If you pictured people jogging or lifting weights when you heard the phrase "Free Exercise Clause," you're a bit off!
You can think of the full phrase of the Free Exercise Clause as the "free exercise of religion." It has less to do with going to the gym than it does with going to temple, synagogue, mosque, church, etc. The Free Exercise Clause protects religious freedoms by saying that the government can't interfere with citizens' religious practices.
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:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
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.
Strict Scrutiny is a type of constitutional analysis employed by the Supreme Court. Under Strict Scrutiny, the Supreme Court must assess not just whether the law makes sense, but whether it is necessary, crucial, and urgent. It must also use the least restrictive means to obtain the government's objective.
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.
The Compelling Interest Test assesses whether a law is valid or not. Under this doctrine, the Supreme Court must review the law to see if the government has a compelling interest in regulating that particular item. If the answer is no, then the law can't be used to burden religious beliefs.
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.
In the Native American church, the use of Peyote became more widespread in the 1800s to help native people deal with the trauma of discrimination and oppression. The healing properties of Peyote helped them cope as they were pushed out of their ancestral lands and forced to assimilate into the culture of the United States.
Using Peyote is not like getting high on recreational drugs: it is viewed as a sacrament and spiritual experience. As a result of the Employment Division v. Smith case, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to require strict standards for any laws that might interfere with religious beliefs.
Figure 3: Peyote comes from the Peyote Cactus, which grows in the Southwestern United States. Today, growing and using Peyote is protected only for Native Americans, who use it for religious ceremonies. Source: Peter A. Mansfeld, Wikimedia Commons
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
Critics of the Burwell v. Hobby Lobby decision feared that it could allow businesses to discriminate against gay couples if they felt it violated their religious beliefs.
Other issues that have been the center of the "religious freedom vs. following the law debate" include whether religious entities should be taxed, whether students should be required to salute the flag and say the pledge of allegiance, and whether the state could require businesses to close on Sundays even if they observed the Sabbath on Saturday.
Free Exercise Clause - Key takeaways
- The Free Exercise Clause was added to the Constitution in 1791 as the First Amendment in the Bill of Rights.
- The Free Exercise Clause says that the federal government can't make laws that interfere with individuals' religious practices.
- Along with the Establishment Clause, the Free Exercise Clause is cited as the Constitutional right to freedom of religion.
- The Free Exercise Clause has been the subject of many contentious Supreme Court debates, starting with Reynolds v. United States in 1879. Some of these cases have provided extensive exemptions to people due to their religious beliefs, while others have favored the government's authority to create and enforce laws regardless of religious beliefs.
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