Misinterpreting the Free Exercise clause of the First Amendment

We can sometimes forget that the First Amendment of the US Constitution actually imposes two restrictions on the government when it comes to religious matters. The amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The ‘establishment’ part gets the most attention in church-state matters because of repeated attempts to force religion into public life but the ‘free exercise’ part is also important.

Interestingly, it is a much disliked religious group (the Jehovah’s Witness) that brought the suit that led to the US Supreme Court expanding the reach of the free exercise clause to cover actions by state and local governments as well, not just the Congress. The landmark case Cantwell v. Connecticut, 310 U.S. 296 (1940) involved a situation where Jehovah’s Witnesses were accused of violating a city ordinance that required them to get a permit to spread their message on the public streets. The US Supreme Court upheld their right to peacefully spread their message without getting prior government approval, using the free exercise clause as their justification.

This is an important case but its implications are often misunderstood.

One example arose in a comment on my post about the kohen in a plastic bag. Commenter brucegee1962 wondered whether the person who went to such extraordinary lengths to avoid being made ritually impure by flying over a cemetery belonged to the same Jewish sect that unsuccessfully petitioned a village board to be allowed to put up a perimeter of string attached to utility poles in their community because such a string (known as an ‘eruv’) allowed the members of the Orthodox Jewish sect to do things within the perimeter bounded by the string that they were otherwise forbidden to do on the Sabbath, such as carry medicine, water, keys or to push strollers and wheelchairs.

I don’t think it is the same group. But in following the link to the news story, I was interested to see that one of the arguments being used to push for the string being allowed was that not being allowed to do so violated the Free Exercise clause of the First Amendment and that opponents had no right to deny the ‘sincerely held’ religious views of the religious group that wanted to put it up. Robert Sugarman, the attorney for the East End Eruv Association that was behind the petition said that “The refusal to accommodate would be a violation of the free exercise rights of the first amendment and would create a violation of those rights by the action of the village board”

What Sugarman fails to understand is that the village board is not restricting the rights of his sect in any way whatsoever. They are free to carry medicine, water, keys, or to push strollers and wheelchairs as much as they wish and do all at the same time if the mood so struck them. It is their own religious beliefs that is preventing them from doing so. To put restrictions on yourself and then demand that others create loopholes for you to circumvent them seems to be an odd interpretation of what the Free Exercise clause requires. It would be like Jehovah’s Witnesses demanding that all city streets must provide sidewalks so that they can do their proselytizing safely.

The courts have said that reasonable steps should be taken to accommodate religious beliefs and it is this loophole that religions invoke to try and get more and more benefits for themselves since the meaning of the word ‘reasonable’ is quite elastic. I personally feel that the government should be under no obligation whatsoever to accommodate religious beliefs. If religions make up restrictive rules for themselves, they are free to do so. But they have no right to inconvenience others because of their rules. Conversely, the state should not go out of its way to inconvenience religious believers either. The Establishment Clause requiring strict neutrality between religious sects and between religion and non-religion seems to me to be the best approach. All laws and rules should be based on secular principles that apply to all.

I also find the request for religious accommodations puzzling even when viewed within the framework of weird religious beliefs. The rules are presumably there for the benefit of the believers, to make them worthier in their god’s sight in some way so that true believers can be identified as those who are willing to jump through those hoops. If one creates loopholes to meet the letter of the law while avoiding all inconveniences, what’s the point? (I know that I can be justly accused of engaging in the futile task of trying to make logical sense out of illogical and irrational religious rules but that is a failing of mine.)

Another point that Sugarman makes that “What I am hearing this morning are demeaning statements from some reformed Jews who are challenging the views sincerely held by another segment of the Jewish community”.

Religious people seem to think that if a view is sincerely held, that somehow it acquires greater weight. This is, of course, absurd. People sincerely believe all manner of things that are crazy, racist, bigoted, just outright hateful, and even insane. Religious people cannot seem to grasp the basic idea that in the absence of any evidence to the contrary, all people’s beliefs can be presumed to be sincerely held. It is only if someone is claiming a benefit on the basis of religion that is denied to the non-religious (such as avoiding paying taxes or being allowed to indulge in practices such as taking drugs) that the sincerity of their beliefs becomes relevant. I think that such benefits too should not be allowed but that is another discussion.

But apart from such special cases, the sincerity of beliefs does not count for anything. And yet, religious people think that it can serve as a shield from criticism or even derision. The kohen who wrapped himself in a plastic bag while flying in a plane undoubtedly sincerely held the belief that it protected him from impurities. But that does not mean that we cannot make fun of the practice.


  1. garnetstar says

    There is actually fairly wide restriction on practicing your religious beliefs, quite allowable under the first amendant. Just try claiming that murder, or some other crime, is part of your sincerely-held religious belief that you need to be eternally saved, so that not getting a special dispensation to practice that is a restriction on your religious practice. See how far that gets you.

  2. sailor1031 says

    Since their religious beliefs don’t allow them to do such thing as you mention, tying a string around an area to permit them to do those things anyway is surely a violation of their beliefs; refusing to allow them to put up their string is, in effect, refusing to allow them to violate their beliefs. Surely that’s a good thing?

  3. sc_770d159609e0f8deaa72849e3731a29d says

    With an exclusionary perimeter, such as an eruv, surely what is ‘in’ and what is ‘out’ is just a matter of opinion. What is to stop a rabbi putting up a string circle enclosing a small space and announcing that the world has been divided into two areas and that everything in the larger area- nearly all of the world- is within the eruv enclosed by the string?

  4. 742 says

    does it have to be a string? i mean, weve got all these layers of atmosphere just laying around…

  5. Mano Singham says

    That is positively brilliant! You have all the makings of a Talmudic scholar.

  6. steffp says

    I think this is more of a clash of fractions inside the Jewish Community. In the opinion of Reformist Jews the ultra-orthodox Haredi, instead of reforming the practically impossible Sabbath rules, pretend to keep them via a series of exemptions that rely on symbolic acts that declare whole communities as being “the house”.
    This allows the otherwise forbidden carrying of objects like spectacles, keys, etc. And it extends the 2000 cubit radius from home that orthodox Jews are allowed to walk on a Sabbath.
    It’s a bit like “kosher cooking stoves”, that allow Haredis to circumvent the ban on making fire, because you can’t be sure they work, as there is a random element which makes it impossible to say if your turn of the controls start the stove. Talmudic logic has its merits. There are a few , well, also Talmudic, arguments against the inflationary use of eruvim. To declare a space between a few houses as being part of these houses traditionally requests consent of all owners and a symbolic sharing of food or such. Thus, the exemption is based on a real community ritual, which may allow to treat the space enclosed as “inside the house”.
    Later, in the eastern European Ghettos, the whole enclosed Ghetto was treated as eruv, which was in line with the traditional forms – consent of all owners, community. It practically meant that full mobility was possible inside the Ghetto, but not outside. Other rules kept in place, like the prohibition against opening an umbrella on Sabbath, which by Orthodoxy is seen as similar to erecting a tent, another forbidden activity.
    There are no more enclosed Jewish Ghettos these days, which means that the marking of an eruv no longer means the building of a community, as it encloses wide spaces of non-Jewish property.
    All these folkloric riffraff between Jewish fractions only made it into the news because, in these liberal times of Orthodoxy, the traditional consent of the owners is replaced by a permit by the mundane authorities, in the case you mentioned, Quogue village. The application for this permit gave the reformists the possibility to intervene.
    The symbolic enclosure with lechis is, by the way, something that escapes even the keen observer.

  7. Mano Singham says

    Thanks so much for this. It was fascinating. I wonder if those communities in Maryland got permission to put up the strings or just went ahead and did it anyway. They seem to span multiple localities which make me suspect that they just did it.

  8. steffp says

    I’m pretty sure that they got permissions from both the communities, and the energy / IT companies whose poles they’re using, as that consent is a prerequisite to the magical ritual. One could apply Niklas Luhmann’s system theory here: “legitimization by due process”. If the golden hair needed for a certain spell is NOT from the devil’s grandmother, then the spell won’t work. The priest has to be ritually pure, the right words have to be spoken, etc. The more prerequisites, the more possible excuses if the magic fails…
    In the communities mentioned in the link, there are weekly lechi patrols to ensure that the enclosure is unbroken. Such a fine example of magical thinking – God wants impossible things, but can be made to look the other way by certain rituals.

Leave a Reply

