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Debating Church-State Relations and Related Free-Speech Issues

Religious Freedom and Today’s Religious Minorities

Since the ratification of the First Amendment in 1791, it has generally been true that all Americans have been guaranteed the freedom to worship—or not to worship—according to the dictates of their own conscience. Discussions about limiting religious practices have mainly involved cases that have appeared strange in the context of mainstream American faiths.

One recent example occurred in Hialeah, Fla., a Miami suburb that enacted a law in 1987 prohibiting the ritualistic killing of chickens, pigeons, doves, ducks, goats, sheep, and turtles. The law was aimed at stopping animal sacrifice among Cuban immigrants who were practicing ancient customs of their African forebears’ Santerian faith. At about the same time in Oregon, two Native American counselors at a substance abuse rehabilitation center brought an unemployment compensation suit after being fired for participating in a sacramental ceremony involving the use of peyote (a naturally growing hallucinogenic drug). The ceremony had been part of their tribe’s religious practices for centuries.

In 1993, Connecticut police brought charges against five Buddhists who had helped a fellow Buddhist douse himself with gasoline and burn himself to death in protest against the persecution of members of their faith in their native Vietnam. Apparently unaware that they were running afoul of the law—and determined to do well by their trusting friend—the five assistants videotaped and photographed the event, covered the corpse with a Vietnamese flag, and telephoned state police from a nearby restaurant so as to notify them of what had taken place.

To many of today’s Americans, such practices are shocking. To the American colonists, they probably would have seemed even more so. When the Bill of Rights was adopted, most Americans were Christians who may have known about animal sacrifice from their Bible readings but did not practice it at all. The use of wine as part of religious services was not unknown, either, yet the use of hallucinogenic drugs was. To commit suicide was a grave sin to members of these religious groups, and to assist in suicide was murder.

Further, the colonists brought only their religions, not their holy sites, to the New World. Unlike many Native Americans today, they didn’t fear that a growing number of their sacred tribal grounds would ultimately be desecrated and destroyed, and no thought had to be given to making provisions for the safekeeping of such lands.

Notwithstanding the Colonial Americans’ lack of awareness about the wide variety of religions and religious practices around the world, the Founders crafted the First Amendment’s opening words to say that the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” This wording has provided religious minorities with some protections, yet these denominations have still often been caught between what their religions teach them to do and what the predominant American culture, through its control of legal and political institutions, expects—and even requires—them to do.

Today, about 60 percent of Americans are members of an organized religious groups, with 52 percent Protestant and 38 percent Roman Catholic. A full 90 percent of those in religious groups are thus of Christian faiths. About 4 percent are Jews, and Mormons and Eastern Orthodox are about 3 percent each. This means that, statistically, those belonging to other faiths are a small fraction of 1 percent, including Muslims, Buddhists, Hindus, Shintoists, Confucianists, Taoists, Sikhs, Santerians, and Native Americans, among many others. A large number of Americans-40 percent-belong to no organized religious groups. Atheists and agnostics are among these.

Minorities whose religious practices have come up against the dominant American culture have tended to have to change their religious behavior in some way despite their protections under the First Amendment. In part, this course is necessary because lawmakers and judges, while not necessarily biased, bring their own cultural outlooks, including religious orientations, with them to their work. Further, there is disagreement among scholars and judges over the extent to which the First Amendment protects particular religious “practices” as opposed to religious beliefs.

Also, minority groups feel the pressure to be part of their surrounding culture, or to leave. In the 1800s, the new Mormon religion’s members found themselves in repeated conflicts not only with the general population but also with the U.S. Congress, which opposed their practice of polygamy. By 1849, after having suffered intense discrimination and violent attacks in the Midwest, the Mormons set up a civil government in the Great Salt Lake valley in what was to become Utah. The Mormons applied for admission to the Union as the state of Deseret, but instead the Congress created the Territory of Utah in 1850. Brigham Young, the Mormon leader, was appointed governor. Soon, anti-Mormon public sentiment arose again. President Buchanan replaced Young with a non-Mormon governor and sent U.S. troops to the territory. A conflict known as the Mormon War followed, which ended in 1858. The Mormons of Utah weren’t able to realize their ambition of becoming a state until 1896, six years after their church had outlawed polygamy.

Such give-and-take between minority religious practices, mainstream Americans’ expectations, and the American government has made for an interesting mix of approaches to remedying situations where law and minority religions have seemed to be at odds. The dilemmas faced have also pointed to how fragile the First Amendment protections are. Here is how the interests of the dominant culture and those of the other religious minorities mentioned above were finally balanced in these interesting situations.

  • The Hialeah animal sacrifice case was decided in the Supreme Court in 1993. In Church of the Lukumi Babalu Aye, Inc. v. Hialeah , 113 S. Ct. 2217, city officials defended their ban against animal sacrifice based on public health and community moral standards. The church argued that the government permitted the killing of animals for many secular reasons, such as for hunting and fishing, and that banning religious ceremonial sacrifice is wrongful government infringement on their religion. The minister said that his religion should be institutionalized so that its practitioners could become part of mainstream America. The Supreme Court ruled in favor of the church, overturning a lower court ruling.
  • The two Native Americans drug counselors from Oregon lost their case, in which they claimed they were entitled to unemployment benefits after being fired for using as part of their traditional Indian religious ceremony. In Employment Division v. Smith , 494 U.S. 872 (1990), the justices ruled that the employees were fired for cause, having violated a contract with their employer agreeing not to use illegal drugs. Writing for the majority, Justice Antonin Scalia held that religious practices, in this case ceremonial use of peyote, are not exempt from “generally applicable” criminal prohibitions.
  • In the Buddhist assisted-suicide case, during a court hearing the five accused friends were admitted to an accelerated rehabilitation program. Admission to the program was not tied to entering pleas of guilt or innocence. If they remained conviction free for a year, all criminal charges related to assisting with the suicide were to be dropped.
  • Native Americans’ claims over sacred lands have been largely unsuccessful. However, efforts to regain Indian skeletal remains from museums so that they can be properly buried have met with some success. The Native American Graves Protection and Repatriation Act of 1990 requires institutions receiving federal money to return human remains and any artifacts found with them to the tribes that want them, given that the tribes have proven they have a valid claim to them. In addition, on May 24, 1996, President Clinton issued Executive Order 13007, directing all federal agencies to accommodate and protect “Indian sacred sites” whenever possible.

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