CRS Annotated Constitution
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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
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”).
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).
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