Assignment task:
Readings: Wisconsin v Yoder (1972)
Kennedy v Bremerton School District (2022)
McCullough, Supreme Court Rules That Death Row Inmate's Pastor Can Touch Him During Execution (2022)
The Belief-Conduct Distinction.-Although the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause, clarified the court in 1940 "embraces two concepts-freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. Cantwell v. Connecticut, 310 U.S. 296, 304.
These two cases following Wisconsin v Yoder represent a growing tendency on the part of the Supreme Court to protect religious liberty with less regard for the "do not establish" part of the First Amendment. In the Reading Response for this week, we saw that in the Oregon v Smith (1990) case, the Court drew a distinction between "believing" and "acting." Albert Smith could believe his indigenous religion but his actions must follow the law. That decision contradicted the court's finding twenty years earlier that Yoder's Amish beliefs and his actions were one and the same. Smith's lawyer made the same appeal, arguing the "centrality of the peyote ceremony" to Smith's religious exercise, with no success.
Each of these cases centers around an action that stems from a belief: allowing an inmate to be touched during his execution, praying in front of thousands on the fifty-yard line of a football field. Basically, the Belief-Conduct Distinction no longer figures in decisions about religious liberty.
Choose one of these cases and discuss on what grounds the Court might have decided differently. What would be the impact on religion? On democracy? On the separation of church and state? On the ability of non-Christian religions to be considered full partners in U.S. society?