Free Exercise Clause of the First Amendment

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The Free Exercise Clause of the First Amendment to the United States Constitution, taken with the Establishment Clause of the First Amendment make up the Religion Clauses. The Free Exercise Clause is the second half of the Religion Clauses, which state in full:

“

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

”

The Free Exercise Clause has often been interpreted to include two freedoms: the freedom to believe, and the freedom to act. The former liberty is absolute, while the latter often faces state restriction.

In 1879, the Supreme Court was first called to interpret this clause in Reynolds v. United States. In the mid-1800s, latter day saints (also known as mormons) traditionally practiced polygamy. The Supreme Court upheld the conviction of a Mormon under federal law barring polygamy. The Court decided that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. 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."

Jehovah's Witnesses, a religious group, was often the target of such restriction. Several cases involving the Witnesses permitted the Court to expound the free exercise clause. The Warren Court adopted an extremely liberal 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.

1 Jehovah's Witnesses cases
2 Compelling interest
3 See also
4 Research resources

[edit] 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 attempts to convert individuals to their religion. 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.

In 1940, the Supreme Court would decide 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.

[edit] Compelling interest

The Supreme Court under Earl Warren adopted an expansive view of the free exercise clause. The Court required that states have a "compelling interest" in refusing to accommodate religiously motivated conduct as it decided Sherbert v. Verner (1963). The case involved Adele Sherbert, an individual who was denied unemployment benefits by South Carolina because she refused to work on Saturdays as required 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 is constitutional insofar as the free exercise clause is concerned. In 1993, the Supreme Court revisited the Free Exercise Clause when it decided 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. The Court therefore struck down the City's ordinance.

Also in 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the "compelling interest" standard. In City of Boerne v. Flores (1997) the Court struck down the provisions of the Act that forced state and local governments to provide more protections than required by the First Amendment, which the courts enjoy sole power to interpret. 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.