American Constitutionalism in Historical Perspective (packet)

Black’s dominant view vs. Rehnquist’s minority view:

1. 
   Dominant view: c/n prefer religion over irreligion, can have conscience in either one—Jefferson’s comment over no God supports this idea—broader view. More modern and addresses all religions. Not everyone draws ethics from religion but are still ethical. Better reading of equality.
   
2. 
   Minority view: c/n have one religion preferred over another religion. Nothing about religion clause speaks to non-religion. See also Souter response on p. 1507 (Framers extended their prohibition to state support for “religion” in general)
   

Neutrality view: Kurland: p. 1509: No religious exemptions from secular laws by action or inaction b/c would have sectarian, religious basis and allow anti-est to trump free exercise, gov’t must be religion-blind.

Our court has refused to remove tension b/w clauses

1. 
   Free exercise: ppl want to act on basis of their religious convictions & state is trying to coerce you not to
   
2. 
   Anti-est: acquisition of religious conviction and change of views. Incentives to form and change convictions s/n involve the state.
   

Free exercise: prohibits coercion or eco detriment. Belief is absolute (state c/n make you say something you d/n believe), but can limit religious action if furthers state interest.

1. 
   Amendment I: “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof.”
   
2. 
   Expansive definition of religion as any sincerely held conviction. The court is not going to inquire into the truth of religion. Quakers have always been exempted from mandatory military service but there is an absolutely compelling secular interest to serve in these wars which is more than enough to overcome constitutional argument mandating exemption. Mandatory exemption would incentivize religious conversion. So need statutory/discretionary (interpreting definition of statute) exemption like had for Quakers.
   
   1. 
      U.S. v. Seeger, 1965; Welsh v. U.S., 1970: p. 1510 Nontheistic conscientious objectors objecting to being excluded from congressional exemptions from service accorded to other religious groups. Court overturns their exclusion, finds that the exemption must be extended to sincerely held beliefs. Congress can’t draw distinctions between sources of belief, religious or irreligious which stand equally.
      
   2. 
      Torasco v. Watkins 1961 p. 1513 for expansive view of belief. Struck down law requiring all holders of public office to declare their belief in G-d
      
   3. 
      Gillette v. US, 1971: conscientious objector says will only serve in just wars as det by Catholic faith. Court d/n allow the exemption due to problems of proof, fraud, and administration of exemptions for selectively defined just wars. (compelling secular purpose). All wars you get exemption, but if only object to some wars, no exemption. Would encourage others to invent similar interests & convert. Marshall concerned because burden of service disprop falling on blacks and less educated. Follows neutral secular policy to avoid taking away power from Congress by exempting ppl who disagree w/ Congress’s policy. Other ways to protest war than this.
      
   4. 
      U.S. v. Ballard, 1944: p. 1512 govt wants to protect the public by bringing mail fraud action vs. religious sect that claimed it could heal people. Ct d/n want to get into what is true and accepted as religious belief. (truth vs. sincerity). If allowed this conviction would need to look at truth but just have to det whether belief is sincerely held. Religion is too subjective, based on faith, don’t want to get into problems of proof in this area. But also recognize difficulty in proving sincerity.
      
3. 
   Beginning of free exercise cases also involve free speech (proselytizers) p.1513: Confirms moral link b/w religion and free speech clause. C/n use religion as measure of secular power pp. 1513-14 Torasco and McDaniel (invalidated law disqualifying clergy from being legislators or constitutional convention delegates). Use of religion by state to determine ability to have secular/political power is highly suspect. Later add race and gender.
   
4.