first amendment – UAB Institute for Human Rights Blog

A Brief Judicial History of Religious Freedom

The first line of the first amendment in the Constitution of the United States, also known as the Establishment clause, asserts that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This clause, although seemingly simple in nature, has been the root of many judicial battles throughout the United States’ history. Religion, as a human right, has always been a topic of political debate.

One might inquire as to why this is the case: what makes the freedom of religion such a sensitive topic? In this blog, I seek to answer this question by outlining fundamental cases which have shaped how our legislators interpret our right to religion. Moreover, this blog shall conclude with how our fundamental right to religion is being interpreted today, as well as what is potentially in store for religious interpretation in the future.

Lemon v. Kurtzman (1971) | Introduction of the Lemon Test

US constitution — (source: yahoo images)

Our journey begins in 1971, with the landmark Supreme Court Case of Lemon v. Kurtzman which involved the states of Pennsylvania and Rhode Island. The issue materialized when both of the aforementioned states decided to introduce legislation that would use taxpayer money to fund church-affiliated schools. In doing so, the government funds would pay for teacher salaries, textbook costs, and many other educational materials. Funding church-affiliated schools could be construed as a violation of the Establishment Clause. The Supreme Court followed this logic, and with an 8-1 ruling, they decided to strike down the legislation passed by Rhode Island and Pennsylvania, no longer allowing state funds to go to church-affiliated schools.

What is particularly remarkable about this case is that it formally introduced the so-called Lemon Test, a judicial test constructed to see if legislation defies the Establishment Clause. The Lemon Test has three ways to test and see if a piece of legislation defies the clause:

The piece of legislation must have a secular purpose;
The piece of legislation must not advance or prohibit the practice of religion;
The piece of legislation must not force the government into “excessive entanglement” with religious affairs.

If a piece of legislation passes the Lemon Test, then it does not defy the Establishment Clause and can proceed to further scrutiny. That is, the legislation will be evaluated to see if aligns with the other amendments. With these three prongs noted, one can see how easily Lemon v. Kurtzman would have failed the Lemon Test.

Wallace v. Jaffree (1985) | Application of the Lemon Test

Wallace v. Jaffree, a case that took place in the state of Alabama, is another landmark Supreme Court case involving a dispute in legislation around religion. In 1981, Alabama decided to introduce legislation that mandated a 1-minute moment of silence at the start of class in all public schools. Although, ostensibly, the legislators claimed that this moment of silence could be used either for reflection or prayers, the legislation’s intent was to create an opportunity for students to pray before school started.

This decision naturally upset many non-religious parents, and multiple lawsuits soon followed, climbing their way up all the way to the Supreme Court. Throughout this process, the Alabama legislators argued that this bill does not defy the Establishment Clause, as the moment of silence can be used in any way that pleases the student— not necessarily just for prayer. However, the fault in this is that the introduction of the bill was done to allow students to pray, not to give them a moment of silence; thus, this bill failed the Lemon Test’s first prong as it did not have a secular purpose. In a vote of 6-3, the Supreme Court held that the bill defies the Establishment Clause.

Oregon v. Smith (1990) | Introduction of RFRA

street signs saying church and state — (source: yahoo images)

This case, unlike the aforementioned ones, has a bit more nuance to it and led to a wide range of implications. This case is the primary reason Congress enacted the Religious Freedom Restoration Act in 1993, which is one of the most bipartisan pieces of legislation, having passed the House unanimously and the Senate 97-3.

In Oregon v. Smith, two people, who both worked at a drug rehabilitation center, were fired due to having consumed peyote, a hallucinogenic drug. The issue at hand, however, is that their consumption of peyote was done during a sacred religious practice. This case did not make it to the Supreme Court because the drug rehabilitation center fired them (as the center very much can fire whoever they please — they are a private entity); it made it to the Supreme Court because after they were fired, these two individuals sought unemployment benefits and were denied due to being fired for consuming drugs, which is considered “workplace misconduct.”

However, unlike the previous cases, the Supreme Court did not rule in favor of the appellants. The Court, by a 6-3 vote, ruled that since the denial of unemployment benefits due to workplace misconduct is a rule of general application (meaning it does not specifically target any people or religious practice), it is constitutional.

However, as one might conclude, many did not like this outcome. Therefore, as aforementioned, Congress enacted the Religious Freedom Restoration Act (RFRA) to clarify some of the issues raised by Oregon v. Smith. The first clause of RFRA states its purpose, saying that it aims to prohibit “any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.”

This first clause seeks to prohibit exactly what was the outcome in Oregon v. Smith, but it also comes with some limitations. That is, Congress is free to burden one’s exercise of religion if (1) doing so will further a compelling government interest; and, (2) doing so is the least restrictive means of furthering that compelling government interest. The introduction of this incredibly bipartisan bill, as we will shortly explore, has some interesting implications.

Burwell v. Hobby Lobby (2014) | Application of RFRA

In the case of Burwell v. Hobby Lobby, we see the RFRA being put to use which leads to an interesting implication from the outcome of this case. Burwell v. Hobby Lobby sprouted from one of the requirements of the Affordable Care Act (ACA), namely, that all nonexempt employers are legally required to offer their employees health coverage and benefits, including contraceptives, some of which stop an egg from fertilizing. Before progressing with the case, we ought to make note that some employers, primarily religious institutions such as churches, are exempt from the ACA.

Hobby Lobby, a crafts company, is a tightly-owned company, meaning that there are only a few number of people who own the company. All of these owners, moreover, do not want to comply with the ACA since they believe life begins at conception and to thereby provide their employees with free contraceptives would go against their religious beliefs. However, if a company does not comply with the ACA, it would have to pay a fee per employee. For Hobby Lobby, the total cost would amount to about $475 million per year.

Hobby Lobby was conflicted about whether they should go against their religious beliefs and supply their employees with contraceptives or instead pay $475 million a year and adhere to their religious stance. Due to this ethical dilemma, Hobby Lobby decided to sue the Department of Human Health Services (those who implemented the ADA), and the case made its way up to the Supreme Court. Hobby Lobby cited RFRA, stating that the ACA mandate does not comply with RFRA’s second clause. They argued that forcing Hobby Lobby to offer its employees contraceptives is not the least restrictive means of furthering a compelling government decision. Rather, Hobby Lobby stated that they, like religious institutions, should be exempt from the ACA, as that is the least restrictive means of furthering a compelling government interest (health care for employees). The employees of companies who are exempt from the ACA have their health care paid for by taxes.

The Supreme Court agreed with Hobby Lobby. By a vote of 5-4, the Supreme Court ruled that Hobby Lobby is correct—the least restrictive means indeed is making Hobby Lobby an exempt company, thereby allowing governmental taxes to pay for the health care of their employees.

What is remarkable about this case is its implication that the Supreme Court stated that the best course of action to resolve a religious dispute over health care is to simply allow the government to fund health care. One might argue, then, that the Supreme Court is hinting toward universal health care, as they view that as the least restrictive means.

Kennedy v. Bremerton School District (2022) | Abandonment of the Lemon Test

The last case we shall discuss is one that has been all over the media recently: Kennedy v. Bremerton School District. In this case, a high school football coach decided to kneel and pray before and after games. The school district feared that his actions would violate the Establishment Clause, so they asked him to stop. When he did not, they fired him.

Claiming his first amendment right to the freedom of religion was violated, he sued the school. The lawsuit eventually made its way up to the Supreme Court, and, by a 6-3 vote, the Court ruled in the coach’s favor, stating that he was not complicit in praying since he did it during post-game periods when people were free to do as they pleased.

However, something remarkable also happened in this case: the Supreme Court decided to stop using the Lemon Test, which has been in practice since 1971. Instead of the Lemon Test, the Court stated that they will decide disputes over the Establishment Clause by “accor[ding] with [what] histor[ically] and faithfully reflec[ts] the understanding of the Founding Fathers.”

What this means, we do not yet know, as this is yet another new change by the Supreme Court. Throughout history, the Lemon Test has proved itself to be a great way of settling legislative disputes, so one could only wonder why the Supreme Court decided against it.

Summary

US Capitol Building — (source: yahoo images)

As I showed with this blog post, cases revolving around religious freedom are by no means simple, but the courts, thankfully, have historically always ruled in favor of the Establishment Clause, never seeking to subdue religious freedom.

However, after the abandonment of the Lemon Test in Kennedy v. Bremerton School District, it is clear that the Supreme Court is planning on interpreting the Establishment Clause differently than they have had since 1971. What this means for upcoming cases, we have yet to find out. However, what we do know is that religious freedom, despite how tricky it might be at times, should remain a human right.

Cancel Culture: A Societal Obligation or Infringement on Free Speech?

A large majority of people spend their time online talking to friends, sharing and obtaining news, or connecting with family. Our lives being connected to the internet has forced us to learn how to network and find our way around social media platforms. Social media platforms, such as Twitter, Facebook, Instagram, and TikTok, facilitated the creation of “cancel culture” as we know it today. Cancel culture is used to call out behaviors and actions of individuals and corporations that convey opinions or feelings which are objectively questionable or not appropriate from a public perspective. Engaging in cancel culture typically requires a series of hashtags that proclaim an individual is being cancelled. A hashtag followed by the word cancelled or a hashtag with a person’s name followed by the phrase “isover” are the most commonly used hashtags within the tradition of cancelling. This brings us to an interesting dilemma of whether or not cancel culture is an infringement on freedom of speech.

Infringement on Freedom of Speech

Cancel culture has proven to be an effective method to identify the actions taken by individuals and corporations to rectify mistakes. Recently, in light of social justice movements such as the Black Lives Matter Movement and #MeToo; during an election year, cancel culture has been used to take down racist statues, rename buildings named after white supremacists, call out celebrities and prominent figures in society, and address “racist, sexist, or homophobic views or ideologies.”

Cancel Culture from Two Perspectives

The first perspective is often from the people who are advocating against cancel culture. These people often have large platforms, and they are upset that their freedom of speech is being infringed upon due to the policing of cancel culture and they’re afraid of being criticized for their opinions. The first perspective against cancel culture revolves around the inability to take criticism.

The second perspective involves those that do not engage in exercising their right to free speech and expression. People are afraid of the repercussions of cancel culture so they choose to not express themselves. This second perspective of cancelling is more concerning because it involves actively suppressing the beliefs, ideologies, and perspectives of people and a true cancelling of these voices.

There is a delicate balance in defending the right to freedom of speech and holding individuals and corporations responsible for their actions. The issue with cancel culture is that there is no gradation and all missteps have the same severity of punishment. People can be fired, and student admission can be halted as a result of this. In most cases, it’s a trend to be cancelled where people jump on a bandwagon without the slightest amount of information on what they are cancelling.

On the other hand, “defending speech has become a tool to bully others into silence.” Often, proponents of free speech will quote the right to speech and expression granted by the Constitution to prevent others from criticizing them. While it can be a useful tactic in the short term to support an argument, it leaves no room for compromise. This tactic makes it impossible to find the equilibrium in a conversation, which I argue can be almost as bad as cancel culture.

A protestor holds us up a fundamental part of what defines the freedom of speech. Source: theduran.com — A protestor holds up a fundamental part of what defines the freedom of speech. Source: theduran.com

A Different Option: Call Out Culture

More often than not, free speech is not being infringed upon. It is often a case of what boundaries are being set to speak in a public setting and if those boundaries are acceptable. While it is our responsibility to be open and receptive of opposing views, these views are not always in concordance to what a majority of people might believe. This gives leeway for a new type of action where the public can participate in call out culture instead of cancel culture. But before calling out, it is still important to give the opponent a chance to respond and hear their responses to avoid regressing and participating in what can be a very toxic culture. Responses do not need to include canceling, suppressing, or removing, but can include educating, accepting, and forgiving. This gives room where we can set boundaries safely and simply say, “I do not agree with you,” but even with this it is very situational where some actions are above disagreeing and need to be addressed properly.

For example, in 2016 a Pepsi advertisement featuring model and influence Kendall Jenner was incredibly tone deaf, and downplayed the severity of protests and the Black Lives Matter movement. The outcry against the ad prompted a response from Pepsi and Jenner apologizing for the missing the mark on trying to project “unity, peace, and understanding,” and for putting Jenner is this position. The public seemed to not hold Pepsi to the same standards that Jenner was held, and to this day still is, and essentially made her accountable for the apology, when every one that participated in the situation and production should have also been held responsible. On the other hand, Larry Nassar, who was national team doctor for USA gymnastics, was charged for hundred of cases of sexual assault under the pretext medical treatment for the athletes. Him, his actions, and his behavior harmed hundreds of lives and families, and so the public outcry against the individual, his actions, and the system that supported him was warranted and justified in a situation. Did he deserve to get cancelled? I think most people would argue yes, in a situation that is very black and white both morally and legally. Then the question becomes one of gradation. Did Jenner, a decent person often on the right path, deserve to get cancelled and held to the same standards of accountability, just as Nassar, and risk facing a stagnant and declining career for a misstep? For this, I think most people would argue no, because, yes while the ad was harmful to several communities, it was no where near the severity of Nassar’s actions. Yes, her participation needed to be addressed, but did it warrant “cancelling” a targeted individual because of their background instead of education them?

How to avoid cancel culture?

Do your own research on the situation or individual – the one being called out or cancelled as well as the individual doing the calling out or cancelling.
Evaluate the gradation and the consequence of the action in question, and ask yourself if cancel culture actually works.
Try to address how toxic it can be for your mental health and identify if there is another way to help.
If you do decide to engage, make sure to call out and educate instead of cancel.

The Fight against Hate

In the aftermath of Charlottesville, there has been national attention on hate and the fight against it. One must wonder where the line—if there is one—between free speech and hate speech; it does exist but it is a very fine line. The First Amendment protects citizens against government infringement upon speech but it does not explicitly protect against retaliation from private companies and universities. Since the protection of hate speech does not exist wholly under the First Amendment, employers fired several of the Neo-Nazis present at the Charlottesville rally.

I interned for SPLC on Campus this summer. It is the Southern Poverty Law Center’s campus outreach program. It aims to promote LGBTQ+ rights and racial, economic, and immigrant justice on college campuses and within local communities. It also advocates against hate crimes and bigotry. Charlottesville happened during my last week at the center. The live streams flooded social media and the positive collective response blew me away. Although the amount of hate disheartened me, I had hope because people were just as shocked as I was, and everyone I knew was condemning the hate while sending love and support to victims. There were solidarity rallies and protests promoting unity. There was also an increase in SPLC on Campus club registration.

SPLC on Campus began two years ago. Lecia Brooks, director of Outreach at the Southern Poverty Law Center as well as the Civil Rights Memorial Center, launched the program into full throttle. There are around forty-five active clubs in the States now with the staff for the program standing at only three people. These three people, including Lecia Brooks, Daniel Davis (the SPLC on Campus Coordinator), and Shay DeGolier (Outreach and Organizing Specialist) have been the foundation for these clubs. They fight hate relentlessly and push for more college students to do the same. College students have historically been a source of advocacy and activism; we still are. Here at UAB, the fight for equity, inclusion, and unity continue with student organizations like SPLC on Campus club, and Gender and Sexuality Alliance among others.

The Southern Poverty Law Center (SPLC), founded in 1971, tracks hate groups across the United States. As of today, there are 917 active groups. It is important to note that these groups are not just comprised of those on the far Right. What defines a hate group? The SPLC defines one as a group “[having] beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics.” (Hate Map, n.d.). Therefore, any organization that speaks out negatively about another about things they cannot or should not have to change–the color of their skin, their gender or sexuality, their religion, etc.

I have always heard the expressions, “If you can’t say something nice, don’t say anything at all” and “If they can’t fix/change it in a minute, don’t tell them.” The embedding of the first saying—along with the Golden Rule—took place in both the private and public spheres for me. Teachers, parents, and random posters with cats reminded me to treat others as I wanted to be treated. Everyone has heard at least some version of these clichés. Yet, when did we stop living by the childhood mantras we learned in kindergarten? So many people try to change things about others, and many do not do this kindly. If your friend notices something wrong with you, they might lean over and whisper, “Hey, you have some spinach in your teeth” but they would never say to you, “Hey, your skin is too dark.” It is interesting that hateful rhetoric is no longer taboo; it is mainstream.

A recent study reveals the very fine line between free speech and hate speech when employing the First Amendment. Supporters are quick to jump to the defense of someone saying something racist, often using free speech as a justification. However, with the removal of the targeted group identifier occurs, people rarely use the same defense. How far does the defense for free speech go? On a recent NPR Hidden Brain podcast, researcher Chris Crandall discusses a study he performed on this same question post-election, which revealed that people thought it was much more acceptable to speak out against groups that Trump had targeted in his speeches. The research proved some believe that if someone in a position of authority can use such speech with little to no retaliation, then it must be okay. Prior to the election, many withheld their bias for fear of punishment, look no further than the vilification of Mel Gibson or Michael Richards. Following the election, these barriers seemingly no longer exist, allowing a flood of prejudices to permeate our culture.

Remaining nonviolent in the face of such hatred is essential in overcoming it. Fighting fire with fire cannot solve this problem. In fact, there is evidence by counter protests that have ignited with violence. The entire fight for social justice is a figurative fight, fueled by protests, solidarity, unity, and participation. We cannot counter hate speech with more of the same rhetoric. You may wonder: What can I do to fight hate speech? My suggestions is get involved in groups that advocate against it. Reach out and get involved with human rights/social justice groups like SPLC on Campus, HRC, IHR, Amnesty International, and others. Hold protests and react nonviolently to such charged commentary. The most important thing to do is act. As I learned at SPLC, apathy is not an option.

The UAB Office of Diversity, Equity, and Inclusion will host a panel “From Protest to Academic Freedom: Free Speech, Hate Speech, and the First Amendment on College Campuses” tonight, Wednesday, September 20 at 6pm, Heritage Hall, room 102.

Here’s a more in-depth look at some steps you can take to prevent and fight against hate: https://www.splcenter.org/20170814/ten-ways-fight-hate-community-response-guide.

Caitlin Beard is a first-year graduate student from Hartselle, Alabama. She is pursuing a Masters of Arts in the Anthropology of Peace and Human Rights. Deaf culture courses and interaction with the Deaf World for her ASL minor ignited an interest in the field of human rights—specifically how it pertains to the Deaf and other oppressed groups.