The Free Exercise Clause in the United States

The second part of the First Amendment’s protection of freedom of religion is known as the Free Exercise Clause (the first is the establishment clause, for more information see here). It prevents Congress from “prohibiting the free exercise” of religion. The Establishment Clause limits government policies that help religion, whereas the Free Exercise Clause restricts government actions that hurt religion. In general, a person has an absolute right to freedom of religious belief; however, the government can regulate the actions a person takes to express those beliefs. Today, most Free Exercise cases do not involve laws that directly discriminate against a specific denomination, but rather general laws that have a negative impact upon a particular religious group.

Polygamy

The Supreme Court dealt with the Free Exercise Clause for the first time in Reynolds v. United States (1879). Federal law prohibited polygamy in the territory of Utah, but Reynolds claimed the law interfered with his right to exercise his Mormon faith. The Court upheld Reynolds’s conviction, ruling that the Free Exercise Clause did not apply to acts that were “violations of social duties or subversive of good order.” Some sects of Mormons still practice polygamy or “plural marriage.”

Solicitation

The Court incorporated the Free Exercise Clause to apply to the states in Cantwell v. Connecticut (1940). In that case, the Supreme Court ruled that the Free Exercise Clause “embraces two concepts freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” Still, the Court struck down a Connecticut law that mandated licenses for religious solicitors. A key tenet of Cantwell’s faith as a Jehovah’s Witness was zealous proselytizing.

Jehovah’s Witnesses were so active in civil liberties cases that from 1938 to 1946, their faith was the subject of twenty-three Supreme Court decisions.

Saluting the Flag

“I think the Jehovah’s Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties.’ (Justice Harlan Fiske Stone)

Jehovah’s Witnesses also believed that pledging allegiance to the flag was a form of idolatry forbidden by the Ten Commandments. The U.S. flag salute during the 1930s involved an extended arm movement similar to the Nazi gesture of “Heil Hitler,” as Jehovah’s Witnesses pointed out. Many German Witnesses were executed by the Nazis for their beliefs, such as refusing to give the Hitler salute. After World War II, the flag salute changed from head salute followed by outstretched arm to hand over heart.

Nonetheless, school districts in numerous American communities passed regulations that permanently suspended any students who failed to salute the flag, including Jehovah’s Witness children. In Minersville School District v. Gobitis (1940), the Supreme Court upheld such flag-salute laws against the free exercise claims of Jehovah’s Witnesses, ruling that religious liberty must give way to political authority.

But several justices publicly changed their minds about the decision, particularly after it precipitated the worst religious violence in the United States in decades. In 1940 alone, more than 1,500 Witnesses were assaulted in 335 different attacks-including a castration in Nebraska. Only three years after Gobitis, while America was fighting World War II, the Supreme Court reversed itself in West Virginia State Board of Education n Barnette (1943). That case also involved Jehovah’s Witness schoolchildren.

Justice Robert H. Jackson’s majority opinion in Barnette made clear that the compulsory flag salute laws violated not only free exercise of religion but also free speech: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Justice Jackson also emphasized that the Bill of Rights was designed to protect the rights of unpopular minorities:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

A Compelling Interest

For many years, the Supreme Court ruled on free exercise claims using a particular legal test. First, the Court would decide if the religious beliefs at issue were sincere, although they did not need to be factually correct. “Men may believe what they cannot prove,” said the Court in United States v. Ballard (1944). Next, the Court would normally require the government to show a “compelling interest”-a very high legal standard-for keeping a policy that burdened a religious practice.

Using this test, the Court struck down a variety of laws as unconstitutional under the Free Exercise Clause. In two cases involving Seventh-Day Adventists, the Supreme Court held that people who quit jobs that conflict with their religious beliefs are entitled to unemployment benefits. And in Wisconsin v. Yoder (1972), the Court ruled that the Amish did not have to comply with a compulsory school attendance law beyond the eighth grade. However, the Supreme Court did require the Amish to pay social security taxes, despite their belief in self-sufficiency, in United States v. Lee (1982). The Court also ruled in Bob Jones University v. United States (1983) that private religious schools may be denied tax-exempt status if they discriminate based on race. In Goldman v. Weinberger (1986), the Court upheld military rules prohibiting nonregulation headgear, despite a Jewish officer’s request to wear a yarmulke on duty.

The Supreme Court significantly modified its “compelling interest” test for free exercise cases in Employment Division v. Smith (1990). In that case, Al Smith, a member of the Klamath tribe, was fired from his job as a substance abuse counselor for using peyote, a hallucinogenic cactus, as part of a religious ceremony. Smith argued that his taking peyote during a Native American ritual was no different than a Catholic alcoholism counselor receiving wine at communion. Smith was denied unemployment benefits because Oregon law prohibited the use of peyote. The Supreme Court ruled in Smith that when a criminal law was at issue, the government did not have to prove a compelling interest, unless the law specifically targeted certain religious groups.

A wide variety of religious organizations have criticized the Smith decision for unfairly penalizing minority religions. Congress enacted the Religious Freedom Restoration Act (RFRA) in 1993 to reinstate the compelling interest test in all free exercise cases. However, the Supreme Court declared RFRA unconstitutional in 1997, saying that Congress had exceeded its authority.

Free Exercise Clause

Leading Case Law

Among the main judicial decisions on this topic:

Employment Div., Oregon Dep’t of Human Resources v. Smith

Information about this important court opinion is available in this American legal Encyclopedia.

References

See Also

• Constitutional Law
• Individual Rights
• Statutory Protection
• Individual Rights

Tension between the Free Exercise and Establishment Clauses

Leading Case Law

Among the main judicial decisions on this topic:

Santa Fe Indep. School Dist. v. Doe

Information about this important court opinion is available in this American legal Encyclopedia. Locke v. Davey

Information about this important court opinion is available in this American legal Encyclopedia.

References

See Also

• Constitutional Law
• Individual Rights
• Statutory Protection
• Individual Rights

Free Exercise Clause Background