free exercise clause

The Free Exercise Clause accompanies the Establishment Clause of the First Amendment to the United States Constitution. The ''Establishment Clause'' and the ''Free Exercise Clause'' together read:

Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits government interference with religious belief and, within limits, religious practice. To accept any creed or the practice of any form of worship cannot be compelled by laws, because, as stated by the Supreme Court in '' Braunfeld v. Brown'', the freedom to hold religious beliefs and opinions is absolute. Federal or state legislation cannot therefore make it a crime to hold any religious belief or opinion due to the Free Exercise Clause. Legislation by the United States or any constituent state of the United States which forces anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets is also barred by the Free Exercise Clause.

In 1878, 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 Reynolds' conviction for bigamy, 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: "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation."''Reynolds v. United States'', Of federal territorial laws, 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 were often the target of such restriction. Several cases involving the Witnesses gave the Court the opportunity to rule on the application of the Free Exercise Clause. Subsequently, the Warren Court adopted an expansive 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 of the Free Exercise Clause was '' Reynolds v. United States'' in 1878. 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 sustained the law and the government's prosecution. The Court read the Free Exercise Clause as protecting religious practices, but that did not protect Reynolds' practices which were crimes. The court went on to echo ''Reynolds '' in the 1890 case '' Davis v. Beason'': "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation." The ''Reynolds'' 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 except where a state could show a compelling 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 her 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 was used through the years of the Burger Court, including particularly in the landmark case of '' Wisconsin v. Yoder'' (1972).

This view of the Free Exercise Clause would begin to narrow again in the 1980s, 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. But the Court also stated that governmental discrimination in the field of religious belief and opinions is barred by the Free Exercise Clause, for the clause entails as core right the right to believe in and express any religious teaching in accordance with the personal desires. Any regulation by the government in the realm of religious belief and opinions is expressly forbidden by the First Amendment. Relying on its own First Amendment case law the Supreme Court concluded in ''Employment Division v. Smith'': "The government may not compel affirmation of religious belief, see '' Torcaso v. Watkins'', 367 U. S. 488 (1961), punish the expression of religious doctrines it believes to be false, '' United States v. Ballard'', 322 U. S. 78, 322 U. S. 86-88 (1944), impose special disabilities on the basis of religious views or religious status, see '' McDaniel v. Paty'', 435 U. S. 618 (1978); '' Fowler v. Rhode Island'', 345 U. S. 67, 345 U. S. 69 (1953); cf. ''Larson v. Valente'', 456 U. S. 228, 456 U. S. 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see '' Presbyterian Church v. Hull Church'', 393 U. S. 440, 393 U. S. 445-452 (1969); ''Kedroff v. St. Nicholas Cathedral'', 344 U. S. 94, 344 U. S. 95-119 (1952); '' Serbian Eastern Orthodox Diocese v. Milivojevich'', 426 U. S. 696, 426 U. S. 708-725 (1976)." The Court's abandonment of the strict scrutiny test 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 applied to the States, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the ''Smith'' test in place. In '' Church of Lukumi Babalu Aye v. City of Hialeah'' (1993), the Supreme Court stated that inquiries about whether laws discriminate based on religion don't end with the text of the laws at issue. Facial neutrality of laws (i.e. laws which are neutral in their language but may be discriminatory in enforcement or effect) is not determinative in these inquiries, because both the Free Exercise Clause and the Establishment Clause extend beyond facial discrimination. The Supreme Court explained that " ficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality", and " e Free Exercise Clause protects against governmental hostility which is masked as well as overt