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Freedom of Religion and The Free Exercise Clause

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The Free Exercise Clause:
In addition to prohibiting the establishment of religion, the First Amendment prevents Congress from “prohibiting the free exercise thereof.”

Following our discussion of the Establishment Clause, and considering the second prong of the Lemon Test, it may seem as though the Free Exercise Clause is redundant when described merely as a means of preventing the government from burdening an individual’s pursuit of religion or from punishing individuals on the basis of their beliefs. Although at first glance any such law would appear to have the “primary effect of inhibiting religion”, and thus an establishment clause violation in any case, laws which have a secondary or unintended effect of burdening religion may also run afoul of the Free Exercise Clause. In Chapter 4, we saw that a state’s decision not to extend unemployment benefits to those who did not make themselves available for work during the day (because they chose instead to attend school) did not violate the Equal Protection Clause.  See Idaho Department of Employment v. Smith, 434 U.S. 100 (1977). A state’s decision not to extend unemployment benefits to citizens who are not available to work weekends, however, would likely violate the Free Exercise Clause if they are unable to work weekends due to observance of the Sabbath. See Sherbert v. Verner, 374 U.S. 398 (1963).

EXAMPLE (1): Northernstate passes a law which provides that “no state employee shall publicly display a religious symbol while on duty in a public building.” This law has the primary effect of inhibiting religion insofar as certain religions require the public display of symbols. The law would fail the second part of the Lemon Test.

EXAMPLE (2): Easternstate passes a law which provides that “no law enforcement officer shall wear a hat or other headgear while on duty which is not part of the official uniform.” The law was passed primarily to address the wearing of baseball caps and cowboy hats by various members of the force. Although the primary effect of the law is not to inhibit religion, an Orthodox Jew would thereby be prevented from wearing a yarmulke (a skullcap required by the religion). While this law does not necessarily violate the second prong of the Lemon test, it may violate the Free Exercise Clause unless the government can show a compelling interest in upholding the regulation. See Goldman v. Weinberger, 475 U.S. 503 (1986).

The Free Exercise Clause prohibits governmental interference with religion even if the interference is entirely unintentional. If the interference is intentional, the law will almost always be found to conflict with the Free Exercise Clause. If the interference is unintentional, so long as the law is the least restrictive means of achieving a compelling state interest, the law will be upheld. Importantly, if the state goal could be equally well served while granting an exemption which would avoid the religious interference, the exemption must be granted in order for the law to pass muster.

EXAMPLE: Massahampshire passes a law providing that all children in the state must attend school until the age of 16. A small but established community of Amish citizens objects, arguing that their religion requires that children be taught the ways of the land and that they can be educated informally by their community. The Amish also contend that compulsory public school education conflicts with their religious beliefs. Because the state’s goals can largely be achieved even if the Amish are granted an exemption from the law, such an exemption must be granted to prevent the law from violating the Free Exercise Clause. See Wisconsin v. Yoder, 406 U.S. 205 (1972).

Since 1990, there has been some question as to how laws which unintentionally infringe on religion will be assessed. In Employment Div. Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), the Court examined a law of general applicability which criminally prohibited the use of peyote. Peyote, a controlled substance similar to marijuana, was used in ceremonies of the Native American Church, members of which challenged the law as a Free Exercise Clause violation. The Court explicitly refused to perform the balancing test laid out in Sherbert to determine the impact that a limited exemption would have on the state’s ability to achieve its goals. As the Court noted some years later, such an exemption

“would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability."

The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual's religion. City of Boerne v. Flores, 521 U.S. 507 (1997). The exemption analysis laid out in Sherbert, therefore, will not apply to laws of general applicability. Since then, Congress has passed RFRA (Religious Freedom Restoration Act of 1993) and RLUIPA (Religious Land Use and Institutionalized Persons Act of 2000) to "provide greater protection for religious exercise than is available under the First Amendment..." Holt v. Hobbs, 135 S. Ct. 853, 859 (U.S. 2015)

EXAMPLE: Westernstate’s criminal code provides, in part, that “no parent, custodian or legal guardian shall intentionally deprive a child of necessary food or water.” Ralph and Alice belong to a small but fervent religious sect that requires that all members must fast for 48 hours twice each year, regardless of age. Their child, Norton, was born diabetic and they have been advised to maintain Norton’s blood sugar level by giving him orange juice at certain times of each day. During the fasting period, they refuse to give their child the orange juice which results in the child’s death. The criminal law of general applicability will likely be upheld as applied in this case, their religion notwithstanding.

We began this Subchapter 4 by pointing out that not every Free Exercise Clause claim will fail the second prong of the Lemon Test and therefore overlap with an Establishment Clause claim. We end by examining an even more interesting interaction between the clauses: the two clauses can sometimes conflict and dictate different outcomes in a case. Although the U.S. Supreme Court has not explicitly given guidance in such a case, it appears that when the clauses are in conflict, the Free Exercise Clause will be determinative over the Establishment Clause. After all, the argument goes, if the Free Exercise Clause mandates that the government take some action how can the Establishment Clause possibly forbid the same action?

EXAMPLE: The New Wilton school district gives financial aid to all the private schools in the district, including Catholic schools. While this financing of parochial educational institutions might seem to violate the Establishment Clause, what would be the Free Exercise Clause effect of giving large sums only to public schools and denying those same funds to religious schools? If such state action would have the result of burdening religious school students and forcing them to abandon their schools for the public schools, the Free Exercise Clause would mandate that, despite Establishment Clause concerns, the money must be evenly distributed.

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