About Religious Liberty: Chapter 8 Restrictions on Some Religious Practices

Just as tax exemptions for religious groups can be limited, so the right to free exercise of one’s religion or spiritual belief is subject to some limitations. No right, including the right of free speech and the right of assembly, is absolute. Sometimes limitations are needed to protect the public welfare or because religious groups break laws—in the past and currently.

One early and classic example of how courts place restriction on religious practices involved the Church of Jesus Christ of Latter-Day Saints, or the Mormons. The Mormon Church was established in the early 1800s under the leadership of Joseph Smith, who called himself a prophet. He declared that he had received revelations from God, which he wrote down in the Books of Mormon.

While many Mormon beliefs are similar to traditional Christian concepts, Smith’s claim to have received a divine revelation was heretical to most Protestants. In addition, most Americans objected to the Mormon practice of polygamy. Wherever Mormons settled—Illinois, Ohio, Missouri—Gentiles (non-Mormons) often attacked. When Smith and his brother were shot and killed, a fellow believer Brigham Young led the faithful to the Great Salt Lake Basin, a territory that later became the state of Utah. Young tried to set up a theocracy and continued the practice of polygamy. Although the Mormons were hardworking, disciplined people and developed a thriving community, Gentiles hated the sect for their differences.

The U.S. Congress passed a law in 1862 that banned polygamy, but Mormons continued to live by their church doctrines. Many men were arrested for violating a federal law. The polygamy issue was finally resolved when the Utah territory applied for statehood. Mormon leaders announced that polygamy would no longer be sanctioned by the church. Thus Congress voted to admit Utah as a state. Since the early 1900s, the Mormon Church has grown and prospered, particularly in Salt Lake City.

Yet a century later, Mormons again were confronted by the law. But this time it was not the main LDS church in trouble. It was a fundamentalist sect and its leader, Warren Jeffs, who founded a radical splinter group called the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Jeffs, who has often been compared to cult leader, set up a compound in Texas, where he led his followers with absolute authority, until police raided the compound in 2008 and found hundreds of young girls. Jeffs was arrested and sentenced to life in prison for sexually assaulting children—he had impregnated two young girls, twelve and fifteen years old. Jeffs is serving a life sentence.

Nevertheless, FLDS faithful established an enclave called Short Creek between Colorado City, Arizona, and Hildale, Utah. Even though Jeffs was in a Texas prison, his followers still obeyed his orders. From prison he declared that God had abandoned Short Creek, so many of the FLDS leaders left the community. Non-FLDS folks began to move in and buy homes that were held by the United Effort Plan Trust (UEPT), a trust that allowed members to share in the church’s assets. But the state of Utah seized control of the trust in 2005, alleging Jeffs’ mismanagement of FLDS funds. The state of Utah seized the UEPT and separated it from the FLDS. That meant church members had to pay a $100 monthly fee to stay in their homes and pay late property taxes or face eviction.

Because of evictions, many FLDS members have moved into trailers around town or left the community. And some former members have purchased empty homes and buildings and moved back to the community.

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Although faith healing, or praying for divine intervention to cure disease and injuries, has taken place throughout history, laws in the United States have at times restricted the practice. A number of rigorous Christian groups are staunchly opposed to medical science and treatment (such as some Theocrats and Pentecostals). They believe that only prayer should heal people.

Spiritual healing is also a principal doctrine of the Christian Science Church, founded by Mary Baker Eddy in the 1870s. Christian Scientists are free to choose whatever form of healing treatment they want, but most abide by teachings that say sin and disease come about because people are separated from God. Believers seek to break down barriers between God and themselves through prayer, which, according to the church’s doctrine, restores health.

In some instances, Christian Scientists and others who believe in spiritual healing have been forced to accept medical treatment that is against their religious beliefs. The courts are most likely to intervene when the life of a child is threatened. In one case, a Tennessee court ruled that a twelve-year-old girl should undergo drug treatments for cancer in spite of objections from her father, a Pentecostal minister. Still another example a Massachusetts court ruled that a hospital could use blood transfusions and chemotherapy to treat an eight-year-old suffering from leukemia. Doctors required the treatment even though blood transfusions were prohibited by the religious beliefs of the child’s parents, who were Jehovah’s Witnesses.

In spite of these examples of government intervention, most states have passed laws that allow parents to seek some form of spiritual treatment for sick children. The laws are designed to protect parents from charges of neglect and abuse if their children are not treated by medical practitioners. Those laws are subject to change however, as research has consistently shown.

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Federal authorities have long scrutinized Native American tribal religious or spiritual practices. As Walter R. Epic-Hawk wrote in a Foreword for the nearly 400-page Encyclopedia of Native American Religions:

Little is known about Native American religions by citizens or policy makers in the United States….Native American religious liberty…is pockmarked by European intolerance, military confrontations, government bias, and government sponsored proselytization…. Native worship has been possible only through a patchwork of legislation, litigation, and government regulation that demonstrates an inability to adequately incorporate the basic needs of indigenous worshipers into the social, legal, and political fabric of our nation.

The authors of the Encyclopedia Arlene Hirschfelder and Paulette Molin, emphasize that “Native American sacred beliefs are as dignified, profound, viable, and richly faceted as other religions practiced throughout the world. Native sacred knowledge has not been destroyed or lost but in fact lives on as the heart of Native American culture today.” The publication contains thousands of entries, including topics such as Native American religious ceremonies, sacred sites, and Supreme Court cases.

One such case reach the U.S. Supreme Court in the late 1980s. It involved the use of peyote (a powerful hallucinogen) in a Native American religious ritual. Two Native Americans in Oregon, Alfred Leo Smith and Galen Black, who worked as counselors for a private drug rehabilitation organization, ingested peyote during a religious ceremony. When their employer learned of their drug use, the counselors were fired. They filed a claim for unemployment compensation, but were denied because they had been dismissed for alleged “misconduct.”

The counselors filed a lawsuit with Oregon’s state employment division, but lost their battle in state court. On April 17, 1990, Justice Antonin Scalia, writing for five justices, decided in favor of the State of Oregon. Indian groups then rallied to amend the American Indian Religious Freedom Act of 1978 to provide that “The use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State.” In 1994, the U.S. Senate and House of Representatives considered the amendment, and declared, in part, that “for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures.” Thus the amendment was approved.

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