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The Free Exercise Clause - Module 2 of 5

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Module 2: The Free Exercise Clause

Overview of the Free Exercise Clause

            The free exercise clause of the First Amendment unquestionably provides people with the right to freely exercise their religious beliefs without the fear of interference or reprisal from the government. The right to religious liberty is a cornerstone of preserving individual liberty and autonomy, of ensuring that diverse religious beliefs and practices receive equal protection under the law, and of preventing the government, through coercion or intimidation, from establishing or promoting particular religious faiths.

            Still, like all constitutional rights, it is not absolute. In some circumstances the government, based on competing and compelling interests, may regulate a particular religious practice. Thus, determining when the government may – or may not – restrict the right to freely exercise religion is critical to developing a comprehensive understanding of the free exercise clause.

In this module, we will examine the legal standards that courts rely on to decide whether laws infringing on the right to freely exercise religion violate the free exercise clause, and the contexts within which the government may restrict the freedom of religion. In so doing, we will focus on landmark cases decided by the Supreme Court that involve the following issues:

·         The distinction between religious beliefs and practices, and the constitutional protections afforded to beliefs as opposed to practices;

·         The constitutionality of laws that intentionally or inadvertently target particular religions;

·         The extent to which people may claim exemptions from generally applicable laws that infringe on sincerely held religious beliefs;

·         The courts’ authority to assess the validity of particular religious beliefs; and

·         The balance between respecting the rights of customers to receive service and business owners’ rights to refuse service based on religious beliefs.

In its early decisions interpreting the free exercise cause, the Supreme Court distinguished between the protections afforded to religious beliefs as opposed to practices. Although religious beliefs received the highest levels of constitutional protection, religious practices receive a lesser degree of protection and, as such, in some circumstances the government could permissibly regulate such practices.

The Supreme Court established this principle in Reynolds v. United States, where the petitioner, a member of the Church of Jesus Christ of Latter-day Saints, argued that the Anti-Bigamy Act, which prohibited individuals from having multiple wives, infringed on his religious beliefs allowing men to marry more than one woman.[1] The Supreme Court disagreed with the Petitioner’s argument, holding that, although Congress could not restrict religious beliefs, it could, in certain circumstances, regulate religious practices, such as polygamy. The Court stated:

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation…. Congress was deprived of all legislative power over mere opinion, but Congress was left free to reach actions which were in violation of social duties or subversive of good order.[2]

            Although Congress could not outlaw people’ right to believe in polygamy, it could regulate the practice of polygamy. Thus, after Reynolds, laws regulating religious practices could survive constitutional scrutiny if the government provided sufficiently compelling reasons to support such regulations.

Laws That Target or Disproportionately Impact Particular Religions

The Supreme Court has held that laws targeting or burdening particular religions, whether intentionally or inadvertently, violate the free exercise clause.

In Church of Lukumi Babalu Aye v. City of Hialeah, the Supreme Court confronted the issue of whether a law prohibiting the slaughter of animals “in a public or private ritual or ceremony not for the primary purpose of food consumption" violated the Free Exercise Clause.[3] A religious organization, which slaughtered animals during ritualistic ceremonies, claimed that the law infringed on its right to freely exercise religion.

In a unanimous decision, the Court held that the law violated the organization’s religious liberty because the legislature, when enacting the law, specifically targeted the religiously motivated slaughter of animals.[4] The key distinction between that case and others in which religious organizations were subject to general laws is that, there, the legislature did not merely strive to regulate a religious practice; rather, it specifically targeted for regulation the practices of a particular religion. Thus, the Court held that the discriminatory effects of such targeting violated the free exercise clause.

In Wisconsin v. Yoder, the Court considered whether a law requiring children to attend public school until the age of sixteen violated the free exercise clause, as applied to the Amish people. The petitioners, who were members of the Amish faith, argued that the law violated their religious beliefs, which including educating and raising children based on Amish religious doctrine and values.[5]

The Supreme Court ruled in favor of the Amish, holding the state’s interest in educating children did not outweigh the Amish’s religious beliefs. In so doing, the Court stated;

Formal high school education beyond the eighth grade is contrary to Amish beliefs not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and "doing," rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith -- and may even be hostile to it -- interposes a serious barrier to the integration of the Amish child into the Amish religious community.[6]

The Yoder Court predicated its decision on the fact that compliance with the state’s law would significantly undermine the Amish’s basic religious beliefs and mission. 

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a business owner who baked wedding cakes for soon-to-be married couples, refused to bake a wedding cake for a same-sex couple, claiming that doing so would violate his religious belief opposing same-sex marriage.[7]

In a 6-3 decision, the Supreme Court did not directly address whether business owners, because of their religious beliefs, may refuse services to same-sex couples. Instead, the Court reversed the Colorado Civil Rights Commission’s ruling in favor of the business owner because the Commission’s ruling demonstrated hostility, or animus, toward the business owner’s religious beliefs. Writing for the majority, Justice Anthony Kennedy emphasized that it was "inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law" to make statements showing disdain for and disapproval of the owners’ religious beliefs.[8]

The Court’s ruling in Masterpiece Cakeshop reaffirms the principle that laws or decisions targeting, disparately impacting, or evidencing hostility toward specific religions or religious beliefs violate the free exercise clause. 

Exemptions from Generally Applicable Laws

A frequent question arising under the free exercise clause is whether people may claim exemptions from generally applicable laws that apply to everyone on the basis that such laws infringe on their religious beliefs. The answer to this question depends on the severity of the infringement.

In Employment Division v. Smith, the Supreme Court considered whether a state may prohibit the use of controlled substances when that use was necessary to fulfill someone’s religious beliefs.[9] In that case, a private drug rehabilitation organization fired the petitioners because they ingested a hallucinogenic drug (peyote), which they claimed was an integral aspect of religious ceremonies at their Native American church.[10] Petitioners argued that, because their religious belief authorized the ingestion of peyote,  the law violated the free exercise clause.

The Supreme Court disagreed, holding that the law was generally applicable, as it applied to everyone equally, and thus did not target or reflect animosity for particular religions or religious beliefs.

Writing for the majority, Justice Antonin Scalia explained that the Court had never “held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”[11] Justice Scalia reasoned as follows:

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the person from the discharge of political responsibilities.

In the Court’s view, allowing people to claim exemption from a generally-applicable law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every person to become a law unto himself.”[12] As we discussed in module 1, though, Congress limited the abilities of laws to restrict religious freedom with the Religious Freedom Restoration Act. That act prohibited substantial interference with religious practice unless the government can show that it was necessary to achieve a compelling government interest (an inquiry process known as “strict scrutiny”).

The Supreme Court ruled the RFRA unconstitutional as applied to state laws, however, ruling that under principles of federalism, Congress cannot subject state legislation to this sort of scrutiny in federal court.[13] Still, the RFRA remains in full force and effect when the federal government is acting. So, federal legislation or action restricting religious freedom must still pass strict scrutiny.[14]

Assessing the Validity of Religious Beliefs

The Supreme Court has repeatedly interpreted the free exercise clause to prohibit legislatures and courts from assessing the validity or legitimacy of specific religious beliefs.

In U.S. v. Ballard, for example, the Supreme Court held that the free exercise clause protects people of all religious faiths, and that neither legislatures nor courts may inquire into the validity or legitimacy of a person’s religious beliefs.[15] In support of this holding, the Court explained:

Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths … Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law … If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. [16]

As the Court emphasized, “the First Amendment does not select any one group or any one type of religion for preferred treatment,” but rather “puts them all in that position.”[17]

Thus, the free exercise clause protects all religious beliefs, provided that one sincerely holds those beliefs. As Justice Neil Gorsuch has explained, the free exercise clause extends protection to “any ‘performance of or abstention from physical acts’ that a sincere claimant connects to his religion.’” As such, “there is no room for courts to determine whether the exercise at issue is ‘illogical’ or otherwise not ‘central’ or ‘fundamental’ to or ‘compelled’ by his faith”; as long as the claimant is sincere, he has the right to ‘draw… a line ruling in or out a particular exercise.”[18]

Judicially Created Religious Exemptions

The Supreme Court has recently addressed whether private and public organizations may refuse to provide services if doing so would violate their religious beliefs. This remains an unresolved area of the law and requires balancing a person’s interest in freely exercising his or her religion against the government’s interest in requiring all people to comply with the law.

In Burwell v. Hobby Lobby Stores, a closely-held corporation refused, on the basis of its religious beliefs, to comply with a federal regulation adopted pursuant to the Affordable Care Act that required corporations to offer contraception coverage for female employees.[19] In a 5-4 decision, the Court did not directly address whether the regulation violated the free exercise clause. Instead, the Court issued a narrow decision, holding that closely-held corporations may, based on religious beliefs, claim exemptions from federal regulations if there exists a less restrictive means to accomplish the government’s objective without infringing on religious beliefs.[20]

However, the Court did not decide the broader question of whether the regulation would, if no less restrictive means were available, violate the free exercise clause.

In Masterpiece Cakeshop, the Court also refused to decide whether a business owner must comply with anti-discrimination laws that violate the owner’s religious beliefs. Rather, the Court focused on the Colorado Civil Rights Commission’s decision, which demonstrated hostility toward the owner’s religious beliefs.[21]

Ultimately, this discussion highlights the legal principles that the Court has developed when interpreting the free exercise clause. Specifically:

1. Although religious beliefs receive the highest degree of constitutional protection under the free exercise clause, the government may restrict religious practices in some instances;

2. Laws that target, disparately impact, or show animus toward a particular religion or religious belief, violate the free exercise clause;

3. Generally applicable laws may violate the free exercise clause if they “substantially burden” religion;

4. Neither legislatures nor courts may assess the validity or legitimacy of particular religious beliefs; and

5. The balance between respecting customers’ right to receive services and  business owners’ right to refuse services to individuals based on religious beliefs remains unresolved.

In our next module, we will look at the application of establishment clause analysis in specific contexts.

[2] Id. supra (emphasis added).

[4] Id.

[5] Wisconsinv. Yoder, 406 U.S. 205 (1972).

[6] Id. supra.

[8] Id.

[9] Employment Division v. Smith, 494 U.S. 872 (1990).

[10] Id.

[11] Id.

[12] Id. (internal citation omitted).

[13] Cityof Boerne v. Flores, 521 U.S. 507 (1997).

[15] UnitedStates v. Ballard, 322 U.S. 78 (1944).

[16] Id.

[17] Id.

[18] Sean Janda, Judge Gorsuch and Free Exercise (2017)  (quoting Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014)).

[19] Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014).

[20] Id.

[21] Masterpiece Cakeshop, Ltd., supra note 7.