Talk:Free Exercise Clause of the First Amendment
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[edit] This shouldn't be merged
The free exercise clause and the establishment clause are two entirely different clauses in the First Amendment. Maybe they could both be merged together into an article on the First Amendment, but free exercise certainly doesn't belong under the establishment clause. --Cyde 21:45, 30 November 2005 (UTC)
Simply, each clause of the Constitution should have its own section; Separation of church and state in the United States, while related, is not mentioned in the US Constitution. Assawyer 02:23, 8 February 2006 (UTC)
[edit] This should be merged
While the two clauses are different they cannot be understood separately from one another. I contend they compliment and to discuss oopeans coming to North America were escaping religious wars. Yes, some did establish religious communities, colonies and states. But others did not, South Carolina for one.
The horror of religious wars on the continent of Europe during and following the Reformation begged the question, "How do we avoid these Princes killing us in the name of the Christian Faith?" The answer lay in creating a tension between "free Excercise" (the power of the State cannot dictate religion to its citizens) and non-establishment (the State will not establish any of the religions).
Strict "separation of Church and State" folks may disagree but the answer to keeping our current "culture war" from becoming a religious war is to recognize that religion (all religions!) must be honored by the State, not avoided as if it were a fatal disease. Religion should be for the State like medicine - none of it and you are sick; too much and you die.
[edit] Do we really need that?
The part about "Student Research": it seems a little... out of place with both topic and wording. 68.39.174.238 05:04, 19 May 2006 (UTC)
[edit] Sherbert Test: Another merger proposal...
...but I think this one's more reasonable. The test seems to be essentially a strict scrutiny (compelling interest) test applied to the Free Exercise clause. I talked this over with Cyde months ago when he and I were the only one's who'd edited Sherbert Test, but I never got around to merging them. --Chaser (T) 04:44, 5 June 2006 (UTC)
- The Sherbert Test should be in the article, however I believe having in the article about the case - Sherbert v. Verner - would be the more prudant thing to do. Such as how the Lemon Test redirects to and is found in the Lemon v. Kurtzman article. --Assawyer 16:27, 5 June 2006 (UTC)
[edit] Compelling Interest
Why does compelling interest redirect here? Doesn't the doctrine apply in situations other than the free exercise clause? Commander Nemet 07:16, 7 June 2006 (UTC)
- Yes. As I understand it compelling interest is part of strict scrutiny, a level of protection under the Equal Protection Clause. I changed it to strict scrutiny. If someone knows more, please redirect it elsewhere. --Chaser T 07:44, 7 June 2006 (UTC)
It's compelling STATE interest, I have created a page on compelling state interest. It includes a list of other things to which it applies. Jdblick 15:32, 13 September 2007 (UTC)
[edit] Mormon polygamy
- Congress banned polygamy when the practice was a central tenet of the Mormon religion. The Supreme Court sustained the constitutionality of the criminal prohibition in Reynolds v. United States (1878). The defendant proved that he was a member of the Mormon Church; that he was a believer in its doctrines; that it was an accepted precept of the Church, fortified by books thought to be of divine origin, that male members were saddled with a duty to practice polygamy; and, that a failure or refusal to do so would be punished by damnation in the life to come. Chief Justice Morrison Waite denied that the Free Exercise Clause was transgressed by the defendant's conviction.
- The chief justice reasoned that, "Congress was deprived of all legislative power over mere opinion, but was left free to reach activities in violation of social duties or subversive of good order." He added: "To permit [a religious motivation to justify non-compliance] would be to make professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Associate Justice Antonin Scalia endorsed Reynolds in Employment Division v. Smith (1990) in denying the religious use of peyote a Free Exercise Clause exemption from Oregon's anti-drug laws. [1]
Is this information already in Wikipedia somewhere? If not, should it go here? --Uncle Ed 13:32, 17 October 2006 (UTC)
[edit] Jehova's Witnesses Cases in the Introductory paragraphs?
I don't want to make an edit that might look POV without discussing it first. However, I take issue with the fact that the article goes onto the "Jehova's Witnesses cases" (as though it were some functional or doctrinal category) before the main subject of the clause has even fully been introduced. Yes, many FE clause cases have involved that particular group, however, I think that putting such focus on it distorts the article. The clause was not made to protect one religious group; it was made to protect a fundamental freedom for all of the people. I cannot cite at this time, any study that attributes FE clause litigation by sect, but I sincerely doubt, based upon my extensive experience, that the majority of FE clause cases, or even a significant plurality, are brought by that group.
The FE clause cases brought by the Jehovas Witnesses are significant for their doctrinal impact but they are treated in an entire section of the article already. And I am really not sure why that is. The cases are doctrinally different. Also, by drawing particular focus on one particular religion, it could send several messages: (i) Jehova's Witnesses are pioneering legal libertarians (ii) Jehova's Witnesses are whiny, plaintive or litigious (iii) Jehova's Witnesses bring the majority of free exercise clause cases
I am quite sure none of these are "true" to any extent. Moreover, they are generalizations about a religious group, and therefore, inherently discriminatory, whether positive or negative in their impact. I don't think that's an appropriate position for the article to take.
Because it distorts the article and potentially spreads undue messages, the article should be changed. I recommend the following: (i) promptly remove reference to "jehovas witness" cases in the introduction. (ii) keep a seperate section on "jehovas witness" cases in the body article. (iii) eventually add more information to the introduction on the legislative history, or link to appropriate sources thereupon, and organize the article along doctrinlly clearer lines, while retaining appropriate reference to the role of Jehovas Witnesses cases
What does the wikimmunity think? Please weigh in. If no one weighs in for a while (say, 2 months of silence) I may make the edits I recommended myself. Non Curat Lex (talk) 10:11, 24 March 2008 (UTC)
