Free Exercise Clause, commonly identified as the freedom of religion, refers to the first section of the First Amendment italicized here:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
The Free Exercise Clause reserves the right of American citizens to practice any religious belief and engage in religious rituals they choose. The Clause protects not just religious beliefs, but some actions made on behalf of those beliefs, “so long as the practice does not run afoul of ‘public morals’ or a ‘compelling’ governmental interest.”
In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects. See also: Richard Posner and Michael McConnell, "An Economic Approach to Issues of Religious Freedom," University of Chicago Law Review (1989).
Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict; e.g., Thomas v. Review Board, 450 U.S. 707 (1981).
At various times, the Court has either applied a broad or narrow application of the clause.
The First Amendment applied only to the U.S. Congress upon its draft. As such, state and local governments could abridge the Free Exercise Clause if there was no similar provision in the state constitution. In 1940, the Supreme Court held in Cantwell v. Connecticut that, the Free Exercise Clause is enforceable against state and local governments. The Court made this conclusion by applying the Fourteenth Amendment’s due process clause which prevents any State from denying a citizen their rights without following laws and fair procedures (this act of using the Fourteenth Amendment as the vehicle through which the Court applies the Bill of Rights to the States is also known as the Incorporation Doctrine).
[Last updated in June of 2024 by the Wex Definitions Team]