Ethical Veganism should be protected under the free exercise and establishment clauses of the US Constitution

Ethical Veganism should be protected under the Free Exercise Clause of the First Amendment to the US Constitution. Ethical Veganism, as opposed to veganism,[i] sets forth beliefs that justify the practice. These beliefs are moral or ethical in nature, not social or political. Because this ethical way of life is based on the belief in the equality of all animals, and because it creates a moral duty to eradicate unnecessary suffering through personal actions, which encompass the entire scope of human existence, from what to eat to what to use to what to wear, Ethical Veganism meets the US Supreme Court’s jurisprudential determinations of religious practice.

A California Court Of Appeals recently confirmed this proposition, taking care to state that it “did not resolve the question of whether a vegan lifestyle that results from a religious belief otherwise meeting the standard”[ii] in the regulation at hand would be protected as free exercise. However, that Court denied protection to the Ethical Vegan plaintiff. That Court’s holding was misguided under current religious clauses jurisprudence.

The Supreme Court’s consistent refusal to define religion is grounded in a similar refusal at the drafting of the US Constitution. There should not and cannot be a definition of religion. There are several reasons for not defining religion.

A definition of religion might be either too broad or too narrow; thus, would include or exclude too many people. The very act of defining religion would violate the Establishment Clause by allowing the state to draw the line between those it will protect and those it will not. Defining religion may not be possible, as any reasonable person quickly looking through encyclopedias on world religions might gather.

Aside from considerations of content, the process of defining religion necessarily would be arbitrary. Undertaking to inventory and isolate what religions have in common would be of no real use because such a description would not help solve hard cases as it would leave unresolved the matter of what weight to assign to various components.

The Supreme Court has approached cases involving spiritual beliefs on an ad hoc basis. Quoting William James, Justice Jackson wrote that “the essence of religion is in the personal experiences of people.”[iii] Courts should continue to solve disputes involving ethical or moral beliefs on a case by case basis.

The Supreme Court explicitly stated that a belief in a supreme being is not necessary. It recognized that “among religions in this country that do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”[iv]

Writing for the majority in Ballard, Justice Douglas noted that “Heresy trials are foreign to our Constitution.” This fundamental principle was restated in the conscientious objector cases[v] which set forth how to test for what constitutes religious practice.

The test of religious practice is “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption” from combatant training and service in the armed forces under the Universal Military Training and Service Act.[vi] Although the Court explicitly qualified its holding as narrow, it later used the same sincerity test. Many courts have employed this test in a variety of settings.[vii]

The reason for using this test was to effectuate Congressional intent. In Seeger, the Court pointed out that another Act of Congress was based on the same congressional view of what qualifies as religious belief, the Immigration and Nationality Act.[viii] It found that the proper inquiry had to be “essentially objective” and ask whether “the claimed belief occup[ies] the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.”[ix] The Court remarked that the role of selective service boards and the role of courts was not to reject incomprehensible beliefs but rather the judicial and administrative roles were to “decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.”[x] The Court again held that a belief in a supreme being was not necessary so long as the belief held was held with the strength of a traditional religious conviction.

The Court did not question the sincerity of Daniel Seeger’s belief in the immorality of killing because of the strength of his belief. Seeger’s acknowledgment of some power manifest in nature came within the statutory test for exemption. Justice Douglas pointed out that “when the Act was adopted in 1948 we were a nation of Buddhists, Confucianists, and Taoists, as well as Christians.” Therefore, Congress could not have intended to limit the protected concept of a supreme being to a narrow understanding.

In 1970, the Supreme Court continued to expand its views of what constitutes a religious belief by extending free exercise clause protection to Elliott Welsh who held purely ethical views imposing on him a duty of conscience to refrain from participating in war.[xi] Elliott Welsh stated that he saw “that the military complex wastes both human and material resources, that it fosters disregard for (what [he] consider[ed] a paramount concern) human needs and ends … that the means we employ to ‘defend’ our ‘way of life’ profoundly change that way of life.”[xii] The Court noted that in his original application he had “stated that he did not believe in a Supreme Being, but in a letter to his local board … he requested that his original answer be stricken and the question left open.”[xiii]

Welsh can be read as the Court’s continued, though more explicit, assertion that ethics are on equal footing with religion for free exercise purposes. In the eyes of the law, religious practices include secular practices.

To find a practice to be less spiritual because of political activities not only contravenes the First Amendment’s Establishment and Free Exercise clauses, but also flies in the face of history and common sense, as religious affiliations never deprive practitioners of First Amendment Free Speech Rights.

Indeed, sometimes religion encourages protest activities. Sometimes religious affiliation even mandates the exercise of free speech, as with Jehovah Witnesses’ door to door activities. Religion may even require abstention from civic duties, such as recusal from jury duty by individuals who cannot impose the death penalty.

Justice Scalia has emphasized that supreme court cases “in no way imply that the Establishment Clause forbids legislators merely to act upon their religious convictions. We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved … [p]olitical activism by the religiously motivated is part of our heritage.”[xiv]

The Congressional intent found by the Supreme Court in deciding free exercise questions consistently refers to the Constitutional design of freedom of religion which means mostly freedom from state interference in matters of religion but also requires the state to abstain from favoritism of any faith or group of creeds, whether that favoritism takes place directly or indirectly. For example, nondenominational prayer at collegial ceremonies favors a theistic worldview to the detriment of those who hold a different system of beliefs, which are no less deserving of protection because they do not acknowledge a supreme being.

This case started with the rescission of Jerry Friedman’s employment offer after he refused to be administered the mumps vaccine, which is grown in chicken embryos. He had been filling the position for a year as a temporary employee. Even though reasonable and satisfying accommodations could be made, he was discharged. Alternatives to satisfy the goals of the mumps vaccination requirement without violating his conscience were discussed and accepted by his direct supervisor, especially since the time and expense associated with the plan would be borne by Jerry Friedman. Yet, Kaiser Permanente terminated his employment. Friedman brought suit for violation of his First Amendment Right to Free Exercise.

Jerry Friedman’s complaint sets forth the sincerity, strength and centrality of his belief. He believes

that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans. [Thus, he] cannot eat any animal based substances, such as meat, milk products, eggs, honey, or any other food which contains ingredients derived from or tested on animals, [he] cannot use products which have been tested for human safety on animals or which derive any of their ingredients from animals. [He] assert[ed] that these views [were] spiritual in nature, that he [held] them with the strength of traditional religious views, that [his] views were so strong that he had even been arrested for civil disobedience actions at animal rights demonstrations, that these beliefs occupy a position in [his] life parallel to that filled by God in traditionally religious individuals.[xv]

No reasonable trier of fact would question Jerry’s sincerity. Even though the California Court of Appeals had to assume his sincerity at law, it nevertheless wrongfully denied that his practice deserved First Amendment protection. Given how Jerry Friedman’s belief affects his entire life, the Court could not find against him because his practice failed the centrality prong of the Seeger test. Rather, it used another test, one that Elliot Welsh would not have passed either.

The California Court of Appeals used a Third Circuit Court of Appeals inquiry to mold a definition of religion that would not allow inclusion of Jerry’s practice undeserving of protection. In the nonauthoritative, nonbonding precedent used, Judge Adams set forth indicia to help determine whether a practice was religious.[xvi] These questions were never meant to constitute a definition of religion. As we have already seen, such a definition would be unconstitutional.

Only one Supreme Court opinion has cited Malnak. It has not done so to glorify Judge Adams’s indicia, or even to mention them.[xvii] On the contrary, the Court quoted that "[C]oncepts concerning God or a supreme being of some sort are manifestly religious.... These concepts do not shed that religiosity merely because they are presented as a philosophy or as a science."[xviii]

Judge Adams himself cautioned that the indicia “should not be thought of as a final ‘test’ for religion.” [xix] Note also that he was enamored with doing away with “ad hoc justice,”[xx] an ambition irreconcilable with Supreme Court jurisprudence and its case by case approach.

Malnak also should be dealt with cautiously because it rests on rare facts. The plaintiff was not claiming protection for his practice under any religious clause. On the contrary, the plaintiff did not even believe his teachings were religious. Nevertheless, the Third Circuit found that the teaching of Transcendental Meditation violated the Establishment clause and enjoined it from New Jersey public high schools.

Despite the academic debate about whether a unitary or a dual approach to these clauses is most appropriate, the Supreme Court has not directly addressed the question. However, in practice it has differentiated between the two. Further, the trend in its interpretation of the First Amendment has been to separate out clauses. For example, free speech and free press are interpreted differently.

The Malnak Court advocated a unitary approach to the religion clauses of the First Amendment. Even if one approach is to be preferred, the Supreme Court, not a three judge panel for the Third Circuit, should set the preference and explain why it is constitutional.

Favoritism violates the Establishment clause. To require membership in a recognized religion before honoring vegan practices violates that principle as well as the 14^th Amendment’s Equal Protection provision.

If Jerry Friedman had been Buddhist, his refusal to be administered the mumps vaccine, which is grown in chicken embryos, would have been protected. The Court would not have inquired into whether all Buddhists were vegetarian. The mere knowledge of affiliation with an established religion would have sufficed.

Jerry Friedman’s compassion is no less sincere and held with no less strength, nor is it less central to his life because he is not affiliated with an organized religion. To require such affiliation would hinder the formation of new religions.

The difference between Elliott Welsh and Jerry Friedman is not even one of degree. The exemption from military service is complete. It is not merely a careful assignment of duty to a post not requiring the conscientious objector to kill. Perhaps Congress realized that to the human conscience there is no difference between a direct and an indirect killing. The Supreme Court seemed to acknowledge this when it held that the military service exemption was for “all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.”[xxi]

Likewise, Jerry Friedman’s acceptance of the mumps vaccine would make him a part of animal exploitation and suffering, a cog in the very machinery against compassion for sentient beings that he spends so much effort undermining. His conscience would torture him for taking such a part, much like it would have tortured an abortion opponent for taking a vaccine grown in a human embryo.

The California Court of Appeals’ decision that Jerry Friedman’s refusal to be administered the mumps vaccine did not constitute a religious practice was wrong because Jerry Friedman’s practice met the sincerity and centrality test set forth by the Supreme Court, and because to deny his practice is not consistent with constitutional principles nor is it in line with constitutional objectives. The Court’s use of the Malnak case was an unacceptable departure from First Amendment jurisprudence. The decision should be overturned.

[i] Some people abstain from using animal products because of medical concerns, others to promote individual health or beauty. Vegans, however, shun all uses of animals, not just their use as food, but also their use for entertainment, clothing, research, etc. This article distinguishes between ethical vegans and vegans only to accommodate the vegan who would go through the trouble solely out of intellectual conclusions not attached to spirituality. Even such a position would be at least as protected as atheism.

[vii] For example, the Eight Circuit upheld Frances Quarring’s exemption from the driver’s license picture requirement based on her literal reading of the Bible’s Second Commandment and her application of that belief to her life. Quarring v. Peterson, 728 F.2d 1121 (8^th Cir. 1984).

[xiv] Edwards v. Aguillard, 482 US 578, 615 (Scalia, J., dissenting). He also pointed out that “today’s religious activism may give us the Balanced Treatment Act, but yesterday’s resulted in the abolition of slavery, and tomorrow’s may bring relief for famine victims.” Id.

I. Determining What Religious Practice is Without Violating Constitutional Principles