Religious Freedom 101: War and consequences, as U.S. embraces its ideals of protecting beliefs

Written by William C. Duncan

May 8, 2020

This is the third installment in a series about the history of religious freedom in the United States. Click the following links to read part 1 and part 2.

Key Points

  • During World War II, the U.S. Supreme Court reversed previous precedence to ensure that Jehovah’s Witnesses would not be persecuted by the government because of their beliefs.
  • In 1962, the court established a formal test for ensuring that the government did not burden religious practices unless absolutely necessary.
  • The high-water mark for legal protection of religious liberty came a decade later when the unfamiliar religious practices of the Amish were allowed to prevail over Wisconsin’s education laws.
  • The next installment will bring the history of religious freedom up to date, starting with a surprising decision in the early 1990s.

On the eve of the United States’ involvement in World War II, the Supreme Court supported the expulsion of Jehovah’s Witness students in Pennsylvania for failing to salute the flag. The decision seemed to solidify a dark trait of American history – official intolerance of minority religious beliefs.

But things were about to change quickly, and for the better.

During a massive conflict with the Nazi government in Germany (which practiced state-enforced oppression and prejudice), the United States began to embrace its own religious traditions of openness, tolerance and freedom.

In a West Virginia town in the early 1940s, elementary school students Marie (age 8) and Gathie Barnett (age 10) attended school like other children. West Virginia had recently enacted a law making participation in the Pledge of Allegiance and saluting the flag mandatory for all students. This created a challenge for these girls, who were members of the Jehovah’s Witness faith and had been taught that saluting the flag was a form of idolatry. So, they declined and were expelled from school. Under the law, they could not be readmitted until they complied.

Their father brought suit on their behalf and the federal district court ruled in his favor – the flag salute law was unconstitutional. The U.S. Supreme Court heard the appeal and issued its decision in 1943. The majority opinion treated the religious beliefs of the family with respect, explaining their rationale for declining to salute the flag and noting in a footnote to the history of such dissent: “Early Christians were frequently persecuted for their refusal to participate in ceremonies before the statue of the emperor or other symbol of imperial authority.”

The opinion also adopted the imagery of religious freedom as an aspiration:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

So, the West Virginia law was found unconstitutional and the girls were finally able to return to school, although they did have to repeat a grade because they had missed so much during the litigation.

Two decades later, the court adopted a test for applying the free exercise clause that may have brought the government’s actual practice of religious liberty as close to the aspiration as it had ever been.

The case was brought by Adeil Sherbert, a textile mill worker in South Carolina. The mill instituted a new six-day workweek and required her to work on Saturdays. A recent convert to the Seventh-Day Adventist faith, Sherbert declined and was fired. She was also denied unemployment insurance by the state because her firing had been for cause.

The South Carolina Supreme Court affirmed that decision, and Sherbert appealed to the U.S. Supreme Court.

In Sherbert v. Verner, the court said the free exercise clause required the government to demonstrate a compelling government interest before it could burden a religious practice. Even where the government had such a strong interest, it had to make sure that its actions were “narrowly tailored” to advance that interest. In other words, if a law or government practice put a burden on religious exercise, the government would first have to show that the burden was justified by an overwhelming interest (like protection of public safety) and that the burden had been imposed in such a way that it interfered only as much as absolutely necessary to advance that interest without creating any residual impact on religious freedom.

Put more simply, the court had now endorsed a practical approach to making effective the aspiration of religious freedom officially stated in the First Amendment.

Under this rule, when a government action created a burden on a religious practice, the courts would ask a series of questions:

  1. Does the action or rule create a burden on religious exercise? If no, there is no violation of the First Amendment. If yes, then the court goes to the next question.
  2. Does the state have a compelling purpose for its action? If it does not, then the action violates the First Amendment. If it does, then the court goes to the next question.
  3. Is the challenged action and the government’s interest closely enough related that we could say that it does no more harm to religious liberty than is absolutely necessary? If no, the First Amendment is violated. If yes, it is not.

The protective power of this rule was exemplified in a 1972 case that has been described as the “high water mark of religious liberty.” It involved a Wisconsin law that required children to attend public school until they were 16 years old. Amish parents in Green County, Wisconsin, withdrew their children from school after eighth grade because their religion required separation from the world and was totally pervasive in the lives of members, directing the education they would receive and their vocations in life.

The Amish had determined that education past the eight grade, when only vocational training was consistent with their faith, was a violation of their beliefs, so three Amish fathers refused to send their children to school and were fined $5 under the Wisconsin law. For religious reasons, the Amish parents would not defend themselves, so their legal fees were paid by others. They were represented by William B. Ball, an extremely effective Catholic lawyer from Pennsylvania.

The U.S. Supreme Court held Wisconsin could not prosecute the Amish parents for declining to send their children to school after eighth grade. The court recognized that the state’s promotion of education was among its most important functions but still needed to yield to the religious freedom of the Amish.

Perhaps the soul-searching brought on by the shock of a massive war with a truly intolerant nation helped the United States begin to officially disavow the intolerance of minority religious groups that had characterized much of its history. In the wake of World War II, the United States Supreme Court began to treat religious freedom with the kind of respect, and tangible protection, that had always been the implicit promise of the First Amendment.

Unfortunately, religious freedom’s journey does not end on that triumphal note. In the past four decades, a lot has happened that has called into question the viability of the nation’s religious freedom aspiration.

Our next installment will discuss how the fixed star of religious freedom may be dimming in the face of three converging trends: law, culture and politics.

Click here to read the final installment.

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