Belief–Action Distinction in Free Exercise Clause History

One of the central issues in free exercise clause jurisprudence has been the question of whether the state is obliged to give individuals exemptions from government regulations that interfere with their free exercise of religion. In resolving this issue, the U.S. Supreme Court has, for much of its history, distinguished between religious beliefs (which receive considerable protection under the free exercise clause) and religiously motivated conduct (which receives much less protection).

The Supreme Court first articulated the different constitutional protection enjoyed by religious beliefs and religiously motivated conduct in Reynolds v. United States (1878), a case involving the constitutionality of a congressional statute governing the Territory of Utah that made it a crime for a ‘‘person having a husband or wife living’’ to marry another person. Pursuant to this statute, George Reynolds, one of the leaders of the Church of Jesus Christ of Latter-Day Saints (the Mormons) whose church doctrine at that time provided that it was a ‘‘duty of male members of said church . . . to practise polygamy,’’ was prosecuted. The question for the Court in Reynolds was ‘‘whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.’’ In holding that enforcement of the criminal prohibition on plural marriage against Reynolds did not violate the free exercise clause, the Court, with Chief Justice Waite writing, cited Thomas Jefferson for his ‘‘belief–action’’ distinction, which provided that religious beliefs and opinions enjoy greater protection from governmental interference than do actions motivated by religious beliefs and opinions. In his Bill for the Establishment of Religious Freedom, Jefferson had written that to permit ‘‘the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’’ but that it is legitimate for the magistrate ‘‘to interfere when principles break out into overt acts against peace and good order.’’ The Reynolds Court also cited Jefferson’s famous 1802 letter to the Danbury Baptists in which he wrote: ‘‘Believing with you that religion is a matter which lies solely between man and his God; . . . the legislative powers of the government reach actions only, and not opinions.’’ The Court in Reynolds placed great weight on the belief–action distinction articulated by Jefferson:

Coming as this does from an acknowledged leader of the advocates of the [free exercise clause], it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. 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 of good order . . . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices . . . . [T]o permit [an exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself [emphasis added].

Accordingly, the Court enforced the criminal sanction against Reynolds.

Since Reynolds, the Supreme Court has generally retained the distinction between beliefs and actions when deciding cases under the free exercise clause, generally striking down government regulation of religious beliefs. For example, in Torcaso v. Watkins (1961), the Court struck down a Maryland constitutional provision that required a ‘‘belief in the existence of God’’ in order to hold public office. The Court concluded that Maryland had ‘‘unconstitutionally invade[d] the appellant’s freedom of belief and religion’’ by denying him the right to hold public office on account of his nontraditional worldview.

Over the course of the twentieth century, the Court’s protection of religiously motivated conduct has varied—at times more protective than the Reynolds Court and more recently, about as protective as the Reynolds Court.

In Cantwell v. Connecticut (1940), the first case in which the Court applied the free exercise clause to state and local governments, the Court, with Justice Owen Roberts writing, reasserted the distinction between ‘‘freedom to believe and freedom to act’’ when evaluating the constitutionality of a criminal prosecution of Jehovah’s Witnesses for their aggressive proselytizing activities. ‘‘The first [freedom to believe] is absolute but, in the nature of things, the second [freedom to act] cannot be. Conduct remains subject to regulation for the protection of society.’’ But the Court went on to say that the ‘‘power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.’’ In suggesting that some prohibitions on religiously motivated conduct might ‘‘unduly infringe’’ on free exercise rights, the Court invited a ‘‘weighing of two conflicting interests’’: the state’s interest in ‘‘the preservation and protection of peace and good order’’ and the individual’s interest in engaging in religiously motivated conduct. In sum, the Court in Cantwell retained the belief–action distinction, but gave actions greater protection than they had enjoyed during the nineteenth century.

During the 1960s, the Court extended the constitutional protection afforded to religiously motivated conduct under the free exercise clause. In Sherbert v. Verner (1963), a Seventh Day Adventist challenged a decision to deny her unemployment benefits following her termination from her job for refusing to work on Saturday, her Sabbath. The Court articulated a new test for assessing whether religiously motivated conduct should be protected under the free exercise clause. The Court determined that if the state imposed a burden on an individual’s exercise of her religious belief—here, by denying unemployment benefits— then it must have a ‘‘Compelling State Interest’’ for so doing. The Compelling State Interest test offered greater protection under the free exercise clause for religiously motivated conduct than had been previously afforded by the Court. The Court retained this test until its decision in Employment Division v. Smith (1990).

In Employment Division v. Smith, the Court, in effect, jettisoned the Sherbert v. Verner Compelling State Interest test. Smith involved the constitutionality of the denial of unemployment benefits to Native Americans who were fired from their job for smoking peyote as part of a religious ceremony. The Smith Court held that state interference with a person’s religiously motivated conduct did not violate the free exercise clause so long as the interference took place pursuant to a neutral, generally applicable regulatory provision. After Smith, the state no longer had to justify its interference with religiously motivated conduct by demonstrating a Compelling State Interest. The Court continues to follow the Smith principle today, although both Congress and state legislatures have extended protection to religiously motivated conduct by statute in a number of areas.

Although the Court no longer speaks directly in terms of a ‘‘belief–action’’ distinction under the free exercise clause, it in effect maintains that distinction by affording state interferences with religious belief very high protection, while permitting state interference with religiously motivated conduct so long as the state has proceeded according to a neutral, generally applicable statute and has not acted with animus towards the religiously motivated person.

DAVISON M. DOUGLAS

References and Further Reading

• Epps, Garrett, What We Talk About When We Talk About Free Exercise, Arizona State Law Journal 30 (1998): 563–602
• Friedelbaum, Stanley H., Free Exercise in the States: Belief, Conduct, and Judicial Benchmarks, Albany Law Review 63 (2000): 1059–100

Cases and Statutes Cited

• Cantwell v. Connecticut, 310 U.S. 296 (1940) 
• Employment Division v. Smith, 494 U.S. 872 (1990) 
• Reynolds v. United States, 98 U.S. 145 (1878) 
• Sherbert v. Verner, 374 U.S. 398 (1963) 
• Torcaso v. Watkins, 367 U.S. 488 (1961) 

See also Accommodation of Religion; Free Exercise Clause (I): History, Background, Framing; Jefferson Thomas; Jehovah’s Witnesses and Religious Liberty; Mormons and Religious Liberty