Free Exercise Clause of the First Amendment
Encyclopedia
The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution
. The Establishment Clause and the Free Exercise Clause together read:
In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States
, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice
. The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."
Jehovah's Witnesses
were often the target of such restriction. Several cases involving the Witnesses gave the Court the opportunity to rule on the application of the Free Exercise Clause. Subsequently, the Warren Court
adopted an expansive view of the clause, the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions have reduced the scope of this interpretation.
The first case to closely examine the scope of the Free Exercise Clause was Reynolds v. United States
in 1879. A case dealing with the prosecution of a polygamist under federal law, and the defendant's claim of protection under the Free Exercise Clause, the Court upheld the law and the government's prosecution. This case, which also revived Thomas Jefferson
's statement regarding the "wall of separation" between church and state, introduced the position that although religious exercise is generally protected under the First Amendment
, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.
This interpretation of the Free Exercise Clause continued into the 1960s and the ascendancy of the Warren Court
under chief justice Earl Warren
. Applying a new standard of "strict scrutiny
" in various areas of civil rights law, the Court began to apply this standard to the First Amendment religion clauses as well, reading the Free Exercise Clause to require accommodation of religious conduct except where a state could show a compelling interest and no less burdensome means to achieve that end. One example was Sherbert v. Verner
, where the Court overturned the state Employment Security Commission's decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church
who was forced out of a job after her employer adopted a 6 day work week, which would have required her to work on Saturdays against the dictates of her religion. As Justice William Brennan
stated for the majority, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." This test was used through the years of the Burger Court, including particularly in the landmark case of Wisconsin v. Yoder
(1972).
This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith
. Examining a state prohibition on the use of peyote
, the Supreme Court upheld the law despite the drug's use as part of a religious ritual, and without employing the strict scrutiny test. Instead, the Court again held that a "neutral law of general applicability" generally does not implicate the Free Exercise Clause. This was followed by intense disapproval from Congress and the passage of the Religious Freedom Restoration Act
in 1993 to attempt to restore the prior test. However, in City of Boerne v. Flores
, the Supreme Court struck down the act as well, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the Smith test in place.
. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. The first important victory came in 1938, when in Lovell v. City of Griffin, the Supreme Court held that cities could not require permits for the distribution of pamphlets. In 1939, the Supreme Court decided Schneider v. Town of Irvington, in which it struck down anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets. In 1940, the Court considered Cantwell v. Connecticut
; the plaintiff, a Jehovah's Witness, was charged with soliciting donations without a certificate from the Public Welfare Council. The Council was to grant the certificate only if the organization requesting it was a charity or sponsored a religious cause. The Supreme Court ruled that any law granting a public body the function of determining if a cause is religious or not violates the First Amendment.
In 1940, the Supreme Court would decide in Minersville School District v. Gobitis
that members of the Jehovah's Witnesses in a school could be required to salute the flag. The ruling in Gobitis , however, did not stand for long. In 1943, West Virginia State Board of Education v. Barnette
, the Supreme Court essentially reversed its previous opinion. Justice Frankfurter had, in the Gobitis case, suggested that the Witnesses attempt to reverse the School Board's policy by exercising their vote. In the Barnette case, however, Justice Robert H. Jackson
wrote, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote." The Supreme Court did not rule that the Pledge was unconstitutional; rather, they held that students may not be compelled to recite it.
adopted an expansive view of the Free Exercise Clause. The Court required that states have a "compelling interest" in refusing to accommodate religiously motivated conduct as it decided Sherbert v. Verner
(1963). The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina
because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist
faith. In Wisconsin v. Yoder
(1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.
The "compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith
that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause. In 1993, the Supreme Court revisited the Free Exercise Clause in Church of Lukumi Babalu Aye v. City of Hialeah
. Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería
religion, while providing exceptions for some practices such as the kosher slaughter
of Judaism. Since the ordinance was not "generally applicable," the Court ruled that it was subject to the compelling interest test, which it failed to meet, and was therefore declared unconstitutional.
Also in 1993, Congress passed the Religious Freedom Restoration Act
(RFRA), which sought to restore the "compelling interest" standard. In City of Boerne v. Flores
(1997) the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment, which the courts enjoy sole power to interpret. According to the court's ruling in Gonzales v. UDV
(2006), RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. The Establishment Clause and the Free Exercise Clause together read:
In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States
Reynolds v. United States
Reynolds v. United States, , was a Supreme Court of the United States case that held that religious duty was not a suitable defense to a criminal indictment...
, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice
Human sacrifice
Human sacrifice is the act of killing one or more human beings as part of a religious ritual . Its typology closely parallels the various practices of ritual slaughter of animals and of religious sacrifice in general. Human sacrifice has been practised in various cultures throughout history...
. The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."
Jehovah's Witnesses
Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
were often the target of such restriction. Several cases involving the Witnesses gave the Court the opportunity to rule on the application of the Free Exercise Clause. Subsequently, the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
adopted an expansive view of the clause, the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions have reduced the scope of this interpretation.
Overview
The history of the Supreme Court's interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention, then taking on a relatively narrow view of the governmental restrictions required under the clause, growing into a much broader view in the 1960s, and later again receding.The first case to closely examine the scope of the Free Exercise Clause was Reynolds v. United States
Reynolds v. United States
Reynolds v. United States, , was a Supreme Court of the United States case that held that religious duty was not a suitable defense to a criminal indictment...
in 1879. A case dealing with the prosecution of a polygamist under federal law, and the defendant's claim of protection under the Free Exercise Clause, the Court upheld the law and the government's prosecution. This case, which also revived Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
's statement regarding the "wall of separation" between church and state, introduced the position that although religious exercise is generally protected under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.
This interpretation of the Free Exercise Clause continued into the 1960s and the ascendancy of the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
under chief justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
. Applying a new standard of "strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
" in various areas of civil rights law, the Court began to apply this standard to the First Amendment religion clauses as well, reading the Free Exercise Clause to require accommodation of religious conduct except where a state could show a compelling interest and no less burdensome means to achieve that end. One example was Sherbert v. Verner
Sherbert v. Verner
Sherbert v. Verner, 374 U.S. 398 , was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her...
, where the Court overturned the state Employment Security Commission's decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church
Seventh-day Adventist Church
The Seventh-day Adventist Church is a Protestant Christian denomination distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming of Jesus Christ...
who was forced out of a job after her employer adopted a 6 day work week, which would have required her to work on Saturdays against the dictates of her religion. As Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
stated for the majority, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." This test was used through the years of the Burger Court, including particularly in the landmark case of Wisconsin v. Yoder
Wisconsin v. Yoder
Wisconsin v. Yoder, 406 U.S. 205 , is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade, as it violated their parents' fundamental right to freedom of religion....
(1972).
This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith
Employment Division v. Smith
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was...
. Examining a state prohibition on the use of peyote
Peyote
Lophophora williamsii , better known by its common name Peyote , is a small, spineless cactus with psychoactive alkaloids, particularly mescaline.It is native to southwestern Texas and Mexico...
, the Supreme Court upheld the law despite the drug's use as part of a religious ritual, and without employing the strict scrutiny test. Instead, the Court again held that a "neutral law of general applicability" generally does not implicate the Free Exercise Clause. This was followed by intense disapproval from Congress and the passage of the Religious Freedom Restoration Act
Religious Freedom Restoration Act
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 , codified at through , is a 1993 United States federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The bill was introduced by Howard McKeon of California and...
in 1993 to attempt to restore the prior test. However, in City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
, the Supreme Court struck down the act as well, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the Smith test in place.
Jehovah's Witnesses cases
During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah's WitnessesJehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. The first important victory came in 1938, when in Lovell v. City of Griffin, the Supreme Court held that cities could not require permits for the distribution of pamphlets. In 1939, the Supreme Court decided Schneider v. Town of Irvington, in which it struck down anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets. In 1940, the Court considered Cantwell v. Connecticut
Cantwell v. Connecticut
Cantwell v. Connecticut, 310 U.S. 296 , was a United States Supreme Court decision that incorporated the First Amendment's protection of religious free exercise.-Background:...
; the plaintiff, a Jehovah's Witness, was charged with soliciting donations without a certificate from the Public Welfare Council. The Council was to grant the certificate only if the organization requesting it was a charity or sponsored a religious cause. The Supreme Court ruled that any law granting a public body the function of determining if a cause is religious or not violates the First Amendment.
In 1940, the Supreme Court would decide in Minersville School District v. Gobitis
Minersville School District v. Gobitis
Minersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
that members of the Jehovah's Witnesses in a school could be required to salute the flag. The ruling in Gobitis , however, did not stand for long. In 1943, West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , is a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the...
, the Supreme Court essentially reversed its previous opinion. Justice Frankfurter had, in the Gobitis case, suggested that the Witnesses attempt to reverse the School Board's policy by exercising their vote. In the Barnette case, however, Justice Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
wrote, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote." The Supreme Court did not rule that the Pledge was unconstitutional; rather, they held that students may not be compelled to recite it.
Compelling interest
The Supreme Court under Earl WarrenWarren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
adopted an expansive view of the Free Exercise Clause. The Court required that states have a "compelling interest" in refusing to accommodate religiously motivated conduct as it decided Sherbert v. Verner
Sherbert v. Verner
Sherbert v. Verner, 374 U.S. 398 , was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because her...
(1963). The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist
Seventh-day Adventist Church
The Seventh-day Adventist Church is a Protestant Christian denomination distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming of Jesus Christ...
faith. In Wisconsin v. Yoder
Wisconsin v. Yoder
Wisconsin v. Yoder, 406 U.S. 205 , is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade, as it violated their parents' fundamental right to freedom of religion....
(1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.
The "compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith
Employment Division v. Smith
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 , is a United States Supreme Court case that determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was...
that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause. In 1993, the Supreme Court revisited the Free Exercise Clause in Church of Lukumi Babalu Aye v. City of Hialeah
Church of Lukumi Babalu Aye v. City of Hialeah
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 , was a case in which the Supreme Court of the United States held an ordinance passed in Hialeah, Florida that forbade the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food...
. Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería
Santería
Santería is a syncretic religion of West African and Caribbean origin influenced by Roman Catholic Christianity, also known as Regla de Ocha, La Regla Lucumi, or Lukumi. Its liturgical language, a dialect of Yoruba, is also known as Lucumi....
religion, while providing exceptions for some practices such as the kosher slaughter
Kashrut
Kashrut is the set of Jewish dietary laws. Food in accord with halakha is termed kosher in English, from the Ashkenazi pronunciation of the Hebrew term kashér , meaning "fit" Kashrut (also kashruth or kashrus) is the set of Jewish dietary laws. Food in accord with halakha (Jewish law) is termed...
of Judaism. Since the ordinance was not "generally applicable," the Court ruled that it was subject to the compelling interest test, which it failed to meet, and was therefore declared unconstitutional.
Also in 1993, Congress passed the Religious Freedom Restoration Act
Religious Freedom Restoration Act
The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 , codified at through , is a 1993 United States federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The bill was introduced by Howard McKeon of California and...
(RFRA), which sought to restore the "compelling interest" standard. In City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
(1997) the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment, which the courts enjoy sole power to interpret. According to the court's ruling in Gonzales v. UDV
Gonzales v. O Centro Espírita Beneficente União do Vegetal
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 , is a case decided by the United States Supreme Court involving the Federal Government's seizure of a sacramental tea, containing a Schedule I substance, from a New Mexican branch of the Brazilian church União do Vegetal...
(2006), RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.
See also
- First Amendment to the United States ConstitutionFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
- Establishment clause
- Separation of Church and StateSeparation of church and stateThe concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
- Freedom of thoughtFreedom of thoughtFreedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
- Freedom of religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
- Freedom of religion in the United StatesFreedom of religion in the United StatesIn the United States, freedom of religion is a constitutionally guaranteed right provided in the religion clauses of the First Amendment. Freedom of religion is also closely associated with separation of church and state, a concept advocated by Thomas Jefferson....
- United States religious history