Abstract
Since the late nineteenth century, two trends have characterized court cases about the right to practise minority religions in the United States. First, white adherents are usually the subject of the most pivotal cases about the freedom to engage in minority religious practices. Second, appellate courts frequently rule against these litigants, for a variety of reasons ranging from the preservation of European norms to doubts about the sincerity of the practitioner’s beliefs. Through the examination of cases about religious drug use, animal sacrifice, and religious head-coverings, this chapter explores the relationship between race and the right to practise minority religions in the United States and the subtext about the boundaries of whiteness embedded in these free exercise cases.
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Notes
- 1.
Interestingly, however, the California Supreme Court had observed in People v. Woody that the Native American Church had no official membership requirements or registers, and that estimates of membership numbers varied widely. Yet, the Court expressed no qualms about nonmembers engaging in peyote use. In fact, when this issue of sacramental use of peyote later came before the Supreme Court in 1990, the litigation was brought by a nonmember and an individual whose membership was disputed.
- 2.
Although the Church was not incorporated until the early twentieth century, the use of peyote to produce a particular state of consciousness has been a component of indigenous religious ceremonies for centuries.
- 3.
The Supreme Court developed a bizarre interpretation of previous cases, stating that the compelling interest standard only applied in “hybrid cases”- those where more than one constitutional right was at issue, such as the free speech or free association, alongside religious freedom.
- 4.
Specifically, O’Brien notes that after Cuba became independent, a “new nationalism resulted in a campaign of Europeanization that denigrated the African heritage of the island… The campaign to de-Africanize Cuba led, once again, to the persecution of santeros, the confiscation of religious paraphernalia, and the enactment of laws forbidding the use of ritual bata drums.”
- 5.
Ironically, O’Brien notes that many have argued that Batista was a Santería practitioner.
- 6.
Some Santería practitioners opposed the revolution and left when Castro came to power but the majority of practitioners, particularly those who were poor and black, stayed behind.
- 7.
This is not to suggest that Castro’s regime unquestionably embraced Afro-Cuban religions but rather that they were brought into the public sphere in ways they had not been prior to the revolution.
- 8.
Specifically, Brandon notes that in 1970, the last year for which this kind of data is available, 96 percent of Cubans in the United States were white. O’Brien adds that the first wave of Cubans were “predominantly white middle-to upper-class professionals” while those after Mariel were “black Cubans from the lower socioeconomic strata of society.”
- 9.
O’Brien notes the socio-economic diversity of the Mariel boatlift Cubans and that “drug dealing and killings skyrocketed by almost 20 percent in Miami-Dade county” after the boatlift.
- 10.
I have been unable to locate any materials indicating the exactly ethnic origins of Freeman. However, police records from prior domestic abuse allegations list Freeman as a white female.
- 11.
None of the court records indicate Mr. Freeman’s race nor ethnic origins. However, a man purporting to be Mr. Freeman has established a website at freemancase.com wherein he features photos of himself that clearly show a person of African descent and he claims that he was born in Winter Park, Florida.
- 12.
Aliah Abdo (2008) has pointed out that this is not something that is typically done when dealing with Christian litigants disputing analogous issues (492).
- 13.
This information is based on Malik Freeman’s own website describing his background.
- 14.
Yildirim explains that the public was wondering, “When the U.S. military was in Afghanistan liberating Afghani women from their burqas, how could an all-American woman go to such lengths to wear one?” (300).
References
Statutes
American Indian Religious Freedom Act, Public Law 95-431, 92 Stat. 469 (August 11, 1978).
American Indian Religious Freedom Act Amendments of 1994, Public Law 103-344, 42 U.S.C. 1996, Section 3(b)(1) and Section 3(c)(3).
Religious Freedom Restoration Act of 1993, 42 USC 2000bb.
Court Cases
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F. Supp. 1522 (1988).
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 723 F. Supp, 1467 (1989).
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
City of Boerne v. Flores, 521 U.S. 507 (1997).
Iowa v. Olsen, July 18, 1984, unpublished decision, available at http://www.ethiopianzioncopticchurch.org/Cases/iowa1984.aspx
People v. Jack Woody, 61 Cal.2d 716 (1964).
Reynolds v. United States, 98 U.S. 145 (1878).
“State Religious Freedom Restoration Acts,” National Conference of State Legislatures. http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx
Sultaana Lakiana Myke Freeman v. Department of Highway Safety and Motor Vehicles, 924 So.2d 48 (2006).
Town v. State, 377 So. 2d 648 (1979), 651.
Television Broadcast
“Holy Smoke,” CBS News—60 Minutes, Volume XII, Number 7, October 28, 1979.
Books and Articles
Abdo, Aliah. 2008. The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf. Hastings Race and Poverty Law Journal 5: 441–507.
Aziz, Sahar. 2012. From the Oppressed to the Terrorist: Muslim American Women in the Crosshairs of Intersectionality. Hastings Race and Poverty Law Journal 9: 191–264.
Brandon, George. 1997. Santería from Africa to the New World: The Dead Sell Memories. Bloomington/Indianapolis: Indiana University Press.
Campbell, Horace. 1987. Rasta and Resistance: From Marcus Garvey to Walter Rodney. Trenton: Africa World Press.
Epps, Garrett. 1998. To an Unknown God: The Hidden History of Employment Division v. Smith. Arizona State Law Journal 30: 953–1021.
Long, Carolyn. 2010. Employment Division, Department of Human Resources of Oregon v. Smith. In Law & Religion: Cases in Context, ed. Leslie Griffin. New York: Aspen Publishers.
Murrell, Nathaniel. 2010. Afro-Caribbean Religions: An Introduction to Their Historical, Cultural, and Sacred Traditions. Philadelphia: Temple University Press.
Norgren, Jill, and Serena Nanda. 1996. American Cultural Pluralism and Law. Westport: Praeger.
O’Brien, David. 2004. Animal Sacrifice & Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah. Lawrence: University of Kansas Press.
Palmié, Stephan. 1993. Which Centre, Whose Margin?: Notes Towards an Archaeology of US Supreme Court Case 91-948, 1993. In Inside and Outside the Law, ed. O. Harris. London: Routledge.
Savishinsky, Neil J. 1994. Transnational Popular Culture and the Global Spread of the Jamaican Rastafarian Movement. New West Indian Guide 68 (3/4): 259–281.
Yildirim, Seval. 2010. Freeman v. Dep’t of Highway Safety & Motor Vehicles and Webb v. City of Philadelphia: Accommodation Tangles in the Laws Over Hair. In Law & Religion: Cases in Context, ed. Leslie Griffin, 293–308. New York: Aspen Publishers.
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Boaz, D.N. (2019). Practices “Odious Among the Northern and Western Nations of Europe”: Whiteness and Religious Freedom in the United States. In: Essed, P., Farquharson, K., Pillay, K., White, E.J. (eds) Relating Worlds of Racism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-78990-3_2
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