Simone Lawson
The Free Exercise Clause is one of two religious freedom clauses in the First Amendment to the United States Constitution. The clause prohibits government interference with religious belief and, within limits, religious practice. While the freedom to hold religious beliefs and opinions is absolute, the freedom to act on these beliefs is not. The Supreme Court's interpretation of the Free Exercise Clause has evolved over time, from a relatively narrow view of the governmental restrictions required under the clause to a much broader view in the 1960s, and later a receding view. The Court has applied a strict scrutiny standard to the First Amendment religion clauses, requiring accommodation of religious conduct unless the state can show a compelling interest and no less burdensome means to achieve that end. However, the freedom to engage in religious practices is not absolute and is subject to certain restrictions. The Court has also clarified that religious actions, as opposed to beliefs, are subject to regulation for the protection of society.
| Characteristics | Values |
|---|---|
| Free exercise of religion | Protected by the First Amendment |
| Freedom to believe | Absolute |
| Freedom to act | Not absolute |
| Government interference | Prohibited in the case of religious belief |
| Allowed in the case of religious action | |
| State and local governments | Bound by the Free Exercise Clause since 1940 |
| Taxation of religious activities | Not allowed |
| Secular interest | Must be balanced against religious liberty |
| Compelling interest test | Narrowed in later cases |
| Strict scrutiny test | Abandoned by the Court, but restored by Congress in 1993 |
| Facial neutrality of laws | Not determinative |
| Employment discrimination laws | Do not apply to religious institutions and their ministers |
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What You'll Learn
The Free Exercise Clause and the Establishment Clause
The Free Exercise Clause is one of two religious freedom clauses in the First Amendment of the U.S. Constitution, the other being the Establishment Clause. The Establishment Clause and the Free Exercise Clause together read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The Establishment Clause prevents the federal government from establishing a national religion, while the Free Exercise Clause prohibits government interference with religious belief and, within limits, religious practice.
The Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects. It protects the right to freely practice one's preferred religion. However, the protection of religiously motivated conduct has waxed and waned over the years. While the freedom to hold religious beliefs is absolute, the freedom to act on those beliefs cannot be. For instance, in Reynolds v. United States (1878), 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 Supreme Court has applied a "strict scrutiny" standard to the Free Exercise Clause, requiring accommodation of religious conduct except where a state can show a compelling interest and no less burdensome means to achieve that end. In Sherbert v. Verner, 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.
However, in Employment Division v. Smith (1990), the Supreme Court ruled that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)". This ruling established the prevailing standard governing most laws.
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The Free Exercise Clause and the freedom to believe
The Free Exercise Clause, part of the First Amendment to the United States Constitution, prohibits government interference with religious belief and, within limits, religious practice. The Establishment Clause and the Free Exercise Clause together state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".
The Free Exercise Clause is about the freedom to believe and the freedom to act. The Supreme Court has affirmed that the Free Exercise Clause protects religious beliefs, but protection for religiously motivated conduct has varied over time. The freedom to hold religious beliefs and opinions is absolute, but religious actions are subject to regulation for the protection of society. The Court has said that laws "cannot interfere with mere religious beliefs and opinions, but they may with practices".
The Court's modern-day free exercise jurisprudence largely stems from the 1940 case of Cantwell v. Connecticut, where the Supreme Court held that the Free Exercise Clause is enforceable against state and local governments. The Court described the two concepts of the Religion Clauses: "freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be".
The Court has also clarified that religious actions, as opposed to beliefs, are "subject to regulation for the protection of society". This means that a law that burdens but does not directly regulate religious belief is not categorically prohibited but will likely still be subject to constitutional scrutiny. The Court has cautioned that the government must exercise its regulatory power cautiously so it does not "unduly infringe" religious freedom.
The Free Exercise Clause has been interpreted and applied in numerous cases over the years, with the Supreme Court's interpretation evolving as the nation grows. For example, in Sherbert v. Verner, the Court overturned a state decision to deny unemployment benefits to a practising 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 her religious beliefs.
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The Free Exercise Clause and the freedom to act
The Free Exercise Clause, one of two religious freedom clauses in the US Constitution, prohibits government interference with religious belief and, within limits, religious practice. The Establishment Clause and the Free Exercise Clause together state:
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
The Free Exercise Clause embraces two concepts: freedom to believe and freedom to act. While the first is absolute, the freedom to act cannot be, in the nature of things. Religious actions, as opposed to beliefs, are subject to regulation for the protection of society. The Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, but protection for religiously motivated conduct has waxed and waned over the years.
The Court's modern-day free exercise jurisprudence dates back to Cantwell v. Connecticut (1940). In this case, the Court described the religion clauses as embracing "two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." The Court further clarified that religious actions are "subject to regulation for the protection of society."
The Court has also cautioned that the government must exercise its regulatory power cautiously so as not to "unduly ... infringe" religious freedom. This means that the government cannot burden religious beliefs without subjecting itself to strict scrutiny. For example, in Sherbert v. Verner, 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 her religious beliefs.
In conclusion, while the Free Exercise Clause protects the freedom to believe, the freedom to act is subject to certain limitations and regulations. The Court has applied a strict scrutiny standard to balance the secular interest asserted by the government against the claim of religious liberty asserted by the individual.
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The Free Exercise Clause and the Supreme Court
The Free Exercise Clause, one of two religious freedom clauses in the US Constitution, prohibits government interference with religious belief and, within limits, religious practice. The Supreme Court has interpreted the Free Exercise Clause differently over time, with its interpretation evolving as the nation grows.
The first case to closely examine the Free Exercise Clause was Reynolds v. United States in 1878, which dealt with the prosecution of a polygamist under federal law and the defendant's claim of protection under the Free Exercise Clause. The Court upheld Reynolds' conviction for bigamy, deciding that constitutional protection for a wide range of religious beliefs, including those as extreme as human sacrifice, would be the result of ruling in Reynolds' favour. The Court also stated that while laws cannot interfere with religious beliefs and opinions, they may interfere with practices.
In Cantwell v. Connecticut in 1940, the Supreme Court held that the Free Exercise Clause is enforceable against state and local governments. The Court described the two religion clauses as embracing "two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." The Court also clarified that religious actions, as opposed to beliefs, are "subject to regulation for the protection of society."
In Sherbert v. Verner, 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. The Court stated that "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."
In Employment Division v. Smith in 1990, the Supreme Court ruled that "the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). This ruling established the prevailing standard governing most laws regarding the Free Exercise Clause.
In Church of Lukumi Babalu Aye v. City of Hialeah in 1993, the Supreme Court stated that inquiries about whether laws discriminate based on religion are not limited to the text of the laws in question. Facial neutrality of laws is not determinative in these inquiries because both the Free Exercise Clause and the Establishment Clause extend beyond facial discrimination.
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The Free Exercise Clause and the separation of church and state
The Free Exercise Clause, part of the First Amendment to the United States Constitution, prohibits government interference with religious belief and, within limits, religious practice. The Establishment Clause and the Free Exercise Clause together state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The Free Exercise Clause promotes a free religious market by precluding the taxation of religious activities by minority sects.
The Free Exercise Clause protects the right to freely practice one's preferred religion, ensuring the liberty of individuals to reach, hold, practice, and change beliefs according to their conscience. This clause upholds the separation of church and state, a principle also reflected in the Establishment Clause, which prevents the federal government from establishing a national religion.
While the Free Exercise Clause safeguards religious beliefs, protection for religiously motivated conduct has varied over time. The Supreme Court has drawn a distinction between beliefs and actions, stating that while laws cannot interfere with religious beliefs and opinions, they may regulate practices. This distinction is evident in cases such as Reynolds v. United States (1878), where the Supreme Court upheld the conviction of Reynolds for bigamy, arguing that providing constitutional protection for certain religious beliefs could lead to extreme practices.
The Court has applied a "strict scrutiny" standard to the Free Exercise Clause, requiring accommodation of religious conduct unless the state demonstrates a compelling interest and no less burdensome means to achieve it. An example is Sherbert v. Verner, where the Court ruled in favour of a member of the Seventh-day Adventist Church who was denied unemployment benefits due to her refusal to work on Saturdays, a tenet of her religion.
However, the Court has also clarified that religious actions are subject to regulation for the protection of society, as seen in Cantwell v. Connecticut (1940). This case established the framework for the Court's interpretation of the Free Exercise Clause, recognising the freedom to believe and the freedom to act, with the latter being subject to reasonable limitations.
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Frequently asked questions
The Free Exercise Clause is one of two religious freedom clauses in the U.S. Constitution. The other is the Establishment Clause. The Free Exercise Clause prohibits government interference with religious belief and, within limits, religious practice.
The Establishment Clause and the Free Exercise Clause together state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".
The freedom to hold religious beliefs and opinions is absolute. However, the freedom to act on those beliefs is not. The Court has clarified that religious actions, as opposed to beliefs, are "subject to regulation for the protection of society".
The Supreme Court's interpretation of the Free Exercise Clause has evolved over time, from a relatively narrow view to a broader view in the 1960s, and later receding again. The Court has applied a strict scrutiny standard to the First Amendment religion clauses, requiring accommodation of religious conduct unless the state can show a compelling interest and no less burdensome means to achieve that end.
One example is Sherbert v. Verner, where the Court overturned a state's decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church who was forced out of a job due to her religion's prohibition of working on Saturdays. Another example is Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, where the Court established a "ministerial exception" that precludes the application of employment discrimination laws to religious institutions and their ministers.
