Abstract
This chapter seeks to explain, as a descriptive matter, when, how, and why issues of religious freedom became part of the marriage equality debates. Using a historical context, the principle of religious freedom is examined, providing a provocative analysis of religious liberty cases and the ongoing role courts have played in this debate after the legalization of same-sex marriage in the United States through the 2015 Obergefell v. Hodges Supreme Court decision. A legal analysis is provided for Supreme Court cases.
TopEnter The Supreme Court
The First Amendment to the U.S. Constitution has a vast range of applications in that it protects religion, speech, press, and petition. The first religious application of the Free Exercise Clause of the First Amendment was in the case of Reynolds v. United States (1879), a Mormon challenge to federal laws against polygamy. It was followed by the first application of the Establishment Clause in Bradfield v. Roberts (1899), a taxpayer challenge to congressional funding of a Catholic hospital. In both cases, and in the 10 federal cases on religion to follow before 1940 challenging federal immigration, education, and military laws, the Supreme Court found no First Amendment violations (Witte, 2003).
Legal issues regarding religion were left to the states to resolve, each in accordance with its state constitution. By 1833, every state constitution guaranteed its citizens basic liberty of conscience, free exercise of religion, and freedom of religious worship and association. Every state also removed the most glaring vestiges of early religious establishments, notably the mandatory payment of tithes and compulsory participation in religious services.
Key Terms in this Chapter
Strict Scrutiny: Determining whether the law violates the Equal Protection Clause unless the state can show it is necessary to further a compelling government interest and is accomplished by the least intrusive means.
Fourteenth Amendment: Guarantees citizens of the United States due process and equal protection of the laws. The due process clause has been the vehicle for applying to state action nearly all the guarantees in the first 10 amendments.
Procedural Due Process: Guarantees procedural fairness where the government would deprive someone of property or liberty.
Rational Basis: A method of constitutional analysis under the equal protection clause used to determine whether a challenged law has a legitimate governmental objective. It is used when a constitutional objection is raised regarding a law’s reasonableness and not when constitutional rights violations are alleged.
Equal Protection Clause: Constitutional guarantee embodied in the Fourteenth Amendment to the Constitution.
Substantive Due Process: Requires all legislation to further a legitimate governmental objective.
Sherbert Test: A three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally protected right to the free exercise of religion. The first prong investigates whether government has burdened the individual's free exercise of religion. If government confronts an individual with a choice that pressures the individual to forgo a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual's free exercise of religion. However, under this test not all burdens placed on religious exercise are constitutionally prohibited. If the first prong is passed, the government may still constitutionally impose the burden on the individual's free exercise if the government can show it possesses some compelling state interest that justifies the infringement (the compelling interest prong), and no alternative form of regulation can avoid the infringement and still achieve the state's end (the narrow-tailoring prong).