Happily, ours is a country dedicated to religious toleration. Among the \u201ccrucial principles of our liberal democracy\u201d is that \u201cAmericans should freely practice their religions, and government should not establish any religion.\u201d Not content to let those principles remain aspirational, we give them legal force in the form of the Free Exercise and Establishment Clauses of the First Amendment. Unhappily, however, ours is also a country with a long history of religious discrimination, from anti-Catholic Blaine Amendments to modern antisemitism and Islamophobia. Religious toleration has not been a triumphant victory but rather a \u201clong struggle.\u201d Perhaps just as happily, ours is a country dedicated to the principle that \u201cit is better for ten guilty people to be set free than for one innocent man to be unjustly imprisoned.\u201d Reflections of that judgment are scattered throughout the Constitution, most notably in the Fifth, Sixth, and Fourteenth Amendments. But it too is often subjugated: police extract confessions, prosecutors bury evidence, defense lawyers hang their clients out to dry, and the innocent are convicted. Sometimes, these values reinforce each other and promote American liberty. The privilege against self-incrimination, for instance, developed largely as a prophylactic to protect freedom of religious beliefs. But their neglect can also be mutually reinforcing\u2014the Salem Witch Trials come to mind. One instance of such a phenomenon is when courts admit evidence of a criminal defendant\u2019s religious beliefs, affiliations, and activities for no purpose other than to show the defendant\u2019s bad character. This phenomenon is perhaps most pernicious when a jury exercises its discretion over the fate of a capital defendant. Using religion to decide who lives and who dies is hardly the mark of \u201ca Nation of unparalleled pluralism and religious tolerance.\u201d Fortunately, courts have recognized that this practice violates the First Amendment. That does not mean, however, that they are willing to invalidate any criminal proceeding conducted without \u201cthe religious neutrality that the Constitution requires.\u201d Instead, they may employ the doctrine of harmless error to affirm convictions and sentences even where the prosecution stoked the flames of religious animus. The harmless error doctrine permits convictions or sentences to be sustained, even in the face of constitutional error, if the error was \u201charmless beyond a reasonable doubt.\u201d Thus, a reviewing court can ignore a constitutional error if it determines that the error was \u201cunimportant and insignificant.\u201d The Supreme Court has noted, however, that \u201csome constitutional rights [are] so basic . . . that their infraction can never be treated as harmless error.\u201d However, it has never provided a precise test for determining which rights fit that category. Nevertheless, it has suggested that one rationale is when \u201cthe right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest.\u201d <\/p>\n\n\n\n
To read this Note, please click here: Murder, Multiple Values, and Harmless Free Exercise Error<\/a><\/a><\/em>.<\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" Happily, ours is a country dedicated to religious toleration. Among the \u201ccrucial principles of our liberal democracy\u201d is that \u201cAmericans should freely practice their religions, and government should not establish any religion.\u201d Not content to let those principles remain aspirational, we give them legal force in the form of the Free Exercise and Establishment Clauses…<\/p>\n","protected":false},"author":55,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[58,13,694,28,698,46,48,696],"tags":[],"class_list":["post-4785","post","type-post","status-publish","format-standard","hentry","category-58","category-archives","category-clr-print-volume-110","category-issue","category-issue-2-clr-print-volume-110","category-notes","category-print","category-print-volume-110"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/4785","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/users\/55"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/comments?post=4785"}],"version-history":[{"count":1,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/4785\/revisions"}],"predecessor-version":[{"id":4787,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/posts\/4785\/revisions\/4787"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/media?parent=4785"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/categories?post=4785"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/lawreview\/wp-json\/wp\/v2\/tags?post=4785"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}