Free Exercise
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In colonial America, freedom of speech and freedom of religion were deeply intertwined. The freedom of speech that individuals sought, for example, often had religious beliefs as its subject. For many settlers, the motivation for leaving Europe was to escape religious persecution, hoping that the colonies would provide a safer place to practice their faith without government interference.
It would be a mistake, however, to imagine early colonial America as a land of religious tolerance. For many religious settlers, the problem was not that the majority did not respect the faith of the minority, but that they themselves were not the majority. Several colonies had official state religions. Protestant sects often persecuted one another, while Catholics and Jews were generally mistreated across the colonies. While there were exceptions—Pennsylvania and Rhode Island both rejected established churches and were generally tolerant towards multiple faiths—the general environment was not one of religious freedom as we would recognize today.
The years leading up to the Declaration of Independence, however, were characterized by increasing support for religious freedom. The free exercise of religious belief came to be seen as a fundamental right, both advanced by leading figures such as Madison and Jefferson and protected by some state constitutions. The original United States Constitution prohibited “religious tests” for federal office, clearly establishing a secular government with no national religion or church. The Bill of Rights included not one but two clauses regarding religion: the Establishment Clause (which at a minimum prohibits a state-sponsored religion), and the Free Exercise Clause, which prevents the federal government from passing laws “prohibiting the free exercise” of religion.
The uncontested contemporary meaning of the Free Exercise Clause clause is that the federal government (and today state governments through the Fourteenth Amendment) may not ban specific religions or religious meetings, or criminalize statements of religious belief. Beyond this core interpretation, there remain three central tensions courts have regularly faced in the cases that have come before them.
1. What counts as “religion” for the purposes of the clause? The clause has as its premise that religion is a distinct category of belief or activity that merits special protection against government regulation.
Defining religion, though, is an extremely difficult task, with powerful implications for the scope of the clause. Imagine, for example, a definition of “religion” that excluded all non-Christian faiths. Such a definition would obviously undermine the clause’s ability to protect minority sects.
For this reason, the Court understandably prefers a broad definition of religion that would frustrate attempts by a majority to target an unpopular faith. At the same time, justices have been uncomfortable defining religion in concrete terms, believing themselves ill-qualified to engage in such line drawing. To round out the problem, the Court must engage in some degree of gatekeeping, or else anyone could claim “religion” as the basis for demanding protection for actions that do not involve religion in any meaningful way.
2. The tension between religious exercise and generally applicable laws. By protecting the “exercise” of religion rather than simply belief, the Framers made clear that they also wanted to prohibit laws that interfered with religious activity. In many cases, this is uncontroversial, preventing the regulation of religious practices such as confession, gathering to worship, and so on.
That said, while religious belief or thought can be absolutely protected, religious actions cannot, a concept sometimes referred to as the belief-action or belief-conduct distinction. Imagine a religion whose beliefs require its members to murder non-believers—society certainly could not allow the exercise of such a faith. Where to draw the line—and whether courts or legislatures should draw it—is a central problem in Free Exercise doctrine.
3. What the Free Exercise Clause requires of legislatures. There is a fundamental disagreement over whether the Free Exercise clause is essentially an anti-discrimination clause that requires neutrality towards religion, but no more, or whether it grants religion a preferred status that mandates some degree of accommodation for religious actors whose practices come into conflict with the law.
The difference adopting these views makes is directly related to the second tension. If the Free Exercise clause mandates neutrality but not accommodation, then laws that burden religious practice are constitutional as long as the law is not targeting a religion or its practitioners. States or the federal government may grant exemptions from laws to religious groups if they wish, but are not required to do so by the Constitution.
Suppose the Free Exercise clause instead mandates some degree of accommodation. In that case, laws that burden religious practice may be unconstitutional in some situations, with courts mandating exemptions that legislatures have failed to provide.
As we’ll see below, for most of our history, the neutrality view has held sway, though between 1963 and 1990 the Court supported the accommodation view. As of this writing, there are some indications that the post-Trump Court may desire a return to accommodation.
These tensions—particularly the second and the third—continue to create controversies in contemporary society. The United States remains an outlier among modern democracies in terms of both its religious pluralism and the relative strength of religious beliefs among its citizens. The vibrancy of religion means that conflicts between religious exercise and general law will continue to occur, keeping Free Exercise jurisprudence both politically salient and legally important.
