Writer: Nathan Sever
Editor: Quincy Bianchi
Spring 2024
Most Americans who have taken an elementary civics class could tell you that the United States Constitution contains protections for religious practice against government intervention. Specifically, the First Amendment free exercise clause stipulates that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” (“Constitution” 2023). What many do not know, however, is that such substantial protection of religious exercise is, in many ways, unusual in the rest of the world. At the very least, few countries worldwide protect religious freedom to a similar or greater degree. Governments may not devise legislation to burden religious exercise or discriminate based on religion, and in some circumstances, a legitimate religious conflict can excuse believers from otherwise generally applicable laws and mandates.
Still, free religious exercise in the United States is not absolute. Historically, restrictions on religious exercise were upheld with much greater regularity. One of the court’s first significant interpretations came in 1879 in Reynolds v. United States. Here, George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints (LDS), was appealing his conviction under the Morrill Anti-Bigamy Act, which banned polygamy (plural marriage) in United States territories. Reynolds used his faith as his defense (LDS endorsed the practice of polygamy at the time) and argued the law was unconstitutional since it required that he violate his religious convictions. The Supreme Court, however, was unconvinced and ruled unanimously that the free exercise clause does not protect the right to practice polygamy (“Reynolds v. United States” B). Justice Morrison Waite, in the majority opinion, famously likened the practice of polygamy to human sacrifice and self-immolation to substantiate the decision as a matter of maintaining decent social order (“Reynolds v. United States” A).
Importantly, the Court distinguished Reynold’s religious beliefs and religious conduct by affirming his belief in polygamy, yet penalizing the actual practice (“Reynolds v. United States” A). This distinction between what one believes and what one does lies at the heart of the free exercise clause. Discrimination or penalization by the government on the basis of religious beliefs is barred uniformly. However, individuals with sincere religious convictions typically exercise their beliefs through different rituals and practices. This makes interpretation of the free exercise clause particularly complicated (“Free Exercise”) and has raised questions about the extent to which the government must accommodate believers when religious conduct conflicts with the law and standard social convention. This review aims to examine notable court interpretations of the free exercise clause and develop a working framework for understanding the fundamentals of individuals’ free exercise rights today.
In the decades following the Reynolds decision, the court began to afford considerable protection to religious conduct in addition to the absolute protection of religious belief, which has led to the present standards used by courts in evaluating free exercise cases. In such cases, courts apply the standard of strict scrutiny, which requires any law that infringes on religious exercise to be in pursuance of a compelling government interest and be narrowly tailored such that it is the least restrictive means of pursuing the compelling interest (Strickland 2024). For most of the 1900s, the compelling interest test largely favored religious groups and peoples against government interests. In Cantwell v. Connecticut (1940), the Supreme Court unanimously sided with a family of Jehovah’s Witnesses who were arrested for proselytizing (evangelizing) without a license in residential areas (“Cantwell v. Connecticut”), and in Wisconsin v. Yoder (1971), the Court ruled in favor of an Amish family seeking to remove their children from compulsory high school education for religious reasons (“Wisconsin v. Yoder”).
Taking these (and other) decisions into account, it is challenging to square them with the Supreme Court’s decision in Employment Division v. Smith (1991). In Smith, the Court ruled against two Native Americans who had been fired from their jobs for using peyote (a hallucinogen) as part of a religious ritual. The decision was surprising at the time and is still scrutinized by those within our current legal world (“Employment Division v. Smith”). Justice Antonin Scalia’s majority opinion clarified that Oregon’s prohibition of peyote use was generally applicable and did not intend to single out religion or religious people, so the compelling interest test does not apply. In other words, laws that are enacted for a broader government interest (not to target religious practice) and coincidentally restrain religious practice do not need to satisfy the compelling interest test. Instead, these laws are subject to a standard of review more deferential to the government: the rational basis test. Here, the government only needs to prove a law is rationally related to a legitimate government objective to survive review by the courts. Oregon’s prohibition of peyote is, of course, related to a legitimate government interest (preventing drug use), so it was upheld by the Supreme Court (Liu 2007).
Following the logic laid out in Smith, one might come to question the validity of the Yoder and Cantwell decisions since government requirements for high school education and state laws against proselytization appear to be broadly neutral towards religion. Justice Scalia, however, also addressed this concern in his opinion. He reasoned that in Yoder, the right to free exercise had been associated with the right of parents to determine/manage the upbringing of their children (established in Pierce v. Society of Sisters, 1925) and in Cantwell, free exercise was associated with the basic Constitutional right to free speech. These linkages between the Free Exercise Clause and another Constitutional right produce what Scalia termed “Hybrid Rights.” Without these combinations of rights, Scalia wrote, both Cantwell and Yoder would have been decided differently (Hudson and Harvey, 2018). Nevertheless, the concept of “hybrid rights” is scarcely used as a defense for religious exercise claims. Rather, as BYU Law Professor Frederick Mark Gedicks writes, hybrid rights simply signal the relative “weight” of a Constitutional claim to the courts (Gedicks 2008).
While these cases are important to understanding the evolution of free exercise law in the United States, an examination of Reynolds, Yoder, Cantwell, and Smith provides unsatisfying answers to the question, “When does religious conduct go too far?” This is partially because such an answer is not clearly defined. The limits of religious exercise are case-dependent and have been continuously changing. Standards are constantly being rewritten, modified, and at times thrown out altogether. Moreover, recent decisions from the Supreme Court suggest an impending era of expansion for the rights of religious practitioners. In 2022, the Supreme Court strengthened the free exercise rights of public officials in informal settings (Kennedy v. Bremerton School District). In 2023, they ruled that businesses can refuse certain requests on the basis of religious conscience (303 Creative v. Elenis). Nevertheless, the distinction between religious beliefs and conduct, the compelling interest test, and the interconnectedness of free exercise and other Constitutional rights remain bedrock principles of United States free exercise law.
References
“Cantwell v. Connecticut.” Oyez, www.oyez.org/cases/1940-1955/310us296. Accessed 5 May
2024.
“Constitution of the United States.” U.S. Senate: Constitution of the United States, 7 Aug.
“Employment Division v. Smith.” Oyez, www.oyez.org/cases/1989/88-1213. Accessed 5 May
2024.
“Free Exercise of Religion.” Justia Law, law.justia.com/constitution/us/amendment-01/03-
free-exercise-of-religion.html. Accessed 5 May 2024
Gedicks, Frederick Mark. “Three Questions about Hybrid Rights and Religious Groups.” The
Yale Law Journal, 19 Mar. 2008, www.yalelawjournal.org/forum/three-questions-about-hybrid-rights-and-religious-groups.
Hudson, David L, and Emily H Harvey. “Dissecting the Hybrid Rights Exception: Should It Be
Expanded or Rejected?” SSRN, 19 July 2018, papers.ssrn.com/sol3/papers.cfm?abstract_id=3210963.
Liu, Joseph. “The Smith Decision.” Pew Research Center, 24 Oct. 2007,
“Reynolds v. United States, 98 U.S. 145 (1878).” (A) Justia Law,
supreme.justia.com/cases/federal/us/98/145/. Accessed 5 May 2024.
“Reynolds v. United States.” (B) Ballotpedia, ballotpedia.org/Reynolds_v._United_States.
Strickland, Ruth Ann. “Narrowly Tailored Laws.” The Free Speech Center, 19 Feb. 2024, firstamendment.mtsu.edu/article/narrowly-tailored-laws/.
“Wisconsin v. Yoder.” Oyez, www.oyez.org/cases/1971/70-110. Accessed 5 May 2024.
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