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“The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.”178 It bars “governmental regulation of religious beliefs as such,”179 prohibiting misuse of secular governmental programs “to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.”180 Freedom of conscience is the basis of the free exercise clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.181 Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute “conduct” rather than pure “belief.” When it comes to protecting conduct as free exercise, the Court has been inconsistent.182 It has long been held that the Free Exercise[p.1006]Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.183 What has changed over the years is the Court’s willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.

The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free–Exercise–derived requirement that government accommodate some religious practices.184 So far, the Court has harmonized interpretation by denying that free– exercise–mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. “This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”185 In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was “fostering an ‘establishment’ of the Seventh–Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.”186 Legislation granting religious exemptions not held to[p.1007]have been required by the Free Exercise Clause has also been upheld against Establishment Clause challenge,187 although it is also possible for legislation to go too far in promoting free exercise.188

The Belief–Conduct Distinction.—While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause “embraces two concepts— freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.”189 In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws “cannot interfere with mere religious beliefs and opinions, they may with practices.”190 The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other[p.1008]motives. The Reynolds no–protection rule was applied in a number of cases,191 but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause.192 Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was “compelling” and if no alternative forms of regulation would serve that interest was the claimant required to yield.193 Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection.

Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow. Next the Court held that the test is inappropriate in the contexts of military and prison discipline.194 Then, more importantly, the Court ruled in Employment Division v. Smith that “if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”195 Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. Accommodation of such religious practices must be found in “the political process,” the Court noted; statutory religious–practice exceptions are permissible, but[p.1009]not “constitutionally required.”196 The result is tantamount to a return to the Reynolds belief–conduct distinction.

The Mormon Cases.—The Court’s first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against the Mormons because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, inasmuch as it could distinguish between beliefs and acts.197 But the presence of large numbers of Mormons in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute which barred “bigamists,” “polygamists,” and “any person cohabiting with more than one woman” from voting or serving on juries. The Court sustained the law, even as applied to persons entering the state prior to enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run.198 Subsequently, an act of a territorial legislature which required a prospective voter not only to swear that he was not a bigamist or polygamist but as well that “I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . ,” was upheld in an opinion that condemned plural marriage and its advocacy as equal evils.199 And, finally, the Court sustained the revocation of the charter of the Mormon Church and confiscation of all church property not actually used for religious worship or for burial.200

There followed a series of sometimes conflicting decisions. At first, the Court sustained the application of a non–discriminatory li[p.1011]cense fee to vendors of religious books and pamphlets,206 but eleven months later it vacated its former decision and struck down such fees.207 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held in violation of the First Amendment when applied to distributors of leaflets advertising a religious meeting.208 But a state child labor law was held to be validly applied to punish the guardian of a nine–year old child who permitted her to engage in “preaching work” and the sale of religious publications after hours.209 The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory “times, places, and manners” terms and which did not seek to regulate the content of the religious message to be communicated.210


178 Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963) .
179 Sherbert v. Verner, 374S 398, 402 (1963) (emphasis in original).
180 Braunfeld v. Brown, 366 U.S. 599, 607 (1961) .
181 Sherbert v. Verner, 374 U.S. 398, 402 (1963) ; Torcaso v. Watkins, 367 U.S. 488 (1961) .
182 Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 L. Rev. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause’s origins in religious pluralism) with Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L. Rev. 357 (1989–90) (arguing that such exemptions establish an invalid preference for religious beliefs over non–religious beliefs).
183 E.g., Reynolds v. United States, 98 U.S. 145 (1879) ; Jacobson v. Massachusetts, 197 U.S. 11 (1905) ; Prince v. Massachusetts, 321 U.S. 158 (1944) ; Braunfeld v. Brown, 366 U.S. 599 (1961) ; United States v. Lee, 455 U.S. 252 (1982) ; Employment Division v. Smith, 494 U.S. 872 (1990) .
184 “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.” Walz v. Tax Comm’n, 397 U.S. 668–69 (1970) .
185 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987) . A similar accommodative approach was suggested in Walz: “there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference.” 397U.S. at 669 397U.S. at 669.
186 Sherbert v. Verner, 374 U.S. 398, 409 (1963) . Accord, Thomas v. Review Bd., 450 U.S. 707, 719–20 (1981) . Dissenting in Thomas, Justice Rehnquist argued that Sherbert and Thomas created unacceptable tensions between the Establishment and Free Exercise Clauses, and that requiring the States to accommodate persons like Sherbert and Thomas because of their religious beliefs ran the risk of “establishing” religion under the Court’s existing tests. He argued further, however, that less expansive interpretations of both clauses would eliminate this artificial tension. Thus, Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring government to grant exemptions from general requirements that may burden religious exercise but that do not prohibit religious practices outright, and would have interpreted the Establishment Clause as not preventing government from voluntarily granting religious exemptions. 450U.S. at 720–27 450U.S. at 720–27. By 1990 these views had apparently gained ascendancy, Justice Scalia’s opinion for the Court in the “peyote” case suggesting that accommodation should be left to the political process, i.e., that states could constitutionally provide exceptions in their drug laws for sacramental peyote use, even though such exceptions are not constitutionally required. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) .
187 See, e.g., Walz v. Tax Comm’n, 397 U.S. 664 (upholding property tax exemption for religious organizations); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights Act exemption allowing religious institutions to restrict hiring to members of religion); Gillette v. United States, 401 U.S. 437, 453–54 (1971) (interpreting conscientious objection exemption from military service).
188 See, e.g., Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788–89 (1973) (tuition reimbursement grants to parents of parochial school children violate Establishment Clause in spite of New York State’s argument that program was designed to promote free exercise by enabling low–income parents to send children to church schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales tax exemption for religious publications violates the Establishment Clause) (plurality opinion).

Supplement: [P. 1007, add to n.188:]

Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07 (1994) (“accommodation is not a principle without limits;” one limitation is that “neutrality as among religions must be honored”).

189 Cantwell v. Connecticut, 310 U.S. 296, 304 (1940) .
190 Reynolds v. United States, 98 U.S. 145, 166 (1878) . “Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.”’ Davis v. Beason, 133 U.S. 333, 345 (1890) . In another context, Justice Sutherland in United States v. Macintosh, 283 U.S. 605, 625 (1931) , suggested a plenary governmental power to regulate action in denying that recognition of conscientious objection to military service was of a constitutional magnitude, saying that “unqualified allegiance to the Nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.”
191 Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination); Prince v. Massachusetts 321 U.S. 158 (1944) (child labor); Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert v. Verner, 374 U.S. 398, 403 (1963) , Justice Brennan asserted that the “conduct or activities so regulated [in the cited cases] have invariably posed some substantial threat to public safety, peace or order.”
192 Sherbert v. Verner, 374 U.S. 398 (1963) ; Wisconsin v. Yoder, 406 U.S. 205 (1972) ; cf. Braunfeld v. Brown, 366 U.S. 599, 607 (1961) : “[I]f the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.”
193 Sherbert v. Verner, 374 U.S. 398, 403, 406–09 (1963) . In Wisconsin v. Yoder, 406 U.S. 205 (1972) , the Court recognized compelling state interests in provision of public education, but found insufficient evidence that those interests (preparing children for citizenship and for self–reliance) would be furthered by requiring Amish children to attend public schools beyond the eighth grade. Instead, the evidence showed that the Amish system of vocational education prepared their children for life in their self–sufficient communities.
194 Goldman v. Weinberger, 475 U.S. 503 (1986) ; O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .
195 494 U.S. 872, 878 (1990) .
196 Id. at 890.
197 Reynolds v. United States, 98 U.S. 145 (1879) ; cf. Cleveland v. United States, 329 U.S. 14 (1946) (no religious–belief defense to Mann Act prosecution for transporting a woman across state line for the “immoral purpose” of polygamy).
198 Murphy v. Ramsey, 114 U.S. 15 (1885) .
199 Davis v. Beason, 133 U.S. 333 (1890) . “Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. . . . To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.” Id. at 341–42.
200 The Late Corporation of the Church of Jesus Christ of Latter–Day Saints v. United States, 136 U.S. 1 (1890) . “[T]he property of the said corporation . . . [is to be used to promote] the practice of polygamy—a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. . . . The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity had produced in the Western world.” Id. at 48–49.[p.1010]
The Jehovah’s Witnesses Cases.— In contrast to the Mormons, the sect known as Jehovah’s Witnesses, in many ways as unsettling to the conventional as the Mormons were,201 provoked from the Court a lengthy series of decisions202 expanding the rights of religious proselytizers and other advocates to utilize the streets and parks to broadcast their ideas, though the decisions may be based more squarely on the speech clause than on the free exercise clause. The leading case is Cantwell v. Connecticut.203 Three Jehovah’s Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant did have a religious cause and to decline a license if in his view the cause was not religious. Such power amounted to a previous restraint upon the exercise of religion and was invalid, the Court held.204 The breach of the peace count arose when the three accosted two Catholics in a strongly Catholic neighborhood and played them a phonograph record which grossly insulted the Christian religion in general and the Catholic Church in particular. The Court voided this count under the clear–and–present danger test, finding that the interest sought to be upheld by the State did not justify the suppression of religious views that simply annoyed listeners.205
201 For recent cases dealing with other religious groups discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 (1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) (Unification Church).

Supplement: [P. 1010, add to n.201:]

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Santeria faith).

202 Most of the cases are collected and categorized by Justice Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion).
203 310 U.S. 296 (1940) .
204 Id. at 303–07. “The freedom to act must have appropriate definition to preserve the enforcement of that protection [of society]. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. . . . [A] State may by general and non–discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” Id. at 304.
205 Id. at 307–11. “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probabilities of excesses and abuses, these liberties are in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Id. at 310.
206 Jones v. Opelika, 316 U.S. 584 (1942) .
207 Jones v. Opelika, 319 U.S. 103 (1943) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943) . See also Follett v. McCormick, 321 U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying “only where a flat license fee operates as a prior restraint”; upheld in Swaggart was application of a general sales and use tax to sales of religious publications.
208 Martin v. City of Struthers, 319 U.S. 141 (1943) . But cf. Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicitation context).
209 Prince v. Massachusetts, 321 U.S. 158 (1944) .
210 E.g., Niemotko v. Maryland, 340 U.S. 268 (1951) ; Kunz v. New York, 340 U.S. 290 (1951) ; Fowler v. Rhode Island, 345 U.S. 67 (1953) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) . See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by Unification Church members).
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