Historical Foundations that Allowed Globalization to Happen Paper One of our Student Learning Outcomes is to make historical connections from the past to t

Historical Foundations that Allowed Globalization to Happen Paper One of our Student Learning Outcomes is to make historical connections from the past to the present. This chapter highlights the modern era. What are the historical foundations that allowed for globalization to happen? In your historically grounded opinion, is globalization a positive or negative?100 words of reply of two posts which I will send you later SUPREME COURT OF THE UNITED STATES
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN
RESOURCES OF OREGON
v.
SMITH
Decided: April 17, 1990
Justice SCALIA delivered the opinion of the Court.
This case requires us to decide whether the Free Exercise Clause of the First
Amendment permits the State of Oregon to include religiously inspired peyote
use within the reach of its general criminal prohibition on use of that drug, and
thus permits the State to deny unemployment benefits to persons dismissed from
their jobs because of such religiously inspired use.
I
Oregon law prohibits the knowing or intentional possession of a “controlled
substance” unless the substance has been prescribed by a medical practitioner. . .
. Persons who violate this provision by possessing a controlled substance . . . are
“guilty of a Class B felony.” [Under Oregon law, peyote, a hallucinogenic drug,
is classified as a controlled substance]. . . .
Alfred Smith and Galen Black were fired from their jobs with a private drug
rehabilitation organization because they ingested peyote for sacramental
purposes at a ceremony of the Native American Church, of which both are
members. When [Smith & Black] applied to [the] Employment Division for
unemployment compensation, they were determined to be ineligible for
benefits because they had been discharged for work-related “misconduct”. The
Oregon Court of Appeals reversed that determination, holding that the denial of
benefits violated [Smith and Black’s] free exercise rights under the First
Amendment. . . .
The Oregon Supreme Court . . . held that [Smith and Black’s] religiously inspired
use of peyote fell within the prohibition of the Oregon statute, which “makes no
Employment Division v. Smith (U.S. 1990)
Page 1 of 10
exception for the sacramental use” of the drug. It then considered whether that
prohibition was valid under the Free Exercise Clause, and concluded that it was
not. The court therefore [ruled] that the State could not deny unemployment
benefits to [Smith & Black] for having engaged in that practice. . . .
II
A
The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into the Fourteenth Amendment,
provides that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . ” The free exercise of religion
means, first and foremost, the right to believe and profess whatever religious
doctrine one desires. Thus, the First Amendment obviously excludes all
“governmental regulation of religious beliefs as such.” The government may not
compel affirmation of religious belief, punish the expression of religious
doctrines it believes to be false, impose special disabilities on the basis of
religious views or religious status, or lend its power to one or the other side in
controversies over religious authority or dogma.
But the “exercise of religion” often involves not only belief and profession but
the performance of (or abstention from) physical acts: assembling with others
for a worship service, participating in sacramental use of bread and wine,
proselytizing, abstaining from certain foods or certain modes of transportation. It
would be true, we think (though no case of ours has involved the point), that a
state would be “prohibiting the free exercise [of religion]” if it sought to ban
such acts or abstentions only when they are engaged in for religious reasons,
or only because of the religious belief that they display. It would doubtless be
unconstitutional, for example, to ban the casting of “statues that are to be used
for worship purposes,” or to prohibit bowing down before a golden calf.
[Smith & Black] in the present case, however, seek to carry the meaning of
“prohibiting the free exercise [of religion]” one large step further. They contend
that their religious motivation for using peyote places them beyond the reach of
a criminal law that is not specifically directed at their religious practice, and
that is concededly constitutional as applied to those who use the drug for other
reasons. They assert, in other words, that “prohibiting the free exercise [of
religion]” includes requiring any individual to observe a generally applicable law
that requires (or forbids) the performance of an act that his religious belief
forbids (or requires). As a textual matter, we do not think the words must be
given that meaning. It is no more necessary to regard the collection of a general
tax, for example, as “prohibiting the free exercise [of religion]” by those citizens
Employment Division v. Smith (U.S. 1990)
Page 2 of 10
who believe support of organized government to be sinful than it is to regard the
same tax as “abridging the freedom . . . of the press” of those publishing
companies that must pay the tax as a condition of staying in business. It is a
permissible reading of the text, in the one case as in the other, to say that, if
prohibiting the exercise of religion (or burdening the activity of printing) is
not the object of the tax, but merely the incidental effect of a generally
applicable and otherwise valid provision, the First Amendment has not been
offended.
Our decisions reveal that the latter reading is the correct one. We have never
held that an individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. On
the contrary, the record of more than a century of our free exercise jurisprudence
contradicts that proposition. As described succinctly by Justice Frankfurter in
Minersville School Dist. Bd. of Educ. v. Gobitis (1940): “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. The mere possession of religious convictions
which contradict the relevant concerns of a political society does not relieve the
citizen from the discharge of political responsibilities.”
We first had occasion to assert that principle in Reynolds v. United States (1879),
where we rejected the claim that criminal laws against polygamy could not be
constitutionally applied to those whose religion commanded the practice.
“Laws,” we said, “are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may with
practices. . . . Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself.”
Subsequent decisions have consistently held that the right of free exercise does
not relieve an individual of the obligation to comply with a “valid and neutral
law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).” . . .
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action
have involved not the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of speech and
of the press, or the right of parents . . . to direct the education of their children, see
Wisconsin v. Yoder (1972). . . .
Employment Division v. Smith (U.S. 1990)
Page 3 of 10
The present case does not present such a hybrid situation, but a free exercise
claim unconnected with any communicative activity or parental right. [Smith &
Back] urge us to hold, quite simply, that when otherwise prohibitable conduct is
accompanied by religious convictions, not only the convictions but the conduct
itself must be free from governmental regulation. We have never held that, and
decline to do so now. There being no contention that Oregon’s drug law
represents an attempt to regulate religious beliefs, the communication of
religious beliefs, or the raising of one’s children in those beliefs, the rule to which
we have adhered ever since Reynolds plainly controls. . . .
B
[Smith and Black] argue that, even though exemption from generally applicable
criminal laws need not automatically be extended to religiously motivated
actors, at least the claim for a religious exemption must be evaluated under the
balancing test set forth in Sherbert v. Verner (1963). Under the Sherbert test,
governmental actions that substantially burden a religious practice must be
justified by a compelling governmental interest. Applying that test, we have, on
three occasions, invalidated state unemployment compensation rules that
conditioned the availability of benefits upon an applicant’s willingness to work
under conditions forbidden by his religion. See Sherbert v. Verner; Thomas v.
Review Board, Indiana Employment Div. (1981); Hobbie v. Unemployment Appeals
Comm’n of Florida (1987). We have never invalidated any governmental action on
the basis of the Sherbert test except the denial of unemployment compensation.
Although we have sometimes purported to apply the Sherbert test in contexts
other than that, we have always found the test satisfied. In recent years we have
abstained from applying the Sherbert test (outside the unemployment
compensation field) at all. . . .
The Sherbert test, it must be recalled, was developed in a context that lent itself to
individualized governmental assessment of the reasons for the relevant conduct.
. . . [A] distinctive feature of unemployment compensation programs is that their
eligibility criteria invite consideration of the particular circumstances behind an
applicant’s unemployment: The statutory conditions [in Sherbert] provided that a
person was not eligible for unemployment compensation benefits if, “without
good cause,” he had quit work or refused available work. The “good cause”
standard created a mechanism for individualized exemptions.
. . . [O]ur decisions in the unemployment cases stand for the proposition that
where the State has in place a system of individual exemptions, it may not refuse
to extend that system to cases of “religious hardship” without compelling reason.
Employment Division v. Smith (U.S. 1990)
Page 4 of 10
Whether or not the decisions are that limited, they at least have nothing to do
with an across-the-board criminal prohibition on a particular form of conduct.
Although, as noted earlier, we have sometimes used the Sherbert test to analyze
free exercise challenges to such laws, we have never applied the test to invalidate
one. We conclude today that the sounder approach, and the approach in accord
with the vast majority of our precedents, is to hold the test inapplicable to such
challenges. The government’s ability to enforce generally applicable prohibitions
of socially harmful conduct, like its ability to carry out other aspects of public
policy, “cannot depend on measuring the effects of a governmental action on a
religious objector’s spiritual development.” To make an individual’s obligation to
obey such a law contingent upon the law’s coincidence with his religious beliefs,
except where the State’s interest is “compelling” — permitting him, by virtue of
his beliefs, “to become a law unto himself,” — contradicts both constitutional
tradition and common sense.
The “compelling government interest” requirement seems benign, because it is
familiar from other fields. But using it as the standard that must be met before
the government may accord different treatment on the basis of race, or before the
government may regulate the content of speech, is not remotely comparable to
using it for the purpose asserted here. What it produces in those other fields -equality of treatment, and an unrestricted flow of contending speech — are
constitutional norms; what it would produce here — a private right to ignore
generally applicable laws — is a constitutional anomaly.
Nor is it possible to limit the impact of [Smith & Black’s] proposal by requiring a
“compelling state interest” only when the conduct prohibited is “central” to the
individual’s religion. It is no more appropriate for judges to determine the
“centrality” of religious beliefs before applying a “compelling interest” test in the
free exercise field than it would be for them to determine the “importance” of
ideas before applying the “compelling interest” test in the free speech field. What
principle of law or logic can be brought to bear to contradict a believer’s assertion
that a particular act is “central” to his personal faith? Judging the centrality of
different religious practices is akin to the unacceptable “business of evaluating
the relative merits of differing religious claims.” . . .
If the “compelling interest” test is to be applied at all, then, it must be applied
across the board, to all actions thought to be religiously commanded. Moreover,
if “compelling interest” really means what it says (and watering it down here
would subvert its rigor in the other fields where it is applied), many laws will
not meet the test. Any society adopting such a system would be courting
anarchy, but that danger increases in direct proportion to the society’s diversity
of religious beliefs, and its determination to coerce or suppress none of them.
Precisely because “we are a cosmopolitan nation made up of people of almost
Employment Division v. Smith (U.S. 1990)
Page 5 of 10
every conceivable religious preference,” and precisely because we value and
protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every regulation of
conduct that does not protect an interest of the highest order. The rule [Smith &
Black] favor would open the prospect of constitutionally required religious
exemptions from civic obligations of almost every conceivable kind — ranging
from compulsory military service, to the payment of taxes, to health and safety
regulation such as manslaughter and child neglect laws, compulsory vaccination
laws, drug laws, and traffic laws; to social welfare legislation such as minimum
wage laws, child labor laws, animal cruelty laws, environmental protection laws,
and laws providing for equality of opportunity for the races. The First
Amendment’s protection of religious liberty does not require this.
Values that are protected against government interference through enshrinement
in the Bill of Rights are not thereby banished from the political process. Just as a
society that believes in the negative protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively foster the dissemination of
the printed word, so also a society that believes in the negative protection
accorded to religious belief can be expected to be solicitous of that value in its
legislation as well. It is therefore not surprising that a number of States have
made an exception to their drug laws for sacramental peyote use. But to say that
a nondiscriminatory religious practice exemption is permitted, or even that it is
desirable, is not to say that it is constitutionally required, and that the
appropriate occasions for its creation can be discerned by the courts. It may fairly
be said that leaving accommodation to the political process will place at a
relative disadvantage those religious practices that are not widely engaged in;
but that unavoidable consequence of democratic government must be preferred
to a system in which each conscience is a law unto itself or in which judges
weigh the social importance of all laws against the centrality of all religious
beliefs.
****
Because [Smith & Black’s] ingestion of peyote was prohibited under Oregon law,
and because that prohibition is constitutional, Oregon may, consistent with the
Free Exercise Clause, deny [Smith & Black] unemployment compensation when
their dismissal results from use of the drug. The decision of the Oregon Supreme
Court is accordingly reversed.
Employment Division v. Smith (U.S. 1990)
Page 6 of 10
Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
This Court over the years painstakingly has developed a consistent and exacting
standard to test the constitutionality of a state statute that burdens the free
exercise of religion. Such a statute may stand only if the law in general, and the
State’s refusal to allow a religious exemption in particular, are justified by a
compelling interest that cannot be served by less restrictive means.
Until today, I thought this was a settled and inviolate principle of this Court’s
First Amendment jurisprudence. The majority, however, perfunctorily dismisses
it as a “constitutional anomaly.” . . . The Court discards leading free exercise
cases such as . . . Wisconsin v. Yoder, (1972), as “hybrid.” The Court views
traditional free exercise analysis as somehow inapplicable to criminal
prohibitions (as opposed to conditions on the receipt of benefits), and to state
laws of general applicability (as opposed, presumably, to laws that expressly
single out religious practices). . . .
This distorted view of our precedents leads the majority to conclude that strict
scrutiny of a state law burdening the free exercise of religion is a “luxury” that a
well-ordered society cannot afford, and that the repression of minority religions
is an “unavoidable consequence of democratic government.” I do not believe the
Founders thought their dearly bought freedom from religious persecution a
“luxury,” but an essential element of liberty — and they could not have thought
religious intolerance “unavoidable,” for they drafted the Religion Clauses
precisely in order to avoid that intolerance. . . .
I
In weighing [Smith & Black’s] clear interest in the free exercise of their religion
against Oregon’s asserted interest in enforcing its drug laws, it is important to
articulate in precise terms the state interest involved. It is not the State’s broad
interest in fighting the critical “war on drugs” that must be weighed against
[Smith & Black’s] claim, but the State’s narrow interest in refusing to make an
exception for the religious, ceremonial use of peyote. . . .
The State’s interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest if it does not, in
fact, attempt to enforce that prohibition. In this case, the State actually has not
evinced any concrete interest in enforcing its drug laws against religious users of
peyote. Oregon has never sought to prosecute [Smith & Black], and does not
Employment Division v. Smith (U.S. 1990)
Page 7 of 10
claim that it has made significant enforcement efforts against other religious
users of peyote. The State’s asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. But a government interest in
“symbolism, even symbolism for so worthy a cause as the abolition of unlawful
drugs,” cannot suffice to abrogate the constitutional rights of individuals.
Similarly, this Court’s prior decisions have not allowed a government to rely on
mere speculation about potential harms, but have demanded evidentiary
support for a refusal to allow a religious exception. In this case, the State’s
justification for refusing to recognize an exception to its criminal laws for
religious peyote use is entirely speculative.
The State proclaims an interest in protecting the health and safety of its citizens
from the dangers of unlawful drugs. It offers, however, no evidence that the
religious use of peyote has ever harmed anyone. . . .
The fact that peyote is classified as a . . . controlled substance does not, by itself,
show that any and all uses of peyote, in any circumstance, …
Purchase answer to see full
attachment