FREEDOM OF RELIGION:

THE FREE EXERCISE CLAUSE

Outline
CHAPTER

14
I. Introduction
A. Historical background
1. America is a diverse religious country
a. Many came to escape religious persecution
b. Nine of original thirteen colonies had established religion
c. To avoid possible excesses resulting from confluence of government and religion,
protection for religion was included in the Bill of Rights
B. First Amendment provides this protection in two clauses that may conflict
1. The Establishment Clause
a. Prohibits the government from setting up an official religion
2. Free Exercise Clause
a. Designed to prevent government from outlawing or burdening ones chosen
religion
II. What Constitutes a Religion
A. To determine whether First Amendment protection is warranted under the Free Exercise
Clause, must determine what a religion is
1. Court must determine what constitutes religious belief
a. Court has not set forth definition of religion or religious belief
b. Court has articulated principles to be employed
B. Principles in deciding if First amendment protection is warranted
1. Belief need not be premised on belief in a Supreme Being
a. Affords broad range of beliefs, not just theistic view
(1) e. g., Buddhism
b. Includes beliefs not practiced or recognized by mainstream
2. Avoid preference for organized religion
a. Organized religion is well-established with large number of adherents and
generally conventional practices
b. Not necessary to be part of a group or sect to warrant protection
(1) Frazee v. Illinois, Department of Employment Security, 489 U.S. 829 (1989)
3. Sincerity of beliefs
a. Court tries to avoid consideration of truth or reasonableness of belief in
determining genuineness of belief
(1) United States v. Ballard, 322 U.S. 78 (1944)
(2) Davis v. Beason, 133 U.S. 333
4. Claimed belief must be central to religion
a. Subjective element
(1) Question is whether the particular adherent sees a conflict between the
regulation and the religion
III. Free Exercise
A. First Amendment provides virtually absolute protection of beliefs
B. Free exercise extends beyond belief to action
1. In this realm First Amendment rights are limited
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C. Protection depends on
1. Nature of the action
2. Governments reason for regulating the action
D. Court employs balancing test, applying general principles
1. When government purpose has an impact on religious conduct, the Court is likely
to find a violation
2. Where interference is purposeful state action, strict scrutiny is required
a. Court will find a violation
3. When regulation is not intended to interfere in religious practice, heightened
scrutiny is employed
a. State must demonstrate that the regulation is based on
(1) Particularly important governmental goal and
(2) Exemption would substantially hinder achievement of that goal
b. Exemption must be granted if the government goal can be accomplished
4. Where generally applicable criminal prohibition incidentally burdens free exercise,
the Court will not find a violation of the First Amendment
E. Intention impact on free exercise
1. Strict scrutiny is applied in the rare cases where the government intends to interfere
in religious practices
a. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
(1) City passed ordinances prohibiting animal sacrifice when plans announced to
open church of Santeria practicing animal sacrifice
(2) Reasoning and decision
(a) Court first considered neutrality of ordinances
(b) Found object was to target Santerians
(c) Law failed to meet general applicability standard
(d) Employed strict scrutiny
(e) Even assuming compelling state interest, there was a failure to narrowly
tailor the ordinances, thus requiring reversal
F. Unintended impacts on religious conduct
1. Usual challenges arise from incidental burden on religious practices where state has
legitimate purpose
2. Before 1960s Court reasoned that state regulating only conduct, so no First
Amendment question
a. Reynolds v. United States, 98 U.S. 145 (1878)
(1) Mormon polygamy
(2) Court did not employ strict scrutiny
(3) Rational relationship test applied upon finding of legitimate secular purpose
b. Minersville School District v. Gobitis, 310 U.S. 596 (1940)
(1) Flag salute regulation upheld
c. Question revisited in West Virginia Board of Education v. Barnette, 319 U.S. 624
(1943)
(1) Court employed secular purpose test
(2) Shifted analysis from free exercise and toward free speech
(a) Regulation overturned
d. Free speech analysis continued to be used in free exercise claims
(1) Wooley v. Maynard, 430 U.S. 705 (1977)
3. Restrictive analysis of free exercise claims
a. Braunfield v. Brown, 366 U.S. 599 (1961)
(1) Sunday closing laws challenged by Jewish merchants whose religion required
Saturday closing and seeking exemption
(2) Standard
(a) When regulation has secular purpose and effect and is general in
applicability, it is valid despite any undue burden on religious practices
(3) Purpose
(a) Providing uniform day of rest for all citizens
 Freedom of Religion: The Free Exercise Clause 95

i. Found legitimate state interest

ii. Found substantial interest
(4) Accommodation
(a) Would provide unfair advantage to Jewish merchants by eliminating
competition from those bound by regulation
(5) Held
(a) Statute valid on its face and as applied
(6) Partial concurrence and dissent by J. Brennan
(a) Argued for strict scrutiny
(b) Standard not substantial state interest
4. Less restrictive analyses
a. Sherbet v. Verner, 374 U.S. 388 (1963)
(1) Challenge by Seventh Day Adventist to denial of unemployment benefits
because statute required availability for Saturday work and it conflicted with
her Sabbath
(2) Statute imposed indirect burden on free exercise rights by forcing Sherbet to
choose between benefits and her religion
(3) Court found that state could not apply eligibility provisions in a manner that
constrained a citizen to abandon religious convictions
(4) J. Stewarts concurrence pointed out that this decision conflicted with Braun
(5) Sherbet indicates that there are situations where the government must
accommodate religious practice
b. Extent of accommodation
(1) Accommodation may conflict with Establishment Clause
(2) Exemption granted when
(a) No less restrictive means to achieve government goal
(b) Where exemption requires only minimum sacrifice of the state objective
i. Wisconsin v. Yoder, 406 U.S. 205 (1972)
a) Challenge by Amish to state compulsory school attendance statute
on free exercise grounds
b) General applicability of statute not undermined by accommodation
in this case
(3) No accommodation when government objective is impaired
(a) United States v. Lee, 455 U.S. 252 (1982)
i. Integrity of tax system warranted refusal of exemption on payment of
Social Security taxes
(b) Bob Jones University v. United States, 461 U.S. 574 (1983)
i. States interest in preventing discrimination is so compelling that
exemptions for religious beliefs cannot be granted or state interest
could not be achieved
c. Particular circumstances preclude exemptions
(1) Analysis of free exercise claim is different, applying less stringent standard
when challenger is not a civilian
(a) Goldman v. Weinberger, 475 U.S. 503 (1986)
i. Those in the military may have free exercise rights impinged
a) In response to this decision Congress passed 10 U.S.C. sec. 774(a)(b)
(2) OLone v. Shabazz, 492 U.S. 342 (1987)
(a) Prisoners may have free exercise rights impinged
(3) Generally applicable criminal statutes having unintended impact on free
exercise
(a) Employment Division v. Smith, 494 U.S. 872 (1990)
i. Such laws automatically enforceable regardless of burden imposed
ii. Do not warrant exemption
(4) Where government makes practice of religion more difficult
(a) Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
(5) Right to be relieved of military service for religious reasons
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(a) Exemption available for conscientious objectors

(b) Not available for those opposing a particular war
i. Gilette v. United States, 401 U.S. 437 (1971)
IV. Summary
A. Guarantee of free exercise virtually precludes government ability to regulate beliefs
B. Government may regulate activities associated with religion under certain
circumstances
C. Court employs balancing test, weighing
1. States purpose and
2. Individuals rights
D. Where impact purposeful, courts will find a violation of Free Exercise Clause
E. Where impact unintended, the determination is not clear-cut
1. Until 1960s used rational relationship standard
2. Any protection came from free speech analysis
3. During 1960s, courts standard was whether compelling state interest (strict
scrutiny)
a. Exemptions granted when no less restrictive means to accomplish government
purpose
b. Situation where exemptions are not triggered by strict scrutiny:
(1) Accommodation would undermine public policy
(2) Greater deference to regulate imposed by military and prison authorities
(3) Generally applicable criminal statutes upheld regardless of impact on
religious practices

Key Terms and Definitions

extrajudicial: Beyond the proper scope of court business. Not having legal effect, though said or done
by a judge.
freedom of religion: The First Amendment right to hold any religious beliefs and to practice these be-
liefs in any way that does not infringe on the public safety or infringe on important rights of others. Also,
the right of all citizens to be free of the government control in exercise of these beliefs.

Review Questions
1. The Court employs four factors in considering whether a religious belief exists that will give rise to a
First Amendment free exercise claim. What are these factors and what interpretation is given to each
by the Court?

2. The Court reached opposite conclusions about the need for exemptions in Braunfeld and Sherbet. What
analysis was used by the Court in each of these cases? How do the analyses differ?

3. A distinction is drawn by the Court between religious belief and religious practice. On what basis does
the Court maintain the government has a right/obligation to intervene in religious practice?

4. Sherbet indicated that there are situations in which the government must accommodate religious prac-
tices but such accommodation may cause tension with the Establishment Clause. Under what condi-
tions will an exemption be granted?

5. The court grants deference to military and corrections authorities in their decisions, which may im-
pinge upon individuals free exercise rights when they are in these authorities custody and care. What
standard of review is used in these cases? How does the standard differ for military and corrections
personnel?
 Freedom of Religion: The Free Exercise Clause 97

Internet Connections
1. To read any of the cases mentioned in this chapter, you can obtain the full text from http://www.
findlaw.com.

2. The American Civil Liberties Union, the foremost protector of civil rights and civil liberties, maintains
a Web site at http://www.aclu.org.

3. The First Amendment Lawyers Association, which provides for defense of First Amendment claims,
also has a Web site at http://www.fala.org.