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61 Tex. L. Rev. 139 (1982-1983)
Sacred and the Profane: A First Amendment Definition of Religion

handle is hein.journals/tlr61 and id is 177 raw text is: Notes The Sacred and the Profane: A First Amendment Definition of Religion The determination that a belief or practice is religious carries a variety of constitutional consequences.' The free exercise clause guar- antees an individual's right to believe whatever he chooses and to carry on religious activities, such as worship and proselytizing.2 Moreover, the Supreme Court has interpreted the clause to require religious ex- emptions from otherwise valid laws in some instances.3 The establish- ment clause, on the other hand, prohibits government action that 1. See U.S. CONST. amend. I. (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ... ). 2. The Supreme Court has frequently distinguished between an absolute right to believe and a limited freedom to act according to the dictates of religion. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 219-20 (1972); Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). An individ- ual's right to freedom of religious belief is rarely contested, but see Torcaso v. Watkins, 367 U.S. 488 (1961) (state constitution required belief in God in order to receive commission as notary public), but the right to engage in traditional religious activities such as worship, see O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979), and proselytizing, see Heffron v. International Soc'y for Krishna Consciousness, 452 U.S. 640 (1981); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. City of Opelika, 319 U.S. 103 (1943); Cantwell v. Connecticut, 310 U.S. 296 (1940), is not absolute. 3. In 1963 the Court held in Sherbert v. Verner, 374 U.S. 398 (1963), that a Seventh-Day Adventist could not be denied unemployment benefits after she was fired for refusing to work on Saturday. The Court interpreted the free exercise clause to require that only a compelling state interest could justify imposing a burden on the exercise of religion. Id at 403. Moreover, even a compelling state interest had to be supported by a demonstration that government could achieve its ends through no less restrictive means. Id at 407. See also Wisconsin v. Yoder, 406 U.S. 205 (1972) (requiring religion-based exemption from state compulsory education statute for Old Order Amish above the eighth grade). The courts have decided a wealth of cases involving claims for religion-based exemptions. Cases have involved Sabbath laws, e.g., Braunfeld v. Brown, 366 U.S. 599 (1961); narcotics stat- utes, eg., Leary v. United States, 383 F.2d 851 (5th Cir. 1967); Randall v. Wyrick, 441 F. Supp. 312 (W.D. Mo. 1977); People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964); social security legislation, e.g., Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977); monogamy laws, e.g., Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878); contempt rulings, e.g., In re Chase, 468 F.2d 128 (7th Cir. 1972); prison regulations, e.g., Brown v. Wainwright, 419 F.2d 1376 (5th Cir. 1970); St. Claire v. Cuyler, 481 F. Supp. 732 (E.D. Pa. 1979); Ron v. Lennane, 445 F. Supp. 98 (D. Conn. 1977); Maguire v. Wilkerson, 405 F. Supp. 637 (D. Conn. 1975). See also Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REv. 1373, 1389-90 (1981) (listing cases); Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 YALE L.J. 350, 351-52 (1980) (listing cases). 139

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