Free Exercise Clause

10 Key excerpts on "Free Exercise Clause"

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  Law and Religion

  • Peter Radan, Denise Meyerson, Rosalind F. Atherton(Authors)
  • 2004(Publication Date)
  • Routledge

    (Publisher)

  3

  The Free Exercise Clause of the United States Constitution

  Russell L.Weaver

  Introduction

  Because of a history of religious persecution in both Europe and the colonies, the American colonists insisted on constitutional protections for religious freedom. These demands ultimately led to the Free Exercise Clause of the First Amendment1 which prohibits Congress from making any laws ‘prohibiting the free exercise’ of religion. Nevertheless, since there was such widespread agreement about the need for religious freedom, the Framers left little evidence of their intent. Although there is widespread agreement that the clause protects religious thought, there is uncertainty about the extent to which it protects religious conduct. Even if it protects ‘conduct’, most commentators agree that the clause does not protect all conduct: for example, the state can prohibit a religion that believes in human sacrifice from actually killing people. This chapter explores the limits of the Free Exercise Clause.

  Burdens on religion

  Most free exercise cases involve laws that prohibit an individual from engaging in conduct required by religious beliefs, or require conduct prohibited by religious beliefs, such as compulsory school attendance laws and laws prohibiting the consumption of alcohol or illegal narcotics. In most cases, these laws are not directed at religion per se, but are designed to deal with some secular problem that incidentally affects religious practices. The issue is whether the individual’s interest in the free exercise of religion requires that the law give way (so that the individual gains an exemption from a governmental requirement or prohibition), or the state’s interest in universal compliance prevails over the individual’s religious interest.

  Early cases

  The United States Supreme Court has decided a number of cases involving claims for religious exemption. One of the earliest cases was Reynolds v United States2

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  Religion and the State in American Law

  • Boris I. Bittker, Scott C. Idleman, Frank S. Ravitch(Authors)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  210 5 The Free Exercise Clause A. Introduction and Note on Smith and Its Aftermath Central to the liberty of Americans is, and has long been, freedom of religion. This is true historically, given the country’s tradition of religious dissent and tolerance since at least the eighteenth century. It is true demographically, given the diversity of faiths that have emerged and today coexist across the national landscape. It is true aspirationally, as manifest in the “Four Freedoms” of both the 1939 New York World’s Fair 1 and President Franklin D. Roosevelt’s 1941 address to Congress. 2 And it is true constitutionally, as embodied in the First Amendment, which protects religious freedom both directly, by barring the prohibition of its free exercise, and indirectly, by barring laws respecting an establishment of religion. 3 The first of these constitutional protections, the Free Exercise Clause, is the focus of this chapter; the latter, the Establishment Clause, is addressed in Chapter 4. 4 The Free Exercise Clause, which provides that “Congress shall make no law … prohibiting the free exercise [of religion],” 5 protects both freedom of religious belief or profession and, as the text indi- cates, freedom of religious exercise or conduct. However, though it has often been said that religious belief is absolutely protected, 6 case law and common sense dictate that religious exercise – defined by one court as “the robust putting into practice of a person’s religious beliefs” 7 – is protected only to a point. 8 That point is effectively determined by a balancing of 1 See The Four Freedoms at http://www.1939nyworldsfair.com/worlds_fair/wf_tour/statues/4-freedoms.htm (Religion being one of Leo Friedlander’s The Four Freedoms sculptures).

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  Free Exercise of Religion and the United States Constitution

  The Supreme Court’s Challenge

  • Mark P. Strasser(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  1 Free exercise and the definition of religion

  The First Amendment to the United States Constitution protects the free exercise of religion, and non-religious practices do not receive those same protections. Regrettably, there has been no consensus about the appropriate criteria for determining what counts as religious—sometimes, the implicit criteria focus on the kind of beliefs, sometimes on the strength of the beliefs or on the role that they play in an individual’s life, and sometimes on the sincerity of the beliefs. What qualifies as religious under one of these criteria might not qualify as religious under another, which means that whether particular practices will be protected under free exercise guarantees may depend upon which of these criteria are used or emphasized.

  The lack of determinate criteria might not seem particularly problematic if only because the Court could simply announce the relevant criteria in one or more cases. Yet, the difficulty is not so easily resolved because the Court has suggested that it is beyond the competence of courts in almost all cases to determine what qualifies as religious. The Court’s articulated positions virtually guarantee an incoherent jurisprudence by sending contradictory signals with respect to what counts as religion and who is authorized to make that determination.

  This chapter traces the Court’s wavering approaches to free exercise guarantees, noting some of the areas in which the Court continues to send mixed messages—the Court has both affirmed and rejected that religious practices are afforded special protection under free exercise guarantees and has been utterly inconsistent with respect to whether courts can decide which beliefs qualify as religious or what criteria would be appropriate when making such a determination. While some of the Court’s articulated positions are simply impossible to reconcile, many of the Court’s seemingly inconsistent assertions are reconcilable, although in a way that doubtless will strike many as involving an uncomfortable compromise.

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  To Serve God and Mammon

  Church–State Relations in American Politics, Second Edition

  • Ted G. Jelen(Author)
  • 2010(Publication Date)
  • Georgetown University Press

    (Publisher)

  98 4 From Christian America to Free Exercise The Changing Nature of Church-State Relations This chapter focuses on the contents of the arguments employed by the protagonists in the church-state debate. During the past several decades, analysts who favor a vigorous religious presence in American politics have altered the justifications they offer for such a position. Proponents of religious accommodationism have switched their emphasis from a narrow, nonpreferentialist reading of the Estab-lishment Clause to a libertarian understanding of the Free Exercise Clause. Rather than directing attention to the presumed constitutional power of government to offer neutral assistance to religion, religious conservatives have begun to focus on the religious prerogatives of in-dividual citizens. Recent proponents of an assertive public religious presence have, in terms of the typology offered in chapter 1, changed from a position of Christian preferentialism to one of religious non-preferentialism. That is, rather than arguing that Christian values need to be supported by government policy, such analysts have shifted to a focus on personal religious liberty. In so doing religious conservatives have increasingly supported the free exercise rights of unconventional or unpopular religions. In keeping with this shift, the content of their argumentation has changed from legal or constitutional analysis, or a description of the incentives and constraints experienced by vari-ous political participants, to a discussion of normative conceptions of democratic government. The focus of such arguments is the re-lationship between the demands of religious discipleship and belief, on the one hand, and those of democratic citizenship, on the other. First, we will examine two common justifications for the assertion

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  Wrestling with Diversity

  • Sanford Levinson(Author)
  • 2003(Publication Date)
  • Duke University Press Books

    (Publisher)

  Does this suggest that Congress was implicitly accepting the legitimacy of abridging ‘‘freedom of religion’’ if founded on a ‘‘reasonable’’ (but not necessarily ‘‘compelling’’) basis? 5. 521 U.S. 507 (1997). 6. Congress claimed to be exercising the power granted in Section 5 of the Fourteenth Amend-ment to ‘‘enforce’’ the rights protected by the substantive sections. The most important section is Section 1, which not only requires that states ‘‘provide equal protection of the laws,’’ but also has been read by the Supreme Court to ‘‘incorporate’’ almost all of the Bill of Rights as protections against illegitimate state infringement. One of these protections, of course, is the Free Exercise Clause of the First Amendment. The Court, however, as has been its recent wont, declared that it possessed a monopoly over constitutional interpretation and that Congress was basically with-out authority to protect a constitutional right more vigorously than the Court itself deemed fit. Discussion of the (de)merits of the Court’s position is well beyond the scope of this essay. 280 Wrestling with Diversity Exercise clauses that are being interpreted by state courts to include compelling-interest tests, which would, as a practical matter, diminish the significance of Boerne in at least those states. π But the second reason for rfra ’s significance, and far more important within the context of the issues examined in this book, is its specification that it is religious freedom—and the commitment to multiculturalism that is signified by exhibiting legal respect for at least some religious observances, even if they are in tension with general legal norms—that is being protected. Whatever may be the country’s avowed commitments to cultural diversity, there is no analogous Cultural Freedom Restoration Act.

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  Illustrated Great Decisions of the Supreme Court

  • Tony Mauro(Author)
  • 2005(Publication Date)
  • CQ Press

    (Publisher)

  rotecting the right to believe in any religion—or no religion— was one of the main reasons the United States was founded. The First Amendment promises that protection in no uncertain terms by barring Congress from passing any law “prohibiting the exercise” of religion. As absolute as that command seems, the Supreme Court has recognized that it has limits, especially when actions taken in the name of religion affect others. To state an absurd example, if a religion required its believers to rob banks, that activity would probably not be tolerated by the rest of society, or by the law. Most real-life examples are not that easy to resolve, and the Court has struggled to decide when the law should restrict religious activities. Another concern has been that if govern-ment backs off and gives religion too much leeway, it will violate the other religious clause of the First Amendment, the establishment clause, by in effect endorsing religion through favored treatment. FREE EXERCISE OF RELIGION P 99 Cantwell v. Connecticut (1940) 101 Bob Jones University v. United States (1983) 103 City of Boerne v. Flores (1997) 98 FREE EXERCISE OF RELIGION Other related cases mentioned in the Free Exercise of Religion section Marbury v. Madison (1803) (see p. 291) Minersville School District v. Gobitis (1940) Jones v. Opelika (1942) Murdock v. Pennsylvania (1943) Sherbert v. Verner (1963) Runyon v. McCrary (1976) Employment Division v. Smith (1990) Cutter v. Wilkinson (2005) DECISION A state law that requires religious groups to get prior approval from a government official before they can solicit donations is unconstitutional. The Fourteenth Amendment makes the reli-gion clauses of the First Amendment applicable to state as well as federal action. States may, in a nondiscriminatory way, reg-ulate “the times, the places and the manner” of religious ac-tivities and solicitation, but the law at issue improperly gives government the ability to completely prohibit religious activity.

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  Conscience and Belief: The Supreme Court and Religion

  The Supreme Court in American Society

  • Kermit L. Hall(Author)
  • 2018(Publication Date)
  • Routledge

    (Publisher)

  462 Six of the state constitutions as of1789 confined free exercise protections to theists, two (Virginia and Delaware) were ambiguous, and four extended protection to all religious beliefs without limitation. Since the Free Exercise Clause of the federal Constitution contained no limitation, it is most plausible to assume that, in this as in other respects, it was imitating the more expansive of the state provisions. But this begs the question of what free exercise protection might mean for a person who does not recognize any form of transcendent, extrapersonal authority — to a person who does not “exercise” a “religion.”

  For the most part, the prohibition on an establishment of religion should suffice to protect unbelievers from discrimination, ill-treatment, or coercion (from test oaths, for example).463 There should be no doubt that government action that abridges the unbeliever’s right not to engage in or support a religious practice is unconstitutional. By 1789, it was generally agreed that compelled homage is of no value to God or to man. In Madison’s words, “[i]t is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.”464

  As a practical matter, the question whether the Free Exercise Clause protects atheists arises only with reference to claims for exemption. If it is true that the right to exemption from generally applicable laws on ground of conflict with religious doctrine is confined to those who have duties arising from their religious beliefs, then it has no application to unbelievers. Unbelievers undoubtedly make judgments of right and wrong that sometimes conflict with generally applicable law. But if these do not stem from obedience to a transcendent authority prior to and beyond the authority of civil government, they do not receive exemption under the Free Exercise Clause. To subject an atheist to civil disabilities would be a violation of free exercise; but to require an atheist who objects to war on secular grounds to go to war would not, since his conduct is not (and by definition could not be) motivated by his religious belief.

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  Church-State Issues in America Today

  [3 volumes]

  • Ann W. Duncan, Steven L. Jones, Ann W. Duncan, Steven L. Jones(Authors)
  • 2007(Publication Date)
  • Praeger

    (Publisher)

  This particular challenge may require the nation’s premier court to acknowledge more fully that for many religious people, religiously moti- vated conduct is not easily separated from religious belief. Scholars seem increasingly aware that this is a matter of constitutional justice and a con- cern that deserves greater scrutiny. Knowledgeable Supreme Court observers disagree as to whether religion is being incrementally removed from the public realm or gradually re- accommodated. Both effects likely exist as the Court’s work is played out on different fronts. Then, too, one’s idea of what constitutes religion mark- edly influences perceived gains or losses for free exercise. Nevertheless, a mixed evaluation of what is transpiring in the Court’s religion clause juris- prudence may suggest a happy difficulty in finding any political system with better prospects for managing enormous religious diversity. While there are other imaginable cultural conditions that might make it possible for the U.S. Supreme Court to construct a religion clause jurisprudence with better coherence, liberals, moderates, and conservatives have reason to hope that the evolving limits of free exercise will be hospitable to quality religion, civic virtue, and good government. NOTES 1. Thomas J. Curry, Farewell to Christendom: The Future State of Church and State in America (New York: Oxford University Press, 2006). Curry believes the First Amendment put an end to Christendom (i.e., state-supported religion), the national government possessing almost no constitutional competency in matters of religion. 2. Stephen L. Carter, The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (Cambridge, MA: Harvard University Press, 1998), 61–66. Carter be- lieves that a religious community can provide the benefit of organizing political resistance. 3. Gerard V. Bradley, Church-State Relationships in America (Westport, CT: Greenwood Press, 1987), 27.

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  The Religion Guarantees

  A Reference Guide to the United States Constitution

  • Peter Rofes(Author)
  • 2005(Publication Date)
  • Praeger

    (Publisher)

  The Free Exercise Clause affords an indi- vidual protection from certain forms of government compulsion; it does not afford an in- dividual a right to dictate the conduct of the Government's internal procedures. 88 This explanation may well be susceptible to criticism both for its harshness— in equating the religious claim to one about filing cabinets—and for the possi- bility that it distorted the claim itself by minimizing the extent to which Stephen Roy believed that government use of a social security number for Little Bird would harm Little Bird's spiritual development. The explanation nevertheless captures an important truth: Courts will not readily permit the free exercise guar- antee to be deployed as a weapon in a battle whose principal aim is merely to induce government to change its methods of internal "recordkeeping" or "ad- ministration." The Free Exercise Guarantee 149 Road Construction The reluctance the Court evinced in Roy to use the constraints of free exercise to work changes in the internal operations of government reemerged shortly thereafter in a context that on first blush appeared materially different: road con- struction planned to take place on land owned by the national government but deemed sacred and used for religious purposes by adherents of a particular faith (Lyng v. Northwest Indian Cemetery Protective Association, 1988). 89 By the late 1970s, the national government already had completed much of the work necessary to create a paved road linking two California towns sepa- rated by seventy-five miles. Between two completed portions of the project lay a six-mile stretch through the Chimney Rock section of Six Rivers National For- est. Unfortunately for all concerned, the Chimney Rock section—the area nec- essary to complete the project—for centuries had been used for religious purposes by the Yurok, Karok, and Tolowa Indians.

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  The Constitutional Bases of Political and Social Change in the United States

  • Shlomo Slonim(Author)
  • 1990(Publication Date)
  • Praeger

    (Publisher)

  Pitt. L. Rev. 673 (1980) or Choper, Church, State and the Supreme Court: Current Controversy, 29 Ariz. L. Rev. 551 (1987). Copyright (c) 1987 by the Arizona Board of Regents. Reprinted by permission. 74 Constitutional Bases of Change tionally invalid." 5 It is equally plain that a law that attempts to regulate religious beliefs is unqualifiedly forbidden. 6 Very few laws, however, single out religion for adverse treatment, 7 deliberately prejudice persons because of their particular religious scruples, or penalize religious be- liefs. 8 Rather, most issues under the Free Exercise Clause arise when a general government regulation, undertaken for genuinely secular pur- poses, either penalizes (or otherwise burdens) conduct that is dictated by some religious belief or specifically requires (or otherwise encourages) conduct that is forbidden by some religious belief. The Court has rec- ognized that while "[the freedom to believe] is absolute . . ., in the nature of things, the . . . [freedom to act] cannot be." 9 In this context, the Court has employed "a balancing process" 10 and ruled that if a government regulation of general applicability burdens the exercise of religion then, in the absence of a state interest "of the highest order," 11 government must accommodate the religious interest by granting it an exemption from the general rule. Thus, the seemingly irreconcilable conflict: on the one hand the Court has said that the establishment clause forbids government action the purpose of which is to aid religion, but on the other hand the Court has held that the Free Exercise Clause may require government action to accommodate religion. Unfortunately, the Court's separate tests for the religion clauses have provided virtually no guidance for determining when an accommodation for religion, seemingly required under the Free Exercise Clause, constitutes impermissible aid to religion under the es- tablishment clause.

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