By Tom Watson

Violations of the Free Exercise Clause of the First Amendment normally involve a person being denied the ability to practice his or her religion of choice, and the tenets of that religion.  Typically, violations of the Free Exercise Clause are redressed under civil law, and that is where case law precedent is to be found.

It is well settled that a person cannot violate criminal laws and escape prosecution by claiming that he or she did so to practice their religion.  For example, bigamy charges cannot be escaped because one’s religion advocates the practice, nor can peyote smoking by Native Americans escape the drug laws.

The question presented herein appears to be one of first impression: can the Free Exercise Clause be implicated in a criminal prosecution?  Or, more specifically, in a criminal prosecution, can a criminal defendant’s Free Exercise rights be violated when his expression on his belief in God is then used to violate his Fourteenth Amendment rights to Due Process and Equal Protection of the Law, and his Sixth Amendment rights to Effective Assistance of Counsel and a Fair and Speedy Trial by Jury?

It is generally accepted that the right of free exercise of religion under the First Amendment is “first and foremost, the right to believe and profess whatever religious doctrine one desires.”  (See Employment Division, Department of Human Resources of Oregon v. Smith, (1990) 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876; Jane L. V. Bangerter, (D.Utah 1992) 794 F.Supp. 1537, 1546.)

Based on this principle, when a criminal defendant who is unhappy with his court appointed attorney, and has unsuccessfully attempted to have this court appointed attorney replaced, becomes frustrated and finally tells the court appointed replaced, that he has no faith in the attorney, but that he believes in God and, “God is in control and would help him,” the question is then: Has this defendant simply exercised his free exercise right to profess his belief in God?  Or, can the government use this profession of a belief in God against him in a criminal prosecution to deny or violate other constitutional rights?

The defendant’s dissatisfaction in the court appointed attorney was grounded in a lack of industry on the part of the court appointed and the fact that the statutory deadline of 60 days for the trial to begin had not been waived by a defendant who was demanding his right to a speedy trial, it was day 57, and the court appointed attorney had essentially done nothing and was grossly unprepared for trial.

Using the defendant’s profession of a belief in God, this grossly unprepared attorney, who was desperate for a continuance his client would not agree to, set off a sequence of events to achieve his self-serving need for a delay.  However, this delay, obviously, violated several of the defendant’s constitutional rights.

The court appointed attorney gained his needed delay by using his client’s profession in his belief and trust in god as a basis for requesting the trial court to conduct competency proceedings.

This court appointed attorney knew full well that a competency proceeding would delay the pending trial for several months, and the attorney would not need the defendant to waive his rights.  In fact, the defendant has no say whatsoever in the matter.  The defendant's rights would be waived by the court appointed attorney, and the court in complete opposition to the defendant's desires.

Out of this violation of the defendant’s free exercise right to profess a belief and trust in god came several subsequent additional constitutional violations which flowed therefrom.  At the root of the subsequent violations was Ineffective Assistance of Counsel.  Had the court appointed counsel done his job and prepared for trial, the other violations most likely would not have occurred.  Instead, the defendant’s rights to a Fair and Speedy Trial were violated along with his rights to Due Process and Equal Protection of the Laws.

Although this occurred in a criminal prosecution, an area of law the Framers of the Constitution were adamant in keeping religion out of, there is little, if any, modern case law precedent available.  However, this present scenario surely falls squarely within the rationale expressed in modern civil litigation precedent.

In Employment Division v. Smith (complete cite anti), the U.S. Supreme Court discusses the “Free Exercise Plus” exception.  This occurs when government action involves “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as the freedom of speech and of the press.”  (110 S.Ct. At 1601) The Supreme Court then lists many other examples, ibid.

Free Exercise Plus is an exception to the general rule that a facially neutral government act does not violate the Free Exercise Clause merely because it has an incidental effect on religious practice.  The exception exists where governmental actin involves not the Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections. (I.d., see also Nieuwenhuis by Nieuwenhuis v. Delavan-Drien School Dist. Bd. Of Educ (E.D. Wis. 1998) 996 F. Supp. 855.)

In Employment Division v. Smith, the Supreme Court quoted, “Cf. Roberts v. United States Jaycees, 468 U.S. 609, 612, 104 S.Ct. 3244.  3251-52, 82 L.Ed. 2d 462 (1984) (‘An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort towards those ends were not also guaranteed’).”  (110 S.Ct. 1602.)

Thus, even though under proper circumstances a competency determination would be a valid and facially neutral government act.  When used at the eleventh hour before trial in conjunction with the defendant’s profession of a belief in God for the sole purpose of delaying the pending criminal trial, it is no longer a neutral governmental act, and the “Free Exercise Plus” exception surely must apply.

This case represents just such a hybrid situation as the Supreme Court held in Employment Division v. Smith to violate a person’s Free Exercise Clause rights by violating “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, . . .”  (110 S.Ct. At 1601)  In fact, this case went a step further: the Free Exercise Clause expression was used directly to violate those other constitutional protections.

In the present case, the defendant used his Free Exercise right to express his belief in God to his court appointed attorney.  That attorney then used his power as an officer of the court to use the defendant’s Free Exercise expression to set off a chain of events that resulted in the defendant being denied several additional constitutional rights normally guaranteed to criminal defendants.  Thus consummating one of the worst fears of the Framers of our Constitution.

Tom Watson
September 9, 2005

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