Canadian and US officials are meeting to develop ways to deal with polygamist enclaves in the United States and Canada.  These enclaves all are located in isolated areas very close to an international or interstate border.  Practical enforcement of laws in these locations is difficult.  The enclave members also assert that the Constitution protects their right to practice their religious beliefs without government interference.

It's particularly true in the "Free Exercise" jurisprudence that "hard cases make bad law. It's common this time of year to hear reports of litigation surrounding Nativity Scenes, a steady source of hard cases and, perhaps, bad law.

The propriety of Nativity scenes is usually analyzed under the First Amendment's "Establishment clause," not to be confused with Free Exercise clause. The analysis under the two clauses is very different.  Under the Free Exercise clause, courts are asked "Can the government prohibit "Activity X" if the activity is claimed to be religious?"  It is assumed that the government could otherwise prohibit the activity in the absence of a religious "Free Exercise" claim.  The cases can be difficult to reconcile.

It probably comes as no surprise that the first Free Exercise Supreme Court case involved polygamy.  Sometimes it appears that we've come full circle in Free Exercise jurisprudence since 1878.  Nevertheless, these are the most colorful cases that reach the Supreme Court.

Here are some examples:

Can a state prohibit Voodoo live animal sacrifice?

No.

Can a state criminalize peyote use in religious ceremonies?

Yes.

If congress enacts a law intending to reverse the Peyote use decision, is that law constitutional?

No.

If the state can't outright prohibit live animal sacrifice, can it designate a church as a historical monument and prevent a congregation from remodeling its over crowded church?

Yes.

With the addition of two new court members we may get some interesting rulings in the next several years.  For example, one of the first cases heard by the new Roberts Court, this term posed the question, "Can the government prohibit the use of hallucinogenic tea used in religious ceremonies?"  The Peyote case seems to be controlling, but maybe not.

Posted by Joseph R. McFaul on Tuesday, December 13, 2005 at 00:00 Comments Closed (0)

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