The Constitutional Principle: Separation of Church and State
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First Amendment

Religion and Expression

Freedom of Expression -- Speech and Press

Freedom of Belief

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.169 "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."170 Speaking in the context of religious freedom, the Court at one point said that while the freedom to act on one's beliefs could be limited, the freedom to believe what one will "is absolute."171

But matters are not so simple.

169 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass'n v. Douds, 339 U.S. 382, 408

(1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5-6 (1971), and id. at 9-10 (Justice Stewart concurring).

170 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

171Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

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Flag Salute Cases

That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute Case.172 In Minersville School District v. Gobitis,173 the Court upheld the power of the State to expel from its schools certain children, Jehovah's Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs."174 But three years later, a six-to-three majority of the Court reversed itself.175 Justice Jackson for

172 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

173 310 U.S. 586 (1940).

174 Id. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of "these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions." Id. at 601.

175 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642. Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court "to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen." Id. at 646, 647.

{Page 1054} the Court chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted "a compulsion of students to declare a belief . . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks."176 But the power of a State to follow a policy that "requires affirmation of a belief and an attitude of mind" is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the act of the students in remaining passive during the ritual "creates a clear and present danger that would justify an effort even to muffle expression."177

176 Id. at 631, 633.

177 Id. at 633-34. Barnette was the focus of the Court's decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's requirement that motorists display auto license plates bearing the motto "Live Free or Die." Acting on the complaint of a Jehovah's Witness, the Court held that one may not be compelled to display on his private property a message making an ideological statement. Compare PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-88 (1980), and id. at 96 (Justice Powell concurring).

However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.178 It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.179

178Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff'd., 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff'd per curiam, 414 U.S. 1148 (1974).

179 Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).

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Imposition of Consequences for Holding Certain Beliefs.--Despite the Cantwell dictum that freedom of belief is absolute,180 government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions.181 It is not clear what precise limitations the Court has placed on these practices.

180 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

181 The issue has also arisen in the context of criminal sentencing. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983), but evidence of the defendant's membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant's crime and the group's objectives. Dawson v. Delaware, 112 S. Ct. 4197 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other's behalf).

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