Pastor, Church & Law

The Free Exercise Clause

§ 12.02

The First Amendment specifies that “Congress shall make no law … prohibiting the free exercise [of religion].” This language generally is referred to as the “free exercise clause.” The free exercise clause remained a dormant provision of the Bill of Rights for nearly a century and a half following its adoption. This was based largely on two factors. First, Congress seldom if ever took any action that interfered with the exercise of anyone’s religion. Second, in its first decision interpreting the free exercise clause, the Supreme Court ruled in 1878 that while federal laws “cannot interfere with mere religious belief and opinions, they may with practice.”[+] According to this interpretation, the free exercise clause would be violated only by congressional legislation that interfered with an individual’s religious beliefs, and not with religiously-motivated conduct.

Two developments significantly increased the relevance and application of the free exercise clause. The first occurred in 1940, when the Supreme Court “incorporated” the First Amendment religion clauses into the Fourteenth Amendment “due process” clause, thereby making the First Amendment a limitation upon state (and local) governments as well as Congress.[+] Prior to 1940, only federal legislation could violate the free exercise clause. Since 1940, the same is true of state and local legislation and regulations. Clearly, this had the effect of greatly expanding the application of the free exercise clause. Second, in 1963 the Supreme Court issued a major reinterpretation of the free exercise clause in the case of Sherbert v. Verner.[+] In the Sherbert case, the Court departed from the simplistic “belief-conduct” standard that it had enunciated in its earlier Reynolds decision and announced that a government statute or regulation that imposes a “burden” on the free exercise of one’s religion violates the free exercise clause unless the statute or regulation is justified by a “compelling state interest.” This test was clarified a few years later in Wisconsin v. Yoder.[+] The Supreme Court articulated its understanding of the free exercise clause as follows:

  1. Government may never interfere with an individual’s right to believe whatever he or she wants.
  2. In determining whether the government may interfere with or restrict religiously motivated conduct, the courts must consider (a) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (b) whether the activity was unduly and substantially burdened by the government’s action, and (c) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.

This general understanding of the free exercise clause was applied by the Court in several cases.[+]

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