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The Free Exercise of Religion in America

When, if ever, may the government limit freedom of religion? The Supreme Court and Congress have grappled with this question.

A lithograph, done seven years after the killing, depicts the 1844 murder of Joseph Smith, leader of the Church of Latter-day Saints. (Wikimedia Commons)

The First Amendment to the U.S. Constitution begins with what are known as the religion clauses: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof . . . .” Note that initially the First Amendment only limited the actions of Congress, our national legislature, but not the governments of any of the states. That came later.

The phrases establishment of religion and free exercise of religion mean different things. Most British colonies in America before 1776 had “established churches,” churches that received direct financial support from taxpayer money. Several states in the early American republic also had established churches. The establishment clause protects against the federal government’s funding or sponsoring particular religious views.

The free exercise clause serves another purpose: It prevents the government from interfering with people’s religious beliefs and forms of worship. It was many years before the Supreme Court heard its first case involving the free exercise clause.

The First Free Exercise Case

In the 1820s, a man named Joseph Smith had spiritual visions, and from his visions came the new religion of the Church of Latter-day Saints, whose adherents are sometimes refered to as Mormons. Throughout the 19th century, the Church faith spread as the charismatic Smith gathered followers. Among the Church’s more controversial practices was polygamy, or men having multiple wives. Joseph Smith based his belief in polygamy on revelations from God, supported by biblical examples of the practice, though the practice was not widespread among his followers.

The Church faced resistance and even persecution when they settled in many traditionally Christian communities. Smith was killed by an angry mob in 1844 and was succeded by Brigham Young. Members of the Church ultimately settled in the territory of Utah. There, they openly practiced polygamy.

Determined to clamp down on their polygamy in U.S. territories, Congress passed the Anti-Bigamy Act of 1862, which President Lincoln signed into law. The law made polygamy a federal crime punishable by prison and a fine: “That every person having a husband or wife living, who shall marry any other person, whether married or single, in a Territory of the United States, . . . shall . . . be adjudged guilty of bigamy . . . .” Lincoln, however, promised not to enforce the law if Young agreed not to join the Confederacy in the Civil War.

When the federal government began to more actively enforce the law in the 1870s, Young and other Church elders decided to challenge the law. Young had his secretary, George Reynolds, arrested for bigamy. According to plan, Reynolds claimed his arrest violated his fundamental right to free exercise of religion. The U.S. Supreme Court agreed to hear his appeal.

When in 1879, the court issued its opinion in Reynolds v. U.S., Reynolds and the Church lost. In a unanimous opinion, Chief Justice Morrison Waite wrote, “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Unless the government can regulate our actions, every citizen would become “a law unto himself.” In other words, the government may limit your actions, but not your beliefs.

In 1890, the Church formally banned the practice of polygamy, though some splinter groups, also claiming Joseph Smith as their founder, continued the practice illegally even into the 21st century. (The practice of polygamy in Utah had made many in Congress oppose its becoming a state. After the ban, Congress admitted Utah to the Union in 1896.)

Incorporation of Rights

The First Amendment initially only applied to the federal government. The Church could challenge the Anti-Bigamy Act because it was an act of Congress, the only governmental body named in the First Amendment.

But following the Civil War, the 14th Amendment was added to the Constitution. Among its provisions was the due process clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” Beginning in the 1920s, the Supreme Court began to interpret the due process clause as incorporating the fundamental rights of the Constitution and thus protecting individuals against the actions of state and local governments. On a case-by-case basis, the court has decided which rights are incorporated into the 14th Amendment’s due process clause. Once a fundamental right has been incorporated, it protects persons from unconstitutional laws and actions of their state and local governments and not just the federal government.

The free exercise clause was incorporated in the 1940 case of Cantwell v. Connecticut. Newton Cantwell belonged to the Jehovah’s Witnesses, a Christian sect that places great importance on its members’ proselytizing, or working to convert others to its beliefs. One day, Cantwell and his two sons went door-to-door in a mostly Catholic neighborhood in Connecticut, taking with them religious books and pamphlets and even a portable phonograph (record player) to play recordings for people at their front doors.

The recordings offended many people in the neighborhood. Some listeners later testified that they had to restrain themselves from punching Cantwell. A local ordinance forbade anyone from soliciting (asking for donations) for “any alleged religious, charitable or philanthropic cause” without prior approval from the local “public welfare council,” a governmental body. The punishment for violating the ordinance included a fine and up to 30 days in jail. Cantwell was arrested for violating the ordinance and for disturbing the peace.

Cantwell defended his actions on the basis of his free exercise of religion under the First and 14th amendments. When his case was appealed to the Supreme Court, the court held unanimously in Cantwell’s favor. In his opinion, Justice Owen Roberts wrote:

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets [basic beliefs] of one man may seem the rankest error to his neighbor . . . . But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

Compelling Interest

More than 20 years later, in Sherbert v. Verner (1963), the Supreme Court made another important ruling on the free exercise clause. The court was presented with this issue: If an employee cannot perform the required functions of a job for religious reasons, and is then fired, may a state deny that employee unemployment benefits?

The case involved Seventh Day Adventism, a Christian denomination. All Christians observe a holy day each week called the Sabbath, and most Christians in the United States observe the Sabbath on Sunday. The Seventh Day Adventists, however, observe it on Saturday, according to their biblical interpretation.

Adell Sherbert, a young woman, had converted to Seventh Day Adventism in South Carolina. She worked a five-day week at a textile mill, but when the mill’s schedule changed to a six-day week, including Saturdays, she refused to work on her Sabbath day. She was fired, and she could not find other work because of her Sabbath restriction. When she applied for state unemployment benefits, the state denied her claim, stating that she was refusing to accept available work.

Sherbert appealed the state’s decision. When her case ultimately reached the U.S. Supreme Court, the court decided in her favor. Writing for the majority, Justice William Brennan stated a rule for deciding when the government could limit a person’s free exercise of religion. The decision to deny Sherbert her benefits

must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest. . . .”

In other words, the court, recognizing the free exercise of religion as a fundamental right, decided that if the government wants to place a burden on a person’s sincere religious beliefs, then the government must have a very strong reason for placing such a burden. The only reason the state put forward in Sherbert’s case was the possibility of “fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work.” Brennan noted that no evidence of fraudulent claims was presented in court and doubted even if evidence existed, that this would amount to a compelling state interest. “For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the [state] to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”

Drugs, Religion, and the Law

For nearly 30 years, the courts used Sherbert’s “compelling interest” test to decide free exercise cases. In Employment Division v. Smith (1990), however, the Supreme Court moved decidedly in another direction, by reinvigorating the original standard set in Reynolds v. U.S.

The case of Smith involved adherents of a small religion called the Native American Church (NAC). The NAC synthesize Christianity with traditional North American indigenous, or Native American, religion. Beliefs and practices in the NAC vary from region to region. Part of the NAC’s ritual practices, however, involves the controversial use of part of a small cactus called peyote (pronounced pay-OH-tee). When ingested into the body, peyote can cause a strong hallucinogenic (mind-altering) effect. Archaeologists have found peyote “buttons” (bite-size pieces) in caves in southern Texas that date back to 5,000 B.C., indicating a long tradition of use before the arrival of Europeans in North and South America.

The federal government classifies peyote as a Schedule I controlled substance, or illegal narcotic. Federal law, however, makes an exemption for peyote’s use by the NAC: “The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church.” All states also outlaw the use of peyote, but many of them also have exemptions for its use by the NAC.

In the late 1980s, Alfred Smith and Galen Black worked in a private Oregon drug-rehabilitation clinic as counselors. They also belonged to the Native American Church. When their employer learned they ingested peyote as part of their religious practice, they were fired for “misconduct” even though they did it when they were not working. Use of peyote is a crime in Oregon, and the state does not have an exemption for the NAC. Smith and Black, however, were never charged with a crime. They made a claim for state unemployment benefits, but the Oregon Department of Human Resources denied the benefits because of the misconduct claim.

The Oregon Supreme Court held that the denial of benefits did violate the free exercise clause, citing Sherbert v. Verner and the compelling interest test. When the state of Oregon appealed the case to the U.S. Supreme Court, it argued that the use of peyote is a criminal act, and therefore the denial of benefits was permitted even though Smith and Black only used peyote for religious purposes. The state argued that their conduct set a bad example for the drug addicts who Smith and Black counseled.

Smith and Black argued that criminal activity not directly “job-related” is not a reason to deny unemployment benefits under Oregon law. They cited an example of a university professor who was not denied benefits even though he had been convicted for conspiracy to set off bombs at federal buildings.

The U.S. Supreme Court, however, held for the state of Oregon in a 6–3 split. In his majority opinion, Justice Antonin Scalia wrote that a “neutral, generally applicable law” does not violate the free exercise clause simply because it burdens a person’s religious beliefs. Scalia continued, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Citing the Reynolds case, Scalia warned that a decision favoring Smith and Black would allow “every citizen to become a law unto himself.”

Writing in dissent, Justice Harry Blackmun argued that the compelling interest test “was settled and inviolate principle,” and that the Oregon government had simply not established a compelling interest “in enforcing its drug laws against religious users of peyote.” Blackmun said that the majority was wrong to say the court had “never held that an individual’s religious beliefs” excuse him or her from the law. Blackmun pointed to the Cantwell decision as an example.

The RFRA

The decision in Smith prompted outrage from across political and religious dividing lines. Many liberals and conservatives thought the decision harmed religious liberty. Smith brought the liberal American Civil Liberties Union and the conservative Traditional Values Coalition together to denounce the Supreme Court’s decision. A variety of religious groups also opposed the decision. The Religious Action Center of Reform Judaism, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals, and others all agreed that the decision would have far-reaching effects, damaging more than just the Native American Church.

Members of Congress responded. Representative Chuck Schumer (D-NY) introduced a bill called the Religious Freedom Restoration Act (RFRA) in 1993, which reinstated the compelling interest test of the Sherbert case. It passed unanimously in the House of Representatives and sailed through the Senate in a 97–3 vote. President Bill Clinton then signed RFRA into law. The text of the law referred only to “government,” meaning that it applied at both the federal and state levels.

In 1997, however, the Supreme Court declared unconstitutional the application of RFRA to the states in the case of City of Boerne v. Flores. In a 6–3 decision, the court held that Congress exceeded its authority under the 14th Amendment when it passed RFRA. The court decided that congressional legislation could limit the federal government’s actions, but that Congress could not tell state governments to give citizens more First Amendment protection than the Smith decision required.

Over the ensuing years, several states passed their own state-level “RFRAs.” As of March 2015, a total of 20 states have RFRA laws.

Hobby Lobby and Beyond

In Burwell v. Hobby Lobby (2014), the Supreme Court was once again asked to tackle the Religious Freedom Restoration Act. The owners of Hobby Lobby, a private for-profit corporation, are members of a single family and are evangelical Christians. Hobby Lobby is a “closely held” corporation, which is one that is owned by relatively few people and whose stock is not traded on the stock market. The corporation runs more than 500 stores nationwide and employs thousands of people.

Acting collectively as the Hobby Lobby corporation, the owners objected to having to comply with a portion of the Affordable Care Act (ACA) that required employers’ health insurance plans to cover birth control for employees. They argued that their religious beliefs forbade them from funding “abortifacient” contraceptives, or those they believed caused the abortion of fetuses.

Hobby Lobby sued the federal government under RFRA. In its decision, the U.S. Supreme Court ruled 5–4 in favor of Hobby Lobby. In his opinion for the majority, Justice Samuel Alito wrote, “Protecting the free-exercise rights of corporations like Hobby Lobby protects the religious liberty of the humans who own and control those companies.”

Justice Alito explained that the court had already decided in another case that RFRA applied to non-profit corporations. In Hobby Lobby, the court for the first time interpreted RFRA to apply to for-profit, closely held corporations. The holding also only pertained to the ACA’s mandate for employer-covered birth control.

The case sparked deep controversy. In her dissenting opinion, Justice Ruth Bader Ginsburg said the Hobby Lobby decision would cause “havoc.” She argued that Congress had already amended the ACA in 2012 to ensure that employers could not deny health care coverage to employees based on the employers’ religious beliefs. On religious freedom, she continued, “There is . . . no support for the notion that free exercise rights pertain to for-profit corporations.”

Discussion & Writing

1. What are the two religious clauses in the First Amendment? What does each guard against?
2. What are bigamy and polygamy? Why did Congress just write an anti-bigamy statute?
3. The article says the free exercise clause prevents government interference with each person’s religious beliefs and practices. What government interference was alleged in the Reynolds, Cantwell, Sherbert, and Smith cases? Cite evidence from the article’s text to support your answers.
4. Re-read the section “Drugs, Religion, and the Law.” Compare the decision in Reynolds (1879) with the decision in Smith (1990). How were the facts in those cases similar or different? Do you think Smith was simply a restatement of Reynolds? Why or why not? Cite evidence from the article’s text to support your answer.
5. Re-read the section “Hobby Lobby and Beyond.” Do you agree with the majority opinion or with the dissenting opinion? Give reasons to support your answer.

A C T I V I T Y

What Should the Test Be? A Close-Reading Activity on the Free Exercise Clause

The Supreme Court in the Sherbert and Smith cases used two different tests to decide free exercise clause cases. In this activity, students will apply the tests to the 1972 case of Wisconsin v. Yoder.

That case involved the Amish, separatist Christians who avoid most modern technology in favor of traditional communal farming. In the Yoder case, Amish parents refused to enroll their children in public high school, arguing that attending was “contrary to the Amish way of life.” These parents were charged and fined for violating the state’s compulsory education laws. The U.S. Supreme Court had to decide the following issue: Do a state’s compulsory education laws violate the First Amendment rights of parents who refuse to send their children to school for sincerely held religious reasons?

For this activity, students should first form pairs and do a close reading of the facts of Wisconsin v. Yoder. Then each student will write a short essay, answering text-dependent questions.

Instructions:

1.  Read the facts of the case below, taken directly from the majority opinion written by Chief Justice Warren Burger. Circle words or phrases that you do not understand or need to look up. After reading, discuss the main points with a partner and try to reach agreement on what the case is about. Read aloud the words or phrases that you do not understand and see if your partner can help explain them to you.

2. Re-read the excerpts, this time drawing a question mark in the margin next to any paragraph or sentence that makes you have a question about the text. Write down your questions on a separate sheet of paper if the margin does not give you enough room.

3.  After re-reading, share your questions about the text with your partner. Determine if your partner can help you answer them, or if you need to look up more information.

4.  Writing Activity: Using the text and the main article, answer the following questions, each with at least one well-developed paragraph, citing relevant text to support your answers:

(a) How should the Yoder case be decided under the compelling interest test of Sherbert v. Verner?

(b) How should it be decided under the “general applicability” test of Employment Division v. Smith?

(c)  How do you think the case should be decided? Why?
 

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Facts (as stated in the majority opinion of Wisconsin v. Yoder)

Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.

A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. . . .

Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal “learning through doing;” a life of “goodness,” rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.

Formal high school education beyond the eighth grade is contrary to Amish beliefs not only because it places Amish children in an environment hostile to Amish beliefs, with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. . . . In short, high school attendance with teachers who are not of the Amish faith — and may even be hostile to it — interposes a serious barrier to the integration of the Amish child into the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society.

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