Free Exercise Clause

The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. The Court said: "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation."[1] Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."[1]

Jehovah's Witnesses were often the target of such restriction. Several cases involving the Witnesses gave the Court the opportunity to rule on the application of the Free Exercise Clause. Subsequently, the Warren Court adopted an expansive view of the clause, the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions have reduced the scope of this interpretation.


The history of the Supreme Court's interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention, then taking on a relatively narrow view of the governmental restrictions required under the clause, growing into a much broader view in the 1960s, and later again receding.

The first case to closely examine of the Free Exercise Clause was Reynolds v. United States in 1878. A case dealing with the prosecution of a polygamist under federal law, and the defendant's claim of protection under the Free Exercise Clause, the Court sustained the law and the government's prosecution. The Court read the Free Exercise Clause as protecting religious practices, but that didn't protect Reynolds' practices which were crimes.[2] This case, which also revived Thomas Jefferson's statement regarding the "wall of separation" between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.

This interpretation of the Free Exercise Clause continued into the 1960s and the ascendancy of the Warren Court under chief justice Earl Warren. Applying a new standard of "strict scrutiny" in various areas of civil rights law, the Court began to apply this standard to the First Amendment religion clauses as well, reading the Free Exercise Clause to require accommodation of religious conduct except where a state could show a compelling interest and no less burdensome means to achieve that end. One example was Sherbert v. Verner, where the Court overturned the state Employment Security Commission's decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church who was forced out of a job after her employer adopted a 6-day work week, which would have required her to work on Saturdays against the dictates of her religion. As Justice William Brennan stated for the majority, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." This test was used through the years of the Burger Court, including particularly in the landmark case of Wisconsin v. Yoder (1972).

This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug's use as part of a religious ritual, and without employing the strict scrutiny test. Instead, the Court again held that a "neutral law of general applicability" generally does not implicate the Free Exercise Clause. This was followed by intense disapproval from Congress and the passage of the Religious Freedom Restoration Act in 1993 to attempt to restore the prior test. However, in City of Boerne v. Flores, the Supreme Court struck down the act as applied to the States, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the Smith test in place.

Jehovah's Witnesses cases

During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah's Witnesses. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. The first important victory came in 1938, when in Lovell v. City of Griffin, the Supreme Court held that cities could not require permits for the distribution of pamphlets. In 1939, the Supreme Court decided Schneider v. Town of Irvington, in which it struck down anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets. In 1940, the Court considered Cantwell v. Connecticut; the plaintiff, a Jehovah's Witness, was charged with soliciting donations without a certificate from the Public Welfare Council. The Council was to grant the certificate only if the organization requesting it was a charity or sponsored a religious cause. The Supreme Court ruled that any law granting a public body the function of determining if a cause is religious or not violates the First Amendment.[3]

In 1940, the Supreme Court decided in Minersville School District v. Gobitis that members of the Jehovah's Witnesses in a school could be required to salute the flag. The ruling in Gobitis, however, did not stand for long. In 1943, West Virginia State Board of Education v. Barnette, the Supreme Court essentially reversed its previous opinion. Justice Frankfurter had, in the Gobitis case, suggested that the Witnesses attempt to reverse the School Board's policy by exercising their vote. In the Barnette case, however, Justice Robert H. Jackson wrote, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... 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." The Supreme Court did not rule that the Pledge was unconstitutional; rather, they held that students may not be compelled to recite it.

Compelling interest

The Supreme Court under Earl Warren adopted an expansive view of the Free Exercise Clause. In, Sherbert v. Verner (1963) the Court held that states must have a "compelling interest" to refuse to accommodate religiously motivated conduct. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder (1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.

The "compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause. In 1993, the Supreme Court revisited the Free Exercise Clause in Church of Lukumi Babalu Aye v. City of Hialeah. Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as the kosher slaughter of Judaism. Since the ordinance was not "generally applicable," the Court ruled that it was subject to the compelling interest test, which it failed to meet, and was therefore declared unconstitutional. In 2017, the Court applied this doctrine in Trinity Lutheran v. Comer, holding that there must be a compelling state interest for express discrimination based on religious status in government funding schemes.

Also in 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the general applicability of the "compelling interest" standard present prior to Employment Division v. Smith. However, in City of Boerne v. Flores (1997) the Court struck down as exceeding Congress's powers those provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment. Thus, state and local government actions that are facially neutral toward religion are judged by the Employment Division v. Smith standard rather than RFRA. According to the court's ruling in Gonzales v. UDV (2006), RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.

See also


  1. ^ a b Reynolds v. United States, 98 U.S. 145, 162 (1878)
  2. ^ "Free Exercise of Religion - The issue: When may the government enforce a law that burdens an individual's ability to exercise his or her religious beliefs?". University of Missouri-Kansas City (UMKC) School of Law. University of Missouri-Kansas City (UMKC) School of Law. Retrieved November 22, 2013.
  3. ^ "A Delicate Balance: The Free Exercise Clause and the Supreme Court". Article/analysis. Church-State Law. Pew Research center. October 24, 2007. Archived from the original on January 16, 2013. Retrieved May 4, 2012.

Research resources

Braunfeld v. Brown

Braunfeld v. Brown, 366 U.S. 599 (1961), was a case decided by the United States Supreme Court. In a 6-3 decision, the Court held that a Pennsylvania law forbidding the sale of various retail products on Sunday was not an unconstitutional interference with religion as described in the First Amendment to the United States Constitution.

Civil liberties in the United States

Civil liberties in the United States are certain unalienable rights retained by (as opposed to privileges granted to) citizens of the United States under the Constitution of the United States, as interpreted and clarified by the Supreme Court of the United States and lower federal courts. Civil liberties are simply defined as individual legal and constitutional protections from entities more powerful than an individual, for example, parts of the government, other individuals, or corporations. The liberties explicitly defined, make up the Bill of Rights, including freedom of speech, the right to bear arms, and the right to privacy. There are also many liberties of people not defined in the Constitution, as stated in the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The extent of civil liberties and the periphery of the population of the United States who had access to these liberties has expanded over time. For example, the Constitution did not originally define who was eligible to vote, allowing each state to determine who was eligible. In the early history of the U.S., most states allowed only white male adult property owners to vote (about 6% of the population). The 'Three-Fifths Compromise' allowed the southern slaveholders to consolidate power and maintain slavery in America for eighty years after the ratification of the Constitution. And the Bill of Rights had little impact on judgements by the courts for the first 130 years after ratification.

Davis v. Beason

Davis v. Beason, 133 U.S. 333 (1890), was a United States Supreme Court case affirming, by a 9-0 vote, that federal laws against polygamy did not conflict with the free exercise clause of the First Amendment to the United States Constitution.

DeMarco v. Holy Cross High School

This is an employment discrimination case brought under the ADEA (Age Discrimination in Employment Act of 1967). The appellant, Guy DeMarco, was released from employment prior to his eligibility for tenure at the age of forty-nine. Holy Cross High School argued that it was not subject to ADEA laws, and if it were that this case against it was in violation of the Free Exercise Clause and the Establishment Clause of the First Amendment. The defendant also argued that the plaintiff failed to utilize the administrative remedies available.

Citation: 4 F.3d 166 (2nd Cir. 1993)

Appellee: Holy Cross High School

Appellant: Guy DeMarco

Establishment Clause

In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text is: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...".

The Establishment Clause was based on a number of precedents, including the Constitutions of Clarendon, the Bill of Rights 1689, and the Pennsylvania and New Jersey colonial constitutions. An initial draft by John Dickinson was prepared in conjunction with his drafting the Articles of Confederation. In 1789, then-congressman James Madison prepared another draft which, following discussion and debate in the First Congress, would become part of the text of the First Amendment of the Bill of Rights. The second half of the Establishment Clause includes the Free Exercise Clause, which allows individual citizens freedom from governmental interference in both private and public religious affairs.

The Establishment Clause is a limitation placed upon the United States Congress preventing it from passing legislation forcing an establishment of religion. The second half of the Establishment Clause inherently prohibits the government from preventing the free exercise of religion. While the Establishment Clause does prohibit Congress from preferring or elevating one religion over another, it does not prohibit the government's entry into the religious domain to make accommodations for religious observances and practices in order to achieve the purposes of the Free Exercise Clause. Furthermore, it does not prevent the placement of religious symbols on government premises.

Goldman v. Weinberger

Goldman v. Weinberger, 475 U.S. 503 (1986), was a United States Supreme Court case in which a Jewish Air Force officer was denied the right to wear a yarmulke when in uniform on the grounds that the Free Exercise Clause applies less strictly to the military than to ordinary citizens.

Jamison v. Texas

Jamison v. State of Texas, 318 U.S. 413 (1943), was a case in which the Supreme Court of the United States held that a Dallas city ordinance, which prohibited distribution of handbills on the streets, violated the Free Exercise Clause of the First Amendment because the material being distributed is religious in its nature.

Locke v. Davey

Locke v. Davey, 540 U.S. 712 (2004), is a United States Supreme Court decision upholding the constitutionality of a Washington publicly funded scholarship program which excluded students pursuing a "degree in devotional theology." This case examined the "room.. between the two Religion Clauses", the Free Exercise Clause and the Establishment Clause.

Chief Justice William Rehnquist wrote the opinion of the court, with Justices Antonin Scalia and Clarence Thomas dissenting.

Lyng v. Northwest Indian Cemetery Protective Ass'n

Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), was a United States Supreme Court case in which the Court ruled on the applicability of the Free Exercise Clause to the practice of religion on Native American sacred lands, specifically in the Chimney Rock area of the Six Rivers National Forest in California. This area, also known as the High Country, was used by the Yurok, Karuk, and Tolowa tribes as a religious site.

The ruling is considered a key example of judicial restraint by the Supreme Court.

Ministerial exception

The ministerial exception is a legal doctrine in the United States intended to protect the freedom of religion by exempting religious institutions from anti-discrimination laws in hiring employees.

The exception bars the application of civil rights laws to churches' employment relationships with ministers as the Free Exercise Clause of the First Amendment to the U.S. Constitution protects a "church's right to decide matters of governance and internal organization" and the Establishment Clause forbids "excessive government entanglement with religion." For example, the US government cannot force the Catholic church to hire homosexual or female priests.It is the focus of the DeMarco v. Holy Cross High School and Hosanna-Tabor v. EEOC court cases. The Hosanna-Tabor decision broadened the ministerial exception to allow the firing of a teacher with narcolepsy from a religious school where her religious duties consumed only 45 minutes of each workday, and who otherwise taught secular subjects. Later that year, the Fifth Circuit held that the Music Director and pianist at a church was also covered by the exception. The panel reasoned that by playing the piano at services, the pianist served an integral role at services and assisted in conveying the church's message to its congregation.

Police v. City of Newark

Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), was a case challenging an internal order of the City of Newark Police Department requiring its officers to be clean-shaven. The Third Circuit Court of Appeals held that the order merited strict scrutiny and did not survive exacting review. Therefore, the order violated the Free Exercise Clause of the First Amendment.

Recognition of Native American sacred sites in the United States

The Recognition of Native American sacred sites in the United States could be described as "specific, discrete, narrowly delineated location on Federal land that is identified by an Indian tribe, or Indian individual determined to be an appropriately authoritative representative of an Indian religion, as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion". The sacred places are believed to "have their own 'spiritual properties and significance'". Ultimately, Indigenous peoples who practice their religion at a particular site, they hold a special and sacred attachment to that land sacred land.

Among multiple issues regarding the human rights of Indigenous Peoples is the protection of these sacred sites. During colonization, Europeans claimed governance over the lands of numerous native tribes. After decolonization, Indigenous groups still fought federal governments to regain ownership of their ancestral lands, including the sacred sites and places. This conflict between the Indigenous groups has risen in the United States in recent years and the rights to the protection of sacred sites has been discussed through United States constitutional law and legislature.

The Religion Clauses of the First Amendment assert that the United States Congress has to separate church and state. The struggle to gain legal rights over the Glen Cove burial grounds in California is among many disputes between Indigenous groups and the federal government over sacred lands.

School prayer in the United States

School prayer in the United States if organized by the school is largely banned from public elementary, middle and high schools by a series of Supreme Court decisions since 1962. Students may pray privately, and join religious clubs in after-school hours. Public schools are those operated by government agencies, such as local school districts. They and are banned from conducting religious observances such as prayer. Private and parochial schools are not covered by these rulings, nor are colleges and universities. Elementary and secondary schools are covered because students are required to attend, and are considered more at risk from official pressure than our older students and adults. The Constitutional basis for this prohibition is the First Amendment to the United States Constitution, which requires that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

The first part of the amendment ("Congress shall make no law respecting an establishment of religion") is known as the Establishment Clause of the First Amendment, while the second part ("or prohibiting the free exercise thereof") is known as the Free Exercise Clause.

Though each of these clauses originally applied only to the central US government, the Fourteenth Amendment extended the scope of the entire First Amendment to all levels of government, including the state and local levels, thus compelling states and their public schools to adopt an equally detached approach to religion in schools.

Since 1962, the Supreme Court has repeatedly ruled that prayers in public schools are unconstitutional. Social conservatives have been unable to pass a constitutional amendment through Congress that would change that. It is a matter of the government promoting An establishment of religion. The Supreme Court is also ruled that so-called "voluntary" school prayers are also unconstitutional, because they force some students to be outsiders to the main group, and because they subject dissenters to intense peer group pressure. In Lee v. Weisman The Supreme Court held in 1992:

the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to ...those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights.


Sherbert may refer to

Sherbert v. Verner, a United States Supreme Court case involving the Free Exercise Clause of the First Amendment to the Constitution

Sherbert (Pillow Pal), a Pillow Pal bear made by Ty, Inc

Sherbert v. Verner

Sherbert v. Verner, 374 U.S. 398 (1963), was a case in which the Supreme Court of the United States held that the Free Exercise Clause of the First Amendment required the government to demonstrate both a compelling interest and that the law in question was narrowly tailored before it denied unemployment compensation to someone who was fired because her job requirements substantially conflicted with her religion.The case established the Sherbert Test, requiring demonstration of such a compelling interest and narrow tailoring in all Free Exercise cases in which a religious person was substantially burdened by a law. The conditions are the key components of what is usually called strict scrutiny.

In 1990, the Supreme Court decided that the Sherbert Test, as a judicial constitutional analysis tool, was too broad when applied to all laws. With respect to religiously-neutral, generally-applicable laws that incidentally burden religious exercise, the Sherbert Test was eliminated in Employment Division v. Smith. For laws that discriminate along religious/secular lines or neutral laws that are enforced in a discriminatory way, the components of the Sherbert Test are still appropriate constitutional tools for courts to use.

In response to the 1990 Smith decision, Congress created an enhanced version of the Sherbert Test as a statutory, rather than constitutional, right in the federal Religious Freedom Restoration Act (RFRA) of 1993. Its provisions were designed to apply broadly to all laws and regulations, both federal and state. Although Congress replaced the "narrowly tailored" constitutional requirement with a "least restrictive means" statutory requirement, the enhanced test is still referred to as the Sherbert Test.

However, the Supreme Court held in City of Boerne v. Flores that the law was unconstitutional because its enhanced Sherbert Test, as a purported change in constitutional rights, could not be enforced against the states. It impermissibly interfered with the judiciary's sole power to interpret the Constitution. However, the ruling did not necessarily limit its effect on interpretation of federal statutes.

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) that applied only to federal laws. Both laws contain the same language for an even further enhanced Sherbert Test, one that broadens the definition of substantial religious burden.

The Supreme Court has since relied on the statutory Sherbert Test to decide several prominent cases, including Burwell v. Hobby Lobby, 573 U.S. ___ (2014), and Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).

Texas Monthly, Inc. v. Bullock

Texas Monthly v. Bullock, 489 U.S. 1 (1989), was a case brought before the US Supreme Court in November 1988. The case (initiated by the publishers of Texas Monthly, a well-known general-interest magazine in Texas) was to test the legality of a Texas statute that exempted religious publications from paying state sales tax.

The Court, in a 6-3 decision lacking a majority, overturned an appellate court's decision that the exemption was constitutional and remanded the case.

Trinity Lutheran Church of Columbia, Inc. v. Comer

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017), was a case in which the Supreme Court of the United States held that a Missouri program that denied a grant to a religious school for playground resurfacing, while providing grants to similarly situated non-religious groups, violated the freedom of religion guaranteed by the Free Exercise Clause of the First Amendment to the United States Constitution.

United States v. Lee (1982)

United States v. Lee, 455 U.S. 252 (1982), was a United States Supreme Court case establishing precedent regarding the limits of free exercise of religious conscience by employers.

Virginia Statute for Religious Freedom

The Virginia Statute for Religious Freedom was drafted in 1777 (however it was not first introduced into the Virginia General Assembly until 1779) by Thomas Jefferson in the city of Fredericksburg, Virginia. On January 16, 1786, the Assembly enacted the statute into the state's law. The statute disestablished the Church of England in Virginia and guaranteed freedom of religion to people of all religious faiths, including Christians of all denominations, Jews, Muslims, and Hindus. The statute was a notable precursor of the Establishment Clause and Free Exercise Clause of the First Amendment to the United States Constitution.

The Statute for Religious Freedom is one of only three accomplishments Jefferson instructed be put in his epitaph.

and legacy

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