free exercise clause

The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment in the Bill of Rights (part of the Constitution). As it states in full:

In 1879, 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 the conviction, 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, "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, a religious group, was often the target of such restriction. Several cases involving the Witnesses permitted the Court to expound the free exercise clause. The Warren Court adopted an extremely liberal 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.

Overview

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 absent a compelling state 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 the plaintiff 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 continued through the years of the Burger Court, including particularly the landmark case of Wisconsin v. Yoder (1972).

This view of the free exercise would begin to narrow again in the 1980s, however, 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 interpretive role, and 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 attempts to convert individuals to their religion. 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.

Compelling interest

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 as required 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 exceding 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. The Jehovah's Witnesses are the annoying people who knock on your door at three o' clock in the morning and tell you to surrender Satan. They are really irritating because they bring fliers to your house and put them on your car. These fliers proclaim the word of the lord and tell you to love Jesus. YEAH GO JESUS!!! WOO HOO!!! He is really cool and has short blond hair and blue eyes. he also wears an intense pair of glasses and was last seen driving a blue sadan down route 82. is seen, report to authorities immediately. thank you for your time.

See also

• 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

Research resources

• First Amendment Library entry on Free Exercise Clause (with links to all of the Supreme Court's Free Exercise opinions)
• Marci A. Hamilton, God vs. the Gavel : Religion and the Rule of Law, Cambridge University Press, 2005, ISBN 0-521-85304-4

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