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The Free Exercise Clause

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Free Exercise Clause

            The First Amendment to the US Constitution, provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” That second clause is known as the “free exercise” clause. The language guarantees the right to hold religious beliefs and engage in religious practices that are part of their religious beliefs.[1] The clause also protects against intentional and unintentional federal and state government interference with religion.

            The free exercise of religion is one of the most important rights guaranteed by the Constitution, as the lack of religious rights was one of the reasons that the colonists rebelled in the first place, but the right is not unlimited. Though the Constitution provides that the government cannot prohibit the free exercise of religion, the government can regulate practices with rules of general applicability even if such rules have the effect of limiting religious rights.

The first Free Exercise Clause cases focused on explicit government restrictions on religious speech and belief. The first Free Exercise Clause case came before the Supreme Court of the United States’ in 1879 in Reynolds v. United States. There, the Court confronted a federal law that banned polygamy across the United States and its territories, and thus limited a Mormon religious practice (at the time). George Reynolds had married a second wife when his first wife was living because polygamy was encouraged by his religious beliefs.[2] In upholding the federal statute that prohibited polygamy, the Court reasoned that the government could punish criminal activity in general even if that activity would otherwise have been necessary to fulfill a religious belief.

Between 1879 and the mid-20th century, the Court only decided a handful of free exercises cases. Nearly 100 years later, the Supreme Court broadened its interpretation of the clause and what it protects.[3] It finally found a law to violate the Free Exercise Clause in 1963.

In Sherbert v. Verner, the petitioner’s employer fired her after she declined to work on Saturdays because her religious affiliation, the Seventh-Day Adventist Church, forbade working on the Sabbath. When she applied for unemployment benefits, the South Carolina employment commission declined to extend these benefits because she failed “to accept suitable work when offered.”

The Court developed a “compelling interest test” in Sherbert and applied strict scrutiny to laws impacting religious belief and practice. Under this test, if a plaintiff can show that the law infringes upon his free exercise, the government then has the burden to demonstrate the following two elements:

1)    The law serves a compelling secular state interest; AND

2)    The law is tailored in the least restrictive means possible to achieve this compelling secular state interest.[4]

If a plaintiff satisfies his end and the government fails to satisfy its burden, then the plaintiff is exempted from the law that targets his religious practice or belief.[5]

In Sherbert, the Court held that the state’s decision unconstitutionally burdened the petitioner’s free exercise of religion.[6] The Court reasoned that there was no compelling state interest that would justify withholding unemployment benefits and that withholding the benefits was a substantial infringement on the free exercise of religion. The Court also ruled that religious-based exemptions from laws of general applicability could sometimes be required.

In 1990, the Supreme Court again decided a seminal case on the free exercise clause. In Employment Division v. Smith, the Court upheld a law that banned all the of peyote which incidentally burdened a religious practice of members of a Native American Church who ingested peyote for sacramental purposes. The Court concluded that the Oregon law banning ingestion of peyote was constitutional because, while the law did burden religious practice, it was not specifically aimed at promoting or restricting religious beliefs. It was a neutral law of general applicability that attempted to stop illegal drug use. Thus, the law was constitutional.[7]

In deciding Smith, the Court indicated that the compelling interest test discussed earlier would only be applied if the law is specifically designed to interfere with religious belief and practices. 

            Still, the Supreme Court has ruled that even in the case of a facially neutral law, the state must make reasonable accommodations for religious practices where the freedom of religion involved outweighs the state interest in enforcing its law of general applicability. In Wisconsin v. Yoder,[8] the court required Wisconsin to exempt Amish teenagers from compulsory school attendance laws. Although the school attendance laws were certainly valid rules of general applicability, the reasons for the laws were not generally applicable to Amish society. The Court found that Amish society provided training and activities for its teenagers and that the state had failed to show that missing two years of school would impair the children or the public at large. It therefore required the state to make an exemption for the group’s sincerely held religious and societal belief system.

            However, if a government regulation does target a religious practice, it will be subjected to a very high standard even if the regulation seems otherwise reasonable. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,[9] the city of Hialeah banned the ritual slaughter of animals within the city limits. The evidence indicated that the law was targeted against the Santeria religious practice of animal sacrifice. Because the law targeted a religion, it could be allowed only if there were a compelling state interest that required the ordinance. Reasonable though the banning of ritual animal slaughter may seem, the state had failed to show a compelling reason to target this particular religious practice to the exclusion of other animal killings. Therefore, the ordinance was struck down as a violation of the free exercise clause of the First Amendment.

As part of the first cause of the First Amendment, the free exercise of religion is one of the most fundamental rights under the U.S. Constitution. Still, the government can exercise some control over religious practices. The modern approach developed in Smith demonstrates that the government has quite a bit of leeway to regulate religious activities as long as the rules themselves are of general applicability and no particular religion is being targeted.


[2] Reynolds v. United States, 98 U.S. 145, (1879).

[3] Thomas Berg, “Free Exercise of Religion,” The Heritage Guide to the Constitution: Teaching Companion.

[4] Stephen Gottlieb, “Compelling Governmental Interests: An Essential But Unanalyzed Term in Constitutional Adjudication.”, 68 B.U.L. Rev. 917, (1988).

[5] Michael McConnell, “The Origins and Historical Understanding of Free Exercise of Religion.”,103 Harv. L. Rev. 1409, (1990).

[6] Sherbert v. Verner, 374 U.S. 398, (1963).

[7] Employment Div. v. Smith, 494 U.S. 872, (1990).

[8] 406 U.S. 205 (1972)

[9] 508 US 520 (1993)