7 comments

1. So much for “separation of church and state”.

2. Is there a definition of what constitutes a religion in the US? What is to stop any group from claiming religious privilege when charged with practices inconsistent with US law?

   • The US Supreme Court has been very reluctant and rightly so to define a religion. There were certain assumptions made when the Bill of Rights was first adopted that are no longer universally held in the US. In recent decades the court has had cases regarding Native American religious ceremonies that involve smoking peyote (which contains mescaline, which is or used to be illegal to consume). If memory serves, the court ruled in favor of the Native Americans.

   • Professor Clark, I believe you are referring to Employment Division v. Smith. https://www.law.cornell.edu/supremecourt/text/494/872

     The court in that case held: “The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use. Pp. 876-890.”

     Richie: the courts prefer not to have a clear definition of religion or church, as a sort of safe harbor, but they do use multiple factors in their determination. For example, the IRS looks at these in determining what constitutes a “church:” https://www.irs.gov/charities-non-profits/churches-religious-organizations/churches-defined

     • Claudiu,

       Thank you!

   • Dr. Clark, your memory was correct. The issue of peyote legality is complicated by subsequent state and federal court cases. Members of the “Native American Church” and some other individuals and groups have sued and won their court cases on various grounds. But precisely what rights they have will depend on the state. In general, people who can demonstrate actual ethnic membership in a Native American group that historically used peyote buttons as a religious practice will have a much less difficult time than people whose claims are harder to justify based on the “sincere belief” tests laid out by the US Supreme Court.

     My personal view is that it should be legal for an employer to fire someone for drug use, even if their drug use is part of their religious practice, and for the state to deny them unemployment benefits as a result. To be consistent with that, however, I also need to say I believe it should be legal for a funeral home to fire a male funeral director who dresses as a woman, or (at least theoretically) for a Roman Catholic business owner to hire only fellow Roman Catholics and to bring a priest to the business to conduct daily Mass for those employees who wish to come to Mass.

     A century ago, those views would have been uncontroversial, though the Roman Catholic business owner might face a boycott by Protestant customers, which would be their right.

     Today, it seems obvious that conservative Christians are going to be forced to side with people who advocate using drugs as a religious sacrament if we’re going to preserve what is left of religious freedom. I would prefer a world in which businesses could hire and fire whoever they want for any reason they want, with government keeping out of such matters, and angry customers boycotting businesses that do bad things. However, the civil rights movement has clearly established in law, in court precedents, and in the public mind that businesses cannot discriminate based on religion.

     For those reading this who might look at my state and make wrong assumptions, I have an interracial marriage and some of my ancestors were abolitionists who volunteered for the Union Army. I support nearly all the goals of the civil rights movement in the 1950s and 1960s, but their legal and political victories had the unintended effect of allowing anti-religious discrimination in the name of promoting equality. Very few of the Black ministers who marched and were in some cases severely beaten for their protests and marches expected their hard-won rights to be used by people who hated religion to harass religious believers, but that’s the world in which we now live.

     Unintended consequences are real.

   • Darrell – while I agree with you concerning “at will” firing by employers, many employees are protected by unions. Worse yet, some employees such as those employed as “teachers” in public school systems around the country are protected by unions and have been since the early 70’s. And many of them are not only most unfit for their jobs and have been instrumental in leading our children in the wrong direction, especially after WW2. So how does that problem get fixed? Now way that I can think of this side of eternity. Therefore, home schooling and private schools (both of which are already under attack by Leftists) are the only option.

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