RELIGIOUS FREEDOM: POTENTIAL PRECEDENTS
FOR THE TRANSFUSION CASES
Although there are unique traits to the blood transfusion cases of the Jehovah’s Witnesses, the issues involved are similar to other problems of religious liberty. Compulsory medical treatment of Jehovah’s Witnesses is primarily a problem of the free exercise of religion and only occasionally involves the establishment clause. In one case where justification for compulsory blood transfusion was sought, the appellees argued "that society has an overriding interest in protecting the lives of its citizens."1 Examples were cited, namely, compulsory vaccination, polygamous marriage proscription, and cases sustaining the prohibiting of the handling of snakes during religious rituals. A brief survey of the extent of and limitations on religious freedom in the United States is in order as a preliminary to the application of the same concepts to compulsory medical treatment of the Jehovah’s Witnesses. Emphasis will be given to the conflict between the health and welfare of society and religious beliefs.
The First Amendment of the Constitution of the United
1 In re Brooks Estate, 205 N.E.2d 435, 439 (IL 1965).
States guarantees freedom of religion by stating, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."2 This freedom is not without limitation, however. When this freedom comes in conflict with other rights, whether that of an individual or of society as a whole, a decision must be made as to which freedom is allowed and which is limited. Weighing these competing claims and interests has been a difficult task for the courts.
Reynolds, Polygamy, and the Free Exercise Clause
For a century the states were not placed under the restraint of the First Amendment, so the Supreme Court of the United States made no rulings on freedom of religion. The first case addressing this issue was Reynolds v. United States in 1878.3 This case decided on the constitutionality of laws prohibiting polygamy, which was practiced by some Mormons. Quoting with approval the words of Thomas Jefferson "that the legislative powers of the government reach actions only, and not opinions," the decision concluded that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in
2U.S. Const. amend I. For a general survey of interpretation of the free exercise clause see Ronald B. Flowers, "The Supreme Court's Interpretation of the Free Exercise Clause," Religion In Life 49 (Autumn 1980): 322-35.
3Reynolds v. United States, 98 U.S. 145 (1878).
violation of social duties or subversive of good order."4
Illustrating how government can control some actions but not beliefs, the ruling gave examples of when government interference might be justified:
Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? 5
On this basis the prohibition of polygamy was upheld as dangerous to the welfare of society. Even though polygamy was regarded as a religious duty, it could be prohibited by civil government:
Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. 6
A few years later the Reynolds decision was extended to allow punishment not only for practicing polygamy but for advocating that belief7. Due to these rulings and other opposition the Mormons renounced polygamy. Since then anyone who has attempted to practice polygamy has not fared well in court. 8 There has been recent criticism of the traditional
7Davis v. Beason, 133 U.S. 333 (1889).
8Robert T. Miller, and Ronald B. Flowers, Toward Benevolent Neutrality: Church, State, and the Supreme Court, 3d ed. (Waco, Texas: Baylor University Press, 1987), 49.
argument that the state has a compelling interest toward monogamy and some indications of change in this regard.9 These are probably more reflective of a shift in the moral sentiment of society than of a fundamental change in constitutional law.
Many important constitutional issues are raised by the Reynolds decision which are still important factors in the application of the free exercise of religion clause today. First, there is the classification of an act as religious or non-religious. In the Reynolds case there was an acceptance of the fact that polygamy was a religious belief. The courts have been hesitant of getting into the quagmire of defining what religion is.10 There is the danger, however, of a person defining a socially unacceptable
9Carol Weisbrod and Pamela Sheingorn, "Reynolds v. United States: Nineteenth-Century Forms of Marriage and the Status of Women," Connecticut Law Review 10 (Summer 1978): 828-58; Penelope W. Saltzmann, "Potter v. Murray City: Another Interpretation of Polygamy and the First Amendment," Utah Law Review 1986 (Winter 1986): 345-71; Jeremy M. Miller, "A Critique of the Reynolds Decision," Western State University Law Review 11 (Fall 1983): 165-98. Miller argues that the Reynolds decision was persecution of religion contrary to constitutional provisions. For a history of the polygamy problem in the late l800s see Orma Linford, "The Mormons and the Law: The Polygamy Cases," Utah Law Review 9 (Winter 1964): 308-70, (Summer 1965): 543-91. Linford contends that Reynolds did not adequately protect or consider the minority rights of the Mormons and that polygamy might have died out on its own without legislation (588-90).
10Alan H. Nichols, "Freedom of Religion and the Water Supply," Southern California Law Review 32 (1958-1959): 164-65; Henry J. Abraham, Freedom and the Court, 4th ed. (New York: Oxford University Press, 1982), 225-26.
practice as religion in order to gain constitutional protection for that practice, so some definition has become necessary over the last century. If a belief or practice is very unusual, even criminal, it may still be categorized as religious by the courts.11
A second classification arising out of the Reynolds decision is the dichotomy between belief and action derived from the thought of Thomas Jefferson. Allowing the government to limit religious actions means that fewer questions of "what is religion" will arise. The courts will naturally give emphasis to when and where the government can limit or prohibit religious action. Religious belief receives absolute protection, but religious actions may be limited.12 A difficulty with this approach is that most religious people put their belief into action. There is a tendency in recent years to minimize this distinction and concentrate on the more significant issue of weighing interests.13 The sharp dichotomy which separated belief and
11Ray Jay Davis, "Plural Marriage and Religious Freedom: The Impact of Reynolds v. United States," Arizona Law Review 15 (1973): 293-96. Peyote use is an example.
12Ibid., 296-98; "Snakehandling and Freedom of Religion," Washington University Law Quarterly 1976 (Spring 1976): 356n. "Thus the Amendment embraces two concepts, --freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society" (Cantwell v. Connecticut, 310 U.S. 296, 303-4 ).
13Davis, "Plural Marriage," 297.
action into clearly distinguishable categories is gone, but the distinction is still widely used.
A third classification of interests arising from Reynolds is the weighing of conflicting interests and claims. If a religious freedom is not absolute then some method must be used to decide when society can curtail that freedom. For example, according to Cantwell "the power to regulate must be so exercised as riot, in attaining a permissible end, unduly to infringe the protected freedom."14 The court is concerned over whether or not any burden is imposed upon the individual, even incidental burdens.15 If a burden is direct, a decision must be made as to which interest prevails. If a burden is indirect, the solution may lie in the secular goal of the state rather than in the delicate balancing of significance or weights of competing interests. 16
The court is not concerned with the truth of the individual's religious conviction but only with the strength of that conviction. A person must be a genuine devotee to his professed belief:
14Cantwell v. Connecticut, 310 u.s. 296, 304 (1940).
15Sherbert v. Verner, 374 U.S. 398, 403 (1963).
16"A Braunfeld v. Brown Test for Indirect Burdens on the Free Exercise of Religion," Minnesota Law Rreview 48 (1964): 1165-79 contends that the Braunfeld approach would be a more definitive test than the unqualified balancing approach. Alternate means would still have to be considered, but more consistency would result.
Whether that is true or not is not the concern of this Court. .
The issue is: Did these defendants honestly and in good faith believe those things? .
Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. . . . The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain.17
Not only is the sincerity of an individuals’s belief important, but the role of that belief in the theology of the religious group to which the individual belongs is important. The use of drugs by a group of Navajo Indians was justified, since that usage was deemed central to their religious belief. By contrast, the role of polygamy in Mormonism was judged to be non-essential.18 If a tenet of one’s faith is on the periphery and not essential to salvation, the court may allow greater restriction of action based on that belief. It is difficult in many cases, though, to judge fairly what is central for each individual. This complication means that the centrality test is applied with caution. These are methods, though, by which the courts have attempted to weigh the interests of the individual.
In juxtaposition to the interests of the individual the interests of society must be weighed. In Reynolds the
17States v. Ballard, 322 U.S. 78, 86-87 (1944).
18People v. Woody, 40 Cal. Rept. 69 (CA 1964).
test amounted to which actions "were in violation of social duties or subversive of good order."19 This was further refined as the "clear and present danger" test in Cantwell v. Connecticut.20 In order to restrict a religious freedom there must be a "state interest of sufficient magnitude."2’ The danger must be a "substantial threat to public safety, peace or order" and "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation."22
The test has become a question of whether or not the Interest of the state is a "compelling state interest."23 A
19Reynolds v. United States, 98 U.S. 145, 164 (1878). 20Cantwell v. Connecticut, 310 U.S. 296, 308, 311 (1940) says, "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. . . . in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication . . . raised no such clear and present menace to public peace and order." The "clear and present danger" test was applied to free speech and press in Schenck v. United States, 249 U.S. 47, 52 (1919) and then extended to freedom of religion in Cantwell. Also see Wallace Mendelson, "Clear and Present Danger--From Schenck to Dennis," Columbia Law Review 52 (March 1952): 313-333; and Chester James Antieau, "The Role of Clear and Present Danger--Its Origin And Application," University of Detroit Law Journal 13 (May 1950): 198-213.
21Wisconsin v. Yoder, 406 U.S. 205, 214 (1972)
22Sherbert v. Verner, 374 U.S. 398, 406 (1963). The court is citing Thomas v. Collins, 323 U.S. 516, 530 (1945).
23Ibid Also see Chester J. Antieau, "The Limitations Of Religious Liberty," Fordham Law Review 18 (November 1949): 221-41.
burden is placed upon the government to prove that the practice in question is truly harmful to society.24 Soon another aspect of the compelling state interest argument was added. If there was a less drastic means or an alternate means of achieving the interests of the state, then that approach might be required in order to maintain the freedom of the individual 25 Regulations that protect public health, safety, or order have rarely been invalidated on the basis of a balance between individual and societal rights. Although the idea of balancing interests was reaffirmed in the Wisconsin v. Yoder decision, the court was quick to make a distinction between the Wisconsin compulsory education law and a law regulating public safety:
It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare. . This case, of course, is not one in which any harm to the physical or mental health of the child or to the
24Davis, "Plural Marriage," 303-5.
25This was first alluded to in a case involving a Seventh Day Adventist where the court declared "it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights" (Sherbert v. Verner, 374 U.S. 398, 407 ). This was reaffirmed and strengthened in Wisconsin v. Yoder, 406 u.s. 205 (1972). See also Miller and Flowers, Benevolent Neutrality, 59; Davis, "Plural Marriage," 305; Robert M. Bastress, Jr., "The Less Restrictive Alternative in Constitutional Adjudication: An Analysis, A Justification, and Some Criteria," Vanderbilt Law Review 27 (October 1974): 971-1041.
public safety, peace, order, or welfare has been demonstrated or may be properly inferred. 26
Whether or not the limitation causes an unnecessary burden, whether or not a religious practice is sincerely held and is central to one ‘s faith, whether or not an alternate means is available, and whether or not the interest of the state is more important than the religious freedom of the individual are questions that are difficult to answer. Attention will now be directed at some issues similar to blood transfusion which involve a conflict between the free exercise of religion and the state’s interest in the health and welfare of its citizens.
Many health measures necessary for the welfare of society have been supported over the years even when they are in conflict with the religious convictions of a minority. One example would be the need for vaccinations. A leading case is Jacobson v. Massachusetts where compulsory vaccination was upheld. In Jacobson there was no religious objection,27 but later cases say a religious objection should not have changed the ruling. In cases involving a religious motivation for the objection to vaccination, the centrality of one’s belief is considered. Exemptions are provided in
26iWisconsin v. Yoder, 406 U.S. 205, 220, 230 (1972).
27Jacobson v. Massachusetts, 197 U.S. 11 (1905).
some states for members of groups that have a creed against medicine. Members of denominations that have no similar tradition have failed to avoid the requirements. The centrality argument has an impact in these cases.28
The reasoning employed in cases of this type is significant. In a Georgia case where a family objected to vaccination for religious reasons, the court recognized the interest of the state:
The purpose of the legislature in passing the statute was to prevent the spread of these diseases, not only for the protection of those actually immunized but for the protection of others with whom they might come in contact. The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others.29
The court then quoted from an earlier case which involved the distribution of literature by Jehovah’s Witnesses on Saturdays in public places contrary to city ordinances:
A person’s right to exercise religious freedom, which may be manifested by acts, ceases where it overlaps and transgresses the rights of others. Every one’s rights must be exercised with due regard to the rights of others. . . . To construe this constitutional right as being unlimited, and to hold as privileged any act if based upon religious belief, would be to make the professed doctrine of religious faith superior to the law
28Ronald B. Flowers, "Freedom of Religion Versus Civil Authority," The Annals of the American Academy of Political and Social Science 446 (November 1979): 160. For further information on vaccination and health issues see Leo Pfeffer, Church, State and Freedom, 2d ed. (Boston: Beacon Press, 1967), 696-700.
29Anderson v. State, 65 S.E.2d 848, 851 (GA C. of A. 1951)
of the land, and in effect would permit every citizen to become a law unto himself.30
The right of society to prevent suicide or the right of an individual to commit suicide is occasionally used as an argument in cases involving health, medicine or the free exercise of religion. Jewish, Catholic, and Protestant traditions in general have been opposed to suicide although an understanding attitude in extenuating circumstances is often present.31 Common law regarded suicide as a crime which required forfeiture of goods. In American law in the past century it was likewise regarded as a crime although forfeiture of goods was not required. The state regarded it as an offense against those who composed society, because all people depend upon one another.
The absence of punishment for suicide was not a recognition that a person had a right to commit suicide. The lack of punishment was due to the unsuitability of society’s institutions for punishing such a crime. In reality punishment was being inflicted on a family or upon a dead person. Also punishment was rare for attempted suicide, since the reaction was usually one of pity rather than
30Jones v. City of Moultrie, 27 S.E.2d 39, 42 (GA 1949).
31Thomas J. Marzen, Mark K. O’Dowd, Daniel Crone, and Thomas J. Balch, "Suicide: A Constitutional Right?" Duguesne Law Review 24 (Fall 1985): 17-20, 26-29, 50-56.
vengeance. A growing awareness of mental illness and depression assisted in the decriminalization of suicide.32 The sentiment of society is expressed very well in a 1902 case:
Calling suicide self-murder is a curt way of justifying an indictment and trial of an unfortunate person who has not the fortitude to bear any more the ills of this life. His act may be a sin, but it is not a crime; it is the result of disease. He should be taken to a hospital and not sent to a prison.33
Those who assist another person in committing suicide have been punished by law. There seems to be no significant support in society for making suicide a fundamental right implicit in our concept of liberty. Advocacy of a right to commit suicide has come from a diversity of sources in recent years, though. Some people believe very strongly in the individual autonomy of a person. If government attempts to prevent suicide through persuasion or force, advocates of a right to commit suicide say the state has overstepped its bounds.34 Less frequently suicide is justified as a benefit to society through the removal of non-contributing members.35
Is there a constitutional right to commit suicide? Some interpreters say there is under the right of privacy
33Commonwealth v. Wright, 11 Pa.D. 144 (1902); cited by Ibid., 99.
inherent within the Fourteenth Amendment. An alternative opinion says society should not be neutral on the question of suicide. Societal condemnation of suicide through moral stigmas or legislative punishments of those who assist or state efforts to intervene and stop those who attempt suicide all combine to discourage it. Elevating it to a constitutional right might encourage more suicide.36
Religious Snakehandling and Drinking of Poison
Several cases and statutes involve the practice of certain small sects in the handling of poisonous snakes and the drinking of poison. The practice is taken from a belief that Mark 16:17-18 is to be followed literally. During worship services those who are anointed are empowered to handle deadly serpents in order to confirm the word of God.37 The drinking of poison has been less common. Adherents believe it is optional ("if" in Mk. 16:18). In all but one case religious handling of snakes has been declared illegal either by statute or by judicial interpretation of a state statute.38 A recent case in Tennessee will be used as an example of typical reasoning by the courts on this freedom of
37A history of the snakehandling cult can be found in Weston La Barre, They Shall Take Up Serpents: Psychology of the Southern Snake-Handling Cult (Minneapolis: University of Minnesota Press, 1962).
religion issue. This case is significant in that it was decided after the Sherbert and Yoder cases which broadened the limits of the free exercise clause.39
The Pack snakehandling case has a good summary of free exercise constitutional law. After a review of the particulars of the case, the neutrality of the court is explained. The court is not concerned that the religious group in question is small or that their practices are different from the views that prevail in society. "The government must view all citizens and all religious beliefs with absolute and uncompromising neutrality. . . . We must prefer none and disparage none."40
The court then gave an extended review of the belief-action dichotomy by quoting Reynolds and later decisions. The "clear and present danger" doctrine of Cantwell was reviewed along with the intensification of it to a "grave and immediate" danger. The need to balance the "burden" upon the individual against the state's interest was accepted. Recognizing that the "scales must be weighed in favor of religious freedom" and that "to forbid snake handling is to remove the theological heart of the Holiness Church," the decision, nevertheless, went against snakehandling.
39Flowers, "Freedom of Religion," 155.
40State ex rel. Swann v. Pack, 527 S.W.2d 99, 107 (TN 1975).
The Tennessee statute was criticized for its lack of clarity and poor wording. The court prohibited religious snakehandling primarily upon the grounds that it was a public nuisance. Reference was made to the lack of safeguards, to children roaming about unattended, to handlers being so enraptured and entranced that they were in a virtual state of hysteria, and to the loss of life at a recent meeting of the snakehandlers.
Further state interest was found in the right of Tennessee "to guard against the unnecessary creation of widows and orphans," since a state or nation depended upon a "strong, healthy, robust, taxpaying citizenry capable of self-support and of bearing arms and adding to the resources and reserves of manpower."41 Additionally "the state has the right to protect a person from himself and to demand that he protect his own life." Although "suicide is probably not an indictable offense under Tennessee law" an attempt to commit suicide "would constitute a grave public wrong, and we hold that the state has a compelling interest in protecting the life and promoting the health of its citizens."42
The court concluded the case by saying that lesser restrictions or alternative approaches were unsatisfactory. Many less severe limitations were considered, but they found "no alternative plan or procedure which would be palatable to
the membership or permissible from a standpoint of compelling state interest.43
Although this decision is typical of similar cases and the restrictions placed upon snakehandling cults is commonplace in numerous states, the restriction it imposes upon religious freedom has received some criticism. One comment calls it
…another case sustaining state health and safety regulations without serious consideration of the public interests or impartial balancing of those interests against defendant’s right to free exercise of their religion.44
In defense of religious snakehandling, the small number of fatalities and the more remote danger to an audience or the general public was argued. Alternate means involving safety restrictions were possible which would not result in the likely extinction of the cult. The author suggested that prohibitive snakehandling decisions were "based on moral repugnance for such activity in connection with religious worship," not on proper constitutional law. Pack and like decisions were called "a fortification of a judicial trend suggesting religious persecution."45
Another critic said the decision expanded the measure of the state’s interest and reduced the test of "compelling state interest" to a mere recital of words: "With regard to
the free exercise claim of the snakehandlers, the impact on society as a whole is too attenuated to justify prohibition of a church’s primary religious activity."46 Another comment on the case suggested that "further Supreme Court guidance may be necessary to provide the degree of protection for first amendment religious interests that the Sherbert test intended."47
Religious Use of Illegal Drugs
Few users of illegal drugs have been able to defend their use in court by appealing to the free exercise of religion.48 One exception has been the Native American Church. This group is primarily composed of American Indians. While doctrines and ceremonies in the religion can be traced back several centuries, the origin of this group
46Mary Martin Schaffner, "Religious Snake Handling Abated as a Common Law Public Nuisance by Tennessee Supreme Court," Vanderbilt Law Review 29 (March 1976): 512.
47"Application of Sherbert Test To Prohibit Snake Handling During Public Worship," Kansas Law Review 25 (Summer 1977): 593. For further critical comment on the case see Sarah N. Welling, "State Ex Rel. Swann v. Pack: Self-Endangerment and the First Amendment," Kentucky Law Journal 65 (1976-77): 195-219.
48Verges, George de, "Peyote and the Native American Church," American Indian Law Review 2 (1974): 73. Also see John R. Phillips, "Free Exercise: Religion Goes To ‘Pot. "‘ California Law Review 56 (January 1968): 100-15. Phillips sees a more individualized concept of religion emerging in recent cases. For a brief history of the religious use of drugs see Walter Houston Clark, "Religious Aspects of Psychedelic Drugs," California Law Review 56 (January 1968): 86-99.
probably dates to the turn of this century. As Indians were defeated in battle and were moved onto reservations, their old religions declined. A new religion evolved which involved the sacramental use of peyote, a non-narcotic, non-habit forming hallucinatory substance derived from a cactus plant. This new religion provided substitute replacement social groups and viable rituals and ceremonies.49
In an important case testing the religious use of peyote by the Native American Church, the court ruled in favor of the Indians. The court agreed that theirs was a sincere religious belief with a long history behind it. This long history was important to show that their religion was not something of recent invention in order to justify their desire to use peyote. The articles of incorporation of the Native American Church of the State of California included the religious use of peyote in their creed. The court recognized the central role of peyote in their ceremony and doctrine:
Peyote . . . plays a central role in the ceremony and practice of the Native American Church, a religious organization of Indians. . . . the theology of the church combines certain Christian teachings with the belief that peyote embodies the Holy Spirit and that those who partake of peyote enter into direct contact with God. . . To forbid the use of peyote is to remove the theological heart of Peyotism. It is the sole means by
which defendants are able to experience their religion; without peyote defendants cannot practice their faith.50
Recognizing the sincerity and centrality of the peyote faith, the court turned to the difficult task of balancing rights. prohibiting peyote seriously infringed upon the observance of their religion. In contrast to the Reynolds polygamy case where the practice of polygamy was not deemed essential to Mormon faith, "peyote, on the other hand, is the sine qua non" of the Indians’ faith.51
On the side of the state’s interest, the court deemed deleterious effects to be minor. They regarded the morals of the Native American Church members as higher than those of Indians outside the group and discounted difficulties in enforcement of drug laws. They considered occasional, limited peyote use as relatively harmless. Again, in comparison to Reynolds, the court concluded that
the degree of danger to state interests in Reynolds far exceeded that in the instant case. . . . the use of peyote presents only slight danger to the state and to the enforcement of its law.52
50People v. Woody, 40 Cal. Rept. 69, 73-74 (CA 1964). Another case which depended upon Woody and reached identical conclusions is State v. Whittingham, 504 P.2d 950 (AZ C. of A. 1973).
52Ibid., 76-77. One important study (David F. Aberle, The Peyote Religion Among The Navaho [New York: Wenner-Gren Foundation For Anthropological Research, Inc., 1966], 354) confirms these conclusions: "No evidence has been discovered that supports the interpretation that the practices of the Native American Church of North America, including its use of peyote, have damaging effects on the health, welfare, or morality of its members. Much evidence has been discovered that indicates that members of the Native American Church are seriously and strongly committed to their religion, including its use of peyote."
The competing values were weighed and the court declared the scale tips in favor of the constitutional protection:
the right to free religious expression embodies a precious heritage of our history. In a mass society, which presses at every point toward conformity, the protection of a self-expression, however unique, of the individual and the group becomes ever more important. . . . We preserve a greater value than an ancient tradition when we protect the rights of the Indians who honestly practiced an old religion in using peyote one night at a meeting in a desert hogan near Needles, California.53
The use of cannabis was prohibited for another religious group even though its use was deemed essential to their religious practice. This group was recognized as a religion. The interests of the state prevailed, since there was evidence of indiscriminate usage by members and non-members in non-worship situations and danger to the public by members driving on public highways under the influence of the drug. A concurring opinion in the case said the alternate or less restrictive means approach could have been used to allow the religious use of cannabis in such a way as to protect the interests of the state.54
Allowing the use of peyote in the name of religion,
54Lorraine Solomon Cohen, "Free Exercise of Religion: Will It Go Up In Smoke," University of Florida Law Review 32 (Spring 1980): 590-92.
however, shows how flexibly the free exercise clause can be interpreted. Other religious groups using more dangerous drugs, the use of which is not central to the religious beliefs of the group, have not fared very well in the courts. Some cases have challenged the validity of the centrality argument, but it still plays an important role in many free exercise cases.55
Fluoridation of Water Supplies
The Supreme Court has validated numerous lower court cases on the issue of fluoridation of water supplies by refusing to hear them. In these cases it is recognized that dental disease is a serious public health problem. Fluoridation is deemed a safe, desirable means of dealing with this problem.56 Although some objections have been raised that are of the non-religious type, other opposition has been religiously motivated.
In general the courts have rejected the argument that dental disease is merely a private health problem rather than a public one. It is recognized that alternative means of dealing with the problem are available, but such means do not have to be chosen. Efficiency, safety, convenience, and cost must be considered in weighing alternative means.57
55Flowers, "Freedom of Religion," 153-54.
56George A. Strong, "Liberty, Religion and Fluoridation," Santa Clara Lawyer 8 (Fall 1967): 37-40.
The issue is more complex when the objections come from a religious motivation such as a Christian Scientist who believes that fluoride is a drug and that its use in water is equivalent to medical treatment. Some court decisions have responded to this by denying that fluoridation is medical treatment, in essence calling into question the validity of the religious belief of the Christian Scientists.58 If medicine is defined as a substance used to treat or cure a disease, then fluoride is not medicine. Dental caries can not be cured by fluoride. Fluoride only assists in preventing further decay.59
Strong argues that the natural presence of fluoride in water and many food products such as milk or eggs means that "the abstention from the ingestion of fluoridated water is not essential to the practice of a religion which rejects medication."60 While the logic of Strong regarding fluoride and medicine is flawless, he does do what he pretends that he does not do, namely, to "evaluate the verity of religious doctrine."61 Much more to the point is his observation that fluoridation of a public water supply does not make the practice of religion for a minority impossible. It only places an indirect burden on them by making their religion
59Ibid., 50; Nichols, "Water Supply," 158.
60Strong, "Fluoridation," 55.
There are alternative methods to public fluoridation of water. Topical treatment of individual persons is expensive, time consuming, and inferior. Other methods such as fluoride tablets or placing fluoride in foods are judged to be impractical for a number of reasons. Strong concludes that fluoridation is the only acceptable means of dealing with this public health problem of dental caries and that "the infringement upon religion is minimal" and "is not violative of religious liberty."62
Nichols gives a different viewpoint. He contends that the "clear and present danger" clause necessitates showing:
(1) that there is a public policy in favor of fluoridation; (2) that there is an immediate substantial danger to the community; and (3) that the evil to be corrected cannot be alleviated by any other reasonable alternative not conflicting with religious freedom. 63
Based upon local elections for fluoridation, national policy, and scientific opinion he concludes that there is no clear public policy in favor of fluoridation to make its absence constitute a clear and present danger to the public.
Since dental caries is not communicable he argues that it is very different from Jacobson64 where society was trying to protect itself from a smallpox epidemic. He notes
63Nichols, "Water supply," 173.
64Jacobson v. Massachusetts, 197 U.S. 11 (1905).
the alternatives also and suggests education in good cleansing and diet can do much to solve the problem. A person with religious objections to fluoride in water could obtain bottled water to drink, but this would be expensive and "religious freedom is not to be limited to those who can afford it." 65 Not putting fluoride in water would be avoiding a potential public good, but that alone does not justify imposing restrictions on religious liberty.
Faith Healers and Christian Scientists
Governmental regulation of the practice of medicine is a traditional area of concern for the state. The states interest in a healthy citizenry extends to the protection of the public from quacks, charlatans, and incompetent medical professionals. Many would place faith healers and even the Christian Scientists in such categories, but the question of the free exercise of religion makes government regulation very complex. Quite often it is not a matter of constitutional law but of the regulatory police power of the state. For example, the government may not know of a child’s need of medical attention until after a death has occurred. When this happens the alternatives of condoning the activity by doing nothing or of prosecuting the parents for criminal neglect, manslaughter, or homicide are both viable options.66
65Nichols, "Water Supply," 175.
66Henry J. Abraham, "Religion, Medicine, and the State: Reflections on Some Contemporary Issues," Journal of Church and State 22 (Autumn 1980): 424-45.
Many religious people oppose treatment of illness by conventional medical treatment. The Christian Scientists reject the germ theory of disease and the reality of physical illness and have their own practitioners who treat their maladies. Oddly enough few cases directly involve Christian Scientists. A more likely situation in court will involve a family that believes in faith healing. Some religious sects prefer to use faith healing or prayer alone. To them resorting to medical assistance is not only a lack of faith but an insult to the power of God.
The right of an adult to believe in faith or spiritual healing and act on that belief has in general been granted in our society. If an adult is comatose or otherwise unable to make a rational decision, the right course of action is less clear. If a child is involved, the state is likely to step in as parens patriae and claim a compelling interest that justifies acting as a guardian who will consent for necessary medical treatment. Occasionally some argue that the court should order treatment for adults in order to protect a child from neglect which would result if the parent died.
Although there has been dispute in the courts and in conflicting legislation over the nature of Christian Science practice, it should be regarded as the practice of religion,
not medicine in the ordinary sense of the term.67 Christian Science teaching on medicine is not completely central in their theology. The use of medicine (or hearing aids or eyeglasses) is a weakness due to the imperfection of humanity. It is not a sin that calls for the judgment of God. Christian Scientists have attempted to resolve their problems more through legislation than through the courts, especially since they have never enjoyed the same success in court as the Jehovah’s Witnesses.
Children and Parens Patriae
Cases involving children of Christian Scientists or of believers in faith healing have drawn the most attention in the literature on the subject.68 If a situation is not
67Irving Steinhardt, "Christian Science: Religious Freedom and State Control," Miami Law Quarterly 7 (April 1953): 359-63.
68Ibid, 363-70; Abraham, "Religion, Medicine and the State," 425-36; Steven Schneider, "Christian Science and the Law: Room for Compromise?" Columbia Journal of Law and Social Problems 1 (June 1965): 82-88; Guy W. Mitchell III, "Juveniles--The Child, Medicine and the Law," Mississippi Law Journal 39 (May 1968): 508-22; Michael Wald, "State Intervention on Behalf of ‘Neglected’ Children: A Search for Realistic Standards," Stanford Law Review 27 (1974-75): 1028-33; C. C. Cawley, "Criminal Liability In Faith Healing," Miami Law Review 39 (December 1954): 48-74; Catherine W. Laughran, "Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer," Loyola of Los Angeles Law Review 8 (June 1975): 405-11; Robert L. Grescher and Thomas N. O’Neill, "Medical Care For Dependent Children: Manslaughter Liability Of The Christian Scientists," University of Pennsylvania Law Review 109 (December 1960): 203-17; Wayne F. Malecha, "Faith Healing Exemptions To Child Protection Laws: Keeping The Faith Versus Medical Care For Children," Journal of Legislation 12 (Summer 1985): 243-63; Daniel J. Kearney, "Parental Failure to Provide Child with Medical Assistance Based on Religious Beliefs Causing Childs Death-Involuntary Manslaughter in Pennsylvania," Dickinson Law Review 90 (Summer 1986): 861-90; Jordan Cohn, "When God Is the Doctor," Student Lawyer 15 (February 1987): 31
life threatening, courts have been less likely to override the parents religious convictions. If there is a threat of death or serious injury if medical treatment is withheld, the courts have readily ordered treatment.
The neglect of parents to provide their children with the necessities of life was a misdemeanor under English common law. In 1868 the Poor Law Amendment Act made it a misdemeanor for a parent to deny medical treatment for a child. The leading English case on a parent neglecting to provide medical care to a child due to religious convictions was decided in 1899. The opinion concluded:
At the present day when medical aid is within the reach of the humblest and poorest members of the community, it cannot reasonably be suggested that the omission to provide medical aid for a dying child does not amount to neglect.69
An important early case in the United States is People v. Pierson. J. Luther Pierson was convicted of a misdemeanor for failing to provide medical care for his two-year-old daughter who died from whooping cough and pneumonia. He defended himself on religious grounds as a member of the Christian Catholic Church of Chicago, saying that
69 Regina v. Senior, 1 Q.B. 283; cited by Mitchell, "The Child, Medicine and the Law", 508.
. . . he did not believe in physicians, and his religious faith led him to believe that the child would get well by prayer. He believed in disease but believed that religion was a cure of disease.70
The court rejected his claims with the following logic:
The peace and safety of the state involve the protection of the lives and health of its children as well as the obedience to its law. Full and free enjoyment of religious profession and worship is guarantied, but acts which are not worship are not. . . . A person . cannot, under the belief or profession of belief that he should be relieved from the care of children, be excused from punishment for slaying those who have been born to him.71
The conviction of Pierson by the trial court was affirmed.
A worthwhile statement was made by Judge Cullen who concurred with the majority but added:
The state, as parents patriae, is authorized to legislate for the protection of children. As to an adult (except possibly in the case of a contagious disease which would affect the health of others), I think that there is no power to prescribe what medical treatment he shall receive, and that he is entitled to follow his own election whether that election be dictated by religious belief or other consideration. 72
The most important case in the United States on this issue is Prince v. Massachusetts which involved a Jehovah’s Witness accompanied by her nine-year-old niece as they distributed Witness literature on the sidewalks, a potential violation of child-labor laws. The case recognized the need to balance competing interests in order to reach a decision:
70People v. Pierson 68 N.E. 243, 244 (NY C. of A. 1903).
To make accommodation between these freedoms and an exercise of state authority always is delicate. It hardly could be more so than in such a clash as this case presents. On one side is the obviously earnest claim for freedom of conscience and religious practice. With it is allied the parent’s claim to authority in her own household and in the rearing of her children. . Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state’s assertion of authority to that end. . . . It is the interest . that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens. Between contrary pulls of such weight, the safest and most objective recourse is to the lines already marked out, not precisely but for guides, in narrowing the no man’s land where this battle has gone on.73
The court recognized the "cardinal" importance that "custody, care and nurture of the child reside first in the parents." Nevertheless, the "family itself is not beyond regulation in the public interest," even if their claims involve religious rights. "The state’s authority over children's activities is broader than over like actions of adults." The activity in the case in question was deemed inappropriate for a child, the argument for which is unimportant to the discussion here. Based upon possible harm or injury that could occur, though, a landmark statement was made:
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.74
73Prince v. Massachusetts, 321 U.S. 158, 165 (1944).
One dissenting opinion by Justice Murphy did not disagree with the logic of the majority on constitutional law but with the assertion that there was any grave or immediate danger to the child.
Frequently courts have respected the parents wishes to withhold treatment in non-life threatening situations. On the other hand, though, there are many cases which have ordered treatment when the child’s life was not in danger. This latter approach is sometimes justified by the words "ill health" in the Prince decision and "physical or mental health" in Yoder.75 When a child’s life is in danger there has been little hesitation to order medical treatment.
Based upon this line of reasoning parents are often tried for child neglect or involuntary manslaughter in spite of their religious motivations.76 Usually courts have been much less willing to hold parents criminally responsible than they have been to compel treatment. The failure to uphold convictions may be due in part to sympathy for the tragic situations already present. For the first time in the United States an appellate court affirmed a parent’s conviction for involuntary manslaughter in 1985 in a Pennsylvania case.77
75Kearney, "Parental Failure," 871-72.
76Laughran, Religious Beliefs," 405-11; Kearney, "Parental Failure," 872-84.
77Kearney, "Parental Failure," 861-62.
There is a need to clarify many state laws on faith healing exemptions in child protection laws. Over forty states provide some sort of an exemption. This is due to regulations from the Department of Health, Education and Welfare, now renamed, and the Child Abuse Prevention and Treatment Act of 1974. These regulations made an exemption in their rules about child abuse and neglect if the maltreatment resulted from a failure to provide medical care due to religious convictions of the parents. In 1983 new regulations did not require the exemption for states to qualify for federal funding. Since the exemptions were not banned either, few states have modified their statutes, even though some courts are declaring the exemptions unconstitutional.78
Some ask if it is consistent to punish parents when their children die from a lack of medical attention prompted by religious motivations if the faith healer who taught the belief and urged the inactivity is allowed to go free?79 Sometimes a faith healer is liable if his actions have resembled the practice of medicine or if he has counseled a family to break any laws.80
One commentator suggests that a solution lies in
78Malecha, "Faith Healing Exemptions," 246-49, 257-63; Cohn, "When God Is the Doctor", 30-36.
79Cawley, "Criminal Liability," 74.
80Laughran, "Religious Beliefs," 413-15.
legislative exemptions for parents with genuine religious convictions about spiritual healing so that they may avoid prosecution for manslaughter, but at the same time the statute should provide no hindrance from a court ordering medical care for a seriously ill child.81 He doubts that society benefits from punishing parents, but he does not adequately treat how society should deal with parents who purposely conceal the sickness of their child from authorities or how his proposal will help alleviate that problem.
Society’s growing acceptance of the beliefs and practices of faith healers and Christian Scientists is reflected in a growing leniency in rulings and dismissals. This strengthens the position of those who would refuse medical treatment for a non-contagious disease and employ some means of spiritual healing.82 As society grows more tolerant of such beliefs, the urgency of a compelling state interest is less likely.
What are the trends in society’s handling of this problem? In general religious objections to medical treatment have not been a viable defense for failure to provide medical treatment for children. The power of the state to protect children is usually not viewed as a conflict
81Kearney, "Parental Failure," 884-89.
82Grescher and O’Neill, "Medical Care," 214-17.
with the free exercise clause. On the other hand, providing exceptions to accommodate believers in spiritual healing "would probably not inherently offend the establishment clause."83 The strength of the free exercise clause as interpreted in recent cases like Sherbert and Yoder has not diminished the argument of Prince on the protection of children. 84
Religious Freedom and Blood Transfusions
In the Brooks case cited at the beginning of this chapter, earlier examples of conflicts between religious freedom and the state were cited as precedents for compulsory transfusions. The court decided that vaccination was very different, since it involved society’s attempt to protect itself from contagious diseases. Polygamy prohibitions were deemed different, since they were considered to be deleterious to public morals and welfare. The cases on religious snakehandling were also judged to relate to activity that was detrimental to the public welfare. The court concluded, "Even though we may consider appellant’s beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith."85
83Abraham, "Religion, Medicine, and the State," 429.
84Flowers, "Freedom of Religion," 161.
85In re Brooks’ Estate, 205 N.E.2d 435, 442 (IL 1965).
The refusal of blood transfusions by the Jehovah’s Witnesses is a different problem than any of those enumerated in this chapter, yet it is similar to all of them. All of the issues reviewed in this chapter involve both the health and welfare of society and religious liberty. All of them have been decided on the basis of the free exercise clause. If transfusions are to be considered within the framework of American constitutional law, the cases noted above provide the legal tests, precedents, and framework for determining the proper course of action.
Transfusions for children can be justified easier than for adults. The importance or centrality of a refusal of transfusions to the Witnesses is significant. The length of the history of their teaching can be important. If the state chooses to limit religious freedom by imposing a transfusion upon a Witness, a compelling state interest must be shown. The burden it places on the Witnesses must be weighed, and alternate means of accomplishing the same goal must be explored.
The Status of Religious Freedom
Ever since the days of the Reynolds decision the courts have not recognized an absolute right for religious action, but in the years since that decision the basis for religious freedom has been strengthened and bolstered through various court decisions. The rights of the First Amendment
have grown in importance and among them the right to the free exercise of religion has been enhanced. In 1942 in a dissenting opinion Justice Stone referred to the "preferred position" of rights such as freedom of religion and freedom of speech.86 In a dissenting opinion Justice Murphy took the argument a step further:
Important as free speech and a free press are to a free government and a free citizenry, there is a right even more dear to many individuals--the right to worship their Maker according to their needs and the dictates of their souls and to carry their message or their gospel to every living creature. . If this Court is to err in evaluating claims that freedom of speech, freedom of press, and freedom of religion have been invaded, far better that it err in being overprotective of these precious rights.87
Soon these dissenting opinions became the majority opinion when religious rights were given "their high, constitutional position" as having "a preferred position."88
Henry J. Abraham judges that the record of the free exercise clause is probably better in civil libertarian terms
86Jones v. Opelika, 316 U.S. 584, 608 (1942). On the development of this doctrine see Abraham, Freedom and the Court, 15-27, 213-15.
87Ibid., 621, 623. Similarly in a concurring opinion to Martin v. Struthers Justice Murphy wrote: "Freedom of religion has a higher dignity under the Constitution than municipal or personal convenience. In these days, free men have no loftier responsibility than the preservation of that freedom. A nation dedicated to that ideal will not suffer but will prosper in its observance’ (Martin v. Struthers, 319 U.S. 141, 151-52 (1943).
88Murdock v. Pennsylvania, 319 U.S. 105, 115, 117 (1943). "Freedom of press, freedom of speech, freedom of religion are in a preferred position" (Ibid., p. 115).
than any other of our fundamental rights with the possible exception of freedom of the press.89 Another commentator says, "The Sherbert and Yoder cases have given the free exercise of religion a scope unprecedented in judicial history. "90
The role of the Witnesses in the development and enhancement of religious liberty in this nation has been a vital one. The tribute of Justice Murphy in 1944 in his dissenting opinion to Prince is appropriate:
No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against those who dare to express or practice unorthodox religious beliefs. And the Jehovah’s Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. To them, along with other present-day religious minorities, befalls the burden of testing our
89Henry J. Abraham, "The Status of the First Amendment’s Religion Clauses: Some Reflections on Lines and Limits," Journal of Church and State 22 (Spring 1980): 217. Abraham gave a less favorable rating on the health of the establishment clause. Another commentator believes very recent cases show "a troubling inconsistency in the Court’s use of the Sherbert-Yoder doctrine." He points to recent bureaucratic attempts to "relegate the free exercise clause to an essentially vestigial position in the constitutional scheme" (Stephen Pepper, "Taking the Free Exercise Clause Seriously," Brigham Young University Law Review 1986, no. 2 : 325, 336).
90Flowers, "Freedom of Religion," 161.
devotion to the ideals and constitutional guarantees of religious freedom. . . . Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.91
A debt of gratitude ought to be felt by all for religious minorities like the Jehovah’s Witnesses whose struggles in and out of the courts of our nation have advanced the cause of religious liberty. The Witnesses continue to have a new opportunity to expand the religious liberty of all others through their efforts to refuse blood transfusions.92
91Prince v. Massachusetts, 321 U.S. 158 (1944).
92McAninch comments that "Given the Witnesses lack of toleration for individual autonomy and intellectual and spiritual independence among themselves, it is ironic that they have championed, however, reluctantly, the cause of individual liberty for everyone" ("A Catalyst For The Evolution Of Constitutional Law," 1077).
[End of chapter 2]