First Amendment religious rights first came under attack by Justice Hugo Black in Everson v. Board of Education. Although the case was correctly decided and allowed tax dollars to bus parochial students to school, Black introduced the doctrine of separation of church and state. Separation of church and state which is not in the Constitution, yet many courts would use the separation of church and state doctrine to determine the fate of future establishment clause cases. The separation of church and state doctrine was discovered in a letter between Thomas Jefferson and a Connecticut pastor and should have no purpose or basis for deciding Constitutional law cases. In Zelman v. Simmons-Harris the Court held educational vouchers could not be used to send children to parochial school. In Locke v. Davey the Court held a scholarship could be withheld from students studying theology. In Lee v. Weisman the Court held that prayer at a graduation ceremony was unconstitutional. In Lee, the Court essentially rescinded religious liberty to protect a new invented right to prevent people from feeling uncomfortable. Other cases denied the right of government institutions from displaying the ten commandments. All of these cases not only deny First Amendment rights of religious liberty, but they also deny the right to obtain knowledge. The separation of church and state doctrine allowed the establishment clause to evolve from preventing governments to establish a religion to restricting education, prayer, and ten commandment displays. The modern interpretation of the separation of church and state doctrine is wrong for two reasons. First, Jefferson was not part of the committee that wrote the Constitution so his interpretation of the document is not relevant. Second, Jefferson’s separation of church and state comment was taken out of context and was not intended to disparage religious rights through its enforcement. The reason for the establishment clause was because many colonies established religions and forced people to pay taxes to support these religions regardless of whether or not they were members. In effect, this was taxation without representation, the same thing the colonists blamed England of doing to them. The purpose of the establishment clause was to fix this hypocrisy and prohibit religious discrimination.
Even the exercise clause prohibiting Congress from creating any law abridging religion has been mitigated. In Human Resources of Oregon v. Smith, the Court struck down the Native American ritual of using peyote during religious ceremonies. Drug use may be beyond western societal norms, but the government must have a compelling reason to deny these practices. Jewish and Catholic rituals allow minors to break the law and drink alcohol. Where is the line drawn on what is acceptable and what is not acceptable religious behavior? Just because we do not agree with a religion, it does mean our opinion is correct.
The Court was in damage control mode to correct past mistakes interpreting the exercise clause in Sherbert v. Verner. In this case, the Court held an employer could not force or compel a person to work on Saturdays (Day of Sabbath). Likewise, in the Church of Lukumi Babalo Aye v. City of Hialeah the Court held hallucinogens were legal for some religious rituals. Similarly, in Gonzalez v. O Centro Espirita Beneficiente Uniao do Vegeta the Court held that animal sacrifices were legal for some religious rituals. Justice Anthony Scalia feared that people would hide behind the guise of religious freedom to commit crimes. That said, in all Supreme Court cases regarding religious behavior, there has never been anyone trying to use religion to benefit financially or to commit a crime. But drawing the line between religious behavior and criminal behavior would make more sense than to eliminate practices that do not harm others. For example, drug use that only harms the user and does not harm others should be tolerated behavior. Locke taught us that the law was not to protect individuals from self-destructive behavior, but to protect individuals from violating the rights of others.