Religious Liberty (Update 1)

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Religious liberty finds its protection in three provisions of the Constitution: the prohibition of religious tests for office in Article IV and the free exercise and establishment clauses of the first amendment. Because the first is self-executing and the last is involved mostly with issues of government aid, endorsement, or sponsorship of religious activities, the bulk of constitutional litigation over religious liberty has taken place under the free-exercise clause.

In recent history, there have been two general conceptions of the protections afforded by the free-exercise clause. The broad conception, which prevailed in the Supreme Court from 1963 (and arguably earlier) until 1990, holds that no law or government practice can be allowed to burden the exercise of religion unless it is the least restrictive means of achieving a government purpose of the highest order—a "compelling" governmental purpose. The narrow conception, adopted by a 5–4 vote in 1990, holds that the free-exercise clause prohibits only those laws that are specifically directed to religious practice.

The classic statement of the broad conception is found in sherbert v. verner (1963). In this case, the Court required the state of South Carolina to pay unemployment compensation benefits to a Seventh-Day Adventist notwithstanding her refusal to accept available jobs that would have required her to work on Saturday, her Sabbath. According to the Court, denial of benefits was tantamount to a fine for following the tenets of her religion. Since Sherbert, the Court has required states to pay unemployment compensation to others whose religious tenets conflicted with the requirements of available employment: to a Jehovah's Witness who would not work on armaments, in thomas v. indiana review board (1981); to a convert to the Seventh-Day Adventist Church, in Hobbie v. Unemployment Appeals Commission (1987); and to a Christian who would not work on Sunday, in frazee v. illinois department of employment security (1989). In Frazee, the Court unanimously held that the claimant was entitled to benefits, even though his belief was not mandated by the particular religious denomination of which he was a member. The decision thus confirmed that the right of religious liberty extends to all sincerely held religious convictions and not just to those of established denominations.

In years immediately following Sherbert, the Court extended free-exercise protection to other conflicts between religious conscience and civil law, including compulsory education above the eighth grade, in wisconsin v. yoder (1972), and jury duty, in In re Jennison (1963). After 1972, however, the Court turned aside every claim for a free-exercise exemption from a facially neutral law, outside the narrow context of unemployment compensation. Particularly noteworthy examples included goldman v. weinberger (1986), in which the Court upheld an Air Force uniform requirement that prevented an Orthodox Jew from wearing his skullcap (yarmulke) while on duty indoors; Tony Susan Alamo Foundation v. Secretary of Labor (1985), in which the Court upheld imposition of minimum-wage laws on a religious community in which the members worked for no pay; and lyng v. northwest indian cemetery protective association (1988), in which the court allowed construction of a logging road through National Forest lands sacred to certain northern Californian Indian tribes, even though the road would "virtually destroy the Indians' ability to practice their religion."

In each of these cases, the Court either held that the "compelling interest" test of Sherbert had been satisfied or that there were special circumstances making that test inappropriate to the particular case. Thus, during this period, the formal legal doctrine sounded highly protective of the rights of religious conscience, but in practice, the government almost always prevailed.

In 1990, the Court abandoned the compelling-interest test in employment division, department of human resources of oregon v. smith (1990), holding that "the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." The Smith case involved the sacramental use of peyote by members of the Native American Church. Although twenty-three states and the federal government specifically exempt Native American Church ceremonies from the drug laws, Oregon does not. The Supreme Court held that the free-exercise clause does not require an exemption.

After Smith, the only laws or governmental practices that can be challenged under the free-exercise clause are those in which this clause applies "in conjunction with other constitutional protections," such as cases involving free speech or childrearing, or those in which the law is "specifically directed at their religious practice." Thus, laws discriminating against religion as such would be subject to constitutional challenge. Such cases are unusual in the United States. The only example in recent decades was McDaniel v. Paty (1978), which involved a Tennessee law barring members of the clergy from service in the state legislature or a state constitutional convention. Because Tennessee had singled out a religious class for a special civil disability, its statute was struck down. Another case of discrimination against religion was widmar v. vincent (1981), in which a public university attempted to bar student religious groups from campus facilities. Widmar, however, was decided under the free-speech clause, not the free-exercise clause. Except for McDaniel and Widmar, almost every free-exercise case to come before the Supreme Court involved an ostensibly neutral law of general applicability, now resolved under Smith without inquiry into the strength of the governmental purpose.

The debate between the broad and narrow readings of the free-exercise clause goes back even before the proposal and ratification of the First Amendment from 1789 to 1791. john locke and thomas jefferson both apparently opposed exemptions; james madison favored them, at least in some circumstances. The same issue arose under several of the state constitutions, yielding conflicting results. The majority of the state constitutions adopted before the First Amendment contained language that suggests the broad reading. Georgia, for example, guaranteed that "[a]ll persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State" (Georgia Constitution of 1777, Article LVI). Although it is perilous to draw firm conclusions from abstract legal language, the "peace and safety" proviso would appear to be unnecessary unless the free-exercise guarantee were understood to entail some exceptions from otherwise valid laws. Moreover, in actual practice, conflicts between minority religious tenets and general law in colonial and preconstitutional America were not infrequently resolved by crafting exemptions. Examples included exemptions from oath requirements and from military conscription. The evidence, however, is thin because eighteenth-century America gave rise to few conflicts between religious and civil dictates.

If the narrow reading of the free-exercise clause announced in Smith remains in force, it will cause major changes in the constitutional rights both of religious individuals and of institutions. It is not uncommon for minority religious practices to conflict with "generally applicable" rules or regulations, and henceforth, any relief from such conflicts must come from the legislatures. Some religious groups—those more numerous or politically powerful—will be able to protect their interests in the political process; some will not. The Supreme Court commented in Smith, "It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself."

For many years, some Justices maintained that laws or government policies that exempted religious organizations or religiously motivated individuals from laws applied to others were themselves suspect under the establishment clause. For example, Justice john marshall harlan, in the conscientious objection cases during the vietnam war, concluded, in Welsh v. United States (1970), that it would be unconstitutional to recognize religious objections to military service without also recognizing nonreligious conscientious objection. More recently, the Court, in wallace v. jaffree (1985), struck down state efforts to accommodate the religious need of some school children for voluntary prayer through an officially declared moment of silence, and in thornton v. caldor, inc. (1985), the Court invalidated a statute that required private employers to honor the needs of Sabbath observers in determining days off.

In Corporation of Presiding Bishop v. Amos (1987), however, the Court unanimously upheld a federal statute exempting religious organizations from the prohibition on discrimination on the basis of religion in employment. The Court reasoned that it is permissible for the government to remove government-imposed obstacles to the free exercise of religion, even if, in some sense, this gives preferential treatment to religious organizations. And in texas monthly, inc. v. bullock (1989), when a fragmented Court struck down a Texas law exempting religious magazines from sales tax, the plurality was careful to note that benefits conferred exclusively on religious organizations are constitutionally permissible if they "would not impose substantial burdens on nonbeneficiaries" or if they "were designed to alleviate government intrusions that might significantly deter adherents of a particular faith from conduct protected by the Free Exercise Clause."

Thus, although individuals or religious bodies can no longer challenge generally applicable government action under the free-exercise clause, the courts have also become more likely to uphold legislation designed to accommodate religious exercise.

Michael W. Mc c onnell

(see also: Board of Education of Westside Community Schools v. Mergens; Equal Access; Lemon Test; Religion in Public Schools; Religious Fundamentalism; Separation of Church and State.)


Laycock, Douglas 1986 A Survey of Religious Liberty in the United States. Ohio State Law Journal 47:409–451.

Lupu, Ira C. 1989 Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion. Harvard Law Review 102:933–990.

Mc Connell, Michael W. 1990 The Origins and Historical Understanding of Free Exercise of Religion. Harvard Law Review 103:1409–1517.

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Religious Liberty (Update 1)

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