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Free Exercise of Religion

First Amendment

The Free Exercise Clause protects the right to hold religious beliefs and practice religion without government interference, though religious practice can be regulated when it conflicts with important government interests.

Overview

The Free Exercise Clause has two main components: absolute protection for religious beliefs and opinions, and limited protection for religious conduct. While you have an absolute right to believe whatever you want religiously, religious actions can be regulated by neutral laws of general applicability.

This breakdown uses the TICRI Constitutional Rights methodology to provide:

  • 📜 Constitutional Text
  • 💭 Plain English Explanation
  • ✅ What IS Protected
  • ❌ What is NOT Protected
  • ⚖️ Key Supreme Court Cases
  • 🔍 Real-World Applications

📜 Constitutional Text

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

— First Amendment, U.S. Constitution (1791)

💭 Plain English Explanation

The government cannot tell you what to believe religiously, force you to practice (or not practice) a religion, or punish you for your religious beliefs. You have absolute freedom of religious conscience.

However, when it comes to religious conduct (actions based on religious beliefs), the protection is more limited. The government can enforce neutral laws that apply to everyone, even if they burden religious practice. But laws that specifically target religious practice get strict scrutiny.

Key Distinction: Belief vs. Conduct

  • • Religious Belief: Absolutely protected (government can never regulate)
  • • Religious Conduct: Limited protection (can be regulated by neutral laws)

✅ What IS Protected

✓ Religious Beliefs (Absolute Protection)

You can believe anything you want religiously. Government cannot inquire into the truth or validity of religious beliefs. Protection extends to all sincere religious beliefs, even if unconventional or not part of organized religion.

✓ Religious Worship & Practice

Protected activities include attending religious services, prayer, religious education, wearing religious garb, religious rituals, and other forms of worship. Government needs compelling justification to interfere.

✓ Laws Targeting Religion (Strict Scrutiny)

If a law specifically targets religious practice or is not neutral and generally applicable, courts apply strict scrutiny. Government must show the law is necessary to achieve a compelling interest.

✓ Religious Exemptions (Sometimes)

Many federal and state laws provide religious exemptions (e.g., Religious Freedom Restoration Act). While the Constitution doesn't require exemptions from neutral laws, legislatures can create them.

✓ Prisoners' Religious Rights

Incarcerated individuals retain religious exercise rights, though they can be limited for compelling security reasons. Prisons must provide reasonable accommodation for religious practice.

✓ Religious Organizations' Autonomy

Churches and religious organizations have autonomy to make internal decisions about doctrine, governance, and selection of ministers without government interference (ministerial exception).

❌ What is NOT Protected

✗ Exemptions from Neutral Laws

The Constitution doesn't require religious exemptions from neutral laws of general applicability. If a law applies to everyone equally and doesn't target religion, it's constitutional even if it burdens religious practice (Employment Division v. Smith).

✗ Religious Conduct Harming Others

Religious beliefs cannot justify actions that harm others. Examples: religious human sacrifice, religiously motivated violence, child abuse justified on religious grounds, or refusing medical care for children.

✗ Using Religion to Violate Civil Rights Laws

Religious beliefs generally don't exempt businesses from civil rights laws prohibiting discrimination in public accommodations, though some specific exemptions exist (churches, religious schools).

✗ Tax Evasion Based on Religious Beliefs

Religious objections don't exempt individuals from paying taxes. Tax laws are neutral laws of general applicability that apply even to those with religious objections to taxation.

✗ Breaking Criminal Laws

Religious motivation doesn't exempt you from generally applicable criminal laws. Religious belief cannot justify theft, fraud, assault, or other crimes that apply to everyone.

⚖️ Key Supreme Court Cases

Employment Division v. Smith (1990)

Neutral Laws Don't Require Exemptions — Upheld denial of unemployment benefits to Native Americans fired for using peyote in religious ceremony. Neutral laws of general applicability don't violate Free Exercise Clause even if they burden religion.

Major shift in Free Exercise law. Prior cases suggested religious exemptions might be required; Smith said they're not constitutionally mandated (though legislatures can provide them). Led to Religious Freedom Restoration Act (RFRA).

Sherbert v. Verner (1963)

Pre-Smith Standard (No Longer Applied) — Required government to show compelling interest for laws burdening religion. State couldn't deny unemployment benefits to Seventh-day Adventist who refused Saturday work.

Established "Sherbert test" requiring compelling interest and least restrictive means. Smith largely overruled this approach for neutral laws, but Sherbert still applies to individualized assessments and laws targeting religion.

Church of the Lukumi Babalu Aye v. Hialeah (1993)

Laws Targeting Religion Are Unconstitutional — Struck down city ordinances banning animal sacrifice that were specifically designed to target Santeria religion. Laws must be neutral toward religion.

Even after Smith, laws that target religious practice or lack neutrality get strict scrutiny. City's ordinances had exceptions for killing animals in other contexts (hunting, kosher slaughter) but banned religious sacrifice.

Wisconsin v. Yoder (1972)

Amish Education Exemption — Amish families could not be required to send children to school past 8th grade when it violated sincere religious beliefs. Compulsory education law violated Free Exercise.

Recognized that compulsory high school attendance would destroy Amish community way of life. Case shows courts will sometimes require exemptions when laws severely burden religious practice of insular communities.

Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012)

Ministerial Exception — Religious organizations have autonomy to select ministers and religious leaders without government interference. Employment discrimination laws don't apply to selection of ministers.

First Amendment gives religious organizations special autonomy over internal affairs and religious leadership. Government cannot dictate who serves as minister, even to enforce generally applicable employment laws.

Burwell v. Hobby Lobby (2014)

RFRA Protects For-Profit Corporations — Closely held corporations have religious exercise rights under Religious Freedom Restoration Act. Hobby Lobby could not be required to provide contraception coverage.

Decided under RFRA statute, not directly under Constitution. Controversial decision extending religious exercise rights to for-profit companies and allowing them exemptions from healthcare law's contraception mandate.

Fulton v. City of Philadelphia (2021)

Religious Foster Care Agencies — Philadelphia violated Free Exercise by excluding Catholic agency from foster care program because agency wouldn't certify same-sex couples. Policy wasn't generally applicable.

City's policy had mechanism for exceptions, making it not generally applicable under Smith. When government has system of individualized exemptions, denying religious exemption violates Free Exercise.

🔍 Real-World Applications

Religious Freedom Restoration Act (RFRA)

After Smith, Congress passed RFRA requiring government to show compelling interest and use least restrictive means when substantially burdening religion. RFRA applies to federal government and about half the states have similar laws.

Important: RFRA provides stronger protection than the Constitution requires. Many religious liberty claims are brought under RFRA, not the Free Exercise Clause itself.

COVID-19 Restrictions

Recent cases found that treating religious gatherings less favorably than comparable secular activities (like businesses) violates Free Exercise. Religious gatherings can be regulated for public health, but must be treated at least as well as similar secular activities.

Military & Prison Contexts

Military service members and prisoners retain religious exercise rights, but they can be limited more than in civilian contexts. Courts give deference to military and prison officials' judgments about security and order, but some accommodation is required.

Religious Exemptions from Healthcare Laws

Under RFRA and ACA regulations, religious employers can receive exemptions from contraception mandate. Balance between religious liberty and ensuring healthcare access remains controversial and evolving.

Religious Dress & Appearance

Wearing religious garb (hijab, yarmulke, turban, cross) is protected. Employers must reasonably accommodate religious dress unless it creates undue hardship. Schools generally cannot ban religious clothing.

What Counts as "Religion"?

Courts define religion broadly to include belief systems that occupy a place parallel to traditional theistic religions. Must be sincere and not purely secular philosophy. New Age beliefs, ethical frameworks, and non-theistic religions can qualify.

Key Takeaways

  • ✓Religious beliefs are absolutely protected; government can never regulate what you believe
  • ✓Religious conduct has limited protection under neutral laws of general applicability (Smith rule)
  • ✓Laws targeting religion or lacking neutrality face strict scrutiny and are usually unconstitutional
  • ✓RFRA and state religious freedom laws provide stronger protection than Constitution requires
  • ✓Religious organizations have autonomy over internal affairs and selection of ministers
  • ✓Religious practice cannot justify harming others or violating generally applicable criminal laws