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Subject Area: Political Theory

Protection of Dissenting Belief - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Protection of Dissenting Belief

Peter J. Riga

“Yoder and the Free Exercise of Religion.” Journal of Law and Education 6 (October 1977): 419–472.

The Supreme Court decision in Wisconsin v. Yoder (1972) represents a great revolution in the area of free exercise of religion. Riga develops this theme by tracing the relationship between religion and education from the earliest days of the Republic to its current adjudications. Considerable attention is given to the question of state interest in education and the Court's various rationales for this interest.

Reynolds v. United States (1878) introduced a belief-action distinction enabling the Court to uphold a conviction against practicing polygamy. The Court upheld conviction of a practice said to be a tenet of the Mormon religion, by saying that the First Amendment classified opinion as absolute but that some actions were not absolutely protected since they could violate and subvert social order. However, the Court provided no practical test to distinguish actions which were from those which were not protected by the First Amendment. In the 1940 case of Cantwell v. Connecticut, the Court moved from a somewhat obfuscating “belief-action” criterion to a “clear and present danger” standard. Later, in Prince v. Massachusetts (1943), the Court refused to apply the latter standard in a case involving a member of a religious cult who claimed it a religious duty to violate the child labor law. In this case, the Court apparently made a decision without justifying it by showing how it followed from balancing interests. However, the clear and present danger test was reaffirmed in a number of subsequent decisions.

One of the troublesome issues of the Yoder case is that the Court involved itself in determining whether the religious beliefs professed were truly held. Justice Douglas recognized this to be a step backward from the more liberal standards expressed in United States v. Seeger (1965) and Welsh v. United States (1970). In these cases the Court had extended military exemption to nontheists who opposed the war for philosophical rather than religious reasons. Justice Douglas could see no reason to refuse a similar exemption from secondary education. The nontheist should be no less protected than a religious dissenter from claiming a bona fide exemption.

The Court did not face the distinction between a philosophy and a strong commitment to an established religious belief. Nevertheless, the issue is important since it is quite apparent that a judicial category which requires membership in an organized traditional religious group as a condition for exercise of First Amendment rights is constitutionally suspect.