First Amendment Series Regulatory & Religion “ You think its hot here!”

1. First Amendment Series Regulatory & Religion “You think its hot here!”

2. Religion and Regulation • "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.“ • The first part of this provision is known as the Establishment Clause, and the second part is known as the Free Exercise Clause. Although the First Amendment only refers to Congress, the U.S. Supreme Court has held that the Fourteenth Amendment makes the Free Exercise and Establishment Clauses also binding on states.”

4. The Meaning of the Establishment Clause • The government cannot enact legislation that aids one religion, aids all religions, or prefers one religion over another. • It cannot force or influence a person to participate in, or avoid, religion or force a person to profess a particular religious belief. • No tax in any amount can be levied to support any religious activities or organizations. Neither a state nor the federal government can participate, whether openly or secretly, in the affairs of any religious groups.

5. Basics • To determine whether an action of the federal or state government infringes upon a person's right to freedom of religion, the court must decide what qualifies as religion or religious activities for purposes of the First Amendment.

6. What Qualifies? • Religion is "a behavior, process or structure whose orientation is at least partially supernatural." But not always: • The 7th Circuit Court of Appeals ruled that prison officials erred because they “did not treat atheism as a ‘religion.’” The court said, “Atheism is [the inmate’s] religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being • The Supreme Court has said that a religion need not be based on a belief in the existence of a supreme being. In the 1961 case of Torcaso v. Watkins, the Court described “secular humanism” as a religion

7. Secular Humanism • A humanist philosophy that upholds reason, ethics, and justice and specifically rejects rituals and ceremonies as a means to affirm a life stance. The term was coined in the 20th century to make a clear distinction from "religious humanism". A perhaps less confrontational synonym is scientific humanism, which the biologist Edward O. Wilson claimed to be "the only worldview compatible with science's growing knowledge of the real world and the laws of nature".

8. A Wide Variety • Abode of the Eternal Tao - Taoism(12 million) • Yoruba Voodoo – Shango – Santariaism (1.2 million) • Rastafarianism (700,000) • Janism • Syro Manlankara

9. So, Can Religion Be Regulated? • The Lemon Test - First, the statute must have a secular legislative purpose • Second, its principal or primary effect must be one that neither advances nor inhibits religion • Finally, the statute must not foster "an excessive governmental entanglement with religion." The Lemon Test 403 US 602, 1972 quoting Lemon v Kurtzman

10. The Witnesses v Lakewood

11. Congregation Of Jehovah’s Witnesses v. Lakewood Ohio • Does a local zoning ordinance that prohibits the construction of churches in virtually all zoning districts, violate the Establishment Clause of the First Amendment. • Lakewood, Ohio is a suburb of Cleveland with a population of 62,000. The land use is dominated by 1 and 2 family houses with a linear commercial district. There are few vacant lots remaining in the town

12. Background • The 175-member Congregation of Jehovah's witnesses, a non-profit corporation organized under Ohio law in 1972, has worshipped in Lakewood since 1944 • The Congregation's church building, called Kingdom Hall, is currently located in a storefront on one of the main commercial arteries in the City • The central tenets and missions of the Jehovah's Witnesses are the distribution of literature to homes and on the street, and the conduct of in-home Bible studies for the purpose of instructing and encouraging people to apply biblical teachings to daily life.

13. Controversy • The Congregation decided to relocate Kingdom Hall and began searching for a site capable of accommodating a larger building. It entered into an option contract for and subsequently purchased a half-acre lot in northwest Lakewood • The surrounding neighborhood consists of large, stately one and two-family homes, most of which were constructed before 1930. The design for the new Kingdom Hall featured a low, square building with a rustic stone exterior intended to blend with the neighboring properties. The design, insofar as possible, preserved the trees on the land and sheltered the forty-two car parking lot from homes nearby.

14. The Problem • The Congregation's lot is designated R-2, limiting its uses to single family dwellings and "roomers." • Church buildings are permitted only in M-3, M-2, B-R, and B-2 districts, which comprise approximately ten percent of the City's land.

15. The Allegation • The Congregation claims that the ordinance infringes on its right to freedom of religion by prohibiting it from constructing Kingdom Hall on the lot it owns • If the ordinance does infringe the Congregation's first amendment rights, the City must justify the ordinance by a compelling governmental interest (strict scrutiny).

16. A Cardinal Principle of Faith • Although a court's primary concern in determining whether religious freedom has been infringed must necessarily be the cost, economic or otherwise, attached to religious observance, case law highlights a secondary concern • The centrality of the burdened religious observance to the believer's faith influences the determination of an infringement. Religious observances in the form of beliefs are absolutely protected from governmental infringement.

17. The First Finding • The burdens imposed on the Congregation by the ordinance are an indirect financial burden and a subjective aesthetic burden. • The Congregation may build a church in Lakewood only in commercial or multi-family residential district. Land in these districts is more expensive and, the Congregation claims, less conducive to worship than the area where the lot is located. No pressure is placed on the Congregation to abandon its beliefs and observances.

18. Second Finding • But the First Amendment does not require the City to make all land or even the cheapest or most beautiful land available to churches. The Lakewood ordinance does not exclude the exercise of a first amendment right, religious worship, from the City.

19. Summary • In summary, the Lakewood ordinance is constitutional although it creates exclusive residential districts and thereby prohibits the construction of church buildings in the districts • The facts of the present case show that the ordinance does not infringe the Congregation's religious freedom • The ordinance merely frustrates the Congregation's desire to locate itself in a more pleasant, more convenient and less expensive location. Such desires, however, are not protected by the Constitution.

20. Lemon test Applied the statute must have a secular legislative purpose Second, its principal or primary effect must be one that neither advances nor inhibits religion Finally, the statute must not foster "an excessive governmental entanglement with religion."

21. City of Colorado Springs V Rev. Blanch • Case filed in 1984 • Faith Bible owned and operated a church in Colorado Springs that was sold in April 1985 • Faith Bible purchased residential property at 2804 Country Club Circle

22. City of Colorado Springs v Richard Blanch • Title was conveyed to Blanche and his wife. • Blanche and Faith Bible commenced, organized, and institutionalized religious activities within the residence knowing that the property was located in an R-1 district. • In an R-1 zone, religious institutions are not allowed as a permitted use, but may be allowed as a conditional use.

23. Background • Richard Blanche, who is the pastor for Faith Bible, and his family live in the Country Club Circle home. • The residence is a four bedroom home with a family room containing a piano and approximately 50 folding chairs set up in rows facing a podium. • Blanche conducts religious services and other congregational activities at the home four times a week. • These activities, which typically included sixty to seventy-five people, consisted of praying, singing, studying the bible, and teaching Sunday school.

24. The Good Rev. In Front of His Church

25. He Also Does Healing

26. The Curtin Rises • Colorado Springs issues a violation notice to the Rev. Blanch to cease operation as a church • Blanch says to go take a hike • Blanch is hauled into local court, fined $250 and ordered to perform 80 hours of community service

27. Lights, Action • Blanch holds services again • Brought back to court and fined $1,000 • Courts issues permanent restraining order prohibiting the use of the home as a church • Blanch does it again and the court holds him and Faith Bible in contempt and fines him another $1,000 • The congregation passes the plate

28. The Star of the Show - Blanch • Blanche and Faith Bible claim that the City of Colorado Springs denied them due process and equal protection of the law by unconstitutionally abridging appellants' rights to freedom of speech, assembly, association, and religion.

29. The Court Answers • Colorado Spring did not abuse its authority • Content neutral regulations that exclude religious uses from certain zones are constitutional insofar as the rules for the exclusion are rationally related to the goals of the police power • This is a time, manner, place restriction and is based on the very real needs for parking, low intensity neighborhood activity

30. The Free Exercise Test • Whether the "exercise of religion" was adversely affected by the regulation •  Whether the action "substantially burdened" the exercise of religion • Whether the action was "in furtherance of a compelling governmental interest • Whether the action was "the least restrictive means of furthering that compelling governmental interest

31. Cardinal Principles But what if a cardinal principle of a religion brought harm to others or animals?

32. Church Of The Lukumi Babalu Aye v City of Hialeah Santeria (The Way of the Saints) is the common, popular name. Quoting an essay on "The Lukumi Tradition" by Afolabi: Vodun (a.k.a. Vodoun, Voudou, Voodoo,Sevi Lwa) is commonly called Voodoo by the public. The name is traceable to an African word for "spirit". Vodun's can be directly traced to the West African Yoruba people who lived in 18th and 19th century Dahomey

33. Of Animal Sacrifice and Zoning • This case involves practices of the Santeria religion, which originated in the nineteenth century. • When hundreds of thousands of members of the Yoruba people were brought as slaves from eastern Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism • The resulting syncretion, or fusion, is Santeria, -the way of the saints.- The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments.

34. The God’s Of Santeria ELEGGUA OBATALAOSHUN OYA YEMALLA SHANGO

35. The Controversy • According to Santeria teaching, the orishas are powerful but not immortal. They depend for survival on the sacrifice. • Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. • Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep,…. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals.

36. The Controversy • The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987.

37. The Animal Sacrifice

38. The Result • The ordinance defined sacrifice as: • [i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida. The final Ordinance, 87-72, defined slaughter as the killing of animals for food and prohibited slaughter outside of areas zoned for slaughter house use. The ordinance provided an exemption, however, for the slaughter or processing for sale of small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law. • All ordinances and resolutions passed the city council by unanimous vote.

39. The Trial Court • First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public. • The court found emotional injury to children who witness the sacrifice of animals. • Third, the court found compelling the city's interest in protecting animals from cruel and unnecessary killing. • The court determined that the method of killing used in Santeria sacrifice was unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal • Fourth, the District Court found compelling the city's interest in restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use.

40. The Supreme Court • The city does not argue that Santeria is not a religion within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.

41. Kennedy’s Observation • Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation's essential commitment to religious freedom • The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. Justice Kennedy

42. Neutrality • In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were crafted with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense.

43. “Every time You Go To Church It Is A Matter Of Life Or Death” The practice of snake handling is based in the Gospel according to St. Mark, Chapter 16, verses 17 and 18. In this passage, Jesus says, "And these signs shall follow them that believe; In my name shall they cast out devils; they shall speak with new tongues; they shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover."

44. Archbishop of San Antonio v City of Boerne, Texas Located in the San Antonio Metro Area in the west Texas Hill Country 2005 population about 8,000 people

45. San Antonio Metro Area

46. Religious Freedoms Restoration Act (RFRA) of 1993 • In this case the Supreme Court finds that the RFRA is a significant intrusion of Congress on the ability of the State’s to enact health, safety, and welfare laws for the good of its communities • City of Boerne (Pronounced BURnee) v Archbishop of San Antonio

47. The Setting • Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peters Catholic Church. Built in 1923, the church's structure replicates the mission style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

48. The Spanish Mission Style

49. El Bishop The Bishop Toasting His Decision to Allow The Church to Renovate and Expand

50. Action of the City • The Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. • The Commission must pre-approve construction affecting historic landmarks or buildings in a historic district • The Archbishop applied for a building permit to enlarge the church • City authorities, relying on the ordinance and the designation of a historic district denied the application. • The Archbishop brought this suit challenging the permit denial in the United States District Court