Mr. VanEngen, a member of the Protestant Reformed Church of Hull, Iowa, is a practicing attorney.
The First Amendment addresses the constitutional limitations on government power in matters of religion. The First Amendment provides simply that the government may not: 1) make any laws establishing a religion, or 2) limit the free exercise of religion. Several of the articles appearing under the “Church and State” rubric in recent years have discussed the First Amendment in terms of the first clause, known as the “Establishment Clause.” Establishment Clause cases typically deal with the issue of whether the government is directly or indirectly sponsoring a particular religion by allowing government funds or property to be used to express religious beliefs, such as a display of the Ten Commandments in a courthouse.
The clause following the Establishment Clause is known as the Free Exercise Clause. Cases interpreting the Free Exercise Clause deal with allegations that the government, through laws or other means, is somehow restricting citizens from exercising their religion. The Supreme Court recently decided a case dealing with the Free Exercise Clause. While the facts at issue in this case are unlikely to arise in Reformed churches, a review of this case is helpful to understand this area of constitutional law and its implications for us. The case also sheds light on the current status of a federal law known as the Religious Freedom Restoration Act of 1993,¹ which was intended to preserve religious liberties.
The case was Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal.² The O Centro Espirita Beneficente Uniao Do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, which attempts to blend indigenous Amazonian and Christian beliefs. At the time the case arose, there were approximately 130 members of this sect living in the United States. For communion, this group uses a sacramental tea called hoasca, which is made from two plants native to the Amazon region. One of the plants contains amounts of a hallucinogen that is a Schedule I controlled substance under the federal Controlled Substances Act. United States customs inspectors intercepted a shipment of hoasca and threatened the UDV with prosecution. The UDV, in turn, filed suit against the government to stop officials from interfering with the UDV’s practice of its faith. The UDV asked the court for a preliminary injunction ordering the government to allow them to continue to use hoasca while the case was pending, until the actual trial could be held.
At the hearing on the preliminary injunction, the government conceded that the application of the Controlled Substances Act to the UDV would substantially burden a sincere exercise of religion by the UDV. However, the government argued that applying the Controlled Substance Act to the UDV was the least restrictive means available to promote three compelling government interests: first, protecting the health of UDV members; second, preventing hoasca from being diverted to recreational users; and third, complying with a government treaty on psychotropic substances. The UDV presented evidence that the hoasca as administered in communion did not pose a health risk to members. The UDV pointed out, too, that there was no market for hoasca among recreational users and pointed out that there was no evidence of hoasca ever being diverted to recreational users.
The District Court found the evidence presented to be evenly balanced, and did not clearly indicate that either side was correct. The Court found that the burden was on the government to show that the impingement on the UDV’s freedom of religion was justified by compelling government interests. Since the evidence did not make it appear more likely that the government would win at the actual trial, the Court granted the injunction. When the government appealed the District Court’s decision, the decision was upheld by the appellate courts, and ultimately by the United States Supreme Court.
In affirming the decision of the District Court, the Supreme Court relied heavily on the Religious Freedom Restoration Act of 1993 (RFRA). This reliance may have been surprising to some, because the Supreme Court had previously held RFRA to be unconstitutional. In order to understand the significance of RFRA, it is important to understand a brief history of jurisprudence under the Free Exercise Clause.
The Supreme Court first clearly addressed the issue of when the government’s interests can allow it to restrict religious practices in 1878. In a case involving a Mormon man accused of bigamy, the Supreme Court explained that laws of general applicability do not violate the Free Exercise of the Constitution.³ In other words, if a law applied to or restricted all religions equally, it would be upheld.
In later years, however, the Court found that for a law impinging on religious practices or beliefs to be upheld, it must be the least restrictive means to accomplish a compelling state interest. Based on this analysis, the court found that the government could not deny unemployment benefits to a Seventh Day Adventist who refused to work on Saturday in the Sherbert case, and that it could not require Amish parents to send their children to high school in the Yoder case.4 For a time, it seemed the Court would carefully scrutinize any impingement on religious freedom to see if the restrictions were really warranted.
Then in 1990, in a case quite similar to the UDV case, the Court upheld a law prohibiting the use of peyote, which was used by Native Americans in worship, but which contained controlled substances. 5 The Court, inEmployment Division v. Smith, ruled that if a law was one of general applicability, then there would be no balancing of the government’s interests against the burden on citizens’ religious beliefs. Congress responded by passing RFRA to restore the strict scrutiny and balancing tests that had been applied in earlier cases, but the Supreme Court found RFRA unconstitutional because the Congress did not have the power to force states to engage in a balancing test.6 In the recent hoasca case, the Controlled Substances Act was a federal law, so it appears that the Court was implicitly stating that RFRA was still valid with regard to laws passed by the federal government.
So what is the significance of the hoasca case to Reformed believers? The case shows that the court is still willing strictly to scrutinize government laws that restrict religious freedoms. Under the current status of the law, the Court will not strictly scrutinize state laws if they apply equally to all religions, but they will look carefully at federal laws because of RFRA. It is also interesting to note that the Court in the Smith case was divided five-to-four, while the Court was unanimous in the hoasca case. This may indicate a shift in the Court so that, given the right circumstances, the Court would also apply strict scrutiny to state laws.
While we do not use hoasca or peyote in worship, the same legal principles that apply to those cases can affect our own worship. For instance, the Congress has for some time been addressing a “hate-crimes” bill that prohibits certain acts towards homosexuals and others. Some fear that this law or a revised version of it could be used to stifle preaching against the sin of homosexuality, based on the notion that such preaching would be an incitement against homosexuals. Applying the analysis from the hoasca case, one could argue that a law prohibiting such preaching would substantially burden a sincere exercise of our religion. The burden would then be on the government to show that it had a compelling interest in prohibiting such preaching, and to provide evidence supporting its claims. At this point, however, it does not appear that a state government would have to pass the same criteria for a law restricting religious beliefs to be upheld, as long as the restrictions applied to all churches.
Even if a law restricting religion were to be upheld by the Court under Free Exercise analysis, it is possible that it could be found unconstitutional under a First Amendment Free Speech analysis. When the Supreme Court upheld the restriction in the Smith case, it seemed to distinguish the case of the Amish parents in Yoder by indicating that Yoder was more of a case about free speech.
Ultimately, the answer to the question of whether the courts would apply the legal principles in this way depends on whether our sovereign God has chosen this way to preserve our ability to worship Him and to further the preaching of His Word. For the moment, the constitutional law of the land seems to favor more protection of our religious freedom. More and more, citizens and churches who condemn sins such as homosexuality are deemed “intolerant,” and the laws passed by legislatures trend towards protecting those who engage in such sins. We must be aware of these developments and be prepared to use the means God has given us under our system of government to maintain the truth in our worship and preaching.Reynolds v. U.S., 98 U.S. 145 (1878).
¹ 42 U.S.C. § 2000bb
² 546 U.S. 418 (2006)
4. Sherbert v. Werner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), respectively.
5. Employment Division v. Smith, 494 U.S. 872 (1990).
6. City of Boerne v. Flores, 521 U.S. 507 (1997).