Return to Contents The First Amendment to the Constitution of the United States:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.
The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. Free-exercise clauses of state constitutions which protected religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause. The Clause protects not just religious beliefs but actions made on behalf of those beliefs. More importantly, the wording of state constitutions suggest that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation of laws, as long as that violation is made for religious reasons. In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.
• Government cannot unduly favor one religion over another
• Exemptions from (certain) Generally Applicable Laws
• Certain (not all) violations of laws allowed
• Laws cannot be made that favor (or penalize) one religion over another. Government enforcement of laws cannot favor (or penalize) one religion over another. Government scrutiny of the activities and representations of Churches cannot favor (or penalize) one religion over another. The availability of government services cannot favor (or pernalize) one religion over another.
• Laws cannot be made that favor (or penalize) the members of one religion over another. Government enforcement of laws cannot favor or penalize the members of one religion over another. Government scrutiny of the activities and representation of churches cannot favor (or penalize) the members of one religion over another. The availability of government services cannot favor (or penalize) the members of one religion over another.
• Churches may be held exempt by the states from certain laws of general applicability to the general population. For example, sexual gender discrimination, racial discrimination, and discrimination by sexual orientation are unlawful for the general population. Church exemption from these laws of general applicability make it lawful for churches to selectively discriminate in admission to their priesthood and other offices and positions in the Church and the availability of certain benefits of membership.
• Given that churches may be held exempt from some, but not all laws of general applicability, it follows that the government must (and has) establish(ed) reasonable tests to determine which laws of general applicability a church may be deemed exempt from and why. Such tests must be fairly applied and cannot favor (or penalize) one religion over another and cannot favor (or penalize) the members of one religion over another. The tests cannot be arbitrary (without reasonable basis) even if they are evenly applied to all religions. Compelling state interest (the public good that the government is elected to support) must be considered and weighed in determining the appropriateness and, therefore, lawfulness of church exemptions for laws of general applicability. The government cannot ignore or abdicate its general obligation to support the common good of the society of people it is elected to serve in applying the provisions of the First Amendment.
• Churches cannot be held arbitrarily exempt from all laws of general applicability just because they are churches, or just because a particular action was deemed to be part of their religious practice. For example, Warren Jeffs, the leader of a fundamentalist Mormon cult, was prosecuted for having sexual relations with minors, a violation of a law of general applicability, in spite of the fact that those relations were under the religious sanction of plural marriages performed by the church. Some rationale was used by the government in making the determination that the religious practice of marriage to minors, for Warren Jeffs, was not exempt from scrutiny or from prosecution as a violation of laws. That rationale included consideration of the compelling state interest in a common good that outweighed what might otherwise have been an exemption from a law of general applicability.
• It follows, reasonably, that something about the sexual relations that Warren Jeffs was having with minors was deemed to violate a compelling state interest that the government had (on behalf of the society it represents), which, when weighed in the balance against the possibility of allowing a First Amendment religious exemption from a law of otherwise general applicability, was found by the court to have greater weight. For this determination to be lawful, the compelling state interest must be justified in a way that is not arbitrary (therefore reasonable) and consistently applied.
• The courts that heard and decided upon the Warren Jeffs case were not obliged to scrutinize the reasonableness of the law against sexual relations with a minor. The applicable criminal statutes had been passed into law by the appropriate process and were accepted by the court to establish the fact that the conduct that Warren Jeffs was accused of was criminal. We do not believe that the courts made a finding that any particular aspects of the criminality of the conduct of Warrant Jeffs were necessary to justify the Court's decision that the religious context of the conduct failed to exempt it from prosecution. (We will research that and amend this if appropriate)
• The courts that decided on the Warren Jeffs case were obliged to consider evidence of and scrutinize the actuality of the actions of Warren Jeffs and their relationship to the applicable criminal statutes. The fact that the actions in question were in a religious context did not exempt them from scrutiny of the court to serve an assessment as to the applicability of the relevant criminal statutes.