens of millions of people who voted to reaffirm their\nStates\xe2\x80\x99 enduring definition of marriage\xe2\x80\x94have acted to \xe2\x80\x9clock ... out,\xe2\x80\x9d \xe2\x80\x9cdisparage,\xe2\x80\x9d \xe2\x80\x9cdisrespect\nand subordinate,\xe2\x80\x9d and inflict \xe2\x80\x9c[d]ignitary wounds\xe2\x80\x9d upon their gay and lesbian neighbors. These\napparent assaults on the character of fairminded people will have an effect, in society and in\ncourt\xe2\x80\xa6.\nIf you are among the many Americans\xe2\x80\x94of whatever sexual orientation\xe2\x80\x94who favor expanding same-sex marriage, by all means celebrate today\xe2\x80\x99s decision. Celebrate the achievement\nof a desired goal. Celebrate the opportunity for a new expression of commitment to a partner.\nCelebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing\nto do with it\xe2\x80\xa6.\nJustice SCALIA, with whom Justice THOMAS joins, dissenting.\n\xe2\x80\xa6The substance of today\xe2\x80\x99s decree is not of immense personal importance to me. The law\ncan recognize as marriage whatever sexual attachments and living arrangements it wishes, and\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 137\ncan accord them favorable civil consequences, from tax treatment to rights of inheritance. Those\ncivil consequences\xe2\x80\x94and the public approval that conferring the name of marriage evidences\xe2\x80\x94\ncan perhaps have adverse social effects, but no more adverse than the effects of many other\ncontroversial laws. So it is not of special importance to me what the law says about marriage. It\nis of overwhelming importance, however, who it is that rules me. Today\xe2\x80\x99s decree says that my\nRuler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers\non the Supreme Court. The opinion in these cases is the furthest extension in fact\xe2\x80\x94and the\nfurthest extension one can even imagine\xe2\x80\x94of the Court\xe2\x80\x99s claimed power to create \xe2\x80\x9cliberties\xe2\x80\x9d that\nthe Constitution and its Amendments neglect to mention. This practice of constitutional revision\nby an unelected committee of nine, always accompanied (as it is today) by extravagant praise of\nliberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves\xe2\x80\xa6.\nThe Constitution places some constraints on self-rule\xe2\x80\x94constraints adopted by the People\nthemselves when they ratified the Constitution and its Amendments\xe2\x80\xa6. These cases ask us to\ndecide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue\nfrom the political process?\nOf course not. \xe2\x80\xa6 When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing\nso. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision\xe2\x80\x94such as \xe2\x80\x9cdue process of law\xe2\x80\x9d or \xe2\x80\x9cequal protection of the laws\xe2\x80\x9d\xe2\x80\x94it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice\nthat remained both universal and uncontroversial in the years after ratification. We have no\nbasis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment\xe2\x80\x99s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment\xe2\x80\x99s ratification. Since there is no doubt whatever\nthat the People never decided to prohibit the limitation of marriage to opposite-sex couples, the\npublic debate over same-sex marriage must be allowed to continue\xe2\x80\xa6.\nBut what really astounds is the hubris reflected in today\xe2\x80\x99s judicial Putsch. The five Justices\nwho compose today\xe2\x80\x99s majority are entirely comfortable concluding that every State violated the\nConstitution for all of the 135 years between the Fourteenth Amendment\xe2\x80\x99s ratification and Massachusetts\xe2\x80\x99 permitting of same-sex marriages in 2003. They have discovered in the Fourteenth\nAmendment a \xe2\x80\x9cfundamental right\xe2\x80\x9d overlooked by every person alive at the time of ratification,\nand almost everyone else in the time since.\xe2\x80\xa6\nThe opinion is couched in a style that is as pretentious as its content is egotistic. It is one\nthing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to\ndo so. (If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that\nbegan: \xe2\x80\x9cThe Constitution promises liberty to all within its reach, a liberty that includes certain\nspecific rights that allow persons, within a lawful realm, to define and express their identity,\xe2\x80\x9d I\nwould hide my head in a bag. The Supreme Court of the United States has descended from the\ndisciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the\nfortune cookie).\nOf course the opinion\xe2\x80\x99s showy profundities are often profoundly incoherent. \xe2\x80\x9cThe nature\nof marriage is that, through its enduring bond, two persons together can find other freedoms,\nsuch as expression, intimacy, and spirituality.\xe2\x80\x9d (Really? Who ever thought that intimacy and\nspirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom\nof Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression,\nsure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state\nconstricts, rather than expands, what one can prudently say.) Rights, we are told, can \xe2\x80\x9crise ...\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c138 Religion in the Law\nfrom a better informed understanding of how constitutional imperatives define a liberty that\nremains urgent in our own era.\xe2\x80\x9d (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty\n[never mind], give birth to a right?) And we are told that, \xe2\x80\x9c[i]n any particular case,\xe2\x80\x9d either the\nEqual Protection or Due Process Clause \xe2\x80\x9cmay be thought to capture the essence of [a] right in a\nmore accurate and comprehensive way,\xe2\x80\x9d than the other, \xe2\x80\x9ceven as the two Clauses may converge\nin the identification and definition of the right.\xe2\x80\x9d (What say? What possible \xe2\x80\x9cessence\xe2\x80\x9d does substantive due process \xe2\x80\x9ccapture\xe2\x80\x9d in an \xe2\x80\x9caccurate and comprehensive way\xe2\x80\x9d? It stands for nothing\nwhatever, except those freedoms and entitlements that this Court really likes. And the Equal\nProtection Clause, as employed today, identifies nothing except a difference in treatment that\nthis Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two\nclauses \xe2\x80\x9cconverge in the identification and definition of [a] right,\xe2\x80\x9d that is only because the majority\xe2\x80\x99s likes and dislikes are predictably compatible.) I could go on. The world does not expect\nlogic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The\nstuff contained in today\xe2\x80\x99s opinion has to diminish this Court\xe2\x80\x99s reputation for clear thinking and\nsober analysis\xe2\x80\xa6.\nJustice THOMAS, with whom Justice SCALIA joins, dissenting.\n\xe2\x80\xa6Aside from undermining the political processes that protect our liberty, the majority\xe2\x80\x99s\ndecision threatens the religious liberty our Nation has long sought to protect.\nThe history of religious liberty in our country is familiar: Many of the earliest immigrants\nto America came seeking freedom to practice their religion without restraint. \xe2\x80\xa6 Many of these\nhavens were initially homogenous communities with established religions. . By the 1780\xe2\x80\x99s, however, \xe2\x80\x9cAmerica was in the wake of a great religious revival\xe2\x80\x9d marked by a move toward free\nexercise of religion. Every State save Connecticut adopted protections for religious freedom in\ntheir State Constitutions by 1789 and, of course, the First Amendment enshrined protection for\nthe free exercise of religion in the U.S. Constitution. But that protection was far from the last\nword on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See,\ne.g., Religious Freedom Restoration Act of 1993, 42 U.S.C. \xc2\xa7 2000bb et seq.\nNumerous amici\xe2\x80\x94even some not supporting the States\xe2\x80\x94have cautioned the Court that its\ndecision here will \xe2\x80\x9chave unavoidable and wide-ranging implications for religious liberty.\xe2\x80\x9d \xe2\x80\xa6 In\nour society, marriage is not simply a governmental institution; it is a religious institution as well.\nToday\xe2\x80\x99s decision might change the former, but it cannot change the latter. It appears all but\ninevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.\nThe majority appears unmoved by that inevitability. It makes only a weak gesture toward\nreligious liberty in a single paragraph. And even that gesture indicates a misunderstanding of\nreligious liberty in our Nation\xe2\x80\x99s tradition. Religious liberty is about more than just the protection\nfor \xe2\x80\x9creligious organizations and persons ... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.\xe2\x80\x9d Religious liberty is about freedom of action in\nmatters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.\nAlthough our Constitution provides some protection against such governmental restrictions\non religious practices, the People have long elected to afford broader protections than this\nCourt\xe2\x80\x99s constitutional precedents mandate. Had the majority allowed the definition of marriage\nto be left to the political process\xe2\x80\x94as the Constitution requires\xe2\x80\x94the People could have considered the religious liberty implications of deviating from the traditional definition as part of their\ndeliberative process. Instead, the majority\xe2\x80\x99s decision short-circuits that process, with potentially\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 139\nruinous consequences for religious liberty\xe2\x80\xa6.\nPerhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the \xe2\x80\x9cdignity\xe2\x80\x9d of\nsame-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no\n\xe2\x80\x9cdignity\xe2\x80\x9d Clause, and even if it did, the government would be incapable of bestowing dignity.\nHuman dignity has long been understood in this country to be innate. When the Framers\nproclaimed in the Declaration of Independence that \xe2\x80\x9call men are created equal\xe2\x80\x9d and \xe2\x80\x9cendowed\nby their Creator with certain unalienable Rights,\xe2\x80\x9d they referred to a vision of mankind in which\nall humans are created in the image of God and therefore of inherent worth. That vision is the\nfoundation upon which this Nation was built.\nThe corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the\ngovernment allowed them to be enslaved. Those held in internment camps did not lose their\ndignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away\xe2\x80\xa6.\nJustice ALITO, with whom Justice SCALIA and Justice THOMAS join, dissenting.\n\xe2\x80\xa6Attempting to circumvent the problem presented by the newness of the right found in\nthese cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying\nthat right to same-sex couples. This reasoning is dependent upon a particular understanding of\nthe purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who\nchoose to marry. Marriage provides emotional fulfillment and the promise of support in times\nof need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It\nis for these reasons, the argument goes, that States encourage and formalize marriage, confer\nspecial benefits on married persons, and also impose some special obligations. This understanding of the States\xe2\x80\x99 reasons for recognizing marriage enables the majority to argue that same-sex\nmarriage serves the States\xe2\x80\x99 objectives in the same way as opposite-sex marriage.\nThis understanding of marriage, which focuses almost entirely on the happiness of persons\nwho choose to marry, is shared by many people today, but it is not the traditional one. For\nmillennia, marriage was inextricably linked to the one thing that only an opposite-sex couple\ncan do: procreate.\nAdherents to different schools of philosophy use different terms to explain why society\nshould formalize marriage and attach special benefits and obligations to persons who marry.\nHere, the States defending their adherence to the traditional understanding of marriage have\nexplained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike\nother fulfilling human relationships, in order to encourage potentially procreative conduct to\ntake place within a lasting unit that has long been thought to provide the best atmosphere for\nraising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.\nIf this traditional understanding of the purpose of marriage does not ring true to all ears\ntoday, that is probably because the tie between marriage and procreation has frayed. Today, for\ninstance, more than 40% of all children in this country are born to unmarried women. This\ndevelopment undoubtedly is both a cause and a result of changes in our society\xe2\x80\x99s understanding\nof marriage.\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c140 Religion in the Law\nWhile, for many, the attributes of marriage in 21st-century America have changed, those\nStates that do not want to recognize same-sex marriage have not yet given up on the traditional\nunderstanding. They worry that by officially abandoning the older understanding, they may\ncontribute to marriage\xe2\x80\x99s further decay. It is far beyond the outer reaches of this Court\xe2\x80\x99s authority\nto say that a State may not adhere to the understanding of marriage that has long prevailed, not\njust in this country and others with similar cultural roots, but also in a great variety of countries\nand cultures all around the globe\xe2\x80\xa6.\nToday\xe2\x80\x99s decision usurps the constitutional right of the people to decide whether to keep or\nalter the traditional understanding of marriage. The decision will also have other important\nconsequences.\nIt will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the\ncourse of its opinion, the majority compares traditional marriage laws to laws that denied equal\ntreatment for African\xe2\x80\x93Americans and women. The implications of this analogy will be exploited\nby those who are determined to stamp out every vestige of dissent.\nPerhaps recognizing how its reasoning may be used, the majority attempts, toward the end\nof its opinion, to reassure those who oppose same-sex marriage that their rights of conscience\nwill be protected. We will soon see whether this proves to be true. I assume that those who cling\nto old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they\nrepeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.\nThe system of federalism established by our Constitution provides a way for people with\ndifferent beliefs to live together in a single nation. If the issue of same-sex marriage had been left\nto the people of the States, it is likely that some States would recognize same-sex marriage and\nothers would not. It is also possible that some States would tie recognition to protection for\nconscience rights. The majority today makes that impossible. By imposing its own views on the\nentire country, the majority facilitates the marginalization of the many Americans who have\ntraditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think\nthat turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and\nlasting wounds\xe2\x80\xa6.\n\nObergefell v. Hodges, 576 U.S. 644 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 141\n\nPart Three: The Establishment Clause\nThe previous two Parts of this section present cases that deal with the \xe2\x80\x9cestablishment\xe2\x80\x9d of religion in a general sense. Those disputes involved laws and policies rooted\nin religion but did not involve the establishment clause of the Constitution either because the parties did not raise claims under that clause or because the courts chose to\ntake alternative analytical approaches.\nThe cases in this Part, however, feature claims specifically arising under the establishment clause. These are \xe2\x80\x9cThe Establishment Clause Cases\xe2\x80\x9d (or at least some of\nthem), if you will.\nThe establishment clause is the first half of the first sentence of the First Amendment, which reads: \xe2\x80\x9cCongress shall make no law respecting an establishment of religion.\xe2\x80\x9d It says nothing more and offers no definition for the terms \xe2\x80\x9crespecting,\xe2\x80\x9d \xe2\x80\x9cestablishment,\xe2\x80\x9d or \xe2\x80\x9creligion.\xe2\x80\x9d This flummoxing vaguery has created significant and ongoing\ninterpretive conflicts among lawyers, academics, historians, and, most importantly,\njudges. The Supreme Court has drifted from one theory of interpretation to another\nand back again, has made strict statements of principle and then abandoned them, has\nconcocted detailed tests and then ignored them, and has even issued conflicting decisions on the same topic on the same day. In 1984, Justice William Brennan understatedly confessed that \xe2\x80\x9cthe compact phrase\xe2\x80\x9d of the establishment clause had \xe2\x80\x9cproven difficult to apply.\xe2\x80\x9d1 In 1990, Professor Stephen Carter charitably called the Court\xe2\x80\x99s cumulative approach to the clause a \xe2\x80\x9cmess.\xe2\x80\x9d2 No unifying clarity has been achieved since\nthen.\nMost of the differing approaches to interpreting and applying the clause that have\nemerged over the decades are explained and debated at length by the justices in the\ncases excerpted below. Some of the justices take hard lines early on and stick to them\nfor years. Others expediently drift from one approach to another with little concern\nfor consistency. Most agree that the clause should be incorporated to the states but\nsome do not. Some believe the clause demands strict separation of religious and governmental matters while others believe it does nothing more than prohibit the national\ngovernment from interfering in churches established by the states, or from coercively\ncompelling membership in a national church. Most fall somewhere between these two\nextremes, arguing for \xe2\x80\x9cneutrality\xe2\x80\x9d but allowing significant religious presence in government proceedings, policy, and presentation.\nThe United States has never attempted to establish a national church, and no states\ncurrently maintain established churches of their own. Establishment clause cases deal\nwith less extreme government action such as indirect financial assistance to religious\ngroups or participants, customary or compelled religious rituals in public schools and\nlegislative proceedings, the erection or maintenance of religious displays on public\nproperty, and, before most of them were phased out, so-called \xe2\x80\x9cblue laws\xe2\x80\x9d that required businesses to close on Sundays.\n\n1\n2\n\nLynch v. Donnelly, 456 U.S. 668, 694 (1984) (Brennan, dissenting) (excerpted below).\nStephen L. Carter, The Establishment Clause Mess, 69 Or. L. Rev. 495 (1990).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c142 Religion in the Law\n\nThe Court first incorporated the establishment clause to the states in 1947 in Everson v. Board of Education. At the time, New Jersey funded a transportation subsidy\nfor children to ride city buses to school, even if the schools they attended were religious.\nArch Everson, a resident of Ewing Township, sued under the establishment clause, arguing that many of the students using the subsidy attended Catholic private schools\nand therefore the government was unconstitutionally funding religion.\nWriting for a narrow majority, Justice Hugo Black favorably referenced Thomas\nJefferson\xe2\x80\x99s famous Letter to the Danbury Baptists and declared \xe2\x80\x9cThe First Amendment\nhas erected a wall between church and state. That wall must be kept high and impregnable.\xe2\x80\x9d Neither the federal government nor the states could levy a tax \xe2\x80\x9cin any amount,\nlarge or small\xe2\x80\x9d to support churches or religious activities, Black wrote. Nevertheless,\nthe Court concluded that New Jersey\xe2\x80\x99s transportation subsidy was neutral \xe2\x80\x93 all children\ncould use the money, regardless of what kind of school they attended \xe2\x80\x93 and it was a\nrational policy within the state\xe2\x80\x99s police power. In dissent, Justice Wiley Rutledge agreed\nwith the majority\xe2\x80\x99s general principles but argued the state subsidy should be invalidated\nunder them. According to Rutledge, taxes paid the subsidy, and the subsidy enabled\nreligious teaching by making it possible for the students to attend religious schools. It\nmay not have been a direct payment to churches but still they benefited from taxpayer\nfunds.\nEverson sparked more than just a debate about interpretation and application; it\nalso sparked a wave of litigation. With the establishment clause incorporated, and taxpayers like Everson granted standing, plaintiffs could now attack religious state laws\nand local ordinances with the federal constitution. And, it turned out, state laws and\nlocal ordinances were awash in religion. Key examples were so-called \xe2\x80\x9cblue laws\xe2\x80\x9d that\nrequired all businesses to close on Sundays. Still on the books and enforced in the midtwentieth century, these restrictions descended from English and colonial blasphemy\nlaws that mandated public recognition of Sunday as the Christian holy day. By the\n1960s, some states had amended the laws to remove explicit invocations of scripture\nand Biblical doctrine while others had not. Regardless, the closing laws\xe2\x80\x99 religious origin\nwas clear \xe2\x80\x93 the official day of rest was Sunday because that was what the Christian\nBible said it should be.\nNot everyone recognizes Sunday as the Sabbath, however. Atheists and other nonreligious people of course do not, but neither do Jews, Muslims, Seventh-day Adventists, Buddhists, Hindus, and members of other faiths. Even many Christians are willing\nto work on Sunday regardless of the day\xe2\x80\x99s religious significance. However, the laws\nforced non-Christian and otherwise non-observant businesses to close on days they\nwould prefer to be open and making money. For Jews and other Saturday Sabbath\nobservers, that meant their stores had to close the entire weekend, when shopping volume was highest. And, the laws did more than just stifle company revenue. They also\nimposed fines for violation.\nIn 1961, the Supreme Court simultaneously heard four cases challenging state blue\nlaws. One of those cases, McGowan v. Maryland, arose from the conviction of seven\ngeneral store employees for selling goods on Sunday.3 The employees challenged the\nAnother of those four cases, Braunfeld v. Bown, 366 U.S. 599 (1961), is excerpted below in\nthe fourth section, Free Exercise.\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 143\n\nMaryland closing law on establishment grounds, arguing that its clearly religious origin\nmade enforcement unconstitutional. The Court disagreed. Chief Justice Earl Warren\nwrote for a six-justice majority that \xe2\x80\x9cas presently written and administered,\xe2\x80\x9d the closing laws had evolved to become \xe2\x80\x9cof a secular, rather than of a religious, character.\xe2\x80\x9d\nGranted, the origins of the laws were blatantly religious. Warren\xe2\x80\x99s opinion exhaustively\ndetailed their history. But, he wrote, the laws also protected the health and welfare of\nthe hard-working public, and had been embraced as good policy by labor advocates\nand social scientists along with religious believers. \xe2\x80\x9c[T]he statutes\xe2\x80\x99 present purpose and\neffect is not to aid religion, but to set aside a day of rest and recreation.\xe2\x80\x9d\nIn a vigorous dissent to McGowan and the other three religious liberty cases decided that day, Justice William Douglas wrote that the Court should not so casually\ndismiss the laws\xe2\x80\x99 religious character. The states did not randomly choose Sunday as the\nday of rest because that day happened to be convenient \xe2\x80\x93 they chose it because scripture\ncommanded it. And, the choice of Sunday imposed unique economic harm and criminal sanction upon observers of different Sabbath days for otherwise lawful behavior.\nDouglas rejected the idea that the explicitly religious closing laws could be constitutionally sterilized simply through custom and the passage of time.\nThe constitutional retconning of Sunday closing laws in McGowan may be why\nchallenges to other morality regulations are not more often brought under the establishment clause. Like the closing laws, bans on other religiously sinful behavior such as\ngambling, prostitution, and sodomy have alternative, secular justifications and have\nbeen around for a very long time.\nThe first decade and a half of the establishment clause\xe2\x80\x99s incorporation was a mixed\nbag. The Court ruled for the government in Everson and the McGowan batch of cases,\nallowing indirect financial support for religious schools and the enforcement of religious laws that had secular justifications. It ruled against the government, however, in\nMcCollum v. Board of Education and Zorach v. Clauson, two cases that involved religious teaching and public schools.4 In McCollum, students were required to attend\nweekly classes taught by religious instructors. In Zorach, the schools allowed some\nstudents to leave to attend religious services while they required the rest to stay. The\nCourt in both cases struck down the state policies as unconstitutional under the establishment clause.\nA year after McGowan, the Supreme Court went back to school. In Engel v. Vitale,\nteachers at a public school district in New York read aloud a prayer to students each\nmorning.5 The prayer, provided to them by the state government, was clearly religious:\n\xe2\x80\x9cAlmighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.\xe2\x80\x9d Justice Hugo Black, the\nauthor of the Court\xe2\x80\x99s opinion in Everson, wrote for a 6-1 majority striking down the\nofficial prayer. Despite \xe2\x80\x9cthe history of man\xe2\x80\x9d being \xe2\x80\x9cinseparable from the history of\nreligion,\xe2\x80\x9d the school prayer was \xe2\x80\x9ca solemn avowal of divine faith\xe2\x80\x9d and thus a violation\nof the establishment clause. Black\xe2\x80\x99s history-minded opinion cited no other cases for\n\nMcCollum v. Board of Education, 333 U.S. 203 (1948); and Zorach v. Clauson, 343 U.S.\n306 (1952).\n5 370 U.S. 421 (1962).\n4\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c144 Religion in the Law\n\nprecedent, and offered lower courts little guidance for addressing other forms of school\nprayer. New York\xe2\x80\x99s case was relatively unique.\nDifferent forms of school prayer\nabounded. In the late 1950s, Ellery\nSchempp was a student at Abington\nHigh School in Pennsylvania. He and\nhis parents were Unitarian Universalists, members of an inclusive religious\nfaith with Christian origins but non-orthodox beliefs. At the time, Pennsylvania law required daily, student-led bible\nreadings in all public schools, including\nAbington High. The Schempps objected and filed suit, arguing that the es- Ellery Schempp (second right) and family at\nthe Supreme Court.\ntablishment clause prohibited such - Photographer Unknown\nmandated religious observance, even\nthough the daily readings were not from a government-written prayer like in Engel v.\nVitale. The Court agreed. Writing for an 8-1 majority, Justice Tom Clark affirmed the\nCourt\xe2\x80\x99s establishment precedent and concluded that student-led Bible readings (as well\nas student recitation of the Lord\xe2\x80\x99s Prayer), though conducted \xe2\x80\x9cwithout comment\xe2\x80\x9d by\nschool administrators, was a clear violation of the establishment clause.\nAbington solidified Engel and launched a new era of aggressive establishment\nclause enforcement. The Court went on to strike down other creative forms of statesponsored religious prayer, observance, and doctrine in schools. In Wallace v. Jaffree\nthe Court even struck down a required moment of silence because the Alabama legislature had no secular purpose for it \xe2\x80\x93 the requirement was designed to defy Engel and\nAbington and subtly re-introduce prayer into public schools.6 The Court also struck\ndown Louisiana\xe2\x80\x99s Scopes-like attempt to diminish the influence of evolutionary theory\nby requiring public school teachers to teach \xe2\x80\x9ccreation science\xe2\x80\x9d as an equal alternative.7\nIn Lee v. Wiesman, the Court ruled that a public school system could not invite members of the clergy to give prayers during graduation ceremonies.8 And, in Santa Fe Independent School District v. Doe, the Court prohibited a public school district from\n\xe2\x80\x9cpermitting student-led, student-initiated prayer at football games.\xe2\x80\x9d9 The students\nwere not truly praying on their own initiative \xe2\x80\x93 the school district had created several\npolicies designed to encourage and facilitate the activity.\nIn each of these cases but Lee, the Court applied a three-prong establishment clause\ntest first articulated in Lemon v. Kurtzman, another education case.10 In an effort to\npromote public school curriculum in private schools, both Rhode Island and Pennsylvania reimbursed religious private schools for the salaries of their teachers who taught\n\xe2\x80\x9conly courses offered in the public schools, using only materials used in the public\n\n472 U.S. 38 (1985).\nEdwards v. Aguillard, 482 U.S. 578 (1987).\n8 505 U.S. 577 (1992).\n9 530 U.S. 290 (2000).\n10 403 U.S. 602 (1971).\n6\n7\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 145\n\nschools\xe2\x80\x9d and who did not otherwise teach courses in religion. Noting that the sole\nbeneficiaries of this policy were Roman Catholic schools, the Court struck down the\nsubsidies. Writing for the Court, Chief Justice Warren Burger compiled a three-part test\nfor use by courts to sniff out establishment clause violations:\nFirst, the statute must have a secular legislative purpose; second, its\nprincipal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion.\nDespite Burger\xe2\x80\x99s caveat that \xe2\x80\x9ctotal separation is not possible in an absolute sense\xe2\x80\x9d\nbecause \xe2\x80\x9csome relationship between government and religious organizations is inevitable,\xe2\x80\x9d the Lemon Test, when applied consistently, could create the \xe2\x80\x9chigh wall\xe2\x80\x9d between church and state for which the Supreme Court aspired in Everson.\nThe Lemon Test was not consistently applied, however, not even by Chief Justice\nBurger, its author. In Lynch v. Donnelly, the Court confronted the town Christmas\ndisplay of Pawtucket, Rhode Island. The display, which included seasonal symbols\nsuch as Santa Clause, also included a cr\xc3\xa8che, or Nativity scene. By a very slim majority,\nthe Court allowed the town to include Baby Jesus and his esteemed entourage as the\nonly religious reference in the display. Extolling the historical importance of religious\nobservance in society, Chief Justice Burger diminished his own previous ruling, writing,\n\xe2\x80\x9cWe have repeatedly emphasized our unwillingness to be confined to any single test or\ncriterion in this sensitive area.\xe2\x80\x9d Burger gave lip service to the Lemon prongs but generously concluded that the city\xe2\x80\x99s prominent display of a divine symbol did not \xe2\x80\x9cadvance\xe2\x80\x9d\nreligion. The town erected it, the Court concluded, for the secular purpose of promoting holiday commerce.\nJustice William Brennan wrote a comprehensive dissent, taking Burger to task for\nhis permissive application of Lemon. Brennan also contested Burger\xe2\x80\x99s reliance on the\nhistory and tradition of religious observance. A long historical practice could insulate\notherwise overt religious displays, Burger reasoned.\nBrennan\xe2\x80\x99s beef with Burger turned on the latter\xe2\x80\x99s ideological approach to constitutional interpretation. In the late 1970s and early 1980s, socially conservative academics\nand judges began to promote and apply an interpretive doctrine they called \xe2\x80\x9coriginalism.\xe2\x80\x9d11 Though different iterations predated these years and new versions eventually\ndeveloped, the basic premise of originalism is this: where the text of the constitution is\nvague, judges should interpret it according to the \xe2\x80\x9coriginal meaning\xe2\x80\x9d or \xe2\x80\x9coriginal understanding\xe2\x80\x9d of the words at the time they were written in order to restrain themselves\nand avoid the kind of liberal \xe2\x80\x9cjudicial activism\xe2\x80\x9d that led to divisive decisions such as\nRoe v. Wade. They should not apply contemporary meanings or impose their own\ncontemporary values on the Constitution. Thus for the establishment clause, the word\n\xe2\x80\x9cestablishment\xe2\x80\x9d should be interpreted to mean what it meant in 1791 when it was\nadopted. If the Framers and the First Congress believed government could observe and\npromote Christianity without violating the First Amendment, all future generations\nshould be bound to their interpretation. Burger applied this approach in Lynch and in\n\n11\n\nSteven G. Calabresi (ed.), Originalism: A Quarter-Century of Debate (Regnery 2007).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c146 Religion in the Law\n\nother cases such as Marsh v. Chambers, and later members of the Court including Antonin Scalia, Clarence Thomas, and Neil Gorsuch have taken up the originalist mantle\nin various forms.\nJustice Brennan rejected this approach, writing that the Court could not discern a\nconsistent original understanding of the establishment clause because many of its contemporaries disagreed on what it meant. Key people like Thomas Jefferson, James\nMadison, John Adams, and George Washington all held differing opinions about how\nmuch separation between church and state was required. Because there was no historical consensus, Brennan argued, interpretation must include contemporary judgment,\nand in his contemporary judgment, the Pawtucket cr\xc3\xa8che was an obvious establishment clause violation. The Nativity scene was \xe2\x80\x9ca mystical re-creation of an event that\nlies at the heart of Christian faith\xe2\x80\x9d whose religious character was obvious to everyone\nwho viewed it and thus it obviously failed the Lemon Test.\nThe swing vote in Lynch was Justice Sandra Day O\xe2\x80\x99Connor. O\xe2\x80\x99Connor criticized\nthe Lemon Test and offered a modification that looked only for \xe2\x80\x9cexcessive entanglement\xe2\x80\x9d between government and religion or open \xe2\x80\x9cendorsement or disapproval of religion.\xe2\x80\x9d The cr\xc3\xa8che, in her opinion, was neither a product of entanglement nor an open\nendorsement because, in the context of \xe2\x80\x9cthe overall holiday setting,\xe2\x80\x9d the city did not\nintend to communicate a religious message nor did it actually convey one. The city\xe2\x80\x99s\ndisplay was a benign \xe2\x80\x9cacknowledgment\xe2\x80\x9d of religion, not an endorsement, used to promote the Christmas shopping season.\nThe Court\xe2\x80\x99s internal debate over Lemon and tradition continued long after Lynch,\ntaken up by justices who joined many years later. The mixed and conflicting results of\nthis debate are perhaps best illustrated by cases dealing with a different kind of public\nreligious display: the Ten Commandments.\nIn 1978, Kentucky passed a law requiring the prominent display of the Ten Commandments in all public school classrooms. In apparent anticipation of constitutional\nattack, the legislature also mandated the following small print disclaimer to appear\nwith each display: \xe2\x80\x9cThe secular application of the Ten Commandments is clearly seen\nin its adoption as the fundamental legal code\nof Western Civilization and the Common Law\nof the United States.\xe2\x80\x9d As an additional constitutional buffer, the law required all displays to\nbe paid for by private donations, rather than\nby the state\xe2\x80\x99s general fund.\n\nWilliam Stone (left) with Dolly Parton\n- ACLU of Kentucky\n12\n\nKentucky Civil Liberties Union lawyer\nWilliam Stone filed suit, arguing that Kentucky\xe2\x80\x99s law violated the establishment clause.\nA state trial court rejected his request for injunction, and the Kentucky Supreme Court affirmed by default in an equally divided per curiam ruling.12 Stone persisted, and sought review by the U.S. Supreme Court.\n\nStone v. Graham, 599 S.W.2d 157 (Ky. 1980).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 147\n\nIn a brief per curiam opinion of their own (issued without merits briefs or oral\nargument), the Supreme Court applied the Lemon Test and agreed with Stone that the\npurpose of the Kentucky law was \xe2\x80\x9cplainly religious in nature,\xe2\x80\x9d and no disclaimer nor\nvoluntary funding scheme made any difference. The Ten Commandments are \xe2\x80\x9cundeniably a sacred text in the Jewish and Christian faiths,\xe2\x80\x9d the Court held, and they were\ndisplayed by themselves, not integrated into \xe2\x80\x9can appropriate study of history, civilization, ethics, comparative religion, or the like.\xe2\x80\x9d The desired effect of posting them was\nto \xe2\x80\x9cinduce the schoolchildren to read, mediate upon, perhaps to venerate and obey\xe2\x80\x9d\nthem. Thus, the law violated the establishment clause.\nAttacking the ruling on procedural and doctrinal grounds, Justice William\nRehnquist chastised the Court for striking down the Kentucky law \xe2\x80\x9cwith no support\nbeyond its own ipse dixit.\xe2\x80\x9d13 He argued that the Court should have deferred to the\nKentucky legislature\xe2\x80\x99s disclaimer and trusted them that they had a secular purpose for\nprominently displaying the Ten Commandments in each classroom. Further, he wrote,\n\xe2\x80\x9cthe Establishment Clause does not require that the public sector be insulated from all\nthings which may have a religious significance or origin.\xe2\x80\x9d Though alone in this opinion\nin 1980, important ideological allies would soon join Justice Rehnquist on the Court.\nFast forward to 2005. Two new Ten Commandments cases found their way to the\nSupreme Court. In one case, Van Orden v. Perry, the Commandments appeared on a\nlarge stone monument outside the Texas state capitol building. In the other case,\nMcCreary County v. ACLU, two Kentucky counties had posted the Commandments\non the walls of their courthouses, first by themselves and later among other documents.\nBy now, Justice Rehnquist had become Chief Justice, and new members such as\nAntonin Scalia, Clarence Thomas, and Anthony Kennedy had joined the Court.\nRehnquist\xe2\x80\x99s old nemesis William Brennan was gone, as too were his liberal allies Thurgood Marshall and Harry Blackmun, all of whom had retired by the mid-1990s. On\nquestions of establishment, the Court in 2005 was more intensely divided than the\nCourt that had summarily applied the Lemon Test in Stone v. Graham in 1980.\nVan Orden and McCreary County made this division obvious \xe2\x80\x93 issued on the same\nday, the decisions went opposite ways. In Van Orden, the Court upheld the display of\nthe Ten Commandments in Texas as a benign acknowledgment of shared tradition\ninsulated by several acres of grass and the passing of time. In McCreary County, however, a different majority of the Court ruled that the Kentucky counties violated the\nestablishment clause when they purposely hung the Ten Commandments in their courthouse hallways.\nIn McCreary County, Justice David Souter applied the Lemon Test, concluding\nthat the counties\xe2\x80\x99 purpose for the Ten Commandments displays was religious, despite\ntheir later attempts to diversify the displays with other historical documents. Souter\nrejected the counties\xe2\x80\x99 claims that they sought only to provide visitors with a survey of\nimportant social and governmental documents when they posted the Commandments\nfirst alone and then in a group. \xe2\x80\x9cThe secular purpose required\xe2\x80\x9d by the Lemon Test,\n\n13\n\n\xe2\x80\x9cHe said it himself,\xe2\x80\x9d used to describe an unproven assertion.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c148 Religion in the Law\n\nSouter wrote, \xe2\x80\x9chas to be genuine, not a sham, and\nnot merely secondary to religious objective.\xe2\x80\x9d Unconvinced by their excuses, Souter wrote that the\ncounties\xe2\x80\x99 argument \xe2\x80\x9cjust bucks common sense.\xe2\x80\x9d As\nthe Court had found in Stone, the Court in\nMcCreary held that the Ten Commandments were\nprofoundly religious and posting them served a necessarily religious purpose. Justice Scalia dissented.\nHe questioned the coherence and precedential force\nof the Lemon Test and rejected the popular idea\nVan Orden\nthat the establishment clause required religious Thomas\nDuke\nUniversity\nSchool of Law\n\xe2\x80\x9cneutrality.\xe2\x80\x9d14 The government was free to\nacknowledge religious faith, Scalia argued, even to the point of total \xe2\x80\x9cdisregard\xe2\x80\x9d for\nthe beliefs of polytheists and atheists, their equal citizenship notwithstanding. As he\nsaw it, the counties were well within their power to post the displays.\nMeanwhile, in Van Orden, the Court allowed the Ten Commandments to remain\noutside the Texas capitol building in Austin. In a plurality opinion joined by Justices\nScalia, Thomas, and Kennedy, Chief Justice Rehnquist declined to apply the Lemon\nTest and instead opted for a historical approach more similar to Lynch and Marsh v.\nChambers. In 1961, a private group had commissioned the stone monument at issue,\nand it had sat outside among several other displays \xe2\x80\x93 without protest \xe2\x80\x93 until Thomas\nVan Orden\xe2\x80\x99s lawsuit more than forty years later. Such a \xe2\x80\x9cpassive monument,\xe2\x80\x9d\nRehnquist said, was similar to the Supreme Court\xe2\x80\x99s own inclusion of Moses and other\nreligious figures on the both the exterior of the building and the interior of the courtroom. Justice Souter dissented, essentially re-stating the approach he used in McCreary\nCounty. He argued that though the Texas monument did not share the same dodgy\nlegislative purpose as the displays in Kentucky, a fair application of the Lemon Test\nwould reach the same conclusion: an establishment clause violation.\nThe \xe2\x80\x9cswing\xe2\x80\x9d vote in both cases came from an unusual person: Justice Stephen\nBreyer. Though Breyer typically voted with the \xe2\x80\x9cliberal\xe2\x80\x9d wing of the Court in socially\ndivisive cases (including McCreary County), in Van Orden he joined the conservatives\n(in the judgment only) on pragmatic grounds. The monument had been there a long\ntime, sat outside with others, and was not an overt attempt to impose religion on passers-by. Breyer declined to apply the Lemon Test, noting, \xe2\x80\x9cNo single mechanical formula \xe2\x80\xa6 can accurately draw the line in every case.\xe2\x80\x9d On balance, with all context considered, the Texas monument did not seem to him to be the kind of display that violated\nthe establishment clause.\nFinally, this section concludes with an establishment subject to which the Court\nhas never applied the Lemon Test: legislative prayer. The first is Marsh v. Chambers,\nreferenced above. The second, Town of Greece v. Galloway, extends Marsh but illustrates another establishment clause divide that has developed among members of the\nJustice Scalia had previously compared the Lemon Test to \xe2\x80\x9csome ghoul in a late-night\nhorror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly\nkilled and buried\xe2\x80\x9d in Lamb\xe2\x80\x99s Chapel v. Center Moriches Union Free School District, 508\nU.S. 384 (1993) (Scalia, concurring).\n14\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 149\n\nCourt in the years since, though there is, overall, a more permissive consensus on the\nestablishment clause as a whole.\nIn 1970, Omaha voters elected iconoclastic barber-turned-political activist Ernie Chambers to the\nNebraska Legislature. In addition to being its only\nBlack member, he was also its only open atheist\n(and the only open atheist in any state legislature as\nrecently as 2015).15 In 1980, annoyed by the Legislature\xe2\x80\x99s employment of a Presbyterian minister as its\nofficial chaplain and by the customary recitation of\na prayer before every session, Chambers sued. IniErnie Chambers\ntially, he won when the Eighth Circuit Court of Ap- Lincoln Star Journal\npeals applied the Lemon Test and ruled that the employment of the chaplain and the prayers were religious in purpose and thus violated\nthe establishment clause.16\nThe Supreme Court reversed. Once again, Chief Justice Warren Burger declined to\napply his own Lemon Test, instead analyzing legislative prayer as a unique historical\npractice that deserved special treatment. After all, he noted, the First Congress itself\nhired chaplains in 1789 and opened each session with prayers, and many states followed suit from then until the present day. Burger wrote, \xe2\x80\x9cin light of this unbroken\nhistory of more than 200 years, there can be no doubt that the practice of opening\nlegislative prayers has become part of the fabric of our society.\xe2\x80\x9d Yes, Nebraska had\nemployed only a Presbyterian chaplain. And yes, the prayers he gave were exclusively\n\xe2\x80\x9cJudeo-Christian.\xe2\x80\x9d However, that did not make the practice unconstitutional, Burger\nexplained. The Legislature had sometimes heard prayers from guest chaplains and\nPalmer had removed explicit references to Christ from his prayers (after protest from\nChambers). Thus Nebraska had not \xe2\x80\x9cadvance[d] the beliefs of a particular church\xe2\x80\x9d\nand had not violated the establishment clause. The Legislature was not compelled to\neliminate all religious ritual from its proceedings and atheists like Chambers would just\nhave to get over it.\nJustice William Brennan dissented, as he regularly did to the establishment clause\nrulings of Chief Justice Burger. He objected to the Court\xe2\x80\x99s deference to the First Congress. Clearly, they too had violated the establishment clause. Nebraska was not off the\nhook just because violating the First Amendment had become routine among legislatures nationwide. Brennan argued that legislative prayer clearly breached \xe2\x80\x9cthe principles of neutrality and separation\xe2\x80\x9d required by the First Amendment by intruding on\n\xe2\x80\x9cthe right to conscience\xe2\x80\x9d of legislators, forcing all residents to \xe2\x80\x9csupport a religious\nexercise that may be contrary to their own beliefs,\xe2\x80\x9d and requiring the state to \xe2\x80\x9ccommit\nitself on fundamental theological issues.\xe2\x80\x9d Moreover, there was no reason to carve a\nspecial exception to the establishment clause for legislative prayer while striking down\nsimilar government endorsements of religion in other contexts, such as schools. If\nKarl Kurtz, \xe2\x80\x9cWho We Elect: The Demographics of State Legislatures,\xe2\x80\x9d State Legislatures\nMagazine (December 1, 2015), https://www.ncsl.org/research/about-state-legislatures/whowe-elect.aspx.\n16 Chambers v. Marsh, 675 F.2d 228 (CA8 1982).\n15\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c150 Religion in the Law\n\nprayer in government schools was unconstitutional, so too should be prayer in the halls\nof the legislature.\nBrennan\xe2\x80\x99s protest aside, the Supreme Court gave legislative prayer its stamp of approval in Marsh. Today, it remains common not just in Congress and state legislatures,\nbut in municipal government meetings as well, such as the monthly meetings of the\ntown board of Greece, New York. Between 1999 and 2010, that board opened each\nmeeting with a prayer given by a local clergy member selected by town employees from\na list of local churches. The majority of the prayers given during the meetings were\n\xe2\x80\x9cexplicitly Christian, and referred to Jesus or Jesus Christ.\xe2\x80\x9d17 Two atheist residents of\nGreece sued, arguing that the prayers were sectarian and coercive and thus an establishment clause violation.\nOnce again, the Supreme Court upheld the practice of legislative prayer. Writing\nfor a 5-4 majority, Justice Anthony Kennedy ignored the Lemon Test, affirmed Marsh,\nand rejected the argument that prayer in the more intimate and participatory setting of\na town meeting was coercive to non-believers. Reframing Marsh and obliquely rejecting Lemon, Kennedy wrote that the establishment clause \xe2\x80\x9cmust be interpreted by reference to historical practices and understandings\xe2\x80\x9d and not impose a test that would\n\xe2\x80\x9csweep away what has so long been settled.\xe2\x80\x9d Legislative prayer was not an exception\nto the rule, but well within it. \xe2\x80\x9cMarsh,\xe2\x80\x9d Kennedy said, \xe2\x80\x9cstands for the proposition that\nit is not necessary to define the precise boundary of the Establishment Clause where\nhistory shows that the specific practice is permitted.\xe2\x80\x9d According to the Court, the prayers in Greece and other town meetings had long persisted and were no more coercive\nthan were any others. Thus, they had not violated the establishment clause.\nJustice Elena Kagan wrote a lengthy dissent, attacking both the historically deferential test created by Justice Kennedy and the premise that the prayers were otherwise\nbenign. Kagan, in several hypotheticals, prodded her colleagues to consider the experience of non-Christians seeking a zoning change or some other legislative favor in\nmeetings like those in Greece. In such a small gathering, visible non-participation in the\nprayers would be obvious, and might alienate non-believers from board members\nwhose favor they sought. Citizens might feel compelled to play along in conflict with\ntheir beliefs and conscience. Justice Kagan argued that the establishment clause prohibited such pressure. Notably, she distinguished Marsh on that basis, and did not call\nfor its overrule. Legislative prayers in Congress and state legislatures were more detached from direct public participation, she said, thus they posed little risk of unconstitutional coercion like that in Greece.\n***\nThe Supreme Court has grown more deferential on establishment questions since\nTown of Greece. In 2019, a 7-2 majority ruled that a forty-foot Christian cross in the\nmiddle of a Maryland intersection did not violate the establishment clause.18 In American Legion v. American Humanist Association, Justice Samuel Alito listed all the previous cases that ignored the Lemon Test and then went on to ignore it some more,\nadopting instead a historical approach more similar to those used in Lynch, Marsh,\n\n17\n18\n\nGalloway v. Town of Greece, 732 F.Supp.2d 195, 203 (W.D.N.Y. 2010).\nAmerican Legion v. American Humanist Association, 139 S.Ct. 2067 (U.S. 2019).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 151\n\nVan Orden, and Town of Greece. \xe2\x80\x9cEven if the original purpose of a monument was\ninfused with religion,\xe2\x80\x9d Alito wrote for the Court, \xe2\x80\x9cthe passage of time may obscure\nthat sentiment.\xe2\x80\x9d Further, \xe2\x80\x9cwith sufficient time, religiously expressive monuments \xe2\x80\xa6\ncan become embedded features of a community\xe2\x80\x99s landscape and identity.\xe2\x80\x9d The cross in\nMaryland had been there for nearly a century and was part of a war memorial; therefore, the Court concluded that it posed no threat of establishment. Five members of\nthe Court, including Justice Elena Kagan, signed on to this Van Orden-like \xe2\x80\x9cit\xe2\x80\x99s not\nunconstitutional if you wait long enough\xe2\x80\x9d approach to the establishment clause\n(though she defended Lemon in a concurring opinion).\nMeanwhile, Justices Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas all\nagreed the cross was acceptable but argued the Court should overrule Lemon already\ninstead of just ignoring it repeatedly.\nOnly Justices Ruth Bader Ginsburg and Sonya Sotomayor dissented, arguing that\nby maintaining \xe2\x80\x9cthe foremost symbol of Christian faith\xe2\x80\x9d on a public highway, the government had unconstitutionally \xe2\x80\x9celevate[d] Christianity over other faiths.\xe2\x80\x9d Then Justice Ginsburg died in 2020, leaving only one member of the Court willing to enforce\nthe establishment clause against a gigantic Christian holy symbol erected on public\nland. The Court has not struck down a religious display under the establishment clause\nsince McCreary County v. ACLU in 2005 and may not again for many years to come.\nFurther Reading\nDonald L. Drakeman, Everson v. Board of Education and the Quest for the Historical\nEstablishment Clause, 49 Am. J. Legal Hist. 119 (2007).\nRichard H. Fallon, Tiers for the Establishment Clause, 166 U. Pa. L. Rev. 59 (2017).\nGregory Sisk and Michael Heise, Ideology \xe2\x80\x98All The Way Down\xe2\x80\x99? An Empirical Study\nof Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. 1201\n(2012).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c152 Religion in the Law\n330 U.S. 1\nSupreme Court of the United States\n\nEverson v. Board of Education\nFebruary 10, 1947\nMr. Justice BLACK delivered the opinion of the Court.\nA New Jersey statute authorizes its local school districts to make rules and contracts for the\ntransportation of children to and from schools. The appellee, a township board of education,\nacting pursuant to this statute authorized reimbursement to parents of money expended by them\nfor the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the\ncommunity to Catholic parochial schools. These church schools give their students, in addition\nto secular education, regular religious instruction conforming to the religious tenets and modes\nof worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.\nThe appellant, in his capacity as a district taxpayer, filed suit \xe2\x80\xa6 challenging the right of the\nBoard to reimburse parents of parochial school students. He contended that the statute and the\nresolution passed pursuant to it violated both the State and the Federal Constitutions\xe2\x80\xa6.\nThe only contention here is that the State statute and the resolution, in so far as they authorized reimbursement to parents of children attending parochial schools, violate the Federal\nConstitution [because] the statute and the resolution forced inhabitants to pay taxes to help\nsupport and maintain schools which are dedicated to, and which regularly teach, the Catholic\nFaith. This is alleged to be a use of State power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the\nstates\xe2\x80\xa6.\nThe New Jersey statute is challenged as a \xe2\x80\x9claw respecting an establishment of religion.\xe2\x80\x9d The\nFirst Amendment, as made applicable to the states by the Fourteenth, Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, commands that a state \xe2\x80\x9cshall make no law respecting an\nestablishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d These words of the First\nAmendment reflected in the minds of early Americans a vivid mental picture of conditions and\npractices which they fervently wished to stamp out in order to preserve liberty for themselves\nand for their posterity. Doubtless their goal has not been entirely reached; but so far has the\nNation moved toward it that the expression \xe2\x80\x9claw respecting an establishment of religion,\xe2\x80\x9d probably does not so vividly remind present-day Americans of the evils, fears, and political problems\nthat caused that expression to be written into our Bill of Rights. Whether this New Jersey law is\none respecting the \xe2\x80\x9cestablishment of religion\xe2\x80\x9d requires an understanding of the meaning of that\nlanguage, particularly with respect to the imposition of taxes\xe2\x80\xa6.\nA large proportion of the early settlers of this country came here from Europe to escape the\nbondage of laws which compelled them to support and attend government favored churches\xe2\x80\xa6.\nWith the power of government supporting them, at various times and places, Catholics had\npersecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted\nother Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade\nof belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to\nwhatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed.\nAmong the offenses for which these punishments had been inflicted were such things as speaking\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 153\ndisrespectfully of the views of ministers of government-established churches, nonattendance at\nthose churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes\nto support them.\nThese practices of the old world were transplanted to and began to thrive in the soil of the\nnew America. The very charters granted by the English Crown to the individuals and companies\ndesignated to make the laws which would control the destinies of the colonials authorized these\nindividuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. An exercise of this authority was accompanied by a repetition of many of the old world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience\nwent to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and\nwomen of varied faiths who happened to be in a minority in a particular locality were persecuted\nbecause they steadfastly persisted in worshipping God only as their own consciences dictated.\nAnd all of these dissenters were compelled to pay tithes and taxes to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and\nconsolidate the established faith by generating a burning hatred against dissenters.\nThese practices became so commonplace as to shock the freedom-loving colonials into a\nfeeling of abhorrence. The imposition of taxes to pay ministers\xe2\x80\x99 salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found\nexpression in the First Amendment. No one locality and no one group throughout the Colonies\ncan rightly be given entire credit for having aroused the sentiment that culminated in adoption\nof the Bill of Rights\xe2\x80\x99 provisions embracing religious liberty. But Virginia, where the established\nchurch had achieved a dominant influence in political affairs and where many excesses attracted\nwide public attention, provided a great stimulus and able leadership for the movement. The\npeople there, as elsewhere, reached the conviction that individual religious liberty could be\nachieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or\ngroup.\nThe movement toward this end reached its dramatic climax in Virginia in 1785\xe2\x80\x9486 when\nthe Virginia legislative body was about to renew Virginia\xe2\x80\x99s tax levy for the support of the established church. Thomas Jefferson and James Madison led the fight against this tax. Madison\nwrote his great Memorial and Remonstrance against the law. In it, he eloquently argued that a\ntrue religion did not need the support of law; that no person, either believer or non-believer,\nshould be taxed to support a religious institution of any kind; that the best interest of a society\nrequired that the minds of men always be wholly free; and that cruel persecutions were the\ninevitable result of government-established religions. Madison\xe2\x80\x99s Remonstrance received strong\nsupport throughout Virginia, and the Assembly postponed consideration of the proposed tax\nmeasure until its next session. When the proposal came up for consideration at that session, it\nnot only died in committee, but the Assembly enacted the famous \xe2\x80\x9cVirginia Bill for Religious\nLiberty\xe2\x80\x9d originally written by Thomas Jefferson. The statute enacted:\nThat no man shall be compelled to frequent or support any religious worship,\nplace, or ministry whatsoever, nor shall be enforced, restrained, molested, or\nburthened, in his body or goods, nor shall otherwise suffer on account of his\nreligious opinions or belief. . . .\nThis Court has previously recognized that the provisions of the First Amendment, in the\ndrafting and adoption of which Madison and Jefferson played such leading roles, had the same\nobjective and were intended to provide the same protection against governmental intrusion on\nreligious liberty as the Virginia statute. Reynolds v. United States, 98 U.S. at 164; Watson v.\nJones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342. Prior to the adoption of the Fourteenth\nAmendment, the First Amendment did not apply as a restraint against the states. Most of them\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c154 Religion in the Law\ndid soon provide similar constitutional protections for religious liberty. But some states persisted\nfor about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. In recent years, so far as the provision against the\nestablishment of a religion is concerned, the question has most frequently arisen in connection\nwith proposed state aid to church schools and efforts to carry on religious teachings in the public\nschools in accordance with the tenets of a particular sect. Some churches have either sought or\naccepted state financial support for their schools. Here again the efforts to obtain state aid or\nacceptance of it have not been limited to any one particular faith\xe2\x80\xa6.\nThe meaning and scope of the First Amendment, preventing establishment of religion or\nprohibiting the free exercise thereof, in the light of its history and the evils it was designed forever\nto suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. The broad meaning given the\nAmendment by these earlier cases has been accepted by this Court in its decisions concerning an\nindividual\xe2\x80\x99s religious freedom rendered since the Fourteenth Amendment was interpreted to\nmake the prohibitions of the First applicable to state action abridging religious freedom. There\nis every reason to give the same application and broad interpretation to the \xe2\x80\x9cestablishment of\nreligion\xe2\x80\x9d clause. The interrelation of these complementary clauses was well summarized in a\nstatement of the Court of Appeals of South Carolina, quoted with approval by this Court, in\nWatson v. Jones, 13 Wall. 679, 730: \xe2\x80\x9cThe structure of our government has, for the preservation\nof civil liberty, rescued the temporal institutions from religious interference. On the other hand,\nit has secured religious liberty from the invasions of the civil authority.\xe2\x80\x9d\nThe \xe2\x80\x9cestablishment of religion\xe2\x80\x9d clause of the First Amendment means at least this: Neither\na state nor the Federal Government can set up a church. Neither can pass laws which aid one\nreligion, aid all religions, or prefer one religion over another. Neither can force nor influence a\nperson to go to or to remain away from church against his will or force him to profess a belief\nor disbelief in any religion. No person can be punished for entertaining or professing religious\nbeliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or\nsmall, can be levied to support any religious activities or institutions, whatever they may be\ncalled, or whatever form they may adopt to teach or practice religion. Neither a state nor the\nFederal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of\nreligion by law was intended to erect \xe2\x80\x9ca wall of separation between Church and State.\xe2\x80\x9d Reynolds v. United States, 98 U.S. at 164.\nWe must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the\nstate\xe2\x80\x99s constitutional power even though it approaches the verge of that power\xe2\x80\xa6. New Jersey\ncannot consistently with the \xe2\x80\x9cestablishment of religion\xe2\x80\x9d clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any\nchurch. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude\nindividual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers,\nPresbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state\ncould not provide transportation only to children attending public schools, we must be careful,\nin protecting the citizens of New Jersey against state-established churches, to be sure that we do\nnot inadvertently prohibit New Jersey from extending its general State law benefits to all its\ncitizens without regard to their religious belief.\nMeasured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending taxraised funds to pay the bus fares of parochial school pupils as a part of a\ngeneral program under which it pays the fares of pupils attending public and other schools. It is\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 155\nundoubtedly true that children are helped to get to church schools. There is even a possibility\nthat some of the children might not be sent to the church schools if the parents were compelled\nto pay their children\xe2\x80\x99s bus fares out of their own pockets when transportation to a public school\nwould have been paid for by the State. The same possibility exists \xe2\x80\xa6 where a municipally owned\ntransportation system undertakes to carry all school children free of charge. Moreover, statepaid policemen, detailed to protect children going to and from church schools from the very real\nhazards of traffic, would serve much the same purpose and accomplish much the same result as\nstate provisions intended to guarantee free transportation of a kind which the state deems to be\nbest for the school children\xe2\x80\x99s welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which\nwere not protected by policemen. Similarly, parents might be reluctant to permit their children\nto attend schools which the state had cut off from such general government services as ordinary\npolice and fire protection, connections for sewage disposal, public highways and sidewalks. Of\ncourse, cutting off church schools from these services, so separate and so indisputably marked\noff from the religious function, would make it far more difficult for the schools to operate. But\nsuch is obviously not the purpose of the First Amendment. That Amendment requires the state\nto be a neutral in its relations with groups of religious believers and non-believers; it does not\nrequire the state to be their adversary. State power is no more to be used so as to handicap\nreligions, than it is to favor them.\nThis Court has said that parents may, in the discharge of their duty under state compulsory\neducation laws, send their children to a religious rather than a public school if the school meets\nthe secular educational requirements which the state has power to impose. See Pierce v. Society\nof Sisters, 268 U.S. 510. It appears that these parochial schools meet New Jersey\xe2\x80\x99s requirements.\nThe State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless\nof their religion, safely and expeditiously to and from accredited schools.\nThe First Amendment has erected a wall between church and state. That wall must be kept\nhigh and impregnable. We could not approve the slightest breach. New Jersey has not breached\nit here.\nAffirmed.\nMr. Justice JACKSON, with whom Mr. Justice FRANKFURTER joins, dissenting.\n\xe2\x80\xa6The Court\xe2\x80\x99s opinion marshals every argument in favor of state aid and puts the case in\nits most favorable light, but much of its reasoning confirms my conclusions that there are no\ngood grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly\ndiscordant with its conclusion yielding support to their commingling in educational matters\xe2\x80\xa6.\nThe Court concludes that this \xe2\x80\x9clegislation, as applied, does no more than provide a general\nprogram to help parents get their children, regardless of their religion, safely and expeditiously\nto and from accredited schools,\xe2\x80\x9d and it draws a comparison between \xe2\x80\x9cstate provisions intended\nto guarantee free transportation\xe2\x80\x9d for school children with services such as police and fire protection, and implies that we are here dealing with \xe2\x80\x9claws authorizing new types of public services.\xe2\x80\x9d This hypothesis permeates the opinion. The facts will not bear that construction.\nThe Township of Ewing is not furnishing transportation to the children in any form; it is\nnot operating school busses itself or contracting for their operation; and it is not performing any\npublic service of any kind with this taxpayer\xe2\x80\x99s money\xe2\x80\xa6. What the Township does, and what\nthe taxpayer complains of, is at stated intervals to reimburse parents for the fares paid, provided\nthe children attend either public schools or Catholic Church schools. This expenditure of tax\nfunds has no possible effect on the child\xe2\x80\x99s safety or expedition in transit. As passengers on the\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c156 Religion in the Law\npublic busses they travel as fast and no faster, and are as safe and no safer, since their parents are\nreimbursed as before.\nIn addition to thus assuming a type of service that does not exist, the Court also insists that\nwe must close our eyes to a discrimination which does exist. The resolution which authorizes\ndisbursement of this taxpayer\xe2\x80\x99s money limits reimbursement to those who attend public schools\nand Catholic schools. That is the way the Act is applied to this taxpayer.\nThe New Jersey Act in question makes the character of the school, not the needs of the\nchildren determine the eligibility of parents to reimbursement. The Act permits payment for\ntransportation to parochial schools or public schools but prohibits it to private schools operated\nin whole or in part for profit\xe2\x80\xa6.\nIf we are to decide this case on the facts before us, our question is simply this: Is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination?\nWhether the taxpayer constitutionally can be made to contribute aid to parents of students\nbecause of their attendance at parochial schools depends upon the nature of those schools and\ntheir relation to the Church. The Constitution says nothing of education. It lays no obligation\non the states to provide schools and does not undertake to regulate state systems of education if\nthey see fit to maintain them. But they cannot, through school policy any more than through\nother means, invade rights secured to citizens by the Constitution of the United States. West\nVirginia State Board of Education v. Barnette, 319 U.S. 624. One of our basic rights is to be free\nof taxation to support a transgression of the constitutional command that the authorities \xe2\x80\x9cshall\nmake no law respecting an establishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d\nThe function of the Church school is a subject on which this record is meager. It shows only\nthat the schools are under superintendence of a priest and that \xe2\x80\x9creligion is taught as part of the\ncurriculum.\xe2\x80\x9d But we know that such schools are parochial only in name\xe2\x80\x94they, in fact, represent\na worldwide and age-old policy of the Roman Catholic Church. Under the rubric \xe2\x80\x9cCatholic\nSchools,\xe2\x80\x9d the Canon Law of the Church by which all Catholics are bound, provides: \xe2\x80\x9cCatholic\nchildren are to be educated in schools where not only nothing contrary to Catholic faith and\nmorals is taught, but rather in schools where religious and moral training occupy the first\nplace.\xe2\x80\xa6\xe2\x80\x9d\nIt is of no importance in this situation whether the beneficiary of this expenditure of taxraised funds is primarily the parochial school and incidentally the pupil, or whether the aid is\ndirectly bestowed on the pupil with indirect benefits to the school. The state cannot maintain a\nChurch and it can no more tax its citizens to furnish free carriage to those who attend a Church.\nThe prohibition against establishment of religion cannot be circumvented by a subsidy, bonus\nor reimbursement of expense to individuals for receiving religious instruction and indoctrination\xe2\x80\xa6.\nIt seems to me that the basic fallacy in the Court\xe2\x80\x99s reasoning, which accounts for its failure\nto apply the principles it avows, is in ignoring the essentially religious test by which beneficiaries\nof this expenditure are selected. A policeman protects a Catholic, of course\xe2\x80\x94but not because he\nis a Catholic; it is because he is a man and a member of our society. The fireman protects the\nChurch school\xe2\x80\x94but not because it is a Church school; it is because it is property, part of the\nassets of our society. Neither the fireman nor the policeman has to ask before he renders aid \xe2\x80\x9cIs\nthis man or building identified with the Catholic Church.\xe2\x80\x9d But before these school authorities\ndraw a check to reimburse for a student\xe2\x80\x99s fare they must ask just that question, and if the school\nis a Catholic one they may render aid because it is such, while if it is of any other faith or is run\nfor profit, the help must be withheld\xe2\x80\xa6. Could we sustain an Act that said police shall protect\npupils on the way to or from public schools and Catholic schools but not while going to and\ncoming from other schools, and firemen shall extinguish a blaze in public or Catholic school\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 157\nbuildings but shall not put out a blaze in Protestant Church schools or private schools operated\nfor profit? That is the true analogy to the case we have before us and I should think it pretty\nplain that such a scheme would not be valid.\n[The government] cannot make public business of religious worship or instruction, or of\nattendance at religious institutions of any character\xe2\x80\xa6. [Religious] freedom was first in the Bill\nof Rights because it was first in the forefathers\xe2\x80\x99 minds; it was set forth in absolute terms, and its\nstrength is its rigidity. It was intended not only to keep the states\xe2\x80\x99 hands out of religion, but to\nkeep religion\xe2\x80\x99s hands off the state, and above all, to keep bitter religious controversy out of public\nlife by denying to every denomination any advantage from getting control of public policy or\nthe public purse. Those great ends I cannot but think are immeasurably compromised by today\xe2\x80\x99s\ndecision.\nThis policy of our Federal Constitution has never been wholly pleasing to most religious\ngroups. They all are quick to invoke its protections; they all are irked when they feel its restraints.\nThis Court has gone a long way, if not an unreasonable way, to hold that public business of such\nparamount importance as maintenance of public order, protection of the privacy of the home,\nand taxation may not be pursued by a state in a way that even indirectly will interfere with\nreligious proselyting\xe2\x80\xa6.\nBut we cannot have it both ways. Religious teaching cannot be a private affair when the\nstate seeks to impose regulations which infringe on it indirectly, and a public affair when it comes\nto taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles\nseem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same\nConstitution that alone assures Catholics the right to maintain these schools at all when predominant local sentiment would forbid them. Nor should I think that those who have done so\nwell without this aid would want to see this separation between Church and State broken down.\nIf the state may aid these religious schools, it may therefore regulate them\xe2\x80\xa6.\nMr. Justice RUTLEDGE, with whom Mr. Justice FRANKFURTER, Mr. Justice JACKSON and\nMr. Justice BURTON join, dissenting.\nThis case forces us to determine squarely for the first time what was \xe2\x80\x9can establishment of\nreligion\xe2\x80\x9d in the First Amendment\xe2\x80\x99s conception; and by that measure to decide whether New\nJersey\xe2\x80\x99s action violates its command\xe2\x80\xa6.\nBy statute New Jersey has authorized local boards of education to provide for the transportation of children \xe2\x80\x9cto and from school other than a public school\xe2\x80\x9d except one operated for profit\nwholly or in part over established public school routes, or by other means when the child lives\n\xe2\x80\x9cremote from any school.\xe2\x80\x9d The school board of Ewing Township has provided by resolution\nfor \xe2\x80\x9cthe transportation of pupils of Ewing to the Trenton and Pennington High Schools and\nCatholic Schools by way of public carrier\xe2\x80\xa6.\xe2\x80\x9d\nNot simply an established church, but any law respecting an establishment of religion is\nforbidden. The Amendment was broadly but not loosely phrased. It is the compact and exact\nsummation of its author\xe2\x80\x99s views formed during his long struggle for religious freedom. In Madison\xe2\x80\x99s own words characterizing Jefferson\xe2\x80\x99s Bill for Establishing Religious Freedom, the guaranty\nhe put in our national charter, like the bill he piloted through the Virginia Assembly, was \xe2\x80\x9ca\nModel of technical precision, and perspicuous brevity.\xe2\x80\x9d Madison could not have confused\n\xe2\x80\x9cchurch\xe2\x80\x9d and \xe2\x80\x9creligion,\xe2\x80\x9d or \xe2\x80\x9can established church\xe2\x80\x9d and \xe2\x80\x9can establishment or religion.\xe2\x80\x9d\nThe Amendment\xe2\x80\x99s purpose was not to strike merely at the official establishment of a single\nsect, creed or religion, outlawing only a formal relation such as had prevailed in England and\nsome of the colonies. Necessarily it was to uproot all such relationships. But the object was\nbroader than separating church and state in this narrow sense. It was to create a complete and\npermanent separation of the spheres of religious activity and civil authority by comprehensively\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c158 Religion in the Law\nforbidding every form of public aid or support for religion\xe2\x80\xa6.\n[T]oday, apart from efforts to inject religious training or exercises and sectarian issues into\nthe public schools, the only serious surviving threat to maintaining that complete and permanent\nseparation of religion and civil power which the First Amendment commands is through use of\nthe taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function.\nDoes New Jersey\xe2\x80\x99s action furnish support for religion by use of the taxing power? Certainly\nit does, if the test remains undiluted as Jefferson and Madison made it, that money taken by\ntaxation from one is not to be used or given to support another\xe2\x80\x99s religious training or belief, or\nindeed one\xe2\x80\x99s own. Today as then the furnishing of \xe2\x80\x9ccontributions of money for the propagation\nof opinions which he disbelieves\xe2\x80\x9d is the forbidden exaction; and the prohibition is absolute for\nwhatever measure brings that consequence and whatever mount may be sought or given to that\nend.\nThe funds used here were raised by taxation. The Court does not dispute nor could it that\ntheir use does in fact give aid and encouragement to religious instruction. It only concludes that\nthis aid is not \xe2\x80\x9csupport\xe2\x80\x9d in law. But Madison and Jefferson were concerned with aid and support\nin fact not as a legal conclusion \xe2\x80\x9centangled in precedents.\xe2\x80\x9d Here parents pay money to send\ntheir children to parochial schools and funds raised by taxation are used to reimburse them.\nThis not only helps the children to get to school and the parents to send them. It aids them in a\nsubstantial way to get the very thing which they are sent to the particular school to secure,\nnamely, religious training and teaching\xe2\x80\xa6.\nNew Jersey\xe2\x80\x99s action \xe2\x80\xa6 exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given. That it is a substantial and a necessary element is shown most plainly by the continuing and increasing demand\nfor the state to assume it. Nor is there pretense that it relates only to the secular instruction given\nin religious schools or that any attempt is or could be made toward allocating proportional\nshares as between the secular and the religious instruction. It is precisely because the instruction\nis religious and relates to a particular faith, whether one or another, that parents send their children to religious schools under the Pierce doctrine. And the very purpose of the state\xe2\x80\x99s contribution is to defray the cost of conveying the pupil to the place where he will receive not simply\nsecular, but also and primarily religious, teaching and guidance\xe2\x80\xa6.\nFinally, transportation, where it is needed, is as essential to education as any other element.\nIts cost is as much a part of the total expense, except at times in amount, as the cost of textbooks,\nof school lunches, of athletic equipment, of writing and other materials; indeed of all other items\ncomposing the total burden\xe2\x80\xa6. Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring teacher and pupil together in\nsuch an effective teaching environment, there can be not even the skeleton of what our times\nrequire. Hardly can it be maintained that transportation is the least essential of these items, or\nthat it does not in fact aid, encourage, sustain and support, just as they do, the very process\nwhich is its purpose to accomplish. No less essential is it, or the payment of its cost, than the\nvery teaching in the classroom or payment of the teacher\xe2\x80\x99s sustenance. Many types of equipment,\nnow considered essential, better could be done without.\nFor me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the\npropagation of beliefs which it is the very end of all to bring about. Unless this can be maintained, and the Court does not maintain it, the aid thus given is outlawed\xe2\x80\xa6. No rational line\ncan be drawn between payment for such larger, but not more necessary, items and payment for\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 159\ntransportation. The only line that can be so drawn is one between more dollars and less. Certainly in this realm such a line can be no valid constitutional measure\xe2\x80\xa6.\nNo one conscious of religious values can by unsympathetic toward the burden which our\nconstitutional separation puts on parents who desire religious instruction mixed with secular for\ntheir children. They pay taxes for others\xe2\x80\x99 children\xe2\x80\x99s education, at the same time the added cost\nof instruction for their own. Nor can one happily see benefits denied to children which others\nreceive, because in conscience they or their parents for them desire a different kind of training\nothers do not demand.\nBut if those feelings should prevail, there would be an end to our historic constitutional\npolicy and command. No more unjust or discriminatory in fact is it to deny attendants at religious schools the cost of their transportation than it is to deny them tuitions, sustenance for their\nteachers, or any other educational expense which others receive at public cost\xe2\x80\xa6.\nThat policy necessarily entails hardship upon persons who forego the right to educational\nadvantages the state can supply in order to secure others it is precluded from giving. Indeed this\nmay hamper the parent and the child forced by conscience to that choice. But it does not make\nthe state unneutral to withhold what the Constitution forbids it to give. On the contrary it is\nonly by observing the prohibition rigidly that the state can maintain its neutrality and avoid\npartisanship in the dissensions inevitable when sect opposes sect over demands for public moneys to further religious education, teaching or training in any form or degree, directly or indirectly. Like St. Paul\xe2\x80\x99s freedom, religious liberty with a great price must be bought. And for those\nwho exercise it most fully, by insisting upon religious education for their children mixed with\nsecular, by the terms of our Constitution the price is greater than for others.\nThe problem then cannot be cast in terms of legal discrimination or its absence. This would\nbe true, even though the state in giving aid should treat all religious instruction alike. Thus, if\nthe present statute and its application were shown to apply equally to all religious schools of\nwhatever faith, yet in the light of our tradition it could not stand. For then the adherent of one\ncreed still would pay for the support of another, the childless taxpayer with others more fortunate. Then too there would seem to be no bar to making appropriations for transportation and\nother expenses of children attending public or other secular schools, after hours in separate\nplaces and classes for their exclusively religious instruction. The person who embraces no creed\nalso would be forced to pay for teaching what he does not believe\xe2\x80\xa6. The Constitution requires,\nnot comprehensive identification of state with religion, but complete separation\xe2\x80\xa6.\nTwo great drives are constantly in motion to abridge, in the name of education, the complete\ndivision of religion and civil authority which our forefathers made. One is to introduce religious\neducation and observances into the public schools. The other, to obtain public funds for the aid\nand support of various private religious schools\xe2\x80\xa6. In my opinion both avenues were closed by\nthe Constitution. Neither should be opened by this Court. The matter is not one of quantity, to\nbe measured by the amount of money expended. Now as in Madison\xe2\x80\x99s day it is one of principle,\nto keep separate the separate spheres as the First Amendment drew them; to prevent the first\nexperiment upon our liberties; and to keep the question from becoming entangled in corrosive\nprecedents. We should not be less strict to keep strong and untarnished the one side of the shield\nof religious freedom than we have been of the other\xe2\x80\xa6.\n\nEverson v. Board of Education, 330 U.S. 1 (1947)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c160 Religion in the Law\n366 U.S. 420\nSupreme Court of the United States\n\nMcGowan v. Maryland\nMay 29, 1961\nMr. Chief Justice WARREN delivered the opinion of the Court.\nThe issues in this case concern the constitutional validity of Maryland criminal statutes,\ncommonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities\non Sunday. The questions presented are whether the classifications within the statutes bring\nabout a denial of equal protection of the law, whether the laws are so vague as to fail to give\nreasonable notice of the forbidden conduct and therefore violate due process, and whether the\nstatutes are laws respecting an establishment of religion or prohibiting the free exercise thereof.\nAppellants are seven employees of a large discount department store located on a highway\nin Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring\nloose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of\nMd.Ann.Code, Art. 27 s 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk,\nbread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in\nAnne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet\ngoods, hospital supplies and souvenirs. It now further provides that any retail establishment in\nAnne Arundel County which does not employ more than one person other than the owner may\noperate on Sunday.\nAlthough appellants were indicted only under s 521, in order properly to consider several\nof the broad constitutional contentions, we must examine the whole body of Maryland Sunday\nlaws. Several sections of the Maryland statutes are particularly relevant to evaluation of the\nissues presented. Section 492 of Md.Ann.Code, Art. 27, forbids all persons from doing any work\nor bodily labor on Sunday and forbids permitting children or servants to work on that day or\nto engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works\nof necessity and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the opening or use of\nany dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition\nto the exceptions noted above, Md.Ann.Code, Art. 27, s 509, exempts, for Anne Arundel\nCounty, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusement\npark, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of\nMd.Ann.Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday.\nHowever, this section, and immediately succeeding ones, provide various immunities for the\nSunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State\xe2\x80\x94particularly\nin Anne Arundel County. See Md.Ann.Code, Art. 2B, s 28(a). \xe2\x80\xa6\nAmong other things, appellants contended at the trial that the Maryland statutes under\nwhich they were charged were contrary to the Fourteenth Amendment for the reasons stated at\nthe outset of this opinion. Appellants were convicted and each was fined five dollars and costs.\nThe Maryland Court of Appeals affirmed\xe2\x80\xa6.\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 161\n[The court considered and rejected the Appellants\xe2\x80\x99 equal protection, vagueness, due\nprocess, and free exercise arguments. It then turned to the question of establishment.]\n\xe2\x80\xa6[A]ppellants contend that the statutes violate the guarantee of separation of church and\nstate in that the statutes are laws respecting an establishment of religion contrary to the First\nAmendment, made applicable to the States by the Fourteenth Amendment \xe2\x80\xa6\nThe essence of appellants\xe2\x80\x99 \xe2\x80\x9cestablishment\xe2\x80\x9d argument is that Sunday is the Sabbath day of\nthe predominant Christian sects; that the purpose of the enforced stoppage of labor on that day\nis to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of\nuniversal rest is to induce people with no religion or people with marginal religious beliefs to\njoin the predominant Christian sects; that the purpose of the atmosphere of tranquility created\nby Sunday closing is to aid the conduct of church services and religious observance of the sacred\nday. In substantiating their \xe2\x80\x9cestablishment\xe2\x80\x9d argument, appellants rely on the wording of the\npresent Maryland statutes, on earlier versions of the current Sunday laws and on prior judicial\ncharacterizations of these laws by the Maryland Court of Appeals. \xe2\x80\xa6 There is no dispute that\nthe original laws which dealt with Sunday labor were motivated by religious forces. But what\nwe must decide is whether present Sunday legislation, having undergone extensive changes from\nthe earliest forms, still retains its religious character.\nSunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century\xe2\x80\xa6. The law of the\ncolonies to the time of the Revolution and the basis of the Sunday laws in the States was 29\nCharles II, c. 7 (1677). It provided, in part:\nFor the better observation and keeping holy the Lord\xe2\x80\x99s day, commonly called\nSunday: be it enacted \xe2\x80\xa6 that all and every person and persons whatsoever\nshall upon every Lord\xe2\x80\x99s day apply themselves to the observation of the same,\nby exercising themselves thereon in the duties of piety and true religion, publicly and privately; and that no tradesman, artificer, workman, laborer, or\nother person whatsoever, shall do or exercise any worldly labor or business or\nwork of their ordinary callings upon the Lord\xe2\x80\x99s day, or any part thereof (works\nof necessity and charity only excepted).\nObservation of the above language, and of that of the prior mandates, reveals clearly that\nthe English Sunday legislation was in aid of the established church.\nThe American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the\nPlymouth Colony proscribed servile work, unnecessary travelling, sports, and the sale of alcoholic beverages on the Lord\xe2\x80\x99s day and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, \xe2\x80\x9cAnd to\nthe end the Sabbath may be celebrated in a religious manner.\xe2\x80\x9d A 1653 enactment spoke of Sunday activities \xe2\x80\x9cwhich things tend much to the dishonor of God, the reproach of religion, and the\nprofanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God.\xe2\x80\x9d These laws persevered after the Revolution and, at\nabout the time of the First Amendment\xe2\x80\x99s adoption, each of the colonies had laws of some sort\nrestricting Sunday labor.\nBut, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor\xe2\x80\xa6.\nMore recently, further secular justifications have been advanced for making Sunday a day\nof rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week\xe2\x80\x99s work to come. In England, during the First World War,\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c162 Religion in the Law\na committee investigating the health conditions of munitions workers reported that \xe2\x80\x9cif the maximum output is to be secured and maintained for any length of time, a weekly period of rest\nmust be allowed. On economic and social grounds alike this weekly period of rest is best provided on Sunday.\xe2\x80\x9d\nThe proponents of Sunday closing legislation are no longer exclusively representatives of\nreligious interests. Recent New Jersey Sunday legislation was supported by labor groups and\ntrade associations; modern English Sunday legislation was promoted by the National Federation\nof Grocers and supported by the National Chamber of Trade, the Drapers\xe2\x80\x99 Chamber of Trade,\nand the National Union of Shop Assistants.\nThroughout the years, state legislatures have modified, deleted from and added to their\nSunday statutes. \xe2\x80\xa6 Almost every State in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system. Some of our States now enforce\ntheir Sunday legislation through Departments of Labor. Thus have Sunday laws evolved from\nthe wholly religious sanctions that originally were enacted. \xe2\x80\xa6\nBefore turning to the Maryland legislation now here under attack, an investigation of what\nhistorical position Sunday Closing Laws have occupied with reference to the First Amendment\nshould be undertaken, Everson v. Board of Education, 330 U.S. at 14.\n\xe2\x80\xa6An early commentator opined that the \xe2\x80\x9creal object of the [First Amendment] was to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive\npatronage of the national government.\xe2\x80\x9d 3 Story, Commentaries on the Constitution of the\nUnited States, 728. But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a \xe2\x80\x9cbroad interpretation in the light of its history\nand the evils it was designed forever to suppress.\xe2\x80\x9d Everson v. Board of Education, 330 U.S. at\n14\xe2\x80\x9415. It has found that the First and Fourteenth Amendments afford protection against religious establishment for more extensive than merely to forbid a national or state church. Thus,\nin People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, the Court\nheld that the action of a board of education, permitting religious instruction during school hours\nin public school buildings and requiring those children who chose not to attend to remain in\ntheir classrooms, to be contrary to the \xe2\x80\x9cEstablishment\xe2\x80\x9d Clause.\nHowever, it is equally true that the \xe2\x80\x9cEstablishment\xe2\x80\x9d Clause does not ban federal or state\nregulation of conduct whose reason or effect merely happens to coincide or harmonize with the\ntenets of some or all religions. In many instances, the Congress or state legislatures conclude that\nthe general welfare of society, wholly apart from any religious considerations, demands such\nregulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the\ndictates of the Judaeo-Christian religions while it may disagree with others does not invalidate\nthe regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U.S.\n333; and Reynolds v. United States, 98 U.S. 145. The same could be said of theft, fraud, etc.,\nbecause those offenses were also proscribed in the Decalogue.\n\xe2\x80\xa6The most extensive discussion of the \xe2\x80\x9cEstablishment\xe2\x80\x9d Clause\xe2\x80\x99s latitude is to be found in\nEverson v. Board of Education, 330 U.S. at 15\xe2\x80\x9416:\nThe \xe2\x80\x9cestablishment of religion\xe2\x80\x9d clause of the First Amendment means at least\nthis: Neither a state nor the federal Government can set up a church. Neither\ncan pass laws which aid one religion, aid all religions, or prefer one religion\nover another. Neither can force nor influence a person to go to or to remain\naway from church against his will or force him to profess a belief or disbelief\nin any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in\nany amount, large or small, can be levied to support any religious activities or\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 163\ninstitutions, whatever they may be called, or whatever form they may adopt\nto teach or practice religion. Neither a state nor the Federal Government can,\nopenly or secretly, participate in the affairs of any religious organizations or\ngroups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect \xe2\x80\x9ca wall of separation between\nChurch and State.\xe2\x80\x9d\n\xe2\x80\xa6In light of the evolution of our Sunday Closing Laws through the centuries, and of their\nmore or less recent emphasis upon secular considerations, it is not difficult to discern that as\npresently written and administered, most of them, at least, are of a secular rather than of a\nreligious character, and that presently they bear no relationship to establishment of religion as\nthose words are used in the Constitution of the United States.\nThroughout this century and longer, both the federal and state governments have oriented\ntheir activities very largely toward improvement of the health, safety, recreation and general\nwell-being of our citizens. Numerous laws affecting public health, safety factors in industry, laws\naffecting hours and conditions of labor of women and children, week-end diversion at parks\nand beaches, and cultural activities of various kinds, now point the way toward the good life for\nall. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that\nthis day is Sunday, a day of particular significance for the dominant Christian sects, does not bar\nthe State from achieving its secular goals. To say that the States cannot prescribe Sunday as a\nday of rest for these purposes solely because centuries ago such laws had their genesis in religion\nwould give a constitutional interpretation of hostility to the public welfare rather than one of\nmere separation of church and State.\nWe now reach the Maryland statutes under review. The title of the major series of sections\nof the Maryland Code dealing with Sunday closing\xe2\x80\x94Art. 27, ss 492\xe2\x80\x94534C\xe2\x80\x94is \xe2\x80\x9cSabbath\nBreaking\xe2\x80\x9d; s 492 proscribes work or bodily labor on the \xe2\x80\x9cLord\xe2\x80\x99s day,\xe2\x80\x9d and forbids persons to\n\xe2\x80\x9cprofane the Lord\xe2\x80\x99s day\xe2\x80\x9d by gaming, fishing et cetera; s 522 refers to Sunday as the \xe2\x80\x9cSabbath\nday.\xe2\x80\x9d As has been mentioned above, many of the exempted Sunday activities in the various\nlocalities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally,\nas previously noted, certain localities do not permit the allowed Sunday activities to be carried\non within one hundred yards of any church where religious services are being held. This is the\ntotality of the evidence of religious purpose which may be gleaned from the face of the present\nstatute and from its operative effect.\nThe predecessors of the existing Maryland Sunday laws are undeniably religious in origin.\nThe first Maryland statute dealing with Sunday activities, enacted in 1649, was entitled \xe2\x80\x9cAn Act\nconcerning Religion.\xe2\x80\x9d It made it criminal to \xe2\x80\x9cprofane the Sabbath or Lords day called Sunday\nby frequent swearing, drunkennes or by any uncivill or disorderly recreation, or by working on\nthat day when absolute necessity doth not require it.\xe2\x80\x9d A 1692 statute entitled \xe2\x80\x9cAn Act for the\nService of Almighty God and the Establishment of the Protestant Religion within this Province,\xe2\x80\x9d\nafter first stating the importance of keeping the Lord\xe2\x80\x99s Day holy and sanctified and expressing\nconcern with the breach of its observance throughout the State, then enacted a Sunday labor\nprohibition which was the obvious precursor of the present s 492. \xe2\x80\xa6\nThere are judicial statements in early Maryland decisions which tend to support appellants\xe2\x80\x99\nposition. In an 1834 case involving a contract calling for delivery on Sunday, the Maryland\nCourt of Appeals remarked that \xe2\x80\x9cOurs is a christian community, and a day set apart as the day\nof rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four\nhours nect ensuing the midnight of Saturday.\xe2\x80\x9d Kilgour v. Miles, 6 Gill & J. 268, 274. This language was cited with approval in Judegind v. State, 1894, 78 Md. 510, 514. It was also stated\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c164 Religion in the Law\nthere:\n[It] would scarcely be asked of a court in what professes to be a Christian land,\nto declare a law unconstitutional because it requires rest from bodily labor on\nSunday, except works of necessity and charity, and thereby promotes the cause\nof Christianity. If the Christian religion is, incidentally or otherwise, benefited\nor fostered by having this day of rest, (as it undoubtedly is,) there is all the\nmore reason for the enforcement of laws that help to preserve it. While courts\nhave generally sustained Sunday laws as \xe2\x80\x9ccivil regulation,\xe2\x80\x9d their decisions will\nhave no less weight if they are shown to be in accordance with divine law as\nwell as human.\nBut it should be noted that, throughout the Judefind decision, the Maryland court specifically rejected the contention that the laws interfered with religious liberty and stated that the\nlaws\xe2\x80\x99 purpose was to provide the \xe2\x80\x9cadvantages of having a weekly day of rest, from a mere\nphysical and political standpoint.\xe2\x80\x9d\nConsidering the language and operative effect of the current statutes, we no longer find the\nblanket prohibition against Sunday work or bodily labor. \xe2\x80\xa6 These provisions, along with those\nwhich permit various sports and entertainments on Sunday, seem clearly to be fashioned for the\npurpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment.\nCoupled with the general proscription against other types of work, we believe that the air of the\nday is one of relaxation rather than one of religion\xe2\x80\xa6.\nBut this does not answer all of appellants\xe2\x80\x99 contentions. We are told that the State has other\nmeans at its disposal to accomplish its secular purpose, other courses that would not even remotely or incidentally give state aid to religion. \xe2\x80\xa6 It is true that if the State\xe2\x80\x99s interest were simply\nto provide for its citizens a periodic respite from work, a regulation demanding that everyone\nrest one day in seven, leaving the choice of the day to the individual, would suffice.\nHowever, the State\xe2\x80\x99s purpose is not merely to provide a one-day-in-seven work stoppage. In\naddition to this, the State seeks to set one day apart from all others as a day of rest, repose,\nrecreation and tranquility\xe2\x80\x94a day which all members of the family and community have the\nopportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit\nfriends and relatives who are not available during working days.\nObviously, a State is empowered to determine that a rest-one-day-in-seven statute would\nnot accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives\nmight spend together. Furthermore, it seems plain that the problems involved in enforcing such\na provision would be exceedingly more difficult than those in enforcing a common-day-of-rest\nprovision.\nMoreover, it is common knowledge that the first day of the week has come to have special\nsignificance as a rest day in this country. People of all religions and people with no religion regard\nSunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive\nand active entertainments, for dining out, and the like.\xe2\x80\xa6 Sunday is a day apart from all others.\nThe cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and\nperhaps detrimental to the general welfare to require a State to choose a common day of rest\nother than that which most persons would select of their own accord. For these reasons, we hold\nthat the Maryland statutes are not laws respecting an establishment of religion\xe2\x80\xa6.\nAccordingly, the decision is affirmed.\nMr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, concurring in the judgment\xe2\x80\xa6\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 165\n[This separate opinion by Justice Frankfurter addresses four religious rights cases decided on the same day. This portion of the opinion focuses on the establishment issue\nin McGowan. The portion of the opinion regarding the free exercise clause is excerpted with Braunfeld v. Brown, below in Section 4.]\n\xe2\x80\xa6Innumerable civil regulations enforce conduct which harmonizes with religious canons.\nState prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do\nsuch regulations, in their coincidence with tenets of faith, always support equally the beliefs of\nall religious sects: witness the civil laws forbidding usury and enforcing monogamy. Because\nthese laws serve ends which are within the appropriate scope of secular state interest, they may\nbe enforced against those whose religious beliefs do not proscribe, and even sanction, the activity\nwhich the law condemns. Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S.\n333; Cleveland v. United States, 329 U.S. 14.\nThis is not to say that governmental regulations which find support in their appropriateness\nto the achievement of secular, civil ends are invariably valid under the First or Fourteenth\nAmendment, whatever their effects in the sphere of religion. If the value to society of achieving\nthe object of a particular regulation is demonstrably outweighed by the impediment to which\nthe regulation subjects those whose religious practices are curtailed by it, or if the object sought\nby the regulation could with equal effect be achieved by alternative means which do not substantially impede those religious practices, the regulation cannot be sustained. Cantwell v. State\nof Connecticut, 310 U.S. 296.\xe2\x80\xa6\nIn assuring the free exercise of religion, the Framers of the First Amendment were sensitive\nto the then recent history of those persecutions and impositions of civil disability with which\nsectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience\xe2\x80\xa6. What Virginia had long practiced, and what Madison, Jefferson and others fought to\nend, was the extension of civil government\xe2\x80\x99s support to religion in a manner which made the\ntwo in some degree interdependent, and thus threatened the freedom of each. The purpose of\nthe Establishment Clause was to assure that the national legislature would not exert its power\nin the service of any purely religious end; that it would not, as Virginia and virtually all of the\nColonies had done, make of religion, as religion, an object of legislation.\n\xe2\x80\xa6The Establishment Clause withdrew from the sphere of legitimate legislative concern and\ncompetence a specific, but comprehensive, area of human conduct: man\xe2\x80\x99s belief or disbelief in\nthe verity of some transcendental idea and man\xe2\x80\x99s expression in action of that belief or disbelief.\nCongress may not make these matters, as such, the subject of legislation, nor, now, may any\nlegislature in this country. Neither the National Government nor, under the Due Process Clause\nof the Fourteenth Amendment, a State may, by any device, support belief or the expression of\nbelief for its own sake, whether from conviction of the truth of that belief, or from conviction\nthat by the propagation of that belief the civil welfare of the State is served, or because a majority\nof its citizens, holding that belief, are offended when all do not hold it.\n\xe2\x80\xa6Once it is determined that a challenged statute is supportable as implementing other substantial interests than the promotion of belief, the guarantee prohibiting religious \xe2\x80\x9cestablishment\xe2\x80\x9d is satisfied.\n\xe2\x80\xa6If the primary end achieved by a form of regulation is the affirmation or promotion of\nreligious doctrine\xe2\x80\x94primary, in the sense that all secular ends which it purportedly serves are\nderivative from, not wholly independent of, the advancement of religion\xe2\x80\x94the regulation is beyond the power of the state\xe2\x80\xa6. Or if a statute furthers both secular and religious ends by means\nunnecessary to the effectuation of the secular ends alone\xe2\x80\x94where the same secular ends could\nequally be attained by means which do not have consequences for promotion of religion\xe2\x80\x94the\nstatute cannot stand\xe2\x80\xa6.\nIn the present cases the Sunday retail sellers and their employees and customers, in attacking\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c166 Religion in the Law\nstatutes banning various activities on a day which most Christian creeds consecrate, do assert\nthat these statutes have no other purpose [than to further religious ends]. They urge, first, that\nthe legislators\xe2\x80\x99 motives were religious. But the private and unformulated influences which may\nwork upon legislation are not open to judicial probing\xe2\x80\xa6. \xe2\x80\x9cInquiry into the hidden motives\nwhich may move (a legislature) to exercise a power constitutionally conferred upon it is beyond\nthe competency of courts.\xe2\x80\x9d Sonzinsky v. United States, 300 U.S. 506, 513\xe2\x80\x94514\xe2\x80\xa6.\nThese litigants also argue, however, that when the state statutory provisions are regarded in\ntheir legislative context religion is apparent on their face: they point to the use of the terms\n\xe2\x80\x9cLord\xe2\x80\x99s day\xe2\x80\x9d and \xe2\x80\x9cSabbath\xe2\x80\x9d and \xe2\x80\x9cdesecration,\xe2\x80\x9d to exceptions whose hours permit activities\nonly at times on Sunday when religious services are customarily not held, to explicit prohibition\nof otherwise permitted activity in the vicinity of churches, to regulations which condition the\nallowance of conduct on its consistency with the \xe2\x80\x9cdue observance\xe2\x80\x9d of the day. [These provisions]\nare put forward as evidence of the purpose of the statutes which are attacked here, and as such\nwe may properly look to them, and also to the history of the body of state Sunday regulations,\nwhich, it is urged, further demonstrates sectarian creedal purpose\xe2\x80\xa6.\nWhat is of concern here is the Sunday institution as it evolved in modern England, the\nAmerican Colonies, and the States of the Union under the Constitution. The first significant\nEnglish Sunday regulation, for this purpose, was the statute of Henry VI in 1448 which, after\nreciting, \xe2\x80\x9cthe abominable injuries and offences done to Almighty God, and to his Saints\xe2\x80\xa6\xe2\x80\x9d\nordained that all fairs and markets should cease to show forth goods or merchandise on Sundays, Good Friday, and the principal feast days\xe2\x80\xa6.\n\xe2\x80\x9cFor the better Observation and keeping Holy the Lord\xe2\x80\x99s Day,\xe2\x80\x9d the statute, 29 Charles II,\nc. 7, which is still the basic Sunday law of Britain, was enacted:\n[T]hat all and every Person and Persons whatsoever, shall on every Lord\xe2\x80\x99s Day\napply themselves to the Observation of the same, by exercising themselves\nthereon in the Duties of Piety and true Religion, publickly and privately; and\nthat no Tradesman, Artificer, Workman, Labourer or other Person whatsoever, shall do or exercise any wordly Labour, Business or Work of their ordinary Callings, upon the Lord\xe2\x80\x99s Day\xe2\x80\xa6\n\xe2\x80\xa6These Sunday laws were indisputably works of the English Establishment. Their prefatory language spoke their religious inspiration, exceptions made from time to time were expressly limited to preserve inviolable the hours of the divine service, and in their administration\na spirit of inquisitorial piety was evident. But even in this period of religious predominance, notes\nof a secondary civil purpose could be heard. Apart from the counsel of those who had from the\ntime of the Reformation insisted that the Fourth Commandment itself embodied a precept of\nsocial rather than sacramental significance, claims were asserted in the eighteenth century on\nbehalf of Sunday rest, in part, in the service of health and welfare\xe2\x80\xa6.\nBut, whatever the nature of the propulsions underlying state-enforced Sunday labor stoppage during these centuries before the twentieth, it is clear that its effect was the creation of an\ninstitution of Sunday as a day apart. The origins of the institution were religious, certainly, but\nthrough long-established usage it had become a part of the life of the English people\xe2\x80\xa6.\nThus the English experience demonstrates the intimate relationship between civil Sunday\nregulation and the interest of a state in preserving to its people a recurrent time of mental and\nphysical recurperation from the strains and pressures of their ordinary labors. It demonstrates\nalso, of course, the intimate historical connection between the choice of Sunday as this time of\nrest and the doctrines of the Christian church. Long before the emergence of modern notions of\ngovernment, religion had set Sunday apart. Through generations, the people were accustomed\nto it as a day when ordinary uses ceased\xe2\x80\xa6.\nIn England\xe2\x80\x99s American settlements, too, civil Sunday regulation early became an institution\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 167\nof importance in shaping the colonial pattern of life. Every Colony had a law prohibiting Sunday\nlabor\xe2\x80\xa6. The earlier among the colonial Sunday statutes were unquestionably religious in purpose. Their preambles recite that profanation of the Lord\xe2\x80\x99s day \xe2\x80\x9cto the great Reproach of the\nChristian Religion\xe2\x80\x9d must be suppressed; that \xe2\x80\x9cthe keeping holy the Lord\xe2\x80\x99s day, is a principal\npart of the true service of God\xe2\x80\xa6.\xe2\x80\x9d Prohibitions of Sunday labor are frequently coupled with\nadmonitions that all persons shall \xe2\x80\x9ccarefully apply themselves to Duties of Religion and Piety,\npublickly and privately\xe2\x80\xa6\xe2\x80\x9d and are found in comprehensive ecclesiastical codes which also prohibit blasphemy\xe2\x80\xa6.\nLegislation currently in force in forty-nine of the Fifty States illegalizes on Sunday some\nform of conduct lawful if performed on weekdays\xe2\x80\xa6. Most of these regulations are the product\nof many re-enactments and amendments. Although some are still built upon the armatures of\nearlier statutes, they are all, like the laws of Maryland, Massachusetts and Pennsylvania which\nare before us in these cases, recently reconsidered legislation\xe2\x80\xa6. In all, they reflect a widely felt\npresent-day need, for whose satisfaction old laws are shaped and new laws enacted.\nTo be sure, the Massachusetts statute now before the Court, and statutes in Pennsylvania\nand Maryland, still call Sunday the \xe2\x80\x9cLord\xe2\x80\x99s day\xe2\x80\x9d or the \xe2\x80\x9cSabbath.\xe2\x80\x9d So do the Sunday laws in\nmany other States. But the continuation of seventeenth century language does not of itself prove\nthe continuation of the purposes for which the colonial governments enacted these laws, or that\nthese are the purposes for which their successors of the twentieth have retained them and modified them. \xe2\x80\xa6 Sunday legislation has been supported not only by such clerical organizations as\nthe Lord\xe2\x80\x99s Day Alliance, but also by labor and trade groups\xe2\x80\xa6.\nIt cannot be fairly denied that the institution of Sunday as a time whose occupations and\natmosphere differ from those of other days of the week has now been a portion of the American\ncultural scene since well before the Constitution; that for many millions of people life has a\nhebdomadal rhythm in which this day, with all its particular associations, is the recurrent note\nof repose. Cultural history establishes not a few practices and prohibitions religious in origin\nwhich are retained as secular institutions and ways long after their religious sanctions and justifications are gone. In light of these considerations, can it reasonably be said that no substantial\nnonecclesiastical purpose relevant to a well-ordered social life exists for Sunday restrictions?\n\xe2\x80\xa6.The question before the Court in these cases is not a new one. During a hundred and\nfifty years Sunday laws have been attacked in state and federal courts as disregarding constitutionally demanded Church-State separation, or infringing protected religious freedoms, or on\nthe ground that they subserved no end within the legitimate compass of legislative power. One\nCalifornia court in 1858 held California\xe2\x80\x99s Sunday statute unconstitutional. That decision was\noverruled three years later. Every other appellate court that has considered the question has\nfound the statutes supportable as civil regulations and not repugnant to religious freedom. These\ndecisions are assailed as latter-day justifications upon specious civil grounds of legislation whose\nreligious purposes were either overlooked or concealed by the judges who passed upon it. Of\ncourse, it is for this Court ultimately to determine whether federal constitutional guarantees are\nobserved or undercut. But this does not mean that we are to be indifferent to the unanimous\nopinion of generations of judges who, in the conscientious discharge of obligations as solemn as\nour own, have sustained the Sunday laws as not inspired by religious purpose\xe2\x80\xa6. I cannot ignore\nthat consensus of view now. The statutes of Maryland, Massachusetts and Pennsylvania which\nwe here examine are not constitutionally forbidden fusions of church and state.\nMr. Justice DOUGLAS, dissenting.\n[Like Justice Frankfurter\xe2\x80\x99s opinion, Justice Douglas filed this dissent in response to multiple cases\ndecided the same day, including McGowan and Braunfeld v. Brown, which is excerpted below\nin Section 4.]\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c168 Religion in the Law\nThe question is not whether one day out of seven can be imposed by a State as a day of rest.\nThe question is not whether Sunday can by force of custom and habit be retained as a day of\nrest. The question is whether a State can impose criminal sanctions on those who, unlike the\nChristian majority that makes up our society, worship on a different day or do not share the\nreligious scruples of the majority\xe2\x80\xa6.\nI do not see how a State can make protesting citizens refrain from doing innocent acts on\nSunday because the doing of those acts offends sentiments of their Christian neighbors.\nThe institutions of our society are founded on the belief that there is an authority higher\nthan the authority of the State; that there is a moral law which the state is powerless to alter;\nthat the individual possesses rights, conferred by the Creator, which government must respect\xe2\x80\xa6.\nAnd the body of the Constitution as well as the Bill of Rights enshrined those principles.\nThe Puritan influence helped shape our constitutional law and our common law: The Puritan \xe2\x80\x9cput individual conscience and individual judgment in the first place.\xe2\x80\x9d For these reasons we\nstated in Zorach v. Clauson, 343 U.S. 306, 313, \xe2\x80\x9cWe are a religious people whose institutions\npresuppose a Supreme Being.\xe2\x80\x9d\nBut those who fashioned the First Amendment decided that if and when God is to be served,\nHis service will not be motivated by coercive measures of government. \xe2\x80\x9cCongress shall make no\nlaw respecting an establishment of religion, or prohibiting the free exercise thereof\xe2\x80\x9d\xe2\x80\x94such is the\ncommand of the First Amendment\xe2\x80\xa6. This means, as I understand it, that if a religious leaven is\nto be worked into the affairs of our people, it is to be done by individuals and groups, not by\nthe Government. This necessarily means, first, that the dogma, creed, scruples, or practices of\nno religious group or sect are to be preferred over those of any others; second, that no one shall\nbe interfered with by government for practicing the religion of his choice; third, that the State\nmay not require anyone to practice a religion or even any religion; and fourth, that the State\ncannot compel one so to conduct himself as not to offend the religious scruples of another. The\nidea, as I understand it, was to limit the power of government to act in religious matters\xe2\x80\xa6, not\nto limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or\nagnostics.\nThe First Amendment commands government to have no interest in theology or ritual; it\nadmonishes government to be interested in allowing religious freedom to flourish\xe2\x80\x94whether the\nresult is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of\nBuddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or\nagnostics. On matters of this kind government must be neutral. \xe2\x80\xa6 The \xe2\x80\x9cestablishment\xe2\x80\x9d clause\nprotects citizens also against any law which selects any religious custom, practice, or ritual, puts\nthe force of government behind it, and fines, imprisons, or otherwise penalizes a person for not\nobserving it. The Government plainly could not join forces with one religious group and decree\na universal and symbolic circumcision. Nor could it require all children to be baptized or give\ntax exemptions only to those whose children were baptized.\nCould it require a fast from sunrise to sunset throughout the Moslem month of Ramadan?\nI should think not. Yet why then can it make criminal the doing of other acts, as innocent as\neating, during the day that Christians revere? Sunday is a word heavily overlaid with connotations and traditions deriving from the Christian roots of our civilization that color all judgments\nconcerning it\xe2\x80\xa6.\n\xe2\x80\x9cFor most judges, for most lawyers, for most human beings, we are as unconscious of our\nvalue patterns as we are of the oxygen that we breathe.\xe2\x80\x9d Cohen, Legal Conscience (1960), p.\n169.\nThe issue of those cases would therefore be in better focus if we imagined that a state legislature, controlled by orthodox Jews and Seventh-Day Adventists, passed a law making it a crime\nto keep a shop open on Saturdays. Would a Baptist, Catholic, Methodist, or Presbyterian be\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 169\ncompelled to obey that law or go to jail or pay a fine? Or suppose Moslems grew in political\nstrength here and got a law through a state legislature making it a crime to keep a shop open on\nFridays. Would the rest of us have to submit under the fear of criminal sanctions? \xe2\x80\xa6\nWe have [in this case] Sunday laws that find their source in Exodus, that were brought here\nby the Virginians and by the Puritans, and that are today maintained, construed, and justified\nbecause they respect the views of our dominant religious groups and provide a needed day of\nrest.\nThe history was accurately summarized a century ago by Chief Justice Terry of the Supreme\nCourt of California in Ex parte Newman, 9 Cal. 502, 509:\nThe truth is, however much it may be disguised, that this one day of rest is a\npurely religious idea. Derived from the Sabbatical institutions of the ancient\nHebrew, it has been adopted into all the creeds of succeeding religious sects\nthroughout the civilized world; and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike\nfixed in the affections of its followers, beyond the power of eradication, and\nin most of the States, the aid of the law to enforce its observance has been\ngiven under the pretense of a civil, municipal, or police regulation.\n\xe2\x80\xa6The Court [in this case] picks and chooses language from various decisions to bolster its\nconclusion that these Sunday laws in the modern setting are \xe2\x80\x9ccivil regulations.\xe2\x80\x9d No matter how\nmuch is written, no matter what is said, the parentage of these laws is the Fourth Commandment; and they serve and satisfy the religious predispositions of our Christian communities. After all, the labels a State places on its laws are not binding on us when we are confronted with a\nconstitutional decision. We reach our own conclusion as to the character, effect, and practical\noperation of the regulation in determining its constitutionality.\nIt seems to me plain that by these laws the States compel one, under sanction of law, to\nrefrain from work or recreation on Sunday because of the majority\xe2\x80\x99s religious views about that\nday. The State by law makes Sunday a symbol of respect or adherence. Refraining from work\nor recreation in deference to the majority\xe2\x80\x99s religious feelings about Sunday is within every person\xe2\x80\x99s choice. By what authority can government compel it?\nCases are put where acts that are immoral by our standards but not by the standards of\nother religious groups are made criminal. That category of cases, until today, has been a very\nrestricted one confined to polygamy (Reynolds v. United States, 98 U.S. 145) and other extreme\nsituations. The latest example is Prince v. Commonwealth of Massachusetts, 321 U.S. 158,\nwhich upheld a statute making it criminal for a child under twelve to sell papers, periodicals, or\nmerchandise on a street or in any public place. It was sustained in spite of the finding that the\nchild thought it was her religious duty to perform the act. But that was a narrow holding which\nturned on the effect which street solicitation might have on the child-solicitor: \xe2\x80\x9cThe state's authority over children's activities is broader than over like actions of adults. This is peculiarly true\nof public activities and in matters of employment.\xe2\x80\x9d \xe2\x80\xa6\nNone of the acts involved here implicates minors. None of the actions made constitutionally\ncriminal today involves the doing of any act that any society has deemed to be immoral. The\nconduct held constitutionally criminal today embraces the selling of pure, not impure, food;\nwholesome, not noxious, articles. Adults, not minors, are involved. The innocent acts, now constitutionally classified as criminal, emphasize the drastic break we make with tradition.\nThese laws are sustained because, it is said, the First Amendment is concerned with religious\nconvictions or opinion, not with conduct. But it is a strange Bill of Rights that makes it possible\nfor the dominant religious group to bring the minority to heel because the minority, in the doing\nof acts which intrinsically are wholesome and not antisocial, does not defer to the majority's\nreligious beliefs. Some have religious scruples against eating pork. Those scruples, no matter\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c170 Religion in the Law\nhow bizarre they might seem to some, are within the ambit of the First Amendment. See United\nStates v. Ballard, 322 U.S. 78, 87. Is it possible that a majority of a state legislature having those\nreligious scruples could make it criminal for the nonbeliever to sell pork? \xe2\x80\xa6\nThe Court balances the need of the people for rest, recreation, late sleeping, family visiting\nand the like against the command of the First Amendment that no one need bow to the religious\nbeliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme. A legislature of Christians can no more make minorities conform to their\nweekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of\nevery group must be respected\xe2\x80\x94unless it crosses the line of criminal conduct\xe2\x80\xa6.\nThe State can, of course, require one day of rest a week: one day when every shop or factory\nis closed. Quite a few States make that requirement. Then the \xe2\x80\x9cday of rest\xe2\x80\x9d becomes purely and\nsimply a health measure. But the Sunday laws operate differently. They force minorities to obey\nthe majority's religious feelings of what is due and proper for a Christian community; they provide a coercive spur to the \xe2\x80\x9cweaker brethren,\xe2\x80\x9d to those who are indifferent to the claims of a\nSabbath through apathy or scruple. Can there be any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a\nMoslem law that forbade them from engaging in secular activities on days that violated Moslem\nscruples?\nThere is an \xe2\x80\x9cestablishment\xe2\x80\x9d of religion in the constitutional sense if any practice of any\nreligious group has the sanction of law behind it. There is an interference with the \xe2\x80\x9cfree exercise\xe2\x80\x9d\nof religion if what in conscience one can do or omit doing is required because of the religious\nscruples of the community. Hence I would declare each of those laws unconstitutional as applied\nto the complaining parties, whether or not they are members of a sect which observes as its\nSabbath a day other than Sunday\xe2\x80\xa6.\nI dissent from applying criminal sanctions against any of these complainants since to do so\nimplicates the States in religious matters contrary to the constitutional mandate.\n\nMcGowan v. Maryland, 366 U.S. 420 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 171\n374 U.S. 203\nSupreme Court of the United States\n\nSchool District of Abington v.\nSchempp\nJune 17, 1963\nMr. Justice CLARK delivered the opinion of the Court.\nOnce again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that \xe2\x80\x9cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d These companion\ncases present the issues in the context of state action requiring that schools begin each day with\nreadings from the Bible\xe2\x80\xa6. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring\nthem are unconstitutional under the Establishment Clause, as applied to the States through the\nFourteenth Amendment.\nThe Facts in Each Case: No. 142. The Commonwealth of Pennsylvania by law \xe2\x80\xa6 requires\nthat \xe2\x80\x9cAt least ten verses from the Holy Bible shall be read, without comment, at the opening of\neach public school on each school day. Any child shall be excused from such Bible reading, or\nattending such Bible reading, upon the written request of his parent or guardian.\xe2\x80\x9d\xe2\x80\xa6\nThe appellees Edward Lewis Schempp, his wife Sidney, and their children, Roger and\nDonna, are of the Unitarian faith and are members of the Unitarian Church in Germantown,\nPhiladelphia, Pennsylvania, where they regularly attend religious services. [Their] children attend\nthe Abington Senior High School, which is a public school operated by appellant district.\nOn each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while\nthe pupils are attending their home rooms or advisory sections, opening exercises are conducted\npursuant to the statute. The exercises are broadcast into each room in the school building\nthrough an intercommunications system and are conducted under the supervision of a teacher\nby students attending the school\xe2\x80\x99s radio and television workshop. Selected students from this\ncourse gather each morning in the school\xe2\x80\x99s workshop studio for the exercises, which include\nreadings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the\nbuilding. This is followed by the recitation of the Lord\xe2\x80\x99s Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and\njoin in repeating the prayer in unison. The exercises are closed with the flag salute and such\npertinent announcements as are of interest to the students. Participation in the opening exercises,\nas directed by the statute, is voluntary. The student reading the verses from the Bible may select\nthe passages and read from any version he chooses, although the only copies furnished by the\nschool are the King James version, copies of which were circulated to each teacher by the school\ndistrict. During the period in which the exercises have been conducted the King James, the\nDouay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy\nScriptures. There are no prefatory statements, no questions asked or solicited, no comments or\nexplanations made and no interpretations given at or during the exercises. The students and\nparents are advised that the student may absent himself from the classroom or, should he elect\nto remain, not participate in the exercises\xe2\x80\xa6.\nNo. 119. In 1905 the Board of School Commissioners of Baltimore City adopted a rule\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c172 Religion in the Law\npursuant to Art. 77, s 202 of the Annotated Code of Maryland. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the \xe2\x80\x9creading, without\ncomment, of a chapter in the Holy Bible and/or the use of the Lord\xe2\x80\x99s Prayer.\xe2\x80\x9d The petitioners,\nMrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was\nfiled for mandamus to compel its rescission and cancellation. It was alleged that \xe2\x80\xa6 it was the\npractice under the rule to have a reading on each school morning from the King James version\nof the Bible; that at petitioners\xe2\x80\x99 insistence the rule was amended to permit children to be excused\nfrom the exercise on request of the parent and that William had been excused pursuant thereto;\nthat nevertheless the rule as amended was in violation of the petitioners\xe2\x80\x99 rights \xe2\x80\x9cto freedom of\nreligion under the First and Fourteenth Amendments\xe2\x80\x9d and in violation of \xe2\x80\x9cthe principle of separation between church and state, contained therein.\xe2\x80\x9d \xe2\x80\xa6\nIt is true that religion has been closely identified with our history and government. As we\nsaid in Engel v. Vitale, 370 U.S. 421, 434 (1962), \xe2\x80\x9cThe history of man is inseparable from the\nhistory of religion. And since the beginning of that history many people have devoutly believed\nthat \xe2\x80\x98more things are wrought by prayer than this world dreams of.\xe2\x80\x99\xe2\x80\x9d In Zorach v. Clauson, 343\nU.S. 306, 313 (1952), we gave specific recognition to the proposition that \xe2\x80\x9c(w)e are a religious\npeople whose institutions presuppose a Supreme Being.\xe2\x80\x9d The fact that the Founding Fathers\nbelieved devotedly that there was a God and that the unalienable rights of man were rooted in\nHim is clearly evidenced in their writings, from the Mayflower Compact to the Constitution\nitself. This background is evidenced today in our public life through the continuance in our oaths\nof office from the Presidency to the Alderman of the final supplication, \xe2\x80\x9cSo help me God.\xe2\x80\x9d\nLikewise each House of the Congress provides through its Chaplain an opening prayer, and the\nsessions of this Court are declared open by the crier in a short ceremony, the final phrase of\nwhich invokes the grace of God.\xe2\x80\xa6 Indeed, only last year [the Census] indicated that 64% of\nour people have church membership, while less than 3% profess no religion whatever. It can be\ntruly said, therefore, that today, as in the beginning, our national life reflects a religious people\nwho, in the words of Madison, are \xe2\x80\x9cearnestly praying, as in duty bound, that the Supreme Lawgiver of the Universe guide them into every measure which may be worthy of his (blessing).\xe2\x80\x9d\nThis is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbeded in our public and private life.\nNothing but the most telling of personal experiences in religious persecution suffered by our\nforebears, could have planted our belief in liberty of religious opinion any more deeply in our\nheritage. It is true that this liberty frequently was not realized by the colonists, but this is readily\naccountable by their close ties to the Mother Country. However, the views of Madison and\nJefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States. This freedom to worship was indispensable in\na country whose people came from the four quarters of the earth and brought with them a\ndiversity of religious opinion. Today authorities list 83 separate religious bodies, each with membership exceeding 50,000, existing among our people, as well as innumerable smaller groups\xe2\x80\xa6.\n[This] Court has decisively settled that the First Amendment\xe2\x80\x99s mandate that \xe2\x80\x9cCongress shall\nmake no law respecting an establishment of religion, or prohibiting the free exercise thereof\xe2\x80\x9d\nhas been made wholly applicable to the States by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)\xe2\x80\xa6.\nSecond, this Court has rejected unequivocally the contention that the Establishment Clause\nforbids only governmental preference of one religion over another. Almost 20 years ago in Everson, 330 U.S. at 15, the Court said that \xe2\x80\x9c(n)either a state nor the Federal Government can set\nup a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion\nover another.\xe2\x80\x9d\n\xe2\x80\xa6In 1952 in Zorach v. Clauson, Mr. Justice Douglas for the Court reiterated:\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 173\nThere cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference\nwith the free exercise of religion and an establishment of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is\nabsolute\xe2\x80\xa6. 343 U.S. at 312.\nAnd then in 1961 in McGowan v. Maryland and in Torcaso v. Watkins each of these cases\nwas discussed and approved. \xe2\x80\xa6Mr. Justice Black for the Court in Torcaso used this language:\nWe repeat and again reaffirm that neither a State nor the Federal Government\ncan constitutionally force a person \xe2\x80\x9cto profess a belief or disbelief in any religion.\xe2\x80\x9d Neither can constitutionally pass laws or impose requirements which\naid all religions as against non-believers, and neither can aid those religions\nbased on a belief in the existence of God as against those religions founded on\ndifferent beliefs. 367 U.S. at 495.\nFinally, in Engel v. Vitale, only last year, these principles were so universally recognized that\nthe Court, without the citation of a single case \xe2\x80\xa6 reaffirmed them. The Court found the 22word prayer used in \xe2\x80\x9cNew York\xe2\x80\x99s program of daily classroom invocation of God\xe2\x80\x99s blessings as\nprescribed in the Regents\xe2\x80\x99 prayer (to be) a religious activity.\xe2\x80\x9d 370 U.S. at 424. It held that \xe2\x80\x9cit is\nno part of the business of government to compose official prayers for any group of the American\npeople to recite as a part of a religious program carried on by government.\xe2\x80\x9d 370 U.S. at 425....\nAnd in further elaboration the Court found that the \xe2\x80\x9cfirst and most immediate purpose (of\nthe Establishment Clause) rested on the belief that a union of government and religion tends to\ndestroy government and to degrade religion.\xe2\x80\x9d 370 U.S. at 431. When government, the Court\nsaid, allies itself with one particular form of religion, the inevitable result is that it incurs \xe2\x80\x9cthe\nhatred, disrespect and even contempt of those who held contrary beliefs.\xe2\x80\x9d\nThe wholesome \xe2\x80\x9cneutrality\xe2\x80\x9d of which this Court\xe2\x80\x99s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of\ngovernmental and religious functions or a concert or dependency of one upon the other to the\nend that official support of the State or Federal Government would be placed behind the tenets\nof one or of all orthodoxies. This the Establishment Clause prohibits.\n[The] Establishment Clause has been directly considered by this Court eight times in the\npast score of years and, with only one Justice dissenting on the point, it has consistently held\nthat the clause withdrew all legislative power respecting religious belief or the expression thereof.\nThe test may be stated as follows: what are the purpose and the primary effect of the enactment?\nIf either is the advancement or inhibition of religion then the enactment exceeds the scope of\nlegislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect\nthat neither advances nor inhibits religion\xe2\x80\xa6.\nApplying the Establishment Clause principles to the cases at bar we find that the States are\nrequiring the selection and reading at the opening of the school day of verses from the Holy\nBible and the recitation of the Lord\xe2\x80\x99s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school.\nThey are held in the school buildings under the supervision and with the participation of teachers\nemployed in those schools. None of these factors, other than compulsory school attendance,\nwas present in the program upheld in Zorach v. Clauson. The trial court in No. 142 has found\nthat such an opening exercise is a religious ceremony and was intended by the State to be so. We\nagree with the trial court\xe2\x80\x99s finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.\nThere is no such specific finding as to the religious character of the exercises in No. 119,\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c174 Religion in the Law\nand the State contends (as does the State in No. 142) that the program is an effort to extend its\nbenefits to all public school children without regard to their religious belief. Included within its\nsecular purposes, it says, are the promotion of moral values, the contradiction to the materialistic\ntrends of our times, the perpetuation of our institutions and the teaching of literature. \xe2\x80\xa6[The]\nuniform practice under the rule had been to read from the King James version of the Bible and\nthat the exercise was sectarian. \xe2\x80\xa6[The] religious character of the exercise was admitted by the\nState. But even if its purpose is not strictly religious, it is sought to be accomplished through\nreadings, without comment, from the Bible. Surely the place of the Bible as an instrument of\nreligion cannot be gainsaid, and the State\xe2\x80\x99s recognition of the pervading religious character of\nthe ceremony is evident from the rule\xe2\x80\x99s specific permission of the alternative use of the Catholic\nDouay version as well as the recent amendment permitting nonattendance at the exercises. None\nof these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.\nThe conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor\nare these required exercises mitigated by the fact that individual students may absent themselves\nupon parental request, for that fact furnishes no defense to a claim of unconstitutionality under\nthe Establishment Clause. \xe2\x80\xa6 Further, it is no defense to urge that the religious practices here\nmay be relatively minor encroachments on the First Amendment. The breach of neutrality that\nis today a trickling stream may all too soon become a raging torrent and, in the words of Madison, \xe2\x80\x9cit is proper to take alarm at the first experiment on our liberties.\xe2\x80\x9d\nIt is insisted that unless these religious exercises are permitted a \xe2\x80\x9creligion of secularism\xe2\x80\x9d is\nestablished in the schools. We agree of course that the State may not establish a \xe2\x80\x9creligion of\nsecularism\xe2\x80\x9d in the sense of affirmatively opposing or showing hostility to religion, thus \xe2\x80\x9cpreferring those who believe in no religion over those who do believe.\xe2\x80\x9d Zorach v. Clauson, 343 U.S.\nat 314. We do not agree, however, that this decision in any sense has that effect. In addition, it\nmight well be said that one\xe2\x80\x99s education is not complete without a study of comparative religion\nor the history of religion and its relationship to the advancement of civilization. It certainly may\nbe said that the Bible is worthy of study for its literary and historic qualities. Nothing we have\nsaid here indicates that such study of the Bible or of religion, when presented objectively as part\nof a secular program of education, may not be effected consistently with the First Amendment.\nBut the exercises here do not fall into those categories. They are religious exercises, required by\nthe States in violation of the command of the First Amendment that the Government maintain\nstrict neutrality, neither aiding nor opposing religion.\nFinally, we cannot accept that the concept of neutrality, which does not permit a State to\nrequire a religious exercise even with the consent of the majority of those affected, collides with\nthe majority\xe2\x80\x99s right to free exercise of religion. While the Free Exercise Clause clearly prohibits\nthe use of state action to deny the rights of free exercise to anyone, it has never meant that a\nmajority could use the machinery of the State to practice its beliefs\xe2\x80\xa6.\nThe place of religion in our society is an exalted one, achieved through a long tradition of\nreliance on the home, the church and the inviolable citadel of the individual heart and mind. We\nhave come to recognize through bitter experience that it is not within the power of government\nto invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In\nthe relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself\nis clearly and concisely stated in the words of the First Amendment. It is so ordered.\nMr. Justice DOUGLAS, concurring.\n...These regimes violate the Establishment Clause in two different ways. In each case the\nState is conducting a religious exercise; and, as the Court holds, that cannot be done without\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 175\nviolating the \xe2\x80\x9cneutrality\xe2\x80\x9d required of the State by the balance of power between individual,\nchurch and state that has been struck by the First Amendment. But the Establishment Clause is\nnot limited to precluding the State itself from conducting religious exercises. It also forbids the\nState to employ its facilities or funds in a way that gives any church, or all churches, greater\nstrength in our society than it would have by relying on its members alone. Thus, the present\nregimes must fall under that clause for the additional reason that public funds, though small in\namount, are being used to promote a religious exercise. Through the mechanism of the State, all\nof the people are being required to finance a religious exercise that only some of the people want\nand that violates the sensibilities of others.\nThe most effective way to establish any institution is to finance it; and this truth is reflected\nin the appeals by church groups for public funds to finance their religious schools. Financing a\nchurch either in its strictly religious activities or in its other activities is equally unconstitutional,\nas I understand the Establishment Clause. Budgets for one activity may be technically separable\nfrom budgets for others. But the institution is an inseparable whole, a living organism, which is\nstrengthened in proselytizing when it is strengthened in any department by contributions from\nother than its own members.\nSuch contributions may not be made by the State even in a minor degree without violating the\nEstablishment Clause. It is not the amount of public funds expended; as this case illustrates, it is\nthe use to which public funds are put that is controlling\xe2\x80\xa6.\nMr. Justice BRENNAN, concurring.\n\xe2\x80\xa6[An] awareness of history and an appreciation of the aims of the Founding Fathers do\nnot always resolve concrete problems. The specific question before us has, for example, aroused\nvigorous dispute whether the architects of the First Amendment\xe2\x80\x94James Madison and Thomas\nJefferson particularly\xe2\x80\x94understood the prohibition against any \xe2\x80\x9claw respecting an establishment\nof religion\xe2\x80\x9d to reach devotional exercises in the public schools. It may be that Jefferson and\nMadison would have held such exercises to be permissible\xe2\x80\x94although even in Jefferson\xe2\x80\x99s case\nserious doubt is suggested by his admonition against \xe2\x80\x9cputting the Bible and Testament into the\nhands of the children at an age when their judgments are not sufficiently matured for religious\ninquiries.\xe2\x80\x9d But I doubt that their view, even if perfectly clear one way or the other, would supply\na dispositive answer to the question presented by these cases.\nA more fruitful inquiry, it seems to me, is whether the practices here challenged threaten\nthose consequences which the Framers deeply feared; whether, in short, they tend to promote\nthat type of interdependence between religion and state which the First Amendment was designed to prevent. Our task is to translate \xe2\x80\x9cthe majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century.\xe2\x80\x9d West Virginia State\nBoard of Education v. Barnette, 319 U.S. 624, 639.\nA too literal quest for the advice of the Founding Fathers upon the issues of these cases\nseems to me futile and misdirected for several reasons: First, on our precise problem the historical\nrecord is at best ambiguous, and statements can readily be found to support either side of the\nproposition. The ambiguity of history is understandable if we recall the nature of the problems\nuppermost in the thinking of the statesmen who fashioned the religious guarantees; they were\nconcerned with far more flagrant intrusions of government into the realm of religion than any\nthat our century has witnessed. While it is clear to me that the Framers meant the Establishment\nClause to prohibit more than the creation of an established federal church such as existed in\nEngland, I have no doubt that, in their preoccupation with the imminent question of established\nchurches, they gave no distinct consideration to the particular question whether the clause also\nforbade devotional exercises in public institutions.\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c176 Religion in the Law\nSecond, the structure of American education has greatly changed since the First Amendment\nwas adopted. In the context of our modern emphasis upon public education available to all\ncitizens, any views of the eighteenth century as to whether the exercises at bar are an \xe2\x80\x9cestablishment\xe2\x80\x9d offer little aid to decision. Education, as the Framers knew it, was in the main confined\nto private schools more often than not under strictly sectarian supervision. Only gradually did\ncontrol of education pass largely to public officials. It would, therefore, hardly be significant if\nthe fact was that the nearly universal devotional exercises in the schools of the young Republic\ndid not provoke criticism; even today religious ceremonies in church-supported private schools\nare constitutionally unobjectionable.\nThird, our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today the Nation is far more\nheterogeneous religiously, including as it does substantial minorities not only of Catholics and\nJews but as well of those who worship according to no version of the Bible and those who\nworship no God at all\xe2\x80\xa6. In the face of such profound changes, practices which may have been\nobjectionable to no one in the time of Jefferson and Madison may today be highly offensive to\nmany persons, the deeply devout and the nonbelievers alike\xe2\x80\xa6.\nFourth, the American experiment in free public education available to all children has been\nguided in large measure by the dramatic evolution of the religious diversity among the population which our public schools serve. The interaction of these two important forces in our national life has placed in bold relief certain positive values in the consistent application to public\ninstitutions generally, and public schools particularly, of the constitutional decree against official\ninvolvements of religion which might produce the evils the Framers meant the Establishment\nClause to forestall. The public schools are supported entirely, in most communities, by public\nfunds\xe2\x80\x94funds exacted not only from parents, nor alone from those who hold particular religious\nviews, nor indeed from those who subscribe to any creed at all. It is implicit in the history and\ncharacter of American public education that the public schools serve a uniquely public function:\nthe training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort\xe2\x80\x94an atmosphere in which children may assimilate a heritage common to all\nAmerican groups and religions. This is a heritage neither theistic nor atheistic, but simply civic\nand patriotic\xe2\x80\xa6.\nI believe that the line we must draw between the permissible and the impermissible is one\nwhich accords with history and faithfully reflects the understanding of the Founding Fathers\xe2\x80\xa6.\nWhat the Framers meant to foreclose, and what our decisions under the Establishment Clause\nhave forbidden, are those involvements of religious with secular institutions which (a) serve the\nessentially religious activities of religious institutions; (b) employ the organs of government for\nessentially religious purposes; or (c) use essentially religious means to serve governmental ends,\nwhere secular means would suffice. When the secular and religious institutions become involved\nin such a manner, there inhere in the relationship precisely those dangers\xe2\x80\x94as much to church as\nto state\xe2\x80\x94which the Framers feared would subvert religious liberty and the strength of a system\nof secular government. On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers and therefore should not, in my judgment, be deemed to violate the Establishment Clause. Nothing in the Constitution compels the\norgans of government to be blind to what everyone else perceives\xe2\x80\x94that religious differences\namong Americans have important and pervasive implications for our society. Likewise nothing\nin the Establishment Clause forbids the application of legislation having purely secular ends in\nsuch a way as to alleviate burdens upon the free exercise of an individual\xe2\x80\x99s religious beliefs.\nSurely the Framers would never have understood that such a construction sanctions that involvement which violates the Establishment Clause. Such a conclusion can be reached, I would\nsuggest, only by using the words of the First Amendment to defeat its very purpose\xe2\x80\xa6.\nThe principles which we reaffirm and apply today can hardly be thought novel or radical.\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 177\nThey are, in truth, as old as the Republic itself, and have always been as integral a part of the\nFirst Amendment as the very words of that charter of religious liberty. No less applicable today\nthan they were when first pronounced a century ago \xe2\x80\xa6 are the words of a distinguished Chief\nJustice of the Commonwealth of Pennsylvania, Jeremiah S. Black in his Essay on Religious Liberty (1866):\nThe manifest object of the men who framed the institutions of this country,\nwas to have a State without religion, and a Church without politics\xe2\x80\x94that is\nto say, they meant that one should never be used as an engine for any purpose\nof the other, and that no man\xe2\x80\x99s rights in one should be tested by his opinions\nabout the other. As the Church takes no note of men\xe2\x80\x99s political differences, so\nthe State looks with equal eye on all the modes of religious faith. Our fathers\nseem to have been perfectly sincere in their belief that the members of the\nChurch would be more patriotic, and the citizens of the State more religious,\nby keeping their respective functions entirely separate.\nMr. Justice GOLDBERG, with whom Mr. Justice HARLAN joins, concurring.\n\xe2\x80\xa6It is said, and I agree, that the attitude of government toward religion must be one of\nneutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval\nof results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled\nby the Constitution, but, it seems to me, are prohibited by it.\nNeither government nor this Court can or should ignore the significance of the fact that a\nvast portion of our people believe in and worship God and that many of our legal, political and\npersonal values derive historically from religious teachings. Government must inevitably take\ncognizance of the existence of religion and, indeed, under certain circumstances the First Amendment may require that it do so. And it seems clear to me from the opinions in the present and\npast cases that the Court would recognize the propriety of providing military chaplains and of\nthe teaching about religion, as distinguished from the teaching of religion, in the public schools.\nThe examples could readily be multiplied, for both the required and the permissible accommodations between state and church frame the relation as one free of hostility or favor and productive of religious and political harmony, but without undue involvement of one in the concerns or practices of the other. To be sure, the judgment in each case is a delicate one, but it must\nbe made if we are to do loyal service as judges to the ultimate First Amendment objective of\nreligious liberty\xe2\x80\xa6.\nMr. Justice STEWART, dissenting.\nI think the records in the two cases before us are so fundamentally deficient as to make\nimpossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that on these records we can say that the Establishment Clause has necessarily been violated. But I think there exist serious questions under both that provision and the\nFree Exercise Clause\xe2\x80\x94insofar as each is imbedded in the Fourteenth Amendment\xe2\x80\x94which require the remand of these cases for the taking of additional evidence.\nIn the absence of evidence that the legislature or school board intended to prohibit local\nschools from substituting a different set of readings where parents requested such a change, we\nshould not assume that the provisions before us\xe2\x80\x94as actually administered\xe2\x80\x94may not be construed simply as authorizing religious exercises, nor that the designations may not be treated\nsimply as indications of the promulgating body\xe2\x80\x99s view as to the community\xe2\x80\x99s preference. We are\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c178 Religion in the Law\nunder a duty to interpret these provisions so as to render them constitutional if reasonably possible\xe2\x80\xa6. In the Schempp case there is evidence which indicates that variations were in fact permitted by the very school there involved, and that further variations were not introduced only\nbecause of the absence of requests from parents. And in the Murray case the Baltimore rule itself\ncontains a provision permitting another version of the Bible to be substituted for the King James\nversion.\nIf the provisions are not so construed, I think that their validity under the Establishment\nClause would be extremely doubtful, because of the designation of a particular religious book\nand a denominational prayer. But since, even if the provisions are construed as I believe they\nmust be, I think that the cases before us must be remanded for further evidence on other issues\xe2\x80\x94\nthus affording the plaintiffs an opportunity to prove that local variations are not in fact permitted\xe2\x80\xa6. In the absence of coercion upon those who do not wish to participate\xe2\x80\x94because they hold\nless strong beliefs, other beliefs, or no beliefs at all\xe2\x80\x94such provisions cannot, in my view, be held\nto represent the type of support of religion barred by the Establishment Clause\xe2\x80\xa6.\n[It] seems to me clear that the records in both of the cases before us are wholly inadequate\nto support an informed or responsible decision. Both cases involve provisions which explicitly\npermit any student who wishes, to be excused from participation in the exercises. There is no\nevidence in either case as to whether there would exist any coercion of any kind upon a student\nwho did not want to participate. No evidence at all was adduced in the Murray case, because it\nwas decided upon a demurrer. All that we have in that case, therefore, is the conclusory language\nof a pleading. \xe2\x80\xa6 I think that the nature of the constitutional problem involved here clearly demands that no decision be made except upon evidence. In the Schempp case the record shows\nno more than a subjective prophecy by a parent of what he thought would happen if a request\nwere made to be excused from participation in the exercises under the amended statute. No such\nrequest was ever made, and there is no evidence whatever as to what might or would actually\nhappen, nor of what administrative arrangements the school actually might or could make to\nfree from pressure of any kind those who do not want to participate in the exercises\xe2\x80\xa6.\nWhat our Constitution indispensably protects is the freedom of each of us, be he Jew or\nAgnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or\nnot worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained\nby government. It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such\na way as to meet this constitutional standard\xe2\x80\x94in such a way as completely to free from any\nkind of official coercion those who do not affirmatively want to participate. But I think we must\nnot assume that school boards so lack the qualities of inventiveness and good will as to make\nimpossible the achievement of that goal.\nI would remand both cases for further hearing.\n\nSchool District of Abington v. Schempp, 374 U.S. 203 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 179\n\n465 U.S. 668\nSupreme Court of the United States\n\nLynch v. Donnelly\nMarch 5, 1984\nTHE CHIEF JUSTICE delivered the opinion of the Court.\nWe granted certiorari to decide whether the Establishment Clause of the First Amendment\nprohibits a municipality from including a cr\xc3\xa8che, or Nativity scene, in its annual Christmas display.\nEach year, in cooperation with the downtown retail merchants\xe2\x80\x99 association, the City of\nPawtucket, Rhode Island, erects a Christmas display as part of its observance of the Christmas\nholiday season. The display is situated in a park owned by a nonprofit organization and located\nin the heart of the shopping district. The display is essentially like those to be found in hundreds\nof towns or cities across the Nation\xe2\x80\x94often on public grounds\xe2\x80\x94during the Christmas season.\nThe Pawtucket display comprises many of the figures and decorations traditionally associated\nwith Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa\xe2\x80\x99s\nsleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that\nreads \xe2\x80\x9cSEASONS GREETINGS,\xe2\x80\x9d and the cr\xc3\xa8che at issue here. All components of this display\nare owned by the City.\nThe cr\xc3\xa8che, which has been included in the display for 40 or more years, consists of the\ntraditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and\nanimals, all ranging in height from 5\xe2\x80\xb3 \xe2\x80\x9c to 5\xe2\x80\xb2. In 1973, when the present cr\xc3\xa8che was acquired, it\ncost the City $1365; it now is valued at $200. The erection and dismantling of the cr\xc3\xa8che costs\nthe City about $20 per year; nominal expenses are incurred in lighting the cr\xc3\xa8che. No money\nhas been expended on its maintenance for the past 10 years.\nRespondents, Pawtucket residents and individual members of the Rhode Island affiliate of\nthe American Civil Liberties Union, and the affiliate itself, brought this action in the United\nStates District Court for Rhode Island, challenging the City\xe2\x80\x99s inclusion of the cr\xc3\xa8che in the annual\ndisplay. The District Court held that the City\xe2\x80\x99s inclusion of the cr\xc3\xa8che in the display violates the\nEstablishment Clause\xe2\x80\xa6 The City was permanently enjoined from including the cr\xc3\xa8che in the\ndisplay. A divided panel of the Court of Appeals for the First Circuit affirmed. Donnelly v.\nLynch, 691 F.2d 1029 (1982). We granted certiorari, and we reverse.\nThis Court has explained that the purpose of the Establishment and Free Exercise Clauses\nof the First Amendment is \xe2\x80\x9cto prevent, as far as possible, the intrusion of either [the church or\nthe state] into the precincts of the other.\xe2\x80\x9d Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). At the\nsame time, however, the Court has recognized that \xe2\x80\x9ctotal separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.\xe2\x80\x9d\nIbid.\nIn every Establishment Clause case, we must reconcile the inescapable tension between the\nobjective of preventing unnecessary intrusion of either the church or the state upon the other,\nand the reality that, as the Court has so often noted, total separation of the two is not possible.\nThe Court has sometimes described the Religion Clauses as erecting a \xe2\x80\x9cwall\xe2\x80\x9d between\nchurch and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept\nof a \xe2\x80\x9cwall\xe2\x80\x9d of separation is a useful figure of speech probably deriving from views of Thomas\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c180 Religion in the Law\nJefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate\ndescription of the practical aspects of the relationship that in fact exists between church and\nstate.\nNo significant segment of our society and no institution within it can exist in a vacuum or\nin total or absolute isolation from all the other parts, much less from government. \xe2\x80\x9cIt has never\nbeen thought either possible or desirable to enforce a regime of total separation....\xe2\x80\x9d Committee\nfor Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Nor does the\nConstitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U.S. 306, 314, 315, (1952); McCollum v. Board of Education, 333 U.S.\n203, 211 (1948). Anything less would require the \xe2\x80\x9ccallous indifference\xe2\x80\x9d we have said was never\nintended by the Establishment Clause. Zorach343 U.S. at 314. Indeed, we have observed, such\nhostility would bring us into \xe2\x80\x9cwar with our national tradition as embodied in the First Amendment\xe2\x80\x99s guaranty of the free exercise of religion.\xe2\x80\x9d McCollum, 333 U.S. at 211\xe2\x80\x93212.\nThe Court\xe2\x80\x99s interpretation of the Establishment Clause has comported with what history\nreveals was the contemporaneous understanding of its guarantees. A significant example of the\ncontemporaneous understanding of that Clause is found in the events of the first week of the\nFirst Session of the First Congress in 1789. In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation\nproviding for paid chaplains for the House and Senate\xe2\x80\xa6.\nThe interpretation of the Establishment Clause by Congress in 1789 takes on special significance in light of the Court\xe2\x80\x99s emphasis that the First Congress \xe2\x80\x9cwas a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight\nin the interpretation of that fundamental instrument,\xe2\x80\x9d Myers v. United States, 272 U.S. 52, 174\xe2\x80\x93\n175 (1926).\nIt is clear that neither the seventeen draftsmen of the Constitution who were Members of\nthe First Congress, nor the Congress of 1789, saw any establishment problem in the employment\nof congressional Chaplains to offer daily prayers in the Congress, a practice that has continued\nfor nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers.\nThere is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789\xe2\x80\xa6. \xe2\x80\x9cWe are a religious people\nwhose institutions presuppose a Supreme Being.\xe2\x80\x9d Zorach v. Clauson, 343 U.S. at 313\xe2\x80\xa6.\nOur history is replete with official references to the value and invocation of Divine guidance\nin deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a\nday of national celebration and Congress made it a National Holiday more than a century ago.\nThat holiday has not lost its theme of expressing thanks for Divine aid any more than has Christmas lost its religious significance\xe2\x80\xa6.\nOther examples of reference to our religious heritage are found in the statutorily prescribed\nnational motto \xe2\x80\x9cIn God We Trust,\xe2\x80\x9d 36 U.S.C. \xc2\xa7 186, which Congress and the President mandated for our currency, see 31 U.S.C. \xc2\xa7 324, and in the language \xe2\x80\x9cOne nation under God,\xe2\x80\x9d as\npart of the Pledge of Allegiance to the American flag. That pledge is recited by thousands of\npublic school children\xe2\x80\x94and adults\xe2\x80\x94every year.\n\xe2\x80\xa6The very chamber in which oral arguments on this case were heard is decorated with a\nnotable and permanent\xe2\x80\x94not seasonal\xe2\x80\x94symbol of religion: Moses with Ten Commandments.\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 181\nCongress has long provided chapels in the Capitol for religious worship and meditation.\n\xe2\x80\xa6Congress has directed the President to proclaim a National Day of Prayer each year \xe2\x80\x9con\nwhich [day] the people of the United States may turn to God in prayer and meditation at\nchurches, in groups, and as individuals.\xe2\x80\x9d 36 U.S.C. \xc2\xa7 169h. Our Presidents have repeatedly\nissued such Proclamations. Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week and the Jewish High Holy Days. One cannot look at even this\nbrief resume without finding that our history is pervaded by expressions of religious beliefs\xe2\x80\xa6.\nThis history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused \xe2\x80\x9cto construe the Religion Clauses\nwith a literalness that would undermine the ultimate constitutional objective as illuminated by\nhistory.\xe2\x80\x9d Walz v. Tax Commission, 397 U.S. 664, 671 (1970) (Emphasis added)\xe2\x80\xa6.\nRather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith\xe2\x80\x94as an absolutist approach\nwould dictate\xe2\x80\x94the Court has scrutinized challenged legislation or official conduct to determine\nwhether, in reality, it establishes a religion or religious faith, or tends to do so\xe2\x80\xa6.\nIn each case, the inquiry calls for line drawing; no fixed, per se rule can be framed. The\nEstablishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal\ncode capable of ready application. The purpose of the Establishment Clause \xe2\x80\x9cwas to state an\nobjective, not to write a statute.\xe2\x80\x9d Walz, at 668. The line between permissible relationships and\nthose barred by the Clause can no more be straight and unwavering than due process can be\ndefined in a single stroke or phrase or test. The Clause erects a \xe2\x80\x9cblurred, indistinct, and variable\nbarrier depending on all the circumstances of a particular relationship.\xe2\x80\x9d Lemon, 403 U.S. at\n614.\nIn the line-drawing process we have often found it useful to inquire whether the challenged\nlaw or conduct has a secular purpose, whether its principal or primary effect is to advance or\ninhibit religion, and whether it creates an excessive entanglement of government with religion.\nLemon v. Kurtzman. But, we have repeatedly emphasized our unwillingness to be confined to\nany single test or criterion in this sensitive area. \xe2\x80\xa6 In two cases, the Court did not even apply\nthe Lemon \xe2\x80\x9ctest.\xe2\x80\x9d We did not, for example, consider that analysis relevant in Marsh. Nor did\nwe find Lemon useful in Larson v. Valente, 456 U.S. 228 (1982), where there was substantial\nevidence of overt discrimination against a particular church\xe2\x80\xa6.\nThe Court has invalidated legislation or governmental action on the ground that a secular\npurpose was lacking, but only when it has concluded there was no question that the statute or\nactivity was motivated wholly by religious considerations. See, e.g., Stone v. Graham; Epperson\nv. Arkansas, 393 U.S. 97, 107\xe2\x80\x93109 (1968); Abington School District v. Schempp; Engel v. Vitale,\n370 U.S. 421, 424\xe2\x80\x93425 (1962). Even where the benefits to religion were substantial, as in Everson, Board of Education v. Allen, 392 U.S. 236 (1968), Walz, and Tilton, we saw a secular\npurpose and no conflict with the Establishment Clause.\nThe District Court inferred from the religious nature of the cr\xc3\xa8che that the City has no\nsecular purpose for the display. \xe2\x80\xa6 The District Court plainly erred by focusing almost exclusively on the cr\xc3\xa8che. When viewed in the proper context of the Christmas Holiday season, it is\napparent that, on this record, there is insufficient evidence to establish that the inclusion of the\ncr\xc3\xa8che is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes\nare implicated. The City, like the Congresses and Presidents, however, has principally taken note\nof a significant historical religious event long celebrated in the Western World. The cr\xc3\xa8che in the\ndisplay depicts the historical origins of this traditional event long recognized as a National Holiday\xe2\x80\xa6.\nThe narrow question is whether there is a secular purpose for Pawtucket\xe2\x80\x99s display of the\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c182 Religion in the Law\ncr\xc3\xa8che. The display is sponsored by the City to celebrate the Holiday and to depict the origins\nof that Holiday. These are legitimate secular purposes\xe2\x80\xa6.\nThe District Court found that the primary effect of including the cr\xc3\xa8che is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular.\nComparisons of the relative benefits to religion of different forms of governmental support are\nelusive and difficult to make. But to conclude that the primary effect of including the cr\xc3\xa8che is\nto advance religion in violation of the Establishment Clause would require that we view it as\nmore beneficial to and more an endorsement of religion, for example, than expenditure of large\nsums of public money for textbooks supplied throughout the country to students attending\nchurch-sponsored schools, Board of Education v. Allen; expenditure of public funds for transportation of students to church-sponsored schools, Everson v. Board of Education: federal\ngrants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton, noncategorical grants to church-sponsored colleges and\nuniversities, Roemer v. Board of Public Works, 426 U.S. 736 (1976); and the tax exemptions\nfor church properties sanctioned in Walz. It would also require that we view it as more of an\nendorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366\nU.S. 420 (1961); the release time program for religious training in Zorach; and the legislative\nprayers upheld in Marsh.\nWe are unable to discern a greater aid to religion deriving from inclusion of the cr\xc3\xa8che than\nfrom these benefits and endorsements previously held not violative of the Establishment Clause.\nWhat was said about the legislative prayers in Marsh and implied about the Sunday Closing\nLaws in McGowan is true of the City\xe2\x80\x99s inclusion of the cr\xc3\xa8che: its \xe2\x80\x9creason or effect merely happens to coincide or harmonize with the tenets of some ... religions.\xe2\x80\x9d See McGowan, 366 U.S. at\n442\xe2\x80\xa6.\nHere, whatever benefit to one faith or religion or to all religions, is indirect, remote and\nincidental; display of the cr\xc3\xa8che is no more an advancement or endorsement of religion than the\nCongressional and Executive recognition of the origins of the Holiday itself as \xe2\x80\x9cChrist\xe2\x80\x99s Mass,\xe2\x80\x9d\nor the exhibition of literally hundreds of religious paintings in governmentally supported museums\xe2\x80\xa6.\nEntanglement is a question of kind and degree. In this case there is no reason to disturb the\nDistrict Court\xe2\x80\x99s finding on the absence of administrative entanglement. There is no evidence of\ncontact with church authorities concerning the content or design of the exhibit prior to or since\nPawtucket\xe2\x80\x99s purchase of the cr\xc3\xa8che. No expenditures for maintenance of the cr\xc3\xa8che have been\nnecessary; and since the City owns the cr\xc3\xa8che, now valued at $200, the tangible material it contributes is de minimis. In many respects the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing\nhere, of course, like the \xe2\x80\x9ccomprehensive, discriminating, and continuing state surveillance\xe2\x80\x9d or\nthe \xe2\x80\x9cenduring entanglement\xe2\x80\x9d present in Lemon, 403 U.S. at 619\xe2\x80\x93622\xe2\x80\xa6.\nWe are satisfied that the City has a secular purpose for including the cr\xc3\xa8che, that the City\nhas not impermissibly advanced religion, and that including the cr\xc3\xa8che does not create excessive\nentanglement between religion and government\xe2\x80\xa6.\nThe display engenders a friendly community spirit of good will in keeping with the season.\nThe cr\xc3\xa8che may well have special meaning to those whose faith includes the celebration of religious masses, but none who sense the origins of the Christmas celebration would fail to be aware\nof its religious implications\xe2\x80\xa6.\nOf course the cr\xc3\xa8che is identified with one religious faith but no more so than the examples\nwe have set out from prior cases in which we found no conflict with the Establishment Clause.\nIt would be ironic, however, if the inclusion of a single symbol of a particular historic religious\nevent, as part of a celebration acknowledged in the Western World for 20 centuries, and in this\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 183\ncountry by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so \xe2\x80\x9ctaint\xe2\x80\x9d the City\xe2\x80\x99s exhibit as to render it violative of the Establishment Clause. To\nforbid the use of this one passive symbol\xe2\x80\x94the cr\xc3\xa8che\xe2\x80\x94at the very time people are taking note\nof the season with Christmas hymns and carols in public schools and other public places, and\nwhile the Congress and Legislatures open sessions with prayers by paid chaplains would be a\nstilted over-reaction contrary to our history and to our holdings. If the presence of the cr\xc3\xa8che in\nthis display violates the Establishment Clause, a host of other forms of taking official note of\nChristmas, and of our religious heritage, are equally offensive to the Constitution\xe2\x80\xa6.\nWe hold that, notwithstanding the religious significance of the cr\xc3\xa8che, the City of Pawtucket\nhas not violated the Establishment Clause of the First Amendment. Accordingly, the judgment\nof the Court of Appeals is reversed.\nIt is so ordered.\nJustice O\xe2\x80\x99CONNOR, concurring.\n\xe2\x80\xa6I would find that Pawtucket did not intend to convey any message of endorsement of\nChristianity or disapproval of nonChristian religions. The evident purpose of including the\ncr\xc3\xa8che in the larger display was not promotion of the religious content of the cr\xc3\xa8che but celebration of the public holiday through its traditional symbols. Celebration of public holidays, which\nhave cultural significance even if they also have religious aspects, is a legitimate secular purpose\xe2\x80\xa6.\nFocusing on the evil of government endorsement or disapproval of religion makes clear that\nthe effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion\xe2\x80\xa6. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices\nhaving that effect, whether intentionally or unintentionally, that make religion relevant, in reality\nor public perception, to status in the political community.\nPawtucket\xe2\x80\x99s display of its cr\xc3\xa8che, I believe, does not communicate a message that the government intends to endorse the Christian beliefs represented by the cr\xc3\xa8che. Although the religious and indeed sectarian significance of the cr\xc3\xa8che, as the district court found, is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be\nthe purpose of the display\xe2\x80\x94as a typical museum setting, though not neutralizing the religious\ncontent of a religious painting, negates any message of endorsement of that content. The display\ncelebrates a public holiday, and no one contends that declaration of that holiday is understood\nto be an endorsement of religion. The holiday itself has very strong secular components and\ntraditions. Government celebration of the holiday, which is extremely common, generally is not\nunderstood to endorse the religious content of the holiday, just as government celebration of\nThanksgiving is not so understood. The cr\xc3\xa8che is a traditional symbol of the holiday that is very\ncommonly displayed along with purely secular symbols, as it was in Pawtucket.\nThese features combine to make the government\xe2\x80\x99s display of the cr\xc3\xa8che in this particular\nphysical setting no more an endorsement of religion than such governmental \xe2\x80\x9cacknowledgments\xe2\x80\x9d of religion as legislative prayers of the type approved in Marsh v. Chambers, 463 U.S.\n783 (1983), government declaration of Thanksgiving as a public holiday, printing of \xe2\x80\x9cIn God\nWe Trust\xe2\x80\x9d on coins, and opening court sessions with \xe2\x80\x9cGod save the United States and this honorable court.\xe2\x80\x9d Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions,\nexpressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society\xe2\x80\xa6.\nJustice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN and Justice\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c184 Religion in the Law\nSTEVENS join, dissenting.\nThe principles announced in the compact phrases of the Religion Clauses have, as the Court\ntoday reminds us, proven difficult to apply. Faced with that uncertainty, the Court properly\nlooks for guidance to the settled test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971),\nfor assessing whether a challenged governmental practice involves an impermissible step toward\nthe establishment of religion. Applying that test to this case, the Court reaches an essentially\nnarrow result which turns largely upon the particular holiday context in which the City of Pawtucket\xe2\x80\x99s nativity scene appeared. \xe2\x80\xa6 Despite the narrow contours of the Court\xe2\x80\x99s opinion, our\nprecedents in my view compel the holding that Pawtucket\xe2\x80\x99s inclusion of a life-sized display depicting the biblical description of the birth of Christ as part of its annual Christmas celebration\nis unconstitutional. Nothing in the history of such practices or the setting in which the City\xe2\x80\x99s\ncr\xc3\xa8che is presented obscures or diminishes the plain fact that Pawtucket\xe2\x80\x99s action amounts to an\nimpermissible governmental endorsement of a particular faith.\n\xe2\x80\xa6After reviewing the Court\xe2\x80\x99s opinion, I am convinced that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar\nand agreeable. Although the Court\xe2\x80\x99s reluctance to disturb a community\xe2\x80\x99s chosen method of celebrating such an agreeable holiday is understandable, that cannot justify the Court\xe2\x80\x99s departure\nfrom controlling precedent. In my view, Pawtucket\xe2\x80\x99s maintenance and display at public expense\nof a symbol as distinctively sectarian as a cr\xc3\xa8che \xe2\x80\xa6 is plainly contrary to the purposes and values\nof the Establishment Clause to pretend, as the Court does, that the otherwise secular setting of\nPawtucket\xe2\x80\x99s nativity scene dilutes in some fashion the cr\xc3\xa8che\xe2\x80\x99s singular religiosity, or that the\nCity\xe2\x80\x99s annual display reflects nothing more than an \xe2\x80\x9cacknowledgment\xe2\x80\x9d of our shared national\nheritage\xe2\x80\xa6.\n[The] well-defined three-part [Lemon] test expresses the essential concerns animating the\nEstablishment Clause. Thus, the test is designed to ensure that the organs of government remain\nstrictly separate and apart from religious affairs, for \xe2\x80\x9ca union of government and religion tends\nto destroy government and degrade religion.\xe2\x80\x9d Engel v. Vitale, 370 U.S. 421, 431 (1962). And it\nseeks to guarantee that government maintains a position of neutrality with respect to religion\nand neither advances nor inhibits the promulgation and practice of religious beliefs. Everson v.\nBoard of Education, 330 U.S. 1, 15 (1947)\xe2\x80\xa6. In this regard, we must be alert in our examination of any challenged practice not only for an official establishment of religion, but also for\nthose other evils at which the Clause was aimed\xe2\x80\x94\xe2\x80\x9csponsorship, financial support, and active\ninvolvement of the sovereign in religious activity.\xe2\x80\x9d Committee for Public Education v. Nyquist,\nat 772 (quoting Walz v. Tax Commission, 397 U.S. 664, 668 (1970)).\nApplying the three-part test to Pawtucket\xe2\x80\x99s cr\xc3\xa8che, I am persuaded that the City\xe2\x80\x99s inclusion\nof the cr\xc3\xa8che in its Christmas display simply does not reflect a \xe2\x80\x9cclearly secular purpose.\xe2\x80\x9d \xe2\x80\xa6\n[H]ere we have no explicit statement of purpose by Pawtucket\xe2\x80\x99s municipal government accompanying its decision to purchase, display and maintain the cr\xc3\xa8che. Governmental purpose may\nnevertheless be inferred. \xe2\x80\xa6 Pawtucket sought, according to [its brief], only to participate in the\ncelebration of a national holiday and to attract people to the downtown area in order to promote\npre-Christmas retail sales and to help engender the spirit of goodwill and neighborliness commonly associated with the Christmas season.\nDespite these assertions \xe2\x80\xa6 all of Pawtucket\xe2\x80\x99s valid secular objectives can be readily accomplished by other means. Plainly, the City\xe2\x80\x99s interest in celebrating the holiday and in promoting\nboth retail sales and goodwill are fully served by the elaborate display of Santa Claus, reindeer,\nand wishing wells that are already a part of Pawtucket\xe2\x80\x99s annual Christmas display. More importantly, the nativity scene, unlike every other element of the Hodgson Park display, reflects a\nsectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting\nretail commerce simply do not encompass. To be found constitutional, Pawtucket\xe2\x80\x99s seasonal\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 185\ncelebration must at least be non-denominational and not serve to promote religion. The inclusion of a distinctively religious element like the cr\xc3\xa8che, however, demonstrates that a narrower\nsectarian purpose lay behind the decision to include a nativity scene. That the cr\xc3\xa8che retained\nthis religious character for the people and municipal government of Pawtucket is suggested by\nthe Mayor\xe2\x80\x99s testimony at trial in which he stated that for him, as well as others in the City, the\neffort to eliminate the nativity scene from Pawtucket\xe2\x80\x99s Christmas celebration \xe2\x80\x9cis a step towards\nestablishing another religion, non-religion that it may be.\xe2\x80\x9d Plainly, the City and its leaders understood that the inclusion of the cr\xc3\xa8che in its display would serve the wholly religious purpose\nof \xe2\x80\x9ckeep[ing] \xe2\x80\x98Christ in Christmas.\xe2\x80\x99\xe2\x80\x9d 525 F.Supp. at 1173. From this record, therefore, it is impossible to say \xe2\x80\xa6 that a wholly secular goal predominates.\nThe \xe2\x80\x9cprimary effect\xe2\x80\x9d of including a nativity scene in the City\xe2\x80\x99s display is, as the District\nCourt found, to place the government\xe2\x80\x99s imprimatur of approval on the particular religious beliefs exemplified by the cr\xc3\xa8che. Those who believe in the message of the nativity receive the\nunique and exclusive benefit of public recognition and approval of their views. For many, the\nCity\xe2\x80\x99s decision to include the cr\xc3\xa8che as part of its extensive and costly efforts to celebrate Christmas can only mean that the prestige of the government has been conferred on the beliefs associated with the cr\xc3\xa8che, thereby providing \xe2\x80\x9ca significant symbolic benefit to religion....\xe2\x80\x9d Larkin v.\nGrendel\xe2\x80\x99s Den, Inc., 103 S.Ct. at 511. The effect on minority religious groups, as well as on\nthose who may reject all religion, is to convey the message that their views are not similarly\nworthy of public recognition nor entitled to public support. It was precisely this sort of religious\nchauvinism that the Establishment Clause was intended forever to prohibit. In this case, as in\nEngel v. Vitale, \xe2\x80\x9c[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.\xe2\x80\x9d 370 U.S. at 431\xe2\x80\xa6.\nThe Court, by focusing on the holiday \xe2\x80\x9ccontext\xe2\x80\x9d in which the nativity scene appeared, seeks\nto explain away the clear religious import of the cr\xc3\xa8che and the findings of the District Court\nthat most observers understood the cr\xc3\xa8che as both a symbol of Christian beliefs and a symbol\nof the City\xe2\x80\x99s support for those beliefs. Thus, although the Court concedes that the City\xe2\x80\x99s inclusion of the nativity scene plainly serves \xe2\x80\x9cto depict the origins\xe2\x80\x9d of Christmas as a \xe2\x80\x9csignificant\nhistorical religious event,\xe2\x80\x9d and that the cr\xc3\xa8che \xe2\x80\x9cis identified with one religious faith,\xe2\x80\x9d we are\nnevertheless expected to believe that Pawtucket\xe2\x80\x99s use of the cr\xc3\xa8che does not signal the City\xe2\x80\x99s\nsupport for the sectarian symbolism that the nativity scene evokes. The effect of the cr\xc3\xa8che, of\ncourse, must be gauged not only by its inherent religious significance but also by the overall\nsetting in which it appears. But it blinks reality to claim, as the Court does, that by including\nsuch a distinctively religious object as the cr\xc3\xa8che in its Christmas display, Pawtucket has done\nno more than make use of a \xe2\x80\x9ctraditional\xe2\x80\x9d symbol of the holiday, and has thereby purged the\ncr\xc3\xa8che of its religious content and conferred only an \xe2\x80\x9cincidental and indirect\xe2\x80\x9d benefit on religion\xe2\x80\xa6.\n\xe2\x80\xa6[E]ven in the context of Pawtucket\xe2\x80\x99s seasonal celebration, the cr\xc3\xa8che retains a specifically\nChristian religious meaning. I refuse to accept the notion implicit in today\xe2\x80\x99s decision that nonChristians would find that the religious content of the cr\xc3\xa8che is eliminated by the fact that it\nappears as part of the City\xe2\x80\x99s otherwise secular celebration of the Christmas holiday. The nativity\nscene is clearly distinct in its purpose and effect from the rest of the Hodgson Park display for\nthe simple reason that it is the only one rooted in a biblical account of Christ\xe2\x80\x99s birth. It is the\nchief symbol of the characteristically Christian belief that a divine Savior was brought into the\nworld and that the purpose of this miraculous birth was to illuminate a path toward salvation\nand redemption. For Christians, that path is exclusive, precious and holy. But for those who do\nnot share these beliefs, the symbolic re-enactment of the birth of a divine being who has been\nmiraculously incarnated as a man stands as a dramatic reminder of their differences with Christian faith\xe2\x80\xa6. To be so excluded on religious grounds by one\xe2\x80\x99s elected government is an insult and\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c186 Religion in the Law\nan injury that, until today, could not be countenanced by the Establishment Clause.\n\xe2\x80\xa6The Court also attempts to justify the cr\xc3\xa8che by entertaining a beguilingly simple, yet\nfaulty syllogism. The Court begins by noting that government may recognize Christmas day as\na public holiday; the Court then asserts that the cr\xc3\xa8che is nothing more than a traditional element\nof Christmas celebrations; and it concludes that the inclusion of a cr\xc3\xa8che as part of a government\xe2\x80\x99s annual Christmas celebration is constitutionally permissible. The Court apparently believes that once it finds that the designation of Christmas as a public holiday is constitutionally\nacceptable, it is then free to conclude that virtually every form of governmental association with\nthe celebration of the holiday is also constitutional. The vice of this dangerously superficial argument is that it overlooks the fact that the Christmas holiday in our national culture contains\nboth secular and sectarian elements. To say that government may recognize the holiday\xe2\x80\x99s traditional, secular elements of giftgiving, public festivities and community spirit, does not mean that\ngovernment may indiscriminately embrace the distinctively sectarian aspects of the holiday. Indeed, in its eagerness to approve the cr\xc3\xa8che, the Court has advanced a rationale so simplistic\nthat it would appear to allow the Mayor of Pawtucket to participate in the celebration of a\nChristmas mass, since this would be just another unobjectionable way for the City to \xe2\x80\x9ccelebrate\nthe holiday.\xe2\x80\x9d \xe2\x80\xa6\nWhen government decides to recognize Christmas day as a public holiday, it does no more\nthan accommodate the calendar of public activities to the plain fact that many Americans will\nexpect on that day to spend time visiting with their families, attending religious services, and\nperhaps enjoying some respite from pre-holiday activities\xe2\x80\xa6.\nThe inclusion of a cr\xc3\xa8che in Pawtucket\xe2\x80\x99s otherwise secular celebration of Christmas clearly\nviolates these principles. Unlike such secular figures as Santa Claus, reindeer and carolers, a\nnativity scene represents far more than a mere \xe2\x80\x9ctraditional\xe2\x80\x9d symbol of Christmas. The essence\nof the cr\xc3\xa8che\xe2\x80\x99s symbolic purpose and effect is to prompt the observer to experience a sense of\nsimple awe and wonder appropriate to the contemplation of one of the central elements of\nChristian dogma\xe2\x80\x94that God sent His son into the world to be a Messiah. Contrary to the Court\xe2\x80\x99s\nsuggestion, the cr\xc3\xa8che is far from a mere representation of a \xe2\x80\x9cparticular historic religious event.\xe2\x80\x9d\nIt is, instead, best understood as a mystical re-creation of an event that lies at the heart of Christian faith. To suggest, as the Court does, that such a symbol is merely \xe2\x80\x9ctraditional\xe2\x80\x9d and therefore\nno different from Santa\xe2\x80\x99s house or reindeer is not only offensive to those for whom the cr\xc3\xa8che\nhas profound significance, but insulting to those who insist for religious or personal reasons that\nthe story of Christ is in no sense a part of \xe2\x80\x9chistory\xe2\x80\x9d nor an unavoidable element of our national\n\xe2\x80\x9cheritage.\xe2\x80\x9d \xe2\x80\xa6\nInvoking the celebration of Thanksgiving as a public holiday, the legend \xe2\x80\x9cIn God We Trust\xe2\x80\x9d\non our coins, and the proclamation \xe2\x80\x9cGod save the United States and this Honorable Court\xe2\x80\x9d at\nthe opening of judicial sessions, the Court asserts, without explanation, that Pawtucket\xe2\x80\x99s inclusion of a cr\xc3\xa8che in its annual Christmas display poses no more of a threat to Establishment\nClause values than these other official \xe2\x80\x9cacknowledgments\xe2\x80\x9d of religion.\nIntuition tells us that some official \xe2\x80\x9cacknowledgment\xe2\x80\x9d is inevitable in a religious society if\ngovernment is not to adopt a stilted indifference to the religious life of the people. \xe2\x80\xa6 It is equally\ntrue, however, that if government is to remain scrupulously neutral in matters of religious conscience, as our Constitution requires, then it must avoid those overly broad acknowledgments\nof religious practices that may imply governmental favoritism toward one set of religious beliefs\xe2\x80\xa6.\n\xe2\x80\xa6[It] appears from our prior decisions that at least three principles\xe2\x80\x94tracing the narrow\nchannels which government acknowledgments must follow to satisfy the Establishment\nClause\xe2\x80\x94may be identified. First, although the government may not be compelled to do so by\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 187\nthe Free Exercise Clause, it may, consistently with the Establishment Clause, act to accommodate to some extent the opportunities of individuals to practice their religion. \xe2\x80\xa6 And for me that\nprinciple would justify government\xe2\x80\x99s decision to declare December 25th a public holiday.\nSecond, our cases recognize that while a particular governmental practice may have derived\nfrom religious motivations and retain certain religious connotations, it is nonetheless permissible\nfor the government to pursue the practice when it is continued today solely for secular reasons.\nAs this Court noted with reference to Sunday Closing Laws in McGowan v. Maryland, the mere\nfact that a governmental practice coincides to some extent with certain religious beliefs does not\nrender it unconstitutional. Thanksgiving Day, in my view, fits easily within this principle, for\ndespite its religious antecedents, the current practice of celebrating Thanksgiving is unquestionably secular and patriotic\xe2\x80\xa6.\nFinally, we have noted that government cannot be completely prohibited from recognizing\nin its public actions the religious beliefs and practices of the American people as an aspect of our\nnational history and culture. \xe2\x80\xa6 While I remain uncertain about these questions, I would suggest\nthat such practices as the designation of \xe2\x80\x9cIn God We Trust\xe2\x80\x9d as our national motto, or the references to God contained in the Pledge of Allegiance can best be understood, in Dean Rostow\xe2\x80\x99s\napt phrase, as a form a \xe2\x80\x9cceremonial deism,\xe2\x80\x9d protected from Establishment Clause scrutiny\nchiefly because they have lost through rote repetition any significant religious content. \xe2\x80\xa6 Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing\npublic occasions, or inspiring commitment to meet some national challenge in a manner that\nsimply could not be fully served in our culture if government were limited to purely non-religious\nphrases. The practices by which the government has long acknowledged religion are therefore\nprobably necessary to serve certain secular functions, and that necessity, coupled with their long\nhistory, gives those practices an essentially secular meaning.\nThe cr\xc3\xa8che fits none of these categories. Inclusion of the cr\xc3\xa8che is not necessary to accommodate individual religious expression. This is plainly not a case in which individual residents\nof Pawtucket have claimed the right to place a cr\xc3\xa8che as part of a wholly private display on\npublic land. \xe2\x80\xa6 Nor is the inclusion of the cr\xc3\xa8che necessary to serve wholly secular goals; it is\nclear that the City\xe2\x80\x99s secular purposes of celebrating the Christmas holiday and promoting retail\ncommerce can be fully served without the cr\xc3\xa8che. And the cr\xc3\xa8che, because of its unique association with Christianity, is clearly more sectarian than those references to God that we accept in\nceremonial phrases or in other contexts that assure neutrality. The religious works on display at\nthe National Gallery, Presidential references to God during an Inaugural Address, or the national\nmotto present no risk of establishing religion. To be sure, our understanding of these expressions\nmay begin in contemplation of some religious element, but it does not end there. Their message\nis dominantly secular. In contrast, the message of the cr\xc3\xa8che begins and ends with reverence for\na particular image of the divine.\nBy insisting that such a distinctively sectarian message is merely an unobjectionable part of\nour \xe2\x80\x9creligious heritage,\xe2\x80\x9d the Court takes a long step backwards to the days when Justice Brewer\ncould arrogantly declare for the Court that \xe2\x80\x9cthis is a Christian nation.\xe2\x80\x9d Church of Holy Trinity\nv. United States, 143 U.S. 457, 471 (1892). Those days, I had thought, were forever put behind\nus\xe2\x80\xa6.\n[The] Court\xe2\x80\x99s approach suggests a fundamental misapprehension of the proper uses of history in constitutional interpretation. Certainly, our decisions reflect the fact that an awareness\nof historical practice often can provide a useful guide in interpreting the abstract language of the\nEstablishment Clause. \xe2\x80\xa6 But historical acceptance of a particular practice alone is never sufficient to justify a challenged governmental action, since, as the Court has rightly observed, \xe2\x80\x9cno\none acquires a vested or protected right in violation of the Constitution by long use, even when\nthat span of time covers our entire national existence and indeed predates it.\xe2\x80\x9d Walz, 397 U.S. at\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c188 Religion in the Law\n678. Attention to the details of history should not blind us to the cardinal purposes of the Establishment Clause, nor limit our central inquiry in these cases\xe2\x80\x94whether the challenged practices threaten those consequences which the Framers deeply feared.\xe2\x80\xa6\nThe intent of the Framers with respect to the public display of nativity scenes is virtually\nimpossible to discern primarily because the widespread celebration of Christmas did not emerge\nin its present form until well into the nineteenth century. Carrying a well-defined Puritan hostility\nto the celebration of Christ\xe2\x80\x99s birth with them to the New World, the founders of the Massachusetts Bay Colony pursued a vigilant policy of opposition to any public celebration of the holiday.\n\xe2\x80\xa6 During the eighteenth century, sectarian division over the celebration of the holiday continued. ... American Anglicans, who carried with them the Church of England\xe2\x80\x99s acceptance of the\nholiday, Roman Catholics, and various German groups all made the celebration of Christmas a\nvital part of their religious life. By contrast, many nonconforming Protestant groups, including\nthe Presbyterians, Congregationalists, Baptists and Methodists, continued to regard the holiday\nwith suspicion and antagonism well into the nineteenth century. This pattern of sectarian division \xe2\x80\xa6 suggests that for the Framers of the Establishment Clause, who were acutely sensitive to\nsuch sectarian controversies, no single view of how government should approach the celebration\nof Christmas would be possible.\n\xe2\x80\xa6[The] Religion Clauses were intended to ensure a benign regime of competitive disorder\namong all denominations, so that each sect was free to vie against the others for the allegiance\nof its followers without state interference. The historical record, contrary to the Court\xe2\x80\x99s uninformed assumption, suggests that at the very least conflicting views toward the celebration of\nChristmas were an important element of that competition at the time of the adoption of the\nConstitution.\n\xe2\x80\xa6[The] public display of nativity scenes as part of governmental celebrations of Christmas\ndoes not come to us supported by an unbroken history of widespread acceptance. It was not\nuntil 1836 that a State first granted legal recognition to Christmas as a public holiday. \xe2\x80\xa6 Congress did not follow the States\xe2\x80\x99 lead until 1870 when it established December 25th, along with\nthe Fourth of July, New Year\xe2\x80\x99s Day, and Thanksgiving, as a legal holiday in the District of Columbia. This pattern of legal recognition tells us only that public acceptance of the holiday was\ngradual and that the practice\xe2\x80\x94in stark contrast to the record presented in either Walz or Marsh\n\xe2\x80\x94did not take on the character of a widely recognized holiday until the middle of the nineteenth\ncentury\xe2\x80\xa6.\nIn sum, there is no evidence whatsoever that the Framers would have expressly approved a\nFederal celebration of the Christmas holiday including public displays of a nativity scene; accordingly, the Court\xe2\x80\x99s repeated invocation of the decision in Marsh is not only baffling, it is\nutterly irrelevant. Nor is there any suggestion that publicly financed and supported displays of\nChristmas cr\xc3\xa8ches are supported by a record of widespread, undeviating acceptance that extends\nthroughout our history. Therefore, our prior decisions which relied upon concrete, specific historical evidence to support a particular practice simply have no bearing on the question presented in this case. Contrary to today\xe2\x80\x99s careless decision, those prior cases have all recognized\nthat the \xe2\x80\x9cillumination\xe2\x80\x9d provided by history must always be focused on the particular practice\nat issue in a given case. Without that guiding principle and the intellectual discipline it imposes,\nthe Court is at sea, free to select random elements of America\xe2\x80\x99s varied history solely to suit the\nviews of five Members of this Court\xe2\x80\xa6.\nI dissent.\nJustice BLACKMUN, with whom Justice STEVENS joins, dissenting.\nAs Justice BRENNAN points out, the logic of the Court\xe2\x80\x99s decision in Lemon v. Kurtzman,\n403 U.S. 602, 612\xe2\x80\x93613 (1970) \xe2\x80\xa6 compels an affirmance here. If that case and its guidelines\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 189\nmean anything, the presence of Pawtucket\xe2\x80\x99s cr\xc3\xa8che in a municipally sponsored display must be\nheld to be a violation of the First Amendment.\nNot only does the Court\xe2\x80\x99s resolution of this controversy make light of our precedents, but\nalso, ironically, the majority does an injustice to the cr\xc3\xa8che and the message it manifests. While\ncertain persons, including the Mayor of Pawtucket, undertook a crusade to \xe2\x80\x9ckeep Christ in\nChristmas,\xe2\x80\x9d the Court today has declared that presence virtually irrelevant. The majority urges\nthat the display, \xe2\x80\x9cwith or without a cr\xc3\xa8che,\xe2\x80\x9d \xe2\x80\x9crecall[s] the religious nature of the Holiday,\xe2\x80\x9d and\n\xe2\x80\x9cengenders a friendly community spirit of good will in keeping with the season.\xe2\x80\x9d Before the\nDistrict Court, an expert witness for the city made a similar, though perhaps more candid, point,\nstating that Pawtucket\xe2\x80\x99s display invites people \xe2\x80\x9cto participate in the Christmas spirit, brotherhood, peace, and let loose with their money.\xe2\x80\x9d The cr\xc3\xa8che has been relegated to the role of a\nneutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an\nintegral part. The city has its victory\xe2\x80\x94but it is a Pyrrhic one indeed.\nThe import of the Court\xe2\x80\x99s decision is to encourage use of the cr\xc3\xa8che in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning\nand non-Christians feel alienated by its presence. Surely, this is a misuse of a sacred symbol.\nBecause I cannot join the Court in denying either the force of our precedents or the sacred message that is at the core of the cr\xc3\xa8che, I dissent and join Justice BRENNAN\xe2\x80\x99s opinion.\n\nLynch v. Donnelly, 465 U.S. 668 (1984)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c190 Religion in the Law\n449 U.S. 39\nSupreme Court of the United States\n\nStone v. Graham\nNovember 17, 1980\nPER CURIAM\nA Kentucky statute requires the posting of a copy of the Ten Commandments, purchased\nwith private contributions, on the wall of each public classroom in the State. The statute provides in its entirety:\n(1) It shall be the duty of the superintendent of public instruction, provided\nsufficient funds are available as provided in subsection (3) of this Section, to\nensure that a durable, permanent copy of the Ten Commandments shall be\ndisplayed on a wall in each public elementary and secondary school classroom\nin the Commonwealth. The copy shall be sixteen (16) inches wide by twenty\n(20) inches high.\n(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: \xe2\x80\x98The secular application of the\nTen Commandments is clearly seen in its adoption as the fundamental legal\ncode of Western Civilization and the Common Law of the United States.\xe2\x80\x99\n(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act.\xe2\x80\x9d 1978 Ky. Acts, ch. 436, \xc2\xa7 1 (effective June 17, 1978),\nKy.Rev.Stat. \xc2\xa7 158.178 (1980).\nPetitioners, claiming that this statute violates the Establishment and Free Exercise Clauses\nof the First Amendment, sought an injunction against its enforcement. The state trial court upheld the statute, finding that its \xe2\x80\x9cavowed purpose\xe2\x80\x9d was \xe2\x80\x9csecular and not religious,\xe2\x80\x9d and that\nthe statute would \xe2\x80\x9cneither advance nor inhibit any religion or religious group\xe2\x80\x9d nor involve the\nState excessively in religious matters. The Supreme Court of the Commonwealth of Kentucky\naffirmed by an equally divided court. 599 S.W.2d 157 (1980). We reverse.\nThis Court has announced a three\xe2\x80\x93part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:\nFirst, the statute must have a secular legislative purpose; second, its principal\nor primary effect must be one that neither advances nor inhibits religion ...;\nfinally the statute must not foster an excessive government entanglement with\nreligion. Lemon v. Kurtzman, 403 U.S. 602, 612\xe2\x80\x93613 (1971).\nIf a statute violates any of these three principles, it must be struck down under the Establishment Clause. We conclude that Kentucky\xe2\x80\x99s statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional.\nThe Commonwealth insists that the statute serves a secular legislative purpose, observing\nthat the legislature required the following notation in small print at the bottom of each display\nof the Ten Commandments: \xe2\x80\x9cThe secular application of the Ten Commandments is clearly seen\nin its adoption as the fundamental legal code of Western Civilization and the Common Law of\nthe United States.\xe2\x80\x9d 1978 Ky. Acts, ch. 436, \xc2\xa7 1 (1978), Ky.Rev.Stat. \xc2\xa7 158.178 (1980).\n\nStone v. Graham, 449 U.S. 39 (1980)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 191\nThe trial court found the \xe2\x80\x9cavowed\xe2\x80\x9d purpose of the statute to be secular, even as it labeled\nthe statutory declaration \xe2\x80\x9cself\xe2\x80\x93serving.\xe2\x80\x9d Under this Court\xe2\x80\x99s rulings, however, such an \xe2\x80\x9cavowed\xe2\x80\x9d\nsecular purpose is not sufficient to avoid conflict with the First Amendment. In Abington School\nDistrict v. Schempp, 374 U.S. 203 (1963), this Court held unconstitutional the daily reading of\nBible verses and the Lord\xe2\x80\x99s Prayer in the public schools, despite the school district\xe2\x80\x99s assertion of\nsuch secular purposes as \xe2\x80\x9cthe promotion of moral values, the contradiction to the materialistic\ntrends of our times, the perpetuation of our institutions and the teaching of literature.\xe2\x80\x9d Id., at\n223.\nThe pre\xe2\x80\x93eminent purpose for posting the Ten Commandments on schoolroom walls is\nplainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish\nand Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to\nthat fact. The Commandments do not confine themselves to arguably secular matters, such as\nhonoring one\xe2\x80\x99s parents, killing or murder, adultery, stealing, false witness, and covetousness. See\nExodus 20: 12\xe2\x80\x9317; Deuteronomy 5: 16\xe2\x80\x9321. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not\nusing the Lord\xe2\x80\x99s name in vain, and observing the Sabbath Day. See Exodus 20: 1\xe2\x80\x9311; Deuteronomy 5: 6\xe2\x80\x9315.\nThis is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization,\nethics, comparative religion, or the like. Posting of religious texts on the wall serves no such\neducational function. If the posted copies of the Ten Commandments are to have any effect at\nall, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey,\nthe Commandments. However desirable this might be as a matter of private devotion, it is not\na permissible state objective under the Establishment Clause.\nIt does not matter that the posted copies of the Ten Commandments are financed by voluntary private contributions, for the mere posting of the copies under the auspices of the legislature provides the \xe2\x80\x9cofficial support of the State ... Government\xe2\x80\x9d that the Establishment Clause\nprohibits. 374 U.S. at 222; see Engel v. Vitale, 370 U.S. 421, 431 (1962). Nor is it significant\nthat the Bible verses involved in this case are merely posted on the wall, rather than read aloud\nas in Schempp and Engel, for \xe2\x80\x9cit is no defense to urge that the religious practices here may be\nrelatively minor encroachments on the First Amendment.\xe2\x80\x9d Abington School District v.\nSchempp, supra, at 225. We conclude that \xc2\xa7 158.178 (1980) violates the first part of the Lemon\nv. Kurtzman, test, and thus the Establishment Clause of the Constitution.\nThe petition for a writ of certiorari is granted, and the judgment below is reversed.\nIt is so ordered.\nTHE CHIEF JUSTICE and Justice BLACKMUN dissent. They would grant certiorari and give\nthis case plenary consideration.\n[Chief Justice Burger and Justice Blackmun dissented here on procedural grounds.\n\xe2\x80\x9cPlenary consideration\xe2\x80\x9d means that a case is subject to full briefing, oral argument,\nand, generally, a signed majority opinion. This case was decided per curiam without\nplenary consideration by a majority consisting of Justices Brennan, White, Marshall,\nPowell, and Stevens.]\nJustice STEWART dissents from this summary reversal of the courts of Kentucky, which, so far\nas appears, applied wholly correct constitutional criteria in reaching their decisions.\n\nStone v. Graham, 449 U.S. 39 (1980)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c192 Religion in the Law\nJustice REHNQUIST, dissenting.\nWith no support beyond its own ipse dixit, the Court concludes that the Kentucky statute\ninvolved in this case \xe2\x80\x9chas no secular legislative purpose,\xe2\x80\x9d (emphasis supplied), and that \xe2\x80\x9c[t]he\npre\xe2\x80\x93eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.\xe2\x80\x9d This even though, as the trial court found, \xe2\x80\x9c[t]he General Assembly thought\nthe statute had a secular legislative purpose and specifically said so.\xe2\x80\x9d The Court\xe2\x80\x99s summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is\nwithout precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute\xe2\x80\x99s purpose in Establishment Clause cases and accords such pronouncements the deference they are due. See, e. g., Committee for Public Education v. Nyquist,\n413 U.S. 756, 773 (1973) (\xe2\x80\x9cwe need touch only briefly on the requirement of a \xe2\x80\x98secular legislative purpose.\xe2\x80\x99 As the recitation of legislative purposes appended to New York\xe2\x80\x99s law indicates,\neach measure is adequately supported by legitimate, nonsectarian state interests\xe2\x80\x9d); Lemon v.\nKurtzman, 403 U.S. 602, 613 (1971) (\xe2\x80\x9cthe statutes themselves clearly state they are intended to\nenhance the quality of the secular education\xe2\x80\x9d); Sloan v. Lemon, 413 U.S. 825, 829\xe2\x80\x93830 (1973);\nBoard of Education v. Allen, 392 U.S. 236, 243 (1968)\xe2\x80\xa6. The fact that the asserted secular\npurpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U.S. 420, 445 (1961), in upholding the validity of Sunday closing laws, \xe2\x80\x9cthe present purpose and effect of most of [these\nlaws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of\nparticular significance for the dominant Christian sects, does not bar the state from achieving its\nsecular goals.\xe2\x80\x9d\nAbington School District v. Schempp, 374 U.S. 203 (1963), repeatedly cited by the Court,\nis not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case. In one of the two cases considered in Abington School District the trial court\nhad determined that the challenged exercises were intended by the State to be religious exercises.\nId., at 223. A contrary finding is presented here. In the other case no specific finding had been\nmade, and \xe2\x80\x9cthe religious character of the exercise was admitted by the State,\xe2\x80\x9d id., at 224.\nThe Court rejects the secular purpose articulated by the State because the Decalogue is \xe2\x80\x9cundeniably a sacred text.\xe2\x80\x9d It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination\xe2\x80\xa6. Certainly the State was permitted to conclude that a\ndocument with such secular significance should be placed before its students, with an appropriate statement of the document\xe2\x80\x99s secular import\xe2\x80\xa6.\nThe Establishment Clause does not require that the public sector be insulated from all things\nwhich may have a religious significance or origin. This Court has recognized that \xe2\x80\x9creligion has\nbeen closely identified with our history and government,\xe2\x80\x9d Abington School District at 212, and\nthat \xe2\x80\x9c[t]he history of man is inseparable from the history of religion,\xe2\x80\x9d Engel v. Vitale, 370 U.S.\n421, 434 (1962). Kentucky has decided to make students aware of this fact by demonstrating\nthe secular impact of the Ten Commandments. The words of Justice Jackson, concurring in\nMcCollum v. Board of Education, 333 U.S. 203, 235\xe2\x80\x93236 (1948), merit quotation at length:\nI think it remains to be demonstrated whether it is possible, even if desirable,\nto\xe2\x80\xa6isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics,\nphysics or chemistry are, or can be, completely secularized. But it would not\nseem practical to teach either practice or appreciation of the arts if we are to\nforbid exposure of youth to any religious influences. Music without sacred\nmusic, architecture minus the cathedral, or painting without the scriptural\nthemes would be eccentric and incomplete, even from a secular point of\n\nStone v. Graham, 449 U.S. 39 (1980)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 193\nview.... I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have\nplayed in the tragic story of mankind. The fact is that, for good or for ill,\nnearly everything in our culture worth transmitting, everything which gives\nmeaning to life, is saturated with religious influences, derived from paganism,\nJudaism, Christianity\xe2\x80\x93both Catholic and Protestant\xe2\x80\x93and other faiths accepted\nby a large part of the world\xe2\x80\x99s peoples. One can hardly respect the system of\neducation that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being\nprepared.\nI therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.\n\nStone v. Graham, 449 U.S. 39 (1980)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c194 Religion in the Law\n545 U.S. 844\nSupreme Court of the United States\n\nMcCreary County v. ACLU\nJune 27, 2005\nJustice SOUTER delivered the opinion of the Court.\nExecutives of two counties posted a version of the Ten Commandments on the walls of their\ncourthouses. After suits were filed charging violations of the Establishment Clause, the legislative\nbody of each county adopted a resolution calling for a more extensive exhibit meant to show\nthat the Commandments are Kentucky\xe2\x80\x99s \xe2\x80\x9cprecedent legal code.\xe2\x80\x9d The result in each instance was\na modified display of the Commandments surrounded by texts containing religious references\nas their sole common element. After changing counsel, the counties revised the exhibits again by\neliminating some documents, expanding the text set out in another, and adding some new ones.\nThe issues are whether a determination of the counties\xe2\x80\x99 purpose is a sound basis for ruling\non the Establishment Clause complaints, and whether evaluation of the counties\xe2\x80\x99 claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the\ncounties\xe2\x80\x99 manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.\nIn the summer of 1999, petitioners McCreary County and Pulaski County, Kentucky (hereinafter Counties), put up in their respective courthouses large, gold-framed copies of an abridged\ntext of the King James version of the Ten Commandments, including a citation to the Book of\nExodus. In McCreary County, the placement of the Commandments responded to an order of\nthe county legislative body requiring \xe2\x80\x9cthe display [to] be posted in \xe2\x80\x98a very high traffic area\xe2\x80\x99 of\nthe courthouse.\xe2\x80\x9d In Pulaski County, amidst reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge\xe2\x80\x93Executive, who called them \xe2\x80\x9cgood rules to live by\xe2\x80\x9d and who recounted the story of an astronaut who\nbecame convinced \xe2\x80\x9cthere must be a divine God\xe2\x80\x9d after viewing the Earth from the moon. The\nJudge\xe2\x80\x93Executive was accompanied by the pastor of his church, who called the Commandments\n\xe2\x80\x9ca creed of ethics\xe2\x80\x9d and told the press after the ceremony that displaying the Commandments\nwas \xe2\x80\x9cone of the greatest things the judge could have done to close out the millennium.\xe2\x80\x9d In both\nCounties, this was the version of the Commandments posted:\nThou shalt have no other gods before me.\nThou shalt not make unto thee any graven images.\nThou shalt not take the name of the Lord thy God in vain.\nRemember the sabbath day, to keep it holy.\nHonor thy father and thy mother.\nThou shalt not kill.\nThou shalt not commit adultery.\nThou shalt not steal.\nThou shalt not bear false witness.\nThou shalt not covet.\nExodus 20:3\xe2\x80\x9317.\nIn each County, the hallway display was \xe2\x80\x9creadily visible to ... county citizens who use the\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 195\ncourthouse to conduct their civic business, to obtain or renew driver\xe2\x80\x99s licenses and permits, to\nregister cars, to pay local taxes, and to register to vote.\xe2\x80\x9d\nIn November 1999, respondents American Civil Liberties Union of Kentucky et al. sued the\nCounties in Federal District Court under 42 U.S.C. \xc2\xa7 1983, and sought a preliminary injunction\nagainst maintaining the displays, which the ACLU charged were violations of the prohibition of\nreligious establishment included in the First Amendment of the Constitution. Within a month,\nand before the District Court had responded to the request for injunction, the legislative body\nof each County authorized a second, expanded display, by nearly identical resolutions reciting\nthat the Ten Commandments are \xe2\x80\x9cthe precedent legal code upon which the civil and criminal\ncodes of ... Kentucky are founded,\xe2\x80\x9d and stating several grounds for taking that position: that\n\xe2\x80\x9cthe Ten Commandments are codified in Kentucky\xe2\x80\x99s civil and criminal laws\xe2\x80\x9d; that the Kentucky\nHouse of Representatives had in 1993 \xe2\x80\x9cvoted unanimously ... to adjourn ... \xe2\x80\x98in remembrance\nand honor of Jesus Christ, the Prince of Ethics\xe2\x80\x99 \xe2\x80\x9d; that the \xe2\x80\x9cCounty Judge and ... magistrates\nagree with the arguments set out by Judge [Roy] Moore\xe2\x80\x9d in defense of his \xe2\x80\x9cdisplay [of] the Ten\nCommandments in his courtroom\xe2\x80\x9d; and that the \xe2\x80\x9cFounding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America\xe2\x80\x99s\nstrength and direction.\xe2\x80\x9d\nAs directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that\nit, too, be posted. In addition to the first display\xe2\x80\x99s large framed copy of the edited King James\nversion of the Commandments, the second included eight other documents in smaller frames,\neach either having a religious theme or excerpted to highlight a religious element. The documents\nwere the \xe2\x80\x9cendowed by their Creator\xe2\x80\x9d passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, \xe2\x80\x9cIn God We Trust\xe2\x80\x9d; a page from\nthe Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including\na statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President\nLincoln\xe2\x80\x99s \xe2\x80\x9cReply to Loyal Colored People of Baltimore upon Presentation of a Bible,\xe2\x80\x9d reading\nthat \xe2\x80\x9c[t]he Bible is the best gift God has ever given to man\xe2\x80\x9d; a proclamation by President Reagan\nmarking 1983 the Year of the Bible; and the Mayflower Compact.\nAfter argument, the District Court entered a preliminary injunction on May 5, 2000, ordering that the \xe2\x80\x9cdisplay ... be removed from [each] County Courthouse IMMEDIATELY\xe2\x80\x9d and that\nno county official \xe2\x80\x9cerect or cause to be erected similar displays.\xe2\x80\x9d \xe2\x80\xa6\nThe Counties filed a notice of appeal from the preliminary injunction but voluntarily dismissed it after hiring new lawyers. They then installed another display in each courthouse, the\nthird within a year. No new resolution authorized this one, nor did the Counties repeal the resolutions that preceded the second. The posting consists of nine framed documents of equal size,\none of them setting out the Ten Commandments explicitly identified as the \xe2\x80\x9cKing James Version\xe2\x80\x9d at Exodus 20:3\xe2\x80\x9317, and quoted at greater length than before:\nThou shalt have no other gods before me.\nThou shalt not make unto thee any graven image, or any likeness of any thing\nthat is in heaven above, or that is in the earth beneath, or that is in the water\nunderneath the earth: Thou shalt not bow down thyself to them, nor serve\nthem: for I the LORD thy God am a jealous God, visiting the iniquity of the\nfathers upon the children unto the third and fourth generation of them that\nhate me.\nThou shalt not take the name of the LORD thy God in vain: for the LORD\nwill not hold him guiltless that taketh his name in vain.\nRemember the sabbath day, to keep it holy.\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c196 Religion in the Law\nHonour thy father and thy mother: that thy days may be long upon the land\nwhich the LORD thy God giveth thee.\nThou shalt not kill.\nThou shalt not commit adultery.\nThou shalt not steal.\nThou shalt not bear false witness against thy neighbour.\nThou shalt not covet thy neighbour\xe2\x80\x99s house, thou shalt not covet th[y] neighbor\xe2\x80\x99s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass,\nnor anything that is th[y] neighbour\xe2\x80\x99s.\nAssembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower\nCompact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of\nLady Justice. The collection is entitled \xe2\x80\x9cThe Foundations of American Law and Government\nDisplay\xe2\x80\x9d and each document comes with a statement about its historical and legal significance.\nThe comment on the Ten Commandments reads:\nThe Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly\nseen in the Declaration of Independence, which declared that \xe2\x80\x98We hold these\ntruths to be self-evident, that all men are created equal, that they are endowed\nby their Creator with certain unalienable Rights, that among these are Life,\nLiberty, and the pursuit of Happiness.\xe2\x80\x99 The Ten Commandments provide the\nmoral background of the Declaration of Independence and the foundation of\nour legal tradition.\nThe ACLU moved to supplement the preliminary injunction to enjoin the Counties\xe2\x80\x99 third\ndisplay, and the Counties responded with several explanations for the new version, including\ndesires \xe2\x80\x9cto demonstrate that the Ten Commandments were part of the foundation of American\nLaw and Government\xe2\x80\x9d and \xe2\x80\x9cto educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.\xe2\x80\x9d\nThe court, however, took the objective of proclaiming the Commandments\xe2\x80\x99 foundational value\nas \xe2\x80\x9ca religious, rather than secular, purpose\xe2\x80\x9d under Stone v. Graham, 449 U.S. 39 (1980)\xe2\x80\xa6.\nAs requested, the trial court supplemented the injunction, and a divided panel of the Court\nof Appeals for the Sixth Circuit affirmed. The Circuit majority stressed that under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with other\nmaterial so as to carry \xe2\x80\x9ca secular message.\xe2\x80\x9d \xe2\x80\xa6We granted certiorari, and now affirm.\nTwenty-five years ago in a case prompted by posting the Ten Commandments in Kentucky\xe2\x80\x99s\npublic schools, this Court recognized that the Commandments \xe2\x80\x9care undeniably a sacred text in\nthe Jewish and Christian faiths\xe2\x80\x9d and held that their display in public classrooms violated the\nFirst Amendment\xe2\x80\x99s bar against establishment of religion. Stone, 449 U.S. at 41. Stone found a\npredominantly religious purpose in the government\xe2\x80\x99s posting of the Commandments, given their\nprominence as \xe2\x80\x9c \xe2\x80\x98an instrument of religion,\xe2\x80\x99 \xe2\x80\x9d id., at 41, n. 3, 101 S.Ct. 192 (quoting School\nDist. of Abington Township v. Schempp, 374 U.S. 203, 224, (1963))\xe2\x80\xa6.\nEver since Lemon v. Kurtzman summarized the three familiar considerations for evaluating\nEstablishment Clause claims, looking to whether government action has \xe2\x80\x9ca secular legislative\npurpose\xe2\x80\x9d has been a common, albeit seldom dispositive, element of our cases. 403 U.S. at 612.\nThough we have found government action motivated by an illegitimate purpose only four times\nsince Lemon, and \xe2\x80\x9cthe secular purpose requirement alone may rarely be determinative..., it nevertheless serves an important function.\xe2\x80\x9d Wallace v. Jaffree, 472 U.S. 38, 75 (1985)\n(O\xe2\x80\x99CONNOR, J., concurring in judgment).\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 197\nThe touchstone for our analysis is the principle that the \xe2\x80\x9cFirst Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.\xe2\x80\x9d Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1,\n15\xe2\x80\x9316 (1947); Wallace, supra, at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of\nofficial religious neutrality, there being no neutrality when the government\xe2\x80\x99s ostensible object is\nto take sides\xe2\x80\xa6.\nDespite the intuitive importance of official purpose to the realization of Establishment\nClause values, the Counties ask us to abandon Lemon\xe2\x80\x99s purpose test, or at least to truncate any\nenquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true \xe2\x80\x9cpurpose\xe2\x80\x9d is unknowable, and its search merely an excuse for\ncourts to act selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing. Examination of purpose is a staple of statutory\ninterpretation that makes up the daily fare of every appellate court in the country\xe2\x80\xa6\nThe cases with findings of a predominantly religious purpose point to the straightforward\nnature of the test. In Wallace, for example, we inferred purpose from a change of wording from\nan earlier statute to a later one, each dealing with prayer in schools. 472 U.S. at 58\xe2\x80\x9360. And in\nEdwards, we relied on a statute\xe2\x80\x99s text and the detailed public comments of its sponsor, when we\nsought the purpose of a state law requiring creationism to be taught alongside evolution. 482\nU.S. at 586\xe2\x80\x93588. In other cases, the government action itself bespoke the purpose, as in Abington, where the object of required Bible study in public schools was patently religious, 374 U.S.\nat 223\xe2\x80\x93224; in Stone, the Court held that the \xe2\x80\x9c[p]osting of religious texts on the wall serve[d]\nno ... educational function,\xe2\x80\x9d and found that if \xe2\x80\x9cthe posted copies of the Ten Commandments\n[were] to have any effect at all, it [would] be to induce the schoolchildren to read, meditate upon,\nperhaps to venerate and obey, the Commandments.\xe2\x80\x9d 449 U.S. at 42. In each case, the government\xe2\x80\x99s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government\xe2\x80\x99s action\xe2\x80\xa6.\nLemon said that government action must have \xe2\x80\x9ca secular ... purpose,\xe2\x80\x9d and after a host of\ncases it is fair to add that although a legislature\xe2\x80\x99s stated reasons will generally get deference, the\nsecular purpose required has to be genuine, not a sham, and not merely secondary to a religious\nobjective\xe2\x80\xa6. [T]he Court often does accept governmental statements of purpose, in keeping with\nthe respect owed in the first instance to such official claims. But in those unusual cases where\nthe claim was an apparent sham, or the secular purpose secondary, the unsurprising results have\nbeen findings of no adequate secular object, as against a predominantly religious one.\nThe Counties [next] argue that purpose in a case like this one should be inferred, if at all,\nonly from the latest news about the last in a series of governmental actions, however close they\nmay all be in time and subject. But the world is not made brand new every morning, and the\nCounties are simply asking us to ignore perfectly probative evidence; they want an absentminded\nobjective observer, not one presumed to be familiar with the history of the government\xe2\x80\x99s actions\nand competent to learn what history has to show\xe2\x80\xa6. The Counties\xe2\x80\x99 position just bucks common\nsense: reasonable observers have reasonable memories, and our precedents sensibly forbid an\nobserver \xe2\x80\x9cto turn a blind eye to the context in which [the] policy arose.\xe2\x80\x9d \xe2\x80\xa6 Hence, we look to\nthe record of evidence showing the progression leading up to the third display of the Commandments.\nThe display rejected in Stone had two obvious similarities to the first one in the sequence\nhere: both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display\xe2\x80\xa6. This is not to deny\nthat the Commandments have had influence on civil or secular law; a major text of a majority\nreligion is bound to be felt. The point is simply that the original text viewed in its entirety is an\nunmistakably religious statement dealing with religious obligations and with morality subject to\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c198 Religion in the Law\nreligious sanction. When the government initiates an effort to place this statement alone in public\nview, a religious object is unmistakable.\nOnce the Counties were sued, they modified the exhibits and invited additional insight into\ntheir purpose in a display that hung for about six months. This new one was the product of\nforthright and nearly identical Pulaski and McCreary County resolutions listing a series of American historical documents with theistic and Christian references, which were to be posted in\norder to furnish a setting for displaying the Ten Commandments and any \xe2\x80\x9cother Kentucky and\nAmerican historical documen[t]\xe2\x80\x9d without raising concern about \xe2\x80\x9cany Christian or religious references\xe2\x80\x9d in them\xe2\x80\xa6.\nIn this second display, unlike the first, the Commandments were not hung in isolation,\nmerely leaving the Counties\xe2\x80\x99 purpose to emerge from the pervasively religious text of the Commandments themselves. Instead, the second version was required to include the statement of the\ngovernment\xe2\x80\x99s purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents with highlighted references to God as their sole\ncommon element. The display\xe2\x80\x99s unstinting focus was on religious passages, showing that the\nCounties were posting the Commandments precisely because of their sectarian content. That\ndemonstration of the government\xe2\x80\x99s objective was enhanced by serial religious references and the\naccompanying resolution\xe2\x80\x99s claim about the embodiment of ethics in Christ. Together, the display\nand resolution presented an indisputable, and undisputed, showing of an impermissible purpose.\nToday, the Counties make no attempt to defend their undeniable objective, but instead\nhopefully describe version two as \xe2\x80\x9cdead and buried.\xe2\x80\x9d Their refusal to defend the second display\nis understandable, but the reasonable observer could not forget it.\nAfter the Counties changed lawyers, they mounted a third display, without a new resolution\nor repeal of the old one. The result was the \xe2\x80\x9cFoundations of American Law and Government\xe2\x80\x9d\nexhibit, which placed the Commandments in the company of other documents the Counties\nthought especially significant in the historical foundation of American government. In trying to\npersuade the District Court to lift the preliminary injunction, the Counties cited several new\npurposes for the third version, including a desire \xe2\x80\x9cto educate the citizens of the county regarding\nsome of the documents that played a significant role in the foundation of our system of law and\ngovernment.\xe2\x80\x9d \xe2\x80\xa6\nThese new statements of purpose were presented only as a litigating position, there being\nno further authorizing action by the Counties\xe2\x80\x99 governing boards\xe2\x80\xa6. Indeed, the sectarian spirit\nof the common resolution found enhanced expression in the third display, which quoted more\nof the purely religious language of the Commandments than the first two displays had done\xe2\x80\xa6.\nNo reasonable observer could swallow the claim that the Counties had cast off the objective so\nunmistakable in the earlier displays.\nNor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. In a collection of documents said to be \xe2\x80\x9cfoundational\xe2\x80\x9d\nto American government, it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing.\nAnd it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215\nMagna Carta even to the point of its declaration that \xe2\x80\x9cfish-weirs shall be removed from the\nThames.\xe2\x80\x9d \xe2\x80\xa6If the observer had not thrown up his hands, he would probably suspect that the\nCounties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.\n\xe2\x80\xa6We hold only that purpose needs to be taken seriously under the Establishment Clause\nand needs to be understood in light of context; an implausible claim that governmental purpose\nhas changed should not carry the day in a court of law any more than in a head with common\nsense\xe2\x80\xa6.\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 199\n[We do not] hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation\nhave frequently been reminded, that our own courtroom frieze was deliberately designed in the\nexercise of governmental authority so as to include the figure of Moses holding tablets exhibiting\na portion of the Hebrew text of the later, secularly phrased Commandments; in the company of\n17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an\nobserver as evidence that the National Government was violating neutrality in religion.\nThe importance of neutrality as an interpretive guide is no less true now than it was when\nthe Court broached the principle in Everson v. Board of Ed. of Ewing, and a word needs to be\nsaid about the different view taken in today\xe2\x80\x99s dissent. We all agree, of course, on the need for\nsome interpretative help. The First Amendment contains no textual definition of \xe2\x80\x9cestablishment,\xe2\x80\x9d and the term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national [or a state] church, but nothing in the text says\njust how much more it covers. There is no simple answer\xe2\x80\xa6.\nThe prohibition on establishment covers a variety of issues from prayer in widely varying\ngovernment settings, to financial aid for religious individuals and institutions, to comment on\nreligious questions. In these varied settings, issues of interpreting inexact Establishment Clause\nlanguage, like difficult interpretative issues generally, arise from the tension of competing values,\neach constitutionally respectable, but none open to realization to the logical limit.\n\xe2\x80\xa6Given the variety of interpretative problems, the principle of neutrality has provided a\ngood sense of direction: the government may not favor one religion over another, or religion\nover irreligion, religious choice being the prerogative of individuals under the Free Exercise\nClause. The principle has been helpful simply because it responds to one of the major concerns\nthat prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard\nagainst the civic divisiveness that follows when the government weighs in on one side of religious\ndebate; nothing does a better job of roiling society, a point that needed no explanation to the\ndescendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists)\xe2\x80\xa6. A\nsense of the past thus points to governmental neutrality as an objective of the Establishment\nClause, and a sensible standard for applying it. To be sure, given its generality as a principle, an\nappeal to neutrality alone cannot possibly lay every issue to rest, or tell us what issues on the\nmargins are substantial enough for constitutional significance, a point that has been clear from\nthe founding era to modern times\xe2\x80\xa6. But invoking neutrality is a prudent way of keeping sight\nof something the Framers of the First Amendment thought important.\n\xe2\x80\xa6The dissent identifies God as the God of monotheism, all of whose three principal strains\n(Jewish, Christian, and Muslim) acknowledge the religious importance of the Ten Commandments. On the dissent\xe2\x80\x99s view, it apparently follows that even rigorous espousal of a common\nelement of this common monotheism is consistent with the establishment ban.\n\xe2\x80\xa6The dissent is certainly correct in putting forward evidence that some of the Framers\nthought some endorsement of religion was compatible with the establishment ban; the dissent\nquotes the first President as stating that \xe2\x80\x9c[n]ational morality [cannot] prevail in exclusion of\nreligious principle,\xe2\x80\x9d for example, and it cites his first Thanksgiving proclamation giving thanks\nto God. Surely if expressions like these from Washington and his contemporaries were all we\nhad to go on, there would be a good case that the neutrality principle has the effect of broadening\nthe ban on establishment beyond the Framers\xe2\x80\x99 understanding of it (although there would, of\ncourse, still be the question of whether the historical case could overcome some 60 years of\nprecedent taking neutrality as its guiding principle). But the fact is that we do have more to go\non, for there is also evidence supporting the proposition that the Framers intended the Establishment Clause to require governmental neutrality in matters of religion, including neutrality in\nstatements acknowledging religion\xe2\x80\xa6.\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c200 Religion in the Law\nThe historical record, moreover, is complicated beyond the dissent\xe2\x80\x99s account by the writings\nand practices of figures no less influential than Thomas Jefferson and James Madison. Jefferson,\nfor example, refused to issue Thanksgiving Proclamations because he believed that they violated\nthe Constitution\xe2\x80\xa6. And Madison, whom the dissent claims as supporting its thesis, criticized\nVirginia\xe2\x80\x99s general assessment tax not just because it required people to donate \xe2\x80\x9cthree pence\xe2\x80\x9d to\nreligion, but because \xe2\x80\x9cit is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.\xe2\x80\x9d\xe2\x80\xa6\nThe fair inference is that there was no common understanding about the limits of the establishment prohibition, and the dissent\xe2\x80\x99s conclusion that its narrower view was the original understanding, stretches the evidence beyond tensile capacity. What the evidence does show is a group\nof statesmen, like others before and after them, who proposed a guarantee with contours not\nwholly worked out, leaving the Establishment Clause with edges still to be determined\xe2\x80\xa6.\nWhile the dissent fails to show a consistent original understanding from which to argue that\nthe neutrality principle should be rejected, it does manage to deliver a surprise. As mentioned,\nthe dissent says that the deity the Framers had in mind was the God of monotheism, with the\nconsequence that government may espouse a tenet of traditional monotheism. This is truly a\nremarkable view\xe2\x80\xa6. Today\xe2\x80\x99s dissent \xe2\x80\xa6 apparently means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble\nanyone who prizes religious liberty\xe2\x80\xa6.\nGiven the ample support for the District Court\xe2\x80\x99s finding of a predominantly religious purpose behind the Counties\xe2\x80\x99 third display, we affirm the Sixth Circuit in upholding the preliminary\ninjunction.\nIt is so ordered.\nJustice O\xe2\x80\x99CONNOR, concurring.\n\xe2\x80\xa6Reasonable minds can disagree about how to apply the Religion Clauses in a given case.\nBut the goal of the Clauses is clear: to carry out the Founders\xe2\x80\x99 plan of preserving religious liberty\nto the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when\nwe see around the world the violent consequences of the assumption of religious authority by\ngovernment, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish\xe2\x80\xa6. Those who would renegotiate the boundaries between church and state must therefore\nanswer a difficult question: Why would we trade a system that has served us so well for one that\nhas served others so poorly?\n\xe2\x80\xa6We have held that the guarantees of religious freedom protect citizens from religious incursions by the States as well as by the Federal Government\xe2\x80\xa6. Government may not coerce a\nperson into worshiping against her will, nor prohibit her from worshiping according to it. It\nmay not prefer one religion over another or promote religion over nonbelief\xe2\x80\xa6. And government\nmay not, by endorsing religion or a religious practice, make adherence to religion relevant to a\nperson\xe2\x80\x99s standing in the political community.\xe2\x80\xa6\nWhen we enforce these restrictions, we do so for the same reason that guided the Framers\xe2\x80\x94\nrespect for religion\xe2\x80\x99s special role in society. Our Founders conceived of a Republic receptive to\nvoluntary religious expression, and provided for the possibility of judicial intervention when\ngovernment action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when\ngovernment directly interferes with private religious practices. When the government associates\none set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches\nupon the individual\xe2\x80\x99s decision about whether and how to worship. In the marketplace of ideas,\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 201\nthe government has vast resources and special status. Government religious expression therefore\nrisks crowding out private observance and distorting the natural interplay between competing\nbeliefs\xe2\x80\xa6.\nIt is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment\xe2\x80\xa6. It is true that the\nFramers lived at a time when our national religious diversity was neither as robust nor as well\nrecognized as it is now. They may not have foreseen the variety of religions for which this Nation\nwould eventually provide a home. They surely could not have predicted new religions, some of\nthem born in this country. But they did know that line-drawing between religions is an enterprise\nthat, once begun, has no logical stopping point. They worried that \xe2\x80\x9cthe same authority which\ncan establish Christianity, in exclusion of all other Religions, may establish with the same ease\nany particular sect of Christians, in exclusion of all other Sects.\xe2\x80\x9d The Religion Clauses, as a\nresult, protect adherents of all religions, as well as those who believe in no religion at all\xe2\x80\xa6\nJustice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, and with whom\nJustice KENNEDY joins in part, dissenting.\nI would uphold McCreary County and Pulaski County, Kentucky\xe2\x80\x99s (hereinafter Counties)\ndisplays of the Ten Commandments. I shall discuss, first, why the Court\xe2\x80\x99s oft repeated assertion\nthat the government cannot favor religious practice is false; second, why today\xe2\x80\x99s opinion extends\nthe scope of that falsehood even beyond prior cases; and third, why even on the basis of the\nCourt\xe2\x80\x99s false assumptions the judgment here is wrong.\n\xe2\x80\xa6George Washington added to the form of Presidential oath prescribed by Art. II, \xc2\xa7 1, cl.\n8, of the Constitution, the concluding words \xe2\x80\x9cso help me God.\xe2\x80\x9d The Supreme Court under John\nMarshall opened its sessions with the prayer, \xe2\x80\x9cGod save the United States and this Honorable\nCourt.\xe2\x80\x9d The First Congress instituted the practice of beginning its legislative sessions with a\nprayer. Marsh v. Chambers, 463 U.S. 783, 787\xe2\x80\x93788 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it\nenacted legislation providing for paid chaplains in the House and Senate. The day after the First\nAmendment was proposed, the same Congress that had proposed it requested the President to\nproclaim \xe2\x80\x9ca day of public thanksgiving and prayer, to be observed, by acknowledging, with\ngrateful hearts, the many signal favours of Almighty God.\xe2\x80\x9d President Washington offered the\nfirst Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of\nthe American people \xe2\x80\x9c \xe2\x80\x98to the service of that great and glorious Being who is the beneficent\nauthor of all the good that was, that is, or that will be,\xe2\x80\x99\xe2\x80\x9d thus beginning a tradition of offering\ngratitude to God that continues today. \xe2\x80\xa6And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.\nThese actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed\nthat morality was essential to the well-being of society and that encouragement of religion was\nthe best way to foster morality. The \xe2\x80\x9cfact that the Founding Fathers believed devotedly that\nthere was a God and that the unalienable rights of man were rooted in Him is clearly evidenced\nin their writings, from the Mayflower Compact to the Constitution itself.\xe2\x80\x9d \xe2\x80\xa6\nJames Madison, in his first inaugural address, likewise placed his confidence \xe2\x80\x9cin the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations,\nwhose blessings have been so conspicuously dispensed to this rising Republic, and to whom we\nare bound to address our devout gratitude for the past, as well as our fervent supplications and\nbest hopes for the future.\xe2\x80\x9d\nNor have the views of our people on this matter significantly changed. Presidents continue\nto conclude the Presidential oath with the words \xe2\x80\x9cso help me God.\xe2\x80\x9d Our legislatures, state and\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c202 Religion in the Law\nnational, continue to open their sessions with prayer led by official chaplains. The sessions of\nthis Court continue to open with the prayer \xe2\x80\x9cGod save the United States and this Honorable\nCourt.\xe2\x80\x9d Invocation of the Almighty by our public figures, at all levels of government, remains\ncommonplace. Our coinage bears the motto, \xe2\x80\x9cIN GOD WE TRUST.\xe2\x80\x9d And our Pledge of Allegiance contains the acknowledgment that we are a Nation \xe2\x80\x9cunder God.\xe2\x80\x9d As one of our Supreme\nCourt opinions rightly observed, \xe2\x80\x9cWe are a religious people whose institutions presuppose a\nSupreme Being.\xe2\x80\x9d Zorach v. Clauson, 343 U.S. 306, 313 (1952)\xe2\x80\xa6.\nWith all of this reality (and much more) staring it in the face, how can the Court possibly\nassert that the \xe2\x80\x9cFirst Amendment mandates governmental neutrality between ... religion and\nnonreligion,\xe2\x80\x9d and that \xe2\x80\x9c[m]anifesting a purpose to favor ... adherence to religion generally,\xe2\x80\x9d is\nunconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history\nand traditions that reflect our society\xe2\x80\x99s constant understanding of those words\xe2\x80\xa6. Nothing\nstands behind the Court\xe2\x80\x99s assertion that governmental affirmation of the society\xe2\x80\x99s belief in God\nis unconstitutional except the Court\xe2\x80\x99s own say-so, citing as support only the unsubstantiated\nsay-so of earlier Courts going back no further than the mid\xe2\x80\x9320th century\xe2\x80\xa6. And it is, moreover,\na thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices\non the current Court (including at least one Member of today\xe2\x80\x99s majority) have, in separate opinions, repudiated the brain-spun \xe2\x80\x9cLemon test\xe2\x80\x9d that embodies the supposed principle of neutrality\nbetween religion and irreligion\xe2\x80\xa6.\nWhat distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that\xe2\x80\x94\nthumbs up or thumbs down\xe2\x80\x94as their personal preferences dictate. Today\xe2\x80\x99s opinion forthrightly\n(or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. \xe2\x80\xa6[T]he Court acknowledges that the \xe2\x80\x9cEstablishment Clause doctrine\xe2\x80\x9d it purports to be applying \xe2\x80\x9clacks the comfort of categorical absolutes.\xe2\x80\x9d What the Court means by this\nlovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not\xe2\x80\xa6.\nI have cataloged elsewhere the variety of circumstances in which this Court\xe2\x80\x94even after its\nembrace of Lemon\xe2\x80\x99s stated prohibition of such behavior\xe2\x80\x94has approved government action\n\xe2\x80\x9cundertaken with the specific intention of improving the position of religion.\xe2\x80\x9d \xe2\x80\xa6 Suffice it to\nsay here that when the government relieves churches from the obligation to pay property taxes,\nwhen it allows students to absent themselves from public school to take religious classes, and\nwhen it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice\xe2\x80\x94but we have approved\nit\xe2\x80\xa6. Indeed, we have even approved (post-Lemon) government-led prayer to God. In Marsh v.\nChambers, the Court upheld the Nebraska State Legislature\xe2\x80\x99s practice of paying a chaplain to\nlead it in prayer at the opening of legislative sessions. The Court explained that \xe2\x80\x9c[t]o invoke\nDivine guidance on a public body entrusted with making the laws is not ... an \xe2\x80\x98establishment\xe2\x80\x99 of\nreligion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely\nheld among the people of this country.\xe2\x80\x9d 463 U.S. at 792. (Why, one wonders, is not respect for\nthe Ten Commandments a tolerable acknowledgment of beliefs widely held among the people\nof this country?)\xe2\x80\xa6\nBesides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today\xe2\x80\x99s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another\xe2\x80\xa6. That is indeed\na valid principle where public aid or assistance to religion is concerned, or where the free exercise\nof religion is at issue, but it necessarily applies in a more limited sense to public acknowledgment\nof the Creator. If religion in the public forum had to be entirely nondenominational, there could\nbe no religion in the public forum at all. One cannot say the word \xe2\x80\x9cGod,\xe2\x80\x9d or \xe2\x80\x9cthe Almighty,\xe2\x80\x9d\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 203\none cannot offer public supplication or thanksgiving, without contradicting the beliefs of some\npeople that there are many gods, or that God or the gods pay no attention to human affairs.\nWith respect to public acknowledgment of religious belief, it is entirely clear from our Nation\xe2\x80\x99s\nhistorical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists\xe2\x80\xa6.\nThe three most popular religions in the United States, Christianity, Judaism, and Islam\xe2\x80\x94\nwhich combined account for 97.7% of all believers\xe2\x80\x94are monotheistic. All of them, moreover\n(Islam included), believe that the Ten Commandments were given by God to Moses, and are\ndivine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population\xe2\x80\x94from Christians to Muslims\xe2\x80\x94that they cannot be reasonably understood as a government\nendorsement of a particular religious viewpoint\xe2\x80\xa6.\nTo any person who happened to walk down the hallway of the McCreary or Pulaski\nCounty Courthouse during the roughly nine months when the [third version of the displays,\ncalled the] Foundations Displays, were exhibited, the displays must have seemed unremarkable\xe2\x80\x94if indeed they were noticed at all. The walls of both courthouses were already lined with\nhistorical documents and other assorted portraits; each Foundations Display was exhibited in\nthe same format as these other displays and nothing in the record suggests that either County\ntook steps to give it greater prominence\xe2\x80\xa6. The displays did not emphasize any of the nine documents in any way: The frame holding the Ten Commandments was of the same size and had\nthe same appearance as that which held each of the other documents\nOn its face, the Foundations Displays manifested the purely secular purpose that the Counties asserted before the District Court: \xe2\x80\x9cto display documents that played a significant role in the\nfoundation of our system of law and government.\xe2\x80\x9d \xe2\x80\xa6That the displays included the Ten Commandments did not transform their apparent secular purpose into one of impermissible advocacy for Judeo\xe2\x80\x93Christian beliefs. \xe2\x80\xa6[W]hen the Ten Commandments appear alongside other\ndocuments of secular significance in a display devoted to the foundations of American law and\ngovernment, the context communicates that the Ten Commandments are included, not to teach\ntheir binding nature as a religious text, but to show their unique contribution to the development\nof the legal system. \xe2\x80\xa6This is doubly true when the display is introduced by a document that\ninforms passersby that it \xe2\x80\x9ccontains documents that played a significant role in the foundation\nof our system of law and government.\xe2\x80\x9d \xe2\x80\xa6\nAcknowledgment of the contribution that religion has made to our Nation\xe2\x80\x99s legal and governmental heritage partakes of a centuries-old tradition\xe2\x80\xa6. Display of the Ten Commandments\nis well within the mainstream of this practice of acknowledgment. Federal, state, and local governments across the Nation have engaged in such display. The Supreme Court Building itself\nincludes depictions of Moses with the Ten Commandments in the Courtroom and on the east\npediment of the building, and symbols of the Ten Commandments \xe2\x80\x9cadorn the metal gates lining\nthe north and south sides of the Courtroom as well as the doors leading into the Courtroom.\xe2\x80\x9d\nSimilar depictions of the Decalogue appear on public buildings and monuments throughout our\nNation\xe2\x80\x99s Capital. The frequency of these displays testifies to the popular understanding that the\nTen Commandments are a foundation of the rule of law, and a symbol of the role that religion\nplayed, and continues to play, in our system of government\xe2\x80\xa6.\nIn any event, the Court\xe2\x80\x99s conclusion that the Counties exhibited the Foundations Displays\nwith the purpose of promoting religion is doubtful. In the Court\xe2\x80\x99s view, the impermissible motive\nwas apparent from the initial displays of the Ten Commandments all by themselves: When that\noccurs, the Court says, \xe2\x80\x9ca religious object is unmistakable.\xe2\x80\x9d Surely that cannot be. If, as discussed above, the Commandments have a proper place in our civic history, even placing them\nby themselves can be civically motivated\xe2\x80\x94especially when they are placed, not in a school (as\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c204 Religion in the Law\nthey were in the Stone case upon which the Court places such reliance), but in a courthouse\xe2\x80\xa6.\nNor is it the case that a solo display of the Ten Commandments advances any one faith.\nThey are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over\nanother. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as\ndivinely given.\nThe Court also points to the Counties\xe2\x80\x99 second displays, which featured a number of statements in historical documents reflecting a religious influence, and the resolutions that accompanied their erection, as evidence of an impermissible religious purpose. In the Court\xe2\x80\x99s view, \xe2\x80\x9c[t]he\n[second] display\xe2\x80\x99s unstinting focus ... on religious passages, show[s] that the Counties were posting the Commandments precisely because of their sectarian content.\xe2\x80\x9d No, all it necessarily shows\nis that the exhibit was meant to focus upon the historic role of religious belief in our national\nlife\xe2\x80\x94which is entirely permissible. And the same can be said of the resolution. To forbid any\ngovernment focus upon this aspect of our history \xe2\x80\xa6 would commit the Court (and the Nation)\nto a revisionist agenda of secularization\xe2\x80\xa6.\nIn sum: The first displays did not necessarily evidence an intent to further religious practice;\nnor did the second displays, or the resolutions authorizing them; and there is in any event no\nbasis for attributing whatever intent motivated the first and second displays to the third. [The]\nCourt has identified no evidence of a purpose to advance religion in a way that is inconsistent\nwith our cases. The Court may well be correct in identifying the third displays as the fruit of a\ndesire to display the Ten Commandments, but neither our cases nor our history support its assertion that such a desire renders the fruit poisonous\xe2\x80\xa6.\n\nMcCreary County v. ACLU, 545 U.S. 844 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 205\n545 U.S. 677\nSupreme Court of the United States\n\nVan Orden v. Perry\nJune 27, 2005\nChief Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in\nwhich Justice SCALIA, Justice KENNEDY, and JUSTICE THOMAS join.\nThe question here is whether the Establishment Clause of the First Amendment allows the\ndisplay of a monument inscribed with the Ten Commandments on the Texas State Capitol\ngrounds. We hold that it does.\nThe 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical\nmarkers commemorating the \xe2\x80\x9cpeople, ideals, and events that compose Texan identity.\xe2\x80\x9d The\nmonolith challenged here stands 6\xe2\x80\x93feet high and 3 \xc2\xbd-feet wide. It is located to the north of the\nCapitol building, between the Capitol and the Supreme Court building. Its primary content is\nthe text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a\npyramid, and two small tablets with what appears to be an ancient script are carved above the\ntext of the Ten Commandments. Below the text are two Stars of David and the superimposed\nGreek letters Chi and Rho, which represent Christ. The bottom of the monument bears the\ninscription \xe2\x80\x9cPRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE\nFRATERNAL ORDER OF EAGLES OF TEXAS 1961.\xe2\x80\x9d\n\xe2\x80\xa6After the monument was accepted, the State selected a site for the monument based on\nthe recommendation of the state organization responsible for maintaining the Capitol grounds.\nThe Eagles paid the cost of erecting the monument, the dedication of which was presided over\nby two state legislators.\nPetitioner Thomas Van Orden is a native Texan and a resident of Austin. \xe2\x80\xa6 Van Orden\ntestified that, since 1995, he has encountered the Ten Commandments monument during his\nfrequent visits to the Capitol grounds\xe2\x80\xa6.\nForty years after the monument\xe2\x80\x99s erection and six years after Van Orden began to encounter\nthe monument frequently, he sued numerous state officials in their official capacities under Rev.\nStat. \xc2\xa7 1979, 42 U.S.C. \xc2\xa7 1983, seeking both a declaration that the monument\xe2\x80\x99s placement violates the Establishment Clause and an injunction requiring its removal. After a bench trial, the\nDistrict Court held that the monument did not contravene the Establishment Clause. \xe2\x80\xa6 The\nCourt of Appeals affirmed the District Court\xe2\x80\x99s holdings with respect to the monument\xe2\x80\x99s purpose\nand effect. We granted certiorari, and now affirm.\nOur cases, Januslike, point in two directions in applying the Establishment Clause. One face\nlooks toward the strong role played by religion and religious traditions throughout our Nation\xe2\x80\x99s\nhistory. \xe2\x80\xa6 The other face looks toward the principle that governmental intervention in religious\nmatters can itself endanger religious freedom.\nThis case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not\npress religious observances upon their citizens. One face looks to the past in acknowledgment\nof our Nation\xe2\x80\x99s heritage, while the other looks to the present in demanding a separation between\nchurch and state. Reconciling these two faces requires that we neither abdicate our responsibility\nto maintain a division between church and state nor evince a hostility to religion by disabling\nthe government from in some ways recognizing our religious heritage\xe2\x80\xa6.\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c206 Religion in the Law\nThese two faces are evident in representative cases both upholding and invalidating laws\nunder the Establishment Clause. Over the last 25 years, we have sometimes pointed to Lemon\nv. Kurtzman, 403 U.S. 602 (1971), as providing the governing test in Establishment Clause challenges. Compare Wallace v. Jaffree, 472 U.S. 38 (1985) (applying Lemon ), with Marsh v. Chambers, 463 U.S. 783 (1983) (not applying Lemon ). Yet, just two years after Lemon was decided,\nwe noted that the factors identified in Lemon serve as \xe2\x80\x9cno more than helpful signposts.\xe2\x80\x9d Hunt\nv. McNair, 413 U.S. 734, 741 (1973). Many of our recent cases simply have not applied the\nLemon test. See, e.g., Zelman v. Simmons\xe2\x80\x93Harris, 536 U.S. 639 (2002); Good News Club v.\nMilford Central School, 533 U.S. 98 (2001). Others have applied it only after concluding that\nthe challenged practice was invalid under a different Establishment Clause test.\nWhatever may be the fate of the Lemon test in the larger scheme of Establishment Clause\njurisprudence, we think it not useful in dealing with the sort of passive monument that Texas\nhas erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the\nmonument and by our Nation\xe2\x80\x99s history.\nAs we explained in Lynch v. Donnelly, 465 U.S. 668, 674 (1984): \xe2\x80\x9cThere is an unbroken\nhistory of official acknowledgment by all three branches of government of the role of religion in\nAmerican life from at least 1789.\xe2\x80\x9d For example, both Houses passed resolutions in 1789 asking\nPresident George Washington to issue a Thanksgiving Day Proclamation to \xe2\x80\x9crecommend to the\npeople of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favors of Almighty God.\xe2\x80\x9d \xe2\x80\xa6\nRecognition of the role of God in our Nation\xe2\x80\x99s heritage has also been reflected in our decisions. We have acknowledged, for example, that \xe2\x80\x9creligion has been closely identified with our\nhistory and government,\xe2\x80\x9d School Dist. of Abington Township v. Schempp, 374 U.S. at 212 and\nthat \xe2\x80\x9c[t]he history of man is inseparable from the history of religion,\xe2\x80\x9d Engel v. Vitale, 370 U.S.\n421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a\nstate legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh\nv. Chambers, 463 U.S. at 792. Such a practice, we thought, was \xe2\x80\x9cdeeply embedded in the history\nand tradition of this country.\xe2\x80\x9d As we observed there, \xe2\x80\x9cit would be incongruous to interpret [the\nEstablishment Clause] as imposing more stringent First Amendment limits on the states than the\ndraftsmen imposed on the Federal Government.\xe2\x80\x9d \xe2\x80\xa6\nIn this case we are faced with a display of the Ten Commandments on government property\noutside the Texas State Capitol. Such acknowledgments of the role played by the Ten Commandments in our Nation\xe2\x80\x99s heritage are common throughout America. We need only look\nwithin our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze.\nRepresentations of the Ten Commandments adorn the metal gates lining the north and south\nsides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the\nexterior east facade of the building holding the Ten Commandments tablets.\nSimilar acknowledgments can be seen throughout a visitor\xe2\x80\x99s tour of our Nation\xe2\x80\x99s Capital.\nFor example, a large statue of Moses holding the Ten Commandments, alongside a statue of the\nApostle Paul, has overlooked the rotunda of the Library of Congress\xe2\x80\x99 Jefferson Building since\n1897. And the Jefferson Building\xe2\x80\x99s Great Reading Room contains a sculpture of a woman beside\nthe Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National\nArchives. Inside the Department of Justice, a statue entitled \xe2\x80\x9cThe Spirit of Law\xe2\x80\x9d has two tablets\nrepresenting the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is\nanother sculpture that includes a depiction of the Ten Commandments. So too a 24\xe2\x80\x93foot\xe2\x80\x93tall\nsculpture, depicting, among other things, the Ten Commandments and a cross, stands outside\nthe federal courthouse that houses both the Court of Appeals and the District Court for the\nDistrict of Columbia. Moses is also prominently featured in the Chamber of the United States\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 207\nHouse of Representatives. \xe2\x80\xa6 These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgments.\nOf course, the Ten Commandments are religious\xe2\x80\x94they were so viewed at their inception\nand so remain. The monument, therefore, has religious significance. According to Judeo\xe2\x80\x93Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was\na lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning, as the foregoing examples demonstrate. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment\nClause\xe2\x80\xa6.\nThere are, of course, limits to the display of religious messages or symbols. For example,\nwe held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments\nin every public schoolroom. Stone v. Graham, 449 U.S. 39 (1980) (per curiam). \xe2\x80\xa6 As evidenced\nby Stone\xe2\x80\x99s almost exclusive reliance upon two of our school prayer cases \xe2\x80\xa6 it stands as an example of the fact that we have \xe2\x80\x9cbeen particularly vigilant in monitoring compliance with the\nEstablishment Clause in elementary and secondary schools,\xe2\x80\x9d Edwards v. Aguillard, 482 U.S.\n578, 583\xe2\x80\x93584 (1987). \xe2\x80\xa6 Indeed, Edwards v. Aguillard recognized that Stone\xe2\x80\x94along with\nSchempp and Engel\xe2\x80\x94was a consequence of the \xe2\x80\x9cparticular concerns that arise in the context of\npublic elementary and secondary schools.\xe2\x80\x9d Neither Stone itself nor subsequent opinions have\nindicated that Stone\xe2\x80\x99s holding would extend to a legislative chamber, or to capitol grounds.\nThe placement of the Ten Commandments monument on the Texas State Capitol grounds\nis a far more passive use of those texts than was the case in Stone, where the text confronted\nelementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked\nby the monument for a number of years before bringing this lawsuit. \xe2\x80\xa6 Texas has treated its\nCapitol grounds monuments as representing the several strands in the State\xe2\x80\x99s political and legal\nhistory. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas\xe2\x80\x99 display of this\nmonument violates the Establishment Clause of the First Amendment.\nThe judgment of the Court of Appeals is affirmed. It is so ordered.\nJustice SCALIA, concurring.\nI join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause jurisprudence\xe2\x80\x94or at least the Establishment Clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation\xe2\x80\x99s past and present practices, and\nthat can be consistently applied\xe2\x80\x94the central relevant feature of which is that there is nothing\nunconstitutional in a State\xe2\x80\x99s favoring religion generally, honoring God through public prayer\nand acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.\nSee McCreary County v. American Civil Liberties Union of Ky., (Scalia, J., dissenting).\nJustice THOMAS, concurring.\n\xe2\x80\xa6This case would be easy if the Court were willing to abandon the inconsistent guideposts\nit has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause.\n\xe2\x80\xa6The Framers understood an establishment \xe2\x80\x9cnecessarily [to] involve actual legal coercion.\xe2\x80\x9d Newdow at 52, 124 S.Ct. 2301 (THOMAS, J., concurring in judgment); Lee v. Weisman,\n505 U.S. 577, 640 (1992) (SCALIA, J., dissenting) (\xe2\x80\x9cThe coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support\nby force of law and threat of penalty\xe2\x80\x9d)\xe2\x80\xa6.\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c208 Religion in the Law\nThere is no question that, based on the original meaning of the Establishment Clause, the\nTen Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the\nmonument as he passes it on his way to the Texas Supreme Court Library. He need not stop to\nread it or even to look at it, let alone to express support for it or adopt the Commandments as\nguides for his life. The mere presence of the monument along his path involves no coercion and\nthus does not violate the Establishment Clause.\n\xe2\x80\xa6All told, this Court\xe2\x80\x99s jurisprudence leaves courts, governments, and believers and nonbelievers alike confused\xe2\x80\x94an observation that is hardly new. [The] very \xe2\x80\x9cflexibility\xe2\x80\x9d of this Court\xe2\x80\x99s\nEstablishment Clause precedent leaves it incapable of consistent application. See Edwards v.\nAguillard, 482 U.S. 578, 640 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test\xe2\x80\x99s \xe2\x80\x9cflexibility\xe2\x80\x9d as \xe2\x80\x9cthe absence of any principled rationale.\xe2\x80\x9d). The inconsistency between the decisions\nthe Court reaches today in this case and in McCreary County v. American Civil Liberties Union\nof Ky., 545 U.S. 844 (2005), only compounds the confusion.\nThe unintelligibility of this Court\xe2\x80\x99s precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections\xe2\x80\xa6. The outcome of constitutional cases ought to rest on firmer grounds than the personal\npreferences of judges.\nMuch, if not all, of this would be avoided if the Court would return to the views of the\nFramers and adopt coercion as the touchstone for our Establishment Clause inquiry\xe2\x80\xa6.\nJustice BREYER, concurring in the judgment.\n\xe2\x80\xa6If the relation between government and religion is one of separation, but not of mutual\nhostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see\nno test-related substitute for the exercise of legal judgment. \xe2\x80\xa6 That judgment is not a personal\njudgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured\nin light of those purposes. While the Court\xe2\x80\x99s prior tests provide useful guideposts \xe2\x80\xa6 no exact\nformula can dictate a resolution to such fact-intensive cases.\nThe case before us is a borderline case. It concerns a large granite monument bearing the\ntext of the Ten Commandments located on the grounds of the Texas State Capitol. On the one\nhand, the Commandments\xe2\x80\x99 text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot\nconclusively resolve this case. Rather, to determine the message that the text here conveys, we\nmust examine how the text is used. And that inquiry requires us to consider the context of the\ndisplay.\nIn certain contexts, a display of the tablets of the Ten Commandments can convey not\nsimply a religious message but also a secular moral message (about proper standards of social\nconduct). And in certain contexts, a display of the tablets can also convey a historical message\n(about a historic relation between those standards and the law)\xe2\x80\x94a fact that helps to explain the\ndisplay of those tablets in dozens of courthouses throughout the Nation, including the Supreme\nCourt of the United States\xe2\x80\xa6.\nThe group that donated the monument, the Fraternal Order of Eagles, a private civic (and\nprimarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments\xe2\x80\x99 role in shaping civic morality as part of that\norganization\xe2\x80\x99s efforts to combat juvenile delinquency. \xe2\x80\xa6 The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though\nnot sufficient, thereby further distances the State itself from the religious aspect of the Commandments\xe2\x80\x99 message.\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 209\nThe physical setting of the monument, moreover, suggests little or nothing of the sacred.\nThe monument sits in a large park containing 17 monuments and 21 historical markers, all\ndesigned to illustrate the \xe2\x80\x9cideals\xe2\x80\x9d of those who settled in Texas and of those who have lived\nthere since that time. The setting does not readily lend itself to meditation or any other religious\nactivity\xe2\x80\xa6.\nAs far as I can tell, 40 years passed in which the presence of this monument, legally speaking,\nwent unchallenged (until the single legal objection raised by petitioner). And I am not aware of\nany evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years\nsuggest more strongly than can any set of formulaic tests that few individuals, whatever their\nsystem of beliefs, are likely to have understood the monument as amounting, in any significantly\ndetrimental way, to a government effort to favor a particular religious sect, primarily to promote\nreligion over nonreligion, to \xe2\x80\x9cengage in\xe2\x80\x9d any \xe2\x80\x9creligious practic[e],\xe2\x80\x9d to \xe2\x80\x9ccompel\xe2\x80\x9d any \xe2\x80\x9creligious\npractic[e],\xe2\x80\x9d or to \xe2\x80\x9cwork deterrence\xe2\x80\x9d of any \xe2\x80\x9creligious belief.\xe2\x80\x9d Schempp, 374 U.S. at 305 (Goldberg, J., concurring). Those 40 years suggest that the public visiting the capitol grounds has\nconsidered the religious aspect of the tablets\xe2\x80\x99 message as part of what is a broader moral and\nhistorical message reflective of a cultural heritage.\nThis case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where,\ngiven the impressionability of the young, government must exercise particular care in separating\nchurch and state\xe2\x80\xa6. This case also differs from McCreary County, where the short (and stormy)\nhistory of the courthouse Commandments\xe2\x80\x99 displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those\nwho view them\xe2\x80\xa6. And, in today\xe2\x80\x99s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention\nupon a religious text is certainly likely to prove divisive in a way that this longstanding, preexisting monument has not.\n\xe2\x80\xa6 [I]n reaching the conclusion that the Texas display falls on the permissible side of the\nconstitutional line, I rely less upon a literal application of any test than upon consideration of\nthe basic purposes of the First Amendment\xe2\x80\x99s Religion Clauses themselves. This display has stood\napparently uncontested for nearly two generations. That experience helps us understand that as\na practical matter of degree this display is unlikely to prove divisive. And this matter of degree\nis, I believe, critical in a borderline case such as this one.\nAt the same time, to reach a contrary conclusion here, based primarily on the religious nature of the tablets\xe2\x80\x99 text would, I fear, lead the law to exhibit a hostility toward religion that has\nno place in our Establishment Clause traditions. Such a holding might well encourage disputes\nconcerning the removal of longstanding depictions of the Ten Commandments from public\nbuildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid\xe2\x80\xa6.\nJustice STEVENS, with whom Justice GINSBURG joins, dissenting.\nThe sole function of the monument on the grounds of Texas\xe2\x80\x99 State Capitol is to display the\nfull text of one version of the Ten Commandments. The monument is not a work of art and\ndoes not refer to any event in the history of the State\xe2\x80\xa6.\nViewed on its face, Texas\xe2\x80\x99 display has no purported connection to God\xe2\x80\x99s role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with\nany basis to guess that it was erected to honor any individual or organization. The message\ntransmitted by Texas\xe2\x80\x99 chosen display is quite plain: This State endorses the divine code of the\n\xe2\x80\x9cJudeo\xe2\x80\x93Christian\xe2\x80\x9d God\xe2\x80\xa6.\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c210 Religion in the Law\nThe adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular\nfaiths. Unfortunately, the practice also runs the risk of offending nonmembers of the faith being\nadvertised as well as adherents who consider the particular advertisement disrespectful.\nGovernment\xe2\x80\x99s obligation to avoid divisiveness and exclusion in the religious sphere is compelled by the Establishment and Free Exercise Clauses, which together erect a wall of separation\nbetween church and state. This metaphorical wall protects principles long recognized and often\nrecited in this Court\xe2\x80\x99s cases. The first and most fundamental of these principles, one that a majority of this Court today affirms [in McCreary County], is that the Establishment Clause demands religious neutrality\xe2\x80\x94government may not exercise a preference for one religious faith\nover another\xe2\x80\xa6. This essential command, however, is not merely a prohibition against the government\xe2\x80\x99s differentiation among religious sects. We have repeatedly reaffirmed that neither a\nState nor the Federal Government \xe2\x80\x9ccan constitutionally pass laws or impose requirements which\naid all religions as against non-believers, and neither can aid those religions based on a belief in\nthe existence of God as against those religions founded on different beliefs.\xe2\x80\x9d Torcaso v. Watkins,\n367 U.S. 488, 495 (1961). This principle is based on the straightforward notion that governmental promotion of orthodoxy is not saved by the aggregation of several orthodoxies under\nthe State\xe2\x80\x99s banner.\n\xe2\x80\xa6The plurality is correct to note that \xe2\x80\x9creligion and religious traditions\xe2\x80\x9d have played a\n\xe2\x80\x9cstrong role ... throughout our Nation\xe2\x80\x99s history.\xe2\x80\x9d \xe2\x80\xa6 Given this history, it is unsurprising that a\nreligious symbol may at times become an important feature of a familiar landscape or a reminder\nof an important event in the history of a community. The wall that separates the church from\nthe State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic\nmemorabilia from public view just because they also have religious significance.\nThis case, however, is not about historic preservation or the mere recognition of religion. \xe2\x80\xa6\nWhen the Ten Commandments monument was donated to the State of Texas in 1961, it was\nnot for the purpose of commemorating a noteworthy event in Texas history, signifying the Commandments\xe2\x80\x99 influence on the development of secular law, or even denoting the religious beliefs\nof Texans at that time. To the contrary, the donation was only one of over a hundred largely\nidentical monoliths, and of over a thousand paper replicas, distributed to state and local governments throughout the Nation over the course of several decades. This ambitious project was\nthe work of the Fraternal Order of Eagles\xe2\x80\xa6.\nIt is the Eagles\xe2\x80\x99 belief that disseminating the message conveyed by the Ten Commandments\nwill help to persuade young men and women to observe civilized standards of behavior, and will\nlead to more productive lives. Significantly, although the Eagles\xe2\x80\x99 organization is nonsectarian,\neligibility for membership is premised on a belief in the existence of a \xe2\x80\x9cSupreme Being.\xe2\x80\x9d As\ndescribed by the Eagles themselves:\nAll the concepts we live by\xe2\x80\x94freedom, democracy, justice, honor\xe2\x80\x94are rooted\nin the Ten Commandments. The erection of these monoliths is to inspire all\nwho pause to view them, with a renewed respect for the law of God, which is\nour greatest strength against the forces that threaten our way of life.\nThe desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. \xe2\x80\xa6 [The] significant secular byproducts that\nare intended consequences of religious instruction\xe2\x80\x94indeed, of the establishment of most religions\xe2\x80\x94are not the type of \xe2\x80\x9csecular\xe2\x80\x9d purposes that justify government promulgation of sacred\nreligious messages\xe2\x80\xa6.\nThe reason this message stands apart is that the Decalogue is a venerable religious text. As\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 211\nwe held 25 years ago, it is beyond dispute that \xe2\x80\x9c[t]he Ten Commandments are undeniably a\nsacred text in the Jewish and Christian faiths.\xe2\x80\x9d Stone v. Graham, 449 U.S. 39, 41 (1980). For\nmany followers, the Commandments represent the literal word of God as spoken to Moses and\nrepeated to his followers after descending from Mount Sinai. The message conveyed by the Ten\nCommandments thus cannot be analogized to an appendage to a common article of commerce\n(\xe2\x80\x9cIn God we Trust\xe2\x80\x9d) or an incidental part of a familiar recital (\xe2\x80\x9cGod save the United States and\nthis honorable Court\xe2\x80\x9d). \xe2\x80\xa6 Attempts to secularize what is unquestionably a sacred text defy\ncredibility and disserve people of faith\xe2\x80\xa6.\nMoreover, despite the Eagles\xe2\x80\x99 best efforts to choose a benign nondenominational text, the\nTen Commandments display projects not just a religious, but an inherently sectarian, message.\nThere are many distinctive versions of the Decalogue, ascribed to by different religions and even\ndifferent denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.\xe2\x80\xa6.\nEven if, however, the message of the monument, despite the inscribed text, fairly could be\nsaid to represent the belief system of all Judeo\xe2\x80\x93Christians, it would still run afoul of the Establishment Clause by prescribing a compelled code of conduct from one God, namely a Judeo\xe2\x80\x93\nChristian God, that is rejected by prominent polytheistic sects, such as Hinduism, as well as\nnontheistic religions, such as Buddhism. \xe2\x80\xa6 And, at the very least, the text of the Ten Commandments impermissibly commands a preference for religion over irreligion\xe2\x80\xa6.\nI do not doubt that some Texans \xe2\x80\xa6 may believe that the statues displayed on the Texas\nCapitol grounds, including the Ten Commandments monument, reflect the ideals that compose\nTexan identity. But Texas, like our entire country, is now a much more diversified community\nthan it was when it became a part of the United States or even when the monument was erected.\nToday there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all [or]\nbelieve that the account of the creation in the Book of Genesis is less reliable than the views of\nmen like Darwin and Einstein\xe2\x80\xa6.\nRecognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for\nthe propagation of an unmistakably Judeo\xe2\x80\x93Christian message of piety would have the tendency\nto make nonmonotheists and nonbelievers feel like outsiders in matters of faith, and strangers\nin the political community.\xe2\x80\xa6\nThe plurality relies heavily on the fact that our Republic was founded, and has been governed since its nascence, by leaders who spoke then (and speak still) in plainly religious rhetoric.\n\xe2\x80\xa6 [However], the plurality\xe2\x80\x99s reliance on early religious statements and proclamations made by\nthe Founders is \xe2\x80\xa6 problematic because those views were not espoused at the Constitutional\nConvention in 1787 nor enshrined in the Constitution\xe2\x80\x99s text. Thus, the presentation of these\nreligious statements as a unified historical narrative is bound to paint a misleading picture. In\naccording deference to the statements of George Washington and John Adams, THE CHIEF\nJUSTICE and Justice SCALIA fail to account for the acts and publicly espoused views of other\ninfluential leaders of that time. Notably absent from their historical snapshot is the fact that\nThomas Jefferson refused to issue the Thanksgiving proclamations that Washington had so\nreadily embraced based on the argument that to do so would violate the Establishment\nClause.\xe2\x80\xa6\nA reading of the First Amendment dependent on \xe2\x80\xa6 the purported original meanings \xe2\x80\xa6\nwould eviscerate the heart of the Establishment Clause. It would replace Jefferson\xe2\x80\x99s \xe2\x80\x9cwall of\nseparation\xe2\x80\x9d with a perverse wall of exclusion\xe2\x80\x94Christians inside, non-Christians out. It would\npermit States to construct walls of their own choosing\xe2\x80\x94Baptists inside, Mormons out; Jewish\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c212 Religion in the Law\nOrthodox inside, Jewish Reform out. A Clause so understood might be faithful to the expectations of some of our Founders, but it is plainly not worthy of a society whose enviable hallmark\nover the course of two centuries has been the continuing expansion of religious pluralism and\ntolerance\xe2\x80\xa6.\nThe principle that guides my analysis is neutrality. The basis for that principle is firmly\nrooted in our Nation\xe2\x80\x99s history and our Constitution\xe2\x80\x99s text. I recognize that the requirement that\ngovernment must remain neutral between religion and irreligion would have seemed foreign to\nsome of the Framers\xe2\x80\xa6. Fortunately, we are not bound by the Framers\xe2\x80\x99 expectations\xe2\x80\x94we are\nbound by the legal principles they enshrined in our Constitution\xe2\x80\xa6.\nThe judgment of the Court in this case stands for the proposition that the Constitution\npermits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may\nendorse a particular deity\xe2\x80\x99s command to \xe2\x80\x9chave no other gods before me,\xe2\x80\x9d it is difficult to conceive of any textual display that would run afoul of the Establishment Clause\xe2\x80\xa6.\nJustice O\xe2\x80\x99CONNOR, dissenting\xe2\x80\xa6.\nJustice SOUTER, with whom Justice STEVENS and Justice GINSBURG join, dissenting.\nAlthough the First Amendment\xe2\x80\x99s Religion Clauses have not been read to mandate absolute\ngovernmental neutrality toward religion \xe2\x80\xa6 the Establishment Clause requires neutrality as a\ngeneral rule, and thus expresses James Madison\xe2\x80\x99s condemnation of \xe2\x80\x9cemploy[ing] Religion as an\nengine of Civil policy.\xe2\x80\x9d A governmental display of an obviously religious text cannot be squared\nwith neutrality, except in a setting that plausibly indicates that the statement is not placed in\nview with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others.\n\xe2\x80\xa6[T]he Ten Commandments constitute a religious statement, their message is inherently\nreligious, and the purpose of singling them out in a display is clearly the same. Thus, a pedestrian\nhappening upon the monument at issue here needs no training in religious doctrine to realize\nthat the statement of the Commandments, quoting God himself, proclaims that the will of the\ndivine being is the source of obligation to obey the rules, including the facially secular ones. In\nthis case, moreover, the text is presented to give particular prominence to the Commandments\xe2\x80\x99\nfirst sectarian reference, \xe2\x80\x9cI am the Lord thy God.\xe2\x80\x9d That proclamation is centered on the stone\nand written in slightly larger letters than the subsequent recitation. To ensure that the religious\nnature of the monument is clear to even the most casual passerby, the word \xe2\x80\x9cLord\xe2\x80\x9d appears in\nall capital letters (as does the word \xe2\x80\x9cam\xe2\x80\x9d), so that the most eye-catching segment of the quotation is the declaration \xe2\x80\x9cI AM the LORD thy God.\xe2\x80\x9d What follows, of course, are the rules against\nother gods, graven images, vain swearing, and Sabbath breaking. And the full text of the fifth\nCommandment puts forward filial respect as a condition of long life in the land \xe2\x80\x9cwhich the Lord\nthey God giveth thee.\xe2\x80\x9d These words make the religious meaning unmistakably clear.\nTo drive the religious point home, and identify the message as religious to any viewer who\nfailed to read the text, the engraved quotation is framed by religious symbols: two tablets with\nwhat appears to be ancient script on them, two Stars of David, and the superimposed Greek\nletters Chi and Rho as the familiar monogram of Christ. Nothing on the monument, in fact,\ndetracts from its religious nature, \xe2\x80\xa6 and the plurality does not suggest otherwise. It would therefore be difficult to miss the point that the government of Texas is telling everyone who sees the\nmonument to live up to a moral code because God requires it, with both code and conception\nof God being rightly understood as the inheritances specifically of Jews and Christians\xe2\x80\xa6.\nThe monument\xe2\x80\x99s presentation of the Commandments with religious text emphasized and\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 213\nenhanced stands in contrast to any number of perfectly constitutional depictions of them, the\nfrieze of our own Courtroom providing a good example, where the figure of Moses stands\namong history\xe2\x80\x99s great lawgivers. While Moses holds the tablets of the Commandments showing\nsome Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious\npurpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral\nand intellectual abstractions like Equity and Authority. \xe2\x80\xa6 Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of\nother lawgivers; and the viewers may just as naturally see the tablets of the Commandments\n(showing the later ones, forbidding things like killing and theft, but without the divine preface)\nas background from which the concept of law emerged, ultimately having a secular influence in\nthe history of the Nation. Government may, of course, constitutionally call attention to this\ninfluence, and may post displays or erect monuments recounting this aspect of our history no\nless than any other, so long as there is a context and that context is historical. Hence, a display\nof the Commandments accompanied by an exposition of how they have influenced modern law\nwould most likely be constitutionally unobjectionable. And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools.\nTexas seeks to take advantage of the recognition that visual symbol and written text can\nmanifest a secular purpose in secular company, when it argues that its monument (like Moses\nin the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres\nsurrounding the State Capitol. Texas, indeed, says that the Capitol grounds are like a museum\nfor a collection of exhibits, the kind of setting that several Members of the Court have said can\nrender the exhibition of religious artifacts permissible, even though in other circumstances their\ndisplay would be seen as meant to convey a religious message forbidden to the State\xe2\x80\xa6.\nBut 17 monuments with no common appearance, history, or esthetic role scattered over 22\nacres is not a museum, and anyone strolling around the lawn would surely take each memorial\non its own terms without any dawning sense that some purpose held the miscellany together\nmore coherently than fortuity and the edge of the grass. One monument expresses admiration\nfor pioneer women. One pays respect to the fighters of World War II. And one quotes the God\nof Abraham whose command is the sanction for moral law. The themes are individual grit,\npatriotic courage, and God as the source of Jewish and Christian morality; there is no common\ndenominator\xe2\x80\xa6.\nIf the State\xe2\x80\x99s museum argument does nothing to blunt the religious message and manifestly\nreligious purpose behind it, neither does the plurality\xe2\x80\x99s reliance on generalities culled from cases\nfactually different from this one. \xe2\x80\xa6 In fact, it is not until the end of its opinion that the plurality\nturns to the relevant precedent of Stone, a case actually dealing with a display of the Decalogue.\nWhen the plurality finally does confront Stone, it tries to avoid the case\xe2\x80\x99s obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for\nlimiting Stone\xe2\x80\x99s reach this way in the opinion\xe2\x80\x99s citations of two school-prayer cases, School Dist.\nof Abington Township v. Schempp, 374 U.S. 203 (1963), and Engel v. Vitale, 370 U.S. 421\n(1962). But Stone relied on those cases for widely applicable notions, not for any concept specific\nto schools. The opinion quoted Schempp\xe2\x80\x99s statements that \xe2\x80\x9cit is no defense to urge that the\nreligious practices here may be relatively minor encroachments on the First Amendment,\xe2\x80\x9d\nSchempp, at 225, quoted in Stone, 449 U.S. at 42; and that \xe2\x80\x9cthe place of the Bible as an instrument of religion cannot be gainsaid,\xe2\x80\x9d Schempp, at 224, quoted in Stone, at 41, n. 3. And Engel\nwas cited to support the proposition that the State was responsible for displaying the Commandments, even though their framed, printed texts were bought with private subscriptions. \xe2\x80\xa6 Thus,\nthe schoolroom was beside the point of the citations, and that is presumably why the Stone\nCourt failed to discuss the educational setting, as other opinions had done when school was\nsignificant\xe2\x80\xa6.\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c214 Religion in the Law\nNor can the plurality deflect Stone by calling the Texas monument \xe2\x80\x9ca far more passive use\nof [the Decalogue] than was the case in Stone, where the text confronted elementary school\nstudents every day.\xe2\x80\x9d Placing a monument on the ground is not more \xe2\x80\x9cpassive\xe2\x80\x9d than hanging a\nsheet of paper on a wall when both contain the same text to be read by anyone who looks at it.\nThe problem in Stone was simply that the State was putting the Commandments there to be\nseen, just as the monument\xe2\x80\x99s inscription is there for those who walk by it.\nTo be sure, Kentucky\xe2\x80\x99s compulsory-education law meant that the schoolchildren were\nforced to see the display every day, whereas many see the monument by choice, and those who\ncustomarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil\ndown to judgment) this distinction should make no difference. The monument in this case sits\non the grounds of the Texas State Capitol. There is something significant in the common term\n\xe2\x80\x9cstatehouse\xe2\x80\x9d to refer to a state capitol building: it is the civic home of every one of the State\xe2\x80\x99s\ncitizens. If neutrality in religion means something, any citizen should be able to visit that civic\nhome without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion\xe2\x80\xa6.\nFinally, though this too is a point on which judgment will vary, I do not see a persuasive\nargument for constitutionality in the plurality\xe2\x80\x99s observation that Van Orden\xe2\x80\x99s lawsuit comes\n\xe2\x80\x9c[f]orty years after the monument\xe2\x80\x99s erection,\xe2\x80\x9d an observation that echoes the State\xe2\x80\x99s contention\nthat one fact cutting in its favor is that \xe2\x80\x9cthe monument had stood in Austin ... for some forty\nyears without generating any controversy or litigation,\xe2\x80\x9d It is not that I think the passage of time\nis necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e.g.,\nMarsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U.S. 420\n(1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes\nat some point too diminished for notice. But I do not understand any of these to be the State\xe2\x80\x99s\nargument, which rather seems to be that 40 years without a challenge shows that as a factual\nmatter the religious expression is too tepid to provoke a serious reaction and constitute a violation.\nPerhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations\nmay do better in accounting for the late resort to the courts. Suing a State over religion puts\nnothing in a plaintiff\xe2\x80\x99s pocket and can take a great deal out, and even with volunteer litigators\nto supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that\na slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying\nthe Establishment Clause.\n\nVan Orden v. Perry, 545 U.S. 677 (2005)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 215\n463 U.S. 783\nSupreme Court of the United States\n\nMarsh v. Chambers\nJuly 5, 1983\nChief Justice BURGER delivered the opinion of the Court.\nThe question presented is whether the Nebraska Legislature\xe2\x80\x99s practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of\nthe First Amendment.\nThe Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain\nwho is chosen biennially by the Executive Board of the Legislative Council and paid out of public\nfunds. Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary\nof $319.75 per month for each month the legislature is in session.\nErnest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska.\nClaiming that the Nebraska Legislature\xe2\x80\x99s chaplaincy practice violates the Establishment Clause\nof the First Amendment, he brought this action under 42 U.S.C. \xc2\xa7 1983, seeking to enjoin enforcement of the practice. \xe2\x80\xa6 [T]he District Court held that the Establishment Clause was not\nbreached by the prayers, but was violated by paying the chaplain from public funds. It therefore\nenjoined the Legislature from using public funds to pay the chaplain; it declined to enjoin the\npolicy of beginning sessions with prayers\xe2\x80\xa6.\nThe Court of Appeals for the Eighth Circuit \xe2\x80\xa6 refused to treat respondent\xe2\x80\x99s challenges as\nseparable issues as the District Court had done. Instead, the Court of Appeals assessed the practice as a whole because \xe2\x80\x9c[p]arsing out [the] elements\xe2\x80\x9d would lead to \xe2\x80\x9can incongruous result.\xe2\x80\x9d\nApplying the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612\xe2\x80\x93613 (1971), as set out\nin Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973), the\ncourt held that the chaplaincy practice violated all three elements of the test: the purpose and\nprimary effect of selecting the same minister for 16 years and publishing his prayers was to\npromote a particular religious expression; use of state money for compensation and publication\nled to entanglement. Accordingly, the Court of Appeals modified the District Court\xe2\x80\x99s injunction\nand prohibited the State from engaging in any aspect of its established chaplaincy practice.\nWe granted certiorari limited to the challenge to the practice of opening sessions with prayers by a State-employed clergyman and we reverse.\nThe opening of sessions of legislative and other deliberative public bodies with prayer is\ndeeply embedded in the history and tradition of this country. From colonial times through the\nfounding of the Republic and ever since, the practice of legislative prayer has coexisted with the\nprinciples of disestablishment and religious freedom. In the very courtrooms in which the United\nStates District Judge and later three Circuit Judges heard and decided this case, the proceedings\nopened with an announcement that concluded, \xe2\x80\x9cGod save the United States and this Honorable\nCourt.\xe2\x80\x9d The same invocation occurs at all sessions of this Court.\nThe tradition in many of the colonies was, of course, linked to an established church, but\nthe Continental Congress, beginning in 1774, adopted the traditional procedure of opening its\nsessions with a prayer offered by a paid chaplain. Although prayers were not offered during the\nConstitutional Convention, the First Congress, as one of its early items of business, adopted the\npolicy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the\nSenate appointed a committee \xe2\x80\x9cto take under consideration the manner of electing Chaplains.\xe2\x80\x9d\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c216 Religion in the Law\nOn April 9, 1789, a similar committee was appointed by the House of Representatives. On April\n25, 1789, the Senate elected its first chaplain; the House followed suit on May 1, 1789. A statute\nproviding for the payment of these chaplains was enacted into law on Sept. 22, 1789.\nOn Sept. 25, 1789, three days after Congress authorized the appointment of paid chaplains,\nfinal agreement was reached on the language of the Bill of Rights. Clearly the men who wrote\nthe First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. It has also been followed\nconsistently in most of the states, including Nebraska, where the institution of opening legislative\nsessions with prayer was adopted even before the State attained statehood.\nStanding alone, historical patterns cannot justify contemporary violations of constitutional\nguarantees, but there is far more here than simply historical patterns. In this context, historical\nevidence sheds light not only on what the draftsmen intended the Establishment Clause to mean,\nbut also on how they thought that Clause applied to the practice authorized by the First Congress\xe2\x80\x94their actions reveal their intent. An act \xe2\x80\x9cpassed by the first Congress assembled under\nthe Constitution, many of whose members had taken part in framing that instrument, is contemporaneous and weighty evidence of its true meaning\xe2\x80\x9d. Wisconsin v. Pelican Ins. Co., 127\nU.S. 265, 297 (1888).\nIn Walz v. Tax Comm\xe2\x80\x99n, 397 U.S. 664, 678 (1970), we considered the weight to be accorded\nto history:\nIt is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our\nentire national existence and indeed predates it. Yet an unbroken practice ...\nis not something to be lightly cast aside.\nNo more is Nebraska\xe2\x80\x99s practice of over a century, consistent with two centuries of national\npractice, to be cast aside. It can hardly be thought that in the same week Members of the First\nCongress voted to appoint and to pay a Chaplain for each House and also voted to approve the\ndraft of the First Amendment for submission to the States, they intended the Establishment\nClause of the Amendment to forbid what they had just declared acceptable. In applying the First\nAmendment to the states through the Fourteenth Amendment, Cantwell v. Connecticut, 310\nU.S. 296 (1940), it would be incongruous to interpret that clause as imposing more stringent\nFirst Amendment limits on the States than the draftsmen imposed on the Federal Government.\nThis unique history leads us to accept the interpretation of the First Amendment draftsmen\nwho saw no real threat to the Establishment Clause arising from a practice of prayer similar to\nthat now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or\ntax exemptions for religious organizations.\nRespondent cites Justice BRENNAN\xe2\x80\x99s concurring opinion in Abington School Dist. v.\nSchempp, 374 U.S. 203, 237 (1963), and argues that we should not rely too heavily on \xe2\x80\x9cthe\nadvice of the Founding Fathers\xe2\x80\x9d because the messages of history often tend to be ambiguous\nand not relevant to a society far more heterogeneous than that of the Framers. Respondent also\npoints out that John Jay and John Rutledge opposed the motion to begin the first session of the\nContinental Congress with prayer.\nWe do not agree that evidence of opposition to a measure weakens the force of the historical\nargument; indeed it infuses it with power by demonstrating that the subject was considered\ncarefully and the action not taken thoughtlessly, by force of long tradition and without regard\nto the problems posed by a pluralistic society. Jay and Rutledge specifically grounded their objection on the fact that the delegates to the Congress \xe2\x80\x9cwere so divided in religious sentiments ...\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 217\nthat [they] could not join in the same act of worship.\xe2\x80\x9d Their objection was met by Samuel Adams, who stated that \xe2\x80\x9che was no bigot, and could hear a prayer from a gentleman of piety and\nvirtue, who was at the same time a friend to his country.\xe2\x80\x9d\nThis interchange emphasizes that the delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government\xe2\x80\x99s official seal of approval on one\nreligious view. Rather, the Founding Fathers looked at invocations as \xe2\x80\x9cconduct whose ... effect\n... harmonize[d] with the tenets of some or all religions.\xe2\x80\x9d McGowan v. Maryland, 366 U.S. 420,\n442 (1961). The Establishment Clause does not always bar a state from regulating conduct\nsimply because it \xe2\x80\x9charmonizes with religious canons.\xe2\x80\x9d Id., at 462 (Frankfurter, J., concurring).\nHere, the individual claiming injury by the practice is an adult, presumably not readily susceptible to \xe2\x80\x9creligious indoctrination,\xe2\x80\x9d or peer pressure.\nIn light of the unambiguous and unbroken history of more than 200 years, there can be no\ndoubt that the practice of opening legislative sessions with prayer has become part of the fabric\nof our society. To invoke Divine guidance on a public body entrusted with making the laws is\nnot, in these circumstances, an \xe2\x80\x9cestablishment\xe2\x80\x9d of religion or a step toward establishment; it is\nsimply a tolerable acknowledgment of beliefs widely held among the people of this country. As\nJustice Douglas observed, \xe2\x80\x9c[w]e are a religious people whose institutions presuppose a Supreme\nBeing.\xe2\x80\x9d Zorach v. Clauson, 343 U.S. 306, 313 (1952).\nWe turn then to the question of whether any features of the Nebraska practice violate the\nEstablishment Clause. Beyond the bare fact that a prayer is offered, three points have been made:\nfirst, that a clergyman of only one denomination\xe2\x80\x94Presbyterian\xe2\x80\x94has been selected for 16 years;\nsecond, that the chaplain is paid at public expense; and third, that the prayers are in the JudeoChristian tradition. Weighed against the historical background, these factors do not serve to\ninvalidate Nebraska\xe2\x80\x99s practice.\n\xe2\x80\xa6We, no more than Members of the Congresses of this century, can perceive any suggestion\nthat choosing a clergyman of one denomination advances the beliefs of a particular church. To\nthe contrary, the evidence indicates that Palmer was reappointed because his performance and\npersonal qualities were acceptable to the body appointing him. Palmer was not the only clergyman heard by the Legislature; guest chaplains have officiated at the request of various legislators\nand as substitutes during Palmer\xe2\x80\x99s absences. Absent proof that the chaplain\xe2\x80\x99s reappointment\nstemmed from an impermissible motive, we conclude that his long tenure does not in itself conflict with the Establishment Clause.\nNor is the compensation of the chaplain from public funds a reason to invalidate the Nebraska Legislature\xe2\x80\x99s chaplaincy; remuneration is grounded in historic practice initiated, as we\nnoted earlier, by the same Congress that adopted the Establishment Clause of the First Amendment. The Continental Congress paid its chaplain, as did some of the states. Currently, many\nstate legislatures and the United States Congress provide compensation for their chaplains\xe2\x80\xa6.\nNebraska has paid its chaplain for well over a century. The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being\nso, it is not for us to embark on a sensitive evaluation or to parse the content of a particular\nprayer.\nWe do not doubt the sincerity of those, who like respondent, believe that to have prayer in\nthis context risks the beginning of the establishment the Founding Fathers feared. But this concern is not well founded, for as Justice Goldberg, aptly observed in his concurring opinion in\nAbington, 374 U.S. at 308:\nIt is of course true that great consequences can grow from small beginnings,\nbut the measure of constitutional adjudication is the ability and willingness to\ndistinguish between real threat and mere shadow.\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c218 Religion in the Law\nThe unbroken practice for two centuries in the National Congress, for more than a century\nin Nebraska and in many other states, gives abundant assurance that there is no real threat\n\xe2\x80\x9cwhile this Court sits,\xe2\x80\x9d Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928)\n(Holmes, J., dissenting).\nThe judgment of the Court of Appeals is Reversed.\nJustice BRENNAN, with whom Justice MARSHALL joins, dissenting.\nThe Court today has written a narrow and, on the whole, careful opinion. In effect, the\nCourt holds that officially sponsored legislative prayer, primarily on account of its \xe2\x80\x9cunique history,\xe2\x80\x9d is generally exempted from the First Amendment\xe2\x80\x99s prohibition against \xe2\x80\x9cthe establishment\nof religion.\xe2\x80\x9d The Court\xe2\x80\x99s opinion is consistent with dictum in at least one of our prior decisions,\nand its limited rationale should pose little threat to the overall fate of the Establishment Clause.\nMoreover, disagreement with the Court requires that I confront the fact that some twenty years\nago, in a concurring opinion in Schempp, at 299\xe2\x80\x93300, a case striking down official prayer and\nceremonial Bible reading in the public schools, I came very close to endorsing essentially the\nresult reached by the Court today. Nevertheless, after much reflection, I have come to the conclusion that I was wrong then and that the Court is wrong today. I now believe that the practice\nof official invocational prayer, as it exists in Nebraska and most other State Legislatures, is unconstitutional. It is contrary to the doctrine as well the underlying purposes of the Establishment\nClause, and it is not saved either by its history or by any of the other considerations suggested\nin the Court\xe2\x80\x99s opinion\xe2\x80\xa6.\n\xe2\x80\xa6I must begin by demonstrating what should be obvious: that, if the Court were to judge\nlegislative prayer through the unsentimental eye of our settled doctrine, it would have to strike\nit down as a clear violation of the Establishment Clause.\nThe most commonly cited formulation of prevailing Establishment Clause doctrine is found\nin Lemon v. Kurtzman, 403 U.S. 602 (1971):\n\xe2\x80\xa6Three tests may be gleaned from our cases. First, the statute [at issue] must\nhave a secular legislative purpose; second, its principal or primary effect must\nbe one that neither advances nor inhibits religion; finally, the statute must not\nfoster \xe2\x80\x98an excessive government entanglement with religion.\nThat the \xe2\x80\x9cpurpose\xe2\x80\x9d of legislative prayer is preeminently religious rather than secular seems\nto me to be self-evident. \xe2\x80\x9cTo invoke Divine guidance on a public body entrusted with making\nthe laws,\xe2\x80\x9d is nothing but a religious act. Moreover, whatever secular functions legislative prayer\nmight play\xe2\x80\x94formally opening the legislative session, getting the members of the body to quiet\ndown, and imbuing them with a sense of seriousness and high purpose\xe2\x80\x94could so plainly be\nperformed in a purely nonreligious fashion that to claim a secular purpose for the prayer is an\ninsult to the perfectly honorable individuals who instituted and continue the practice.\nThe \xe2\x80\x9cprimary effect\xe2\x80\x9d of legislative prayer is also clearly religious. As we said in the context\nof officially sponsored prayers in the public schools, \xe2\x80\x9cprescribing a particular form of religious\nworship,\xe2\x80\x9d even if the individuals involved have the choice not to participate, places \xe2\x80\x9cindirect\ncoercive pressure upon religious minorities to conform to the prevailing officially approved religion ....\xe2\x80\x9d Engel v. Vitale, 370 U.S. 421, 431 (1962). More importantly, invocations in Nebraska\xe2\x80\x99s\nlegislative halls explicitly link religious belief and observance to the power and prestige of the\nState. \xe2\x80\x9c[T]he mere appearance of a joint exercise of legislative authority by Church and State\nprovides a significant symbolic benefit to religion in the minds of some by reason of the power\nconferred.\xe2\x80\x9d Larkin v. Grendel\xe2\x80\x99s Den, 459 U.S. 116 (1982). See Abington School Dist. v.\nSchempp, 374 U.S. 203, 224 (1963).\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 219\nFinally, there can be no doubt that the practice of legislative prayer leads to excessive \xe2\x80\x9centanglement\xe2\x80\x9d between the State and religion. Lemon pointed out that \xe2\x80\x9centanglement\xe2\x80\x9d can take\ntwo forms: First, a state statute or program might involve the state impermissibly in monitoring\nand overseeing religious affairs. 403 U.S. at 614\xe2\x80\x93622. In the case of legislative prayer, the process\nof choosing a \xe2\x80\x9csuitable\xe2\x80\x9d chaplain, whether on a permanent or rotating basis, and insuring that\nthe chaplain limits himself or herself to \xe2\x80\x9csuitable\xe2\x80\x9d prayers, involves precisely the sort of supervision that agencies of government should if at all possible avoid.\nSecond, excessive \xe2\x80\x9centanglement\xe2\x80\x9d might arise out of \xe2\x80\x9cthe divisive political potential\xe2\x80\x9d of a\nstate statute or program. 403 U.S. at 622.\nOrdinarily political debate and division, however vigorous or even partisan,\nare normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils\nagainst which the First Amendment was intended to protect. The potential\ndivisiveness of such conflict is a threat to the normal political process.\nIn this case, this second aspect of entanglement is also clear. The controversy between Senator Chambers and his colleagues, which had reached the stage of difficulty and rancor long\nbefore this lawsuit was brought, has split the Nebraska Legislature precisely on issues of religion\nand religious conformity. The record in this case also reports a series of instances, involving\nlegislators other than Senator Chambers, in which invocations by Reverend Palmer and others\nled to controversy along religious lines. And in general, the history of legislative prayer has been\nfar more eventful\xe2\x80\x94and divisive\xe2\x80\x94than a hasty reading of the Court\xe2\x80\x99s opinion might indicate.\nIn sum, I have no doubt that, if any group of law students were asked to apply the principles\nof Lemon to the question of legislative prayer, they would nearly unanimously find the practice\nto be unconstitutional\xe2\x80\xa6.\nThe Establishment Clause embodies a judgment, born of a long and turbulent history, that,\nin our society, religion \xe2\x80\x9cmust be a private matter for the individual, the family, and the institutions of private choice....\xe2\x80\x9d Lemon v. Kurtzman, 403 U.S. at 625\xe2\x80\xa6. \xe2\x80\x9cIn the words of Jefferson,\nthe clause against establishment of religion by law was intended to erect \xe2\x80\x98a wall of separation\nbetween church and state.\xe2\x80\x99\xe2\x80\x9d Everson v. Board of Education, 330 U.S. 1, 16 (1947), quoting\nReynolds v. United States, 98 U.S. 145, 164 (1879).\nThe principles of \xe2\x80\x9cseparation\xe2\x80\x9d and \xe2\x80\x9cneutrality\xe2\x80\x9d implicit in the Establishment Clause serve\nmany purposes. Four of these are particularly relevant here.\nThe first, which is most closely related to the more general conceptions of liberty found in\nthe remainder of the First Amendment, is to guarantee the individual right to conscience. The\nright to conscience, in the religious sphere, is not only implicated when the government engages\nin direct or indirect coercion. It is also implicated when the government requires individuals to\nsupport the practices of a faith with which they do not agree\xe2\x80\xa6.\nThe second purpose of separation and neutrality is to keep the state from interfering in the\nessential autonomy of religious life, either by taking upon itself the decision of religious issues,\nor by unduly involving itself in the supervision of religious institutions or officials.\nThe third purpose of separation and neutrality is to prevent the trivialization and degradation of religion by too close an attachment to the organs of government. The Establishment\nClause \xe2\x80\x9cstands as an expression of principle on the part of the Founders of our Constitution\nthat religion is too personal, too sacred, too holy to permit its unhallowed perversion by a civil\nmagistrate.\xe2\x80\x9d Engel v. Vitale, 370 U.S. at 432. \xe2\x80\xa6\nFinally, the principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in\nthe political arena. \xe2\x80\xa6 With regard to most issues, the Government may be influenced by partisan\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c220 Religion in the Law\nargument and may act as a partisan itself. In each case, there will be winners and losers in the\npolitical battle, and the losers\xe2\x80\x99 most common recourse is the right to dissent and the right to fight\nthe battle again another day. With regard to matters that are essentially religious, however, the\nEstablishment Clause seeks that there should be no political battles, and that no American\nshould at any point feel alienated from his government because that government has declared\nor acted upon some \xe2\x80\x9cofficial\xe2\x80\x9d or \xe2\x80\x9cauthorized\xe2\x80\x9d point of view on a matter of religion\xe2\x80\xa6.\nLegislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and\nSchempp. It intrudes on the right to conscience by forcing some legislators either to participate\nin a \xe2\x80\x9cprayer opportunity,\xe2\x80\x9d with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State\nto support a religious exercise that may be contrary to their own beliefs. It requires the State to\ncommit itself on fundamental theological issues. It has the potential for degrading religion by\nallowing a religious call to worship to be intermeshed with a secular call to order. And it injects\nreligion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will\nprovoke a political battle along religious lines and ultimately alienate some religiously identified\ngroup of citizens\xe2\x80\xa6.\nThe Court\xe2\x80\x99s main argument for carving out an exception sustaining legislative prayer is\nhistorical. The Court cannot\xe2\x80\x94and does not\xe2\x80\x94purport to find a pattern of \xe2\x80\x9cundeviating acceptance,\xe2\x80\x9d of legislative prayer. It also disclaims exclusive reliance on the mere longevity of legislative prayer. The Court does, however, point out that, only three days before the First Congress reached agreement on the final wording of the Bill of Rights, it authorized the appointment\nof paid chaplains for its own proceedings, and the Court argues that in light of this \xe2\x80\x9cunique\nhistory,\xe2\x80\x9d the actions of Congress reveal its intent as to the meaning of the Establishment Clause.\nI agree that historical practice is \xe2\x80\x9cof considerable import in the interpretation of abstract constitutional language.\xe2\x80\x9d This is a case, however, in which\xe2\x80\x94absent the Court\xe2\x80\x99s invocation of history\xe2\x80\x94\nthere would be no question that the practice at issue was unconstitutional. And despite the surface appeal of the Court\xe2\x80\x99s argument, there are at least three reasons why specific historical practice should not in this case override that clear constitutional imperative.\nFirst, it is significant that the Court\xe2\x80\x99s historical argument does not rely on the legislative\nhistory of the Establishment Clause itself. \xe2\x80\xa6 Rather, the Court assumes that the Framers of the\nEstablishment Clause would not have themselves authorized a practice that they thought violated the guarantees contained in the clause. This assumption, however, is questionable. Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and\ncolleagues, and the press of business, do not always pass sober constitutional judgment on every\npiece of legislation they enact, and this must be assumed to be as true of the members of the First\nCongress as any other. Indeed, the fact that James Madison, who voted for the bill authorizing\nthe payment of the first congressional chaplains, later expressed the view that the practice was\nunconstitutional, is instructive on precisely this point. Madison\xe2\x80\x99s later views may not have represented so much a change of mind as a change of role, from a member of Congress engaged in\nthe hurley-burley of legislative activity to a detached observer engaged in unpressured reflection.\nSince the latter role is precisely the one with which this Court is charged, I am not at all sure that\nMadison\xe2\x80\x99s later writings should be any less influential in our deliberations than his earlier vote.\nSecond, the Court\xe2\x80\x99s analysis treats the First Amendment simply as an Act of Congress, as\nto whose meaning the intent of Congress is the single touchstone. Both the Constitution and its\namendments, however, became supreme law only by virtue of their ratification by the States,\nand the understanding of the States should be as relevant to our analysis as the understanding\nof Congress. \xe2\x80\xa6 This observation is especially compelling in considering the meaning of the Bill\nof Rights. The first 10 Amendments were not enacted because the members of the First Congress\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 221\ncame up with a bright idea one morning; rather, their enactment was forced upon Congress by\na number of the States as a condition for their ratification of the original Constitution\xe2\x80\xa6.\nFinally, and most importantly, the argument tendered by the Court is misguided because\nthe Constitution is not a static document whose meaning on every detail is fixed for all time by\nthe life experience of the Framers. We have recognized in a wide variety of constitutional contexts that the practices that were in place at the time any particular guarantee was enacted into\nthe Constitution do not necessarily fix forever the meaning of that guarantee. To be truly faithful\nto the Framers, our use of the history of their time must limit itself to broad purposes, not specific\npractices. Our primary task must be to translate \xe2\x80\x9cthe majestic generalities of the Bill of Rights,\nconceived as part of the pattern of liberal government in the eighteenth century, into concrete\nrestraints on officials dealing with the problems of the twentieth century ....\xe2\x80\x9d West Virginia State\nBd. of Education v. Barnette, 319 U.S. 624, 639 (1943)\xe2\x80\xa6.\nJustice STEVENS, dissenting.\nIn a democratically elected legislature, the religious beliefs of the chaplain tend to reflect the\nfaith of the majority of the lawmakers\xe2\x80\x99 constituents. Prayers may be said by a Catholic priest in\nthe Massachusetts Legislature and by a Presbyterian minister in the Nebraska Legislature, but I\nwould not expect to find a Jehovah\xe2\x80\x99s Witness or a disciple of Mary Baker Eddy or the Reverend\nMoon serving as the official chaplain in any state legislature. Regardless of the motivation of the\nmajority that exercises the power to appoint the chaplain, it seems plain to me that the designation of a member of one religious faith to serve as the sole official chaplain of a state legislature\nfor a period of 16 years constitutes the preference of one faith over another in violation of the\nEstablishment Clause of the First Amendment.\nThe Court declines to \xe2\x80\x9cembark on a sensitive evaluation or to parse the content of a particular prayer.\xe2\x80\x9d Perhaps it does so because it would be unable to explain away the clearly sectarian\ncontent of some of the prayers given by Nebraska\xe2\x80\x99s chaplain. Or perhaps the Court is unwilling\nto acknowledge that the tenure of the chaplain must inevitably be conditioned on the acceptability of that content to the silent majority\xe2\x80\xa6.\n\nMarsh v. Chambers, 463 U.S. 783 (1983)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c222 Religion in the Law\n572 U.S. 565\nSupreme Court of the United States\n\nTown of Greece v. Galloway\nMay 5, 2014\nJustice KENNEDY delivered the opinion of the Court, except as to Part II\xe2\x80\x93B.\nThe Court must decide whether the town of Greece, New York, imposes an impermissible\nestablishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court\xe2\x80\x99s opinion in Marsh v. Chambers, 463 U.S. 783 (1983), that no\nviolation of the Constitution has been shown.\nGreece, a town with a population of 94,000, is in upstate New York. \xe2\x80\xa6In 1999, the newly\nelected town supervisor, John Auberger, decided to replicate the prayer practice he had found\nmeaningful while serving in the county legislature. Following the roll call and recitation of the\nPledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver\nan invocation. After the prayer, Auberger would thank the minister for serving as the board\xe2\x80\x99s\n\xe2\x80\x9cchaplain for the month\xe2\x80\x9d and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine\nguidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.\nThe town followed an informal method for selecting prayer givers, all of whom were unpaid\nvolunteers. A town employee would call the congregations listed in a local directory until she\nfound a minister available for that month\xe2\x80\x99s meeting. The town eventually compiled a list of\nwilling \xe2\x80\x9cboard chaplains\xe2\x80\x9d who had accepted invitations and agreed to return in the future. The\ntown at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders\nmaintained that a minister or layperson of any persuasion, including an atheist, could give the\ninvocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007,\nall of the participating ministers were too.\nGreece neither reviewed the prayers in advance of the meetings nor provided guidance as\nto their tone or content, in the belief that exercising any degree of control over the prayers would\ninfringe both the free exercise and speech rights of the ministers. The town instead left the guest\nclergy free to compose their own devotions. The resulting prayers often sounded both civic and\nreligious themes. Typical were invocations that asked the divinity to abide at the meeting and\nbestow blessings on the community.\nLord we ask you to send your spirit of servanthood upon all of us gathered\nhere this evening to do your work for the benefit of all in our community....\nLord we ask you to bless us all, that everything we do here tonight will move\nyou to welcome us one day into your kingdom as good and faithful servants.\nWe ask this in the name of our brother Jesus. Amen.\nSome of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious\nholidays, scripture, or doctrine, as in the following prayer:\nLord, God of all creation, we give you thanks and praise for your presence\nand action in the world. We look with anticipation to the celebration of Holy\nWeek and Easter. It is in the solemn events of next week that we find the very\nheart and center of our Christian faith. We acknowledge the saving sacrifice\nof Jesus Christ on the cross. We draw strength, vitality, and confidence from\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 223\nhis resurrection at Easter.... We pray for peace in the world, an end to terrorism, violence, conflict, and war.... Praise and glory be yours, O Lord, now and\nforever more. Amen.\nRespondents Susan Galloway and Linda Stephens attended town board meetings to speak\nabout issues of local concern, and they objected that the prayers violated their religious or philosophical views\xe2\x80\xa6. After respondents complained that Christian themes pervaded the prayers,\nto the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman\nand the chairman of the local Baha\xe2\x80\x99i temple to deliver prayers. A Wiccan priestess who had read\npress reports about the prayer controversy requested, and was granted, an opportunity to give\nthe invocation.\nGalloway and Stephens brought suit in the United States District Court for the Western\nDistrict of New York. They alleged that the town violated the First Amendment\xe2\x80\x99s Establishment\nClause by preferring Christians over other prayer givers and by sponsoring sectarian prayers,\nsuch as those given \xe2\x80\x9cin Jesus\xe2\x80\x99 name.\xe2\x80\x9d They did not seek an end to the prayer practice, but rather\nrequested an injunction that would limit the town to \xe2\x80\x9cinclusive and ecumenical\xe2\x80\x9d prayers that\nreferred only to a \xe2\x80\x9cgeneric God\xe2\x80\x9d and would not associate the government with any one faith or\nbelief.\nThe District Court on summary judgment upheld the prayer practice as consistent with the\nFirst Amendment. It found no impermissible preference for Christianity, noting that the town\nhad opened the prayer program to all creeds and excluded none\xe2\x80\xa6. The Court of Appeals for\nthe Second Circuit reversed. It held that some aspects of the prayer program, viewed in their\ntotality by a reasonable observer, conveyed the message that Greece was endorsing Christianity\xe2\x80\xa6.\nHaving granted certiorari to decide whether the town\xe2\x80\x99s prayer practice violates the Establishment Clause, the Court now reverses the judgment of the Court of Appeals.\nIn Marsh v. Chambers, 463 U.S. 783, the Court found no First Amendment violation in the\nNebraska Legislature\xe2\x80\x99s practice of opening its sessions with a prayer delivered by a chaplain paid\nfrom state funds. The decision concluded that legislative prayer, while religious in nature, has\nlong been understood as compatible with the Establishment Clause. As practiced by Congress\nsince the framing of the Constitution, legislative prayer lends gravity to public business, reminds\nlawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society\xe2\x80\xa6. The Court has considered this symbolic expression to be a \xe2\x80\x9ctolerable acknowledgement of beliefs widely held,\xe2\x80\x9d Marsh, 463 U.S. at 792, rather\nthan a first, treacherous step towards establishment of a state church.\nMarsh is sometimes described as \xe2\x80\x9ccarving out an exception\xe2\x80\x9d to the Court\xe2\x80\x99s Establishment\nClause jurisprudence, because it sustained legislative prayer without subjecting the practice to\n\xe2\x80\x9cany of the formal \xe2\x80\x98tests\xe2\x80\x99 that have traditionally structured\xe2\x80\x9d this inquiry. Id., at 796, 813 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported\nthe conclusion that legislative invocations are compatible with the Establishment Clause\xe2\x80\xa6.\nYet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted \xe2\x80\x9cby reference to historical practices and understandings.\xe2\x80\x9d\nCounty of Allegheny, 492 U.S. at 670 (KENNEDY, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days\nafter approving language for the First Amendment demonstrates that the Framers considered\nlegislative prayer a benign acknowledgment of religion\xe2\x80\x99s role in society. In the 1850\xe2\x80\x99s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies\nafter receiving petitions to abolish the office. The committees concluded that the office posed no\nthreat of an establishment because lawmakers were not compelled to attend the daily prayer; no\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c224 Religion in the Law\nfaith was excluded by law, nor any favored; and the cost of the chaplain\xe2\x80\x99s salary imposed a\nvanishingly small burden on taxpayers. Marsh stands for the proposition that it is not necessary\nto define the precise boundary of the Establishment Clause where history shows that the specific\npractice is permitted. Any test the Court adopts must acknowledge a practice that was accepted\nby the Framers and has withstood the critical scrutiny of time and political change. County of\nAllegheny, at 670, (opinion of KENNEDY, J.); see also School Dist. of Abington Township v.\nSchempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring) (\xe2\x80\x9c[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully\nreflects the understanding of the Founding Fathers\xe2\x80\x9d). A test that would sweep away what has\nso long been settled would create new controversy and begin anew the very divisions along\nreligious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U.S.\n677, 702\xe2\x80\x93704 (2005) (BREYER, J., concurring in judgment).\nThe Court\xe2\x80\x99s inquiry, then, must be to determine whether the prayer practice in the town of\nGreece fits within the tradition long followed in Congress and the state legislatures. Respondents\nassert that the town\xe2\x80\x99s prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh\ndid not approve prayers containing sectarian language or themes, such as the prayers offered in\nGreece that referred to the \xe2\x80\x9cdeath, resurrection, and ascension of the Savior Jesus Christ,\xe2\x80\x9d and\nthe \xe2\x80\x9csaving sacrifice of Jesus Christ on the cross.\xe2\x80\x9d Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the\nroom or even feign participation in order to avoid offending the representatives who sponsor\nthe prayer and will vote on matters citizens bring before the board. The sectarian content of the\nprayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might\ntolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or\nher beliefs.\nRespondents maintain that prayer must be nonsectarian, or not identifiable with any one\nreligion; and they fault the town for permitting guest chaplains to deliver prayers that \xe2\x80\x9cuse\novertly Christian terms\xe2\x80\x9d or \xe2\x80\x9cinvoke specifics of Christian theology.\xe2\x80\x9d A prayer is fitting for the\npublic sphere, in their view, only if it contains the \xe2\x80\x9cmost general, nonsectarian reference to God,\xe2\x80\x9d\nand eschews mention of doctrines associated with any one faith. They argue that prayer which\ncontemplates \xe2\x80\x9cthe workings of the Holy Spirit, the events of Pentecost, and the belief that God\n\xe2\x80\x98has raised up the Lord Jesus\xe2\x80\x99 and \xe2\x80\x98will raise us, in our turn, and put us by His side\xe2\x80\x99\xe2\x80\x9d would be\nimpermissible, as would any prayer that reflects dogma particular to a single faith tradition.\nAn insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court\xe2\x80\x99s cases. The Court found the\nprayers in Marsh consistent with the First Amendment not because they espoused only a generic\ntheism but because our history and tradition have shown that prayer in this limited context\ncould \xe2\x80\x9ccoexis[t] with the principles of disestablishment and religious freedom.\xe2\x80\x9d 463 U.S. at 786.\nThe Congress that drafted the First Amendment would have been accustomed to invocations\ncontaining explicitly religious themes of the sort respondents find objectionable\xe2\x80\xa6. The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our\nNation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity\nnot by proscribing sectarian content but by welcoming ministers of many creeds\xe2\x80\xa6.\n\xe2\x80\xa6Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. \xe2\x80\xa6 Nor did the Court imply the rule that prayer violates the Establishment\nClause any time it is given in the name of a figure deified by only one faith or creed\xe2\x80\xa6. To the\ncontrary, the Court instructed that the \xe2\x80\x9ccontent of the prayer is not of concern to judges,\xe2\x80\x9d provided \xe2\x80\x9cthere is no indication that the prayer opportunity has been exploited to proselytize or\nadvance any one, or to disparage any other, faith or belief.\xe2\x80\x9d 463 U.S. at 794\xe2\x80\x93795.\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 225\nTo hold that invocations must be nonsectarian would force the legislatures that sponsor\nprayers and the courts that are asked to decide these cases to act as supervisors and censors of\nreligious speech, a rule that would involve government in religious matters to a far greater degree\nthan is the case under the town\xe2\x80\x99s current practice of neither editing or approving prayers in\nadvance nor criticizing their content after the fact\xe2\x80\xa6. Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system\nof belief or code of moral behavior. Engel v. Vitale, 370 U.S. 421, 430 (1962). It would be but\na few steps removed from that prohibition for legislatures to require chaplains to redact the\nreligious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the\nsacred any more than it may prescribe a religious orthodoxy\xe2\x80\xa6\nOnce it invites prayer into the public sphere, government must permit a prayer giver to\naddress his or her own God or gods as conscience dictates, unfettered by what an administrator\nor judge considers to be nonsectarian.\nIn rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not\nimply that no constraints remain on its content. The relevant constraint derives from its place at\nthe opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect\nvalues long part of the Nation\xe2\x80\x99s heritage. Prayer that is solemn and respectful in tone, that invites\nlawmakers to reflect upon shared ideals and common ends before they embark on the fractious\nbusiness of governing, serves that legitimate function. If the course and practice over time shows\nthat the invocations denigrate nonbelievers or religious minorities, threaten damnation, or\npreach conversion, many present may consider the prayer to fall short of the desire to elevate\nthe purpose of the occasion and to unite lawmakers in their common effort. That circumstance\nwould present a different case than the one presently before the Court.\nThe tradition reflected in Marsh permits chaplains to ask their own God for blessings of\npeace, justice, and freedom that find appreciation among people of all faiths. That a prayer is\ngiven in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious\ndoctrines, does not remove it from that tradition. These religious themes provide particular\nmeans to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to\nsolemnize the occasion, so long as the practice over time is not \xe2\x80\x9cexploited to proselytize or advance any one, or to disparage any other, faith or belief.\xe2\x80\x9d Marsh, 463 U.S. at 794\xe2\x80\x93795\xe2\x80\xa6.\nThe prayers delivered in the town of Greece do not fall outside the tradition this Court has\nrecognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the\nHoly Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons\nor calling for a \xe2\x80\x9cspirit of cooperation\xe2\x80\x9d among town leaders\xe2\x80\xa6.\nRespondents point to other invocations that disparaged those who did not accept the town\xe2\x80\x99s\nprayer practice. One guest minister characterized objectors as a \xe2\x80\x9cminority\xe2\x80\x9d who are \xe2\x80\x9cignorant\nof the history of our country,\xe2\x80\x9d while another lamented that other towns did not have \xe2\x80\x9cGodfearing\xe2\x80\x9d leaders. Although these two remarks strayed from the rationale set out in Marsh, they\ndo not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern\nof prayers that over time denigrate, proselytize, or betray an impermissible government purpose,\na challenge based solely on the content of a prayer will not likely establish a constitutional violation\xe2\x80\xa6.\nFinally, the Court disagrees with the view taken by the Court of Appeals that the town of\nGreece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. The town made reasonable efforts to identify all of the congregations\nlocated within its borders and represented that it would welcome a prayer by any minister or\nlayman who wished to give one. That nearly all of the congregations in town turned out to be\nChristian does not reflect an aversion or bias on the part of town leaders against minority faiths.\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c226 Religion in the Law\nSo long as the town maintains a policy of nondiscrimination, the Constitution does not require\nit to search beyond its borders for non-Christian prayer givers in an effort to achieve religious\nbalancing\xe2\x80\xa6\n[The following section of Justice Kennedy\xe2\x80\x99s opinion was joined only by Chief Justice\nRoberts and Justice Alito.]\nRespondents further seek to distinguish the town's prayer practice from the tradition upheld\nin Marsh on the ground that it coerces participation by nonadherents\xe2\x80\xa6. Respondents argue that\nthe public may feel subtle pressure to participate in prayers that violate their beliefs in order to\nplease the board members from whom they are about to seek a favorable ruling. In their view\nthe fact that board members in small towns know many of their constituents by name only\nincreases the pressure to conform\xe2\x80\xa6.\nAs a practice that has long endured, legislative prayer has become part of our heritage and\ntradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or\nthe recitation of \xe2\x80\x9cGod save the United States and this honorable Court\xe2\x80\x9d at the opening of this\nCourt's sessions. See Lynch, 465 U.S. at 693 (O'Connor, J., concurring). It is presumed that the\nreasonable observer is acquainted with this tradition and understands that its purposes are to\nlend gravity to public proceedings and to acknowledge the place religion holds in the lives of\nmany private citizens, not to afford government an opportunity to proselytize or force truant\nconstituents into the pews\xe2\x80\xa6.\nThe principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. The District Court in Marsh described the prayer\nexercise as \xe2\x80\x9can internal act\xe2\x80\x9d directed at the Nebraska Legislature's \xe2\x80\x9cown members,\xe2\x80\x9d Chambers\nv. Marsh, 504 F.Supp. 585, 588 (D.Neb.1980), rather than an effort to promote religious observance among the public.\xe2\x80\xa6 To be sure, many members of the public find these prayers meaningful and wish to join them. But their purpose is largely to accommodate the spiritual needs of\nlawmakers and connect them to a tradition dating to the time of the Framers. For members of\ntown boards and commissions, who often serve part-time and as volunteers, ceremonial prayer\nmay also reflect the values they hold as private citizens. The prayer is an opportunity for them\nto show who and what they are without denying the right to dissent by those who disagree.\nThe analysis would be different if town board members directed the public to participate in\nthe prayers, singled out dissidents for opprobrium, or indicated that their decisions might be\ninfluenced by a person's acquiescence in the prayer opportunity. No such thing occurred in the\ntown of Greece. Although board members themselves stood, bowed their heads, or made the\nsign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer.\nThese requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so\nthinking the action was inclusive, not coercive. \xe2\x80\xa6 Nothing in the record indicates that town\nleaders allocated benefits and burdens based on participation in the prayer, or that citizens were\nreceived differently depending on whether they joined the invocation or quietly declined\xe2\x80\xa6\nIn their declarations in the trial court, respondents stated that the prayers gave them offense\nand made them feel excluded and disrespected. Offense, however, does not equate to coercion.\nAdults often encounter speech they find disagreeable; and an Establishment Clause violation is\nnot made out any time a person experiences a sense of affront from the expression of contrary\nreligious views in a legislative forum, especially where, as here, any member of the public is\nwelcome in turn to offer an invocation reflecting his or her own convictions\xe2\x80\xa6. [I]n the general\ncourse legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate\xe2\x80\xa6.\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 227\nIn this case, as in Marsh, board members and constituents are \xe2\x80\x9cfree to enter and leave with\nlittle comment and for any number of reasons.\xe2\x80\x9d Lee, at 597. Should nonbelievers choose to exit\nthe room during a prayer they find distasteful, their absence will not stand out as disrespectful\nor even noteworthy. And should they remain, their quiet acquiescence will not, in light of our\ntraditions, be interpreted as an agreement with the words or ideas expressed. Neither choice\nrepresents an unconstitutional imposition as to mature adults, who \xe2\x80\x9cpresumably\xe2\x80\x9d are \xe2\x80\x9cnot readily susceptible to religious indoctrination or peer pressure.\xe2\x80\x9d Marsh, 463 U.S. at 792\xe2\x80\xa6\n***\nThe town of Greece does not violate the First Amendment by opening its meetings with\nprayer that comports with our tradition and does not coerce participation by nonadherents. The\njudgment of the U.S. Court of Appeals for the Second Circuit is reversed.\nIt is so ordered.\nJustice ALITO, with whom Justice SCALIA joins, concurring\xe2\x80\xa6.\n\xe2\x80\xa6When a municipality like the town of Greece seeks in good faith to emulate the congressional practice on which our holding in Marsh v. Chambers, 463 U.S. 783 (1983), was largely\nbased, that municipality should not be held to have violated the Constitution simply because its\nmethod of recruiting guest chaplains lacks the demographic exactitude that might be regarded\nas optimal.\nThe effect of requiring such exactitude would be to pressure towns to forswear altogether\nthe practice of having a prayer before meetings of the town council. Many local officials, puzzled\nby our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may\nresult from a lawsuit claiming a constitutional violation, already think that the safest course is\nto ensure that local government is a religion-free zone. Indeed, the Court of Appeals\xe2\x80\x99 opinion in\nthis case advised towns that constitutional difficulties \xe2\x80\x9cmay well prompt municipalities to pause\nand think carefully before adopting legislative prayer.\xe2\x80\x9d But if, as precedent and historic practice\nmake clear (and the principal dissent [by Justice Kagan] concedes), prayer before a legislative\nsession is not inherently inconsistent with the First Amendment, then a unit of local government\nshould not be held to have violated the First Amendment simply because its procedure for lining\nup guest chaplains does not comply in all respects with what might be termed a \xe2\x80\x9cbest practices\xe2\x80\x9d\nstandard.\nWhile the principal dissent, in the end, would demand no more than a small modification\nin the procedure that the town of Greece initially followed, much of the rhetoric in that opinion\nsweeps more broadly. Indeed, the logical thrust of many of its arguments is that prayer is never\npermissible prior to meetings of local government legislative bodies. At Greece Town Board\nmeetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often\npresent. The guest chaplains stand in front of the room facing the public. \xe2\x80\x9c[T]he setting is intimate,\xe2\x80\x9d and ordinary citizens are permitted to speak and to ask the board to address problems\nthat have a direct effect on their lives. \xe2\x80\xa6 Before a session of this sort, the principal dissent argues,\nany prayer that is not acceptable to all in attendance is out of bounds.\nThe features of Greece meetings that the principal dissent highlights are by no means unusual. It is common for residents to attend such meetings, either to speak on matters on the agenda\nor to request that the town address other issues that are important to them. Nor is there anything\nunusual about the occasional attendance of students, and when a prayer is given at the beginning\nof such a meeting, I expect that the chaplain generally stands at the front of the room and faces\nthe public. To do otherwise would probably be seen by many as rude. Finally, although the\nprincipal dissent, attaches importance to the fact that guest chaplains in the town of Greece often\nbegan with the words \xe2\x80\x9cLet us pray,\xe2\x80\x9d that is also commonplace and for many clergy, I suspect,\nalmost reflexive. In short, I see nothing out of the ordinary about any of the features that the\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c228 Religion in the Law\nprincipal dissent notes. Therefore, if prayer is not allowed at meetings with those characteristics,\nlocal government legislative bodies, unlike their national and state counterparts, cannot begin\ntheir meetings with a prayer. I see no sound basis for drawing such a distinction.\n\xe2\x80\xa6It is questionable whether the principal dissent accurately describes the Nebraska practice\nat issue in Marsh, but what is important is not so much what happened in Nebraska in the years\nprior to Marsh, but what happened before congressional sessions during the period leading up\nto the adoption of the First Amendment. By that time, prayer before legislative sessions already\nhad an impressive pedigree, and it is important to recall that history and the events that led to\nthe adoption of the practice.\nThe principal dissent paints a picture of \xe2\x80\x9cmorning in Nebraska\xe2\x80\x9d circa 1983, but it is more\ninstructive to consider \xe2\x80\x9cmorning in Philadelphia,\xe2\x80\x9d September 1774. The First Continental Congress convened in Philadelphia, and the need for the 13 colonies to unite was imperative. But\nmany things set colony apart from colony, and prominent among these sources of division was\nreligion. Purely as a practical matter, however, the project of bringing the colonies together required that these divisions be overcome.\nSamuel Adams sought to bridge these differences by prodding a fellow Massachusetts delegate to move to open the session with a prayer. As John Adams later recounted, this motion\nwas opposed on the ground that the delegates were \xe2\x80\x9cso divided in religious sentiments, some\nEpiscopalians, some Quakers, some Anabaptists, some Presbyterians, and some Congregationalists, that [they] could not join in the same act of worship.\xe2\x80\x9d In response, Samuel Adams proclaimed that \xe2\x80\x9che was no bigot, and could hear a prayer from a gentleman of piety and virtue,\nwho was at the same time a friend to his country.\xe2\x80\x9d Putting aside his personal prejudices, he\nmoved to invite a local Anglican minister, Jacob Duch\xc3\xa9, to lead the first prayer.\nThe following morning, Duch\xc3\xa9 appeared in full \xe2\x80\x9cpontificals\xe2\x80\x9d and delivered both the Anglican prayers for the day and an extemporaneous prayer. For many of the delegates\xe2\x80\x94members of\nreligious groups that had come to America to escape persecution in Britain\xe2\x80\x94listening to a distinctively Anglican prayer by a minister of the Church of England represented an act of notable\necumenism. But Duch\xc3\xa9\xe2\x80\x99s prayer met with wide approval\xe2\x80\x94John Adams wrote that it \xe2\x80\x9cfilled the\nbosom of every man\xe2\x80\x9d in attendance\xe2\x80\x94and the practice was continued. This first congressional\nprayer was emphatically Christian, and it was neither an empty formality nor strictly nondenominational. But one of its purposes, and presumably one of its effects, was not to divide, but\nto unite.\n\xe2\x80\xa6One of the first actions taken by the new Congress when it convened in 1789 was to\nappoint chaplains for both Houses. \xe2\x80\xa6 In the years since the adoption of the First Amendment,\nthe practice of prayer before sessions of the House and Senate has continued, and opening prayers from a great variety of faith traditions have been offered.\nThis Court has often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights, see, e.g.,Harmelin v. Michigan, 501 U.S. 957, 980 (1991), Carroll\nv. United States, 267 U.S. 132 (1925), and this principle has special force when it comes to the\ninterpretation of the Establishment Clause. This Court has always purported to base its Establishment Clause decisions on the original meaning of that provision\xe2\x80\xa6.\nThere can be little doubt that the decision in Marsh reflected the original understanding of\nthe First Amendment. It is virtually inconceivable that the First Congress, having appointed\nchaplains whose responsibilities prominently included the delivery of prayers at the beginning\nof each daily session, thought that this practice was inconsistent with the Establishment\nClause\xe2\x80\xa6.\nThis brings me to my final point. I am troubled by the message that some readers may take\nfrom the principal dissent\xe2\x80\x99s rhetoric and its highly imaginative hypotheticals\xe2\x80\xa6. Although I do\nnot suggest that the implication is intentional, I am concerned that at least some readers will\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 229\ntake [the dissent] as a warning that this is where today\xe2\x80\x99s decision leads\xe2\x80\x94to a country in which\nreligious minorities are denied the equal benefits of citizenship.\nNothing could be further from the truth. All that the Court does today is to allow a town\nto follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.\nJustice THOMAS, with whom Justice SCALIA joins as to Part II, concurring in part and concurring in the judgment.\n\xe2\x80\xa6Even if the Establishment Clause were properly incorporated against the States, the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that\nexisted at the founding. \xe2\x80\x9cThe coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of\npenalty.\xe2\x80\x9d Lee v. Weisman, 505 U.S. 577, 640 (1992) (SCALIA, J., dissenting); see also Perry,\n545 U.S. at 693\xe2\x80\x93694 (THOMAS, J., concurring); Cutter v. Wilkinson, 544 U.S. 709, 729 (2005)\n(THOMAS, J., concurring); Newdow, supra, at 52 (opinion of THOMAS, J.). In a typical case,\nattendance at the established church was mandatory, and taxes were levied to generate church\nrevenue. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church\xe2\x80\xa6.\n[Both] state and local forms of establishment involved \xe2\x80\x9cactual legal coercion,\xe2\x80\x9d Newdow, at\n52 (opinion of THOMAS, J.): They exercised government power in order to exact financial\nsupport of the church, compel religious observance, or control religious doctrine\xe2\x80\xa6.\nThus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual\nlegal coercion that counts\xe2\x80\x94not the \xe2\x80\x9csubtle coercive pressures\xe2\x80\x9d allegedly felt by respondents in\nthis case. The majority properly concludes that \xe2\x80\x9c[o]ffense ... does not equate to coercion,\xe2\x80\x9d since\n\xe2\x80\x9c[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation\nis not made out any time a person experiences a sense of affront from the expression of contrary\nreligious views in a legislative forum.\xe2\x80\x9d I would simply add, in light of the foregoing history of\nthe Establishment Clause, that \xe2\x80\x9c[p]eer pressure, unpleasant as it may be, is not coercion\xe2\x80\x9d either.\nNewdow, 542 U.S. at 49 (opinion of THOMAS, J.).\nJustice BREYER, dissenting.\n\xe2\x80\xa6The question in this case is whether the prayer practice of the town of Greece, by doing\ntoo little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to\npromote the \xe2\x80\x9cpolitical division along religious lines\xe2\x80\x9d that \xe2\x80\x9cwas one of the principal evils against\nwhich the First Amendment was intended to protect.\xe2\x80\x9d Lemon v. Kurtzman, 403 U.S. 602, 622\n(1971).\nIn seeking an answer to that fact-sensitive question, \xe2\x80\x9cI see no test-related substitute for the\nexercise of legal judgment.\xe2\x80\x9d Van Orden v. Perry, 545 U.S. 677, 700 (2005) (BREYER, J., concurring in judgment). Having applied my legal judgment to the relevant facts, I conclude, like\nJustice KAGAN, that the town of Greece failed to make reasonable efforts to include prayer\ngivers of minority faiths, with the result that, although it is a community of several faiths, its\nprayer givers were almost exclusively persons of a single faith. Under these circumstances, I\nwould affirm the judgment of the Court of Appeals that Greece\xe2\x80\x99s prayer practice violated the\nEstablishment Clause\xe2\x80\xa6.\nJustice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR\njoin, dissenting.\nI respectfully dissent from the Court\xe2\x80\x99s opinion because I think the Town of Greece\xe2\x80\x99s prayer\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c230 Religion in the Law\npractices violate [the] norm of religious equality\xe2\x80\x94the breathtakingly generous constitutional\nidea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist\nor Episcopalian. I do not contend that principle translates here into a bright separationist line.\nTo the contrary, I agree with the Court\xe2\x80\x99s decision in Marsh v. Chambers, 463 U.S. 783 (1983),\nupholding the Nebraska Legislature\xe2\x80\x99s tradition of beginning each session with a chaplain\xe2\x80\x99s\nprayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional\nrequirement of neutrality; such a forum need not become a religion-free zone. But still, the Town\nof Greece should lose this case. The practice at issue here differs from the one sustained in Marsh\nbecause Greece\xe2\x80\x99s town meetings involve participation by ordinary citizens, and the invocations\ngiven\xe2\x80\x94directly to those citizens\xe2\x80\x94were predominantly sectarian in content. Still more, Greece\xe2\x80\x99s\nBoard did nothing to recognize religious diversity: In arranging for clergy members to open each\nmeeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month\nout for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits\xe2\x80\xa6\n\xe2\x80\x9cThe clearest command of the Establishment Clause,\xe2\x80\x9d this Court has held, \xe2\x80\x9cis that one\nreligious denomination cannot be officially preferred over another.\xe2\x80\x9d Larson v. Valente, 456 U.S.\n228, 244 (1982)\xe2\x80\xa6.\n[The Town and the Court\xe2\x80\x99s majority] are right that, under Marsh, legislative prayer has a\ndistinctive constitutional warrant by virtue of tradition. \xe2\x80\xa6Relying on that \xe2\x80\x9cunbroken\xe2\x80\x9d national\ntradition, Marsh upheld (I think correctly) the Nebraska Legislature\xe2\x80\x99s practice of opening each\nday with a chaplain\xe2\x80\x99s prayer as \xe2\x80\x9ca tolerable acknowledgment of beliefs widely held among the\npeople of this country.\xe2\x80\x9d Id., at 792. And so I agree with the majority that the issue here is\n\xe2\x80\x9cwhether the prayer practice in the Town of Greece fits within the tradition long followed in\nCongress and the state legislatures.\xe2\x80\x9d\nWhere I depart from the majority is in my reply to that question. The town hall here is a\nkind of hybrid. Greece\xe2\x80\x99s Board indeed has legislative functions, as Congress and state assemblies\ndo\xe2\x80\x94and that means some opening prayers are allowed there. But \xe2\x80\xa6 the Board\xe2\x80\x99s meetings are\nalso occasions for ordinary citizens to engage with and petition their government, often on\nhighly individualized matters. That feature calls for Board members to exercise special care to\nensure that the prayers offered are inclusive\xe2\x80\x94that they respect each and every member of the\ncommunity as an equal citizen. But the Board, and the clergy members it selected, made no such\neffort. Instead, the prayers given in Greece, addressed directly to the Town\xe2\x80\x99s citizenry, were more\nsectarian, and less inclusive, than anything this Court sustained in Marsh. For those reasons, the\nprayer in Greece departs from the legislative tradition that the majority takes as its benchmark.\nStart by comparing two pictures, drawn precisely from reality. The first is of Nebraska\xe2\x80\x99s\n(unicameral) Legislature, as this Court and the state senators themselves described it. The second\nis of town council meetings in Greece, as revealed in this case\xe2\x80\x99s record.\nIt is morning in Nebraska, and senators are beginning to gather in the State\xe2\x80\x99s legislative\nchamber: It is the beginning of the official workday, although senators may not yet need to be\non the floor. See Chambers v. Marsh, 504 F.Supp. 585, 590, and n. 12 (D.Neb.1980); Lee, 505\nU.S. at 597. The chaplain rises to give the daily invocation. \xe2\x80\xa6 The longtime chaplain says something like the following (the excerpt is from his own amicus brief supporting Greece in this case):\n\xe2\x80\x9cO God, who has given all persons talents and varying capacities, Thou dost only require of us\nthat we utilize Thy gifts to a maximum. In this Legislature to which Thou has entrusted special\nabilities and opportunities, may each recognize his stewardship for the people of the State.\xe2\x80\x9d The\nchaplain is a Presbyterian minister, and \xe2\x80\x9csome of his earlier prayers\xe2\x80\x9d explicitly invoked Christian\nbeliefs, but he \xe2\x80\x9cremoved all references to Christ\xe2\x80\x9d after a single legislator complained. Marsh,\n463 U.S. at 793, n. 14.\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 231\nNow change the channel: It is evening in Greece, New York, and the Supervisor of the Town\nBoard calls its monthly public meeting to order. Those meetings (so says the Board itself) are\n\xe2\x80\x9cthe most important part of Town government.\xe2\x80\x9d They serve assorted functions, almost all actively involving members of the public. The Board may swear in new Town employees and hand\nout awards for civic accomplishments; it always provides an opportunity (called a Public Forum)\nfor citizens to address local issues and ask for improved services or new policies\xe2\x80\xa6; and it usually\nhears debate on individual applications from residents and local businesses to obtain special\nland-use permits, zoning variances, or other licenses\xe2\x80\xa6. [T]he setting is intimate: There are likely\nto be only 10 or so citizens in attendance\xe2\x80\xa6.\nAs the first order of business, the Town Supervisor introduces a local Christian clergy member\xe2\x80\x94denominated the chaplain of the month\xe2\x80\x94to lead the assembled persons in prayer. The\npastor steps up to a lectern (emblazoned with the Town\xe2\x80\x99s seal) at the front of the dais, and with\nhis back to the Town officials, he faces the citizens present. He asks them all to stand and to\n\xe2\x80\x9cpray as we begin this evening\xe2\x80\x99s town meeting.\xe2\x80\x9d (He does not suggest that anyone should feel\nfree not to participate.) And he says:\nThe beauties of spring ... are an expressive symbol of the new life of the risen\nChrist. The Holy Spirit was sent to the apostles at Pentecost so that they would\nbe courageous witnesses of the Good News to different regions of the Mediterranean world and beyond. The Holy Spirit continues to be the inspiration\nand the source of strength and virtue, which we all need in the world of today.\nAnd so ... [w]e pray this evening for the guidance of the Holy Spirit as the\nGreece Town Board meets.\nAfter the pastor concludes, Town officials behind him make the sign of the cross, as do\nsome members of the audience, and everyone says \xe2\x80\x9cAmen.\xe2\x80\x9d The Supervisor then announces the\nstart of the Public Forum, and a citizen stands up to complain about the Town\xe2\x80\x99s contract with a\ncable company.\nLet\xe2\x80\x99s count the ways in which these pictures diverge. First, the governmental proceedings at\nwhich the prayers occur differ significantly in nature and purpose. The Nebraska Legislature\xe2\x80\x99s\nfloor sessions\xe2\x80\x94like those of the U.S. Congress and other state assemblies\xe2\x80\x94are of, by, and for\nelected lawmakers. Members of the public take no part in those proceedings; any few who attend are spectators only, watching from a high-up visitors\xe2\x80\x99 gallery\xe2\x80\xa6 Greece\xe2\x80\x99s town meetings, by\ncontrast, revolve around ordinary members of the community. Each and every aspect of those\nsessions provides opportunities for Town residents to interact with public officials. And the most\nimportant parts enable those citizens to petition their government\xe2\x80\xa6\nSecond, the prayers in these two settings have different audiences. \xe2\x80\xa6As several Justices later\nnoted (and the majority today agrees), Marsh involved \xe2\x80\x9cgovernment officials invok[ing] spiritual\ninspiration entirely for their own benefit without directing any religious message at the citizens\nthey lead.\xe2\x80\x9d Lee, 505 U.S. at 630, n. 8 (Souter, J., concurring).\nThe very opposite is true in Greece: Contrary to the majority\xe2\x80\x99s characterization, the prayers\nthere are directed squarely at the citizens. [The] chaplain of the month stands with his back to\nthe Town Board; his real audience is the group he is facing\xe2\x80\x94the 10 or so members of the public,\nperhaps including children. And he typically addresses those people, as even the majority observes, as though he is \xe2\x80\x9cdirecting [his] congregation.\xe2\x80\x9d He almost always begins with some version of \xe2\x80\x9cLet us all pray together.\xe2\x80\x9d Often, he calls on everyone to stand and bow their heads, and\nhe may ask them to recite a common prayer with him. He refers, constantly, to a collective\n\xe2\x80\x9cwe\xe2\x80\x9d\xe2\x80\x94to \xe2\x80\x9cour\xe2\x80\x9d savior, for example, to the presence of the Holy Spirit in \xe2\x80\x9cour\xe2\x80\x9d lives, or to \xe2\x80\x9cour\nbrother the Lord Jesus Christ.\xe2\x80\x9d In essence, the chaplain leads, as the first part of a town meeting,\na highly intimate prayer service, with the public serving as his congregation.\nAnd third, the prayers themselves differ in their content and character\xe2\x80\xa6. [A]s the majority\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c232 Religion in the Law\nacknowledges, Marsh hinged on the view that \xe2\x80\x9cthat the prayer opportunity ha[d] [not] been\nexploited to proselytize or advance any one ... faith or belief\xe2\x80\x9d; had it been otherwise, the Court\nwould have reached a different decision. 463 U.S. at 794\xe2\x80\x93795.\nBut no one can fairly read the prayers from Greece\xe2\x80\x99s Town meetings as anything other than\nexplicitly Christian\xe2\x80\x94constantly and exclusively so. From the time Greece established its prayer\npractice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy. And after a brief spell surrounding the filing of this suit \xe2\x80\xa6 the Town resumed its\npractice of inviting only clergy from neighboring Protestant and Catholic churches\xe2\x80\xa6.\nThose three differences, taken together, remove this case from the protective ambit of Marsh\nand the history on which it relied\xe2\x80\xa6.\n...Let\xe2\x80\x99s say that a Muslim citizen of Greece goes before the Board to share her views on\npolicy or request some permit. Maybe she wants the Board to put up a traffic light at a dangerous intersection; or maybe she needs a zoning variance to build an addition on her home. But\njust before she gets to say her piece, a minister deputized by the Town asks her to pray \xe2\x80\x9cin the\nname of God\xe2\x80\x99s only son Jesus Christ.\xe2\x80\x9d She must think\xe2\x80\x94it is hardly paranoia, but only the\ntruth\xe2\x80\x94that Christian worship has become entwined with local governance. And now she faces\na choice\xe2\x80\x94to pray alongside the majority as one of that group or somehow to register her deeply\nfelt difference. She is a strong person, but that is no easy call\xe2\x80\x94especially given that the room is\nsmall and her every action (or inaction) will be noticed. She does not wish to be rude to her\nneighbors, nor does she wish to aggravate the Board members whom she will soon be trying to\npersuade. And yet she does not want to acknowledge Christ\xe2\x80\x99s divinity, any more than many of\nher neighbors would want to deny that tenet. So assume she declines to participate with the\nothers in the first act of the meeting\xe2\x80\x94or even, as the majority proposes, that she stands up and\nleaves the room altogether, At the least, she becomes a different kind of citizen, one who will not\njoin in the religious practice that the Town Board has chosen as reflecting its own and the community\xe2\x80\x99s most cherished beliefs. And she thus stands at a remove, based solely on religion, from\nher fellow citizens and her elected representatives.\nEverything about that situation, I think, infringes the First Amendment. (And of course \xe2\x80\xa6\nit would do so no less if the Town\xe2\x80\x99s clergy always used the liturgy of some other religion.). That\nthe Town Board selects, month after month and year after year, prayergivers who will reliably\nspeak in the voice of Christianity, and so places itself behind a single creed. That in offering those\nsectarian prayers, the Board\xe2\x80\x99s chosen clergy members repeatedly call on individuals, prior to\nparticipating in local governance, to join in a form of worship that may be at odds with their\nown beliefs. That the clergy thus put some residents to the unenviable choice of either pretending\nto pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that\nshares the Board\xe2\x80\x99s own evident religious beliefs and another (far smaller) class that does not.\nAnd that the practice also alters a dissenting citizen\xe2\x80\x99s relationship with her government, making\nher religious difference salient when she seeks only to engage her elected representatives as would\nany other citizen.\nNone of this means that Greece\xe2\x80\x99s town hall must be religion- or prayer-free. \xe2\x80\x9c[W]e are a\nreligious people,\xe2\x80\x9d Marsh observed, 463 U.S. at 792, and prayer draws some warrant from tradition in a town hall, as well as in Congress or a state legislature. What the circumstances here\ndemand is the recognition that we are a pluralistic people too. When citizens of all faiths come\nto speak to each other and their elected representatives in a legislative session, the government\nmust take especial care to ensure that the prayers they hear will seek to include, rather than serve\nto divide. No more is required\xe2\x80\x94but that much is crucial\xe2\x80\x94to treat every citizen, of whatever\nreligion, as an equal participant in her government\xe2\x80\xa6.\n[The] not-so-implicit message of the majority\xe2\x80\x99s opinion\xe2\x80\x94\xe2\x80\x9cWhat\xe2\x80\x99s the big deal, anyway?\xe2\x80\x9d\xe2\x80\x94\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cEstablishment 233\nis mistaken. The content of Greece\xe2\x80\x99s prayers is a big deal, to Christians and non-Christians alike.\nA person\xe2\x80\x99s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity\xe2\x80\x94who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to\nthe majority\xe2\x80\x99s apparent view, such sectarian prayers are not \xe2\x80\x9cpart of our expressive idiom\xe2\x80\x9d or\n\xe2\x80\x9cpart of our heritage and tradition,\xe2\x80\x9d assuming the word \xe2\x80\x9cour\xe2\x80\x9d refers to all Americans. They\nexpress beliefs that are fundamental to some, foreign to others\xe2\x80\x94and because that is so they\ncarry the ever-present potential to both exclude and divide. The majority, I think, assesses too\nlightly the significance of these religious differences, and so fears too little the \xe2\x80\x9creligiously based\ndivisiveness that the Establishment Clause seeks to avoid.\xe2\x80\x9d Van Orden v. Perry, 545 U.S. 677,\n704 (2005) (BREYER, J., concurring in judgment). I would treat more seriously the multiplicity\nof Americans\xe2\x80\x99 religious commitments, along with the challenge they can pose to the project\xe2\x80\x94\nthe distinctively American project\xe2\x80\x94of creating one from the many, and governing all as\nunited\xe2\x80\xa6.\nWhen the citizens of this country approach their government, they do so only as Americans,\nnot as members of one faith or another. And that means that even in a partly legislative body,\nthey should not confront government-sponsored worship that divides them along religious lines.\nI believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I\ntherefore respectfully dissent from the Court\xe2\x80\x99s decision.\n\nTown of Greece v. Galloway, 572 U.S. 565 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c234 Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 235\n\nFree Exercise\nConflict and Accommodation\nPROBABLY ALL RELIGIONS have a participatory component that goes beyond simply\nholding sacred beliefs inside the head (or heart). Believers of all stripes also participate\nin rituals, observances, events, holidays, etc., sometimes alone, sometimes in groups.\nThey pray, sometimes aloud. They sing songs or chant mantras. They congregate and\ncommune. They eat certain foods or avoid certain foods. They wear specific clothing\nor do not wear specific clothing. They grow beards or shave. They grow their hair long\nor cut it very short. They wear hats or do not wear hats. They drink alcohol or do not\ndrink alcohol. They spend money on some things or boycott others. They hold silent\nvigil or loudly proclaim their views for all to hear.\nAll of these are examples of religious \xe2\x80\x9cexercise.\xe2\x80\x9d They are also examples of actions\nthat could easily fall under the regulatory power of the government. The police power,\nwhich underlies government\xe2\x80\x99s ability to \xe2\x80\x9cestablish\xe2\x80\x9d a favored faith through its morals\nlegislation or through its allocation of tax dollars, affects the freedom of believers to\nact according to their individual religious beliefs as well. Secular law regulates food,\nclothing, alcohol and drugs, commerce, noise, gatherings, etc. Because religious exercise can incorporate any or all of those things, the law necessarily regulates religious\nexercise. Every person is at the same time both a citizen of an ostensibly secular society\nand a person with a religious status (even if that status is \xe2\x80\x9cnone\xe2\x80\x9d). Our personal obligation to follow our religious scruples may conflict with our political obligation to\nfollow the law. This dynamic can create profound conflict, even when religiously neutral law inadvertently or \xe2\x80\x9cincidentally\xe2\x80\x9d restrains religious exercise.\nIn our simultaneously religious and secular society, judges must routinely resolve\nthese conflicts. This section explores judicial decisions in the realm of free exercise from\nseveral perspectives. Part One traces the twists and turns of the Supreme Court\xe2\x80\x99s constitutional free exercise doctrine up until the 1990s, dealing mostly with \xe2\x80\x9cincidental\xe2\x80\x9d\ninfringements by Sunday closing laws, the denial of unemployment benefits, and the\nlevying of taxes. Part One and a Half jumps into more recent times, when some members of the Court, in what would normally be procedural rulings, subtly began to transform its free exercise doctrine under the shadow of a global pandemic. Part Two turns\nour attention to statutory protections for religious exercise and tackles institutional\nconflicts in the workplace and in prison. Finally, Part Three turns up the drama, as\ngovernment and judges try to manage troublemaking religious proselytizers and provocateurs.\n\nPart One: Constitutional Free Exercise\nThe First Amendment prohibits Congress from making any law \xe2\x80\x9cprohibiting the\nfree exercise\xe2\x80\x9d of religion. It says nothing more, however, and \xe2\x80\x9cfree exercise,\xe2\x80\x9d like \xe2\x80\x9cestablishment,\xe2\x80\x9d is left undefined. Also like establishment, free exercise can plausibly be\ninterpreted many different ways, complicating judicial enforcement of the clause. For\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c236 Religion in the Law\n\nexample, a person can \xe2\x80\x9cexercise\xe2\x80\x9d their religion in multiple ways. They can exercise\nthrough belief alone by holding a religious thought in their mind. They can also exercise their religion through action, even extreme action: ingesting hallucinatory drugs,\nsacrificing an animal, physically blocking other people from entering an abortion clinic,\nrefusing to go to war.\nThis distinction between religious belief and action was the first sticking point for\nthe Supreme Court. Belief, the Court has always said, is untouchable. The government\nhas no power to prohibit or compel any particular religious sentiments. A believer\xe2\x80\x99s\nmind (or soul, perhaps) is off-limits to the state\xe2\x80\x99s otherwise robust police power to\nregulate for the good of public health, welfare, and morals. Fair enough, but must the\ngovernment also concede its power over religious actions? A person is free to believe\nthat the only path to salvation is through human sacrifice, perhaps, but must the state\nallow them to act on that belief?\nIn Reynolds v. United States, the first significant free exercise case in Supreme\nCourt history (excerpted above in First Principles), the Court drew a bold line between\nreligious belief and action, rejecting the argument that the First Amendment gave polygamists a pass. Unlike many subsequent decisions, Reynolds did not compel any accommodation, apply a heightened level of scrutiny, or, frankly, express much concern\nat all for religious autonomy. The Court gave the government extensive leeway to curtail unpopular actions. George Reynolds and his fellow Mormons were free to believe\nthat taking multiple wives was godly, but the government nevertheless retained its\npower to prohibit the action of polygamy. The Court doubled down in Davis v.\nBeason, again ruling against religious polygamists.1 \xe2\x80\x9cHowever free the exercise of religion may be, it must be subordinate to the criminal laws of the country,\xe2\x80\x9d wrote Justice\nStephen Field for a unanimous Court.\nA more nuanced doctrine would emerge over time. The Court for a while after\nReynolds still clung to the belief/action dichotomy but eventually started to add wiggle\nroom. In its establishment cases, the Court acknowledged that a direct government\nattack on a particular religion would be unlawful (despite its repeated affirmations of\nthe anti-Mormon polygamy bans). It adopted the same stance in free exercise cases.\nThe Court then turned to indirect infringement by taking cases where believers sought\naccommodations from \xe2\x80\x9cincidental burdens\xe2\x80\x9d to their \xe2\x80\x9cconscience\xe2\x80\x9d imposed by otherwise neutral laws.\n\nWilliam, Walter, and Lillian Gobitas\n- Bettman Archive/CORBIS\n\n1\n\nAt first, the Court held to its Reynolds/Beason position on religious action and\nincidental burdens. In 1940, Jehovah\xe2\x80\x99s Witnesses in Pennsylvania objected to mandatory\nflag pledges in the public schools. Walter Gobitas sued on behalf of his children William\nand Lillian, on the ground that saluting the\nflag was the same as worshipping a graven\nimage, something prohibited by the Bible and\ncontrary to their faith. Unsympathetic, the\n\n133 U.S. 333 (1890).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 237\n\njustices ruled 8-1 in Minersville School District v. Gobitis2 that \xe2\x80\x9creligious scruples\xe2\x80\x9d\ncould not \xe2\x80\x9crelieve the individual from obedience to general law.\xe2\x80\x9d Writing for the Court,\nJustice Felix Frankfurter acknowledged the importance of religious autonomy but concluded that the government\xe2\x80\x99s interest \xe2\x80\x93 promoting national unity \xe2\x80\x93 was more important\nthan whatever incidental burdens on individual conscience may result from forcing\nchildren to recite the flag pledge. Justice Harlan Stone, alone in dissent, wrote that\n\xe2\x80\x9ccompulsory expression of belief which violates religious convictions\xe2\x80\x9d could not possibly be consistent with the Constitutional protections of religious belief and free\nspeech, no matter how desirable national unity may be.\nThe Witnesses soon tried again, this time successfully. After just three years, the\nCourt eloquently overruled Gobitis in West Virginia Board of Education v. Barnette,\nbut under the First Amendment\xe2\x80\x99s free speech clause, not the free exercise clause.3 The\ngovernment had no power to compel anyone to recite patriotic speech against their\nwill, Justice Robert Jackson wrote, and to allow such would only lead to despotism.\nHe repeatedly alluded to the threat posed by hyper-nationalist enemies such as the Nazis in Germany (at the time still at war with the U.S.) and concluded that \xe2\x80\x9ccompulsory\nunification of opinion achieves only the unanimity of the graveyard.\xe2\x80\x9d4 Indeed, Jehovah\xe2\x80\x99s Witnesses too were among those persecuted and exterminated by Adolph Hitler\xe2\x80\x99s\nregime. Focusing on free speech rights, the Court concluded that mandatory flag\npledges were unconstitutional for all students, regardless of their religious sensibilities.\nJustice Frankfurter dissented, reaffirming his position in Gobitis, but adding to it\nhis own religious perspective. As a Jew, he wrote, he was no stranger to persecution\nand was personally sympathetic to the Witnesses\xe2\x80\x99 arguments. However, his sense of\njudicial restraint compelled him to defer to the people of West Virginia, who had democratically voted to compel the flag pledge in order to promote national unity, an otherwise legitimate state interest. As a member of the Supreme Court, Frankfurter wrote,\nhe was powerless to interfere with such an exercise of the state\xe2\x80\x99s political will.\nSpeech, federalism, and the Nazis aside, the Court still applied the same \xe2\x80\x9cobedience\nto general law\xe2\x80\x9d rule to religious free exercise claims as late as 1961. Since colonial times\nand well into the middle of the twentieth century, all American states had laws prohibiting at least some labor and commercial activity on Sundays. The original versions of\nthese laws explicitly invoked Christian doctrine, extolling the virtues of resting on the\nSabbath or the \xe2\x80\x9cthe Lord\xe2\x80\x99s Day.\xe2\x80\x9d Even though many states subsequently cut biblical\nreferences from later versions, these \xe2\x80\x9cSunday closing laws\xe2\x80\x9d (or \xe2\x80\x9cblue laws\xe2\x80\x9d) nevertheless compelled religious observance by everyone, including minorities with conflicting\ndoctrines such as Jews and Jehovah\xe2\x80\x99s Witnesses.\n\nThe Supreme Court misspelled the Gobitas\xe2\x80\x99 name in the case caption.\n319 U.S. 624 (1943). In another sloppy caption, the Court misspelled the plaintiffs\xe2\x80\x99 last\nname, which was Barnett. See also Palko v. Connecticut, 302 U.S. 319 (1937) (misspelling\nPalka, the defendant\xe2\x80\x99s actual last name).\n4 Barnette\xe2\x80\x99s 6-3 majority so soon after Gobitis was made possible by the retirement of Chief\nJustice Charles Evans Hughes and Justice James McReynolds, the appointments of Justices Jackson and Wiley Rutledge, and a change of heart by Justices Hugo Black, William\nDouglas, and Frank Murphy. Justices Frankfurter, Owen Roberts, and Stanley Reed, all in\nthe Gobitis majority, stood firm and dissented to Barnette.\n2\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c238 Religion in the Law\n\nThe Court upheld such laws in four decisions issued on the same day in May 1961.\nOne of the decisions was McGowan v. Maryland (excerpted above in Establishment),\nwhich held that Sunday closing laws had been around so long that they had taken on\na non-religious character and thus were not (at least now) an unlawful establishment\nof religion.\nAnother case decided that day was Braunfeld v. Brown, which turned instead on\nfree exercise. Abraham Braunfeld, an Orthodox Jew, sold clothing and home goods in\nPhiladelphia. His religious beliefs compelled him to close his store on Saturday, the\nJewish Sabbath, which put him in an economic pickle. Because of Pennsylvania\xe2\x80\x99s Sunday closing law, his store had to close for the entire weekend, cutting deep into his\nsales. Braunfeld argued that this created a free exercise problem \xe2\x80\x93 he had to choose\nbetween violating his religious beliefs by working on Saturday or go out of business \xe2\x80\x93\nand that the First Amendment required the state to accommodate him.\nThe Supreme Court, in a plurality opinion written by Chief Justice Earl Warren,\nrejected Braunfeld\xe2\x80\x99s argument. The Sunday closing law was neutral because it applied\nto everyone and did not criminalize any aspect of Jewish belief. Because it was neutral,\nit needed only to be rational to satisfy the First Amendment, and it was rational because\nit furthered public health and wellbeing. The only injury was to Braunfeld\xe2\x80\x99s voluntary\neconomic pursuits; the law merely made \xe2\x80\x9cthe practice of [his] religious beliefs more\nexpensive.\xe2\x80\x9d He was thus entitled to no accommodation.\nThough he agreed that Braunfeld (and its companions such as McGowan) presented no establishment problem, Justice William Brennan dissented on other grounds,\narguing that the Court had applied the wrong analysis to Braunfeld\xe2\x80\x99s free exercise\nclaim. His claim deserved so-called \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d Brennan said. Braunfeld\xe2\x80\x99s case\nwas not a question of mere rationality \xe2\x80\x93 an enumerated right to free exercise under the\nFirst Amendment was at issue, not some lesser, more vague liberty interest. Thus, Brennan argued, Pennsylvania needed to produce a compelling reason to \xe2\x80\x9cimpede\xe2\x80\x9d Braunfeld\xe2\x80\x99s individual \xe2\x80\x9cfreedom to worship.\xe2\x80\x9d The Sunday closing laws, which Justice Felix\nFrankfurter admitted in concurrence were the direct descendants of English religious\nestablishment, had no compelling justification to impose religious observance on nonobservers. Thus, Braunfeld was at least entitled to an individual accommodation, if not\nthe invalidation of the law. No other justices joined this opinion.\nDespite a lack of support for his dissent in Braunfeld and the precedential weight\nof four new cases rejecting religious freedom claims, Justice Brennan would nevertheless soon get his way on free exercise. Just two years later, in Sherbert v. Verner, another\ncase dealing with a Saturday Sabbath observer, turnover among the justices and apparent changes of heart gave him enough support to impose strict scrutiny in free exercise\ncases, even when the challenged laws were ostensibly neutral.5\n\nOut between 1961 and 1963 were Justices Frankfurter and Charles Whittaker, in were\nJustices Arthur Goldberg and Byron White. Goldberg joined Brennan\xe2\x80\x99s Sherbert majority,\nalong with Chief Justice Earl Warren and Justices Hugo Black and Tom Clark, all three of\nwhom had previously voted the other way in Braunfeld. Braunfeld dissenters William\nDouglas and Potter Stewart declined to join Brennan\xe2\x80\x99s opinion but concurred in the judgment, agreeing that Sherbert should win, making the vote in her favor 7-2.\n5\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 239\n\nAdell Sherbert\n- Dody Setzer\n\nAdell Sherbert, a Seventh-day Adventist and an observer of Saturday Sabbath like Abraham Braunfeld,\nfound herself in a slightly different economic predicament than her predecessor. Rather than being prevented\nfrom working, a mandatory schedule change at her\nworkplace required her to work on her holy day of rest.\nShe refused and was fired. Afterward, she tried but failed\nto find a new job that did not also require Saturday\nwork. This ongoing refusal to violate her religious beliefs\nled South Carolina to reject her unemployment benefits\nclaim for failing \xe2\x80\x9cto accept available suitable work when\noffered\xe2\x80\x9d \xe2\x80\x9cwithout good cause.\xe2\x80\x9d Sherbert sued, arguing\nthat the state\xe2\x80\x99s refusal to recognize her religious beliefs as\n\xe2\x80\x9cgood cause\xe2\x80\x9d was a violation of the First Amendment.\n\nThe Court agreed, and Justice Brennan used his now-majority opinion to flesh out\na new method of analyzing religious freedom claims in line with his dissent to Braunfeld. The \xe2\x80\x9cfirst question\xe2\x80\x9d was whether the state\xe2\x80\x99s action \xe2\x80\x9cimposes any burden on the\nfree exercise\xe2\x80\x9d of a person\xe2\x80\x99s religion. For Sherbert, the answer was yes. The state burdened her religion because it forced her to make a choice: adhere to her religion and\nforfeit unemployment benefits, or violate her religion by agreeing to work on Saturdays. Brennan described this as a \xe2\x80\x9csubstantial infringement\xe2\x80\x9d of Sherbert\xe2\x80\x99s rights. The\nstate was not obligated to provide those benefits, but if it chose to, as it had, it could\nnot \xe2\x80\x9ccondition the availability\xe2\x80\x9d of them on a claimant\xe2\x80\x99s \xe2\x80\x9cwillingness to violate a cardinal principle of her religious faith.\xe2\x80\x9d\nHaving identified a substantial burden on free exercise, Justice Brennan shifted to\nthe next question: whether there was \xe2\x80\x9csome compelling state interest\xe2\x80\x9d to justify the\nburden. It was not enough for the state\xe2\x80\x99s unemployment rules to be rational \xe2\x80\x93 they\nneeded to be more than that. The state argued that the omission of religious conscience\nfrom its \xe2\x80\x9cgood cause\xe2\x80\x9d rule was designed to prevent the filing of \xe2\x80\x9cfraudulent claims by\nunscrupulous claimants feigning religious objections\xe2\x80\x9d that might \xe2\x80\x9cdilute the unemployment compensation fund\xe2\x80\x9d and clog up the administrative works of the state. The\nCourt rejected these interests as irrelevant to Sherbert\xe2\x80\x99s case (nobody accused her of\nlying about her religion) and as otherwise insufficient to justify burdening anyone\xe2\x80\x99s\nreligious rights. Even if the state could prove that false claims were draining the state\ncoffers (it could not), it would still need to show that there was no alternate regulation\nthat could solve the problem without stepping on religious freedom (it could not).\nBrennan\xe2\x80\x99s analysis in Sherbert was a major departure from Braunfeld, where the\nCourt, just two years before, rejected the claim of a storeowner who faced a very similar economic choice as Adell Sherbert. Recall that in that case, the Court did not require the state to prove a \xe2\x80\x9ccompelling\xe2\x80\x9d interest or show that no day but Sunday could\nbe the mandatory day of rest. Indeed, Brennan\xe2\x80\x99s own dissent to Braunfeld pointed this\nout. However, the Court in Sherbert did not overrule Braunfeld. Instead, Brennan\xe2\x80\x99s\nmajority opinion distinguished it, and re-framed the Court\xe2\x80\x99s previous holding to fit into\nhis new strict scrutiny framework. According to Brennan, the burden imposed on the\nJewish store owner in Braunfeld was \xe2\x80\x9cless direct\xe2\x80\x9d than the burden imposed on Adell\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c240 Religion in the Law\n\nSherbert, and the Sunday closing law was justified by \xe2\x80\x9ca strong state interest in providing one uniform day of rest for all workers.\xe2\x80\x9d\nAs for alternate means, Brennan said that allowing a religious exemption to Sunday closing laws in Braunfeld \xe2\x80\x9cappeared to present an administrative problem of such\nmagnitude\xe2\x80\x9d and might \xe2\x80\x9cafford the exempted class so great a competitive advantage,\xe2\x80\x9d\nthat an exemption would render the \xe2\x80\x9centire statutory scheme unworkable.\xe2\x80\x9d However,\nthe Braunfeld opinion itself did not frame the problem so dramatically. \xe2\x80\x9cEnforcement\nproblems\xe2\x80\x9d were \xe2\x80\x9cnot dispositive of the issue,\xe2\x80\x9d the Court in that case said, and exemptions, if anything, would simply \xe2\x80\x9cundermine the State\xe2\x80\x99s goal of providing a day that,\nas best as possible, eliminates the atmosphere of commercial noise and activity.\xe2\x80\x9d Because the Braunfeld majority did not apply strict scrutiny or demand precise alternate\nmeans, a crudely tailored, non-compelling purpose was enough to satisfy the constitution. Justice Potter Stewart, in his Sherbert concurrence, criticized this disconnect between what Braunfeld actually said and how Brennan\xe2\x80\x99s opinion for the Court in Sherbert described it, and partially for that reason he concurred only in the result.\nJustice Brennan\xe2\x80\x99s creative retconning of Braunfeld aside, a majority of the Court in\nSherbert was willing to embrace a strict scrutiny approach to indirect burdens on religious exercise and thus it became First Amendment law. The next significant application of the new standard came in 1972 in a case called Wisconsin v. Yoder.\nWisconsin convicted Jonas Yoder and two\nother Amish fathers for pulling their children\nout of public schools after the eighth grade, in\nviolation of the state\xe2\x80\x99s compulsory education\nlaw that required all children to attend until the\nage of 16. Members of the Amish community\noppose secondary education because, according to their sincere religious beliefs, it threatens\ntheir traditionalist way of life and their prospects for eternal salvation. They prefer to educate older children at home through labor\nand family time. By punishing them for adhering to their religious beliefs, Yoder and the others argued that the law violated their First\nAmendment right to free exercise.\n\nJonas Yoder et al. at the Court, 1972\n- John Duricka/Associated Press\n\nThe Supreme Court agreed. Writing for a 6-1 majority, Chief Justice Warren Burger\nacknowledged that the Wisconsin law was both neutral and justified by a compelling\nstate interest. \xe2\x80\x9cProviding public schools ranks at the very apex of the function of the\nstate,\xe2\x80\x9d Burger conceded. However, \xe2\x80\x9cthe state\xe2\x80\x99s interest in universal education \xe2\x80\xa6 is not\ntotally free from a balancing process\xe2\x80\x9d when it burdens the religious interests of individuals. Describing at length the Amish belief system and praising their noble, peaceful,\nlaw-abiding lifestyle, Burger concluded that compulsory education beyond the eighth\ngrade was in fact a \xe2\x80\x9csubstantial\xe2\x80\x9d interference to Amish religious practice, and the negative impact of the law was \xe2\x80\x9cnot only severe, but inescapable.\xe2\x80\x9d\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 241\n\nIn its defense, Wisconsin listed the many virtues of public education, arguing that\nit was necessary to prepare young citizens to participate in our democratic and technological society and to prepare them to be self-reliant and self-sufficient, not dependent\non others or the state. The Court agreed that these were compelling interests.\nThe problem for the state was that the Amish also sought to prepare their children\nto participate in society and be self-sufficient, and in a way that was not significantly\nat odds with American history and tradition. Burger compared the Amish way of life\nto the eighteenth century Jeffersonian ideal of the \xe2\x80\x9csturdy yeoman\xe2\x80\x9d citizen and found\nthem complimentary. Thus if Wisconsin failed any of the prongs of the Sherbert test, it\nwas in the means. The Amish themselves were providing an \xe2\x80\x9calternate means\xe2\x80\x9d that\nprovided children with constructive education while avoiding any direct conflict with\nthe state. Therefore, they were entitled to an exemption from the mandatory school\nlaw.\nOnly Justice William Douglas dissented. He agreed that the Amish parents had a\nsincere religious opposition to the Wisconsin law, but he argued that it was the children\xe2\x80\x99s rights truly at issue, and their voices were missing from the case. Did they want\nto leave school and spend the rest of their youth on the farm living the Amish way? \xe2\x80\x9cIt\nis the student\xe2\x80\x99s judgment, not his parents\xe2\x80\x99, that is essential if we are to give full meaning\nto \xe2\x80\xa6 the Bill of Rights,\xe2\x80\x9d Douglas wrote. In his view, the Court should give the students\n\xe2\x80\x9can opportunity to be heard before the State gives the exemption which we honor\ntoday.\xe2\x80\x9d No other members of the Court shared his concern.\nThe early 1980s saw two more significant Supreme Court free exercise cases with\nmajority opinions by Chief Justice Burger applying the strict scrutiny test from Sherbert\nv. Verner. The first was Thomas v. Review Board, in which a Jehovah\xe2\x80\x99s Witness challenged Indiana\xe2\x80\x99s denial of his unemployment benefits.\nEddie Thomas worked for a year at a factory outside of Chicago before realizing\nthat it was a major military contractor for the government. When he discovered that\nhe was helping to build tanks and other weapons, he concluded that continuing such\nwork would be contrary to his religious beliefs. He quit, and sought unemployment\nbenefits from the state of Indiana. Indiana rejected his claim, finding that he voluntarily\nquit his job for \xe2\x80\x9cpersonal reasons,\xe2\x80\x9d which were not considered \xe2\x80\x9cgood cause\xe2\x80\x9d to entitle\nhim to benefits.6 He sued, arguing that such a denial violated his free exercise rights,\nsimilar to the claim made by Adell Sherbert more than a decade before.\nThe Indiana Supreme Court rejected his argument. The problem, that court concluded, was the establishment clause. If the state gave Thomas unemployment benefits\nfor quitting for religious personal reasons, but denied benefits to others who quit for\nnon-religious personal reasons, the state would effectively be promoting his religion.\nThe U.S. Supreme Court reversed, finding that Indiana lacked sufficient justification for burdening Thomas\xe2\x80\x99 religious beliefs. Writing for the 8-1 majority, Chief Justice\nBurger held that a \xe2\x80\x9csubstantial\xe2\x80\x9d burden on religion exists when a state \xe2\x80\x9cdenies \xe2\x80\xa6 a\nbenefit because of conduct mandated by religious belief\xe2\x80\x9d and thereby puts \xe2\x80\x9csubstantial\npressure on an adherent to modify his behavior and violate his beliefs.\xe2\x80\x9d Such a substantial burden can only be justified by a compelling interest and a narrowly tailored\n6\n\nThomas v. Review Bd. Of Indiana Employment Sec. Div., 391 N.E.2d 1127 (Ind. 1979).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c242 Religion in the Law\n\nrule. Indiana claimed its rule was designed to \xe2\x80\x9cprevent widespread unemployment\xe2\x80\x9d\nthat would result from allowing people to quit for personal reasons but still get unemployment benefits, and to avoid having to probe the sincerity of every claimant\xe2\x80\x99s faith.\nIn a brief paragraph, Burger rejected both these claims as unsupported by any evidence.\nThe Court also summarily dispatched Indiana\xe2\x80\x99s establishment clause argument.\nCiting Sherbert, Burger noted that giving religious objectors unemployment benefits\nwas actually a neutral government act \xe2\x80\x9cin the face of religious differences,\xe2\x80\x9d and did\nnot amount to \xe2\x80\x9cinvolvement of religious with secular institutions which it is the object\nof the Establishment Clause to forestall.\xe2\x80\x9d Ruling otherwise would require Sherbert to\nbe overruled.\nOnly one justice was not convinced. William Rehnquist dissented, arguing that the\nCourt\xe2\x80\x99s holding \xe2\x80\x9cconstitutionally required\xe2\x80\x9d Indiana \xe2\x80\x9cto provide direct financial assistance to a person solely on the basis of his religious beliefs.\xe2\x80\x9d He saw an obvious conflict\nwith the establishment clause, and questioned the reasoning of Sherbert, saying it\n\xe2\x80\x9creads the Free Exercise Clause more broadly than is warranted.\xe2\x80\x9d The better case, he\nwrote, was Braunfeld v. Brown, and he framed it as holding that only a direct attack\non religion, not an incidental burden, was necessary for most free exercise claims to\nwin.\nNot every religious claimant won their case during the Sherbert era of free exercise\nstrict scrutiny, however. In United States v. Lee, an Amish employer objected to withholding Social Security taxes from his employees\xe2\x80\x99 pay. Amish beliefs make sinful both\nthe payment into and acceptance of benefits from the Social Security system because\nthey believe caring for their own elderly and disabled is an internal community obligation. The IRS already exempts self-employed religious objectors from paying Social\nSecurity taxes, but Edwin Lee was not exempt from withholding those taxes from the\npaychecks of his employees and paying the withholdings to the IRS.\nIn Lee, unlike in Yoder, Chief Justice Burger and the rest of the Court unanimously\nruled against this new Amish free exercise claim. Though many incidental burdens gave\nrise to valid free exercise claims, Burger wrote, \xe2\x80\x9cevery person cannot be shielded from\nall the burdens incident to exercising every aspect of the right to practice religious beliefs.\xe2\x80\x9d Not only did the government have a compelling interest in maintaining Social\nSecurity through mandatory participation, but also previous cases had rejected religious objections to other forms of taxation, such as income taxes. With such a high\ninterest at stake and the government having already granted a self-employment tax\nexemption on religious grounds, there was no constitutional requirement to further\naccommodate people of Lee\xe2\x80\x99s faith.\nChief Justice Burger made another key point near the end of his opinion in Lee.\nLee\xe2\x80\x99s claim was for more than his own individual free exercise. His objection affected\nothers. \xe2\x80\x9cGranting an exemption from social security taxes to an employer,\xe2\x80\x9d the Court\nheld, \xe2\x80\x9coperates to impose the employer\xe2\x80\x99s religious faith on the employees.\xe2\x80\x9d Congress\nwas not obligated to do that, and the First Amendment did not give Lee such a right,\neven under the plaintiff-friendly Sherbert standard.\nThat standard was also of no help to Captain Simcha Goldman, an Orthodox\nJewish member of the Air Force. After several years of wearing a yarmulke while in\nuniform and on duty at March Air Force Base in California, Goldman was threatened\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 243\n\nwith court-martial for violating an Air Force rule that prohibited the wearing of headgear by any service members other than \xe2\x80\x9carmed security police in the performance of\ntheir duties.\xe2\x80\x9d7 Goldman sued, arguing that the free exercise clause protected his modest\nand non-disruptive religious practice of wearing a small hat while at work.\nDespite the Sherbert standard requiring the government to show both a compelling\ninterest and narrow tailoring, a 5-4 majority led by William Rehnquist (and joined by\nChief Justice Burger) rejected Goldman\xe2\x80\x99s claim in Goldman v. Weinberger. The military\nwas different, the Court held, and entitled to greater deference. The persistent need to\n\xe2\x80\x9cfoster instinctive obedience, unity, commitment, and espirit de corps,\xe2\x80\x9d Rehnquist\nwrote, was justification enough for the rule, even if the military could not prove that\nGoldman\xe2\x80\x99s yarmulke disrupted any of these things. Justices Brennan, Marshall,\nBlackmun, and O\xe2\x80\x99Connor dissented, each arguing that military rules should be subject\nto the same scrutiny as any government policy, and that Goldman should win under a\nproper application of the Sherbert test. Congress responded to the Court\xe2\x80\x99s decision by\namending the rules to allow service members to wear \xe2\x80\x9cneat and conservative religious\napparel\xe2\x80\x9d while on duty.8\nLee and Goldman vaguely foretold a coming sea change in the law of religious\nfreedom. The Sherbert era of free exercise came to an abrupt end just four years later\nin Employment Division v. Smith, when the Court distinguished it away in favor of a\nnew approach, far more deferential to neutral government action. Once again, the\nCourt encountered adherents to a minority faith who had been denied unemployment\nbenefits due to their religious practice. This time, however, unlike in Sherbert and\nThomas v. Review Board, the Court found no constitutional violation.\nAlfred Smith and Galen Black worked as drug counselors at a rehabilitation clinic in Oregon. Both were fired\nfor using the hallucinogen peyote as part of their religious practice as members of the Native American\nChurch. The state denied their claims for unemployment\nbenefits because illegal drug use was disqualifying workplace \xe2\x80\x9cmisconduct.\xe2\x80\x9d Smith and Black sued, arguing that\nunder Sherbert, Thomas, and related cases, the state had\ninfringed their free exercise rights.\nNot so fast, wrote Justice Antonin Scalia for the\nCourt\xe2\x80\x99s majority in Smith. Sherbert and Thomas were\ndenied unemployment benefits despite acting otherwise\nlawfully. Refusing to accept work or quitting your job due to religious conviction was\nnot illegal. What Smith and Black did, on the other hand, was a crime. Furthermore,\nScalia wrote, \xe2\x80\x9cwe have never held that an individual\xe2\x80\x99s religious beliefs excuse him from\ncompliance with an otherwise valid law prohibiting conduct the state is free to regulate.\xe2\x80\x9d Sherbert and Thomas were beside the point, in other words. To bolster his argument, Scalia drew the old distinction between belief and action and favorably cited\nAlfred Smith\n- Photographer Unknown\n\nGoldman v. Weinberger, 475 U.S. 503 (1986).\nYitzhak Rabi, \xe2\x80\x9cMilitary Changing Rules to Allow Jewish Personnel to Wear Skullcaps,\xe2\x80\x9d\nJewish Telegraphic Agency (January 4, 1988), https://www.jta.org/1988/01/04/archive/military-changing-rules-to-allow-jewish-personnel-to-wear-skullcaps.\n7\n8\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c244 Religion in the Law\n\nMinersville School District v. Gobitis, Reynolds v. United States, and Braunfeld v.\nBrown.\nAs for Sherbert, Scalia and the majority waved it away. \xe2\x80\x9cWe have never invalidated\nany governmental action on the basis of the Sherbert test except the denial of unemployment compensation.\xe2\x80\x9d In all other cases using that test, he wrote, the government\nwon, such as in United States v. Lee. As for Yoder v. Wisconsin, Scalia said that was\ndifferent, too. Yoder was a \xe2\x80\x9chybrid situation\xe2\x80\x9d involving not just free exercise but also\n\xe2\x80\x9cthe right of parents to direct the education of their children.\xe2\x80\x9d Alfred Smith and Galen\nBlack presented no comparable hybrid case \xe2\x80\x93 they did not have any right to use drugs\nor to keep their jobs.\nThe Smith majority cautioned that people would become \xe2\x80\x9claws unto themselves\xe2\x80\x9d\nif their obligation to obey \xe2\x80\x9cgenerally applicable prohibitions of socially harmful conduct\xe2\x80\x9d depended on \xe2\x80\x9cthe law\xe2\x80\x99s coincidence with [their] religious beliefs.\xe2\x80\x9d It was unreasonable to expect the government to come up with a compelling interest any time\nsomeone\xe2\x80\x99s religious conscience was troubled by an otherwise neutral law. \xe2\x80\x9cAny society\nadopting such a system would be courting anarchy,\xe2\x80\x9d Scalia warned. He closed by noting that Oregon was free to make an accommodation to Smith and Black through their\nstate drug or unemployment laws if they chose, but the First Amendment did not compel them to do so.\nJustice Sandra Day O\xe2\x80\x99Connor joined the Smith majority in result only. She expressed surprise that the Court had simply abandoned the Sherbert test so easily, especially because (as she detailed in her concurrence) application of the test would reach\nthe same result. Oregon had a compelling interest to ban drugs like peyote, and the\nanti-drug misconduct standard in state unemployment law was sufficiently tailored.\nThere was no reason to disingenuously distinguish decades of precedent when it compelled the same outcome.\nJustices Brennan, Marshall, and Blackmun agreed with O\xe2\x80\x99Connor that the Court\nhad incorrectly abandoned Sherbert, but they reached a different conclusion \xe2\x80\x93 they\nbelieved Oregon\xe2\x80\x99s denial of benefits was insufficiently compelling, and thus Smith and\nBlack should win. In his dissent, Justice Blackmun pointed out that peyote use is not\nactually harmful, especially not when consumed in the chaperoned and ritualistic setting of the Native American Church. Furthermore, Oregon had not bothered to arrest\nanyone for peyote use despite people like Smith and Black openly consuming it. Oregon was not, in practice, acting like it had a compelling interest in discouraging their\nconduct by denying their unemployment benefits, and therefore they could not meet\nthe Sherbert standard.\nNonetheless, a new doctrine was now in place. Under the First Amendment, the\ngovernment need not prove a compelling purpose behind an otherwise neutral, generally applicable law, even if it imposed burdens on religious exercise. Laws singling out\nreligious believers or criminalizing their beliefs were still presumptively unconstitutional, but \xe2\x80\x9cincidental\xe2\x80\x9d infringements could be justified by rational interests alone.\nSmith, however legally binding, was politically unpopular. As it had after Goldman\nv. Weinberger, Congress eventually sprang into action to \xe2\x80\x9cfix\xe2\x80\x9d the Court\xe2\x80\x99s ruling. In a\nbipartisan effort supported by religious and civil liberties groups alike, Congress nearly\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 245\n\nunanimously passed the Religious Freedom Restoration Act in 1993.9 RFRA, as it is\nknown, gives religious practitioners a statutory route, outside the Constitution, to sue\nthe government for free exercise infringements. And it imposes the stricter Sherbert v.\nVerner test, requiring the state to prove a compelling interest and least restrictive means\nany time it imposes a \xe2\x80\x9csubstantial burden\xe2\x80\x9d on believers, even if just incidentally\nthrough a neutral law. RFRA and its related cases are discussed at greater length below\nin Part Two of this section.\nMeanwhile, aggrieved religious practitioners still brought successful claims under\nthe First Amendment, despite Smith\xe2\x80\x99s more deferential approach. Just a few months\nbefore Congress passed RFRA, the Supreme Court ruled in favor of a small Florida\nchurch who sued their town for infringing their free exercise rights.\nIn 1987, the Church of the Lukumi\nBabalu-Aye, a Santeria religious congregation, leased property in a Florida\ntown called Hialeah, a suburb of Miami. Santeria is an Afro-Cuban, polytheistic faith that mixes the West African Yoruba religion with Roman Catholic imagery. Just a couple of months after the Church leased the property, the\nHialeah City Council began emergency\nChurch of the Lukumi Babalu-Aye, Florida\nmeetings to decide what to do about - Photographer Unknown\nthem. Santeria practitioners conduct ritualistic animal sacrifices as part of their religious exercise, and the city moved quickly\nto ban the practice. It passed a series of neutrally worded ordinances designed to prohibit only Santeria religious animal sacrifice. The law prohibited \xe2\x80\x9cunnecessary\xe2\x80\x9d animal\nslaughter \xe2\x80\x9cin a public or private ritual or ceremony not for the primary purpose of\nfood consumption.\xe2\x80\x9d Even though Santeria practitioners eat the animals they sacrifice,\nfood is not necessarily the primary reason for the killing, thus the ordinance directly\napplied to them while exempting other forms of animal slaughter.\nThe Church sued, and in 1993, the Supreme Court unanimously ruled that Hialeah\nhad violated the First Amendment. The city had argued that the ordinance was generally applicable to all residents of the town and therefore, under Smith, it needed only a\nrational reason (such as basic public health) and reasonable means to constitutionally\nban ritualistic animal slaughter. The ordinances, the city claimed, were quite reasonable.\nJustice Anthony Kennedy, in an opinion joined in most parts by a majority of his\ncolleagues, distinguished the neutral, generally applicable state drug laws in Smith from\nwhat the city of Hialeah had done. They had attempted to ban a specific religious\npractice through ordinances that applied to only one religious congregation. Neutral\nwording notwithstanding, the ordinances were not truly neutral. In situations such as\nthat, Kennedy wrote, Smith\xe2\x80\x99s deferential approach did not apply. Instead, whenever the\ngovernment specifically targets a religious faith, it still needs a compelling purpose and\n\n9\n\n42 U.S.C. \xc2\xa72000bb et seq.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c246 Religion in the Law\n\nthe law must be narrow in its scope and effect. Applying strict scrutiny, Kennedy (along\nwith six of his colleagues) struck down the ordinances. Even assuming ritual animal\nsacrifice posed serious health risks, Kennedy wrote, the ordinances were both \xe2\x80\x9coverbroad and under inclusive in substantial respects.\xe2\x80\x9d The ordinances prohibited more\nthan was necessary to protect public health while allowing similarly risky animal\nslaughter in other situations.\nJustice David Souter joined parts of Kennedy\xe2\x80\x99s opinion but wrote a separate concurrence that is better described as a dissent to Employment Division v. Smith. Having\njoined the court just a month after Smith was decided, Souter patiently waited three\nyears for the right opportunity to attack Justice Scalia\xe2\x80\x99s decision in that case, along lines\nsimilar to those previously taken by Justice William Brennan, who Souter had replaced.\nSouter agreed that Hialeah had violated the First Amendment but urged the Court to\nreconsider and overrule Smith. Justices Harry Blackmun and Sandra Day O\xe2\x80\x99Connor\nechoed this sentiment in their own separate concurrence in the judgment only.\n***\nEmployment Division v. Smith has been controversial for more than thirty years.\nCriticized by both religious pluralists and conservative Christians, legal scholars,\njudges, politicians, and social activists alike joined the chorus of disapproval. And, despite Justice Antonin Scalia\xe2\x80\x99s conservative bona fides, even some of his originalist allies\nhave taken his reasoning (and his use of precedent) to task.10\nMeanwhile, religious freedom claims are no longer primarily the domain of minority religious practitioners. Members of mainstream faiths such as Catholics and Evangelical Christians have recently brought challenges to generally applicable government\naction, such as anti-discrimination laws and public health orders, for posing substantial\nburdens on their free exercise. They are finding sympathetic ears at the Supreme Court,\nSmith notwithstanding, as shown in the next two Parts of this Section.\nFURTHER READING\nThomas C. Berg, The Permissible Scope of Limitations on the Freedom of Religion\nand Belief in the United States, 19 Emory J. Int\xe2\x80\x99l L. 1277 (2005).\nMarci A. Hamilton, Employment Division v. Smith at The Supreme Court: The Justices, The Litigants, and the Doctrinal Discourse, 32 Cardozo L. Rev. 1671 (2011).\nJames M. Oleske Jr., Free Exercise (Dis)Honesty, 2019 Wis. L. Rev. 689 (2019).\n\nSee Philip A. Hamburger, A Constitutional Right of Religious Exemption: A Historical\nPerspective, 60 Geo. Wash. L. Rev. 915 (1992); and Michael McConnell, Accommodation of\nReligion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685 (1992).\n10\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 247\n310 U.S. 586\nSupreme Court of the United States\n\nMinersville School District v. Gobitis\nJune 3, 1940\n\n[In its caption and throughout its majority opinion, the Court misspells the last name\nof the plaintiff Walter Gobitas.]\n\nMr. Justice FRANKFURTER delivered the opinion of the Court.\nA grave responsibility confronts this Court whenever in course of litigation it must reconcile\nthe conflicting claims of liberty and authority. But when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation\xe2\x80\x99s fellowship, judicial conscience is\nput to its severest test. Of such a nature is the present controversy.\nLillian Gobitis, aged twelve, and her brother William, aged ten, were expelled from the\npublic schools of Minersville, Pennsylvania, for refusing to salute the national flag as part of a\ndaily school exercise. The local Board of Education required both teachers and pupils to participate in this ceremony. The ceremony is a familiar one. The right hand is placed on the breast\nand the following pledge recited in unison: \xe2\x80\x9cI pledge allegiance to my flag, and to the Republic\nfor which it stands; one nation indivisible, with liberty and justice for all.\xe2\x80\x9d While the words are\nspoken, teachers and pupils extend their right hands in salute to the flag. The Gobitis family are\naffiliated with \xe2\x80\x9cJehovah\xe2\x80\x99s Witnesses\xe2\x80\x9d, for whom the Bible as the Word of God is the supreme\nauthority. The children had been brought up conscientiously to believe that such a gesture of\nrespect for the flag was forbidden by command of scripture [Exodus 20:3-5].\nThe Gobitis children were of an age for which Pennsylvania makes school attendance compulsory. \xe2\x80\xa6 [Walter Gobitas], their father, on behalf of the children and in his own behalf,\nbrought this suit. He sought to enjoin the authorities from continuing to exact participation in\nthe flag-salute ceremony as a condition of his children\xe2\x80\x99s attendance at the Minersville school\xe2\x80\xa6.\nWe must decide whether the requirement of participation in such a ceremony, exacted from\na child who refuses upon sincere religious grounds, infringes without due process of law the\nliberty guaranteed by the Fourteenth Amendment.\nCenturies of strife over the erection of particular dogmas as exclusive or all-comprehending\nfaiths led to the inclusion of a guarantee for religious freedom in the Bill of Rights. The First\nAmendment, and the Fourteenth through its absorption of the First, sought to guard against\nrepetition of those bitter religious struggles by prohibiting the establishment of a state religion\nand by securing to every sect the free exercise of its faith. So pervasive is the acceptance of this\nprecious right that its scope is brought into question, as here, only when the conscience of individuals collides with the felt necessities of society.\nCertainly the affirmative pursuit of one\xe2\x80\x99s convictions about the ultimate mystery of the universe and man\xe2\x80\x99s relation to it is placed beyond the reach of law. Government may not interfere\nwith organized or individual expression of belief or disbelief. Propagation of belief-or even of\ndisbelief in the supernatural-is protected, whether in church or chapel, mosque or synagogue,\ntabernacle or meetinghouse. Likewise the Constitution assures generous immunity to the individual from imposition of penalties for offending, in the course of his own religious activities,\n\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c248 Religion in the Law\nthe religious views of others, be they a minority or those who are dominant in government.\nCantwell v. Connecticut, 310 U.S. 296, decided this Term, May 20, 1940.\nBut the manifold character of man\xe2\x80\x99s relations may bring his conception of religious duty\ninto conflict with the secular interests of his fellow-men. When does the constitutional guarantee\ncompel exemption from doing what society thinks necessary for the promotion of some great\ncommon end, or from a penalty for conduct which appears dangerous to the general good? To\nstate the problem is to recall the truth that no single principle can answer all of life\xe2\x80\x99s complexities.\n\xe2\x80\xa6 Our present task then, as so often the case with courts, is to reconcile two rights in order to\nprevent either from destroying the other. But, because in safeguarding conscience we are dealing\nwith interests so subtle and so dear, every possible leeway should be given to the claims of religious faith.\nIn the judicial enforcement of religious freedom we are concerned with a historic concept.\n\xe2\x80\xa6 The religious liberty which the Constitution protects has never excluded legislation of general\nscope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there\nis no historic warrant. Conscientious scruples have not, in the course of the long struggle for\nreligious toleration, relieved the individual from obedience to a general law not aimed at the\npromotion or restriction of religious beliefs. The mere possession of religious convictions which\ncontradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.\nThe necessity for this adjustment has again and again been recognized. In a number of situations the exertion of political authority has been sustained, while basic considerations of religious freedom have been left inviolate. Reynolds v. United States, 98 U.S. 145; Davis v. Beason,\n133 U.S. 333; Selective Draft Law Cases, 245 U.S. 366; Hamilton v. Regents, 293 U.S. 245. In\nall these cases the general laws in question, upheld in their application to those who refused\nobedience from religious conviction, were manifestations of specific powers of government\ndeemed by the legislature essential to secure and maintain that orderly, tranquil, and free society\nwithout which religious toleration itself is unattainable.\nNor does the freedom of speech assured by Due Process move in a more absolute circle of\nimmunity than that enjoyed by religious freedom. Even if it were assumed that freedom of\nspeech goes beyond the historic concept of full opportunity to utter and to disseminate views,\nhowever heretical or offensive to dominant opinion, and includes freedom from conveying what\nmay be deemed an implied but rejected affirmation, the question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children\nin the promotion of national cohesion. We are dealing with an interest inferior to none in the\nhierarchy of legal values. National unity is the basis of national security. To deny the legislature\nthe right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free\nexpression of opinion through distribution of handbills\xe2\x80\xa6.\nSituations like the present are phases of the profoundest problem confronting a democracythe problem which Lincoln cast in memorable dilemma: \xe2\x80\x9cMust a government of necessity be\ntoo strong for the liberties of its people, or too weak to maintain its own existence?\xe2\x80\x9d No mere\ntextual reading or logical talisman can solve the dilemma. And when the issue demands judicial\ndetermination, it is not the personal notion of judges of what wise adjustment requires which\nmust prevail\xe2\x80\xa6.\nThe ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a\nsentiment is fostered by all those agencies of the mind and spirit which may serve to gather up\nthe traditions of a people, transmit them from generation to generation, and thereby create that\ncontinuity of a treasured common life which constitutes a civilization. \xe2\x80\x9cWe live by symbols.\xe2\x80\x9d\n\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 249\nThe flag is the symbol of our national unity, transcending all internal differences, however large,\nwithin the framework of the Constitution. This Court has had occasion to say that \xe2\x80\x9cthe flag is\nthe symbol of the nation\xe2\x80\x99s power,-the emblem of freedom in its truest, best sense. It signifies\ngovernment resting on the consent of the governed; liberty regulated by law; the protection of\nthe weak against the strong; security against the exercise of arbitrary power; and absolute safety\nfor free institutions against foreign aggression.\xe2\x80\x9d Halter v. Nebraska, 205 U.S. 34, 43. And see\nUnited States v. Gettysburg Elec. R. Co., 160 U.S. 668\xe2\x80\xa6.\nThe precise issue for us to decide is whether the legislatures of the various states and the\nauthorities in a thousand counties and school districts of this country are barred from determining the appropriateness of various means to evoke that unifying sentiment without which there\ncan ultimately be no liberties, civil or religious. \xe2\x80\xa6\nThe wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even\nwere we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality. For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs. Perhaps it is best, even from the\nstandpoint of those interests which ordinances like the one under review seek to promote, to\ngive to the least popular sect leave from conformities like those here in issue. But the courtroom\nis not the arena for debating issues of educational policy. It is not our province to choose among\ncompeting considerations in the subtle process of securing effective loyalty to the traditional\nideals of democracy, while respecting at the same time individual idiosyncracies among a people\nso diversified in racial origins and religious allegiances. So to hold would in effect make us the\nschool board for the country. That authority has not been given to this Court, nor should we\nassume it.\n\xe2\x80\xa6[W]e have held that, even though public education is one of our most cherished democratic institutions, the Bill of Rights bars a state from compelling all children to attend the public\nschools. Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510. But\nit is a very different thing for this Court to exercise censorship over the conviction of legislatures\nthat a particular program or exercise will best promote in the minds of children who attend the\ncommon schools an attachment to the institutions of their country.\nWhat the school authorities are really asserting is the right to awaken in the child\xe2\x80\x99s mind\nconsiderations as to the significance of the flag contrary to those implanted by the parent. In\nsuch an attempt the state is normally at a disadvantage in competing with the parent\xe2\x80\x99s authority,\nso long-and this is the vital aspect of religious toleration-as parents are unmolested in their right\nto counteract by their own persuasiveness the wisdom and rightness of those loyalties which the\nstate\xe2\x80\x99s educational system is seeking to promote. \xe2\x80\xa6 That the flag salute is an allowable portion\nof a school program for those who do not invoke conscientious scruples is surely not debatable.\nBut for us to insist that, though the ceremony may be required, exceptional immunity must be\ngiven to dissidents, is to maintain that there is no basis for a legislative judgment that such an\nexemption might introduce elements of difficulty into the school discipline, might cast doubts in\nthe minds of the other children which would themselves weaken the effect of the exercise.\nThe preciousness of the family relation, the authority and independence which give dignity\nto parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society\nwhich is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating\nthose almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties. That is to say, the process may be utilized so\nlong as men\xe2\x80\x99s right to believe as they please, to win others to their way of belief, and their right\nto assemble in their chosen places of worship for the devotional ceremonies of their faith, are all\nfully respected.\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c250 Religion in the Law\nJudicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to courts is committed the guardianship of\ndeeply-cherished liberties. \xe2\x80\xa6 To fight out the wise use of legislative authority in the forum of\npublic opinion and before legislative assemblies rather than to transfer such a contest to the\njudicial arena, serves to vindicate the self-confidence of a free people.\nReversed.\nMr. Justice McREYNOLDS concurs in the result.\nMr. Justice STONE, dissenting.\nTwo youths, now fifteen and sixteen years of age, are by the judgment of this Court held\nliable to expulsion from the public schools and to denial of all publicly supported educational\nprivileges because of their refusal to yield to the compulsion of a law which commands their\nparticipation in a school ceremony contrary to their religious convictions. They and their father\nare citizens and have not exhibited by any action or statement of opinion, any disloyalty to the\nGovernment of the United States. They are ready and willing to obey all its laws which do not\nconflict with what they sincerely believe to be the higher commandments of God. It is not\ndoubted that these convictions are religious, that they are genuine, or that the refusal to yield to\nthe compulsion of the law is in good faith and with all sincerity. It would be a denial of their\nfaith as well as the teachings of most religions to say that children of their age could not have\nreligious convictions.\nThe law which is thus sustained is unique in the history of Anglo-American legislation. It\ndoes more than suppress freedom of speech and more than prohibit the free exercise of religion,\nwhich concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For by this law the state seeks to coerce these children to express a\nsentiment which, as they interpret it, they do not entertain, and which violates their deepest\nreligious convictions.\xe2\x80\xa6\nSince the state, in competition with parents, may through teaching in the public schools\nindoctrinate the minds of the young, it is said that in aid of its undertaking to inspire loyalty and\ndevotion to constituted authority and the flag which symbolizes it, it may coerce the pupil to\nmake affirmation contrary to his belief and in violation of his religious faith. And it is said that\nsince the Minersville School Board and others are of the opinion that the country will be better\nserved by conformity than by the observance of religious liberty which the Constitution prescribes, the courts are not free to pass judgment on the Board\xe2\x80\x99s choice.\nConcededly the constitutional guaranties of personal liberty are not always absolutes. Government has a right to survive and powers conferred upon it are not necessarily set at naught by\nthe express prohibitions of the Bill of Rights. \xe2\x80\xa6 It may suppress religious practices dangerous\nto morals, and presumably those also which are inimical to public safety, health and good order.\nDavis v. Beason, 133 U.S. 333. But it is a long step, and one which I am unable to take, to the\nposition that government may, as a supposed educational measure and as a means of disciplining\nthe young, compel public affirmations which violate their religious conscience.\n\xe2\x80\xa6The state concededly has power to require and control the education of its citizens, but it\ncannot by a general law compelling attendance at public schools preclude attendance at a private\nschool adequate in its instruction, where the parent seeks to secure for the child the benefits of\nreligious instruction not provided by the public school. Pierce v. Society of the Sisters of the Holy\nNames of Jesus and Mary, 268 U.S. 510. And only recently we have held that the state\xe2\x80\x99s authority to control its public streets by generally applicable regulations is not an absolute to which\n\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 251\nfree speech must yield, and cannot be made the medium of its suppression. Hague v. Committee\nfor Industrial Organization, 307 U.S. 496, 514\xe2\x80\xa6.\n[W]here there are competing demands of the interests of government and of liberty under\nthe Constitution, and where the performance of governmental functions is brought into conflict\nwith specific constitutional restrictions, there must, when that is possible, be reasonable accommodation between them so as to preserve the essentials of both and that it is the function of\ncourts to determine whether such accommodation is reasonably possible\xe2\x80\xa6.\n[E]ven if we believe that such compulsions will contribute to national unity, there are other\nways to teach loyalty and patriotism which are the sources of national unity, than by compelling\nthe pupil to affirm that which he does not believe and by commanding a form of affirmance\nwhich violates his religious convictions. Without recourse to such compulsion the state is free to\ncompel attendance at school and require teaching by instruction and study of all in our history\nand in the structure and organization of our government, including the guaranties of civil liberty\nwhich tend to inspire patriotism and love of country. I cannot say that government here is deprived of any interest or function which it is entitled to maintain at the expense of the protection\nof civil liberties by requiring it to resort to the alternatives which do not coerce an affirmation\nof belief.\nThe guaranties of civil liberty are but guaranties of freedom of the human mind and spirit\nand of reasonable freedom and opportunity to express them. They presuppose the right of the\nindividual to hold such opinions as he will and to give them reasonably free expression, and his\nfreedom, and that of the state as well, to teach and persuade others by the communication of\nideas. The very essence of the liberty which they guaranty is the freedom of the individual from\ncompulsion as to what he shall think and what he shall say, at least where the compulsion is to\nbear false witness to his religion. If these guaranties are to have any meaning they must, I think,\nbe deemed to withhold from the state any authority to compel belief or the expression of it\nwhere that expression violates religious convictions, whatever may be the legislative view of the\ndesirability of such compulsion.\nHistory teaches us that there have been but few infringements of personal liberty by the\nstate which have not been justified, as they are here, in the name of righteousness and the public\ngood, and few which have not been directed, as they are now, at politically helpless minorities.\nThe framers were not unaware that under the system which they created most governmental\ncurtailments of personal liberty would have the support of a legislative judgment that the public\ninterest would be better served by its curtailment than by its constitutional protection. I cannot\nconceive that in prescribing, as limitations upon the powers of government, the freedom of the\nmind and spirit secured by the explicit guaranties of freedom of speech and religion, they intended or rightly could have left any latitude for a legislative judgment that the compulsory\nexpression of belief which violates religious convictions would better serve the public interest\nthan their protection.\nThe Constitution may well elicit expressions of loyalty to it and to the government which it\ncreated, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override\nthe constitutional protection of freedom of speech and religion\xe2\x80\xa6.\nBut even if \xe2\x80\xa6 there is some scope for the determination by legislatures whether the citizen\nshall be compelled to give public expression of such sentiments contrary to his religion, I am not\npersuaded that we should refrain from passing upon the legislative judgment \xe2\x80\x9cas long as the\nremedial channels of the democratic process remain open and unobstructed.\xe2\x80\x9d This seems to me\nno more than the surrender of the constitutional protection of the liberty of small minorities to\nthe popular will.\n\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c252 Religion in the Law\nWe have previously pointed to the importance of a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities may tend to\ncurtail the operation of those political processes ordinarily to be relied on to protect minorities.\nSee United States v. Carolene Products Co., 304 U.S. 144, 152, note 4. And until now we have\nnot hesitated similarly to scrutinize legislation restricting the civil liberty of racial and religious\nminorities although no political process was affected. Meyer v. Nebraska, 262 U.S. 390\xe2\x80\xa6\nHere we have such a small minority entertaining in good faith a religious belief, which is\nsuch a departure from the usual course of human conduct, that most persons are disposed to\nregard it with little toleration or concern. In such circumstances careful scrutiny of legislative\nefforts to secure conformity of belief and opinion by a compulsory affirmation of the desired\nbelief, is especially needful if civil rights are to receive any protection. Tested by this standard, I\nam not prepared to say that the right of this small and helpless minority, including children\nhaving a strong religious conviction, whether they understand its nature or not, to refrain from\nan expression obnoxious to their religion, is to be overborne by the interest of the state in maintaining discipline in the schools.\nThe Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to\nthat justice and moderation without which no free government can exist. For this reason it\nwould seem that legislation which operates to repress the religious freedom of small minorities,\nwhich is admittedly within the scope of the protection of the Bill of Rights, must at least be\nsubject to the same judicial scrutiny as legislation which we have recently held to infringe the\nconstitutional liberty of religious and racial minorities\xe2\x80\xa6.\n\nMinersville School District v. Gobitis, 310 U.S. 586 (1940)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 253\n\n366 U.S. 599\nSupreme Court of the United States\n\nBraunfeld v. Brown\nMay 29, 1961\nMr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr.\nJustice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER concur.\nThis case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain\nenumerated commodities. Among the questions presented are whether the statute is a law respecting an establishment of religion and whether the statute violates equal protection. Since\nboth of these questions, in reference to this very statute, have already been answered in the negative, Two Guys from Harrison-Allentown, Inc., v. McGinley, 366 U.S. 582 [applying the same\nrule in McGowan v. Maryland], and since appellants present nothing new regarding them, they\nneed not be considered here. Thus the only question for consideration is whether the statute\ninterferes with the free exercise of appellants\xe2\x80\x99 religion.\nAppellants are merchants in Philadelphia who engage in the retail sale of clothing and home\nfurnishings within the proscription of the statute in issue. Each of the appellants is a member of\nthe Orthodox Jewish faith, which requires the closing of their places of business and a total\nabstention from all manner of work from nightfall each Friday until nightfall each Saturday.\nThey instituted a suit in the court below seeking a permanent injunction against the enforcement\nof the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept\ntheir places of business open on Sunday; that each of appellants had done a substantial amount\nof business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that\nthe statute is unconstitutional for the reasons stated above.\nA three-judge court dismissed the complaint\xe2\x80\xa6 Appellants contend that the enforcement\nagainst them of the Pennsylvania statute will prohibit the free exercise of their religion because,\ndue to the statute\xe2\x80\x99s compulsion to close on Sunday, appellants will suffer substantial economic\nloss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will\nput appellants at a serious economic disadvantage if they continue to adhere to their Sabbath.\nAppellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in\ngaining new adherents. And the corollary to these arguments is that if the free exercise of appellants\xe2\x80\x99 religion is impeded, that religion is being subjected to discriminatory treatment by the\nState.\nIn McGowan v. Maryland, 366 U.S. at 437\xe2\x80\x94440, we noted \xe2\x80\xa6 the evolution of Sunday\nClosing Laws from wholly religious sanctions to legislation concerned with the establishment of\na day of community tranquility, respite and recreation, a day when the atmosphere is one of\ncalm and relaxation rather than one of commercialism, as it is during the other six days of the\nweek. We reviewed the still growing state preoccupation with improving the health, safety, morals and general well-being of our citizens.\nConcededly, appellants and all other persons who wish to work on Sunday will be burdened\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c254 Religion in the Law\neconomically by the State\xe2\x80\x99s day of rest mandate; and appellants point out that their religion\nrequires them to refrain from work on Saturday as well. Our inquiry then is whether, in these\ncircumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing\nLaw to appellants.\nCertain aspects of religious exercise cannot, in any way, be restricted or burdened by either\nfederal or state legislation. Compulsion by law of the acceptance of any creed or the practice of\nany form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is\nabsolute. Cantwell v. State of Connecticut, 310 U.S. 296; Reynolds v. United States, 98 U.S. 145,\n166. Thus, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, this Court held\nthat state action compelling school children to salute the flag, on pain of expulsion from public\nschool, was contrary to the First and Fourteenth Amendments when applied to those students\nwhose religious beliefs forbade saluting a flag. But this is not the case at bar; the statute before\nus does not make criminal the holding of any religious belief or opinion, nor does it force anyone\nto embrace any religious belief or to say or believe anything in conflict with his religious tenets.\nHowever, the freedom to act, even when the action is in accord with one\xe2\x80\x99s religious convictions, is not totally free from legislative restrictions. Cantwell v. State of Connecticut, 310 U.S.\nat 303\xe2\x80\x94304, 306. As pointed out in Reynolds v. United States, 98 U.S. at 164, legislative power\nover mere opinion is forbidden but it may reach people\xe2\x80\x99s actions when they are found to be in\nviolation of important social duties or subversive of good order, even when the actions are demanded by one\xe2\x80\x99s religion\xe2\x80\xa6.\nAnd, in the Barnette case, the Court was careful to point out that \xe2\x80\x9cThe freedom asserted\nby these appellees does not bring them into collision with rights asserted by any other individual.\nIt is such conflicts which most frequently require intervention of the State to determine where\nthe rights of one end and those of another begin\xe2\x80\xa6.\xe2\x80\x9d\xe2\x80\x99 319 U.S. at 630, 633.\nThus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member\nof the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon\nits male members the duty to practice polygamy. And, in Prince v. Commonwealth of Massachusetts, 321 U.S. 158, this Court upheld a statute making it a crime for a girl under eighteen\nyears of age to sell any newspapers, periodicals or merchandise in public places despite the fact\nthat a child of the Jehovah\xe2\x80\x99s Witnesses faith believed that it was her religious duty to perform\nthis work.\nIt is to be noted that, in the two cases just mentioned, the religious practices themselves\nconflicted with the public interest. In such cases, to make accommodation between the religious\naction and an exercise of state authority is a particularly delicate task, because resolution in\nfavor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.\nBut, again, this is not the case before us because the statute at bar does not make unlawful\nany religious practices of appellants; the Sunday law simply regulates a secular activity and, as\napplied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law\xe2\x80\x99s effect does not inconvenience all members of the Orthodox Jewish\nfaith but only those who believe it necessary to work on Sunday. And even these are not faced\nwith as serious a choice as forsaking their religious practices or subjecting themselves to criminal\nprosecution. Fully recognizing that the alternatives open to appellants and others similarly situated\xe2\x80\x94retaining their present occupations and incurring economic disadvantage or engaging in\nsome other commercial activity which does not call for either Saturday or Sunday labor\xe2\x80\x94may\nwell result in some financial sacrifice in order to observe their religious beliefs, still the option is\nwholly different than when the legislation attempts to make a religious practice itself unlawful.\nTo strike down, without the most critical scrutiny, legislation which imposes only an indirect\nburden on the exercise of religion, i.e., legislation which does not make unlawful the religious\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 255\npractice itself, would radically restrict the operating latitude of the legislature. Statutes which tax\nincome and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires\nhim to donate a greater amount to his church; statutes which require the courts to be closed on\nSaturday and Sunday impose a similar indirect burden on the observance of the religion of the\ntrial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature\nis nearly limitless.\nNeedless to say, when entering the area of religious freedom, we must be fully cognizant of\nthe particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up\nof people of almost every conceivable religious preference. These denominations number almost\nthree hundred. Consequently, it cannot be expected, much less required, that legislators enact\nno law regulating conduct that may in some way result in an economic disadvantage to some\nreligious sects and not to others because of the special practices of the various religions. We do\nnot believe that such an effect is an absolute test for determining whether the legislation violates\nthe freedom of religion protected by the First Amendment.\nOf course, to hold unassailable all legislation regulating conduct which imposes solely an\nindirect burden on the observance of religion would be a gross oversimplification. If the purpose\nor effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law\nwithin its power, the purpose and effect of which is to advance the State\xe2\x80\x99s secular goals, the\nstatute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. State of Connecticut, 310 U.S. 304\xe2\x80\x94305.\nAs we pointed out in McGowan v. Maryland, 366 U.S. at 444\xe2\x80\x94445, we cannot find a State\nwithout power to provide a weekly respite from all labor and, at the same time, to set one day\nof the week apart from the others as a day of rest, repose, recreation and tranquillity\xe2\x80\xa6. This is\nparticularly true in this day and age of increasing state concern with public welfare legislation\xe2\x80\xa6.\n[A]ppellants advance [a] means at the State\xe2\x80\x99s disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for\nthose people who, because of religious conviction, observe a day of rest other than Sunday. By\nsuch regulation, appellants contend, the economic disadvantages imposed by the present system\nwould be removed and the State\xe2\x80\x99s interest in having all people rest one day would be satisfied.\nA number of States provide such an exemption, and this may well be the wiser solution to\nthe problem. But our concern is not with the wisdom of legislation but with its constitutional\nlimitation. Thus, reason and experience teach that to permit the exemption might well undermine the State\xe2\x80\x99s goal of providing a day that, as best possible, eliminates the atmosphere of\ncommercial noise and activity. Although not dispositive of the issue, enforcement problems\nwould be more difficult since there would be two or more days to police rather than one and it\nwould be more difficult to observe whether violations were occurring.\nAdditional problems might also be presented by a regulation of this sort. To allow only\npeople who rest on a day other than Sunday to keep their businesses open on that day might\nwell provide these people with an economic advantage over their competitors who must remain\nclosed on that day; this might cause the Sunday-observers to complain that their religions are\nbeing discriminated against. With this competitive advantage existing, there could well be the\ntemptation for some, in order to keep their businesses open on Sunday, to assert that they have\nreligious convictions which compel them to close their businesses on what had formerly been\ntheir least profitable day. This might make necessary a state-conducted inquiry into the sincerity\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c256 Religion in the Law\nof the individual\xe2\x80\x99s religious beliefs, a practice which a State might believe would itself run afoul\nof the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees\nwho themselves qualified for the exemption because of their own religious beliefs, a practice\nwhich a State might feel to be opposed to its general policy prohibiting religious discrimination\nin hiring. For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid,\neither on its face or as applied.\nAccordingly, the decision is Affirmed.\nMr. Justice FRANKFURTER, joined by Mr. Justice HARLAN, concurring in the judgment.\n[This separate opinion by Justice Frankfurter addresses four religious rights cases decided on the same day. This portion of the opinion focuses on the free exercise issue\nin Braunfeld. The portion of the opinion regarding the establishment clause is excerpted with McGowan v. Maryland, above in Section 3.]\nAppellees \xe2\x80\xa6 argue that even if legitmate state interests justify the enforcement against persons generally of a single common day of rest, the choice of Sunday as that day violates the\nrights of religious freedom of the Sabbatarian minority. \xe2\x80\xa6 Sabbatarians feel that the power of\nthe State is employed to coerce their observance of Sunday as a holy day; that the State accords\na recognition to Sunday Christian doctrine which is withheld from Sabbatarian creeds. All of\nthese prejudices could be avoided, it is argued, without impairing the effectiveness of commonday-of-rest regulation \xe2\x80\xa6 by providing for a Sunday work ban from which Sabbatarians are\nexcepted, on condition of their abstaining from labor on Saturday. Failure to adopt these alternatives in lieu of Sunday statutes applicable to Sabbatarians is said to constitute an unconstitutional choice of means. Finally, it is urged that if, as means, these statutes are necessary to the\ngoals which they seek to attain, nevertheless the goals themselves are not of sufficient value to\nsociety to justify the disadvantage which their attainment imposes upon the religious exercise of\nSabbatarians\xe2\x80\xa6.\nIn urging that an exception in favor of those who observe some other day as sacred would\nnot defeat the ends of Sunday legislation, and therefore that failure to provide such an exception\nis an unnecessary\xe2\x80\x94hence an unconstitutional\xe2\x80\x94burden on Sabbatarians, the \xe2\x80\xa6 Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday. Actually, in less than half\nof these twenty-one States does the exemption extend to sales activity as well as to labor. There\nare tenable reasons why a legislature might choose not to make such an exception. To whatever\nextent persons who come within the exception are present in a community, their activity would\ndisturb the atmosphere of general repose and reintroduce into Sunday the business tempos of\nthe week. Administration would be more difficult, with violations less evident and, in effect, two\nor more days to police instead of one.\nIf it is assumed that the retail demand for consumer items is approximately equivalent on\nSaturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the\ncompetition less severe, might incur through the exception a competitive advantage over the\nnon-Sabbatarian, who would then be in a position, presumably, to complain of discrimination\nagainst his religion. Employers who wished to avail themselves of the exception would have to\nemploy only their co-religionists, and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable.\nFinally, a relevant consideration which might cause a State\xe2\x80\x99s lawmakers to reject exception\nfor observers of another day than Sunday is that administration of such a provision may require\njudicial inquiry into religious belief. \xe2\x80\xa6 All of the state exempting statutes seem to reflect this\nconsideration. Ten of them require that a person claiming exception \xe2\x80\x9cconscientiously\xe2\x80\x9d believe\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 257\nin the sanctity of another day or \xe2\x80\x9cconscientiously\xe2\x80\x9d observe another day as the Sabbath. Five\ndemand that he keep another day as \xe2\x80\x9choly time.\xe2\x80\x9d Three allow the exemption only to members\nof a \xe2\x80\x9creligious\xe2\x80\x9d society observing another day, and a fourth provides for proof of membership\nin such a society by the certificate of a preacher or of any three adherents. In Illinois the claimant\nmust observe some day as a \xe2\x80\x9cSabbath,\xe2\x80\x9d and in New Jersey he must prove that he devotes that\nday to religious exercises. Connecticut, one of the jurisdictions demanding conscientious belief,\nrequires in addition that he who seeks the benefit of the exception file a notice of such belief\nwith the prosecuting attorney\xe2\x80\xa6.\nSurely, in light of the delicate enforcement problems to which these provisions bear witness,\nthe legislative choice of a blanket Sunday ban applicable to observers of all faiths cannot be held\nunreasonable. A legislature might in reason find that the alternative of exempting Sabbatarians\nwould impede the effective operation of the Sunday statutes, produce harmful collateral effects,\nand entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels\nit.\nIt cannot, therefore, be said that Massachusetts and Pennsylvania have imposed gratuitous\nrestrictions upon the Sunday activities of persons observing the Orthodox Jewish Sabbath in\nachieving the legitimate secular ends at which their Sunday statutes may aim. The remaining\nquestion is whether the importance to the public of those ends is sufficient to outweigh the restraint upon the religious exercise of Orthodox Jewish practicants which the restriction entails.\xe2\x80\xa6\nThe nature of the legislative purpose is the preservation of a traditional institution which\nassures to the community a time during which the mind and body are released from the demands\nand distractions of an increasingly machanized and competition-driven society. The right to this\nrelease has been claimed by workers and by small enterprisers, especially by retail merchandisers, over centuries, and finds contemporary expression in legislation in three-quarters of the\nStates. The nature of the injury which must be balanced against it is the economic disadvantage\nto the enterpriser, and the inconvenience to the consumer, which Sunday regulations impose\nupon those who choose to adhere to the Sabbatarian tenets of their faith.\nThese statutes do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions. They do\ncreate an undeniable financial burden upon the observers of one of the fundamental tenets of\ncertain religious creeds, a burden which does not fall equally upon other forms of observance.\nThis was true of the tax which this Court held an unconstitutional infringement of the free exercise of religion in Follett v. Town of McCormick, 321 U.S. 573. But unlike the tax in Follett,\nthe burden which the Sunday statutes impose is an incident of the only feasible means to achievement of their particular goal. \xe2\x80\xa6 In view of the importance of the community interests which\nmust be weighed in the balance, is the disadvantage wrought by the nonexempting Sunday statutes an impermissible imposition upon the Sabbatarian\xe2\x80\x99s religious freedom? Every court which\nhas considered the question during a century and a half has concluded that it is not. This Court\nso concluded in Friedman v. People of State of New York, 341 U.S. 907. On the basis of the\ncriteria for determining constitutionality, as opposed to what one might desire as a matter of\nlegislative policy, a contrary conclusion cannot be reached\xe2\x80\xa6.\nMr. Justice DOUGLAS, dissenting.\n[Justice Douglas\xe2\x80\x99 dissent is included with the excerpt to McGowan v. Maryland,\nabove in Section 3.]\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c258 Religion in the Law\nMr. Justice BRENNAN, concurring and dissenting.\nI agree with THE CHIEF JUSTICE that there is no merit in appellants\xe2\x80\x99 establishment and\nequal-protection claims. I dissent, however, as to the claim that Pennsylvania has prohibited the\nfree exercise of appellants\xe2\x80\x99 religion.\n\xe2\x80\xa6I would approach this case differently, from the point of view of the individuals whose\nliberty is\xe2\x80\x94concededly\xe2\x80\x94curtailed by these enactments. For the values of the First Amendment,\nas embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.\nThe appellants are small retail merchants, faithful practitioners of the Orthodox Jewish\nfaith. They allege\xe2\x80\x94and the allegation must be taken as true, since the case comes to us on a\nmotion to dismiss the complaint\xe2\x80\x94that \xe2\x80\x9c\xe2\x80\xa6one who does not observe the Sabbath (by refraining\nfrom labor) cannot be an Orthodox Jew.\xe2\x80\x9d In appellants\xe2\x80\x99 business area Friday night and Saturday\nare busy times; yet appellants, true to their faith, close during the Jewish Sabbath, and make up\nsome, but not all, of the business thus lost by opening on Sunday\xe2\x80\xa6 Consequences even more\ndrastic are alleged: \xe2\x80\x9cPlaintiff, Abraham Braunfeld, will be unable to continue in his business if\nhe may not stay open on Sunday and he will thereby lose his capital investment.\xe2\x80\x9d In other words,\nthe issue in this case\xe2\x80\x94and we do not understand either appellees or the Court to contend otherwise\xe2\x80\x94is whether a State may put an individual to a choice between his business and his religion. The Court today holds that it may. But I dissent, believing that such a law prohibits the\nfree exercise of religion.\nThe first question to be resolved, however, is somewhat broader than the facts of this case.\nThat question concerns the appropriate standard of constitutional adjudication in cases in which\na statute is assertedly in conflict with the First Amendment, whether that limitation applies of\nits own force, or as absorbed through the less definite words of the Fourteenth Amendment. The\nCourt in such cases is not confined to the narrow inquiry whether the challenged law is rationally\nrelated to some legitimate legislative end. Nor is the case decided by a finding that the State\xe2\x80\x99s\ninterest is substantial and important, as well as rationally justifiable. This canon of adjudication\nwas clearly stated by Mr. Justice Jackson, speaking for the Court in West Virginia State Board\nof Education v. Barnette, 1943, 319 U.S. 624, 639:\nThe test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than\nthe test when only the Fourteenth is involved. \xe2\x80\xa6 [F]reedoms of speech and of\npress, of assembly, and of worship may not be infringed on such slender\ngrounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.\nThis exacting standard has been consistently applied by this Court as the test of legislation\nunder all clauses of the First Amendment, not only those specifically dealing with freedom of\nspeech and of the press. For religious freedom\xe2\x80\x94the freedom to believe and to practice strange\nand, it may be, foreign creeds\xe2\x80\x94has classically been one of the highest values of our society\xe2\x80\xa6\nThe honored place of religious freedom in our constitutional hierarchy, suggested long ago by\nthe argument of counsel in Permoli v. Municipality No. 1 of City of New Orleans, 1845, 3 How.\n589, 600, and foreshadowed by a prescient footnote in United States v. Carolene Products Co.,\n1938, 304 U.S. 144, 152 note 4, must now be taken to be settled. Or at least so it appeared until\ntoday. For in this case the Court seems to say, without so much as a deferential nod towards\nthat high place which we have accorded religious freedom in the past, that any substantial state\ninterest will justify encroachments on religious practice, at least if those encroachments are\ncloaked in the guise of some nonreligious public purpose.\nAdmittedly, these laws do not compel overt affirmation of a repugnant belief, as in Barnette,\nnor do they prohibit outright any of appellants\xe2\x80\x99 religious practices, as did the federal law upheld\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 259\nin Reynolds v. United States, 1878, 98 U.S. 145, cited by the Court. That is, the laws do not say\nthat appellants must work on Saturday. But their effect is that appellants may not simultaneously\npractice their religion and their trade, without being hampered by a substantial competitive disadvantage. Their effect is that no one may at one and the same time be an Orthodox Jew and\ncompete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of\nreligion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect\nas a tax levied upon the sale of religious literature. And yet, such a tax, when applied in the form\nof an excise or license fee, was held invalid in Follett v. Town of McCormick. All this the Court,\nas I read its opinion, concedes.\nWhat, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants\xe2\x80\x99 freedom of worship? What overbalancing need is so weighty in the\nconstitutional scale that it justifies this substantial, though indirect, limitation of appellants\xe2\x80\x99 freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy,\nas in Reynolds, for the custom of resting one day a week is universally honored, as the Court\nhas amply shown. Nor is it the State\xe2\x80\x99s traditional protection of children, as in Prince v. Commonwealth of Massachusetts, 1944, 321 U.S. 158, for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants\xe2\x80\x99 religion requires that they take such a rest. It is the mere convenience of having everyone\nrest on the same day. It is to defend this interest that the Court holds that a State need not follow\nthe alternative route of granting an exemption for those who in good faith observe a day of rest\nother than Sunday.\nIt is true, I suppose, that the granting of such an exemption would make Sundays a little\nnoisier, and the task of police and prosecutor a little more difficult. It is also true that a majority\xe2\x80\x9421\xe2\x80\x94of the 34 States which have general Sunday regulations have exemptions of this kind.\nWe are not told that those States are significantly noisier, or that their police are significantly\nmore burdened, than Pennsylvania\xe2\x80\x99s. \xe2\x80\xa6 The Court conjures up several difficulties with such a\nsystem which seem to me more fanciful than real. Non-Sunday observers might get an unfair\nadvantage, it is said. \xe2\x80\xa6 However widespread the complaint, it is legally baseless, and the State\xe2\x80\x99s\nreliance upon it cannot withstand a First Amendment claim. We are told that an official inquiry\ninto the good faith with which religious beliefs are held might be itself unconstitutional. But this\nCourt indicated otherwise in United States v. Ballard, 1944, 322 U.S. 78. Such an inquiry is no\nmore an infringement of religious freedom than the requirement imposed by the Court itself in\nMcGowan v. State of Maryland, 366 U.S. 420, that a plaintiff show that his good-faith religious\nbeliefs are hampered before he acquires standing to attack a statute under the Free-Exercise\nClause of the First Amendment. Finally, I find the Court\xe2\x80\x99s mention of a problem under state\nantidiscrimination statutes almost chimerical. Most such statutes provide that hiring may be\nmade on a religious basis if religion is a bona fide occupational qualification. It happens, moreover, that Pennsylvania\xe2\x80\x99s statute has such a provision.\nIn fine, the Court, in my view, has exalted administrative convenience to a constitutional\nlevel high enough to justify making one religion economically disadvantageous. The Court\nwould justify this result on the ground that the effect on religion, though substantial, is indirect.\nThe Court forgets, I think, a warning uttered during the congressional discussion of the First\nAmendment itself: \xe2\x80\x9c[T]he rights of conscience are, in their nature, of peculiar delicacy, and will\nlittle bear the gentlest touch of governmental hand.\xe2\x80\x9d\nI would reverse this judgment and remand for a trial of appellants\xe2\x80\x99 allegations, limited to\nthe free-exercise-of-religion issue.\nMr. Justice STEWART, dissenting.\nI agree with substantially all that Mr. Justice BRENNAN has written. Pennsylvania has\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c260 Religion in the Law\npassed a law which compels an Orthodox Jew to choose between his religious faith and his\neconomic survival. That is a cruel choice. It is a choice which I think no State can constitutionally\ndemand. For me this is not something that can be swept under the rug and forgotten in the\ninterest of enforced Sunday togetherness. I think the impact of this law upon these appellants\ngrossly violates their constitutional right to the free exercise of their religion.\n\nBraunfeld v. Brown, 366 U.S. 599 (1961)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 261\n\n374 U.S. 398\nSupreme Court of the United States\n\nSherbert v. Verner\nJune 17, 1963\nMr. Justice BRENNAN delivered the opinion of the Court.\nAppellant, a member of the Seventh-day Adventist Church was discharged by her South\nCarolina employer because she would not work on Saturday, the Sabbath Day of her faith.\nWhen she was unable to obtain other employment because from conscientious scruples she\nwould not take Saturday work, she filed a claim for unemployment compensation benefits under\nthe South Carolina Unemployment Compensation Act. That law provides that, to be eligible for\nbenefits, a claimant must be \xe2\x80\x9cable to work and \xe2\x80\xa6 is available for work\xe2\x80\x9d; and, further, that a\nclaimant is ineligible for benefits \xe2\x80\x9c(i)f \xe2\x80\xa6 he has failed, without good cause \xe2\x80\xa6 to accept available\nsuitable work when offered him by the employment office or the employer.\xe2\x80\x9d\nThe appellee Employment Security Commission \xe2\x80\xa6 found that appellant\xe2\x80\x99s restriction upon\nher availability for Saturday work [disqualified her for benefits]. The Commission\xe2\x80\x99s finding was\nsustained by the Court of Common Pleas for Spartanburg County. That court\xe2\x80\x99s judgment was\nin turn affirmed by the South Carolina Supreme Court, which rejected appellant\xe2\x80\x99s contention\nthat, as applied to her, the disqualifying provisions of the South Carolina statute abridged her\nright to the free exercise of her religion secured under the Free Exercise Clause of the First\nAmendment through the Fourteenth Amendment\xe2\x80\xa6.\nWe reverse the judgment of the South Carolina Supreme Court and remand for further\nproceedings not inconsistent with this opinion.\nThe door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303. Government may\nneither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488; nor penalize\nor discriminate against individuals or groups because they hold religious views abhorrent to the\nauthorities, Fowler v. Rhode Island, 345 U.S. 67; nor employ the taxing power to inhibit the\ndissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105; Follett v.\nMcCormick, 321 U.S. 573\xe2\x80\xa6. On the other hand, the Court has rejected challenges under the\nFree Exercise Clause to governmental regulation of certain overt acts prompted by religious\nbeliefs or principles, for \xe2\x80\x9ceven when the action is in accord with one\xe2\x80\x99s religious convictions, (it)\nis not totally free from legislative restrictions.\xe2\x80\x9d Braunfeld v. Brown, 366 U.S. 599, 603. The\nconduct or actions so regulated have invariably posed some substantial threat to public safety,\npeace or order. See, e.g., Reynolds v. United States, 98 U.S. 145; Jacobson v. Massachusetts, 197\nU.S. 11; Prince v. Massachusetts, 321 U.S. 158; Cleveland v. United States, 329 U.S. 14.\n\xe2\x80\xa6If the decision of the South Carolina Supreme Court is to withstand appellant\xe2\x80\x99s constitutional challenge, it must be either because her disqualification as a beneficiary represents no\ninfringement by the State of her constitutional rights of free exercise, or because any incidental\nburden on the free exercise of appellant\xe2\x80\x99s religion may be justified by a \xe2\x80\x9ccompelling state interest\nin the regulation of a subject within the State\xe2\x80\x99s constitutional power to regulate.\xe2\x80\x9d NAACP v.\nButton, 371 U.S. 415, 438.\nWe turn first to the question whether the disqualification for benefits imposes any burden\non the free exercise of appellant\xe2\x80\x99s religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c262 Religion in the Law\nresult of welfare legislation within the State\xe2\x80\x99s general competence to enact; it is true that no\ncriminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For \xe2\x80\x9c(i)f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is\nconstitutionally invalid even though the burden may be characterized as being only indirect.\xe2\x80\x9d\nBraunfeld v. Brown, 366 U.S. at 607. Here not only is it apparent that appellant\xe2\x80\x99s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to\nforego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts\nof her religion in order to accept work, on the other hand. Governmental imposition of such a\nchoice puts the same kind of burden upon the free exercise of religion as would a fine imposed\nagainst appellant for her Saturday worship.\nNor may the South Carolina court\xe2\x80\x99s construction of the statute be saved from constitutional\ninfirmity on the ground that unemployment compensation benefits are not appellant\xe2\x80\x99s \xe2\x80\x9cright\xe2\x80\x9d\nbut merely a \xe2\x80\x9cprivilege.\xe2\x80\x9d It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.\nAmerican Communications Ass\xe2\x80\x99n v. Douds, 339 U.S. 382, 390\xe2\x80\xa6. For example, in Flemming v.\nNestor, 363 U.S. 603, 611, the Court recognized with respect to Federal Social Security benefits\nthat \xe2\x80\x9c(t)he interest of a covered employee under the Act is of sufficient substance to fall within\nthe protection from arbitrary governmental action afforded by the Due Process Clause.\xe2\x80\x9d In\nSpeiser v. Randall, 357 U.S. 513, we emphasized that conditions upon public benefits cannot be\nsustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First\nAmendment freedoms. We there struck down a condition which limited the availability of a tax\nexemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such\nan exemption, we held that the imposition of such a condition upon even a gratuitous benefit\ninevitably deterred or discouraged the exercise of First Amendment rights of expression and\nthereby threatened to \xe2\x80\x9cproduce a result which the State could not command directly.\xe2\x80\x9d 357 U.S.\nat 526. \xe2\x80\x9cTo deny an exemption to claimants who engage in certain forms of speech is in effect\nto penalize them for such speech.\xe2\x80\x9d Id., 357 U.S. at 518. Likewise, to condition the availability\nof benefits upon this appellant\xe2\x80\x99s willingness to violate a cardinal principle of her religious faith\neffectively penalizes the free exercise of her constitutional liberties\xe2\x80\xa6.\nWe must next consider whether some compelling state interest enforced in the eligibility\nprovisions of the South Carolina statute justifies the substantial infringement of appellant\xe2\x80\x99s First\nAmendment right. It is basic that no showing merely of a rational relationship to some colorable\nstate interest would suffice; in this highly sensitive constitutional area, \xe2\x80\x9c(o)nly the gravest abuses,\nendangering paramount interest, give occasion for permissible limitation,\xe2\x80\x9d Thomas v. Collins,\n323 U.S. 516, 530.\nNo such abuse or danger has been advanced in the present case. The appellees suggest no\nmore than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning\nreligious objections to Saturday work might not only dilute the unemployment compensation\nfund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South\nCarolina Supreme Court, and we are unwilling to assess the importance of an asserted state\ninterest without the views of the state court. Nor, if the contention had been made below, would\nthe record appear to sustain it; there is no proof whatever to warrant such fears of malingering\nor deceit as those which the respondents now advance. Even if consideration of such evidence is\nnot foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious\nbeliefs, United States v. Ballard, 322 U.S. 78\xe2\x80\x94a question as to which we intimate no view since\nit is not before us\xe2\x80\x94it is highly doubtful whether such evidence would be sufficient to warrant a\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 263\nsubstantial infringement of religious liberties. For even if the possibility of spurious claims did\nthreaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent\nupon the appellees to demonstrate that no alternative forms of regulation would combat such\nabuses without infringing First Amendment rights\xe2\x80\xa6.\nIn these respects, then, the state interest asserted in the present case is wholly dissimilar to\nthe interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown. The Court recognized that the Sunday closing law which that decision sustained\nundoubtedly served \xe2\x80\x9cto make the practice of (the Orthodox Jewish merchants\xe2\x80\x99) religious beliefs\nmore expensive,\xe2\x80\x9d 366 U.S. at 605. But the statute was nevertheless saved by a countervailing\nfactor which finds no equivalent in the instant case\xe2\x80\x94a strong state interest in providing one\nuniform day of rest for all workers. That secular objective could be achieved, the Court found,\nonly by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while\ntheoretically possible, appeared to present an administrative problem of such magnitude, or to\nafford the exempted class so great a competitive advantage, that such a requirement would have\nrendered the entire statutory scheme unworkable. In the present case no such justifications underlie the determination of the state court that appellant\xe2\x80\x99s religion makes her ineligible to receive\nbenefits.\nIn holding as we do, plainly we are not fostering the \xe2\x80\x9cestablishment\xe2\x80\x9d of the Seventh-day\nAdventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of\nreligious with secular institutions which it is the object of the Establishment Clause to forestall.\nSee School District of Abington Township v. Schempp, 374 U.S. 203. Nor does the recognition\nof the appellant\xe2\x80\x99s right to unemployment benefits under the state statute serve to abridge any\nother person\xe2\x80\x99s religious liberties. Nor do we, by our decision today, declare the existence of a\nconstitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee\xe2\x80\x99s religious\nconvictions serve to make him a nonproductive member of society. Finally, nothing we say today\nconstrains the States to adopt any particular form or scheme of unemployment compensation.\nOur holding today is only that South Carolina may not constitutionally apply the eligibility\nprovisions so as to constrain a worker to abandon his religious convictions respecting the day\nof rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely\nthat no State may \xe2\x80\x9cexclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews,\nMethodists, Non-believers, Presbyterians, or the members of any other faith, because of their\nfaith, or lack of it, from receiving the benefits of public welfare legislation.\xe2\x80\x9d Everson v. Board of\nEducation, 330 U.S. 1, 16\xe2\x80\xa6.\nReversed and remanded.\nMr. Justice DOUGLAS, concurring.\n\xe2\x80\xa6Religious scruples of Moslems require them to attend a mosque on Friday and to pray\nfive times daily. Religious scruples of a Sikh require him to carry a regular or a symbolic sword.\nReligious scruples of a Jehovah\xe2\x80\x99s Witness teach him to be a colporteur, going from door to door,\nfrom town to town, distributing his religious pamphlets. See Murdock v. Pennsylvania, 319 U.S.\n105. Religious scruples of a Quaker compel him to refrain from swearing and to affirm instead.\n\xe2\x80\xa6 Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even\nof fish.\nThe examples could be multiplied, including those of the Seventh-day Adventist whose Sabbath is Saturday and who is advised not to eat some meats. These suffice, however, to show that\nmany people hold beliefs alien to the majority of our society\xe2\x80\x94beliefs that are protected by the\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c264 Religion in the Law\nFirst Amendment but which could easily be trod upon under the guise of \xe2\x80\x9cpolice\xe2\x80\x9d or \xe2\x80\x9chealth\xe2\x80\x9d\nregulations reflecting the majority\xe2\x80\x99s views.\nSome have thought that a majority of a community can, through state action, compel a\nminority to observe their particular religious scruples so long as the majority\xe2\x80\x99s rule can be said\nto perform some valid secular function. That was the essence of the Court\xe2\x80\x99s decision in the Sunday Blue Law Cases (Gallagher v. Crown Kosher Market, 366 U.S. 617; Braunfeld v. Brown,\n366 U.S. 599; McGowan v. Maryland, 366 U.S. 420), a ruling from which I then dissented and\nstill dissent\xe2\x80\xa6.\n...The harm [in this case] is the interference with the individual\xe2\x80\x99s scruples or conscience\xe2\x80\x94an\nimportant area of privacy which the First Amendment fences off from government. The interference here is as plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm though perhaps not in measurable damages.\nThis case is resolvable not in terms of what an individual can demand of government, but\nsolely in terms of what government may not do to an individual in violation of his religious\nscruples. The fact that government cannot exact from me a surrender of one iota of my religious\nscruples does not, of course, mean that I can demand of government a sum of money, the better\nto exercise them. For the Free Exercise Clause is written in terms of what the government cannot\ndo to the individual, not in terms of what the individual can exact from the government.\n\xe2\x80\xa6If appellant is otherwise qualified for unemployment benefits, payments will be made to\nher not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments\nwill indirectly benefit her church, but no more so than does the salary of any public employee.\nThus, this case does not involve the problems of direct or indirect state assistance to a religious\norganization\xe2\x80\x94matters relevant to the Establishment Clause....\nMr. Justice STEWART, concurring in the result.\n\xe2\x80\xa6This case presents a double-barreled dilemma, which in all candor I think the Court\xe2\x80\x99s\nopinion has not succeeded in papering over. The dilemma ought to be resolved.\nTwenty-three years ago in Cantwell v. Connecticut, 310 U.S. 296, 303, the Court said that\nboth the Establishment Clause and the Free Exercise Clause of the First Amendment were made\nwholly applicable to the States by the Fourteenth Amendment. In the intervening years several\ncases involving claims of state abridgment of individual religious freedom have been decided\nhere\xe2\x80\x94most recently Braunfeld v. Brown, 366 U.S. 599, and Torcaso v. Watkins, 367 U.S. 488.\nDuring the same period \xe2\x80\x9ccases dealing with the specific problems arising under the \xe2\x80\x98Establishment\xe2\x80\x99 Clause which have reached this Court are few in number.\xe2\x80\x9d The most recent are last Term\xe2\x80\x99s\nEngel v. Vitale, 370 U.S. 421, and this Term\xe2\x80\x99s Schempp and Murray cases, 374 U.S. 203.\nI am convinced that no liberty is more essential to the continued vitality of the free society\nwhich our Constitution guarantees than is the religious liberty protected by the Free Exercise\nClause explicit in the First Amendment and imbedded in the Fourteenth. And I regret that on\noccasion, and specifically in Braunfeld v. Brown, the Court has shown what has seemed to me\na distressing insensitivity to the appropriate demands of this constitutional guarantee. By contrast I think that the Court\xe2\x80\x99s approach to the Establishment Clause has on occasion, and specifically in Engel, Schempp and Murray, been not only insensitive, but positively wooden, and that\nthe Court has accorded to the Establishment Clause a meaning which neither the words, the\nhistory, nor the intention of the authors of that specific constitutional provision even remotely\nsuggests.\n\xe2\x80\xa6[There] are many situations where legitimate claims under the Free Exercise Clause will\nrun into head-on collision with the Court\xe2\x80\x99s insensitive and sterile construction of the Establishment Clause. The controversy now before us is clearly such a case. \xe2\x80\xa6 The Court says that South\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 265\nCarolina cannot \xe2\x80\xa6 declare [Sherbert] to be not \xe2\x80\x9cavailable for work\xe2\x80\x9d within the meaning of its\nstatute because to do so would violate her constitutional right to the free exercise of her religion.\nYet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result. If the appellant\xe2\x80\x99s refusal to work on Saturdays were based on indolence, or on a compulsive desire to watch the Saturday television programs, no one would say\nthat South Carolina could not hold that she was not \xe2\x80\x9cavailable for work\xe2\x80\x9d within the meaning\nof its statute. That being so, the Establishment Clause as construed by this Court not only permits but affirmatively requires South Carolina equally to deny the appellant\xe2\x80\x99s claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious\ncreed. For, as said in Everson v. Board of Education, 330 U.S. 1, 11, the Establishment Clause\nbespeaks \xe2\x80\x9ca government stripped of all power to support, or otherwise to assist any or all religions,\xe2\x80\x9d and no State \xe2\x80\x9ccan pass laws which aid one religion.\xe2\x80\x9d Id., 330 U.S. at 15. In Mr. Justice\nRutledge\xe2\x80\x99s words, adopted by the Court today in Schempp, 374 U.S., p. 217, the Establishment\nClause forbids \xe2\x80\x9cevery form of public aid or support for religion.\xe2\x80\x9d 330 U.S. at 32. In the words\nof the Court in Engel v. Vitale, 370 U.S. at 431, reaffirmed today in the Schempp case, 374 U.S.,\np. 221, the Establishment Clause forbids the \xe2\x80\x9cfinancial support of government\xe2\x80\x9d to be \xe2\x80\x9cplaced\nbehind a particular religious belief.\xe2\x80\x9d\nTo require South Carolina to so administer its laws as to pay public money to the appellant\nunder the circumstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the\nCourt\xe2\x80\x99s mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong. \xe2\x80\xa6 And I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the\npositive protection by government of religious freedom\xe2\x80\x94not only for a minority, however\nsmall\xe2\x80\x94not only for the majority, however large\xe2\x80\x94but for each of us.\nSouth Carolina would deny unemployment benefits to a mother unavailable for work on\nSaturdays because she was unable to get a babysitter. Thus, we do not have before us a situation\nwhere a State provides unemployment compensation generally, and singles out for disqualification only those persons who are unavailable for work on religious grounds. This is not, in short,\na scheme which operates so as to discriminate against religion as such. But the Court nevertheless\nholds that the State must prefer a religious over a secular ground for being unavailable for\nwork\xe2\x80\x94that state financial support of the appellant\xe2\x80\x99s religion is constitutionally required to carry\nout \xe2\x80\x9cthe governmental obligation of neutrality in the face of religious differences.\xe2\x80\x9d\nYet in cases decided under the Establishment Clause the Court has decreed otherwise. \xe2\x80\xa6\nFor so long as the resounding but fallacious fundamentalist rhetoric of some of our Establishment Clause opinions remains on our books, to be disregarded at will as in the present case, or\nto be undiscriminatingly invoked as in the Schempp case, 374 U.S. 203, so long will the possibility of consistent and perceptive decision in this most difficult and delicate area of constitutional law be impeded and impaired. And so long, I fear, will the guarantee of true religious\nfreedom in our pluralistic society be uncertain and insecure.\nMy second difference with the Court\xe2\x80\x99s opinion is that I cannot agree that to day\xe2\x80\x99s decision\ncan stand consistently with Braunfeld v. Brown. The Court says that there was a \xe2\x80\x9cless direct\nburden upon religious practices\xe2\x80\x9d in that case than in this. With all respect, I think the Court is\nmistaken, simply as a matter of fact. The Braunfeld case involved a state criminal statute. The\nundisputed effect of that statute, as pointed out by Mr. Justice BRENNAN in his dissenting\nopinion in that case, was that \xe2\x80\x9cPlaintiff, Abraham Braunfeld, will be unable to continue in his\nbusiness if he may not stay open on Sunday and he will thereby lose his capital investment. In\nother words, the issue in this case \xe2\x80\xa6 is whether a State may put an individual to a choice between\nhis business and his religion.\xe2\x80\x9d 366 U.S. at 611.\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c266 Religion in the Law\nThe impact upon the appellant\xe2\x80\x99s religious freedom in the present case is considerably less\nonerous. We deal here not with a criminal statute, but with the particularized administration of\nSouth Carolina\xe2\x80\x99s Unemployment Compensation Act. Even upon the unlikely assumption that\nthe appellant could not find suitable non-Saturday employment, the appellant at the worst\nwould be denied a maximum of 22 weeks of compensation payments. I agree with the Court\nthat the possibility of that denial is enough to infringe upon the appellant\xe2\x80\x99s constitutional right\nto the free exercise of her religion. But it is clear to me that in order to reach this conclusion the\ncourt must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was\nwrongly decided and should be overruled, and accordingly I concur in the result reached by the\nCourt in the case before us.\nMr. Justice HARLAN, whom Mr. Justice WHITE joins, dissenting.\n\xe2\x80\xa6South Carolina\xe2\x80\x99s Unemployment Compensation Law was enacted in 1936 in response to\nthe grave social and economic problems that arose during the depression of that period. \xe2\x80\xa6 [T]he\npurpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But at the same time there was clearly no intent to\nprovide relief for those who for purely personal reasons were or became unavailable for work\xe2\x80\xa6.\nThe South Carolina Supreme Court has uniformly applied this law in conformity with its\nclearly expressed purpose. It has consistently held that one is not \xe2\x80\x9cavailable for work\xe2\x80\x9d if his\nunemployment has resulted not from the inability of industry to provide a job but rather from\npersonal circumstances, no matter how compelling. The reference to \xe2\x80\x9cinvoluntary unemployment\xe2\x80\x9d in the legislative statement of policy, whatever a sociologist, philosopher, or theologian\nmight say, has been interpreted not to embrace such personal circumstances. See, e.g., Judson\nMills v. South Carolina Unemployment Compensation Comm., 204 S.C. 37 (claimant was \xe2\x80\x9cunavailable for work\xe2\x80\x9d when she became unable to work the third shift, and limited her availability\nto the other two, because of the need to care for her four children)\xe2\x80\xa6.\n\xe2\x80\xa6[The] appellant was \xe2\x80\x9cunavailable for work,\xe2\x80\x9d and thus ineligible for benefits, when personal considerations prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang\nfrom her religious convictions was wholly without relevance to the state court\xe2\x80\x99s application of\nthe law. Thus in no proper sense can it be said that the State discriminated against the appellant\non the basis of her religious beliefs or that she was denied benefits because she was a Seventhday Adventist. She was denied benefits just as any other claimant would be denied benefits who\nwas not \xe2\x80\x9cavailable for work\xe2\x80\x9d for personal reasons.\n\xe2\x80\xa6What the Court is holding is that if the State chooses to condition unemployment compensation on the applicant\xe2\x80\x99s availability for work, it is constitutionally compelled to carve out\nan exception\xe2\x80\x94and to provide benefits\xe2\x80\x94for those whose unavailability is due to their religious\nconvictions. Such a holding has particular significance in two respects.\nFirst, despite the Court\xe2\x80\x99s protestations to the contrary, the decision necessarily overrules\nBraunfeld v. Brown, 366 U.S. 599, which held that it did not offend the \xe2\x80\x9cFree Exercise\xe2\x80\x9d Clause\nof the Constitution for a State to forbid a Sabbatarian to do business on Sunday. The secular\npurpose of the statute before us today is even clearer than that involved in Braunfeld. And just\nas in Braunfeld\xe2\x80\x94where exceptions to the Sunday closing laws for Sabbatarians would have\nbeen inconsistent with the purpose to achieve a uniform day of rest and would have required\ncase-by-case inquiry into religious beliefs\xe2\x80\x94so here, an exception to the rules of eligibility based\non religious convictions would necessitate judicial examination of those convictions and would\nbe at odds with the limited purpose of the statute to smooth out the economy during periods of\nindustrial instability. Finally, the indirect financial burden of the present law is far less than that\ninvolved in Braunfeld. Forcing a store owner to close his business on Sunday may well have the\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 267\neffect of depriving him of a satisfactory livelihood if his religious convictions require him to close\non Saturday as well. Here we are dealing only with temporary benefits, amounting to a fraction\nof regular weekly wages and running for not more than 22 weeks. Clearly, any differences between this case and Braunfeld cut against the present appellant.\nSecond, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today\xe2\x80\x99s holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for\nwork if the unavailability stems from the exercise of religious convictions. The State, in other\nwords, must single out for financial assistance those whose behavior is religiously motivated,\neven though it denies such assistance to others whose identical behavior (in this case, inability\nto work no Saturdays) is not religiously motivated.\n\xe2\x80\xa6Under the circumstances of this case it would be a permissible accommodation of religion\nfor the State, if it chose to do so, to create an exception to its eligibility requirements for persons\nlike the appellant. The constitutional obligation of \xe2\x80\x9cneutrality\xe2\x80\x9d is not so narrow a channel that\nthe slightest deviation from an absolutely straight course leads to condemnation. There are too\nmany instances in which no such course can be charted, too many areas in which the pervasive\nactivities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism\xe2\x80\xa6. [There] is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to\nthe exercise of religious beliefs such as appellant\xe2\x80\x99s.\nFor very much the same reasons, however, I cannot subscribe to the conclusion that the\nState is constitutionally compelled to carve out an exception to its general rule of eligibility in\nthe present case. Those situations in which the Constitution may require special treatment on\naccount of religion are, in my view, few and far between, and this view is amply supported by\nthe course of constitutional litigation in this area. See, e.g., Braunfeld v. Brown; Cleveland v.\nUnited States, 329 U.S. 14; Prince v. Massachusetts, 321 U.S. 158; Jacobson v. Massachusetts,\n197 U.S. 11; Reynolds v. United States, 98 U.S. 145. Such compulsion in the present case is\nparticularly inappropriate in light of the indirect, remote, and insubstantial effect on the exercise\nof appellant\xe2\x80\x99s religion and in light of the direct financial assistance to religion that today\xe2\x80\x99s decision requires\xe2\x80\xa6.\n\nSherbert v. Verner, 374 U.S. 398 (1963)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c268 Religion in the Law\n406 U.S. 205\nSupreme Court of the United States\n\nWisconsin v. Yoder\nMay 15, 1972\nMr. Chief Justice BURGER delivered the opinion of the Court.\nOn petition of the State of Wisconsin, we granted the writ of certiorari in this case to review\na decision of the Wisconsin Supreme Court holding that respondents\xe2\x80\x99 convictions for violating\nthe State\xe2\x80\x99s compulsory school-attendance law were invalid under the Free Exercise Clause of the\nFirst Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment. For the reasons hereafter stated we affirm the judgment of the Supreme\nCourt of Wisconsin.\nRespondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church.\nThey and their families are residents of Green County, Wisconsin. Wisconsin\xe2\x80\x99s compulsory\nschool-attendance law required their children to attend public or private school until reaching\nage 16 but the respondents declined to send their children, ages 14 and 15, to public school after\nthey complete the eighth grade\xe2\x80\xa6.\nOn complaint of the school district administrator for the public schools, respondents were\ncharged, tried, and convicted of violating the compulsory-attendance law in Green County\nCourt and were fined the sum of $5 each. Respondents defended on the ground that the application of the compulsory-attendance law violated their rights under the First and Fourteenth\nAmendments. The trial testimony showed that respondents believed, in accordance with the\ntenets of Old Order Amish communities generally, that their children\xe2\x80\x99s attendance at high\nschool, public or private, was contrary to the Amish religion and way of life. They believed that\nby sending their children to high school, they would not only expose themselves to the danger\nof the censure of the church community, but \xe2\x80\xa6 also endanger their own salvation and that of\ntheir children. The State stipulated that respondents\xe2\x80\x99 religious beliefs were sincere.\n\xe2\x80\xa6As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and\napart from the world and worldly influence. This concept of life aloof from the world and its\nvalues is central to their faith. \xe2\x80\xa6 Amish beliefs require members of the community to make their\nliving by farming or closely related activities. Broadly speaking, the Old Order Amish religion\npervades and determines the entire mode of life of its adherents. Their conduct is regulated in\ngreat detail by the Ordnung, or rules, of the church community\xe2\x80\xa6.\nAmish objection to formal education beyond the eighth grade is firmly grounded in these\ncentral religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of\nlife; they view secondary school education as an impermissible exposure of their children to a\n\xe2\x80\x9cwordly\xe2\x80\x9d influence in conflict with their beliefs. The high school tends to emphasize intellectual\nand scientific accomplishments, self-distinction, competitiveness, worldly success, and social life\nwith other students. Amish society emphasizes informal learning-through-doing; a life of \xe2\x80\x9cgoodness,\xe2\x80\x9d rather than a life of intellect; wisdom, rather than technical knowledge, community welfare, rather than competition; and separation from, rather than integration with, contemporary\nworldly society.\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 269\nFormal high school education beyond the eighth grade is contrary to Amish beliefs \xe2\x80\xa6 because it takes [children] away from their community, physically and emotionally, during the\ncrucial and formative adolescent period of life. During this period, the children must acquire\nAmish attitudes favoring manual work and self-reliance and the specific skills needed to perform\nthe adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. \xe2\x80\xa6And,\nat this time in life, the Amish child must also grow in his faith and his relationship to the Amish\ncommunity if he is to be prepared to accept the heavy obligations imposed by adult baptism\xe2\x80\xa6.\nThe Amish do not object to elementary education through the first eight grades as a general\nproposition because they agree that their children must have basic skills in the \xe2\x80\x9cthree R\xe2\x80\x99s\xe2\x80\x9d in\norder to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish\npeople when necessary in the course of daily affairs\xe2\x80\xa6. While Amish accept compulsory elementary education generally, wherever possible they have established their own elementary schools\nin many respects like the small local schools of the past\xe2\x80\xa6.\nOn the basis of such considerations, [expert witness] Dr. Hostetler testified that compulsory\nhigh school attendance could not only result in great psychological harm to Amish children,\nbecause of the conflicts it would produce, but would also, in his opinion, ultimately result in the\ndestruction of the Old Order Amish church community as it exists in the United States today.\nThe testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the\nAmish succeed in preparing their high school age children to be productive members of the\nAmish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as \xe2\x80\x9cideal\xe2\x80\x9d and perhaps superior to ordinary\nhigh school education. The evidence also showed that the Amish have an excellent record as\nlaw-abiding and generally self-sufficient members of society.\n\xe2\x80\xa6The Wisconsin Supreme Court \xe2\x80\xa6 sustained respondents\xe2\x80\x99 claim under the Free Exercise\nClause of the First Amendment and reversed the convictions\xe2\x80\xa6.\nThere is no doubt as to the power of a State, having a high responsibility for education of\nits citizens, to impose reasonable regulations for the control and duration of basic education.\nSee, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Providing public schools ranks\nat the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce,\nmade to yield to the right of parents to provide an equivalent education in a privately operated\nsystem. There the Court held that Oregon\xe2\x80\x99s statute compelling attendance in a public school\nfrom age eight to age 16 unreasonably interfered with the interest of parents in directing the\nrearing of their offspring, including their education in church-operated schools. As that case\nsuggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society\xe2\x80\xa6. Thus, a State\xe2\x80\x99s interest\nin universal education, however highly we rank it, is not totally free from a balancing process\nwhen it impinges on fundamental rights and interests, such as those specifically protected by the\nFree Exercise Clause of the First Amendment, and the traditional interest of parents with respect\nto the religious upbringing of their children so long as they, in the words of Pierce, \xe2\x80\x9cprepare\n(them) for additional obligations.\xe2\x80\x9d 268 U.S. at 535.\nIt follows that in order for Wisconsin to compel school attendance beyond the eighth grade\nagainst a claim that such attendance interferes with the practice of a legitimate religious belief,\nit must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming\nprotection under the Free Exercise Clause\xe2\x80\xa6.\nThe essence of all that has been said and written on the subject is that only those interests\nof the highest order and those not otherwise served can overbalance legitimate claims to the free\nexercise of religion. We can accept it as settled, therefore, that, however strong the State\xe2\x80\x99s interest\nin universal compulsory education, it is by no means absolute to the exclusion or subordination\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c270 Religion in the Law\nof all other interests. E.g., Sherbert v. Verner, 374 U.S. 398 (1963); McGowan v. Maryland, 366\nU.S. 420, 459 (1961) (separate opinion of Frankfurter, J.); Prince v. Massachusetts, 321 U.S.\n158, 165 (1944).\nWe come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin\xe2\x80\x99s compulsory school-attendance statute on their rights and the rights\nof their children to the free exercise of the religious beliefs they and their forbears have adhered\nto for almost three centuries. In evaluating those claims we must be careful to determine whether\nthe Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the\nprotection of the Religion Clauses, the claims must be rooted in religious belief. Although a\ndetermination of what is a \xe2\x80\x9creligious\xe2\x80\x9d belief or practice entitled to constitutional protection may\npresent a most delicate question, the very concept of ordered liberty precludes allowing every\nperson to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation\nand rejection of the contemporary secular values accepted by the majority, \xe2\x80\xa6 their claims would\nrest on a \xe2\x80\xa6 philosophical and personal rather than religious [basis], and such belief does not\nrise to the demands of the Religion Clauses.\nGiving no weight to such secular considerations, however, we see that the record in this case\nabundantly supports the claim that the traditional way of life of the Amish is not merely a matter\nof personal preference, but one of deep religious conviction, shared by an organized group, and\nintimately related to daily living. That the Old Order Amish daily life and religious practice stem\nfrom their faith is shown by the fact that it is in response to their literal interpretation of the\nBiblical injunction from the Epistle of Paul to the Romans, \xe2\x80\x9cbe not conformed to this world.\xe2\x80\x9d\nThis command is fundamental to the Amish faith\xe2\x80\xa6.\n[T]he values and programs of the modern secondary school are in sharp conflict with the\nfundamental mode of life mandated by the Amish religion\xe2\x80\xa6. The conclusion is inescapable that\nsecondary schooling, by exposing Amish children to worldly influences in terms of attitudes,\ngoals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community\nat the crucial adolescent stage of development, contravenes the basic religious tenets and practice\nof the Amish faith, both as to the parent and the child.\nThe impact of the compulsory-attendance law on respondents\xe2\x80\x99 practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under\nthreat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their\nreligious beliefs. [And] it carries with it precisely the kind of objective danger to the free exercise\nof religion that the First Amendment was designed to prevent. As the record shows, compulsory\nschool attendance to age 16 for Amish children carries with it a very real threat of undermining\nthe Amish community and religious practice as they exist today; they must either abandon belief\nand be assimilated into society at large, or be forced to migrate to some other and more tolerant\nregion\xe2\x80\xa6.\n[Wisconsin\xe2\x80\x99s] position is that the State\xe2\x80\x99s interest in universal compulsory formal secondary\neducation to age 16 is so great that it is paramount to the [interest of the Amish]\xe2\x80\xa6.\nWisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from\nthe State\xe2\x80\x99s control, but it argues that \xe2\x80\x9cactions,\xe2\x80\x9d even though religiously grounded, are outside\nthe protection of the First Amendment. But our decisions have rejected the idea that religiously\ngrounded conduct is always outside the protection of the Free Exercise Clause. It is true that\nactivities of individuals, even when religiously based, are often subject to regulation by the States\nin the exercise of their undoubted power to promote the health, safety, and general welfare, or\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 271\nthe Federal Government in the exercise of its delegated powers\xe2\x80\xa6. But to agree that religiously\ngrounded conduct must often be subject to the broad police power of the State is not to deny\nthat there are areas of conduct protected by the Free Exercise Clause of the First Amendment\nand thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v. Verner, 374 U.S. 398 (1963); Murdock v. Pennsylvania, 319 U.S. 105\n(1943); Cantwell v. Connecticut, 310 U.S. 296, 303\xe2\x80\x94304 (1940). This case, therefore, does not\nbecome easier because respondents were convicted for their \xe2\x80\x9cactions\xe2\x80\x9d in refusing to send their\nchildren to the public high school; in this context belief and action cannot be neatly confined in\nlogic-tight compartments. Cf. Lemon v. Kurtzman, 403 U.S. at 612.\nNor can this case be disposed of on the grounds that Wisconsin\xe2\x80\x99s requirement for school\nattendance to age 16 applies uniformly to all citizens of the State and does not, on its face,\ndiscriminate against religions or a particular religion, or that it is motivated by legitimate secular\nconcerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v. Verner; cf. Walz v. Tax Commission, 397 U.S. 664 (1970). The Court must not\nignore the danger that an exception from a general obligation of citizenship on religious grounds\nmay run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any\nexception no matter how vital it may be to the protection of values promoted by the right of\nfree exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses \xe2\x80\x9cwe have been able to chart a course that preserved the\nautonomy and freedom of religious bodies while avoiding any semblance of established religion.\nThis is a \xe2\x80\x98tight rope\xe2\x80\x99 and one we have successfully traversed.\xe2\x80\x9d Walz v. Tax Commission, at 672.\nWe turn, then, to the State\xe2\x80\x99s broader contention that its interest in its system of compulsory\neducation is so compelling that even the established religious practices of the Amish must give\nway\xe2\x80\xa6. The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions.\nHowever, the evidence adduced by the Amish in this case is persuasively to the effect that\nan additional one or two years of formal high school for Amish children in place of their longestablished program of informal vocational education would do little to serve those interests.\n\xe2\x80\xa6[T]he value of all education must be assessed in terms of its capacity to prepare the child for\nlife. It is one thing to say that compulsory education for a year or two beyond the eighth grade\nmay be necessary when its goal is the preparation of the child for life in modern society as the\nmajority live, but it is quite another if the goal of education be viewed as the preparation of the\nchild for life in the separated agrarian community that is the keystone of the Amish faith. See\nMeyer v. Nebraska, 262 U.S. at 400.\n\xe2\x80\xa6Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the\nAmish community has been a highly successful social unit within our society, even if apart from\nthe conventional \xe2\x80\x9cmainstream.\xe2\x80\x9d Its members are productive and very law-abiding members of\nsociety; they reject public welfare in any of its usual modern forms. The Congress itself recognized their self-sufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes\xe2\x80\xa6.\nThe State, however, supports its interest in providing an additional one or two years of\ncompulsory high school education to Amish children because of the possibility that some such\nchildren will choose to leave the Amish community, and that if this occurs they will be illequipped for life. The State argues that if Amish children leave their church they should not be\nin the position of making their way in the world without the education available in the one or\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c272 Religion in the Law\ntwo additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any\nshowing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because\nof educational shortcomings\xe2\x80\xa6.\nThere is nothing in this record to suggest that the Amish qualities of reliability, self-reliance,\nand dedication to work would fail to find ready markets in today\xe2\x80\x99s society. Absent some contrary\nevidence supporting the State\xe2\x80\x99s position, we are unwilling to assume that persons possessing such\nvaluable vocational skills and habits are doomed to become burdens on society should they\ndetermine to leave the Amish faith\xe2\x80\xa6\nFinally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting\nAmish children from the State\xe2\x80\x99s requirement fails to recognize the substantive right of the Amish\nchild to a secondary education, and fails to give due regard to the power of the State as parens\npatriae to extend the benefit of secondary education to children regardless of the wishes of their\nparents. Taken at its broadest sweep, the Court\xe2\x80\x99s language in Prince might be read to give support to the State\xe2\x80\x99s position. However, the Court was not confronted in Prince with a situation\ncomparable to that of the Amish as revealed in this record; this is shown by the Court\xe2\x80\x99s severe\ncharacterization of the evils that it thought the legislature could legitimately associate with child\nlabor, even when performed in the company of an adult. 321 U.S. at 169\xe2\x80\x94170\xe2\x80\xa6.\nThis case, of course, is not one in which any harm to the physical or mental health of the\nchild or to the public safety, peace, order, or welfare has been demonstrated or may be properly\ninferred. The record is to the contrary, and any reliance on that theory would find no support in\nthe evidence.\nContrary to the suggestion of the dissenting opinion of Mr. Justice DOUGLAS, our holding\ntoday in no degree depends on the assertion of the religious interest of the child as contrasted\nwith that of the parents. It is the parents who are subject to prosecution here for failing to cause\ntheir children to attend school, and it is their right of free exercise, not that of their children, that\nmust determine Wisconsin\xe2\x80\x99s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes\nof his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation\xe2\x80\xa6.\nIndeed it seems clear that if the State is empowered, as parens patriae, to \xe2\x80\x9csave\xe2\x80\x9d a child\nfrom himself or his Amish parents by requiring an additional two years of compulsory formal\nhigh school education, the State will in large measure influence, if not determine, the religious\nfuture of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and\neducation of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of\nthe parents in the upbringing of their children is now established beyond debate as an enduring\nAmerican tradition\xe2\x80\xa6.\nFor the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and\nFourteenth Amendments prevent the State from compelling respondents to cause their children\nto attend formal high school to age 16\xe2\x80\xa6. [However], courts must move with great circumspection in performing the sensitive and delicate task of weighing a State\xe2\x80\x99s legitimate social concern\nwhen faced with religious claims for exemption from generally applicable education requirements. It cannot be overemphasized that we are not dealing with a way of life and mode of\neducation by a group claiming to have recently discovered some \xe2\x80\x9cprogressive\xe2\x80\x9d or more enlightened process for rearing children for modern life.\nAided by a history of three centuries as an identifiable religious sect and a long history as a\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 273\nsuccessful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their\nmode of life, the vital role that belief and daily conduct play in the continued survival of Old\nOrder Amish communities and their religious organization, and the hazards presented by the\nState\xe2\x80\x99s enforcement of a statute generally valid as to others\xe2\x80\xa6.\nAffirmed.\nMr. Justice POWELL and Mr. Justice REHNQUIST took no part in the consideration or decision of this case.\nMr. Justice STEWART, with whom Mr. Justice BRENNAN joins, concurring\xe2\x80\xa6.\n\xe2\x80\xa6This case in no way involves any questions regarding the right of the children of Amish\nparents to attend public high schools, or any other institutions of learning, if they wish to do so.\nAs the Court points out, there is no suggestion whatever in the record that the religious beliefs\nof the children here concerned differ in any way from those of their parents\xe2\x80\xa6. It is clear to me\n\xe2\x80\xa6 that this record simply does not present the interesting and important issue discussed in the\ndissenting opinion of Mr. Justice DOUGLAS. With this observation, I join the opinion and the\njudgment of the Court.\nMr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice STEWART join, concurring.\n\xe2\x80\xa6This would be a very different case for me if respondents\xe2\x80\x99 claim were that their religion\nforbade their children from attending any school at any time and from complying in any way\nwith the educational standards set by the State. Since the Amish children are permitted to acquire\nthe basic tools of literacy to survive in modern society by attending grades one through eight\nand since the deviation from the State\xe2\x80\x99s compulsory-education law is relatively slight, I conclude\nthat respondents\xe2\x80\x99 claim must prevail, largely because \xe2\x80\x98religious freedom\xe2\x80\x94the freedom to believe\nand to practice strange and, it may be, foreign creeds\xe2\x80\x94has classically been one of the highest\nvalues of our society.\xe2\x80\x99 Braunfeld v. Brown, 366 U.S. 599, 612 (1961) (Brennan, J., concurring\nand dissenting)\xe2\x80\xa6.\nAs recently as last Term, the Court reemphasized the legitimacy of the State\xe2\x80\x99s concern for\nenforcing minimal educational standards\xe2\x80\xa6. Pierce v. Society of Sisters, 268 U.S. 510 (1925),\nlends no support to the contention that parents may replace state educational requirements with\ntheir own idiosyncratic views of what knowledge a child needs to be a productive and happy\nmember of society; in Pierce, both the parochial and military schools were in compliance with\nall the educational standards that the State had set, and the Court held simply that while a State\nmay posit such standards, it may not pre-empt the educational process by requiring children to\nattend public schools.\n\xe2\x80\xa6In the circumstances of this case, although the question is close, I am unable to say that\nthe State has demonstrated that Amish children who leave school in the eighth grade will be\nintellectually stultified or unable to acquire new academic skills later. The statutory minimum\nschool attendance age set by the State is, after all, only 16.\nDecision in cases such as this and the administration of an exemption for Old Order Amish\nfrom the State\xe2\x80\x99s compulsory school-attendance laws will inevitably involve the kind of close and\nperhaps repeated scrutiny of religious practices, as is exemplified in today\xe2\x80\x99s opinion, which the\nCourt has heretofore been anxious to avoid. But such entanglement does not create a forbidden\nestablishment of religion where it is essential to implement free exercise values threatened by an\notherwise neutral program instituted to foster some permissible, nonreligious state objective. I\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c274 Religion in the Law\njoin the Court because the sincerity of the Amish religious policy here is uncontested, because\nthe potentially adverse impact of the state requirement is great, and because the State\xe2\x80\x99s valid\ninterest in education has already been largely satisfied by the eight years the children have already spent in school.\nMr. Justice DOUGLAS, dissenting in part.\n\xe2\x80\xa6I disagree with the Court\xe2\x80\x99s conclusion that the matter is within the dispensation of parents\nalone. The Court\xe2\x80\x99s analysis assumes that the only interests at stake in the case are those of the\nAmish parents on the one hand, and those of the State on the other. \xe2\x80\xa6[D]espite the Court\xe2\x80\x99s\nclaim, the parents are seeking to vindicate not only their own free exercise claims, but also those\nof their high-school-age children\xe2\x80\xa6.\nFirst, respondents\xe2\x80\x99 motion to dismiss in the trial court expressly asserts, not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. \xe2\x80\xa6\nAlthough the lower courts and a majority of this Court assume an identity of interest between\nparent and child, it is clear that they have treated the religious interest of the child as a factor in\nthe analysis.\nSecond, it is essential to reach the question to decide the case, not only because the question\nwas squarely raised in the motion to dismiss, but also because no analysis of religious-liberty\nclaims can take place in a vacuum. If the parents in this case are allowed a religious exemption,\nthe inevitable effect is to impose the parents\xe2\x80\x99 notions of religious duty upon their children. Where\nthe child is mature enough to express potentially conflicting desires, it would be an invasion of\nthe child\xe2\x80\x99s rights to permit such an imposition without canvassing his views\xe2\x80\xa6.\nCrucial \xe2\x80\xa6 are the views of the child whose parent is the subject of the suit. Frieda Yoder\nhas in fact testified that her own religious views are opposed to high-school education. I therefore\njoin the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder\xe2\x80\x99s views may not\nbe those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin\nYutzy and Wallace Miller as their motion to dismiss also raised the question of their children\xe2\x80\x99s\nreligious liberty\xe2\x80\xa6.\nThese children are \xe2\x80\x9cpersons\xe2\x80\x9d within the meaning of the Bill of Rights. We have so held over\nand over again\xe2\x80\xa6 In re Gault, 387 U.S. 1, 13, we held that \xe2\x80\x9cneither the Fourteenth Amendment\nnor the Bill of Rights is for adults alone.\xe2\x80\x9d \xe2\x80\xa6In Tinker v. Des Moines Independent Community\nSchool District, 393 U.S. 503, we dealt with 13-year-old, 15-year-old, and 16-year-old students\nwho wore armbands to public schools and were disciplined for doing so. We gave them relief,\nsaying that their First Amendment rights had been abridged. \xe2\x80\x9cStudents in school as well as out\nof school are \xe2\x80\x98persons\xe2\x80\x99 under our Constitution. They are possessed of fundamental rights which\nthe State must respect, just as they themselves must respect their obligations to the State.\xe2\x80\x9d Id., at\n511. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, we held that school\nchildren, whose religious beliefs collided with a school rule requiring them to salute the flag,\ncould not be required to do so\xe2\x80\xa6. We said: \xe2\x80\x9cHere \xe2\x80\xa6 we are dealing with a compulsion of students to declare a belief.\xe2\x80\x9d Id., at 631....\nOn this important and vital matter of education, I think the children should be entitled to\nbe heard. While the parents, absent dissent, normally speak for the entire family, the education\nof the child is a matter on which the child will often have decided views. He may want to be a\npianist or an astronaut or an oceanographer. To do so he will have to break from the Amish\ntradition.\nIt is the future of the student, not the future of the parents, that is imperiled by today\xe2\x80\x99s\ndecision. If a parent keeps his child out of school beyond the grade school, then the child will be\nforever barred from entry into the new and amazing world of diversity that we have today. The\nchild may decide that that is the preferred course, or he may rebel. It is the student\xe2\x80\x99s judgment,\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 275\nnot his parents\xe2\x80\x99, that is essential if we are to give full meaning to what we have said about the\nBill of Rights and of the right of students to be masters of their own destiny\xe2\x80\xa6. The views of the\ntwo children in question were not canvassed by the Wisconsin courts. The matter should be\nexplicitly reserved so that new hearings can be held on remand of the case\xe2\x80\xa6.\nI think the emphasis of the Court on the \xe2\x80\x9claw and order\xe2\x80\x9d record of this Amish group of\npeople is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony\nrecords of its members might be. I am not at all sure how the Catholics, Episcopalians, the\nBaptists, Jehovah\xe2\x80\x99s Witnesses, the Unitarians, and my own Presbyterians would make out if\nsubjected to such a test. It is, of course, true that if a group or society was organized to perpetuate\ncrime and if that is its motive, we would have rather startling problems akin to those that were\nraised when some years back a particular sect was challenged here as operating on a fraudulent\nbasis. United States v. Ballard, 322 U.S. 78. But no such factors are present here, and the Amish,\nwhether with a high or low criminal record, certainly qualify by all historic standards as a religion within the meaning of the First Amendment.\nThe Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling,\nthe Court departs from the teaching of Reynolds v. United States, 98 U.S. 145, 164, where it\nwas said concerning the reach of the Free Exercise Clause of the First Amendment, \xe2\x80\x9cCongress\nwas deprived of all legislative power over mere opinion, but was left free to reach actions which\nwere in violation of social duties or subversive of good order.\xe2\x80\x9d In that case it was conceded that\npolygamy was a part of the religion of the Mormons. Yet the Court said, \xe2\x80\x9cIt matters not that\nhis belief (in polygamy) was a part of his professed religion: it was still belief and belief only.\xe2\x80\x9d\nId., at 167.\nAction, which the Court deemed to be antisocial, could be punished even though it was\ngrounded on deeply held and sincere religious convictions. What we do today, at least in this\nrespect, opens the way to give organized religion a broader base than it has ever enjoyed; and it\neven promises that in time Reynolds will be overruled.\nIn another way, however, the Court retreats when [it distinguishes choices that are] \xe2\x80\x9cphilosophical and personal rather than religious,\xe2\x80\x9d and [says] \xe2\x80\x9csuch belief does not rise to the demands\nof the Religion Clauses.\xe2\x80\x9d That is contrary to what we held in United States v. Seeger, 380 U.S.\n163, where we were concerned with the meaning of the words \xe2\x80\x9creligious training and belief\xe2\x80\x9d in\nthe Selective Service Act, which were the basis of many conscientious objector claims\xe2\x80\xa6. Welsh\nv. United States, 398 U.S. 333, was in the same vein, the Court saying, \xe2\x80\x9cIn this case, Welsh\xe2\x80\x99s\nconscientious objection to war was undeniably based in part on his perception of world politics\xe2\x80\xa6.\xe2\x80\x9d The essence of Welsh\xe2\x80\x99s philosophy, on the basis of which we held he was entitled to an\nexemption, was in these words:\nI believe that human life is valuable in and of itself; in its living; therefore I will\nnot injure or kill another human being. This belief (and the corresponding\n\xe2\x80\x9cduty\xe2\x80\x9d to abstain from violence toward another person) is not \xe2\x80\x9csuperior to\nthose arising from any human relation.\xe2\x80\x9d On the contrary: it is essential to\nevery human relation. I cannot, therefore, conscientiously comply with the\nGovernment\xe2\x80\x99s insistence that I assume duties which I feel are immoral and\ntotally repugnant. Id., at 343.\nI adhere to these exalted views of \xe2\x80\x9creligion\xe2\x80\x9d and see no acceptable alternative to them now\nthat we have become a Nation of many religions and sects, representing all of the diversities of\nthe human race. United States v. Seeger, 380 U.S. at 192\xe2\x80\x94193 (concurring opinion).\n\nWisconsin v. Yoder, 406 U.S. 205 (1972)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c276 Religion in the Law\n\n450 U.S. 707\nSupreme Court of the United States\n\nThomas v. Review Board\nApril 6, 1981\nChief Justice BURGER delivered the opinion of the Court.\nWe granted certiorari to consider whether the [Indiana\xe2\x80\x99s] denial of unemployment compensation benefits to the petitioner, a Jehovah\xe2\x80\x99s Witness who terminated his job because his religious\nbeliefs forbade participation in the production of armaments, constituted a violation of his First\nAmendment right to free exercise of religion.\nThomas terminated his employment in the Blaw-Knox Foundry & Machinery Co. when\nhe was transferred from the roll foundry to a department that produced turrets for military\ntanks. He claimed his religious beliefs prevented him from participating in the production of\nwar materials. The respondent Review Board denied him unemployment compensation benefits\nby applying disqualifying provisions of the Indiana Employment Security Act.\nThomas, a Jehovah\xe2\x80\x99s Witness, was hired initially to work in the roll foundry at Blaw-Knox.\nThe function of that department was to fabricate sheet steel for a variety of industrial uses. On\nhis application form, he listed his membership in the Jehovah\xe2\x80\x99s Witnesses, and noted that his\nhobbies were Bible study and Bible reading. However, he placed no conditions on his employment; and he did not describe his religious tenets in any detail on the form.\nApproximately a year later, the roll foundry closed, and Blaw-Knox transferred Thomas to\na department that fabricated turrets for military tanks. On his first day at this new job, Thomas\nrealized that the work he was doing was weapons related. He checked the bulletin board where\nin-plant openings were listed, and discovered that all of the remaining departments at BlawKnox were engaged directly in the production of weapons. Since no transfer to another department would resolve his problem, he asked for a layoff. When that request was denied, he quit,\nasserting that he could not work on weapons without violating the principles of his religion. The\nrecord does not show that he was offered any nonweapons work by his employer, or that any\nsuch work was available.\nUpon leaving Blaw-Knox, Thomas applied for unemployment compensation benefits under\nthe Indiana Employment Security Act. At an administrative hearing where he was not represented by counsel, he testified that he believed that contributing to the production of arms violated his religion\xe2\x80\xa6.\nThe hearing referee found that Thomas\xe2\x80\x99 religious beliefs specifically precluded him from\nproducing or directly aiding in the manufacture of items used in warfare. He also found that\nThomas had terminated his employment because of these religious convictions\xe2\x80\xa6. The referee\nconcluded nonetheless that Thomas\xe2\x80\x99 termination was not based upon a \xe2\x80\x9cgood cause [arising] in\nconnection with [his] work,\xe2\x80\x9d as required by the Indiana unemployment compensation statute.\nAccordingly, he was held not entitled to benefits. The Review Board adopted the referee\xe2\x80\x99s findings and conclusions, and affirmed the denial of benefits.\nThe Indiana Court of Appeals, accepting the finding that Thomas terminated his employment \xe2\x80\x9cdue to his religious convictions,\xe2\x80\x9d reversed the decision of the Review Board\xe2\x80\xa6 The Supreme Court of Indiana, dividing 3-2, vacated the decision of the Court of Appeals, and denied\nThomas benefits. \xe2\x80\xa6 The court held that Thomas had quit voluntarily for personal reasons, and\ntherefore did not qualify for benefits.\n\nThomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 277\n\xe2\x80\xa6The Indiana court concluded that denying Thomas benefits would create only an indirect\nburden on his free exercise right and that the burden was justified by the legitimate state interest\nin preserving the integrity of the insurance fund and maintaining a stable work force by encouraging workers not to leave their jobs for personal reasons. Finally, the court held that awarding\nunemployment compensation benefits to a person who terminates employment voluntarily for\nreligious reasons, while denying such benefits to persons who terminate for other personal but\nnonreligious reasons, would violate the Establishment Clause of the First Amendment. The judgment under review must be examined in light of our prior decisions, particularly Sherbert v.\nVerner, 374 U.S. 398 (1963).\nOnly beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms,\ngives special protection to the exercise of religion. Sherbert v. Verner, supra; Wisconsin v. Yoder,\n406 U.S. 205, 215-216 (1972). The determination of what is a \xe2\x80\x9creligious\xe2\x80\x9d belief or practice is\nmore often than not a difficult and delicate task, as the division in the Indiana Supreme Court\nattests. However, the resolution of that question is not to turn upon a judicial perception of the\nparticular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.\nWe see \xe2\x80\xa6 that Thomas drew a line, and it is not for us to say that the line he drew was an\nunreasonable one. Courts should not undertake to dissect religious beliefs because the believer\nadmits that he is \xe2\x80\x9cstruggling\xe2\x80\x9d with his position or because his beliefs are not articulated with the\nclarity and precision that a more sophisticated person might employ.\n\xe2\x80\xa6One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case\nhere, and the guarantee of free exercise is not limited to beliefs which are shared by all of the\nmembers of a religious sect. Particularly in this sensitive area, it is not within the judicial function\nand judicial competence to inquire whether the petitioner \xe2\x80\xa6 correctly perceived the commands\nof their \xe2\x80\xa6 faith. Courts are not arbiters of scriptural interpretation.\nThe narrow function of a reviewing court in this context is to determine whether there was\nan appropriate finding that petitioner terminated his work because of an honest conviction that\nsuch work was forbidden by his religion. \xe2\x80\xa6 On this record, it is clear that Thomas terminated\nhis employment for religious reasons.\nMore that 30 years ago, the Court held that a person may not be compelled to choose\nbetween the exercise of a First Amendment right and participation in an otherwise available\npublic program. A state may not \xe2\x80\x9cexclude individual Catholics, Lutherans, Mohammedans,\nBaptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.\xe2\x80\x9d Everson v. Board of Education, 330 U.S. 1, 16 (1947).\nLater, in Sherbert, the Court examined South Carolina\xe2\x80\x99s attempt to deny unemployment\ncompensation benefits to a Sabbatarian who declined to work on Saturday\xe2\x80\xa6. Here, as in Sherbert, the employee was put to a choice between fidelity to religious belief or cessation of work;\nthe coercive impact on Thomas is indistinguishable from Sherbert\xe2\x80\xa6\nWhere the state conditions receipt of an important benefit upon conduct proscribed by a\nreligious faith, or where it denies such a benefit because of conduct mandated by religious belief,\nthereby putting substantial pressure on an adherent to modify his behavior and to violate his\nbeliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement\nupon free exercise is nonetheless substantial.\nThe respondents also contend that Sherbert is inapposite because, in that case, the employee\nwas dismissed by the employer\xe2\x80\x99s action. But we see that Mrs. Sherbert was dismissed because\nshe refused to work on Saturdays after the plant went to a 6-day workweek. Had Thomas\nsimply presented himself at the Blaw-Knox plant turret line but refused to perform any assigned\n\nThomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c278 Religion in the Law\nwork, it must be assumed that he, like Sherbert, would have been terminated by the employer\xe2\x80\x99s\naction, if no other work was available. In both cases, the termination flowed from the fact that\nthe employment, once acceptable, became religiously objectionable because of changed conditions.\nThe mere fact that the petitioner\xe2\x80\x99s religious practice is burdened by a governmental program\ndoes not mean that an exemption accommodating his practice must be granted. The state may\njustify an inroad on religious liberty by showing that it is the least restrictive means of achieving\nsome compelling state interest. However, it is still true that \xe2\x80\x9c[t]he essence of all that has been\nsaid and written on the subject is that only those interests of the highest order . . . can overbalance\nlegitimate claims to the free exercise of religion.\xe2\x80\x9d Wisconsin v. Yoder, 406 U.S. at 215.\nThe purposes urged to sustain the disqualifying provision of the Indiana unemployment\ncompensation scheme are twofold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for \xe2\x80\x9cpersonal\xe2\x80\x9d reasons;\nand (2) to avoid a detailed probing by employers into job applicants\xe2\x80\x99 religious beliefs. These are\nby no means unimportant considerations. When the focus of the inquiry is properly narrowed,\nhowever, we must conclude that the interests advanced by the State do not justify the burden\nplaced on free exercise of religion.\nThere is no evidence in the record to indicate that the number of people who find themselves\nin the predicament of choosing between benefits and religious beliefs is large enough to create\n\xe2\x80\x9cwidespread unemployment,\xe2\x80\x9d or even to seriously affect unemployment-and no such claim was\nadvanced by the Review Board. Similarly, although detailed inquiry by employers into applicants\xe2\x80\x99 religious beliefs is undesirable, there is no evidence in the record to indicate that such\ninquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits\nto people in the petitioner\xe2\x80\x99s position. Nor is there any reason to believe that the number of people\nterminating employment for religious reasons will be so great as to motivate employers to make\nsuch inquiries.\nNeither of the interests advanced is sufficiently compelling to justify the burden upon\nThomas\xe2\x80\x99 religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment\nClause.\nThe respondents contend that to compel benefit payments to Thomas involves the State in\nfostering a religious faith. There is, in a sense, a \xe2\x80\x9cbenefit\xe2\x80\x9d to Thomas deriving from his religious\nbeliefs, but this manifests no more than the tension between the two Religious Clauses which\nthe Court resolved in Sherbert:\nIn holding as we do, plainly we are not fostering the \xe2\x80\x9cestablishment\xe2\x80\x9d of the\nSeventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face\nof religious differences, and does not represent that involvement of religious\nwith secular institutions which it is the object of the Establishment Clause to\nforestall.\n\xe2\x80\xa6Unless we are prepared to overrule Sherbert, Thomas cannot be denied the benefits due\nhim on the basis of the findings of the referee, the Review Board, and the Indiana Court of\nAppeals that he terminated his employment because of his religious convictions.\nReversed.\nJustice BLACKMUN joins [in part] and concurs in the result.\n\nThomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 279\nJustice REHNQUIST, dissenting.\n\xe2\x80\xa6The Court correctly acknowledges that there is a \xe2\x80\x9ctension\xe2\x80\x9d between the Free Exercise\nand Establishment Clauses of the First Amendment of the United States Constitution. Although\nthe relationship of the two Clauses has been the subject of much commentary, the \xe2\x80\x9ctension\xe2\x80\x9d is\na fairly recent vintage, unknown at the time of the framing and adoption of the First Amendment. The causes of the tension, it seems to me, are threefold. First, the growth of social welfare\nlegislation during the latter part of the 20th century has greatly magnified the potential for conflict between the two Clauses, since such legislation touches the individual at so many points in\nhis life. Second, the decision by this Court that the First Amendment was \xe2\x80\x9cincorporated\xe2\x80\x9d into\nthe Fourteenth Amendment and thereby made applicable against the States, Stromberg v. California, 283 U.S. 359 (1931); Cantwell v. Connecticut, 310 U.S. 296 (1940), similarly multiplied\nthe number of instances in which the \xe2\x80\x9ctension\xe2\x80\x9d might arise. The third, and perhaps most important, cause of the tension is our overly expansive interpretation of both Clauses. By broadly\nconstruing both Clauses, the Court has constantly narrowed the channel between the Scylla and\nCharybdis through which any state or federal action must pass in order to survive constitutional\nscrutiny.\nNone of these developments could have been foreseen by those who framed and adopted\nthe First Amendment\xe2\x80\xa6. Because those who drafted and adopted the First Amendment could\nnot have foreseen either the growth of social welfare legislation or the incorporation of the First\nAmendment into the Fourteenth Amendment, we simply do not know how they would view\nthe scope of the two Clauses\xe2\x80\xa6.\nJust as it did in Sherbert v. Verner, 374 U.S. 398 (1963), the Court today reads the Free\nExercise Clause more broadly than is warranted. As to the proper interpretation of the Free\nExercise Clause, I would accept the decision of Braunfeld v. Brown, 366 U.S. 599 (1961), and\nthe dissent in Sherbert. In Braunfeld, we held that Sunday closing laws do not violate the First\nAmendment rights of Sabbatarians. Chief Justice Warren explained that the statute did not make\nunlawful any religious practices of appellants; it simply made the practice of their religious beliefs\nmore expensive. We concluded that \xe2\x80\x9c[t]o strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e. legislation which\ndoes not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.\xe2\x80\x9d 366 U.S. at 606. Likewise in this case, it cannot be said that the State\ndiscriminated against Thomas on the basis of his religious beliefs or that he was denied benefits\nbecause he was a Jehovah\xe2\x80\x99s Witness. Where, as here, a State has enacted a general statute, the\npurpose and effect of which is to advance the State\xe2\x80\x99s secular goals, the Free Exercise Clause does\nnot in my view require the State to conform that statute to the dictates of religious conscience of\nany group. As Justice Harlan recognized in his dissent in Sherbert v. Verner: \xe2\x80\x9cThose situations\nin which the Constitution may require special treatment on account of religion are ... few and\nfar between.\xe2\x80\x9d Id., at 423. Like him I believe that although a State could choose to grant exemptions to religious persons from state unemployment regulations, a State is not constitutionally\ncompelled to do so.\nThe Court\xe2\x80\x99s treatment of the Establishment Clause issue is equally unsatisfying. Although\ntoday\xe2\x80\x99s decision requires a State to provide direct financial assistance to persons solely on the\nbasis of their religious beliefs, the Court nonetheless blandly assures us, just as it did in Sherbert,\nthat its decision \xe2\x80\x9cplainly\xe2\x80\x9d does not foster the \xe2\x80\x9cestablishment\xe2\x80\x9d of religion. I would agree that the\nEstablishment Clause, properly interpreted, would not be violated if Indiana voluntarily chose\nto grant unemployment benefits to those persons who left their jobs for religious reasons. But I\nalso believe that the decision below is inconsistent with many of our prior Establishment Clause\ncases. Those cases, if faithfully applied, would require us to hold that such voluntary action by\na State did violate the Establishment Clause.\nJustice STEWART noted this point in his concurring opinion in Sherbert, 374 U.S. at 414Thomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c280 Religion in the Law\n417. He observed that decisions like Sherbert, and the one rendered today, squarely conflict with\nthe more extreme language of many of our prior Establishment Clause cases. In Everson v.\nBoard of Education, 330 U.S. 1 (1949), the Court stated that the Establishment Clause bespeaks\na \xe2\x80\x9cgovernment ... stripped of all power to support, or otherwise to assist any or all religions,\xe2\x80\x9d\nand no State \xe2\x80\x9ccan pass laws which aid one religion [or] all religions.\xe2\x80\x9d Id., at 11, 15. In Torcaso\nv. Watkins, 367 U.S. 488, 495 (1961), the Court asserted that the government cannot \xe2\x80\x9cconstitutionally pass laws or impose requirements which aid all religions as against non-believers.\xe2\x80\x9d\nAnd in Abington School District v. Schempp, 374 U.S. 203, 217 (1963), the Court adopted\nJustice Rutledge\xe2\x80\x99s words in Everson that the Establishment Clause forbids \xe2\x80\x9cevery form of public\naid or support for religion.\xe2\x80\x9d See also Engel v. Vitale, 370 U.S. 421, 431 (1962).\nIn recent years the Court has moved away from the mechanistic \xe2\x80\x9cno-aid-to-religion\xe2\x80\x9d approach to the Establishment Clause and has stated a three-part test to determine the constitutionality of governmental aid to religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971)\xe2\x80\xa6 First,\nthe statute must serve a secular legislative purpose. Second, it must have a \xe2\x80\x9cprimary effect\xe2\x80\x9d that\nneither advances nor inhibits religion. And third, the State and its administration must avoid\nexcessive entanglement with religion\xe2\x80\xa6.\nIt is not surprising that the Court today makes no attempt to apply those principles to the\nfacts of this case. If Indiana were to legislate what the Court today requires-an unemployment\ncompensation law which permitted benefits to be granted to those persons who quit their jobs\nfor religious reasons \xe2\x80\x93 the statute would \xe2\x80\x9cplainly\xe2\x80\x9d violate the Establishment Clause as interpreted in such case as Lemon. First, although the unemployment statute as a whole would be\nenacted to serve a secular legislative purpose, the proviso would clearly serve only a religious\npurpose. It would grant financial benefits for the sole purpose of accommodating religious beliefs. Second, there can be little doubt that the primary effect of the proviso would be to \xe2\x80\x9cadvance\xe2\x80\x9d religion by facilitating the exercise of religious belief. Third, any statute including such a\nproviso would surely \xe2\x80\x9centangle\xe2\x80\x9d the State in religion\xe2\x80\xa6. By granting financial benefits to persons\nsolely on the basis of their religious beliefs, the State must necessarily inquire whether the claimant\xe2\x80\x99s belief is \xe2\x80\x9creligious\xe2\x80\x9d and whether it is sincerely held. Otherwise any dissatisfied employee\nmay leave his job without cause and claim that he did so because his own particular beliefs\nrequired it.\nIt is unclear from the Court\xe2\x80\x99s opinion whether it has temporarily retreated from its expansive view of the Establishment Clause, or wholly abandoned it. I would welcome the latter. Just\nas I think that Justice Harlan in Sherbert correctly stated the proper approach to free exercise\nquestions, I believe that Justice STEWART, dissenting in Abington School District v. Schempp,\naccurately stated the reach of the Establishment Clause. He explained that the Establishment\nClause is limited to \xe2\x80\x9cgovernment support of proselytizing activities of religious sects by throwing\nthe weight of secular authorit[ies] behind the dissemination of religious tenets.\xe2\x80\x9d Id., at 314....\nConversely, governmental assistance which does not have the effect of \xe2\x80\x9cinducing\xe2\x80\x9d religious belief, but instead merely \xe2\x80\x9caccommodates\xe2\x80\x9d or implements an independent religious choice does\nnot impermissibly involve the government in religious choices and therefore does not violate the\nEstablishment Clause of the First Amendment. I would think that in this case, as in Sherbert,\nhad the State voluntarily chosen to pay unemployment compensation benefits to persons who\nleft their jobs for religious reasons, such aid would be constitutionally permissible because it\nredounds directly to the benefit of the individual\xe2\x80\xa6.\nIn sum, my difficulty with today\xe2\x80\x99s decision is that it reads the Free Exercise Clause too\nbroadly and it fails to squarely acknowledge that such a reading conflicts with many of our\nEstablishment Clause cases. As such, the decision simply exacerbates the \xe2\x80\x9ctension\xe2\x80\x9d between the\ntwo Clauses. If the Court were to construe the Free Exercise Clause as it did in Braunfeld and\nthe Establishment Clause as Justice STEWART did in Schempp, the circumstances in which there\nwould be a conflict between the two Clauses would be few and far between. Although I heartily\n\nThomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 281\nagree with the Court\xe2\x80\x99s tacit abandonment of much of our rhetoric about the Establishment\nClause, I regret that the Court cannot see its way clear to restore what was surely intended to\nhave been a greater degree of flexibility to the Federal and State Governments in legislating consistently with the Free Exercise Clause. Accordingly, I would affirm the judgment of the Indiana\nSupreme Court.\n\nThomas v. Review Board, 450 U.S. 707 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c282 Religion in the Law\n\n455 U.S. 252\nSupreme Court of the United States\n\nUnited States v. Lee\nFebruary 23, 1982\nChief Justice BURGER delivered the opinion of the Court.\nWe noted probable jurisdiction to determine whether imposition of social security taxes is\nunconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. The District Court,\n497 F.Supp. 180, concluded that the Free Exercise Clause prohibits forced payment of social\nsecurity taxes when payment of taxes and receipt of benefits violate the taxpayer\xe2\x80\x99s religion. We\nreverse.\nAppellee, a member of the Old Order Amish, is a farmer and carpenter. From 1970 to 1977,\nappellee employed several other Amish to work on his farm and in his carpentry shop. He failed\nto file the quarterly social security tax returns required of employers, withhold social security\ntax from his employees, or pay the employer\xe2\x80\x99s share of social security taxes.\nIn 1978, the Internal Revenue Service assessed appellee in excess of $27,000 for unpaid\nemployment taxes; he paid $91- the amount owed for the first quarter of 1973-and then sued\nin the United States District Court for the Western District of Pennsylvania for a refund, claiming\nthat imposition of the social security taxes violated his First Amendment free exercise rights and\nthose of his Amish employees.\nThe District Court held the statutes requiring appellee to pay social security and unemployment insurance taxes unconstitutional as applied\xe2\x80\xa6. Direct appeal from the judgment of the District Court was taken pursuant to 28 U.S.C. \xc2\xa7 1252.\nThe exemption provided by [Internal Revenue Code] \xc2\xa7 1402(g) is available only to selfemployed individuals and does not apply to employers or employees. Consequently, appellee\nand his employees are not within the express provisions of \xc2\xa7 1402(g). Thus any exemption from\npayment of the employer\xe2\x80\x99s share of social security taxes must come from a constitutionally required exemption.\nThe preliminary inquiry in determining the existence of a constitutionally required exemption is whether the payment of social security taxes and the receipt of benefits interferes with the\nfree exercise rights of the Amish. The Amish believe that there is a religiously based obligation\nto provide for their fellow members the kind of assistance contemplated by the social security\nsystem. Although the Government does not challenge the sincerity of this belief, the Government\ndoes contend that payment of social security taxes will not threaten the integrity of the Amish\nreligious belief or observance. It is not within \xe2\x80\x9cthe judicial function and judicial competence,\xe2\x80\x9d\nhowever, to determine whether appellee or the Government has the proper interpretation of the\nAmish faith; \xe2\x80\x9c[c]ourts are not arbiters of scriptural interpretation.\xe2\x80\x9d Thomas v. Review Bd. of\nIndiana Employment Security Div., 450 U.S. 707, 716 (1981). We therefore accept appellee\xe2\x80\x99s\ncontention that both payment and receipt of social security benefits is forbidden by the Amish\nfaith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs,\ncompulsory participation in the social security system interferes with their free exercise rights.\nThe conclusion that there is a conflict between the Amish faith and the obligations imposed\nby the social security system is only the beginning, however, and not the end of the inquiry. Not\nall burdens on religion are unconstitutional. See, e.g., Prince v. Massachusetts, 321 U.S. 158\n\nUnited States v. Lee, 455 U.S. 252 (1982)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 283\n(1944); Reynolds v. United States, 98 U.S. 145 (1879). The state may justify a limitation on\nreligious liberty by showing that it is essential to accomplish an overriding governmental interest.\nThomas, supra; Wisconsin v. Yoder, 406 U.S. 205 (1972); Gillette v. United States, 401 U.S. 437\n(1971); Sherbert v. Verner, 374 U.S. 398 (1963).\nBecause the social security system is nationwide, the governmental interest is apparent. The\nsocial security system in the United States serves the public interest by providing a comprehensive\ninsurance system with a variety of benefits available to all participants, with costs shared by\nemployers and employees. \xe2\x80\xa6 The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable\nto the fiscal vitality of the social security system. \xe2\x80\xa6 Moreover, a comprehensive national social\nsecurity system providing for voluntary participation would be almost a contradiction in terms\nand difficult, if not impossible, to administer. Thus, the Government\xe2\x80\x99s interest in assuring mandatory and continuous participation in and contribution to the social security system is very\nhigh.\nThe remaining inquiry is whether accommodating the Amish belief will unduly interfere\nwith fulfillment of the governmental interest. In Braunfeld v. Brown, 366 U.S. 599, 605 (1961),\nthis Court noted that \xe2\x80\x9cto make accommodation between the religious action and an exercise of\nstate authority is a particularly delicate task ... because resolution in favor of the State results in\nthe choice to the individual of either abandoning his religious principle or facing ... prosecution.\xe2\x80\x9d\nThe difficulty in attempting to accommodate religious beliefs in the area of taxation is that \xe2\x80\x9cwe\nare a cosmopolitan nation made up of people of almost every conceivable religious preference.\xe2\x80\x9d\nBraunfeld, at 606. The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors,\nand the consequences of allowing religiously based exemptions. To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious\npractices yield to the common good. Religious beliefs can be accommodated, \xe2\x80\xa6 but there is a\npoint at which accommodation would \xe2\x80\x9cradically restrict the operating latitude of the legislature.\xe2\x80\x9d Braunfeld, at 606.\nUnlike the situation presented in Wisconsin v. Yoder, it would be difficult to accommodate\nthe comprehensive social security system with myriad exceptions flowing from a wide variety of\nreligious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference-in theory at least-is that the social\nsecurity tax revenues are segregated for use only in furtherance of the statutory program. There\nis no principled way, however, for purposes of this case, to distinguish between general taxes\nand those imposed under the Social Security Act. If, for example, a religious adherent believes\nwar is a sin, and if a certain percentage of the federal budget can be identified as devoted to warrelated activities, such individuals would have a similarly valid claim to be exempt from paying\nthat percentage of the income tax. The tax system could not function if denominations were\nallowed to challenge the tax system because tax payments were spent in a manner that violates\ntheir religious belief. See, e.g., Lull v. Commissioner, 602 F.2d 1166 (CA4 1979), cert. denied,\n444 U.S. 1014 (1980); Autenrieth v. Cullen, 418 F.2d 586 (CA9 1969), cert. denied, 397 U.S.\n1036 (1970). Because the broad public interest in maintaining a sound tax system is of such a\nhigh order, religious belief in conflict with the payment of taxes affords no basis for resisting the\ntax.\nCongress has accommodated \xe2\x80\xa6 the practices of those who believe it a violation of their\nfaith to participate in the social security system. In \xc2\xa7 1402(g) Congress granted an exemption,\non religious grounds, to self-employed Amish and others. Confining the \xc2\xa7 1402(g) exemption\nto the self-employed provided for a narrow category which was readily identifiable. Self-employed persons in a religious community having its own \xe2\x80\x9cwelfare\xe2\x80\x9d system are distinguishable\nfrom the generality of wage earners employed by others.\n\nUnited States v. Lee, 455 U.S. 252 (1982)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c284 Religion in the Law\nCongress and the courts have been sensitive to the needs flowing from the Free Exercise\nClause, but every person cannot be shielded from all the burdens incident to exercising every\naspect of the right to practice religious beliefs. When followers of a particular sect enter into\ncommercial activity as a matter of choice, the limits they accept on their own conduct as a matter\nof conscience and faith are not to be superimposed on the statutory schemes which are binding\non others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer\xe2\x80\x99s religious faith on the employees. Congress drew a line in \xc2\xa7\n1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly\napplicable to all, except as Congress provides explicitly otherwise\xe2\x80\xa6.\nReversed and remanded.\nJustice STEVENS, concurring in the judgment.\nThe clash between appellee\xe2\x80\x99s religious obligation and his civic obligation is irreconcilable.\nHe must violate either an Amish belief or a federal statute. According to the Court, the religious\nduty must prevail unless the Government shows that enforcement of the civic duty \xe2\x80\x9cis essential\nto accomplish an overriding governmental interest.\xe2\x80\x9d That formulation of the constitutional\nstandard suggests that the Government always bears a heavy burden of justifying the application\nof neutral general laws to individual conscientious objectors. In my opinion, it is the objector\nwho must shoulder the burden of demonstrating that there is a unique reason for allowing him\na special exemption from a valid law of general applicability.\nCongress already has granted the Amish a limited exemption from social security taxes. See\n26 U.S.C. \xc2\xa7 1402(g). As a matter of administration, it would be a relatively simple matter to\nextend the exemption to the taxes involved in this case. As a matter of fiscal policy, an enlarged\nexemption probably would benefit the social security system because the nonpayment of these\ntaxes by the Amish would be more than offset by the elimination of their right to collect benefits.\nIn view of the fact that the Amish have demonstrated their capacity to care for their own, the\nsocial cost of eliminating this relatively small group of dedicated believers would be minimal.\nThus, if we confine the analysis to the Government\xe2\x80\x99s interest in rejecting the particular claim to\nan exemption at stake in this case, the constitutional standard as formulated by the Court has\nnot been met.\nThe Court rejects the particular claim of this appellee, not because it presents any special\nproblems, but rather because of the risk that a myriad of other claims would be too difficult to\nprocess. The Court overstates the magnitude of this risk because the Amish claim applies only\nto a small religious community with an established welfare system of its own. Nevertheless, I\nagree with the Court\xe2\x80\x99s conclusion that the difficulties associated with processing other claims to\ntax exemption on religious grounds justify a rejection of this claim. I believe, however, that this\nreasoning supports the adoption of a different constitutional standard than the Court purports\nto apply.\nThe Court\xe2\x80\x99s analysis supports a holding that there is virtually no room for a \xe2\x80\x9cconstitutionally required exemption\xe2\x80\x9d on religious grounds from a valid tax law that is entirely neutral in its\ngeneral application. Because I agree with that holding, I concur in the judgment.\n\nUnited States v. Lee, 455 U.S. 252 (1982)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 285\n\n494 U.S. 872\nSupreme Court of the United States\n\nEmployment Division v. Smith\nApril 17, 1990\nJustice SCALIA delivered the opinion of the Court.\nThis case requires us to decide whether the Free Exercise Clause of the First Amendment\npermits the State of Oregon to include religiously inspired peyote use within the reach of its\ngeneral criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.\nOregon law prohibits the knowing or intentional possession of a \xe2\x80\x9ccontrolled substance\xe2\x80\x9d\nunless the substance has been prescribed by a medical practitioner. Ore.Rev.Stat. \xc2\xa7 475.992(4)\n(1987). The law defines \xe2\x80\x9ccontrolled substance\xe2\x80\x9d as a drug classified in Schedules I through V of\nthe Federal Controlled Substances Act\xe2\x80\xa6 Persons who violate this provision by possessing a controlled substance listed on Schedule I are \xe2\x80\x9cguilty of a Class B felony.\xe2\x80\x9d \xc2\xa7 475.992(4)(a). \xe2\x80\xa6 Schedule I contains the drug peyote, a hallucinogen derived from the plant Lophophora williamsii\nLemaire.\nRespondents Alfred Smith and Galen Black (hereinafter respondents) were fired from their\njobs with a private drug rehabilitation organization because they ingested peyote for sacramental\npurposes at a ceremony of the Native American Church, of which both are members. When\nrespondents applied to petitioner Employment Division (hereinafter petitioner) for unemployment compensation, they were determined to be ineligible for benefits because they had been\ndischarged for work-related \xe2\x80\x9cmisconduct.\xe2\x80\x9d \xe2\x80\xa6\nRespondents\xe2\x80\x99 claim for relief rests on our decisions in Sherbert v. Verner, Thomas v. Review\nBd. of Indiana Employment Security Div., and Hobbie v. Unemployment Appeals Comm\xe2\x80\x99n of\nFlorida, 480 U.S. 136 (1987), in which we held that a State could not condition the availability\nof unemployment insurance on an individual\xe2\x80\x99s willingness to forgo conduct required by his religion. [However,] the conduct at issue in those cases was not prohibited by law. \xe2\x80\xa6 Now that the\nOregon Supreme Court has confirmed that Oregon does prohibit the religious use of peyote, we\nproceed to consider whether that prohibition is permissible under the Free Exercise Clause.\nThe Free Exercise Clause of the First Amendment, which has been made applicable to the\nStates by incorporation into the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S.\n296, 303 (1940), provides that \xe2\x80\x9cCongress shall make no law respecting an establishment of\nreligion, or prohibiting the free exercise thereof....\xe2\x80\x9d U.S. Const., Amdt. 1 (emphasis added.) The\nfree exercise of religion means, first and foremost, the right to believe and profess whatever\nreligious doctrine one desires. Thus, the First Amendment obviously excludes all \xe2\x80\x9cgovernmental\nregulation of religious beliefs as such.\xe2\x80\x9d Sherbert v. Verner, 374 U.S. at 402. The government may\nnot compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488 (1961), punish\nthe expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78,\n86-88 (1944), impose special disabilities on the basis of religious views or religious status \xe2\x80\xa6 or\nlend its power to one or the other side in controversies over religious authority or dogma\xe2\x80\xa6.\nBut the \xe2\x80\x9cexercise of religion\xe2\x80\x9d often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or\ncertain modes of transportation. It would be true, we think (though no case of ours has involved\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c286 Religion in the Law\nthe point), that a State would be \xe2\x80\x9cprohibiting the free exercise [of religion]\xe2\x80\x9d if it sought to ban\nsuch acts or abstentions only when they are engaged in for religious reasons, or only because of\nthe religious belief that they display. It would doubtless be unconstitutional, for example, to ban\nthe casting of \xe2\x80\x9cstatues that are to be used for worship purposes,\xe2\x80\x9d or to prohibit bowing down\nbefore a golden calf.\nRespondents in the present case, however, seek to carry the meaning of \xe2\x80\x9cprohibiting the free\nexercise [of religion]\xe2\x80\x9d one large step further. They contend that their religious motivation for\nusing peyote places them beyond the reach of a criminal law that is not specifically directed at\ntheir religious practice, and that is concededly constitutional as applied to those who use the\ndrug for other reasons. They assert, in other words, that \xe2\x80\x9cprohibiting the free exercise [of religion]\xe2\x80\x9d includes requiring any individual to observe a generally applicable law that requires (or\nforbids) the performance of an act that his religious belief forbids (or requires). As a textual\nmatter, we do not think the words must be given that meaning. It is no more necessary to regard\nthe collection of a general tax, for example, as \xe2\x80\x9cprohibiting the free exercise [of religion]\xe2\x80\x9d by\nthose citizens who believe support of organized government to be sinful, than it is to regard the\nsame tax as \xe2\x80\x9cabridging the freedom ... of the press\xe2\x80\x9d of those publishing companies that must\npay the tax as a condition of staying in business. It is a permissible reading of the text, in the one\ncase as in the other, to say that if prohibiting the exercise of religion (or burdening the activity\nof printing) is not the object of the tax but merely the incidental effect of a generally applicable\nand otherwise valid provision, the First Amendment has not been offended\xe2\x80\xa6.\nOur decisions reveal that the latter reading is the correct one. We have never held that an\nindividual\xe2\x80\x99s 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\nof our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice\nFrankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-595 (1940):\nConscientious scruples have not, in the course of the long struggle for religious\ntoleration, relieved the individual from obedience to a general law not aimed\nat the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society\ndoes not relieve the citizen from the discharge of political responsibilities.\nWe first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145\n(1878), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice:\nLaws are made for the government of actions, and while they cannot interfere\nwith mere religious belief and opinions, they may with practices.... Can a man\nexcuse his practices to the contrary because of his religious belief? To permit\nthis would be to make the professed doctrines of religious belief superior to\nthe law of the land, and in effect to permit every citizen to become a law unto\nhimself.\nSubsequent decisions have consistently held that the right of free exercise does not relieve\nan individual of the obligation to comply with a \xe2\x80\x9cvalid and neutral law of general applicability\non the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or\nproscribes).\xe2\x80\x9d United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (STEVENS, J., concurring in\njudgment); see Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. at 595, (collecting cases).\nIn Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother could be prosecuted\nunder the child labor laws for using her children to dispense literature in the streets, her religious\nmotivation notwithstanding. We found no constitutional infirmity in \xe2\x80\x9cexcluding [these children]\nfrom doing there what no other children may do.\xe2\x80\x9d Id., at 171. In Braunfeld v. Brown, 366 U.S.\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 287\n599 (1961) (plurality opinion), we upheld Sunday-closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work\non other days. In Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained the military\nSelective Service System against the claim that it violated free exercise by conscripting persons\nwho opposed a particular war on religious grounds.\nOur most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual\xe2\x80\x99s religion was United States v. Lee, 455 U.S. at 258261. There, an Amish employer, on behalf of himself and his employees, sought exemption from\ncollection and payment of Social Security taxes on the ground that the Amish faith prohibited\nparticipation in governmental support programs. We rejected the claim that an exemption was\nconstitutionally required. There would be no way, we observed, to distinguish the Amish believer\xe2\x80\x99s objection to Social Security taxes from the religious objections that others might have to\nthe collection or use of other taxes. \xe2\x80\x9cIf, for example, a religious adherent believes war is a sin,\nand if a certain percentage of the federal budget can be identified as devoted to war-related\nactivities, such individuals would have a similarly valid claim to be exempt from paying that\npercentage of the income tax. The tax system could not function if denominations were allowed\nto challenge the tax system because tax payments were spent in a manner that violates their\nreligious belief.\xe2\x80\x9d Id., at 260. Cf. Hernandez v. Commissioner, 490 U.S. 680 (1989) (rejecting\nfree exercise challenge to payment of income taxes alleged to make religious activities more difficult).\nThe only decisions in which we have held that the First Amendment bars application of a\nneutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. at\n304-307 (invalidating a licensing system for religious and charitable solicitations under which\nthe administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating a flat tax on solicitation as applied to\nthe dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573 (1944) (same), or the\nright of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the\neducation of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to\nsend their children to school). Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v.\nMaynard, 430 U.S. 705 (1977) (invalidating compelled display of a license plate slogan that\noffended individual religious beliefs); West Virginia Bd. of Education v. Barnette, 319 U.S. 624\n(1943) (invalidating compulsory flag salute statute challenged by religious objectors)\xe2\x80\xa6.\nThe present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite\nsimply, that when otherwise prohibitable conduct is accompanied by religious convictions, not\nonly the convictions but the conduct itself must be free from governmental regulation. We have\nnever held that, and decline to do so now. There being no contention that Oregon\xe2\x80\x99s drug law\nrepresents an attempt to regulate religious beliefs, the communication of religious beliefs, or the\nraising of one\xe2\x80\x99s children in those beliefs, the rule to which we have adhered ever since Reynolds\nplainly controls. \xe2\x80\x9cOur cases do not at their farthest reach support the proposition that a stance\nof conscientious opposition relieves an objector from any colliding duty fixed by a democratic\ngovernment.\xe2\x80\x9d Gillette v. United States, 401 U.S. at 461.\nRespondents argue that even though exemption from generally applicable criminal laws\nneed not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c288 Religion in the Law\nU.S. 398 (1963). Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. See id., at 402-403; see\nalso Hernandez v. Commissioner, 490 U.S. at 699. Applying that test we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of\nbenefits upon an applicant\xe2\x80\x99s willingness to work under conditions forbidden by his religion. See\nSherbert v. Verner; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707\n(1981); Hobbie v. Unemployment Appeals Comm\xe2\x80\x99n of Florida, 480 U.S. 136 (1987). We have\nnever invalidated any governmental action on the basis of the Sherbert test except the denial of\nunemployment compensation. Although we have sometimes purported to apply the Sherbert\ntest in contexts other than that, we have always found the test satisfied, see United States v. Lee,\n455 U.S. 252 (1982); Gillette v. United States, 401 U.S. 437 (1971).\nIn recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. In Bowen v. Roy, 476 U.S. 693 (1986), we declined to apply\nSherbert analysis to a federal statutory scheme that required benefit applicants and recipients to\nprovide their Social Security numbers. The plaintiffs in that case asserted that it would violate\ntheir religious beliefs to obtain and provide a Social Security number for their daughter. We held\nthe statute\xe2\x80\x99s application to the plaintiffs valid regardless of whether it was necessary to effectuate\na compelling interest. \xe2\x80\xa6 In Goldman v. Weinberger, 475 U.S. 503 (1986), we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes\xe2\x80\xa6.\nEven if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to\nindividualized governmental assessment of the reasons for the relevant conduct. \xe2\x80\xa6 As the plurality pointed out in Bowen v. Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to\nextend that system to cases of \xe2\x80\x9creligious hardship\xe2\x80\x9d without compelling reason. Bowen v. Roy,\n476 U.S. at 708.\nWhether or not the decisions are that limited, they at least have nothing to do with an\nacross-the-board criminal prohibition on a particular form of conduct. Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws,\nsee United States v. Lee, 455 U.S. at 257-260; Gillette v. United States, 401 U.S. at 462, we have\nnever applied the test to invalidate one. We conclude today that the sounder approach, and the\napproach in accord with the vast majority of our precedents, is to hold the test inapplicable to\nsuch challenges. The government\xe2\x80\x99s ability to enforce generally applicable prohibitions of socially\nharmful conduct, like its ability to carry out other aspects of public policy, \xe2\x80\x9ccannot depend on\nmeasuring the effects of a governmental action on a religious objector\xe2\x80\x99s spiritual development.\xe2\x80\x9d\nLyng, 485 U.S. at 451. To make an individual\xe2\x80\x99s obligation to obey such a law contingent upon\nthe law\xe2\x80\x99s coincidence with his religious beliefs, except where the State\xe2\x80\x99s interest is \xe2\x80\x9ccompelling\xe2\x80\x9d\n\xe2\x80\x93 permitting him, by virtue of his beliefs, \xe2\x80\x9cto become a law unto himself,\xe2\x80\x9d Reynolds v. United\nStates, 98 U.S. at 167 \xe2\x80\x93 contradicts both constitutional tradition and common sense\xe2\x80\xa6.\nNor is it possible to limit the impact of respondents\xe2\x80\x99 proposal by requiring a \xe2\x80\x9ccompelling\nstate interest\xe2\x80\x9d only when the conduct prohibited is \xe2\x80\x9ccentral\xe2\x80\x9d to the individual\xe2\x80\x99s religion. Cf.\nLyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. at 474-476 (BRENNAN, J.,\ndissenting). It is no more appropriate for judges to determine the \xe2\x80\x9ccentrality\xe2\x80\x9d of religious beliefs\nbefore applying a \xe2\x80\x9ccompelling interest\xe2\x80\x9d test in the free exercise field, than it would be for them\nto determine the \xe2\x80\x9cimportance\xe2\x80\x9d of ideas before applying the \xe2\x80\x9ccompelling interest\xe2\x80\x9d test in the free\nspeech field. What principle of law or logic can be brought to bear to contradict a believer\xe2\x80\x99s\nassertion that a particular act is \xe2\x80\x9ccentral\xe2\x80\x9d to his personal faith? Judging the centrality of different\nreligious practices is akin to the unacceptable \xe2\x80\x9cbusiness of evaluating the relative merits of differing religious claims.\xe2\x80\x9d United States v. Lee, 455 U.S. at 263 n. 2 (STEVENS, J., concurring).\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 289\nAs we reaffirmed only last Term, \xe2\x80\x9c[i]t is not within the judicial ken to question the centrality of\nparticular beliefs or practices to a faith, or the validity of particular litigants\xe2\x80\x99 interpretations of\nthose creeds.\xe2\x80\x9d Hernandez v. Commissioner, 490 U.S. at 699. Repeatedly and in many different\ncontexts, we have warned that courts must not presume to determine the place of a particular\nbelief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Bd. of\nIndiana Employment Security Div., 450 U.S. at 716; \xe2\x80\xa6 United States v. Ballard, 322 U.S. 78,\n85-87 (1944).\nIf the \xe2\x80\x9ccompelling interest\xe2\x80\x9d test is to be applied at all, then, it must be applied across the\nboard, to all actions thought to be religiously commanded. Moreover, if \xe2\x80\x9ccompelling interest\xe2\x80\x9d\nreally means what it says (and watering it down here would subvert its rigor in the other fields\nwhere it is applied), many laws will not meet the test. Any society adopting such a system would\nbe courting anarchy, but that danger increases in direct proportion to the society\xe2\x80\x99s diversity of\nreligious beliefs, and its determination to coerce or suppress none of them. Precisely because \xe2\x80\x9cwe\nare a cosmopolitan nation made up of people of almost every conceivable religious preference,\xe2\x80\x9d\nBraunfeld v. Brown, 366 U.S. at 606, and precisely because we value and protect that religious\ndivergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the\nreligious objector, every regulation of conduct that does not protect an interest of the highest\norder.\nThe rule respondents favor would open the prospect of constitutionally required religious\nexemptions from civic obligations of almost every conceivable kind \xe2\x80\x93 ranging from compulsory\nmilitary service \xe2\x80\xa6 to the payment of taxes \xe2\x80\xa6 to health and safety regulation such as manslaughter and child neglect laws \xe2\x80\xa6 compulsory vaccination laws \xe2\x80\xa6 drug laws \xe2\x80\xa6 and traffic laws; to\nsocial welfare legislation such as minimum wage laws \xe2\x80\xa6 child labor laws \xe2\x80\xa6 animal cruelty laws\n\xe2\x80\xa6 environmental protection laws \xe2\x80\xa6 and laws providing for equality of opportunity for the\nraces\xe2\x80\xa6. The First Amendment\xe2\x80\x99s protection of religious liberty does not require this.\n\xe2\x80\xa6[A] number of States have made an exception to their drug laws for sacramental peyote\nuse. See, e.g., Ariz.Rev.Stat.Ann. \xc2\xa7\xc2\xa7 13-3402(B)(1)-(3) (1989); Colo.Rev.Stat. \xc2\xa7 12-22-317(3)\n(1985); N.M.Stat.Ann. \xc2\xa7 30-31-6(D) (Supp.1989). But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the\ncourts. It may fairly be said that leaving accommodation to the political process will place at a\nrelative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the\ncentrality of all religious beliefs.\nBecause respondents\xe2\x80\x99 ingestion of peyote was prohibited under Oregon law, and because\nthat prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny\nrespondents unemployment compensation when their dismissal results from use of the drug.\nThe decision of the Oregon Supreme Court is accordingly reversed.\nIt is so ordered.\nJustice O\xe2\x80\x99CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice\nBLACKMUN join [in part], concurring in the judgment.\nAlthough I agree with the result the Court reaches in this case, I cannot join its opinion. In\nmy view, today\xe2\x80\x99s holding dramatically departs from well-settled First Amendment jurisprudence,\nappears unnecessary to resolve the question presented, and is incompatible with our Nation\xe2\x80\x99s\nfundamental commitment to individual religious liberty\xe2\x80\xa6.\nThe Free Exercise Clause of the First Amendment commands that \xe2\x80\x9cCongress shall make no\nlaw ... prohibiting the free exercise [of religion].\xe2\x80\x9d In Cantwell v. Connecticut, 310 U.S. 296\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c290 Religion in the Law\n(1940), we held that this prohibition applies to the States by incorporation into the Fourteenth\nAmendment and that it categorically forbids government regulation of religious beliefs. Id., at\n303. As the Court recognizes, however, the \xe2\x80\x9cfree exercise\xe2\x80\x9d of religion often, if not invariably,\nrequires the performance of (or abstention from) certain acts\xe2\x80\xa6. \xe2\x80\x9c[B]elief and action cannot be\nneatly confined in logic-tight compartments.\xe2\x80\x9d Wisconsin v. Yoder, 406 U.S. 205, 220, (1972).\nBecause the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.\nThe Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual\xe2\x80\x99s religious beliefs, so long as that prohibition is generally applicable. But a law that prohibits certain conduct \xe2\x80\x93 conduct that happens to\nbe an act of worship for someone \xe2\x80\x93 manifestly does prohibit that person\xe2\x80\x99s free exercise of his\nreligion. A person who is barred from engaging in religiously motivated conduct is barred from\nfreely exercising his religion\xe2\x80\xa6.\n\xe2\x80\xa6Our free exercise cases have all concerned generally applicable laws that had the effect of\nsignificantly burdening a religious practice. If the First Amendment is to have any vitality, it\nought not be construed to cover only the extreme and hypothetical situation in which a State\ndirectly targets a religious practice\xe2\x80\xa6.\nTo say that a person\xe2\x80\x99s right to free exercise has been burdened, of course, does not mean\nthat he has an absolute right to engage in the conduct. Under our established First Amendment\njurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot\nbe absolute. See, e.g., Cantwell, supra, 310 U.S. at 304; Reynolds v. United States, 98 U.S. 145\n(1878). Instead, we have respected both the First Amendment\xe2\x80\x99s express textual mandate and the\ngovernmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means\nnarrowly tailored to achieve that interest. See Hernandez v. Commissioner, 490 U.S. 680, 699\n(1989); Hobbie, 480 U.S. at 141; United States v. Lee, 455 U.S. 252, 257-258 (1982); Thomas\nv. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981); McDaniel v.\nPaty, 435 U.S. 618, 626-629 (1978) (plurality opinion); Yoder, 406 U.S. at 215; Gillette v. United\nStates, 401 U.S. 437, 462 (1971); Sherbert v. Verner, 374 U.S. 398, 403 (1963) \xe2\x80\xa6 The compelling interest test effectuates the First Amendment\xe2\x80\x99s 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 \xe2\x80\x9cof the highest order,\xe2\x80\x9d Yoder, supra, 406 U.S. at 215\xe2\x80\xa6.\nThe Court attempts to support its narrow reading of the Clause by claiming that \xe2\x80\x9c[w]e have\nnever held that an individual\xe2\x80\x99s religious beliefs excuse him from compliance with an otherwise\nvalid law prohibiting conduct that the State is free to regulate.\xe2\x80\x9d But as the Court later notes, as\nit must, in cases such as Cantwell and Yoder we have in fact interpreted the Free Exercise Clause\nto forbid application of a generally applicable prohibition to religiously motivated conduct. See\nCantwell, 310 U.S. at 304-307; Yoder, 406 U.S. at 214-234. Indeed, in Yoder we expressly rejected the interpretation the Court now adopts:\n...[To] agree that religiously grounded conduct must often be subject to the\nbroad police power of the State is not to deny that there are areas of conduct\nprotected 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.... A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion. Id., at 219-220, 92 S.Ct., at 153536 (emphasis added).\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 291\nThe Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them\n\xe2\x80\x9chybrid\xe2\x80\x9d decisions, but there is no denying that both cases expressly relied on the Free Exercise\nClause \xe2\x80\xa6 and that we have consistently regarded those cases as part of the mainstream of our\nfree exercise jurisprudence. Moreover, in each of the other cases cited by the Court to support\nits categorical rule, we rejected the particular constitutional claims before us only after carefully\nweighing the competing interests. See Prince v. Massachusetts, 321 U.S. 158, 168-170 (1944)\n(state interest in regulating children\xe2\x80\x99s activities justifies denial of religious exemption from child\nlabor laws); Braunfeld v. Brown, 366 U.S. 599, 608-609 (1961) (plurality opinion) (state interest\nin uniform day of rest justifies denial of religious exemption from Sunday closing law); Gillette,\n401 U.S. at 462 (state interest in military affairs justifies denial of religious exemption from\nconscription laws); Lee, 455 U.S. at 258-259 (state interest in comprehensive Social Security\nsystem justifies denial of religious exemption from mandatory participation requirement)\xe2\x80\xa6.\n\xe2\x80\xa6[The] essence of a free exercise claim is relief from a burden imposed by government on\nreligious practices or beliefs, whether the burden is imposed directly through laws that prohibit\nor compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one\xe2\x80\x99s own religion or conformity to the religious beliefs of others the price of an equal\nplace in the civil community\xe2\x80\xa6.\n\xe2\x80\xa6A State that makes criminal an individual\xe2\x80\x99s religiously motivated conduct burdens that\nindividual\xe2\x80\x99s free exercise of religion in the severest manner possible, for it \xe2\x80\x9cresults in the choice\nto the individual of either abandoning his religious principle or facing criminal prosecution.\xe2\x80\x9d\nBraunfeld, 366 U.S. at 605. I would have thought it beyond argument that such laws implicate\nfree exercise concerns.\nIndeed, we have never distinguished between cases in which a State conditions receipt of a\nbenefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The Sherbert compelling interest test applies in both kinds of cases\xe2\x80\xa6.\nI would reaffirm that principle today: A neutral criminal law prohibiting conduct that a\nState may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit.\nLegislatures, of course, have always been \xe2\x80\x9cleft free to reach actions which were in violation\nof social duties or subversive of good order.\xe2\x80\x9d Reynolds, 98 U.S. at 164; see also Yoder, at 219220; Braunfeld, 366 U.S. at 603-604. Yet because of the close relationship between conduct and\nreligious belief, \xe2\x80\x9c[i]n every case the power to regulate must be so exercised as not, in attaining a\npermissible end, unduly to infringe the protected freedom.\xe2\x80\x9d Cantwell, 310 U.S. at 304. Once it\nhas been shown that a government regulation or criminal prohibition burdens the free exercise\nof religion, we have consistently asked the government to demonstrate that unbending application of its regulation to the religious objector \xe2\x80\x9cis essential to accomplish an overriding governmental interest,\xe2\x80\x9d Lee, supra, 455 U.S. at 257-258, or represents \xe2\x80\x9cthe least restrictive means of\nachieving some compelling state interest,\xe2\x80\x9d Thomas, supra, 450 U.S. at 718, 101 S.Ct., at 1432.\nSee, e.g., Braunfeld, supra, 366 U.S. at 607; Sherbert, supra, 374 U.S. at 406; Yoder, 406 U.S. at\n214-215; Roy, 476 U.S. at 728-732 (opinion concurring in part and dissenting in part). To me,\nthe sounder approach \xe2\x80\x93 the approach more consistent with our role as judges to decide each\ncase on its individual merits-is to apply this test in each case to determine whether the burden\non the specific plaintiffs before us is constitutionally significant and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an empirical matter, a government\xe2\x80\x99s criminal laws might usually serve a compelling interest in health, safety, or public\norder, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim. \xe2\x80\xa6 Given the range of conduct that a State might\nlegitimately make criminal, we cannot assume, merely because a law carries criminal sanctions\nand is generally applicable, that the First Amendment never requires the State to grant a limited\nexemption for religiously motivated conduct\xe2\x80\xa6.\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c292 Religion in the Law\nFinally, the Court today suggests that the disfavoring of minority religions is an \xe2\x80\x9cunavoidable consequence\xe2\x80\x9d under our system of government and that accommodation of such religions\nmust be left to the political process. In my view, however, the First Amendment was enacted\nprecisely to protect the rights of those whose religious practices are not shared by the majority\nand may be viewed with hostility. The history of our free exercise doctrine amply demonstrates\nthe harsh impact majoritarian rule has had on unpopular or emerging religious groups such as\nthe Jehovah\xe2\x80\x99s Witnesses and the Amish. \xe2\x80\xa6\nThe Court\xe2\x80\x99s holding today not only misreads settled First Amendment precedent; it appears\nto be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence.\nThere is no dispute that Oregon\xe2\x80\x99s criminal prohibition of peyote places a severe burden on\nthe ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native\nAmerican Church and is regarded as vital to respondents\xe2\x80\x99 ability to practice their religion. \xe2\x80\xa6\nUnder Oregon law, as construed by that State\xe2\x80\x99s highest court, members of the Native American\nChurch must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is, in my view, more than sufficient to trigger First\nAmendment scrutiny.\nThere is also no dispute that Oregon has a significant interest in enforcing laws that control\nthe possession and use of controlled substances by its citizens. See, e.g., Sherbert, 374 U.S. at\n403 (religiously motivated conduct may be regulated where such conduct \xe2\x80\x9cpose[s] some substantial threat to public safety, peace or order\xe2\x80\x9d)\xe2\x80\xa6. As we recently noted, drug abuse is \xe2\x80\x9cone of\nthe greatest problems affecting the health and welfare of our population\xe2\x80\x9d and thus \xe2\x80\x9cone of the\nmost serious problems confronting our society today.\xe2\x80\x9d Treasury Employees v. Von Raab, 489\nU.S. 656, 668, 674 (1989). Indeed, under federal law (incorporated by Oregon law), peyote is\nspecifically regulated as a Schedule I controlled substance, which means that Congress has found\nthat it has a high potential for abuse, that there is no currently accepted medical use, and that\nthere is a lack of accepted safety for use of the drug under medical supervision. See 21 U.S.C. \xc2\xa7\n812(b)(1)\xe2\x80\xa6. [R]espondents do not seriously dispute that Oregon has a compelling interest in\nprohibiting the possession of peyote by its citizens.\nThus, the critical question in this case is whether exempting respondents from the State\xe2\x80\x99s\ngeneral criminal prohibition \xe2\x80\x9cwill unduly interfere with fulfillment of the governmental interest.\xe2\x80\x9d Lee, 455 U.S. at 259; see also Roy, 476 U.S. at 727; Yoder, 406 U.S. at 221; Braunfeld, 366\nU.S. at 605-607. Although the question is close, I would conclude that uniform application of\nOregon\xe2\x80\x99s criminal prohibition is \xe2\x80\x9cessential to accomplish,\xe2\x80\x9d Lee, at 455 U.S. at 257, its overriding\ninterest in preventing the physical harm caused by the use of a Schedule I controlled substance.\nOregon\xe2\x80\x99s criminal prohibition represents that State\xe2\x80\x99s judgment that the possession and use of\ncontrolled substances, even by only one person, is inherently harmful and dangerous. Because\nthe health effects caused by the use of controlled substances exist regardless of the motivation of\nthe user, the use of such substances, even for religious purposes, violates the very purpose of the\nlaws that prohibit them. \xe2\x80\xa6 Moreover, in view of the societal interest in preventing trafficking in\ncontrolled substances, uniform application of the criminal prohibition at issue is essential to the\neffectiveness of Oregon\xe2\x80\x99s stated interest in preventing any possession of peyote. Cf. Jacobson v.\nMassachusetts, 197 U.S. 11 (1905) (denying exemption from small pox vaccination requirement).\nFor these reasons, I believe that granting a selective exemption in this case would seriously\nimpair Oregon\xe2\x80\x99s compelling interest in prohibiting possession of peyote by its citizens. Under\nsuch circumstances, the Free Exercise Clause does not require the State to accommodate respondents\xe2\x80\x99 religiously motivated conduct. \xe2\x80\xa6 [A] religious exemption in this case would be incompatible with the State\xe2\x80\x99s interest in controlling use and possession of illegal drugs.\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 293\nRespondents contend that any incompatibility is belied by the fact that the Federal Government and several States provide exemptions for the religious use of peyote\xe2\x80\xa6. But other governments may surely choose to grant an exemption without Oregon, with its specific asserted interest in uniform application of its drug laws, being required to do so by the First Amendment.\nRespondents also note that the sacramental use of peyote is central to the tenets of the Native\nAmerican Church, but I agree with the Court that because \xe2\x80\x9c[i]t is not within the judicial ken to\nquestion the centrality of particular beliefs or practices to a faith,\xe2\x80\x9d our determination of the\nconstitutionality of Oregon\xe2\x80\x99s general criminal prohibition cannot, and should not, turn on the\ncentrality of the particular religious practice at issue. This does not mean, of course, that courts\nmay not make factual findings as to whether a claimant holds a sincerely held religious belief\nthat conflicts with, and thus is burdened by, the challenged law. The distinction between questions of centrality and questions of sincerity and burden is admittedly fine, but it is one that is\nan established part of our free exercise doctrine, see Ballard, 322 U.S. at 85-88, and one that\ncourts are capable of making\xe2\x80\xa6.\nI would therefore adhere to our established free exercise jurisprudence and hold that the\nState in this case has a compelling interest in regulating peyote use by its citizens and that accommodating respondents\xe2\x80\x99 religiously motivated conduct \xe2\x80\x9cwill unduly interfere with fulfillment\nof the governmental interest.\xe2\x80\x9d Lee, 455 U.S. at 259. Accordingly, I concur in the judgment of\nthe Court.\nJustice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.\n\xe2\x80\xa6Until today, I thought [strict scrutiny] was a settled and inviolate principle of this Court\xe2\x80\x99s\nFirst Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a \xe2\x80\x9cconstitutional anomaly.\xe2\x80\x9d As carefully detailed in Justice O\xe2\x80\x99CONNOR\xe2\x80\x99s concurring opinion, the majority is able to arrive at this view only by mischaracterizing this Court\xe2\x80\x99s precedents. \xe2\x80\xa6 In short,\nit effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a\nproduct of overreaction to the serious problems the country\xe2\x80\x99s drug crisis has generated.\n\xe2\x80\xa6The State proclaims an interest in protecting the health and safety of its citizens from the\ndangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote has\never harmed anyone. The factual findings of other courts cast doubt on the State\xe2\x80\x99s assumption\nthat religious use of peyote is harmful\xe2\x80\xa6.\nThe fact that peyote is classified as a Schedule I controlled substance does not, by itself,\nshow that any and all uses of peyote, in any circumstance, are inherently harmful and dangerous.\nThe Federal Government, which created the classifications of unlawful drugs from which Oregon\xe2\x80\x99s drug laws are derived, apparently does not find peyote so dangerous as to preclude an\nexemption for religious use. Moreover, other Schedule I drugs have lawful uses. See Olsen v.\nDrug Enforcement Admin., 279 U.S.App.D.C. 1, 6, n. 4 (medical and research uses of marijuana).\nThe carefully circumscribed ritual context in which respondents used peyote is far removed\nfrom the irresponsible and unrestricted recreational use of unlawful drugs. The Native American\nChurch\xe2\x80\x99s internal restrictions on, and supervision of, its members\xe2\x80\x99 use of peyote substantially\nobviate the State\xe2\x80\x99s health and safety concerns. See Olsen, 878 F.2d, at 1467 (\xe2\x80\x9cThe Administrator\nof the Drug Enforcement Administration finds that the Native American Church\xe2\x80\x99s use of peyote\nis isolated to specific ceremonial occasions,\xe2\x80\x9d and so \xe2\x80\x9can accommodation can be made for a\nreligious organization which uses peyote in circumscribed ceremonies.\xe2\x80\x9d); id., at 1464 (\xe2\x80\x9c[F]or\nmembers of the Native American Church, use of peyote outside the ritual is sacrilegious.\xe2\x80\x9d)\xe2\x80\xa6\nMoreover, just as in Yoder, the values and interests of those seeking a religious exemption\nin this case are congruent, to a great degree, with those the State seeks to promote through its\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c294 Religion in the Law\ndrug laws. \xe2\x80\xa6 Not only does the church\xe2\x80\x99s doctrine forbid nonreligious use of peyote; it also\ngenerally advocates self-reliance, familial responsibility, and abstinence from alcohol. \xe2\x80\xa6 There\nis considerable evidence that the spiritual and social support provided by the church has been\neffective in combating the tragic effects of alcoholism on the Native American population. \xe2\x80\xa6\nFar from promoting the lawless and irresponsible use of drugs, Native American Church members\xe2\x80\x99 spiritual code exemplifies values that Oregon\xe2\x80\x99s drug laws are presumably intended to foster.\nThe State also seeks to support its refusal to make an exception for religious use of peyote\nby invoking its interest in abolishing drug trafficking. There is, however, practically no illegal\ntraffic in peyote. \xe2\x80\xa6 Peyote simply is not a popular drug; its distribution for use in religious rituals\nhas nothing to do with the vast and violent traffic in illegal narcotics that plagues this country.\nFinally, the State argues that granting an exception for religious peyote use would erode its\ninterest in the uniform, fair, and certain enforcement of its drug laws. The State fears that, if it\ngrants an exemption for religious peyote use, a flood of other claims to religious exemptions will\nfollow\xe2\x80\xa6.\nThe State\xe2\x80\x99s apprehension of a flood of other religious claims is purely speculative. Almost\nhalf the States, and the Federal Government, have maintained an exemption for religious peyote\nuse for many years, and apparently have not found themselves overwhelmed by claims to other\nreligious exemptions. Allowing an exemption for religious peyote use would not necessarily\noblige the State to grant a similar exemption to other religious groups. The unusual circumstances that make the religious use of peyote compatible with the State\xe2\x80\x99s interests in health and\nsafety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. See, e.g., Olsen, 279 U.S.App.D.C., at 7 (\xe2\x80\x9c[T]he Ethiopian Zion Coptic\nChurch ... teaches that marijuana is properly smoked \xe2\x80\x98continually all day\xe2\x80\x99\xe2\x80\x9d). Some religious\nclaims involve drugs such as marijuana and heroin, in which there is significant illegal traffic,\nwith its attendant greed and violence, so that it would be difficult to grant a religious exemption\nwithout seriously compromising law enforcement efforts. That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances,\nwould not violate the Establishment Clause. Though the State must treat all religions equally,\nand not favor one over another, this obligation is fulfilled by the uniform application of the\n\xe2\x80\x9ccompelling interest\xe2\x80\x9d test to all free exercise claims, not by reaching uniform results as to all\nclaims. A showing that religious peyote use does not unduly interfere with the State\xe2\x80\x99s interests is\none that probably few other religious groups or sects could make; this does not mean that an\nexemption limited to peyote use is tantamount to an establishment of religion. See Hobbie v.\nUnemployment Appeals Comm\xe2\x80\x99n of Fla., 480 U.S. 136, 144-145 (1987); and Yoder, 406 U.S.\nat 220-221.\nFinally, although I agree with Justice O\xe2\x80\x99CONNOR that courts should refrain from delving\ninto questions whether, as a matter of religious doctrine, a particular practice is \xe2\x80\x9ccentral\xe2\x80\x9d to the\nreligion, I do not think this means that the courts must turn a blind eye to the severe impact of\na State\xe2\x80\x99s restrictions on the adherents of a minority religion\xe2\x80\xa6.\nRespondents believe, and their sincerity has never been at issue, that the peyote plant embodies their deity, and eating it is an act of worship and communion. Without peyote, they could\nnot enact the essential ritual of their religion. See Brief for Association on American Indian Affairs et al. as Amici Curiae 5-6 (\xe2\x80\x9cTo the members, peyote is consecrated with powers to heal\nbody, mind and spirit. It is a teacher; it teaches the way to spiritual life through living in harmony\nand balance with the forces of the Creation. The rituals are an integral part of the life process.\nThey embody a form of worship in which the sacrament Peyote is the means for communicating\nwith the Great Spirit\xe2\x80\x9d)\xe2\x80\xa6.\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 295\nFor these reasons, I conclude that Oregon\xe2\x80\x99s interest in enforcing its drug laws against religious use of peyote is not sufficiently compelling to outweigh respondents\xe2\x80\x99 right to the free exercise of their religion. Since the State could not constitutionally enforce its criminal prohibition\nagainst respondents, the interests underlying the State\xe2\x80\x99s drug laws cannot justify its denial of\nunemployment benefits. Absent such justification, the State\xe2\x80\x99s regulatory interest in denying benefits for religiously motivated \xe2\x80\x9cmisconduct,\xe2\x80\x9d is indistinguishable from the state interests this\nCourt has rejected in Frazee, Hobbie, Thomas, and Sherbert. The State of Oregon cannot, consistently with the Free Exercise Clause, deny respondents unemployment benefits. I dissent.\n\nEmployment Division v. Smith, 494 U.S. 872 (1990)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c296 Religion in the Law\n508 U.S. 520\nSupreme Court of the United States\n\nChurch of the Lukumi Babalu Aye v.\nHialeah\nJune 11, 1993\nJustice KENNEDY delivered the opinion of the Court, except as to Part II\xe2\x80\x93A\xe2\x80\x932.\n\xe2\x80\xa6This case involves practices of the Santeria religion, which originated in the 19th century.\nWhen hundreds of thousands of members of the Yoruba people were brought as slaves from\nwestern Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, \xe2\x80\x9cthe way of the saints.\xe2\x80\x9d The\nCuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the\nCatholic sacraments\xe2\x80\xa6.\nThe basis of the Santeria religion is the nurture of a personal relation with the orishas, and\none of the principal forms of devotion is an animal sacrifice. The sacrifice of animals as part of\nreligious rituals has ancient roots. Animal sacrifice is mentioned throughout the Old Testament,\nand it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham\xe2\x80\x99s sacrifice of a ram in the stead of his son.\nAccording to Santeria teaching, the orishas are powerful but not immortal. They depend\nfor survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the\ncure of the sick, for the initiation of new members and priests, and during an annual celebration.\nAnimals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats,\nsheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The\nsacrificed animal is cooked and eaten, except after healing and death rituals.\nSanteria adherents faced widespread persecution in Cuba, so the religion and its rituals were\npracticed in secret. The open practice of Santeria and its rites remains infrequent. The religion\nwas brought to this Nation most often by exiles from the Cuban revolution. The District Court\nestimated that there are at least 50,000 practitioners in South Florida today.\nPetitioner Church of the Lukumi Babalu Aye, Inc. (Church) \xe2\x80\xa6 and its congregants practice\nthe Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the\nChurch\xe2\x80\x99s priest and holds the religious title of Italero, the second highest in the Santeria faith. In\nApril 1987, the Church leased land in the City of Hialeah, Florida, and announced plans to\nestablish a house of worship as well as a school, cultural center, and museum. Pichardo indicated\nthat the Church\xe2\x80\x99s goal was to bring the practice of the Santeria faith, including its ritual of animal\nsacrifice, into the open\xe2\x80\xa6.\nThe prospect of a Santeria church in their midst was distressing to many members of the\nHialeah community, and the announcement of the plans to open a Santeria church in Hialeah\nprompted the city council to hold an emergency public session on June 9, 1987\xe2\x80\xa6.\nFirst, the city council adopted Resolution 87\xe2\x80\x9366, which noted the \xe2\x80\x9cconcern\xe2\x80\x9d expressed by\nresidents of the city \xe2\x80\x9cthat certain religions may propose to engage in practices which are incon-\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 297\nsistent with public morals, peace or safety,\xe2\x80\x9d and declared that \xe2\x80\x9c[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.\xe2\x80\x9d Next, the council approved an emergency ordinance, Ordinance 87\xe2\x80\x9340, which incorporated in full, except as to penalty, Florida\xe2\x80\x99s animal cruelty laws. Fla.Stat. ch. 828 (1987). Among other things, the incorporated state law subjected to\ncriminal punishment \xe2\x80\x9c[w]hoever ... unnecessarily or cruelly ... kills any animal.\xe2\x80\x9d \xc2\xa7 828.12.\nThe city council desired to undertake further legislative action, but Florida law prohibited\na municipality from enacting legislation relating to animal cruelty that conflicted with state law.\n\xc2\xa7 828.27(4). To obtain clarification, Hialeah\xe2\x80\x99s city attorney requested an opinion from the attorney general of Florida as to whether \xc2\xa7 828.12 prohibited \xe2\x80\x9ca religious group from sacrificing\nan animal in a religious ritual or practice\xe2\x80\x9d and whether the city could enact ordinances \xe2\x80\x9cmaking\nreligious animal sacrifice unlawful.\xe2\x80\x9d \xe2\x80\xa6 He advised that religious animal sacrifice was against\nstate law, so that a city ordinance prohibiting it would not be in conflict.\nThe city council responded at first with a hortatory enactment, Resolution 87\xe2\x80\x9390, that\nnoted its residents\xe2\x80\x99 \xe2\x80\x9cgreat concern regarding the possibility of public ritualistic animal sacrifices\xe2\x80\x9d\nand the state-law prohibition. The resolution declared the city policy \xe2\x80\x9cto oppose the ritual sacrifices of animals\xe2\x80\x9d within Hialeah and announced that any person or organization practicing\nanimal sacrifice \xe2\x80\x9cwill be prosecuted.\xe2\x80\x9d\nIn September 1987, the city council adopted three substantive ordinances addressing the\nissue of religious animal sacrifice. Ordinance 87\xe2\x80\x9352 defined \xe2\x80\x9csacrifice\xe2\x80\x9d as \xe2\x80\x9cto unnecessarily kill,\ntorment, torture, or mutilate an animal in a public or private ritual or ceremony not for the\nprimary purpose of food consumption,\xe2\x80\x9d and prohibited owning or possessing an animal \xe2\x80\x9cintending to use such animal for food purposes.\xe2\x80\x9d It restricted application of this prohibition, however, to any individual or group that \xe2\x80\x9ckills, slaughters or sacrifices animals for any type of ritual,\nregardless of whether or not the flesh or blood of the animal is to be consumed.\xe2\x80\x9d The ordinance\ncontained an exemption for slaughtering by \xe2\x80\x9clicensed establishment[s]\xe2\x80\x9d of animals \xe2\x80\x9cspecifically\nraised for food purposes.\xe2\x80\x9d Declaring, moreover, that the city council \xe2\x80\x9chas determined that the\nsacrificing of animals within the city limits is contrary to the public health, safety, welfare and\nmorals of the community,\xe2\x80\x9d the city council adopted Ordinance 87\xe2\x80\x9371. That ordinance defined\nsacrifice as had Ordinance 87\xe2\x80\x9352, and then provided that \xe2\x80\x9c[i]t shall be unlawful for any person,\npersons, corporations or associations to sacrifice any animal within the corporate limits of the\nCity of Hialeah, Florida.\xe2\x80\x9d The final Ordinance, 87\xe2\x80\x9372, defined \xe2\x80\x9cslaughter\xe2\x80\x9d as \xe2\x80\x9cthe killing of\nanimals for food\xe2\x80\x9d and prohibited slaughter outside of areas zoned for slaughterhouse use. The\nordinance provided an exemption, however, for the slaughter or processing for sale of \xe2\x80\x9csmall\nnumbers of hogs and/or cattle per week in accordance with an exemption provided by state\nlaw.\xe2\x80\x9d All ordinances and resolutions passed the city council by unanimous vote. Violations of\neach of the four ordinances were punishable by fines not exceeding $500 or imprisonment not\nexceeding 60 days, or both.\nFollowing enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U.S.C. \xc2\xa7 1983 in the United States District Court for the Southern District of Florida.\n\xe2\x80\xa6 Alleging violations of petitioners\xe2\x80\x99 rights under the Free Exercise Clause, the complaint sought\na declaratory judgment and injunctive and monetary relief\xe2\x80\xa6.\nBalancing the competing governmental and religious interests, the District Court concluded\nthe compelling governmental interests \xe2\x80\x9cfully justify the absolute prohibition on ritual sacrifice\xe2\x80\x9d\naccomplished by the ordinances. \xe2\x80\xa6 A religious exemption from the city\xe2\x80\x99s ordinances, concluded\nthe court, would defeat the city\xe2\x80\x99s compelling interests in enforcing the prohibition. Id., at 1487.\nThe Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam\nopinion. \xe2\x80\xa6 It declined to address the effect of Employment Div., Dept. of Human Resources of\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c298 Religion in the Law\nOre. v. Smith, 494 U.S. 872 (1990), decided after the District Court\xe2\x80\x99s opinion, because the District Court \xe2\x80\x9cemployed an arguably stricter standard\xe2\x80\x9d than that applied in Smith.\nThe Free Exercise Clause of the First Amendment \xe2\x80\xa6 provides that \xe2\x80\x9cCongress shall make\nno law respecting an establishment of religion, or prohibiting the free exercise thereof....\xe2\x80\x9d The\ncity does not argue that Santeria is not a \xe2\x80\x9creligion\xe2\x80\x9d within the meaning of the First Amendment.\nNor could it. Although the practice of animal sacrifice may seem abhorrent to some, \xe2\x80\x9creligious\nbeliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit\nFirst Amendment protection.\xe2\x80\x9d Thomas v. Review Bd. of Indiana Employment Security Div.,\n450 U.S. 707, 714 (1981). Given the historical association between animal sacrifice and religious\nworship, petitioners\xe2\x80\x99 assertion that animal sacrifice is an integral part of their religion \xe2\x80\x9ccannot\nbe deemed bizarre or incredible.\xe2\x80\x9d Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829,\n834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity\nof petitioners\xe2\x80\x99 professed desire to conduct animal sacrifices for religious reasons\xe2\x80\xa6.\nIn addressing the constitutional protection for free exercise of religion, our cases establish\nthe general proposition that a law that is neutral and of general applicability need not be justified\nby a compelling governmental interest even if the law has the incidental effect of burdening a\nparticular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith..\nNeutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law\nfailing to satisfy these requirements must be justified by a compelling governmental interest and\nmust be narrowly tailored to advance that interest. These ordinances fail to satisfy the Smith\nrequirements. We begin by discussing neutrality.\nIn our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.\n\xe2\x80\xa6 These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation\nand emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because\nof the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.\nAt a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is\nundertaken for religious reasons.\xe2\x80\xa6\n[If] the object of a law is to infringe upon or restrict practices because of their religious\nmotivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest\nand is narrowly tailored to advance that interest. \xe2\x80\xa6 To determine the object of a law, we must\nbegin with its text, for the minimum requirement of neutrality is that a law not discriminate on\nits face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning\ndiscernable from the language or context. Petitioners contend that three of the ordinances fail\nthis test of facial neutrality because they use the words \xe2\x80\x9csacrifice\xe2\x80\x9d and \xe2\x80\x9critual,\xe2\x80\x9d words with\nstrong religious connotations. We agree that these words are consistent with the claim of facial\ndiscrimination, but the argument is not conclusive. The words \xe2\x80\x9csacrifice\xe2\x80\x9d and \xe2\x80\x9critual\xe2\x80\x9d have a\nreligious origin, but current use admits also of secular meanings. \xe2\x80\xa6 The ordinances, furthermore, define \xe2\x80\x9csacrifice\xe2\x80\x9d in secular terms, without referring to religious practices.\nWe reject the contention advanced by the city that our inquiry must end with the text of the\nlaws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause \xe2\x80\x9cforbids subtle departures from\nneutrality,\xe2\x80\x9d Gillette v. United States, 401 U.S. 437, 452 (1971), and \xe2\x80\x9ccovert suppression of particular religious beliefs,\xe2\x80\x9d Bowen v. Roy, 476 U.S. at 703 (opinion of Burger, C.J.). Official action\nthat targets religious conduct for distinctive treatment cannot be shielded by mere compliance\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 299\nwith the requirement of facial neutrality. The Free Exercise Clause protects against governmental\nhostility which is masked, as well as overt\xe2\x80\xa6.\nThe record in this case compels the conclusion that suppression of the central element of\nthe Santeria worship service was the object of the ordinances. First, though use of the words\n\xe2\x80\x9csacrifice\xe2\x80\x9d and \xe2\x80\x9critual\xe2\x80\x9d does not compel a finding of improper targeting of the Santeria religion,\nthe choice of these words is support for our conclusion. There are further respects in which the\ntext of the city council\xe2\x80\x99s enactments discloses the improper attempt to target Santeria. Resolution\n87\xe2\x80\x9366, adopted June 9, 1987, recited that \xe2\x80\x9cresidents and citizens of the City of Hialeah have\nexpressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,\xe2\x80\x9d and \xe2\x80\x9creiterate[d]\xe2\x80\x9d the city\xe2\x80\x99s commitment to prohibit \xe2\x80\x9cany and all [such] acts of any and all religious groups.\xe2\x80\x9d No one suggests, and on this\nrecord it cannot be maintained, that city officials had in mind a religion other than Santeria.\nIt becomes evident that these ordinances target Santeria sacrifice when the ordinances\xe2\x80\x99 operation is considered. \xe2\x80\xa6 The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered\ntogether disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a \xe2\x80\x9creligious gerrymander,\xe2\x80\x9d Walz v. Tax Comm\xe2\x80\x99n of New York City, 397 U.S.\nat 696 (Harlan, J., concurring), an impermissible attempt to target petitioners and their religious\npractices.\nIt is a necessary conclusion that almost the only conduct subject to Ordinances 87\xe2\x80\x9340, 87\xe2\x80\x93\n52, and 87\xe2\x80\x9371 is the religious exercise of Santeria church members. The texts show that they\nwere drafted in tandem to achieve this result. We begin with Ordinance 87\xe2\x80\x9371. It prohibits the\nsacrifice of animals, but defines sacrifice as \xe2\x80\x9cto unnecessarily kill ... an animal in a public or\nprivate ritual or ceremony not for the primary purpose of food consumption.\xe2\x80\x9d The definition\nexcludes almost all killings of animals except for religious sacrifice. \xe2\x80\xa6 The net result of the\ngerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice,\nwhich is proscribed because it occurs during a ritual or ceremony and its primary purpose is to\nmake an offering to the orishas, not food consumption. Indeed, careful drafting ensured that,\nalthough Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost\nall other circumstances are unpunished.\nOperating in similar fashion is Ordinance 87\xe2\x80\x9352, which prohibits the \xe2\x80\x9cpossess [ion], sacrifice, or slaughter\xe2\x80\x9d of an animal with the \xe2\x80\x9cinten[t] to use such animal for food purposes.\xe2\x80\x9d This\nprohibition, extending to the keeping of an animal as well as the killing itself, applies if the\nanimal is killed in \xe2\x80\x9cany type of ritual\xe2\x80\x9d and there is an intent to use the animal for food, whether\nor not it is in fact consumed for food. The ordinance exempts, however, \xe2\x80\x9cany licensed [food]\nestablishment\xe2\x80\x9d with regard to \xe2\x80\x9cany animals which are specifically raised for food purposes,\xe2\x80\x9d if\nthe activity is permitted by zoning and other laws. This exception, too, seems intended to cover\nkosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others\xe2\x80\xa6. A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.\nOrdinance 87\xe2\x80\x9340 incorporates the Florida animal cruelty statute, Fla.Stat. \xc2\xa7 828.12 (1987).\nIts prohibition is broad on its face, punishing \xe2\x80\x9c[w]hoever ... unnecessarily ... kills any animal.\xe2\x80\x9d\nThe city claims that this ordinance is the epitome of a neutral prohibition. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general.\nKillings for religious reasons are deemed unnecessary, whereas most other killings fall outside\nthe prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals\nfor food, eradication of insects and pests, and euthanasia as necessary. \xe2\x80\xa6 Further, because it\nrequires an evaluation of the particular justification for the killing, this ordinance represents a\nsystem of \xe2\x80\x9cindividualized governmental assessment of the reasons for the relevant conduct,\xe2\x80\x9d\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c300 Religion in the Law\nEmployment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 884. As we noted\nin Smith, in circumstances in which individualized exemptions from a general requirement are\navailable, the government \xe2\x80\x9cmay not refuse to extend that system to cases of \xe2\x80\x98religious hardship\xe2\x80\x99\nwithout compelling reason.\xe2\x80\x9d Respondent\xe2\x80\x99s application of the ordinance\xe2\x80\x99s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligiousreasons.\nThus, religious practice is being singled out for discriminatory treatment\xe2\x80\xa6.\nWe also find significant evidence of the ordinances\xe2\x80\x99 improper targeting of Santeria sacrifice\nin the fact that they proscribe more religious conduct than is necessary to achieve their stated\nends. It is not unreasonable to infer, at least when there are no persuasive indications to the\ncontrary, that a law which visits \xe2\x80\x9cgratuitous restrictions\xe2\x80\x9d on religious conduct, McGowan v.\nMaryland, 366 U.S. at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.\nThe legitimate governmental interests in protecting the public health and preventing cruelty\nto animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented,\nthe city could have imposed a general regulation on the disposal of organic garbage. It did not\ndo so. \xe2\x80\xa6 [U]nder the ordinances, Santeria sacrifices would be illegal even if they occurred in\nlicensed, inspected, and zoned slaughterhouses. Thus, these broad ordinances prohibit Santeria\nsacrifice even when it does not threaten the city\xe2\x80\x99s interest in the public health\xe2\x80\xa6.\nIn sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object\nthe suppression of religion\xe2\x80\xa6.\nWe turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human\nResources of Ore. v. Smith, 494 U.S. at 879\xe2\x80\x93881. All laws are selective to some extent, but\ncategories of selection are of paramount concern when a law has the incidental effect of burdening religious practice\xe2\x80\xa6.\nThe principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection\nof the rights guaranteed by the Free Exercise Clause\xe2\x80\xa6. In this case we need not define with\nprecision the standard used to evaluate whether a prohibition is of general application, for these\nordinances fall well below the minimum standard necessary to protect First Amendment rights.\nRespondent claims that Ordinances 87\xe2\x80\x9340, 87\xe2\x80\x9352, and 87\xe2\x80\x9371 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive\nfor those ends. They fail to prohibit nonreligious conduct that endangers these interests in a\nsimilar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city\xe2\x80\x99s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice.\nMany types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing\xe2\x80\x94which occurs in Hialeah, is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance\n87\xe2\x80\x9340 sanctions euthanasia of \xe2\x80\x9cstray, neglected, abandoned, or unwanted animals,\xe2\x80\x9d destruction\nof animals judicially removed from their owners \xe2\x80\x9cfor humanitarian reasons\xe2\x80\x9d or when the animal\n\xe2\x80\x9cis of no commercial value,\xe2\x80\x9d the infliction of pain or suffering \xe2\x80\x9cin the interest of medical science,\xe2\x80\x9d the placing of poison in one\xe2\x80\x99s yard or enclosure, and the use of a live animal \xe2\x80\x9cto pursue\nor take wildlife or to participate in any hunting,\xe2\x80\x9d and \xe2\x80\x9cto hunt wild hogs.\xe2\x80\x9d\nThe city concedes that \xe2\x80\x9cneither the State of Florida nor the City has enacted a generally\napplicable ban on the killing of animals.\xe2\x80\x9d It asserts, however, that animal sacrifice is \xe2\x80\x9cdifferent\xe2\x80\x9d\nfrom the animal killings that are permitted by law. According to the city, it is \xe2\x80\x9cself-evident\xe2\x80\x9d that\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 301\nkilling animals for food is \xe2\x80\x9cimportant\xe2\x80\x9d; the eradication of insects and pests is \xe2\x80\x9cobviously justified\xe2\x80\x9d; and the euthanasia of excess animals \xe2\x80\x9cmakes sense.\xe2\x80\x9d These ipse dixits do not explain why\nreligion alone must bear the burden of the ordinances, when many of these secular killings fall\nwithin the city\xe2\x80\x99s interest in preventing the cruel treatment of animals.\nThe ordinances are also underinclusive with regard to the city\xe2\x80\x99s interest in public health,\nwhich is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat\xe2\x80\xa6. Neither interest is pursued by respondent with regard to conduct\nthat is not motivated by religious conviction. The health risks posed by the improper disposal\nof animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded\nit. \xe2\x80\xa6 Improper disposal is a general problem that causes substantial health risks, but which\nrespondent addresses only when it results from religious exercise\xe2\x80\xa6.\nWe conclude, in sum, that each of Hialeah\xe2\x80\x99s ordinances pursues the city\xe2\x80\x99s governmental\ninterests only against conduct motivated by religious belief. The ordinances \xe2\x80\x9cha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but\nnot upon itself.\xe2\x80\x9d Florida Star v. B.J.F., 491 U.S. 524, 542 (1989) (SCALIA, J., concurring in part\nand concurring in judgment). This precise evil is what the requirement of general applicability is\ndesigned to prevent.\nA law burdening religious practice that is not neutral or not of general application must\nundergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law\nrestrictive of religious practice must advance \xe2\x80\x9c \xe2\x80\x98interests of the highest order\xe2\x80\x99 \xe2\x80\x9d and must be\nnarrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U.S. at 628, quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The compelling interest standard that we apply once\na law fails to meet the Smith requirements is not \xe2\x80\x9cwater[ed] ... down\xe2\x80\x9d but \xe2\x80\x9creally means what\nit says.\xe2\x80\x9d Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 888. A law\nthat targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare\ncases. It follows from what we have already said that these ordinances cannot withstand this\nscrutiny.\nFirst, even were the governmental interests compelling, the ordinances are not drawn in\nnarrow terms to accomplish those interests. As we have discussed, all four ordinances are overbroad or underinclusive in substantial respects. The proffered objectives are not pursued with\nrespect to analogous non-religious conduct, and those interests could be achieved by narrower\nordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices\nto establish the invalidity of the ordinances\xe2\x80\xa6.\nRespondent has not demonstrated, moreover, that, in the context of these ordinances, its\ngovernmental interests are compelling. Where government restricts only conduct protected by\nthe First Amendment and fails to enact feasible measures to restrict other conduct producing\nsubstantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that \xe2\x80\x9ca law cannot\nbe regarded as protecting an interest \xe2\x80\x98of the highest order\xe2\x80\x99 ... when it leaves appreciable damage\nto that supposedly vital interest unprohibited.\xe2\x80\x9d Florida Star v. B.J.F., supra, 491 U.S. at 541\xe2\x80\x93\n542 (SCALIA, J., concurring in part and concurring in judgment) \xe2\x80\xa6 As we show above, the\nordinances are underinclusive to a substantial extent with respect to each of the interests that\nrespondent has asserted, and it is only conduct motivated by religious conviction that bears the\nweight of the governmental restrictions. There can be no serious claim that those interests justify\nthe ordinances.\nThe Free Exercise Clause commits government itself to religious tolerance, and upon even\nslight suspicion that proposals for state intervention stem from animosity to religion or distrust\nof its practices, all officials must pause to remember their own high duty to the Constitution and\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c302 Religion in the Law\nto the rights it secures. Those in office must be resolute in resisting importunate demands and\nmust ensure that the sole reasons for imposing the burdens of law and regulation are secular.\nLegislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a\nreligion or its practices. The laws here in question were enacted contrary to these constitutional\nprinciples, and they are void. Reversed.\nJustice SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in\nthe judgment.\nThe Court analyzes the \xe2\x80\x9cneutrality\xe2\x80\x9d and the \xe2\x80\x9cgeneral applicability\xe2\x80\x9d of the Hialeah ordinances in separate sections and allocates various invalidating factors to one or the other of those\nsections. If it were necessary to make a clear distinction between the two terms, I would draw a\nline somewhat different from the Court\xe2\x80\x99s. But I think it is not necessary, and would frankly\nacknowledge that the terms are not only \xe2\x80\x9cinterrelated,\xe2\x80\x9d but substantially overlap.\n\xe2\x80\xa6In my view, the defect of lack of neutrality applies primarily to those laws that by their\nterms impose disabilities on the basis of religion (e.g., a law excluding members of a certain sect\nfrom public benefits, \xe2\x80\xa6 whereas the defect of lack of general applicability applies primarily to\nthose laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment. But certainly a\nlaw that is not of general applicability can be considered \xe2\x80\x9cnonneutral\xe2\x80\x9d; and certainly no law\nthat is nonneutral (in the relevant sense) can be thought to be of general applicability\xe2\x80\xa6\nJustice SOUTER, concurring in part and concurring in the judgment.\n\xe2\x80\xa6Because prohibiting religious exercise is the object of the laws at hand, this case does not\npresent the more difficult issue addressed in our last free-exercise case, Employment Div., Dept.\nof Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which announced the rule that a\n\xe2\x80\x9cneutral, generally applicable\xe2\x80\x9d law does not run afoul of the Free Exercise Clause even when it\nprohibits religious exercise in effect. The Court today refers to that rule in dicta, and despite my\ngeneral agreement with the Court\xe2\x80\x99s opinion \xe2\x80\xa6 I have doubts about whether the Smith rule merits adherence. I write separately to explain why the Smith rule is not germane to this case and to\nexpress my view that, in a case presenting the issue, the Court should re-examine the rule Smith\ndeclared\xe2\x80\xa6.\nThough Smith used the term \xe2\x80\x9cneutrality\xe2\x80\x9d without a modifier, the rule it announced plainly\nassumes that free-exercise neutrality is of the formal sort. Distinguishing between laws whose\n\xe2\x80\x9cobject\xe2\x80\x9d is to prohibit religious exercise and those that prohibit religious exercise as an \xe2\x80\x9cincidental effect,\xe2\x80\x9d Smith placed only the former within the reaches of the Free Exercise Clause; the\nlatter, laws that satisfy formal neutrality, Smith would subject to no free-exercise scrutiny at all,\neven when they prohibit religious exercise in application. The four Justices who rejected the\nSmith rule, by contrast, read the Free Exercise Clause as embracing what I have termed substantive neutrality. The enforcement of a law \xe2\x80\x9cneutral on its face,\xe2\x80\x9d they said, may \xe2\x80\x9cnonetheless offend [the Free Exercise Clause\xe2\x80\x99s] requirement for government neutrality if it unduly burdens the\nfree exercise of religion.\xe2\x80\x9d Id., at 896 (opinion of O\xe2\x80\x99CONNOR, J., joined by Brennan, Marshall,\nand BLACKMUN, JJ.). The rule these Justices saw as flowing from free-exercise neutrality, in\ncontrast to the Smith rule, \xe2\x80\x9crequir[es] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to\nachieve that interest.\xe2\x80\x9d\nThe proposition for which the Smith rule stands, then, is that formal neutrality, along with\ngeneral applicability, are sufficient conditions for constitutionality under the Free Exercise\nClause\xe2\x80\xa6.\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 303\n[T]his is far from a representative free-exercise case. While, as the Court observes, the Hialeah City Council has provided a rare example of a law actually aimed at suppressing religious\nexercise, Smith was typical of our free-exercise cases, involving as it did a formally neutral, generally applicable law. The rule Smith announced, however, was decidedly untypical of the cases\ninvolving the same type of law. Because Smith left those prior cases standing, we are left with a\nfree-exercise jurisprudence in tension with itself\xe2\x80\xa6\nIn developing standards to judge the enforceability of formally neutral, generally applicable\nlaws against the mandates of the Free Exercise Clause, the Court has addressed the concepts of\nneutrality and general applicability by indicating, in language hard to read as not foreclosing the\nSmith rule, that the Free Exercise Clause embraces more than mere formal neutrality, and that\nformal neutrality and general applicability are not sufficient conditions for free-exercise constitutionality.\xe2\x80\xa6\nNot long before the Smith decision, indeed, the Court specifically rejected the argument that\n\xe2\x80\x9cneutral and uniform\xe2\x80\x9d requirements for governmental benefits need satisfy only a reasonableness standard, in part because \xe2\x80\x9c[s]uch a test has no basis in precedent.\xe2\x80\x9d Hobbie v. Unemployment Appeals Comm\xe2\x80\x99n of Fla., 480 U.S. 136, 141 (1987). Rather, we have said, \xe2\x80\x9c[o]ur cases\nhave established that \xe2\x80\x98[t]he free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.\xe2\x80\x99 \xe2\x80\x9d Swaggart Ministries, 493 U.S. at 384\xe2\x80\x93385.\nThus we have applied the same rigorous scrutiny to burdens on religious exercise resulting\nfrom the enforcement of formally neutral, generally applicable laws as we have applied to burdens caused by laws that single out religious exercise: \xe2\x80\x9c \xe2\x80\x98only those interests of the highest order\nand those not otherwise served can overbalance legitimate claims to the free exercise of religion.\xe2\x80\x99\n\xe2\x80\x9d McDaniel v. Paty, 435 U.S. at 628 (plurality opinion) (quoting Yoder, 406 U.S. at 215). \xe2\x80\xa6\nOther cases in which the Court has applied heightened scrutiny to the enforcement of formally\nneutral, generally applicable laws that burden religious exercise include Hernandez v. Commissioner, supra, 490 U.S. at 699; Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829,\n835 (1989); Hobbie v. Unemployment Appeals Comm\xe2\x80\x99n, 480 U.S. at 141; Bob Jones Univ. v.\nUnited States, 461 U.S. 574, 604 (1983); United States v. Lee, 455 U.S. 252, 257\xe2\x80\x93258 (1982);\nThomas, 450 U.S. at 718; Sherbert v. Verner, 374 U.S. 398, 403 (1963); and Cantwell v. Connecticut, 310 U.S. 296, 304\xe2\x80\x93307 (1940).\nThough Smith sought to distinguish the free-exercise cases in which the Court mandated\nexemptions from secular laws of general application, I am not persuaded. Wisconsin v. Yoder,\nand Cantwell v. Connecticut, according to Smith, were not true free-exercise cases but \xe2\x80\x9chybrid[s]\xe2\x80\x9d involving \xe2\x80\x9cthe Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents ... to direct the education\nof their children.\xe2\x80\x9d Smith, 494 U.S. at 881, 882. Neither opinion, however, leaves any doubt that\n\xe2\x80\x9cfundamental claims of religious freedom [were] at stake.\xe2\x80\x9d Yoder, 406 U.S. at 221. See also\nCantwell, 310 U.S. at 303\xe2\x80\x93307\xe2\x80\xa6.\nAs for the cases on which Smith primarily relied as establishing the rule it embraced, Reynolds v. United States, 98 U.S. 145 (1879), and Minersville School Dist. v. Gobitis, 310 U.S. 586\n(1940), see Smith, 494 U.S. at 879, their subsequent treatment by the Court would seem to\nrequire rejection of the Smith rule. Reynolds, which in upholding the polygamy conviction of a\nMormon stressed the evils it saw as associated with polygamy, see 98 U.S. at 166 (\xe2\x80\x9cpolygamy\nleads to the patriarchal principle, and ... fetters the people in stationary despotism\xe2\x80\x9d); id., at 165,\n168, has been read as consistent with the principle that religious conduct may be regulated by\ngeneral or targeting law only if the conduct \xe2\x80\x9cpose[s] some substantial threat to public safety,\npeace or order.\xe2\x80\x9d Sherbert v. Verner, 374 U.S. at 403\xe2\x80\xa6 And Gobitis, after three Justices who\noriginally joined the opinion renounced it for disregarding the government\xe2\x80\x99s constitutional obligation \xe2\x80\x9cto accommodate itself to the religious views of minorities,\xe2\x80\x9d Jones v. Opelika, 316 U.S.\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c304 Religion in the Law\n584, 624 (1942) (opinion of Black, Douglas, and Murphy, JJ.), was explicitly overruled in West\nVirginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943)\xe2\x80\xa6\n\xe2\x80\xa6 In sum, it seems to me difficult to escape the conclusion that, whatever Smith\xe2\x80\x99s virtues,\nthey do not include a comfortable fit with settled law\xe2\x80\xa6.\nSmith presents not the usual question of whether to follow a constitutional rule, but the\nquestion of which constitutional rule to follow, for Smith refrained from overruling prior freeexercise cases that contain a free-exercise rule fundamentally at odds with the rule Smith declared. Smith, indeed, announced its rule by relying squarely upon the precedent of prior cases.\nSee 494 U.S. at 878 (\xe2\x80\x9cOur decisions reveal that the ... reading\xe2\x80\x9d of the Free Exercise Clause\ncontained in the Smith rule \xe2\x80\x9cis the correct one\xe2\x80\x9d). Since that precedent is nonetheless at odds with\nthe Smith rule, as I have discussed above, the result is an intolerable tension in free-exercise\nlaw\xe2\x80\xa6\nAs for text, Smith did not assert that the plain language of the Free Exercise Clause compelled its rule, but only that the rule was \xe2\x80\x9ca permissible reading\xe2\x80\x9d of the Clause. Ibid. Suffice it\nto say that a respectable argument may be made that the pre-Smith law comes closer to fulfilling\nthe language of the Free Exercise Clause than the rule Smith announced. \xe2\x80\x9c[T]he Free Exercise\nClause ..., by its terms, gives special protection to the exercise of religion,\xe2\x80\x9d Thomas, 450 U.S. at\n713, specifying an activity and then flatly protecting it against government prohibition. The\nClause draws no distinction between laws whose object is to prohibit religious exercise and laws\nwith that effect, on its face seemingly applying to both.\nNor did Smith consider the original meaning of the Free Exercise Clause, though overlooking the opportunity was no unique transgression. Save in a handful of passing remarks, the\nCourt has not explored the history of the Clause since its early attempts in 1879 and 1890, see\nReynolds v. United States, 98 U.S. at 162\xe2\x80\x93166, and Davis v. Beason, 133 U.S. 333, 342 (1890),\nattempts that recent scholarship makes clear were incomplete. See generally McConnell, The\nOrigins and Historical Understanding of Free Exercise of Religion, 103 Harv.L.Rev. 1409\n(1990). The curious absence of history from our free-exercise decisions creates a stark contrast\nwith our cases under the Establishment Clause, where historical analysis has been so prominent.\nThis is not the place to explore the history that a century of free-exercise opinions have\noverlooked, and it is enough to note that, when the opportunity to reexamine Smith presents\nitself, we may consider recent scholarship raising serious questions about the Smith rule\xe2\x80\x99s consonance with the original understanding and purpose of the Free Exercise Clause\xe2\x80\xa6. There appears to be a strong argument \xe2\x80\xa6 that the Clause was originally understood to preserve a right\nto engage in activities necessary to fulfill one\xe2\x80\x99s duty to one\xe2\x80\x99s God, unless those activities threatened the rights of others or the serious needs of the State. \xe2\x80\xa6 The scholarship on the original\nunderstanding of the Free Exercise Clause is, to be sure, not uniform. \xe2\x80\xa6 And there are differences of opinion as to the weight appropriately accorded original meaning. But whether or not\none considers the original designs of the Clause binding, the interpretive significance of those\ndesigns surely ranks in the hierarchy of issues to be explored in resolving the tension inherent in\nfree-exercise law as it stands today\xe2\x80\xa6.\nJustice BLACKMUN, with whom Justice O\xe2\x80\x99CONNOR joins, concurring in the judgment.\n\xe2\x80\xa6I write separately to emphasize that the First Amendment\xe2\x80\x99s protection of religion extends\nbeyond those rare occasions on which the government explicitly targets religion (or a particular\nreligion) for disfavored treatment, as is done in this case. In my view, a statute that burdens the\nfree exercise of religion \xe2\x80\x9cmay stand only if the law in general, and the State\xe2\x80\x99s refusal to allow a\nreligious exemption in particular, are justified by a compelling interest that cannot be served by\nless restrictive means.\xe2\x80\x9d Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.\n872, 907 (1990) (dissenting opinion). The Court, however, applies a different test. It applies the\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 305\ntest announced in Smith, under which \xe2\x80\x9ca law that is neutral and of general applicability need\nnot be justified by a compelling governmental interest even if the law has the incidental effect of\nburdening a particular religious practice.\xe2\x80\x9d I continue to believe that Smith was wrongly decided\xe2\x80\xa6.\nWhen the State enacts legislation that intentionally or unintentionally places a burden upon\nreligiously motivated practice, it must justify that burden by \xe2\x80\x9cshowing that it is the least restrictive means of achieving some compelling state interest.\xe2\x80\x9d Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981). See also Wisconsin v. Yoder, 406 U.S. 205,\n215 (1972) \xe2\x80\xa6\nWhen a law discriminates against religion as such, as do the ordinances in this case, it automatically will fail strict scrutiny under Sherbert v. Verner, 374 U.S. 398, 402\xe2\x80\x93403, 407 (1963)\n(holding that governmental regulation that imposes a burden upon religious practice must be\nnarrowly tailored to advance a compelling state interest). This is true because a law that targets\nreligious practice for disfavored treatment both burdens the free exercise of religion and, by\ndefinition, is not precisely tailored to a compelling governmental interest.\nThus, unlike the majority, I do not believe that \xe2\x80\x9c[a] law burdening religious practice that is\nnot neutral or not of general application must undergo the most rigorous of scrutiny.\xe2\x80\x9d In my\nview, regulation that targets religion in this way, ipso facto, fails strict scrutiny. It is for this reason\nthat a statute that explicitly restricts religious practices violates the First Amendment\xe2\x80\xa6.\nA harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that\nevery Member of the Court concurs in that result, does not necessarily reflect this Court\xe2\x80\x99s views\nof the strength of a State\xe2\x80\x99s interest in prohibiting cruelty to animals. This case does not present,\nand I therefore decline to reach, the question whether the Free Exercise Clause would require a\nreligious exemption from a law that sincerely pursued the goal of protecting animals from cruel\ntreatment. The number of organizations that have filed amicus briefs on behalf of this interest,*\nhowever, demonstrates that it is not a concern to be treated lightly.\n\nLukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c306 Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 307\n\nPart One and a Half: In re COVID-19\nIn early 2020, a serious respiratory illness known as COVID-19 spread throughout\nworld. By August of 2021, there had been nearly 200 million diagnosed cases with\nover 4 million deaths attributed to the disease. Over 600 thousand people succumbed\nin the United States alone. Initially, health experts believed transmission occurred\nthrough the touch of contaminated surfaces, but they eventually concluded that\nCOVID was airborne.\nIn the late winter and spring of 2020, when COVID began spreading across the\nUnited States and before any vaccines were available, many states and municipalities\ninstituted restrictive public health measures in an attempt to slow transmission. These\nincluded closures or serious capacity restrictions for government buildings as well as\nfor public accommodations such as hotels, restaurants, and theaters. In \xe2\x80\x9cessential\xe2\x80\x9d\nbusinesses such as grocery stores, masks and physical distancing were required.\nCities and states also ordered churches to suspend or limit in-person gatherings due\nto the transmission risk posed by large groups of people talking and singing in close\nproximity. Many churches complied, but some protested publicly. Others took their\nprotests to state and federal court, seeking redress under the free exercise clause of the\nFirst Amendment to the United States Constitution.\nThe churches sought immediate relief in the form of preliminary injunctions and\ntemporary restraining orders to freeze the restrictions until the courts determined their\nultimate constitutionality. Restraining orders are emergency decrees (usually short in\nduration) to prevent imminent harm against a party. Preliminary injunctions last\nthroughout the life of a lawsuit until the dispute is finally resolved by the court. Parties\ngenerally seek both remedies at the very start of litigation. There is, at most, some expedited briefing and a short hearing before the court decides what to do. The timeline\nfor all of this is extremely short. Everything happens very quickly.\nThe procedural timeline of the first case excerpted below is a good example of how\nquickly things can move. On October 6, 2020, New York Governor Andrew Quomo\nissued Executive Order 202.68, which restricted the operation of businesses and\nchurches in some areas of New York City, limiting their capacity to accept patrons,\ncustomers, or congregants. On October 8, the Roman Catholic Diocese of Brooklyn\nfiled suit, seeking a temporary restraining and preliminary injunction against the Governor\xe2\x80\x99s order. On October 9, just three days after Cuomo issued his order, Judge Eric\nKomitee of the federal Eastern District of New York denied the requested restraining\norder.1 On October 16, Judge Nicholas Garaufis of the same court denied the Diocese\xe2\x80\x99s\ninjunction request.2\nThe Diocese immediately filed a notice of appeal to the federal Second Circuit\nCourt of Appeals. Not only did they appeal the lower court\xe2\x80\x99s denials of their restraining\norder and injunction motions, but they also asked the Second Circuit to issue an \xe2\x80\x9cemergency injunction pending appeal\xe2\x80\x9d of their own that would have the same effect of stopping Governor Cuomo from enforcing his executive order. On November 9, the Second Circuit rejected this request, but did grant the Diocese\xe2\x80\x99s request for expedited appeal.3\nRoman Catholic Diocese of Brooklyn v. Cuomo, 493 F.Supp.3d 168 (E.D.N.Y 2020).\nRoman Catholic Diocese of Brooklyn v. Cuomo, 495 F.Supp.3d 118 (E.D.N.Y. 2020).\n3 Agudath Israel of America v. Cuomo, 980 F.3d 222 (CA2 2020). The Diocese\xe2\x80\x99s case was\nconsolidated with a similar lawsuit filed at the same time by a group of Jewish synagogues.\n1\n2\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c308 Religion in the Law\n\nOn November 12, the Diocese then filed a 50-page application for \xe2\x80\x9cextraordinary\nwrit of injunction\xe2\x80\x9d to the U.S. Supreme Court, and submitted it to Justice Stephen\nBreyer, who is \xe2\x80\x9cCircuit Justice\xe2\x80\x9d over the Second Circuit.4 Justice Breyer gave Governor\nCuomo six days to respond, and on November 18, Cuomo filed a 135-page brief arguing in defense of the lower courts\xe2\x80\x99 decisions. The Diocese filed a 49-page reply the\nnext day.\nWithout any further briefing or oral argument, the Supreme Court issued a per\ncuriam order on November 25 granting the Diocese\xe2\x80\x99s requested injunction pending its\nappeal in the Second Circuit. The Court ordered Governor Cuomo not to enforce his\nexecutive order against the church until the lower court decided the case and either\nparty had a chance to submit a formal petition for writ of certiorari to the Supreme\nCourt. In addition to the Court\xe2\x80\x99s brief, unsigned opinion, Chief Justice John Roberts\nand Justices Neil Gorsuch, Brett Kavanaugh, Sonya Sotomayor, and Breyer all filed\nseparate concurring or dissenting opinions.\nIt can take many, many years cases filed in state or federal trial courts to reach the\nU.S. Supreme Court, and the Court grants review to very few. Moreover, the time between a grant of certiorari and a ruling on the merits can take at least six months,\nusually more, with extensive briefing and oral argument in between. The Roman Catholic Diocese of Brooklyn\xe2\x80\x99s case reached the Court in less than two months.\nThe purpose of relating all of this procedure is to illustrate how the Supreme\nCourt\xe2\x80\x99s so-called \xe2\x80\x9cshadow docket\xe2\x80\x9d works.5 On the shadow docket, parties ask the\nCourt for emergency relief or some kind of special procedural order in ongoing lower\ncourt litigation. The orders in shadow docket cases can be very powerful. In some\ncases, the Court will \xe2\x80\x9cstay\xe2\x80\x9d a lower court\xe2\x80\x99s ruling until an appeal is heard. In other\ncases, the Court will lift a stay issued by a lower court, allowing things, like the death\npenalty, to proceed. Or, like in the Diocese\xe2\x80\x99s case, the Court will enjoin a party from\nacting until some designated condition is met or until litigation has run its course.\nSometimes the Court summarily reverses lower court rulings and tells them to do the\ncase over. By its own rules and precedent, the Court considers all of these things to be\n\xe2\x80\x9cdrastic and extraordinary remedies\xe2\x80\x9d only appropriate when there is \xe2\x80\x9cimperative public importance.\xe2\x80\x9d6\nUnlike the merits docket, where certiorari is formally granted on extensive written\nrequest, complete briefs are submitted, and oral arguments are heard (sometimes more\nthan once), the shadow docket moves very quickly and with little transparency. Orders\nin shadow docket cases are usually brief and unsigned. No rule requires the justices to\nexplain their reasoning for shadow docket orders and they rarely do, leaving the parties\nand the public to wonder what law or logic \xe2\x80\x93 if any \xe2\x80\x93 led the Court to decide the way\nit did.\nBecause of this lack of transparency and elaboration, shadow docket orders are of\nquestionable precedential value in other cases. Obviously, orders with no explanation\nat all should not be binding because it is impossible for lower courts to apply rules and\n\nFor a full list of filings in this case before the Supreme Court, see Roman Catholic Diocese\nof Brooklyn v. Cuomo, SCOTUSblog.com, https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-brooklyn-new-york-v-cuomo/.\n5 See William Baude, Foreword: The Supreme Court\xe2\x80\x99s Shadow Docket, 9 NYU J. L. Lib. 1\n(2015).\n6 See Stephen I. Vladek, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev.\n123 (2019).\n4\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 309\n\nreasoning they cannot read. However, some shadow docket orders come with longer\nexplanations, or lengthy concurrences and dissents. Of what value are these? Are lower\ncourts bound to follow them? There is no consensus among the lower federal courts,\nthough they do sometimes treat shadow docket orders as binding.7 For its part, the\nSupreme Court has said that its \xe2\x80\x9csummary dispositions\xe2\x80\x9d and other non-merits rulings\ncarry less weight than full rulings on the merits.8\nNow back to COVID-19. The cases that follow all deal with important issues of\npublic health, executive power, and religious liberty under the free exercise clause of\nthe First Amendment. And, they all were subject to the Court\xe2\x80\x99s two most recent landmark free exercise cases: Employment Division v. Smith and Church of the Lukumi\nBabalu Aye v. Hialeah. At least when litigation began, that is.\nRecall that the Court established two key rules for the free exercise clause in those\ncases. In Smith, it said that neutral, generally applicable laws that only incidentally\nburden religious exercise should be subject to rational basis review and not considered\npresumptively unconstitutional. In Hialeah, the Court said that non-neutral laws targeting specific religious groups or practices should be subject to strict scrutiny, which\nrequires the government to prove a compelling purpose and to show that there were\nno viable less restrictive means to accomplish its goals.\nThe question in each of the following cases is whether the standard of Smith or the\nstandard of Hialeah should apply to the public health executive orders issued by governors trying to manage the spread and harm caused by COVID-19. Were the executive orders neutral? If not, were they justified by compelling interests and were they\nappropriately tailored to the situation?\nThe Court\xe2\x80\x99s unusual handling of these cases is why they have their own Part. They\nare all shadow docket rulings. In none of the cases did the parties submit full merits\nbriefs or get a chance to argue their sides before the justices themselves. The justices\ndid not even meet together to debate their positions. The Court decides shadow docket\ncases outside the normal in-person conference procedure, with opinions (if any) circulated via clerks in a very short span of time.\nThis matters because each case includes lengthy written opinions from many of the\njustices, and these opinions apply cases like Smith and Hialeah to a public health crisis\nof a magnitude not seen since the flu pandemic of the early 1900s. And, critically, some\nof the justices \xe2\x80\x93 on their own initiative \xe2\x80\x93 attempt to carve new doctrinal paths in the\narea of First Amendment free exercise law that arguably depart from established precedent, thus potentially muddying the water for lower courts.\n\nSee Roe v. Department of Defense, 947 F.3d 207, 232 (CA4 2020)(referring to Trump v.\nInt\xe2\x80\x99l Refugee Assistance Project, 137 S.C.t 2080 (U.S. 2017) \xe2\x80\x93 a partial stay of a lower\ncourt\xe2\x80\x99s injunction \xe2\x80\x93 as \xe2\x80\x9cbinding precedent.\xe2\x80\x9d).\n8 See Illinois State Bd. Of Elections v. Social Workers Party, 440 U.S. 173, 180 (1979) (summary dispositions \xe2\x80\x9chave considerably less precedential value than an opinion on the merits\xe2\x80\x9d); and Hicks v. Miranda, 422 U.S. 332, 344 (1975) (summary dispositions are only binding until later \xe2\x80\x9cdoctrinal developments indicate otherwise.\xe2\x80\x9d).\n7\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c310 Religion in the Law\n\n141 S.Ct. 63\nSupreme Court of the United States\n\nRoman Catholic Diocese v. Cuomo\nNovember 25, 2020\nPER CURIAM.\nThe application[s] for injunctive relief presented to Justice BREYER and by him referred to\nthe Court is granted. Respondent is enjoined from enforcing Executive Order 202.68\xe2\x80\x99s 10- and\n25-person occupancy limits on applicant[s] pending disposition of the appeal in the United States\nCourt of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari,\nif such writ is timely sought\xe2\x80\xa6.\nThis emergency application and another, Agudath Israel of America, et al. v. Cuomo, No.\n20A90, present the same issue, and this opinion addresses both cases.\nBoth applications seek relief from an Executive Order issued by the Governor of New York\nthat imposes very severe restrictions on attendance at religious services in areas classified as\n\xe2\x80\x9cred\xe2\x80\x9d or \xe2\x80\x9corange\xe2\x80\x9d zones. In red zones, no more than 10 persons may attend each religious\nservice, and in orange zones, attendance is capped at 25. The two applications, one filed by the\nRoman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated\nentities, contend that these restrictions violate the Free Exercise Clause of the First Amendment,\nand they ask us to enjoin enforcement of the restrictions while they pursue appellate review.\nCiting a variety of remarks made by the Governor, Agudath Israel argues that the Governor\nspecifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red\nand orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and\nAgudath Israel maintain that the regulations treat houses of worship much more harshly than\ncomparable secular facilities. And they tell us without contradiction that they have complied\nwith all public health guidance, have implemented additional precautionary measures, and have\noperated at 25% or 33% capacity for months without a single outbreak.\nThe applicants have clearly established their entitlement to relief pending appellate review.\nThey have shown that their First Amendment claims are likely to prevail, that denying them\nrelief would lead to irreparable injury, and that granting relief would not harm the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Because of\nthe need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential.\nLikelihood of success on the merits. The applicants have made a strong showing that the\nchallenged restrictions violate \xe2\x80\x9cthe minimum requirement of neutrality\xe2\x80\x9d to religion. Church of\nLukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). As noted by the dissent in the\ncourt below, statements made in connection with the challenged rules can be viewed as targeting\nthe \xe2\x80\x9cultra-Orthodox [Jewish] community.\xe2\x80\x9d 980 F.3d 222, 229 (CA2, Nov. 9, 2020) (Park, J.,\ndissenting). But even if we put those comments aside, the regulations cannot be viewed as neutral\nbecause they single out houses of worship for especially harsh treatment.\nIn a red zone, while a synagogue or church may not admit more than 10 persons, businesses\ncategorized as \xe2\x80\x9cessential\xe2\x80\x9d may admit as many people as they wish. And the list of \xe2\x80\x9cessential\xe2\x80\x9d\nbusinesses includes things such as acupuncture facilities, camp grounds, garages, as well as many\nwhose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. \xe2\x80\xa6 The disparate\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 311\ntreatment is even more striking in an orange zone. While attendance at houses of worship is\nlimited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.\nThese categorizations lead to troubling results. At the hearing in the District Court, a health\ndepartment official testified about a large store in Brooklyn that could \xe2\x80\x9cliterally have hundreds\nof people shopping there on any given day.\xe2\x80\x9d Yet a nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for a worship service. And the Governor\nhas stated that factories and schools have contributed to the spread of COVID\xe2\x80\x9319, \xe2\x80\xa6 but they\nare treated less harshly than the Diocese\xe2\x80\x99s churches and Agudath Israel\xe2\x80\x99s synagogues, which have\nadmirable safety records.\nBecause the challenged restrictions are not \xe2\x80\x9cneutral\xe2\x80\x9d and of \xe2\x80\x9cgeneral applicability,\xe2\x80\x9d they\nmust satisfy \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d and this means that they must be \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to serve a\n\xe2\x80\x9ccompelling\xe2\x80\x9d state interest. Church of Lukumi, 508 U.S. at 546. Stemming the spread of\nCOVID\xe2\x80\x9319 is unquestionably a compelling interest, but it is hard to see how the challenged\nregulations can be regarded as \xe2\x80\x9cnarrowly tailored.\xe2\x80\x9d They are far more restrictive than any\nCOVID\xe2\x80\x93related regulations that have previously come before the Court, much tighter than\nthose adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than\nhas been shown to be required to prevent the spread of the virus at the applicants\xe2\x80\x99 services. The\nDistrict Court noted that \xe2\x80\x9cthere ha[d] not been any COVID\xe2\x80\x9319 outbreak in any of the Diocese\xe2\x80\x99s\nchurches since they reopened,\xe2\x80\x9d and it praised the Diocese\xe2\x80\x99s record in combatting the spread of\nthe disease. It found that the Diocese had been constantly \xe2\x80\x9cahead of the curve, enforcing stricter\nsafety protocols than the State required.\xe2\x80\x9d Similarly, Agudath Israel notes that \xe2\x80\x9c[t]he Governor\ndoes not dispute that [it] ha[s] rigorously implemented and adhered to all health protocols and\nthat there has been no outbreak of COVID\xe2\x80\x9319 in [its] congregations.\xe2\x80\x9d\nNot only is there no evidence that the applicants have contributed to the spread of COVID\xe2\x80\x93\n19 but there are many other less restrictive rules that could be adopted to minimize the risk to\nthose attending religious services. Among other things, the maximum attendance at a religious\nservice could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches\nimmediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills\ncan seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000\xe2\x80\x93seat\nchurch or 400\xe2\x80\x93seat synagogue would create a more serious health risk than the many other\nactivities that the State allows.\nIrreparable harm. There can be no question that the challenged restrictions, if enforced, will\ncause irreparable harm. \xe2\x80\x9cThe loss of First Amendment freedoms, for even minimal periods of\ntime, unquestionably constitutes irreparable injury.\xe2\x80\x9d Elrod v. Burns, 427 U.S. 347, 373 (1976)\n(plurality opinion). If only 10 people are admitted to each service, the great majority of those\nwho wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And\nwhile those who are shut out may in some instances be able to watch services on television, such\nremote viewing is not the same as personal attendance. Catholics who watch a Mass at home\ncannot receive communion, and there are important religious traditions in the Orthodox Jewish\nfaith that require personal attendance.\nPublic interest. Finally, it has not been shown that granting the applications will harm the\npublic. As noted, the State has not claimed that attendance at the applicants\xe2\x80\x99 services has resulted\nin the spread of the disease. And the State has not shown that public health would be imperiled\nif less restrictive measures were imposed.\nMembers of this Court are not public health experts, and we should respect the judgment\nof those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c312 Religion in the Law\nmany from attending religious services, strike at the very heart of the First Amendment\xe2\x80\x99s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious\nexamination of the need for such a drastic measure.\nThe dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants\nmay hold services at 50% of their maximum occupancy\xe2\x80\xa6.\nThere is no justification for that proposed course of action. It is clear that this matter is not\nmoot. \xe2\x80\xa6 And injunctive relief is still called for because the applicants remain under a constant\nthreat that the area in question will be reclassified as red or orange. The Governor regularly\nchanges the classification of particular areas without prior notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services\nbefore judicial relief can be obtained. At most Catholic churches, Mass is celebrated daily, and\n\xe2\x80\x9cOrthodox Jews pray in [Agudath Israel\xe2\x80\x99s] synagogues every day.\xe2\x80\x9d Moreover, if reclassification\noccurs late in a week, as has happened in the past, there may not be time for applicants to seek\nand obtain relief from this Court before another Sabbath passes. \xe2\x80\xa6 The applicants have made\nthe showing needed to obtain relief, and there is no reason why they should bear the risk of\nsuffering further irreparable harm in the event of another reclassification.\nFor these reasons, we hold that enforcement of the Governor\xe2\x80\x99s severe restrictions on the\napplicants\xe2\x80\x99 religious services must be enjoined.\nIt is so ordered.\nJustice GORSUCH, concurring.\nGovernment is not free to disregard the First Amendment in times of crisis. At a minimum,\nthat Amendment prohibits government officials from treating religious exercises worse than\ncomparable secular activities, unless they are pursuing a compelling interest and using the least\nrestrictive means available. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,\n546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these\nlong-settled principles.\n\xe2\x80\xa6New York\xe2\x80\x99s Governor has asserted the power to assign different color codes to different\nparts of the State and govern each by executive decree. In \xe2\x80\x9cred zones,\xe2\x80\x9d houses of worship are\nall but closed\xe2\x80\x94limited to a maximum of 10 people. In the Orthodox Jewish community that\nlimit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. In \xe2\x80\x9corange zones,\xe2\x80\x9d it\xe2\x80\x99s not much different. Churches and synagogues are\nlimited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and\nsynagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.\nAt the same time, the Governor has chosen to impose no capacity restrictions on certain\nbusinesses he considers \xe2\x80\x9cessential.\xe2\x80\x9d And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain\nsignage companies, accountants, lawyers, and insurance agents are all essential too. So, at least\naccording to the Governor, it may be unsafe to go to church, but it is always fine to pick up\nanother bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points\nand meridians. Who knew public health would so perfectly align with secular convenience?\n\xe2\x80\xa6People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 313\nmay not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety\nprecautions required of \xe2\x80\x9cessential\xe2\x80\x9d businesses and perhaps more besides. The only explanation\nfor treating religious places differently seems to be a judgment that what happens there just isn\xe2\x80\x99t\nas \xe2\x80\x9cessential\xe2\x80\x9d as what happens in secular spaces. \xe2\x80\xa6 That is exactly the kind of discrimination\nthe First Amendment forbids\xe2\x80\xa6.\nWhat could justify so radical a departure from the First Amendment\xe2\x80\x99s terms and long-settled\nrules about its application? Our colleagues offer two possible answers. Initially, some point to a\nsolo concurrence in South Bay Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020), in which\nTHE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic\xe2\x80\x99s early\nstages based on the newness of the emergency and how little was then known about the disease.\n\xe2\x80\xa6 Now, as we round out 2020 and face the prospect of entering a second calendar year living\nin the pandemic\xe2\x80\x99s shadow, that rationale has expired according to its own terms\xe2\x80\xa6.\nNot only did the South Bay concurrence address different circumstances than we now face,\nthat opinion was mistaken from the start. To justify its result, the concurrence reached back 100\nyears in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts, 197 U.S.\n11 (1905). But Jacobson hardly supports cutting the Constitution loose during a pandemic. That\ndecision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.\nStart with the mode of analysis. Although Jacobson pre-dated the modern tiers of scrutiny,\nthis Court essentially applied rational basis review to Henning Jacobson\xe2\x80\x99s challenge to a state\nlaw that, in light of an ongoing smallpox pandemic, required individuals to take a vaccine, pay\na $5 fine, or establish that they qualified for an exemption. Id., at 25, 27, 28. Rational basis\nreview is the test this Court normally applies to Fourteenth Amendment challenges, so long as\nthey do not involve suspect classifications based on race or some other ground, or a claim of\nfundamental right. Put differently, Jacobson didn\xe2\x80\x99t seek to depart from normal legal rules during\na pandemic, and it supplies no precedent for doing so. Instead, Jacobson applied what would\nbecome the traditional legal test associated with the right at issue\xe2\x80\x94exactly what the Court does\ntoday. Here, that means strict scrutiny: The First Amendment traditionally requires a State to\ntreat religious exercises at least as well as comparable secular activities unless it can meet the\ndemands of strict scrutiny\xe2\x80\x94showing it has employed the most narrowly tailored means available to satisfy a compelling state interest. Church of Lukumi, 508 U.S. at 546.\nNext, consider the right asserted. Mr. Jacobson claimed that he possessed an implied \xe2\x80\x9csubstantive due process\xe2\x80\x9d right to \xe2\x80\x9cbodily integrity\xe2\x80\x9d that emanated from the Fourteenth Amendment\nand allowed him to avoid not only the vaccine but also the $5 fine (about $140 today) and the\nneed to show he qualified for an exemption. 197 U.S. at 13\xe2\x80\x9314. This Court disagreed. But what\ndoes that have to do with our circumstances? Even if judges may impose emergency restrictions\non rights that some of them have found hiding in the Constitution\xe2\x80\x99s penumbras, it does not\nfollow that the same fate should befall the textually explicit right to religious exercise.\nFinally, consider the different nature of the restriction. In Jacobson, individuals could accept\nthe vaccine, pay the fine, or identify a basis for exemption. Id., at 12, 14. The imposition on Mr.\nJacobson\xe2\x80\x99s claimed right to bodily integrity, thus, was avoidable and relatively modest. \xe2\x80\xa6 Here,\nby contrast, the State has effectively sought to ban all traditional forms of worship in affected\n\xe2\x80\x9czones\xe2\x80\x9d whenever the Governor decrees and for as long as he chooses. Nothing in Jacobson\npurported to address, let alone approve, such serious and long-lasting intrusions into settled\nconstitutional rights. In fact, Jacobson explained that the challenged law survived only because\nit did not \xe2\x80\x9ccontravene the Constitution of the United States\xe2\x80\x9d or \xe2\x80\x9cinfringe any right granted or\nsecured by that instrument.\xe2\x80\x9d Id., at 25\xe2\x80\xa6.\nWhy have some mistaken this Court\xe2\x80\x99s modest decision in Jacobson for a towering authority\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c314 Religion in the Law\nthat overshadows the Constitution during a pandemic? In the end, I can only surmise that much\nof the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if\nthat impulse may be understandable or even admirable in other circumstances, we may not\nshelter in place when the Constitution is under attack. Things never go well when we do.\nThat leaves my colleagues to their second line of argument. \xe2\x80\xa6 Even if the churches and\nsynagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens\nwhere the plaintiffs are located. \xe2\x80\xa6 So, the reasoning goes, we should send the plaintiffs home\nwith an invitation to return later if need be.\nTo my mind, this reply only advances the case for intervention. It has taken weeks for the\nplaintiffs to work their way through the judicial system and bring their case to us. During all\nthis time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to\nassert the power to tighten them again anytime as conditions warrant. So if we dismissed this\ncase, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them\nagain. The Governor has fought this case at every step of the way. To turn away religious leaders\nbringing meritorious claims just because the Governor decided to hit the \xe2\x80\x9coff \xe2\x80\x9d switch in the\nshadow of our review would be, in my view, just another sacrifice of fundamental rights in the\nname of judicial modesty\xe2\x80\xa6.\nIt is time\xe2\x80\x94past time\xe2\x80\x94to make plain that, while the pandemic poses many grave challenges,\nthere is no world in which the Constitution tolerates color-coded executive edicts that reopen\nliquor stores and bike shops but shutter churches, synagogues, and mosques.\nJustice KAVANAUGH, concurring.\n\xe2\x80\xa6Importantly, the Court\xe2\x80\x99s orders today are not final decisions on the merits. Instead, the\nCourt simply grants temporary injunctive relief until the Court of Appeals in December, and\nthen this Court as appropriate, can more fully consider the merits\xe2\x80\xa6.\nNew York\xe2\x80\x99s restrictions on houses of worship not only are severe, but also are discriminatory. [The] caps do not apply to some secular buildings in the same neighborhoods. In a red\nzone, for example, a church or synagogue must adhere to a 10-person attendance cap, while a\ngrocery store, pet store, or big-box store down the street does not face the same restriction. In\nan orange zone, the discrimination against religion is even starker: Essential businesses and many\nnon-essential businesses are subject to no attendance caps at all.\nThe State\xe2\x80\x99s discrimination against religion raises a serious First Amendment issue and triggers heightened scrutiny, requiring the State to provide a sufficient justification for the discrimination. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 537\xe2\x80\x93538 (1993);\nEmployment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 884 (1990). But\nNew York has not sufficiently justified treating houses of worship more severely than secular\nbusinesses.\nThe State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably\nthan houses of worship. But under this Court\xe2\x80\x99s precedents, it does not suffice for a State to point\nout that, as compared to houses of worship, some secular businesses are subject to similarly\nsevere or even more severe restrictions. See Lukumi, 508 U.S. at 537\xe2\x80\x93538; Smith, 494 U.S. at\n884\xe2\x80\xa6 Rather, once a State creates a favored class of businesses, as New York has done in this\ncase, the State must justify why houses of worship are excluded from that favored class. Here,\ntherefore, the State must justify imposing a 10-person or 25-person limit on houses of worship\nbut not on favored secular businesses. See Lukumi, 508 U.S. at 537\xe2\x80\x93538; Smith, 494 U.S. at\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 315\n884. The State has not done so.\nTo be clear, the COVID\xe2\x80\x9319 pandemic remains extraordinarily serious and deadly. And at\nleast until vaccines are readily available, the situation may get worse in many parts of the United\nStates. The Constitution \xe2\x80\x9cprincipally entrusts the safety and the health of the people to the politically accountable officials of the States.\xe2\x80\x9d South Bay, 140 S.Ct., at 1613 (ROBERTS, C. J.,\nconcurring in denial of application for injunctive relief). Federal courts therefore must afford\nsubstantial deference to state and local authorities about how best to balance competing policy\nconsiderations during the pandemic. But judicial deference in an emergency or a crisis does not\nmean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.\nIn light of the devastating pandemic, I do not doubt the State\xe2\x80\x99s authority to impose tailored\nrestrictions\xe2\x80\x94even very strict restrictions\xe2\x80\x94on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. \xe2\x80\xa6 New York\xe2\x80\x99s restrictions discriminate\nagainst religion by treating houses of worship significantly worse than some secular businesses\xe2\x80\xa6.\nCHIEF JUSTICE ROBERTS, dissenting.\nI would not grant injunctive relief under the present circumstances. There is simply no need\nto do so. After the Diocese and Agudath Israel filed their applications, the Governor revised the\ndesignations of the affected areas. None of the houses of worship identified in the applications\nis now subject to any fixed numerical restrictions. At these locations, the applicants can hold\nservices with up to 50% of capacity, which is at least as favorable as the relief they currently\nseek.\nNumerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem\nunduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause. It\nis not necessary, however, for us to rule on that serious and difficult question at this time. The\nGovernor might reinstate the restrictions. But he also might not. And it is a significant matter to\noverride determinations made by public health officials concerning what is necessary for public\nsafety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions\nthe applicants can return to this Court, and we could act quickly on their renewed applications.\nAs things now stand, however, the applicants have not demonstrated their entitlement to \xe2\x80\x9cthe\nextraordinary remedy of injunction.\xe2\x80\x9d Nken v. Holder, 556 U.S. 418, 428 (2009). An order telling the Governor not to do what he\xe2\x80\x99s not doing fails to meet that stringent standard\xe2\x80\xa6.\nTo be clear, I do not regard my dissenting colleagues as \xe2\x80\x9ccutting the Constitution loose\nduring a pandemic,\xe2\x80\x9d yielding to \xe2\x80\x9ca particular judicial impulse to stay out of the way in times of\ncrisis,\xe2\x80\x9d or \xe2\x80\x9cshelter[ing] in place when the Constitution is under attack.\xe2\x80\x9d (opinion of GORSUCH,\nJ.). They simply view the matter differently after careful study and analysis reflecting their best\nefforts to fulfill their responsibility under the Constitution.\nOne solo concurrence today takes aim at my concurring opinion in South Bay. (opinion of\nGORSUCH, J.). Today\xe2\x80\x99s concurrence views that opinion with disfavor because \xe2\x80\x9c[t]o justify its\nresult, [it] reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson\nv. Massachusetts, 197 U.S. 11 (1905).\xe2\x80\x9d Today\xe2\x80\x99s concurrence notes that Jacobson \xe2\x80\x9cwas the first\ncase South Bay cited on the substantive legal question before the Court,\xe2\x80\x9d and \xe2\x80\x9cit was the only\ncase cited involving a pandemic.\xe2\x80\x9d And it suggests that, in the wake of South Bay, some have\n\xe2\x80\x9cmistaken this Court\xe2\x80\x99s modest decision in Jacobson for a towering authority that overshadows\nthe Constitution during a pandemic.\xe2\x80\x9d But while Jacobson occupies three pages of today\xe2\x80\x99s concurrence, it warranted exactly one sentence in South Bay. What did that one sentence say? Only\nthat \xe2\x80\x9c[o]ur Constitution principally entrusts \xe2\x80\x98[t]he safety and the health of the people\xe2\x80\x99 to the\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c316 Religion in the Law\npolitically accountable officials of the States \xe2\x80\x98to guard and protect.\xe2\x80\x99 \xe2\x80\x9d South Bay, 140 S.Ct., at\n1613 (ROBERTS, C. J., concurring) \xe2\x80\xa6 It is not clear which part of this lone quotation today\xe2\x80\x99s\nconcurrence finds so discomfiting. The concurrence speculates that there is so much more to the\nsentence than meets the eye, invoking\xe2\x80\x94among other interpretive tools\xe2\x80\x94the new \xe2\x80\x9cfirst case\ncited\xe2\x80\x9d rule. But the actual proposition asserted should be uncontroversial, and the concurrence\nmust reach beyond the words themselves to find the target it is looking for.\nJustice BREYER, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.\nNew York regulations designed to fight the rapidly spreading\xe2\x80\x94and, in many cases, fatal\xe2\x80\x94\nCOVID\xe2\x80\x9319 virus permit the Governor to identify hot spots where infection rates have spiked\nand to designate those hot spots as red zones, the immediately surrounding areas as orange\nzones, and the outlying areas as yellow zones. The regulations impose restrictions within these\nzones (with the strictest restrictions in the red zones and the least strict restrictions in the yellow\nzones) to curb transmission of the virus and prevent spread into nearby areas. In October, the\nGovernor designated red, orange, and yellow zones in parts of Brooklyn and Queens\xe2\x80\xa6.\nBoth the Roman Catholic Diocese of Brooklyn and Agudath Israel of America (together\nwith Agudath Israel of Kew Garden Hills and its employee and Agudath Israel of Madison and\nits rabbi) brought lawsuits against the Governor of New York. They claimed that the fixedcapacity restrictions of 10 people in red zones and 25 people in orange zones were too strict\xe2\x80\x94\nto the point where they violated the First Amendment\xe2\x80\x99s protection of the free exercise of religion\xe2\x80\xa6.\nAfter receiving evidence and hearing witness testimony, the District Court in the Diocese\xe2\x80\x99s\ncase found that New York\xe2\x80\x99s regulations were \xe2\x80\x9ccrafted based on science and for epidemiological\npurposes.\xe2\x80\x9d It wrote that they treated \xe2\x80\x9creligious gatherings ... more favorably than similar gatherings\xe2\x80\x9d with comparable risks, such as \xe2\x80\x9cpublic lectures, concerts or theatrical performances.\xe2\x80\x9d\nThe court also recognized the Diocese\xe2\x80\x99s argument that the regulations treated religious gatherings less favorably than what the State has called \xe2\x80\x9cessential businesses,\xe2\x80\x9d including, for example,\ngrocery stores and banks. But the court found these essential businesses to be distinguishable\nfrom religious services and declined to \xe2\x80\x9csecond guess the State\xe2\x80\x99s judgment about what should\nqualify as an essential business.\xe2\x80\x9d The District Court denied the motion for a preliminary injunction. The Diocese appealed, and the District Court declined to issue an emergency injunction\npending that appeal. The Court of Appeals for the Second Circuit also denied the Diocese\xe2\x80\x99s\nrequest for an emergency injunction pending appeal, but it called for expedited briefing and\nscheduled a full hearing on December 18 to address the merits of the appeal. This Court, unlike\nthe lower courts, has now decided to issue an injunction that would prohibit the State from\nenforcing its fixed-capacity restrictions on houses of worship in red and orange zones while the\nparties await the Second Circuit\xe2\x80\x99s decision. I cannot agree with that decision.\nFor one thing, there is no need now to issue any such injunction. Those parts of Brooklyn\nand Queens where the Diocese\xe2\x80\x99s churches and the two applicant synagogues are located are no\nlonger within red or orange zones\xe2\x80\xa6.\nInstead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future. But, were that to occur, they could refile their applications here, by letter\nbrief if necessary. \xe2\x80\xa6 Why should this Court act now without argument or full consideration in\nthe ordinary course (and prior to the Court of Appeals\xe2\x80\x99 consideration of the matter) when there\nis no legal or practical need for it to do so? I have found no convincing answer to that question.\nFor another thing, the Court\xe2\x80\x99s decision runs contrary to ordinary governing law. We have\npreviously said that an injunction is an \xe2\x80\x9cextraordinary remedy.\xe2\x80\x9d Nken v. Holder, 556 U.S. 418,\n428 (2009). That is especially so where, as here, the applicants seek an injunction prior to full\nargument and contrary to the lower courts\xe2\x80\x99 determination\xe2\x80\xa6.\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 317\nCOVID\xe2\x80\x9319 has infected more than 12 million Americans and caused more than 250,000\ndeaths nationwide. At least 26,000 of those deaths have occurred in the State of New York, with\n16,000 in New York City alone. And the number of COVID\xe2\x80\x9319 cases is many times the number\nof deaths. The Nation is now experiencing a second surge of infections. In New York, for example, the 7-day average of new confirmed cases per day has risen from around 700 at the end\nof the summer to over 4,800 last week. Nationwide, the number of new confirmed cases per\nday is now higher than it has ever been\xe2\x80\xa6.\nAt the same time, members of the scientific and medical communities tell us that the virus\nis transmitted from person to person through respiratory droplets produced when a person or\ngroup of people talk, sing, cough, or breathe near each other. \xe2\x80\xa6 Thus, according to experts, the\nrisk of transmission is higher when people are in close contact with one another for prolonged\nperiods of time, particularly indoors or in other enclosed spaces. The nature of the epidemic, the\nspikes, the uncertainties, and the need for quick action, taken together, mean that the State has\ncountervailing arguments based upon health, safety, and administrative considerations that must\nbe balanced against the applicants\xe2\x80\x99 First Amendment challenges. That fact, along with others\nthat Justice SOTOMAYOR describes, means that the applicants\xe2\x80\x99 claim of a constitutional violation (on which they base their request for injunctive relief) is far from clear. \xe2\x80\xa6 At the same\ntime, the public\xe2\x80\x99s serious health and safety needs, which call for swift government action in ever\nchanging circumstances, also mean that it is far from clear that \xe2\x80\x9cthe balance of equities tips in\n[the applicants\xe2\x80\x99] favor,\xe2\x80\x9d or \xe2\x80\x9cthat an injunction is in the public interest.\xe2\x80\x9d Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).\nRelevant precedent suggests the same. We have previously recognized that courts must grant\nelected officials \xe2\x80\x9cbroad\xe2\x80\x9d discretion when they \xe2\x80\x9cundertake to act in areas fraught with medical\nand scientific uncertainties.\xe2\x80\x9d South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613\n(2020) (ROBERTS, C. J., concurring). That is because the \xe2\x80\x9cConstitution principally entrusts the\nsafety and the health of the people to the politically accountable officials of the States.\xe2\x80\x9d The\nelected branches of state and national governments can marshal scientific expertise and craft\nspecific policies in response to \xe2\x80\x9cchanging facts on the ground.\xe2\x80\x9d And they can do so more quickly\nthan can courts. That is particularly true of a court, such as this Court, which does not conduct\nevidentiary hearings. It is true even more so where, as here, the need for action is immediate, the\ninformation likely limited, the making of exceptions difficult, and the disease-related circumstances rapidly changing.\n\xe2\x80\xa6I see no practical need to issue an injunction to achieve these objectives. Rather, as I said,\nI can find no need for an immediate injunction\xe2\x80\xa6.\nJustice SOTOMAYOR, with whom Justice KAGAN joins, dissenting.\nAmidst a pandemic that has already claimed over a quarter million American lives, the\nCourt today enjoins one of New York\xe2\x80\x99s public health measures aimed at containing the spread\nof COVID\xe2\x80\x9319 in areas facing the most severe outbreaks. Earlier this year, this Court twice stayed\nits hand when asked to issue similar extraordinary relief. See South Bay United Pentecostal\nChurch v. Newsom, 140 S.Ct. 1613 (2020); Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct.\n2603 (2020). I see no justification for the Court\xe2\x80\x99s change of heart, and I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only\nexacerbate the Nation\xe2\x80\x99s suffering.\nSouth Bay and Calvary Chapel provided a clear and workable rule to state officials seeking\nto control the spread of COVID\xe2\x80\x9319: They may restrict attendance at houses of worship so long\nas comparable secular institutions face restrictions that are at least equally as strict. See South\nBay, 140 S.Ct., at 1613 (ROBERTS, C. J., concurring). New York\xe2\x80\x99s safety measures fall comfortably within those bounds. Like the States in South Bay and Calvary Chapel, New York\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c318 Religion in the Law\napplies \xe2\x80\x9c[s]imilar or more severe restrictions ... to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large\ngroups of people gather in close proximity for extended periods of time.\xe2\x80\x9d Likewise, New York\n\xe2\x80\x9ctreats more leniently only dissimilar activities, such as operating grocery stores, banks, and\nlaundromats, in which people neither congregate in large groups nor remain in close proximity\nfor extended periods.\xe2\x80\x9d That should be enough to decide this case.\nThe Diocese attempts to get around South Bay and Calvary Chapel by disputing New\nYork\xe2\x80\x99s conclusion that attending religious services poses greater risks than, for instance, shopping at big box stores. But the District Court rejected that argument as unsupported by the\nfactual record. Undeterred, Justice GORSUCH offers up his own examples of secular activities\nhe thinks might pose similar risks as religious gatherings, but which are treated more leniently\nunder New York\xe2\x80\x99s rules (e.g., going to the liquor store or getting a bike repaired). But Justice\nGORSUCH does not even try to square his examples with the conditions medical experts tell us\nfacilitate the spread of COVID\xe2\x80\x9319: large groups of people gathering, speaking, and singing in\nclose proximity indoors for extended periods of time. \xe2\x80\xa6 Unlike religious services, which have\nevery one of those risk factors, bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. Justices of this\nCourt play a deadly game in second guessing the expert judgment of health officials about the\nenvironments in which a contagious virus, now infecting a million Americans each week,\nspreads most easily\xe2\x80\xa6.\nThe Diocese suggests that, because New York\xe2\x80\x99s regulation singles out houses of worship by\nname, it cannot be neutral with respect to the practice of religion. Thus, the argument goes, the\nregulation must, ipso facto, be subject to strict scrutiny. It is true that New York\xe2\x80\x99s policy refers\nto religion on its face. But as I have just explained, that is because the policy singles out religious\ninstitutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them. Surely the Diocese cannot demand laxer restrictions by pointing out\nthat it is already being treated better than comparable secular institutions.\nFinally, the Diocese points to certain statements by Governor Cuomo as evidence that New\nYork\xe2\x80\x99s regulation is impermissibly targeted at religious activity\xe2\x80\x94specifically, at combatting\nheightened rates of positive COVID\xe2\x80\x9319 cases among New York\xe2\x80\x99s Orthodox Jewish community.\nThe Diocese suggests that these comments supply \xe2\x80\x9can independent basis for the application of\nstrict scrutiny.\xe2\x80\x9d I do not see how. The Governor\xe2\x80\x99s comments simply do not warrant an application of strict scrutiny under this Court\xe2\x80\x99s precedents. Just a few Terms ago, this Court declined to\napply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslimmajority countries, even though President Trump had described the Proclamation as a \xe2\x80\x9cMuslim\nBan,\xe2\x80\x9d originally conceived of as a \xe2\x80\x9ctotal and complete shutdown of Muslims entering the United\nStates until our country\xe2\x80\x99s representatives can figure out what is going on.\xe2\x80\x9d Trump v. Hawaii,\n138 S.Ct. 2392, 2417 (2018). If the President\xe2\x80\x99s statements did not show \xe2\x80\x9cthat the challenged\nrestrictions violate the \xe2\x80\x98minimum requirement of neutrality\xe2\x80\x99 to religion,\xe2\x80\x9d (quoting Lukumi, 508\nU.S. at 533), it is hard to see how Governor Cuomo\xe2\x80\x99s do.\nFree religious exercise is one of our most treasured and jealously guarded constitutional\nrights. States may not discriminate against religious institutions, even when faced with a crisis\nas deadly as this one. But those principles are not at stake today. The Constitution does not\nforbid States from responding to public health crises through regulations that treat religious\ninstitutions equally or more favorably than comparable secular institutions, particularly when\nthose regulations save lives\xe2\x80\xa6.\n\nRoman Catholic Diocese v. Cuomo, 141 S.Ct. 63 (U.S. 2020)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 319\n\n141 S.Ct. 716\nSupreme Court of the United States.\n\nSouth Bay United Pentecostal Church\nv. Newsom\nFebruary 5, 2021\nON APPLICATION FOR INJUNCTIVE RELIEF\nThe application for injunctive relief presented to Justice KAGAN and by her referred to the\nCourt is granted in part. Respondents are enjoined from enforcing the Blueprint\xe2\x80\x99s Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for\na writ of certiorari. The application is denied with respect to the percentage capacity limitations,\nand respondents are not enjoined from imposing a 25% capacity limitation on indoor worship\nservices in Tier 1. The application is denied with respect to the prohibition on singing and chanting during indoor services. This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or\nthe prohibition on singing and chanting in a generally applicable manner. Should the petition\nfor a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the\njudgment of this Court.\nJustice THOMAS and Justice GORSUCH would grant the application in full.\nJustice ALITO would grant the application with respect to all of the capacity restrictions on\nindoor worship services and the prohibition against indoor singing and chanting, and would\nstay for 30 days an injunction against the percentage attendance caps and the prohibition against\nindoor singing and chanting. Justice ALITO would have the stay lift in 30 days unless the State\ndemonstrates clearly that nothing short of those measures will reduce the community spread of\nCOVID\xe2\x80\x9319 at indoor religious gatherings to the same extent as do the restrictions the State\nenforces with respect to other activities it classifies as essential.\nCHIEF JUSTICE ROBERTS, concurring in the partial grant of application for injunctive relief.\nAs I explained the last time the Court considered this evolving case, federal courts owe\nsignificant deference to politically accountable officials with the \xe2\x80\x9cbackground, competence, and\nexpertise to assess public health.\xe2\x80\x9d South Bay United Pentecostal Church v. Newsom, 140 S.Ct.\n1613, 1614 (2020) (opinion concurring in denial of application for injunctive relief). The State\nhas concluded, for example, that singing indoors poses a heightened risk of transmitting\nCOVID\xe2\x80\x9319. I see no basis in this record for overriding that aspect of the state public health\nframework. At the same time, the State\xe2\x80\x99s present determination\xe2\x80\x94that the maximum number of\nadherents who can safely worship in the most cavernous cathedral is zero\xe2\x80\x94appears to reflect\nnot expertise or discretion, but instead insufficient appreciation or consideration of the interests\nat stake.\nI adhere to the view that the \xe2\x80\x9cConstitution principally entrusts the safety and the health of\nthe people to the politically accountable officials of the States.\xe2\x80\x9d Ibid. But the Constitution also\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c320 Religion in the Law\nentrusts the protection of the people\xe2\x80\x99s rights to the Judiciary\xe2\x80\x94not despite judges being shielded\nby life tenure but because they are. Deference, though broad, has its limits.\nJustice BARRETT, with whom Justice KAVANAUGH joins, concurring in the partial grant of\napplication for injunctive relief.\nI agree with Justice GORSUCH\xe2\x80\x99s statement, save its contention that the Court should enjoin\nCalifornia\xe2\x80\x99s prohibition on singing and chanting during indoor services. The applicants bore the\nburden of establishing their entitlement to relief from the singing ban. In my view, they did not\ncarry that burden\xe2\x80\x94at least not on this record.....\nStatement of Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join.\nOften, courts addressing First Amendment free exercise challenges face difficult questions\nabout whether a law reflects \xe2\x80\x9csubtle departures from neutrality,\xe2\x80\x9d \xe2\x80\x9creligious gerrymander[ing],\xe2\x80\x9d\nor \xe2\x80\x9cimpermissible targeting\xe2\x80\x9d of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508\nU.S. 520, 534\xe2\x80\x93535 (1993). But not here. Since the arrival of COVID\xe2\x80\x9319, California has openly\nimposed more stringent regulations on religious institutions than on many businesses. The\nState\xe2\x80\x99s spreadsheet summarizing its pandemic rules even assigns places of worship their own\nrow. At \xe2\x80\x9cTier 1,\xe2\x80\x9d applicable today in most of the State, California forbids any kind of indoor\nworship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more. \xe2\x80\xa6 Apparently, California\nis the only State in the country that has gone so far as to ban all indoor religious services.\nWhen a State so obviously targets religion for differential treatment, our job becomes that\nmuch clearer. [R]egulations like these violate the First Amendment unless the State can show\nthey are the least restrictive means of achieving a compelling government interest.\nIn cases implicating this form of \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d courts nearly always face an individual\xe2\x80\x99s\nclaim of constitutional right pitted against the government\xe2\x80\x99s claim of special expertise in a matter\nof high importance involving public health or safety. It has never been enough for the State to\ninsist on deference or demand that individual rights give way to collective interests. Of course\nwe are not scientists, but neither may we abandon the field when government officials with\nexperts in tow seek to infringe a constitutionally protected liberty. The whole point of strict\nscrutiny is to test the government\xe2\x80\x99s assertions, and our precedents make plain that it has always\nbeen a demanding and rarely satisfied standard. See Lukumi, 508 U.S. at 546. Even in times of\ncrisis\xe2\x80\x94perhaps especially in times of crisis\xe2\x80\x94we have a duty to hold governments to the Constitution.\nStill, California says it can thread the needle. It insists that religious worship is so different\nthat it demands especially onerous regulation. The State offers essentially four reasons why: It\nsays that religious exercises involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing.\nNo one before us disputes that factors like these may increase the risk of transmitting\nCOVID\xe2\x80\x9319. And no one need doubt that the State has a compelling interest in reducing that\nrisk. This Court certainly is not downplaying the suffering many have experienced in this pandemic. But California errs to the extent it suggests its four factors are always present in worship,\nor always absent from the other secular activities its regulations allow. Nor has California sought\nto explain why it cannot address its legitimate concerns with rules short of a total ban. Each of\nthe State\xe2\x80\x99s shortcomings are telltale signs this Court has long used to identify laws that fail strict\nscrutiny. See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 793 (1978) (The State\xe2\x80\x99s\nproffered \xe2\x80\x9cpurpose is belied, however, by the provisions of the statute, which are both underinclusive and overinclusive.\xe2\x80\x9d).\n\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 321\n\xe2\x80\xa6The State presumes that worship inherently involves a large number of people. Never\nmind that scores might pack into train stations or wait in long checkout lines in the businesses\nthe State allows to remain open. Never mind, too, that some worshippers may seek only to pray\nin solitude, go to confession, or study in small groups. \xe2\x80\xa6 Nor does California explain why the\nless restrictive option of limiting the number of people who may gather at one time is insufficient\nfor houses of worship, even though it has found that answer adequate for so many stores and\nbusinesses.\nNext, the State tells us that worshippers are sure to seek close physical interactions. It touts\nits mild climate, too, suggesting that worshippers might enjoy more space outdoors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their\ncustomers, whom they touch and remain near for extended periods. The State does not force\nthem or retailers to do all their business in parking lots and parks. And California allows people\nto sit in relatively close proximity inside buses too. Nor, again, does California explain why the\nnarrower options it thinks adequate in many secular settings\xe2\x80\x94such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like\xe2\x80\x94cannot suffice here. Especially when\nthose measures are in routine use in religious services across the country today.\nCalifornia worries that worship brings people together for too much time. Yet, California\ndoes not limit its citizens to running in and out of other establishments; no one is barred from\nlingering in shopping malls, salons, or bus terminals. Nor, yet again, has California explained\nwhy more narrowly tailored options, like a reasonable limit on the length of indoor religious\ngatherings, would fail to meet its concerns.\nWhen it comes to each of the first three factors, California singles out religion for worse\ntreatment than many secular activities. At the same time, the State fails to explain why narrower\noptions it finds sufficient in secular contexts do not satisfy its legitimate interests. Recently, this\nCourt made it abundantly clear that edicts like California\xe2\x80\x99s fail strict scrutiny and violate the\nConstitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020) (per\ncuriam). Today\xe2\x80\x99s order should have been needless; the lower courts in these cases should have\nfollowed the extensive guidance this Court already gave.\nIf I have a quibble with the Court\xe2\x80\x99s order, it is with how it addresses California\xe2\x80\x99s final factor,\nsinging. While the Court\xe2\x80\x99s order requires California to allow churches to open, it also permits\nCalifornia to enforce, for now, a categorical ban on singing during services. This much might\nseem understandable. California has sensibly expressed concern that singing may be a particularly potent way to transmit the disease, and it has banned singing not just at indoor worship\nservices, but at indoor private gatherings, schools, and restaurants too.\nBut, on further inspection, the singing ban may not be what it first appears. It seems California\xe2\x80\x99s powerful entertainment industry has won an exemption. So, once more, we appear to\nhave a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse\nto its faithful. See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603, 2609 (2020)\n(GORSUCH, J., dissenting from denial of application for injunction relief ).\nOnce more, too, the State has not explained how a total ban on religious singing is narrowly\ntailored to its legitimate public health concerns. Even if a full congregation singing hymns is too\nrisky, California does not explain why even a single masked cantor cannot lead worship behind\na mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from\na remote location inside a mosque as worshippers file in\xe2\x80\xa6.\nNo doubt, California will argue on remand, as it has before, that its prohibitions are merely\ntemporary because vaccinations are underway. But the State\xe2\x80\x99s \xe2\x80\x9ctemporary\xe2\x80\x9d ban on indoor worship has been in place since August 2020, and applied routinely since March. California no\nlonger asks its movie studios, malls, and manicurists to wait. And one could be forgiven for\n\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c322 Religion in the Law\ndoubting its asserted timeline. Government actors have been moving the goalposts on pandemicrelated sacrifices for months, adopting new benchmarks that always seem to put restoration of\nliberty just around the corner. As this crisis enters its second year\xe2\x80\x94and hovers over a second\nLent, a second Passover, and a second Ramadan\xe2\x80\x94it is too late for the State to defend extreme\nmeasures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition\nwhile not a single soul may enter California\xe2\x80\x99s churches, synagogues, and mosques, something\nhas gone seriously awry.\nJustice KAGAN, with whom Justice BREYER and Justice SOTOMAYOR join, dissenting.\nJustices of this Court are not scientists. Nor do we know much about public health policy.\nYet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a\nspecial exception for worship services. The majority does so even though the State\xe2\x80\x99s policies treat\nworship just as favorably as secular activities (including political assemblies) that, according to\nmedical evidence, pose the same risk of COVID transmission. Under the Court\xe2\x80\x99s injunction, the\nState must instead treat worship services like secular activities that pose a much lesser danger.\nThat mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.\nStart with the governing law. We have held time and again that the First Amendment demands \xe2\x80\x9cneutrality\xe2\x80\x9d in actions affecting religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah,\n508 U.S. 520, 532 (1993). A government cannot put limits on religious conduct if it \xe2\x80\x9cfail[s] to\nprohibit nonreligious conduct that endangers\xe2\x80\x9d the government\xe2\x80\x99s interests \xe2\x80\x9cin a similar or greater\ndegree.\xe2\x80\x9d Id., at 543. That principle, though, has a corollary: The \xe2\x80\x9cConstitution does not require\nthings which are different in fact ... to be treated in law as though they were the same.\xe2\x80\x9d Plyler v.\nDoe, 457 U.S. 202, 216 (1982). So \xe2\x80\x9cStates must treat like cases alike but may treat unlike cases\naccordingly.\xe2\x80\x9d Vacco v. Quill, 521 U.S. 793, 799 (1997); see Lukumi, 508 U.S. at 542.\nCalifornia\xe2\x80\x99s response to the COVID pandemic satisfies that neutrality rule by regulating\nworship services the same as other activities \xe2\x80\x9cwhere large groups of people [come together] in\nclose proximity for extended periods of time.\xe2\x80\x9d South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613 (2020) (ROBERTS, C. J., concurring in denial of application for\ninjunctive relief). The restricted activities include attending a worship service or political meeting;\ngoing to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the\nactivities are both religious and secular\xe2\x80\x94and many of the secular gatherings, too, are constitutionally protected. In all those communal activities, California requires mask wearing and social\ndistancing, and bars indoor singing and chanting, to reduce the risk of COVID transmission. In\naddition, the State has put limits on how many people can assemble in one indoor space\xe2\x80\x94\nwhether a church, theater, or lecture hall. Depending on COVID case and test-positivity rates,\npublic gatherings may occur only at specified occupancy levels\xe2\x80\x94for example, at 50% or 25%\nof a facility\xe2\x80\x99s capacity. And when COVID rates are highest, all those capacity limits give way to\na rule that the gathering\xe2\x80\x94again, whether religious or secular\xe2\x80\x94take place outdoors (with no\nlimits on attendance). Given California\xe2\x80\x99s mild climate, that restriction\xe2\x80\x94the one the Court today\nlifts for houses of worship alone\xe2\x80\x94does not amount to a ban on the activity. Worship services,\nalong with other gatherings, have taken place outdoors throughout this winter\nCalifornia\xe2\x80\x99s scheme homes in on these indoor gatherings because they pose a heightened\ndanger of COVID transmission. In written testimony in this case, Dr. James Watt, the Chief of\nCommunicable Diseases at the California Department of Public Health, explained: \xe2\x80\x9cThere is\nbroad consensus among epidemiologists that transmission (and thus spread) of the novel coronavirus is more likely\xe2\x80\x9d at \xe2\x80\x9c[i]ndoor public gatherings,\xe2\x80\x9d which \xe2\x80\x9cbring together [many] people\n\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 323\nfrom different households.\xe2\x80\x9d \xe2\x80\xa6 Dr. George Rutherford, a professor of epidemiology at the University of California, San Francisco School of Medicine, further elaborated on the point. He\ndescribed the \xe2\x80\x9cincreased\xe2\x80\x9d \xe2\x80\xa6 risk when gatherings \xe2\x80\x9care of an extended duration, and when there\nis a lot of verbal interaction, especially when there is group singing, chanting, or other loud\nvocalization\xe2\x80\x9d like speeches or sermons. That risk, of course, extends not only to the participants\nthemselves, but to everyone they associate with in a community.\nThe medical experts also testified about why California imposed more severe capacity limits\non gathering places like churches and theaters than on other indoor sites. The State\xe2\x80\x99s regulation\nof retail stores is less stringent, Dr. Rutherford explained, because shopping \xe2\x80\x9cinvolves less close\nproximity\xe2\x80\x9d with other people\xe2\x80\x94and for less time\xe2\x80\x94than does an indoor worship service, lecture,\nor similar event. For that reason, shoppers are \xe2\x80\x9cless likely to receive a sufficient viral load of\ndroplets\xe2\x80\x9d to contract COVID. Similarly, Dr. Rutherford observed, workplaces can have higher\ncapacity limits because employers (and, by extension, their employees) must comply with \xe2\x80\x9cdetailed, workplace-specific COVID prevention plans subject to enforcement by State labor authorities.\xe2\x80\x9d Film production studios in California, for example, must test their employees as many\nas three times a week\xe2\x80\x94a requirement that \xe2\x80\x9ccould not feasibly be applied to the congregation of\na house of worship.\xe2\x80\x9d\nGiven all that evidence, California\xe2\x80\x99s choices make good sense. The State \xe2\x80\xa6 has concluded,\nbased on essentially undisputed epidemiological findings, that congregating together indoors\nposes a special threat of contagion. So it has devised regulations to curb attendance at those\nassemblies and\xe2\x80\x94in the worst times\xe2\x80\x94to force them outdoors. Crucially, California has applied\neach of those rules equivalently to religious activities and to secular activities, including some\nwith First Amendment protection of their own. Where the State has regulated religious conduct,\nit has as well regulated \xe2\x80\x9cnonreligious conduct that endangers [its] interests in a similar\xe2\x80\x9d way.\nLukumi, 508 U.S. at 543. The only secular conduct the State treats better is the kind that its\nexperts have found does not so imperil its interests\xe2\x80\x94the kind that poses less risk of COVID\ntransmission. Nothing in that policy violates the First Amendment.\nYet the Court will not let California fight COVID as it thinks appropriate. The Court has\ndecided that the State must exempt worship services from the strictest aspect of its regulation of\npublic gatherings. No one can know, from the Court\xe2\x80\x99s 19-line order, exactly why: Is it that the\nCourt does not believe the science, or does it think even the best science must give way? In any\nevent, the result is clear: The State may not treat worship services like activities found to pose a\ncomparable COVID risk, such as political meetings or lectures. Instead, the State must treat this\none communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy,\nthe Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not\nlike ones, equivalently.\nThis is no garden-variety legal error: In forcing California to ignore its experts\xe2\x80\x99 scientific\nfindings, the Court impairs the State\xe2\x80\x99s effort to address a public health emergency. There are\ngood reasons why the Constitution \xe2\x80\x9cprincipally entrusts the safety and the health of the people\xe2\x80\x9d\nto state officials, not federal courts. South Bay, 140 S.Ct., at 1613 (ROBERTS, C. J., concurring). First among them is that judges \xe2\x80\x9clack the background, competence, and expertise to assess\npublic health.\xe2\x80\x9d To state the obvious, judges do not know what scientists and public health experts do. I am sure that, in deciding this case, every Justice carefully examined the briefs and\nread the decisions below. But I cannot imagine that any of us delved into the scientific research\non how COVID spreads, or studied the strategies for containing it. So it is alarming that the\nCourt second-guesses the judgments of expert officials, and displaces their conclusions with its\nown. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020)\n(SOTOMAYOR, J., dissenting). In the worst public health crisis in a century, this foray into\narmchair epidemiology cannot end well.\n\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c324 Religion in the Law\nAnd who knows what today\xe2\x80\x99s decision will mean for other restrictions challenged in other\ncases? The Court\xe2\x80\x99s order exempts churches only from California\xe2\x80\x99s indoor ban, leaving its capacity restrictions in place (at least for now). That is all to the good: The injunction stops short of\ngiving the churches all their requested relief. But the scope of the order raises questions. When\nare such capacity limits permissible, and when are they not? And is an indoor ban never allowed,\nor just not in this case? Most important\xe2\x80\x94do the answers to those questions or similar ones turn\non record evidence about epidemiology, or on naked judicial instinct? The Court\xe2\x80\x99s decision\nleaves state policymakers adrift, in California and elsewhere. It is difficult enough in a predictable legal environment to craft COVID policies that keep communities safe. That task becomes\nharder still when officials must guess which restrictions this Court will choose to strike down.\nThe Court injects uncertainty into an area where uncertainty has human costs.\nAll this from unelected actors, \xe2\x80\x9cnot accountable to the people.\xe2\x80\x9d South Bay, 140 S.Ct., at\n1614 (ROBERTS, C. J., concurring). I fervently hope that the Court\xe2\x80\x99s intervention will not\nworsen the Nation\xe2\x80\x99s COVID crisis. But if this decision causes suffering, we will not pay. Our\nmarble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State\xe2\x80\x99s pandemic\nresponse. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.\n\nSouth Bay United Pentecostal v. Newsom, 141 S.Ct. 716 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 325\n\n141 S.Ct. 1294\nSupreme Court of the United States.\n\nTandon v. Newsom\nApril 9, 2021\nPER CURIAM.\nThe application for injunctive relief presented to Justice KAGAN and by her referred to the\nCourt is granted pending disposition of the appeal in the United States Court of Appeals for the\nNinth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought.\nShould the petition for a writ of certiorari be denied, this order shall terminate automatically. In\nthe event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.\nThe Ninth Circuit\xe2\x80\x99s failure to grant an injunction pending appeal was erroneous. This\nCourt\xe2\x80\x99s decisions have made the following points clear.\nFirst, government regulations are not neutral and generally applicable, and therefore trigger\nstrict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. Roman Catholic Diocese of Brooklyn v. Cuomo,\n141 S.Ct. 63, 67-68 (2020) (per curiam). It is no answer that a State treats some comparable\nsecular businesses or other activities as poorly as or even less favorably than the religious exercise\nat issue. 141 S.Ct., at 66-67 (KAVANAUGH, J., concurring)\nSecond, whether two activities are comparable for purposes of the Free Exercise Clause\nmust be judged against the asserted government interest that justifies the regulation at issue. Id.,\nat 67(per curiam) (describing secular activities treated more favorably than religious worship\nthat either \xe2\x80\x9chave contributed to the spread of COVID\xe2\x80\x9319\xe2\x80\x9d or \xe2\x80\x9ccould\xe2\x80\x9d have presented similar\nrisks). Comparability is concerned with the risks various activities pose, not the reasons why\npeople gather. Id., at 66 (GORSUCH, J., concurring)\nThird, the government has the burden to establish that the challenged law satisfies strict\nscrutiny. To do so in this context, it must do more than assert that certain risk factors \xe2\x80\x9care always\npresent in worship, or always absent from the other secular activities\xe2\x80\x9d the government may\nallow. South Bay United Pentecostal Church v. Newsom, 141 S.Ct. 716, 718 (2021) (statement\nof GORSUCH, J.); id., at 717 (BARRETT, J., concurring). Instead, narrow tailoring requires\nthe government to show that measures less restrictive of the First Amendment activity could not\naddress its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more\ndangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too. Roman Catholic Diocese,\n141 S.Ct., at 69-70; South Bay, 141 S.Ct., at 719 (statement of GORSUCH, J.)\nFourth, even if the government withdraws or modifies a COVID restriction in the course of\nlitigation, that does not necessarily moot the case. And so long as a case is not moot, litigants\notherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants \xe2\x80\x9cremain under a constant threat\xe2\x80\x9d that government officials will use their power to reinstate\nthe challenged restrictions. Roman Catholic Diocese, 141 S.Ct., at 68; see also High Plains Harvest Church v. Polis, 141 S.Ct. 527 (2020).\nThese principles dictated the outcome in this case, as they did in Gateway City Church v.\nNewsom, 2021 WL 308606 (2021). First, California treats some comparable secular activities\nTandon v. Newsom, 141 S.Ct. 1294 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c326 Religion in the Law\nmore favorably than at-home religious exercise, permitting hair salons, retail stores, personal\ncare services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time. Second, the Ninth Circuit did not\nconclude that those activities pose a lesser risk of transmission than applicants\xe2\x80\x99 proposed religious exercise at home. The Ninth Circuit erroneously rejected these comparators simply because this Court\xe2\x80\x99s previous decisions involved public buildings as opposed to private buildings.\nThird, instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the Ninth\nCircuit erroneously declared that such measures might not \xe2\x80\x9ctranslate readily\xe2\x80\x9d to the home. The\nState cannot \xe2\x80\x9cassume the worst when people go to worship but assume the best when people\ngo to work.\xe2\x80\x9d Roberts v. Neace, 958 F.3d 409, 414 (C.A.6 2020) (per curiam). And fourth, although California officials changed the challenged policy shortly after this application was filed,\nthe previous restrictions remain in place until April 15th, and officials with a track record of\n\xe2\x80\x9cmoving the goalposts\xe2\x80\x9d retain authority to reinstate those heightened restrictions at any time.\nSouth Bay, 141 S.Ct., at 720 (statement of GORSUCH, J.).\nApplicants are likely to succeed on the merits of their free exercise claim; they are irreparably\nharmed by the loss of free exercise rights \xe2\x80\x9cfor even minimal periods of time\xe2\x80\x9d; and the State has\nnot shown that \xe2\x80\x9cpublic health would be imperiled\xe2\x80\x9d by employing less restrictive measures. Roman Catholic Diocese, 141 S.Ct., at 68. Accordingly, applicants are entitled to an injunction\npending appeal.\nThis is the fifth time the Court has summarily rejected the Ninth Circuit\xe2\x80\x99s analysis of California\xe2\x80\x99s COVID restrictions on religious exercise. See Harvest Rock Church v. Newsom, 141\nS.Ct. 889 (2020); South Bay, 141 S.Ct. 716; Gish v. Newsom, 141 S.Ct. 1290 (2021); Gateway\nCity. It is unsurprising that such litigants are entitled to relief. California\xe2\x80\x99s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further \xe2\x80\x9cinterests\nof the highest order\xe2\x80\x9d by means \xe2\x80\x9cnarrowly tailored in pursuit of those interests.\xe2\x80\x9d Church of\nLukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). That standard \xe2\x80\x9cis not watered\ndown\xe2\x80\x9d; it \xe2\x80\x9creally means what it says.\xe2\x80\x9d Ibid.\nTHE CHIEF JUSTICE would deny the application.\nJustice KAGAN, with whom Justice BREYER and Justice SOTOMAYOR join, dissenting.\nI would deny the application largely for the reasons stated in South Bay United Pentecostal\nChurch v. Newsom, 141 S.Ct. 716 (2021) (KAGAN, J., dissenting). The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct.\nSometimes finding the right secular analogue may raise hard questions. But not today. California\nlimits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State\ndoes exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious\ngatherings the same as hardware stores and hair salons\xe2\x80\x94and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam\xe2\x80\x99s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons.\nAnd even supposing a court should cast so expansive a comparative net, the per curiam\xe2\x80\x99s\nanalysis of this case defies the factual record. According to the per curiam, \xe2\x80\x9cthe Ninth Circuit\ndid not conclude that\xe2\x80\x9d activities like frequenting stores or salons \xe2\x80\x9cpose a lesser risk of transmission\xe2\x80\x9d than applicants\xe2\x80\x99 at-home religious activities. But Judges Milan Smith and Bridget Bade\n\nTandon v. Newsom, 141 S.Ct. 1294 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 327\nexplained for the court that those activities do pose lesser risks for at least three reasons. First,\n\xe2\x80\x9cwhen people gather in social settings, their interactions are likely to be longer than they would\nbe in a commercial setting,\xe2\x80\x9d with participants \xe2\x80\x9cmore likely to be involved in prolonged conversations.\xe2\x80\x9d Tandon v. Newsom, 992 F. 3d 916, 924\xe2\x80\x9325, (C.A.9 2021). Second, \xe2\x80\x9cprivate houses\nare typically smaller and less ventilated than commercial establishments.\xe2\x80\x9d Ibid. And third, \xe2\x80\x9csocial distancing and mask-wearing are less likely in private settings and enforcement is more difficult.\xe2\x80\x9d Ibid. These are not the mere musings of two appellate judges: The district court found\neach of these facts based on the uncontested testimony of California\xe2\x80\x99s public-health experts. \xe2\x80\xa6\nSee Tandon, 992 F. 3d, at 924\xe2\x80\x9325, (noting that the applicants \xe2\x80\x9cdo not dispute any of these\nfindings\xe2\x80\x9d). No doubt this evidence is inconvenient for the per curiam\xe2\x80\x99s preferred result. But the\nCourt has no warrant to ignore the record in a case that (on its own view) turns on risk assessments.\nIn ordering California to weaken its restrictions on at-home gatherings, the majority yet\nagain \xe2\x80\x9cinsists on treating unlike cases, not like ones, equivalently.\xe2\x80\x9d South Bay, 141 S.Ct., at 722\n(KAGAN, J., dissenting). And it once more commands California \xe2\x80\x9cto ignore its experts\xe2\x80\x99 scientific findings,\xe2\x80\x9d thus impairing \xe2\x80\x9cthe State\xe2\x80\x99s effort to address a public health emergency.\xe2\x80\x9d Ibid.\nBecause the majority continues to disregard law and facts alike, I respectfully dissent from this\nlatest per curiam decision.\n\nTandon v. Newsom, 141 S.Ct. 1294 (U.S. 2021)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c328 Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 329\n\nPart Two: Statutory and Institutional Free Exercise\nThe U.S. Constitution is not the only form of American law that protects religious\nfreedom, and conflicts over religious practice do not arise solely between private citizens and the government. This Part tackles religious conflicts that arise under statutes\nand within institutions such as prisons or the workplace.\nThe cases excerpted here are not presented in chronological order. They are arranged instead by theme, focusing first on religious challenges to general statutes in\nHobby Lobby v. Burwell and Masterpiece Cakeshop v. Colorado Civil Rights Commission. The next two cases, TWA v. Hardison and Hosanna-Tabor v. EEOC, implicate federal civil rights laws and show how the Supreme Court has allowed certain\ntypes of discrimination in employment, both against religious practitioners and by\nthem. Next up are cases illustrating how courts have applied the federal Religious Land\nUse and Incarcerated Person\xe2\x80\x99s Act to the free exercise claims of prisoners. The first,\nHolt v. Hobbs, is a clear-cut application of RLUIPA by the Supreme Court to the religious facial hair of a Muslim prisoner. The next two cases, Carpenter v. Wilkinson and\nRuley v. Stovall, are presented together. Carpenter was not a RLUIPA case but Ruley\ndirectly applies the reasoning of Carpenter to a case that was. Together, they show that\nnot all prisoners\xe2\x80\x99 religious exercise claims are treated favorably, even when courts apply\nstrict scrutiny. Finally, this Part ends with a unique case of a state official who objected\nto the laws they were elected to enforce. In Miller v. Davis, a county clerk refused to\nissue marriage licenses on religious grounds shortly after Obergefell v. Hodges, and a\npolitical firestorm ensued. The case raises important questions about the religious freedom of elected officials working in government institutions.\nWe begin RFRA. Three years after the U.S. Supreme Court decided the case of\nEmployment Division v. Smith, Congress passed a law called the Religious Freedom\nRestoration Act. They designed it to re-institute the strict scrutiny standard of Sherbert\nv. Verner to free exercise cases, and it passed with nearly unanimous support in both\nthe House and Senate.\nRFRA says that \xe2\x80\x9cgovernment shall not substantially burden a person\xe2\x80\x99s free exercise\nof religion even if the burden results from a rule a general applicability\xe2\x80\x9d unless the\ngovernment proves that the burden \xe2\x80\x9cis in furtherance of a compelling government interest,\xe2\x80\x9d and \xe2\x80\x9cis the least restrictive means of furthering that compelling interest.\xe2\x80\x9d1 In\nother words, strict scrutiny. RFRA does not \xe2\x80\x9coverrule\xe2\x80\x9d Employment Division v. Smith,\nbut it creates an avenue outside of the Constitution to seek redress for religious injuries.\nSo, if a neutral law burdens a person\xe2\x80\x99s religious free exercise, they have two options:\nsue under the First Amendment and its more deferential Smith standard, or sue under\nRFRA and its tougher strict scrutiny standard.\nCongress intended for RFRA to apply to both the federal government and the\nstates, but in City of Boerne v. Flores, the Supreme Court ruled that RFRA\xe2\x80\x99s application\nto the states exceeded Congressional power under the Fourteenth Amendment.2 If the\n\n1\n2\n\n42 U.S.C. \xc2\xa7 2000bb-1.\n521 U.S. 507 (1997).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c330 Religion in the Law\n\nstates wanted something like RFRA, the Court said, they could pass similar statutes\nthemselves. Many of them later did.\nUnfortunately, RFRA does not clearly define its key terms. For example, RFRA\ndefines \xe2\x80\x9cexercise of religion\xe2\x80\x9d as \xe2\x80\x9creligious exercise,\xe2\x80\x9d which is \xe2\x80\x9cany exercise of religion,\nwhether or not compelled by, or central to, a system of religious belief.\xe2\x80\x9d3 It does not\nprovide examples. The law is totally silent as to what constitutes a \xe2\x80\x9csubstantial burden\xe2\x80\x9d on religious exercise.\nRFRA prohibits burdening \xe2\x80\x9ca person\xe2\x80\x99s\xe2\x80\x9d free exercise, but it omits any definition\nof \xe2\x80\x9cperson.\xe2\x80\x9d The word may seem self-defining, but American law has long allowed\n\xe2\x80\x9cperson\xe2\x80\x9d to mean things other than just living, breathing human beings. Non-human\nentities, such as corporations and estates, are considered to be \xe2\x80\x9clegal persons\xe2\x80\x9d when\nthey do things like enter into contracts, own property, or file lawsuits. But, is a corporation a \xe2\x80\x9cperson\xe2\x80\x9d for religious purposes? Can a corporation exercise religion? That\nwas one of the questions presented to the U.S. Supreme Court in the 2014 case of\nBurwell v. Hobby Lobby.\nIn 2010, Congress passed the Patient Protection and Affordable Care Act (ACA),\nwhich required some businesses to provide health insurance to their employees. That\nhealth insurance was required to include coverage for all FDA-approved contraceptives\nand contraceptive services at no additional cost to the employee. Exemptions were\navailable for religious organizations, such as churches, but for-profit corporations were\nrequired to comply unless their previous health plan was \xe2\x80\x9cgrandfathered in\xe2\x80\x9d or if they\npaid a fine for non-participation.\nDavid Green and the other members of his family who own and operate the Hobby Lobby retail chain\nobjected to this contraceptive mandate on religious grounds. According\nto their Christian beliefs, abortion is\na sin, and FDA-approved emergency\ncontraceptives such as Plan B (the\n\xe2\x80\x9cmorning after pill\xe2\x80\x9d) are abortifacients.4 Unwilling to facilitate in any\nProtesters outside a Hobby Lobby store in 2014\nway \xe2\x80\x93 even as a third party \xe2\x80\x93 their - Joe Brusky\nemployees\xe2\x80\x99 possible use of birth control, five members of the Green family filed suit under RFRA both individually and as\nHobby Lobby. Not only did they argue that the generally applicable ACA imposed\nsubstantial burdens on their personal religious exercise, but they also claimed that\nHobby Lobby (a private, for-profit chain of craft stores) suffered a religious burden as\nwell.\n\n42 U.S.C. \xc2\xa7 2000bb-2; 42 U.S.C. \xc2\xa7 2000cc-5.\nScientifically-speaking, they are not abortifacients. According to the U.S. National Library of Medicine, emergency contraception prevents ovarian egg release and fertilization\nbefore they occur. \xe2\x80\x9cEmergency Contraception,\xe2\x80\x9d Medline Plus, https://medlineplus.gov/ency/article/007014.htm.\n3\n4\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 331\n\nIn 2014, the U.S. Supreme Court decided in Burwell v. Hobby Lobby that Hobby\nLobby, the corporation, was entitled to a religious exemption from the ACA. Writing\nfor a 5-4 majority, Justice Samuel Alito said that Hobby Lobby was a \xe2\x80\x9cperson\xe2\x80\x9d for the\npurposes of RFRA. Though that law did not define the term, the Dictionary Act, a\nfederal law that provides baseline definitions for often-used terms, did. Its definition of\n\xe2\x80\x9cperson\xe2\x80\x9d includes \xe2\x80\x9ccorporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.\xe2\x80\x9d5 That was good enough for the\nCourt. A private, \xe2\x80\x9cclosely-held\xe2\x80\x9d corporation like Hobby Lobby exists only on paper\nand cannot itself hold a religious belief, but the people who own it can, therefore the\ncorporation could take on their beliefs as its own.\nIn the next step of the RFRA analysis, Alito concluded that Hobby Lobby suffered\na \xe2\x80\x9csubstantial burden\xe2\x80\x9d in the form of financial penalties. If Hobby Lobby refused to\nprovide contraceptive care in its insurance plan, it would incur millions of dollars in\nfines. If it opted not to provide insurance at all, the fines would be less, but still expensive. Though Hobby Lobby was a multi-billion dollar company at no risk of bankruptcy, the Court concluded that the penalties still constituted a substantial burden on\nthe free exercise of Hobby Lobby\xe2\x80\x99s religious beliefs about its employees\xe2\x80\x99 access to birth\ncontrol.\nA substantial burden is not reason by itself to invalidate a generally applicable law,\nhowever. Under RFRA, the government could still show that it had a compelling purpose for the ACA and that the law was the least restrictive means to achieve that purpose. Graciously, Justice Alito conceded that the ACA\xe2\x80\x99s requirement of contraceptive\ncare was justified by a compelling purpose. However, the ACA was not the least restrictive means of achieving that purpose because there was a better way to provide the\ncontraceptive care without imposing upon Hobby Lobby\xe2\x80\x99s religious conscience. The\ngovernment, Alito wrote, could just provide the coverage itself, which it already did\nfor exempted religious organizations. Because it could, but did not, extend the existing\nreligious exemption to corporations like Hobby Lobby, Alito concluded that the ACA\nviolated the last prong of the RFRA analysis.\nJustice Ruth Bader Ginsburg dissented. Primarily, she attacked the Court\xe2\x80\x99s extension of religious personhood to corporations like Hobby Lobby. She noted that the\nCourt had never recognized First Amendment free exercise rights for for-profit corporations. Corporations, after all, are legal fictions designed specifically to distance their\nowners from personal liability for the debts and obligations of the business. A corporation\xe2\x80\x99s purpose is to make money, not exercise religion. Moreover, those owners already have individual religious rights under both the First Amendment and RFRA \xe2\x80\x93\nthey do not need double protection in their capacities as corporate executives.\nGinsburg also attacked the Court\xe2\x80\x99s least restrictive means reasoning. How far, she\nasked, does \xe2\x80\x9clet the government pay\xe2\x80\x9d go? If a corporation objected to paying the minimum wage on religious grounds, would the government have to step in and supplement the employees\xe2\x80\x99 pay? What if a company refused to follow anti-discrimination\nlaws? Justice Ginsburg argued that the Court failed to offer a limiting principle for its\n\n5\n\n1 U.S.C. \xc2\xa7 1.\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c332 Religion in the Law\n\nanalysis and left the door open to aggressive religious objections that could seriously\ninterfere with social order.\nWhich brings us to the case of Masterpiece\nCakeshop v. Colorado Civil Rights Commission,\nin which a company refused to follow a state antidiscrimination law on religious grounds. In 2012,\nLakewood baker Jack Phillips told a couple that\nhe would not make a cake for their gay wedding\nbecause he was religiously opposed to such marriages. The couple then filed a charge with the\nColorado Civil Rights Commission, alleging that\nPhillips violated the Colorado Anti-DiscriminaJack Phillips\ntion Act, which prohibits sexual orientation- Rick Wilking\nbased discrimination in public accommodations.6\nPhillips argued that the First Amendment\xe2\x80\x99s free exercise and free speech clauses insulated his for-profit bakery from enforcement of the state law.7 The Colorado Civil\nRights Commission disagreed, and ordered him to serve gay customers equally with\nall others. Phillips appealed, but the Colorado Court of Appeals upheld the Commission\xe2\x80\x99s ruling. Applying the Supreme Court\xe2\x80\x99s standard from Employment Division v.\nSmith, the Court of Appeals concluded that Phillips\xe2\x80\x99 alleged religious burden was incidental to a generally applicable law, and that the law was both rational in purpose and\nreasonably enforced.8\nAfter the Colorado Supreme Court rejected his petition for review, Phillips sought\nrelief at the U.S. Supreme Court. He again raised a free exercise argument, effectively\nasking the court to create a constitutional religious exemption to the enforcement of\ngeneral anti-discrimination laws. Before then, the Court had only done so in the narrow area of religious employment and the unique case of the Boy Scouts.9 Phillips\xe2\x80\x99\nbusiness was neither a church nor a scout troop \xe2\x80\x93 it was a for-profit bakery. Should his\nreligious opposition to equal accommodation have given him a pass?\nJustice Anthony Kennedy, the author of the Court\xe2\x80\x99s gay marriage decision Obergefell v. Hodges, wrote a majority opinion that dodged the question. Joined by five\nother justices, Kennedy wrote that members of the Colorado Commission on Civil\nRights had tainted the administrative process by expressing hostility toward Phillips\xe2\x80\x99\nreligious beliefs while hearing his case. The best way to solve that, the Court held, was\nto send Phillips\xe2\x80\x99 case back and have the Commission re-hear it, this time without all\nthe vitriol. Justices Stephen Breyer and Elena Kagan concurred, helpfully offering the\nCommission a principled basis for a new ruling against Phillips that would appear\nmore neutral than the previous one.\n\nChurches, synagogues, mosques, \xe2\x80\x9cor other places that are principally used for religious\npurposes\xe2\x80\x9d are not considered public accommodations in Colorado. CO Rev. Stat. 24-34-601.\n7 Phillips made only constitutional arguments because the federal Religious Freedom Restoration Act does not apply to the states and Colorado does not have its own version.\n8 Craig v. Masterpiece Cakeshop, Inc. 370 P.3d 272 (2015).\n9 Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012) (excerpted later in this Section); and Boy\nScouts of America v. Dale, 530 U.S. 640 (2000).\n6\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 333\n\nJustice Neil Gorsuch, joined by Justice Alito, also concurred. Though the anti-discrimination law might be neutral under the \xe2\x80\x9ccontroversial\xe2\x80\x9d ruling of Smith, Gorsuch\nconceded, Phillips\xe2\x80\x99 treatment by the Commission was not neutral, and therefore the\ntougher standard of Church of the Lukumi Babalu Aye v. Hialeah should apply. And,\nin Gorsuch\xe2\x80\x99s view, Phillips should ultimately prevail based on the Commission\xe2\x80\x99s own\nprecedent, which had conversely allowed bakers to refuse to sell cakes with homophobic statements on them.\nJustices Ruth Bader Ginsburg and Sonia Sotomayor dissented. In their view, the\nColorado Anti-Discrimination Act was neutral and well justified, the First Amendment\noffered no respite from it, and the Commission did nothing wrong. It rightfully sanctioned Phillips for breaking the law, and a few off-the-cuff remarks by Commissioners\nabout the historic use of religion as a cover for intolerance should not have been dispositive.\nSpeaking of generally applicable anti-discrimination laws, we turn next to cases\ndealing with Title VII of the federal Civil Rights Act of 1964, which prohibits various\ntypes of status-based discrimination in employment, including religious discrimination.\nThe familiar struggle of the Saturday Sabbath observer gave rise to Trans World\nAirlines v. Hardison. In that case, however, there was no claim for unemployment benefits. Instead, the plaintiff, Larry Hardison, sued his former employer for firing him in\nviolation of Title VII. Hardison had worked for several years at the Kansas City base\nof the now-defunct Trans World Airlines (TWA). After he was hired, he converted to\na faith that recognizes Saturday as the Sabbath. At first, Hardison avoided any conflict\nby working third shift, which did not require work during daylight hours on Saturdays.\nHowever, after he transferred to a new department, third shift was no longer an option\nand his seniority no longer allowed special accommodations. He asked both his union\nand TWA for an accommodation but received none, and after he refused to report for\nhis Saturday shift, TWA fired him.\nHardison sued under Title VII arguing that TWA violated the law by not accommodating his religious need for Saturdays off. In a 7-2 vote, the Supreme Court rejected\nhis claim. Justice Byron White wrote for the majority that the problem for Hardison\nwas mostly logistical. The Court held that religious accommodation was required unless it imposed \xe2\x80\x9cundue hardship\xe2\x80\x9d on the employer and anything more than \xe2\x80\x9ca de minimis cost\xe2\x80\x9d would be an undue hardship. The nature of TWA\xe2\x80\x99s operations and the nature\nof his union\xe2\x80\x99s seniority system meant that the accommodating him would disrupt the\nworkplace and force senior employees to work against their will to cover him. Neither\nthe company nor the union was obligated to endure such a hardship to accommodate\nHardison\xe2\x80\x99s religious needs, White wrote. Justices Thurgood Marshall and William\nBrennan dissented, arguing that the Court\xe2\x80\x99s ruling gutted Title VII\xe2\x80\x99s protections for\nreligion in the workplace. \xe2\x80\x9cAn employer, the Court concludes, need not grant even the\nmost minor special privilege to religious observers to enable them to follow their faith,\xe2\x80\x9d\nwrote Marshall.\nThe Court in Hardison was deferential to non-religious employers facing religious\ndiscrimination claims. It has been even more deferential to religious employers facing\nany kind of discrimination claim. Under the so-called \xe2\x80\x9cministerial exception\xe2\x80\x9d to Title\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c334 Religion in the Law\n\nVII (invented by the lower federal courts in 1972)10, religious employers cannot be sued\nfor discrimination by employees who perform certain important ministerial roles. A\nvariation on the \xe2\x80\x9cecclesiastical abstention\xe2\x80\x9d doctrine from Watson v. Jones, the idea is\nthat questions of ministerial employment are of a religious nature the courts should\nhave no power to review. The exception is not included in the actual text of Title VII\nor any other anti-discrimination law.\nThe lower courts applied the exception for forty years before the Supreme Court\nfinally affirmed it. In Hosanna-Tabor Evangelical Lutheran Church v. EEOC, a church\nemployee named Cheryl Perich took a leave of absence after receiving a narcolepsy\ndiagnosis. When she later tried to return to work, the church told her she had been\nreplaced. After complaining, the church fired her. She then filed suit for discrimination\nunder the Americans with Disabilities Act.\nThe Supreme Court unanimously ruled\nthat Perich was a \xe2\x80\x9cministerial\xe2\x80\x9d employee of the\nchurch, and as such, she was unprotected by\nanti-discrimination laws like the ADA. Chief\nJustice John Roberts, writing for the Court,\nfound that the church held Perich out as a minster and gave her a title, she had undergone religious training as part of her job, she had held\nherself out as a minister, and she performed religious functions when she conveyed the\nChurch\xe2\x80\x99s message in her classes. Her employ- Cheryl Perich at the Supreme Court\nment was thus a question of church doctrine, - Maria Matveeva\nnot disability, and both the free exercise and establishment clauses of the First Amendment deprived civil courts of jurisdiction. Justices Samuel Alito and Elena Kagan concurred but suggested the last factor of the\ncourt\xe2\x80\x99s test \xe2\x80\x93 an employee\xe2\x80\x99s religious job functions \xe2\x80\x93 was key, and the other factors\nshould not be dispositive on their own. Justice Clarence Thomas wrote alone that the\ncourts should avoid factor tests and simply trust religious organizations when it comes\nto who is a minister and who is not, leaving them to decide for themselves whether\nthey should be subject to workplace anti-discrimination laws.11\nFrom one form of incarceration to the next, we move from the workplace to\nprison.12 After the Court ruled in City of Boerne v. Flores that the Religious Freedom\nRestoration Act was inapplicable to the states, Congress passed an amendment called\nthe Religious Land Use and Institutionalized Persons Act (RLUIPA).13 In addition to\nadding a vague definition of religious exercise (\xe2\x80\x9cany exercise of religion, whether or\n\nMcClure v. Salvation Army, 460 F.2d 553 (CA5 1972).\nIn a later ministerial exception case, Justice Thomas concurred again on similar grounds,\nthis time gaining Justice Neil Gorsuch as a co-signer. See Our Lady of Guadalupe School v.\nMorrissey-Berru, 140 S.C.t 2049, 2069-2070 (U.S. 2019)(Thomas, J. concurring).\n12 Eugene Debs, WALLS AND BARS, 23 (1927) (\xe2\x80\x9cThe owning and ruling class hold the keys of\nthe prison the same as they do of the mill and mine. They are the keepers of both and their\nexploited slaves are the inmates and victims of both.\xe2\x80\x9d).\n13 42 U.S.C. \xc2\xa7 2000cc et seq.\n10\n11\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 335\n\nnot compelled by, or central to, a system of religious belief\xe2\x80\x9d), the law specifically extended the strict scrutiny standard of RFRA to any prison that received federal funding.\nPrison officials would have to have compelling reasons and use the least restrictive\nmeans to impose substantial burdens on the religious exercise of their inmates.\nThe big test of RLUIPA\xe2\x80\x99s constitutionality came in the case of Cutter v. Wilkinson,\nwhen a diverse group of incarcerated plaintiffs filed suit against the Ohio Department\nof Rehabilitation and Correction, alleging that prison officials failed to accommodate\ntheir \xe2\x80\x9cnonmainstream\xe2\x80\x9d religions such as Asatru, Wicca, and Satanism.14 Ohio argued\nthat RLUIPA violated the establishment clause of the First Amendment because it required prison officials to give special treatment to inmates based on their religion.\nUnanimously, the Supreme Court rejected this argument, holding that the First Amendment allowed accommodations under RLUIPA.\nCutter did not explain how to apply RLUIPA to an inmate\xe2\x80\x99s individual claim of\nreligious discrimination, however. The decision omitted any guidance as to what constitutes a \xe2\x80\x9csubstantial burden\xe2\x80\x9d in the unique institutional setting of a prison, nor did it\naddress what kinds of penological interests might qualify as \xe2\x80\x9ccompelling\xe2\x80\x9d enough to\njustify imposing such a burden.\nThe Court provided some guidance a decade later in Holt v. Hobbs. Muslim inmate Abdul Maalik Muhammad (n\xc3\xa9e Gregory Holt) sued the Arkansas Department\nof Correction under RLUIPA for forcing him to shave and for rejecting his request to\ngrow a half-inch beard as a modest religious accommodation. The prison system argued that its no-beard policy, to which it allowed only medical exceptions, was justified\nby security concerns. Courts generally give great deference to prison officials\xe2\x80\x99 expertise\non questions of security, and so did the Eighth Circuit when it rejected Muhammad\xe2\x80\x99s\nclaim.15 It accepted the argument that inmates could hide contraband in any amount\nof facial hair, and thus the prison was not obligated to accommodate Muhammad\xe2\x80\x99s\nrequest to grow a half-inch beard.\nWriting for a unanimous Supreme Court, Justice Samuel Alito refused to give the\nprison such deference. It seemed quite impossible, Alito wrote, that anyone could hide\nanything in a beard of even modest length, let alone one a half-inch long. And, if the\nprison was so concerned inmates might hide contraband in their facial hair, why did it\nnot also require all inmates to shave their heads? As compelling an interest as safety\nmay be in a prison, the no-beard policy was too restrictive to justify the substantial\nburden placed on Muhammad\xe2\x80\x99s religious exercise. Growing a beard was integral to his\nfaith and there was no reason the prison could not allow a modest accommodation,\nAlito concluded.\nJustice Ruth Bader Ginsburg joined the rest of her colleagues but wrote a concurrence distinguishing her vote in Holt from her dissent in Hobby Lobby. RFRA and\nRLUIPA imposed the same strict scrutiny test on incidental burdens, but the difference,\nGinsburg argued, was that Muhammad\xe2\x80\x99s free exercise did not implicate the rights or\ninterests of anyone else. He sought only to express his beliefs through his own physical\nappearance. Hobby Lobby\xe2\x80\x99s religious exercise, on the other hand, negatively affected\n\n14\n15\n\n544 U.S. 709 (2005).\nHolt v. Hobbs, 509 F.App\xe2\x80\x99x 561 (CA8 2013) (per curiam, unpublished opinion).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c336 Religion in the Law\n\nits thousands of employees who might need contraceptive care. Under Ginsburg\xe2\x80\x99s interpretation of the laws, the government was not obligated to accommodate religious\nobjectors whose religious conscience implicated third parties.\nIn Holt, the Supreme Court did not automatically defer to the judgment of prison\nofficials. Normally, however, federal courts are very deferential to them, even when\nthey go so far as to deny inmates access to their preferred holy texts. Of what risk to\nsecurity is a book? According to prison officials, it depends on the book.\nIn many state prison systems, one holy book in particular is considered such a\nsecurity threat that inmates are not allowed to have it, no matter how burdensome the\nrestriction might be to their free exercise. That book is The Satanic Bible by Anton\nLaVey, banned in the prisons of Alabama, Arizona, Connecticut, Illinois, Kansas, Kentucky, Michigan, Ohio, Oregon, and Wisconsin, and others. The U.S. Department of\nJustice has written in support of the bans and the federal courts have upheld challenges\nto the bans in almost every case.16\nPrior to RLUIPA, Satanic inmates brought challenges to the book ban under the\nFirst Amendment. The most prominent case was that of Robert Carpenter in 1995. An\ninmate in the Ohio state prison system, Carpenter, an avowed Satanist, sought a copy\nof The Satanic Bible. The prison system denied his request on two grounds: first, Satanism was not a real religion, and second, the book posed a serious risk to security.\nIn Carpenter v. Wilkinson, Judge David Dowd\nof the Northern District of Ohio rejected Carpenter\xe2\x80\x99s free exercise arguments. Applying the factor\ntest from the Third Circuit\xe2\x80\x99s decision in Africa v.\nCommonwealth,17 Dowd agreed that Satanism\nwas a religion and that Carpenter held sincere religious beliefs. However, that did not entitle him to\na copy of his preferred religious text. After he \xe2\x80\x9cperused\xe2\x80\x9d the Satanic Bible, Judge Dowd found himself \xe2\x80\x9cin complete agreement\xe2\x80\x9d with prison officials\nthat the book had \xe2\x80\x9cgreat potential for fomenting\nRobert Carpenter\ntrouble of all kinds in a prison setting.\xe2\x80\x9d As proof,\n- Oh. Dept. of Rehab. & Correction\nhe quoted, line-by-line, every passage of the book\nthat suggested violent or anti-social behavior. Dowd also summarily concluded that\nbanning one book did not pose a substantial burden to Carpenter\xe2\x80\x99s \xe2\x80\x9cability to practice\nhis \xe2\x80\x98religion\xe2\x80\x99\xe2\x80\x9d and thus there was no First Amendment violation. Left unanswered was\nwhether the court would have reached the same conclusion had that book been something else, like the Holy Bible. Carpenter raised a discrimination claim under the equal\nprotection clause of the Fourteenth Amendment, but the court waved it away.\n\nSee L. Joe Dunman, The Devil in Recent American Law, 39 Pace L. Rev. 929, 980-981\n(2019).\n17 662 F.2d 1025 (CA3 1981) (excerpted above in Section 1).\n16\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 337\n\nWhat does this have to do with RLUIPA? Carpenter was decided before Congress\npassed that law and it relied on prior Supreme Court precedent that gave great deference to prison officials on constitutional questions.18 RLUIPA, however, imposes the\nSherbert v. Verner strict scrutiny test, not a more permissive test like that in Employment Division v. Smith or prison-specific cases like Turner v. Safley. A different standard would apply had Carpenter sued under the later law.\nCarpenter matters because courts have cited it to deny the RLUIPA claims of Satanists just as they did their claims under the First Amendment. One such case is Ruley\nv. Stovall, excerpted below. A Kentucky inmate named Greg Ruley faced nearly the\nsame situation as Carpenter in Ohio. After his copy of The Satanic Bible was confiscated, he sued under the First Amendment and RLUIPA. The Eastern District of Kentucky relied on Carpenter\xe2\x80\x99s analysis (and its application in other courts) first to dispatch\nGreg Ruley\xe2\x80\x99s First Amendment claim, then to reject his RLUIPA claim as well. Unlike\nJudge Dowd in Carpenter, however, Judge Karen Caldwell in Ruley conceded that the\nconfiscation of a holy book constituted a substantial religious burden. Nevertheless,\nshe held that because the Satanic Bible \xe2\x80\x9cactively promote[s] \xe2\x80\xa6assertive disrespect of\nauthority, and immediate and aggressive violence towards any person opposing the\ndesires of its adherents,\xe2\x80\x9d it posed a direct security threat that could not be alleviated by\n\xe2\x80\x9cany plausible alternative means\xe2\x80\x9d \xe2\x80\x9cshort of prohibiting the possession of such inciteful\nmaterials.\xe2\x80\x9d Thus, the prison had satisfied the stricter RLUIPA standard and Ruley was\nout of luck.\nFinally, this Part ends with a case that does not easily fit into any category. It involves the religious protest of an elected public official against a decision of the U.S.\nSupreme Court, state marriage licensing rules, and the directives of a state governor.\nBut, the official was not the plaintiff in her case \xe2\x80\x93 she was the defendant, sued for\nviolating the rights of others while claiming to exercise her own.\nIn 2015, shortly after the U.S. Supreme Court\nstruck down state gay marriage bans in Obergefell v.\nHodges, Kim Davis, the county clerk of Rowan\nCounty, Kentucky decided to stop issuing marriage\nlicenses. At the time, state law required county clerks\nto sign all marriage licenses issued from their offices.\nDavis viewed this as an endorsement of those marriages. Now that gay couples were entitled to licenses, Davis concluded that she would have to endorse their marriages as well, something that vioKim Davis\nlated her conscience as an Apostolic Christian. She - New York Times\ninstituted a \xe2\x80\x9cno marriage license\xe2\x80\x9d policy in her office, thereafter rejecting all couples who sought marriage licenses in Rowan County.\nSeveral couples, both same sex and opposite sex, sued Davis for violating their\nconstitutional right to marriage.19 The plaintiffs sought a preliminary injunction to\nforce Davis to issue licenses until the Eastern District of Kentucky reached a final ruling\nSee Turner v. Safley, 482 U.S. 78 (1987); Procunier v. Martinez, 416 U.S. 396 (1974); and\nJohnson v. Avery, 393 U.S. 483 (1969).\n19 The author served as co-counsel for the plaintiffs in this case.\n18\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c338 Religion in the Law\n\nin the case. Davis defended herself on several grounds, arguing that even as an elected\nofficial employed by the state, she was entitled to unrestricted religious free exercise. In\nMiller v. Davis, federal Judge David Bunning rejected this argument. First, imposition\nof her own beliefs through county clerk policy was \xe2\x80\x9carguably\xe2\x80\x9d a violation of the First\nAmendment\xe2\x80\x99s establishment clause. Second, government employees must often yield to\nthe legitimate interests of the government as their employer. \xe2\x80\x9cDavis is certainly free to\ndisagree\xe2\x80\x9d with Obergefell, Bunning held, \xe2\x80\x9cbut that does not excuse her from complying with it.\xe2\x80\x9d She was also not free to disregard the directive issued by Governor Steve\nBeshear, telling clerks to issue licenses or resign. Bunning concluded that this directive\nwas neutral and well justified under the standard of Employment Division v. Smith, so\nit did not infringe on any free exercise rights Davis may still have enjoyed in her capacity as a county clerk.\nDavis also argued that the state law requiring her to sign marriage licenses\namounted to a \xe2\x80\x9creligious test\xe2\x80\x9d as prohibited by the federal Constitution and the Supreme Court in Torcaso v. Watkins.20 Not so, wrote Bunning. Issuing a marriage license\n\xe2\x80\x9cmerely signifies that the couple has met the legal requirements to marry. It is not a\nsign of moral or religious approval,\xe2\x80\x9d regardless of Davis\xe2\x80\x99 feelings on the matter.\nFinally, Bunning rejected Davis\xe2\x80\x99 defense that the governor\xe2\x80\x99s directive to fulfill her\nstatutory duties created a \xe2\x80\x9csubstantial burden\xe2\x80\x9d to her free exercise under Kentucky\xe2\x80\x99s\nReligious Freedom Act. \xe2\x80\x9cThe state is not asking her to condone same-sex unions on\nmoral or religious grounds, nor is it restricting her \xe2\x80\xa6 religious activities,\xe2\x80\x9d he wrote.\nShe was free to believe as she wished, go to church, and do charity work as she always\nhad. \xe2\x80\x9cHowever, her religious convictions cannot excuse her from performing the duties\nthat she took an oath to perform as Rowan County Clerk.\xe2\x80\x9d The court issued the plaintiffs\xe2\x80\x99 requested injunction, ordering Davis and her staff to issue marriage licenses.\nDavis defied the court\xe2\x80\x99s order, a decision that landed her briefly in jail. A media\ncircus and a long string of appeals ensued. Members of her staff eventually complied\nwith the court\xe2\x80\x99s order, however, and the plaintiffs were able to acquire marriage licenses. Ultimately, Kentucky changed its marriage laws to no longer require clerk signatures, and plaintiffs\xe2\x80\x99 counsel in Miller v. Davis were awarded attorney fees for representing the prevailing parties, payable by the state.21 Then, after the media attention\nsubsided, Kim Davis lost her bid for re-election as Rowan County Clerk in November\n2018.\nFURTHER READING\nMichael A. Helfand, Identifying Substantial Burdens, 2016 Ill. L. Rev. 1771 (2016).\nJames M. Oleske, Jr., Doric Columns Are Not Falling: Wedding Cakes, The Ministerial\nException, and the Public-Private Distinction, 75 Md. L. Rev. 142 (2015).\nEric J. Segall, Putting the \xe2\x80\x98Exercise\xe2\x80\x99 Back in Free Exercise, 106 Ky. L. J. 635 (2018).\n\n367 U.S. 488 (1961).\nMiller v. Davis, 267 F.Supp.3d 961 (E.D.Ky. 2017); affirmed by Miller v. Caudill, 936\nF.3d 442 (CA6 2019).\n20\n21\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 339\n\n573 U.S. 682\nSupreme Court of the United States\n\nBurwell v. Hobby Lobby\nJune 30, 2014\nJustice ALITO delivered the opinion of the Court.\nWe must decide in these cases whether the Religious Freedom Restoration Act of 1993\n(RFRA) 42 U.S.C. \xc2\xa7 2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance\ncoverage for methods of contraception that violate the sincerely held religious beliefs of the companies\xe2\x80\x99 owners. We hold that the regulations that impose this obligation violate RFRA, which\nprohibits the Federal Government from taking any action that substantially burdens the exercise\nof religion unless that action constitutes the least restrictive means of serving a compelling government interest\xe2\x80\xa6.\nCongress enacted RFRA in 1993 in order to provide very broad protection for religious\nliberty. RFRA\xe2\x80\x99s enactment came three years after this Court\xe2\x80\x99s decision in Employment Div.,\nDept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which largely repudiated the\nmethod of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374\nU.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a\nsubstantial burden on the practice of religion, and if it did, whether it was needed to serve a\ncompelling government interest\xe2\x80\xa6.\nIn Smith, however, the Court rejected \xe2\x80\x9cthe balancing test set forth in Sherbert.\xe2\x80\x9d 494 U.S. at\n883. \xe2\x80\xa6 This Court [observed] that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law \xe2\x80\x9cwould open the prospect of\nconstitutionally required religious exemptions from civic obligations of almost every conceivable\nkind.\xe2\x80\x9d 494 U.S. at 888. The Court therefore held that, under the First Amendment, \xe2\x80\x9cneutral,\ngenerally applicable laws may be applied to religious practices even when not supported by a\ncompelling governmental interest.\xe2\x80\x9d City of Boerne v. Flores, 521 U.S. 507, 514 (1997).\nCongress responded to Smith by enacting RFRA. \xe2\x80\xa6 In order to ensure broad protection\nfor religious liberty, RFRA provides that \xe2\x80\x9cGovernment shall not substantially burden a person\xe2\x80\x99s\nexercise of religion even if the burden results from a rule of general applicability.\xe2\x80\x9d \xc2\xa7 2000bb\xe2\x80\x93\n1(a). If the Government substantially burdens a person\xe2\x80\x99s exercise of religion, under the Act that\nperson is entitled to an exemption from the rule unless the Government \xe2\x80\x9cdemonstrates that\napplication of the burden to the person\xe2\x80\x94(1) is in furtherance of a compelling governmental\ninterest; and (2) is the least restrictive means of furthering that compelling governmental interest.\xe2\x80\x9d \xc2\xa7 2000bb\xe2\x80\x931(b)\xe2\x80\xa6.\nAt issue in these cases are HHS regulations promulgated under the Patient Protection and\nAffordable Care Act of 2010 (ACA). ACA generally requires employers with 50 or more fulltime employees to offer \xe2\x80\x9ca group health plan or group health insurance coverage\xe2\x80\x9d that provides\n\xe2\x80\x9cminimum essential coverage.\xe2\x80\x9d Any covered employer that does not provide such coverage must\npay a substantial price\xe2\x80\xa6.\nUnless an exception applies, ACA requires an employer\xe2\x80\x99s group health plan or grouphealth-insurance coverage to furnish \xe2\x80\x9cpreventive care and screenings\xe2\x80\x9d for women without \xe2\x80\x9cany\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c340 Religion in the Law\ncost sharing requirements.\xe2\x80\x9d Congress itself, however, did not specify what types of preventive\ncare must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision\xe2\x80\xa6.\nIn August 2011 \xe2\x80\xa6 the HRSA promulgated the Women\xe2\x80\x99s Preventive Services Guidelines.\nThe Guidelines provide that nonexempt employers are generally required to provide \xe2\x80\x9ccoverage,\nwithout cost sharing\xe2\x80\x9d for \xe2\x80\x9c[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling.\xe2\x80\x9d Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg,\nfour of those methods (those specifically at issue in these cases) may have the effect of preventing\nan already fertilized egg from developing any further by inhibiting its attachment to the uterus\xe2\x80\xa6.\nHHS also authorized the HRSA to establish exemptions from the contraceptive mandate\nfor \xe2\x80\x9creligious employers.\xe2\x80\x9d That category encompasses \xe2\x80\x9cchurches, their integrated auxiliaries,\nand conventions or associations of churches,\xe2\x80\x9d as well as \xe2\x80\x9cthe exclusively religious activities of\nany religious order.\xe2\x80\x9d \xe2\x80\xa6 In addition, HHS has effectively exempted certain religious nonprofit\norganizations, described under HHS regulations as \xe2\x80\x9celigible organizations,\xe2\x80\x9d from the contraceptive mandate. An \xe2\x80\x9celigible organization\xe2\x80\x9d means a nonprofit organization that \xe2\x80\x9cholds itself\nout as a religious organization\xe2\x80\x9d and \xe2\x80\x9copposes providing coverage for some or all of any contraceptive services required to be covered ... on account of religious objections.\xe2\x80\x9d \xe2\x80\xa6\nIn addition to these exemptions for religious organizations, ACA exempts a great many\nemployers from most of its coverage requirements. Employers providing \xe2\x80\x9cgrandfathered health\nplans\xe2\x80\x9d\xe2\x80\x94those that existed prior to March 23, 2010, and that have not made specified changes\nafter that date\xe2\x80\x94need not comply with many of the Act\xe2\x80\x99s requirements, including the contraceptive mandate\xe2\x80\xa6.\nNorman and Elizabeth Hahn and their three sons are devout members of the Mennonite\nChurch, a Christian denomination. The Mennonite Church opposes abortion and believes that\n\xe2\x80\x9c[t]he fetus in its earliest stages ... shares humanity with those who conceived it.\xe2\x80\x9d \xe2\x80\xa6 Norman\nHahn started \xe2\x80\xa6 Conestoga Wood Specialties [which] has grown and now has 950 employees.\nConestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise\nsole ownership of the closely held business; they control its board of directors and hold all of its\nvoting shares\xe2\x80\xa6.\nThe Hahns believe that they are required to run their business \xe2\x80\x9cin accordance with their\nreligious beliefs and moral principles.\xe2\x80\x9d \xe2\x80\xa6 As explained in Conestoga\xe2\x80\x99s board-adopted \xe2\x80\x9cStatement on the Sanctity of Human Life,\xe2\x80\x9d the Hahns believe that \xe2\x80\x9chuman life begins at conception.\xe2\x80\x9d\n\xe2\x80\xa6 It is therefore \xe2\x80\x9cagainst [their] moral conviction to be involved in the termination of human\nlife\xe2\x80\x9d after conception, which they believe is a \xe2\x80\x9csin against God to which they are held accountable.\xe2\x80\x9d The Hahns have accordingly excluded from the group-health-insurance plan they offer\nto their employees certain contraceptive methods that they consider to be abortifacients. \xe2\x80\xa6\nThese include two forms of commonly called \xe2\x80\x9cmorning after\xe2\x80\x9d pills and two types of intrauterine\ndevices.\nIn opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that \xe2\x80\x9cit is immoral and sinful for [them] to intentionally participate in,\npay for, facilitate, or otherwise support these drugs.\xe2\x80\x9d The District Court denied a preliminary\ninjunction, and the Third Circuit affirmed in a divided opinion, holding that \xe2\x80\x9cfor-profit, secular\ncorporations cannot engage in religious exercise\xe2\x80\x9d and rejecting the claims brought by the Hahns\nthemselves because it concluded that the HHS \xe2\x80\x9c[m]andate does not impose any requirements\non the Hahns\xe2\x80\x9d in their personal capacity.\nDavid and Barbara Green and their three children are Christians who own and operate two\nfamily businesses. Forty-five years ago, David Green started Hobby Lobby [which now has]\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 341\nmore than 13,000 employees. Hobby Lobby is organized as a for-profit corporation under Oklahoma law. One of David\xe2\x80\x99s sons started an affiliated business, Mardel, which employs close to\n400 people. Mardel is also organized as a for-profit corporation under Oklahoma law. Though\nthese two businesses have expanded over the years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies\xe2\x80\xa6.\nHobby Lobby\xe2\x80\x99s statement of purpose commits the Greens to \xe2\x80\x9c[h]onoring the Lord in all\n[they] do by operating the company in a manner consistent with Biblical principles.\xe2\x80\x9d \xe2\x80\xa6 In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even\nthough the Greens calculate that they lose millions in sales annually by doing so.\xe2\x80\xa6 Like the\nHahns, the Greens believe that life begins at conception and that it would violate their religion\nto facilitate access to contraceptive drugs or devices that operate after that point. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have\nno objection to the other 16 FDA-approved methods of birth control. Although their grouphealth-insurance plan predates the enactment of ACA, it is not a grandfathered plan because\nHobby Lobby elected not to retain grandfathered status before the contraceptive mandate was\nproposed.\nThe Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials\nto challenge the contraceptive mandate under RFRA and the Free Exercise Clause. The District\nCourt denied a preliminary injunction, \xe2\x80\xa6 and the Tenth Circuit reversed in a divided opinion.\nContrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens\xe2\x80\x99 two forprofit businesses are \xe2\x80\x9cpersons\xe2\x80\x9d within the meaning of RFRA and therefore may bring suit under\nthat law\xe2\x80\xa6. We granted certiorari.\nRFRA prohibits the \xe2\x80\x9cGovernment [from] substantially burden[ing] a person\xe2\x80\x99s exercise of\nreligion even if the burden results from a rule of general applicability\xe2\x80\x9d unless the Government\n\xe2\x80\x9cdemonstrates that application of the burden to the person\xe2\x80\x94(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling\ngovernmental interest.\xe2\x80\x9d 42 U.S.C. \xc2\xa7\xc2\xa7 2000bb\xe2\x80\x931(a), (b)\xe2\x80\xa6.\nHHS contends that neither these companies nor their owners can even be heard under\nRFRA. According to HHS, the companies cannot sue because they seek to make a profit for\ntheir owners, and the owners cannot be heard because the regulations, at least as a formal matter,\napply only to the companies and not to the owners as individuals\xe2\x80\xa6.\nRFRA was designed to provide very broad protection for religious liberty. By enacting\nRFRA, Congress went far beyond what this Court has held is constitutionally required. Is there\nany reason to think that the Congress that enacted such sweeping protection put small-business\nowners to the choice that HHS suggests? An examination of RFRA\xe2\x80\x99s text, to which we turn in\nthe next part of this opinion, reveals that Congress did no such thing.\n\xe2\x80\xa6Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA\xe2\x80\x99s definition of \xe2\x80\x9cpersons.\xe2\x80\x9d But it is\nimportant to keep in mind that the purpose of this fiction is to provide protection for human\nbeings. A corporation is simply a form of organization used by human beings to achieve desired\nends. An established body of law specifies the rights and obligations of the people (including\nshareholders, officers, and employees) who are associated with a corporation in one way or\nanother. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the\ncompany. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations\xe2\x80\x99 financial well-being. And\nprotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel\nprotects the religious liberty of the humans who own and control those companies\xe2\x80\xa6.\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c342 Religion in the Law\nAs we noted above, RFRA applies to \xe2\x80\x9ca person\xe2\x80\x99s\xe2\x80\x9d exercise of religion, 42 U.S.C. \xc2\xa7\xc2\xa7\n2000bb\xe2\x80\x931(a), (b), and RFRA itself does not define the term \xe2\x80\x9cperson.\xe2\x80\x9d We therefore look to the\nDictionary Act, which we must consult \xe2\x80\x9c[i]n determining the meaning of any Act of Congress,\nunless the context indicates otherwise.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 1. Under the Dictionary Act, \xe2\x80\x9cthe word \xe2\x80\x98person\xe2\x80\x99 \xe2\x80\xa6 include[s] corporations, companies, associations, firms, partnerships, societies, and joint\nstock companies, as well as individuals.\xe2\x80\x9d \xe2\x80\xa6 Thus, unless there is something about the RFRA\ncontext that \xe2\x80\x9cindicates otherwise,\xe2\x80\x9d the Dictionary Act provides a quick, clear, and affirmative\nanswer to the question whether the companies involved in these cases may be heard.\nWe see nothing in RFRA that suggests a congressional intent to depart from the Dictionary\nAct definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and\nfree-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Esp\xc3\xadrita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (RFRA); Hosanna\xe2\x80\x93Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (2012) (Free Exercise); Church of the\nLukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (Free Exercise), and HHS concedes\nthat a nonprofit corporation can be a \xe2\x80\x9cperson\xe2\x80\x9d within the meaning of RFRA.\n\xe2\x80\xa6No known understanding of the term \xe2\x80\x9cperson\xe2\x80\x9d includes some but not all corporations.\nThe term \xe2\x80\x9cperson\xe2\x80\x9d sometimes encompasses artificial persons (as the Dictionary Act instructs),\nand it sometimes is limited to natural persons. But no conceivable definition of the term includes\nnatural persons and nonprofit corporations, but not for-profit corporations\xe2\x80\xa6.\nThe principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term \xe2\x80\x9cperson,\xe2\x80\x9d\nbut on the phrase \xe2\x80\x9cexercise of religion.\xe2\x80\x9d According to HHS and the dissent, these corporations\nare not protected by RFRA because they cannot exercise religion\xe2\x80\xa6.\nIs it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering\ntheir religious \xe2\x80\x9cautonomy ... often furthers individual religious freedom as well.\xe2\x80\x9d Corporation\nof Presiding Bishop of Church of Jesus Christ of Latter\xe2\x80\x93day Saints v. Amos, 483 U.S. 327, 342\n(1987) (Brennan, J., concurring in judgment). But this principle applies equally to for-profit corporations: Furthering their religious freedom also \xe2\x80\x9cfurthers individual religious freedom.\xe2\x80\x9d In\nthese cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims\nprotects the religious liberty of the Greens and the Hahns.\nIf the corporate form is not enough, what about the profit-making objective? In Braunfeld\nv. Brown, 366 U.S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective\nprecluded their claims. As the Court explained in a later case, the \xe2\x80\x9cexercise of religion\xe2\x80\x9d involves\n\xe2\x80\x9cnot only belief and profession but the performance of (or abstention from) physical acts\xe2\x80\x9d that\nare \xe2\x80\x9cengaged in for religious reasons.\xe2\x80\x9d Smith, 494 U.S. at 87. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition.\nThus, a law that \xe2\x80\x9coperates so as to make the practice of ... religious beliefs more expensive\xe2\x80\x9d in\nthe context of business activities imposes a burden on the exercise of religion. Braunfeld, at 605;\nsee United States v. Lee, 455 U.S. 252, 257 (1982) (recognizing that \xe2\x80\x9ccompulsory participation\nin the social security system interferes with [Amish employers\xe2\x80\x99] free exercise rights\xe2\x80\x9d).\n\xe2\x80\xa6While it is certainly true that a central objective of for-profit corporations is to make\nmoney, modern corporate law does not require for-profit corporations to pursue profit at the\nexpense of everything else, and many do not do so. For-profit corporations, with ownership\napproval, support a wide variety of charitable causes, and it is not at all uncommon for such\ncorporations to further humanitarian and other altruistic objectives. .... If for-profit corporations\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 343\nmay pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well\xe2\x80\xa6.hurrdurr327!\nFinally, HHS contends that Congress could not have wanted RFRA to apply to for-profit\ncorporations because it is difficult as a practical matter to ascertain the sincere \xe2\x80\x9cbeliefs\xe2\x80\x9d of a\ncorporation. HHS goes so far as to raise the specter of \xe2\x80\x9cdivisive, polarizing proxy battles over\nthe religious identity of large, publicly traded corporations such as IBM or General Electric.\xe2\x80\x9d\nThese cases, however, do not involve publicly traded corporations, and it seems unlikely\nthat the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has\nnot pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that\nunrelated shareholders\xe2\x80\x94including institutional investors with their own set of stakeholders\xe2\x80\x94\nwould agree to run a corporation under the same religious beliefs seems improbable. In any\nevent, we have no occasion in these cases to consider RFRA\xe2\x80\x99s applicability to such companies.\nThe companies in the cases before us are closely held corporations, each owned and controlled\nby members of a single family, and no one has disputed the sincerity of their religious beliefs\xe2\x80\xa6.\nHHS and the principal dissent express concern about the possibility of disputes among the\nowners of corporations, but that is not a problem that arises because of RFRA or that is unique\nto this context. The owners of closely held corporations may\xe2\x80\x94and sometimes do\xe2\x80\x94disagree\nabout the conduct of business. And even if RFRA did not exist, the owners of a company might\nwell have a dispute relating to religion. For example, some might want a company\xe2\x80\x99s stores to\nremain open on the Sabbath in order to make more money, and others might want the stores to\nclose for religious reasons. State corporate law provides a ready means for resolving any conflicts\nby, for example, dictating how a corporation can establish its governing structure. \xe2\x80\xa6 Courts\nwill turn to that structure and the underlying state law in resolving disputes.\nFor all these reasons, we hold that a federal regulation\xe2\x80\x99s restriction on the activities of a forprofit closely held corporation must comply with RFRA. Because RFRA applies in these cases,\nwe must next ask whether the HHS contraceptive mandate \xe2\x80\x9csubstantially burden[s]\xe2\x80\x9d the exercise of religion. 42 U.S.C. \xc2\xa7 2000bb\xe2\x80\x931(a). We have little trouble concluding that it does.\nAs we have noted, the Hahns and Greens have a sincere religious belief that life begins at\nconception. They therefore object on religious grounds to providing health insurance that covers\nmethods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the\nHHS mandate demands that they engage in conduct that seriously violates their religious beliefs.\nIf the Hahns and Greens and their companies do not yield to this demand, the economic\nconsequences will be severe. If the companies continue to offer group health plans that do not\ncover the contraceptives at issue, they will be taxed $100 per day for each affected individual.\n26 U.S.C. \xc2\xa7 4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about\n$475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million\nper year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums\nare surely substantial.\nIt is true that the plaintiffs could avoid these assessments by dropping insurance coverage\naltogether and thus forcing their employees to obtain health insurance on one of the exchanges\nestablished under ACA. But if at least one of their full-time employees were to qualify for a\nsubsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. \xc2\xa7\n4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million\nfor Conestoga, and $800,000 for Mardel\xe2\x80\xa6.\nIn taking the position that the HHS mandate does not impose a substantial burden on the\nexercise of religion, HHS\xe2\x80\x99s main argument (echoed by the principal dissent) is basically that the\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c344 Religion in the Law\nconnection between what the objecting parties must do (provide health-insurance coverage for\nfour methods of contraception that may operate after the fertilization of an egg) and the end\nthat they find to be morally wrong (destruction of an embryo) is simply too attenuated. HHS\nand the dissent note that providing the coverage would not itself result in the destruction of an\nembryo; that would occur only if an employee chose to take advantage of the coverage and to\nuse one of the four methods at issue.\nThis argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal\ncourts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS\nregulations is connected to the destruction of an embryo in a way that is sufficient to make it\nimmoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a\nperson to perform an act that is innocent in itself but that has the effect of enabling or facilitating\nthe commission of an immoral act by another. Arrogating the authority to provide a binding\nnational answer to this religious and philosophical question, HHS and the principal dissent in\neffect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused\nto take such a step. See, e.g., Smith, 494 U.S. at 887 (\xe2\x80\x9cRepeatedly and in many different contexts,\nwe have warned that courts must not presume to determine ... the plausibility of a religious\nclaim.\xe2\x80\x9d)\xe2\x80\xa6\nMoreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707\n(1981), we considered and rejected an argument that is nearly identical to the one now urged\nby HHS and the dissent. In Thomas, a Jehovah\xe2\x80\x99s Witness \xe2\x80\xa6 objected on religious grounds to\nparticipating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the employee, the state court had difficulty with the line that the employee drew between work that he found to be consistent with his religious beliefs \xe2\x80\xa6 and work\nthat he found morally objectionable\xe2\x80\xa6 This Court, however, held that \xe2\x80\x9cit is not for us to say\nthat the line he drew was an unreasonable one.\xe2\x80\x9d Id., at 715.\nSimilarly, in these cases, the Hahns and Greens and their companies sincerely believe that\nproviding the insurance coverage demanded by the HHS regulations lies on the forbidden side\nof the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.\nInstead, our \xe2\x80\x9cnarrow function ... in this context is to determine\xe2\x80\x9d whether the line drawn reflects\n\xe2\x80\x9can honest conviction,\xe2\x80\x9d id., at 716, and there is no dispute that it does. \xe2\x80\xa6 [The] plaintiffs assert\nthat funding the specific contraceptive methods at issue violates their religious beliefs, and HHS\ndoes not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money\xe2\x80\x94as much as $475 million per year in the case of Hobby Lobby\xe2\x80\x94if they\ninsist on providing insurance coverage in accordance with their religious beliefs, the mandate\nclearly imposes a substantial burden on those beliefs.\nSince the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both \xe2\x80\x9c(1) is in\nfurtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb\xe2\x80\x931(b)\xe2\x80\xa6.\nWe find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the\nmeaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e.,\nwhether HHS has shown that the contraceptive mandate is \xe2\x80\x9cthe least restrictive means of furthering that compelling governmental interest.\xe2\x80\x9d \xc2\xa7 2000bb\xe2\x80\x931(b)(2).\nThe least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 345\nU.S. at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving\nits desired goal without imposing a substantial burden on the exercise of religion by the objecting\nparties in these cases. See \xc2\xa7\xc2\xa7 2000bb\xe2\x80\x931(a), (b) (requiring the Government to \xe2\x80\x9cdemonstrate that\napplication of [a substantial] burden to the person ... is the least restrictive means of furthering\na compelling governmental interest\xe2\x80\x9d (emphasis added)).\nThe most straightforward way of doing this would be for the Government to assume the\ncost of providing the four contraceptives at issue to any women who are unable to obtain them\nunder their health-insurance policies due to their employers\xe2\x80\x99 religious objections. This would\ncertainly be less restrictive of the plaintiffs\xe2\x80\x99 religious liberty, and HHS has not shown, see \xc2\xa7\n2000bb\xe2\x80\x931(b)(2), that this is not a viable alternative. \xe2\x80\xa6 It seems likely \xe2\x80\xa6 that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives)\nwould be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office\xe2\x80\x99s most recent forecasts, ACA\xe2\x80\x99s insurance-coverage provisions will cost\nthe Federal Government more than $1.3 trillion through the next decade. If, as HHS tells us,\nproviding all women with cost-free access to all FDA-approved methods of contraception is a\nGovernment interest of the highest order, it is hard to understand HHS\xe2\x80\x99s argument that it cannot\nbe required under RFRA to pay anything in order to achieve this important goal.\nHHS contends that RFRA does not permit us to take this option into account because\n\xe2\x80\x9cRFRA cannot be used to require creation of entirely new programs.\xe2\x80\x9d But we see nothing in\nRFRA that supports this argument, and drawing the line between the \xe2\x80\x9ccreation of an entirely\nnew program\xe2\x80\x9d and the modification of an existing program (which RFRA surely allows) would\nbe fraught with problems. We do not doubt that cost may be an important factor in the leastrestrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens\xe2\x80\x99 religious\nbeliefs. Cf. \xc2\xa7 2000cc\xe2\x80\x933(c) (RLUIPA: \xe2\x80\x9c[T]his chapter may require a government to incur expenses\nin its own operations to avoid imposing a substantial burden on religious exercise.\xe2\x80\x9d)\xe2\x80\xa6.\nIn the end, however, we need not rely on the option of a new, government-funded program\nin order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has\ndemonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above,\nHHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing\ncoverage for particular contraceptive services. If the organization makes such a certification, the\norganization\xe2\x80\x99s insurance issuer or third-party administrator must \xe2\x80\x9c[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the\ngroup health plan\xe2\x80\x9d and \xe2\x80\x9c[p]rovide separate payments for any contraceptive services required to\nbe covered\xe2\x80\x9d without imposing \xe2\x80\x9cany cost-sharing requirements ... on the eligible organization,\nthe group health plan, or plan participants or beneficiaries.\xe2\x80\x9d\nWe do not decide today whether an approach of this type complies with RFRA for purposes\nof all religious claims. At a minimum, however, it does not impinge on the plaintiffs\xe2\x80\x99 religious\nbelief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS\xe2\x80\x99s stated interests equally well\xe2\x80\xa6.\nIt is HHS\xe2\x80\x99s apparent belief that no insurance-coverage mandate would violate RFRA\xe2\x80\x94no\nmatter how significantly it impinges on the religious liberties of employers\xe2\x80\x94that would lead to\nintolerable consequences. Under HHS\xe2\x80\x99s view, RFRA would permit the Government to require\nall employers to provide coverage for any medical procedure allowed by law in the jurisdiction\nin question\xe2\x80\x94for instance, third-trimester abortions or assisted suicide. The owners of many\nclosely held corporations could not in good conscience provide such coverage, and thus HHS\nwould effectively exclude these people from full participation in the economic life of the Nation.\nRFRA was enacted to prevent such an outcome.\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c346 Religion in the Law\nIn any event, our decision in these cases is concerned solely with the contraceptive mandate.\nOur decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer\xe2\x80\x99s religious beliefs. Other coverage requirements, such\nas immunizations, may be supported by different interests (for example, the need to combat the\nspread of infectious diseases) and may involve different arguments about the least restrictive\nmeans of providing them\xe2\x80\xa6.\nHHS also raises \xe2\x80\xa6 the argument that applying the contraceptive mandate to for-profit employers with sincere religious objections is essential to the comprehensive health-insurance\nscheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to\npay Social Security taxes, which we upheld in Lee despite the religious objection of an employer,\nbut these cases are quite different. Our holding in Lee turned primarily on the special problems\nassociated with a national system of taxation. We noted that \xe2\x80\x9c[t]he obligation to pay the social\nsecurity tax initially is not fundamentally different from the obligation to pay income taxes.\xe2\x80\x9d\n455 U.S. at 260. Based on that premise, we explained that it was untenable to allow individuals\nto seek exemptions from taxes based on religious objections to particular Government expenditures.\xe2\x80\xa6 We observed that \xe2\x80\x9c[t]he tax system could not function if denominations were allowed\nto challenge the tax system because tax payments were spent in a manner that violates their\nreligious belief.\xe2\x80\x9d Ibid.\nLee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the\nRFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax\nobligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for\nuse in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase\ninsurance for their own employees \xe2\x80\xa6 and the employers\xe2\x80\x99 contributions do not necessarily funnel\ninto \xe2\x80\x9cundifferentiated funds.\xe2\x80\x9d \xe2\x80\xa6 Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA\xe2\x80\x99s comprehensive\nscheme in the way that recognizing religious objections to particular expenditures from general\ntax revenues would.\nIn its final pages, the principal dissent reveals that its fundamental objection to the claims\nof the plaintiffs is an objection to RFRA itself. \xe2\x80\xa6 The wisdom of Congress\xe2\x80\x99s judgment on this\nmatter is not our concern. Our responsibility is to enforce RFRA as written, and under the\nstandard that RFRA prescribes, the HHS contraceptive mandate is unlawful.\nThe contraceptive mandate, as applied to closely held corporations, violates RFRA. \xe2\x80\xa6 The\njudgment of the Tenth Circuit in No. 13\xe2\x80\x93354 is affirmed; the judgment of the Third Circuit in\nNo. 13\xe2\x80\x93356 is reversed, and that case is remanded for further proceedings consistent with this\nopinion.\nIt is so ordered.\nJustice KENNEDY, concurring.\n\xe2\x80\xa6On this record and as explained by the Court, the Government has not met its burden of\nshowing that it cannot accommodate the plaintiffs\xe2\x80\x99 similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers\xe2\x80\x94burdening one while accommodating the\nother\xe2\x80\x94when it may treat both equally by offering both of them the same accommodation. \xe2\x80\xa6\nAs the Court makes clear, this is not a case where it can be established that it is difficult to\naccommodate the government\xe2\x80\x99s interest, and in fact the mechanism for doing so is already in\nplace.\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 347\n\xe2\x80\x9c[T]he American community is today, as it long has been, a rich mosaic of religious faiths.\xe2\x80\x9d\nTown of Greece v. Galloway, 134 S.Ct. 1811, 1849 (2014) (KAGAN, J., dissenting). Among\nthe reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same\nexercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are\nat hand in the existing accommodation the Government has designed, identified, and used for\ncircumstances closely parallel to those presented here. RFRA requires the Government to use\nthis less restrictive means. As the Court explains, this existing model, designed precisely for this\nproblem, might well suffice to distinguish the instant cases from many others in which it is more\ndifficult and expensive to accommodate a governmental program to countless religious claims\nbased on an alleged statutory right of free exercise\xe2\x80\xa6.\nJustice GINSBURG, with whom Justice SOTOMAYOR joins, and with whom Justice BREYER\nand Justice KAGAN join [in part], dissenting.\nIn a decision of startling breadth, the Court holds that commercial enterprises, including\ncorporations, along with partnerships and sole proprietorships, can opt out of any law (saving\nonly tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling\ngovernmental interests in uniform compliance with the law, and disadvantages that religionbased opt-outs impose on others, hold no sway, the Court decides, at least when there is a \xe2\x80\x9cless\nrestrictive alternative.\xe2\x80\x9d And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e.,\nthe general public, can pick up the tab.\nThe Court does not pretend that the First Amendment\xe2\x80\x99s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA),\n42 U.S.C. \xc2\xa7 2000bb et seq., dictated the extraordinary religion-based exemptions today\xe2\x80\x99s decision endorses. In the Court\xe2\x80\x99s view, RFRA demands accommodation of a for-profit corporation\xe2\x80\x99s\nreligious beliefs no matter the impact that accommodation may have on third parties who do\nnot share the corporation owners\xe2\x80\x99 religious faith\xe2\x80\x94in these cases, thousands of women employed\nby Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc\nthe Court\xe2\x80\x99s judgment can introduce, I dissent.\n\xe2\x80\x9cThe ability of women to participate equally in the economic and social life of the Nation\nhas been facilitated by their ability to control their reproductive lives.\xe2\x80\x9d Planned Parenthood of\nSoutheastern Pa. v. Casey, 505 U.S. 833, 856 (1992). Congress acted on that understanding\nwhen, as part of a nationwide insurance program intended to be comprehensive, it called for\ncoverage of preventive care responsive to women\xe2\x80\x99s needs. \xe2\x80\xa6\nAs altered by the Women\xe2\x80\x99s Health Amendment\xe2\x80\x99s passage, the ACA requires new insurance\nplans to include coverage without cost sharing of \xe2\x80\xa6 the \xe2\x80\x9cfull range\xe2\x80\x9d of FDA-approved contraceptive methods. \xe2\x80\xa6 [The] HRSA adopted guidelines recommending coverage of \xe2\x80\x9c[a]ll [FDA-]\napproved contraceptive methods, sterilization procedures, and patient education and counseling\nfor all women with reproductive capacity.\xe2\x80\x9d Thereafter, HHS, the Department of Labor, and the\nDepartment of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the HRSA guidelines, subject to certain exceptions. \xe2\x80\xa6 This opinion refers to these regulations as the contraceptive coverage requirement.\nWhile the Women\xe2\x80\x99s Health Amendment succeeded, a countermove proved unavailing. The\nSenate voted down the so-called \xe2\x80\x9cconscience amendment,\xe2\x80\x9d which would have enabled any employer or insurance provider to deny coverage based on its asserted \xe2\x80\x9creligious beliefs or moral\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c348 Religion in the Law\nconvictions.\xe2\x80\x9d That amendment, Senator Mikulski observed, would have \xe2\x80\x9cpu[t] the personal\nopinion of employers and insurers over the practice of medicine.\xe2\x80\x9d Rejecting the \xe2\x80\x9cconscience\namendment,\xe2\x80\x9d Congress left health care decisions\xe2\x80\x94including the choice among contraceptive\nmethods\xe2\x80\x94in the hands of women, with the aid of their health care providers.\nAny First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might assert\nis foreclosed by this Court\xe2\x80\x99s decision in Employment Div., Dept. of Human Resources of Ore.\nv. Smith, 494 U.S. 872 (1990)\xe2\x80\xa6. The First Amendment is not offended, Smith held, when \xe2\x80\x9cprohibiting the exercise of religion ... is not the object of [governmental regulation] but merely the\nincidental effect of a generally applicable and otherwise valid provision.\xe2\x80\x9d Id., at 878. \xe2\x80\xa6 The\nACA\xe2\x80\x99s contraceptive coverage requirement applies generally, it is \xe2\x80\x9cotherwise valid,\xe2\x80\x9d it trains on\nwomen\xe2\x80\x99s well being, not on the exercise of religion, and any effect it has on such exercise is\nincidental.\nEven if Smith did not control, the Free Exercise Clause would not require the exemption\nHobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the\nCourt has clarified, must not significantly impinge on the interests of third parties. See Wisconsin\nv. Yoder, 406 U.S. 205, 230 (1972) (\xe2\x80\x9cThis case, of course, is not one in which any harm to the\nphysical or mental health of the child or to the public safety, peace, order, or welfare has been\ndemonstrated or may be properly inferred.\xe2\x80\x9d); Estate of Thornton v. Caldor, Inc., 472 U.S. 703\n(1985) (invalidating state statute requiring employers to accommodate an employee\xe2\x80\x99s Sabbath\nobservance where that statute failed to take into account the burden such an accommodation\nwould impose on the employer or other employees).\nThe exemption sought by Hobby Lobby and Conestoga would override significant interests\nof the corporations\xe2\x80\x99 employees and covered dependents. It would deny legions of women who\ndo not hold their employers\xe2\x80\x99 beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 565\n(2004) (\xe2\x80\x9cWe are unaware of any decision in which ... [the U.S. Supreme Court] has exempted a\nreligious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.\xe2\x80\x9d). In\nsum, with respect to free exercise claims no less than free speech claims, \xe2\x80\x9cyour right to swing\nyour arms ends just where the other man\xe2\x80\x99s nose begins.\xe2\x80\x9d Chafee, Freedom of Speech in War\nTime, 32 Harv. L.Rev. 932, 957 (1919).\nLacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely\non RFRA \xe2\x80\xa6 42 U.S.C. \xc2\xa7 2000bb\xe2\x80\x931(a), (b)(2). In RFRA, Congress \xe2\x80\x9cadopt[ed] a statutory rule\ncomparable to the constitutional rule rejected in Smith.\xe2\x80\x9d Gonzales v. O Centro Esp\xc3\xadrita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).\nRFRA\xe2\x80\x99s purpose is specific and written into the statute itself. The Act was crafted to \xe2\x80\x9crestore\nthe compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin\nv. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of\nreligion is substantially burdened.\xe2\x80\x9d \xc2\xa7 2000bb(b)(1)\xe2\x80\xa6. In line with this restorative purpose, Congress expected courts considering RFRA claims to \xe2\x80\x9clook to free exercise cases decided prior to\nSmith for guidance.\xe2\x80\x9d \xe2\x80\xa6\nWith RFRA\xe2\x80\x99s restorative purpose in mind, I turn to the Act\xe2\x80\x99s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several\nquestions, each potentially dispositive of Hobby Lobby\xe2\x80\x99s and Conestoga\xe2\x80\x99s claims: Do for-profit\ncorporations rank among \xe2\x80\x9cperson[s]\xe2\x80\x9d who \xe2\x80\x9cexercise ... religion\xe2\x80\x9d? Assuming that they do, does\nthe contraceptive coverage requirement \xe2\x80\x9csubstantially burden\xe2\x80\x9d their religious exercise? If so, is\nthe requirement \xe2\x80\x9cin furtherance of a compelling government interest\xe2\x80\x9d? And last, does the requirement represent the least restrictive means for furthering that interest? \xe2\x80\xa6\nRFRA\xe2\x80\x99s compelling interest test, as noted, applies to government actions that \xe2\x80\x9csubstantially\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 349\nburden a person\xe2\x80\x99s exercise of religion.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb\xe2\x80\x931(a) (emphasis added). This reference, the Court submits, incorporates the definition of \xe2\x80\x9cperson\xe2\x80\x9d found in the Dictionary Act, 1\nU.S.C. \xc2\xa7 1, which extends to \xe2\x80\x9ccorporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.\xe2\x80\x9d The Dictionary Act\xe2\x80\x99s definition, however,\ncontrols only where \xe2\x80\x9ccontext\xe2\x80\x9d does not \xe2\x80\x9cindicat[e] otherwise.\xe2\x80\x9d Here, context does so indicate.\nRFRA speaks of \xe2\x80\x9ca person\xe2\x80\x99s exercise of religion.\xe2\x80\x9d \xe2\x80\xa6 Whether a corporation qualifies as a \xe2\x80\x9cperson\xe2\x80\x9d capable of exercising religion is an inquiry one cannot answer without reference to the full\nbody of pre-Smith free-exercise case law. There is in that case law no support for the notion that\nfree exercise rights pertain to for-profit corporations.\nUntil this litigation, no decision of this Court recognized a for-profit corporation\xe2\x80\x99s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise\nClause or RFRA. The absence of such precedent is just what one would expect, for the exercise\nof religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is \xe2\x80\x9can artificial being, invisible, intangible,\nand existing only in contemplation of law.\xe2\x80\x9d Trustees of Dartmouth College v. Woodward, 4\nWheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, \xe2\x80\x9chave no consciences, no beliefs, no feelings, no thoughts, no desires.\xe2\x80\x9d Citizens United v. Federal Election\nComm\xe2\x80\x99n, 558 U.S. 310, 466 (2010) (opinion concurring in part and dissenting in part).\nThe First Amendment\xe2\x80\x99s free exercise protections, the Court has indeed recognized, shelter\nchurches and other nonprofit religion-based organizations. \xe2\x80\x9cFor many individuals, religious activity derives meaning in large measure from participation in a larger religious community,\xe2\x80\x9d and\n\xe2\x80\x9cfurtherance of the autonomy of religious organizations often furthers individual religious freedom as well.\xe2\x80\x9d Corporation of Presiding Bishop of Church of Jesus Christ of Latter\xe2\x80\x93day Saints\nv. Amos, 483 U.S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court\xe2\x80\x99s \xe2\x80\x9cspecial\nsolicitude to the rights of religious organizations,\xe2\x80\x9d Hosanna\xe2\x80\x93Tabor Evangelical Lutheran\nChurch and School v. EEOC, 132 S.Ct. 694, 706 (2012), however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had\nnever been extended to any entity operating in \xe2\x80\x9cthe commercial, profit-making world.\xe2\x80\x9d Amos,\n483 U.S. at 337.\nThe reason why is hardly obscure. Religious organizations exist to foster the interests of\npersons subscribing to the same religious faith. Not so of for-profit corporations. Workers who\nsustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. See 42 U.S.C. \xc2\xa7\xc2\xa7 2000e(b), 2000e\xe2\x80\x931(a), 2000e\xe2\x80\x932(a); cf. Trans World Airlines, Inc. v.\nHardison, 432 U.S. 63, 80\xe2\x80\x9381, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (Title VII requires reasonable accommodation of an employee\xe2\x80\x99s religious exercise, but such accommodation must not\ncome \xe2\x80\x9cat the expense of other[ employees]\xe2\x80\x9d). The distinction between a community made up of\nbelievers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court\xe2\x80\x99s attention. One can only wonder why the Court shuts this key difference from sight.\nReading RFRA, as the Court does, to require extension of religion-based exemptions to forprofit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that\neffect likely would have been made in the legislation. \xe2\x80\xa6 The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations\xe2\x80\xa6.\nThe Court notes that for-profit corporations may support charitable causes and use their\nfunds for religious ends, and therefore questions the distinction between such corporations and\nreligious nonprofit organizations. \xe2\x80\xa6 Again, the Court forgets that religious organizations exist\nto serve a community of believers. For-profit corporations do not fit that bill. Moreover, history\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c350 Religion in the Law\nis not on the Court\xe2\x80\x99s side. Recognition of the discrete characters of \xe2\x80\x9cecclesiastical and lay\xe2\x80\x9d corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England\n458 (1765), and was reiterated by this Court centuries before the enactment of the Internal\nRevenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations);\nTrustees of Dartmouth College, 4 Wheat., at 645 (discussing \xe2\x80\x9celeemosynary\xe2\x80\x9d corporations, including those \xe2\x80\x9c created for the promotion of religion\xe2\x80\x9d). To reiterate, \xe2\x80\x9cfor-profit corporations are\ndifferent from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].\xe2\x80\x9d Gilardi, 733 F.3d, at 1242\n(Edwards, J., concurring in part and dissenting in part).\nCiting Braunfeld v. Brown, 366 U.S. 599 (1961), the Court questions why, if \xe2\x80\x9ca sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and\nConestoga] can\xe2\x80\x99t ... do the same?\xe2\x80\x9d But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause,\nthe Court\xe2\x80\x99s conclusion is unsound. In a sole proprietorship, the business and its owner are one\nand the same. By incorporating a business, however, an individual separates herself from the\nentity and escapes personal responsibility for the entity\xe2\x80\x99s obligations. One might ask why the\nseparation should hold only when it serves the interest of those who control the corporation. In\nany event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits\xe2\x80\xa6.\nEven if Hobby Lobby and Conestoga were deemed RFRA \xe2\x80\x9cperson[s],\xe2\x80\x9d to gain an exemption, they must demonstrate that the contraceptive coverage requirement \xe2\x80\x9csubstantially burden[s] [their] exercise of religion.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb\xe2\x80\x931(a). Congress no doubt meant the modifier \xe2\x80\x9csubstantially\xe2\x80\x9d to carry weight. In the original draft of RFRA, the word \xe2\x80\x9cburden\xe2\x80\x9d appeared\nunmodified. The word \xe2\x80\x9csubstantially\xe2\x80\x9d was inserted pursuant to a clarifying amendment offered\nby Senators Kennedy and Hatch. In proposing the amendment, Senator Kennedy stated that\nRFRA, in accord with the Court\xe2\x80\x99s pre-Smith case law, \xe2\x80\x9cdoes not require the Government to\njustify every action that has some effect on religious exercise.\xe2\x80\x9d\nThe Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens\xe2\x80\x99 and Hahns\xe2\x80\x99 \xe2\x80\x9cbelie[f] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo\nin a way that is sufficient to make it immoral for them to provide the coverage.\xe2\x80\x9d I agree with\nthe Court that the Green and Hahn families\xe2\x80\x99 religious convictions regarding contraception are\nsincerely held. See Thomas, 450 U.S. at 715 (courts are not to question where an individual\n\xe2\x80\x9cdr[aws] the line\xe2\x80\x9d in defining which practices run afoul of her religious beliefs). \xe2\x80\xa6 But those\nbeliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between \xe2\x80\x9cfactual allegations that [plaintiffs\xe2\x80\x99] beliefs are sincere and of a\nreligious nature,\xe2\x80\x9d which a court must accept as true, and the \xe2\x80\x9clegal conclusion ... that [plaintiffs\xe2\x80\x99]\nreligious exercise is substantially burdened,\xe2\x80\x9d an inquiry the court must undertake. Kaemmerling\nv. Lappin, 553 F.3d 669, 679 (C.A.D.C.2008).\nThat distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy,\n476 U.S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the\nGovernment\xe2\x80\x99s use of a Native American child\xe2\x80\x99s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father\xe2\x80\x99s religious belief that\n\xe2\x80\x9cuse of [his daughter\xe2\x80\x99s Social Security] number may harm [her] spirit,\xe2\x80\x9d the Court concluded that\nthe Government\xe2\x80\x99s internal uses of that number \xe2\x80\x9cplace[d] [no] restriction on what [the father]\nmay believe or what he may do.\xe2\x80\x9d Id., at 699. Recognizing that the father\xe2\x80\x99s \xe2\x80\x9creligious views may\nnot accept\xe2\x80\x9d the position that the challenged uses concerned only the Government\xe2\x80\x99s internal affairs, the Court explained that \xe2\x80\x9cfor the adjudication of a constitutional claim, the Constitution,\nrather than an individual\xe2\x80\x99s religion, must supply the frame of reference.\xe2\x80\x9d Id., at 700\xe2\x80\x93701, n. 6.\nSee also Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (distinguishing between, on the\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 351\none hand, \xe2\x80\x9cquestion[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants\xe2\x80\x99 interpretations of those creeds,\xe2\x80\x9d and, on the other, \xe2\x80\x9cwhether the\nalleged burden imposed [by the challenged government action] is a substantial one\xe2\x80\x9d). Inattentive\nto this guidance, today\xe2\x80\x99s decision elides entirely the distinction between the sincerity of a challenger\xe2\x80\x99s religious belief and the substantiality of the burden placed on the challenger.\nUndertaking the inquiry that the Court forgoes, I would conclude that the connection between the families\xe2\x80\x99 religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the\ncompanies covered by the requirement to direct money into undifferentiated funds that finance\na wide variety of benefits under comprehensive health plans. Those plans, in order to comply\nwith the ACA, must offer contraceptive coverage without cost sharing, just as they must cover\nan array of other preventive services.\nImportantly, the decisions whether to claim benefits under the plans are made not by Hobby\nLobby or Conestoga, but by the covered employees and dependents, in consultation with their\nhealth care providers. Should an employee of Hobby Lobby or Conestoga share the religious\nbeliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives\nin question. But \xe2\x80\x9c[n]o individual decision by an employee and her physician\xe2\x80\x94be it to use contraception, treat an infection, or have a hip replaced\xe2\x80\x94is in any meaningful sense [her employer\xe2\x80\x99s]\ndecision or action.\xe2\x80\x9d Grote v. Sebelius, 708 F.3d 850, 865 (C.A.7 2013) (Rovner, J., dissenting).\nIt is doubtful that Congress, when it specified that burdens must be \xe2\x80\x9csubstantia[l],\xe2\x80\x9d had in mind\na linkage thus interrupted by independent decisionmakers (the woman and her health counselor)\nstanding between the challenged government action and the religious exercise claimed to be\ninfringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby\xe2\x80\x99s\nor Conestoga\xe2\x80\x99s plan will not be propelled by the Government, it will be the woman\xe2\x80\x99s autonomous choice, informed by the physician she consults.\nEven if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden\nrequirement, the Government has shown that the contraceptive coverage for which the ACA\nprovides furthers compelling interests in public health and women\xe2\x80\x99s well being. Those interests\nare concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the\nmandated contraception coverage enables women to avoid the health problems unintended\npregnancies may visit on them and their children. The coverage helps safeguard the health of\nwomen for whom pregnancy may be hazardous, even life threatening. And the mandate secures\nbenefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and\npelvic pain\xe2\x80\xa6.\nThe Court ultimately acknowledges a critical point: RFRA\xe2\x80\x99s application \xe2\x80\x9cmust take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.\xe2\x80\x9d\n(quoting Cutter v. Wilkinson, 544 U.S. 709, 720 (2005)(emphasis added). No tradition, and no\nprior decision under RFRA, allows a religion-based exemption when the accommodation would\nbe harmful to others\xe2\x80\x94here, the very persons the contraceptive coverage requirement was designed to protect. Cf. Prince v. Massachusetts, 321 U.S. 158, 177 (1944) (Jackson, J., dissenting)\n(\xe2\x80\x9c[The] limitations which of necessity bound religious freedom ... begin to operate whenever\nactivities begin to affect or collide with liberties of others or of the public.\xe2\x80\x9d).\nAfter assuming the existence of compelling government interests, the Court holds that the\ncontraceptive coverage requirement fails to satisfy RFRA\xe2\x80\x99s least restrictive means test. But the\nGovernment has shown that there is no less restrictive, equally effective means that would both\n(1) satisfy the challengers\xe2\x80\x99 religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA\xe2\x80\x99s\ncontraceptive coverage requirement, to ensure that women employees receive, at no cost to\nthem, the preventive care needed to safeguard their health and well being. A \xe2\x80\x9cleast restrictive\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c352 Religion in the Law\nmeans\xe2\x80\x9d cannot require employees to relinquish benefits accorded them by federal law in order\nto ensure that their commercial employers can adhere unreservedly to their religious tenets.\nThen let the government pay (rather than the employees who do not share their employer\xe2\x80\x99s\nfaith), the Court suggests. \xe2\x80\xa6 The ACA, however, requires coverage of preventive services\nthrough the existing employer-based system of health insurance \xe2\x80\x9cso that [employees] face minimal logistical and administrative obstacles.\xe2\x80\x9d Impeding women\xe2\x80\x99s receipt of benefits \xe2\x80\x9cby requiring\nthem to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit\xe2\x80\x9d was scarcely what Congress contemplated\xe2\x80\xa6.\nAnd where is the stopping point to the \xe2\x80\x9clet the government pay\xe2\x80\x9d alternative? Suppose an\nemployer\xe2\x80\x99s sincerely held religious belief is offended by health coverage of vaccines, or paying\nthe minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290,\n303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (C.A.4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has\na religion-based objection? Because the Court cannot easily answer that question, it proposes\nsomething else: Extension to commercial enterprises of the accommodation already afforded to\nnonprofit religion-based organizations. \xe2\x80\x9cAt a minimum,\xe2\x80\x9d according to the Court, such an approach would not \xe2\x80\x9cimpinge on [Hobby Lobby\xe2\x80\x99s and Conestoga\xe2\x80\x99s] religious belief.\xe2\x80\x9d \xe2\x80\xa6 Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit religionbased organizations: \xe2\x80\x9cWe do not decide today whether [the] approach [the opinion advances]\ncomplies with RFRA for purposes of all religious claims.\xe2\x80\x9d \xe2\x80\xa6\nAmong the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455\nU.S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the\nOld Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer\xe2\x80\x99s share of such taxes would violate the Amish faith. This Court held\nthat, although the obligations imposed by the Social Security system conflicted with Lee\xe2\x80\x99s religious beliefs, the burden was not unconstitutional. Id., at 260\xe2\x80\x93261. \xe2\x80\xa6 The Government urges\nthat Lee should control the challenges brought by Hobby Lobby and Conestoga. In contrast,\ntoday\xe2\x80\x99s Court dismisses Lee as a tax case. Indeed, it was a tax case and the Court in Lee homed\nin on \xe2\x80\x9c[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.\xe2\x80\x9d\n455 U.S. at 259..\nBut the Lee Court made two key points one cannot confine to tax cases. \xe2\x80\x9cWhen followers\nof a particular sect enter into commercial activity as a matter of choice,\xe2\x80\x9d the Court observed,\n\xe2\x80\x9cthe limits they accept on their own conduct as a matter of conscience and faith are not to be\nsuperimposed on statutory schemes which are binding on others in that activity.\xe2\x80\x9d Id., at 261.\nThe statutory scheme of employer-based comprehensive health coverage involved in these cases\nis surely binding on others engaged in the same trade or business as the corporate challengers\nhere, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would \xe2\x80\x9coperat[e] to impose the employer\xe2\x80\x99s\nreligious faith on the employees.\xe2\x80\x9d Ibid. No doubt the Greens and Hahns and all who share their\nbeliefs may decline to acquire for themselves the contraceptives in question. But that choice may\nnot be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga,\nin other words, should not deprive employees of the preventive care available to workers at the\nshop next door, at least in the absence of directions from the Legislature or Administration to\ndo so.\nWhy should decisions of this order be made by Congress or the regulatory authority, and\nnot this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.\nSee, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F.Supp. 941, 945 (D.S.C.1966) (owner\nof restaurant chain refused to serve black patrons based on his religious beliefs opposing racial\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 353\nintegration); In re Minnesota ex rel. McClure, 370 N.W.2d 844, 847 (Minn. 1985) (born-again\nChristians who owned closely held, for-profit health clubs believed that the Bible proscribed\nhiring or retaining an \xe2\x80\x9cindividua[l] living with but not married to a person of the opposite sex,\xe2\x80\x9d\n\xe2\x80\x9ca young, single woman working without her father\xe2\x80\x99s consent or a married woman working\nwithout her husband\xe2\x80\x99s consent,\xe2\x80\x9d and any person \xe2\x80\x9cantagonistic to the Bible,\xe2\x80\x9d including \xe2\x80\x9cfornicators and homosexuals.\xe2\x80\x9d); Elane Photography, LLC v. Willock, 309 P.3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple\xe2\x80\x99s commitment ceremony based on the religious beliefs of the company\xe2\x80\x99s owners). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious\nbeliefs are worthy of accommodation, and which are not? Isn\xe2\x80\x99t the Court disarmed from making\nsuch a judgment given its recognition that \xe2\x80\x9ccourts must not presume to determine ... the plausibility of a religious claim\xe2\x80\x9d?\nWould the exemption the Court holds RFRA demands for employers with religiously\ngrounded objections to the use of certain contraceptives extend to employers with religiously\ngrounded objections to blood transfusions (Jehovah\xe2\x80\x99s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated\nwith gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among\nothers)? According to counsel for Hobby Lobby, \xe2\x80\x9ceach one of these cases ... would have to be\nevaluated on its own ... applying the compelling interest-least restrictive alternative test.\xe2\x80\x9d Not\nmuch help there for the lower courts bound by today\xe2\x80\x99s decision\xe2\x80\xa6.\nThere is an overriding interest, I believe, in keeping the courts \xe2\x80\x9cout of the business of evaluating the relative merits of differing religious claims,\xe2\x80\x9d Lee, 455 U.S. at 263, n. 2, (Stevens, J.,\nconcurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed,\napproving some religious claims while deeming others unworthy of accommodation could be\n\xe2\x80\x9cperceived as favoring one religion over another,\xe2\x80\x9d the very \xe2\x80\x9crisk the Establishment Clause was\ndesigned to preclude.\xe2\x80\x9d Ibid. The Court, I fear, has ventured into a minefield \xe2\x80\xa6 by its immoderate\nreading of RFRA. I would confine religious exemptions under that Act to organizations formed\nfor a religious purpose, engaged primarily in carrying out that religious purpose, and not engaged substantially in the exchange of goods or services for money beyond nominal amounts.\nJustice BREYER and Justice KAGAN, dissenting.\nWe agree with Justice GINSBURG that the plaintiffs\xe2\x80\x99 challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit\ncorporations or their owners may bring claims under the Religious Freedom Restoration Act of\n1993. Accordingly, we join all but [that part] of Justice GINSBURG\xe2\x80\x99s dissenting opinion.\n\nBurwell v. Hobby Lobby, 573 U.S. 682 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c354 Religion in the Law\n\n138 S.Ct. 1719\nSupreme Court of the United States\n\nMasterpiece Cakeshop v. Colorado\nCivil Rights Commission\nJune 4, 2018\nJustice KENNEDY delivered the opinion of the Court.\nIn 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make\ninquiries about ordering a cake for their wedding reception. The shop\xe2\x80\x99s owner told the couple\nthat he would not create a cake for their wedding because of his religious opposition to samesex marriages\xe2\x80\x94marriages the State of Colorado itself did not recognize at that time. The couple\nfiled a charge with the Colorado Civil Rights Commission alleging discrimination on the basis\nof sexual orientation in violation of the Colorado Anti\xe2\x80\x93Discrimination Act.\nThe Commission determined that the shop\xe2\x80\x99s actions violated the Act and ruled in the couple\xe2\x80\x99s favor. The Colorado state courts affirmed the ruling and its enforcement order, and this\nCourt now must decide whether the Commission\xe2\x80\x99s order violated the Constitution.\nThe case presents difficult questions as to the proper reconciliation of at least two principles.\nThe first is the authority of a State and its governmental entities to protect the rights and dignity\nof gay persons who are, or wish to be, married but who face discrimination when they seek\ngoods or services. The second is the right of all persons to exercise fundamental freedoms under\nthe First Amendment, as applied to the States through the Fourteenth Amendment\xe2\x80\xa6.\nWhatever the confluence of speech and free exercise principles might be in some cases, the\nColorado Civil Rights Commission\xe2\x80\x99s consideration of this case was inconsistent with the State\xe2\x80\x99s\nobligation of religious neutrality. The reason and motive for the baker\xe2\x80\x99s refusal were based on\nhis sincere religious beliefs and convictions. The Court\xe2\x80\x99s precedents make clear that the baker, in\nhis capacity as the owner of a business serving the public, might have his right to the free exercise\nof religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be\na factor in the balance the State sought to reach. That requirement, however, was not met here.\nWhen the Colorado Civil Rights Commission considered this case, it did not do so with the\nreligious neutrality that the Constitution requires\xe2\x80\xa6.\nMasterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The\nshop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate\ncustom-designed cakes for birthday parties, weddings, and other events.\nJack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips\nis a devout Christian. He has explained that his \xe2\x80\x9cmain goal in life is to be obedient to\xe2\x80\x9d Jesus\nChrist and Christ\xe2\x80\x99s \xe2\x80\x9cteachings in all aspects of his life.\xe2\x80\x9d And he seeks to \xe2\x80\x9chonor God through\nhis work at Masterpiece Cakeshop.\xe2\x80\x9d One of Phillips\xe2\x80\x99 religious beliefs is that \xe2\x80\x9cGod\xe2\x80\x99s intention\nfor marriage from the beginning of history is that it is and should be the union of one man and\none woman.\xe2\x80\x9d. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent\nto participating in a celebration that is contrary to his own most deeply held beliefs.\nPhillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 355\n2012. Craig and Mullins were planning to marry. \xe2\x80\xa6 To prepare for their celebration, Craig and\nMullins visited the shop and told Phillips that they were interested in ordering a cake for \xe2\x80\x9cour\nwedding.\xe2\x80\x9d They did not mention the design of the cake they envisioned. Phillips informed the\ncouple that he does not \xe2\x80\x9ccreate\xe2\x80\x9d wedding cakes for same-sex weddings. He explained, \xe2\x80\x9cI\xe2\x80\x99ll make\nyour birthday cakes, shower cakes, sell you cookies and brownies, I just don\xe2\x80\x99t make cakes for\nsame sex weddings.\xe2\x80\x9d The couple left the shop without further discussion.\nThe following day, Craig\xe2\x80\x99s mother, who had accompanied the couple to the cakeshop and\nbeen present for their interaction with Phillips, telephoned to ask Phillips why he had declined\nto serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings\nbecause of his religious opposition to same-sex marriage, and also because Colorado (at that\ntime) did not recognize same-sex marriages. He later explained his belief that \xe2\x80\x9cto create a wedding cake for an event that celebrates something that directly goes against the teachings of the\nBible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.\xe2\x80\x9d \xe2\x80\xa6\n[The] Colorado Anti\xe2\x80\x93Discrimination Act (CADA) \xe2\x80\xa6 in relevant part provides as follows:\nIt is a discriminatory practice and unlawful for a person, directly or indirectly,\nto refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national\norigin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. Colo. Rev. Stat. \xc2\xa7 24\xe2\x80\x9334\xe2\x80\x93601(2)(a) (2017).\nThe Act defines \xe2\x80\x9cpublic accommodation\xe2\x80\x9d broadly to include any \xe2\x80\x9cplace of business engaged in any sales to the public and any place offering services ... to the public,\xe2\x80\x9d but excludes \xe2\x80\x9ca\nchurch, synagogue, mosque, or other place that is principally used for religious purposes.\xe2\x80\x9d \xc2\xa7 24\xe2\x80\x93\n34\xe2\x80\x93601(1).\n\xe2\x80\xa6Complaints of discrimination in violation of CADA are addressed in the first instance by\nthe Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable\ncause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state\nAdministrative Law Judge (ALJ), who will hear evidence and argument before issuing a written\ndecision. The decision of the ALJ may be appealed to the full Commission, a seven-member\nappointed body. The Commission holds a public hearing and deliberative session before voting\non the case. If the Commission determines that the evidence proves a CADA violation, it may\nimpose remedial measures as provided by statute. Available remedies include, among other\nthings, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with\nthe Commission, and \xe2\x80\x9cto take affirmative action, including the posting of notices setting forth\nthe substantive rights of the public.\xe2\x80\x9d Colorado law does not permit the Commission to assess\nmoney damages or fines.\nCraig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple\xe2\x80\x99s visit to the shop\xe2\x80\xa6.\nThe Civil Rights Division opened an investigation. The investigator found that \xe2\x80\x9con multiple\noccasions,\xe2\x80\x9d Phillips \xe2\x80\x9cturned away potential customers on the basis of their sexual orientation,\nstating that he could not create a cake for a same-sex wedding ceremony or reception\xe2\x80\x9d because\nhis religious beliefs prohibited it and because the potential customers \xe2\x80\x9cwere doing something\nillegal\xe2\x80\x9d at that time. The investigation found that Phillips had declined to sell custom wedding\ncakes to about six other same-sex couples on this basis. The investigator also recounted that,\naccording to affidavits submitted by Craig and Mullins, Phillips\xe2\x80\x99 shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop \xe2\x80\x9chad a policy of\nnot selling baked goods to same-sex couples for this type of event.\xe2\x80\x9d Based on these findings, the\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c356 Religion in the Law\nDivision found probable cause that Phillips violated CADA and referred the case to the Civil\nRights Commission.\nThe Commission found it proper to conduct a formal hearing, and it sent the case to a State\nALJ. \xe2\x80\xa6 Phillips raised two constitutional claims before the ALJ. He first asserted that applying\nCADA in a way that would require him to create a cake for a same-sex wedding would violate\nhis First Amendment right to free speech by compelling him to exercise his artistic talents to\nexpress a message with which he disagreed. The ALJ rejected the contention that preparing a\nwedding cake is a form of protected speech and did not agree that creating Craig and Mullins\xe2\x80\x99\ncake would force Phillips to adhere to \xe2\x80\x9can ideological point of view.\xe2\x80\x9d Applying CADA to the\nfacts at hand, in the ALJ\xe2\x80\x99s view, did not interfere with Phillips\xe2\x80\x99 freedom of speech.\nPhillips also contended that requiring him to create cakes for same-sex weddings would\nviolate his right to the free exercise of religion, also protected by the First Amendment. Citing\nthis Court\xe2\x80\x99s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494\nU.S. 872 (1990), the ALJ determined that CADA is a \xe2\x80\x9cvalid and neutral law of general applicability\xe2\x80\x9d and therefore that applying it to Phillips in this case did not violate the Free Exercise\nClause. Id., at 879. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig\nand Mullins on both constitutional claims.\nThe Commission affirmed the ALJ\xe2\x80\x99s decision in full. The Commission ordered Phillips to\n\xe2\x80\x9ccease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.\xe2\x80\x9d It also ordered additional\nremedial measures\xe2\x80\xa6.\nPhillips appealed to the Colorado Court of Appeals, which affirmed the Commission\xe2\x80\x99s legal\ndeterminations and remedial order. \xe2\x80\xa6 The Colorado Supreme Court declined to hear the case.\nPhillips sought review here, and this Court granted certiorari. He now renews his claims under\nthe Free Speech and Free Exercise Clauses of the First Amendment.\nOur society has come to the recognition that gay persons and gay couples cannot be treated\nas social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the\ncourts. At the same time, the religious and philosophical objections to gay marriage are protected\nviews and in some instances protected forms of expression. As this Court observed in Obergefell\nv. Hodges, 576 U.S. 644 (2015), \xe2\x80\x9c[t]he First Amendment ensures that religious organizations\nand persons are given proper protection as they seek to teach the principles that are so fulfilling\nand so central to their lives and faiths.\xe2\x80\x9d Nevertheless, while those religious and philosophical\nobjections are protected, it is a general rule that such objections do not allow business owners\nand other actors in the economy and in society to deny protected persons equal access to goods\nand services under a neutral and generally applicable public accommodations law. See Newman\nv. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam ); see also Hurley v.\nIrish\xe2\x80\x93American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995)\n(\xe2\x80\x9cProvisions like these are well within the State\xe2\x80\x99s usual power to enact when a legislature has\nreason to believe that a given group is the target of discrimination, and they do not, as a general\nmatter, violate the First or Fourteenth Amendments\xe2\x80\x9d).\nWhen it comes to weddings, it can be assumed that a member of the clergy who objects to\ngay marriage on moral and religious grounds could not be compelled to perform the ceremony\nwithout denial of his or her right to the free exercise of religion. This refusal would be well\nunderstood in our constitutional order as an exercise of religion, an exercise that gay persons\ncould recognize and accept without serious diminishment to their own dignity and worth. Yet if\nthat exception were not confined, then a long list of persons who provide goods and services for\nmarriages and weddings might refuse to do so for gay persons, thus resulting in a community-\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 357\nwide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal\naccess to goods, services, and public accommodations.\n[There] are no doubt innumerable goods and services that no one could argue implicate the\nFirst Amendment. [Phillips] conceded, moreover, that if a baker refused to sell any goods or any\ncakes for gay weddings, that would be a different matter and the State would have a strong case\nunder this Court\xe2\x80\x99s precedents that this would be a denial of goods and services that went beyond\nany protected rights of a baker who offers goods and services to the general public and is subject\nto a neutrally applied and generally applicable public accommodations law.\nPhillips claims, however, that a narrower issue is presented. He argues that he had to use\nhis artistic skills to make an expressive statement, a wedding endorsement in his own voice and\nof his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the\nbaker likely found it difficult to find a line where the customers\xe2\x80\x99 rights to goods and services\nbecame a demand for him to exercise the right of his own personal expression for their message,\na message he could not express in a way consistent with his religious beliefs\xe2\x80\xa6.\nPhillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case, [but] the Civil Rights Commission\xe2\x80\x99s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated\nhis objection.\nThat hostility surfaced at the Commission\xe2\x80\x99s formal, public hearings, as shown by the record.\nOn May 30, 2014, the seven-member Commission convened publicly to consider Phillips\xe2\x80\x99 case.\nAt several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious\nbeliefs and persons are less than fully welcome in Colorado\xe2\x80\x99s business community. One commissioner suggested that Phillips can believe \xe2\x80\x9cwhat he wants to believe,\xe2\x80\x9d but cannot act on his\nreligious beliefs \xe2\x80\x9cif he decides to do business in the state.\xe2\x80\x9d A few moments later, the commissioner restated the same position: \xe2\x80\x9c[I]f a businessman wants to do business in the state and he\xe2\x80\x99s\ngot an issue with the\xe2\x80\x94the law\xe2\x80\x99s impacting his personal belief system, he needs to look at being\nable to compromise.\xe2\x80\x9d [These] statements \xe2\x80\xa6 might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips\xe2\x80\x99 free exercise rights and the dilemma he\nfaced\xe2\x80\xa6.\nOn July 25, 2014, the Commission met again. This meeting, too, was conducted in public\nand on the record. On this occasion another commissioner made specific reference to the previous meeting\xe2\x80\x99s discussion but said far more to disparage Phillips\xe2\x80\x99 beliefs. The commissioner\nstated:\nFreedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust,\nwhether it be\xe2\x80\x94I mean, we\xe2\x80\x94we can list hundreds of situations where freedom\nof religion has been used to justify discrimination. And to me it is one of the\nmost despicable pieces of rhetoric that people can use to\xe2\x80\x94to use their religion\nto hurt others.\nTo describe a man\xe2\x80\x99s faith as \xe2\x80\x9cone of the most despicable pieces of rhetoric that people can\nuse\xe2\x80\x9d is to disparage his religion in at least two distinct ways: by describing it as despicable, and\nalso by characterizing it as merely rhetorical\xe2\x80\x94something insubstantial and even insincere. The\ncommissioner even went so far as to compare Phillips\xe2\x80\x99 invocation of his sincerely held religious\nbeliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado\xe2\x80\x99s antidiscrimination law\xe2\x80\x94a law that protects against discrimination on the basis of religion as well\nas sexual orientation.\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c358 Religion in the Law\nThe record shows no objection to these comments from other commissioners. And the later\nstate-court ruling reviewing the Commission\xe2\x80\x99s decision did not mention those comments, much\nless express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion\nthat these statements cast doubt on the fairness and impartiality of the Commission\xe2\x80\x99s adjudication of Phillips\xe2\x80\x99 case. \xe2\x80\xa6\nAnother indication of hostility is the difference in treatment between Phillips\xe2\x80\x99 case and the\ncases of other bakers who objected to a requested cake on the basis of conscience and prevailed\nbefore the Commission.\n[On] at least three other occasions the Civil Rights Division considered the refusal of bakers\nto create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It\nmade these determinations because, in the words of the Division, the requested cake included\n\xe2\x80\x9cwording and images [the baker] deemed derogatory,\xe2\x80\x9d Jack v. Gateaux, Ltd., Charge No.\nP20140071X, at 4; featured \xe2\x80\x9clanguage and images [the baker] deemed hateful,\xe2\x80\x9d Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker \xe2\x80\x9cdeemed as\ndiscriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4.\n\xe2\x80\xa6The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet\nthe Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the\nother cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips\xe2\x80\x99\nwillingness to sell \xe2\x80\x9cbirthday cakes, shower cakes, [and] cookies and brownies\xe2\x80\x9d to gay and lesbian customers as irrelevant. \xe2\x80\xa6 In short, the Commission\xe2\x80\x99s consideration of Phillips\xe2\x80\x99 religious\nobjection did not accord with its treatment of these other objections.\n\xe2\x80\xa6The Court of Appeals addressed the disparity only in passing and relegated its complete\nanalysis of the issue to a footnote. There, the court stated that \xe2\x80\x9c[t]his case is distinguishable from\nthe Colorado Civil Rights Division\xe2\x80\x99s recent findings that [the other bakeries] in Denver did not\ndiscriminate against a Christian patron on the basis of his creed\xe2\x80\x9d when they refused to create\nthe requested cakes. In those cases, the court continued, there was no impermissible discrimination because \xe2\x80\x9cthe Division found that the bakeries ... refuse[d] the patron\xe2\x80\x99s request ... because of\nthe offensive nature of the requested message.\xe2\x80\x9d\nA principled rationale for the difference in treatment of these two instances cannot be based\non the government\xe2\x80\x99s own assessment of offensiveness. Just as \xe2\x80\x9cno official, high or petty, can\nprescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,\xe2\x80\x9d\nWest Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal\nv. Tam, 137 S.Ct. 1744, 1762\xe2\x80\x931764 (2017) (opinion of ALITO, J.). The Colorado court\xe2\x80\x99s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips\xe2\x80\x99 religious beliefs.\xe2\x80\xa6\n[T]he Commission\xe2\x80\x99s treatment of Phillips\xe2\x80\x99 case violated the State\xe2\x80\x99s duty under the First\nAmendment not to base laws or regulations on hostility to a religion or religious viewpoint.\nIn Church of Lukumi Babalu Aye, the Court made clear that the government, if it is to\nrespect the Constitution\xe2\x80\x99s guarantee of free exercise, cannot impose regulations that are hostile\nto the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon\nor presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars\neven \xe2\x80\x9csubtle departures from neutrality\xe2\x80\x9d on matters of religion. Id., at 534. Here, that means\nthe Commission was obliged under the Free Exercise Clause to proceed in a manner neutral\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 359\ntoward and tolerant of Phillips\xe2\x80\x99 religious beliefs. The Constitution \xe2\x80\x9ccommits government itself\nto religious tolerance, and upon even slight suspicion that proposals for state intervention stem\nfrom animosity to religion or distrust of its practices, all officials must pause to remember their\nown high duty to the Constitution and to the rights it secures.\xe2\x80\x9d Id., at 547.\nFactors relevant to the assessment of governmental neutrality include \xe2\x80\x9cthe historical background of the decision under challenge, the specific series of events leading to the enactment or\nofficial policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.\xe2\x80\x9d Id., at 540. In view of these\nfactors the record here demonstrates that the Commission\xe2\x80\x99s consideration of Phillips\xe2\x80\x99 case was\nneither tolerant nor respectful of Phillips\xe2\x80\x99 religious beliefs. The Commission gave every appearance, of adjudicating Phillips\xe2\x80\x99 religious objection based on a negative normative evaluation of\nthe particular justification for his objection and the religious grounds for it. It hardly requires\nrestating that government has no role in deciding or even suggesting whether the religious\nground for Phillips\xe2\x80\x99 conscience-based objection is legitimate or illegitimate. On these facts, the\nCourt must draw the inference that Phillips\xe2\x80\x99 religious objection was not considered with the\nneutrality that the Free Exercise Clause requires.\n\xe2\x80\xa6The official expressions of hostility to religion in some of the commissioners\xe2\x80\x99 comments\xe2\x80\x94\ncomments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order\xe2\x80\x94were inconsistent with what the Free Exercise\nClause requires. The Commission\xe2\x80\x99s disparate consideration of Phillips\xe2\x80\x99 case compared to the\ncases of the other bakers suggests the same. For these reasons, the order must be set aside\xe2\x80\xa6.\nThe judgment of the Colorado Court of Appeals is reversed.\nIt is so ordered.\nJustice KAGAN, with whom Justice BREYER joins, concurring.\n\xe2\x80\xa6The Court partly relies on the \xe2\x80\x9cdisparate consideration of Phillips\xe2\x80\x99 case compared to the\ncases of [three] other bakers\xe2\x80\x9d who \xe2\x80\x9cobjected to a requested cake on the basis of conscience.\xe2\x80\x9d In\nthe latter cases, a customer named William Jack sought \xe2\x80\x9ccakes with images that conveyed disapproval of same-sex marriage, along with religious text\xe2\x80\x9d; the bakers whom he approached\nrefused to make them. Those bakers prevailed before the Colorado Civil Rights Division and\nCommission, while Phillips\xe2\x80\x94who objected for religious reasons to baking a wedding cake for\na same-sex couple\xe2\x80\x94did not. \xe2\x80\xa6 As the Court states, a \xe2\x80\x9cprincipled rationale for the difference in\ntreatment\xe2\x80\x9d cannot be \xe2\x80\x9cbased on the government\xe2\x80\x99s own assessment of offensiveness.\xe2\x80\x9d\nWhat makes the state agencies\xe2\x80\x99 consideration \xe2\x80\xa6 disquieting is that a proper basis for distinguishing the cases was available\xe2\x80\x94in fact, was obvious. The Colorado Anti\xe2\x80\x93Discrimination\nAct (CADA) makes it unlawful for a place of public accommodation to deny \xe2\x80\x9cthe full and equal\nenjoyment\xe2\x80\x9d of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. \xc2\xa7 24\xe2\x80\x9334\xe2\x80\x93601(2)(a) (2017). The three bakers in the\nJack cases did not violate that law. Jack requested them to make a cake (one denigrating gay\npeople and same-sex marriage) that they would not have made for any customer. In refusing\nthat request, the bakers did not single out Jack because of his religion, but instead treated him\nin the same way they would have treated anyone else\xe2\x80\x94just as CADA requires. By contrast, the\nsame-sex couple in this case requested a wedding cake that Phillips would have made for an\nopposite-sex couple. In refusing that request, Phillips contravened CADA\xe2\x80\x99s demand that customers receive \xe2\x80\x9cthe full and equal enjoyment\xe2\x80\x9d of public accommodations irrespective of their sexual\norientation. The different outcomes in the Jack cases and the Phillips case could thus have been\njustified by a plain reading and neutral application of Colorado law\xe2\x80\x94untainted by any bias\nagainst a religious belief.\n\xe2\x80\xa6[The] Court itself recognizes the principle that would properly account for a difference in\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c360 Religion in the Law\nresult between those cases. Colorado law, the Court says, \xe2\x80\x9ccan protect gay persons, just as it can\nprotect other classes of individuals, in acquiring whatever products and services they choose on\nthe same terms and conditions as are offered to other members of the public.\xe2\x80\x9d For that reason,\nColorado can treat a baker who discriminates based on sexual orientation differently from a\nbaker who does not discriminate on that or any other prohibited ground. But only, as the Court\nrightly says, if the State\xe2\x80\x99s decisions are not infected by religious hostility or bias. I accordingly\nconcur.\nJustice GORSUCH, with whom Justice ALITO joins, concurring.\nIn Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a\nneutral and generally applicable law will usually survive a constitutional free exercise challenge.\n494 U.S. 872, 878\xe2\x80\x93879 (1990). Smith remains controversial in many quarters. \xe2\x80\xa6 But we know\nthis with certainty: when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly\ntailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993).\nToday\xe2\x80\x99s decision respects these principles. \xe2\x80\xa6 The only wrinkle is this. In the face of so much\nevidence suggesting hostility toward Mr. Phillips\xe2\x80\x99s sincerely held religious beliefs, two of our\ncolleagues have written separately to suggest that the Commission acted neutrally toward his\nfaith when it treated him differently from the other bakers\xe2\x80\x94or that it could have easily done so\nconsistent with the First Amendment. \xe2\x80\xa6 But, respectfully, I do not see how we might rescue the\nCommission from its error\xe2\x80\xa6.\nThis isn\xe2\x80\x99t a case where the Commission self-consciously announced a change in its legal rule\nin all public accommodation cases. \xe2\x80\xa6 [It] appears the Commission wished to condemn Mr.\nPhillips for expressing just the kind of \xe2\x80\x9cirrational\xe2\x80\x9d or \xe2\x80\x9coffensive ... message\xe2\x80\x9d that the bakers in\nthe first case refused to endorse. Many may agree with the Commission and consider Mr. Phillips\xe2\x80\x99s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of\nhis faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right\nand various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious\nbelief as \xe2\x80\x9cirrational\xe2\x80\x9d or \xe2\x80\x9coffensive\xe2\x80\x9d will ever survive strict scrutiny under the First Amendment.\nIn this country, the place of secular officials isn\xe2\x80\x99t to sit in judgment of religious beliefs, but only\nto protect their free exercise. Just as it is the \xe2\x80\x9cproudest boast of our free speech jurisprudence\xe2\x80\x9d\nthat we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. \xe2\x80\xa6 Popular religious views are easy\nenough to defend. It is in protecting unpopular religious beliefs that we prove this country\xe2\x80\x99s\ncommitment to serving as a refuge for religious freedom\xe2\x80\xa6.\nTo suggest that cakes with words convey a message but cakes without words do not\xe2\x80\x94all\nin order to excuse the bakers in Mr. Jack\xe2\x80\x99s case while penalizing Mr. Phillips\xe2\x80\x94is irrational\xe2\x80\xa6.\nImagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage\nrather than a cake bearing words conveying the same idea. Surely the Commission would have\napproved the bakers\xe2\x80\x99 intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and\nwhatever the exact design, it celebrates a wedding, and if the wedding cake is made for a samesex couple it celebrates a same-sex wedding. \xe2\x80\xa6 Like \xe2\x80\x9can emblem or flag,\xe2\x80\x9d a cake for a samesex wedding is a symbol that serves as \xe2\x80\x9ca short cut from mind to mind,\xe2\x80\x9d signifying approval of\na specific \xe2\x80\x9csystem, idea, [or] institution.\xe2\x80\x9d West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,\n632 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with\nhis religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 361\nin Mr. Jack\xe2\x80\x99s case the choice to refuse to advance a message they deemed offensive to their secular\ncommitments. That is not neutral.\n...Suggesting that this case is only about \xe2\x80\x9cwedding cakes\xe2\x80\x9d\xe2\x80\x94and not a wedding cake celebrating a same-sex wedding\xe2\x80\x94actually points up the problem. At its most general level, the cake\nat issue in Mr. Phillips\xe2\x80\x99s case was just a mixture of flour and eggs; at its most specific level, it was\na cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. \xe2\x80\xa6 The problem is, the\nCommission didn\xe2\x80\x99t play with the level of generality in Mr. Jack\xe2\x80\x99s case in this way. It didn\xe2\x80\x99t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings\ngenerally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers\xe2\x80\x99 view that the specific cakes Mr. Jack requested conveyed a message\noffensive to their convictions and allowed them to refuse service. Having done that there, it must\ndo the same here\xe2\x80\xa6.\nIn short, when the same level of generality is applied to both cases, it is no surprise that the\nbakers have to be treated the same. Only by adjusting the dials just right\xe2\x80\x94fine-tuning the level\nof generality up or down for each case based solely on the identity of the parties and the substance of their views\xe2\x80\x94can you engineer the Commission\xe2\x80\x99s outcome, handing a win to Mr. Jack\xe2\x80\x99s\nbakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper\xe2\x80\xa6.\nTo some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the\ncase\xe2\x80\x94his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful\ntreatment than the bakers\xe2\x80\x99 secular beliefs in Mr. Jack\xe2\x80\x99s case. \xe2\x80\xa6 It is no more appropriate for the\nUnited States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other\xe2\x80\x94\nwithout regard to the religious significance his faith may attach to it\xe2\x80\x94than it would be for the\nCourt to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.\nOnly one way forward now remains. Having failed to afford Mr. Phillips\xe2\x80\x99s religious objections neutral consideration and without any compelling reason for its failure, the Commission\nmust afford him the same result it afforded the bakers in Mr. Jack\xe2\x80\x99s case. \xe2\x80\xa6 Mr. Phillips has\nconclusively proven a First Amendment violation and, after almost six years facing unlawful\ncivil charges, he is entitled to judgment.\nJustice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in\nthe judgment.\n\xe2\x80\xa6Although the Commissioners\xe2\x80\x99 comments are certainly disturbing, the discriminatory application of Colorado\xe2\x80\x99s public-accommodations law is enough on its own to violate Phillips\xe2\x80\x99\nrights. While Phillips rightly prevails on his free-exercise claim, I write separately to address his\nfree-speech claim\xe2\x80\xa6.\nThe conduct that the Colorado Court of Appeals ascribed to Phillips\xe2\x80\x94creating and designing custom wedding cakes\xe2\x80\x94is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist\xe2\x80\x99s paint palette with a paintbrush and baker\xe2\x80\x99s whisk. Behind the\ncounter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes\nexceptional care with each cake that he creates\xe2\x80\x94sketching the design out on paper, choosing\nthe color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece\xe2\x80\x99s\nwebsite.\nPhillips is an active participant in the wedding celebration. He sits down with each couple\nfor a consultation before he creates their custom wedding cake. He discusses their preferences,\ntheir personalities, and the details of their wedding to ensure that each cake reflects the couple\nwho ordered it. In addition to creating and delivering the cake\xe2\x80\x94a focal point of the wedding\ncelebration\xe2\x80\x94Phillips sometimes stays and interacts with the guests at the wedding. And the\nguests often recognize his creations and seek his bakery out afterward. Phillips also sees the\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c362 Religion in the Law\ninherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that\n\xe2\x80\x9ca wedding has occurred, a marriage has begun, and the couple should be celebrated.\xe2\x80\x9d \xe2\x80\xa6\nAccordingly, Phillips\xe2\x80\x99 creation of custom wedding cakes is expressive. The use of his artistic\ntalents to create a well-recognized symbol that celebrates the beginning of a marriage clearly\ncommunicates a message\xe2\x80\x94certainly more so than nude dancing, Barnes v. Glen Theatre, Inc.,\n501 U.S. 560, 565\xe2\x80\x93566 (1991)\xe2\x80\xa6. Forcing Phillips to make custom wedding cakes for same-sex\nmarriages requires him to, at the very least, acknowledge that same-sex weddings are \xe2\x80\x9cweddings\xe2\x80\x9d and suggest that they should be celebrated\xe2\x80\x94the precise message he believes his faith\nforbids. The First Amendment prohibits Colorado from requiring Phillips to \xe2\x80\x9cbear witness to\n[these] fact[s],\xe2\x80\x9d Hurley, 515 U.S. at 574, or to \xe2\x80\x9caffirm ... a belief with which [he] disagrees.\xe2\x80\x9d \xe2\x80\xa6\nStates cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. \xe2\x80\x9cIf there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society\nfinds the idea itself offensive or disagreeable.\xe2\x80\x9d Johnson, at 414. \xe2\x80\xa6 As the Court reiterates today,\n\xe2\x80\x9cit is not ... the role of the State or its officials to prescribe what shall be offensive.\xe2\x80\x9d \xe2\x80\x9cIndeed, if\nit is the speaker\xe2\x80\x99s opinion that gives offense, that consequence is a reason for according it constitutional protection.\xe2\x80\x9d Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988)\xe2\x80\xa6.\nNor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. 644\n(2015), somehow diminish Phillips\xe2\x80\x99 right to free speech. \xe2\x80\x9cIt is one thing ... to conclude that the\nConstitution protects a right to same-sex marriage; it is something else to portray everyone who\ndoes not share [that view] as bigoted\xe2\x80\x9d and unentitled to express a different view.\xe2\x80\x9d (ROBERTS,\nC.J., dissenting). This Court is not an authority on matters of conscience, and its decisions can\n(and often should) be criticized. The First Amendment gives individuals the right to disagree\nabout the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself\nemphasized that the traditional understanding of marriage \xe2\x80\x9clong has been held\xe2\x80\x94and continues\nto be held\xe2\x80\x94in good faith by reasonable and sincere people here and throughout the world.\xe2\x80\x9d\n(majority opinion). If Phillips\xe2\x80\x99 continued adherence to that understanding makes him a minority\nafter Obergefell, that is all the more reason to insist that his speech be protected. See Dale, at\n660, 120 S.Ct. 2446 (\xe2\x80\x9c[T]he fact that [the social acceptance of homosexuality] may be embraced\nand advocated by increasing numbers of people is all the more reason to protect the First\nAmendment rights of those who wish to voice a different view\xe2\x80\x9d).\nIn Obergefell, I warned that the Court\xe2\x80\x99s decision would \xe2\x80\x9cinevitably ... come into conflict\xe2\x80\x9d\nwith religious liberty, \xe2\x80\x9cas individuals ... are confronted with demands to participate in and endorse civil marriages between same-sex couples.\xe2\x80\x9d This case proves that the conflict has already\nemerged. Because the Court\xe2\x80\x99s decision vindicates Phillips\xe2\x80\x99 right to free exercise, it seems that\nreligious liberty has lived to fight another day. But, in future cases, the freedom of speech could\nbe essential to preventing Obergefell from being used to \xe2\x80\x9cstamp out every vestige of dissent\xe2\x80\x9d\nand \xe2\x80\x9cvilify Americans who are unwilling to assent to the new orthodoxy.\xe2\x80\x9d (ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals\xe2\x80\x99\nmust be rejected.\nJustice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.\n\xe2\x80\xa6The Court concludes that \xe2\x80\x9cPhillips\xe2\x80\x99 religious objection was not considered with the neutrality that the Free Exercise Clause requires.\xe2\x80\x9d This conclusion rests on evidence said to show\nthe Colorado Civil Rights Commission\xe2\x80\x99s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted \xe2\x80\x9cdisparate consideration of Phillips\xe2\x80\x99 case compared\nto the cases of\xe2\x80\x9d three other bakers who refused to make cakes requested by William Jack. The\nCourt also finds hostility in statements made at two public hearings on Phillips\xe2\x80\x99 appeal to the\nCommission. The different outcomes the Court features do not evidence hostility to religion \xe2\x80\xa6\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 363\nnor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.\nOn March 13, 2014\xe2\x80\x94approximately three months after the ALJ ruled in favor of the samesex couple, Craig and Mullins, and two months before the Commission heard Phillips\xe2\x80\x99 appeal\nfrom that decision\xe2\x80\x94William Jack visited three Colorado bakeries. His visits followed a similar\npattern. He requested two cakes\n\xe2\x80\x9cmade to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red \xe2\x80\x98X\xe2\x80\x99 over the image. On one\ncake, he requested on one side, \xe2\x80\x98God hates sin. Psalm 45:7\xe2\x80\x99 and on the opposite side of the cake \xe2\x80\x98Homosexuality is a detestable sin. Leviticus 18:2.\xe2\x80\x99 On the\nsecond cake, [the one] with the image of the two groomsmen covered by a red\n\xe2\x80\x98X\xe2\x80\x99 [Jack] requested [these words]: \xe2\x80\x98God loves sinners\xe2\x80\x99 and on the other side\n\xe2\x80\x98While we were yet sinners Christ died for us. Romans 5:8.\xe2\x80\x9d\nIn contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned\nno message or anything else distinguishing the cake they wanted to buy from any other wedding\ncake Phillips would have sold.\nOne bakery told Jack it would make cakes in the shape of Bibles, but would not decorate\nthem with the requested messages; the owner told Jack her bakery \xe2\x80\x9cdoes not discriminate\xe2\x80\x9d and\n\xe2\x80\x9caccept[s] all humans.\xe2\x80\x9d The second bakery owner told Jack he \xe2\x80\x9chad done open Bibles and books\nmany times and that they look amazing,\xe2\x80\x9d but declined to make the specific cakes Jack described\nbecause the baker regarded the messages as \xe2\x80\x9chateful.\xe2\x80\x9d The third bakery, according to Jack, said\nit would bake the cakes, but would not include the requested message.\nJack filed charges against each bakery with the Colorado Civil Rights Division (Division).\nThe Division found no probable cause to support Jack\xe2\x80\x99s claims of unequal treatment and denial\nof goods or services based on his Christian religious beliefs. In this regard, the Division observed\nthat the bakeries regularly produced cakes and other baked goods with Christian symbols and\nhad denied other customer requests for designs demeaning people whose dignity the Colorado\nAntidiscrimination Act (CADA) protects\xe2\x80\xa6.\nThe Court concludes that \xe2\x80\x9cthe Commission\xe2\x80\x99s consideration of Phillips\xe2\x80\x99 religious objection\ndid not accord with its treatment of [the other bakers\xe2\x80\x99] objections.\xe2\x80\x9d \xe2\x80\xa6 But the cases the Court\naligns are hardly comparable. The bakers would have refused to make a cake with Jack\xe2\x80\x99s requested message for any customer, regardless of his or her religion. \xe2\x80\xa6 The bakeries\xe2\x80\x99 refusal to\nmake Jack cakes of a kind they would not make for any customer scarcely resembles Phillips\xe2\x80\x99\nrefusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason\nother than their sexual orientation, a cake of the kind he regularly sold to others. When a couple\ncontacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their\nwedding\xe2\x80\x94not a cake celebrating heterosexual weddings or same-sex weddings\xe2\x80\x94and that is the\nservice Craig and Mullins were denied. \xe2\x80\xa6. Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. Jack, on the other hand, suffered no\nservice refusal on the basis of his religion or any other protected characteristic. He was treated\nas any other customer would have been treated\xe2\x80\x94no better, no worse.\nThe fact that Phillips might sell other cakes and cookies to gay and lesbian customers was\nirrelevant to the issue Craig and Mullins\xe2\x80\x99 case presented. What matters is that Phillips would\nnot provide a good or service to a same-sex couple that he would provide to a heterosexual\ncouple. In contrast, the other bakeries\xe2\x80\x99 sale of other goods to Christian customers was relevant:\nIt shows that there were no goods the bakeries would sell to a non-Christian customer that they\nwould refuse to sell to a Christian customer.\n\xe2\x80\xa6Phillips declined to make a cake he found offensive where the offensiveness of the product\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c364 Religion in the Law\nwas determined solely by the identity of the customer requesting it. The three other bakeries\ndeclined to make cakes where their objection to the product was due to the demeaning message\nthe requested product would literally display. As the Court recognizes, a refusal \xe2\x80\x9cto design a\nspecial cake with words or images ... might be different from a refusal to sell any cake at all.\xe2\x80\x9d\n\xe2\x80\xa6 The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection\nfrom discrimination. \xe2\x80\xa6 I do not read the Court to suggest that the Colorado Legislature\xe2\x80\x99s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive\xe2\x80\xa6.\nStatements made at the Commission\xe2\x80\x99s public hearings on Phillips\xe2\x80\x99 case provide no firmer\nsupport for the Court\xe2\x80\x99s holding today. Whatever one may think of the statements in historical\ncontext, I see no reason why the comments of one or two Commissioners should be taken to\novercome Phillips\xe2\x80\x99 refusal to sell a wedding cake to Craig and Mullins. The proceedings involved\nseveral layers of independent decisionmaking, of which the Commission was but one. \xe2\x80\xa6 What\nprejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips\xe2\x80\x99 case is thus far removed from the only precedent upon\nwhich the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993),\nwhere the government action that violated a principle of religious neutrality implicated a sole\ndecisionmaking body, the city council\xe2\x80\xa6.\n\nMasterpiece Cakeshop v. Colorado CRC, 138 S.Ct. 1719 (U.S. 2018)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 365\n\n432 U.S. 63\nSupreme Court of the United States\n\nTrans World Airlines v. Hardison\nJune 16, 1977\nMr. Justice WHITE delivered the opinion of the Court.\nSection 703(a)(1) of the Civil Rights Act of 1964, Title VII, 42 U.S.C. s 2000e-2(a)(1),\nmakes it an unlawful employment practice for an employer to discriminate against an employee\nor a prospective employee on the basis of his or her religion. At the time of the events involved\nhere, a guideline of the Equal Employment Opportunity Commission (EEOC), 29 CFR s\n1605.1(b) (1968), required, as the Act itself now does, 42 U.S.C. s 2000e(j), that an employer,\nshort of \xe2\x80\x9cundue hardship,\xe2\x80\x9d make \xe2\x80\x9creasonable accommodations\xe2\x80\x9d to the religious needs of its\nemployees. The issue in this case is the extent of the employer\xe2\x80\x99s obligation under Title VII to\naccommodate an employee whose religious beliefs prohibit him from working on Saturdays\xe2\x80\xa6.\nPetitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in\nKansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work\nas a clerk in the Stores Department at its Kansas City base. Because of its essential role in the\nKansas City operation, the Stores Department must operate 24 hours per day, 365 days per year,\nand whenever an employee\xe2\x80\x99s job in that department is not filled, an employee must be shifted\nfrom another department, or a supervisor must cover the job, even if the work in other areas\nmay suffer.\nHardison, like other employees at the Kansas City base, was subject to a seniority system\ncontained in a collective-bargaining agreement that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM). The seniority system is implemented by the union steward through a system of bidding by employees for particular shift\nassignments as they become available. The most senior employees have first choice for job and\nshift assignments, and the most junior employees are required to work when the union steward\nis unable to find enough people willing to work at a particular time or in a particular job to fill\nTWA\xe2\x80\x99s needs.\nIn the spring of 1968 Hardison began to study the religion known as the Worldwide Church\nof God. One of the tenets of that religion is that one must observe the Sabbath by refraining\nfrom performing any work from sunset on Friday until sunset on Saturday. The religion also\nproscribes work on certain specified religious holidays.\nWhen Hardison informed Everett Kussman, the manager of the Stores Department, of his\nreligious conviction regarding observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his\nreligious holidays off whenever possible if Hardison agreed to work the traditional holidays\nwhen asked; and that Kussman would try to find Hardison another job that would be more\ncompatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p. m.-7 a. m. shift. Working this shift permitted Hardison to observe his Sabbath.\nThe problem soon reappeared when Hardison bid for and received a transfer from Building\n1, where he had been employed, to Building 2, where he would work the day shift. The two\nbuildings had entirely separate seniority lists; and while in Building 1 Hardison had sufficient\nseniority to observe the Sabbath regularly, he was second from the bottom on the Building 2\nseniority list.\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c366 Religion in the Law\nIn Building 2 Hardison was asked to work Saturdays when a fellow employee went on\nvacation. TWA agreed to permit the union to seek a change of work assignments for Hardison,\nbut the union was not willing to violate the seniority provisions set out in the collective-bargaining contract, and Hardison had insufficient seniority to bid for a shift having Saturdays off.\nA proposal that Hardison work only four days a week was rejected by the company. Hardison\xe2\x80\x99s job was essential and on weekends he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were\ncritical to airline operations; to fill Hardison\xe2\x80\x99s position with a supervisor or an employee from\nanother area would simply have undermanned another operation; and to employ someone not\nregularly assigned to work Saturdays would have required TWA to pay premium wages.\nWhen an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that scheduled still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of\ninsubordination for refusing to work during his designated shift.\nHardison, having first invoked the administrative remedy provided by Title VII, brought\nthis action for injunctive relief in the United States District Court against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII, 42\nU.S.C. s 2000e-2(a)(1). He also charged that the union had discriminated against him by failing\nto represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison\xe2\x80\x99s claim of religious discrimination rested on 1967 EEOC\nguidelines requiring employers \xe2\x80\x9cto make reasonable accommodations to the religious needs of\nemployees\xe2\x80\x9d whenever such accommodation would not work an \xe2\x80\x9cundue hardship,\xe2\x80\x9d 29 CFR s\n1605.1 (1968), and on similar language adopted by Congress in the 1972 amendments to Title\nVII, 42 U.S.C. s 2000e(j).\nAfter a bench trial, the District Court ruled in favor of the defendants.\xe2\x80\xa6 The Court of\nAppeals for the Eighth Circuit reversed the judgment for TWA. It agreed with the District Court\xe2\x80\x99s\nconstitutional ruling, but held that TWA had not satisfied its duty to accommodate\xe2\x80\xa6. In separate petitions for certiorari TWA and IAM contended that adequate steps had been taken to\naccommodate Hardison\xe2\x80\x99s religious observances and that to construe the statute to require further efforts at accommodation would create an establishment of religion contrary to the First\nAmendment of the Constitution\xe2\x80\xa6. We granted both petitions for certiorari. [We] agree with\npetitioners that their conduct was not a violation of Title VII\xe2\x80\xa6.\nThe Court of Appeals found that TWA had committed an unlawful employment practice\nunder s 703(a)(1) of the Act, 42 U.S.C. s 2000e-2(a)(1), which provides:\n(a) It shall be an unlawful employment practice for an employer\n(1) to fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\xe2\x80\x99s race, color,\nreligion, sex, or national origin.\nThe emphasis of both the language and the legislative history of the statute is on eliminating\ndiscrimination in employment; similarly situated employees are not to be treated differently\nsolely because they differ with respect to race, color, religion, sex, or national origin. This is true\nregardless of whether the discrimination is directed against majorities or minorities. McDonald\nv. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1976). See Griggs v. Duke Power Co.,\n401 U.S. 424, 431 (1971).\nThe prohibition against religious discrimination soon raised the question of whether it was\nimpermissible under s 703(a)(1) to discharge or refuse to hire a person who for religious reasons\nrefused to work during the employer\xe2\x80\x99s normal work-week\xe2\x80\xa6. In 1967 the EEOC amended its\nguidelines to require employers \xe2\x80\x9cto make reasonable accommodations to the religious needs of\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 367\nemployees and prospective employees where such accommodations can be made without undue\nhardship on the conduct of the employer\xe2\x80\x99s business.\xe2\x80\x9d 29 CFR s 1605.1 (1968). The EEOC did\nnot suggest what sort of accommodations are \xe2\x80\x9creasonable\xe2\x80\x9d or when hardship to an employer\nbecomes \xe2\x80\x9cundue.\xe2\x80\x9d\nThis question of the extent of the required accommodation remained unsettled [by] Dewey\nv. Reynolds Metals Co., 402 U.S. 689 (1971)\xe2\x80\xa6. In part \xe2\x80\x9cto resolve by legislation\xe2\x80\x9d some of the\nissues raised in Dewey, Congress included the following definition of religion in its 1972 amendments to Title VII:\nThe term \xe2\x80\x9creligion\xe2\x80\x9d includes all aspects of religious observance and practice,\nas well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee\xe2\x80\x99s or prospective employee\xe2\x80\x99s religious observance or practice without undue hardship on the conduct of the employer\xe2\x80\x99s\nbusiness. 42 U.S.C. s 2000e(j).\nThe intent and effect of this definition was to make it an unlawful employment practice\nunder s 703(a)(1) for an employer not to make reasonable accommodations, short of undue\nhardship, for the religious practices of his employees and prospective employees. But like the\nEEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history of s 701(j) is likewise of little\nassistance in this regard. The proponent of the measure, Senator Jennings Randolph, expressed\nhis general desire \xe2\x80\x9cto assure that freedom from religious discrimination in the employment of\nworkers is for all time guaranteed by law,\xe2\x80\x9d but he made no attempt to define the precise circumstances under which the \xe2\x80\x9creasonable accommodation\xe2\x80\x9d requirement would be applied.\nIn brief, the employer\xe2\x80\x99s statutory obligation to make reasonable accommodation for the\nreligious observances of its employees, short of incurring an undue hardship, is clear, but the\nreach of that obligation has never been spelled out by Congress or by EEOC guidelines. With\nthis in mind, we turn to a consideration of whether TWA has met its obligation under Title VII\nto accommodate the religious observances of its employees.\nThe Court of Appeals held that TWA had not made reasonable efforts to accommodate\nHardison\xe2\x80\x99s religious needs under the 1967 EEOC guidelines in effect at the time the relevant\nevents occurred. In its view, TWA had rejected three reasonable alternatives, any one of which\nwould have satisfied its obligation without undue hardship\xe2\x80\xa6\nWe disagree with the Court of Appeals in all relevant respects. It is our view that TWA made\nreasonable efforts to accommodate and that each of the Court of Appeals\xe2\x80\x99 suggested alternatives\nwould have been an undue hardship within the meaning of the statute as construed by the EEOC\nguidelines.\nIt might be inferred from the Court of Appeals\xe2\x80\x99 opinion and from the brief of the EEOC in\nthis Court that TWA\xe2\x80\x99s efforts to accommodate were no more than negligible. The findings of the\nDistrict Court, supported by the record, are to the contrary\xe2\x80\xa6. It is also true that TWA itself\nattempted without success to find Hardison another job\xe2\x80\xa6. The District Court found that when\nTWA first learned of Hardison\xe2\x80\x99s religious observances in April 1968, it agreed to permit the\nunion\xe2\x80\x99s steward to seek a swap of shifts or days off but that \xe2\x80\x9cthe steward reported that he was\nunable to work out scheduling changes and that he understood that no one was willing to swap\ndays with plaintiff\xe2\x80\x9d. Later, in March 1969, at a meeting held just two days before Hardison first\nfailed to report for his Saturday shift, TWA again\noffered to accommodate plaintiff\xe2\x80\x99s religious observance by agreeing to any\ntrade of shifts or change of sections that plaintiff and the union could work\nout\xe2\x80\xa6. Any shift or change was impossible within the seniority framework and\nthe union was not willing to violate the seniority provisions set out in the contract to make a shift or change.\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c368 Religion in the Law\nAs the record shows, Hardison himself testified that Kussman was willing, but the union was\nnot, to work out a shift or job trade with another employee\xe2\x80\xa6.\n\xe2\x80\xa6TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to\nentertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining\nagreement.\nHardison and the EEOC insist that the statutory obligation to accommodate religious needs\ntakes precedence over both the collective-bargaining contract and the seniority rights of TWA\xe2\x80\x99s\nother employees. We agree that neither a collective-bargaining contract nor a seniority system\nmay be employed to violate the statute, but we do not believe that the duty to accommodate\nrequires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor,\nlies at the core of our national labor policy, and seniority provisions are universally included in\nthese contracts. Without a clear and express indication from Congress, we cannot agree with\nHardison and the EEOC that an agreed-upon seniority system must give way when necessary\nto accommodate religious observances\xe2\x80\xa6.\nAny employer who, like TWA, conducts an around-the-clock operation is presented with\nthe choice of allocating work schedules either in accordance with the preferences of its employees\nor by involuntary assignment. Insofar as the varying shift preferences of its employees complement each other, TWA could meet its manpower needs through voluntary work scheduling. In\nthe present case, for example, Hardison\xe2\x80\x99s supervisor foresaw little difficulty in giving Hardison\nhis religious holidays off since they fell on days that most other employees preferred to work,\nwhile Hardison was willing to work on the traditional holidays that most other employees preferred to have off.\nWhenever there are not enough employees who choose to work a particular shift, however,\nsome employees must be assigned to that shift even though it is not their first choice. \xe2\x80\xa6 In these\ncircumstances, TWA and IAM agreed to give first preference to employees who had worked in\na particular department the longest. Had TWA nevertheless circumvented the seniority system\nby relieving Hardison of Saturday work and ordering a senior employee to replace him, it would\nhave denied the latter his shift preference so that Hardison could be given his. The senior employee would also have been deprived of his contractual rights under the collective-bargaining\nagreement.\nIt was essential to TWA\xe2\x80\x99s business to require Saturday and Sunday work from at least a few\nemployees even though most employees preferred those days off. \xe2\x80\xa6 There were no volunteers\nto relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to\ndeprive another employee of his shift preference at least in part because he did not adhere to a\nreligion that observed the Saturday Sabbath.\nTitle VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis\nof both the language and the legislative history of Title VII is on eliminating discrimination in\nemployment, and such discrimination is proscribed when it is directed against majorities as well\nas minorities. Indeed, the foundation of Hardison\xe2\x80\x99s claim is that TWA and IAM engaged in\nreligious discrimination in violation of s 703(a)(1) when they failed to arrange for him to have\nSaturdays off. It would be anomalous to conclude that by \xe2\x80\x9creasonable accommodation\xe2\x80\x9d Congress meant that an employer must deny the shift and job preference of some employees, as well\nas deprive them of their contractual rights, in order to accommodate or prefer the religious needs\nof others, and we conclude that Title VII does not require an employer to go that far.\nOur conclusion is supported by the fact that seniority systems are afforded special treatment\nunder Title VII [Section 703(h)]. \xe2\x80\x9c(T)he unmistakable purpose of s 703(h) was to make clear\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 369\nthat the routine application of a bona fide seniority system would not be unlawful under Title\nVII.\xe2\x80\x9d International Brotherhood of Teamsters v. United States, 431 U.S. 324, 352 (1977).\xe2\x80\xa6\nThus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.\nThere has been no suggestion of discriminatory intent in this case\xe2\x80\xa6. The Court of Appeals\xe2\x80\x99\nconclusion that TWA was not limited by the terms of its seniority system was in substance nothing more than a ruling that operation of the seniority system was itself an unlawful employment\npractice even though no discriminatory purpose had been shown\xe2\x80\xa6. As we have said, TWA was\nnot required by Title VII to carve out a special exception to its seniority system in order to help\nHardison to meet his religious obligations.\nThe Court of Appeals also suggested that TWA could have permitted Hardison to work a\nfour-day week if necessary in order to avoid working on his Sabbath. Recognizing that this\nmight have left TWA short-handed on the one shift each week that Hardison did not work, the\ncourt still concluded that TWA would suffer no undue hardship if it were required to replace\nHardison either with supervisory personnel or with qualified personnel from other departments.\nAlternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his\nSaturday shift with other available employees through the payment of premium wages. Both of\nthese alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs\nor higher wages.\nTo require TWA to bear more than a de minimis cost in order to give Hardison Saturdays\noff is an undue hardship. Like abandonment of the seniority system, to require TWA to bear\nadditional costs when no such costs are incurred to give other employees the days off that they\nwant would involve unequal treatment of employees on the basis of their religion. By suggesting\nthat TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the\nemployee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to\nsecure a replacement for Hardison might remove the necessity of compelling another employee\nto work involuntarily in Hardison\xe2\x80\x99s place, it would not change the fact that the privilege of\nhaving Saturdays off would be allocated according to religious beliefs.\nAs we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative\nhistory to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.\nReversed.\nMr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.\nOne of the most intractable problems arising under Title VII of the Civil Rights Act of 1964,\n42 U.S.C. s 2000e et seq., has been whether an employer is guilty of religious discrimination\nwhen he discharges an employee (or refuses to hire a job applicant) because of the employee\xe2\x80\x99s\nreligious practices. Particularly troublesome has been the plight of adherents to minority faiths\nwho do not observe the holy days on which most businesses are closed Sundays, Christmas, and\nEaster but who need time off for their own days of religious observance\xe2\x80\xa6.\nToday\xe2\x80\x99s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what\nthey say. An employer, the Court concludes, need not grant even the most minor special privilege\nto religious observers to enable them to follow their faith. As a question of social policy, this\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c370 Religion in the Law\nresult is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job.\nAnd as a matter of law today\xe2\x80\x99s result is intolerable, for the Court adopts the very position that\nCongress expressly rejected in 1972, as if we were free to disregard congressional choices that a\nmajority of this Court thinks unwise. I therefore dissent.\nWith respect to each of the proposed accommodations to respondent Hardison\xe2\x80\x99s religious\nobservances that the Court discusses, it ultimately notes that the accommodation would have\nrequired \xe2\x80\x9cunequal treatment,\xe2\x80\x9d in favor of the religious observer. That is quite true. But if an\naccommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with \xe2\x80\x9csound and fury,\xe2\x80\x9d ultimately \xe2\x80\x9csignify nothing.\xe2\x80\x9d\nThe accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported\ncases, the rule in question has governed work attire; in other cases it has required attendance at\nsome religious function; in still other instances, it has compelled membership in a union; and in\nthe largest class of cases, it has concerned work schedules. What all these cases have in common\nis an employee who could comply with the rule only by violating what the employee views as a\nreligious commandment. In each instance, the question is whether the employee is to be exempt\nfrom the rule\xe2\x80\x99s demands. To do so will always result in a privilege being \xe2\x80\x9callocated according to\nreligious beliefs\xe2\x80\x9d unless the employer gratuitously decides to repeal the rule in toto. What the\nstatute says, in plain words, is that such allocations are required unless \xe2\x80\x9cundue hardship\xe2\x80\x9d would\nresult.\nThe point is perhaps best made by considering a not altogether hypothetical example. See\nCCH EEOC Decisions (1973) P 6180. Assume that an employer requires all employees to wear\na particular type of hat at work in order to make the employees readily identifiable to customers.\nSuch a rule obviously does not, on its face, violate Title VII, and an employee who altered the\nuniform for reasons of taste could be discharged. But a very different question would be posed\nby the discharge of an employee who, for religious reasons, insisted on wearing over her hair a\ntightly fitted scarf which was visible through the hat. In such a case the employer could accommodate this religious practice without undue hardship or any hardship at all. Yet as I understand\nthe Court\xe2\x80\x99s analysis \xe2\x80\xa6 the accommodation would not be required because it would afford the\nprivilege of wearing scarfs to a select few based on their religious beliefs. The employee thus\nwould have to give up either the religious practice or the job. This, I submit, makes a mockery\nof the statute.\nIn reaching this result, the Court seems almost oblivious of the legislative history of the 1972\namendments of Title VII which is briefly recounted in the Court\xe2\x80\x99s opinion. That history is far\nmore instructive than the Court allows. After the EEOC promulgated its second set of guidelines\nrequiring reasonable accommodations unless undue hardship would result, at least two courts\nissued decisions questioning, whether the guidelines were consistent with Title VII. Dewey v.\nReynolds Metals Co., 429 F.2d 324 (CA6 1970), aff\xe2\x80\x99d by equally divided Court, 402 U.S. 689\n(1971); Riley v. Bendix Corp., 330 F.Supp. 583 (MD Fla.1971), rev\xe2\x80\x99d 464 F.2d 1113 (CA5\n1972)\xe2\x80\xa6. When Congress was reviewing Title VII in 1972, Senator Jennings Randolph informed\nthe Congress of these decisions which, he said, had \xe2\x80\x9cclouded\xe2\x80\x9d the meaning of religious discrimination. He introduced an amendment, tracking the language of the EEOC regulation, to make\nclear that Title VII requires religious accommodation, even though unequal treatment would\nresult. The primary purpose of the amendment, he explained, was to protect Saturday Sabbatarians like himself from employers who refuse \xe2\x80\x9cto hire or to continue in employment employees\nwhose religious practices rigidly require them to abstain from work in the nature of hire on\nparticular days.\xe2\x80\x9d His amendment was unanimously approved by the Senate on a roll-call vote\nand was accepted by the Conference Committee whose report was approved by both Houses.\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 371\nYet the Court today, in rejecting any accommodation that involves preferential treatment, follows the Dewey decision in direct contravention of congressional intent\xe2\x80\xa6.\n[This] Court has repeatedly found no Establishment Clause problems in exempting religious\nobservers from state-imposed duties, e. g., Wisconsin v. Yoder, 406 U.S. 205, 234-235, n. 22\n(1972); Sherbert v. Verner, 374 U.S. 398, 409 (1963); Zorach v. Clauson, 343 U.S. 306 (1952),\neven when the exemption was in no way compelled by the Free Exercise Clause, e. g., Gillette v.\nUnited States, 401 U.S. 437 (1971); Welsh v. United States, 398 U.S. 333, 371-372 (1970)\n(White, J., dissenting); Sherbert v. Verner, 374 U.S. at 422 (Harlan J., dissenting); Braunfeld v.\nBrown, 366 U.S. 599, 608 (1961) (dictum); McGowan v. Maryland, 366 U.S. 420, 520 (Opinion of Frankfurter, J.). If the State does not establish religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to\nestablish religion by requiring employers to do the same with respect to obligations owed the\nemployer. Thus, I think it beyond dispute that the Act does and, consistently with the First\nAmendment, can require employers to grant privileges to religious observers as part of the accommodation process.\nOnce it is determined that the duty to accommodate sometimes requires that an employee\nbe exempted from an otherwise valid work requirement, the only remaining question is whether\nthis is such a case: Did TWA prove that it exhausted all reasonable accommodations, and that\nthe only remaining alternatives would have caused undue hardship on TWA\xe2\x80\x99s business? To pose\nthe question is to answer it, for all that the District Court found TWA had done to accommodate\nrespondent\xe2\x80\x99s Sabbath observance was that it \xe2\x80\x9cheld several meetings with (respondent) . . . (and)\nauthorized the union steward to search for someone who would swap shifts.\xe2\x80\x9d 375 F.Supp. 877,\n890-891 (WD Mo.1974). To conclude that TWA, one of the largest air carriers in the Nation,\nwould have suffered undue hardship had it done anything more defies both reason and common\nsense.\nThe Court implicitly assumes that the only means of accommodation open to TWA were\nto compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary\nsubstitute; or to employ one less person during respondent\xe2\x80\x99s Sabbath shift. Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship\nnot only because Hardison would have been given a special privilege, but also because either\nanother employee would have been deprived of rights under the collective-bargaining agreement, or because \xe2\x80\x9cmore than a de minimis cost\xe2\x80\x9d would have been imposed on TWA. But the\nCourt\xe2\x80\x99s myopic view of the available options is not supported by either the District Court\xe2\x80\x99s findings or the evidence adduced at trial. Thus, the Court\xe2\x80\x99s conclusion cannot withstand analysis,\neven assuming that its rejection of the alternatives it does discuss is justifiable.\nTo begin with, the record simply does not support the Court\xe2\x80\x99s assertion, made without accompanying citations, that \xe2\x80\x9c(t)here were no volunteers to relieve Hardison on Saturdays.\xe2\x80\x9d Everett Kussman, the manager of the department in which respondent worked, testified that he\nhad made no effort to find volunteers, and the union stipulated that its steward had not done so\neither. \xe2\x80\xa6 [R]espondent\xe2\x80\x99s religious observance might have been accommodated by a simple trade\nof days or shifts without necessarily depriving any employee of his or her contractual rights and\nwithout imposing significant costs on TWA. Of course, it is also possible that no trade or none\nconsistent with the seniority system could have been arranged. But the burden under the EEOC\nregulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR\ns 1605.1(c) (1976). Because it failed either to explore the possibility of a voluntary trade or to\nassure that its delegate, the union steward, did so, TWA was unable to meet its burden.\nNor was a voluntary trade the only option open to TWA that the Court ignores; to the\ncontrary, at least two other options are apparent from the record. First, TWA could have paid\novertime to a voluntary replacement for respondent assuming that someone would have been\nwilling to work Saturdays for premium pay and passed on the cost to respondent. In fact, one\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c372 Religion in the Law\naccommodation Hardison suggested would have done just that by requiring Hardison to work\novertime when needed at regular pay. Under this plan, the total overtime cost to the employer\nand the total number of overtime hours available for other employees would not have reflected\nHardison\xe2\x80\x99s Sabbath absences. Alternatively, TWA could have transferred respondent back to his\nprevious department where he had accumulated substantial seniority, as respondent also suggested. Admittedly, both options would have violated the collective-bargaining agreement; the\nformer because the agreement required that employees working over 40 hours per week receive\npremium pay, and the latter because the agreement prohibited employees from transferring departments more than once every six months. But neither accommodation would have deprived\nany other employee of rights under the contract or violated the seniority system in any way.\nPlainly an employer cannot avoid his duty to accommodate by signing a contract that precludes\nall reasonable accommodations; even the Court appears to concede as much. Thus I do not\nbelieve it can be even seriously argued that TWA would have suffered \xe2\x80\x9cundue hardship\xe2\x80\x9d to its\nbusiness had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.\nWhat makes today\xe2\x80\x99s decision most tragic, however, is not that respondent Hardison has\nbeen needlessly deprived of his livelihood simply because he chose to follow the dictates of his\nconscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans\nlike Hardison who could be forced to live on welfare as the price they must pay for worshiping\ntheir God. The ultimate tragedy is that despite Congress\xe2\x80\x99 best efforts, one of this Nation\xe2\x80\x99s pillars\nof strength \xe2\x80\x93 our hospitality to religious diversity \xe2\x80\x93 has been seriously eroded. All Americans will\nbe a little poorer until today\xe2\x80\x99s decision is erased\xe2\x80\xa6.\n\nTrans World Airlines v. Hardison, 432 U.S. 63 (1977)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 373\n565 U.S. 171\nSupreme Court of the United States\n\nHosanna-Tabor Evangelical Lutheran\nChurch v. EEOC\nJanuary 11, 2012\nChief Justice ROBERTS delivered the opinion of the Court.\nCertain employment discrimination laws authorize employees who have been wrongfully\nterminated to sue their employers for reinstatement and damages. The question presented is\nwhether the Establishment and Free Exercise Clauses of the First Amendment bar such an action\nwhen the employer is a religious group and the employee is one of the group\xe2\x80\x99s ministers.\nPetitioner Hosanna\xe2\x80\x93Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church\xe2\x80\x94Missouri Synod, the second largest Lutheran denomination in\nAmerica. Hosanna\xe2\x80\x93Tabor operated a small school in Redford, Michigan, offering a \xe2\x80\x9cChristcentered education\xe2\x80\x9d to students in kindergarten through eighth grade.\nThe Synod classifies teachers into two categories: \xe2\x80\x9ccalled\xe2\x80\x9d and \xe2\x80\x9clay.\xe2\x80\x9d \xe2\x80\x9cCalled\xe2\x80\x9d teachers are\nregarded as having been called to their vocation by God through a congregation. To be eligible\nto receive a call from a congregation, a teacher must satisfy certain academic requirements. One\nway of doing so is by completing a \xe2\x80\x9ccolloquy\xe2\x80\x9d program at a Lutheran college or university. The\nprogram requires candidates to take eight courses of theological study, obtain the endorsement\nof their local Synod district, and pass an oral examination by a faculty committee. A teacher\nwho meets these requirements may be called by a congregation. Once called, a teacher receives\nthe formal title \xe2\x80\x9cMinister of Religion, Commissioned.\xe2\x80\x9d A commissioned minister serves for an\nopen-ended term; at Hosanna\xe2\x80\x93Tabor, a call could be rescinded only for cause and by a supermajority vote of the congregation.\n\xe2\x80\x9cLay\xe2\x80\x9d or \xe2\x80\x9ccontract\xe2\x80\x9d teachers, by contrast, are not required to be trained by the Synod or\neven to be Lutheran. At Hosanna\xe2\x80\x93Tabor, they were appointed by the school board, without a\nvote of the congregation, to one-year renewable terms\xe2\x80\xa6.\nRespondent Cheryl Perich was first employed by Hosanna\xe2\x80\x93Tabor as a lay teacher in 1999.\nAfter Perich completed her colloquy later that school year, Hosanna\xe2\x80\x93Tabor asked her to become\na called teacher. Perich accepted the call and received a \xe2\x80\x9cdiploma of vocation\xe2\x80\x9d designating her\na commissioned minister.\nPerich taught kindergarten during her first four years at Hosanna\xe2\x80\x93Tabor and fourth grade\nduring the 2003\xe2\x80\x932004 school year. She taught math, language arts, social studies, science, gym,\nart, and music. She also taught a religion class four days a week, led the students in prayer and\ndevotional exercises each day, and attended a weekly school-wide chapel service. Perich led the\nchapel service herself about twice a year.\nPerich became ill in June 2004 with what was eventually diagnosed as narcolepsy. Symptoms included sudden and deep sleeps from which she could not be roused. Because of her illness, Perich began the 2004\xe2\x80\x932005 school year on disability leave. On January 27, 2005, however, Perich notified the school principal, Stacey Hoeft, that she would be able to report to work\nthe following month. Hoeft responded that the school had already contracted with a lay teacher\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c374 Religion in the Law\nto fill Perich\xe2\x80\x99s position for the remainder of the school year. Hoeft also expressed concern that\nPerich was not yet ready to return to the classroom.\nOn January 30, Hosanna\xe2\x80\x93Tabor held a meeting of its congregation at which school administrators stated that Perich was unlikely to be physically capable of returning to work that school\nyear or the next. The congregation voted to offer Perich a \xe2\x80\x9cpeaceful release\xe2\x80\x9d from her call,\nwhereby the congregation would pay a portion of her health insurance premiums in exchange\nfor her resignation as a called teacher. Perich refused to resign\xe2\x80\xa6.\nOn the morning of February 22\xe2\x80\x94the first day she was medically cleared to return to\nwork\xe2\x80\x94Perich presented herself at the school. Hoeft asked her to leave but she would not do so\nuntil she obtained written documentation that she had reported to work. Later that afternoon,\nHoeft called Perich at home and told her that she would likely be fired. Perich responded that\nshe had spoken with an attorney and intended to assert her legal rights.\nFollowing a school board meeting that evening, board chairman Scott Salo sent Perich a\nletter stating that Hosanna\xe2\x80\x93Tabor was reviewing the process for rescinding her call in light of\nher \xe2\x80\x9cregrettable\xe2\x80\x9d actions\xe2\x80\xa6. As grounds for termination, the letter cited Perich\xe2\x80\x99s \xe2\x80\x9cinsubordination and disruptive behavior\xe2\x80\x9d on February 22, as well as the damage she had done to her \xe2\x80\x9cworking relationship\xe2\x80\x9d with the school by \xe2\x80\x9cthreatening to take legal action.\xe2\x80\x9d The congregation voted\nto rescind Perich\xe2\x80\x99s call on April 10, and Hosanna\xe2\x80\x93Tabor sent her a letter of termination the next\nday.\nPerich filed a charge with the Equal Employment Opportunity Commission, alleging that\nher employment had been terminated in violation of the Americans with Disabilities Act of\n1990, 104 Stat. 327, 42 U.S.C. \xc2\xa7 12101 et seq. The ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. \xc2\xa7 12112(a). It also prohibits an\nemployer from retaliating \xe2\x80\x9cagainst any individual because such individual has opposed any act\nor practice made unlawful by [the ADA] or because such individual made a charge, testified,\nassisted, or participated in any manner in an investigation, proceeding, or hearing under [the\nADA].\xe2\x80\x9d \xc2\xa7 12203(a).\nThe EEOC brought suit against Hosanna\xe2\x80\x93Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit\xe2\x80\xa6.\nHosanna\xe2\x80\x93Tabor moved for summary judgment. Invoking what is known as the \xe2\x80\x9cministerial\nexception,\xe2\x80\x9d the Church argued that the suit was barred by the First Amendment because the\nclaims at issue concerned the employment relationship between a religious institution and one\nof its ministers. According to the Church, Perich was a minister, and she had been fired for a\nreligious reason\xe2\x80\x94namely, that her threat to sue the Church violated the Synod\xe2\x80\x99s belief that Christians should resolve their disputes internally.\nThe District Court agreed that the suit was barred by the ministerial exception and granted\nsummary judgment in Hosanna\xe2\x80\x93Tabor\xe2\x80\x99s favor\xe2\x80\xa6. The Court of Appeals for the Sixth Circuit\nvacated and remanded, directing the District Court to proceed to the merits of Perich\xe2\x80\x99s retaliation claims. \xe2\x80\xa6 The court concluded that Perich did not qualify as a \xe2\x80\x9cminister\xe2\x80\x9d under the exception, noting in particular that her duties as a called teacher were identical to her duties as a lay\nteacher\xe2\x80\xa6. We granted certiorari.\nThe First Amendment provides, in part, that \xe2\x80\x9cCongress shall make no law respecting an\nestablishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d We have said that these two\nClauses \xe2\x80\x9coften exert conflicting pressures,\xe2\x80\x9d Cutter v. Wilkinson, 544 U.S. 709, 719 (2005), and\nthat there can be \xe2\x80\x9cinternal tension ... between the Establishment Clause and the Free Exercise\nClause,\xe2\x80\x9d Tilton v. Richardson, 403 U.S. 672, 677 (1971). Not so here. Both Religion Clauses\nbar the government from interfering with the decision of a religious group to fire one of its\nministers.\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 375\nControversy between church and state over religious offices is hardly new\xe2\x80\xa6. Seeking to\nescape the control of the [English] national church, the Puritans fled to New England, where\nthey hoped to elect their own ministers and establish their own modes of worship\xe2\x80\xa6. William\nPenn, the Quaker proprietor of what would eventually become Pennsylvania and Delaware,\nalso sought independence from the Church of England. The charter creating the province of\nPennsylvania contained no clause establishing a religion.\nColonists in the South, in contrast, brought the Church of England with them. But even\nthey sometimes chafed at the control exercised by the Crown and its representatives over religious offices. In Virginia, for example, the law vested the governor with the power to induct\nministers presented to him by parish vestries, but the vestries often refused to make such presentations and instead chose ministers on their own. Controversies over the selection of ministers\nalso arose in other Colonies with Anglican establishments, including North Carolina. There, the\nroyal governor insisted that the right of presentation lay with the Bishop of London, but the\ncolonial assembly enacted laws placing that right in the vestries.\xe2\x80\xa6\nIt was against this background that the First Amendment was adopted. Familiar with life\nunder the established Church of England, the founding generation sought to foreclose the possibility of a national church. See 1 Annals of Cong. 730\xe2\x80\x93731 (1789) (remarks of J. Madison)\n(noting that the Establishment Clause addressed the fear that \xe2\x80\x9cone sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to\nconform\xe2\x80\x9d). By forbidding the \xe2\x80\x9cestablishment of religion\xe2\x80\x9d and guaranteeing the \xe2\x80\x9cfree exercise\nthereof,\xe2\x80\x9d the Religion Clauses ensured that the new Federal Government\xe2\x80\x94unlike the English\nCrown\xe2\x80\x94would have no role in filling ecclesiastical offices. The Establishment Clause prevents\nthe Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own\xe2\x80\xa6\nGiven this understanding of the Religion Clauses\xe2\x80\x94and the absence of government employment regulation generally\xe2\x80\x94it was some time before questions about government interference\nwith a church\xe2\x80\x99s ability to select its own ministers came before the courts. This Court touched\nupon the issue indirectly, however, in the context of disputes over church property. Our decisions\nin that area confirm that it is impermissible for the government to contradict a church\xe2\x80\x99s determination of who can act as its ministers.\nIn Watson v. Jones, 13 Wall. 679 (1872), the Court considered a dispute between antislavery\nand proslavery factions over who controlled the property of the Walnut Street Presbyterian\nChurch in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court\xe2\x80\x94applying not the Constitution but a \xe2\x80\x9cbroad and\nsound view of the relations of church and state under our system of laws\xe2\x80\x9d\xe2\x80\x94declined to question\nthat determination. We explained that \xe2\x80\x9cwhenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to\nwhich the matter has been carried, the legal tribunals must accept such decisions as final, and as\nbinding on them.\xe2\x80\x9d As we would put it later, our opinion in Watson \xe2\x80\x9cradiates ... a spirit of freedom for religious organizations, an independence from secular control or manipulation\xe2\x80\x94in\nshort, power to decide for themselves, free from state interference, matters of church government\nas well as those of faith and doctrine.\xe2\x80\x9d Kedroff v. Saint Nicholas Cathedral of Russian Orthodox\nChurch in North America, 344 U.S. 94, 116 (1952)\xe2\x80\xa6.\nUntil today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment.\nThe Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a\n\xe2\x80\x9cministerial exception,\xe2\x80\x9d grounded in the First Amendment, that precludes application of such\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c376 Religion in the Law\nlegislation to claims concerning the employment relationship between a religious institution and\nits ministers.\nWe agree that there is such a ministerial exception. The members of a religious group put\ntheir faith in the hands of their ministers. Requiring a church to accept or retain an unwanted\nminister, or punishing a church for failing to do so, intrudes upon more than a mere employment\ndecision. Such action interferes with the internal governance of the church, depriving the church\nof control over the selection of those who will personify its beliefs. By imposing an unwanted\nminister, the state infringes the Free Exercise Clause, which protects a religious group\xe2\x80\x99s right to\nshape its own faith and mission through its appointments. According the state the power to\ndetermine which individuals will minister to the faithful also violates the Establishment Clause,\nwhich prohibits government involvement in such ecclesiastical decisions.\nThe EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that\nit would violate the First Amendment for courts to apply such laws to compel the ordination of\nwomen by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC\nand Perich, religious organizations could successfully defend against employment discrimination\nclaims in those circumstances by invoking the constitutional right to freedom of association\xe2\x80\x94a\nright \xe2\x80\x9cimplicit\xe2\x80\x9d in the First Amendment. Roberts v. United States Jaycees, 468 U.S. 609, 622\n(1984). The EEOC and Perich thus see no need\xe2\x80\x94and no basis\xe2\x80\x94for a special rule for ministers\ngrounded in the Religion Clauses themselves.\nWe find this position untenable. The right to freedom of association is a right enjoyed by\nreligious and secular groups alike. It follows under the EEOC\xe2\x80\x99s and Perich\xe2\x80\x99s view that the First\nAmendment analysis should be the same, whether the association in question is the Lutheran\nChurch, a labor union, or a social club. That result is hard to square with the text of the First\nAmendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious\norganization\xe2\x80\x99s freedom to select its own ministers\nThe EEOC and Perich also contend that our decision in Employment Div., Dept. of Human\nResources of Ore. v. Smith, 494 U.S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment\nbenefits after it was determined that they had been fired from their jobs for ingesting peyote, a\ncrime under Oregon law. We held that this did not violate the Free Exercise Clause, even though\nthe peyote had been ingested for sacramental purposes, because the \xe2\x80\x9cright of free exercise does\nnot relieve an individual of the obligation to comply with a valid and neutral law of general\napplicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).\xe2\x80\x9d Id., at 879\nIt is true that the ADA\xe2\x80\x99s prohibition on retaliation, like Oregon\xe2\x80\x99s prohibition on peyote use,\nis a valid and neutral law of general applicability. But a church\xe2\x80\x99s selection of its ministers is unlike\nan individual\xe2\x80\x99s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church\ndecision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the\ngovernment\xe2\x80\x99s regulation of \xe2\x80\x9cphysical acts\xe2\x80\x9d from its \xe2\x80\x9clend [ing] its power to one or the other side\nin controversies over religious authority or dogma\xe2\x80\x9d). The contention that Smith forecloses\nrecognition of a ministerial exception rooted in the Religion Clauses has no merit.\nHaving concluded that there is a ministerial exception grounded in the Religion Clauses of\nthe First Amendment, we consider whether the exception applies in this case. We hold that it\ndoes.\nEvery Court of Appeals to have considered the question has concluded that the ministerial\nexception is not limited to the head of a religious congregation, and we agree. We are reluctant,\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 377\nhowever, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is\nenough for us to conclude, in this our first case involving the ministerial exception, that the\nexception covers Perich, given all the circumstances of her employment.\nTo begin with, Hosanna\xe2\x80\x93Tabor held Perich out as a minister, with a role distinct from that\nof most of its members. When Hosanna\xe2\x80\x93Tabor extended her a call, it issued her a \xe2\x80\x9cdiploma of\nvocation\xe2\x80\x9d according her the title \xe2\x80\x9cMinister of Religion, Commissioned.\xe2\x80\x9d She was tasked with\nperforming that office \xe2\x80\x9caccording to the Word of God and the confessional standards of the\nEvangelical Lutheran Church as drawn from the Sacred Scriptures.\xe2\x80\x9d Ibid. The congregation\nprayed that God \xe2\x80\x9cbless [her] ministrations to the glory of His holy name, [and] the building of\nHis church.\xe2\x80\x9d In a supplement to the diploma, the congregation undertook to periodically review\nPerich\xe2\x80\x99s \xe2\x80\x9cskills of ministry\xe2\x80\x9d and \xe2\x80\x9cministerial responsibilities,\xe2\x80\x9d and to provide for her \xe2\x80\x9ccontinuing\neducation as a professional person in the ministry of the Gospel.\xe2\x80\x9d\nPerich\xe2\x80\x99s title as a minister reflected a significant degree of religious training followed by a\nformal process of commissioning\xe2\x80\xa6. It took Perich six years to fulfill these requirements. And\nwhen she eventually did, she was commissioned as a minister only upon election by the congregation, which recognized God\xe2\x80\x99s call to her to teach. At that point, her call could be rescinded\nonly upon a supermajority vote of the congregation\xe2\x80\x94a protection designed to allow her to\n\xe2\x80\x9cpreach the Word of God boldly.\xe2\x80\x9d\nPerich held herself out as a minister of the Church by accepting the formal call to religious\nservice, according to its terms. She did so in other ways as well\xe2\x80\xa6. In a form she submitted to\nthe Synod following her termination, Perich again indicated that she regarded herself as a minister at Hosanna\xe2\x80\x93Tabor, stating: \xe2\x80\x9cI feel that God is leading me to serve in the teaching ministry....\nI am anxious to be in the teaching ministry again soon.\xe2\x80\x9d\nPerich\xe2\x80\x99s job duties reflected a role in conveying the Church\xe2\x80\x99s message and carrying out its\nmission. Hosanna\xe2\x80\x93Tabor expressly charged her with \xe2\x80\x9clead[ing] others toward Christian maturity\xe2\x80\x9d and \xe2\x80\x9cteach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity\nand as set forth in all the symbolical books of the Evangelical Lutheran Church.\xe2\x80\x9d \xe2\x80\xa6 As a source\nof religious instruction, Perich performed an important role in transmitting the Lutheran faith\nto the next generation.\nIn light of these considerations\xe2\x80\x94the formal title given Perich by the Church, the substance\nreflected in that title, her own use of that title, and the important religious functions she performed for the Church\xe2\x80\x94we conclude that Perich was a minister covered by the ministerial exception\xe2\x80\xa6. Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer\xe2\x80\xa6.\nThe EEOC and Perich suggest that Hosanna\xe2\x80\x93Tabor\xe2\x80\x99s asserted religious reason for firing\nPerich\xe2\x80\x94that she violated the Synod\xe2\x80\x99s commitment to internal dispute resolution\xe2\x80\x94was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church\xe2\x80\x99s decision to fire a minister only when it is made for a religious\nreason. The exception instead ensures that the authority to select and control who will minister\nto the faithful\xe2\x80\x94a matter \xe2\x80\x9cstrictly ecclesiastical,\xe2\x80\x9d Kedroff, 344 U.S. at 119\xe2\x80\x94is the church\xe2\x80\x99s\nalone\xe2\x80\xa6.\nThe case before us is an employment discrimination suit brought on behalf of a minister,\nchallenging her church\xe2\x80\x99s decision to fire her. Today we hold only that the ministerial exception\nbars such a suit. We express no view on whether the exception bars other types of suits, including\nactions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.\nThe interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c378 Religion in the Law\ntheir beliefs, teach their faith, and carry out their mission. When a minister who has been fired\nsues her church alleging that her termination was discriminatory, the First Amendment has\nstruck the balance for us. The church must be free to choose those who will guide it on its way.\nThe judgment of the Court of Appeals for the Sixth Circuit is reversed.\nIt is so ordered.\nJustice THOMAS, concurring.\n\xe2\x80\xa6I write separately to note that, in my view, the Religion Clauses require civil courts to\napply the ministerial exception and to defer to a religious organization\xe2\x80\x99s good-faith understanding of who qualifies as its minister\xe2\x80\xa6. A religious organization\xe2\x80\x99s right to choose its ministers\nwould be hollow \xe2\x80\xa6 if secular courts could second-guess the organization\xe2\x80\x99s sincere determination\nthat a given employee is a \xe2\x80\x9cminister\xe2\x80\x9d under the organization\xe2\x80\x99s theological tenets. Our country\xe2\x80\x99s\nreligious landscape includes organizations with different leadership structures and doctrines that\ninfluence their conceptions of ministerial status. The question whether an employee is a minister\nis itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil\ndefinition of \xe2\x80\x9cminister\xe2\x80\x9d through a bright-line test or multifactor analysis risk disadvantaging\nthose religious groups whose beliefs, practices, and membership are outside of the \xe2\x80\x9cmainstream\xe2\x80\x9d\nor unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be\nrejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs\nand practices regarding \xe2\x80\x9cministers\xe2\x80\x9d to the prevailing secular understanding\xe2\x80\xa6.\nThe Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was\none of Hosanna\xe2\x80\x93Tabor\xe2\x80\x99s ministers, and I agree that these facts amply demonstrate Perich\xe2\x80\x99s ministerial role. But the evidence demonstrates that Hosanna\xe2\x80\x93Tabor sincerely considered Perich a\nminister. That would be sufficient for me to conclude that Perich\xe2\x80\x99s suit is properly barred by the\nministerial exception.\nJustice ALITO, with whom Justice KAGAN joins, concurring.\n\xe2\x80\xa6I write separately to clarify my understanding of the significance of formal ordination\nand designation as a \xe2\x80\x9cminister\xe2\x80\x9d in determining whether an \xe2\x80\x9cemployee\xe2\x80\x9d of a religious group falls\nwithin the so-called \xe2\x80\x9cministerial\xe2\x80\x9d exception. The term \xe2\x80\x9cminister\xe2\x80\x9d is commonly used by many\nProtestant denominations to refer to members of their clergy, but the term is rarely if ever used\nin this way by Catholics, Jews, Muslims, Hindus, or Buddhists. In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in\nsome Christian denominations and some other religions. Because virtually every religion in the\nworld is represented in the population of the United States, it would be a mistake if the term\n\xe2\x80\x9cminister\xe2\x80\x9d or the concept of ordination were viewed as central to the important issue of religious\nautonomy that is presented in cases like this one. Instead, courts should focus on the function\nperformed by persons who work for religious bodies\xe2\x80\xa6.\nThe \xe2\x80\x9cministerial\xe2\x80\x9d exception should \xe2\x80\xa6 apply to any \xe2\x80\x9cemployee\xe2\x80\x9d who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as\na messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee\nof religious freedom protects the group\xe2\x80\x99s right to remove the employee from his or her position.\n\xe2\x80\xa6In a case like the one now before us\xe2\x80\x94where the goal of the civil law in question, the\nelimination of discrimination against persons with disabilities, is so worthy\xe2\x80\x94it is easy to forget\nthat the autonomy of religious groups, both here in the United States and abroad, has often\nserved as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long\nrecognized that the Religion Clauses protect a private sphere within which religious bodies are\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 379\nfree to govern themselves in accordance with their own beliefs. The Constitution guarantees\nreligious bodies \xe2\x80\x9cindependence from secular control or manipulation\xe2\x80\x94in short, power to decide\nfor themselves, free from state interference, matters of church government as well as those of\nfaith and doctrine.\xe2\x80\x9d Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North\nAmerica, 344 U.S. 94, 116 (1952).\nReligious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of \xe2\x80\x9cemployees\xe2\x80\x9d whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of\nreligious ceremonies and rituals, and those who are entrusted with teaching and conveying the\ntenets of the faith to the next generation\xe2\x80\xa6.\nWhen it comes to the expression and inculcation of religious doctrine, there can be no doubt\nthat the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth, and both the content and credibility of a religion\xe2\x80\x99s message depend vitally on the\ncharacter and conduct of its teachers. A religion cannot depend on someone to be an effective\nadvocate for its religious vision if that person\xe2\x80\x99s conduct fails to live up to the religious precepts\nthat he or she espouses. For this reason, a religious body\xe2\x80\x99s right to self-governance must include\nthe ability to select, and to be selective about, those who will serve as the very \xe2\x80\x9cembodiment of\nits message\xe2\x80\x9d and \xe2\x80\x9cits voice to the faithful.\xe2\x80\x9d Petruska v. Gannon Univ., 462 F.3d 294, 306 (C.A.3\n2006). A religious body\xe2\x80\x99s control over such \xe2\x80\x9cemployees\xe2\x80\x9d is an essential component of its freedom to speak in its own voice, both to its own members and to the outside world\xe2\x80\xa6.\nThe \xe2\x80\x9cministerial\xe2\x80\x9d exception gives concrete protection to the free expression and dissemination of any religious doctrine. The Constitution leaves it to the collective conscience of each\nreligious group to determine for itself who is qualified to serve as a teacher or messenger of its\nfaith.\nThe Court\xe2\x80\x99s opinion today holds that the \xe2\x80\x9cministerial\xe2\x80\x9d exception applies to Cheryl Perich\n(hereinafter respondent), who is regarded by the Lutheran Church\xe2\x80\x93Missouri Synod as a commissioned minister. But while a ministerial title is undoubtedly relevant in applying the First\nAmendment rule at issue, such a title is neither necessary nor sufficient. As previously noted,\nmost faiths do not employ the term \xe2\x80\x9cminister,\xe2\x80\x9d and some eschew the concept of formal ordination. And at the opposite end of the spectrum, some faiths consider the ministry to consist of all\nor a very large percentage of their members. Perhaps this explains why, although every circuit\nto consider the issue has recognized the \xe2\x80\x9cministerial\xe2\x80\x9d exception, no circuit has made ordination\nstatus or formal title determinative of the exception\xe2\x80\x99s applicability\xe2\x80\xa6.\nThe ministerial exception applies to respondent because, as the Court notes, she played a\nsubstantial role in \xe2\x80\x9cconveying the Church\xe2\x80\x99s message and carrying out its mission.\xe2\x80\x9d She taught\nreligion to her students four days a week and took them to chapel on the fifth day. She led them\nin daily devotional exercises, and led them in prayer three times a day. She also alternated with\nthe other teachers in planning and leading worship services at the school chapel, choosing liturgies, hymns, and readings, and composing and delivering a message based on Scripture.\nIt makes no difference that respondent also taught secular subjects. While a purely secular\nteacher would not qualify for the \xe2\x80\x9cministerial\xe2\x80\x9d exception, the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to\ntheir religious ones. What matters is that respondent played an important role as an instrument\nof her church\xe2\x80\x99s religious message and as a leader of its worship activities. Because of these important religious functions, Hosanna\xe2\x80\x93Tabor had the right to decide for itself whether respondent\nwas religiously qualified to remain in her office.\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c380 Religion in the Law\nHosanna\xe2\x80\x93Tabor discharged respondent because she threatened to file suit against the\nchurch in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. \xe2\x80\xa6 Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing,\nwhich was really done for nonreligious reasons.\nFor civil courts to engage in the pretext inquiry that respondent and the Solicitor General\nurge us to sanction would dangerously undermine the religious autonomy that lower court case\nlaw has now protected for nearly four decades. In order to probe the real reason for respondent\xe2\x80\x99s\nfiring, a civil court\xe2\x80\x94and perhaps a jury\xe2\x80\x94would be required to make a judgment about church\ndoctrine. The credibility of Hosanna\xe2\x80\x93Tabor\xe2\x80\x99s asserted reason for terminating respondent\xe2\x80\x99s employment could not be assessed without taking into account both the importance that the Lutheran Church attaches to the doctrine of internal dispute resolution and the degree to which\nthat tenet compromised respondent\xe2\x80\x99s religious function. If it could be shown that this belief is\nan obscure and minor part of Lutheran doctrine, it would be much more plausible for respondent to argue that this doctrine was not the real reason for her firing. If, on the other hand, the\ndoctrine is a central and universally known tenet of Lutheranism, then the church\xe2\x80\x99s asserted\nreason for her discharge would seem much more likely to be nonpretextual. But whatever the\ntruth of the matter might be, the mere adjudication of such questions would pose grave problems\nfor religious autonomy: It would require calling witnesses to testify about the importance and\npriority of the religious doctrine in question, with a civil factfinder sitting in ultimate judgment\nof what the accused church really believes, and how important that belief is to the church\xe2\x80\x99s\noverall mission\xe2\x80\xa6.\nWhat matters in the present case is that Hosanna\xe2\x80\x93Tabor believes that the religious function\nthat respondent performed made it essential that she abide by the doctrine of internal dispute\nresolution; and the civil courts are in no position to second-guess that assessment. This conclusion rests not on respondent\xe2\x80\x99s ordination status or her formal title, but rather on her functional\nstatus as the type of employee that a church must be free to appoint or dismiss in order to\nexercise the religious liberty that the First Amendment guarantees.\n\nHosanna-Tabor v. EEOC, 565 U.S. 171 (2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 381\n\n574 U.S. 352\nSupreme Court of the United States\n\nHolt v. Hobbs\nJanuary 20, 2015\nJustice ALITO delivered the opinion of the Court.\nPetitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate\nand a devout Muslim who wishes to grow a \xc2\xbd\xe2\x80\x93inch beard in accordance with his religious\nbeliefs. Petitioner\xe2\x80\x99s objection to shaving his beard clashes with the Arkansas Department of Correction\xe2\x80\x99s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition. We hold that the Department\xe2\x80\x99s policy, as applied in this case,\nviolates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) 42 U.S.C.\n\xc2\xa7 2000cc et seq., which prohibits a state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government\ndemonstrates that the action constitutes the least restrictive means of furthering a compelling\ngovernmental interest.\nWe conclude in this case that the Department\xe2\x80\x99s policy substantially burdens petitioner\xe2\x80\x99s religious exercise. Although we do not question the importance of the Department\xe2\x80\x99s interests in\nstopping the flow of contraband and facilitating prisoner identification, we do doubt whether\nthe prohibition against petitioner\xe2\x80\x99s beard furthers its compelling interest about contraband. And\nwe conclude that the Department has failed to show that its policy is the least restrictive means\nof furthering its compelling interests. We thus reverse the judgment of the United States Court\nof Appeals for the Eighth Circuit.\nCongress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of\n1993 (RFRA), 42 U.S.C. \xc2\xa7 2000bb et seq., \xe2\x80\x9cin order to provide very broad protection for religious liberty.\xe2\x80\x9d Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v.\nSmith, 494 U.S. 872 (1990), which held that neutral, generally applicable laws that incidentally\nburden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963). In those\ncases, we employed a balancing test that considered whether a challenged government action\nthat substantially burdened the exercise of religion was necessary to further a compelling state\ninterest. See Yoder, at 214, 219; Sherbert, at 403, 406.\nFollowing our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. \xe2\x80\xa6 In making RFRA\napplicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth\nAmendment, but in City of Boerne v. Flores, 521 U.S. 507 (1997), this Court held that RFRA\nexceeded Congress\xe2\x80\x99 powers under that provision.\nCongress responded to City of Boerne by enacting RLUIPA, which applies to the States and\ntheir subdivisions and invokes congressional authority under the Spending and Commerce\nClauses. See \xc2\xa7 2000cc\xe2\x80\x931(b). RLUIPA concerns two areas of government activity: Section 2 governs land-use regulation, and Section 3\xe2\x80\x94the provision at issue in this case\xe2\x80\x94governs religious\nexercise by institutionalized persons. Section 3 mirrors RFRA and provides that\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c382 Religion in the Law\n[N]o government shall impose a substantial burden on the religious exercise\nof a person residing in or confined to an institution ... even if the burden results\nfrom a rule of general applicability, unless the government demonstrates that\nimposition of the burden on that person\xe2\x80\x94(1) is in furtherance of a compelling\ngovernmental interest; and (2) is the least restrictive means of furthering that\ncompelling governmental interest. \xc2\xa7 2000cc\xe2\x80\x931(a).\nRLUIPA thus allows prisoners \xe2\x80\x9cto seek religious accommodations pursuant to the same\nstandard as set forth in RFRA.\xe2\x80\x9d Gonzales v. O Centro Esp\xc3\xadrita Beneficente Uni\xc3\xb5 do Vegetal,\n546 U.S. 418, 436 (2006).\nSeveral provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined \xe2\x80\x9creligious exercise\xe2\x80\x9d capaciously to include \xe2\x80\x9cany exercise of religion, whether or\nnot compelled by, or central to, a system of religious belief.\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x935(7)(A). Congress mandated that this concept \xe2\x80\x9cshall be construed in favor of a broad protection of religious exercise,\nto the maximum extent permitted by the terms of this chapter and the Constitution.\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x93\n3(g). And Congress stated that RLUIPA \xe2\x80\x9cmay require a government to incur expenses in its own\noperations to avoid imposing a substantial burden on religious exercise.\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x933(c). See\nHobby Lobby, at 695, 696-730.\nPetitioner \xe2\x80\xa6 is in the custody of the Arkansas Department of Correction, and he objects on\nreligious grounds to the Department\xe2\x80\x99s grooming policy, which provides that \xe2\x80\x9c[n]o inmates will\nbe permitted to wear facial hair other than a neatly trimmed mustache that does not extend\nbeyond the corner of the mouth or over the lip.\xe2\x80\x9d The policy makes no exception for inmates\nwho object on religious grounds, but it does contain an exemption for prisoners with medical\nneeds: \xe2\x80\x9cMedical staff may prescribe that inmates with a diagnosed dermatological problem may\nwear facial hair no longer than one quarter of an inch.\xe2\x80\x9d The policy provides that \xe2\x80\x9c[f]ailure to\nabide by [the Department\xe2\x80\x99s] grooming standards is grounds for disciplinary action.\xe2\x80\x9d\nPetitioner sought permission to grow a beard and, although he believes that his faith requires him not to trim his beard at all, he proposed a \xe2\x80\x9ccompromise\xe2\x80\x9d under which he would\ngrow only a \xc2\xbd\xe2\x80\x93inch beard. Prison officials denied his request, and the warden told him: \xe2\x80\x9c [Y]ou\nwill abide by [Arkansas Department of Correction] policies and if you choose to disobey, you\ncan suffer the consequences.\xe2\x80\x9d (Letter from G. Lay to G. Holt (July 19, 2011)).\nPetitioner filed a pro se complaint in Federal District Court challenging the grooming policy\nunder RLUIPA. In October 2011, the District Court granted petitioner a preliminary injunction\nand remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department\ncalled two witnesses. Both expressed the belief that inmates could hide contraband in even a \xc2\xbd\xe2\x80\x93\ninch beard, but neither pointed to any instances in which this had been done in Arkansas or\nelsewhere. Both witnesses also acknowledged that inmates could hide items in many other\nplaces, such as in the hair on their heads or their clothing. In addition, one of the witnesses\xe2\x80\x94\nGaylon Lay, the warden of petitioner\xe2\x80\x99s prison\xe2\x80\x94testified that a prisoner who escaped could\nchange his appearance by shaving his beard, and that a prisoner could shave his beard to disguise\nhimself and enter a restricted area of the prison. Neither witness, however, was able to explain\nwhy these problems could not be addressed by taking a photograph of an inmate without a\nbeard, a practice followed in other prison systems. Lay voiced concern that the Department\nwould be unable to monitor the length of a prisoner\xe2\x80\x99s beard to ensure that it did not exceed onehalf inch, but he acknowledged that the Department kept track of the length of the beards of\nthose inmates who are allowed to wear a \xc2\xbc\xe2\x80\x93inch beard for medical reasons.\nAs a result of the preliminary injunction, petitioner had a short beard at the time of the\nhearing, and the Magistrate Judge commented: \xe2\x80\x9cI look at your particular circumstance and I\nsay, you know, it\xe2\x80\x99s almost preposterous to think that you could hide contraband in your beard.\xe2\x80\x9d\nNevertheless, the Magistrate Judge recommended that the preliminary injunction be vacated\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 383\nand that petitioner\xe2\x80\x99s complaint be dismissed for failure to state a claim [because] \xe2\x80\x9cthe prison\nofficials are entitled to deference,\xe2\x80\x9d and \xe2\x80\xa6 the grooming policy allowed petitioner to exercise his\nreligion in other ways, such as by praying on a prayer rug, maintaining the diet required by his\nfaith, and observing religious holidays.\nThe District Court adopted the Magistrate Judge\xe2\x80\x99s recommendation in full, and the Court\nof Appeals for the Eighth Circuit affirmed in a brief per curiam opinion, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive\nmeans of furthering its compelling security interests. 509 Fed.Appx. 561 (2013). The Court of\nAppeals stated that \xe2\x80\x9ccourts should ordinarily defer to [prison officials\xe2\x80\x99] expert judgment\xe2\x80\x9d in\nsecurity matters unless there is substantial evidence that a prison\xe2\x80\x99s response is exaggerated\xe2\x80\xa6.\nWe entered an injunction pending resolution of petitioner\xe2\x80\x99s petition for writ of certiorari, and\nwe then granted certiorari.\nUnder RLUIPA, petitioner bore the initial burden of proving that the Department\xe2\x80\x99s grooming policy implicates his religious exercise. RLUIPA protects \xe2\x80\x9cany exercise of religion, whether\nor not compelled by, or central to, a system of religious belief,\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x935(7)(A), but, of course,\na prisoner\xe2\x80\x99s request for an accommodation must be sincerely based on a religious belief and not\nsome other motivation, see Hobby Lobby, 573 U.S. at 717, n. 28. Here, the religious exercise at\nissue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and\nthe Department does not dispute the sincerity of petitioner\xe2\x80\x99s belief.\nIn addition to showing that the relevant exercise of religion is grounded in a sincerely held\nreligious belief, petitioner also bore the burden of proving that the Department\xe2\x80\x99s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The\nDepartment\xe2\x80\x99s grooming policy requires petitioner to shave his beard and thus to \xe2\x80\x9cengage in\nconduct that seriously violates [his] religious beliefs.\xe2\x80\x9d Id., at 720. If petitioner contravenes that\npolicy and grows his beard, he will face serious disciplinary action. Because the grooming policy\nputs petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise.\nThe District Court reached the opposite conclusion, but its reasoning (adopted from the\nrecommendation of the Magistrate Judge) misunderstood the analysis that RLUIPA demands.\nFirst, the District Court erred by concluding that the grooming policy did not substantially burden petitioner\xe2\x80\x99s religious exercise because \xe2\x80\x9che had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was\nallowed to maintain the required diet and observe religious holidays.\xe2\x80\x9d In taking this approach,\nthe District Court improperly imported a strand of reasoning from cases involving prisoners\xe2\x80\x99\nFirst Amendment rights. See, e.g., O\xe2\x80\x99Lone v. Estate of Shabazz, 482 U.S. 342, 351\xe2\x80\x93352 (1987);\nsee also Turner v. Safley, 482 U.S. 78, 90 (1987). Under those cases, the availability of alternative\nmeans of practicing religion is a relevant consideration, but RLUIPA provides greater protection.\nRLUIPA\xe2\x80\x99s \xe2\x80\x9csubstantial burden\xe2\x80\x9d inquiry asks whether the government has substantially burdened\nreligious exercise (here, the growing of a \xc2\xbd\xe2\x80\x93inch beard), not whether the RLUIPA claimant is\nable to engage in other forms of religious exercise.\nSecond, the District Court committed a similar error in suggesting that the burden on petitioner\xe2\x80\x99s religious exercise was slight because, according to petitioner\xe2\x80\x99s testimony, his religion\nwould \xe2\x80\x9ccredit\xe2\x80\x9d him for attempting to follow his religious beliefs, even if that attempt proved to\nbe unsuccessful. RLUIPA, however, applies to an exercise of religion regardless of whether it is\n\xe2\x80\x9ccompelled.\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x935(7)(A).\nFinally, the District Court went astray when it relied on petitioner\xe2\x80\x99s testimony that not all\nMuslims believe that men must grow beards. Petitioner\xe2\x80\x99s belief is by no means idiosyncratic. \xe2\x80\xa6\nBut even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c384 Religion in the Law\nClause, is \xe2\x80\x9cnot limited to beliefs which are shared by all of the members of a religious sect.\xe2\x80\x9d\nThomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715\xe2\x80\x93716 (1981).\nSince petitioner met his burden of showing that the Department\xe2\x80\x99s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its\nrefusal to allow petitioner to grow a \xc2\xbd\xe2\x80\x93inch beard \xe2\x80\x9c(1) [was] in furtherance of a compelling\ngovernmental interest; and (2) [was] the least restrictive means of furthering that compelling\ngovernmental interest.\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x931(a).\nThe Department argues that its grooming policy represents the least restrictive means of\nfurthering a \xe2\x80\x9cbroadly formulated interest,\xe2\x80\x9d Hobby Lobby, at 726 (quoting O Centro, 546 U.S.\nat 431), namely, the Department\xe2\x80\x99s compelling interest in prison safety and security. But RLUIPA,\nlike RFRA, contemplates a \xe2\x80\x9cmore focused\xe2\x80\x9d inquiry and \xe2\x80\x9crequires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to\nthe person\xe2\x80\x94the particular claimant whose sincere exercise of religion is being substantially burdened.\xe2\x80\x9d Hobby Lobby, at 726. RLUIPA requires us to \xe2\x80\x9cscrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants\xe2\x80\x9d and \xe2\x80\x9cto look to the marginal interest\nin enforcing\xe2\x80\x9d the challenged government action in that particular context. Hobby Lobby, at\n726-727. In this case, that means the enforcement of the Department\xe2\x80\x99s policy to prevent petitioner from growing a \xc2\xbd\xe2\x80\x93inch beard.\nThe Department contends that enforcing this prohibition is the least restrictive means of\nfurthering prison safety and security in two specific ways.\nThe Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of\nprohibited items, including razors, needles, drugs, and cellular phone subscriber identity module\n(SIM) cards.\nWe readily agree that the Department has a compelling interest in staunching the flow of\ncontraband into and within its facilities, but the argument that this interest would be seriously\ncompromised by allowing an inmate to grow a \xc2\xbd\xe2\x80\x93inch beard is hard to take seriously. As noted,\nthe Magistrate Judge observed that it was \xe2\x80\x9calmost preposterous to think that [petitioner] could\nhide contraband\xe2\x80\x9d in the short beard he had grown at the time of the evidentiary hearing. An\nitem of contraband would have to be very small indeed to be concealed by a \xc2\xbd\xe2\x80\x93inch beard\xe2\x80\xa6.\nSince the Department does not demand that inmates have shaved heads or short crew cuts, it is\nhard to see why an inmate would seek to hide contraband in a \xc2\xbd\xe2\x80\x93inch beard rather than in the\nlonger hair on his head.\nAlthough the Magistrate Judge dismissed the possibility that contraband could be hidden\nin a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought\nthat they were bound to defer to the Department\xe2\x80\x99s assertion that allowing petitioner to grow\nsuch a beard would undermine its interest in suppressing contraband. RLUIPA, however, does\nnot permit such unquestioning deference. RLUIPA, like RFRA, \xe2\x80\x9cmakes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.\xe2\x80\x9d O Centro, at 434. That test requires the Department not merely to explain why it denied\nthe exemption but to prove that denying the exemption is the least restrictive means of furthering\na compelling governmental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that\nrespect does not justify the abdication of the responsibility, conferred by Congress, to apply\nRLUIPA\xe2\x80\x99s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a \xc2\xbd\xe2\x80\x93inch beard\nactually furthers the Department\xe2\x80\x99s interest in rooting out contraband.\nEven if the Department could make that showing, its contraband argument would still fail\nbecause the Department cannot show that forbidding very short beards is the least restrictive\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 385\nmeans of preventing the concealment of contraband. \xe2\x80\x9cThe least-restrictive-means standard is\nexceptionally demanding,\xe2\x80\x9d and it requires the government to \xe2\x80\x9csho[w] that it lacks other means\nof achieving its desired goal without imposing a substantial burden on the exercise of religion\nby the objecting part[y].\xe2\x80\x9d Hobby Lobby, at 728. \xe2\x80\x9c[I]f a less restrictive means is available for the\nGovernment to achieve its goals, the Government must use it.\xe2\x80\x9d United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 815 (2000).\nThe Department failed to establish that it could not satisfy its security concerns by simply\nsearching petitioner\xe2\x80\x99s beard. The Department already searches prisoners\xe2\x80\x99 hair and clothing, and\nit presumably examines the \xc2\xbc\xe2\x80\x93inch beards of inmates with dermatological conditions. It has\noffered no sound reason why hair, clothing, and \xc2\xbc\xe2\x80\x93inch beards can be searched but \xc2\xbd\xe2\x80\x93inch\nbeards cannot\xe2\x80\xa6.\nThe Department contends that its grooming policy is necessary to further an additional\ncompelling interest, i.e., preventing prisoners from disguising their identities\xe2\x80\xa6.\nWe agree that prisons have a compelling interest in the quick and reliable identification of\nprisoners, and we acknowledge that any alteration in a prisoner\xe2\x80\x99s appearance, such as by shaving\na beard, might, in the absence of effective countermeasures, have at least some effect on the\nability of guards or others to make a quick identification. But even if we assume for present\npurposes that the Department\xe2\x80\x99s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here.\nThe Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the\nDepartment could largely solve this problem by requiring that all inmates be photographed\nwithout beards when first admitted to the facility and, if necessary, periodically thereafter. Once\nthat is done, an inmate like petitioner could be allowed to grow a short beard and could be\nphotographed again when the beard reached the \xc2\xbd\xe2\x80\x93inch limit. Prison guards would then have\na bearded and clean-shaven photo to use in making identifications. In fact, the Department (like\nmany other States, see Brief for Petitioner 39) already has a policy of photographing a prisoner\nboth when he enters an institution and when his \xe2\x80\x9cappearance changes at any time during [his]\nincarceration.\xe2\x80\x9d Arkansas Department of Correction, Inmate Handbook 3\xe2\x80\x934 (rev. Jan. 2013).\nThe Department argues that the dual-photo method is inadequate because, even if it might\nhelp authorities apprehend a bearded prisoner who escapes and then shaves his beard once outside the prison, this method is unlikely to assist guards when an inmate quickly shaves his beard\nin order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner\xe2\x80\x99s prison, where inmates live in barracks and work\nin fields. Counsel for the Department suggested at oral argument that a prisoner could gain entry\nto a restricted area by shaving his beard and swapping identification cards with another inmate\nwhile out in the fields.\nWe are unpersuaded by these arguments for at least two reasons. First, the Department\nfailed to show, in the face of petitioner\xe2\x80\x99s evidence, that its prison system is so different from the\nmany institutions that allow facial hair that the dual-photo method cannot be employed at its\ninstitutions. Second, the Department failed to establish why the risk that a prisoner will shave a\n\xc2\xbd\xe2\x80\x93inch beard to disguise himself is so great that \xc2\xbd\xe2\x80\x93inch beards cannot be allowed, even though\nprisoners are allowed to grow mustaches, head hair, or \xc2\xbc\xe2\x80\x93inch beards for medical reasons. All\nof these could also be shaved off at a moment\xe2\x80\x99s notice, but the Department apparently does not\nthink that this possibility raises a serious security concern.\nIn addition to its failure to prove that petitioner\xe2\x80\x99s proposed alternatives would not sufficiently\nserve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis.\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c386 Religion in the Law\nFirst, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner\xe2\x80\x99s request to grow a \xc2\xbd\xe2\x80\x93inch beard, it permits prisoners with a dermatological condition to grow \xc2\xbc\xe2\x80\x93\ninch beards. The Department does this even though both beards pose similar risks. And the\nDepartment permits inmates to grow more than a \xc2\xbd\xe2\x80\x93inch of hair on their heads. With respect\nto hair length, the grooming policy provides only that hair must be worn \xe2\x80\x9cabove the ear\xe2\x80\x9d and\n\xe2\x80\x9cno longer in the back than the middle of the nape of the neck.\xe2\x80\x9d Hair on the head is a more\nplausible place to hide contraband than a \xc2\xbd\xe2\x80\x93inch beard\xe2\x80\x94and the same is true of an inmate\xe2\x80\x99s\nclothing and shoes. Nevertheless, the Department does not require inmates to go about bald,\nbarefoot, or naked. Although the Department\xe2\x80\x99s proclaimed objectives are to stop the flow of\ncontraband and to facilitate prisoner identification, \xe2\x80\x9c[t]he proffered objectives are not pursued\nwith respect to analogous nonreligious conduct,\xe2\x80\x9d which suggests that \xe2\x80\x9cthose interests could be\nachieved by narrower ordinances that burdened religion to a far lesser degree.\xe2\x80\x9d Church of\nLukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993)\xe2\x80\xa6.\nThe Department also asserts that few inmates require beards for medical reasons while\nmany may request beards for religious reasons. But the Department has not argued that denying\npetitioner an exemption is necessary to further a compelling interest in cost control or program\nadministration. At bottom, this argument is but another formulation of the \xe2\x80\x9cclassic rejoinder of\nbureaucrats throughout history: If I make an exception for you, I\xe2\x80\x99ll have to make one for everybody, so no exceptions.\xe2\x80\x9d O Centro, 546 U.S. at 436. We have rejected a similar argument in\nanalogous contexts, see ibid.; Sherbert, 374 U.S. at 407, and we reject it again today\xe2\x80\xa6.\nWe do not suggest that RLUIPA requires a prison to grant a particular religious exemption\nas soon as a few other jurisdictions do so. But when so many prisons offer an accommodation,\na prison must, at a minimum, offer persuasive reasons why it believes that it must take a different\ncourse, and the Department failed to make that showing here. Despite this, the courts below\ndeferred to these prison officials\xe2\x80\x99 mere say-so that they could not accommodate petitioner\xe2\x80\x99s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not \xe2\x80\x9cassume a plausible, less restrictive alternative would be ineffective.\xe2\x80\x9d\nPlayboy Entertainment, 529 U.S. at 824.\nWe emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security.\nWe highlight three ways in which this is so. First, in applying RLUIPA\xe2\x80\x99s statutory standard,\ncourts should not blind themselves to the fact that the analysis is conducted in the prison setting.\nSecond, if an institution suspects that an inmate is using religious activity to cloak illicit conduct,\n\xe2\x80\x9cprison officials may appropriately question whether a prisoner\xe2\x80\x99s religiosity, asserted as the basis\nfor a requested accommodation, is authentic.\xe2\x80\x9d Cutter v. Wilkinson, 544 U.S. 709, 725, n. 13\n(2005). See also Hobby Lobby, 573 U.S. at 717 n. 28. Third, even if a claimant\xe2\x80\x99s religious belief\nis sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses\nthe exemption in a manner that undermines the prison\xe2\x80\x99s compelling interests.\nIn sum, we hold that the Department\xe2\x80\x99s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a \xc2\xbd\xe2\x80\x93inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is\nremanded for further proceedings consistent with this opinion.\nIt is so ordered.\nJustice GINSBURG, with whom Justice SOTOMAYOR joins, concurring.\nUnlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573\nU.S. 682 (2014), accommodating petitioner\xe2\x80\x99s religious belief in this case would not detrimentally\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 387\naffect others who do not share petitioner\xe2\x80\x99s belief. See id., at 740, 745-746 and n. 8, 764\n(GINSBURG, J., dissenting). On that understanding, I join the Court\xe2\x80\x99s opinion.\nJustice SOTOMAYOR, concurring.\n\xe2\x80\xa6I write separately to explain my understanding of the applicable legal standard.\nNothing in the Court\xe2\x80\x99s opinion calls into question our prior holding in Cutter v. Wilkinson,\n544 U.S. 709 (2005), that \xe2\x80\x9c[c]ontext matters\xe2\x80\x9d in the application of the Religious Land Use and\nInstitutionalized Persons Act of 2000 (RLUIPA). In the dangerous prison environment, \xe2\x80\x9cregulations and procedures\xe2\x80\x9d are needed to \xe2\x80\x9cmaintain good order, security and discipline, consistent\nwith consideration of costs and limited resources.\xe2\x80\x9d Of course, that is not to say that cost alone\nis an absolute defense to an otherwise meritorious RLUIPA claim. Thus, we recognized \xe2\x80\x9cthat\nprison security is a compelling state interest, and that deference is due to institutional officials\xe2\x80\x99\nexpertise in this area.\xe2\x80\x9d Id., at 725, n. 13.\nI do not understand the Court\xe2\x80\x99s opinion to preclude deferring to prison officials\xe2\x80\x99 reasoning\nwhen that deference is due\xe2\x80\x94that is, when prison officials offer a plausible explanation for their\nchosen policy that is supported by whatever evidence is reasonably available to them. But the\ndeference that must be \xe2\x80\x9cextend[ed to] the experience and expertise of prison administrators does\nnot extend so far that prison officials may declare a compelling governmental interest by fiat.\xe2\x80\x9d\nYellowbear v. Lampert, 741 F.3d 48, 59 (C.A.10 2014). Indeed, prison policies \xe2\x80\x9cgrounded on\nmere speculation\xe2\x80\x9d are exactly the ones that motivated Congress to enact RLUIPA.\n\xe2\x80\xa6The Court is appropriately skeptical of the relationship between the Department\xe2\x80\x99s nobeard policy and its alleged compelling interests because the Department offered little more than\nunsupported assertions in defense of its refusal of petitioner\xe2\x80\x99s requested religious accommodation. RLUIPA requires more.\nOne final point bears emphasis. RLUIPA requires institutions refusing an accommodation\nto demonstrate that the policy it defends \xe2\x80\x9cis the least restrictive means of furthering [the alleged]\ncompelling interest[s].\xe2\x80\x9d \xc2\xa7 2000cc\xe2\x80\x931(a)(2)\xe2\x80\xa6 But nothing in the Court\xe2\x80\x99s opinion suggests that\nprison officials must refute every conceivable option to satisfy RLUIPA\xe2\x80\x99s least restrictive means\nrequirement. Nor does it intimate that officials must prove that they considered less restrictive\nalternatives at a particular point in time. Instead, the Court correctly notes that the Department\ninadequately responded to the less restrictive policies that petitioner brought to the Department\xe2\x80\x99s\nattention during the course of the litigation, including the more permissive policies used by the\nprisons in New York and California\xe2\x80\xa6.\nBecause I understand the Court\xe2\x80\x99s opinion to be consistent with the foregoing, I join it.\n\nHolt v. Hobbs, 574 U.S. 352 (2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c388 Religion in the Law\n\n946 F.Supp. 522\nUnited States District Court,\nN.D. Ohio, Eastern Division\n\nCarpenter v. Wilkinson\nSeptember 20, 1996\nDOWD, District Judge.\nOn March 28, 1995, pro se plaintiff, Robert Francis Carpenter (\xe2\x80\x9cCarpenter\xe2\x80\x9d), an inmate\nat Lorain Correctional Institution (\xe2\x80\x9cLor.C.I.\xe2\x80\x9d), having been previously granted leave to proceed\nin forma pauperis, filed the above-captioned case against (1) Reginald Wilkinson, Director of\nthe Ohio Department of Rehabilitation and Correction (\xe2\x80\x9cODRC\xe2\x80\x9d), (2) Norm Rose, Warden of\nLor.C.I., (3) Ben Kelly, (4) Chaplain Westra, and (5) Lor.C.I. Publication Screening Committee,\nalleging violations of his First Amendment right of free exercise of religion and his Fourteenth\nAmendment right of equal protection.\nPlaintiff alleges that he has been \xe2\x80\x9ca self proclaimed Satanist\xe2\x80\x9d since 1991 and that his beliefs\nare \xe2\x80\x9cdeeply rooted.\xe2\x80\x9d He alleges that in 1994 he sought prison officials\xe2\x80\x99 permission to receive\nand keep in his possession a copy of The Satanic Bible by Anton S. LaVey, but that permission\nwas ultimately denied after the book was reviewed by prison and ODRC officials.\nCarpenter asserts that The Satanic Bible plays a role in Satanism analogous to the Holy\nBible in Christianity and the Koran in Islam. Prison officials, however, denied permission for\nCarpenter to keep the book because (1) \xe2\x80\x9cSatan worship is not [an] authorized religion with the\n[ODRC]\xe2\x80\x9d and (2) because they found the book to be \xe2\x80\x9cinflammatory.\xe2\x80\x9d This lawsuit resulted.\nIn their motion for summary judgment, defendants advance these arguments: (1) that Satanism is not a \xe2\x80\x9creligion\xe2\x80\x9d for First Amendment purposes, but that if it is a religion, defendants\nhave not substantially burdened plaintiff\xe2\x80\x99s ability to practice that religion; and (2) that defendants have legitimate penological reasons both for distinguishing between Satanism and other\nreligions and for barring The Satanic Bible from Ohio\xe2\x80\x99s prisons.\nIn Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court set forth the principles\nthat guide a court\xe2\x80\x99s analysis of a claimed violation of the constitutional rights of a person who\nis incarcerated. The first principle is that, even where the claimant is incarcerated, federal courts\nmust \xe2\x80\x9cdischarge their duty to protect constitutional rights.\xe2\x80\x9d Id. at 405\xe2\x80\x93406 (citing Johnson v.\nAvery, 393 U.S. 483, 486 (1969)). The second principle is the recognition that a fair amount of\ndeference should be accorded prison authorities because \xe2\x80\x9ccourts are ill equipped to deal with\nthe increasingly urgent problems of prison administration.\xe2\x80\x9d Id. at 405. Therefore, when a prison\npolicy is alleged to violate an inmate\xe2\x80\x99s constitutional rights, the policy will be judged valid \xe2\x80\x9cif it\nis reasonably related to legitimate penological interests.\xe2\x80\x9d Turner v. Safley, 482 U.S. 78, 89\n(1987). See also O\xe2\x80\x99Lone v. Estate of Shabazz, 482 U.S. 342 (1987).\nThus, the analysis in this case must first address whether the plaintiff is experiencing a deprivation of his First Amendment right to religious free expression. If he is, then the Court must\ndetermine whether the deprivation is rendered valid by a legitimate penological interest.\nThe Supreme Court has set forth two requirements which must be met before a person\xe2\x80\x99s\nbeliefs are entitled to First Amendment protection: (1) the beliefs must be sincerely held, and (2)\nthe beliefs must be, in the claimant\xe2\x80\x99s scheme of things, religious in nature. United States v. Seeger,\n380 U.S. 163, 185 (1965) (a case involving conscientious objection to military service on the\n\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 389\nbasis of religious training and belief). If either of these requirements is not met, a court need not\nreach the question of whether a legitimate penological interest outweighs the exercise of the First\nAmendment right because there is simply no \xe2\x80\x9cfree exercise\xe2\x80\x9d to protect. The Seeger Court noted\nthat in conducting the analysis courts \xe2\x80\x9care not free to reject beliefs because they consider them\n\xe2\x80\x9cincomprehensible.\xe2\x80\x9d In other words, courts may not inquire into the \xe2\x80\x9ctruth\xe2\x80\x9d of a belief alleged\nto be religious. There is, however, no prohibition against inquiring into whether a set of beliefs\nconstitutes a \xe2\x80\x9creligion\xe2\x80\x9d within the meaning of the First Amendment. Jones v. Bradley, 590 F.2d\n294, 295 (9th Cir.1979).\nFor purposes of this motion, the Court will assume that Carpenter\xe2\x80\x99s beliefs as a Satanist are\nsincerely held. This assumption is supported both by the Complaint where he states that his\nbeliefs are \xe2\x80\x9cdeeply rooted,\xe2\x80\x9d and by several affidavits of fellow prisoners who testify that it is a\nknown fact in the prison that Carpenter is a Satanist.\nHaving assumed the sincerity of Carpenter\xe2\x80\x99s beliefs, the Court must turn to the question of\nwhether, in the plaintiff\xe2\x80\x99s scheme of things, his beliefs are religious in nature. Deciding what is\n\xe2\x80\x9creligious\xe2\x80\x9d or what constitutes a \xe2\x80\x9creligion\xe2\x80\x9d is a very delicate undertaking, especially where the\nclaimed \xe2\x80\x9creligious\xe2\x80\x9d beliefs fall outside what is commonly thought of as mainstream religion. At\nthe same time, \xe2\x80\x9cthe very concept of ordered liberty precludes allowing [a plaintiff] or any other\nperson, a blanket privilege to make his own standards on matters of conduct in which society\nas a whole has important interests.\xe2\x80\x9d Africa v. Commonwealth of Pa., 662 F.2d 1025, 1031 (3d\nCir.1981) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215\xe2\x80\x9316 (1972)).\nThe First Amendment, although it protects religious belief, does not itself define \xe2\x80\x9creligion.\xe2\x80\x9d\nTherefore, the Court must turn to case law for guidance. Early Supreme Court precedent defined\nreligion in traditional theistic terms. See, e.g., Davis v. Beason, 133 U.S. 333 (1890). Over the\nyears, case law broadened to protect unorthodox and non-theistic beliefs. See, e.g., Torcaso v.\nWatkins, 367 U.S. 488, 495 n. 11 (1961) (identifying religions in this country which do not\nteach belief in the existence of God); West Virginia State Board of Education v. Barnette, 319\nU.S. 624, 658\xe2\x80\x9359 (1943) (Frankfurter, J.; dissenting) (religion may be regarded \xe2\x80\x9cas a response\nof the individual to an inward mentor\xe2\x80\x9d). In Seeger, considering eligibility for conscientious objection to military service, the Court defined \xe2\x80\x9creligion\xe2\x80\x9d by comparing less traditional belief systems to faiths clearly within the scope of the First Amendment. Thus:\n[w]hile the applicant\xe2\x80\x99s words may differ, the test is simple of application. It is\nessentially an objective one, namely, does the claimed belief occupy the same\nplace in the life of the objector as an orthodox belief in God holds in the life\nof one clearly qualified for exemption?\nSeeger, 380 U.S. at 184. See also Welsh v. United States, 398 U.S. 333 (1970) (granting conscientious objector status to a military conscript even though he declined to profess belief in a\nSupreme Being).\nThe Third Circuit has identified three \xe2\x80\x9cuseful indicia\xe2\x80\x9d for determining the existence of a\nreligion protected by the First Amendment:\nFirst, a religion addresses fundamental and ultimate questions having to do\nwith deep and imponderable matters. Second, a religion is comprehensive in\nnature; it consists of a belief-system as opposed to an isolated teaching. Third,\na religion often can be recognized by the presence of certain formal and external signs.Africa v. Comm. of Pa., 662 F.2d at 1032.\nThe nature of the inquiry regarding \xe2\x80\x9cfundamental and ultimate questions\xe2\x80\x9d was described\nby the Africa court as follows:\nTraditional religions consider and attempt to come to terms with what could\nbest be described as \xe2\x80\x9cultimate\xe2\x80\x9d questions\xe2\x80\x94questions having to do with,\namong other things, life and death, right and wrong, and good and evil. Not\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c390 Religion in the Law\nevery tenet of an established theology need focus upon such elemental matters,\nof course; still, it is difficult to conceive of a religion that does not address these\nlarger concerns. For, above all else, religions are characterized by their adherence to and promotion of certain underlying theories of man\xe2\x80\x99s nature or his\nplace in the Universe. Africa, 662 F.2d at 1033.\nRegarding the second criterion, that is, comprehensiveness, the Africa court expounded as\nfollows:\n[A] religion must consist of something more than a number of isolated, unconnected ideas. A religion is not generally confined to one question or one\nmoral teaching; it has a broader scope. It lays claim to an ultimate and comprehensive truth. Id. at 1035.\nFinally, in discussing the aspect of formal structure as a defining characteristic of \xe2\x80\x9creligion,\xe2\x80\x9d\nthe Africa court pointed to the presence of\nany formal, external, or surface signs that may be analogized to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observance of holidays and other similar manifestations associated with the traditional religions.Id. at 1035\xe2\x80\x931036.\nThe court noted, however, that \xe2\x80\x9c[n]either the trappings of robes, nor temples of stone, nor\na fixed liturgy, nor an extensive literature or history is required to meet the test of beliefs cognizable under the Constitution as religious.\xe2\x80\x9d Id. at 1036 n. 21.\nThe defendants argue that Satanism, as set forth in The Satanic Bible, meets none of the\nthree criteria. Specifically, they assert that Satanism does not address the meaning of life and\ndeath, the relationship between human beings and nature, or the boundaries of good and evil.\nRather than setting any fixed code of personal morality, defendants argue, Satanism\xe2\x80\x99s only unifying principle is a form of \xe2\x80\x9cdo as you please.\xe2\x80\x9d They assert that Satanism lacks a comprehensive,\nunified way of dealing with the universe or ordering one\xe2\x80\x99s life, presenting instead only a single\ntheme of self-gratification. Finally, they argue that Satanism lacks most of the structural characteristics of belief systems accorded religious status for First Amendment purposes\nThe Court has perused The Satanic Bible and does not reach precisely the same conclusion\nas the defendants. Although Satanism addresses fundamental questions in an unconventional\nmanner, it does address them. For example, Satanism does not deny the existence of God. It\nstates:\nIt is a popular misconception that the Satanist does not believe in God. The\nconcept of \xe2\x80\x9cGod,\xe2\x80\x9d as interpreted by man, has been so varied throughout the\nages, that the Satanist simply accepts the definition which suits him best.... To\nthe Satanist \xe2\x80\x9cGod\xe2\x80\x9d\xe2\x80\x94by whatever name he is called, or by no name at all\xe2\x80\x94is\nseen as the balancing factor in nature, and not as being concerned with suffering. This powerful force which permeates and balances the universe is far too\nimpersonal to care about the happiness or misery of flesh-and-blood creatures\non this ball of dirt upon which we live.The Satanic Bible, p. 40.\nWith respect to right and wrong, good and evil, and relationships between people, it states:\n... It is unnatural not to have the desire to gain things for yourself. Satanism\nrepresents a form of controlled selfishness. This does not mean that you never\ndo anything for anyone else. If you do something to make someone for whom\nyou care happy, his happiness will give you a sense of gratification.\n\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 391\nSatanism advocates practicing a modified form of the Golden Rule. Our interpretation of this rule is: \xe2\x80\x9cDo unto others as they do unto you[.]\xe2\x80\x9d Id. at 50\xe2\x80\x93\n51.\nOn the topic of love and hate, The Satanic Bible instructs:\nYou cannot love everyone; it is ridiculous to think you can. If you love everyone and everything you lose your natural powers of selection and wind up\nbeing a pretty poor judge of character and quality. If anything is used too freely\nit loses its true meaning. Therefore, the Satanist believes you should love\nstrongly and completely those who deserve your love, but never turn the other\ncheek to your enemy! Id. at 64.\nAlthough this is contrary to the teaching of the \xe2\x80\x9cGolden Rule\xe2\x80\x9d of many traditional religions,\nit is clearly a teaching about how one should order one\xe2\x80\x99s life in relationship to others.\nSatanism claims to have \xe2\x80\x9cdogmas,\xe2\x80\x9d of a sort. In discussing the \xe2\x80\x9cnew state of [intellectual]\nawareness\xe2\x80\x9d brought about by modern psychiatry, The Satanic Bible notes:\n... The one need psychiatry cannot fill is man\xe2\x80\x99s inherent need for emotionalizing through dogma. Man needs ceremony and ritual, fantasy and enchantment. Psychiatry, despite all the good it has done, has robbed man of wonder\nand fantasy which religion, in the past, has provided.\nSatanism, realizing the current needs of man, fills the large grey void between\nreligion and psychiatry. The Satanic philosophy combines the fundamentals\nof psychology and good, honest emotionalizing, or dogma. It provides man\nwith his much needed fantasy. There is nothing wrong with dogma, providing\nit is not based on ideas and actions which go completely against human nature. Id. at 53.\nContrary to defendants\xe2\x80\x99 argument that Satanism does not even refer to itself as a \xe2\x80\x9creligion,\xe2\x80\x9d\nbut rather a \xe2\x80\x9cfantasy,\xe2\x80\x9d The Satanic Bible states:\n... The basics of Satanism have always existed. The only thing that is new is\nthe formal organization of a religion based on the universal traits of man. For\ncenturies, magnificent structures of stone, concrete, mortar, and steel have\nbeen devoted to man\xe2\x80\x99s abstinence. It is high time that human beings stopped\nfighting themselves, and devoted their time to building temples designed for\nman\xe2\x80\x99s indulgences.\n... So, why not have a religion based on indulgence? Certainly it is consistent\nwith the nature of the beast. We are no longer supplicating weaklings trembling before an unmerciful \xe2\x80\x9cGod\xe2\x80\x9d who cares not whether we live or die. We\nare self-respecting, prideful people\xe2\x80\x94we are Satanists! Id. at 53\xe2\x80\x9354\nThe teaching of Satanism on the topic of life and death is that \xe2\x80\x9clife after death [is attained]\nthrough fulfillment of the ego.\xe2\x80\x9d\nDeath, in most religions, is touted as a great spiritual awakening\xe2\x80\x94one which\nis prepared for throughout life. This concept is very appealing to one who has\nnot had a satisfactory life; but to those who have experienced all the joys life\nhas to offer, there is a great dread attached to dying. This is as it should be. It\nis this lust for life which will allow the vital person to live on after the inevitable death of his fleshy shell. Id. at 91\xe2\x80\x9392.\nSatanism celebrates three major holidays: one\xe2\x80\x99s own birthday, Walpurgisnacht (May 1st),\nand Halloween. Solstices and equinoxes are also holidays. Id. at 96\xe2\x80\x9398.\nSatanism does have rituals. Most non-Satanists commonly think of the \xe2\x80\x9cblack mass,\xe2\x80\x9d described as follows in The Satanic Bible:\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c392 Religion in the Law\nAny ceremony considered a black mass must effectively shock and outrage, as\nthis seems to be the measure of its success. In the Middle Ages, blaspheming\nthe holy church was shocking. Now, however, the Church does not present\nthe awesome image it did during the inquisition. The traditional black mass is\nno longer the outrageous spectacle to the dilettante or renegade priest that it\nonce was. If the Satanist wishes to create a ritual to blaspheme an accepted\ninstitution, for the purpose of psychodrama, he is careful to choose one that\nis not in vogue to parody. Thus, he is truly stepping on a sacred cow. Id. at\n101.\nThe Satanic Bible actually defines only three types of rituals: a sex ritual, a compassion\nritual, and a destroying ritual. These rituals are described as follows:\nA sex ritual is what is commonly known as a love charm or spell. The purpose\nin performing such a ritual is to create desire on the part of the person whom\nyou desire, or to summon a sex partner to fulfill your desires.\nThe compassion, or sentiment, ritual is performed for the purpose of helping\nothers, or helping oneself. Health, domestic happiness, business activities, material success, and scholastic prowess are but a few of the situations covered\nin a compassion ritual.\nThe third motivating force is that of destruction. This is a ceremony used for\nanger, annoyance, disdain, contempt, or just plain hate. It is known as a hex,\ncurse, or destroying agent. Id. at 114\xe2\x80\x93115.\nThe Satanic Bible contains a section which sets forth notes to observe before a Satanic ritual,\nthe thirteen steps for performing a Satanic ritual, and devices used in a Satanic ritual. Id. at 129\xe2\x80\x93\n140. It also contains several sections on \xe2\x80\x9cinvocations\xe2\x80\x9d for various rituals, Id. at 144\xe2\x80\x93152, and a\ntranslation of the magical language used in Satanic rituals, Id. at 155\xe2\x80\x93272.\nAs already noted, deciding what beliefs rise to the level of a \xe2\x80\x9creligion\xe2\x80\x9d for First Amendment\npurposes is a very delicate undertaking, especially where the \xe2\x80\x9creligion\xe2\x80\x9d sought to be protected\nis not one of the mainstream or traditional ones. Here, having cursorily reviewed The Satanic\nBible which plaintiff asserts sets forth the tenets of his \xe2\x80\x9creligion,\xe2\x80\x9d the Court need only comment\nthat Satanism appears to have at least some of the indicia of a religion. The Court need not,\nhowever, definitively decide the question of whether Satanism is a religion. The Court will presume for the sake of this motion only that Satanism is a religion the practice of which is protected\nby the First Amendment. Such presumption will permit and require that the Court proceed to\nthe final step of the analysis, namely, whether there is any legitimate penological reason for the\ndefendants\xe2\x80\x99 refusal to allow plaintiff to receive and keep in his possession a copy of The Satanic\nBible.\nThe ODRC has no specific policy against the belief by inmates in the \xe2\x80\x9creligion\xe2\x80\x9d of Satanism.\nHowever, it does not allow inmates to pursue religious practices that threaten institutional security. Therefore, it has at times restricted or prohibited the possession of \xe2\x80\x9creligious\xe2\x80\x9d literature\nwhich it finds to be inflammatory. In this case, although the ODRC\xe2\x80\x99s Publication Screening\nCommittee had recommended that The Satanic Bible be permitted, ODRC Director Reginald\nWilkinson overruled the recommendation, stating that \xe2\x80\x9cpp. 87, 88 on human sacrifice is [sic]\ninflammatory.\xe2\x80\x9d Although Director Wilkinson\xe2\x80\x99s notation is specific as to particular pages that\nare deemed inflammatory, leading one to believe that a suitable accommodation might have\nbeen to merely cut out those two pages, the official ruling is not that specific, stating that the\nentire publication was inflammatory.\nThe Court ordinarily must defer to the institution\xe2\x80\x99s decisions regarding the appropriateness\nof policies and practices. Here, no deference is necessary because the Court is in complete agreement that large portions of The Satanic Bible have great potential for fomenting trouble of all\n\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 393\nkinds in a prison setting, leading to difficulty in maintaining security and order and in delivering\nrehabilitative services in the prisons. In addition, much of the publication advocates preying on\nthe weak in any way possible for one\xe2\x80\x99s own gratification\xe2\x80\x94clearly an extremely dangerous\n\xe2\x80\x9cteaching\xe2\x80\x9d in any setting, but especially in a prison where the weak have fewer avoidance strategies at their disposal. A few examples of isolated quotations will suffice to illustrate the point.\nThe Satanic Bible states:\nHate your enemies with a whole heart, and if a man smite you on one cheek,\nSMASH him on the other!; smite him hip and thigh, for self-preservation is\nthe highest law! (p. 33).\nGive blow for blow, scorn for scorn, doom for doom\xe2\x80\x94with compound interest liberally added thereunto! Eye for eye, tooth for tooth, aye four-fold, a\nhundred-fold! Make yourself a Terror to your adversary, and when he goeth\nhis way, he will possess much additional wisdom to ruminate over. Thus shall\nyou make yourself respected in all the walks of life, and your spirit\xe2\x80\x94your\nimmortal spirit\xe2\x80\x94shall live, not in an intangible paradise, but in the brains and\nsinews of those whose respect you have gained. (p. 33).\nThe seven deadly sins of the Christian Church are: greed, pride, envy, anger,\ngluttony, lust, and sloth. Satanism advocates indulging in each of these \xe2\x80\x9csins\xe2\x80\x9d\nas they all lead to physical, mental, or emotional gratification. (p. 46). \xe2\x80\xa6\nThe only time a Satanist would perform a human sacrifice would be if it were\nto serve a two-fold purpose; that being to release the magician\xe2\x80\x99s wrath in the\nthrowing of a curse, and more important, to dispose of a totally obnoxious\nand deserving individual.... The question arises, \xe2\x80\x9cWho, then, would be considered a fit and proper human sacrifice, and how is one qualified to pass\njudgment on such a person?\xe2\x80\x9d The answer is brutally simple. Anyone who has\nunjustly wronged you\xe2\x80\x94one who has \xe2\x80\x9cgone out of his way\xe2\x80\x9d to hurt you\xe2\x80\x94to\ndeliberately cause trouble and hardship for you or those dear to you. In short,\na person asking to be cursed by their very actions. (pp. 88\xe2\x80\x9389). \xe2\x80\xa6\nIntense, calculated hatred and disdain should accompany this step of the [destruction] ceremony, and no attempt should be made to stop this step until the\nexpended energy results in a state of relative exhaustion on the part of the\nmagician. (p. 134).\nThese representative quotes illustrate the potential for disruption in a prison setting if an\ninmate who was a practicing Satanist took these \xe2\x80\x9cteachings\xe2\x80\x9d to heart. There is nothing in The\nSatanic Bible to suggest that these directives are not to be taken literally and it requires little\nimagination to project the probable result of espousing the philosophy promulgated in this publication.\nPlaintiff attempts to argue that as long as an inmate is not a Satanist, he is allowed to have\nSatanic publications. He presents the affidavit of Robert Minniefield, another inmate at Lor.C.I.,\nwho attests that he has been given permission to have two Satanic publications, The Devil\xe2\x80\x99s\nNotebook and The Satanic Witch. Minniefield claims to be a follower of WICCA, which he\ncharacterizes as \xe2\x80\x9csomewhat similar\xe2\x80\x9d to Satanism. Even if these assertions are true, they are not\nrelevant to plaintiff\xe2\x80\x99s case, since his claim is that he is deprived of his right to possess The Satanic\nBible. Even a liberal reading of plaintiff\xe2\x80\x99s complaint would not permit a conclusion that he is\nclaiming generally that he is prohibited from having any Satanic publication or that he ever\nsought and was denied permission to have these other two publications.\nThis case is about a very narrow issue: whether there are legitimate penological reasons for\nprohibiting the plaintiff from possessing The Satanic Bible. The Court concludes that there are.\nThe Court draws no conclusion regarding whether the prison ever can or should completely\n\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c394 Religion in the Law\nprohibit the practice of Satanism, since that has not been made an issue in this case. Here, all\nthat is concluded is that prohibiting the possession of The Satanic Bible does not substantially\nburden the plaintiff\xe2\x80\x99s ability to practice his \xe2\x80\x9creligion\xe2\x80\x9d and is validated by legitimate penological\nconcerns for safety and security.\nFor the reasons discussed above, presuming for purposes of this motion that Satanism is a\nreligious belief protected by the First Amendment and that this plaintiff sincerely holds to this\nbelief, the Court nonetheless concludes that it is not a violation of the First Amendment to prohibit the plaintiff from possessing a copy of The Satanic Bible because there are legitimate penological interests which validate this prison policy. Accordingly, defendants\xe2\x80\x99 motion for summary\njudgment on plaintiff\xe2\x80\x99s First Amendment claim is granted.\nPlaintiff\xe2\x80\x99s Fourteenth Amendment claim is quite simple: he asserts that his right to equal\nprotection has been violated because he has been denied possession of The Satanic Bible while\nproponents of other religions are allowed to possess their sacred texts.\nIn view of the lengthy discussion above, the Court concludes that the same basic reasoning\napplies. \xe2\x80\x9cThere is nothing in the Constitution which requires prison officials to treat all inmate\ngroups alike where differentiation is necessary to avoid an imminent threat of institutional disruption or violence.\xe2\x80\x9d Jones v. North Carolina Prisoners\xe2\x80\x99 Labor Union, Inc., 433 U.S. 119, 136\n(1977). Furthermore, \xe2\x80\x9cprison officials, when making these types of decisions, need not demonstrate an actual danger in order to support the reasonableness of their determinations. It is\nenough to show that a potential danger exists without the restrictions of a challenged prison\nregulation.\xe2\x80\x9d Brown v. Johnson, 743 F.2d 408, 413 (6th Cir.1984) (emphasis in original).\nAccordingly, because the restriction at issue here is reasonably related to legitimate penological concerns, it is not a violation of plaintiff\xe2\x80\x99s Fourteenth Amendment right of equal protection. Defendants\xe2\x80\x99 motion for summary judgment is granted as to plaintiff\xe2\x80\x99s Fourteenth Amendment claim.\nFor the reasons discussed above, defendants\xe2\x80\x99 motion for summary judgment is granted\xe2\x80\xa6.\n\nCarpenter v. Wilkinson, 946 F.Supp. 522 (N.D. Ohio 1996)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 395\n\n2012 WL 1038665\nUnited States District Court, E.D. Kentucky,\nSouthern Division, at Pikeville.\n\nRuley v. Stovall\nMarch 27, 2012\nKAREN K. CALDWELL, District Judge.\nGreg Ruley, proceeding without counsel, filed a civil rights action under 42 U.S.C. \xc2\xa7 1983.\nDefendant Randall Stovall has filed a motion for summary judgment to which [Ruley] has responded. This matter is therefore ripe for determination.\nIn his complaint, Ruley alleges that on July 29, 2010, while incarcerated at the Otter Creek\nCorrectional Complex (\xe2\x80\x9cOCCC\xe2\x80\x9d), warden Stovall confiscated his Satanic Bible and another\nreligious book in his possession. In response to his grievances, he was advised that Satanism is\nnot considered a \xe2\x80\x9creligion\xe2\x80\x9d under regulations established by the Kentucky Department of Corrections (\xe2\x80\x9cKDOC\xe2\x80\x9d), and that he would not be allowed to possess these materials. Ruley contends that this has interfered with his ability to practice his religion in violation of the First\nAmendment, the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. \xc2\xa7 2000cc\xe2\x80\x931\n(\xe2\x80\x9cRLUIPA\xe2\x80\x9d)\xe2\x80\xa6\nIn his motion for summary judgment, Stovall notes that following the Supreme Court\xe2\x80\x99s decision in Cutter v. Wilkinson, 544 U.S. 709 (2005), KDOC reviewed its practices and procedures\nand through regulation created its Religion Reference Manual which sets forth an extensive list\nof permissible religious practices. KDOC implemented the Manual through Kentucky Corrections Policies and Procedures (\xe2\x80\x9cCPP\xe2\x80\x9d) 23.1. Accordingly, Darrell Neace of KDOC, advised\nprison officers at OCCC that Satanism materials were not permitted under the Manual, and\nthat they should remove any materials about Satanism from Ruley\xe2\x80\x99s possession.\nStovall argues that Kentucky law and KDOC regulations place certain restrictions upon\nreligious activities in prison, and that his actions were taken not only in conformity with those\nrules, but also at the specific direction of KDOC Contract Monitor Darrell Neace. He further\ncontends that the confiscation of Ruley\xe2\x80\x99s Satanic Bible did not violate [Ruley\xe2\x80\x99s] constitutional\nright to religious expression under the First Amendment, nor does it violate RLUIPA\xe2\x80\xa6.\nThe Court does not draw upon a clean slate when reviewing the application of these principles to a prisoner\xe2\x80\x99s claim that he is entitled to possess the Satanic Bible. In Carpenter v. Wilkinson, 946 F.Supp. 544 (N.D.Ohio 1996), the court analyzed the Turner factors at length and\nconcluded that a prison regulation prohibiting possession of the Satanic Bible was constitutionally permissible. The court assumed both that the prisoner\xe2\x80\x99s beliefs were legitimately held, and\nthat the tenets of Satanism were religious in nature. Id. at 525, 527\xe2\x80\x9328. However, the court\nnoted that \xe2\x80\x9clarge portions of the Satanic Bible ... advocates preying on the weak in any way\npossible for one\xe2\x80\x99s own gratification-clearly an extremely dangerous \xe2\x80\x98teaching\xe2\x80\x99 where the weak\nhave fewer avoidance strategies at their disposal.\xe2\x80\x9d Carpenter, 946 F.Supp. at 529. Because this\ncould \xe2\x80\x9cfoment[ ] trouble of all kinds in a prison setting, leading to difficulty in maintaining\nsecurity and order and in delivering rehabilitative services in the prisons,\xe2\x80\x9d the Court found that\nthere are legitimate penalogical interests in preventing a prisoner from possessing such a book.\nId. at 530.\nIn the years since it was decided, numerous courts have drawn upon Carpenter\xe2\x80\x99s analysis\nand reached the same conclusion. Cf. Burton v. Frank, 2004 WL 1176171, at *4\nRuley v. Stovall, 2012 WL 1038665 (E.D. Ky. 2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c396 Religion in the Law\n(W.D.Wis.2004) (Satanic Bible \xe2\x80\x9cadvocates the murder of \xe2\x80\x98totally obnoxious and deserving individuals,\xe2\x80\x99 exaction of vengeance through violence, mutilation and murder of anyone a Satanist\nbelieves to be his enemy and annihilation of the \xe2\x80\x98festering fragments of the body of he who\nwould detain me [,]\xe2\x80\x99 \xe2\x80\x9c and \xe2\x80\x9cchallenges its readers to rebel against the law of man and engage in\nsymbolic acts of violence against one\xe2\x80\x99s enemies\xe2\x80\x9d); Winford v. Frank, 2008 WL 359728, at *3\n(E.D.Wis.2008) (Satanic Bible \xe2\x80\x9cpreaches self-indulgence, self-gratification and vengeance ...\n[and] also advocates that the weak are here to serve the strong, that believers should rebel against\nthe laws of man and hate authority, and that bodily impulses are to be pursued regardless of the\nconsequences\xe2\x80\x9d). Johnson v. Williams, 2011 WL 6778711 (D.Or.2011) (prohibition on Satanic\nBible is rationally related to prison objectives of safety and security, does not bar other methods\nof religious expression, and is the only plausible method to obtain its objectives). The Court\nagrees with these conclusions and finds them equally applicable to the facts presented here. Doty\nv. Lewis, 995 F.Supp. 1081, 1086\xe2\x80\x9387 (D.Ariz.1998) (because \xe2\x80\x9ca prison creates a haven for the\nstrong to harm, imperil and manipulate the lives of the weak,\xe2\x80\x9d the Satanic Bible, which \xe2\x80\x9cadvocates hurting someone who, in the opinion of the Satanist, deserves to be harmed and destroyed,\xe2\x80\x9d creates a danger to the safety of the prison; prisoner failed to demonstrate that ban on\nthe Satanic Bible was not reasonably related to legitimate penalogical interests). Accordingly,\nRuley\xe2\x80\x99s claim under the First Amendment fails as a matter of law, and summary judgment will\nbe granted with respect to it.\nUnder RLUIPA, Congress provided that:\nNo government shall impose a substantial burden on the religious exercise of\na person residing in or confined to an institution ... even if the burden results\nfrom a rule of general applicability, unless the government demonstrates that\nimposition of the burden on that person (1) is in furtherance of a compelling governmental interest; and\n(2) is the least restrictive means of furthering that compelling governmental\ninterest.\n42 U.S.C. \xc2\xa7 2000cc\xe2\x80\x931(a). Through the enactment of RLUIPA, Congress sought to legislatively\noverrule the Supreme Court\xe2\x80\x99s decision in Employment Div., Dept. of Human Resources of Ore.\nv. Smith, 494 U.S. 872 (1990), providing greater statutory protection for religious expression in\nthe prison context than that constitutionally required.\nUnder the statute, the prisoner bears the initial burden of demonstrating that a prison rule\nsubstantially burdens the exercise of his religious beliefs. If it does, the prison may establish the\nrule\xe2\x80\x99s legitimacy by demonstrating that it is designed to promote a compelling government interest in the least restrictive means reasonably available. Cf. Warsoldier v. Woodford, 418 F.3d\n989, 994\xe2\x80\x9395 (9th Cir.2005). Avoiding an in-depth examination of the particulars of Satanism\nand its tenets, the Court assumes without deciding that not having a copy of the Satanic Bible\npresents a practical and substantial burden on an adherent\xe2\x80\x99s actual practice of those tenets of his\nbelief, although Ruley has not explained how this is so.\nThe Court concludes, however, that Stovall\xe2\x80\x99s confiscation of the Satanic Bible in conformity\nwith KDOC\xe2\x80\x99s rules and at the express direction of Neace satisfies RLUIPA\xe2\x80\x99s requirements that\nthis action was both in furtherance of a compelling government interest and was the least restrictive means of doing so. As the Supreme Court has noted, \xe2\x80\x9c[w]e do not read RLUIPA to\nelevate accommodation of religious observances over an institution\xe2\x80\x99s need to maintain order and\nsafety.\xe2\x80\x9d Cutter, 544 U.S. at 722. There is no question that a prison\xe2\x80\x99s interest in maintaining\ninstitutional safety and security constitutes a compelling governmental interest. Hoevenaar v.\nLazaroff, 422 F.3d 366, 369\xe2\x80\x9370 (6th Cir.2005); Gooden v. Crain, 353 F. App\xe2\x80\x99x 885 (5th\nCir.2009); Koger v. Bryan, 523 F.3d 789, (7th Cir.2008). And because the teachings of the Satanic Bible actively promote acting on impulse, assertive disrespect for authority, and immediate\n\nRuley v. Stovall, 2012 WL 1038665 (E.D. Ky. 2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 397\nand aggressive violence towards any person opposing the desires of its adherents or deemed\nunworthy, Carpenter, 946 F.Supp. at 527\xe2\x80\x9329, the Court cannot conceive nor has Ruley suggested any plausible alternative means to promote the institution\xe2\x80\x99s interest in safety and security\nshort of prohibiting the possession of such inciteful materials. Id. at 530; Johnson, 2011 WL\n6778711, at *11 (\xe2\x80\x9cpreventing access to the book is the least restrictive means to meet that interest because it is the material contained in the book itself that creates the risks ...\xe2\x80\x9d); Hendrickson v. Caruso, 2008 WL 623788, at *6\xe2\x80\x937 (W.D.Mich.2008) (exclusion of Satanic Bible was the\nleast restrictive means to further prison\xe2\x80\x99s interest in safety, security, and rehabilitation)\xe2\x80\xa6.\nFinally, in his complaint Ruley also asserted that Stovall's actions violated various sections\nof the Kentucky Constitution. However, because the Court has determined that his federal\nclaims must be dismissed, Ruley's pendent state law claims will be dismissed without prejudice.\n28 U.S.C. \xc2\xa7 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715 (1966).\nAccordingly, it is ORDERED that \xe2\x80\xa6 defendant\xe2\x80\x99s motion to dismiss, or in the alternative for\nsummary judgment, is GRANTED\xe2\x80\xa6\n\nRuley v. Stovall, 2012 WL 1038665 (E.D. Ky. 2012)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c398 Religion in the Law\n\n123 F.Supp.3d 924\nUnited States District Court, E.D. Kentucky,\nNorthern Division, at Ashland\n\nMiller v. Davis\nAugust 12, 2015\nDAVID L. BUNNING, District Judge.\nThis matter is before the Court on Plaintiffs\xe2\x80\x99 Motion for Preliminary Injunction (Doc. # 2).\nPlaintiffs are two same-sex and two opposite-sex couples seeking to enjoin Rowan County Clerk\nKim Davis from enforcing her own marriage licensing policy. On June 26, 2015, just hours after\nthe U.S. Supreme Court held that states are constitutionally required to recognize same-sex marriage, Davis announced that the Rowan County Clerk\xe2\x80\x99s Office would no longer issue marriage\nlicenses to any couples\xe2\x80\xa6. Davis, an Apostolic Christian with a sincere religious objection to\nsame-sex marriage, specifically sought to avoid issuing licenses to same-sex couples without discriminating against them. Plaintiffs now allege that this \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy substantially interferes with their right to marry because it effectively forecloses them from obtaining a\nlicense in their home county. Davis insists that her policy poses only an incidental burden on\nPlaintiffs\xe2\x80\x99 right to marry, which is justified by the need to protect her own free exercise rights\xe2\x80\xa6.\nAt its core, this civil action presents a conflict between two individual liberties held sacrosanct in American jurisprudence. One is the fundamental right to marry implicitly recognized in\nthe Due Process Clause of the Fourteenth Amendment. The other is the right to free exercise of\nreligion explicitly guaranteed by the First Amendment. Each party seeks to exercise one of these\nrights, but in doing so, they threaten to infringe upon the opposing party\xe2\x80\x99s rights. The tension\nbetween these constitutional concerns can be resolved by answering one simple question: Does\nthe Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has\na religious objection to same-sex marriage? For reasons stated herein, the Court answers this\nquestion in the negative.\nPlaintiffs April Miller and Karen Roberts have been in a committed same-sex relationship\nfor eleven years. After hearing about the Obergefell decision, they went to the Rowan County\nClerk\xe2\x80\x99s Office and requested a marriage license from one of the deputy clerks. The clerk immediately excused herself and went to speak with Kim Davis. When she returned, she informed the\ncouple that the Rowan County Clerk\xe2\x80\x99s Office was not issuing any marriage licenses. Plaintiffs\nKevin Holloway and Jody Fernandez, a committed opposite-sex couple, had a similar experience when they tried to obtain a marriage license from the Rowan County Clerk\xe2\x80\x99s Office\xe2\x80\xa6.\nPlaintiffs Barry Spartman and Aaron Skaggs also planned to solemnize their long-term relationship post-Obergefell. Before going to the Rowan County Clerk\xe2\x80\x99s Office, they phoned\nahead and asked for information about the marriage licensing process. They wanted to make\nsure that they brought all necessary documentation with them. One of the deputy clerks told the\ncouple \xe2\x80\x9cnot to bother coming down\xe2\x80\x9d because they would not be issued a license.\nSeven neighboring counties (Bath, Fleming, Lewis, Carter, Elliott, Morgan and Menifee) are\ncurrently issuing marriage licenses. All are less than an hour away from the Rowan County seat\nof Morehead. While Plaintiffs have the means to travel to any one of these counties, they have\nadmittedly chosen not to do so. They strongly prefer to have their licenses issued in Rowan\nCounty because they have significant ties to that community.). They live, work, socialize, vote,\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 399\npay taxes and conduct other business in and around Morehead. Quite simply, Rowan County\nis their home.\nUnder Kentucky law, county clerks are \xe2\x80\xa6 responsible for issuing marriage licenses. See\nKy.Rev.Stat. Ann. \xc2\xa7 402.080. The process is quite simple. The couple must first go to the county\nclerk\xe2\x80\x99s office and provide their biographical information to one of the clerks. See Ky.Rev.Stat.\nAnn. \xc2\xa7 402.100. The clerk then enters the information into a computer-generated form, prints\nit and signs it. [Note - The Kentucky General Assembly modified this law in 2016, in direct\nresponse to this case. The law no longer requires Clerk signatures.] This form signifies that the\ncouple is licensed, or legally qualified, to marry. At the appropriate time, the couple presents this\nform to their officiant, who must certify that he or she performed a valid marriage ceremony.\nThe couple then has thirty days to return the form to the clerk\xe2\x80\x99s office for recording. See\nKy.Rev.Stat. Ann. \xc2\xa7\xc2\xa7 402.220, 402.230. The State will not recognize marriages entered into\nwithout a valid license therefor. See Ky.Rev.Stat. Ann. \xc2\xa7 402.080\xe2\x80\xa6.\nDavis does not want to issue marriage licenses to same-sex couples because they will bear\n[an] authorization statement [including her signature]. She sees it as an endorsement of samesex marriage, which runs contrary to her Apostolic Christian beliefs. Four of Davis\xe2\x80\x99 deputy\nclerks share her religious objection to same-sex marriage, and another is undecided on the subject. The final deputy clerk is willing to issue the licenses, but Davis will not allow it because her\nname and title still appear twice on licenses that she does not personally sign.\nIn the wake of Obergefell, Governor [Steve] Beshear issued the following directive to all\ncounty clerks:\nEffective today, Kentucky will recognize as valid all same sex marriages performed in other states and in Kentucky. In accordance with my instruction, all\nexecutive branch agencies are already working to make any operational\nchanges that will be necessary to implement the Supreme Court decision. Now\nthat same-sex couples are entitled to the issuance of a marriage license, the\nDepartment of Libraries and Archives will be sending a gender-neutral form\nto you today, along with instructions for its use.\nHe has since addressed some of the religious concerns expressed by some county clerks:\nYou can continue to have your own personal beliefs but, you\xe2\x80\x99re also taking an\noath to fulfill the duties prescribed by law, and if you are at that point to where\nyour personal convictions tell you that you simply cannot fulfill your duties\nthat you were elected to do, th[e]n obviously an honorable course to take is\nto resign and let someone else step in who feels that they can fulfill those duties.\nDavis is well aware of these directives. Nevertheless, she plans to implement her \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy for the remaining three and a half years of her term as Rowan County\nClerk\xe2\x80\xa6.\nPlaintiffs are pursuing this civil rights action against Defendants Rowan County and Kim\nDavis, in her individual and official capacities, under 42 U.S.C. \xc2\xa7 1983\xe2\x80\xa6. This statute \xe2\x80\x9cis not\nitself a source of substantive rights, but merely provides a method for vindicating federal rights\nelsewhere conferred.\xe2\x80\x9d Albright v. Oliver, 510 U.S. 266, 271 (1994).\nAt this stage of the litigation, Plaintiffs seek to vindicate their constitutional rights by obtaining injunctive relief against Defendant Kim Davis, in her official capacity as Rowan County\nClerk\xe2\x80\xa6. Although the Constitution makes no mention of the right to marry, the U.S. Supreme\nCourt has identified it as a fundamental interest subject to Fourteenth Amendment protection.\nLoving v. Virginia, 388 U.S. 1, 12 (1967)\xe2\x80\xa6. This right applies with equal force to different-sex\nand same-sex couples. Obergefell v. Hodges, 576 U.S. 644 (2015) (\xe2\x80\x9c[T]he right to marry is a\nfundamental right inherent in the liberty of the person, and under the Due Process and Equal\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c400 Religion in the Law\nProtection Clauses of the Fourteenth Amendment same-sex couples may not be deprived of that\nright and that liberty.\xe2\x80\x9d).\nIf a state law or policy \xe2\x80\x9csignificantly interferes with the exercise of a fundamental right[, it]\ncannot be upheld unless it is supported by sufficiently important state interests and is closely\ntailored to effectuate only those interests.\xe2\x80\x9d Zablocki v. Redhail, 434 U.S. 374, 388 (1978). A\nstate substantially interferes with the right to marry when some members of the affected class\n\xe2\x80\x9care absolutely prevented from getting married\xe2\x80\x9d and \xe2\x80\x9c[m]any others, able in theory to satisfy\nthe statute\xe2\x80\x99s requirements[,] will be sufficiently burdened by having to do so that they will in\neffect be coerced into forgoing their right to marry.\xe2\x80\x9d Id. at 387\xe2\x80\xa6\nHowever, \xe2\x80\x9cnot every state action, \xe2\x80\x98which relates in any way to the incidents of or the prerequisites for marriage must be subjected to rigorous scrutiny.\xe2\x80\x99 \xe2\x80\x9d Wright v. MetroHealth Med.\nCtr., 58 F.3d 1130, 1134 (6th Cir.1995). States may impose \xe2\x80\x9creasonable regulations that do not\nsignificantly interfere with decisions to enter into the marital relationship.\xe2\x80\x9d Id. at 1135. If the\nstatute does not create a \xe2\x80\x9cdirect legal obstacle in the path of persons desiring to get married\xe2\x80\x9d or\nsignificantly discourage marriage, then it will be upheld so long as it is rationally related to a\nlegitimate government interest. Id\xe2\x80\xa6.\nThe state action at issue in this case is Defendant Davis\xe2\x80\x99 refusal to issue any marriage licenses. Plaintiffs contend that Davis\xe2\x80\x99 \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy significantly interferes with\ntheir right to marry because they are unable to obtain a license in their home county. Davis insists\nthat her policy does not significantly discourage Plaintiffs from marrying because they have several other options for obtaining licenses: (1) they may go to one of the seven neighboring counties that are issuing marriage licenses; (2) they may obtain licenses from Rowan County Judge\nExecutive Walter Blevins; or (3) they may avail themselves of other alternatives being considered\npost-Obergefell.\nDavis is correct in stating that Plaintiffs can obtain marriage licenses from one of the surrounding counties; thus, they are not totally precluded from marrying in Kentucky. However,\nthis argument ignores the fact that Plaintiffs have strong ties to Rowan County. They are longtime residents who live, work, pay taxes, vote and conduct other business in Morehead. Under\nthese circumstances, it is understandable that Plaintiffs would prefer to obtain their marriage\nlicenses in their home county. And for other Rowan County residents, it may be more than a\npreference. The surrounding counties are only thirty minutes to an hour away, but there are\nindividuals in this rural region of the state who simply do not have the physical, financial or\npractical means to travel.\nThis argument also presupposes that Rowan County will be the only Kentucky county not\nissuing marriage licenses. While Davis may be the only clerk currently turning away eligible\ncouples, 57 of the state\xe2\x80\x99s 120 elected county clerks have asked Governor Beshear to call a special\nsession of the state legislature to address religious concerns related to same-sex marriage licenses.\nIf this Court were to hold that Davis\xe2\x80\x99 policy did not significantly interfere with the right to marry,\nwhat would stop the other 56 clerks from following Davis\xe2\x80\x99 approach? What might be viewed\nas an inconvenience for residents of one or two counties quickly becomes a substantial interference when applicable to approximately half of the state\xe2\x80\xa6.\nDavis finally suggests that Plaintiffs will have other avenues for obtaining marriage licenses\nin the future. For example, county clerks have urged Governor Beshear to create an online marriage licensing system, which would be managed by the State of Kentucky. While these options\nmay be available someday, they are not feasible alternatives at present. Thus, they have no impact on the Court\xe2\x80\x99s \xe2\x80\x9csubstantial interference\xe2\x80\x9d analysis.\nHaving considered Davis\xe2\x80\x99 arguments in depth, the Court finds that Plaintiffs have one feasible avenue for obtaining their marriage licenses\xe2\x80\x94they must go to another county. Davis makes\nmuch of the fact that Plaintiffs are able to travel, but she fails to address the one question that\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 401\nlingers in the Court\xe2\x80\x99s mind. Even if Plaintiffs are able to obtain licenses elsewhere, why should\nthey be required to? The state has long entrusted county clerks with the task of issuing marriage\nlicenses. It does not seem unreasonable for Plaintiffs, as Rowan County voters, to expect their\nelected official to perform her statutorily assigned duties. And yet, that is precisely what Davis\nis refusing to do. Much like the statutes at issue in Loving and Zablocki, Davis\xe2\x80\x99 \xe2\x80\x9cno marriage\nlicenses\xe2\x80\x9d policy significantly discourages many Rowan County residents from exercising their\nright to marry and effectively disqualifies others from doing so. The Court must subject this\npolicy apply heightened scrutiny.\nWhen pressed to articulate a compelling state interest served by her \xe2\x80\x9cno marriage licenses\xe2\x80\x9d\npolicy, Davis responded that it serves the State\xe2\x80\x99s interest in protecting her religious freedom. The\nState certainly has an obligation to \xe2\x80\x9cobserve the basic free exercise rights of its employees,\xe2\x80\x9d but\nthis is not the extent of its concerns. Marchi v. Bd. of Coop. Educ. Serv. of Albany, 173 F.3d\n469, 476 (2d. Cir.1999). In fact, the State has some priorities that run contrary to Davis\xe2\x80\x99 proffered state interest. Chief among these is its interest in preventing Establishment Clause violations. See U.S. Const. amend. I (declaring that \xe2\x80\x9cCongress shall make no law respecting the establishment of religion\xe2\x80\x9d). Davis has arguably committed such a violation by openly adopting a\npolicy that promotes her own religious convictions at the expenses of others. In such situations,\n\xe2\x80\x9cthe scope of the employees\xe2\x80\x99 rights must [ ] yield to the legitimate interest of governmental employer in avoiding litigation.\xe2\x80\x9d Marchi, 173 F.3d at 476.\nThe State also has a countervailing interest in upholding the rule of law. See generally Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972) (\xe2\x80\x9cThe rule of law, evenly applied to\nminorities as well as majorities, ... is the great mucilage that holds society together.\xe2\x80\x9d). Our form\nof government will not survive unless we, as a society, agree to respect the U.S. Supreme Court\xe2\x80\x99s\ndecisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court\xe2\x80\x99s\nopinion, as many Americans likely do, but that does not excuse her from complying with it. To\nhold otherwise would set a dangerous precedent.\nFor these reasons, the Court concludes that Davis\xe2\x80\x99 \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy likely infringes upon Plaintiffs\xe2\x80\x99 rights without serving a compelling state interest. Because Plaintiffs have\ndemonstrated a strong likelihood of success on the merits of their claim, this first factor weighs\nin favor of granting their request for relief.\nWhen a plaintiff demonstrates a likelihood of success on the merits of a constitutional deprivation claim, it follows that he or she will suffer irreparable injury absent injunctive relief. See\nOverstreet v. Lexington\xe2\x80\x93Fayette Urban Cnty. Gov\xe2\x80\x99t, 305 F.3d 566, 578 (6th Cir.2002)\xe2\x80\xa6.\nThe Court is not aware of any Sixth Circuit case law explicitly stating that a denial of the\nfundamental right to marry constitutes irreparable harm. However, the case law cited above\nsuggests that the denial of constitutional rights, enumerated or unenumerated, results in irreparable harm. It follows that Plaintiffs will suffer irreparable harm from Davis\xe2\x80\x99 \xe2\x80\x9cno marriage licenses\xe2\x80\x9d rule, absent injunctive relief. Therefore, this second factor also weighs in favor of granting Plaintiffs\xe2\x80\x99 Motion.\nThe First Amendment provides that \xe2\x80\x9cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\xe2\x80\x9d See Cantwell v. Connecticut, 310 U.S.\n296, 303 (1940) (applying the First Amendment to the states via the Fourteenth Amendment).\nThis Free Exercise Clause \xe2\x80\x9cembraces two concepts,-freedom to believe and freedom to act.\xe2\x80\x9d Id.\nat 304. \xe2\x80\x9cThe first is absolute but, in the nature of things, the second cannot be.\xe2\x80\x9d Therefore,\n\xe2\x80\x9c[c]onduct remains subject to regulation for the protection of society.\xe2\x80\x9d\n\xe2\x80\xa6While laws targeting religious conduct remain subject to strict scrutiny, \xe2\x80\x9c[a] law that is\nneutral and of general applicability need not be justified by a compelling governmental interest\neven if the law has the incidental effect of burdening a particular religious practice.\xe2\x80\x9d Babalu,\n508 U.S. at 532; see also Smith, 494 U.S. at 880 (stating further that an individual\xe2\x80\x99s religious\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c402 Religion in the Law\nbeliefs do not \xe2\x80\x9cexcuse him from compliance with an otherwise valid law prohibiting conduct\nthat the State is free to regulate\xe2\x80\x9d).\n\xe2\x80\xa6For purposes of this inquiry, the state action at issue is Governor Beshear\xe2\x80\x99s post-Obergefell directive, which explicitly instructs county clerks to issue marriage licenses to 18 same-sex\ncouples. Davis argues that the Beshear directive not only substantially burdens her free exercise\nrights by requiring her to disregard sincerely-held religious beliefs, it does not serve a compelling\nstate interest. She further insists that Governor Beshear could easily grant her a religious exemption without adversely affecting Kentucky\xe2\x80\x99s marriage licensing scheme, as there are readily available alternatives for obtaining licenses in and around Rowan County.\nThis argument proceeds on the assumption that Governor Beshear\xe2\x80\x99s policy is not neutral or\ngenerally applicable, and is therefore subject to strict scrutiny. However, the text itself supports\na contrary inference. Governor Beshear first describes the legal impact of the Court\xe2\x80\x99s decision in\nObergefell, then provides guidance for all county clerks in implementing this new law. His goal\nis simply to ensure that the activities of the Commonwealth are consistent with U.S. Supreme\nCourt jurisprudence.\nWhile facial neutrality is not dispositive, Davis has done little to convince the Court that\nGovernor Beshear\xe2\x80\x99s directive aims to suppress religious practice. She has only one piece of anecdotal evidence to demonstrate that Governor Beshear \xe2\x80\x9cis picking and choosing the consciencebased exemptions to marriage that he deems acceptable.\xe2\x80\x9d In 2014, Attorney General Jack Conway declined to appeal a federal district court decision striking down Kentucky\xe2\x80\x99s constitutional\nand statutory prohibitions on same-sex marriage. He openly stated that he could not, in good\nconscience, defend discrimination and waste public resources on a weak case. Instead of directing Attorney General Conway to pursue the appeal, regardless of his religious beliefs, Governor\nBeshear hired private attorneys for that purpose. He has so far refused to extend such an \xe2\x80\x9cexemption\xe2\x80\x9d to county clerks with religious objections to same-sex marriage.\nHowever, Davis fails to establish that her current situation is comparable to Attorney General Conway\xe2\x80\x99s position in 2014. Both are elected officials who have voiced strong opinions about\nsame-sex marriage, but the comparison ends there. Governor Beshear did not actually \xe2\x80\x9cexempt\xe2\x80\x9d\nAttorney General Conway from pursuing the same-sex marriage appeal. Attorney General Conway\xe2\x80\x99s decision stands as an exercise of prosecutorial discretion on an unsettled legal question.\nBy contrast, Davis is refusing to recognize the legal force of U.S. Supreme Court jurisprudence\nin performing her duties as Rowan County Clerk. Because the two are not similarly situated,\nthe Court simply cannot conclude that Governor Beshear treated them differently based upon\ntheir religious convictions. There being no other evidence in the record to suggest that the\nBeshear directive is anything but neutral and generally applicable, it will likely be upheld if it is\nrationally related to a legitimate government purpose.\nThe Beshear directive certainly serves the State\xe2\x80\x99s interest in upholding the rule of law. However, it also rationally relates to several narrower interests identified in Obergefell. By issuing\nlicenses to same-sex couples, the State allows them to enjoy \xe2\x80\x9cthe right to personal choice regarding marriage [that] is inherent in the concept of individual autonomy\xe2\x80\x9d and enter into \xe2\x80\x9ca twoperson union unlike any other in its importance to the committed individuals.\xe2\x80\x9d Obergefell, at\n2599\xe2\x80\x932600. It also allows same-sex couples to take advantage of the many societal benefits and\nfosters stability for their children. Therefore, the Court concludes that it likely does not infringe\nupon Davis\xe2\x80\x99 free exercise rights\xe2\x80\xa6.\nArticle VI, \xc2\xa7 3 of the U.S. Constitution provides [that] \xe2\x80\x9cno religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.\xe2\x80\x9d\nUnder this Clause, \xe2\x80\x9c[t]he fact [ ] that a person is not compelled to hold public office cannot\npossibly be an excuse for barring him from office by state-imposed criteria forbidden by the\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 403\nConstitution.\xe2\x80\x9d Torcaso v. Watkins, 367 U.S. 488 (1961) (striking down a state requirement that\nan individual declare his belief in God in order to become a notary public)\xe2\x80\xa6\nDavis contends that \xe2\x80\x9c[c]ompelling all individuals who have any connection with the issuance of marriage licenses ... to authorize, approve, and participate in that act against their sincerely held religious beliefs about marriage, without providing accommodation, amounts to an\nimproper religious test for holding (or maintaining) public office.\xe2\x80\x9d The Court must again point\nout that the act of issuing a marriage license to a same-sex couple merely signifies that the couple\nhas met the legal requirements to marry. It is not a sign of moral or religious approval. The State\nis not requiring Davis to express a particular religious belief as a condition of public employment, nor is it forcing her to surrender her free exercise rights in order to perform her duties.\nThus, it seems unlikely that Davis will be able to establish a violation of the Religious Test\nClause.\nAlthough Davis focuses on the Religious Test Clause, the Court must draw her attention to\nthe first half of Article VI, Clause \xc2\xa7 3. It requires all state officials to swear an oath to defend the\nU.S. Constitution. Davis swore such an oath when she took office on January 1, 2015. However,\nher actions have not been consistent with her words. Davis has refused to comply with binding\nlegal jurisprudence, and in doing so, she has likely violated the constitutional rights of her constituents. When such \xe2\x80\x9csincere, personal opposition becomes enacted law and public policy, the\nnecessary consequence is to put the imprimatur of the State itself on an exclusion that soon\ndemeans or stigmatizes those whose own liberty is then denied.\xe2\x80\x9d Obergefell, 135 S.Ct. at 2602.\nSuch policies simply cannot endure.\nKentucky Constitution \xc2\xa7 1 broadly declares that \xe2\x80\x9c[a]ll men are, by nature, free and equal,\nand have certain inherent and inalienable rights, among which may be reckoned ... [t]he right of\nworshiping Almighty God according to the dictates of their consciences.\xe2\x80\x9d Kentucky Constitution \xc2\xa7 5 gives content to this guarantee:\nNo preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the\nsalary or support of any minister of religion; nor shall any man be compelled\nto send his child to any school to which he may be conscientiously opposed;\nand the civil rights, privileges or capacities of no person shall be taken away,\nor in anywise diminished or enlarged, on account of his belief or disbelief of\nany religious tenet, dogma or teaching. No human authority shall, in any case\nwhatever, control or interfere with the rights of conscience.\nKentucky courts have held that Kentucky Constitution \xc2\xa7 5 does not grant more protection\nto religious practice than the First Amendment. Gingerich v. Commonwealth, 382 S.W.3d 835,\n839\xe2\x80\x9340 (Ky.2012). Such a finding would normally permit the Court to collapse its analysis of\nstate and federal constitutional provisions. However, the Kentucky Religious Freedom Act, patterned after the federal RFRA, subjects state free exercise challenges to heightened scrutiny:\nGovernment shall not substantially burden a person\xe2\x80\x99s freedom of religion. The\nright to act or refuse to act in a manner motivated by a sincerely held religious\nbelief may not be substantially burdened unless the government proves by\nclear and convincing evidence that it has a compelling governmental interest\nin infringing the specific act or refusal to act and has used the least restrictive\nmeans to further that interest. A \xe2\x80\x9cburden\xe2\x80\x9d shall include indirect burdens such\nas withholding benefits, assessing penalties, or an exclusion from programs or\naccess to facilities. Ky.Rev.Stat. Ann. \xc2\xa7 446.350.\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c404 Religion in the Law\nDavis again argues that the Beshear directive substantially burdens her religious freedom\nwithout serving a compelling state interest. The record in this case suggests that the burden is\nmore slight. As the Court has already pointed out, Davis is simply being asked to signify that\ncouples meet the legal requirements to marry. The State is not asking her to condone same-sex\nunions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue\nto attend church twice a week, participate in Bible Study and minister to female inmates at the\nRowan County Jail. She is even free to believe that marriage is a union between one man and\none woman, as many Americans do. However, her religious convictions cannot excuse her from\nperforming the duties that she took an oath to perform as Rowan County Clerk. The Court\ntherefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under\nKentucky Constitution \xc2\xa7 5.\n\xe2\x80\x9c[I]t is always in the public interest to prevent the violation of a party\xe2\x80\x99s constitutional\nrights.\xe2\x80\x9d G & V Lounge, Inc. v. Mich. Liquor Control Comm\xe2\x80\x99n, 23 F.3d 1071, 1079 (6th\nCir.1994). Because Davis\xe2\x80\x99 \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy likely infringes upon Plaintiffs\xe2\x80\x99 fundamental right to marry, and because Davis herself is unlikely to suffer a violation of her free speech\nor free exercise rights if an injunction is issued, this fourth and final factor weighs in favor of\ngranting Plaintiffs\xe2\x80\x99 Motion.\nDistrict courts are directed to balance four factors when analyzing a motion for preliminary\ninjunction. In this case, all four factors weigh in favor of granting the requested relief. Accordingly, for the reasons set forth herein,\nIT IS ORDERED that Plaintiffs\xe2\x80\x99 Motion for Preliminary Injunction (Doc. # 2) against Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby granted.\nIT IS FURTHER ORDERED that Defendant Kim Davis, in her official capacity as Rowan\nCounty Clerk, is hereby preliminarily enjoined from applying her \xe2\x80\x9cno marriage licenses\xe2\x80\x9d policy\nto future marriage license requests submitted by Plaintiffs.\n\nMiller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 405\n\nPart Three: Proselytizing, Protest, and Provocation\nReligious exercise often has an expressive component. The voice is an important\ninstrument in faith traditions all over the world, as believers speak, chant, sing, shout,\nconfess, and testify their way to salvation or enlightenment or some other ultimate\nreward. Similarly, all organized religions have sacred texts, writs, scriptures, bibles, and\nother written material that records the rules, tenets, and history of each tradition. Religious belief also manifests through symbols, in the form of crosses, stars, moons, and\nvarious other shapes that carry meaning and signify religious identity.\nAll of this expression is not just circulated internally within closed religious communities. It is often turned outward to others, for various reasons. Believers use religious expression to attract others to the join the flock, to show support or defiance on\ntopics of social and religious concern, or to intimidate those perceived to be enemies of\nthe true faith.\nThe following cases all deal with expressive religious conduct. They each involve\nsome form of legal restriction or liability on the spread of religious beliefs through\nprotest, or proselytizing, or purposeful provocation. They all implicate free exercise,\nbut most were decided on other constitutional grounds, such as free speech. And, they\nall raise important questions about how to balance the government\xe2\x80\x99s interest in maintaining order with the faithful\xe2\x80\x99s effort to spread the \xe2\x80\x9cgood word,\xe2\x80\x9d in whatever ways\nthey feel compelled to do so.\nIn the 1925 case of Gitlow v. New York, the U.S. Supreme Court incorporated the\nfree speech clause of the First Amendment to the states.1 Then, in 1940, it incorporated\nthe free exercise clause. In Cantwell v. Connecticut, police arrested a family of Jehovah\xe2\x80\x99s Witnesses for proselytizing on the\nstreets of New Haven and sparking anger\namong local Catholics.2 The Jehovah\xe2\x80\x99s\nWitnesses were very active protesters and\nstreet preachers in the 1930s and early\n1940s, and Cantwell was hardly their\nonly case before the Court. They regularly\nran into trouble with the law and with fellow citizens who were hostile to their\nanti-war and anti-government rhetoric.\nSoon after Cantwell, the Court decided the case of Walter Chaplinsky, a\nJehovah's Witnesses marching (late 1930s)\nWitness accused of breaching the peace - Photographer Unknown\nby cursing at a police officer. In April of\n1940, Chaplinsky was street preaching in Rochester, New Hampshire. His pontification soon drew a hostile crowd, which began taunting him and threatening him with\nviolence. At some point, either immediately before or after the crowd attacked Chaplinsky, local police took him into custody and transported him to police headquarters.\nDuring his arrest, the town marshal approached. Chaplinsky was irate. Angered that\n1\n2\n\n268 U.S. 652 (1925).\n310 U.S. 296 (1941) (excerpted above in First Principles).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c406 Religion in the Law\n\nthe police had arrested him and not the angry crowd, Chaplinksy called the marshal\n\xe2\x80\x9ca damned racketeer\xe2\x80\x9d and \xe2\x80\x9ca damned fascist.\xe2\x80\x9d He was subsequently charged and convicted for violating a state law that prohibited calling someone else an \xe2\x80\x9coffensive or\nderisive name\xe2\x80\x9d with intent to \xe2\x80\x9cderide, offend, or annoy\xe2\x80\x9d that person.\nChaplinsky defended himself on two grounds. First, he argued that he was justified\nin saying what he said, because he was peacefully sharing his religious beliefs in a public\nplace when the crowd attacked him, and the police did nothing until they arrested him,\nthe victim. Thus he had been provoked, and \xe2\x80\x9cif he was provoked, the truth of his\nappellation of the Marshal could be established.\xe2\x80\x9d He also argued that his arrest and\nconviction were infringements of his constitutional rights to free speech, free press, and\nfree religious exercise.\nIn State v. Chaplinsky, the Supreme Court of New Hampshire rejected all of his\narguments. First, the statute did not care whether a defendant had been provoked, and\nit did not care about truth. It prohibited any use of derisive or offensive language\nagainst others in public, for whatever reason, even if true.\nSecond, the Court rejected his constitutional claims. Freedom of the press was not\nrelevant, it said, because Chaplinsky had not printed or written the insults he lobbed\nat the marshal. Similarly, there was no religious free exercise implicated \xe2\x80\x9csince the\nwords have no perceptible connection with worship or with freedom of religious belief\nor practice.\xe2\x80\x9d Chaplinsky was convicted for calling a police officer a \xe2\x80\x9cdamned fascist,\xe2\x80\x9d\nnot for spreading his religious faith.\nThe Court then turned to free speech. Though, admittedly, the right to speak freely\non nearly any topic was essential to the operation of our democratic society, it was not\nabsolute, and the police power of the state had always (to that point) been allowed to\nrestrict speech that stoked violence, provoked fights, or otherwise threatened decency\nand order. Chaplinsky\xe2\x80\x99s rude comments fell within those categories, and thus the state\ncould punish him. His were \xe2\x80\x9cfighting words,\xe2\x80\x9d and they fell outside the protection of\nthe First Amendment.\nChaplinsky appealed to the U.S. Supreme Court, making the same constitutional\narguments he had made below. The Supreme Court unanimously rejected them as well,\nbut it went a little farther in its consideration of the religious component of his claims.\n\xe2\x80\x9cWe cannot conceive that cursing a public officer is the exercise of religion in any sense\nof the term,\xe2\x80\x9d Justice Frank Murphy wrote for the Court, but even if calling a police\nofficer a \xe2\x80\x9cdamned fascist\xe2\x80\x9d was religious, that \xe2\x80\x9cwould not cloak [Chaplinsky] with immunity from the legal consequences for concomitant acts committed in violation of a\nvalid criminal statute.\xe2\x80\x9d The statute was valid because it prohibited conduct that had a\ntendency to breach the peace, something well within the regulatory power of the state\nto do. There was indeed a \xe2\x80\x9cfighting words\xe2\x80\x9d exception to the free speech clause, as far\nas the Court was concerned, and Chaplinsky\xe2\x80\x99s case fell well within it. The Court upheld\nhis conviction.\nThe next two cases deal with more recent religious provocateurs, and both illustrate the critical overlap between the rights to free exercise and free speech. They also\nshow how far the federal courts have strayed from more narrow conceptions of First\nAmendment freedoms dominant in the early twentieth century, such as in Chaplinsky.\nThe first case features the fundamentalist Christian Westboro Baptist Church of\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 407\n\nTopeka, Kansas, led by Fred Phelps and members of his family. For many years,\nWestboro\xe2\x80\x99s members have flown all over the country to stage protests against people\nand events the group considers indicative of society\xe2\x80\x99s evil. One such protest occurred\nat the Maryland funeral of Marine Lance Corporal Matthew Snyder, who was killed\nin Iraq in 2006. Near the cemetery where members of Snyder\xe2\x80\x99s family, including his\nfather Albert, laid their son to rest, Westboro picketers occupied a street corner holding\nprovocative and inflammatory signs, including one that said \xe2\x80\x9cSemper Fi Fags\xe2\x80\x9d and\nanother that said \xe2\x80\x9cThank God for Dead Soldiers.\xe2\x80\x9d The group believes that God rightfully kills soldiers for defending a corrupt and sinful country.\nThe Westboro protesters faced no\ncriminal punishment for their demonstration at the Snyder funeral. Instead,\nthey faced Albert Snyder, who sued them\nunder state tort law for intrusion upon\nseclusion, civil conspiracy, and intentional infliction of emotional distress.\nAfter a trial in which Westboro founder\nFred Phelps personally testified in defense of his church\xe2\x80\x99s activities, a federal\nWestboro Baptist funeral protest\njury awarded Snyder over $10.9 million,\n- Getty Images\nincluding $8 million in punitive damages (later reduced by the judge to $2.1 million). Phelps and Westboro appealed all the\nway to the U.S. Supreme Court, which heard their case in 2011.\nWriting for an 8-1 majority, Chief Justice John Roberts wrote that the protest by\nPhelps and his church was protected activity under the free speech clause of the First\nAmendment no matter how \xe2\x80\x9coutrageous\xe2\x80\x9d or \xe2\x80\x9chighly offensive\xe2\x80\x9d a jury found it to be,\nand thus they could not be held liable for damages to Snyder. Westboro and Phelps\n\xe2\x80\x9chad a right to be where they were\xe2\x80\x9d and their speech was purely of \xe2\x80\x9cpublic concern.\xe2\x80\x9d\nThere was no exception to the free speech clause for their activities, no matter how\npersonally hurtful they may have been to Albert Snyder. Thus, the government could\nnot punish them for it (through the imposition of a federal court jury verdict).\nOnly Justice Samuel Alito dissented. He read the First Amendment more narrowly\nthan his colleagues, arguing that there was a point where speech becomes \xe2\x80\x9cso outrageous \xe2\x80\xa6 and so extreme in degree\xe2\x80\x9d that it transcends \xe2\x80\x9call possible bounds of decency\xe2\x80\x9d\nand loses free speech protection. Further, Westboro\xe2\x80\x99s speech was not \xe2\x80\x9cpublic\xe2\x80\x9d \xe2\x80\x93 they\nspecifically targeted the funeral of Matthew Snyder because he was Catholic and because he served in the military. Courts held civil defendants liable for such targeted,\nhighly outrageous conduct all the time, Alito argued. There was no reason to give\nWestboro a pass. Nevertheless, the Phelps clan won, and soon resumed their protest\ncampaign against fallen soldiers.\nMeanwhile, in Michigan, a similarly provocative group of Christian fundamentalists was making a habit of demonstrating at the annual Arab International Festival in\nDearborn. Dearborn is home to over 40,000 Arab Americans, who make up 30% of\nthe city\xe2\x80\x99s population. From 1996 to 2012, the city hosted a large outdoor festival celebrating this cultural heritage, attracting many thousands of people. Beginning in 2011,\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c408 Religion in the Law\n\na group called the Bible Believers, led by Ruben \xe2\x80\x9cIsrael\xe2\x80\x9d Chavez, also attended the\nfestival. The Bible Believers are Evangelical Christians who sincerely believe their religious mission is to convert others and confront sinners. They regularly protest and\ndemonstrate with provocative signs and intolerant rhetoric.\nIn 2012, after giving local law enforcement notice that they were coming, the Bible\nBelievers attended the Dearborn festival for the second time, bringing a bullhorn and\nsigns with messages like \xe2\x80\x9cIslam is a Religion of Blood and Murder,\xe2\x80\x9d \xe2\x80\x9cPrepare to Meet\nThy God,\xe2\x80\x9d and \xe2\x80\x9cTurn or Burn.\xe2\x80\x9d They also brought a pig\xe2\x80\x99s head on a pike, which,\naccording to Israel, would keep Muslim festivalgoers \xe2\x80\x9cat bay.\xe2\x80\x9d\nNot long after the Bible Believers arrived and began marching and sharing\ntheir particular brand of faith with passersby, tensions grew. Soon a crowd of\nteenagers began pelting them with water bottles and other debris. The local\npolice, who had assigned extra officers\nto the event, were almost totally absent\nfrom the scene. The crowd, meanwhile,\nforced the Bible Believers to retreat. The\nRuben Chavez (left) and the Bible Believers\npolice ignored their requests for protec- - Vice Media\ntion, and instead warned them that their\npresence was the source of the problem. Under threat of arrest, the Bible Believers left\nthe festival, only for the police to pull over their vans and cite them for removing their\nlicense plates.\nThe Bible Believers sued the Wayne County Sheriff\xe2\x80\x99s Department and individual\npolice officers in federal court for violating their First Amendment rights to free exercise and free speech. After losing before the trial court and an appellate panel, the Bible\nBelievers requested en banc review by the Sixth Circuit, which granted it.\nThe entire Sixth Circuit, in a closely split decision, ruled that the police had violated\nthe Bible Believers\xe2\x80\x99 rights by exiling them from the festival and citing them after they\nleft. Judge Eric Clay, writing for the majority, concluded that police had participated in\na \xe2\x80\x9checkler\xe2\x80\x99s veto,\xe2\x80\x9d a situation where a provocative speaker is punished for the hostile\nreaction of their audience. Annoying as they may have been, Clay wrote, the Bible\nBelievers were peacefully exercising their right to proselytize. The First Amendment\nrestricts the government, not unpopular speakers. If a crowd reacts with violence, the\ngovernment is well within its power to stop them. The police in Dearborn cracked\ndown on the wrong group, Clay explained.\nIn dissent, Judge John Rogers accused the majority of providing \xe2\x80\x9ca roadmap that\neffectively advises how to force the police to help disrupt a minority\xe2\x80\x99s speech and assembly rights.\xe2\x80\x9d The real victims, Rogers argued, were the Muslims in the crowd who\nthe Bible Believers deliberately provoked. The Bible Believers belonged to the Christian\nmajority of the country, and had gone to the festival to hassle a minority community.\nIf any group acted like \xe2\x80\x9checklers,\xe2\x80\x9d said Rogers, it was Israel and his gang. No precedent\nrequired the police to stand by and serve as personal guards for deliberately provocative troublemakers. Rogers and four of his colleagues would have dismissed their\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 409\n\nclaims.\nIn Chaplinsky, Snyder, and Bible Believers, the courts analyzed cases of religious\nprovocation through the lens of the First Amendment free speech clause, applying or\nrejecting doctrinal exceptions such as fighting words, indecency, and incitement. The\nnext cases involve religious proselytizers and provocateurs who challenged the First\nAmendment\xe2\x80\x99s \xe2\x80\x9ctime, place, and manner\xe2\x80\x9d exception. That exception allows the government to neutrally and reasonably restrict when, where, and how people may express\npolitical and religious ideas in public, as long as it has a sufficiently important reason\nto do so.\nIn the late 1970s and early 1980s, members of a Hindu religious group called The\nInternational Society of Krishna Consciousness, also known as ISKCON or the Hare\nKrishnas, were particularly active public proselytizers. They regularly appeared at public events and places like malls and airports wearing their characteristic robes, and\nchanting and distributing information about their ascetic lifestyle.3 One of the Krishnas\xe2\x80\x99 religious rituals, called Sankirtan, requires members to mingle with the public to\nshare literature and solicit donations directly.\nIn 1977, the Krishnas sued the organizers of the\nMinnesota State Fair for imposing a rule that limited the\ndistribution of literature and the solicitation of funds by\nexhibitors to a stationary booth. Requiring them to stay\nin one place while conducting their religious outreach\nwas an unjustified infringement of Sankirtan, the Krishnas argued, and it violated the free exercise and free\nspeech clauses of the First Amendment.\nThe U.S. Supreme Court rejected the Krishnas\xe2\x80\x99 First\nAmendment claims in Heffron v. ISKCON, holding that\nthe fair\xe2\x80\x99s rule was a neutral time, place, and manner restriction justified by the \xe2\x80\x9csignificant\xe2\x80\x9d government interest of protecting fairgoers\xe2\x80\x99\n\xe2\x80\x9csafety and convenience.\xe2\x80\x9d Writing for the majority, Justice Byron White observed that\nstate fairs are busy, crowded events, and even limited exemptions for religious groups\nlike ISKCON would frustrate the government\xe2\x80\x99s significant interest in maintaining order. White rejected the Krishnas\xe2\x80\x99 argument that restraining them to a booth would\ninfringe their religiously mandated methods of distributing literature and asking for\ndonations. Frustrating as the rule may have been, the Court ruled that accommodating\ntheir needs would create \xe2\x80\x9cwidespread disorder at the fairgrounds.\xe2\x80\x9d And, at any rate,\nthe Krishnas were still free to proselytize and fundraise anywhere outside the fairgrounds that they wanted. The state restricted their rights only in a limited public forum that they were not forced to attend.\nHare Krishnas chanting\n- Raghunath\n\nJustice William Brennan, joined by Justices Thurgood Marshall and John Paul Stevens, dissented in part. They agreed with the court that the restriction on monetary\nsolicitation was valid as an \xe2\x80\x9cantifraud\xe2\x80\x9d effort, but they disagreed on the distribution\nof literature. Brennan rejected the idea that handing out pamphlets or books was more\nHare Krishnas were among the many familiar groups satirized in the 1980 blockbuster\ncomedy Airplane! starring Leslie Nielsen, Peter Graves, Julie Hagerty, Robert Hays, Lloyd\nBridges, and Kareem Abdul-Jabbar.\n3\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c410 Religion in the Law\n\ndisruptive than simply speaking to others, which was not restricted anywhere at the\nfair. Neither a desire to prevent fraud nor an interest in crowd control could justify the\nfair\xe2\x80\x99s rule on literature distribution, he concluded.\nAround the same time that the Supreme Court denied the Hare Krishnas\xe2\x80\x99 request\nto peacefully hand out pamphlets at a state fair, a more aggressive religious subculture\nwas growing in the United States. Radicalized by the 1973 decision of Roe v. Wade,\nChristian anti-abortion activists began protesting abortion clinics in the mid-1970s.\nPicketers, carrying graphic pictures of aborted fetuses and preaching through bullhorns, often blocked clinic entrances, harassed patients, and threatened clinic workers.\nMeanwhile, extremists such as the so-called Army of God began to commit acts of\nviolence, including kidnappings, bombings and, eventually, the murders of several doctors and clinic workers.\nBy the early-1990s, a group called Operation Rescue had risen to prominence in\nthe anti-abortion activist community. Led at the time by Christian fundamentalist Randall Terry, the group made a name for itself by aggressively protesting outside clinics,\nblockading their driveways and entrances, and stalking clinic workers and clients.\nIn 1992, a Florida state court granted two injunctions (the second amending the\nfirst) to a Melbourne abortion clinic constantly beset upon by Operation Rescue and\nother anti-abortion picketers. The injunctions created a 36-foot \xe2\x80\x9cbuffer zone\xe2\x80\x9d around\nthe clinic that prohibited demonstrations within a certain proximity to its entrances.\nThe injunction also banned all loud noises \xe2\x80\x9cwithin earshot\xe2\x80\x9d of patients inside the clinic\nduring morning appointment hours, prohibited graphic signs within view, and ordered\ndemonstrators not to approach doctors, staff, or patients outside the clinic or at their\nhomes.\nJudy Madsen and other members of Operation Rescue, including Randall Terry,\nfirst appealed the amended injunction in state court but lost. Meanwhile, they also sued\nin federal court, arguing that the state court\xe2\x80\x99s injunction unconstitutionally restricted\ntheir free speech rights under the First Amendment. The Eleventh Circuit Court of Appeals agreed and struck down the injunction.\nThe U.S. Supreme Court, however, reversed the Eleventh Circuit and upheld most\nof the state court\xe2\x80\x99s injunction in Madsen v. Women\xe2\x80\x99s Health Center. Writing for a sixjustice majority, Chief Justice William Rehnquist concluded that the amended injunction, despite its limited application to anti-abortion protesters, was nevertheless content-neutral because it restricted people who had violated the original injunction\nthrough their conduct. The injunction was not quite the same as a generally applicable\ntime, place, and manner restriction, however, so it needed to burden \xe2\x80\x9cno more speech\nthan necessary to serve a significant government interest.\xe2\x80\x9d Rehnquist analyzed each\nprovision of the injunction under this standard, and concluded that the buffer zones\naround clinic property and the noise restrictions were valid. Among the restrictions\nstruck down were the buffer zones around neighboring private property and the homes\nof workers and patients, as well as the rule that protesters must not approach patients\nwithout consent within three hundred feet of the clinic.\nJustice John Paul Stevens concurred in part but also dissented in part, arguing that\nthe Court applied too strict a standard to an injunction. A 36-foot buffer zone would\nprobably be invalid as a generally applicable statute, he argued, but was perfectly fine\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 411\n\nin the form of a court order based on gathered evidence and prior bad acts. Thus, he\nwould have given the lower court more deference in its ruling.\nJustice Antonin Scalia strenuously objected (joined by Justices Anthony Kennedy\nand Clarence Thomas). In no other context but abortion would the Court rule in such\na way, he argued, and at any rate, none of the evidence submitted in the state court\njustified its sweepingly restrictive injunction. Further, said Scalia, the injunction was by\nits very terms content-based \xe2\x80\x93 it discriminated against anti-abortion protesters only and\nsingled them out for their religious and political message \xe2\x80\x93 and therefore should have\nbeen subject to the toughest judicial scrutiny, which, in his view, it easily failed. The\nCourt\xe2\x80\x99s ruling, he sneered, was just another example of the \xe2\x80\x9cad hoc nullification machine\xe2\x80\x9d of its abortion jurisprudence.\nOver the following two decades, the Supreme Court upheld other fixed physical\nbuffer zones around abortion clinics \xe2\x80\x93 both court-ordered and statutory. In Schenck v.\nPro-Choice Network of Western New York, the Court, in another Rehnquist majority\nopinion, affirmed a federal court injunction stopping so-called \xe2\x80\x9csidewalk counselors\xe2\x80\x9d\nfrom demonstrating within fifteen feet of an abortion clinic entrance or driveway.4\nHowever, the Court struck down the \xe2\x80\x9cfloating buffer zone\xe2\x80\x9d within fifteen feet of all\npatients approaching the clinic as overly restrictive of speech.\nIn Hill v. Colorado, the Court upheld a state law that prohibited anyone, \xe2\x80\x9cfor the\npurpose of protest, education, distribution, or counseling,\xe2\x80\x9d from approaching within\neight feet of someone once that person was within 100 feet of a health care facility.5\nWith the Court voting 6-3 in favor of the law, Chief Justice Rehnquist handed the\nwriting duties to John Paul Stevens, who concluded that Colorado had a compelling\npurpose and that its floating buffer zone, though imposed after confrontations at abortion clinics, was nevertheless content-neutral and generally applicable. Moreover, the\nlaw was not too restrictive, because the buffer zone was just eight feet and protesters\ncould continue to hold signs, speak, and yell from a relatively short distance away.\nJustice Scalia dissented again, along with regular allies Justices Thomas and Kennedy,\narguing, as he had in both Madsen and Schenck, that the Court had carved a special\nabortion exception out of the First Amendment.\nRelying on Madsen, Schenck, and Hill, which all upheld abortion clinic buffer\nzones of various forms and sizes, Massachusetts first passed a law in 2000 requiring\naround all abortion clinics an 18-foot fixed buffer zone and a 6-foot floating buffer\nzone within it. In 2007, the state amended the law to extend the fixed buffer zone to\n35-feet around the entrance of all reproductive health care facilities.\nIn 2008, Catholic pro-life activist and self-described \xe2\x80\x9csidewalk counselor\xe2\x80\x9d Eleanor\nMcCullen sued (along with several others), arguing that the 35-foot buffer zone infringed her free speech and free exercise rights to spread her anti-abortion message to\nstrangers as they sought private medical treatment. McCullen and the other plaintiffs\nargued that the law unconstitutionally targeted anti-abortion activists and was unfairly\ndiscriminatory by allowing volunteer escorts and paid clinic workers to approach patients within the zone.\n\n4\n5\n\n519 U.S. 357 (1997).\n530 U.S. 703 (2000).\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c412 Religion in the Law\n\nThe Supreme Court heard McCullen\xe2\x80\x99s case in 2014. By that time, four members\nof the Hill majority were gone. William Rehnquist died in 2005. Justices Stevens, Sandra Day O\xe2\x80\x99Connor, and David Souter had all retired. Only Justices Stephen Breyer and\nRuth Bader Ginsburg remained, and they had qualified their votes in Hill by joining\nJustice Souter\xe2\x80\x99s concurring argument that the Colorado law was constitutional because\nit regulated unwanted approaching, not speech.\nDespite all the precedent holding otherwise, the Supreme Court unanimously ruled\nin McCullen v. Coakley that the Massachusetts buffer zone violated the First Amendment. Writing for the Court, Chief Justice John Roberts agreed with the state that the\nlaw was content-neutral, despite its application to abortion clinics and its exemption\nfor clinic workers, and that it was motivated by significant interests, such as public\nsafety and free passage on sidewalks. The problem was its tailoring \xe2\x80\x93 it overly restricted\notherwise constitutionally protected speech because it restrained sidewalk counselors\nfrom using their preferred tactics of persuasion. Reminiscent of Chief Justice Burger\xe2\x80\x99s\nreverent description of the Amish lifestyle, Chief Justice Roberts described McCullen\xe2\x80\x99s\nproselytizing in very sympathetic terms. Roberts said the buffer zone law \xe2\x80\x9ccompromise[d] petitioners\xe2\x80\x99 ability to initiate the close, personal conversations that they view\nas essential to \xe2\x80\x98sidewalk counseling.\xe2\x80\x99\xe2\x80\x9d McCullen also claimed that she had been less\nsuccessful at talking strangers out of getting abortions than she had been before the\nlaw took effect. For that reason, Roberts said, the \xe2\x80\x9cburdens on petitioners\xe2\x80\x99 speech have\nclearly taken their toll,\xe2\x80\x9d though he did not cite any authority for the suggestions that\nspeakers are constitutionally entitled to persuade others, or entitled to use their preferred methods of persuasion in any situation.6\nIn concurrence, Justices Scalia, Thomas, and Kennedy noted that Chief Justice\nRoberts essentially ignored Hill v. Colorado. In their view, that decision should have\nbeen overruled, and the Court should have declared the Massachusetts law to be an\nunconstitutional content-based speech restriction. The state clearly established the\nbuffer zone to thwart abortion protesters based on their viewpoints, Scalia wrote, and\nno tailoring was appropriate enough to justify that.\nCuriously silent in McCullen were Hill majority members Ruth Bader Ginsburg\nand Stephen Breyer. Also joining the Court\xe2\x80\x99s majority without separate opinion were\nJustices Elena Kagan and Sonya Sotomayor, who took office after Hill and, in later\ncases, voted in favor of abortion rights.7\n***\nIn 2019 and 2020, the Federal Courts of Appeals for the Third and Seventh Circuits upheld fixed and floating abortion clinic buffer zones in Pittsburgh and Harrisburg, Pennsylvania and Chicago, Illinois. In all three cases, those courts relied on Hill\nv. Colorado as the guiding precedent. The Supreme Court, without explanation in any\n\nThe Court\xe2\x80\x99s time, place, and manner cases had often held otherwise. Recall in Heffron v.\nISKCON that the Court was unconcerned that the state fair rules prevented the Hare\nKrishnas from engaging in their religiously-mandated methods of communication, or that\ntheir conversion success right might be lowered. The Court in McCullen made no reference\nto Heffron.\n7 See Whole Women\xe2\x80\x99s Health v. Hellerstedt, 136 S.Ct. 2292 (U.S. 2016); and June Medical\nServices, LLC v. Russo, 591 U.S. ___ (2020).\n6\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 413\n\ncase, declined to review all of them.8 As for now, the unspoken tension between the\nHill and Madsen on one side and McCullen on the other remains unresolved.\nFURTHER READING\nLeslie Kendrick, Nonsense on Sidewalks: Content Discrimination in McCullen v.\nCoakley, 2014 Sup. Ct. Rev. 215 (2014).\nMark Strasser, Preaching, Fundraising and the Constitution: On Proselytizing and the\nFirst Amendment, 85 Denv. U. L. Rev. 405 (2007).\nEugene Volokh, Gruesome Speech, 100 Cornell L. Rev. 901 (2015).\n\nSee Reilly v. City of Harrisburg, 790 Fed.Appx. 468 (CA3 2019) and Price v. Chicago, 915\nF.3d 1107 (CA7 2019)(cert. denied, 141 S.Ct. 185 (U.S. 2020)); and Bruni v. City of Pittsburgh, 941 F.3d 73 (CA3 2019) (cert. denied, 144 S.Ct. 578 (U.S. 2021)).\n8\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c414 Religion in the Law\n\n91 N.H. 310\nSupreme Court of New Hampshire\n\nState v. Chaplinsky\nMarch 4, 1941\nPAGE, Justice.\nThe statute involved is P. L., c. 378, \xc2\xa7 2, which reads thus:\nNo person shall address any offensive, derisive or annoying word to any other\nperson who is lawfully in any street or other public place, nor call him by any\noffensive or derisive name, nor make any noise or exclamation in his presence\nand hearing with intent to deride, offend or annoy him, or to prevent him\nfrom pursuing his lawful business or occupation.\nThe complaint is that Chaplinsky, being in the street at Rochester, addressed to the City\nMarshal these words: \xe2\x80\x9cYou are a God damned racketeer\xe2\x80\x9d and \xe2\x80\x9ca damned Fascist and the whole\ngovernment of Rochester are Fascists or agents of Fascists.\xe2\x80\x9d These words were testified to by\nseveral of the State\xe2\x80\x99s witnesses. The defendant admitted the words with the exception of the\nqualifying \xe2\x80\x9cGod.\xe2\x80\x9d\nThe section of the statute involved has two provisions. The first relates to words and names\napplied by one directly to another in a public place [and] has twice been construed by this court.\nNearly fifty years ago there was a conviction under it, in a case where the defendant, in the\nstreet, addressed to one also in the street the words \xe2\x80\x9cYou are a God damned blackmailer.\xe2\x80\x9d The\ndefendant attempted to justify by proving the statement to be true. Since the statute makes no\ndistinction between truthful and untruthful utterances, it was held that the justification was inadmissible. Construing the statute, this court said that its \xe2\x80\x9cpurpose was to preserve the public\npeace. The direct tendency of such conduct, like that of [criminal] libel, is to provoke the person\nagainst whom it is directed, to acts of violence.\xe2\x80\x9d State v. Brown, 68 N.H. 200. The decision\nseems to have assumed that the only intent required for conviction under the first part of the\nsection was an intent to speak the words. In any event, that is the construction which we place\nupon the provision.\nAgain in 1900, the earlier construction was followed, and it was further held that the act\napplied where the words were addressed by one to another in a public highway, even though no\nthird person was present to hear the words. State v. McConnell, 70 N.H. 294, 47 A. 267. The\ncomplaining witness, a woman, was called a bitch, with other obscene words not thought necessary to be printed in the reported decision.\nIt thus appears that long before the words for which Chaplinsky was convicted, the construction of the provision was made plain, to the extent that no words were forbidden except\nsuch as have a direct tendency to cause acts of violence by the person to whom, individually, the\nremark is addressed. This is not a case where, in advance of a judicial interpretation, the defendant could not be bound to understand what was intended by the statute\xe2\x80\xa6\nAnother point may be mentioned at once. The defendant asserts that the trial court improperly excluded evidence of, and comment on, the supposed provocation of Chaplinsky growing\nout of his prior treatment by the crowd. We think the ruling was correct.\nThe \xe2\x80\x9cprovocative matter\xe2\x80\x9d was this. Chaplinsky was lawfully engaged, on the streets of\nRochester, in the distribution of the literature of the sect known as Jehovah\xe2\x80\x99s Witnesses. Some\n\nState v. Chaplinsky, 91 N.H. 310 (1941)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 415\nof those on the streets apparently resented his activities. They may have thought them provocative. At least they complained to the City Marshal, who says he told them that Chaplinsky was\nlawfully engaged and that he must be left alone. At the same time the Marshal says he informed\nChaplinsky that the crowd was getting restless and that he would better go slow. Some hours\nlater, the crowd got out of hand and treated Chaplinsky with some violence. He was then led\ntowards the police station, though apparently more for his protection than for arrest, since his\narrest was definitely fixed only after he uttered the words charged, when the Marshal met him\non the way. It may be remarked that nobody concerned, taking Chaplinsky at his word, used\nproper restraint on this occasion, but that fact, if true, could not be a defence of his own conduct.\nAt the moment the defendant uttered the words for which he was convicted, he undoubtedly felt resentment because he had been roughly handled by the crowd. His resentment might\nwell enough have extended to the police if they had failed to take any step reasonably within\ntheir power to control the crowd, or if they had failed to prosecute anybody who they had\nreasonable ground to believe had assailed him. But those facts, if true, would not have justified\nthe offensive manner in which he sought to bring the Marshal to what Chaplinsky may have\nregarded as a sense of his duty. It was not useful or proper comment for bringing truth to light.\nIts plain tendency was to further breach of order, and it was itself a breach of the peace.\nThe excluded evidence related solely to Chaplinsky\xe2\x80\x99s recital of what he conceived was his\nmission to \xe2\x80\x9cpreach the true facts of the situation of the Bible to the people,\xe2\x80\x9d of \xe2\x80\x9cthe Christian\xe2\x80\x99s\npermission\xe2\x80\x9d, and of certain acts of the crowd that seem to have happened outside of the\nknowledge of the police. As to any possible provocation he had suffered while in the presence\nof the police, his testimony appears to have been admitted, though immaterial to the issue of his\nguilt. The court, in any event, was correct in excluding as immaterial the issues (1) whether the\npolice had been neglectful prior to his offense, (2) whether the defendant had been assaulted by\nthe crowd, and (3) whether the defendant, in consequence, had been provoked to use the words\nwith which he was charged. The defendant\xe2\x80\x99s argument as to this exclusion comes to this \xe2\x80\x93 that\nif he was provoked, the truth of his appellation of the Marshal could be established. [However,]\nthe truth would be no justification.\nThe rule thus established is not severe. Chaplinsky could no more defend unlawful speech\non the ground of provocation than could one of the street\xe2\x80\x93crowd have defended a charge of\ncalling Chaplinsky names on the ground that the name\xe2\x80\x93caller had been incensed by Chaplinsky\xe2\x80\x99s\nteachings. The defendant was held to the same duties as those who disagreed with him or with\nwhom he disagreed. The rules of fair conduct in public speech in the street apply indiscriminately\nto all\xe2\x80\x94whether the speaker be a preacher, an official or a mere by\xe2\x80\x93stander.\nThe defendant was not entitled to a directed verdict unless the statute is unconstitutional.\nUpon the question of constitutionality, the defendant asserts infringement of the fundamental\nliberties of speech, press and worship. Since he did not print his words or circulate them in\nprinted form, and since the words have no perceptible connection with worship or with freedom\nof religious belief or practice, we shall confine ourselves to the subject of free speech, though\ncognate rights may have illustrative effect in the course of this discussion.\nThe right to speak freely, whether in a street or elsewhere, is of primary importance. That\nis a principle whose general validity nobody denies, and nobody ought ever to deny. But the\nright may be limited in appropriate situations. The question is whether the limitation imposed\nby our statute is constitutionally permissible.\nThe fundamental basis of the constitutional rule is the necessity for full and free discussion\nof all subjects which affect ways of life, including religious, social and governmental questions.\nThis is \xe2\x80\x9cessential to the very existence and perpetuity of free government.\xe2\x80\x9d Cooley, Constitutional Limitations, 7th Ed., 596.\n\nState v. Chaplinsky, 91 N.H. 310 (1941)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c416 Religion in the Law\n\xe2\x80\x9cNo one can doubt the importance, in a free government, of a right to canvass the acts of\npublic men and the tendency of public measures, to censure boldly the conduct of rulers, and to\nscrutinize closely the policy and plans of government. ... But the exercise of a right is essentially\ndifferent from an abuse of it. The one is no legitimate inference from the other. Common sense\nhere promulgates the broad doctrine, sic utere tuo, ut non alienum laedas; so exercise your own\nfreedom as not to infringe the rights of others, or the public peace and safety.\xe2\x80\x9d Story, Constitution of the United States, \xc2\xa7 1888.\n\xe2\x80\x9cFreedom of discussion, if it would fulfill its historic function in this nation, must embrace\nall issues about which information is needed or appropriate to enable the members of society to\ncope with the exigencies of their period.\xe2\x80\x9d Thornhill v. Alabama, 310 U.S. 88.\nIf a city officer is guilty of a wrong or a neglect, any person is free to comment, to the end\nthat free government may be preserved. Peaceful and truthful discussion of matters of public\ninterest cannot be penalized merely because others than the speaker may be persuaded of the\ntruth of the criticism. \xe2\x80\x9cAbridgement of the liberty of such discussion can be justified only where\nthe clear danger of substantive evils arises under circumstances affording no opportunity to test\nthe merits of ideas by competition for acceptance in the market of public opinion.\xe2\x80\x9d Thornhill v.\nAlabama.\nThe only competition for acceptance in that market of opinion to be found in this record is\nthis: The defendant admittedly called the Marshal a damned racketeer and Fascist, in exchange,\nas the defendant says, for the Marshal\xe2\x80\x99s calling him a damned bastard. Either appellation, applied directly to the other on the street, would clearly be a breach of the statute. Neither would\nrise above the level of name\xe2\x80\x93calling. Neither party could expect the other to be persuaded by\nsuch language. Neither remark qualifies as peaceful and truthful discussion of matters of public\ninterest. Each invited personal violence and disturbance of the peace, without any observable\ntendency to enable the by\xe2\x80\x93standers to test the merits of the competitive ideas, if they were ideas.\nWe can see no relationship of such utterances to that freedom of speech which is so acutely\ndesirable if free institutions are to be preserved. Such face\xe2\x80\x93to\xe2\x80\x93face reviling is not remotely necessary in the debate of public questions. It is not argument. It has no persuasive power. Its only\npower is to inflame, to endanger that calm and useful consideration of public problems which\nis the protection of free government. Its tendency is to useless and dangerous disorder in which\nthe object of free speech is lost to view\xe2\x80\xa6.\nIn Whitney v. California the majority declared (274 U.S. 357, 371) that it was not open to\nquestion \xe2\x80\x9cthat a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public\npeace, or endanger the foundations of organized government and threaten its overthrow by unlawful means.\xe2\x80\x9d\nIn maintaining the guaranty of free speech, the authority of the State to enact laws to promote health, safety, morals and the general welfare is \xe2\x80\x9cnecessarily admitted.\xe2\x80\x9d The limits of this\nreserved authority must be \xe2\x80\x9cdetermined with appropriate regard to the particular subject of its\nexercise.\xe2\x80\x9d And \xe2\x80\x9cthe power of the state stops short of interference with what are deemed to be\ncertain indispensable requirements of the liberty assured. Liberty of speech and of the press is\nalso not an absolute right, and the state may punish its abuse.\xe2\x80\x9d \xe2\x80\xa6\n\xe2\x80\x9cThese rights may be abused by using speech or press or assembly in order to incite to\nviolence and crime. The people through their Legislatures may protect themselves against that\nabuse. The rights themselves must not be curtailed.\xe2\x80\x9d Only so can desirable changes be made by\npeaceful means, which is the purpose of the right of free speech. DeJonge v. Oregon, 299 U.S.\n353, 364, 365. \xe2\x80\x9cThe limitation upon individual liberty must have appropriate relation to the\nsafety of the state.\xe2\x80\x9d Herndon v. Lowry, 301 U.S. 242, 258.\n\nState v. Chaplinsky, 91 N.H. 310 (1941)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 417\n\xe2\x80\xa6Our statute aims merely to punish the abuse of right (in this case disorderly conduct) and\nsubjects the speaker to no restraint of indispensable right.\nLegislation aimed at conduct which impedes free use of the streets may be sustained provided it does not abridge the liberty of one rightfully in the streets to impart information without\ninterfering with such use. \xe2\x80\x9cProhibition of such conduct would not abridge the constitutional\nliberty since such activity bears no necessary relationship to the freedom to speak, write, print\nor distribute information or opinion.\xe2\x80\x9d Schneider v. State, 308 U.S. 147, 161. Our statute prohibits conduct which has no necessary relationship to those freedoms.\nThe right of speech, therefore, \xe2\x80\x9cis not absolute, but relative, and must be exercised in subordination to the general comfort and convenience and in consonance with peace and good\norder, but it must not, in the guise of regulation, be abridged or denied.\xe2\x80\x9d \xe2\x80\xa6 But prohibition by\nlegislative act of abusive speech under circumstances which the legislature may appropriately\nbelieve dangerous to public order, and the punishment of speech unnecessary to the full exercise\nof the right, is believed to be no restraint, or at most a permissible restraint\xe2\x80\xa6.\nOur statute [is not] of the sort declared unconstitutional in Cantwell v. Connecticut, 310\nU.S. 296. There the asserted offense was the soliciting of funds for religious purposes (by the\nsale of literature) without a permit. With the consent of two Roman Catholics in the street, the\ndefendant played a phonograph record which turned out to be a criticism of the hearers\xe2\x80\x99 religion.\nThe hearers were incensed. A breach of the peace might have occurred unless the defendant had\nwithdrawn at request. \xe2\x80\x9cThere was no evidence that he [the defendant] was personally offensive\nor entered into any argument with those he interviewed.\xe2\x80\x9d The state court held that the charge\nwas \xe2\x80\x9cnot assault or breach of the peace or threats on Cantwell\xe2\x80\x99s part, but invoking or inciting\nothers to breach of the peace, and that the facts supported the conviction of that offense.\xe2\x80\x9d It\nresulted that the case involved the right to express opinion without the informant doing a single\nact of violence, without committing a breach of the peace, without either threat or offensive\nremark.\nMr. Justice Roberts pointed out that freedom to believe and freedom to act are both secured\nby the due process clause of the Fourteenth Amendment. \xe2\x80\x9cThe first is absolute but, in the nature\nof things, the second cannot be. Conduct remains subject to regulation for the protection of\nsociety.\xe2\x80\x9d While the state may not wholly deny the right to disseminate views which may inviolably be held, it may by general and non\xe2\x80\x93discriminatory legislation regulate the times and places\nand the manner of conduct of the disseminator upon the streets, \xe2\x80\x9cand may in other respects\nsafeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.\xe2\x80\x9d \xe2\x80\xa6\nIn the course of discussion, Mr. Justice Roberts remarked upon permissible restraints of\nconduct: \xe2\x80\x9cThe offense known as breach of the peace embraces not only violent acts but acts and\nwords likely to produce violence in others. When immediate threat to public safety, peace, or\norder, appears, the power of the state to prevent or punish is obvious.\xe2\x80\x9d Such a breach of the\npeace by Cantwell, the state court had held, did not exist. \xe2\x80\x9cOne may, however, be guilty of the\noffense if he commit acts or make statements likely to provoke violence and disturbance of good\norder, even though no such eventuality be intended. \xe2\x80\xa6 Resort to epithets or personal abuse is\nnot in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument [the\nFederal Constitution]\xe2\x80\x9d. \xe2\x80\xa6\nThe defendant further says that our statute is invalid because it is so vague and indefinite\nthat one coming within its purview may not know what is prohibited. In this connection, the\nclaim is made that the test of what is offensive is purely subjective in the sense that it is to be\ndetermined by the way the addressee reacts to it. The defendant therefore argues that nobody\n\nState v. Chaplinsky, 91 N.H. 310 (1941)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c418 Religion in the Law\ncan know what is offensive language, since one man may be offended by words to which another man would take no exception. We have never construed the statute by any such test. The\nword \xe2\x80\x9coffensive\xe2\x80\x9d is not to be defined in terms of what a particular addressee thinks. The legislature had no such vague, shifting test in mind. As was long ago said, they had in mind the\ntendency of words, not their actual result\xe2\x80\xa6.\nThe test is what men of common intelligence would understand would be words likely to\ncause an average addressee to fight. We have never applied the statute otherwise. The English\nlanguage has a number of words and expressions which by general consent are \xe2\x80\x9cfighting words\xe2\x80\x9d\nwhen said without a disarming smile. In common understanding they are offensive in the Websterian sense of being such as to cause resentment, or, as Funk and Wagnalls say perhaps more\naptly, adapted to give offense, offense being that which causes anger. Such words, as ordinary\nmen know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive\nand annoying words can be taken as coming within the purview of the statute as heretofore\ninterpreted only when they have this characteristic of plainly tending to excite the addressee to\na breach of the peace. If the time may ever come when the words \xe2\x80\x9cdamned Fascist\xe2\x80\x9d will cease\nto be generally regarded as \xe2\x80\x9cfighting words\xe2\x80\x9d when applied face\xe2\x80\x93to\xe2\x80\x93face to an average American,\nthis is not the time. The presiding justice might have been warranted in telling the jury that they\nwere offensive as a matter of law. But since he thought the jury as competent as he to understand\nthe words, he left the question to them.\nThe statute, as construed, does no more than prohibit the face\xe2\x80\x93to\xe2\x80\x93face words plainly likely\nto cause a breach of the peace by the addressee, words whose speaking constitute a breach of\nthe peace by the speaker\xe2\x80\x94including \xe2\x80\x9cclassical fighting words\xe2\x80\x9d, words in current use less \xe2\x80\x9cclassical\xe2\x80\x9d but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats. Men of common intelligence, situated as was Chaplinsky, do not need to\nguess at its meaning or differ as to its application. See Connally v. General Construction Company, 269 U.S. 385, 391. \xe2\x80\xa6 [All] men of common intelligence know almost instinctively what\nare the dangerous words when so addressed\xe2\x80\xa6.\nThe words \xe2\x80\x9coffensive\xe2\x80\x9d, \xe2\x80\x9cderisive\xe2\x80\x9d and \xe2\x80\x9cannoying\xe2\x80\x9d, in this connotation of tendency to disorder in public places, are commonly used and commonly understood. They are not wanting in\nmeaning. Some are used in statements of legal principles by those who are careful of accuracy\nand definiteness of statement. Thus, \xe2\x80\x9cpersonally offensive\xe2\x80\x9d language, \xe2\x80\x9cprofane, indecent, or\nabusive remarks directed to the person of the hearer\xe2\x80\x9d, and \xe2\x80\x9cepithets or personal abuse\xe2\x80\x9d, all of\nwhich are caught up in the phrase \xe2\x80\x9cwords likely to produce violence in others.\xe2\x80\x9d Cantwell v.\nConnecticut. Though general in a sense, such words have commonly accepted popular and legal\nsignificance. \xe2\x80\xa6 And so reference to an injunction prohibiting officials from interfering with the\nright of speakers \xe2\x80\x9cin an orderly and peaceable manner\xe2\x80\x9d is definite, because everybody understands what \xe2\x80\x9corderly and peaceable\xe2\x80\x9d means. Hague v. C. I. O., 307 U.S. 496, 517. Likewise,\nany intelligent person may understand the prohibition of our statute as it has always been construed. Equally clear is the phrase \xe2\x80\x9c[matter] obscene or offensive to public morals\xe2\x80\x9d, or the phrase\n\xe2\x80\x9cdisorderly conduct.\xe2\x80\x9d Lovell v. Griffin, 303 U.S. 444.\n\xe2\x80\xa6Our statute deals \xe2\x80\x9cwith the actual, not with an imaginary condition other than the facts.\xe2\x80\x9d\nInternational Harvester Company v. Kentucky, 234 U.S. 216, 217, 223. And it deals with those\nfacts upon the basis of tendencies of words used face\xe2\x80\x93to\xe2\x80\x93face in public places which are matters\nof common knowledge and appreciation.\nExceptions overruled. All concurred.\n\nState v. Chaplinsky, 91 N.H. 310 (1941)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 419\n\n315 U.S. 568\nSupreme Court of the United States\n\nChaplinsky v. New Hampshire\nMarch 9, 1942\nMr. Justice MURPHY delivered the opinion of the Court.\nAppellant [Chaplinsky], a member of the sect known as Jehovah\xe2\x80\x99s Witnesses, was convicted\nin the municipal court of Rochester, New Hampshire, for violation of Chapter 378, Section 2,\nof the Public Laws of New Hampshire: \xe2\x80\x9cNo person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him\nby any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful\nbusiness or occupation.\xe2\x80\x9d\nThe complaint charged that appellant \xe2\x80\x9cwith force and arms, in a certain public place in said\ncity of Rochester, to wit, on the public sidewalk on the easterly side of Wakefield Street, near\nunto the entrance of the City Hall, did unlawfully repeat, the words following, addressed to the\n[City Marshal], that is to say, \xe2\x80\x98You are a God damned racketeer\xe2\x80\x99 and \xe2\x80\x98a damned Fascist and the\nwhole government of Rochester are Fascists or agents of Fascists\xe2\x80\x99 the same being offensive, derisive and annoying words and names.\xe2\x80\x9d\nHe was found guilty and the judgment of conviction was affirmed by the Supreme Court\nof the State. State v. Chaplinsky, 91 N.H. 310. [A]ppellant raised the questions that the statute\nwas invalid under the Fourteenth Amendment of the Constitution of the United States in that it\nplaced an unreasonable restraint on freedom of speech, freedom of the press, and freedom of\nworship, and because it was vague and indefinite. These contentions were overruled and the\ncase comes here on appeal.\nThere is no substantial dispute over the facts. Chaplinsky was distributing the literature of\nhis sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry\ncomplained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a\n\xe2\x80\x9cracket.\xe2\x80\x9d Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later a disturbance occurred and the traffic\nofficer on duty at the busy intersection started with Chaplinsky for the police station, but did\nnot inform him that he was under arrest or that he was going to be arrested. On the way they\nencountered Marshal Bowering who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky who then addressed to Bowering the words set forth in the complaint.\nChaplinsky\xe2\x80\x99s version of the affair was slightly different. He testified that when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply Bowering cursed\nhim and told him to come along. Appellant admitted that he said the words charged in the\ncomplaint with the exception of the name of the Deity. \xe2\x80\xa6 [T]he court below \xe2\x80\xa6 held that neither\nprovocation nor the truth of the utterance would constitute a defense to the charge.\nIt is now clear that \xe2\x80\x9cFreedom of speech and freedom of the press, which are protected by\nthe First Amendment from infringement by Congress, are among the fundamental personal\nrights and liberties which are protected by the Fourteenth Amendment from invasion by state\n\nChaplinsky v. New Hampshire, 315 U.S. 568 (1942)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c420 Religion in the Law\naction.\xe2\x80\x9d Lovell v. City of Griffin, 303 U.S. 444, 450. Freedom of worship is similarly sheltered.\nCantwell v. Connecticut, 310 U.S. 296, 303.\nAppellant assails the statute as a violation of all three freedoms, speech, press and worship,\nbut only an attack on the basis of free speech is warranted. The spoken, not the written, word\nis involved. And we cannot conceive that cursing a public officer is the exercise of religion in any\nsense of the term. But even if the activities of the appellant which preceded the incident could be\nviewed as religious in character, and therefore entitled to the protection of the Fourteenth\nAmendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute. We turn, therefore, to an examination of the statute itself.\nAllowing the broadest scope to the language and purpose of the Fourteenth Amendment, it\nis well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention\nand punishment of which have never been thought to raise any Constitutional problem. These\ninclude the lewd and obscene, the profane, the libelous, and the insulting or \xe2\x80\x9cfighting\xe2\x80\x9d words\xe2\x80\x94\nthose which by their very utterance inflict injury or tend to incite an immediate breach of the\npeace. It has been well observed that such utterances are no essential part of any exposition of\nideas, and are of such slight social value as a step to truth that any benefit that may be derived\nfrom them is clearly outweighed by the social interest in order and morality. \xe2\x80\x9cResort to epithets\nor personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under\nthat instrument.\xe2\x80\x9d Cantwell v. Connecticut, 310 U.S. 296, 309, 310.\nThe state statute here challenged comes to us authoritatively construed by the highest court\nof New Hampshire. \xe2\x80\xa6 On the authority of its earlier decisions, the state court declared that the\nstatute\xe2\x80\x99s purpose was to preserve the public peace, no words being \xe2\x80\x9cforbidden except such as\nhave a direct tendency to cause acts of violence by the person to whom, individually, the remark\nis addressed.\xe2\x80\x9d \xe2\x80\xa6\nWe are unable to say that the limited scope of the statute as thus construed contravenes the\nconstitutional right of free expression. It is a statute narrowly drawn and limited to define and\npunish specific conduct lying within the domain of state power, the use in a public place of words\nlikely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311; Thornhill\nv. Alabama, 310 U.S. 88, 105. This conclusion necessarily disposes of appellant\xe2\x80\x99s contention\nthat the statute is so vague and indefinite as to render a conviction thereunder a violation of due\nprocess. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of\nexpression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277.\nNor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary\nto demonstrate that the appellations \xe2\x80\x9cdamn racketeer\xe2\x80\x9d and \xe2\x80\x9cdamn Fascist\xe2\x80\x9d are epithets likely\nto provoke the average person to retaliation, and thereby cause a breach of the peace.\nThe refusal of the state court to admit evidence of provocation and evidence bearing on the\ntruth or falsity of the utterances is open to no Constitutional objection. Whether the facts sought\nto be proved by such evidence constitute a defense to the charge or may be shown in mitigation\nare questions for the state court to determine. Our function is fulfilled by a determination that\nthe challenged statute, on its face and as applied, does not contravene the Fourteenth Amendment.\nAffirmed.\n\nChaplinsky v. New Hampshire, 315 U.S. 568 (1942)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 421\n\n562 U.S. 443\nSupreme Court of the United States\n\nSnyder v. Phelps\nMarch 2, 2011\nChief Justice ROBERTS delivered the opinion of the Court.\nA jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier\xe2\x80\x99s funeral service. The picket signs reflected the church\xe2\x80\x99s view\nthat the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from\ntort liability for their speech in this case.\nFred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church\xe2\x80\x99s\ncongregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America\xe2\x80\x99s military. The church frequently communicates its views by\npicketing, often at military funerals. In the more than 20 years that the members of Westboro\nBaptist have publicized their message, they have picketed nearly 600 funerals\nMarine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder\xe2\x80\x99s father selected the Catholic church in the Snyders\xe2\x80\x99 hometown of Westminster,\nMaryland, as the site for his son\xe2\x80\x99s funeral. Local newspapers provided notice of the time and\nlocation of the service.\nPhelps became aware of Matthew Snyder\xe2\x80\x99s funeral and decided to travel to Maryland with\nsix other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to\npicket. On the day of the memorial service, the Westboro congregation members picketed on\npublic land adjacent to public streets near the Maryland State House, the United States Naval\nAcademy, and Matthew Snyder\xe2\x80\x99s funeral. The Westboro picketers carried signs that were largely\nthe same at all three locations. They stated, for instance: \xe2\x80\x9cGod Hates the USA/Thank God for\n9/11,\xe2\x80\x9d \xe2\x80\x9cAmerica is Doomed,\xe2\x80\x9d \xe2\x80\x9cDon\xe2\x80\x99t Pray for the USA,\xe2\x80\x9d \xe2\x80\x9cThank God for IEDs,\xe2\x80\x9d \xe2\x80\x9cThank God\nfor Dead Soldiers,\xe2\x80\x9d \xe2\x80\x9cPope in Hell,\xe2\x80\x9d \xe2\x80\x9cPriests Rape Boys,\xe2\x80\x9d \xe2\x80\x9cGod Hates Fags,\xe2\x80\x9d \xe2\x80\x9cYou\xe2\x80\x99re Going to\nHell,\xe2\x80\x9d and \xe2\x80\x9cGod Hates You.\xe2\x80\x9d\nThe church had notified the authorities in advance of its intent to picket at the time of the\nfuneral, and the picketers complied with police instructions in staging their demonstration. The\npicketing took place within a 10\xe2\x80\x93by 25\xe2\x80\x93foot plot of public land adjacent to a public street,\nbehind a temporary fence. That plot was approximately 1,000 feet from the church where the\nfuneral was held. Several buildings separated the picket site from the church. The Westboro\npicketers displayed their signs for about 30 minutes before the funeral began and sang hymns\nand recited Bible verses. None of the picketers entered church property or went to the cemetery.\nThey did not yell or use profanity, and there was no violence associated with the picketing..\nThe funeral procession passed within 200 to 300 feet of the picket site. Although Snyder\ntestified that he could see the tops of the picket signs as he drove to the funeral, he did not see\nwhat was written on the signs until later that night, while watching a news broadcast covering\nthe event.\nSnyder filed suit against Phelps, Phelps\xe2\x80\x99s daughters, and the Westboro Baptist Church (collectively Westboro or the church) in the United States District Court for the District of Maryland\nunder that court\xe2\x80\x99s diversity jurisdiction. Snyder alleged five state tort law claims: defamation,\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c422 Religion in the Law\npublicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Westboro moved for summary judgment contending, in part, that the\nchurch\xe2\x80\x99s speech was insulated from liability by the First Amendment.\nThe District Court awarded Westboro summary judgment on Snyder\xe2\x80\x99s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary\nelements of those torts. A trial was held on the remaining claims. At trial, Snyder described the\nseverity of his emotional injuries. He testified that he is unable to separate the thought of his\ndead son from his thoughts of Westboro\xe2\x80\x99s picketing, and that he often becomes tearful, angry,\nand physically ill when he thinks about it. Expert witnesses testified that Snyder\xe2\x80\x99s emotional\nanguish had resulted in severe depression and had exacerbated pre-existing health conditions.\nA jury found for Snyder on the intentional infliction of emotional distress, intrusion upon\nseclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. \xe2\x80\xa6 The District Court remitted the punitive\ndamages award to $2.1 million, but left the jury verdict otherwise intact.\nIn the Court of Appeals, Westboro\xe2\x80\x99s primary argument was that the church was entitled to\njudgment as a matter of law because the First Amendment fully protected Westboro\xe2\x80\x99s speech.\nThe Court of Appeals agreed. 580 F.3d 206, 221 (C.A.4 2009). The court reviewed the picket\nsigns and concluded that Westboro\xe2\x80\x99s statements were entitled to First Amendment protection\nbecause those statements were on matters of public concern, were not provably false, and were\nexpressed solely through hyperbolic rhetoric. We granted certiorari\xe2\x80\xa6.\nTo succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff\nmust demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones,\n281 Md. 560, 565\xe2\x80\x93566 (1977). The Free Speech Clause of the First Amendment\xe2\x80\x94\xe2\x80\x9cCongress\nshall make no law ... abridging the freedom of speech\xe2\x80\x9d\xe2\x80\x94can serve as a defense in state tort suits,\nincluding suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v.\nFalwell, 485 U.S. 46, 50\xe2\x80\x9351 (1988).\nWhether the First Amendment prohibits holding Westboro liable for its speech in this case\nturns largely on whether that speech is of public or private concern, as determined by all the\ncircumstances of the case. \xe2\x80\x9cSpeech on \xe2\x80\x98matters of public concern\xe2\x80\x99 ... is \xe2\x80\x98at the heart of the First\nAmendment\xe2\x80\x99s protection.\xe2\x80\x99\xe2\x80\x9d Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,\n758\xe2\x80\x93759 (1985) (opinion of Powell, J.). The First Amendment reflects \xe2\x80\x9ca profound national\ncommitment to the principle that debate on public issues should be uninhibited, robust, and\nwide-open.\xe2\x80\x9d New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). That is because \xe2\x80\x9cspeech\nconcerning public affairs is more than self-expression; it is the essence of self-government.\xe2\x80\x9d Garrison v. Louisiana, 379 U.S. 64, 74\xe2\x80\x9375 (1964). Accordingly, \xe2\x80\x9cspeech on public issues occupies\nthe highest rung of the hierarchy of First Amendment values, and is entitled to special protection.\xe2\x80\x9d Connick v. Myers, 461 U.S. 138, 145 (1983).\n\xe2\x80\x9c\xe2\x80\x98[N]ot all speech is of equal First Amendment importance,\xe2\x80\x99\xe2\x80\x9d however, and where matters\nof purely private significance are at issue, First Amendment protections are often less rigorous.\nHustler, at 56\xe2\x80\xa6 That is because restricting speech on purely private matters does not implicate\nthe same constitutional concerns as limiting speech on matters of public interest: \xe2\x80\x9c[T]here is no\nthreat to the free and robust debate of public issues; there is no potential interference with a\nmeaningful dialogue of ideas\xe2\x80\x9d; and the \xe2\x80\x9cthreat of liability\xe2\x80\x9d does not pose the risk of \xe2\x80\x9ca reaction\nof self-censorship\xe2\x80\x9d on matters of public import. Dun & Bradstreet, at 760. \xe2\x80\xa6\nSpeech deals with matters of public concern when it can \xe2\x80\x9cbe fairly considered as relating to\nany matter of political, social, or other concern to the community,\xe2\x80\x9d Connick, at 146, or when it\n\xe2\x80\x9cis a subject of legitimate news interest; that is, a subject of general interest and of value and\nconcern to the public,\xe2\x80\x9d San Diego, at 83\xe2\x80\x9384\xe2\x80\xa6. The arguably \xe2\x80\x9cinappropriate or controversial\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 423\ncharacter of a statement is irrelevant to the question whether it deals with a matter of public\nconcern.\xe2\x80\x9d Rankin v. McPherson, 483 U.S. 378, 387 (1987)\xe2\x80\xa6.\nDeciding whether speech is of public or private concern requires us to examine the \xe2\x80\x9ccontent,\nform, and context\xe2\x80\x9d of that speech, \xe2\x80\x9cas revealed by the whole record.\xe2\x80\x9d Dun & Bradstreet, at\n761 (quoting Connick at 147\xe2\x80\x93148). \xe2\x80\xa6 In considering content, form, and context, no factor is\ndispositive, and it is necessary to evaluate all the circumstances of the speech, including what\nwas said, where it was said, and how it was said.\nThe \xe2\x80\x9ccontent\xe2\x80\x9d of Westboro\xe2\x80\x99s signs plainly relates to broad issues of interest to society at\nlarge, rather than matters of \xe2\x80\x9cpurely private concern.\xe2\x80\x9d Dun & Bradstreet, at 759. The placards\nread \xe2\x80\x9cGod Hates the USA/Thank God for 9/11,\xe2\x80\x9d \xe2\x80\x9cAmerica is Doomed,\xe2\x80\x9d \xe2\x80\x9cDon\xe2\x80\x99t Pray for the\nUSA,\xe2\x80\x9d \xe2\x80\x9cThank God for IEDs,\xe2\x80\x9d \xe2\x80\x9cFag Troops,\xe2\x80\x9d \xe2\x80\x9cSemper Fi Fags,\xe2\x80\x9d \xe2\x80\x9cGod Hates Fags,\xe2\x80\x9d \xe2\x80\x9cMaryland Taliban,\xe2\x80\x9d \xe2\x80\x9cFags Doom Nations,\xe2\x80\x9d \xe2\x80\x9cNot Blessed Just Cursed,\xe2\x80\x9d \xe2\x80\x9cThank God for Dead Soldiers,\xe2\x80\x9d \xe2\x80\x9cPope in Hell,\xe2\x80\x9d \xe2\x80\x9cPriests Rape Boys,\xe2\x80\x9d \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell,\xe2\x80\x9d and \xe2\x80\x9cGod Hates You.\xe2\x80\x9d\nWhile these messages may fall short of refined social or political commentary, the issues they\nhighlight\xe2\x80\x94the political and moral conduct of the United States and its citizens, the fate of our\nNation, homosexuality in the military, and scandals involving the Catholic clergy\xe2\x80\x94are matters\nof public import. The signs certainly convey Westboro\xe2\x80\x99s position on those issues, in a manner\ndesigned \xe2\x80\xa6 to reach as broad a public audience as possible. And even if a few of the signs\xe2\x80\x94\nsuch as \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell\xe2\x80\x9d and \xe2\x80\x9cGod Hates You\xe2\x80\x9d\xe2\x80\x94were viewed as containing messages\nrelated to Matthew Snyder or the Snyders specifically, that would not change the fact that the\noverall thrust and dominant theme of Westboro\xe2\x80\x99s demonstration spoke to broader public issues.\nApart from the content of Westboro\xe2\x80\x99s signs, Snyder contends that the \xe2\x80\x9ccontext\xe2\x80\x9d of the\nspeech\xe2\x80\x94its connection with his son\xe2\x80\x99s funeral\xe2\x80\x94makes the speech a matter of private rather than\npublic concern. The fact that Westboro spoke in connection with a funeral, however, cannot by\nitself transform the nature of Westboro\xe2\x80\x99s speech. Westboro\xe2\x80\x99s signs, displayed on public land next\nto a public street, reflect the fact that the church finds much to condemn in modern society. Its\nspeech is \xe2\x80\x9cfairly characterized as constituting speech on a matter of public concern,\xe2\x80\x9d Connick,\n461 U.S. at 146, and the funeral setting does not alter that conclusion\xe2\x80\xa6.\nSnyder goes on to argue that Westboro\xe2\x80\x99s speech should be afforded less than full First\nAmendment protection \xe2\x80\x9cnot only because of the words\xe2\x80\x9d but also because the church members\nexploited the funeral \xe2\x80\x9cas a platform to bring their message to a broader audience.\xe2\x80\x9d There is no\ndoubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State\nHouse, and Matthew Snyder\xe2\x80\x99s funeral to increase publicity for its views and because of the relation between those sites and its views\xe2\x80\x94in the case of the military funeral, because Westboro\nbelieves that God is killing American soldiers as punishment for the Nation\xe2\x80\x99s sinful policies.\nWestboro\xe2\x80\x99s choice to convey its views in conjunction with Matthew Snyder\xe2\x80\x99s funeral made\nthe expression of those views particularly hurtful to many, especially to Matthew\xe2\x80\x99s father. The\nrecord makes clear that the applicable legal term\xe2\x80\x94\xe2\x80\x9cemotional distress\xe2\x80\x9d\xe2\x80\x94fails to capture fully\nthe anguish Westboro\xe2\x80\x99s choice added to Mr. Snyder\xe2\x80\x99s already incalculable grief. But Westboro\nconducted its picketing peacefully on matters of public concern at a public place adjacent to a\npublic street. Such space occupies a \xe2\x80\x9cspecial position in terms of First Amendment protection.\xe2\x80\x9d\nUnited States v. Grace, 461 U.S. 171, 180 (1983). \xe2\x80\x9c[W]e have repeatedly referred to public\nstreets as the archetype of a traditional public forum,\xe2\x80\x9d noting that \xe2\x80\x9c\xe2\x80\x98time out of mind\xe2\x80\x99 public\nstreets and sidewalks have been used for public assembly and debate.\xe2\x80\x9d Frisby v. Schultz, 487\nU.S. 474, 480 (1988).\nThat said, \xe2\x80\x9ceven protected speech is not equally permissible in all places and at all times.\xe2\x80\x9d\nId., at 479. \xe2\x80\xa6 Westboro\xe2\x80\x99s choice of where and when to conduct its picketing is not beyond the\nGovernment\xe2\x80\x99s regulatory reach\xe2\x80\x94it is \xe2\x80\x9csubject to reasonable time, place, or manner restrictions\xe2\x80\x9d\nthat are consistent with the standards announced in this Court\xe2\x80\x99s precedents. Clark v. Community\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c424 Religion in the Law\nfor Creative Non\xe2\x80\x93Violence, 468 U.S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, as do 43 other States and the Federal Government. \xe2\x80\xa6 To the\nextent these laws are content neutral, they raise very different questions from the tort verdict at\nissue in this case. Maryland\xe2\x80\x99s law, however, was not in effect at the time of the events at issue\nhere, so we have no occasion to consider how it might apply to facts such as those before us, or\nwhether it or other similar regulations are constitutional\xe2\x80\xa6.\nSimply put, the church members had the right to be where they were. Westboro alerted\nlocal authorities to its funeral protest and fully complied with police guidance on where the\npicketing could be staged. The picketing was conducted under police supervision some 1,000\nfeet from the church, out of the sight of those at the church. The protest was not unruly; there\nwas no shouting, profanity, or violence.\nThe record confirms that any distress occasioned by Westboro\xe2\x80\x99s picketing turned on the\ncontent and viewpoint of the message conveyed, rather than any interference with the funeral\nitself. A group of parishioners standing at the very spot where Westboro stood, holding signs\nthat said \xe2\x80\x9cGod Bless America\xe2\x80\x9d and \xe2\x80\x9cGod Loves You,\xe2\x80\x9d would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.\nGiven that Westboro\xe2\x80\x99s speech was at a public place on a matter of public concern, that\nspeech is entitled to \xe2\x80\x9cspecial protection\xe2\x80\x9d under the First Amendment. Such speech cannot be\nrestricted simply because it is upsetting or arouses contempt. \xe2\x80\x9cIf there is a bedrock principle\nunderlying the First Amendment, it is that the government may not prohibit the expression of\nan idea simply because society finds the idea itself offensive or disagreeable.\xe2\x80\x9d Texas v. Johnson,\n491 U.S. 397, 414 (1989)\xe2\x80\xa6.\nThe jury here was instructed that it could hold Westboro liable for intentional infliction of\nemotional distress based on a finding that Westboro\xe2\x80\x99s picketing was \xe2\x80\x9coutrageous.\xe2\x80\x9d \xe2\x80\x9cOutrageousness,\xe2\x80\x9d however, is a highly malleable standard with \xe2\x80\x9can inherent subjectiveness about it\nwhich would allow a jury to impose liability on the basis of the jurors\xe2\x80\x99 tastes or views, or perhaps\non the basis of their dislike of a particular expression.\xe2\x80\x9d Hustler, 485 U.S. at 55. In a case such\nas this, a jury is \xe2\x80\x9cunlikely to be neutral with respect to the content of [the] speech,\xe2\x80\x9d posing \xe2\x80\x9ca\nreal danger of becoming an instrument for the suppression of ... vehement, caustic, and sometimes unpleasant\xe2\x80\x9d expression. Bose Corp., 466 U.S. at 510. Such a risk is unacceptable; \xe2\x80\x9cin\npublic debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate \xe2\x80\x98breathing space\xe2\x80\x99 to the freedoms protected by the First Amendment.\xe2\x80\x9d Boos v. Barry, 485\nU.S. 312, 322 (1988) What Westboro said, in the whole context of how and where it chose to\nsay it, is entitled to \xe2\x80\x9cspecial protection\xe2\x80\x9d under the First Amendment, and that protection cannot\nbe overcome by a jury finding that the picketing was outrageous.\nFor all these reasons, the jury verdict imposing tort liability on Westboro for intentional\ninfliction of emotional distress must be set aside.\nThe jury also found Westboro liable for the state law torts of intrusion upon seclusion and\ncivil conspiracy. \xe2\x80\xa6 Snyder argues that even assuming Westboro\xe2\x80\x99s speech is entitled to First\nAmendment protection generally, the church is not immunized from liability for intrusion upon\nseclusion because Snyder was a member of a captive audience at his son\xe2\x80\x99s funeral. We do not\nagree. In most circumstances, \xe2\x80\x9cthe Constitution does not permit the government to decide which\ntypes of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, the burden normally falls upon the viewer to avoid further\nbombardment of his sensibilities simply by averting his eyes.\xe2\x80\x9d Erznoznik v. Jacksonville, 422\nU.S. 205, 210\xe2\x80\x93211 (1975). As a result, \xe2\x80\x9cthe ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.\xe2\x80\x9d\nCohen v. California, 403 U.S. 15, 21 (1971).\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 425\nAs a general matter, we have applied the captive audience doctrine only sparingly to protect\nunwilling listeners from protected speech. For example, we have upheld a statute allowing a\nhomeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept.,\n397 U.S. 728, 736\xe2\x80\x93738 (1970), and an ordinance prohibiting picketing \xe2\x80\x9cbefore or about\xe2\x80\x9d any\nindividual\xe2\x80\x99s residence, Frisby, 487 U.S. at 477, 484\xe2\x80\x93485.\nHere, Westboro stayed well away from the memorial service. Snyder could see no more\nthan the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here. Because we find that the First Amendment\nbars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion\xe2\x80\x94the alleged unlawful activity Westboro conspired to accomplish\xe2\x80\x94we must likewise\nhold that Snyder cannot recover for civil conspiracy based on those torts\xe2\x80\xa6.\nWestboro believes that America is morally flawed; many Americans might feel the same\nabout Westboro. Westboro\xe2\x80\x99s funeral picketing is certainly hurtful and its contribution to public\ndiscourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was\nindeed planned to coincide with Matthew Snyder\xe2\x80\x99s funeral, but did not itself disrupt that funeral,\nand Westboro\xe2\x80\x99s choice to conduct its picketing at that time and place did not alter the nature of\nits speech\xe2\x80\xa6.\nThe judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.\nIt is so ordered.\nJustice BREYER, concurring.\n\xe2\x80\xa6While I agree with the Court\xe2\x80\x99s conclusion that the picketing addressed matters of public\nconcern, I do not believe that our First Amendment analysis can stop at that point. A State can\nsometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz,\n487 U.S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the\nassault (being newsworthy) would provide A with an opportunity to transmit to the public his\nviews on a matter of public concern. The constitutionally protected nature of the end would not\nshield A\xe2\x80\x99s use of unlawful, unprotected means. And in some circumstances the use of certain\nwords as means would be similarly unprotected. See Chaplinsky v. New Hampshire, 315 U.S.\n568 (1942) (\xe2\x80\x9cfighting words\xe2\x80\x9d).\nThe dissent recognizes that the means used here consist of speech [and] requires us to ask\nwhether our holding unreasonably limits liability for intentional infliction of emotional distress\xe2\x80\x94to the point where A (in order to draw attention to his views on a public matter) might\nlaunch a verbal assault upon B, a private person, publicly revealing the most intimate details of\nB\xe2\x80\x99s private life, while knowing that the revelation will cause B severe emotional harm. Does our\ndecision leave the State powerless to protect the individual against invasions of, e.g., personal\nprivacy, even in the most horrendous of such circumstances?\nAs I understand the Court\xe2\x80\x99s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed\nthe underlying facts in detail, as will sometimes prove necessary where First Amendment values\nand state-protected (say, privacy-related) interests seriously conflict. \xe2\x80\xa6 That review makes clear\nthat Westboro\xe2\x80\x99s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. \xe2\x80\xa6 To uphold the application of\nstate law in these circumstances would punish Westboro for seeking to communicate its views\non matters of public concern without proportionately advancing the State\xe2\x80\x99s interest in protecting\nits citizens against severe emotional harm\xe2\x80\xa6.\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c426 Religion in the Law\nJustice ALITO, dissenting.\nOur profound national commitment to free and open debate is not a license for the vicious\nverbal assault that occurred in this case.\nPetitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine\nLance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right\nof any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first\nissued a press release and thus turned Matthew\xe2\x80\x99s funeral into a tumultuous media event. They\nthen appeared at the church, approached as closely as they could without trespassing, and\nlaunched a malevolent verbal attack on Matthew and his family at a time of acute emotional\nvulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court\nnow holds that the First Amendment protected respondents\xe2\x80\x99 right to brutalize Mr. Snyder. I\ncannot agree.\nRespondents and other members of their church have strong opinions on certain moral,\nreligious, and political issues, and the First Amendment ensures that they have almost limitless\nopportunities to express their views\xe2\x80\xa6.\nIt does not follow, however, that they may intentionally inflict severe emotional injury on\nprivate persons at a time of intense emotional sensitivity by launching vicious verbal attacks that\nmake no contribution to public debate. To protect against such injury, \xe2\x80\x9cmost if not all jurisdictions\xe2\x80\x9d permit recovery in tort for the intentional infliction of emotional distress (or IIED). Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988).\nThis is a very narrow tort\xe2\x80\xa6. To recover, a plaintiff must show that the conduct at issue\ncaused harm that was truly severe. \xe2\x80\xa6 A plaintiff must also establish that the defendant\xe2\x80\x99s conduct\nwas \xe2\x80\x9cso outrageous in character, and so extreme in degree, as to go beyond all possible bounds\nof decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.\xe2\x80\x9d\nHarris, at 567 (quoting Restatement (Second) of Torts \xc2\xa7 46, Comment d). Although the elements\nof the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that\nthose tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. \xe2\x80\xa6 Instead, they maintained that the First Amendment gave them a license\nto engage in such conduct. They are wrong\nIt is well established that a claim for the intentional infliction of emotional distress can be\nsatisfied by speech\xe2\x80\xa6. This Court has recognized that words may \xe2\x80\x9cby their very utterance inflict\ninjury\xe2\x80\x9d and that the First Amendment does not shield utterances that form \xe2\x80\x9cno essential part of\nany exposition of ideas, and are of such slight social value as a step to truth that any benefit that\nmay be derived from them is clearly outweighed by the social interest in order and morality.\xe2\x80\x9d\nChaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see also Cantwell v. Connecticut, 310\nU.S. 296, 310 (1940) \xe2\x80\xa6 When grave injury is intentionally inflicted by means of an attack like\nthe one at issue here, the First Amendment should not interfere with recovery.\nIn this case, respondents brutally attacked Matthew Snyder, and this attack, which was\nalmost certain to inflict injury, was central to respondents\xe2\x80\x99 well-practiced strategy for attracting\npublic attention.\nOn the morning of Matthew Snyder\xe2\x80\x99s funeral, respondents could have chosen to stage their\nprotest at countless locations. They could have picketed the United States Capitol, the White\nHouse, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting\nstations in this country. They could have returned to the Maryland State House or the United\nStates Naval Academy, where they had been the day before. They could have selected any public\nroad where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in\nthe United States.) They could have staged their protest in a public park. (There are more than\n20,000 public parks in this country.) They could have chosen any Catholic church where no\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 427\nfuneral was taking place. (There are nearly 19,000 Catholic churches in the United States.) But\nof course, a small group picketing at any of these locations would have probably gone unnoticed.\nThe Westboro Baptist Church, however, has devised a strategy that remedies this problem.\nAs the Court notes, church members have protested at nearly 600 military funerals. They have\nalso picketed the funerals of police officers, firefighters, and the victims of natural disasters, accidents, and shocking crimes. And in advance of these protests, they issue press releases to ensure\nthat their protests will attract public attention.\nThis strategy works because it is expected that respondents\xe2\x80\x99 verbal assaults will wound the\nfamily and friends of the deceased and because the media is irresistibly drawn to the sight of\npersons who are visibly in grief. The more outrageous the funeral protest, the more publicity the\nWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9\xe2\x80\x93year\xe2\x80\x93old girl killed in the shooting spree in Tucson\xe2\x80\x94proclaiming\nthat she was \xe2\x80\x9cbetter off dead\xe2\x80\x9d\xe2\x80\x94their announcement was national news, and the church was\nable to obtain free air time on the radio in exchange for canceling its protest. Similarly, in 2006,\nthe church got air time on a talk radio show in exchange for canceling its threatened protest at\nthe funeral of five Amish girls killed by a crazed gunman.\nIn this case, respondents implemented the Westboro Baptist Church\xe2\x80\x99s publicity-seeking\nstrategy. Their press release stated that they were going \xe2\x80\x9cto picket the funeral of Lance Cpl.\nMatthew A. Snyder\xe2\x80\x9d because \xe2\x80\x9cGod Almighty killed Lance Cpl. Snyder. He died in shame, not\nhonor\xe2\x80\x94for a fag nation cursed by God.... Now in Hell\xe2\x80\x94sine die.\xe2\x80\x9d This announcement guaranteed that Matthew\xe2\x80\x99s funeral would be transformed into a raucous media event and began the\nwounding process. \xe2\x80\xa6 On the day of the funeral, respondents, true to their word, displayed\nplacards that conveyed the message promised in their press release. Signs stating \xe2\x80\x9cGod Hates\nYou\xe2\x80\x9d and \xe2\x80\x9cThank God for Dead Soldiers\xe2\x80\x9d reiterated the message that God had caused Matthew\xe2\x80\x99s death in retribution for his sins. Others, stating \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell\xe2\x80\x9d and \xe2\x80\x9cNot Blessed\nJust Cursed,\xe2\x80\x9d conveyed the message that Matthew was \xe2\x80\x9cin Hell\xe2\x80\x94sine die.\xe2\x80\x9d\nEven if those who attended the funeral were not alerted in advance about respondents\xe2\x80\x99 intentions, the meaning of these signs would not have been missed. Since respondents chose to\nstage their protest at Matthew Snyder\xe2\x80\x99s funeral and not at any of the other countless available\nvenues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents\xe2\x80\x99 signs\xe2\x80\x94e.g., \xe2\x80\x9cGod Hates\nYou,\xe2\x80\x9d \xe2\x80\x9cNot Blessed Just Cursed,\xe2\x80\x9d and \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell\xe2\x80\x9d\xe2\x80\x94would have likely been interpreted as referring to God\xe2\x80\x99s judgment of the deceased.\nOther signs would most naturally have been understood as suggesting\xe2\x80\x94falsely\xe2\x80\x94that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading\n\xe2\x80\x9cGod Hates Fags,\xe2\x80\x9d \xe2\x80\x9cSemper Fi Fags,\xe2\x80\x9d \xe2\x80\x9cFags Doom Nations,\xe2\x80\x9d and \xe2\x80\x9cFag Troops.\xe2\x80\x9d Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs\nwould have likely concluded that they were meant to suggest that the deceased was a homosexual.\nAfter the funeral, the Westboro picketers reaffirmed the meaning of their protest. They\nposted an online account entitled \xe2\x80\x9cThe Burden of Marine Lance Cpl. Matthew A. Snyder. The\nVisit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!\xe2\x80\x9d Belying any suggestion that they had simply made general comments about homosexuality, the\nCatholic Church, and the United States military, the \xe2\x80\x9cepic\xe2\x80\x9d addressed the Snyder family directly:\nGod blessed you, Mr. and Mrs. Snyder, with a resource and his name was\nMatthew. He was an arrow in your quiver! In thanks to God for the comfort\nthe child could bring you, you had a DUTY to prepare that child to serve the\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c428 Religion in the Law\nLORD his GOD\xe2\x80\x94PERIOD! You did JUST THE OPPOSITE\xe2\x80\x94you raised\nhim for the devil.\n\xe2\x80\xa6They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they\ngave the Roman Catholic monster they condemned their own souls. They\nalso, in supporting satanic Catholicism, taught Matthew to be an idolater.\nThen after all that they sent him to fight for the United States of Sodom, a\nfilthy country that is in lock step with his evil, wicked, and sinful manner of\nlife, putting him in the cross hairs of a God that is so mad He has smoke\ncoming from his nostrils and fire from his mouth! How dumb was that?\nIn light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a\nCatholic and (2) he was a member of the United States military. Both Matthew and petitioner\nwere private figures, and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of\npublic concern, speech regarding Matthew Snyder\xe2\x80\x99s purely private conduct does not\xe2\x80\xa6.\nThe Court concludes that respondents\xe2\x80\x99 speech was protected by the First Amendment for\nessentially three reasons, but none is sound.\nFirst\xe2\x80\x94and most important\xe2\x80\x94the Court finds that \xe2\x80\x9cthe overall thrust and dominant theme\nof [their] demonstration spoke to\xe2\x80\x9d broad public issues. As I have attempted to show, this portrayal is quite inaccurate; respondents\xe2\x80\x99 attack on Matthew was of central importance\xe2\x80\xa6.\nSecond, the Court suggests that respondents\xe2\x80\x99 personal attack on Matthew Snyder is entitled\nto First Amendment protection because it was not motivated by a private grudge, but I see no\nbasis for the strange distinction that the Court appears to draw. Respondents\xe2\x80\x99 motivation\xe2\x80\x94\xe2\x80\x9cto\nincrease publicity for its views,\xe2\x80\x9d\xe2\x80\x94did not transform their statements attacking the character of\na private figure into statements that made a contribution to debate on matters of public concern.\xe2\x80\xa6\nThird, the Court finds it significant that respondents\xe2\x80\x99 protest occurred on a public street,\nbut this fact alone should not be enough to preclude IIED liability. \xe2\x80\xa6[There] is no reason why\na public street in close proximity to the scene of a funeral should be regarded as a free-fire zone\nin which otherwise actionable verbal attacks are shielded from liability. If the First Amendment\npermits the States to protect their residents from the harm inflicted by such attacks\xe2\x80\x94and the\nCourt does not hold otherwise\xe2\x80\x94then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had \xe2\x80\x9cthe right to\nbe where he was.\xe2\x80\x9d \xe2\x80\xa6\nRespondents\xe2\x80\x99 outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered. In order to have a society in which public issues can be openly and vigorously debated, it\nis not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent.\n\nSnyder v. Phelps, 562 U.S. 443 (2011)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 429\n\n805 F.3d 228\nUnited States Court of Appeals,\nSixth Circuit\n\nBible Believers v. Wayne County\nOct. 28, 2015\n\nCLAY, Circuit Judge.\nPlaintiffs Ruben Chavez (\xe2\x80\x9cIsrael\xe2\x80\x9d), Arthur Fisher, Joshua DeLosSantos, and the Bible Believers (collectively \xe2\x80\x9cthe Bible Believers\xe2\x80\x9d or \xe2\x80\x9cPlaintiffs\xe2\x80\x9d) appeal the district court order entering\nsummary judgment in favor of Defendants Sheriff Benny N. Napoleon, Deputy Chief Dennis\nRichardson, Deputy Chief Mike Jaafar, and Wayne County (collectively \xe2\x80\x9cWayne County\xe2\x80\x9d or\n\xe2\x80\x9cDefendants\xe2\x80\x9d). Plaintiffs initiated this constitutional tort action pursuant to 42 U.S.C. \xc2\xa7 1983,\nalleging that Defendants violated their First Amendment rights to freedom of speech and free\nexercise of religion, as well as their Fourteenth Amendment right to equal protection of the\nlaws\xe2\x80\xa6.\nThis case calls on us to confirm the boundaries of free speech protections in relation to\nangry, hostile, or violent crowds that seek to silence a speaker with whom the crowd disagrees.\nSet against the constitutional right to freedom of speech, we must balance the state\xe2\x80\x99s interest in\ninsuring public safety and preventing breaches of the peace. The scenario presented by this case,\nknown as the \xe2\x80\x9checkler\xe2\x80\x99s veto,\xe2\x80\x9d occurs when police silence a speaker to appease the crowd and\nstave off a potentially violent altercation. The particular facts of this case involve a group of selfdescribed Christian evangelists preaching hate and denigration to a crowd of Muslims, some of\nwhom responded with threats of violence. The police thereafter removed the evangelists to restore the peace\xe2\x80\xa6.\nDearborn\xe2\x80\x94home of the world headquarters of the Ford Motor Company\xe2\x80\x94is a city located\nin Wayne County, Michigan, that borders Detroit and has a stable population of approximately\n100,000 people. Dearborn is also home to one of the largest populations of Arab Americans in\nthe country\xe2\x80\x94second only to New York City\xe2\x80\xa6.\nBeginning in 1996 and continuing for 17 years thereafter, each June, Dearborn celebrated\nits Arab heritage and culture by hosting the Arab International Festival. The Festival, which was\nfree to the public, featured Middle Eastern food, music, artisan booths, cultural acts, and other\namusements, including carnival rides. A principal purpose of the Festival was to promote cultural exchange. Each year, the Festival took place on a stretch of Warren Avenue, covering several blocks temporarily closed to vehicular traffic. The street became a pedestrian thoroughfare\nlined with vendors and information booths\xe2\x80\xa6. The Festival attracted people from around the\nworld, and by 2012, it was the largest festival of its kind in the United States, annually drawing\nmore than 300,000 people over the course of three days.\nGiven the size of attendance and the Festival\xe2\x80\x99s focus on cultural exchange, a diverse array\nof religious groups requested permission to set up information booths on the Festival grounds.\nThe Festival also had a history of attracting certain Christian evangelists who preferred to roam\nfree among the crowd and proselytize to the large number of Muslims who were typically in\nattendance each year\xe2\x80\xa6.\nThe Bible Believers were among the self-described evangelical groups that attended the Festival for the purpose of spreading their Christian beliefs. The founder and leader of the Bible\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c430 Religion in the Law\nBelievers, known as \xe2\x80\x9cIsrael,\xe2\x80\x9d testified that due to his sincerely held religious beliefs he was required \xe2\x80\x9cto try and convert non-believers, and call sinners to repent.\xe2\x80\x9d Therefore, Israel and his\nBible Believers regularly engaged in street preaching, which consisted of advocating for their\nChristian beliefs and parading around with banners, signs, and tee-shirts that displayed messages\nassociated with those beliefs. Many of the signs and messages displayed by the Bible Believers\ncommunicated overtly anti-Muslim sentiments.\nIn 2011, Israel attended the Festival with a number of Bible Believers to preach to the crowd\nof Festival-goers. \xe2\x80\xa6 The quintessential attribute of the Bible Believers\xe2\x80\x99 message was intolerance,\nprincipally proclaiming that Mohammed was a false prophet who lied to them and that Muslims\nwould be damned to hell if they failed to repent by rejecting Islam. This message was not well\nreceived by certain elements of the crowd. The Bible Believers allege that they were assaulted by\nvarious members of the crowd and that the Wayne County Sheriff\xe2\x80\x99s Office (WCSO) initially\nwatched and did nothing, then eventually silenced the Bible Believers by kicking them out and\nrequiring them to leave the Festival grounds. They also alleged that Deputy Chief Jaafar personally arrested one of the Bible Believers to the delight of the \xe2\x80\x9cviolent Muslims.\xe2\x80\x9d No formal action\nwas taken by either party as a result of this alleged incident.\nIsrael and his Bible Believers determined to return to Dearborn the following year for the\n2012 Arab International Festival. Prior to the Festival, the Bible Believers, through their counsel,\nsent a letter to Defendants Wayne County and Sheriff Napoleon recounting the Bible Believers\xe2\x80\x99\nexperience at the 2011 Festival. The letter also apprised Defendants of the Bible Believers\xe2\x80\x99 expectations [that the group would be allowed to demonstrate, that police would act to protect\nthem, and that any effort by police to quiet them would be unconstitutional.]\nWayne County, through its Corporation Counsel, responded by letter on June 14, 2012.\nThe letter indicated Wayne County\xe2\x80\x99s disagreement with respect to both the characterization of\nevents at the 2011 Festival and with the Bible Believers\xe2\x80\x99 interpretation of the law regarding the\nWCSO\xe2\x80\x99s duties to the public and to the Bible Believers\xe2\x80\xa6. The letter went on to \xe2\x80\x9cremind [the\nBible Believers] that, under state law and local ordinances, individuals can be held criminally\naccountable for conduct which has the tendency to incite riotous behavior or otherwise disturb\nthe peace.\xe2\x80\x9d \xe2\x80\xa6\nEarlier that month, Deputy Chief Jaafar circulated an Operations Plan memorandum, addressed to Sheriff Napoleon, which outlined the policies and procedures to be followed by the\nWCSO throughout the course of the 2012 Arab International Festival. The second item in the\nmemorandum addressed potential \xe2\x80\x9csituation[s]\xe2\x80\x9d that could lead to trouble at the Festival.\nAmong the purported situations was \xe2\x80\x9ca radical group calling themselves \xe2\x80\x98The Bible Believers\xe2\x80\x99\xe2\x80\x9d\nthat had been attracted to the Festival in recent years, and that would \xe2\x80\x9cpossibly show up at the\nfestival trying to provoke [the WCSO] in a negative manner and attempt to capture the negativity on video camera.\xe2\x80\x9d \xe2\x80\xa6\nThe WCSO decided to employ both regular and reserve officers \xe2\x80\x9cto ensure public safety,\nkeep the peace, and maintain order in the event there is a disturbance.\xe2\x80\x9d \xe2\x80\xa6 The Operations Plan\nlisted 51 officers, most of whom were assigned to one of six zones. Among this group, there\nwere also 19 officers (including 6 mounted units) who were not assigned to any one specific\nzone, allowing them to respond to changing needs and circumstances\nThe Bible Believers returned to Dearborn in 2012, at approximately 5:00 p.m. on Friday,\nJune 15, for the 17th Annual Arab International Festival. As they had done the previous year,\nthe Bible Believers traveled to the Festival so that they could exercise their sincerely held religious\nbeliefs. Unfortunately for the Festival-goers, those beliefs compelled Israel and his followers to\nhurl words and display messages offensive to a predominantly Muslim crowd, many of whom\nwere adolescents. These messages were written on their tee-shirts and on the banners and signs\nthat they carried. The following is a sampling of the Bible Believers\xe2\x80\x99 messages:\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 431\nIslam Is A Religion of Blood and Murder\nJesus Is the Way, the Truth and the Life. All Others Are Thieves and Robbers\nPrepare to Meet Thy God\xe2\x80\x94Amos 4:12\nJesus Is the Judge, Therefore Repent, Be Converted That Your Sins May Be\nBlotted Out\nTrust Jesus, Repent and Believe in Jesus\nOnly Jesus Christ Can Save You From Sin and Hell\nTurn or Burn\nFear God\nIn addition to the signs, one of the Bible Believers carried a severed pig\xe2\x80\x99s head on a spike,\nbecause, in Israel\xe2\x80\x99s own words, it would \xe2\x80\x9ckeep [the Muslims] at bay\xe2\x80\x9d since \xe2\x80\x9cunfortunately, they\nare kind of petrified of that animal.\xe2\x80\x9d\nLaden with this imagery, the Bible Believers entered the Festival and began their preaching.\n\xe2\x80\xa6 The first speaker told the crowd that they should not follow \xe2\x80\x9ca false prophet,\xe2\x80\x9d who was\nnothing but an \xe2\x80\x9cunclean drawing\xe2\x80\x9d and \xe2\x80\x9ca pedophile.\xe2\x80\x9d He continued by telling what was by\nthen a group made up of approximately thirty teenagers that \xe2\x80\x9c[y]our religion will send you to\nhell.\xe2\x80\x9d Tensions started to rise as a few youths became incensed after the speaker taunted, \xe2\x80\x9cYou\nbelieve in a prophet who is a pervert. Your prophet who wants to molest a child,\xe2\x80\x9d and \xe2\x80\x9cGod\nwill reject you. God will put your religion into hellfire when you die.\xe2\x80\x9d This continued as a few\nof the teens became agitated, until one youth simply told his friends to \xe2\x80\x9cquit giving them attention,\xe2\x80\x9d convincing some members of the crowd to disperse.\nAfter approximately seven minutes of proselytizing, some elements of the crowd began to\nexpress their anger by throwing plastic bottles and other debris at the Bible Believers. An officer\nwas captured on video observing the scene without intervening or reprimanding the juvenile\noffenders. The size of the crowd ebbed and flowed. At one point an officer approached the Bible\nBelievers and commanded that the speakers stop using a megaphone or be cited for violating\ncity ordinances. The Bible Believers relented, but also responded by noting that \xe2\x80\x9cthese angry\nkids are a little bit more vicious than the megaphone.\xe2\x80\x9d A few minutes later, an officer did ask\nthe kids to back up and subsequently removed one of the teenagers who he saw throwing a\nbottle. However, all police presence and intervention dissipated after this minimal and isolated\nintervention.\nThe Bible Believers continued preaching for another ten minutes without the megaphone,\nall while a growing group of teenagers jeered and heckled, some throwing bottles and others\nshouting profanities. At one point, a parent stepped in to reprimand his child for participating\nin the assault. The onslaught reached its climax when a few kids began throwing larger items\nsuch as milk crates. By that time, the Bible Believers had stopped all speechmaking whatsoever\xe2\x80\xa6.\nA few minutes later, the crowd of youths became quiet after four mounted officers simply\nrode by\xe2\x80\xa6. The calm persisted while Israel gave an interview to a local news crew. But once this\ninterview ended, and the police and camera crews left the scene, the Bible Believers again were\nassaulted with flying debris. The Bible Believers turned away from the crowd and started moving\nthrough the Festival for a second time. A large contingent of children ran after them, and the\nrelatively light cascade of debris intensified into a barrage of bottles, eggs, and other debris being\nhurled upon the Bible Believers. \xe2\x80\xa6 At some point during the deluge, Israel was struck in the\nface, which resulted in him suffering a small laceration.\nWhen an officer arrived on the scene a few minutes later, the children\xe2\x80\x99s belligerence and the\nassaultive behavior again ceased. The officer bellowed at a few youths to move out of the way;\nthey complied immediately. He then told Israel, \xe2\x80\x9cyou are a danger to public safety right now,\xe2\x80\x9d\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c432 Religion in the Law\nand stated that the WCSO did not have the manpower to keep the Bible Believers safe. The\nofficer then suggested that the Bible Believers always \xe2\x80\x9chave the option to leave,\xe2\x80\x9d while he simultaneously ignored Israel\xe2\x80\x99s plea that some sort of police presence just remain in the general\nvicinity. The officer departed, and the bottle throwing resumed.\nA few minutes later, a group of officers returned to the area and cut a path through the\ncrowd in order to approach Israel and his followers. Deputy Chiefs Richardson and Jaafar\npulled Israel aside for the purpose of telling him that the Bible Believers would be escorted out\nof the Festival. But Israel responded that he was unprepared to leave without having the opportunity to finish walking his parade route while exercising his First Amendment rights.\nRichardson explained to Israel, \xe2\x80\x9cWe have the responsibility of policing the entire festival,\nand obviously your conduct especially is causing this disturbance and it is a direct threat to the\nsafety of everyone here.\xe2\x80\x9d He also noted that \xe2\x80\x9cpart of the reason they throw this stuff ... is that\nyou tell them stuff that enrages them.\xe2\x80\x9d \xe2\x80\xa6 He stated, \xe2\x80\x9cya know, apparently what you are saying\nto them and what they are saying back to you is creating danger.\xe2\x80\x9d Richardson continued suggesting that Israel leave, but Israel refused to do so unless the WCSO was prepared to threaten\nIsrael with the prospect of being arrested. \xe2\x80\xa6 When Israel again inquired whether the Bible Believers would be arrested if they did not leave the Festival, Richardson [said] they would \xe2\x80\x9cprobably\xe2\x80\x9d be cited if they did not allow themselves to be escorted out. He thereafter told Israel that\nthe Bible Believers were being \xe2\x80\x9cdisorderly,\xe2\x80\x9d to which Israel replied, incredulously, \xe2\x80\x9cI would assume 200 angry Muslim children throwing bottles is more of a threat than a few guys with\nsigns.\xe2\x80\x9d\nFollowing this exchange, Deputy Chiefs Richardson and Jaafar conferred with Corporation\nCounsel. \xe2\x80\xa6 Richardson returned to speak with Israel and confirmed that Israel and his Bible\nBelievers would be cited for disorderly conduct if they did not immediately leave the Festival. \xe2\x80\xa6\nIsrael complied, and the Bible Believers were escorted out of the Festival by more than a dozen\nofficers\xe2\x80\xa6. The Bible Believers loaded into a van and departed. However, two WCSO cruisers\nimmediately began following the van and pulled the Bible Believers over within only a few blocks\nof the Festival\xe2\x80\x94a third cruiser pulled up shortly thereafter. Officers claimed that the Bible Believers were stopped because they had removed the license plate from their vehicle prior to their\ndeparture\xe2\x80\xa6.\nThe WCSO made a post-operation report summarizing its version of the day\xe2\x80\x99s events. The\nreport noted that the WCSO was \xe2\x80\x9cable to keep reasonable control of civil peace, but as the\ncrowd progressed around the protestors to an unsafe level, we suggested to the protestors to\nleave the area immediately because public safety was being jeopardized.\xe2\x80\x9d The report further\nnoted that \xe2\x80\x9cany subjects that were seen throwing objects were immediately taken into custody.\xe2\x80\x9d\nThey apparently did not see very much. Only one citation was issued to a 21\xe2\x80\x93year old man who\nwas caught throwing a bottle. The WCSO officers also issued three verbal warnings and briefly\ndetained three juveniles, ranging in age from twelve to seventeen, before ultimately releasing\nthem to the custody of their respective parents.\nIn summary, the Bible Believers attended the 2012 Festival for the purpose of exercising\ntheir First Amendment rights by spreading their anti-Islam religious message. When a crowd of\nyouthful hecklers gathered around the Bible Believers, the police did nothing. When the hecklers\nbegan throwing bottles and other garbage at the Bible Believers, a WCSO officer intervened only\nto demand that the Bible Believers stop utilizing their megaphone to amplify their speech. Virtually absent from the video in the record is any indication that the police attempted to quell the\nviolence being directed toward the Bible Believers by the lawless crowd of adolescents. Despite\nthis apparent lack of effort to maintain any semblance of order at the Festival, each time the\npolice appeared on the video \xe2\x80\xa6 the agitated crowd became subdued and orderly simply due the\nauthoritative presence cast by the police officers who were then in close proximity. Only once is\nan officer seen removing one of the bottle-throwing teens. \xe2\x80\xa6 The Bible Believers were thereafter\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 433\nescorted from the Festival and ticketed by a large group of WCSO officers for removing the\nlicense plate from their van.\nOn September 25, 2012, the Bible Believers initiated this suit, pursuant to 42 U.S.C. \xc2\xa7 1983,\nin the United States District Court for the Eastern District of Michigan. The complaint alleged\nthat Defendants violated the Bible Believers\xe2\x80\x99 rights of free speech and free exercise, protected by\nthe First Amendment, as well as their right to equal protection of the laws, guaranteed by the\nFourteenth Amendment. \xe2\x80\xa6 The district court issued an opinion granting Defendants\xe2\x80\x99 motion\nfor summary judgment. \xe2\x80\xa6 [A] three-judge panel of this Court \xe2\x80\xa6 in a split decision, affirmed\nthe judgment of the district court granting summary judgment\xe2\x80\xa6. The Bible Believers petitioned\nfor en banc rehearing. We granted that petition\xe2\x80\xa6.\nFree-speech claims require a three-step inquiry: first, we determine whether the speech at\nissue is afforded constitutional protection; second, we examine the nature of the forum where\nthe speech was made; and third, we assess whether the government\xe2\x80\x99s action in shutting off the\nspeech was legitimate, in light of the applicable standard of review. Cornelius v. NAACP Legal\nDef. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); Saieg, 641 F.3d at 734\xe2\x80\x9335.\nWe need only to address steps one and three because the parties agree that the Festival constituted a traditional public forum available to all forms of protected expression. \xe2\x80\xa6 Ultimately,\nwe find that Defendants violated the Bible Believers\xe2\x80\x99 First Amendment rights because there can\nbe no legitimate dispute based on this record that the WCSO effectuated a heckler\xe2\x80\x99s veto by\ncutting off the Bible Believers\xe2\x80\x99 protected speech in response to a hostile crowd\xe2\x80\x99s reaction\xe2\x80\xa6.\nThe First Amendment offers sweeping protection that allows all manner of speech to enter\nthe marketplace of ideas. This protection applies to loathsome and unpopular speech with the\nsame force as it does to speech that is celebrated and widely accepted. The protection would be\nunnecessary if it only served to safeguard the majority views. In fact, it is the minority view,\nincluding expressive behavior that is deemed distasteful and highly offensive to the vast majority\nof people, that most often needs protection under the First Amendment. See, e.g., Nat\xe2\x80\x99l Socialist\nParty of Am. v. Vill. of Skokie, 432 U.S. 43, 43\xe2\x80\x9344 (1977) (recognizing First Amendment rights\nof Neo Nazis seeking to march with swastikas and to distribute racist and anti-Semitic propaganda in a predominantly Jewish community); Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)\n(recognizing the First Amendment rights of Ku Klux Klan members to advocate for white supremacy-based political reform achieved through violent means); Texas v. Johnson, 491 U.S.\n397, 405\xe2\x80\x9306 (1989) (recognizing flag burning as a form of political expression protected by the\nFirst Amendment); Snyder, 562 U.S. 443, 454\xe2\x80\x9356 (2011) (recognizing a religious sect\xe2\x80\x99s right to\npicket military funerals)\xe2\x80\xa6.\nDespite the First Amendment\xe2\x80\x99s broad sweep, not all speech is entitled to its sanctuary. There\nare a limited number of categorical exclusions from the comprehensive protection offered by the\nFree Speech Clause. \xe2\x80\xa6 Two areas of unprotected speech that have particular relevance to the\ninteraction between offensive speakers and hostile crowds are \xe2\x80\x9cincitement to violence\xe2\x80\x9d (also\nknown as \xe2\x80\x9cincitement to riot\xe2\x80\x9d) and \xe2\x80\x9cfighting words.\xe2\x80\x9d \xe2\x80\xa6\nThe right to freedom of speech provides that a state cannot \xe2\x80\x9cproscribe advocacy of the use\nof force or of law violation except where such advocacy is directed to inciting or producing\nimminent lawless action and is likely to incite or produce such action.\xe2\x80\x9d Brandenburg, 395 U.S.\nat 447. Advocacy for the use of force or lawless behavior, intent, and imminence, are all absent\nfrom the record in this case. The doctrine of incitement has absolutely no application to these\nfacts.\nThe Bible Believers\xe2\x80\x99 speech advocated for their Christian beliefs and for harboring contempt\nfor Islam. This advocacy was purportedly intended to convince Muslims at the Festival that they\nshould convert to Christianity. Regardless of the wisdom or efficacy of this strategy, or of the\ngross intolerance the speakers\xe2\x80\x99 conduct epitomized, disparaging the views of another to support\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c434 Religion in the Law\none\xe2\x80\x99s own cause is protected by the First Amendment. See, e.g., Snyder, 562 U.S. at 454 (placards\nreading \xe2\x80\x9cYou\xe2\x80\x99re Going to Hell,\xe2\x80\x9d \xe2\x80\x9cPriests Rape Boys,\xe2\x80\x9d and \xe2\x80\x9cGod Hates Fags,\xe2\x80\x9d \xe2\x80\x9ccertainly conveyed ... a position on those issues\xe2\x80\x9d and constituted protected speech).\nThe only references to violence or lawlessness on the part of the Bible Believers were messages such as, \xe2\x80\x9cIslam is a Religion of Blood and Murder,\xe2\x80\x9d \xe2\x80\x9cTurn or Burn,\xe2\x80\x9d and \xe2\x80\x9cYour prophet\nis a pedophile.\xe2\x80\x9d These messages, however offensive, do not advocate for, encourage, condone,\nor even embrace imminent violence or lawlessness. Although it might be inferred that the Bible\nBelievers\xe2\x80\x99 speech was intended to anger their target audience, the record is devoid of any indication that they intended imminent lawlessness to ensue\xe2\x80\xa6.\nWayne County relies on Feiner v. New York, 340 U.S. 315 (1951), to support the proposition that the Bible Believers\xe2\x80\x99 speech was subject to sanction, and that such sanction does not\noffend the Constitution. In Feiner, the Supreme Court upheld a conviction for breach of the\npeace where, in the context of a civil rights rally, a speaker \xe2\x80\x9cgave the impression that he was\nendeavoring to arouse the Negro people against the whites, urging that they rise up in arms and\nfight for equal rights.\xe2\x80\x9d Id. at 317. \xe2\x80\xa6 The majority described the scenario as a \xe2\x80\x9ccrisis.\xe2\x80\x9d Id. at\n321\xe2\x80\xa6.\nThe Supreme Court has repeatedly referred to Brandenburg\xe2\x80\x94not Feiner\xe2\x80\x94as establishing\nthe test for incitement. \xe2\x80\xa6 The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or\nlawless action, (2) the speaker intends that his speech will result in the use of violence or lawless\naction, and (3) the imminent use of violence or lawless action is the likely result of his speech.\n395 U.S. at 477. The Bible Believers\xe2\x80\x99 speech was not incitement to riot simply because they did\nnot utter a single word that can be perceived as encouraging violence or lawlessness. Moreover,\nthere is absolutely no indication of the Bible Believers\xe2\x80\x99 subjective intent to spur their audience to\nviolence. The hostile reaction of a crowd does not transform protected speech into incitement.\nA second type of speech that is categorically excluded from First Amendment protection is\nknown as \xe2\x80\x9cfighting words.\xe2\x80\x9d This category of unprotected speech encompasses words that when\nspoken aloud instantly \xe2\x80\x9cinflict injury or tend to incite an immediate breach of the peace.\xe2\x80\x9d Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).\xe2\x80\xa6 Offensive statements made generally to\na crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual. R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992) (Stevens,\nJ., concurring); accord Cohen, 403 U.S. at 20 (defining fighting words as a \xe2\x80\x9cdirect personal\ninsult\xe2\x80\x9d). The Bible Believers\xe2\x80\x99 speech cannot be construed as fighting words because it was not\ndirected at any individual\xe2\x80\xa6.\nNext, we must determine the character of Defendants\xe2\x80\x99 actions. In public fora, the government\xe2\x80\x99s rights to \xe2\x80\x9climit expressive activity are sharply circumscribed.\xe2\x80\x9d Perry Educ. Ass\xe2\x80\x99n v. Perry\nLocal Educators\xe2\x80\x99 Ass\xe2\x80\x99n, 460 U.S. 37, 45 (1983); see also Frisby v. Schultz, 487 U.S. 474, 480\n(1988). Speech restrictions in these fora fall into two categories: content-based restrictions or\ntime, place, and manner restrictions that are content-neutral. \xe2\x80\xa6 The parties\xe2\x80\x99 dispute is centered\non whether Wayne County\xe2\x80\x99s actions were content neutral\xe2\x80\x94a distinction that determines the\napplicable level of constitutional scrutiny. Connection Distrib. Co. v. Reno, 154 F.3d 281, 290\n(6th Cir.1998).\n\xe2\x80\x9cListeners\xe2\x80\x99 reaction to speech is not a content-neutral basis for regulation,\xe2\x80\x9d Forsyth Cty. v.\nNationalist Movement, 505 U.S. 123, 134 (1992), or for taking an enforcement action against\na peaceful speaker. See Brown v. Louisiana, 383 U.S. 131, 133 n. 1 (1966) (\xe2\x80\x9cParticipants in an\norderly demonstration in a public place are not chargeable with the danger ... that their critics\nmight react with disorder or violence.\xe2\x80\x9d); Glasson, 518 F.2d at 905. Therefore, we find that\nWayne County\xe2\x80\x99s actions were decidedly content-based. It is indisputable that the WCSO acted\nagainst the Bible Believers in response to the crowd\xe2\x80\x99s negative reaction\xe2\x80\xa6.\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 435\nThe sum of Wayne County\xe2\x80\x99s counter-argument to the charge that the Bible Believers\xe2\x80\x99 expulsion was motivated by the views they espoused is merely that the WCSO Operations Plan was\ncontent-neutral, and that the WCSO\xe2\x80\x99s only consideration was maintaining the public safety. This\ncontention fails in the face of abundant evidence\xe2\x80\xa6.\n\xe2\x80\xa6[C]ontent-based restrictions on constitutionally protected speech are anathema to the\nFirst Amendment and are deemed \xe2\x80\x9cpresumptively invalid.\xe2\x80\x9d Ysursa v. Pocatello Educ. Ass\xe2\x80\x99n, 555\nU.S. 353, 358 (2009). An especially \xe2\x80\x9cegregious\xe2\x80\x9d form of content-based discrimination is that\nwhich is designed to exclude a particular point of view from the marketplace of ideas\xe2\x80\xa6. The\nheckler\xe2\x80\x99s veto is precisely that type of odious viewpoint discrimination\xe2\x80\xa6.\nBoth content- and viewpoint-based discrimination are subject to strict scrutiny. McCullen\nv. Coakley, 574 U.S. 464 (2014). \xe2\x80\xa6 Punishing, removing, or by other means silencing a speaker\ndue to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve\na legitimate government purpose. Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v.\nCity of Chi., 337 U.S. 1 (1949); Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chi., 394 U.S. 111 (1969). A review of Supreme\nCourt precedent firmly establishes that the First Amendment does not countenance a heckler\xe2\x80\x99s\nveto\xe2\x80\xa6.\nThe Supreme Court, in Cantwell, Terminiello, Edwards, Cox, and Gregory, has repeatedly\naffirmed the principle that \xe2\x80\x9cconstitutional rights may not be denied simply because of hostility\nto their assertion or exercise.\xe2\x80\x9d Watson v. City of Memphis, 373 U.S. 526, 535. If the speaker\xe2\x80\x99s\nmessage does not fall into one of the recognized categories of unprotected speech, the message\ndoes not lose its protection under the First Amendment due to the lawless reaction of those who\nhear it. Simply stated, the First Amendment does not permit a heckler\xe2\x80\x99s veto\xe2\x80\xa6.\nWhen a peaceful speaker, whose message is constitutionally protected, is confronted by a\nhostile crowd, the state may not silence the speaker as an expedient alternative to containing or\nsnuffing out the lawless behavior of the rioting individuals. See Watson, 373 U.S. at 535\xe2\x80\x9336.\nNor can an officer sit idly on the sidelines\xe2\x80\x94watching as the crowd imposes, through violence,\na tyrannical majoritarian rule\xe2\x80\x94only later to claim that the speaker\xe2\x80\x99s removal was necessary for\nhis or her own protection. \xe2\x80\xa6 If the speaker, at his or her own risk, chooses to continue exercising\nthe constitutional right to freedom of speech, he or she may do so without fear of retribution\nfrom the state, for the speaker is not the one threatening to breach the peace or break the law.\nHowever, the Constitution does not require that the officer \xe2\x80\x9cgo down with the speaker.\xe2\x80\x9d If,\nin protecting the speaker or attempting to quash the lawless behavior, the officer must retreat\ndue to risk of injury, then retreat would be warranted. The rule to be followed is that when the\npolice seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. See Gregory, 394 U.S. at 120\xe2\x80\xa6.\nThe police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire\ncrowd if that becomes necessary. Moreover, they may take any appropriate action to maintain\nlaw and order that does not destroy the right to free speech by indefinitely silencing the\nspeaker\xe2\x80\xa6.\n\xe2\x80\x9cThe Constitution demands that content-based restrictions on speech be presumed invalid\nand that the [g]overnment bear the burden of showing their constitutionality.\xe2\x80\x9d Alvarez, 132\nS.Ct. at 2544. Wayne County has not come close to meeting that burden in this case. There was\na force of approximately fifty officers at the Festival\xe2\x80\x94nineteen of whom were purposely unassigned so that they could respond to changing circumstances. A crowd made up predominantly\nof adolescents began hurling plastic bottles and other trash at the Bible Believers. Law enforcement officers, despite their numbers, were virtually nowhere to be found, save for a few brief\nappearances\xe2\x80\xa6.\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c436 Religion in the Law\nWayne County disputes the sufficiency of their manpower to quell the crowd, but this contention is specious. The video record evinces next to no attempt made by the officers to protect\nthe Bible Believers or prevent the lawless actions of the audience. The record also indicates a\nsubstantial police presence that went virtually unused. Wayne County claimed to have assigned\nmore law enforcement personnel to the Festival than had previously been assigned to crowd\ncontrol when the President of the United States visited the area. We cannot justifiably set the bar\nso low for the police officers sworn to protect our communities (and occasionally the President)\nthat there is any debate as to whether it is reasonable that the result of a purportedly sincere\neffort to maintain peace among a group of rowdy youths is few verbal warnings and a single\narrest.\nWe do not presume to dictate to law enforcement precisely how it should maintain the\npublic order. But ... we simply cannot accept Defendants\xe2\x80\x99 position that they were compelled to\nabridge constitutional rights for the sake of public safety, when at the same time the lawless\nadolescents who caused the risk with their assaultive behavior were left unmolested. \xe2\x80\xa6 On this\nrecord, there can be no reasonable dispute that the WCSO effectuated a heckler\xe2\x80\x99s veto, thereby\nviolating the Bible Believers\xe2\x80\x99 First Amendment rights\xe2\x80\xa6.\nWe next consider the Bible Believers\xe2\x80\x99 claim that Wayne County violated their right to the\nfree exercise of religion. The right to free exercise of religion includes the right to engage in\nconduct that is motivated by the religious beliefs held by the individual asserting the claim. Prater\nv. City of Burnside, 289 F.3d 417, 427 (6th Cir.2002). The government cannot prohibit an individual from engaging in religious conduct that is protected by the First Amendment.\nThe Bible Believers\xe2\x80\x99 proselytizing at the 2012 Arab International Festival constituted religious conduct, as well as expressive speech-related activity, that was likewise protected by the\nFree Exercise Clause of the First Amendment. Murdock v. Pennsylvania, 319 U.S. 105, 108\xe2\x80\x9310\n(1943). Plaintiff Israel testified that he was required \xe2\x80\x9cto try and convert non-believers, and call\nsinners to repent\xe2\x80\x9d due to his sincerely held religious beliefs. We do not question the sincerity of\nthat claim. Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (\xe2\x80\x9c[I]t is no business of courts to say\nthat what is a religious practice or activity for one group is not religion under the protection of\nthe First Amendment.\xe2\x80\x9d)\xe2\x80\xa6\nFree exercise claims are often considered in tandem with free speech claims and may rely\nentirely on the same set of facts. See, e.g., Watchtower Bible & Tract Soc\xe2\x80\x99y of N.Y., Inc. v. Vill.\nof Stratton, 536 U.S. 150 (2002); Rosenberger, 515 U.S. at 841. Defendants prevented the Bible\nBelievers from proselytizing based exclusively on the crowd\xe2\x80\x99s hostile reaction to the religious\nviews that the Bible Believers were espousing. Therefore, the free exercise claim succeeds on the\nsame basis as the free speech claim.\nThe next inquiry is with respect to the Bible Believers\xe2\x80\x99 equal protection claim. We have held\nthat:\n\xe2\x80\xa6To state an equal protection claim, a plaintiff must adequately plead that\nthe government treated the plaintiff disparately as compared to similarly situated persons and that such disparate treatment ... burdens a fundamental\nright, targets a suspect class, or has no rational basis.\nCtr. for Bio\xe2\x80\x93Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir.2011) Freedom of\nspeech is a fundamental right. Lac Vieux Desert Band of Lake Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 410 (6th Cir.1999). Therefore, Wayne County\xe2\x80\x99s actions are subject to strict scrutiny. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16 (1973). \xe2\x80\x9cIn\ndetermining whether individuals are \xe2\x80\x98similarly situated,\xe2\x80\x99 a court should not demand exact correlation, but should instead seek relevant similarity.\xe2\x80\x9d Bench Billboard Co. v. City of Cincinnati,\n675 F.3d 974, 987 (6th Cir.2012).\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 437\nThe Festival included a number of other religious organizations that came to share their\nfaith by spreading a particular message. There are several distinctions between the Bible Believers\nand these other groups. Mainly, the Bible Believers chose, as was their right, not to register for\nan assigned table under the information tent. Instead, they paraded through the Festival and\nproselytized, as was also their right, while carrying signs and a severed pig\xe2\x80\x99s head. Although\nthese actions set them apart from the other speakers and religious organizations at the Festival,\nthey do not do so in any relevant respect. \xe2\x80\xa6 Although they declined to utilize the tent set aside\nfor outside groups, their conduct was at all times peaceful while they passionately advocated for\ntheir cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the\nmessages displayed on the signs and banners. The county\xe2\x80\x99s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers\xe2\x80\x99 speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the\nBible Believers\xe2\x80\x99 right to equal protection by treating them in a manner different from other\nspeakers, whose messages were not objectionable to Festival-goers, by burdening their First\nAmendment rights. See Napolitano, 648 F.3d at 379\xe2\x80\xa6.\nFrom a constitutional standpoint, this should be an easy case to resolve. However, it is also\neasy to understand Dearborn\xe2\x80\x99s desire to host a joyous Festival celebrating the city\xe2\x80\x99s Arab heritage\nin an atmosphere that is free of hate and negative influences. But the answer to disagreeable\nspeech is not violent retaliation by offended listeners or ratification of the heckler\xe2\x80\x99s veto through\nthreat of arrest by the police. The adults who did not join in the assault on the Bible Believers\nknew that violence was not the answer; the parents who pulled their children away likewise\nrecognized that the Bible Believers could simply be ignored; and a few adolescents, instead of\nhurling bottles, engaged in debate regarding the validity of the Bible Believers\xe2\x80\x99 message. Wayne\nCounty, however, through its Deputy Chiefs and Corporation Counsel, effectuated a constitutionally impermissible heckler\xe2\x80\x99s veto by allowing an angry mob of riotous adolescents to dictate\nwhat religious beliefs and opinions could and could not be expressed. This, the Constitution\nsimply does not allow\xe2\x80\xa6.\nBecause the Wayne County Defendants impermissibly cut off the Bible Believers\xe2\x80\x99 protected\nspeech, placed an undue burden on their exercise of religion, and treated them disparately from\nother speakers at the 2012 Arab International Festival, solely on the basis of the views that they\nespoused, Wayne County Defendants violated the Bible Believers\xe2\x80\x99 constitutional rights under the\nFirst and Fourteenth Amendments. Deputy Chief Defendants are civilly liable to the Bible Believers for having violated law that is clearly established by the Supreme Court precedent set\nforth in Gregory v. City of Chicago, 394 U.S. 111 (1969). Wayne County is civilly liable because\none of its chief legal policymakers counseled and authorized the Deputy Chiefs\xe2\x80\x99 actions. Therefore, we REVERSE the grant of summary judgment by the district court in favor of Defendants,\nand REMAND this case for entry of summary judgment in favor of Plaintiffs, for the calculation\nof damages, and any other appropriate relief, consistent with this opinion.\nBOGGS, Circuit Judge, joined by BATCHELDER, CLAY, and WHITE, concurring.\n\xe2\x80\xa6The Bible Believers were in a place they had a right to be\xe2\x80\x94a public area\xe2\x80\x94doing what\nthey had a right to do\xe2\x80\x94speaking about their religious beliefs\xe2\x80\x94when they were set upon and put\nin some degree of physical danger by those who disagreed with their message.\nDespite the colorful language in Judge Rogers\xe2\x80\x99s dissent, the motivations of the Bible Believers, and their status as a \xe2\x80\x9cmajority\xe2\x80\x9d or \xe2\x80\x9cminority,\xe2\x80\x9d are of absolutely no importance as to their\nlegal rights or the legality of the government\xe2\x80\x99s actions. \xe2\x80\xa6 Contrary to [precedent], Judge Rogers\ncharacterizes the speakers as the disruptors, imposing themselves upon and unsettling unsuspecting passersby. That may or may not be a fair characterization, but it is in no way different\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c438 Religion in the Law\nfrom most free-speech cases that arise in public. \xe2\x80\xa6 The Jehovah\xe2\x80\x99s Witnesses in Cantwell, for\nexample, played phonographs criticizing the Roman Catholic Church in a largely Catholic\nneighborhood, much like the Bible Believers criticized Islam at the Arab International Festival.\nThey may do it out of love or out of hate, but it makes no difference to the First Amendment\xe2\x80\xa6.\nJudge Rogers concludes his dissent by observing that it is \xe2\x80\x9cunfortunately ironic\xe2\x80\x9d that the\nBible Believers could invoke \xe2\x80\x9ccases involving minority civil rights protests.\xe2\x80\x9d But the real irony is\nthat the very principle he articulates to allow the suppression of speech could just as easily be\nused against civil-rights protesters challenging racism or religious intolerance. The beauty of our\nFirst Amendment is that it affords the same protections to all speakers, regardless of the content\nof their message. If we encroach on the free-speech rights of groups that we dislike today, those\nsame doctrines can be used in the future to suppress freedom of speech for groups that we like.\nI would have thought that if anything was \xe2\x80\x9cclearly established\xe2\x80\x9d in First Amendment law, it is\nthat our view of \xe2\x80\x9cirony\xe2\x80\x9d does not trump the Constitution.\nGRIFFIN, Circuit Judge, concurring in part and dissenting in part.\nI agree with the majority opinion that both the officers and Wayne County violated the\nBible Believers\xe2\x80\x99 First Amendment rights. However, I would hold that Deputy Chiefs Richardson\nand Jaafar are entitled to qualified immunity because the right at issue was not clearly established\nat the time\xe2\x80\xa6.\nAt the time of the 2012 Arab International Festival, \xe2\x80\x9cexisting precedent\xe2\x80\x9d had not placed\nthis constitutional question \xe2\x80\x9cbeyond debate.\xe2\x80\x9d Ashcroft, 131 S.Ct. at 2083. Although the Supreme Court's decisions in Cantwell v. Connecticut, 310 U.S. 296 (1940), and Terminiello v.\nCity of Chicago, 337 U.S. 1 (1949), had established the general proposition that police officers\nmay not effectuate a heckler's veto, those precedents left unanswered whether the police effectuate a heckler's veto when they remove a speaker for his own safety rather than because of the\ncontent of the speech or its supposed effect on the crowd. Indeed, whether removing a speaker\nfor his own safety amounts to a heckler's veto is the very question we resolve in this case. And,\nthough we answer that question in the affirmative, we had not done so at the time of the 2012\nArab International Festival\xe2\x80\xa6.\nSUTTON, Circuit Judge, joined by COOK and McKEAGUE, concurring in part and dissenting\nin part.\n\xe2\x80\xa6I part ways with this component of the majority opinion to the extent it draws the conclusion that a \xe2\x80\x9checkler's veto\xe2\x80\x9d supplies a freestanding doctrinal basis for concluding that the\ndefendants violated the Bible Believers\xe2\x80\x99 First Amendment rights.\nThat leaves (mainly) the question of qualified immunity. I agree with Judge Gibbons that\nthe obligations of the defendants in this unusual setting were not clearly established at the time\nof the festival\xe2\x80\xa6. Pity the police officer then\xe2\x80\x94and perhaps even now\xe2\x80\x94tasked with identifying\nthe lines of permissible and impermissible peace-officer conduct in this non-peaceful area.\nGIBBONS, Circuit Judge, joined by COOK and McKEAGUE and joined in part by SUTTON,\ndissenting.\n\xe2\x80\xa6Bible Believers\xe2\x80\x99 damages claim against the officers in their individual capacities should\nfail under qualified immunity because there was, and still remains, no clearly established law\npertaining to this specific right\xe2\x80\xa6.\nHere, contrary to the majority\xe2\x80\x99s characterization, the right in question is not the general\nright to free speech in spite of a crowd\xe2\x80\x99s outrage, but the more specific right of a speaker to be\nfree from an effective removal when his safety and the safety of others have been compromised\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 439\nby an unforeseen violent mob occasioning physical injury on both the speaker and innocent\nbystanders. A court has yet to find that there is such a right\xe2\x80\xa6.\nThe majority says that the \xe2\x80\x9checkler\xe2\x80\x99s veto\xe2\x80\x9d doctrine\xe2\x80\x94\xe2\x80\x9cfirmly established\xe2\x80\x9d by the Supreme\nCourt\xe2\x80\x94clearly established the Bible Believers\xe2\x80\x99 rights. But the Supreme Court\xe2\x80\x99s decisions in this\ndepartment offer little guidance about today\xe2\x80\x99s case. None of the cases cited by the majority to\nderive the \xe2\x80\x9checkler\xe2\x80\x99s veto\xe2\x80\x9d rule involved government officials acting against a speaker because\nof actually occurring violence, as opposed to signs of trouble that had not spilled over into violence. \xe2\x80\xa6 The majority sums up these decisions as \xe2\x80\x9caffirm[ing] the principle that \xe2\x80\x98constitutional\nrights may not be denied simply because of hostility to their assertion or exercise.\xe2\x80\x99\xe2\x80\x9d (quoting\nCox, 379 U.S. at 551, 85 S.Ct. 453). The principle of course is right, see Snyder v. Phelps, 562\nU.S. 443, 458 (2011), but it does not tell us what police should do when verbal \xe2\x80\x9chostility,\xe2\x80\x9d such\nas mere \xe2\x80\x9cmuttering\xe2\x80\x9d and \xe2\x80\x9cgrumbling,\xe2\x80\x9d see Cox, 379 U.S. at 543, descends into violence. Later\ncases say that the government may in some circumstances combat \xe2\x80\x9cactual\xe2\x80\x9d problems related to\nspeech, especially when public safety is on the line\xe2\x80\xa6.\n\xe2\x80\x9cHeckler\xe2\x80\x99s veto,\xe2\x80\x9d as the many separate writings in this case suggest and as the Supreme\nCourt\xe2\x80\x99s own cases confirm, is more often used as a debater\xe2\x80\x99s point rather than as a doctrinal\ntool. Even on its own terms, the \xe2\x80\x9crule\xe2\x80\x9d does not mean that the government must invariably\nignore an opponent\xe2\x80\x99s reaction in deciding how to treat speech. The doctrines of \xe2\x80\x9cincitement to\nimminent lawless action,\xe2\x80\x9d Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (per curiam), and\n\xe2\x80\x9cfighting words,\xe2\x80\x9d Cohen v. California, 403 U.S. 15, 20 (1971), allow censorship based on listener reactions, indeed even potential reactions. The majority seems to suggest that the \xe2\x80\x9checkler\xe2\x80\x99s\nveto\xe2\x80\x9d cases mean that, once a speaker is outside these categories of \xe2\x80\x9cunprotected speech\xe2\x80\x9d and\nenters the field of \xe2\x80\x9cprotected speech,\xe2\x80\x9d the listeners\xe2\x80\x99 reactions to speech may never be the basis\nfor government regulation. Surely that is not the law\xe2\x80\x94and at least the Supreme Court has never\nsaid it is\xe2\x80\xa6.\nROGERS, Circuit Judge, joined by GIBBONS, COOK, McKEAGUE, and DONALD, dissenting.\nToday's holding provides a roadmap that effectively advises how to force the police to help\ndisrupt a minority's speech and assembly rights. It is as if we are advising as follows:\nYes, you can get the police to help you attack and disrupt something like a\nminority cultural identity fair, even if the police are not inclined to do so. Tell\nthe police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary\nchants, slogans, insults, and symbols\xe2\x80\x94the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your\ngoal), insist that the police protect you, and (ironically) your First Amendment\nrights, by serving as a protective guard. The peace officers cannot at that point\ntell you to leave, even to avoid injury to you, because if the peace officers do\nthat, they will have to pay you damages. Faced with the choice of allowing\nyou to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose\nthe latter and become your phalanx. It's a win-win situation for you, and a\nlose-lose situation for the minority group putting on the fair.\n\xe2\x80\xa6This is not a case where the Bible Believers faced punishment or liability for their speech.\nThe only punishment threatened was a citation for refusing to move away from a physical altercation. That fact distinguishes this case from most of the cases that the Bible Believers rely\nupon.\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c440 Religion in the Law\nTo disruptive hecklers, the irony of using a \xe2\x80\x9checkler\xe2\x80\x99s veto\xe2\x80\x9d doctrine to empower them in\ntheir heckling must be sweet. As demonstrated below, the great cases that admirably condemn\na \xe2\x80\x9checkler\xe2\x80\x99s veto\xe2\x80\x9d are profoundly different from this case. They involve criminal prosecution of\nspeakers on the basis that the speech, itself, constituted a breach of the peace.\nIn Edwards v. South Carolina, 372 U.S. 229 (1963), for example, African\xe2\x80\x93Americans gathered on the statehouse grounds and some 200 to 300 curious onlookers gathered. There was no\ntraffic obstruction and nothing in the way of \xe2\x80\x9cthreatening remarks, hostile gestures, or threatening language.\xe2\x80\x9d Id. at 231. \xe2\x80\xa6 In overturning the protestors\xe2\x80\x99 convictions, the Court noted (1)\nthat \xe2\x80\x9cnobody among the crowd actually caused or threatened any trouble,\xe2\x80\x9d (2) that \xe2\x80\x9cpolice\nprotection at the scene was at all times sufficient to meet any foreseeable possibility of disorder,\xe2\x80\x9d\n(3) that \xe2\x80\x9cthere was no violence or threat of violence on the protesters\xe2\x80\x99 part, or on the part of any\nmember of the crowd watching them,\xe2\x80\x9d and (4) that \xe2\x80\x9cpolice protection was \xe2\x80\x98ample.\xe2\x80\x99\xe2\x80\x9d These\nfacts, the Court explained,\n[were] a far cry from the situation in Feiner v. New York, where two policemen were faced with a crowd which was \xe2\x80\x9cpushing, shoving and milling\naround,\xe2\x80\x9d where at least one member of the crowd \xe2\x80\x9cthreatened violence if the\npolice did not act,\xe2\x80\x9d where \xe2\x80\x9cthe crowd was pressing closer around petitioner\nand the officer,\xe2\x80\x9d and where \xe2\x80\x9cthe speaker passes the bounds of argument or\npersuasion and undertakes incitement to riot.\nId. at 236 (quoting Feiner v. New York, 340 U.S. 315, 317\xe2\x80\x9318, 321 (1951)). Nothing in Edwards is even close to the situation in this case. In Edwards there was no hint of an altercation\nor disruption.\nThe same distinction applies to Cox v. Louisiana, 379 U.S. 536 (1965), a landmark of the\nCivil Rights Movement of the 1960s. \xe2\x80\xa6 The Supreme Court overturned the conviction for\nbreaching the peace because the speaker had been punished \xe2\x80\x9cmerely for peacefully expressing\nunpopular views.\xe2\x80\x9d Id. at 551. \xe2\x80\xa6 [The] the Court held that the speaker could not be convicted\nof using words that disturbed the peace merely because his words might have led to an altercation. This is categorically different from holding that the police may not separate people who\nare involved in an altercation, and threaten a citation if one of the parties fails to separate.\nTerminiello v. City of Chicago, 337 U.S. 1 (1949) \xe2\x80\xa6 addressed only whether the speaker\ncould be convicted of a crime based on his speech\xe2\x80\x99s tendency to cause unrest. The decision said\nnothing about what steps police could take to quell an altercation already underway\xe2\x80\x94which is\nto say, it said nothing about the actions of the police in this case.\n[In] Cantwell v. Connecticut, 310 U.S. 296 (1940) \xe2\x80\xa6 the Supreme Court overturned the\nconvictions of the Jehovah\xe2\x80\x99s Witnesses for breach of the peace, reasoning that the laws at issue\ncriminalized the family members\xe2\x80\x99 peaceful exercise of their First Amendment liberties. Id. at\n310\xe2\x80\x9311. The Court found that there was \xe2\x80\x9cno assault or threatening of bodily harm, no truculent\nbearing, no intentional discourtesy, no personal abuse.\xe2\x80\x9d Id. at 310. The case did not deal with\nincitement to violence or breach of the peace, much less an actual altercation.\nFinally, the difference between these cases and the instant case is clearest in Gregory v. City\nof Chicago, 394 U.S. 111 (1969). There, police ordered a group of peaceful protestors to disperse after onlookers became unruly. \xe2\x80\x9cWhen the officers\xe2\x80\x99 command was not obeyed, [the protestors] were arrested for disorderly conduct.\xe2\x80\x9d Id. at 112. The Supreme Court overturned the\nensuing criminal convictions. As the Court made explicit, however, its ruling in that case was\nbased on its understanding that \xe2\x80\x9c[the protestors] were charged and convicted for holding a\ndemonstration, not for a refusal to obey a police officer.\xe2\x80\x9d \xe2\x80\xa6 Gregory is thus inapposite, because\nthe Bible Believers were threatened with a citation, not because of anything they said, but because they asked what would happen if they disobeyed a police officer. Indeed, the video evidence in this case\xe2\x80\x94supplied only by the Bible Believers\xe2\x80\x94shows the reluctance of the police even\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 441\nto threaten citation. The police chief confirmed that the Bible Believers would be cited only after\nthe Bible Believers repeatedly demanded to know \xe2\x80\x9cwhat he would do\xe2\x80\x9d if they declined to depart.\nIn sum, the Supreme Court has consistently distinguished between prosecuting a person for\nexercising his First Amendment rights\xe2\x80\x94which is unconstitutional\xe2\x80\x94and insisting that a person\ncomply with a police officer\xe2\x80\x99s order to leave the scene of an ongoing physical altercation so as\nto prevent further injury\xe2\x80\x94which is constitutional. It cannot be that every police officer\xe2\x80\x99s direction to a citizen to do something requires strict scrutiny just because speech is also involved.\nStrict scrutiny does not apply, for example, to pulling over a truck for a traffic violation just\nbecause there was a message on the side of the truck. Nor could strict scrutiny reasonably be\napplied to telling two brawling teenagers to separate before they get hurt, even if the brawl\nstarted with a verbal argument about some issue. Police officers should not be made to pay\ndamages in such circumstances. This case is no different.\nStrict scrutiny applies to rules about speech that allegedly could cause a brawl, not to efforts\nto control a brawl. The Bible Believers spoke loudly and freely throughout the festival for over\nan hour. Indeed, for some of that time, the presence of police officers actually made it possible\nfor the Bible Believers to speak without being accosted by the crowd. The officers\xe2\x80\x99 instruction\nto leave, moreover, only occurred once there was an altercation that left one of the Bible Believers\nbleeding from his head. This is not a case about \xe2\x80\x9cthe mere possibility of violence.\xe2\x80\x9d The video\nevidence shows plastic bottles, rocks, and other hard objects such as a milk crate being thrown\nat the Bible Believers, and not just by children\xe2\x80\xa6 Violence had broken out when the police\nstepped in. The only question confronting police at that time was how to handle it.\nIt cannot be that, in an altercation where one side is greatly outnumbered but wants to risk\ninjury by standing its ground, police officers are obligated to permit the risk\xe2\x80\x94indeed, must put\nthemselves at risk\xe2\x80\x94in the name of the First Amendment. The First Amendment does not compel\npolice to stand by and ignore their duty to protect the public.\nCases like the one before us properly call for a balancing of the speakers\xe2\x80\x99 First Amendment\ninterests and the community\xe2\x80\x99s need for safety and order. Of course, police should not be allowed\nto treat every outbreak of violence as cover for suppressing speech, and where it is reasonably\npossible to vindicate a speaker\xe2\x80\x99s First Amendment rights, police should do so. But it will not\nalways be possible to do so, taking into account all of the factors peace officers must consider,\nsuch as the nature of the crowd, the resources available to police at the time, and other factors\nbearing on law enforcement\xe2\x80\x99s ability to control the scene around a speaker. Drawing a rigid line\nbased on abstract doctrinal principles robs police officers of the discretion and judgment that is\nessential to law enforcement. If the police may stop the altercation, they may do it in a reasonable\nway, under the circumstances as actually presented. If bringing in a larger police force is not a\nthen-available option in the reasoned view of the peace officer on the scene, separating the parties is reasonable\xe2\x80\xa6.\nThe record shows that the officers made efforts to restrain the festivalgoers. Among other\nthings, they ventured into the crowd to identify the individuals who were throwing debris and\nrocks at the Bible Believers, and issued some warnings and citations. This is not a situation, then,\nwhere law enforcement jumped at the first opportunity to evict an obnoxious group. To the\ncontrary, it appears the officers tried to avoid having to evict the Bible Believers.\nDespite their efforts, however, the officers ultimately determined that they could not easily\nstop the altercation while the Bible Believers were present. The officers thus decided to remove\nthe Bible Believers from the festival grounds. The First Amendment does not prohibit that reasonable exercise of judgment, and this conclusion is consistent with Glasson v. City of Louisville,\n518 F.2d 899 (6th Cir.1975). In Glasson, police violated the First Amendment by tearing up a\nprotester\xe2\x80\x99s sign after hecklers began grumbling and muttering threats about it from across the\nstreet. Id. at 901\xe2\x80\x9302. There was no actual violence in Glasson or even a move toward actual\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c442 Religion in the Law\nviolence. Glasson involved police conduct to preempt potential violence. In contrast, there was\nnothing potential about the fracas at the Arab Festival.\nIt is unfortunately ironic for the Bible Believers to succeed in their tactics in this case based\non towering but distinguishable cases involving minority civil rights protests. In the greater Detroit community, it is the minority\xe2\x80\x99s cultural expression that loses from today\xe2\x80\x99s decision. The\ndisrupters here came from a different part of a larger community to disrupt the First Amendment\nactivity of Arab\xe2\x80\x93Americans\xe2\x80\x94a sometimes feared, misunderstood, or despised minority within\nthat larger community. Realistically viewed, the Bible Believers were hecklers seeking to disrupt\nthe cultural fair. The police visibly attempted to reconcile the First Amendment rights of festivalgoers and the Bible Believers. There may have been much better ways for the police to handle\nthis situation, but there was no First Amendment violation.\n\nBible Believers v. Wayne County, 805 F.3d 228 (CA6 2015)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 443\n\n452 U.S. 640\nSupreme Court of the United States\n\nHeffron v. ISKCON\nJune 22, 1981\nJUSTICE WHITE delivered the opinion of the Court.\nThe question presented for review is whether a State, consistent with the First and Fourteenth Amendments, may require a religious organization desiring to distribute and sell religious\nliterature and to solicit donations at a state fair to conduct those activities only at an assigned\nlocation within the fairgrounds even though application of the rule limits the religious practices\nof the organization.\nEach year, the Minnesota Agricultural Society (Society) \xe2\x80\xa6 operates a State Fair on a 125\xe2\x80\x93\nacre state-owned tract located in St. Paul, Minn. The Fair is conducted for the purpose of \xe2\x80\x9cexhibiting the agricultural, stock-breeding, horticultural, mining, mechanical, industrial, and other\nproducts and resources of the state, including proper exhibits and expositions of the arts, human\nskills, and sciences.\xe2\x80\x9d The Fair is a major public event and attracts visitors from all over Minnesota as well as from other parts of the country\xe2\x80\xa6.\nThe Society is authorized to make all \xe2\x80\x9cbylaws, ordinances, and rules, not inconsistent with\nlaw, which it may deem necessary or proper for the government of the fair grounds....\xe2\x80\x9d\nMinn.Stat. \xc2\xa7 37.16 (1980). Under this authority, the Society promulgated Minnesota State Fair\nRule 6.05 which provides in relevant part that \xe2\x80\x9cSale or distribution of any merchandise, including printed or written material except under license issued [by] the Society and/or from a dulylicensed location shall be a misdemeanor.\xe2\x80\x9d\nAs Rule 6.05 is construed and applied by the Society, \xe2\x80\x9call persons, groups or firms which\ndesire to sell, exhibit or distribute materials during the annual State Fair must do so only from\nfixed locations on the fairgrounds.\xe2\x80\x9d Although the Rule does not prevent organizational representatives from walking about the fairgrounds and communicating the organization\xe2\x80\x99s views with\nfair patrons in face-to-face discussions, it does require that any exhibitor conduct its sales, distribution, and fund solicitation operations from a booth rented from the Society. Space in the\nfairgrounds is rented to all comers in a nondiscriminatory fashion on a first-come, first-served\nbasis with the rental charge based on the size and location of the booth. The Rule applies alike\nto nonprofit, charitable, and commercial enterprises.\nOne day prior to the opening of the 1977 Minnesota State Fair, respondents International\nSociety for Krishna Consciousness, Inc. (ISKCON), an international religious society espousing\nthe views of the Krishna religion, and Joseph Beca, head of the Minneapolis ISKCON temple,\nfiled suit against numerous state officials seeking a declaration that Rule 6.05, both on its face\nand as applied, violated respondents\xe2\x80\x99 rights under the First Amendment, and seeking injunctive\nrelief prohibiting enforcement of the Rule against ISKCON and its members. Specifically,\nISKCON asserted that the Rule would suppress the practice of Sankirtan, one of its religious\nrituals, which enjoins its members to go into public places to distribute or sell religious literature\nand to solicit donations for the support of the Krishna religion.\nThe trial court \xe2\x80\xa6 granted the state officials\xe2\x80\x99 motion for summary judgment, upholding the\nconstitutionality of Rule 6.05. \xe2\x80\xa6 On appeal, the Minnesota Supreme Court reversed, holding\nthat Rule 6.05, as applied to respondents, unconstitutionally restricted the Krishnas\xe2\x80\x99 religious\npractice of Sankirtan. 299 N.W.2d 79 (1980). \xe2\x80\xa6 We granted the state officials\xe2\x80\x99 petition for writ\n\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c444 Religion in the Law\nof certiorari in light of the important constitutional issues presented and the conflicting results\nreached in similar cases in various lower courts.\nThe State does not dispute that the oral and written dissemination of the Krishnas\xe2\x80\x99 religious\nviews and doctrines is protected by the First Amendment. See Schneider v. State, 308 U.S. 147,\n160, 162\xe2\x80\x93164 (1939); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938). Nor does it claim\nthat this protection is lost because the written materials sought to be distributed are sold rather\nthan given away or because contributions or gifts are solicited in the course of propagating the\nfaith. Our cases indicate as much. Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980). See Cantwell v. Connecticut, 310 U.S. 296 (1940).\nIt is also common ground, however, that the First Amendment does not guarantee the right\nto communicate one\xe2\x80\x99s views at all times and places or in any manner that may be desired. Adderley v. Florida, 385 U.S. 39, 47\xe2\x80\x9348 (1966); see Cox v. Louisiana, 379 U.S. 536, 554 (1965).\nAs the Minnesota Supreme Court recognized, the activities of ISKCON, like those of others\nprotected by the First Amendment, are subject to reasonable time, place, and manner restrictions. Grayned v. City of Rockford, 408 U.S. 104 (1972); Adderley v. Florida; Kovacs v.\nCooper, 336 U.S. 77 (1949); Cox v. New Hampshire, 312 U.S. 569 (1941). \xe2\x80\x9cWe have often\napproved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing\nso they leave open ample alternative channels for communication of the information.\xe2\x80\x9d Virginia\nPharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); see also\nConsolidated Edison Co. v. Public Service Comm\xe2\x80\x99n, 447 U.S. 530, 535 (1980). The issue here,\nas it was below, is whether Rule 6.05 is a permissible restriction on the place and manner of\ncommunicating the views of the Krishna religion, more specifically, whether the Society may\nrequire the members of ISKCON who desire to practice Sankirtan at the State Fair to confine\ntheir distribution, sales, and solicitation activities to a fixed location.\nA major criterion for a valid time, place and manner restriction is that the restriction \xe2\x80\x9cmay\nnot be based upon either the content or subject matter of speech.\xe2\x80\x9d Consolidated Edison Co. v.\nPublic Service Comm\xe2\x80\x99n, at 536. Rule 6.05 qualifies in this respect, since as the Supreme Court\nof Minnesota observed, the Rule applies evenhandedly to all who wish to distribute and sell\nwritten materials or to solicit funds. No person or organization, whether commercial or charitable, is permitted to engage in such activities except from a booth rented for those purposes.\nNor does Rule 6.05 suffer from the more covert forms of discrimination that may result\nwhen arbitrary discretion is vested in some governmental authority. The method of allocating\nspace is a straightforward first-come, first-served system. The Rule is not open to the kind of\narbitrary application that this Court has condemned as inherently inconsistent with a valid time,\nplace, and manner regulation because such discretion has the potential for becoming a means of\nsuppressing a particular point of view. See Cox v. Louisiana, at 555\xe2\x80\x93558; Cantwell v. Connecticut, at 304; Schneider v. State, 308 U.S. at 164; Hague v. CIO, 307 U.S. 496, 516 (1939).\nA valid time, place, and manner regulation must also \xe2\x80\x9cserve a significant governmental\ninterest.\xe2\x80\x9d Virginia Pharmacy Board v. Virginia Citizens Consumer Council, at 771. \xe2\x80\xa6. Here,\nthe principal justification asserted by the State in support of Rule 6.05 is the need to maintain\nthe orderly movement of the crowd given the large number of exhibitors and persons attending\nthe Fair.\nThe fairgrounds comprise a relatively small area of 125 acres, the bulk of which is covered\nby permanent buildings, temporary structures, parking lots, and connecting thoroughfares.\nThere were some 1,400 exhibitors and concessionaires renting space for the 1977 and 1978\nFairs, chiefly in permanent and temporary buildings. The Fair is designed to exhibit to the public\nan enormous variety of goods, services, entertainment, and other matters of interest. This is\n\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 445\naccomplished by confining individual exhibitors to fixed locations, with the public moving to\nand among the booths or other attractions, using streets and open spaces provided for that purpose. Because the Fair attracts large crowds, it is apparent that the State\xe2\x80\x99s interest in the orderly\nmovement and control of such an assembly of persons is a substantial consideration.\nAs a general matter, it is clear that a State\xe2\x80\x99s interest in protecting the \xe2\x80\x9csafety and convenience\xe2\x80\x9d of persons using a public forum is a valid governmental objective. See Grayned v. City of\nRockford, 408 U.S. at 115; Cox v. New Hampshire, 312 U.S. at 574. Furthermore, consideration of a forum\xe2\x80\x99s special attributes is relevant to the constitutionality of a regulation since the\nsignificance of the governmental interest must be assessed in light of the characteristic nature\nand function of the particular forum involved. \xe2\x80\xa6 This observation bears particular import in\nthe present case since respondents make a number of analogies between the fairgrounds and city\nstreets which have \xe2\x80\x9cimmemorially been held in trust for the use of the public and ... have been\nused for purposes of assembly, communicating thoughts between citizens, and discussing public\nquestions.\xe2\x80\x9d Hague v. CIO, at 515. \xe2\x80\xa6 The Minnesota Fair, as described above, is a temporary\nevent attracting great numbers of visitors who come to the event for a short period to see and\nexperience the host of exhibits and attractions at the Fair. The flow of the crowd and demands\nof safety are more pressing in the context of the Fair. As such, any comparisons to public streets\nare necessarily inexact.\nThe Minnesota Supreme Court recognized that the State\xe2\x80\x99s interest in the orderly movement\nof a large crowd and in avoiding congestion was substantial and that Rule 6.05 furthered that\ninterest significantly. Nevertheless, the Minnesota Supreme Court declared that the case did not\nturn on the \xe2\x80\x9cimportance of the state\xe2\x80\x99s undeniable interest in preventing the widespread disorder\nthat would surely exist if no regulation such as Rule 6.05 were in effect\xe2\x80\x9d but upon the significance of the State\xe2\x80\x99s interest in avoiding whatever disorder would likely result from granting\nmembers of ISKCON an exemption from the Rule. 299 N.W.2d, at 83. Approaching the case\nin this way, the court concluded that although some disruption would occur from such an exemption, it was not of sufficient concern to warrant confining the Krishnas to a booth. The court\nalso concluded that, in any event, the Rule was not essential to the furtherance of the State\xe2\x80\x99s\ninterest in crowd control, which could adequately be served by less intrusive means.\nAs we see it, the Minnesota Supreme Court took too narrow a view of the State\xe2\x80\x99s interest\nin avoiding congestion and maintaining the orderly movement of fair patrons on the fairgrounds. The justification for the Rule should not be measured by the disorder that would result\nfrom granting an exemption solely to ISKCON. That organization and its ritual of Sankirtan\nhave no special claim to First Amendment protection as compared to that of other religions who\nalso distribute literature and solicit funds. None of our cases suggest that the inclusion of peripatetic solicitation as part of a church ritual entitles church members to solicitation rights in a\npublic forum superior to those of members of other religious groups that raise money but do\nnot purport to ritualize the process. Nor for present purposes do religious organizations enjoy\nrights to communicate, distribute, and solicit on the fairgrounds superior to those of other organizations having social, political, or other ideological messages to proselytize. These nonreligious organizations seeking support for their activities are entitled to rights equal to those of\nreligious groups to enter a public forum and spread their views, whether by soliciting funds or\nby distributing literature.\nIf Rule 6.05 is an invalid restriction on the activities of ISKCON, it is no more valid with\nrespect to the other social, political, or charitable organizations that have rented booths at the\nFair and confined their distribution, sale, and fund solicitation to those locations\xe2\x80\xa6.\nISKCON desires to proselytize at the fair because it believes it can successfully communicate\nand raise funds. In its view, this can be done only by intercepting fair patrons as they move\nabout, and if success is achieved, stopping them momentarily or for longer periods as money is\ngiven or exchanged for literature. This consequence would be multiplied many times over if Rule\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c446 Religion in the Law\n6.05 could not be applied to confine such transactions by ISKCON and others to fixed locations.\nIndeed, the court below agreed that without Rule 6.05 there would be widespread disorder at\nthe fairgrounds. The court also recognized that some disorder would inevitably result from exempting the Krishnas from the Rule. Obviously, there would be a much larger threat to the\nState\xe2\x80\x99s interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely about the fairgrounds distributing and selling literature and\nsoliciting funds at will.\nGiven these considerations, we hold that the State\xe2\x80\x99s interest in confining distribution, selling,\nand fund solicitation activities to fixed locations is sufficient to satisfy the requirement that a\nplace or manner restriction must serve a substantial state interest. By focusing on the incidental\neffect of providing an exemption from Rule 6.05 to ISKCON, the Minnesota Supreme Court\ndid not take into account the fact that any such exemption cannot be meaningfully limited to\nISKCON, and as applied to similarly situated groups would prevent the State from furthering\nits important concern with managing the flow of the crowd. In our view, the Society may apply\nits Rule and confine the type of transactions at issue to designated locations without violating\nthe First Amendment.\nFor similar reasons, we cannot agree with the Minnesota Supreme Court that Rule 6.05 is\nan unnecessary regulation because the State could avoid the threat to its interest posed by\nISKCON by less restrictive means, such as penalizing disorder or disruption, limiting the number\nof solicitors, or putting more narrowly drawn restrictions on the location and movement of\nISKCON\xe2\x80\x99s representatives. As we have indicated, the inquiry must involve not only ISKCON,\nbut also all other organizations that would be entitled to distribute, sell, or solicit if the booth\nrule may not be enforced with respect to ISKCON. Looked at in this way, it is quite improbable\nthat the alternative means suggested by the Minnesota Supreme Court would deal adequately\nwith the problems posed by the much larger number of distributors and solicitors that would\nbe present on the fairgrounds if the judgment below were affirmed.\nFor Rule 6.05 to be valid as a place and manner restriction, it must also be sufficiently clear\nthat alternative forums for the expression of respondents\xe2\x80\x99 protected speech exist despite the effects of the Rule. Rule 6.05 is not vulnerable on this ground. First, the Rule does not prevent\nISKCON from practicing Sankirtan anywhere outside the fairgrounds. More importantly, the\nRule has not been shown to deny access within the forum in question. Here, the Rule does not\nexclude ISKCON from the fairgrounds, nor does it deny that organization the right to conduct\nany desired activity at some point within the forum. Its members may mingle with the crowd\nand orally propagate their views. The organization may also arrange for a booth and distribute\nand sell literature and solicit funds from that location on the fairgrounds itself. \xe2\x80\xa6 Considering\nthe limited functions of the Fair and the combined area within which it operates, we are unwilling to say that Rule 6.05 does not provide ISKCON and other organizations with an adequate\nmeans to sell and solicit on the fairgrounds. The First Amendment protects the right of every\ncitizen to \xe2\x80\x9creach the minds of willing listeners and to do so there must be opportunity to win\ntheir attention.\xe2\x80\x9d Kovacs v. Cooper, 336 U.S. 77, 87 (1949). Rule 6.05 does not unnecessarily\nlimit that right within the fairgrounds.\nThe judgment of the Supreme Court of Minnesota is reversed, and the case is remanded for\nfurther proceedings not inconsistent with this opinion. So ordered.\nJustice BRENNAN, with whom Justice MARSHALL and Justice STEVENS join, concurring in\npart and dissenting in part.\n\xe2\x80\xa6The State advances three justifications for its booth Rule. The justification relied upon by\nthe Court today is the State\xe2\x80\x99s interest in maintaining the orderly movement of the crowds at the\nfair. The second justification, relied upon by the dissenting justices below, 299 N.W.2d 79, 87\n\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 447\n(Minn.1980), is the State\xe2\x80\x99s interest in protecting its fairgoers from fraudulent, deceptive, and\nmisleading solicitation practices. The third justification, based on the \xe2\x80\x9ccaptive audience\xe2\x80\x9d doctrine, is the State\xe2\x80\x99s interest in protecting its fairgoers from annoyance and harassment.\nI quite agree with the Court that the State has a significant interest in maintaining crowd\ncontrol on its fairgrounds. ... I also have no doubt that the State has a significant interest in\nprotecting its fairgoers from fraudulent or deceptive solicitation practices. ... Indeed, because I\nbelieve on this record that this latter interest is substantially furthered by a Rule that restricts\nsales and solicitation activities to fixed booth locations, where the State will have the greatest\nopportunity to police and prevent possible deceptive practices, I would hold that Rule 6.05\xe2\x80\x99s\nrestriction on those particular forms of First Amendment expression is justified as an antifraud\nmeasure. Accordingly, I join the judgment of the Court insofar as it upholds Rule 6.05\xe2\x80\x99s restriction on sales and solicitations. However, because I believe that the booth Rule is an overly\nintrusive means of achieving the State\xe2\x80\x99s interest in crowd control, and because I cannot accept\nthe validity of the State\xe2\x80\x99s third asserted justification. I dissent from the Court\xe2\x80\x99s approval of Rule\n6.05\xe2\x80\x99s restriction on the distribution of literature.\nAs our cases have long noted, once a governmental regulation is shown to impinge upon\nbasic First Amendment rights, the burden falls on the government to show the validity of its\nasserted interest and the absence of less intrusive alternatives. See, e. g., Schneider v. State. The\nchallenged \xe2\x80\x9cregulation must be narrowly tailored to further the State\xe2\x80\x99s legitimate interest.\xe2\x80\x9d\nGrayned v. City of Rockford, 408 U.S. at 116\xe2\x80\x93117. Minnesota\xe2\x80\x99s Rule 6.05 does not meet this\ntest.\nThe Minnesota State Fair is an annual 12\xe2\x80\x93day festival of people and ideas. Located on\npermanent fairgrounds comprising approximately 125 acres, the fair attracts an average of\n115,000 visitors on weekdays and 160,000 on Saturdays and Sundays. Once the fairgoers pay\ntheir admission fees, they are permitted to roam the fairgrounds at will, visiting booths, meeting\nfriends, or just milling about. Significantly, each and every fairgoer, whether political candidate,\nconcerned citizen, or member of a religious group, is free to give speeches, engage in face-to-face\nadvocacy, campaign, or proselytize. No restrictions are placed on any fairgoer\xe2\x80\x99s right to speak\nat any time, at any place, or to any person. Thus, if on a given day 5,000 members of ISKCON\ncame to the fair and paid their admission fees, all 5,000 would be permitted to wander throughout the fairgrounds, delivering speeches to whomever they wanted, about whatever they wanted.\nMoreover, because this right does not rest on Sankirtan or any other religious principle, it can\nbe exercised by every political candidate, partisan advocate, and common citizen who has paid\nthe price of admission. All share the identical right to move peripatetically and speak freely\nthroughout the fairgrounds.\nBecause of Rule 6.05, however, as soon as a proselytizing member of ISKCON hands out a\nfree copy of the Bhagavad-Gita to an interested listener, or a political candidate distributes his\ncampaign brochure to a potential voter, he becomes subject to arrest and removal from the fairgrounds. This constitutes a significant restriction on First Amendment rights. By prohibiting\ndistribution of literature outside the booths, the fair officials sharply limit the number of fairgoers to whom the proselytizers and candidates can communicate their messages. Only if a fairgoer\naffirmatively seeks out such information by approaching a booth does Rule 6.05 fully permit\npotential communicators to exercise their First Amendment rights.\nIn support of the crowd control justification, petitioners contend that if fairgoers are permitted to distribute literature, large crowds will gather, blocking traffic lanes and causing safety\nproblems. \xe2\x80\xa6 But petitioners have failed to provide any support for these assertions. They have\nmade no showing that relaxation of the booth Rule would create additional disorder in a fair\nthat is already characterized by the robust and unrestrained participation of hundreds of thousands of wandering fairgoers. \xe2\x80\xa6 If fairgoers can make speeches, engage in face-to-face proselytizing, and buttonhole prospective supporters, they can surely distribute literature to members of\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c448 Religion in the Law\ntheir audience without significantly adding to the State\xe2\x80\x99s asserted crowd control problem. \xe2\x80\xa6\nThe record is devoid of any evidence that the 125\xe2\x80\x93acre fairgrounds could not accommodate\nperipatetic distributors of literature just as easily as it now accommodates peripatetic\nspeechmakers and proselytizers.\nRelying on a general, speculative fear of disorder, the State of Minnesota has placed a significant restriction on respondents\xe2\x80\x99 ability to exercise core First Amendment rights. This restriction is not narrowly drawn to advance the State\xe2\x80\x99s interests, and for that reason is unconstitutional. \xe2\x80\x9c[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the\nright to freedom of expression.\xe2\x80\x9d Tinker v. Des Moines School Dist., 393 U.S. 503, 508 (1969).\nIf the State had a reasonable concern that distribution in certain parts of the fairgrounds\xe2\x80\x94for\nexample, entrances and exits\xe2\x80\x94would cause disorder, it could have drafted its Rule to prohibit\ndistribution of literature at those points. If the State felt it necessary to limit the number of persons distributing an organization\xe2\x80\x99s literature, it could, within reason, have done that as well. It\nhad no right, however, to ban all distribution of literature outside the booths\xe2\x80\xa6.\nBecause I believe that the State could have drafted a more narrowly drawn restriction on\nthe right to distribute literature without undermining its interest in maintaining crowd control\non the fairgrounds, I would affirm that part of the judgment below that strikes down Rule 6.05\nas it applies to distribution of literature.\nJustice BLACKMUN, concurring in part and dissenting in part.\n\xe2\x80\xa6While I agree with Justice BRENNAN that the State\xe2\x80\x99s interest in order does not justify\nrestrictions upon distribution of literature, I think that common-sense differences between literature distribution, on the one hand, and solicitation and sales, on the other, suggest that the\nlatter activities present greater crowd control problems than the former. The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes\nto convey; instead, the recipient is free to read the message at a later time. For this reason, literature distribution may present even fewer crowd control problems than the oral proselytizing\nthat the State already allows upon the fairgrounds. In contrast, as the dissent in the Minnesota\nSupreme Court observed, sales and the collection of solicited funds not only require the fairgoer\nto stop, but also \xe2\x80\x9cengender additional confusion ... because they involve acts of exchanging\narticles for money, fumbling for and dropping money, making change, etc.\xe2\x80\x9d 299 N.W.2d 79, 87\n(1980). Rules restricting the exchange of money to booths have been upheld in analogous contexts, see e. g., International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d\n809, 828\xe2\x80\x93829 (CA5 1979) (Atlanta airports), and for similar reasons I would uphold Rule 6.05\ninsofar as it applies to solicitation and sales.\n\nHeffron v. ISKCON, 452 U.S. 640 (1981)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 449\n\n512 U.S. 753\nSupreme Court of the United States\n\nMadsen v. Women\xe2\x80\x99s Health Center\nJune 30, 1994\nChief Justice REHNQUIST delivered the opinion of the Court.\nPetitioners challenge the constitutionality of an injunction entered by a Florida state court\nwhich prohibits antiabortion protesters from demonstrating in certain places and in various\nways outside of a health clinic that performs abortions. We hold that the establishment of a 36\xe2\x80\x93\nfoot buffer zone on a public street from which demonstrators are excluded passes muster under\nthe First Amendment, but that several other provisions of the injunction do not.\nRespondents operate abortion clinics throughout central Florida. Petitioners and other\ngroups and individuals are engaged in activities near the site of one such clinic in Melbourne,\nFlorida. They picketed and demonstrated where the public street gives access to the clinic. In\nSeptember 1992, a Florida state court permanently enjoined petitioners from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving\nthe clinic. Six months later, respondents sought to broaden the injunction, complaining that access to the clinic was still impeded by petitioners\xe2\x80\x99 activities and that such activities had also\ndiscouraged some potential patients from entering the clinic, and had deleterious physical effects\non others. The trial court thereupon issued a broader injunction, which is challenged here.\nThe court found that, despite the initial injunction, protesters continued to impede access\nto the clinic by congregating on the paved portion of the street\xe2\x80\x94Dixie Way\xe2\x80\x94leading up to the\nclinic, and by marching in front of the clinic\xe2\x80\x99s driveways. It found that as vehicles heading toward\nthe clinic slowed to allow the protesters to move out of the way, \xe2\x80\x9csidewalk counselors\xe2\x80\x9d would\napproach and attempt to give the vehicle\xe2\x80\x99s occupants antiabortion literature. The number of\npeople congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns.\nThe protests, the court found, took their toll on the clinic\xe2\x80\x99s patients. A clinic doctor testified\nthat, as a result of having to run such a gauntlet to enter the clinic, the patients \xe2\x80\x9cmanifested a\nhigher level of anxiety and hypertension causing those patients to need a higher level of sedation\nto undergo the surgical procedures, thereby increasing the risk associated with such procedures.\xe2\x80\x9d\nThe noise produced by the protesters could be heard within the clinic, causing stress in the patients both during surgical procedures and while recuperating in the recovery rooms. And those\npatients who turned away because of the crowd to return at a later date, the doctor testified,\nincreased their health risks by reason of the delay.\nDoctors and clinic workers, in turn, were not immune even in their homes. Petitioners picketed in front of clinic employees\xe2\x80\x99 residences; shouted at passersby; rang the doorbells of neighbors and provided literature identifying the particular clinic employee as a \xe2\x80\x9cbaby killer.\xe2\x80\x9d Occasionally, the protesters would confront minor children of clinic employees who were home alone.\nThis and similar testimony led the state court to conclude that its original injunction had\nproved insufficient \xe2\x80\x9cto protect the health, safety and rights of women in Brevard and Seminole\nCounty, Florida and surrounding counties seeking access to [medical and counseling] services.\xe2\x80\x9d\nThe state court therefore amended its prior order, enjoining a broader array of activities. The\namended injunction prohibits petitioners from engaging in the following acts:\n(1) At all times on all days, from entering the premises and property of the\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c450 Religion in the Law\nAware Woman Center for Choice [the Melbourne clinic]....\n(2) At all times on all days, from blocking, impeding, inhibiting, or in any\nother manner obstructing or interfering with access to, ingress into and egress\nfrom any building or parking lot of the Clinic.\n(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property\nwithin [36] feet of the property line of the Clinic.... An exception to the 36\nfoot buffer zone is the area immediately adjacent to the Clinic on the east....\nThe [petitioners] ... must remain at least [5] feet from the Clinic\xe2\x80\x99s east line.\nAnother exception to the 36 foot buffer zone relates to the record title owners\nof the property to the north and west of the Clinic. The prohibition against\nentry into the 36 foot buffer zones does not apply to such persons and their\ninvitees. The other prohibitions contained herein do apply, if such owners and\ntheir invitees are acting in concert with the [petitioners]....\n(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting,\nwhistling, shouting, yelling, use of bullhorns, auto horns, sound amplification\nequipment or other sounds or images observable to or within earshot of the\npatients inside the Clinic.\n(5) At all times on all days, in an area within [300] feet of the Clinic, from\nphysically approaching any person seeking the services of the Clinic unless\nsuch person indicates a desire to communicate by approaching or by inquiring\nof the [petitioners]....\n(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents\xe2\x80\x99] employees,\nstaff, owners or agents, or blocking or attempting to block, barricade, or in\nany other manner, temporarily or otherwise, obstruct the entrances, exits or\ndriveways of the residences of any of the [respondents\xe2\x80\x99] employees, staff, owners or agents. The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or\notherwise, the free ingress or egress of persons to any street that provides the\nsole access to the street on which those residences are located.\n(7) At all times on all days, from physically abusing, grabbing, intimidating,\nharassing, touching, pushing, shoving, crowding or assaulting persons entering or leaving, working at or using services at the [respondents\xe2\x80\x99] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of\nthe Clinic....\n(8) At all times on all days, from harassing, intimidating or physically abusing,\nassaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing\nservices at the [respondents\xe2\x80\x99] Clinic.\n(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein.\xe2\x80\x9d Operation Rescue v.\nWomen\xe2\x80\x99s Health Center, Inc., 626 So.2d 664, 679\xe2\x80\x93680 (Fla.1993).\nThe Florida Supreme Court upheld the constitutionality of the trial court\xe2\x80\x99s amended injunction. 626 So.2d 664. \xe2\x80\xa6 Shortly before the Florida Supreme Court\xe2\x80\x99s opinion was announced, the\nUnited States Court of Appeals for the Eleventh Circuit heard a separate challenge to the same\ninjunction. The Court of Appeals struck down the injunction \xe2\x80\xa6 Cheffer v. McGregor, 6 F.3d\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 451\n705, 711 (1993). \xe2\x80\xa6We granted certiorari to resolve the conflict between the Florida Supreme\nCourt and the Court of Appeals over the constitutionality of the state court\xe2\x80\x99s injunction\xe2\x80\xa6.\nOur principal inquiry in determining content neutrality is whether the government has\nadopted a regulation of speech \xe2\x80\x9cwithout reference to the content of the regulated speech.\xe2\x80\x9d Ward\nv. Rock Against Racism, 491 U.S. 781, 791 (1989) (upholding noise regulations); R.A.V. v. St.\nPaul, 505 U.S. 377, 386 (1992) (\xe2\x80\x9cThe government may not regulate [speech] based on hostility\xe2\x80\x94or favoritism\xe2\x80\x94towards the underlying message expressed.\xe2\x80\x9d) \xe2\x80\xa6 We thus look to the government\xe2\x80\x99s purpose as the threshold consideration. Here, the state court imposed restrictions on\npetitioners incidental to their antiabortion message because they repeatedly violated the court\xe2\x80\x99s\noriginal order. That petitioners all share the same viewpoint regarding abortion does not in itself\ndemonstrate that some invidious content- or viewpoint-based purpose motivated the issuance\nof the order. It suggests only that those in the group whose conduct violated the court\xe2\x80\x99s order\nhappen to share the same opinion regarding abortions being performed at the clinic. In short,\nthe fact that the injunction covered people with a particular viewpoint does not itself render the\ninjunction content or viewpoint based. \xe2\x80\xa6 Accordingly, the injunction issued in this case does\nnot demand the level of heightened scrutiny set forth in Perry Ed. Assn., 460 U.S. at 45. And we\nproceed to discuss the standard which does govern.\nIf this were a content-neutral, generally applicable statute, instead of an injunctive order, its\nconstitutionality would be assessed under the standard set forth in Ward v. Rock Against Racism, supra, 491 U.S. at 791, and similar cases. Given that the forum around the clinic is a traditional public forum, see Frisby v. Schultz, 487 U.S. at 480, we would determine whether the\ntime, place, and manner regulations were \xe2\x80\x9cnarrowly tailored to serve a significant governmental\ninterest.\xe2\x80\x9d Ward, 491 U.S. at 791. See also Perry Ed. Assn., 460 U.S. at 45.\nThere are obvious differences, however, between an injunction and a generally applicable\nordinance. Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. See United States v. W.T. Grant Co., 345 U.S. 629, 632\xe2\x80\x93\n633 (1953). Injunctions also carry greater risks of censorship and discriminatory application\nthan do general ordinances. \xe2\x80\xa6 Injunctions, of course, have some advantages over generally applicable statutes in that they can be tailored by a trial judge to afford more precise relief than a\nstatute where a violation of the law has already occurred. United States v. Paradise, 480 U.S.\n149 (1987).\nWe believe that these differences require a somewhat more stringent application of general\nFirst Amendment principles in this context. In past cases evaluating injunctions restricting speech\n\xe2\x80\xa6 we have relied upon such general principles while also seeking to ensure that the injunction\nwas no broader than necessary to achieve its desired goals. \xe2\x80\xa6 Our close attention to the fit\nbetween the objectives of an injunction and the restrictions it imposes on speech is consistent\nwith the general rule, quite apart from First Amendment considerations, \xe2\x80\x9cthat injunctive relief\nshould be no more burdensome to the defendant than necessary to provide complete relief to\nthe plaintiffs.\xe2\x80\x9d Califano v. Yamasaki, 442 U.S. 682, 702 (1979). ... Accordingly, when evaluating\na content-neutral injunction, we think that our standard time, place, and manner analysis is not\nsufficiently rigorous. We must ask instead whether the challenged provisions of the injunction\nburden no more speech than necessary to serve a significant government interest. See, e.g.,\nClaiborne Hardware, 458 U.S. at 916 (when sanctionable \xe2\x80\x9cconduct occurs in the context of\nconstitutionally protected activity ... \xe2\x80\x98precision of regulation\xe2\x80\x99 is demanded\xe2\x80\x9d) (quoting NAACP\nv. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963))\xe2\x80\xa6.\nBoth Justice STEVENS and Justice SCALIA disagree with the standard we announce, for\npolicy reasons. Justice STEVENS believes that \xe2\x80\x9cinjunctive relief should be judged by a more\nlenient standard than legislation,\xe2\x80\x9d because injunctions are imposed on individuals or groups\nwho have engaged in illegal activity. Justice SCALIA, by contrast, believes that content-neutral\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c452 Religion in the Law\ninjunctions are \xe2\x80\x9cat least as deserving of strict scrutiny as a statutory, content-based restriction.\xe2\x80\x9d\nJustice SCALIA bases his belief on the danger that injunctions, even though they might not \xe2\x80\x9cattack content as content,\xe2\x80\x9d may be used to suppress particular ideas; that individual judges should\nnot be trusted to impose injunctions in this context; and that an injunction is procedurally more\ndifficult to challenge than a statute. We believe that consideration of all of the differences and\nsimilarities between statutes and injunctions supports, as a matter of policy, the standard we\napply here\xe2\x80\xa6.\nThe Florida Supreme Court concluded that numerous significant government interests are\nprotected by the injunction. It noted that the State has a strong interest in protecting a woman\xe2\x80\x99s\nfreedom to seek lawful medical or counseling services in connection with her pregnancy. See\nRoe v. Wade, 410 U.S. 113 (1973); In re T.W., 551 So.2d 1186, 1193 (Fla.1989). The State also\nhas a strong interest in ensuring the public safety and order, in promoting the free flow of traffic\non public streets and sidewalks, and in protecting the property rights of all its citizens. In addition, the court believed that the State\xe2\x80\x99s strong interest in residential privacy \xe2\x80\xa6 applied by analogy\nto medical privacy. The court observed that while targeted picketing of the home threatens the\npsychological well-being of the \xe2\x80\x9ccaptive\xe2\x80\x9d resident, targeted picketing of a hospital or clinic\nthreatens not only the psychological, but also the physical, well-being of the patient held \xe2\x80\x9ccaptive\xe2\x80\x9d by medical circumstance. We agree with the Supreme Court of Florida that the combination of these governmental interests is quite sufficient to justify an appropriately tailored injunction to protect them. We now examine each contested provision of the injunction to see if it\nburdens more speech than necessary to accomplish its goal.\nWe begin with the 36\xe2\x80\x93foot buffer zone. The state court prohibited petitioners from \xe2\x80\x9ccongregating, picketing, patrolling, demonstrating or entering\xe2\x80\x9d any portion of the public right-ofway or private property within 36 feet of the property line of the clinic as a way of ensuring\naccess to the clinic. This speech-free buffer zone requires that petitioners move to the other side\nof Dixie Way and away from the driveway of the clinic, where the state court found that they\nrepeatedly had interfered with the free access of patients and staff. \xe2\x80\xa6 The buffer zone also applies to private property to the north and west of the clinic property. We examine each portion\nof the buffer zone separately.\nWe have noted a distinction between the type of focused picketing banned from the buffer\nzone and the type of generally disseminated communication that cannot be completely banned\nin public places, such as handbilling and solicitation. \xe2\x80\xa6 Here the picketing is directed primarily\nat patients and staff of the clinic.\nThe 36\xe2\x80\x93foot buffer zone protecting the entrances to the clinic and the parking lot is a means\nof protecting unfettered ingress to and egress from the clinic, and ensuring that petitioners do\nnot block traffic on Dixie Way. The state court seems to have had few other options to protect\naccess given the narrow confines around the clinic. As the Florida Supreme Court noted, Dixie\nWay is only 21 feet wide in the area of the clinic. The state court was convinced that allowing\npetitioners to remain on the clinic\xe2\x80\x99s sidewalk and driveway was not a viable option in view of\nthe failure of the first injunction to protect access. And allowing the petitioners to stand in the\nmiddle of Dixie Way would obviously block vehicular traffic.\nThe need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference must be given to the state court\xe2\x80\x99s familiarity with the facts and the\nbackground of the dispute between the parties even under our heightened review. \xe2\x80\xa6 Moreover,\none of petitioners\xe2\x80\x99 witnesses during the evidentiary hearing before the state court conceded that\nthe buffer zone was narrow enough to place petitioners at a distance of no greater than 10 to\n12 feet from cars approaching and leaving the clinic. Protesters standing across the narrow street\nfrom the clinic can still be seen and heard from the clinic parking lots. We also bear in mind the\nfact that the state court originally issued a much narrower injunction, providing no buffer zone,\nand that this order did not succeed in protecting access to the clinic. The failure of the first order\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 453\nto accomplish its purpose may be taken into consideration in evaluating the constitutionality of\nthe broader order. National Soc. of Professional Engineers v. United States, 435 U.S. 679, 697\xe2\x80\x93\n698 (1978). On balance, we hold that the 36\xe2\x80\x93foot buffer zone around the clinic entrances and\ndriveway burdens no more speech than necessary to accomplish the governmental interest at\nstake.\nJustice SCALIA\xe2\x80\x99s dissent argues that a videotape made of demonstrations at the clinic represents \xe2\x80\x9cwhat one must presume to be the worst of the activity justifying the injunction.\xe2\x80\x9d This\nseems to us a gratuitous assumption. The videotape was indeed introduced by respondents, presumably because they thought it supported their request for the second injunction. But witnesses\nalso testified as to relevant facts in a 3\xe2\x80\x93day evidentiary hearing, and the state court was therefore\nnot limited to Justice SCALIA\xe2\x80\x99s rendition of what he saw on the videotape to make its findings\nin support of the second injunction. Indeed, petitioners themselves studiously refrained from\nchallenging the factual basis for the injunction both in the state courts and here. \xe2\x80\xa6 We must\ntherefore judge this case on the assumption that the evidence and testimony presented to the\nstate court supported its findings that the presence of protesters standing, marching, and demonstrating near the clinic\xe2\x80\x99s entrance interfered with ingress to and egress from the clinic despite the\nissuance of the earlier injunction.\nThe inclusion of private property on the back and side of the clinic in the 36\xe2\x80\x93foot buffer\nzone raises different concerns. The accepted purpose of the buffer zone is to protect access to\nthe clinic and to facilitate the orderly flow of traffic on Dixie Way. Patients and staff wishing to\nreach the clinic do not have to cross the private property abutting the clinic property on the\nnorth and west, and nothing in the record indicates that petitioners\xe2\x80\x99 activities on the private\nproperty have obstructed access to the clinic. \xe2\x80\xa6 We hold that on the record before us the 36\xe2\x80\x93\nfoot buffer zone as applied to the private property to the north and west of the clinic burdens\nmore speech than necessary to protect access to the clinic.\nIn response to high noise levels outside the clinic, the state court restrained the petitioners\nfrom \xe2\x80\x9csinging, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients\ninside the [c]linic\xe2\x80\x9d during the hours of 7:30 a.m. through noon on Mondays through Saturdays.\nWe must, of course, take account of the place to which the regulations apply in determining\nwhether these restrictions burden more speech than necessary. We have upheld similar noise\nrestrictions in the past, and as we noted in upholding a local noise ordinance around public\nschools, \xe2\x80\x9cthe nature of a place, \xe2\x80\x98the pattern of its normal activities, dictate the kinds of regulations ... that are reasonable.\xe2\x80\x99\xe2\x80\x9d Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). Noise\ncontrol is particularly important around hospitals and medical facilities during surgery and recovery periods\xe2\x80\xa6.\nWe hold that the limited noise restrictions imposed by the state court order burden no more\nspeech than necessary to ensure the health and well-being of the patients at the clinic. The First\nAmendment does not demand that patients at a medical facility undertake Herculean efforts to\nescape the cacophony of political protests. \xe2\x80\x9cIf overamplified loudspeakers assault the citizenry,\ngovernment may turn them down.\xe2\x80\x9d Grayned, 408 U.S. at 116. That is what the state court did\nhere, and we hold that its action was proper.\nThe same, however, cannot be said for the \xe2\x80\x9cimages observable\xe2\x80\x9d provision of the state court\xe2\x80\x99s\norder. Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment. But rather than prohibiting the display of signs that could be interpreted as threats or veiled threats, the state court issued a blanket ban on all \xe2\x80\x9cimages observable.\xe2\x80\x9d This broad prohibition on all \xe2\x80\x9cimages observable\xe2\x80\x9d burdens more speech than necessary to\nachieve the purpose of limiting threats to clinic patients or their families. \xe2\x80\xa6 [It] is much easier\nfor the clinic to pull its curtains than for a patient to stop up her ears, and no more is required\nto avoid seeing placards through the windows of the clinic. This provision of the injunction\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c454 Religion in the Law\nviolates the First Amendment.\nThe state court ordered that petitioners refrain from physically approaching any person\nseeking services of the clinic \xe2\x80\x9cunless such person indicates a desire to communicate\xe2\x80\x9d in an area\nwithin 300 feet of the clinic. The state court was attempting to prevent clinic patients and staff\nfrom being \xe2\x80\x9cstalked\xe2\x80\x9d or \xe2\x80\x9cshadowed\xe2\x80\x9d by the petitioners as they approached the clinic. \xe2\x80\xa6 But it\nis difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the\nservices of the clinic, regardless of how peaceful the contact may be, without burdening more\nspeech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence\nthat the protesters\xe2\x80\x99 speech is independently proscribable (i.e., \xe2\x80\x9cfighting words\xe2\x80\x9d or threats), or is\nso infused with violence as to be indistinguishable from a threat of physical harm \xe2\x80\xa6 this provision cannot stand. \xe2\x80\x9cAs a general matter, we have indicated that in public debate our own citizens\nmust tolerate insulting, and even outrageous, speech in order to provide adequate breathing\nspace to the freedoms protected by the First Amendment.\xe2\x80\x9d Boos v. Barry, 485 U.S. at 322. The\n\xe2\x80\x9cconsent\xe2\x80\x9d requirement alone invalidates this provision; it burdens more speech than is necessary\nto prevent intimidation and to ensure access to the clinic.\nThe final substantive regulation challenged by petitioners relates to a prohibition against\npicketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff. The prohibition also covers impeding access to streets that provide the sole\naccess to streets on which those residences are located. The same analysis applies to the use of\nsound amplification equipment here as that discussed above: the government may simply demand that petitioners turn down the volume if the protests overwhelm the neighborhood.\nGrayned, 408 U.S. at 116.\nAs for the picketing, our prior decision upholding a law banning targeted residential picketing remarked on the unique nature of the home, as \xe2\x80\x9c \xe2\x80\x98the last citadel of the tired, the weary,\nand the sick.\xe2\x80\x99 \xe2\x80\x9d Frisby, 487 U.S. at 484. We stated that \xe2\x80\x9cthe State\xe2\x80\x99s interest in protecting the wellbeing, tranquility, and privacy of the home is certainly of the highest order in a free and civilized\nsociety.\xe2\x80\x9d\nBut the 300\xe2\x80\x93foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby. \xe2\x80\xa6 The record before us does not contain sufficient justification for this broad a ban on picketing; it appears that a limitation on the\ntime, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result\xe2\x80\xa6.\nIn sum, we uphold the noise restrictions and the 36\xe2\x80\x93foot buffer zone around the clinic entrances and driveway because they burden no more speech than necessary to eliminate the unlawful conduct targeted by the state court\xe2\x80\x99s injunction. We strike down as unconstitutional the\n36\xe2\x80\x93foot buffer zone as applied to the private property to the north and west of the clinic, the\n\xe2\x80\x9cimages observable\xe2\x80\x9d provision, the 300\xe2\x80\x93foot no-approach zone around the clinic, and the 300\xe2\x80\x93\nfoot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction. Accordingly, the judgment of the\nFlorida Supreme Court is\nAffirmed in part and reversed in part.\nJustice SOUTER, concurring.\nI join the Court\xe2\x80\x99s opinion and write separately only to clarify \xe2\x80\xa6 [that] petitioners themselves\nacknowledge that the governmental interests in protection of public safety and order, of the free\nflow of traffic, and of property rights are reflected in Florida law. See Brief for Petitioners 17,\nand n. 7\xe2\x80\xa6.\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 455\nJustice STEVENS, concurring in part and dissenting in part.\n\xe2\x80\xa6I agree with the Court that a different standard governs First Amendment challenges to\ngenerally applicable legislation than the standard that measures such challenges to judicial remedies for proven wrongdoing. Unlike the Court, however, I believe that injunctive relief should\nbe judged by a more lenient standard than legislation. As the Court notes, legislation is imposed\non an entire community, regardless of individual culpability. By contrast, injunctions apply solely\nto an individual or a limited group of individuals who, by engaging in illegal conduct, have been\njudicially deprived of some liberty\xe2\x80\x94the normal consequence of illegal activity. Given this distinction, a statute prohibiting demonstrations within 36 feet of an abortion clinic would probably violate the First Amendment, but an injunction directed at a limited group of persons who\nhave engaged in unlawful conduct in a similar zone might well be constitutional\xe2\x80\xa6.\nThe standard governing injunctions has two obvious dimensions. On the one hand, the\ninjunction should be no more burdensome than necessary to provide complete relief, Califano\nv. Yamasaki, 442 U.S. 682, 702 (1979). \xe2\x80\xa6 On the other hand, even when an injunction impinges\non constitutional rights, more than \xe2\x80\x9ca simple proscription against the precise conduct previously\npursued\xe2\x80\x9d may be required; the remedy must include appropriate restraints on \xe2\x80\x9cfuture activities\nboth to avoid a recurrence of the violation and to eliminate its consequences.\xe2\x80\x9d National Soc. of\nProfessional Engineers v. United States, 435 U.S. 679, 697\xe2\x80\x93698 (1978). Moreover, \xe2\x80\x9c[t]he judicial remedy for a proven violation of law will often include commands that the law does not\nimpose on the community at large.\xe2\x80\x9d Teachers v. Hudson, 475 U.S. 292, 309\xe2\x80\x93310, n. 22 (1986).\nAs such, repeated violations may justify sanctions that might be invalid if applied to a first offender or if enacted by the legislature. See United States v. Paradise, 480 U.S. 149 (1987)\xe2\x80\xa6.\nIn this case, the trial judge heard three days of testimony and found that petitioners not only\nhad engaged in tortious conduct, but also had repeatedly violated an earlier injunction. The\ninjunction is thus twice removed from a legislative proscription applicable to the general public\nand should be judged by a standard that gives appropriate deference to the judge\xe2\x80\x99s unique familiarity with the facts\xe2\x80\xa6.\nThe second question presented by the certiorari petition asks whether the \xe2\x80\x9cconsent requirement before speech is permitted\xe2\x80\x9d within a 300\xe2\x80\x93foot buffer zone around the clinic unconstitutionally infringes on free speech. Petitioners contend that these restrictions create a \xe2\x80\x9cno speech\xe2\x80\x9d\nzone in which they cannot speak unless the listener indicates a positive interest in their speech.\n[The] Court seems to suggest that, even in a more narrowly defined zone, such a consent requirement is constitutionally impermissible. Petitioners\xe2\x80\x99 argument and the Court\xe2\x80\x99s conclusion,\nhowever, are based on a misreading of \xc2\xb6 (5) of the injunction.\nThat paragraph does not purport to prohibit speech; it prohibits a species of conduct. Specifically, it prohibits petitioners \xe2\x80\x9cfrom physically approaching any person seeking the services of\nthe Clinic unless such person indicates a desire to communicate by approaching or by inquiring\xe2\x80\x9d\nof petitioners. The meaning of the term \xe2\x80\x9cphysically approaching\xe2\x80\x9d is explained by the detailed\nprohibition that applies when the patient refuses to converse with, or accept delivery of literature\nfrom, petitioners. Absent such consent, the petitioners \xe2\x80\x9cshall not accompany such person, encircle, surround, harass, threaten or physically or verbally abuse those individuals who choose not\nto communicate with them.\xe2\x80\x9d As long as petitioners do not physically approach patients in this\nmanner, they remain free not only to communicate with the public but also to offer verbal or\nwritten advice on an individual basis to the clinic\xe2\x80\x99s patients through their \xe2\x80\x9csidewalk counseling.\xe2\x80\x9d\nPetitioners\xe2\x80\x99 \xe2\x80\x9ccounseling\xe2\x80\x9d of the clinic\xe2\x80\x99s patients is a form of expression analogous to labor\npicketing. It is a mixture of conduct and communication. \xe2\x80\xa6 As with picketing, the principal\nreason why handbills containing the same message are so much less effective than \xe2\x80\x9ccounseling\xe2\x80\x9d\nis that \xe2\x80\x9cthe former depend entirely on the persuasive force of the idea.\xe2\x80\x9d Just as it protects picketing, the First Amendment protects the speaker\xe2\x80\x99s right to offer \xe2\x80\x9csidewalk counseling\xe2\x80\x9d to all\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c456 Religion in the Law\npassers-by. That protection, however, does not encompass attempts to abuse an unreceptive or\ncaptive audience, at least under the circumstances of this case. One may register a public protest\nby placing a vulgar message on his jacket and, in so doing, expose unwilling viewers, Cohen v.\nCalifornia, 403 U.S. 15, 21\xe2\x80\x9322 (1971). Nevertheless, that does not mean that he has an unqualified constitutional right to follow and harass an unwilling listener, especially one on her way to\nreceive medical services. Cf. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).\nThe \xe2\x80\x9cphysically approaching\xe2\x80\x9d prohibition entered by the trial court is no broader than the\nprotection necessary to provide relief for the violations it found. \xe2\x80\xa6 The protection is especially\nappropriate for the clinic patients given that the trial judge found that petitioners\xe2\x80\x99 prior conduct\ncaused higher levels of \xe2\x80\x9canxiety and hypertension\xe2\x80\x9d in the patients, increasing the risks associated\nwith the procedures that the patients seek\xe2\x80\xa6.\nI thus conclude that, under the circumstances of this case, the prohibition against \xe2\x80\x9cphysically approaching\xe2\x80\x9d in the 300\xe2\x80\x93foot zone around the clinic withstands petitioners\xe2\x80\x99 First Amendment challenge. I therefore dissent from [that part of the majority opinion]\xe2\x80\xa6.\nJustice SCALIA, with whom Justice KENNEDY and Justice THOMAS join, concurring in the\njudgment in part and dissenting in part.\n\xe2\x80\xa6The entire injunction in this case departs so far from the established course of our jurisprudence that in any other context it would have been regarded as a candidate for summary\nreversal. But the context here is abortion. A long time ago, in dissent from another abortionrelated case, Justice O\xe2\x80\x99CONNOR, joined by then-Justice REHNQUIST, wrote [in dissent]:\nThis Court\xe2\x80\x99s abortion decisions have already worked a major distortion in the\nCourt\xe2\x80\x99s constitutional jurisprudence. \xe2\x80\xa6 [N]o legal rule or doctrine is safe from\nad hoc nullification by this Court when an occasion for its application arises\nin a case involving state regulation of abortion. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 814 (1986).\nToday the ad hoc nullification machine claims its latest, greatest, and most surprising victim:\nthe First Amendment. Because I believe that the judicial creation of a 36\xe2\x80\x93foot zone in which\nonly a particular group, which had broken no law, cannot exercise its rights of speech, assembly,\nand association, and the judicial enactment of a noise prohibition, applicable to that group and\nthat group alone, are profoundly at odds with our First Amendment precedents and traditions,\nI dissent.\nThe record of this case contains a videotape, with running caption of time and date, displaying what one must presume to be the worst of the activity justifying the injunction issued\nby Judge McGregor and partially approved today by this Court. The tape was shot by employees of, or volunteers at, the Aware Woman Clinic on three Saturdays in February and March\n1993\xe2\x80\xa6\nAnyone seriously interested in what this case was about must view that tape. And anyone\ndoing so who is familiar with run-of-the-mine labor picketing, not to mention some other social\nprotests, will be aghast at what it shows we have today permitted an individual judge to do. I\nwill do my best to describe it.\nOn Saturday, March 6, 1993 \xe2\x80\xa6 [on] the clinic side of the street, two groups confront each\nother across the line marking the south border of the clinic property\xe2\x80\x94although they are so close\ntogether it is often impossible to tell them apart. On the clinic property (and with their backs to\nthe camera) are a line of clinic and abortion-rights supporters, stretching the length of the property. Opposite them, and on the public right-of-way between the clinic property and Dixie Way\nitself, is a group of abortion opponents, some standing in place, others walking a picket line in\nan elongated oval pattern running the length of the property\xe2\x80\x99s south border\xe2\x80\xa6.\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 457\nClinic supporters are more or less steadily chanting the following slogans: \xe2\x80\x9cOur right, our\nright, our right, to decide\xe2\x80\x9d; \xe2\x80\x9cRight to life is a lie, you don\xe2\x80\x99t care if women die.\xe2\x80\x9d Then abortion\nopponents can be heard to sing: \xe2\x80\x9cJesus loves the little children, all the children of the world, red\nand yellow, black and white, they are precious in His sight, Jesus loves the little children of the\nworld.\xe2\x80\x9d Clinic supporters respond with: Q: \xe2\x80\x9cWhat do we want?\xe2\x80\x9d A: \xe2\x80\x9cChoice.\xe2\x80\x9d Q: \xe2\x80\x9cWhen do\nwe want it?\xe2\x80\x9d A: \xe2\x80\x9cNow.\xe2\x80\x9d (\xe2\x80\x9cLouder!\xe2\x80\x9d) And that call and response is repeated\xe2\x80\xa6. On placards\nheld by picketers and by stationary protesters on both sides of the line, the following slogans are\nvisible: \xe2\x80\x9cAbortionists lie to women.\xe2\x80\x9d \xe2\x80\x9cChoose Life: Abortion Kills.\xe2\x80\x9d \xe2\x80\x9cN.O.W. Violence.\xe2\x80\x9d \xe2\x80\x9cThe\nGod of Israel is Pro\xe2\x80\x93Life.\xe2\x80\x9d \xe2\x80\x9cRU 486 Now.\xe2\x80\x9d \xe2\x80\x9cShe Is a Child, Not a Choice.\xe2\x80\x9d \xe2\x80\x9cAbortion Kills\nChildren.\xe2\x80\x9d \xe2\x80\x9cKeep Abortion Legal.\xe2\x80\x9d \xe2\x80\x9cAbortion: God Calls It Murder.\xe2\x80\x9d Some abortion opponents wear T-shirts bearing the phrase \xe2\x80\x9cChoose Life.\xe2\x80\x9d\n\xe2\x80\xa6At no time is there any apparent effort to prevent entry or exit, or even to delay it, except\nfor the time needed for the picketers to get out of the way. There is no sitting down, packing en\nmasse, linking of hands, or any other effort to blockade the clinic property\xe2\x80\xa6.\nAt one point, [Operation Rescue founder] Randall Terry arrives and the press converge\nupon him, apparently in Dixie Way itself. A sign is held near his head reading \xe2\x80\x9cRandall Terry\nSucks.\xe2\x80\x9d Terry appears to be speaking to the press and at one point tears pages from a notebook\nof some kind. Through all of this, abortion opponents and abortion-rights supporters appear to\nbe inches from one another on each side of the south border of the property. They exchange\nwords, but at no time is there any violence or even any discernible jostling or physical contact\nbetween these political opponents.\nThe scene shifts to early afternoon of the same day. Most of the press and most of the\nabortion opponents appear to have departed. The camera focuses on a woman who faces the\nclinic and, hands cupped over her mouth, shouts the following: \xe2\x80\x9cBe not deceived; God is not\nmocked.... Ed Windle, God\xe2\x80\x99s judgment is on you, and if you don\xe2\x80\x99t repent, He will strike you\ndead. The baby\xe2\x80\x99s blood flowed over your hands, Ed Windle.... You will burn in hell, Ed Windle,\nif you don\xe2\x80\x99t repent. There were arms and legs pulled off today.... An innocent little child, a little\nboy, a little girl, is being destroyed right now.\xe2\x80\x9d Cheering is audible from the clinic grounds. A\nsecond person shouts \xe2\x80\x9cYou are responsible for the deaths of children.... You are a murderer.\nShame on you.\xe2\x80\x9d From the clinic grounds someone shouts \xe2\x80\x9cWhy don\xe2\x80\x99t you go join the wacko in\nWaco?\xe2\x80\x9d The first woman says \xe2\x80\x9cYou are applauding the death of your children. We will be everywhere.... There will be no peace and no rest for the wicked.... I pray that you will give them\ndreams and nightmares, God.\xe2\x80\x9d\xe2\x80\xa6\n[Another] segment begins. The date-time register indicates that it is the morning of Saturday,\nFebruary 20, 1993. A teenage girl faces the clinic and exclaims: \xe2\x80\x9cPlease don\xe2\x80\x99t let them kill me,\nMommy. Help me, Daddy, please.\xe2\x80\x9d Clinic supporters chant, \xe2\x80\x9cWe won\xe2\x80\x99t go back.\xe2\x80\x9d A second\nwoman, the one who spoke at greatest length in the first segment, calls, \xe2\x80\x9cIf you [inaudible], help\nher through it.\xe2\x80\x9d Off camera, a group sings \xe2\x80\x9cRoe, Roe, Roe v. Wade, we will never quit, Freedom\nof choice is the law of the land, better get used to it.\xe2\x80\x9d The woman from the first segment, appears\nto address specific persons on clinic property: \xe2\x80\x9cDo you ever wonder what your baby would have\nlooked like? Do you wonder how old it would have been? Because I did the same thing....\xe2\x80\x9d Then\na police officer is visible writing someone a citation. The videotape ends with a shot of an automobile moving eastbound on Dixie Way. As it slows to a stop at the intersection of U.S. 1, two\nleafletters approach the car and then pull back as it passes on.\nThe videotape and the rest of the record, including the trial court\xe2\x80\x99s findings, show that a\ngreat many forms of expression and conduct occurred in the vicinity of the clinic. These include\nsinging, chanting, praying, shouting, the playing of music both from the clinic and from\nhandheld boom boxes, speeches, peaceful picketing, communication of familiar political messages, handbilling, persuasive speech directed at opposing groups on the issue of abortion, efforts\nto persuade individuals not to have abortions, personal testimony, interviews with the press, and\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c458 Religion in the Law\nmedia efforts to report on the protest. What the videotape, the rest of the record, and the trial\ncourt\xe2\x80\x99s findings do not contain is any suggestion of violence near the clinic, nor do they establish\nany attempt to prevent entry or exit.\nUnder this Court\xe2\x80\x99s jurisprudence, there is no question that this public sidewalk area is a\n\xe2\x80\x9cpublic forum,\xe2\x80\x9d where citizens generally have a First Amendment right to speak. United States\nv. Grace, 461 U.S. 171, 177 (1983). The parties to this case invited the Court to employ one or\nthe other of the two well-established standards applied to restrictions upon this First Amendment right. Petitioners claimed the benefit of so-called \xe2\x80\x9cstrict scrutiny,\xe2\x80\x9d the standard applied to\ncontent-based restrictions: The restriction must be \xe2\x80\x9cnecessary to serve a compelling state interest\nand ... narrowly drawn to achieve that end.\xe2\x80\x9d Perry Ed. Assn. v. Perry Local Educators\xe2\x80\x99 Assn.,\n460 U.S. 37, 45, 103 S.Ct. 948, 955 (1983). Respondents, on the other hand, contended for\nwhat has come to be known as \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d (midway between the \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d\ndemanded for content-based regulation of speech and the \xe2\x80\x9crational basis\xe2\x80\x9d standard that is applied\xe2\x80\x94under the Equal Protection Clause\xe2\x80\x94to government regulation of nonspeech activities).\nSee, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642 (1994). That standard,\napplicable to so-called \xe2\x80\x9ctime, place, and manner regulations\xe2\x80\x9d of speech, provides that the regulations are permissible so long as they \xe2\x80\x9care content-neutral, are narrowly tailored to serve a\nsignificant government interest, and leave open ample alternative channels of communication.\xe2\x80\x9d\nPerry, 460 U.S. at 45, 103 S.Ct., at 955. The Court adopts neither of these, but creates, brand\nnew for this abortion-related case, an additional standard that is (supposedly) \xe2\x80\x9csomewhat more\nstringent,\xe2\x80\x9d than intermediate scrutiny, yet not as \xe2\x80\x9crigorous,\xe2\x80\x9d as strict scrutiny. The Court does\nnot give this new standard a name, but perhaps we could call it intermediate-intermediate scrutiny. The difference between it and intermediate scrutiny (which the Court acknowledges is inappropriate for injunctive restrictions on speech) is frankly too subtle for me to describe, so I\nmust simply recite it: Whereas intermediate scrutiny requires that the restriction be \xe2\x80\x9cnarrowly\ntailored to serve a significant government interest,\xe2\x80\x9d the new standard requires that the restriction\n\xe2\x80\x9cburden no more speech than necessary to serve a significant government interest.\xe2\x80\x9d\xe2\x80\xa6\n\xe2\x80\xa6The real question in this case is not whether intermediate scrutiny, which the Court assumes to be some kind of default standard, should be supplemented because of the distinctive\ncharacteristics of injunctions; but rather whether those distinctive characteristics are not, for\nreasons of both policy and precedent, fully as good a reason as \xe2\x80\x9ccontent basis\xe2\x80\x9d for demanding\nstrict scrutiny. \xe2\x80\xa6[A] restriction upon speech imposed by injunction (whether nominally content\nbased or nominally content neutral) is at least as deserving of strict scrutiny as a statutory, content-based restriction.\n\xe2\x80\xa6The danger of content-based statutory restrictions upon speech is that they may be designed and used precisely to suppress the ideas in question rather than to achieve any other\nproper governmental aim. But that same danger exists with injunctions. \xe2\x80\xa6 The injunction [here]\nwas sought against a single-issue advocacy group by persons and organizations with a business\nor social interest in suppressing that group\xe2\x80\x99s point of view.\nThe second reason speech-restricting injunctions are at least as deserving of strict scrutiny\nis obvious enough: They are the product of individual judges rather than of legislatures\xe2\x80\x94and\noften of judges who have been chagrined by prior disobedience of their orders. The right to free\nspeech should not lightly be placed within the control of a single man or woman. And the third\nreason is that the injunction is a much more powerful weapon than a statute, and so should be\nsubjected to greater safeguards\xe2\x80\xa6.\nFinally, though I believe speech-restricting injunctions are dangerous enough to warrant\nstrict scrutiny even when they are not technically content based, I think the injunction in the\npresent case was content based (indeed, viewpoint based) to boot. The Court claims that it was\ndirected, not at those who spoke certain things (antiabortion sentiments), but at those who did\ncertain things (violated the earlier injunction). If that were true, then the injunction\xe2\x80\x99s residual\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 459\ncoverage of \xe2\x80\x9call persons acting in concert or participation with [the named individuals and organizations], or on their behalf,\xe2\x80\x9d would not include those who merely entertained the same\nbeliefs and wished to express the same views as the named defendants. But the construction\ngiven to the injunction by the issuing judge, which is entitled to great weight \xe2\x80\xa6 is to the contrary:\nAll those who wish to express the same views as the named defendants are deemed to be \xe2\x80\x9cacting\nin concert or participation.\xe2\x80\x9d Following issuance of the amended injunction, a number of persons\nwere arrested for walking within the 36\xe2\x80\x93foot speech-free zone. At an April 12, 1993, hearing\nbefore the trial judge who issued the injunction, the following exchanges occurred:\nMr. Lacy: \xe2\x80\x9cI was wondering how we can\xe2\x80\x94why we were arrested and confined as being in concert with these people that we don\xe2\x80\x99t know, when other\npeople weren\xe2\x80\x99t, that were in that same buffer zone, and it was kind of selective\nas to who was picked and who was arrested and who was obtained for the\nsame buffer zone in the same public injunction.\xe2\x80\x9d\nThe Court: \xe2\x80\x9cMr. Lacy, I understand that those on the other side of the issue\n[abortion-rights supporters] were also in the area. If you are referring to them,\nthe Injunction did not pertain to those on the other side of the issue, because\nthe word in concert with means in concert with those who had taken a certain\nposition in respect to the clinic, adverse to the clinic. If you are saying that is\nthe selective basis that the pro-choice were not arrested when pro-life was arrested, that\xe2\x80\x99s the basis of that selection....\xe2\x80\x9d\nAnd:\nJohn Doe No. 16: \xe2\x80\x9cI also understand that the reason why I was arrested was\nbecause I acted in concert with those who were demonstrating pro-life. I guess\nthe question that I\xe2\x80\x99m asking is were the beliefs in ideologies of the people that\nwere present, were those taken into consideration when we were arrested?\nThe Court: \xe2\x80\x9cIn effect, yes.\xe2\x80\x9d\n\xe2\x80\xa6These colloquies leave no doubt that the revised injunction here is tailored to restrain persons\ndistinguished, not by proscribable conduct, but by proscribable views\xe2\x80\xa6.\nI turn now to the Court\xe2\x80\x99s performance in the present case. I am content to evaluate it under\nthe lax (intermediate-intermediate scrutiny) standard that the Court has adopted, because even\nby that distorted light it is inadequate\xe2\x80\xa6.\nAssuming then that the \xe2\x80\x9csignificant interests\xe2\x80\x9d the Court mentioned must in fact be significant enough to be protected by state law (a concept that includes a prior court order), which\nlaw has been, or is about to be, violated, the question arises: What state law is involved here?\nThe only one even mentioned is the original September 30, 1992, injunction, which had been\nissued (quite rightly, in my judgment) in response to threats by the originally named parties (including petitioners here) that they would \xe2\x80\x9cphysically close down abortion mills,\xe2\x80\x9d \xe2\x80\x9cblock access\nto clinics,\xe2\x80\x9d \xe2\x80\x9cignore the law of the State,\xe2\x80\x9d and \xe2\x80\x9cshut down a clinic.\xe2\x80\x9d\nAccording to the Court, the state court imposed the later injunction\xe2\x80\x99s \xe2\x80\x9crestrictions on petitioner[s\xe2\x80\x99] ... antiabortion message because they repeatedly violated the court\xe2\x80\x99s original order.\xe2\x80\x9d\nSurprisingly, the Court accepts this reason as valid, without asking whether the court\xe2\x80\x99s findings\nof fact support it\xe2\x80\x94whether, that is, the acts of which petitioners stood convicted were violations\nof the original injunction.\nThe Court simply takes this on faith\xe2\x80\x94even though violation of the original injunction is an\nessential part of the reasoning whereby it approves portions of the amended injunction, even\nthough petitioners denied any violation of the original injunction, even though the utter lack of\nproper basis for the other challenged portions of the injunction hardly inspires confidence that\nthe lower courts knew what they were doing, and even though close examination of the factual\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c460 Religion in the Law\nbasis for essential conclusions is the usual practice in First Amendment cases\xe2\x80\xa6.\nIf the original injunction is read as it must be, there is nothing in the trial court\xe2\x80\x99s findings to\nsuggest that it was violated. The Court today speaks of \xe2\x80\x9cthe failure of the first injunction to\nprotect access.\xe2\x80\x9d But the first injunction did not broadly \xe2\x80\x9cprotect access.\xe2\x80\x9d It forbade particular\nacts that impeded access, to wit, intentionally \xe2\x80\x9cblocking, impeding or obstructing.\xe2\x80\x9d The trial\ncourt\xe2\x80\x99s findings identify none of these acts, but only a mild interference with access that is the\nincidental by-product of leafletting and picketing. There was no sitting down, no linking of arms,\nno packing en masse in the driveway; the most that can be alleged (and the trial court did not\neven make this a finding) is that on one occasion protesters \xe2\x80\x9ctook their time to get out of the\nway.\xe2\x80\x9d If that is enough to support this one-man proscription of free speech, the First Amendment\nis in grave peril\xe2\x80\xa6.\nI almost forgot to address the facts showing prior violation of law (including judicial order)\nwith respect to the other portion of the injunction the Court upholds: the no-noise-within-earshot-of-patients provision. That is perhaps because, amazingly, neither the Florida courts nor\nthis Court makes the slightest attempt to link that provision to prior violations of law\xe2\x80\xa6.\nPerhaps there is a local ordinance in Melbourne, Florida, prohibiting loud noise in the vicinity of hospitals and abortion clinics. Or perhaps even a Florida common-law prohibition\napplies, rendering such noisemaking tortious. But the record in this case shows (and, alas, the\nCourt\xe2\x80\x99s opinion today demands) neither indication of the existence of any such law nor a finding\nthat it had been violated\xe2\x80\xa6.\nThe Court does not even attempt a response to the point I have made in this section, insofar\nas the injunction against noise is concerned. That portion of its opinion, does not even allege\nany violation of the prior injunction to support this judge-crafted abridgment of speech. With\nrespect to the 36\xe2\x80\x93foot speech-free zone, the Court attempts a response, which displays either a\nmisunderstanding of the point I have made or an effort to recast it into an answerable one. My\npoint does not rely, as the Court\xe2\x80\x99s response suggests, upon my earlier description of the videotape. That was set forth just for context, to show the reader what suppression of normal and\npeaceful social protest is afoot here. Nor is it relevant to my point that \xe2\x80\x9cpetitioners themselves\nstudiously refrained from challenging the factual basis for the injunction,\xe2\x80\x9d I accept the facts as\nthe Florida court found them; I deny that those facts support its conclusion \xe2\x80\xa6 that the original\ninjunction had been violated\xe2\x80\xa6.\nWhat we have decided seems to be, and will be reported by the media as, an abortion case.\nBut it will go down in the lawbooks, it will be cited, as a free-speech injunction case\xe2\x80\x94and the\ndamage its novel principles produce will be considerable. The proposition that injunctions\nagainst speech are subject to a standard indistinguishable from (unless perhaps more lenient in\nits application than) the \xe2\x80\x9cintermediate scrutiny\xe2\x80\x9d standard we have used for \xe2\x80\x9ctime, place, and\nmanner\xe2\x80\x9d legislative restrictions; the notion that injunctions against speech need not be closely\ntied to any violation of law, but may simply implement sound social policy; and the practice of\naccepting trial-court conclusions permitting injunctions without considering whether those conclusions are supported by any findings of fact\xe2\x80\x94these latest by-products of our abortion jurisprudence ought to give all friends of liberty great concern.\nFor these reasons, I dissent from that portion of the judgment upholding parts of the injunction.\n\nMadsen v. Women\xe2\x80\x99s Health Center, 512 U.S. 753 (1994)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 461\n\n573 U.S. 464\nSupreme Court of the United States\n\nMcCullen v. Coakley\nJune 26, 2014\nChief Justice ROBERTS delivered the opinion of the Court.\nA Massachusetts statute makes it a crime to knowingly stand on a \xe2\x80\x9cpublic way or sidewalk\xe2\x80\x9d\nwithin 35 feet of an entrance or driveway to any place, other than a hospital, where abortions\nare performed. Mass. Gen. Laws, ch. 266, \xc2\xa7\xc2\xa7 120E\xc2\xbd(a), (b). Petitioners are individuals who\napproach and talk to women outside such facilities, attempting to dissuade them from having\nabortions. The statute prevents petitioners from doing so near the facilities\xe2\x80\x99 entrances. The question presented is whether the statute violates the First Amendment.\nIn 2000, the Massachusetts Legislature enacted the Massachusetts Reproductive Health\nCare Facilities Act, Mass. Gen. Laws, ch. 266, \xc2\xa7 120E\xc2\xbd. The law was designed to address\nclashes between abortion opponents and advocates of abortion rights that were occurring outside clinics where abortions were performed. The Act established a defined area with an 18\xe2\x80\x93foot\nradius around the entrances and driveways of such facilities. \xc2\xa7 120E\xc2\xbd (b). Anyone could enter\nthat area, but once within it, no one (other than certain exempt individuals) could knowingly\napproach within six feet of another person\xe2\x80\x94unless that person consented\xe2\x80\x94\xe2\x80\x9cfor the purpose of\npassing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or\ncounseling with such other person.\xe2\x80\x9d A separate provision subjected to criminal punishment anyone who \xe2\x80\x9cknowingly obstructs, detains, hinders, impedes or blocks another person\xe2\x80\x99s entry to\nor exit from a reproductive health care facility.\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd(e).\nThe statute was modeled on a similar Colorado law that this Court had upheld in Hill v.\nColorado, 530 U.S. 703 (2000). Relying on Hill, the United States Court of Appeals for the First\nCircuit sustained the Massachusetts statute against a First Amendment challenge. McGuire v.\nReilly, 386 F.3d 45 (2004) (McGuire II ), cert. denied, 544 U.S. 974 (2005)\xe2\x80\xa6.\nBy 2007, some Massachusetts legislators and law enforcement officials had come to regard\nthe 2000 statute as inadequate. At legislative hearings, multiple witnesses recounted apparent\nviolations of the law. Massachusetts Attorney General Martha Coakley, for example, testified\nthat protestors violated the statute \xe2\x80\x9con a routine basis.\xe2\x80\x9d To illustrate this claim, she played a\nvideo depicting protestors approaching patients and clinic staff within the buffer zones, ostensibly without the latter individuals\xe2\x80\x99 consent. Clinic employees and volunteers also testified that\nprotestors congregated near the doors and in the driveways of the clinics, with the result that\nprospective patients occasionally retreated from the clinics rather than try to make their way to\nthe clinic entrances or parking lots.\nCaptain William B. Evans of the Boston Police Department, however, testified that his officers had made \xe2\x80\x9cno more than five or so arrests\xe2\x80\x9d at the Planned Parenthood clinic in Boston\nand that what few prosecutions had been brought were unsuccessful. Witnesses attributed the\ndearth of enforcement to the difficulty of policing the six-foot no-approach zones. Captain Evans testified that the 18\xe2\x80\x93foot zones were so crowded with protestors that they resembled \xe2\x80\x9ca\ngoalie\xe2\x80\x99s crease,\xe2\x80\x9d making it hard to determine whether a protestor had deliberately approached\na patient or, if so, whether the patient had consented. For similar reasons, Attorney General\nCoakley concluded that the six-foot no-approach zones were \xe2\x80\x9cunenforceable.\xe2\x80\x9d What the police\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c462 Religion in the Law\nneeded, she said, was a fixed buffer zone around clinics that protestors could not enter. Captain\nEvans agreed, explaining that such a zone would \xe2\x80\x9cmake our job so much easier.\xe2\x80\x9d\nTo address these concerns, the Massachusetts Legislature amended the statute in 2007, replacing the six-foot no-approach zones (within the 18\xe2\x80\x93foot area) with a 35\xe2\x80\x93foot fixed buffer\nzone from which individuals are categorically excluded. The statute now provides:\nNo person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any\nportion of an entrance, exit or driveway of a reproductive health care facility\nor within the area within a rectangle created by extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility in\nstraight lines to the point where such lines intersect the sideline of the street in\nfront of such entrance, exit or driveway.\xe2\x80\x9d Mass. Gen. Laws, ch. 266, \xc2\xa7\n120E\xc2\xbd(b)\xe2\x80\xa6.\nThe 35\xe2\x80\x93foot buffer zone applies only \xe2\x80\x9cduring a facility\xe2\x80\x99s business hours,\xe2\x80\x9d and the area must\nbe \xe2\x80\x9cclearly marked and posted.\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd(c). In practice, facilities typically mark the zones with\npainted arcs and posted signs on adjacent sidewalks and streets. A first violation of the statute\nis punishable by a fine of up to $500, up to three months in prison, or both, while a subsequent\noffense is punishable by a fine of between $500 and $5,000, up to two and a half years in prison,\nor both. \xc2\xa7 120E\xc2\xbd(d).\nThe Act exempts four classes of individuals: (1) \xe2\x80\x9cpersons entering or leaving such facility\xe2\x80\x9d;\n(2) \xe2\x80\x9cemployees or agents of such facility acting within the scope of their employment\xe2\x80\x9d; (3) \xe2\x80\x9claw\nenforcement, ambulance, firefighting, construction, utilities, public works and other municipal\nagents acting within the scope of their employment\xe2\x80\x9d; and (4) \xe2\x80\x9cpersons using the public sidewalk\nor street right-of-way adjacent to such facility solely for the purpose of reaching a destination\nother than such facility.\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd (b)(1)-(4). The legislature also retained the separate provision\nfrom the 2000 version that proscribes the knowing obstruction of access to a facility. \xc2\xa7\n120E\xc2\xbd(e).\nSome of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs\nand chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what\nthey call \xe2\x80\x9csidewalk counseling,\xe2\x80\x9d which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically\ninitiate a conversation this way: \xe2\x80\x9cGood morning, may I give you my literature? Is there anything\nI can do for you? I\xe2\x80\x99m available if you have any questions.\xe2\x80\x9d If the woman seems receptive,\nMcCullen will provide additional information. McCullen and the other petitioners consider it\nessential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these\nexchanges. Such interactions, petitioners believe, are a much more effective means of dissuading\nwomen from having abortions than confrontational methods such as shouting or brandishing\nsigns, which in petitioners\xe2\x80\x99 view tend only to antagonize their intended audience. In unrefuted\ntestimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.\nThe buffer zones have displaced petitioners from their previous positions outside the clinics.\nMcCullen offers counseling outside a Planned Parenthood clinic in Boston, as do petitioners\nJean Zarrella and Eric Cadin. Petitioner Gregory Smith prays the rosary there. The clinic occupies its own building on a street corner. Its main door is recessed into an open foyer, approximately 12 feet back from the public sidewalk. Before the Act was amended to create the buffer\nzones, petitioners stood near the entryway to the foyer. Now a buffer zone\xe2\x80\x94marked by a\npainted arc and a sign\xe2\x80\x94surrounds the entrance. This zone extends 23 feet down the sidewalk\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 463\nin one direction, 26 feet in the other, and outward just one foot short of the curb. The clinic\xe2\x80\x99s\nentrance adds another seven feet to the width of the zone. The upshot is that petitioners are\neffectively excluded from a 56\xe2\x80\x93foot\xe2\x80\x93wide expanse of the public sidewalk in front of the clinic.\nPetitioners Mark Bashour and Nancy Clark offer counseling and information outside a\nPlanned Parenthood clinic in Worcester. Unlike the Boston clinic, the Worcester clinic sits well\nback from the public street and sidewalks. Patients enter the clinic in one of two ways. Those\narriving on foot turn off the public sidewalk and walk down a nearly 54\xe2\x80\x93foot\xe2\x80\x93long private\nwalkway to the main entrance. More than 85% of patients, however, arrive by car, turning onto\nthe clinic\xe2\x80\x99s driveway from the street, parking in a private lot, and walking to the main entrance\non a private walkway.\nBashour and Clark would like to stand where the private walkway or driveway intersects\nthe sidewalk and offer leaflets to patients as they walk or drive by. But a painted arc extends\nfrom the private walkway 35 feet down the sidewalk in either direction and outward nearly to\nthe curb on the opposite side of the street. Another arc surrounds the driveway\xe2\x80\x99s entrance, covering more than 93 feet of the sidewalk (including the width of the driveway) and extending\nacross the street and nearly six feet onto the sidewalk on the opposite side. Bashour and Clark\nmust now stand either some distance down the sidewalk from the private walkway and driveway or across the street.\nPetitioner Cyril Shea stands outside a Planned Parenthood clinic in Springfield, which, like\nthe Worcester clinic, is set back from the public streets. Approximately 90% of patients arrive\nby car and park in the private lots surrounding the clinic. Shea used to position himself at an\nentrance to one of the five driveways leading to the parking lots. Painted arcs now surround the\nentrances, each spanning approximately 100 feet of the sidewalk parallel to the street (again,\nincluding the width of the driveways) and extending outward well into the street. Like petitioners at the Worcester clinic, Shea now stands far down the sidewalk from the driveway entrances.\nPetitioners at all three clinics claim that the buffer zones have considerably hampered their\ncounseling efforts. Although they have managed to conduct some counseling and to distribute\nsome literature outside the buffer zones\xe2\x80\x94particularly at the Boston clinic\xe2\x80\x94they say they have\nhad many fewer conversations and distributed many fewer leaflets since the zones went into\neffect.\nThe second statutory exemption allows clinic employees and agents acting within the scope\nof their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses\n\xe2\x80\x9cescorts\xe2\x80\x9d to greet women as they approach the clinic, accompanying them through the zones to\nthe clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners\xe2\x80\x99 attempts to\ncommunicate with patients by blocking petitioners from handing literature to patients, telling\npatients not to \xe2\x80\x9cpay any attention\xe2\x80\x9d or \xe2\x80\x9clisten to\xe2\x80\x9d petitioners, and disparaging petitioners as\n\xe2\x80\x9ccrazy.\xe2\x80\x9d\nIn January 2008, petitioners sued Attorney General Coakley and other Commonwealth\nofficials. They sought to enjoin enforcement of the Act, alleging that it violates the First and\nFourteenth Amendments, both on its face and as applied to them. The District Court denied\npetitioners\xe2\x80\x99 facial challenge after a bench trial based on a stipulated record. The Court of Appeals\nfor the First Circuit affirmed. 571 F.3d 167 (2009). Relying extensively on its previous decisions\nupholding the 2000 version of the Act, see McGuire II, 386 F.3d 45; McGuire I, 260 F.3d 36,\nthe court upheld the 2007 version as a reasonable \xe2\x80\x9ctime, place, and manner\xe2\x80\x9d regulation under\nthe test set forth in Ward v. Rock Against Racism, 491 U.S. 781 (1989)\xe2\x80\xa6. The case then returned to the District Court\xe2\x80\xa6. After another bench trial, it denied the remaining as-applied\nchallenge, finding that the Act left petitioners ample alternative channels of communication\xe2\x80\xa6.\nThe Court of Appeals once again affirmed. 708 F.3d 1 (2013). We granted certiorari.\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c464 Religion in the Law\nBy its very terms, the Massachusetts Act regulates access to \xe2\x80\x9cpublic ways\xe2\x80\x9d and \xe2\x80\x9csidewalks.\xe2\x80\x9d\nMass. Gen. Laws, ch. 266, \xc2\xa7 120E\xc2\xbd (b). Such areas occupy a \xe2\x80\x9cspecial position in terms of First\nAmendment protection\xe2\x80\x9d because of their historic role as sites for discussion and debate. United\nStates v. Grace, 461 U.S. 171, 180 (1983)\xe2\x80\xa6.\nIt is no accident that public streets and sidewalks have developed as venues for the exchange\nof ideas. Even today, they remain one of the few places where a speaker can be confident that\nhe is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel,\nor leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters\nspeech he might otherwise tune out. In light of the First Amendment\xe2\x80\x99s purpose \xe2\x80\x9cto preserve an\nuninhibited marketplace of ideas in which truth will ultimately prevail,\xe2\x80\x9d FCC v. League of\nWomen Voters of Cal., 468 U.S. 364, 377 (1984), this aspect of traditional public fora is a virtue,\nnot a vice.\nIn short, traditional public fora are areas that have historically been open to the public for\nspeech activities. \xe2\x80\xa6 Consistent with the traditionally open character of public streets and sidewalks, we have held that the government\xe2\x80\x99s ability to restrict speech in such locations is \xe2\x80\x9cvery\nlimited.\xe2\x80\x9d Grace, at 177. In particular, the guiding First Amendment principle that the \xe2\x80\x9cgovernment has no power to restrict expression because of its message, its ideas, its subject matter, or\nits content\xe2\x80\x9d applies with full force in a traditional public forum. Police Dept. of Chicago v.\nMosley, 408 U.S. 92, 95 (1972). As a general rule, in such a forum the government may not\n\xe2\x80\x9cselectively ... shield the public from some kinds of speech on the ground that they are more\noffensive than others.\xe2\x80\x9d Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975).\nWe have, however, afforded the government somewhat wider leeway to regulate features of\nspeech unrelated to its content. \xe2\x80\x9cEven in a public forum the government may impose reasonable\nrestrictions on the time, place, or manner of protected speech, provided the restrictions \xe2\x80\x98are justified without reference to the content of the regulated speech, that they are narrowly tailored to\nserve a significant governmental interest, and that they leave open ample alternative channels\nfor communication of the information.\xe2\x80\x9d Ward, 491 U.S. at 791\xe2\x80\xa6.\nPetitioners contend that the Act is not content neutral for two independent reasons: First,\nthey argue that it discriminates against abortion-related speech because it establishes buffer\nzones only at clinics that perform abortions. Second, petitioners contend that the Act, by exempting clinic employees and agents, favors one viewpoint about abortion over the other. If\neither of these arguments is correct, then the Act must satisfy strict scrutiny\xe2\x80\x94that is, it must be\nthe least restrictive means of achieving a compelling state interest. See United States v. Playboy\nEntertainment Group, Inc., 529 U.S. 803, 813 (2000). Respondents do not argue that the Act\ncan survive this exacting standard\xe2\x80\xa6.\nTo begin, the Act does not draw content-based distinctions on its face. \xe2\x80\xa6 The Act would\nbe content based if it required \xe2\x80\x9cenforcement authorities\xe2\x80\x9d to \xe2\x80\x9cexamine the content of the message\nthat is conveyed to determine whether\xe2\x80\x9d a violation has occurred. \xe2\x80\xa6 But it does not. Whether\npetitioners violate the Act depends not on what they say, but simply on where they say it. Indeed,\npetitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or\nuttering a word.\nIt is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the\n\xe2\x80\x9cinevitable effect\xe2\x80\x9d of restricting abortion-related speech more than speech on other subjects. \xe2\x80\xa6\nBut a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, \xe2\x80\x9c[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some\nspeakers or messages but not others.\xe2\x80\x9d Ward, supra, at 791. The question in such a case is\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 465\nwhether the law is \xe2\x80\x9cjustified without reference to the content of the regulated speech.\xe2\x80\x9d Renton\nv. Playtime Theatres, Inc., 475 U.S. 41, 48\xe2\x80\xa6.\nThe Massachusetts Act\xe2\x80\x99s stated purpose is to \xe2\x80\x9cincrease forthwith public safety at reproductive health care facilities.\xe2\x80\x9d Respondents have articulated similar purposes before this Court\xe2\x80\x94\nnamely, \xe2\x80\x9cpublic safety, patient access to healthcare, and the unobstructed use of public sidewalks\nand roadways.\xe2\x80\x9d \xe2\x80\xa6 It is not the case that every objective indication shows that the provision\xe2\x80\x99s\nprimary purpose is to restrict speech that opposes abortion.\nWe have previously deemed the foregoing concerns to be content neutral. See Boos, 485\nU.S. at 321\xe2\x80\xa6 Obstructed access and congested sidewalks are problems no matter what caused\nthem. A group of individuals can obstruct clinic access and clog sidewalks just as much when\nthey loiter as when they protest abortion or counsel patients. \xe2\x80\xa6 Whether or not a single person\nreacts to abortion protestors\xe2\x80\x99 chants or petitioners\xe2\x80\x99 counseling, large crowds outside abortion\nclinics can still compromise public safety, impede access, and obstruct sidewalks.\nPetitioners do not really dispute that the Commonwealth\xe2\x80\x99s interests in ensuring safety and\npreventing obstruction are, as a general matter, content neutral. But petitioners note that these\ninterests \xe2\x80\x9capply outside every building in the State that hosts any activity that might occasion\nprotest or comment,\xe2\x80\x9d not just abortion clinics. By choosing to pursue these interests only at\nabortion clinics, petitioners argue, the Massachusetts Legislature evinced a purpose to \xe2\x80\x9csingle\nout for regulation speech about one particular topic: abortion.\xe2\x80\x9d\n\xe2\x80\xa6The Massachusetts Legislature amended the Act in 2007 in response to a problem that\nwas, in its experience, limited to abortion clinics. There was a record of crowding, obstruction,\nand even violence outside such clinics. There were apparently no similar recurring problems\nassociated with other kinds of healthcare facilities, let alone with \xe2\x80\x9cevery building in the State\nthat hosts any activity that might occasion protest or comment.\xe2\x80\x9d In light of the limited nature\nof the problem, it was reasonable for the Massachusetts Legislature to enact a limited solution.\nWhen selecting among various options for combating a particular problem, legislatures should\nbe encouraged to choose the one that restricts less speech, not more\xe2\x80\xa6.\nPetitioners also argue that the Act is content based because it exempts four classes of individuals, Mass. Gen. Laws, ch. 266, \xc2\xa7\xc2\xa7 120E\xc2\xbd (b)(1)-(4), one of which comprises \xe2\x80\x9cemployees\nor agents of [a reproductive healthcare] facility acting within the scope of their employment.\xe2\x80\x9d \xc2\xa7\n120E\xc2\xbd(b)(2). This exemption, petitioners say, favors one side in the abortion debate and thus\nconstitutes viewpoint discrimination\xe2\x80\x94an \xe2\x80\x9cegregious form of content discrimination,\xe2\x80\x9d Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In particular, petitioners\nargue that the exemption allows clinic employees and agents\xe2\x80\x94including the volunteers who\n\xe2\x80\x9cescort\xe2\x80\x9d patients arriving at the Boston clinic\xe2\x80\x94to speak inside the buffer zones\xe2\x80\xa6.\nThere is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zones. In particular, the\nexemption cannot be regarded as simply a carve-out for the clinic escorts; it also covers employees such as the maintenance worker shoveling a snowy sidewalk or the security guard patrolling\na clinic entrance.\nGiven the need for an exemption for clinic employees, the \xe2\x80\x9cscope of their employment\xe2\x80\x9d\nqualification simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs. \xe2\x80\xa6 There is no suggestion in the record that any of the clinics authorize their\nemployees to speak about abortion in the buffer zones. The \xe2\x80\x9cscope of their employment\xe2\x80\x9d limitation thus seems designed to protect against exactly the sort of conduct that petitioners and\nJustice SCALIA fear.\nPetitioners did testify in this litigation about instances in which escorts at the Boston clinic\nhad expressed views about abortion to the women they were accompanying, thwarted petitioners\xe2\x80\x99 attempts to speak and hand literature to the women, and disparaged petitioners in various\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c466 Religion in the Law\nways. It is unclear from petitioners\xe2\x80\x99 testimony whether these alleged incidents occurred within\nthe buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside\nthe zones because petitioners are equally free to say whatever they would like in that area\xe2\x80\xa6.\nIt would be a very different question if it turned out that a clinic authorized escorts to speak\nabout abortion inside the buffer zones. \xe2\x80\xa6 In that case, the escorts would not seem to be violating\nthe Act because the speech would be within the scope of their employment. The Act\xe2\x80\x99s exemption\nfor clinic employees would then facilitate speech on only one side of the abortion debate\xe2\x80\x94a\nclear form of viewpoint discrimination that would support an as-applied challenge to the buffer\nzone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to\ndoom the Act by allowing their employees to speak about abortion within the buffer zones.\nWe thus conclude that the Act is neither content nor viewpoint based and therefore need\nnot be analyzed under strict scrutiny.\nEven though the Act is content neutral, it still must be \xe2\x80\x9cnarrowly tailored to serve a significant governmental interest.\xe2\x80\x9d Ward, 491 U.S. at 796. \xe2\x80\xa6 For a content-neutral time, place, or\nmanner regulation to be narrowly tailored, it must not \xe2\x80\x9cburden substantially more speech than\nis necessary to further the government\xe2\x80\x99s legitimate interests.\xe2\x80\x9d Ward, 491 U.S. at 799. Such a\nregulation, unlike a content-based restriction of speech, \xe2\x80\x9cneed not be the least restrictive or least\nintrusive means of\xe2\x80\x9d serving the government\xe2\x80\x99s interests. Id., at 798. But the government still \xe2\x80\x9cmay\nnot regulate expression in such a manner that a substantial portion of the burden on speech does\nnot serve to advance its goals.\xe2\x80\x9d Id., at 799.\nAs noted, respondents claim that the Act promotes \xe2\x80\x9cpublic safety, patient access to\nhealthcare, and the unobstructed use of public sidewalks and roadways.\xe2\x80\x9d do not dispute the\nsignificance of these interests. We have, moreover, previously recognized the legitimacy of the\ngovernment\xe2\x80\x99s interests in \xe2\x80\x9censuring public safety and order, promoting the free flow of traffic on\nstreets and sidewalks, protecting property rights, and protecting a woman\xe2\x80\x99s freedom to seek\npregnancy-related services.\xe2\x80\x9d Schenck v. Pro\xe2\x80\x93Choice Network of Western N.Y., 519 U.S. 357,\n376 (1997). See also Madsen v. Women\xe2\x80\x99s Health Center, Inc., 512 U.S. 753, 767\xe2\x80\x93768 (1994).\nThe buffer zones clearly serve these interests.\nAt the same time, the buffer zones impose serious burdens on petitioners\xe2\x80\x99 speech. At each\nof the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones\ncarve out a significant portion of the adjacent public sidewalks, pushing petitioners well back\nfrom the clinics\xe2\x80\x99 entrances and driveways. The zones thereby compromise petitioners\xe2\x80\x99 ability to\ninitiate the close, personal conversations that they view as essential to \xe2\x80\x9csidewalk counseling.\xe2\x80\x9d\nFor example, in uncontradicted testimony, McCullen explained that she often cannot distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before\nthey enter the buffer zone. And even when she does manage to begin a discussion outside the\nzone, she must stop abruptly at its painted border, which she believes causes her to appear \xe2\x80\x9cuntrustworthy\xe2\x80\x9d or \xe2\x80\x9csuspicious.\xe2\x80\x9d Given these limitations, McCullen is often reduced to raising her\nvoice at patients from outside the zone\xe2\x80\x94a mode of communication sharply at odds with the\ncompassionate message she wishes to convey. Clark gave similar testimony about her experience\nat the Worcester clinic.\nThese burdens on petitioners\xe2\x80\x99 speech have clearly taken their toll. Although McCullen\nclaims that she has persuaded about 80 women not to terminate their pregnancies since the 2007\namendment, she also says that she reaches \xe2\x80\x9cfar fewer people\xe2\x80\x9d than she did before the amendment. Zarrella reports an even more precipitous decline in her success rate: She estimated having\nabout 100 successful interactions over the years before the 2007 amendment, but not a single\none since. And as for the Worcester clinic, Clark testified that \xe2\x80\x9conly one woman out of 100 will\nmake the effort to walk across [the street] to speak with [her].\xe2\x80\x9d\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 467\nThe buffer zones have also made it substantially more difficult for petitioners to distribute\nliterature to arriving patients. As explained, because petitioners in Boston cannot readily identify\npatients before they enter the zone, they often cannot approach them in time to place literature\nnear their hands\xe2\x80\x94the most effective means of getting the patients to accept it. In Worcester and\nSpringfield, the zones have pushed petitioners so far back from the clinics\xe2\x80\x99 driveways that they\ncan no longer even attempt to offer literature as drivers turn into the parking lots. In short, the\nAct operates to deprive petitioners of their two primary methods of communicating with patients.\nThe Court of Appeals and respondents are wrong to downplay these burdens on petitioners\xe2\x80\x99 speech. As the Court of Appeals saw it, the Constitution does not accord \xe2\x80\x9cspecial protection\xe2\x80\x9d to close conversations or \xe2\x80\x9chandbilling.\xe2\x80\x9d 571 F.3d, at 180. But while the First Amendment\ndoes not guarantee a speaker the right to any particular form of expression, some forms\xe2\x80\x94such\nas normal conversation and leafletting on a public sidewalk\xe2\x80\x94have historically been more closely\nassociated with the transmission of ideas than others.\nIn the context of petition campaigns, we have observed that \xe2\x80\x9cone-on-one communication\xe2\x80\x9d\nis \xe2\x80\x9cthe most effective, fundamental, and perhaps economical avenue of political discourse.\xe2\x80\x9d\nMeyer v. Grant, 486 U.S. 414, 424 (1988). See also Schenck, supra, at 377, 117 S.Ct. 855 (invalidating a \xe2\x80\x9cfloating\xe2\x80\x9d buffer zone around people entering an abortion clinic partly on the\nground that it prevented protestors \xe2\x80\x9cfrom communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on\nthe public sidewalks\xe2\x80\x9d). And \xe2\x80\x9chanding out leaflets in the advocacy of a politically controversial\nviewpoint ... is the essence of First Amendment expression\xe2\x80\x9d; \xe2\x80\x9cno form of speech is entitled to\ngreater constitutional protection.\xe2\x80\x9d McIntyre v. Ohio Elections Comm\xe2\x80\x99n, 514 U.S. 334, 347\n(1995). See also Schenck, at 377 (\xe2\x80\x9cLeafletting and commenting on matters of public concern are\nclassic forms of speech that lie at the heart of the First Amendment\xe2\x80\x9d). When the government\nmakes it more difficult to engage in these modes of communication, it imposes an especially\nsignificant First Amendment burden.\nRespondents also emphasize that the Act does not prevent petitioners from engaging in\nvarious forms of \xe2\x80\x9cprotest\xe2\x80\x9d\xe2\x80\x94such as chanting slogans and displaying signs\xe2\x80\x94outside the buffer\nzones. That misses the point. Petitioners are not protestors. They seek not merely to express their\nopposition to abortion, but to inform women of various alternatives and to provide help in\npursuing them. Petitioners believe that they can accomplish this objective only through personal,\ncaring, consensual conversations. And for good reason: It is easier to ignore a strained voice or\na waving hand than a direct greeting or an outstretched arm. While the record indicates that\npetitioners have been able to have a number of quiet conversations outside the buffer zones,\nrespondents have not refuted petitioners\xe2\x80\x99 testimony that the conversations have been far less\nfrequent and far less successful since the buffer zones were instituted. It is thus no answer to say\nthat petitioners can still be \xe2\x80\x9cseen and heard\xe2\x80\x9d by women within the buffer zones. If all that the\nwomen can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners\xe2\x80\x99 message.\nFinally, respondents suggest that, at the Worcester and Springfield clinics, petitioners are\nprevented from communicating with patients not by the buffer zones but by the fact that most\npatients arrive by car and park in the clinics\xe2\x80\x99 private lots. It is true that the layout of the two\nclinics would prevent petitioners from approaching the clinics\xe2\x80\x99 doorways, even without the\nbuffer zones. But petitioners do not claim a right to trespass on the clinics\xe2\x80\x99 property. They instead\nclaim a right to stand on the public sidewalks by the driveway as cars turn into the parking lot.\nBefore the buffer zones, they could do so. Now they must stand a substantial distance away. The\nAct alone is responsible for that restriction on their ability to convey their message.\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c468 Religion in the Law\nThe buffer zones burden substantially more speech than necessary to achieve the Commonwealth\xe2\x80\x99s asserted interests\xe2\x80\xa6. The Commonwealth\xe2\x80\x99s interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and\ncombating deliberate obstruction of clinic entrances. \xe2\x80\xa6 If the Commonwealth is particularly\nconcerned about harassment, it could \xe2\x80\xa6 consider an ordinance such as the one adopted in New\nYork City that not only prohibits obstructing access to a clinic, but also makes it a crime \xe2\x80\x9cto\nfollow and harass another person within 15 feet of the premises of a reproductive health care\nfacility.\xe2\x80\x9d N.Y.C. Admin. Code \xc2\xa7 8\xe2\x80\x93803(a)(3) (2014).\nThe Commonwealth points to a substantial public safety risk created when protestors obstruct driveways leading to the clinics. That is, however, an example of its failure to look to less\nintrusive means of addressing its concerns. Any such obstruction can readily be addressed\nthrough existing local ordinances\xe2\x80\xa6. All of the foregoing measures are, of course, in addition to\navailable generic criminal statutes forbidding assault, breach of the peace, trespass, vandalism,\nand the like.\nIn addition, [laws like] the New York City anti-harassment ordinance are \xe2\x80\xa6 enforceable\nnot only through criminal prosecutions but also through public and private civil actions for\ninjunctions and other equitable relief. \xe2\x80\xa6 We have previously noted the First Amendment virtues\nof targeted injunctions as alternatives to broad, prophylactic measures. Such an injunction \xe2\x80\x9cregulates the activities, and perhaps the speech, of a group,\xe2\x80\x9d but only \xe2\x80\x9cbecause of the group\xe2\x80\x99s past\nactions in the context of a specific dispute between real parties.\xe2\x80\x9d Madsen, 512 U.S. at 762. (emphasis added). Moreover, given the equitable nature of injunctive relief, courts can tailor a remedy to ensure that it restricts no more speech than necessary. See, e.g., id., at 770,; Schenck, 519\nU.S. at 380\xe2\x80\x93381. In short, injunctive relief focuses on the precise individuals and the precise\nconduct causing a particular problem. The Act, by contrast, categorically excludes non-exempt\nindividuals from the buffer zones, unnecessarily sweeping in innocent individuals and their\nspeech\xe2\x80\xa6.\nThe point is not that Massachusetts must enact all or even any of the proposed measures\ndiscussed above. The point is instead that the Commonwealth has available to it a variety of\napproaches that appear capable of serving its interests, without excluding individuals from areas\nhistorically open for speech and debate.\nRespondents have but one reply: \xe2\x80\x9cWe have tried other approaches, but they do not work.\xe2\x80\x9d\n\xe2\x80\xa6 We cannot accept that contention. Although respondents claim that Massachusetts \xe2\x80\x9ctried\nother laws already on the books,\xe2\x80\x9d they identify not a single prosecution brought under those\nlaws within at least the last 17 years. And while they also claim that the Commonwealth \xe2\x80\x9ctried\ninjunctions,\xe2\x80\x9d the last injunctions they cite date to the 1990s\xe2\x80\xa6. In short, the Commonwealth has\nnot shown that it seriously undertook to address the problem with less intrusive tools readily\navailable to it. Nor has it shown that it considered different methods that other jurisdictions\nhave found effective.\n\xe2\x80\xa6[Far] from being \xe2\x80\x9cwidespread,\xe2\x80\x9d the problem appears from the record to be limited principally to the Boston clinic on Saturday mornings. Moreover, by their own account, the police\nappear perfectly capable of singling out lawbreakers. The legislative testimony preceding the\n2007Act revealed substantial police and video monitoring at the clinics, especially when large\ngatherings were anticipated. Captain Evans testified that his officers are so familiar with the\nscene outside the Boston clinic that they \xe2\x80\x9cknow all the players down there.\xe2\x80\x9d \xe2\x80\xa6 If Commonwealth officials can compile an extensive record of obstruction and harassment to support their\npreferred legislation, we do not see why they cannot do the same to support injunctions and\nprosecutions against those who might deliberately flout the law\xe2\x80\xa6.\n\xe2\x80\xa6To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government\xe2\x80\x99s\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 469\ninterests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to\nenforce, but the prime objective of the First Amendment is not efficiency. In any case, we do not\nthink that showing intentional obstruction is nearly so difficult in this context as respondents\nsuggest. To determine whether a protestor intends to block access to a clinic, a police officer\nneed only order him to move. If he refuses, then there is no question that his continued conduct\nis knowing or intentional\xe2\x80\xa6.\nPetitioners wish to converse with their fellow citizens about an important subject on the\npublic streets and sidewalks\xe2\x80\x94sites that have hosted discussions about the issues of the day\nthroughout history. Respondents assert undeniably significant interests in maintaining public\nsafety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare\nfacilities. But here the Commonwealth has pursued those interests by the extreme step of closing\na substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment\xe2\x80\xa6.\nIt is so ordered.\nJustice SCALIA, with whom Justice KENNEDY and Justice THOMAS join, concurring in the\njudgment.\nToday\xe2\x80\x99s opinion carries forward this Court\xe2\x80\x99s practice of giving abortion-rights advocates a\npass when it comes to suppressing the free-speech rights of their opponents. There is an entirely\nseparate, abridged edition of the First Amendment applicable to speech against abortion. See,\ne.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women\xe2\x80\x99s Health Center, Inc., 512 U.S.\n753 (1994).\nThe second half of the Court\xe2\x80\x99s analysis today, invalidating the law at issue because of inadequate \xe2\x80\x9ctailoring,\xe2\x80\x9d is certainly attractive to those of us who oppose an abortion-speech edition\nof the First Amendment. But think again. This is an opinion that has Something for Everyone,\nand the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court\xe2\x80\x99s analysis, which concludes that a statute of this sort is\nnot content based and hence not subject to so-called strict scrutiny. The Court reaches out to\ndecide that question unnecessarily\xe2\x80\x94or at least unnecessarily insofar as legal analysis is concerned\xe2\x80\xa6. Having eagerly volunteered to take on the level-of-scrutiny question, the Court provides the wrong answer\xe2\x80\xa6.\nI begin \xe2\x80\xa6 with the fact that the Act burdens only the public spaces outside abortion clinics.\nOne might have expected the majority to defend the statute\xe2\x80\x99s peculiar targeting by arguing that\nthose locations regularly face the safety and access problems that it says the Act was designed to\nsolve. But the majority does not make that argument because it would be untrue. As the Court\nbelatedly discovers [later in] ts opinion, although the statute applies to all abortion clinics in\nMassachusetts, only one is known to have been beset by the problems that the statute supposedly addresses. The Court uses this striking fact (a smoking gun, so to speak) as a basis for\nconcluding that the law is insufficiently \xe2\x80\x9ctailored\xe2\x80\x9d to safety and access concerns rather than as\na basis for concluding that it is not directed to those concerns at all, but to the suppression of\nantiabortion speech. That is rather like invoking the eight missed human targets of a shooter\nwho has killed one victim to prove, not that he is guilty of attempted mass murder, but that he\nhas bad aim\xe2\x80\xa6.\nThe structure of the Act also indicates that it rests on content-based concerns. The goals of\n\xe2\x80\x9cpublic safety, patient access to healthcare, and the unobstructed use of public sidewalks and\nroadways,\xe2\x80\x9d are already achieved by an earlier-enacted subsection of the statute, which provides\ncriminal penalties for \xe2\x80\x9c[a]ny person who knowingly obstructs, detains, hinders, impedes or\nblocks another person\xe2\x80\x99s entry to or exit from a reproductive health care facility.\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd(e).\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c470 Religion in the Law\nAs the majority recognizes, that provision is easy to enforce. Thus, the speech-free zones carved\nout by subsection (b) add nothing to safety and access; what they achieve, and what they were\nobviously designed to achieve, is the suppression of speech opposing abortion\xe2\x80\xa6.\nPetitioners contend that the Act targets speech opposing abortion (and thus constitutes a\npresumptively invalid viewpoint-discriminatory restriction) for another reason as well: It exempts \xe2\x80\x9cemployees or agents\xe2\x80\x9d of an abortion clinic \xe2\x80\x9cacting within the scope of their employment,\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd (b)(2).\nIt goes without saying that \xe2\x80\x9cgranting waivers to favored speakers (or ... denying them to\ndisfavored speakers) would of course be unconstitutional.\xe2\x80\x9d Thomas v. Chicago Park Dist., 534\nU.S. 316, 325 (2002). The majority opinion sets forth a two-part inquiry for assessing whether\na regulation is content based, but when it comes to assessing the exemption for abortion-clinic\nemployees or agents, the Court forgets its own teaching. Its opinion jumps right over the prong\nthat asks whether the provision \xe2\x80\x9cdraws ... distinctions on its face,\xe2\x80\x9d and instead proceeds directly\nto the purpose-related prong, asking whether the exemption \xe2\x80\x9crepresents a governmental attempt\nto give one side of a debatable public question an advantage in expressing its views to the people.\xe2\x80\x9d I disagree with the majority\xe2\x80\x99s negative answer to that question, but that is beside the point\nif the text of the statute\xe2\x80\x94whatever its purposes might have been\xe2\x80\x94\xe2\x80\x9clicenses one side of a debate\nto fight freestyle, while requiring the other to follow Marquis of Queensberry rules.\xe2\x80\x9d R.A.V. v.\nSt. Paul, 505 U.S. 377, 392 (1992).\nIs there any serious doubt that abortion-clinic employees or agents \xe2\x80\x9cacting within the scope\nof their employment\xe2\x80\x9d near clinic entrances may\xe2\x80\x94indeed, often will\xe2\x80\x94speak in favor of abortion\n(\xe2\x80\x9cYou are doing the right thing\xe2\x80\x9d)? Or speak in opposition to the message of abortion opponents\xe2\x80\x94saying, for example, that \xe2\x80\x9cthis is a safe facility\xe2\x80\x9d to rebut the statement that it is not? The\nCourt\xe2\x80\x99s contrary assumption is simply incredible. And the majority makes no attempt to establish the further necessary proposition that abortion-clinic employees and agents do not engage\nin nonspeech activities directed to the suppression of antiabortion speech by hampering the efforts of counselors to speak to prospective clients. Are we to believe that a clinic employee sent\nout to \xe2\x80\x9cescort\xe2\x80\x9d prospective clients into the building would not seek to prevent a counselor like\nEleanor McCullen from communicating with them? He could pull a woman away from an\napproaching counselor, cover her ears, or make loud noises to drown out the counselor\xe2\x80\x99s pleas.\nThe Court points out that the exemption may allow into the speech-free zones clinic employees other than escorts, such as \xe2\x80\x9cthe maintenance worker shoveling a snowy sidewalk or the\nsecurity guard patrolling a clinic entrance.\xe2\x80\x9d I doubt that Massachusetts legislators had those\npeople in mind, but whether they did is in any event irrelevant. Whatever other activity is permitted, so long as the statute permits speech favorable to abortion rights while excluding antiabortion speech, it discriminates on the basis of viewpoint.\nThe Court takes the peculiar view that, so long as the clinics have not specifically authorized\ntheir employees to speak in favor of abortion (or, presumably, to impede antiabortion speech),\nthere is no viewpoint discrimination. But \xe2\x80\xa6 a statute that forbids one side but not the other to\nconvey its message does not become viewpoint neutral simply because the favored side chooses\nvoluntarily to abstain from activity that the statute permits.\nThere is not a shadow of a doubt that the assigned or foreseeable conduct of a clinic employee or agent can include both speaking in favor of abortion rights and countering the speech\nof people like petitioners. \xe2\x80\xa6 Indeed, as the majority acknowledges, the trial record includes\ntestimony that escorts at the Boston clinic \xe2\x80\x9cexpressed views about abortion to the women they\nwere accompanying, thwarted petitioners\xe2\x80\x99 attempts to speak and hand literature to the women,\nand disparaged petitioners in various ways,\xe2\x80\x9d including by calling them \xe2\x80\x9ccrazy.\xe2\x80\x9d What a surprise!\nThe Web site for the Planned Parenthood League of Massachusetts (which operates the three\nabortion facilities where petitioners attempt to counsel women), urges readers to \xe2\x80\x9cBecome a\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cFree Exercise 471\nClinic Escort Volunteer\xe2\x80\x9d in order to \xe2\x80\x9cprovide a safe space for patients by escorting them through\nprotestors to the health center.\xe2\x80\x9d \xe2\x80\xa6 The dangers that the Web site attributes to \xe2\x80\x9cprotestors\xe2\x80\x9d are\nrelated entirely to speech, not to safety or access. \xe2\x80\x9cProtestors,\xe2\x80\x9d it reports, \xe2\x80\x9chold signs, try to\nspeak to patients entering the building, and distribute literature that can be misleading.\xe2\x80\x9d The\n\xe2\x80\x9csafe space\xe2\x80\x9d provided by escorts is protection from that speech\xe2\x80\xa6.\nIn sum, the Act should be reviewed under the strict-scrutiny standard applicable to contentbased legislation. That standard requires that a regulation represent \xe2\x80\x9cthe least restrictive means\xe2\x80\x9d\nof furthering \xe2\x80\x9ca compelling Government interest.\xe2\x80\x9d \xe2\x80\xa6 Respondents do not even attempt to argue\nthat subsection (b) survives this test. \xe2\x80\x9cSuffice it to say that if protecting people from unwelcome\ncommunications\xe2\x80\x9d\xe2\x80\x94the actual purpose of the provision\xe2\x80\x94\xe2\x80\x9cis a compelling state interest, the First\nAmendment is a dead letter.\xe2\x80\x9d Hill, 530 U.S. at 748\xe2\x80\x93749 (SCALIA, J., dissenting).\nThe obvious purpose of the challenged portion of the Massachusetts Reproductive Health\nCare Facilities Act is to \xe2\x80\x9cprotect\xe2\x80\x9d prospective clients of abortion clinics from having to hear\nabortion-opposing speech on public streets and sidewalks. The provision is thus unconstitutional root and branch and cannot be saved, as the majority suggests, by limiting its application\nto the single facility that has experienced the safety and access problems to which it is quite\nobviously not addressed. I concur only in the judgment that the statute is unconstitutional under\nthe First Amendment.\nJustice ALITO, concurring in the judgment.\n\xe2\x80\xa6The Massachusetts statute generally prohibits any person from entering a buffer zone\naround an abortion clinic during the clinic\xe2\x80\x99s business hours, \xc2\xa7 120E\xc2\xbd(c), but the law contains\nan exemption for \xe2\x80\x9cemployees or agents of such facility acting within the scope of their employment.\xe2\x80\x9d \xc2\xa7 120E\xc2\xbd (b)(2). Thus, during business hours, individuals who wish to counsel against\nabortion or to criticize the particular clinic may not do so within the buffer zone. If they engage\nin such conduct, they commit a crime. See \xc2\xa7 120E\xc2\xbd (d). By contrast, employees and agents of\nthe clinic may enter the zone and engage in any conduct that falls within the scope of their\nemployment. A clinic may direct or authorize an employee or agent, while within the zone, to\nexpress favorable views about abortion or the clinic, and if the employee exercises that authority,\nthe employee\xe2\x80\x99s conduct is perfectly lawful. In short, petitioners and other critics of a clinic are\nsilenced, while the clinic may authorize its employees to express speech in support of the clinic\nand its work.\nConsider this entirely realistic situation. A woman enters a buffer zone and heads haltingly\ntoward the entrance. A sidewalk counselor, such as petitioners, enters the buffer zone, approaches the woman and says, \xe2\x80\x9cIf you have doubts about an abortion, let me try to answer any\nquestions you may have. The clinic will not give you good information.\xe2\x80\x9d At the same time, a\nclinic employee, as instructed by the management, approaches the same woman and says,\n\xe2\x80\x9cCome inside and we will give you honest answers to all your questions.\xe2\x80\x9d The sidewalk counselor and the clinic employee expressed opposing viewpoints, but only the first violated the statute.\nOr suppose that the issue is not abortion but the safety of a particular facility. Suppose that\nthere was a recent report of a botched abortion at the clinic. A nonemployee may not enter the\nbuffer zone to warn about the clinic\xe2\x80\x99s health record, but an employee may enter and tell prospective clients that the clinic is safe.\nIt is clear on the face of the Massachusetts law that it discriminates based on viewpoint.\nSpeech in favor of the clinic and its work by employees and agents is permitted; speech criticizing\nthe clinic and its work is a crime. This is blatant viewpoint discrimination\xe2\x80\xa6.\n\nMcCullen v. Coakley, 573 U.S. 464 (2014)\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c472 Religion in the Law\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0cSpecial Problems 473\n\nSpecial Problems\nCriminal Law, Estate Law, and Tort Law\nRELIGION APPEARS IN THE LAW outside of the Supreme Court and outside the big constitutional themes of \xe2\x80\x9cfree exercise\xe2\x80\x9d and \xe2\x80\x9cestablishment.\xe2\x80\x9d Courts confront questions\nof faith and belief in a wide variety of contexts, including criminal cases, fights among\nfamily members over decedents\xe2\x80\x99 estates, and lawsuits alleging torts like wrongful death\nand defamation. This final section illustrates these contexts.\n\xe2\x80\x9cInsanity\xe2\x80\x9d or some equivalent is an affirmative defense to criminal prosecution in\nmost states. Generally, a defendant who pleads insanity claims to have lacked sufficient\nmental capacity to appreciate the wrongness or illegality of their actions at the time.\nUnder the law of most states, lacking such capacity is grounds for excuse from criminal\nprosecution (though it usually results in mandatory hospitalization or treatment instead). Thus, if a defendant proves they were insane at the time they acted, a jury cannot convict them of a crime and the court should dismiss the charges.\nDefendants can prove legal insanity by showing they suffer from some kind of\nmental illness or injury that deprives them of the ability to comprehend the world\naround them or the wrongness of their actions.1 Psychotic conditions such as schizophrenia or bipolar disorder are common sources of legal insanity. These conditions\nhave a variety of diagnosable symptoms and patterns of behavior, including violence,\nuncontrollable impulses, hallucinations, and delusions. A delusion is a persistent false\nbelief that contrary evidence cannot shake.\nIs religious belief delusional? For its part, the American Psychological Association\nhas traditionally cautioned psychiatrists against diagnosing as delusional \xe2\x80\x9cwidely held\nand culturally sanctioned beliefs\xe2\x80\x9d even if they \xe2\x80\x9cmight be considered delusional in other\ncultures.\xe2\x80\x9d2 But, at some point, can otherwise widely held religious belief become so\nintense that the believer loses touch with objective reality, and thus becomes legally\ninsane?\nYes, according to some American courts, such as the Illinois Appellate Court in the\n2009 case of People v. Kando. In 2005, Chicago resident Amir Kando attacked his\nneighbor Jason Burley with a knife, nearly killing him. Kando had long suffered from\nschizophrenia, and had been hospitalized and medicated for it throughout his life. At\nthe time of the attack, Kando sincerely believed that Jesus was commanding him to\nattack and kill Satan, who had taken the earthly form of Burley. Kando was arrested\nand charged for attempted murder. At trial, he raised an insanity defense, which the\n\nA foundational source for this rule comes from the UK House of Lords in M\xe2\x80\x99Naghten\xe2\x80\x99s\nCase, 8 Eng. Rep. 718 (H.L. 1843), and is sometimes called The M\xe2\x80\x99Naghten Rule, which remains the standard for the insanity defense in roughly half of U.S. states.\n2 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FOURTH EDITION, 298-299\n(APA 1994) (\xe2\x80\x9c297.1 Delusional Disorder\xe2\x80\x9d).\n1\n\nElectronic copy available at: https://ssrn.com/abstract=3903347\n\n\x0c474 Religion in the Law\n\ncourt rejected. Instead, the court found him \xe2\x80\x9cguilty but mentally ill\xe2\x80\x9d and sentenced him\nto fifteen years in prison.3\nIn a lengthy opinion carefully detailing the findings of two expert mental health\nwitnesses, the Illinois Supreme Court reversed Kando\xe2\x80\x99s conviction. Kando, according\nto the doctors who treated him after he was arrested, suffered from persistent \xe2\x80\x9chyperreligious delusions\xe2\x80\x9d that totally warped his sense of reality and compelled him to act\nviolently. Though Kando\xe2\x80\x99s beliefs were rooted in mainstream Christianity (he believed\nhe was receiving messages from Jesus about Satan), they were far more literal than\nthose held by non-schizophrenic people. He told the doctors that he heard \xe2\x80\x9cechoes of\nreligious figures\xe2\x80\x9d in his head and sometimes received spiritual guidance from the television. One doctor testified, \xe2\x80\x9cWhen [Kando] becomes ill, he becomes very religious,\nstarts to pray a lot and to develop delusions about people being Satan.\xe2\x80\x9d The court\nconcluded that these delusions, combined with his long history of mental illness and\nhis compliant, confused behavior when arrested, proved that Kando was insane at the\ntime he attacked Burley. The court reversed his conviction.\nIn United States v. Ballard, the U.S. Supreme Court held that civil and criminal\ncourts could probe only the sincerity of a party\xe2\x80\x99s beliefs, not the verity of them.4 But,\nthe Illinois Supreme Court had to probe far more than Kando\xe2\x80\x99s sincerity in order to\nresolve the question of his sanity. For Kando to be legally insane, the court needed to\nagree with his doctors that his religious beliefs, albeit rooted in Christianity, were nevertheless false; poor Jason Burley was not actually Satan, and Jesus did not actually tell\nKando to attack him. Those beliefs, no matter how religious in nature, were delusional.\nBy finding him religiously delusional, did the court traipse into constitutionally forbidden territory?\nThe insanity defense is an affirmative defense, meaning the defendant must raise\nthe question of their san
[cell cut: 2261898 characters, first 2000000 kept]