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United States Constitution
PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty
to ourselves and our Posterity, do ordain and establish this Constitution
First Amendment: Free Exercise Clause
The Court’s earliest Free Exercise Clause-related case was Reynolds v. United States, decided in 1878. A Mormon man challenged the anti-polygamy laws he had been charged under for having multiple wives. He claimed that he had a religious duty to have multiple wives, and that any law restricting or punishing this violated his free exercise under the First Amendment.The Court rejected this argument, noting that if this were so religion would be able to trump law at any point and permit “every citizen to become a law unto himself.” Thomas Jefferson’s famous letter to the Danbury Baptist Association was cited in the opinion to show that the clause’s purpose was to prevent restrictions on religious thought and belief – not on religious inspired action. As Chief Justice Waite wrote for the majority, “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.”
| Solicitation | Important Cases | |
|---|---|---|
| Following Reynolds and prior to the strict scrutiny formulations of the 1960s, most of the Free Exercise Clause decisions involved restrictions on religious solicitation – prohibitions or fines on religious groups asking for money or trying to get new members. In the 1940 Cantwell v. Connecticut decision, the Court overturned the convictions of several Jehovah’s Witnesses for soliciting donations without a license. The Court admitted that religious conduct could be regulated, but held that it could not unduly infringe on protected freedoms in order to fulfill the goal of the statute. In this case, the licensing was unconstitutional against both the Free Exercise Clause as well as the Free Speech Clause. Cantwell was important for another reason – it was also the first time that the Free Exercise Clause was incorporated against the states through the 14th amendment. Licensing taxes ( Murdock v. Pennsylvania) and book selling taxes ( Follet v. McCormick) against religious solicitation were held to be an unconstitutional burden on the free exercise of religion as well. In regards to these infringements, Justice Douglas wrote in Follet, “Freedom of religion is not merely reserved for those with a long purse… [T]hey avail themselves of the constitutional privilege of a ‘free exercise’ of their religion when they enter the pulpit to proclaim their faith.” One of the few restrictions that was upheld in this time period was the use of children in solicitation ( Prince v. Massachusetts). | Cantwell v. Connecticut (1940) Murdock v. Pennsylvania (1943) Follett v. Town of McCormick (1944) Prince v. Massachusetts (1944) |
| Strict Scrutiny | Important Cases | |
|---|---|---|
| The Court first applied strict scrutiny to laws burdening religious exercise in the 1963 decision Sherbert v. Verner. A woman quit her job because she refused to work on the Sabbath. The state denied her unemployment benefits, and the Court held that the denial of benefits burdened her religious exercise as a result – the woman had to choose between her faith or losing her job. The Court determined that the state would need a “compelling state interest” to justify the “substantial infringement of appellant’s First Amendment right.” The Court could not find a compelling interest, and held the law violated the Free Exercise Clause. Following Verner, the Court only held laws to be in violation of the Free Exercise Clause in two areas: government benefit cases like Verner, and mandatory education of Amish children. In Thomas v. Review Board the Court held a denial of benefits unconstitutional and refused to judge the actual content of the religious doctrine – satisfied instead with simply knowing that the petitioner in that case, Thomas, had truly quit due to religious reasons. Multiple other cases involved working on the Sabbath like in Verner, and each was decided in the same manner. In Frazee v. Illinois Department of Social Income, the Court also added that it did not matter whether the petitioner was part of an organized religion or sect, as long as his religious belief was sincere. Wisconsin v. Yoder, decided in 1972, involved members of the Amish community challenging a compulsory education law under the Free Exercise Clause. The Amish petitioners argued that forcing Amish children to attend school past the 8th grade violated their religion because it exposed the Amish to the “worldly influence”. The Court agreed, noting that the law also infringed the rights of parents to control the upbringing of their own children. The Court determined that the self-sufficient nature of the Amish community made the additional schooling unnecessary, therefore there was no compelling state need. Outside of these two areas, the Court did not uphold any challenges to laws under the Free Exercise Clause. Most of these cases involved claims of exemption to certain laws due to religious reasons. Taxes Several of the claimed exemptions denied by the Court were in regards to taxes. In Jimmy Swaggart Ministries v. Board of Equalization of California, the Court upheld the constitutionality of sales and use taxes as applied to the sale of goods and literature by religious organizations. The religious organizations in this case argued that they should be exempt from the tax, which they believed was unconstitutionally applied to them under Murdock and Follet. The Court disagreed and denied them any exemption, noting that the sales and use taxes in this case were general, while the taxes in Murdock and Follet were targeted only at First Amendment activities. In Bob Jones University v. United States, a private school argued that the denial of tax exempt status to racially discriminatory private schools violated the Free Exercise Clause. The Court applied strict scrutiny, and held that the government had a compelling and overriding need to eradicate racial discrimination that outweighs any burden denial of a tax benefit would bring. Additionally, there was no less restrictive means to achieve that goal. Military The Court has also upheld laws being challenged under the Free Exercise Clause that dealt with the military. In 1971 the Court decided Gillette v. United States, holding that the free exercise clause did not make people who objected to a particular war be exempt from the draft. The three defendants in the case were convicted for refusing to fight in Vietnam, which they specifically objected to. The Selective Service Act, otherwise known as the draft, has a religious exception for people who object to all wars due to their beliefs. The defendants in this case, however, specifically said they objected to the Vietnam War – not all wars. The Court ruled against the defendants, stating that the act was equally applied to all and did not interfere with any religious practice. Additionally, the Court said it was justified by substantial government interests. In Goldman v. Weinberger, the Court upheld an Air Force dress code that prohibited yarmulkes. The petitioner, an orthodox Jew and rabbi, argued that it violated his free exercise of religion if he was forced to remove his yarmulke. The Court disagreed, holding that it did not violate the Clause, and justifying this by stating that it had a stronger deference to the military and its rules in comparison to laws in civilian society. Other Although the Free Exercise Clause may protect certain individuals from compulsion to act or do certain things, the Court does not interpret the Clause as allowing individuals to dictate government action due to their own beliefs. In Lyng v. Northwest Indian Cemetery Protective Association, the Court rejected a free exercise challenge to a federal government road building over a sacred Indian burial ground. Although the Court acknowledged that this would “destroy” the Indians’ ability to practice their religion, the Court held that the government cannot conduct its affairs to be tailored towards certain citizen’s religions. | Sherbet v. Verner (1963) Thomas v. Review Board of the Indiana Employment Security Division (1981) Frazee v. Illinois Employment Security Department (1989) Wisconsin v. Yoder (1972) Jimmy Swaggart Ministries v. Board of Equalization of California (1990) Bob Jones v. United States (1983) Gillette v. United States (1971) Goldman v. Weinberger (1986) Lyng v. Northwest Indian Cemetary (1988) |
| Employment Division vs. Smith | Important Cases | |
|---|---|---|
| The Court’s decision in the 1990 case Employment Division v. Smith completely altered how the Court handles Free Expression clauses. Native Americans challenged an Oregon law prohibiting the use of peyote, a hallucinogenic cactus. The petitioners challenged their disqualification for employment benefits due to the fact they had been dismissed because they used peyote. The Court rejected this, holding that “the right of free exercise 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 proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Writing for the majority, Justice Scalia analyzed cases where the Court had agreed with Free Exercise Clause challenges. He surmised that Cantwell, Murdock, Follet, and Yoder all involved other rights beyond simply the Free Exercise Clause and were therefore “hybrids” that triggered strict scrutiny. Additionally, he narrowed Sherbert and the cases that involved it to only apply to employment benefit cases. The majority expressly rejected strict scrutiny because, given the wide variety of religions and beliefs, it was not feasible to approach every potential regulation as invalid. Smith replaced strict scrutiny with a rational basis standard when the laws were “neutral laws of general applicability”, which the dissenters vigorously opposed. The dissent argued that the majority had mischaracterized precedent in order to come to this new conclusion. Despite the limiting effect of Smith, the Court has still held a law to be in violation of the Free Exercise Clause when it was not neutral. In Church of the Lukumi Bablu Aye, Inc. v. Hialeah, the law at issue banned animal sacrifices but made exemptions for certain religions, like Judaism. The Church of Santeria, which uses animal sacrifice, was not exempt challenged the law. The Court agreed with the Church unanimously that the law was unconstitutional. Given the timing of the law’s passage (in direct response to the announcement that the Santeria church would be building facilities in the city) and the specific exemptions and wording, it was clear the city was trying to prohibit a religious practice. This made it not neutral. Additionally, the law was so specific as to animal ritual slaughter that it was not “generally applicable” – the city did not have ordinances preventing other ways for animals to be killed. | Employment Division v. Smith (1990) Church of the Lukumi Bablu Aye, Inc. v. Hialeah (1993) |
| RFRA and RLUIPA | Important Cases | |
|---|---|---|
| In response to Employment Division v. Smith, Congress passed the “Religious Freedom Restoration Act” which reinstated the strict scrutiny test instead of the Smith test. However, shortly after this the Court invalidated RFRA. In City of Boerne v. Flores, the Court declared RFRA unconstitutional because in enacting it, Congress exceeded its power under the Fourteenth Amendment. Justice Kennedy, writing for the majority, explained that although Congress had the power to enact laws to “enforce” the Amendment, Congress is not “enforcing” when it creates new constitutional rights or expands the scope of rights. The rights which Congress can enforce under the 14th amendment have to be recognized by the Courts first. Because this struck down RFRA as used through the 14th amendment, this effectively ended any use of RFRA by the states and local governments. However, RFRA’s applicability to the federal government was still an open issue. In 2000, Congress also passed the Religious Land Use and Institutionalized Persons Act. This required that state and local government use strict scrutiny in certain limited circumstances – when dealing with land use decisions or institutionalized persons. Congress claimed authority under the commerce power and as a condition on federal funding. In response to City of Boerne v. Flores, many states also passed their own versions of RFRA. Currently, state and local governments’ laws on religious freedom vary– all are subject to RLUIPA, some are subject to Smith, and others reject Smith in favor of their state RFRA. The question of whether or not RFRA could apply to the federal government was settled in the 2006 case Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. Similar to Smith, this case involved the seizure of the ceremonial hallucinogenic mixture known as “ayahuasca” from the UDV Church in New Mexico. The Church argued that this violated their free exercise of religion under RFRA, and the Court agreed. Although ayahuasca was illegal under the Controlled Substance Act, the federal government failed to meet strict scrutiny as required by RFRA – it could not show a compelling government interest in granting a religious exception to the Church. RFRA applies to corporations as well as individuals. In the recent and controversial decision of Burwell v. Hobby Lobby, the Court held that the contraception mandate in Obamacare violated RFRA when applied to closely-held corporations who claimed it violated their religious beliefs. Hobby Lobby, a closely held corporation, claimed that as a corporation it could be considered a person with religious beliefs. The Court agreed, noting that non-profits under RFRA, as well as corporations in other contexts, already were considered a “person.” Applying the least-restrictive means standard under RFRA, the Court held that less restrictive means existed to provide the contraception rather than mandate the companies provide it. Therefore the contraceptive mandate violated RFRA as applied to companies whose religious beliefs objected to it. Justice Ginsberg wrote a lengthy dissent joined by the other liberal Justices. Ginsberg’s dissent focused on the dangers of such a broad ruling allowing for-profit corporations to claim religious beliefs, which she feared could allow corporations to opt out of generally applicable laws. Additionally, Ginsberg observed that the hypothetical less-restrictive means suggested by the Court – the government paying for the contraceptives – did not exist in any form that could actually provide the necessary coverage yet. | City of Boerne v. Flores (1997) Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) Burwell v. Hobby Lobby (2014) |
| Internal Religious Disputes | Important Cases | |
|---|---|---|
| The Free Exercise Clause also protects the inner-workings of religious organizations from interference by the government and the courts. The Court generally will refuse to interject itself into religious disputes involving doctrine or property unless the matter completely rests on secular legal concepts. In the 1871 decision Watson v. Jones, the Court was asked to settle a dispute over church property. The case was decided on non-constitutional grounds, but the opinion stressed the importance of religious free exercise and that “[I]t would lead to the total subversion of religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.” In Gonzalez v. Roman Catholic Archbishop of Manila, the dispute at issue in the case was whether or not a man was qualified to be a chaplain of the Catholic Church. The Church refused to grant the chaplain position, and the Court held that it could not settle the issue – who was a chaplain under Church doctrine was an issue for the hierarchy of the Church to decide. Similarly, the Court overruled a lower court ruling in Serbian Orthodox Diocese v. Milivojevich which had involved the question of whether or not a bishop could be defrocked. The Court held that this review was an impermissible replacement of the Church’s judgment by the Court on a religious doctrine issue. Unlike religious doctrine, property disputes can sometimes be settled by the Courts. However, the cases must be based on completely secular law, rather than religious doctrine. In Jones v. Wolf, the Court remanded a decision to the lower court to decide on whether a dispute could be settled on traditional common law property principles. Any inquiry into the religion, however, would be unacceptable under the Free Exercise Clause. | Watson v. Jones (1871) Gonzalez v. Roman Catholic Archbishop of Manila (1929) Serbian Orthodox Diocese v. Milivojevich (1976) Jones v. Wolf (1978) |
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