- Free Exercise Clause
United States of America
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The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:
“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof... ”
In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. The Court said (at page 162): "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."
Jehovah's Witnesses were often the target of such restriction. Several cases involving the Witnesses gave the Court the opportunity to rule on the application of the Free Exercise Clause. Subsequently, the Warren Court adopted an expansive view of the clause, the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions have reduced the scope of this interpretation.
The history of the Supreme Court's interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention, then taking on a relatively narrow view of the governmental restrictions required under the clause, growing into a much broader view in the 1960s, and later again receding.
The first case to closely examine the scope of the Free Exercise Clause was Reynolds v. United States in 1879. A case dealing with the prosecution of a polygamist under federal law, and the defendant's claim of protection under the Free Exercise Clause, the Court upheld the law and the government's prosecution. This case, which also revived Thomas Jefferson's statement regarding the "wall of separation" between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.
This interpretation of the Free Exercise Clause continued into the 1960s and the ascendancy of the Warren Court under chief justice Earl Warren. Applying a new standard of "strict scrutiny" in various areas of civil rights law, the Court began to apply this standard to the First Amendment religion clauses as well, reading the Free Exercise Clause to require accommodation of religious conduct except where a state could show a compelling interest and no less burdensome means to achieve that end. One example was Sherbert v. Verner, where the Court overturned the state Employment Security Commission's decision to deny unemployment benefits to a practicing member of the Seventh-day Adventist Church who was forced out of a job after her employer adopted a 6 day work week, which would have required her to work on Saturdays against the dictates of her religion. As Justice William Brennan stated for the majority, "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." This test was used through the years of the Burger Court, including particularly in the landmark case of Wisconsin v. Yoder (1972).
This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug's use as part of a religious ritual, and without employing the strict scrutiny test. Instead, the Court again held that a "neutral law of general applicability" generally does not implicate the Free Exercise Clause. This was followed by intense disapproval from Congress and the passage of the Religious Freedom Restoration Act in 1993 to attempt to restore the prior test. However, in City of Boerne v. Flores, the Supreme Court struck down the act as well, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the Smith test in place.
Jehovah's Witnesses cases
During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah's Witnesses. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. The first important victory came in 1938, when in Lovell v. City of Griffin, the Supreme Court held that cities could not require permits for the distribution of pamphlets. In 1939, the Supreme Court decided Schneider v. Town of Irvington, in which it struck down anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets. In 1940, the Court considered Cantwell v. Connecticut; the plaintiff, a Jehovah's Witness, was charged with soliciting donations without a certificate from the Public Welfare Council. The Council was to grant the certificate only if the organization requesting it was a charity or sponsored a religious cause. The Supreme Court ruled that any law granting a public body the function of determining if a cause is religious or not violates the First Amendment.
In 1940, the Supreme Court would decide in Minersville School District v. Gobitis that members of the Jehovah's Witnesses in a school could be required to salute the flag. The ruling in Gobitis , however, did not stand for long. In 1943, West Virginia State Board of Education v. Barnette, the Supreme Court essentially reversed its previous opinion. Justice Frankfurter had, in the Gobitis case, suggested that the Witnesses attempt to reverse the School Board's policy by exercising their vote. In the Barnette case, however, Justice Robert H. Jackson wrote, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities ... One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote." The Supreme Court did not rule that the Pledge was unconstitutional; rather, they held that students may not be compelled to recite it.
The Supreme Court under Earl Warren adopted an expansive view of the Free Exercise Clause. The Court required that states have a "compelling interest" in refusing to accommodate religiously motivated conduct as it decided Sherbert v. Verner (1963). The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder (1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.
The "compelling interest" doctrine became much narrower in 1990, when the Supreme Court held in Employment Division v. Smith that, as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause. In 1993, the Supreme Court revisited the Free Exercise Clause in Church of Lukumi Babalu Aye v. City of Hialeah. Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as the kosher slaughter of Judaism. Since the ordinance was not "generally applicable," the Court ruled that it was subject to the compelling interest test, which it failed to meet, and was therefore declared unconstitutional.
Also in 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the "compelling interest" standard. In City of Boerne v. Flores (1997) the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment, which the courts enjoy sole power to interpret. According to the court's ruling in Gonzales v. UDV (2006), RFRA remains applicable to federal statutes, which must therefore still meet the "compelling interest" standard in free exercise cases.
- First Amendment to the United States Constitution
- Establishment clause
- Separation of Church and State
- Freedom of thought
- Freedom of religion
- Freedom of religion in the United States
- United States religious history
- First Amendment Library entry on Free Exercise Clause (with links to all of the Supreme Court's Free Exercise opinions)
- Hamilton, Marci A. (2005). God vs. the Gavel: Religion and the Rule of Law. Cambridge: Cambridge University Press. ISBN 0521853044.
United States First Amendment case law Establishment Clause Public fundingEverson v. Board of Education (1947) • McCollum v. Board of Education (1948) • Walz v. Tax Commission (1970) • Lemon v. Kurtzman (1971) • Marsh v. Chambers (1983) • Board of Education of Kiryas Joel Village School District v. Grumet (1994) • Agostini v. Felton (1997) • Mitchell v. Helms (2000) • Zelman v. Simmons-Harris (2002) • Locke v. Davey (2004) Public displays School prayer Creationism Free Exercise ClauseReynolds v. United States (1879) • Davis v. Beason (1890) • Niemotko v. Maryland (1951) • Braunfeld v. Brown (1961) • Torcaso v. Watkins (1961) • Sherbert v. Verner (1963) • Wisconsin v. Yoder (1972) • Thomas v. Review Board of the Indiana Employment Security Division (1981) • Bob Jones University v. United States (1983) • Goldman v. Weinberger (1986) • Employment Division v. Smith (1990) • Church of Lukumi Babalu Aye v. City of Hialeah (1993) • City of Boerne v. Flores (1997) • Watchtower Society v. Village of Stratton (2002) • Cutter v. Wilkinson (2005) • Gonzales v. UDV (2006) Freedom of speech Sedition and
imminent dangerAlien and Sedition Acts (1798) • Schenck v. United States (1919) • Abrams v. United States (1919) • Masses Publishing Co. v. Patten (S.D.N.Y. 1917) • Gitlow v. New York (1925) • Whitney v. California (1927) • Dennis v. United States (1951) • Yates v. United States (1957) • Brandenburg v. Ohio (1969)
Fighting words and
the heckler's veto
Freedom of assembly
and public forums
Symbolic speech Compelled speech School speechTinker v. Des Moines Independent Community School District (1969) • Board of Education v. Pico (1982) • Bethel School District No. 403 v. Fraser (1986) • Hazelwood School District v. Kuhlmeier (1988) • Rosenberger v. University of Virginia (1995) • Morse v. Frederick (2007) ObscenityRosen v. United States (1896) • United States v. One Book Called Ulysses (S.D.N.Y. 1933) • Roth v. United States (1957) • One, Inc. v. Olesen (1958) • Marcus v. Search Warrant (1961) • MANual Enterprises v. Day (1962) • Jacobellis v. Ohio (1964) • Quantity of Books v. Kansas (1964) • Freedman v. Maryland (1965) • Memoirs v. Massachusetts (1966) • Redrup v. New York (1967) • Ginsberg v. New York (1968) • Stanley v. Georgia (1969) • United States v. Thirty-seven Photographs (1971) • Kois v. Wisconsin (1972) • Miller v. California (1973) • Paris Adult Theatre I v. Slaton (1973) • United States v. 12 200-ft. Reels of Film (1973) • Jenkins v. Georgia (1974) • New York v. Ferber (1982) • American Booksellers v. Hudnut (7th Cir., 1985) • Renton v. Playtime Theatres, Inc. (1986) • Osborne v. Ohio (1990) • United States v. X-Citement Video (1994) • Reno v. American Civil Liberties Union (1997) • United States v. Playboy Entertainment Group (2000) • Ashcroft v. Free Speech Coalition (2002) • Ashcroft v. American Civil Liberties Union (2002) • Nitke v. Gonzales (S.D.N.Y., 2005) • United States v. Williams (2008) • American Booksellers Foundation for Free Expression v. Strickland (6th Cir., 2009) • United States v. Kilbride (9th Cir., 2009) • United States v. Stevens (2010) Public employees Hatch Act
and similar lawsEx parte Curtis (1882) • United Public Workers v. Mitchell (1947) • United States Civil Service Commission v. National Association of Letter Carriers (1973) • Broadrick v. Oklahoma (1973)
Commercial speechValentine v. Chrestensen (1942) • Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) • Bigelow v. Commonwealth of Virginia (1974) • Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976) • Bates v. State Bar of Arizona (1977) • Linmark Associates, Inc. v. Willingboro (1977) • Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) • Consol. Edison Co. v. Public Serv. Comm'n (1980) • Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986) • San Francisco Arts & Athletics, Inc. v. United States Olympic Committee (1987) • 44 Liquormart, Inc. v. Rhode Island (1996) Campaign finance and
political speechBuckley v. Valeo (1976) • First National Bank of Boston v. Bellotti (1978) • Citizens Against Rent Control v. City of Berkeley (1981) • California Medical Association v. FEC (1981) • Brown v. Socialist Workers '74 Campaign Committee (1982) • FEC v. National Conservative Political Action Committee (1985) • FEC v. Massachusetts Citizens for Life (1986) • Austin v. Michigan Chamber of Commerce (1990) • McIntyre v. Ohio Elections Commission (1995) • Colorado Republican Federal Campaign Committee v. FEC (1996) • Nixon v. Shrink Missouri Government PAC (2000) • FEC v. Colorado Republican Federal Campaign Committee (2001) • McConnell v. FEC (2003) • FEC v. Beaumont (2003) • Randall v. Sorrell (2006) • FEC v. Wisconsin Right to Life, Inc. (2007) • Davis v. FEC (2008) • Citizens United v. FEC (2010) • Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. (2011)
Freedom of the press Prior restraints
DefamationNew York Times Co. v. Sullivan (1964) • Curtis Publishing Co. v. Butts (1967) • Gertz v. Robert Welch, Inc. (1974) • Bose Corp. v. Consumers Union of United States, Inc. (1984) • Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) • McDonald v. Smith (1985) • Hustler Magazine v. Falwell (1988) • Milkovich v. Lorain Journal Co. (1990) Broadcast media Freedom of associationNAACP v. Alabama (1958) • Roberts v. United States Jaycees (1984) • Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) • Boy Scouts of America v. Dale (2000)
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