Religious Freedom: Constitutional Protections For Whom?

The First Amendment of the US Constitution provides protections for the free exercise of religion. These protections are often referred to as 'religious liberty' or 'religious freedom'. In recent years, the Supreme Court has emphasised the importance of the Free Exercise Clause, strengthening its protections. However, the Court has also distinguished between governmental actions that have the indirect effect of frustrating religious practices and those that actually prohibit religious belief or conduct. This has resulted in a belief-conduct dichotomy, where religiously motivated conduct is not entitled to special protection.

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The Free Exercise Clause

In other words, the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. For example, a sincerely held religious belief that the assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for its own record-keeping purposes.

In recent years, the Supreme Court has emphasised the importance of the Free Exercise Clause and appears to be strengthening its protections. For instance, in his majority opinion in Kennedy, Justice Gorsuch spoke of the First Amendment's "double protection for religious expression" under both the Free Exercise and Free Speech Clauses.

However, it is worth noting that individuals and corporations may have greater religious liberty protections under federal statutes (RFRA or RLUIPA) or state constitutions and statutes than under the Constitution through the Free Exercise Clause. As a result, individuals often file statutory claims for religious liberty under RFRA or RLUIPA instead of constitutional claims under the Free Exercise Clause.

The Religious Freedom Restoration Act of 1993 (RFRA)

The RFRA prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so.

The RFRA was passed in response to the broad ramifications of Smith, in an attempt to provide additional legislative protection for religious exercise. The Act sought to supersede Smith and substitute a statutory rule of decision for free exercise cases.

The RFRA has been used in cases such as Burwell v. Hobby Lobby (2014), which drew concerns about the law being used to permit discrimination against communities such as religious minorities, nonreligious people, people of colour, women, and the LGBTQ community.

The Free Speech Clause

The Supreme Court has recently emphasised the importance of the Free Exercise Clause, suggesting that protections under this clause may be strengthening. This could impact how individuals and corporations seek to protect their religious liberty, as they may have greater protections under federal statutes or state laws than under the Constitution through the Free Exercise Clause.

Despite this, the Free Speech Clause remains a crucial component of religious liberty in the United States. It ensures that individuals have the right to express their religious beliefs and engage in religiously motivated conduct without facing discrimination or adverse treatment from the government.

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The First Amendment

The Religious Freedom Restoration Act of 1993 (RFRA) sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so.

The Supreme Court has emphasised the importance of the Free Exercise Clause and appears to be strengthening its protections. However, the Court has also returned to a belief-conduct dichotomy, under which religiously motivated conduct is not entitled to special protection. This means that even if a law has the incidental effect of burdening a particular religious practice, it need not be justified by a compelling governmental interest.

Individuals and corporations may have greater religious liberty protections under federal statutes (RFRA or RLUIPA), state constitutions, or state statutes than under the Constitution through the Free Exercise Clause. As a result, individuals often file statutory claims for religious liberty under RFRA or RLUIPA, instead of constitutional claims under the Free Exercise Clause.

The Supreme Court

The Court has distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct. For example, the Court held that a sincerely held religious belief that the assignment of a social security number would rob a child of her soul was insufficient to bar the government from using the number for record-keeping purposes.

In his majority opinion in Kennedy, Justice Gorsuch spoke of the First Amendment's "double protection for religious expression" under both the Free Exercise and Free Speech Clauses.

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