Other religious accommodations include the legal use of sacramental wine during national prohibition (1920-1933), and the use of the drug peyote in the religious ceremonies of the Native American Church. The latter accommodation, allowed by many states, was disallowed as a constitutional right by the U.S. Supreme Court in 1990, thus moving Congress to enact the Religious Freedom Restoration Act of 1993, which restored the standard of requiring the least restrictive means of burdening religious liberty at a statutory, rather than a constitutional level
Dr. Mark David Hall, Herbert Hoover Distinguished Professor of Politics at George Fox University, discussed the historic accommodations given to liberty of conscience in America in light of the current crisis resulting from the legal requirement in many jurisdictions for businesses offering services pertaining to marriage ceremonies to provide goods and services for same-sex weddings against their consciences in a presentation at the Family Research Council on July 15.
Hall began by noting that the last few years have seen the legal requirement to violate one’s conscience resulting from civil rights protections granted to homosexuals emerge into mainstream American consciousness. In “high profile cases,” people have been forced to choose between their Christian faith and conscience on the one hand and their livelihood on the other, threatened with “ruinous fines” unless they provide goods and services that contribute to homosexual activity. The recent Supreme Court decision imposing same-sex marriage on the nation has the potential to cause the number of such cases to “increase exponentially.” Hall referred in particular to the case of Barronnelle Stutzman in Washington state, fined $135,000 in a still ongoing case for declining to provide flowers for a homosexual wedding to a customer of longstanding, and after having served and hired homosexuals in her business. Hall said these cases raise “important questions,” e.g., “what is the proper scope of religious liberty, how compelling is the state’s interest in forcing business owners to participate in these sorts of ceremonies … would the state still be able to meet its objectives if religious business owners were granted narrow exemptions … should states adopt broad Religious Freedom Restoration Acts?”
The crisis in liberty of conscience, which today is focused on homosexuality, goes back into the twentieth century and involves the need to find legal accommodations for conscience convictions from “neutral, generally applicable laws.” America in fact has a “long history of providing accommodations to neutral, generally applicable laws.” Simply rehearsing the examples would “overwhelm” any listener with the evidence of America’s historic respect for liberty of conscience by writing conscience protections into law, Hall said. He then reviewed some of the highlights of this part of American history.
Conscientious objection from military service is one of the oldest and most noticeable accommodations. It was granted to Quakers in colonial times. The kind of exemptions historically varied from paying a substitute to serve in the military to exemptions for persons in pacifist denominations, to individual exemptions for those expressing a religious objection to military service. Historically there was broad public support for liberty of conscience, supported both by Democrats and Republicans, and more than 2,000 accommodations written into law by the early 1990s. Giving the examples of human sacrifice of babies or the objection of Christian Science parents to providing medical care for their children (which was in fact accommodated in some state laws, resulting in hundreds of deaths), Hall said that “it is obvious that not every act based on religious conviction can be accommodated, but most can.” He noted, however, that military service is an extremely high priority for the nation (really threatening the country’s existence if not provided for), and yet conscientious objection to military service has long been accommodated. Originally, states provided accommodation to pacifist objectors, but beginning in the twentieth century, it was the national government. An early (1917) legal challenge to religious accommodation as violating the establishment clause of the Constitution was dismissed by the Supreme Court “out of hand;” protecting religious minorities was held to be within Congress’ power. Although conscientious objection to military service has only been a statutory, not a constitutional, right, Hall noted that the version of the Second Amendment which was originally proposed included a clause giving a military exemption to religious pacifists.