Freedom of religious belief and practice protected, in significant part, by the free exercise clause of the First Amendment.

The Supreme Court’s attention to religious freedom has focused primarily on the meaning of the First Amendment’s free exercise clause, though from time to time it has also considered other federal and state laws regarding religious liberty. The First Amendment prevents Congress from making laws prohibiting the free exercise of religion. Although the text of the clause limits its application to congressional infringements on religious liberty, the Court, beginning in the 1940’s, declared this liberty to be one of the fundamental rights of free citizens made applicable to state and local governments through the due process clause of the Fourteenth Amendment. Therefore, as currently interpreted by the Court, the constitutional protection of the free exercise of religion applies to government action at every level.

In modern times, government actions specifically targeting unpopular religions for unfavorable treatment have been relatively rare. Far more common are claims by religious believers for exemptions from the requirements of otherwise generally applicable laws. The first significant claim of this sort reached the Court in the last part of the nineteenth century. The Court’s resolution of the issue in that context though briefly repudiated for part of the twentieth century continues to guide its treatment of free exercise claims.

The case that became Reynolds v. United States[case]Reynolds v. United States[Reynolds v. United States] (1879) grew out of efforts by the administration of President Ulysses S. Grant to stamp out the practice of polygamy in the Utah territory. Relying on a federal antibigamy law that prohibited the marriage of one person to multiple spouses, the Grant administration prosecuted numerous members of the Church of Jesus Christ of Latter-day SaintsChurch of Jesus Christ of Latter-day Saints (Mormons) who, as a matter of religious belief and practice, had consummated bigamous marriages. The Mormon Church attempted to challenge the federal law through a test case brought by George Reynolds, secretary to Mormon leader Brigham Young. After being convicted of bigamy in the Utah territorial district court and having his conviction affirmed in the Utah territorial supreme court, Reynolds appealed his case to the U.S. Supreme Court. The essence of his claim was that the First Amendment’s free exercise clause, in guaranteeing religious liberty, prevented the application against him of the federal antibigamy law, since bigamous marriage practices were an essential component of his religion.

The Court unanimously rejected Reynolds’s claim. In an opinion by Justice Morrison R. Waite, the Court distinguished between religious beliefs and religious actions, determining that beliefs were immune from legislative prescription but that actions fell within the proper provenance of the law. Reynolds, the Court opined, had been prosecuted not for his beliefs but for his bigamous actions. By the free exercise clause, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Moreover, the Court readily concluded that the practice of polygamy violated important social duties and was subversive of good order. Congress, then, had acted fully within its constitutional authority.

The Court also determined that the free exercise clause did not guarantee Reynolds an exemption from an otherwise valid exercise of lawmaking authority. Surely the believer in human sacrifice was not entitled to an exemption from the laws of murder nor was the widow who thought it her religious duty to burn herself on the funeral pyre of her husband entitled to an exemption from the laws forbidding suicide. In both cases, the law prohibited such acts, even when motivated by conscientious religious beliefs; and the free exercise clause did not secure any exemptions from these prohibitions. A contrary result was unthinkable to the Court. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Eleven years later, the Court lent its aid again to the war against polygamy. In Davis v. Beason[case]Davis v. Beason[Davis v. Beason] (1890), the Court upheld an Idaho territorial statute that denied the vote to those who practiced or advocated the practice of polygamy or who belonged to an organization that did so. The Court demonstrated the frailty of the barrier between the absolute protection given to religious beliefs and the lawful regulation of religious practices. Under the statute at issue in the case, mere advocacy of polygamy or membership in an organization such as the Mormon church that engaged in such advocacy was sufficient to suffer loss of voting rights. Moreover, the Court adopted a tightly circumscribed notion of religion itself. Religion, the Court declared, had to do with one’s relation to the Creator and to the obligations that arose from such a relation. Under this definition, the Court stripped the Mormon practice of polygamy of its claimed religiousness, thus finding additional reason to deny it protection under the free exercise clause.

For almost a hundred years, the interpretation of the free exercise clause adopted in Reynolds meant that religious believers were protected against being deliberately targeted by the government for hostile action but not from the burdens occasioned by generally applicable laws. As governments at all levels increased the measure of their lawmaking activity in the twentieth century, inadvertent collisions between religious practice and lawmaking increased in frequency. When legislative policies conflicted with the religious practices of influential segments of the population, lawmakers typically saw fit to craft exemptions for the religious believers in question. For example, when Congress implemented Prohibition’s ban on consumption of alcoholic beverages in the early part of the twentieth century, it took care to craft an exemption for the sacramental uses of wine important to many Christian faiths. Similarly, when Congress provided for compulsory military service at various junctures during the twentieth century, it made allowance for certain religious objections to combat by placing the holders of the requisite conscientious beliefs in noncombat positions.

At least in the case of conscientious objector status, the Court consistently took the position that the free exercise clause did not require this accommodation, but the normal workings of the political process were generally sufficient to shield influential religious practices from burdensome encounters with the law. Minority faiths, however, could not be assured of such solicitude from the political process, and the ruling in Reynolds deprived them of any constitutional harbor.

For a brief interval during the second half of the twentieth century, the Court appeared to reconsider Reynolds and adopt an interpretation of the First Amendment far more protective of religious practices. In Sherbert v. Verner[case]Sherbert v. Verner[Sherbert v. Verner] (1963), the Warren Court turned again to the question of whether a neutral law of general applicability might nevertheless amount to an unconstitutional burden on the free exercise of religion. At issue in Sherbert was a state unemployment compensation scheme that refused to pay benefits to a Seventh-Day Adventist who, for religious reasons, refused to work on Saturday, the day of her Sabbath. State officials judged that this refusal did not amount to the kind of “good cause” that would otherwise excuse a recipient of unemployment compensation benefits from accepting available work. A majority of the Court, however, in an opinion by Justice William J. Brennan, Jr., ruled that the state’s failure to pay the Sabbatarian unemployment benefits amounted to a violation of the free exercise clause. To condition the claimant’s receipt of unemployment benefits on her willingness to violate her conscientiously held religious beliefs required that the state demonstrate some overwhelming interest at stake in its legal requirement. Finding no such interest, the Court held that the state was required to pay the claimant the benefits.

The Court’s opinion in Sherbert seemed to indicate that the free exercise clause protected religious believers from even the unintended effects of otherwise generally applicable laws. The Court’s remedy in such cases was not to invalidate the law at issue in its entirety but simply to craft an exemption from the law’s demands for the religious claimant. Nine years after the Sherbert decision, the Court revisited this issue and seemed to reaffirm its basic holding in Sherbert. In Wisconsin v. Yoder[case]Wisconsin v. Yoder[Wisconsin v. Yoder] (1972), the Court considered whether a state compulsory attendance statute could be used to force Amish parents to send their children to school after age fourteen. First, the Court found that the statute imposed a burden on Amish religious beliefs and practices because the Amish insisted that their children would be unfavorably influenced by further schooling after the eighth grade. Second, the Court denied that the state had any compelling purpose for requiring further schooling of Amish children. Accordingly, a majority of the Court held, in an opinion by Chief Justice Warren E. Burger, that the Amish were exempted from the compulsory attendance statute, insofar as it required them to send their children to school beyond the eighth grade.

For roughly two decades after its decision in Yoder, the Court continued to adhere to the Sherbert/Yoder formulation of the free exercise clause: Religious believers were entitled to exemptions from laws that burdened their religious practices unless such laws were justified by some compelling governmental interest. Nevertheless, during these years, the Court routinely ruled against religious claimants who asserted free exercise claims. Sometimes, the Court found a significantly weighty public interest at stake, such as when it declined to exempt an Amish employer from the requirement of paying social securities taxes for his employees in United States v. Lee[case]Lee, United States v.[Lee, United States v.] (1982). In other cases, the Court found that the government interests involved in particular environments such as prisons or the military warranted greater deference to the government policies. Therefore, in Goldman v. Weinberger[case]Goldman v. Weinberger[Goldman v. Weinberger] (1986), the Court upheld an Air Force policy that prohibited an Orthodox Jewish officer from wearing a yarmulke, and in O’Lone v. Estate of Shabazz[case]O’Lone v. Estate of Shabazz[OLone v. Estate of Shabazz] (1987), the Court found that reasonable prison regulations would be upheld even when they conflicted with the sincerely held religious beliefs of prisoners. Finally, in some cases, the Court determined that government decisions about how to conduct its own affairs did not amount to a burden on religious belief or practice. For example, in Lyng v. Northwest Indian Cemetery Protective Association[case]Lyng v. Northwest Indian Cemetery Protective Association[Lyng v. Northwest Indian Cemetery Protective Association] (1988), a majority of the Court refused to interfere with government plans to allow the construction of a logging road on government property close to a sacred Native American religious site. Although the logging road would severely impair Native American religious practices, the Court held that the free exercise clause did not prevent the government from using its property as it saw fit.

Throughout the 1980’s the Court continued to affirm in principle the rigorous standard of protection for religious liberty set forth in Sherbert and Yoder, but to find in practice any number of reasons for rejecting particular religious claims. In Employment Division, Department of Human Resources v. Smith[case]Employment Division, Department of Human Resources v. Smith[Employment Division, Department of Human Resources v. Smith] (1990), the Court’s principles finally caught up with its practice. At issue in the case were two Native Americans who had been fired from jobs as drug rehabilitation counselors because they had ingested peyote in connection with Native American religious rites. The state of Oregon, where the case arose, classified peyote as a controlled substance and made no exception for sacramental use by Native Americans. After being fired, the two Native Americans sought to obtain unemployment compensation benefits but were refused them on the grounds that they had been fired for job-related misconduct. They, in turn, contested this refusal, claiming that it violated their rights to free exercise of religion. The Court, however, rejected this claim.

An application of the Sherbert/Yoder test would have required the state of Oregon to demonstrate some compelling purpose for its peyote law. In fact, Justice Sandra Day O’Connor, agreeing with the result in the case but not in the reasoning of the majority opinion by Justice Antonin Scalia, argued that there was such a compelling purpose and that the Native Americans were thus entitled to no exemption for the Oregon controlled substance law. Nevertheless, a majority of the Court followed Justice Scalia in revisiting the rule in Sherbert and Yoder. According to Scalia, these cases announced no general rule but merely offered protection for religious believers in certain limited circumstances. The true rule, he declared, was that religious believers normally had no recourse under the free exercise clause against laws that were not targeted at suppressing their religious beliefs or practices but simply had the effect of burdening those beliefs or practices. Because Oregon’s peyote law had not been created to target Native American religious practices but simply had the incidental effect of burdening that practice, the law was not subject to a successful free exercise challenge.

Reactions to the Court’s decision in Smith were immediate and stridently critical. Religious groups of all stripes combined with political leaders and legal scholars in denouncing the decision as a betrayal of the principles of religious liberty. In direct response to the Smith decision, Congress passed the Religious Freedom Restoration ActReligious Freedom Restoration Act (1993) three years later. This law required exemptions for religious believers from federal, state, or local laws that burdened their religious practice unless some compelling reason justified the law and the law was the least restrictive means of furthering the interest. To enact the law, at least as it applied to state and local governments, Congress relied on the Fourteenth Amendment, which authorizes Congress to pass laws to enforce the provisions of this amendment. Congress reasoned that it had power to enforce the protection of religious liberty because this liberty was clearly among those subject to the Fourteenth Amendment’s prohibition against depriving persons of “life, liberty, or property without due process of law.”

Congress’s attempt to invigorate the protections given religious conscience did not go unchallenged. As religious believers sought to wield the Religious Freedom Restoration Act in confrontations with state and local laws, government officials in these cases responded by arguing that Congress lacked the power to pass the Religious Freedom Restoration Act. In the last part of the 1990’s one of these cases reached the Court. Boerne v. Flores[case]Boerne v. Flores[Boerne v. Flores] (1997) involved a dispute between a Texas city and a Roman Catholic Church. The church wished to renovate its facilities to accommodate a swelling congregation. The city of Boerne, however, wished to preserve the historic ambiance of its downtown district, especially the mission-style Catholic sanctuary, and passed a historical preservation ordinance that blocked the church’s plans. When the church filed suit, claiming that the ordinance violated its rights under the Religious Freedom Restoration Act, the city responded by arguing that the federal law was unconstitutional. In a decision that surprised many observers, a majority of the Court agreed with the city and held that Congress’s attempt to overrule the effect of the Smith decision invaded the Court’s prerogatives. Championing its power to define the meaning of constitutional protections for liberty, the Court ruled that Congress lacked power to substitute its own view of free exercise for the view articulated by the Court’s opinion in Smith.

• Perhaps the best place to start any study of this subject is with a comprehensive history of religion in America, such as Edwin S. Gaustad’s Proclaim Liberty Throughout All the Land: A History of Church and State in America (New York: Oxford University Press, 2003). A next step might be to look at the history of how the courts have interpreted the Constittution’s religion clauses in a work such as Daniel O. Conkle’s Constitutional Law: The Religion Clauses (New York: Foundation Press, 2003) or Kermit L. Hall’s Conscience and Belief: The Supreme Court and Religion (New York: Garland, 2000). From there, one might go to works such as Melvin I. Urofsky’s Religious Freedom: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2002) and Phillip E. Hammond’s Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America (Walnut Creek, Calif.: AltaMira Press, 2004). Comprehensive collections of Court decisions relating to the First Amendment’s religion clauses are James John Jurinski’s Religion on Trial: A Handbook with Cases, Laws, and Documents (Santa Barbara, Calif.: ABC-Clio, 2003) and Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998).
• Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998) is a comprehensive collection of Court decisions relating to the religion clauses in the First Amendment. Less inclusive collections include The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Amish and the State, edited by Donald B. Kraybill (Baltimore, Md.: Johns Hopkins University Press, 1993), provides useful background for the Yoder case and the ongoing conflicts between the Amish and government concerning matters of religious conscience. Native American Cultural and Religious Freedoms, edited by John R. Wunder (New York: Garland, 1996), offers similar background to the Court’s encounters with Native American religious practices. Bette Novit Evans’s Interpreting the Free Exercise of Religion: The Constitution and American Pluralism (Chapel Hill: University of North Carolina Press, 1997) examines the Court’s decisions regarding religious liberty, focusing especially on the role of religious freedom in nurturing pluralism. The Catholic perspective of a respected federal appellate judge on religious liberty in the United States may be found in The Lustre of Our Country: The American Experience of Religious Freedom, by John T. Noonan, Jr. (Berkeley: University of California Press, 1998). In The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, by Stephen L. Carter (New York: Basic Books, 1993), the author challenges the Court’s religion cases as having undermined religious devotion.

Ballard v. United States

Boerne v. Flores

Church of Lukumi Babalu Aye v. Hialeah

Davis v. Beason

Employment Division, Department of Human Resources v. Smith

First Amendment

Fourteenth Amendment

Incorporation doctrine

Religion, establishment of

Reversals of Court decisions by Congress

Reynolds v. United States

Wisconsin v. Yoder