Interpreting the Free-Exercise Clause: An Overview

Claire Mullally

Claire Mullally practiced law in New York City and Nashville, specializing in intellectual property law. She is now in the legal research department at the First Amendment Center, where she has studied and reported on the legal and cultural history of film censorship in the United States.

In the following article Mullally discusses the second of the two clauses in the First Amendment dealing with religious liberties—the free-exercise clause. She points out that conflict arises regarding this clause when laws that are religiously neutral have the unintended effect of interfering with religious practices. She then traces the history of free-exercise court cases that have attempted to address this issue. The first clash between state and church was Reynolds v. United States (1878), in which the Court decided that state concerns took precedence over Mormon religious practices. After the Cantwell v. Connecticut (1940) decision ruled that the free-exercise clause is applicable to the states, many more cases came to the Supreme Court. In Sherbert v. Verner (1963), the Court adopted the "compelling interest" standard, which holds that the government must have a compelling interest, such as national security, in order to limit someone's religious practices. One other case, Wisconsin v. Yoder (1972), reaffirmed the earlier Sherbert decision and held that a law that appears neutral to religion may actually violate the First Amendment if it burdens a religious practice.

Source

Claire Mullally, "Free-Exercise Clause," www.firstamendmentcenter.org, July 5, 2003. Copyright © 2003 by the First Amendment Center. Reproduced by permission.

Mullally says there was a revolution in free-exercise cases in the 1990 Employment Division v. Smith decision. The Court softened its stand toward government, allowing it to refuse to give people exemptions to laws that unintentionally hamper religion. This was a controversial decision because it abandoned the "compelling interest" standard. Since then, more than fifty free-exercise cases have been decided against religious groups and individuals. The Religious Freedom Restoration Act (RFRA), an attempt to reestablish the "compelling interest" standard, was passed by Congress but was struck down by the Supreme Court as it applied to state and local governments. Several states have passed their own RFRAs, but the level of protection under the free-exercise clause remains uncertain.

Primary Source Text

The free-exercise clause pertains to the right to freely exercise one's religion. It states that the government shall make no law prohibiting the free exercise of religion.

Although the text is absolute, the courts place some limits on the exercise of religion. For example, courts would not hold that the First Amendment protects human sacrifice even if some religion required it. The Supreme Court has interpreted this clause so that the freedom to believe is absolute, but the ability to act on those beliefs is not.

Questions of free exercise usually arise when a citizen's civic obligation to comply with a law conflicts with that citizen's religious beliefs or practices. If a law specifically singled out a specific religion or particular religious practice, under current Supreme Court rulings it would violate the First Amendment. Controversy arises when a law is generally applicable and religiously neutral but nevertheless has the "accidental" or "unintentional" effect of interfering with a particular religious practice or belief.

The Supreme Court has been closely divided on this issue. In its 1990 decision Employment Division v. Smith, the Court greatly narrowed a 35-year-old constitutional doctrine that had required a government entity to prove that it had a "compelling interest" whenever a generally applicable law was found to infringe on a claimant's religious beliefs or practices. Under current constitutional law as explained in Smith, a government burden on a religious belief or practice requires little justification as long as the law in question is determined to be generally applicable and does not target a specific religion or religious practice. The Court in 1993 clarified how these principles were to apply in Church of the Lukumi Babalu Aye v. City of Hialeah. There, the Court closely analyzed a facially neutral and generally applicable law and determined that it was neither neutral nor generally applicable. Since the law burdened a religious practice (here the animal sacrifice ritual of the Santeria religion), the government would have to demonstrate that it had a compelling interest in passing the law. The Court would then "strictly scrutinize" the government's claims. In Hialeah, the government could not meet this burden and the law was struck down.

Early Court Decisions

The first Supreme Court case that addressed the issue of free exercise was Reynolds v. U.S. (1878), in which the Court upheld a federal law banning polygamy over objections by Mormons who claimed that the practice was their religious duty. The Court in Reynolds distinguished between religious belief and religious conduct or action, stating that Congress was "deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive to good order." Recognizing the religious defense, the Court said, would "permit every citizen to become a law unto himself." While the government could not punish citizens because of their religious beliefs, it could regulate religiously motivated conduct, provided that it had a rational basis for doing so. This "rational basis test" became the standard for determining whether a law that impinged on a religious practice violated the free-exercise clause. As that standard was easy for the government to satisfy, for almost a century the courts generally rejected religious-freedom claims against generally applicable laws.

It is important to note also that until the decision of Cantwell v. Connecticut (1940), opened the door to federal litigation against the states for religion-clause claims (by ruling that the 14th Amendment's protections against state action "incorporates" or absorbs, the free-exercise clause of the First Amendment) there was no cause of action against the state for laws that may have impinged on religious practices. In effect, the Supreme Court did not have opportunity to review this issue until the mid-20th century, when various free-exercise clause cases made their way through the state courts to the Supreme Court.

In its 1963 decision Sherbert v. Verner, the Supreme Court found that the Constitution afforded at least some degree of government accommodation of religious practices. Adele Sherbert, a Seventh-day Adventist, was discharged by her South Carolina employer because she would not work on Saturday, her faith's Sabbath. When she could not find other employment that would not require her to work on Saturday, she filed a claim for unemployment benefits. South Carolina law provided that a person was ineligible for benefits if he or she failed, without good cause, to accept available suitable employment when offered. The state denied Sherbert benefits, saying she had not accepted suitable employment when offered, even though she was required to work on her Sabbath. The decision was upheld by the South Carolina Supreme Court.

The U.S. Supreme Court reversed the state court decision. Justice William Brennan wrote that although the Court had theretofore "rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs and principles," the conduct or actions so regulated had "invariably posed some substantial threat to public safety, peace or order." Since Sherbert's "conscientious objection to Saturday work" was not "conduct within the reach of state legislation," any law that resulted in an incidental burden to the free exercise of her religion must be justified by a "compelling state interest in the regulation of a subject within the State's power to regulate."

Thus, in Sherbert, the Court adopted a "compelling interest" standard that government must meet when a generally applicable law unintentionally burdened a claimant's religious practices and beliefs. The state in Sherbert could not demonstrate such compelling interest: the mere possibility that allowing exemptions to the unemployment compensation laws for Saturday worshipers might result in fraudulent or spurious claims was not sufficiently compelling, the Court reasoned. Even if an increase in fraudulent claims could be proved, the state would nevertheless have to show that no alternative regulations could "combat such abuses without infringing First Amendment rights," thus also introducing a doctrine requiring the government to demonstrate that it used the "least restrictive" means when enacting legislation that burdened a religious belief or practice.

It is interesting and important to note the legal and social context in which Justice Brennan articulated this "compelling state interest" standard for free-exercise clause claims. The civil rights litigation of the 1950s and 1960s had greatly informed the Court's perspective. It had become clear to Brennan that the Court must give a "heightened scrutiny" to cases in which fundamental rights were at stake and require the state to demonstrate that the law in question served only interests that were of paramount importance. A law having a merely "rational," "important," "valid" or "legitimate" purpose could not withstand a claim that it infringed on a fundamental right.

In 1972, the Court reaffirmed that a generally applicable law, "neutral on its face" may nonetheless violate the First Amendment if such law "unduly burdens the practice of religion." In Wisconsin v. Yoder, the Court held that the state's interest in requiring a child's compulsory attendance at school through age 16, though important, could not withstand a free-exercise claim by members of the Amish religious sect. An Amish family claimed that requiring their children to attend public schools after age 14 would expose them to "wordly influences" against their traditionalist beliefs and undermine the insular Amish community. The Court in Yoder noted that the purpose of mandatory education was to develop a productive, self-reliant citizenry, but that the state's purpose must be examined in light of the particular circumstances of the case. Since the Amish had a 200-year tradition of training their adolescents to be productive members of their "separated agrarian" community, the government's interests could still be achieved by requiring education only through age 14. This would obviate the burden to the Amish community's right to freely exercise its religion, while the state's overriding interest would still be served. In a clear statement of its doctrine, the Court in Yoder held that "[o]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."

After Sherbert and Yoder, the Court applied the religious-exemption doctrine by examining two questions: Has the government significantly burdened a sincerely motivated religious practice? If so, is the burden justified by a compelling state interest? Increasingly, however, the Court narrowed the concept of a "significant burden" to religion and in a series of decisions throughout the 1980s, the Court rejected many free-exercise claims on this basis. The Court also became more willing to label state interests as "compelling" in cases where religious practice was significantly burdened by a general law.

A Huge Change in Court Rulings

It was clear that the Supreme Court was struggling with the issue of requiring accommodations based on the compelling-interest standard. In its 1990 decision Employment Division v. Smith, still a highly controversial opinion, the Court ruled that it would no longer give heightened scrutiny to the government's refusal to grant exemptions to generally applicable laws that unintentionally burden religious beliefs or practices.

In Smith, two counselors were fired from their jobs with a private drug rehabilitation organization because they ingested peyote at a ceremony of the Native American Church. The two men, members of the Native American Church, were determined to be ineligible for unemployment benefits because they had been fired for work-related "misconduct." The Oregon Supreme Court held that the prohibition against sacramental peyote use was invalid under the free-exercise clause and thus the men could not be denied unemployment benefits for such use. The U.S. Supreme Court held that the free-exercise clause permits the state to prohibit sacramental peyote use and the state can thus deny unemployment benefits to persons discharged for such use.

Justice Antonin Scalia, writing for the majority, declined to apply the balancing test of Sherbert v. Verner, greatly limiting the scope of that precedent. Instead Scalia reached back to the early opinion in Reynolds v. U.S. (the polygamy case), claiming that to require the government to show a "compelling interest" in enforcing a generally applicable law when such a law impedes on religiously motivated conduct permits the individual "to become a law unto himself," "invites anarchy" and would produce a "constitutional anomaly." It would, Scalia claimed, make a citizen's obligation to obey the law contingent on his religious beliefs. Scalia found that the Court had never in fact invalidated any government action on the basis of the Sherbert compelling-interest test except the denial of unemployment compensation (that Smith was itself an unemployment compensation case is not addressed in the decision). Scalia further stated that the only decisions in which the Court had held that the First Amendment barred the application of a generally applicable law to religiously motivated conduct involved not just free-exercise clause claims, but those claims in conjunction with other constitutional protections, such as freedom of speech and the press or the right of parents to direct the education of their children (Yoder). The Smith case, the Court said, did not involve such a "hybrid situation."

Justice Sandra Day O'Connor, although concurring in the outcome, vigorously disagreed with the Court's abandonment of the "compelling interest" standard, as did Justice Harry Blackmun in the dissent. O'Connor reasoned that the free-exercise clause provides relief from a burden imposed by government whether the burden is imposed directly through laws that prohibit specific religious practices, which would be clearly unconstitutional, or indirectly through laws that "in effect make abandonment of one's own religion . . . the price of an equal place in society."

Recent Free-Exercise Cases

In the three years following Smith, more than 50 reported free-exercise cases were decided against religious groups and individuals. As a result, more than 60 religious and civil liberties groups, including the American Civil Liberties Union, Concerned Women for America, People for the American Way and the National Association of Evangelicals, joined to draft and support the passage of the Religious Freedom Restoration Act—or RFRA. The act, which was signed by President [Bill] Clinton on Nov. 17, 1993, restored the compelling-interest test and ensured its application in all cases where religious exercise is substantially burdened.

Also in 1993, the Supreme Court re-visited the religious exemption issue in City of Hialeah. After a Santeria church announced plans to establish a house of worship in Hialeah [Florida], the city enacted an ordinance prohibiting the ritual slaughter or sacrifice of animals, which is one of the religion's principal forms of devotion. The Supreme Court found that the history of the ordinance showed that it specifically targeted the Santeria practice of animal sacrifice while providing numerous exemptions for other instances of animal slaughter, including Kosher slaughter. Since the ordinance both burdened religious practice and was neither neutral nor generally applicable, the Court would apply "strict scrutiny" and the "compelling interest" standard to the city's actions. The ordinances could not withstand such scrutiny, the Court stated, holding them invalid under the free-exercise clause.

After City of Hialeah, the inquiry into whether a law is in fact "neutral" and "generally applicable" has provided claimants with ammunition in free-exercise clause claims. . . . Many "general" laws provide categorical exceptions of one kind or another. Arguably, once a legislature has carved out an exemption for a secular group or person, the law is no longer "generally applicable," and thus subject to the City of Hialeah standard of strict scrutiny. Similarly, a claimant may prevail if he can prove that a law of general applicability that burdens religion is unevenly enforced. . . . However, some lower courts have interpreted City of Hialeah to mean that religious claimants must demonstrate an anti-religious motive when challenging a law that on its face is generally applicable, a difficult standard to prove.

While widely supported, RFRA was short-lived. On June 25, 1997, the Supreme Court, by a vote of 6-3, struck down the act as applied to state and local governments. The Court in City of Boerne v. Flores held that Congress overstepped its bounds by forcing states to provide more protection for religious liberty than the First Amendment, as interpreted by the Supreme Court in Employment Division v. Smith, required. While RFRA no longer applies to the states, it is still applicable to the federal government, as seen recently in several district court decisions.

In 2000, President Clinton signed the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which mandates the use of the compelling-interest and least-restrictive means standards for free-exercise cases that involve infringements on religion from land-use laws and to persons institutionalized in prisons, hospitals and retirement or nursing homes. Cases challenging the constitutionality of RLUIPA are also making their way through the federal appellate courts. . . .

Eleven states have passed their own RFRAs, all of which reinstate the compelling-interest test to varying degrees. In other states—such as Minnesota, Massachusetts and Wisconsin—the courts have held that the compelling-interest test is applicable to religion claims by virtue of their own state constitutions. In many states, however, the level of protection that applies to free-exercise claims is uncertain.

The jurisprudence regarding religious exemptions to generally applicable laws is clearly still in flux, providing an uneven and uncertain patchwork of protections to religious adherents.