You Are Free to Exercise.

Introduction
Religious liberty is an inalienable right. At the heart of what it means to be an American citizen, religious liberty includes the right to freely practice any religion or no religion without government coercion or control. This was true in the decades before the Declaration of Independence, when many people came to North America to escape religious persecution in Europe. This was true in 1791 when the Bill of Rights was ratified in a predominantly Protestant country. It is true today. Expanding religious pluralism in today's society challenges and affirms America's belief in freedom of conscience.

"Free exercise" is the freedom of every citizen to reach, hold, practice and change beliefs according to the dictates of conscience. The Free Exercise Clause prohibits governmental interference with religious belief and, within limits, religious practice. The Supreme Court traditionally has required governmental bodies to demonstrate a compelling interest of the "highest order" before they may interfere with religious conduct. Government must demonstrate that the means by which it seeks to address its compelling interest are the least restrictive possible of religious conduct.

This lesson provides five cases in which an individual's freedom of conscience comes into conflict with the interests of the larger society. Students will hear the arguments put forth by plaintiffs and defendants in each case, then deliberate on what limits — if any — may be placed on religious expression.

Key Concepts

• Religious liberty, or freedom of conscience, is an inalienable right.
• It is the duty of the government to guard and respect the individual's freedom of conscience and belief.
• The Free Exercise Clause of the First Amendment provides that government will neither advance nor inhibit religious expression.
• The only reasons for government to impose laws and regulations are secular.
• No one will be coerced by government to support or participate in any religion or in its exercise.

First Principles

• The First Amendment affirms the freedom of the individual.
• The First Amendment tells the government to keep its "hands off" our religion, our ideas, our ability to express ourselves.
• Other people have rights, too.
• When rights collide, government must balance them.

First Moments
James Madison, drafting his preliminary proposals for a Bill of Rights, wrote in 1789: "The civil rights of none shall be abridged because of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or in any pretext, infringed.

"Freedom is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

In 1943, U. S. Supreme Court Justice Robert H. Jackson wrote in the Pledge of Allegiance case: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

In 1962, Supreme Court Justice Tom Clark wrote: "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality."

Discuss these quotations. What are James Madison, one of the Founding Fathers and author of the Bill of Rights, and Supreme Court Justices Robert Jackson and Tom Clark saying about government's relation to individuals and their religious beliefs?

After listing students' suggestions on the board and establishing key ideas, present the following situation to students.

A 2½-year-old boy becomes ill. His parents, David and Ginger Twitchell, do not seek traditional medical assistance. Instead, as members of the Christian Science Church, they rely on prayer and faith as their church teaches. Several times the child appears to get better, so the parents believe their prayers and the prayers of the Christian Science practitioner with whom they are consulting are working.

Robyn Twitchell dies on April 8, 1986, of peritonitis from a congenital bowel obstruction after five days of being ill. The parents are charged with involuntary manslaughter.

Massachusetts v. David and Ginger Twitchell (1990, Mass.) is heard before a criminal trial court in Boston, Mass. The jury will find the parents innocent or guilty in the death of their 2½-year-old son Robyn. Manslaughter, a lesser charge than murder, means unlawful killing of a person without the intention for that to occur.

Discuss these questions with your students.

• Do the parents have a right to exercise their religious beliefs? In their mind, the practitioner and their prayers are equal to - in fact, better than - a physician and medicine.
• What is the state's responsibility for the welfare of children? What is parens patriae (parent of his country)?
• What freedoms and responsibilities are in conflict in this case? Background on religious-freedom cases involving children, this case and the decision in Massachusetts is provided for teachers.

There are no easy answers. The American Medical Association; congregants of Church of Christ, Scientist; the National District Attorneys Association; members of the Followers of Christ Church and the General Assembly and Church of the First Born; and the Academy of American Pediatrics haven't been able to agree on an answer. The courts continue to balance conflicting interests, legal precedents, religious tenets and state laws in cases that involve sick children, parents who reject conventional medical care because of their religious convictions and the state's parens patriae role.

Procedure

1. Explain to students that religious pluralism in the United States today goes beyond the Protestant, Catholic and Jewish pluralism of the1950s. The United States census does not include a question about religion; however, reports from organizations and surveys, enable the World Almanac and online sources to estimate the statistics on religious groups in the United States. You might discuss how religious affiliations of members of Congress reflect the pluralism of the country. (You might compare the religious affiliations of members of the first Congress with those of the current Congress.)What do students understand about the cultural and religious diversity of the United States, their own community and their school?
   
   
2. Review the Free Exercise Clause of the First Amendment with the class. It reads "Congress shall make no law … prohibiting the free exercise [of religion]." Conduct a brief class discussion of the importance of the Free Exercise Clause. What benefits does guaranteeing such a freedom have? Help students understand that religious intolerance throughout history has led to conflict and violation of individual rights. Guaranteeing religious freedom helps to promote respect for differences. Furthermore, what one believes about religion underlies what one believes about many other aspects of the world and human relations. Thus, freedom of religion helps protect intellectual freedom more generally. Discuss the fact that the framers believed that religion was essential to developing the kind of character needed by citizens in a free society. Do students agree with this assumption?
   
   
3. First Amendment rights do have limits. In the case of the right to exercise one's religious beliefs, this is particularly true when it comes to actions based on religious beliefs as opposed to the beliefs themselves. Ask students to think about how far outside the mainstream religious groups can venture and still be protected by the First Amendment.
   • Are religions that worship multiple gods legally permitted? (Yes.)
     
     
   • What about religious worship that involves handling poisonous snakes by both adults and children? (Children should not be subjected to the risk of death; adults make up their own minds.)
     
     
   • What about a religion that holds that each man should have more than one wife? (No, polygamy is illegal everywhere in the United States.)
     
     
4. Tell students they will now have the opportunity to judge real issues that have arisen concerning freedom of conscience and religious expression.
   • Divide the class into five groups. Explain that each group will act as the justices of the Supreme Court to decide whether the Free Exercise Clause of the First Amendment was violated in each case. Assign each group a different case to present to the class.

     Case 1: West Virginia Board of Education v. Barnette (1943)
     Case 2: Welsh v. United States (1970)
     Case 3: State of Wisconsin v. Jonas Yoder, et al. (1972)
     Case 4: Oregon Employment Division v. Smith (1990)
     Case 5: Church of the Lukumi Babalu v. Hialeah (1993)

   • Give the Case Backgrounds and role cards to the appropriate groups.
     
     
   • Distribute one copy of the Case Analysis form to each group. After reviewing the case background and the positions taken in the case (refer to role cards), students should complete the questions on the Case Analysis form.
     
     
   • Once the analysis is completed, select a student in each group to read the background of the group's assigned case to the class and select two students to be the plaintiff and defendant. Give them the appropriate cards. These three students will come to the front of the class to present the case background and arguments of the plaintiff and defendant.
     
     
   • After the presentation of the arguments, give the four non-presenting groups 15 minutes to reach a decision on the case and to write down their reasons. During this discussion, members of the presenting group should plan the presentation of their group analysis and answer questions that other groups may have about the case they presented.
     
     
   • When groups are finished, have the four non-presenting groups give their decisions. The presenting group should then report its analysis, emphasizing the competing values and reasons for its decision.
     
     
   • Encourage students in other groups to question the reasoning and decisions in each case. At the end of discussion of the groups' decisions, provide the actual outcome of the case. Decisions of the Supreme Court are provided for teachers. Do not present the outcome as the only correct answer, rather as the decision of the court at the time. Actual cases are complex, and judicial reasoning changes over time. These cases were selected to show how difficult deciding complex court cases can be.
     
     
   • Repeat the presentation and discussion process with the remaining cases.
     
     
5. Teachers may wish to conclude by discussing significant themes that emerge from these cases.
   • The following two quotations address one such theme: It is evident through the cases included in this study and others involving the Free Exercise Clause that laws should not be written to target a particular religious practice.

     " To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the 'highest order,' and must be narrowly tailored in pursuit of those interests."

     —McDaniel v. Paty, 435 U.S., quoting Wisconsin v. Yoder (1972)

     "A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases."

     —Church of Lukumi Babalu Aye v. City of Hialeah (1993)

   • Contained in this quotation is a second example of a theme emerging from study of these cases: Government officials must be sure that laws and regulations are instituted only for secular, not religious, reasons.

     "[The Free Exercise Clause] commits government itself to religious tolerance, … all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular."

     — Church of Lukumi Babalu Aye v. City of Hialeah (1993)

6. Ask students to write an essay on one of the following topics:
   • The Supreme Court's role in securing individual rights.
     
     
   • Tolerance and intolerance toward religious groups in America.
     
     
   • The conflict between free exercise of one's religious convictions and society's responsibility to its minors.
     
     
   • The Constitution and religious liberty. You may ask students to identify divergent viewpoints and to analyze the judiciary's role in reconciling them. Students may include in their essays one of the above quotations or a quotation from the case they presented.

Enrichment

1. Explore the teaching of creationism and evolution in high school biology courses. Study Edwards v. Aquillard, 482 U.S. 578 (1987) in which the Supreme Court found that state law requiring equal treatment for creationism is unconstitutional because it has a religious purpose.
   
   
2. Explore the role religion has played in American history and society. Timothy Smith, professor of history at the Johns Hopkins University, compiled a list of 29 significant religious influences in the history of the United States. Download Finding Common Ground. Chapter 8 provides the list and resources for teaching.

On the Web

Religion and the American Revolution
Essays on TeacherServe from the National Humanities Center.

Religion and the Founding of the American Republic
An online exhibit of the Library of Congress. Outstanding resource providing an overview that is rich with artifacts, original documents and links to significant resources.

Religion and the Founding of the American Republic: Religion and the Congress of the Confederation, 1774-89
This Library of Congress online exhibit looks at the Continental-Confederation Congress. "The amount of energy that Congress invested in encouraging the practice of religion in the new nation exceeded that expended by any subsequent American national government." Content includes why chaplains of different denominations were appointed.

The Pluralism Project
This project was established at Harvard University to study and document the growing religious diversity of the United States. Contains articles, workshop information and links.

Interfaith Calendar
Online calendar of primary sacred times for world religions. One way to become acquainted with a religious tradition is to study its holy days.

Puja: Expressions of Hindu Devotion
Curriculum material developed by the Freer Gallery of Art and Arthur M. Sackler Gallery. Video, posters and lesson plans with activities. Includes an online educator's guide to Puja, which is the act of showing reverence to a god or aspects of the divine in Hindu worship.

Saving Children From State Science
A footnoted article that documents cases in which parents who did not use standard medical procedure for their ill children who died were taken to court. The author questions whether these charges of neglect are fair in "one of the major battlegrounds of religious freedom."

They Shall Take Up Serpents
An All Things Considered broadcast (transcript or RealAudio) about believers in the Appalachians who have incorporated handling serpents and drinking strychnine into their religious beliefs and practice. All but two southern states have outlawed the practice. Produced by David Isay, Sound Portraits.

National Standards
Civics Standard 3: Understands the sources, purposes, and functions of law, and the importance of the rule of law for the protection of individual rights and the common good.

Civics Standard 8: Understands the central ideas of American constitutional government and how this form of government has shaped the character of American society.

United States History, Standard 8: Understands the institutions and practices of government created during the Revolution and how these elements were revised between 1787 and 1815 to create the foundation of the American political system based on the U.S. Constitution and the Bill of Rights.

Interdisciplinary
Religious Studies: Study the impact of Supreme Court decisions on religious beliefs, marriage and the law.

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