This week’s topic is the freedom to practice religion. Is the right to practice whatever religion we choose Constitutionally guaranteed?
The First Amendment starts with the phrase, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That seems perfectly clear – whatever religion you want to believe in, the government is not allowed to stop you. The problem arises when specific practices within a religion are otherwise illegal.

How was this issue resolved with regard to Native Americans’ use of peyote in their religious rites?
Peyote is a hallucinogenic material that has been used by many Native American tribes for religious purposes, but it is also a banned substance in the U.S. Under the old standard, to ban a specific religious practice, the government had to prove that they had a compelling interest in doing so. The ban had to protect the general public interest. For decades, Native American could use peyote in their rituals because there was no compelling reason for the government to stop them.

When did that change?
A 1990 Supreme Court ruling, which has been heavily criticized, ruled that religious practices are not inherently protected by the First Amendment, but they can be protected by specific legislation. This turned decades of legal precedent upside down, and was partly reversed by a federal law, the Religious Freedom Restoration Act of 1993.

In the case of the Fundamentalist Church of Latter-Day Saints, what was the reasoning behind the removal of their children?
They are a small splinter group of Mormonism that still openly practices polygamy, which is illegal. They are known to force girls into arranged marriages with older men when the girls are very young. The sect’s leader, Warren Jeffs, was convicted last year on charges related to arranging marriages for young girls. A phone call for help from a girl within the FLDS ranch lead officials to believe all the children present were in danger of abuse and rape.

If true, could those practices be protected by the First Amendment?
No. Although the standards for protected religious practices has shifted, there are two basic factors to consider:
— Is everyone participating in the religious practice doing it voluntarily?
— Does the practice cause harm to someone who is either not involved or involved involuntarily?
If the answer to those questions is no, the practice will not be protected.

Is that why adults can refuse medical treatment for religious reasons, but they can’t prevent their children from receiving treatment?
That is exactly why. A person who is a legal minor is legally unable to give consent for anything. Without consent, the actions are not Constitutionally protected. It’s the same reason Native Americans can use peyote in a ritual, but they can’t go out and drive on public roads while under the influence of peyote. That puts other people in harm’s way.