Free Exercise Clause Doctrine: Supreme Court Jurisprudence

The free exercise clause of the First Amendment provides that Congress shall ‘‘make no law. . .prohibiting the free exercise’’ of religion. The application of the free exercise clause to a person’s religious beliefs is relatively noncontroversial, because the United States Supreme Court has held that the state cannot penalize a person on account of his or her beliefs. For example, in Torcaso v. Watkins (1961), the Court held that the state of Maryland could not condition the right to hold public office on whether a person believed in God. More controversial has been the application of the free exercise clause to religiously motivated conduct. In recent years, the Supreme Court has made clear that if the state prohibits certain conduct for the purpose of disadvantaging a particular religion, then it violates the free exercise clause. In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), for example, the Court considered the constitutionality of several municipal ordinances that prohibited the slaughtering of animals in certain circumstances. The City of Hialeah, Florida, had promulgated these ordinances in response to an increase in the number of practitioners of the Santeria religion who engaged in a variety of practices and rituals, including animal sacrifice, that many non-Santerians found offensive. The Santerians argued that the ordinances violated their free exercise clause rights. The Court agreed, concluding ‘‘that suppression of the central elements of the Santeria worship service was the object of the ordinances.’’ Because the ordinances were not ‘‘neutral’’ in their purpose with respect to religion, the Court found that they violated the free exercise clause.

More controversial—indeed, the most frequently litigated free exercise clause issue at the Supreme Court during the past half century—has been the question whether the state is obliged to give exemptions from neutral and generally applicable regulatory laws to individuals for whom those laws burden the exercise of their religion. The question whether an ‘‘accommodation’’—an exemption from a regulatory provision—is sometimes required has dominated free exercise clause jurisprudence for much of the past half century.

The Supreme Court first considered the question of exemptions from generally applicable regulatory statutes 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 to have more than one spouse. This criminal prohibition conflicted with the religious obligations of members 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, circumstances permitting, to practise polygamy.’’ Reynolds, a Mormon who had engaged in plural marriage, was convicted of violating that statute.

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 polygamy against Reynolds did not violate his free exercise clause rights, the Court, with Chief Justice Morrison Waite writing, cited Thomas Jefferson for his ‘‘belief-action’’ distinction: religious beliefs and opinions enjoy greater protection from governmental interference than do religiously motivated actions. 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 was legitimate for the magistrate ‘‘to interfere when principles break out into overt acts against peace and good order.’’ Moreover, in his famous 1802 letter to the Danbury Baptists, Jefferson had written that ‘‘[b]elieving 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 Reynolds Court placed great weight on the views of 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 good order.. . .To 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 come a law unto himself.’’ Accordingly, the Court enforced the criminal sanction against Reynolds.

The Court in Reynolds concluded that the free exercise clause did not compel an exemption from regulatory statutes for religiously motivated conduct. Because the free exercise clause restrained only Congress, few cases arose under the clause, and the Court had limited opportunity to revisit its decision in Reynolds. After the Court incorporated the free exercise clause against the states through the due process clause of the Fourteenth Amendment in Cantwell v. Connecticut (1940), free exercise clause claims became far more common on the Court’s docket. Since its decision in Cantwell, the Court’s position on the application of the free exercise clause to religiously motivated conduct has ebbed and flowed.

In Cantwell, some Jehovah’s Witnesses in New Haven, Connecticut, had been convicted of, among other things, soliciting without a license and ‘‘inciting a breach of peace’’ by playing an anti-Catholic phonograph record on the street in a Catholic neighborhood. Citing Reynolds, the Court, with Justice Owen Roberts writing, reasserted the distinction between ‘‘freedom to believe and freedom to act.’’ The Court noted that ‘‘the first is absolute but, in the nature of things, the second 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’’ free exercise clause 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 Jehovah’s Witnesses’ interest in ‘‘free communication of views, religious or other.’’ The Court, on weighing these interests, ruled in favor of the Jehovah’s Witnesses.

During the 1960s and 1970s, the Court extended the constitutional protection of religiously motivated conduct in two landmark cases. In Sherbert v. Verner (1963), the Court considered whether the free exercise clause compelled an exemption from a neutral and generally applicable regulatory statute for a person’s religiously motivated conduct. Sherbert, a Seventh- Day Adventist employed at a South Carolina textile mill, refused to work on Saturday, her church’s Sabbath, when her employer rearranged her schedule requiring such work. As a result, the textile mill terminated her employment. Sherbert applied for unemployment benefits, but refused all job opportunities that required her to work on Saturday. The state Employment Security Commission denied her benefits claim because she had failed ‘‘without good cause, to accept available suitable work when offered.’’

The Supreme Court, with Justice William Brennan writing, held that the denial of unemployment benefits to Sherbert violated the free exercise clause as applied to the states through the Fourteenth Amendment. The Court found that the South Carolina unemployment scheme imposed a burden on Sherbert by forcing her ‘‘to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion to accept work, on the other hand. Government imposition of such a choice puts the same kind of burden on the free exercise of religion as would a fine imposed against appellant for her Saturday worship.’’ Having found that the unemployment system imposed a burden on Sherbert’s free exercise right, the Court then considered whether the government had a ‘‘Compelling State Interest’’ for imposing this burden. The Court stated that in this ‘‘highly sensitive constitutional area,’’ only ‘‘the gravest abuses, endangering paramount interests, give occasion [to the government] for permissible limitation.’’ The government justified the denial by asserting an interest in preventing ‘‘the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work’’ that might ‘‘not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.’’ The Court concluded, however, that there was no evidence questioning the sincerity of Sherbert’s motives and that ‘‘even if the possibility of spurious claims did threaten to dilute the [unemployment insurance] fund and disrupt the scheduling of work, it would be plainly incumbent upon [the state] to demonstrate that no alternative forms of regulations would combat such abuses without infringing First Amendment rights.’’

In dissent, Justice John Harlan, joined by Justice Byron White, rejected such a broad reading of the free exercise clause. Justice Harlan concluded that those ‘‘situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between.’’ He rejected ‘‘the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case.’’ Thus, for Justices Harlan and White, the resolution of the question of accommodating religious practices by granting exemptions from neutral and generally applicable regulatory laws should be left to the discretion of the political branches. Almost thirty years later, a majority of the Supreme Court would come to agree with them.

Nine years after Sherbert, the Supreme Court reconsidered the question of constitutionally compelled exemptions for religiously motivated conduct. In Wisconsin v. Yoder (1972), the Court considered the refusal of Yoder, a member of the Old Order Amish, to send his children to school after they completed the eighth grade. Wisconsin required school attendance until age sixteen and refused to grant Yoder’s two children an exemption from that requirement. (Yoder’s children, although they had completed eighth grade, had not yet reached age sixteen.) Yoder objected to the formal education of his children beyond the eighth grade on religious grounds, contending that high school emphasized ‘‘intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students’’ as opposed to the Amish emphasis on ‘‘informal learning-through-doing,’’ ‘‘wisdom, rather than technical knowledge,’’ and ‘‘community welfare, rather than competition.’’ The Supreme Court, with Chief Justice Warren Burger writing, acknowledged the state’s ‘‘interest in universal education,’’ but concluded that that interest did not outweigh the Amish’s religiously motivated desire to direct the education of their children as they saw fit.

After Sherbert and Yoder, the government was constitutionally compelled to grant an exemption from neutral, generally applicable regulatory statutes to persons claiming an infringement on their free exercise rights unless the government had a compelling interest in uniform enforcement and there was no less restrictive means of fulfilling the government’s interest. Thereafter, in a few unemployment benefit cases in which a person had quit his or her job for religious reasons, the Court required an exemption. For example in Thomas v. Review Board (1981), the Court held that a state could not deny unemployment benefits to an employee who quit his job rather than accept a transfer to a section of the employer’s factory that produced armaments when the employee had religious objections to that type of work. Similarly, in Hobbie v. Unemployment Appeals Commission (1987), the Court held that a state could not deny unemployment benefits to an employee who was fired for refusing to work on her Saturday Sabbath— similar to the employee in Sherbert v. Verner. Two years later, in Frazee v. Illinois Department of Income Security (1989), the Court held that a state could not deny unemployment benefits to an employee who refused to work on Sunday because of a religious objection to such work.

In all other free exercise clause cases that it considered during the 1970s and 1980s, however, the Court refused to grant exemptions from neutral and generally applicable regulatory laws, despite the burden the enforcement of such laws placed on religiously motivated persons. For example, in United States v. Lee (1982), the Court rejected a challenge by an Amish taxpayer to the required payment of Social Security taxes. The Amish taxpayer argued that the Amish believe it ‘‘sinful not to provide for their own elderly and therefore are religiously opposed to the national social security system.’’ The Court held that mandatory participation in the social security system was ‘‘indispensable’’ to its fiscal vitality and that burdening the free exercise rights of the Amish taxpayer was therefore ‘‘essential to accomplish an overriding governmental interest.’’

In Bob Jones University v. United States (1983), the Court held that the federal government’s refusal to grant tax exempt status to a private religious college that engaged in racial discrimination did not violate the free exercise clause, even though the college’s racially discriminatory policies were motivated by its religious beliefs. The Court noted that ‘‘the Government has a fundamental, overriding interest in eradicating racial discrimination in education’’ that ‘‘substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.’’ The Court further held that the elimination of racial discrimination was a ‘‘compelling government interest’’ and that ‘‘no less restrictive means are available to achieve the government interest.’’

Other free exercise clause claimants also lost their challenges to generally applicable governmental regulations. In Goldman v. Weinberger (1986), the Court refused to grant an Orthodox Jew who wished to wear a yarmulke an exemption from an Air Force dress code requirement that barred members of the Air Force from wearing headgear indoors, citing the military’s need for uniformity. In Bowen v. Roy (1986), the Court rejected a free exercise clause challenge to a requirement that individuals must provide Social Security numbers to receive welfare benefits. The Court emphasized that the ‘‘free exercise clause simply cannot be understood to require the Government to conduct its own affairs in ways that comport with the religious beliefs of particular citizens.’’ In O’Lone v. Estate of Shabazz (1987), the Court rejected a prisoner’s free exercise clause challenge to a neutral prison work policy that impeded the ability of Muslim prisoners to attend certain religious exercises. The Court relied on the prison’s articulated need for the policy to reject the free exercise clause claim. As the Court had deferred to the military in Goldman, so the Court deferred to prison officials in O’Lone.

In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Court considered a variation on the traditional free exercise claim to an exemption from a regulatory statute. In Lyng, the government proposed the construction of a road and the harvesting of timber in a portion of a National Forest that was a sacred religious site for three Native American tribes. The tribes claimed that the traffic, noise, and logging threatened to render impossible the exercise of their religion on the sacred land in question. The Court rejected the claim, holding that the free exercise clause rights of the tribes ‘‘do not divest the Government of its right to use what is, after all, its land.’’

In the meantime, both Congress and various state legislatures granted literally hundreds of statutory exemptions from generally applicable regulatory laws for individuals whose otherwise prohibited conduct was religiously motivated. But some critics questioned whether religiously motivated individuals should receive exemptions from regulatory laws that would be denied to persons motivated by nonreligious reasons. Why, for example, should a person retain eligibility for unemployment benefits on refusing Saturday work for religious reasons, whereas a person who refuses such work to spend time with his family is denied benefits? Some argued that the granting of exemptions for persons whose conduct is religiously motivated constituted an unconstitutional state preference for religion in violation of the establishement clause.

The Court addressed this question in Corporation of Presiding Bishop v. Amos (1987). In Amos, a Mormon owned-and-operated gymnasium fired a worker because he failed to secure a ‘‘temple recommend’’—a necessary endorsement from the Mormon. The worker alleged a violation of Title VII of the Civil Rights Act of 1964 that prohibits, among other things, employment discrimination based on religion. The church defended on the grounds that the Civil Rights Act expressly granted religious organizations an exemption from the prohibition on religious discrimination. The question for the Court was whether this statutory exemption, which gave preferential status to religious organizations, violated the Establishment Clause. The Court held that it did not. First, the Court found that the exemption did not have the purpose of advancing religion; rather, it had the secular purpose of allowing religious groups to carry out their mission unfettered by government regulation. Second, the Court found that the exemption did not have the effect of advancing religion. (Justice Sandra Day O’Connor, in her concurrence, argued that the exemption did have the effect of advancing religion, but that the exemption did not constitute an ‘‘endorsement’’ of religion and hence was not unconstitutional.) After Amos, both Congress and state legislatures were free to grant statutory exemptions to religious organizations or to religiously motivated individuals from neutral and generally applicable regulatory laws without offending the Establishment Clause.

Three years later, in Employment Division v. Smith (1990), the Court revisited the question whether a religiously motivated person had a constitutional right under the free exercise clause to an exemption from a neutral and generally applicable regulatory law. At issue in Smith was whether the state of Oregon properly withheld unemployment benefits from two Native Americans who were discharged from their jobs because they smoked peyote—a substance prohibited under Oregon law. The Native Americans, who had smoked the peyote as part of a religious ceremony, argued that the denial of unemployment benefits violated their rights under the free exercise clause. The Court rejected their claim, concluding that the free exercise clause afforded no such exemption from laws that were neutral and generally applicable and that did not infringe any other constitutional right—even if such laws imposed a substantial burden on the free exercise of religion for certain persons. The Smith decision constituted an important shift in the Court’s free exercise clause doctrine, foreclosing constitutional claims for an exemption from neutral and generally applicable regulatory laws that interfered with a person’s religiously motivated conduct. After Smith, such persons would need to appeal to the legislative process for relief from a regulatory statute.

The Court’s decision in Smith sparked a significant political fight eventually capturing congressional attention. In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA) by an overwhelming margin in response to the Smith decision. In this statute, Congress provided that ‘‘Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’’ In doing so, Congress made clear that it sought to restore the legal landscape that existed prior to the Court’s decision in Smith. Specifically, Congress found that ‘‘in Employment Division v. Smith, the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.’’ Congress stated that its purpose in enacting RFRA was ‘‘to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.’’

But in City of Boerne v. Flores (1997), the Court found RFRA to be an unconstitutional exercise of congressional power to the extent that it applied to state and local governments. (Lower courts have found RFRA constitutional as applied to the federal government.) Congress had justified RFRA’s limitation on state and local governments by relying on its power under Section 5 of the Fourteenth Amendment that gave Congress authority to enact legislation for the purpose of preventing state violations of Section 1 of that amendment. Because the Supreme Court had previously held that state restraints on the free exercise of religion violated the due process clause of Section 1 of the Fourteenth Amendment, Congress concluded that it had power under Section 5 to prohibit state and local governments from burdening the free exercise of religion unless they could justify such burdens by reference to a Compelling State Interest. The problem was that Congress in RFRA defined free exercise rights more expansively than had the Court in Smith. As a result, in City of Boerne, the Court found RFRA unconstitutional as applied to state and local governments. To the Court, Section 5 permitted Congress to redress free exercise clause violations as defined by the Court—not to define free exercise rights more expansively than the Court had done in Employment Division v. Smith. Accordingly, the Court concluded that Congress had exceeded its Section 5 power.

In response to City of Boerne, Congress took further action. Relying on its constitutional power to regular interstate commerce, Congress in 2000 enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) that provided that land use regulations (such as zoning) and regulations governing institutionalized persons (primarily in prisons and mental hospitals) may not ‘‘substantially burden’’ the exercise of religion unless the state has a ‘‘compelling interest.’’ Although RLUIPA is more limited in its scope than is RFRA, it restored some of the protections that Congress had provided in the earlier statute.

Today, if a person or religious organization seeks an exemption from a neutral and generally applicable law that prohibits its religiously motivated conduct, it must appeal to the legislative process because the free exercise clause no longer affords relief (unless the statute in question infringes another constitutional protection, such as the Free Speech Clause). Rather, the free exercise clause provides protection from outright restraints on religious belief or restraints on conduct that are motivated by a desire to disadvantage a particular religion.

DAVISON M. DOUGLAS

References and Further Reading

• Duncan, Richard F., Free Exercise is Dead; Long Live Free Exercise: Smith, Lukumi, and the General Applicability Requirement, University of Pennsylvania Journal of Constitutional Law 3 (2001): 850–884.
• Gordon, James D., The New Free exercise clause, Capital University Law Review 26 (1997): 65–92.
• Hamilton, Marci A., The First Amendment’s Challenge Function and the Confusion in the Supreme Court’s Contemporary Free Exercise Jurisprudence, Georgia Law Review 29 (1994) 81–135.

Cases and Statutes Cited

• Bob Jones University v. United States, 461 U.S. 574 (1983)
• Bowen v. Roy, 476 U.S. 693 (1986) Cantwell v. Connecticut, 310 U.S. 296 (1940)
• Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)
• Frazee v. Illinois Department of Income Security, 489 U.S. 829 (1989)
• Goldman v. Weinberger, 475 U.S. 503 (1986)
• Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987)
• Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
• O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
• Reynolds v. United States, 98 U.S. 145 (1878)
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Thomas v. Review Board, 450 U.S. 707 (1981)
• Torcaso v. Watkins, 367 U.S. 488 (1961)
• United States v. Lee, 455 U.S. 252 (1982)
• Wisconsin v. Yoder, 406 U.S. 205 (1972)

See also Accommodations of Religion; Free Exercise Clause (I): History, Background, Framing