The First Amendment's Free Exercise Clause: Overview

The Bill of Rights offers Americans robust protection of significant personal rights. The First Amendment protects religious freedom through two clauses: the establishment clause and the free exercise clause.

The establishment clause of the First Amendment prevents the federal government from:

• Establishing a national religion
• Favoriting one religion over another

Meanwhile, the free exercise clause prohibits Congress from burdening the free exercise of religion and protects the right to freely practice one's preferred religion. Taken together, these constitutional provisions support religious freedom while maintaining a separation of church and state.

This article focuses on the free exercise clause, its historical context, and essential Supreme Court decisions related to it.

What the Constitution Says About Religion

The first two clauses of the First Amendment address freedom of religion:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

The Framers' determination to protect freedom of religion is much easier to understand if we look at the historical context of the First Amendment.

Historical Context

Many people came to Colonial America to flee religious persecution. At that time, the establishment of religion was common in Europe, with some countries following the Roman Catholic Church and others following Protestantism. Countries like England had national churches, like the Church of England, with the King of England at its head.

People often faced literal, physical persecution for their religious beliefs. They were often murdered if they declined to follow their country's national religion. Many early settlers explicitly chose the Colonies so they could worship freely. In the New World, they could freely practice their religions without the fear of death or other types of harm.

In the early days of Colonial America, many states had a state religion, often reflecting a haven for different adherents. For example:

• Maryland was initially a Roman Catholic state, founded as a haven for those who wanted to practice Catholicism.
• The Anglican Church (Church of England) was popular in the Southern colonies.
• The Dutch Reformed Church briefly held sway in New York City and Puritans in New England.

During the American Revolution, many states still had established religions. But, changing views on the role of religion in government led several to disestablish their state religions throughout the 1780s.

When the First Amendment took effect in 1791, it only prohibited the federal government from establishing a national religion. But the states generally followed suit. The free exercise clause allowed adherents of all faiths to practice their religious beliefs freely.

Free Exercise Of Religion Under the First Amendment

The free exercise clause protects religious liberties by prohibiting governmental interference with how you exercise your religion. The Church of Lukumi Babalu Aye v. City of Hialeah provides an instructive example.

The Church of Lukumi Babalu Aye was a church that practiced Santeria, an Afro-Caribbean-based religion. Adherents practiced animal sacrifice as part of their religious beliefs. After they leased property to establish a church, the City of Hialeah passed an ordinance banning animal sacrifice. The city council also passed a resolution affirming its commitment to prohibiting religious practices repugnant to "public morals, peace or safety."

The Church sued the City of Hialeah. The district court found that although the ordinance was not facially neutral, it did serve a compelling governmental interest.

The U.S. Supreme Court disagreed.

The concept of a compelling government interest goes back to Employment Div., Dept. of Human Resources of Ore. v. Smith. That case established that neutral, generally applicable laws that impact the free exercise of religion do not need to show a compelling interest.

But, unlike the underlying state law in Smith, the City's ordinance was neither neutral nor generally applicable. In Smith, the state law prohibited the use of peyote without touching on its use in Native American religious practices. By contrast, the legislative history of the City of Hialeah's council showed that the ordinance was specifically tailored to Santeria's practice. It also lacked neutrality. The Supreme Court ruled in favor of the Church.

Early Free Exercise Jurisprudence

In addressing cases involving the free exercise of religion, the Supreme Court has developed a unique jurisprudence. The Court applies "strict scrutiny" to free exercise of religion cases. This did not happen overnight, however.

One of the earliest free-exercise cases, Reynolds v. United States (1878), dealt with the issue of polygamy. In this case, a member of the Church of Jesus Christ of Latter-Day Saints named George Reynolds challenged the Morrill Anti-Bigamy Act of 1862.

Reynolds was married to two women and was ultimately convicted of bigamy under the Act. But, Reynolds argued that bigamy was an essential religious practice.

The Supreme Court disagreed, holding that although marriage is a "sacred obligation," it is still usually regulated by law. The Court felt that upholding bigamy would create a slippery slope and that people would use made-up religious beliefs to avoid liability under the law.

Modern Approach to Free Exercise

The Court's modern-day free exercise jurisprudence dates back to Cantwell v. Connecticut (1940).  The Court used Cantwell to flesh out the religion clauses. In Cantwell, the Court described these clauses as:

• The freedom to believe (establishment clause)
• The freedom to act (free exercise clause)

They further recognized that while governments could burden religious activities, they could not burden religious beliefs without subjecting themselves to strict scrutiny. This means that even if a law is facially neutral, the Court will apply the strict scrutiny standard if it burdens the free exercise of religion.

Strict Scrutiny Standard

The Court's use of the strict scrutiny standard in the free exercise of religion cases derived from its use in Fourteenth Amendment equal protection and due process cases. Under the strict scrutiny standard, the government must show that a law:

• Furthers a compelling interest
• Is the least burdensome method of supporting this interest

 Sherbert v. Verner (1963) provides an early example of this framework. In Sherbert, South Carolina's Employment Security Division denied unemployment benefits to a member of the Seventh-Day Adventist Church after her employer adopted a six-day workweek. The workweek included Saturday, the Sabbath in Seventh-Day Adventism.

The Court held that the denial of benefits was a significant burden on Sherbert's ability to practice her religion and that there was no compelling interest to justify it.

The strict scrutiny standard was also instrumental in Wisconsin v. Yoder (1972). This case weighed Wisconsin's compelling interest in requiring education beyond the eighth grade against the respondent's free exercise rights. The respondents were Amish families whose children stopped attending public school in the eighth grade. Further education was contrary to Amish religious exercise.

The Court found in favor of the Amish families.

Common Free Exercise Challenges

Another way to examine the Court's religious freedom jurisprudence is to explore the types of free-exercise cases that typically come before the Court:

• Facially neutral laws that interfere with religious freedom
• Laws that facially discriminate against religious freedom

We discuss each of these categories below.

Facially Neutral Laws That Interfere With Religious Freedom

Braunfeld v. Brown, Bob Jones University v. United States, and Sherbert v. Verner (discussed above) are all examples of cases that examined facially neutral laws that interfered with religious freedom.

In Braunfeld v. Brown (1961), the Court held that the free exercise clause did not exempt an Orthodox Jewish family from a Pennsylvania statute requiring all businesses to close on Sundays.

This law was facially neutral, which meant it applied to everyone equally, but it interfered with the Orthodox Jewish family's religious practices. Since Orthodox Jews practice the Sabbath on Saturdays, businesses owned by Orthodox Jews would lose two days of business. The Court reasoned that the statute was valid, even though it had an indirect burden on religious practices.

Bob Jones University followed fundamentalist Christian beliefs, including the prohibition of interracial relationships on its campus. At that time, the IRS did not extend tax-exempt status to schools that practice racial discrimination and revoked the University's tax-exempt status.

The University argued that the IRS was infringing upon their religious rights. The Supreme Court disagreed. In 1983, the Court held that the government could infringe on religious liberties to advance a compelling governmental interest. Here, the governmental interest was in prohibiting racial discrimination.

Laws that Facially Discriminate Against Religious Freedom

The Church of Lukumi Babalu Aye (discussed above) and Trinity Lutheran Church v. Comer (2017) provide examples of laws that explicitly discriminate against religious organizations and activities.

Trinity Lutheran Church was a Missouri religious organization that was affiliated with a religious school. Missouri expressly excluded otherwise eligible religious organizations from receiving public benefits, including resurfacing the school's playgrounds. The Court ruled against Missouri because this policy violated the free exercise clause.

More recently, the Court carved out a "ministerial exception" to employment-related anti-discrimination laws for religious organizations. Under the ministerial exception, as explained in Hosanna-Tabor Evangelical Church and School v. EEOC (2012), churches and religious schools can discriminate when hiring for "ministerial" positions, such as pastors and teachers who teach religion courses.

Religious Freedom Beyond the First Amendment

Congress has tried to impose protections that exceed those outlined in the First Amendment. One example is the Religious Freedom Restoration Act (RFRA). RFRA attempted to codify the strict scrutiny standard by prohibiting any laws that burden religious exercise.

When it passed in 1993, the RFRA applied to both local, state, and federal legislation.

The Supreme Court struck down the RFRA in 1997 with its decision in City of Boerne v. Flores. The decision concluded that Congress exceeded its power in passing the RFRA. In 2006, the Court clarified in Gonzalez v. UDV that the RFRA could still be applied to federal legislation.

The U.S. Constitution is a living document, so the Supreme Court's interpretation and analysis of the free exercise clause will continue to evolve as our nation grows.