Free Exercise Clause (I): History, Background, Framing

2012-06-25 15:42:11

Along with the Establishment Clause, the free exercise clause is located at the beginning of the First Amendment: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.. . .’’ This article will provide a general guide to understanding the free exercise clause by describing the historical context in which it was drafted, the process by which it was drafted, and an overview of its interpretation and application.

Historical Background

During the time that North America was being explored and settled, England was grappling with the Protestant Reformation’s extremely disruptive impact on English society and government. Henry VIII had broken with Rome and established an official Protestant Church of England, but when his eldest child, the devout Roman Catholic Mary Tudor, came to power, she began persecuting Protestants vigorously and drove their leaders into exile. The outright persecution of Mary’s reign came to end when she was succeeded by her half-sister Elizabeth, who reestablished the Protestant identity of the Church of England. Queen Elizabeth I continually had to guard, however, against being overthrown by Mary Queen of Scots, who was intent on turning the nation back to Roman Catholicism.

Despite that Elizabeth had reestablished Protestantism in England, many Protestants, known as ‘‘Puritans,’’ believed that the Church of England still needed to be cleansed of the residues of Roman Catholic belief and practice. When James I succeeded Elizabeth on her death in 1603, he resolved to suppress and drive the Puritans out. To avoid persecution under James I and his successor, Charles I, by the 1640s as many as 20,000 Puritans had sought refuge by fleeing to North America. Most of these Puritan emigrants congregated in New England; others spread as far south as the West Indies.

When Parliamentary leaders overthrew Charles I in the English Civil War, they ostensibly granted religious freedom to the entire nation, but this actually extended only to conformist Protestants. Catholics were excluded; Baptist ministers were imprisoned; and Protestant clergy who insisted on using the Anglican prayer book were ejected during this period. The official persecution of Protestant dissenters did not end until 1688, and Catholics remained subject to restrictions on political and military office throughout the eighteenth century.

Meanwhile, in the North American colonies, four distinctive approaches to resolving this extremely divisive question of the civil status of religion had been developing. As described by religion clause historian Michael McConnell, these four approaches ranged from the near theocracy of New England, at one end of the continuum; to the southern colonies where the state used religion as a means of social control; to the benign neglect of religion in New York and New Jersey; and finally to the four colonies founded as havens for religious dissenters, at the opposite end of the continuum.

In the New England colonies that the Puritans had founded, civil authorities suppressed any dissenters in an effort to force them to conform to Puritan beliefs and expectations. This approach led to Baptists being banished, dissenters being whipped or jailed, and four Quakers (who had returned after having been expelled) being hanged. Puritans continued to suppress dissenters until 1679, when, in response to a letter from King Charles II expressing support for ‘‘freedom and liberty of conscience’’ for all non-Catholic Christians, Puritan authorities halted the practice of imposing criminal punishments on those who refused to conform to Puritan beliefs and practices.

In most of the southern colonies, the Church of England had been established by order of the Crown and was financed and tightly controlled by the government. Although New England and the southern colonies were alike in maintaining religious establishments, in a more profound sense, as McConnell points out, these two types of systems are better understood as opposites. Whereas in New England the Puritans used government to make society conform to religious ideals, in the south the governing authorities and local gentry used religion to maintain their social status and control. This second approach is thus characterized by state domination of the church. By the eighteenth century, Virginia had become the most intolerant of all of the colonies. Georgia differed from the other southern colonies in that the authorities exhibited a remarkable degree of tolerance toward non-Anglican Protestants and Jews, although Catholics were detested and banned from the colony.

In New York and New Jersey, the official attitude toward religion was one of what McConnell describes as ‘‘benign neglect.’’ The populations of these two colonies were religiously quite diverse, and a de facto policy of religious toleration emerged, even in the four counties of metropolitan New York, where majorities had voted to establish the Church of England. In these areas, Protestants were free to live and worship as they chose, and Quakers and Jews were for the most part left alone.

Four colonies were intentionally founded as havens for religious dissenters. Maryland, the first of these, was founded by a Catholic proprietor as a haven from the persecution that Catholics were facing in England. Its founder, Lord Calvert, is credited with the first use of the term ‘‘free exercise’’ in an American legal document. In 1648, he instructed Maryland’s new Protestant governor and its councilors to promise to make sure that no Christian, ‘‘and in particular no Roman Catholic,’’ is disturbed in the ‘‘free exercise’’ of religion. The proprietor had previously used the term ‘‘free liberty of religion’’ in his attempts to attract Boston-area colonists to resettle in Maryland, but Massachusetts Governor John Winthrop had responded to the effect that no Bostonians were interested in religious ‘‘liberty.’’

In 1649, Maryland’s Assembly followed Lord Calvert’s lead by enacting a statute that contained the phrase ‘‘free exercise.’’ This was North America’s first free exercise clause. The security of Catholics in Maryland changed radically, however, after the Glorious Revolution of 1688, which brought about the replacement of England’s Catholic King James II with the Protestants William and Mary and sparked a wave of anti-Catholicism in Maryland that led to the establishment of the Church of England there. Soon thereafter Maryland would come to rival Virginia for its lack of tolerance for religious dissenters.

Rhode Island was originally settled by Roger Williams in 1536, just to the south of the Massachusetts Bay Colony, from which Williams had been expelled for his differences with the Puritan authorities. The Rhode Island Charter of 1663 described the colony as a ‘‘lively experiment’’ with a ‘‘full liberty in religious concernments.’’ The Charter prohibited the infringement of civil liberty on the basis of ‘‘any differences in opinion in matters of religion,’’ and declared that residents may ‘‘freely and fully have and enjoy his and their own judgments and consciences, in matters of religious concernments.’’ Religious freedom in Rhode Island had its limits, however. Jews were barred from Citizenship and Catholics from public office. Although in later times, many would come to admire Rhode Island’s ‘‘lively experiment’’ in religious liberty, during the colonial period neighboring New England colonists tended to see Rhode Island as an embarrassment, ‘‘the licentious Republic’’ and the ‘‘sink hole of New England.’’

Despite Rhode Island’s negative reputation, its Charter of 1663 seems to have served as a model for the religious freedom provisions that were included in the original agreements between the proprietors and the prospective settlers of Carolina and New Jersey. These documents contained wording that was almost identical to the religious freedom provisions of the Rhode Island Charter of 1663. These provisions were later superseded by more limited religious freedom provisions for the colonies of North Carolina, South Carolina, and New Jersey, but after the Revolution, many of the new state constitutions seem to have drawn on the Rhode Island model.

In practice, it was probably the middle colonies that were the most influential examples of religious freedom on the later development of the free exercise clause. They established no church (except in the four counties of metropolitan New York), and welcomed persons from a wide range of religious traditions. Under William Penn’s Charters of Privileges of 1701, Pennsylvania and Delaware provided for the religious freedom of all theists, while confining the holding of public office to Christians. Pennsylvania’s reputation for religious tolerance contributed to the high level of immigration that it enjoyed, which was accompanied by widespread prosperity.

Following the Revolution, several of the states that had established the Church of England as colonies took swift steps to sever their official ties with the church. The new state constitutions of Georgia, New York, North Carolina, and South Carolina eliminated the provisions that had granted the Church of England special status and benefits. Going forward, South Carolina ‘‘established’’ the Protestant religion but provided churches no financial support; Georgia authorized a tax that would go to support the individual taxpayer’s own denomination; and New York and North Carolina joined the middle colonies and Rhode Island with no establishment of religion.

Virginia and Maryland moved more gradually toward disestablishment after the Revolution. In 1776, the Virginia Declaration of Rights was adopted, which guaranteed for all the right to ‘‘the free exercise of religion,’’ and the Virginia legislature suspended the collection of the compulsory taxes that had been supporting the Church of England. In 1779, these taxes were repealed, but the Church of England was not formally disestablished in Virginia until 1785. Virginia’s post-Revolutionary free exercise protections, in practice, were not extended to Anglican clergy, who when they had been ordained in England were required to take an oath of allegiance to the crown. Anglican clergy who refused to violate their oaths after the Revolution were mobbed, beaten, and driven from their pulpits.

 The Maryland Declaration of Rights of 1776 disestablished the Church of England, but it also authorized the legislature to impose a general tax ‘‘for the support of the Christian religion.’’ The legislative battle over whether such a tax would be imposed lasted throughout the 1780s. Those who supported such an assessment were never able to prevail. In 1786, the Virginia Statute of Religious Freedom, authored by Thomas Jefferson, was enacted, which prohibited any form of compulsory support of religion and guaranteed the rights of all to worship freely. By 1789, every state, with the exception of Connecticut, had enacted some form of protection for religious freedom, but Maryland and Delaware limited such protection to Christians, and five other states limited it to theists. According to McConnell, ‘‘These state constitutions provide the most direct evidence of the original understanding’’ of what would later be adopted as the Free exercise clause, ‘‘for it is reasonable to infer that those who drafted and adopted the first amendment assumed the term ‘free exercise of religion’ meant what it had meant in their states’’ (McConnell, 1456).

All of these state constitutional provisions contemplated the protection not only of belief but also of one’s freedom to participate in religious activity. Four states described the scope of protection for religious activity in broad terms, but eight states limited such protection to acts of ‘‘worship.’’ The First Amendment’s Free exercise clause seems to have followed these four states’ broader approach by not limiting the protection that it offers to ‘‘worship’’ activities. It also bears noting, however, that the limitation to ‘‘worship’’ in these eight states does not seem to have had any actual impact on the scope of free exercise protection in them.


The federal free exercise clause emerged from the debate that surrounded the ratification of the Constitution of 1787 regarding whether or not that document should contain specific guarantees of individual liberties. The Federalists, proponents of the draft Constitution, contended that the inclusion of certain specific guarantees might be interpreted to mean that the other rights that the Constitution had sought to respect by carefully spelling out and limiting the scope of federal power should not also be protected. Their opponents, distrustful of federal power, insisted that specific guarantees were necessary.

Patrick Henry, among others, was concerned that the religious freedoms that had been forged at the state level might be overridden by the emerging federal government. John Leland, the leader of Virginia’s Baptists, opposed ratification, because in his view religious freedom was not adequately protected by the Constitution in the form that it had been proposed. Rhode Island decided that it could not support ratification until an accompanying Bill of Rights had been drafted and put forward. Those in several other states who called for explicit constitutional guarantees of individual liberties eventually accepted the promise that a Bill of Rights would be drafted later in exchange for their votes for ratification.

James Madison had initially opposed the addition of specific guarantees of individual liberties in the new Constitution, but he came to accept them as a necessary compromise to ensure ratification. When he announced his candidacy for the first Congress under the new Constitution and learned that local Baptists were planning to support his opponent, James Monroe, Madison responded by pledging his support for express guarantees of all individual rights, including one that would fully protect religious liberty. This won the support of the Baptist leadership and tipped the election in his favor. Having helped Madison to get elected, Virginia’s Baptists did not hesitate to remind him of their interest in religious liberty as he headed off to take his place in the first House of Representatives.

On arrival, Madison kept his word. He emerged as the foremost spokesperson for religious freedom in the first session of Congress. More than 200 statesponsored proposals for constitutional guarantees of individual liberties had been received. Of these, which included five state-sponsored religious freedom proposals, Madison culled nineteen and added one of his own. Initially, he planned to work these amendments into the body of the existing Constitution rather than append them to it in the form of a Bill of Rights.

Madison chose not to put forward any of the religious freedom proposals submitted by the states. Instead, he advanced his own approach by suggesting that in Article I, section 10, the states should be prohibited from violating ‘‘the equal rights of conscience.’’ With respect to the federal government, Madison proposed that to Article I, section 9, be added, ‘‘The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or under any pretext infringed.’’

Madison’s initial formulation of what would become the First Amendment’s religion clauses did not include the term ‘‘free exercise’’ of religion. Rather, in keeping with the laws of his own state and with three of the five state-submitted proposals, he favored protection for the freedom of ‘‘belief’’ and ‘‘worship’’ and of one’s ‘‘rights of conscience.’’ Little was said during the recorded debates when the House took up the issue of religious freedom. Most of the controversy centered about what would become the Establishment Clause. To gain insight into the meaning that the drafters may have intended the free exercise clause to have, one must carefully analyze the wording of successive drafts of the religion clauses.

The House Select Committee that took up Madison’s proposals initially shortened the religion clauses to read, ‘‘no religion shall be established by law, nor shall the equal rights of conscience be infringed.’’ The reference to protecting freedom of belief and worship was deleted. The phrase ‘‘free exercise of religion’’ made its first appearance in the amended version, as passed by the House and sent to the Senate: ‘‘Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.’’

To this point, the phrases ‘‘rights of conscience’’ and ‘‘free exercise of religion’’ seem to have been used interchangeably. The inclusion of both in the version passed by the House suggests that some thought it necessary to use both terms.

The version that was sent to the Senate used a form of the verb ‘‘prohibit’’ rather than ‘‘infringe,’’ as the prior drafts had used. Because this change was made after the close of recorded debate, we have no direct evidence of the reason for it. In a contemporary case, Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court interpreted this switch from protection against infringements of free exercise to a ban on prohibitions of religious activity to mean that only laws that make the practice of religion unlawful or impossible are forbidden under the free exercise clause. According to the Court in Lyng, the free exercise clause is not violated if the practice of religion is merely made more difficult. McConnell has concluded, however, on the basis of the available evidence, that the Lyng Court’s narrow interpretation of ‘‘prohibiting’’ is not justified, and that the verb should be given approximately the same meaning as ‘‘infringing.’’

In the Senate, Madison’s idea about prohibiting the states from violating equal rights of conscience was not supported, presumably out of deference to states’ rights. This effectively ended the First Congress’ consideration of that possibility. Turning to the House’s proposal pertaining to the federal government, the Senate initially amended it to refer only to the ‘‘rights of conscience,’’ but then settled on a version that referred to the ‘‘free exercise of religion’’ instead: ‘‘Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.. . .’’

Without direct evidence of the rationale for this change, since it occurred after the close of recorded debate, one could infer that ‘‘rights of conscience’’ was deleted because it was viewed as redundant, or (as a few expressed during the recorded portions of debate) that some were concerned to avoid establishing protection for claims of conscience based on something other than religion. Although the distinction in Free Exercise law between religiously based and non-religiously based rights of conscience has been criticized in academic circles, as McConnell points out, it makes no difference whether ‘‘rights of conscience’’ was deleted because it was redundant or because of concern about the extension of protection to nonreligious matters of conscience. Neither explanation offers any support for the view that the free exercise clause protection must be provided in secular matters of conscience. Either the scope of ‘‘free exercise of religion’’ is coextensive with that of ‘‘rights of conscience,’’ or it is not. Either way, by settling on ‘‘free exercise of religion,’’ Congress eliminated any textual support for the view that secular rights of conscience should be protected under the free exercise clause.

A conference committee, which included James Madison, then reconciled the differences between the House and Senate versions. The only change pertaining to the free exercise clause was that the Conference Committee eliminated the Senate version’s references to ‘‘articles of faith’’ and ‘‘a mode of worship’’ and replaced them simply with ‘‘religion.’’ This meant that the Senate’s ban on ‘‘prohibiting the free exercise of religion’’ could be shortened to ‘‘prohibiting the free exercise thereof.’’ The conference committee’s version was passed by Congress in 1789 and ratified by the states in 1791: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’

The First Congress had developed a constitutional guarantee for religious freedom that contains two complementary clauses: the Establishment Clause, which seeks to prevent governmental imposition of religion; and the free exercise clause, which seeks to prevent governmental imposition on religion. Or as John Witte describes it in Religion and the American Constitutional Experiment, the Establishment Clause prohibits the government from prescribing religion, and the free exercise clause prohibits the government from proscribing religion.

Interpretation and Application

Prior to 1940, courts interpreted the religion clauses of the First Amendment as limitations on federal power only, not applicable to the states. It was not until its 1940 decision in Cantwell v. Connecticut that the United States Supreme Court held the free exercise clause to apply to the states through the Fourteenth Amendment.

Even after Cantwell, virtually all cases finding a free exercise violation involved governmental restrictions on religious speech or belief. The distinction between a high level of free exercise protection for religious belief, versus a much lower level of protection for the practice of those beliefs in terms of religious conduct, originated in the Court’s very first free exercise clause case, Reynolds v. United States (1879). In Reynolds, the Court refused to grant free exercise protection to a Mormon who had been convicted under a federal statute that made polygamy a crime. Although a number of Free exercise scholars, including McConnell (1998), have come to view the Reynolds decision as wrongly decided, its emphasis on the distinction between religious belief and conduct would be reaffirmed as recently as the Court’s 1990 decision in Employment Division, Department of Human Resources v. Smith, which is discussed later.

It was not until 1963 that the Court found a general government regulation of conduct, enacted for secular purposes, to violate the free exercise clause in circumstances in which such a regulation conflicted with the freedom to exercise one’s faith. In Sherbert v. Verner (1963), the Court upheld the unemployment compensation rights of a Seventh Day Adventist factory worker who was discharged for engaging in religiously motivated conduct, by refusing to work on Saturday, in accordance with her beliefs.

In so doing, the Court applied what has come to be known as the ‘‘strict scrutiny’’ test for free exercise claims. The Court first asked whether some ‘‘Compelling State Interest’’ justifies the governmental infringement of religious freedom. Even if such a compelling interest were found, under this test the state would still have to demonstrate that ‘‘no alternative forms of regulation would combat such abuses without infringing First Amendment rights.’’

The ‘‘high water mark’’ for free exercise clause protection, according to constitutional scholar Jesse Choper, came in Wisconsin v. Yoder (1972), when the Court used the strict scrutiny test outside the context of an unemployment compensation dispute (Choper, 657). In Yoder, the Court found that the state had no compelling interest in enforcing its compulsory public education laws on Amish children whose parents did not want to expose their children to the influence of public education beyond the eighth grade. The decision in Yoder reaffirmed the Sherbert rule, that the strict scrutiny test is to be applied even when alleged free exercise violations result from the application of a religiously neutral governmental regulation that was enacted for secular reasons.

In the wake of Sherbert and Yoder, however, the Court rejected nearly all of the free exercise claims it considered. Then, in Employment Division, Department of Human Resources v. Smith (1990), the Court ruled the strict scrutiny test inapplicable to challenges brought against generally applicable regulations, enacted for secular reasons, that restrict the freedom to exercise one’s faith. Smith, like Sherbert, arose in the context of an unemployment compensation dispute. In Smith, two Native American drug counselors were dismissed from their employment for having ingested peyote as a part of a Native American religious ceremony. They argued that the sacramental use of peyote should not disqualify them from receiving unemployment benefits as work-related ‘‘misconduct.’’ Justice Blackmun agreed, in dissent, finding that Oregon had not advanced any state interest compelling enough to meet the demands of the strict scrutiny test.

Justice Scalia’s opinion for the Court, however, asserted that the strict scrutiny test had been applied in challenges to generally applicable laws only when the free exercise clause was implicated along with other constitutional protections, such as freedom of speech. Justice Scalia thus refused to apply the strict scrutiny test to the drug counselors’ claims. Justice Scalia conceded that, as a result of the Court’s decision in Smith, accommodation of free exercise interests would need to be sought through the political process, which ‘‘may fairly be said . . . [to] place at a relative disadvantage those religious practices that are not widely engaged in.. . .’’ Smaller, less influential religious groups are not protected by the free exercise clause against the risk of being subjected to legislation that seriously restricts their freedom to practice their beliefs.

Justice Scalia’s opinion in Smith did not, however, undermine the availability of free exercise protection against intentional discriminatory measures aimed by government at regulating the conduct of specific religious groups. Accordingly, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Court struck down a city ordinance targeted at prohibiting the ritual sacrifice of animals according to the Santeria religion.

Congress has attempted to restore the type of free exercise protection offered by the strict scrutiny test to the extent that to do so lies within its power. In 1993, it enacted the Religious Freedom Restoration Act (RFRA), which would have reestablished strict scrutiny protection for free exercise claims. In City of Boerne v. Flores (1997), however, the Supreme Court struck RFRA down, on the grounds that in enacting RFRA Congress had violated federalism and separation of powers principles. In 2000, Congress responded by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA). More narrowly focused than RFRA, RLUIPA reestablishes strict scrutiny protection for free exercise claims arising in the context of land use regulations and the treatment of institutionalized persons. To date, RLUIPA’s constitutionality has been upheld.


References and Further Reading

  • Choper, Jesse, The Rise and Decline of the Constitutional Protection of Religious Liberty, Nebraska Law Review 70 (1991): 651–688.
  • Cobb, Sanford H. The Rise of Religious Liberty in America: A History. New York: Macmillan, 1902.
  • Hutson, James H. Religion and the Founding of the American Republic. Washington, D.C.: Library of Congress, 1998.
  • Lupu, Ira C., Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, Harvard Law Review 102 (1989): 933–990.
  • McConnell, Michael W. What would it mean to have a ‘First Amendment’ for sexual orientation? in Olyan, Saul M., and Martha C. Nussbaum, eds. Sexual Orientation & Human Rights in American Religious Discourse. New York: Oxford University Press, 1998, p. 249.
  • ———, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (1990): 1409–1517.
  • McLoughlin, William G. New England Dissent, 1630–1833: The Baptists and the Separation of Church and State. 2 vols. Cambridge, MA: Harvard University Press, 1971. Witte, John, Jr. Religion and the American Constitutional Experiment: Essential Rights and Liberties. Boulder, CO: Westview Press, 2000.

Cases and Statutes Cited

See also Baptists in Early America; Establishment Clause (I): History, Background, Framing