Free Exercise and Establishment Clause Tensions

OA1256 - Will there ever be a draft again? Who knows. But if there is, what does one have to do to claim "conscientious objector” status? During the Vietnam War, the Supreme Court grappled with how to apply that explicitly religious statutory exemption to people whose modern beliefs don’t seem to fit the religious mold that Congress defined in the 40s. Jenessa walks us through the court’s mental gymnastics to avoid ever admitting that anyone could be an atheist, and the concurrence that calls it out.

Note: The analysis of the Free Exercise Clause in this episode is specific to the time period of these cases. It got more complicated in the 90s (see sources below).

• United States v. Seeger, 380 U.S. 163 (1965).

• Welsh v. United States, 398 U.S. 333 (1970).

• Military Selective Service Act 50 U.S.C.App. § 456(j)

• Roger M. Sanborn, The Anti-War Movement and the Seeger Decision, 6 Santa Clara Lawyer 230 (1965).

• Kali Martin, (October 16, 2020), Alternative Service: Conscientious Objectors and Civilian Public Service in World War II, The National WWII Museum.

• Albert Q. Maisel, (May 6, 1946), Bedlam: Most US Mental Hospitals are a Shame and a Disgrace, Life Magazine at 102-118.

  • Reproduction (without the old-timey ads or graphic photos)

  • Original LIFE publication (CW: Graphic photos of abuse of patients in mental health hospitals)

• Quaker FAQ. Friends United Meeting.

• Karlo Broussard, What is a ‘Just War’?, Catholic Answers.

• Engel v. Vitale, 370 U.S. 421 (1962)

• 1963: Even facially-neutral generally-applicable laws have to pass strict scrutiny if they burden the free exercise of religion

  • Sherbert v. Verner, 374 U.S. 398 (1963)

• 1990: Never mind it’s rational basis

  • Employment Division v. Smith, 494 U.S. 872 (1990)

• 1993: Just kidding it’s strict scrutiny again

  • Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb

• 1997: Just kidding that only applies to the federal government

  • City of Boerne v. Flores, 521 U.S. 507 (1997)

• 2000: Nope it’s strict scrutiny for state and local government again (well… if it relates to land use or prisons)

  • Religious Land Use and Institutionalized Persons Act (RLUIPA) 42 U.S.C. § 2000cc

• For a summary: Cassandra M. Vogel, An Unveiling: Exploring the Constitutionality of a Ban on Face Coverings in Public Schools, 78 Brook L. Rev. (2013).

Check out the OA Linktree for all the places to go and things to do!