Protecting Religious Liberty, Part 2 [presentation]

This is my attempt at free exercise of religion in a visual nutshell.

It's from a presentation I delivered at a recent panel on Protecting Religious Liberty. The event was co-sponsored by several student organizations at Albany Law School--the Christian Legal Society, the Cardozo Legal Society, and the Muslim Law Student Association--and me.
[The entire event, including the remarks of my knowledgeable and insightful fellow panelists, as well as the Q's & A's with the audience, is available on videocast. (Link below.)]

The presentation was intended as a quick opening primer. A 20 minute overview of that fundamental freedom which is enshrined in the 1st Amendment of the U.S. Constitution, and in corresponding provisions of the constitutions of the states as well.

The presentation briefly traced the genesis of freedom of religion in American law. The evolution of that freedom in landmark Supreme Court decisions interpreting and applying the 1st Amendment. The startling about-face by the modern Court that has turned the constitutional guarantee on its head, and has left the protection of religious liberty diluted, uncertain, and erratic. And finally, the ongoing aftermath of a weakened constitutional protection.

An outline of the presentation would look like this:

• Thomas Jefferson and James Madison's struggle to protect religious freedom in Virginia
• Early Supreme Court decisions affording little protection to the Mormons and other religious minorities
• Subsequent Supreme Court landmarks recognizing religious liberty as a fundamental freedom, and protecting it from all restrictions except those necessary for the most compelling reasons
• Modern Supreme Court caselaw discarding those highly protective landmarks
• State high courts deciding whether to follow the Supreme Court's about-face or to adhere to more protective standards for religious liberty

Here is the power point accompaniment to that presentation:

(click to enlarge slide)

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To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

[The videocast of the entire event--again, including the remarks of my knowledgeable and insightful fellow panelists, as well as the Q's & A's with the audience--is accessible via this link. (https://vimeo.com/64143574. Password: Liberty2013 ) (The quality of the videocast is not very high.)]

(Part 5a--the Table) Court Elders: The Septuagenarian Justices

Table: The Last 10 Retirees

Warren E. Burger	On the Court 17 yrs	Retired 1986 at 79	Died at 87
Lewis F. Powell	15 ½ yrs	Retired 1987 at 79	Died at 90
William J. Brennan, Jr.	33 ¾ yrs	Retired 1990 at 84	Died at 91
Thurgood Marshall	24 yrs	Retired 1991 at 83	Died at 84
Byron R. White	31 yrs	Retired 1993 at 75	Died at 84
Harry A. Blackmun	24 yrs	Retired 1994 at 85	Died at 90
William H. Rehnquist	33 ¾ yrs	Died in office 2005 at 80	Died at 80
Sandra Day O'Connor	24 yrs	Retired 2006 at 75	Currently 82
David H. Souter	18 ¾ yrs	Retired 2009 at 69	Currently 73
John Paul Stevens	34 ½ yrs	Retired 2010 at 90	Currently 92

[As noted in the main post, much of this data is derived from the works of  University Of Virginia Professor Emeritus Henry J. Abraham, including his JUSTICES AND PRESIDENTS (AND SENATORS in later editions).]
Return to the main post HERE.

(Part 4--the Retirees) Court Elders: The Septuagenarian Justices

Thus far in this series, we've taken a look at the 4 septuagenarians on the Court and at the 5 younger Justices. We noted the marked contrast in their respective ages and lengths of service on the Court.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012; (Part 3--the "Yoots"), Dec. 4, 2012.]

We've been doing that primarily to assess the likelihood of vacancies arising in President Obama's 2nd term. With that in mind, let's now review some recent retirements from the Court.

Let's look at the last 10. That would be a quarter century worth of Justices leaving the Court and creating vacancies.

Let's focus specifically on the retirees' ages and how long they'd been on the Court when they departed. Here they are in chronological order:

Warren E. Burger

• Lived 1907-1995, died age 87
• On Court 1969-1986 (Nixon)
• Retired after 17 yrs
• Retired age 79

Lewis F. Powell

• Lived 1907-1998, died age 90
• On Court 1972-1987 (Nixon)
• Retired after 15 1/2 yrs
• Retired age 79

William J. Brennan

• Lived 1906-1997, died age 91
• On Court 1956-1990 (Eisenhower)
• Retired after 33 3/4 yrs
• Retired age 84

Catholics, Contraceptives, and 2nd Class Religious Liberty

[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.
---Chief Justice Warren Burger, Wisconsin v. Yoder, 1973

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law.
---Justice Antonin Scalia, Oregon v. Smith, 1990

We've been examining this issue for the last 2 posts. We discussed how the law of religious liberty has changed. How religious liberty has been demoted by the Supreme Court.

How free exercise of religion--i.e., the freedom to practice one's religion, to abide by one's religious convictions--was historically recognized as a fundamental right in this country. How it was strongly protected as such (along with free speech, free press, right to counsel in a criminal case, right to equal racial treatment, etc.) by the Court.

How government was not allowed to interfere with that right unless it had a very important reason for doing so, and had no other way to accomplish its purpose. In other words, unless the government really needed to and had no alternative.

That was basic constitutional law. Basic Supreme Court jurisprudence to protect rights considered essential to a free people. Rights that had always included religious liberty.

Along with other fundamental rights, free exercise of religion was considered "implicit in the concept of ordered liberty"--to use Justice Benjamin Cardozo's immortal phrase from his 1937 opinion for the Court in Palko v. Connecticut. Yes, one of those truly indispensable rights about which it could be said--in Cardozo's words again--"neither liberty nor justice would exist if they were sacrificed."

Yes, that is the right included in the very first clause of the very first amendment of the national charter. That's a pretty good indication of where religious freedom fits in the constitutional hierarchy. And the Supreme Court treated religious liberty accordingly--at least for a while.

(For the previous discussions, see Catholics, Contraceptives, and the (current Supreme Court's) Constitution, March 2, 2012; Catholics, Contraceptives, and the Constitution, Feb. 26, 2012.)

But then an increasingly conservative, law and order Court decided that minority religions didn't need to be accommodated. That minority religions had to tolerate government's beliefs and practices--not vice versa. That minority religions could not interfere with decisions of the majority or with other government authority--not vice versa.

That minority religions had to make exceptions to their beliefs and practices in order to obey government; government no longer had to make exceptions to its laws or rules in order to obey the Constitution's guarantee of religious freedom. Henceforth, laws and other government rules trumped the constitutional right--not vice versa.

Yes, topsy-turvy. Easier. Clearer. Tidier. More convenient. But constitutionally upside down.

Let's finish this series of posts with a look at some of the religious liberty landmarks of the Supreme Court. Specifically, let's take a look at what the Court said about free exercise of religion and about the necessary restrictions that free exercise placed on government--and NOT vice versa.