Free Exercise Clause

Free Exercise Clause Definition

The Free Exercise Clause in the Constitution gives people the right to exercise whatever religion they wish. It can be interpreted to protect both the beliefs (thoughts, consciousness, etc.) AND the actions based on those beliefs (attending religious services, religious rituals, avoiding certain foods, etc.).

Free Exercise Clause Text

The Free Exercise Clause is found in the First Amendment of the Constitution:

Free Exercise Clause of the First Amendment

The roots of the Free Exercise Clause go back to before the American colonies were even settled.

Settlers Seeking Religious Freedom

Throughout the Medieval and Renaissance time periods, England had an official state religion. That meant that the government officially followed a particular religion and usually required that citizens follow the same beliefs or face punishment and persecution. Religion and politics were very closely intertwined, often leading to bloodshed as the kings and queens of England switched from Catholicism to Anglicanism to Protestantism and back again.

During the early 17th century, the crown was part of the Church of England (Anglicanism). Even though the Church of England had technically separated from the Catholic Church for political reasons, the beliefs had stayed pretty much the same. A group that opposed Catholicism (and Anglicanism, since they were so similar), the Puritans, left England in order to practice their own beliefs. They traveled to modern-day Plymouth, Massachusetts to build their own settlement in 1620.

Figure 1: A painting of the Mayflower reaching Plymouth Harbor in 1620. Source: William Hallsal, Wikimedia Commons

Bill of Rights

By the time the American colonies won the Revolutionary War in 1783 and held the Constitutional Convention in 1787, members of Congress were coming from various religious backgrounds and sects of Christianity. Some of them identified as Protestants, others as Catholics, and still others as non-religious or atheists. None of them wanted anything to do with the state-sanctioned religion in England.

However, the original draft did not include any references to individual rights, including religion. It wasn't until 1791, when Congress passed the Bill of Rights, that freedom of religion was established.

Establishment Clause and Free Exercise Clause

The original body of the Constitution doesn't actually say "freedom of religion." Instead, we find that right in two clauses in the First Amendment: the Establishment Clause and the Free Exercise Clause.

If you remember from the quoted text at the beginning of this article, the Constitution says, "Congress shall make no law respecting an establishment of religion." This phrase is called the Establishment Clause.

Difference Between Establishment and Free Exercise Clause

The Establishment Clause is commonly interpreted as a restraint on Congress's power, while the Free Exercise Clause is viewed as protecting the rights of citizens. The two clauses work together: Congress can't establish a state religion or pass any laws restricting the practice of religion, and people are free to exercise whatever religion they want. However, like most policies, it gets a lot more complicated in practice, as we'll see in the Supreme Court cases below!

Free Exercise Clause Examples

Our understanding of what qualifies as protected under the Free Exercise Clause has changed significantly over the years, particularly through Supreme Court interpretations of the Free Exercise Clause.

The cases focus on the central question of: what happens if a law violates someone's religious beliefs?

Warren Court

Supreme Court Justice Earl Warren saw several cases where the court sided with individuals' religious beliefs over the law, using the Compelling Interest Doctrine and Strict Scrutiny.

Sherbert v. Verner (1963)

In Sherbert v. Verner (1963), a woman named Adele Sherbert was fired when she refused to work on Saturdays as required by her employer. As a Seventh-Day Adventist, she practiced the Sabbath (the day of rest) on Saturdays. She was denied unemployment benefits because she refused to accept available work from other employers who also required work on Saturdays. She took the case to the Supreme Court, arguing that the unemployment benefits law violated her freedom of religion. Using the doctrine of Strict Scrutiny the Supreme Court ruled in her favor.

They determined that the state's argument around administrative convenience (that it's easier to deny benefits to all than try to figure out which were true religious practices) didn't pass the strict scrutiny analysis or the compelling interest test. Because unemployment benefits are offered to people who observe the Sabbath on Sunday, they said that the ruling didn't advantage one religious group, but instead improved equality for all religions.

Wisconsin v. Yoder (1972)

In Wisconsin v. Yoder (1972) the court ruled that the Amish could decline to send children over 14 years of age to school, saying that even laws that appear neutral and non-discriminatory towards religion (like requiring all children to go to school) should have exemptions if they "unduly burden" the practice of religion.

Employment Division v. Smith (1990)

In Employment Division v. Smith, two workers (Alfred Leo Smith and Galen Black) were fired when their employer discovered their use of Peyote, a hallucinatory cactus. They tried to get unemployment benefits from the state of Oregon, but were denied because they were fired due to "misconduct" for using an illegal drug. The two men were members of the Native American church, which uses peyote for religious ceremonies.

The Supreme Court sided against the two men. They said that the law passed the "neutral law of general applicability" test, meaning that the law banning the use of Peyote applied to all people and didn't target their religion specifically. If they gave a religious exemption for the use of Peyote, they feared that people would start using the Free Exercise Clause to justify breaking any law at any time.

Burwell v. Hobby Lobby (2014)

The Affordable Care Act (ACA), passed in 2010, required that employer-provided health insurance cover birth control for women. However, the owners of the chain of craft stores Hobby Lobby felt that the use of birth control violated their religious beliefs. The Supreme Court ruled in their favor, saying that the rights under the Free Exercise Clause and the Religious Freedom Restoration Act can apply to corporations.

Figure 4: Hobby Lobby gained nationwide attention in 2014 during the Burwell v. Hobby Lobby case. Source: ajay_suresh, Wikimedia Commons, CC-BY-2.0