The Free Exercise Clause
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88
The first amendment specifies that “Congress shall make no law . . . prohibiting the free exercise [of religion].” This language generally is referred to as the “free exercise clause.” The free exercise clause remained a dormant provision of the Bill of Rights for nearly a century and a half following its adoption. This was based largely on two factors. First, Congress seldom if ever took any action that interfered with the exercise of anyone's religion. Second, in its first decision interpreting the free exercise clause, the Supreme Court ruled in 1878 that while federal laws “cannot interfere with mere religious belief and opinions, they may with practice.”1 According to this interpretation, the free exercise clause would be violated only by congressional legislation that interfered with an individual's religious beliefs, and not with religiously--motivated conduct.
Two developments significantly increased the relevance and application of the free exercise clause. The first occurred in 1940, when the Supreme Court “incorporated” the first amendment religion clauses into the fourteenth amendment “due process” clause, thereby making the first amendment a limitation upon state (and local) governments as well as Congress. Prior to 1940, only federal legislation could violate the free exercise clause. Since 1940, the same is true of state and local legislation and regulations. Clearly, this had the effect of greatly expanding the application of the free exercise clause. Second, in 1963 the Supreme Court issued a major reinterpretation of the free exercise clause in the case of Sherbert v. Verner.2 In the Sherbert case, the Court departed from the simplistic “belief--conduct” standard that it had enunciated in its earlier Reynolds decision and announced that a government statute or regulation that imposes a “burden” on the free exercise of one's religion violates the free exercise clause unless the statute or regulation is justified by a “compelling state interest.” This test was clarified a few years later in Wisconsin v. Yoder.3 The Supreme Court articulated its understanding of the free exercise clause as follows:
1. Government may never interfere with an individual's right to believe whatever he or she wants.
2. In determining whether the government may interfere with or restrict religiously motivated conduct, the courts must consider (a) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (b) whether the activity was unduly and substantially burdened by the government's action, and (c) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.
This general understanding of the free exercise clause was applied by the Court in several cases.4
Another major change in the Court's understanding of the free exercise clause occurred in 1990. In Employment Division v. Smith,5 the Court held that a state need not demonstrate a “compelling state interest” in order to justify a “generally applicable criminal law” that burdens the free exercise of religion. The Court observed that “we have 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.” On the contrary, the constitutional guaranty of religious freedom “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 [prohibits] conduct that his religion prescribes.” The Court justified its refusal to apply the “compelling state interest” test by noting that (a) it had not applied the test in a number of its recent decisions, (b) it had never found a state law limiting religious practices invalid on the ground that it was not supported by a compelling state interest, and (c) the compelling state interest test should never be applied “to require exemptions from a generally applicable criminal law.”
The Court's ruling in Smith represents a clear departure from its previously well--established understanding of the constitutional guaranty of religious freedom. No longer will a state need to demonstrate that a “compelling state interest” supports a “generally applicable law” that prohibits or restricts religious practices. This is unfortunate, and will tend to make it more difficult to prove that a state's interference with religious practices violates the guaranty of religious freedom.
Four of the Court's nine justices disagreed with the Court's analysis, and with the virtual elimination of the “compelling state interest” test. The minority asserted that the Court's ruling diminished the guaranty of religious liberty by making it more difficult for persons to prove a violation of this fundamental constitutional guaranty. One of the dissenting Justices lamented that the Court's decision tilts the scales “in the state's favor,” and “effectuates a wholesale overturning of settled law concerning the religion clauses of our Constitution. One hopes that the Court is aware of the consequences . . . .”6
The Smith case suggests that the Court is moving back towards the old “belief--conduct” analysis articulated more than a century ago in Reynolds—religious belief is protected by the free exercise clause, but not religiously--motivated conduct.7 This shift has generated much criticism and opposition, which will ensure further reinterpretations of the free exercise clause.
For now, the Supreme Court's interpretation of the free exercise clause may be summarized as follows:
1. Government may never interfere with an individual's right to believe whatever he or she wants.
2. In deciding whether or not a government law, regulation, or practice that burdens religiously motivated conduct violates the free exercise clause, apply the following principles:
a. “Generally applicable criminal prohibitions” that burden religiously motivated conduct do not violate the free exercise clause.8 Such prohibitions are presumptively valid and need not be supported by a compelling state interest.
b. In all other cases, the courts must consider (a) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (b) whether the activity was unduly and substantially burdened by the government's action, and (c) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.
Finally, two additional observations must be made about the free exercise clause. First, the concept of free exercise is fundamentally incompatible with the philosophy of disestablishment contained in the establishment clause. This tension has been aggravated in the past few decades by judicial emphasis upon disestablishment. Chief Justice Burger, in the Walz decision, commented on this underlying tension: “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”9 Similarly, Justice Stewart, dissenting in Schempp, observed: “[T]here are areas in which a doctrinaire reading of the establishment clause leads to irreconcilable conflict with the free exercise clause.”10 The Supreme Court in more recent years has attempted to synthesize the religion clauses by emphasizing the concept of neutrality:
The general principle deducible from the first amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.11
Second, the notion that religiously motivated conduct is subordinate, at least in some cases, to compelling governmental interests involves an intrinsically subjective test. When is a governmental interest “compelling”? The answer in each case ultimately depends upon a judge's convictions about the proper extent and content of religious practice. The following cases, which represent significant interpretations of the free exercise clause by the federal courts, are presented to provide additional insight into the meaning of this important constitutional provision.
Table 17--2
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Selected Laws and Governmental Practices Challenged in the Federal Courts Under the Free Exercise Clause Since 1970 |
Constitu-- |
Unconsti-- |
|
1. A state law denied workers compensation benefits to employees who were dismissed from their jobs because of the “sacramental” use of peyote. Employment Division v. Smith, 110 S. Ct. 1595 (1990). |
X |
|
|
2. A religious organization was required to pay state sales taxes on sales of its religious literature. Jimmy Swaggart Ministries v. Board of Equalization, 110 S. Ct. 688 (1990). |
X |
|
|
3. The federal government constructed a road through land used by Native Americans for religious purposes. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). |
X |
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|
4. A prison refused to excuse inmates from work requirements to attend worship services. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). |
X |
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5. A state law denied workers compensation benefits to an employee who was dismissed because of his refusal (based on religious convictions) to work on the Sabbath. Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987). |
X |
|
|
6. An Air Force regulation prohibiting indoor headgear was applied to a Jewish officer whose religion compelled him to wear a yarmulke. Goldman v. Weinberger, 475 U.S. 503 (1986). |
X |
|
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7. IRS revoked religious university's tax--exempt status because of its rule prohibiting interracial dating and marriage. Bob Jones University v. United States, 461 U.S. 574 (1983). |
X |
|
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8. An Amish farmer and his employees were required to pay social security taxes though the payment of such taxes violated their religious convictions. United States v. Lee, 455 U.S. 252 (1982). |
X |
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9. State university refused to permit Christian students to use vacant classrooms on a regular basis for religious exercises. Widmar v. Vincent, 454 U.S. 263 (1981). |
X |
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10. Tennessee constitution forbade clergy from running for state legislature. McDaniel v. Paty, 435 U.S. 618 (1978). |
X |
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11. A state law required that license plates bear a specified slogan, even though the slogan offended the religious beliefs of some individuals. Wooley v. Maryland, 430 U.S. 705 (1977). |
X |
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Selected Laws and Governmental Practices Challenged in the Federal Courts Under the Free Exercise Clause Since 1970 |
Constitu-- |
Unconsti-- |
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12. A state law requiring all children to attend school until age 16 challenged by Amish sect that refused to send children to school past the eighth grade. Wisconsin v. Yoder, 406 U.S. 205 (1972). |
X |
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13. A state law prohibiting Sunday retail sales of several items violated the religious beliefs of Jewish retailers. Braunfeld v. Brown, 366 U.S. 599 (1961). |
X |
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14. A church was required to comply with federal minimum wage law though this violated its religious beliefs. Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). |
X |
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15. A state compulsory attendance law requiring children to attend schools (public or private) “approved” by the state offended religious beliefs of a church school. New Life Baptist Church Academy v. East Longmeadow, 885 F.2d 940 (1st Cir. 1989). |
X |
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16. Contributions to a religious organization were invalidated on the basis of undue influence. In re The Bible Speaks, 869 F.2d 628 (1st Cir. 1989). |
X |
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17. A city zoning law prevented a church from constructing a new building on an 80--acre tract of vacant land in an area zoned for agricultural uses. Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988). |
X |
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18. An IRS summons demanded that a church produce documents in a criminal investigation of a church member. St. German of Alaska Eastern Orthodox Catholic Church v. Commissioner, 840 F.2d 1087 (2nd Cir. 1988). |
X |
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19. Public school textbooks promoted evolution, feminism, role reversal, and occultism, contrary to the religious beliefs of some parents and students. Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987). |
X |
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20. A federal law requiring churches and their employees to be covered under social security offended the religious beliefs of a church. Bethel Baptist Church v. United States, 822 F.2d 1334 (3rd Cir. 1987). |
X |
|
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21. A church “shunned” a dismissed member. Paul v. Watchtower Bible and Tract Society of New York, 819 F. 2d 875 (9th Cir. 1987). |
X |
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22. A Mennonite seminarian was prosecuted for his failure to register with the Selective Service System, though his decision was based on his religious beliefs. United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987). |
X |
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Selected Laws and Governmental Practices Challenged in the Federal Courts Under the Free Exercise Clause Since 1970 |
Constitu-- |
Unconsti-- |
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23. State terminated welfare assistance to a child for lack of a social security number despite parents' claim that they were opposed to social security numbers on religious grounds. Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981). |
X |
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24. Government charged defendant with counterfeiting currency notwithstanding his belief that he was justified in his actions because of his objection, based on religious grounds, to the currency system established by the Federal Reserve Act. United States v. Grismore, 564 F.2d 929 (9th Cir. 1977). |
X |
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25. Police department grooming regulations interfered with the religious convictions of some officers. Marshall v. District of Columbia, 559 F.2d 726 (D.C. Cir. 1977). |
X |
|
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26. Pacifist Quakers compelled by the IRS to pay full income tax without deduction for governmental military spending. Graves v. Commissioner, 529 F.2d 392 (6th Cir. 1978). |
X |
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27. The federal government charged an Indian with violation of the Bald Eagle Protection Act notwithstanding his claim that his sale of eagle parts and feathers constituted the free exercise of his religion. United States v. Top Sky, 547 F.2d 486 (9th Cir. 1976). |
X |
|
|
28. A religious organization lost its tax--exempt status for engaging in political activities. Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (10th Cir. 1972). |
X |
|
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29. A court ruled that a defendant was in contempt for his refusal, allegedly based on religious grounds, to stand when the judge and jury entered the courtroom. In re Chase, 468 F.2d 128 (7th Cir. 1972). |
X |
|
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30. Black Muslim convicted of smuggling heroin despite defense that usage of drugs was sanctioned by his religion. United States v. Spears, 443 F.2d 895 (5th Cir. 1971). |
X |
|
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31. Civil court review of church decisions to discipline or dismiss a member on the basis of ecclesiastical considerations. Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30 (D.D.C. 1990). |
X |
|
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32. A state law required church--operated child care facilities to be licensed by the state. North Valley Baptist Church v. McMahon, 696 F. Supp. 518 (E.D. Cal. 1988). |
X |
|
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33. A public junior high school prohibited students from distributing religious literature in school hallways before the start of each school day. Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pa. 1987). |
X |
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Selected Laws and Governmental Practices Challenged in the Federal Courts Under the Free Exercise Clause Since 1970 |
Constitu-- |
Unconsti-- |
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34. A state workers compensation statute was applied to a church though this offended the church's religious beliefs. South Ridge Baptist Church v. Industrial Commission, 676 F. Supp. 799 (S.D. Ohio 1987). |
X |
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35. A high school prohibited religious groups from using an auditorium that was available without restriction to non--religious community groups. Gregoire v. Centennial School District, 674 F. Supp. 172 (E.D. Pa. 1987). |
X |
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36. City ordinance banned solicitation of funds for religious purposes and the distribution of religious literature without a city--issued permit. Cherris v. Amundson, 460 F. Supp. 326 (E.D. La. 1978). |
X |
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37. City ordinance forbade all religious proselytizing without first listing as references two owners of city business property who would attest to the good moral character and reputation for honesty of the applicant. Levers v. City of Tullahoma, 446 F. Supp. 884 (E.D. Tenn. 1978). |
X |
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38. City ordinance forbade the distribution of religious materials from door to door. Murdock v. City of Jacksonville, 361 F. Supp. 1083 (M.D. Fla. 1973). |
X |
For related information on this topic see the following articles: