Free Exercise of Religion

The First Amendment protects the "free exercise" of religious beliefs from governmental intrusion. This refers to the right of an individual to wear religious garb, for example, or the right of a congregation to worship in the way it sees fit.

This right belongs to every American, but it is particularly relied on by religious minorities. An example helps to illustrate this point. Suppose a state department of motor vehicles permits employees to wear jewelry, but it prohibits employees from wearing hats or anything else on their heads. In this situation, a Muslim woman who wears a headscarf would need to request an exemption from the "no hat or head covering" rule in order to express her faith, whereas a Christian woman who wears a cross on a necklace would not. As this example suggests, while accommodations for those who practice majority faiths are frequently built into the rules, members of minority faiths are more apt to come into conflict with government rules and need special exemptions.

Government in all three branches and at both the federal and state level have struggled with one other and among themselves about the way in which free exercise provisions of federal and state constitutions should be interpreted, and the kinds of accommodation that should be granted for religious practice even where there is no constitutional duty of accommodation. One of the most prominent struggles in this area has been the one between the Supreme Court and the United States Congress. The following commentary summarizes the progress of this struggle, including some of the court decisions and federal and state legislation that this struggle has produced.

The Supreme Court's interpretation of the Free Exercise Clause has varied substantially over the last one hundred and thirty years. In a case decided by the U.S. Supreme Court in 1878, the Court held that a Mormon's religious beliefs did not entitle him to an exemption from a criminal prohibition on polygamous marriage. The Court stated:

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

While the Court has never revisited its decisions on polygamy laws, it subsequently adopted a legal test that provides a higher level of protection for the right to practice one's faith free from governmental interference. This test, known as the "compelling interest test," provides that the government may not impose a substantial burden on a person's religious exercise unless the government demonstrates that that burden furthers a compelling state interest and is the least restrictive means of furthering that interest. This indicates that only interests of the highest order, such as public health or safety, provide an adequate justification for placing a substantial burden on religious practice.

Using this test in 1972, the Court found that Amish parents and their children must be exempted from a state law insofar as it required them to send their children to school after age 14. In this case, the Court said the mere fact that the law applied uniformly to all citizens was not sufficient. It stated:

Nor can this case be disposed of on the grounds that Wisconsin's requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise.

The Court accepted that the state's interest in educating children was a "paramount" state interest, but that was not enough in the Court's eyes. It required the state to prove that it was necessary to apply this law to the Amish parents and children who objected. In its opinion, the Court considered "the State's broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way." The Court responded:

Where fundamental claims of religious freedom are at stake . . . we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.

Ultimately, the Court found that exempting Amish children from the last two years of formal schooling would not pose a serious threat to the stated governmental interest. Thus, it ruled that the First Amendment required the state to exempt the Amish from this particular requirement.

This compelling interest test was generally considered to be the relevant one to apply to free exercise claims until 1990. In 1990, however, in a case called Employment Division v. Smith, the Supreme Court announced that it generally would no longer use this test in its evaluation of free exercise claims.

The Smith case involved a law prohibiting the possession of peyote, a hallucinogenic drug used by certain Native American groups during religious ceremonies. Because the law did not target the religious use of peyote, it could be described as a neutral law of general applicability with regard to religion. But the law clearly had the effect of prohibiting Native Americans from engaging in an important religious ritual.

In Smith, the Court announced that, instead of applying the compelling interest test, it would simply ask whether the governmental action was neutral toward religion (whether it applied to all similar activities rather than targeting religion for poor treatment) and whether the action was generally applicable (whether it applied to all relevant activities without exception). In short, as long as a law did not single out religious activities for special restrictions or contain other exceptions, those who claimed that the law substantially burdened their religious activities had no federal constitutional recourse.

Religious Freedom Restoration Act

Finding this decline in federal constitutional protection for the free exercise of religion to be unacceptable, the United States Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to provide a higher level of protection for religious exercise against government interference. See 42 U.S.C. Section 2000bb-1 et seq. (2006). RFRA essentially restored the application of the compelling interest test as a matter of federal statutory law to any substantial and unnecessary burden that the federal or state government would place on religious exercise, even when the government did not single out religion for poor treatment.

Under RFRA, people who that governmental action substantially burdens their religious practice may sue the relevant governmental body. If a court finds a substantial burden on sincere religious exercise, then the government must demonstrate that its actions serve a compelling interest and that there is no less restrictive ways to accomplish its goals. If the government fails to do so, it will be found to have violated RFRA.

While the Supreme Court decided in 1997 in the City of Boerne v. Flores case that RFRA was unconstitutional in its application to state or local governments, RFRA continues to protect the exercise of religion against federal interference.

In 2006, the Supreme Court handed down a decision that ensures that RFRA will continue to provide an important check on the federal government's power. The Court affirmed a lower court's preliminary finding that RFRA protected a small religious group's consumption of tea with a hallucinogen [PDF] in it at their worship services. In this case, the government asserted that it had a compelling governmental interest in refusing to provide any exceptions from another law that banned the use of certain controlled substances, including this hallucinogenic substance. In other words, the government claimed that "there was no need to assess the particulars of the [the religious group's] use or weigh the impact of an exemption for that specific use, because the Controlled Substances Act serves a compelling purpose and simply admits of no exceptions."

The Supreme Court rejected that argument. Instead, it held that "RFRA, and the strict scrutiny test it adopted, contemplate an inquiry more focused than the Government's categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' - the particular claimant whose sincere exercise of religion is being substantially burdened." The Court found that the government had not demonstrated such an interest. This interpretation of RFRA ensures that it will continue to provide meaningful protection when religious practices have been substantially and unnecessarily burdened by the government.

State Religious Freedom Restoration Acts and State Constitutional Provisions

Even before the Court's decision in Boerne, some states had begun to adopt their own laws to provide heightened protection for free exercise rights. These laws are known as "state RFRAs" [PDF]. In the wake of the Boerne decision, more states passed these kinds of laws.

According to a 2004 article by University of Texas Law Professor Doug Laycock, twelve state legislatures have passed state RFRAs: Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas. See 118 Harv. L. Rev. 155. Alabama included a similar provision in its state constitution.

Moreover, some state constitutions are read to require the government to meet the compelling interest test when it burdens religious practices. According to Professor Laycock's research, when these states are added to the number of states that have adopted state RFRAs, "more than half the states appear to have adopted some version of the [compelling interest] test."

Religious Land Use and Institutionalized Persons Act

After the City of Flores v. Boerne case, in which the Supreme Court held that RFRA could not be applied to state and local governments, the U.S. Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). RLUIPA provides increased protection for religious practices from state and local zoning and land-marking laws. It also provides special protection for prisoners and others in governmental custody who wish to exercise their faith.

RLUIPA relies on three Congressional powers. First, it relies on Congress' power to attach conditions to the funds it provides to state and local governments. Because Congress usually provides federal funds for state prisons and other institutions, this allows Congress to reach religious exercise within these contexts. Second, RLUIPA relies on Congress' power to regulate activities affecting interstate commerce. The legislative history of RLUIPA notes that zoning and land-marking matters frequently involve building materials that move through interstate commerce and that the denial of certain land use permits may affect interstate commerce. The third power that Congress relied on was its power to protect religious freedom from state interference under Section 5 of the Fourteenth Amendment. Congress relied on this particular power in a much more limited way in RLUIPA than it did when it passed RFRA.

In these contexts, RLUIPA requires the government to demonstrate that any substantial burden it places on religious practice must be supported by a compelling interest and that there is no less restrictive way of advancing that interest. The Act also prohibits the government from implementing a land use regulation that treats religious assemblies or institutions less favorably than non-religious assemblies or institutions. For example, under RLUIPA, a city may not allow non-religious neighborhood club meetings and deny religious people the right to hold similar-sized neighborhood Bible studies. RLUIPA also bars land use regulations that discriminate against religion or discriminate in favor of some religions over others. Finally, RLUIPA specifically prohibits municipalities from totally excluding religious assemblies from a jurisdiction.

In 2005, the Supreme Court found that the prisoner provisions of RLUIPA did not violate the Establishment Clause of the First Amendment.

Conclusion

The U.S. Supreme Court has thus far rejected invitations to revisit its 1990 ruling in Employment Division v. Smith. Nevertheless, the right to freely exercise one's faith currently receives a high level of protection in some situations due to a patchwork of federal and state statutes as well as through the interpretation of certain state constitutional provisions.

© Center for Religion and Public Affairs 2006