Church and State
Free Exercise Clause
- Free Exercise Clause: government may not restrict citizens' free exercise of their own religious beliefs
- Courts' interpretations of Free Exercise Clause have evolved over time
- Citizens have an unlimited right to religious belief
- But citizens' rights to religious practice are limited and must be balanced against broader social values
The Court’s interpretation of the free exercise clause of the First Amendment has undergone a somewhat circular evolution. That is, an interpretation established in the late nineteenth century gave way to more liberal concessions to religion-based practices during the mid-twentieth century. But more recently, the Court has returned to the older interpretation of the free exercise clause.
The Supreme Court did not address the free exercise clause of the First Amendment until the later nineteenth century, when government efforts to prevent Mormons from practicing polygamy led to a series of cases. In the most important of these, George Reynolds, a Mormon residing in the Utah territory, challenged his 1878 polygamy conviction under federal law by arguing that this marital practice was sanctioned by his religion. In rejecting this argument, the Supreme Court applied a distinction between religious belief and religious conduct that had been advanced by Thomas Jefferson decades earlier. While the right to religious belief was absolute, the government had a responsibility to curb religious conduct that conflicted with the broader interests of the community. Polygamy, the Court argued, constituted indefensible religious conduct. Monogamy was an integral part of the nation’s social fabric, and therefore, it was the Court’s responsibility, the Justices unanimously insisted, to restrict a marital practice that threatened the social and moral health of the community. Reynolds’s conviction must stand.
In simplest terms, the Court decided that the police powers of the state—the authority to protect the safety and welfare of the community—trumped religious rights. More specifically, the Court suggested that when the police powers and religious rights conflict, an objectionable practice was entitled to no greater protection when rooted in religious belief than it would be if rooted in any other motive. But in the decades after Reynolds, the Court altered this interpretation. By the middle of the twentieth century, while the Court continued to draw a distinction between belief and conduct, it set more rigorous standards for restricting religion-based activities. In a series of cases, the Court ruled that when a form of conduct was rooted in religious belief, it was entitled to a greater degree of protection; the government could not restrict that conduct without "compelling" evidence of the government’s need to interfere, and without first demonstrating that some other form of regulation might achieve the government’s purposes. For example, in Wisconsin v. Yoder (1972), the Court concluded that the refusal of Amish parents to send their children to school until the age of sixteen, as required by law, was protected by the First Amendment. While the state had a legitimate interest in requiring school attendance, the fact that Amish parents refused to send their children for religious reasons forced the government to offer more compelling proof of the harm caused by their refusal.
This evolution in the Court’s thinking between Reynolds and Yoder was further reflected in a series of cases involving religion-based objections to government practices. For example, the Court initially applied a Reynolds-type analysis to the resistance of individuals to military service or training for religious reasons. The Court argued that the government’s needs trumped all religious claims. But during the 1960s, the Court reversed itself and extended greater deference to individuals' refusal to serve in the military if based on religious belief.
But more recently, the Court has tended to revert to its older interpretation of the free exercise clause; in recent cases, it has used logic more consistent with Reynolds than Yoder. For example, in the 1980s, the Court rejected Amish claims that they should be exempted from social security tax requirements for religious reasons, and it supported the Internal Revenue Service when it withdrew Bob Jones University’s tax-exempt status for practicing racially discriminatory admissions policies, even though they were rooted in religious belief. In both cases, the Court argued that the religious bases of the parties' actions did not entitle them to additional consideration in the face of a clear violation of government policy.
The clearest statement of the Court's recent reversion to a Reynolds-type interpretation of the free exercise clause came in 1990 in Employment Division v. Smith. When two Native Americans, employed by a drug rehabilitation program, were fired for using peyote, a hallucinogenic drug, the Court rejected their argument that since the drug was part of a religious ritual, its use was protected under the First Amendment. Instead, the Court argued that "if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."8 In other words, if a law is generally defensible and its purposes are valid, an individual’s religious reasons for violating that law do not entitle him to any extraordinary protection from the consequences.
With this ruling, the Court appears to have come full circle. While still conceding an absolute right to religious belief, the Court appears far more ready to allow government restrictions on religious conduct than it did half a century ago.