First Amendment — Free Exercise Clause

Amdt1.4.1 Overview of Free Exercise Clause

The First Amendment’s Free Exercise Clause forbids Congress from “prohibiting the free exercise” of religion.¹ The general framework for the Supreme Court’s Free Exercise jurisprudence was largely established in the 1940 case Cantwell v. Connecticut, which also gave the Supreme Court the opportunity to apply the Free Exercise Clause to the states.² In Cantwell, the Court explained that the Religion Clauses “embrace[ ] two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”³ Starting with the first freedom, as explored in more detail in a subsequent essay,⁴ the Free Exercise Clause “categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.”⁵

The Court also clarified in Cantwell that religious actions, as opposed to beliefs, are “subject to regulation for the protection of society.”⁶ However, the Court cautioned that the government must exercise its regulatory power cautiously so it does not “unduly . . . infringe” religious freedom.⁷ Therefore, a law that burdens but does not directly regulate religious belief is not categorically prohibited but will likely still be subject to constitutional scrutiny. Over the years, the Court has fleshed out standards to determine when regulations of religious conduct unduly infringe constitutionally protected free exercise. These standards have differed over time and circumstances, as discussed in the following essays.

The prevailing standard governing most laws was established in 1990’s Employment Division v. Smith, in which the Supreme Court ruled 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).’”⁸ This statement echoed early, pre-Cantwell cases involving free exercise challenges to criminal laws prohibiting polygamy in U.S. territories.⁹ In these cases, the Supreme Court rejected the challenges brought by those who practiced religiously motivated polygamy, holding that the government could permissibly prohibit polygamy and the defendants’ religious beliefs could not excuse them from punishment.¹⁰ Similarly, early cases rejected the idea that conscientious objectors had a constitutional right “to avoid bearing arms,” in light of Congress’s broad war powers authority.¹¹ Although Smith hearkened back to these earlier cases,¹² the opinion’s lenient standard of constitutional scrutiny departed from some cases in the mid-twentieth century that had suggested the government needed a compelling interest to apply a facially neutral law in a way that burdened a person’s religious activity.¹³

Even after Smith, though, a law that imposes special burdens on religious activities may not be considered neutral or generally applicable and will likely trigger heightened scrutiny.¹⁴ Accordingly, one critical factor in evaluating Free Exercise Clause challenges has been whether a law discriminates against religion in its text, purpose, or effect.¹⁵ As one opinion cautioned, “[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.”¹⁶

Although it has not always been an explicit part of its analysis, the Supreme Court has suggested in some decisions that a government policy does not violate the Free Exercise Clause unless it has some coercive effect towards a person’s religious exercise.¹⁷ While recognizing that “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,” may violate the First Amendment, the Court has further clarified that “incidental effects of government programs” with “no tendency to coerce individuals into acting contrary to their religious beliefs” do not trigger heightened constitutional scrutiny.¹⁸ For example, the Court rejected a free exercise challenge to a program that allowed public schools to release students during the school day to take religious classes at private religious institutions.¹⁹ The program did not involve any free exercise issue, in the Court’s view, because it did not involve coercion: no one was “forced to go to the religious classroom and no religious exercise or instruction [was] brought to the classrooms of the public schools.”²⁰ Accordingly, the Court has sometimes held that where a government action does not require regulated entities to act in a way that their religious beliefs prohibit, there is no Free Exercise Clause violation.²¹ Essentially, a law that does not regulate belief or burden religious exercise will not violate the Free Exercise Clause.²²

Amdt1.4.2 Laws Regulating Religious Belief

The Supreme Court has long held that the Free Exercise Clause prohibits “any governmental regulation of religious beliefs as such,” as opposed to “overt acts prompted by religious beliefs or principles.”¹ The Constitution categorically prohibits the government from compelling “the acceptance of any creed or the practice of any form of worship.”² Accordingly, a law that expressly requires declaring a specific religious belief will violate the Free Exercise Clause.³ In Torcaso v. Watkins, decided in 1961, the Supreme Court held that a state constitutional provision requiring public officeholders to declare a “belief in the existence of God” violated the Free Exercise Clause.⁴ Although the Court noted the “historical precedent” for such “religious test oaths” in Europe and in the Colonies,⁵ it held that the adoption of the U.S. Constitution and the First Amendment, combined with countervailing evidence of opposition to the oaths during colonial times, rendered religious test oaths “historically and constitutionally discredited.”⁶ By “limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept,” the state law violated constitutional free exercise protections.⁷

The First Amendment’s “absolute prohibition of infringements on the ‘freedom to believe’” does not apply to laws that are “directed primarily at status, acts, and conduct.”⁸ However, even when courts are considering conduct-focused laws, the constitutional prohibition on regulation of belief can sometimes limit the bounds of judicial inquiry.⁹ For example, in United States v. Ballard, the Supreme Court held that it would violate the Free Exercise Clause for a jury to determine whether criminal defendants’ religious beliefs were true or false.¹⁰ The defendants were charged with mail fraud after promoting a religious movement that claimed supernatural healing powers.¹¹ The district court had instructed the jury only to consider whether the defendants “honestly and in good faith” held their beliefs.¹² The court of appeals, in contrast, held that the defendants could only be convicted of fraud if the government proved that the defendants’ beliefs, as they stated them, were false.¹³ The Supreme Court did not decide whether the jury could consider the sincerity of the defendants’ beliefs, as the district court thought, but it definitively rejected the court of appeals’ view that the jury should decide the truth of those beliefs, citing the absolute prohibition on government regulation of belief.¹⁴ The Court stated that “[h]eresy trials are foreign to our Constitution.”¹⁵ The Court later emphasized that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”¹⁶ Neither do religious beliefs have to comport with the “dogma of an established religious sect.”¹⁷

The Court later reached the question it did not squarely resolve in Ballard, clarifying that although courts may not probe the truth of an individual’s religious beliefs, they may assess the sincerity or good faith with which the individual holds those beliefs in evaluating the merits of a free exercise claim or defense.¹⁸ A belief must be religious rather than secular to enjoy First Amendment protection,¹⁹ and the Supreme Court has suggested there may be some claims “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause.”²⁰ Accordingly, courts may also scrutinize a claimed belief to ensure that it is religious in nature rather than secular, and in the course of that inquiry, may evaluate evidence showing the centrality of a belief to a certain faith.²¹ Citing early cases upholding criminal laws prohibiting polygamy,²² the Court has rejected the claim that “any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment.”²³ While “[t]he determination of what is a ‘religious’ belief or practice” may be “a difficult and delicate task,” it may not depend on the government’s “perception of the particular belief or practice.”²⁴

Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s

The Supreme Court’s early cases interpreting the Free Exercise Clause did not articulate one clear standard for evaluating claims under that clause, although some consistent principles did emerge, particularly in cases dealing with similar fact patterns.

Starting with Cantwell v. Connecticut in 1940 and continuing through the following two decades, the Supreme Court considered a series of cases involving state and local regulations restricting solicitation or other activity in public spaces, as applied to people engaged in religious speech.¹ Many of these cases invoked both the First Amendment’s Free Exercise and Free Speech Clauses.² Some cases striking down restrictions on religious speech seemed to draw from free speech jurisprudence outlining protections for speech in public forums.³ Similarly, the Court held unconstitutional under the Free Exercise Clause regulations that it believed were impermissibly broad and discretionary prior restraints on religious speech.⁴

In Cantwell, for example, the Court held that a state violated the Free Exercise Clause in convicting a man and his two sons under a state law that prohibited unapproved solicitations.⁵ The man had played a religious record in the street, and his usual practice was to request that listeners would buy further religious materials.⁶ The Court acknowledged that the state may generally regulate solicitation if the regulation “does not involve any religious test and does not unreasonably obstruct or delay the collection of funds.”⁷ However, the regulation challenged in Cantwell allowed a licensing official to decide whether any given solicitation was “religious” and should be approved.⁸ In the Court’s view, this broad discretion placed “a forbidden burden upon the exercise of liberty protected by the Constitution.”⁹

Concerns about impermissible prior restraints also drove the decision in Murdock v. Pennsylvania, in which the Court held that a city could not require religious groups to pay for a license in order to distribute religious literature.¹⁰ The Court emphasized first that the “hand distribution of religious tracts is an age-old form of missionary evangelism” that enjoyed the same “protection as the more orthodox and conventional exercises of religion” such as “preaching from the pulpits.”¹¹ Further, the fact that the religious groups sought contributions did not “transform [their] evangelism into a commercial enterprise” that would merit lessened constitutional protection.¹² The Court distinguished taxes on a preacher’s income or property (which it suggested might be allowed) from the challenged city ordinance, because the city’s licensing tax “restrain[ed] in advance those constitutional liberties of press and religion and inevitably tend[ed] to suppress their exercise.”¹³ Before its decision in Murdock, the Court had previously approved a similar license fee, stating that religious groups could be subject to reasonable fees when they “use the ordinary commercial methods of sales.”¹⁴ However, the Court vacated that decision approving the license fee when it issued Jones, concluding that the groups “were engaged in a . . . religious venture” rather than a commercial one.¹⁵ In subsequent cases, the Court made clear that Murdock bars only flat license taxes that operate as preconditions on exercising constitutional rights.¹⁶

By contrast, in Poulos v. New Hampshire, the Supreme Court held that a city could require religious groups to comply with a permitting scheme to conduct meetings in a public park.¹⁷ The Supreme Court “assume[d]” that the permitting scheme entitled religious groups to hold religious services in the park “at reasonable hours and times.”¹⁸ Based on that assumption, the Court upheld the permitting scheme as a reasonable “regulation” rather than “suppression” of speech.¹⁹ It also interpreted the law as giving licensing officials “no discretion as to granting permits, no power to discriminate, no control over speech.”²⁰ Accordingly, the scheme was “not the kind of prepublication license” held unlawful in cases like Murdock and others, but instead “a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved.”²¹

Other cases from this time period similarly rejected Free Exercise Clause challenges to laws that the Court characterized as reasonable regulations.²² One example is Prince v. Massachusetts, in which a woman was convicted of violating a state child labor law for distributing religious materials and soliciting donations with her minor niece.²³ The defendant argued that this application of the law violated her and her niece’s freedom of religion.²⁴ The Supreme Court acknowledged that the Free Exercise Clause protected “[t]he rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief.”²⁵ Nonetheless, the Court also recognized that the state has broad powers to regulate child welfare, and additionally ruled that the state has greater authority “over children’s activities . . . than over like actions of adults.”²⁶ The Court declined to apply heightened scrutiny as urged by the defendant, instead accepting the state’s conclusion that “an absolute prohibition” on child labor in certain places was “necessary to accomplish its legitimate objectives.”²⁷

These early cases dealing with burdens placed on religion by facially neutral laws outlined general principles; their main importance was in establishing that general regulations in the public interest were constitutional so long as they did not run afoul of doctrines prohibiting prior restraints or protecting speech in public forums. However, some early cases hinted at a potentially more rigorous standard of review that would emerge in the 1960s. Murdock, for example, ruled that the flat license tax was “not narrowly drawn to safeguard the people of the community in their homes against the evils of solicitations.”²⁸ Another case expressed concern about a licensing scheme that lacked “narrowly drawn, reasonable and definite standards for the officials to follow.”²⁹ Other cases emphasized that laws permissibly regulated religious activity in part because they did not reveal any purpose to discriminate against certain religions or to bar religious exercise.³⁰ The Court would pick up each of these threads in future cases.

Amdt1.4.3.2 Laws Neutral to Religious Practice from the 1960s through the 1980s

In the 1960s through the 1980s, the Supreme Court began to apply a heightened level of scrutiny in many Free Exercise Clause challenges—although the precise contours of this heightened scrutiny were inconsistent, both in the particulars of the test and in its application.

In 1961’s Braunfeld v. Brown, business owners who observed the Saturday Sabbath challenged a law requiring their businesses to close on Sundays.¹ Although the law was facially neutral as to religion, the merchants argued the law burdened their religious exercise by either compelling them “to give up their Sabbath observance” or putting them “at a serious economic disadvantage” if they closed for the entire weekend.² A plurality of the Court cautioned that courts should not unduly constrain “legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself.”³ The plurality held that “if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.”⁴ In the Court’s view, the Sunday closing law had a valid secular purpose and effect in creating a common day of rest,⁵ and there were no effective alternative measures that would achieve this purpose without incidentally burdening religious freedom.⁶ Although the opinion seemed to state a somewhat heightened standard of review, the Court upheld the law after concluding that proposed alternative schemes that would accommodate the business owners “might well” be less effective at achieving the state’s goals.⁷ Subsequent cases similarly seemed to suggest that laws placing only “incidental burdens” on religious beliefs might be more readily upheld.⁸

The Court articulated and applied a heightened standard of review to evaluate a free exercise claim in Sherbert v. Verner, issued just two years after Braunfeld.⁹ A state had denied unemployment benefits to an employee who was fired after refusing to work on the Sabbath, claiming the employee was ineligible for benefits because she had “failed, without good cause . . . to accept suitable work.”¹⁰ The Supreme Court held first that this denial burdened the employee’s religious exercise by forcing “her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”¹¹ The Court then said that to justify this “substantial infringement” of her rights, the state could not show “merely . . . a rational relationship to some colorable state interest,” but would have to demonstrate that its policy served a “compelling state interest”¹²—an element seemingly not required in Braunfeld.¹³ The Court held that the state had not met its burden, as its concerns about fraudulent claims filed by “unscrupulous claimants feigning religious objections to Saturday work” were unsupported by the record.¹⁴ Further, the state had not shown that “alternative forms of regulations” could not “combat such abuses without infringing First Amendment rights.”¹⁵ This stood in contrast to Braunfeld, which the Court said involved a “less direct burden upon religious practices,” and where the alternative methods appeared to pose such significant administrative problems that they “would have rendered the entire statutory scheme unworkable.”¹⁶

A number of subsequent decisions seemed to follow Sherbert’s heightened scrutiny standard, particularly in the unemployment benefits context. Additional decisions in the 1980s held that states had failed to satisfy the compelling interest test in denying unemployment benefits to those who lost employment based on religious objections to the nature of their assigned tasks¹⁷ or to working on certain days.¹⁸ These decisions can be seen as the Court applying the general doctrine of unconstitutional conditions, which holds that the government cannot infringe constitutional rights “by the denial of or placing of conditions upon a benefit or privilege.”¹⁹

In another decision, Wisconsin v. Yoder, the Court seemed to apply a Sherbert-like form of heightened scrutiny.²⁰ The case involved Amish parents who held religious objections to sending their children to high school and violated a state compulsory attendance law.²¹ Although the Court recognized the state’s “interest in universal education” as generally compelling, it held that such interest was “not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children.”²² After noting that the law’s effect on the Amish parents’ religious exercise was “not only severe, but inescapable,” and would “gravely endanger if not destroy the free exercise” of their beliefs,²³ the Court said it had to “searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16.”²⁴ The Court concluded that the evidence did not suggest the law was so necessary to serve the state’s interests as “to justify the [law’s] severe interference with religious freedom.”²⁵

The Court again applied a heightened form of scrutiny in United States v. Lee, although in that case it rejected a free exercise challenge to the forced payment of social security taxes.²⁶ An employer raised religious objections to accepting or paying into the national social security system.²⁷ The Court said the government could justify the law’s infringement on his religious liberty by showing the law was “essential to accomplish an overriding governmental interest.”²⁸ After describing the government’s interest in “mandatory and continuous participation in” the social security system as “very high,” the Court held that “it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs.”²⁹ Accordingly, “religious belief” could not provide a “basis for resisting the tax.”³⁰ More broadly, the Court declared that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”³¹ Justice John Paul Stevens, in a concurring opinion, suggested that this decision was in “tension” with Sherbert.³²

Subsequent decisions of the Court attempted to reconcile the tension between the two standards in various ways. In Bob Jones University v. United States, a religious university argued that racial nondiscrimination requirements infringed upon its religious beliefs prohibiting interracial dating and marriage.³³ The Supreme Court held that the government had satisfied Sherbert’s compelling interest test, citing Lee for the idea that the government may sometimes burden religious liberty.³⁴ Another opinion rejected a constitutional challenge to a federal decision to tax certain payments for religious services, saying that Sherbert’s compelling interest test applied only if the government had “placed a substantial burden on the observation of a central religious belief or practice.”³⁵ However, the Court in that case said that under Lee, even a substantial religious burden would be justified by the government’s interest in maintaining a uniformly applicable tax system.³⁶ In another case involving a Free Exercise Clause challenge to a sales and use tax applied to religious materials, the Court concluded Sherbert’s compelling interest standard did not apply where the challenger’s religious beliefs did not “forbid payment” of the tax, holding that the collection and payment of the tax imposed “no constitutionally significant burden on appellant’s religious practices or beliefs.”³⁷

In Bowen v. Roy, involving a religious objection to the federal government’s assignment and use of Social Security numbers, a plurality of the Court agreed that public benefits laws should not be subject to the heightened standard of Sherbert and Yoder.³⁸ The Court drew a distinction between “government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs” and “governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons.”³⁹ Further, the plurality suggested that the heightened scrutiny applied in Sherbert was motivated by concerns specific to the state law’s “‘good cause’ standard,” which “created a mechanism for individualized exemptions” that opened the door for religious discrimination.⁴⁰ Applying a less rigorous standard, the Bowen plurality rejected a free exercise challenge to a federal law requiring benefits applicants to provide a Social Security number, saying there was no evidence “suggesting antagonism by Congress towards religion generally or towards any particular religious beliefs.”⁴¹ The Social Security number requirement “clearly promote[d]” the government’s stated interest in preventing fraud—a “legitimate and important public interest.”⁴² The Bowen plurality’s views on the appropriate standards to evaluate Free Exercise Clause challenges would be largely vindicated with the Supreme Court’s 1990 decision in Employment Division v. Smith, discussed in a subsequent essay.⁴³

Amdt1.4.3.3 Laws Neutral to Religious Practice and Internal Government Affairs

Two Supreme Court cases from the late 1980s held that the First Amendment’s Free Exercise Clause is not implicated by internal government procedures—at least, so long as the internal policy is generally applicable and facially neutral towards religion.¹ The religious challenger in Bowen v. Roy believed that by assigning his daughter a Social Security number and using that number to administer certain government programs, her spirit had been robbed.² The Supreme Court rejected the father’s constitutional challenge, saying “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”³ The Court further said that the Clause “affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.”⁴ In the Court’s view, the federal government’s use of a Social Security number did not “in any degree impair” the father’s free exercise of religion.⁵

The Supreme Court extended this principle in Lyng v. Northwest Indian Cemetery Protective Ass’n, holding that the federal government could allow timber harvesting in a national forest that had “historically been used for religious purposes” by certain Native American tribes.⁶ The Court declined to analyze the law under any heightened form of scrutiny, although it acknowledged that—as in Roy—the government’s action would “interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs.”⁷ Critically, though, the Court further concluded that the government’s action would not coerce anyone into violating their religious beliefs or “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”⁸ While prior cases had held that “indirect coercion or penalties on” religion could trigger heightened constitutional scrutiny, the Court distinguished prohibitions on religious activity from “incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs.”⁹ Even assuming that the government’s decision about how to use the public land would destroy the tribes’ ability to practice their religion, the Court said that the First Amendment could not give citizens the ability to “veto . . . public programs that do not prohibit the free exercise of religion.”¹⁰

Amdt1.4.3.4 Laws Neutral to Religious Practice and Current Doctrine

In the 1990 decision Employment Division v. Smith, the Supreme Court attempted to reconcile its various standards for evaluating Free Exercise Clause challenges, limiting the heightened scrutiny of Sherbert v. Verner to a specific context and outlining a lower level of scrutiny for many other government actions.¹ Specifically, in Smith, the Court rejected a free exercise claim brought by two members of a Native American church.² The state had denied them unemployment benefits after they were fired for using peyote in violation of state criminal drug laws.³ The church members argued that this denial of benefits impermissibly burdened their religious practice, because they had used peyote for sacramental purposes.⁴ The Supreme Court disagreed, stating 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).’”⁵

The majority opinion in Smith acknowledged that some prior Supreme Court decisions, such as Sherbert, had applied a heightened standard that required the government to demonstrate that any substantial burdens on religion were justified by a compelling governmental interest.⁶ However, the Court said those earlier cases concerned laws that were not truly “generally applicable,” and had “nothing to do with an across-the-board criminal prohibition on a particular form of conduct.”⁷ Instead, those cases involved systems like unemployment benefit programs in which the government decided case by case whether to apply laws through “individualized . . . assessment[s].”⁸ Because individual exemption decisions presented a greater risk of religious discrimination, they required a heightened standard of review.⁹ By contrast, the criminal laws in Smith generally prohibited using certain drugs and were “not specifically directed at [the church members’] religious practice.”¹⁰ The Court noted that other cases such as United States v. Lee and Braunfeld v. Brown¹¹ had upheld the application of generally applicable laws to religiously motivated conduct.¹²

The majority opinion also said that some of the other cases applying a heightened standard of review to invalidate government actions violating the Free Exercise Clause had involved “hybrid” claims, in which plaintiffs claimed the government had violated additional constitutional rights beyond the free exercise of religion.¹³ The Court placed its early cases dealing with religious speech in this category, noting they also implicated First Amendment protections for speech and press.¹⁴ In contrast, the benefits claimants in Smith presented “a free exercise claim unconnected with any communicative activity” or any other right.¹⁵

The Court’s opinion relied in part on its belief that applying a “‘compelling interest’ test” in any claim involving the application of a law to religious motivated action “would be courting anarchy.”¹⁶ A rule deeming such applications “presumptively invalid . . . . would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”¹⁷ This aspect of the Court’s decision drew from prior cases that had expressed similar concerns¹⁸ in attempting to avoid outcomes that would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”¹⁹ For example, in a prior case involving a religious objection to internal government procedures, the Court had said that the government “simply could not operate if it were required to satisfy every citizen’s religious needs and desires.”²⁰

Accordingly, after Smith, the Court has deemed burdens on free exercise that are “merely the incidental effect of a generally applicable and otherwise valid provision” not to violate the First Amendment.²¹ However, some judges and commentators found Smith “controversial.”²² Although the Court has so far resisted calls to overrule the case,²³ subsequent cases discussed in another essay have explored limitations on the doctrine, effectively continuing to apply heightened constitutional scrutiny in a way that frequently requires government accommodation of religious exercise.²⁴ Specifically, Smith left open the possibility that some form of heightened scrutiny would apply to laws that were not generally applicable or neutral towards religion.²⁵ In addition, by declining to overrule Sherbert and its progeny, Smith suggested that the compelling interest test might still apply in certain circumstances, potentially when statutory schemes require “individualized governmental assessment.”²⁶ The Court has not yet elaborated on Smith’s discussion of “hybrid” constitutional claims which might also trigger heightened scrutiny.²⁷

Amdt1.4.3.5 Laws Neutral to Religious Practice Regulating Prisons and the Military

Even before the Supreme Court ruled in Employment Division v. Smith that heightened constitutional scrutiny should be limited to certain circumstances, the Court had suggested that a lower level of scrutiny would apply in the context of prisons and the military.¹ In Goldman v. Weinberger, the Supreme Court held that the Air Force’s uniform dress regulations, which prohibited most members from wearing headgear indoors, could apply to a yarmulke.² The Court declined to analyze the free exercise objection under heightened scrutiny, saying instead that the Court’s “review of military regulations . . . is far more deferential than constitutional review of similar laws or regulations designed for civilian society.”³ Accordingly, the Court deferred to the Air Force’s judgment that “standardized uniforms” were “vital” for discipline and unity, as well as its decision not to accommodate visible religious apparel that would detract from the desired uniformity.⁴

A year later, in O’Lone v. Estate of Shabazz, the Court adopted a similarly deferential position to uphold prison regulations that inhibited certain prisoners’ religious exercise.⁵ The prison chose not to allow Muslim prisoners assigned to outside work details to return to the prison to attend religious services.⁶ While acknowledging that prisoners retain some First Amendment rights, the Court also said that prisoners’ constitutional claims “are judged under a ‘reasonableness’ test” that affords more deference to prison administrators than ordinary standards.⁷ The Court said that a prison’s ability to accommodate religious activity might be “relevant to the reasonableness inquiry,” but it would be inappropriate to place “the burden on prison officials to disprove the availability of alternatives.”⁸ Ultimately, the Court held that the prison regulations were constitutional because they had “a logical connection to legitimate governmental interests” in maintaining institutional order and security.⁹

Nonetheless, the First Amendment’s guarantees still apply to members of the military and to prisoners, and the Supreme Court has also held that the government would violate the Free Exercise Clause if it discriminated against a Buddhist prisoner, denying him “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners.”¹⁰

Amdt1.4.4 Laws that Discriminate Against Religious Practice

The Supreme Court has recognized that the Free Exercise Clause “protect[s] religious observers against unequal treatment.”¹ Thus, even after Employment Division v. Smith held that laws burdening religion generally will not violate the Free Exercise Clause if they are neutral and generally applicable,² a law that imposes special burdens on religious activities may not be considered neutral and generally applicable and will trigger heightened scrutiny.³ For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring ministers from serving as delegates to a state constitutional convention.⁴ While the Court splintered with respect to its rationale, a majority agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right to exercise one’s religion on the “surrender” of the right to seek office as a delegate.⁵ As such, the law impermissibly imposed a “special disabilit[y] on the basis of religious views or religious status.”⁶ To take another example, in Kennedy v. Bremerton School District, the Court ruled that a school district violated the Free Exercise Clause by suspending a football coach because he engaged in religious conduct—praying at the fifty-yard line after a football game.⁷

Similarly, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding to resurface playgrounds because of the church’s religious affiliation.⁸ The Court concluded that Missouri’s policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion—a result that triggered the “most exacting scrutiny.”⁹ The Court rejected the State of Missouri’s argument that withholding funds did not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.¹⁰ Relying on McDaniel, Chief Justice John Roberts concluded that because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion,” as well as “outright” prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.¹¹ In evaluating whether the state’s policy was justified by “a state interest ‘of the highest order,’” the Court noted the parties’ agreement that the Establishment Clause did not require religious organizations’ exclusion from the program, and said that the state’s “policy preference” for achieving an even greater separation of church and state did not “qualify as compelling.”¹² As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.¹³ In a later case discussed in more detail in another essay, the Court further held that a law excluding religious schools from a state’s tuition assistance program based on the fact that the schools would use the funds for religious activities was similarly unconstitutional.¹⁴

Even if a law does not expressly target religion, it will trigger strict scrutiny if its object “is to infringe upon or restrict practices because of their religious motivation.”¹⁵ In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court struck down a set of ordinances enacted by a Florida city that had the “impermissible object” of targeting “conduct motivated by religious beliefs.”¹⁶ The Florida ordinances prohibited animal sacrifice, making certain exemptions for animals killed for food consumption, and were passed in direct response to the establishment of a Santeria church within the city and city residents’ concerns about the Santeria practice of animal sacrifice.¹⁷ The Supreme Court concluded that the ordinances were not neutral within the meaning of Smith because they unconstitutionally sought to suppress Santeria religious worship.¹⁸ Among other factors, the Court noted that the laws accomplished a “religious gerrymander”: although the text did not expressly refer to Santeria, the law nonetheless prohibited only Santeria sacrifice.¹⁹ The Court also held that the ordinances were not generally applicable under Smith because they selectively burdened “only . . . conduct motivated by religious belief.”²⁰ The Court therefore applied “the most rigorous of scrutiny” and ruled the ordinances unconstitutional.²¹

The Court has suggested that it is equally unconstitutional for hostility to religion to motivate the government’s decisions to apply its laws.²² Consequently, even laws that are neutral on their face and in their purpose may violate the Free Exercise Clause if they are applied in a way that discriminates against religious activity.²³ For example, the Supreme Court held that a city violated the First Amendment when it applied an ordinance prohibiting certain activities in public parks in a discriminatory fashion.²⁴ According to the Court, the evidence showed that a certain group’s religious service had been treated differently “than a religious service of other sects,” amounting “to the state preferring some religious groups over this one.”²⁵ The Court cautioned that it was “no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.”²⁶

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, another case involving allegations of religious hostility, the Court set aside state administrative proceedings enforcing Colorado’s anti-discrimination laws against a baker who had refused to make a cake for a same-sex wedding.²⁷ The Court held that the state had violated the Free Exercise Clause because the Colorado Civil Rights Commission had not considered the baker’s case “with the religious neutrality that the Constitution requires.”²⁸ The Court highlighted two aspects of the state proceedings that had, in its view, demonstrated impermissible religious hostility: first, certain statements by some of the Commissioners during the proceedings before the Commission²⁹; and second, “the difference in treatment between [the petitioner’s] case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.”³⁰

Seemingly building on the Court’s second rationale in Masterpiece Cakeshop, the Supreme Court has said that government regulations are not neutral and trigger strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise.”³¹ In November 2020 and April 2021, the Supreme Court issued two per curiam opinions applying strict scrutiny to state regulations that limited gatherings, including religious gatherings, in response to the COVID-19 pandemic.³² In the first case, Roman Catholic Diocese of Brooklyn v. Cuomo, the Court noted that while houses of worship were subject to strict occupancy limits, “essential” businesses faced no such restrictions.³³ This “especially harsh treatment” of religious groups triggered strict scrutiny, which the government could not satisfy.³⁴ In the second case, Tandon v. Newsom, the Court explained that “whether two activities are comparable . . . must be judged against the asserted government interest that justifies the regulation at issue.”³⁵ In the context of restrictions to prevent the spread of COVID-19, the Court said comparability was “concerned with the risks various activities pose.”³⁶ Applying these principles to the challenged restrictions, the opinion held that the state did treat “some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.”³⁷ The Court further held that the challengers were likely to prevail under a strict scrutiny analysis because the state had “not shown that ‘public health would be imperiled’ by employing less restrictive measures.”³⁸

Accordingly, a law that contains exemptions may be subject to strict scrutiny if those exemptions create or allow religious discrimination.³⁹ As discussed in more detail elsewhere,⁴⁰ early Supreme Court jurisprudence considering restrictions on religious speech in public forums invalidated rules that granted officials broad discretion that they could use to discriminate against religious speech.⁴¹ Citing seemingly similar concerns, Smith said that the Court had reviewed laws creating “a system of individual exemptions” under a heightened level of scrutiny requiring the government to demonstrate a compelling interest.⁴² The Supreme Court explained that, for example, it had applied this heightened standard of review to an unemployment compensation system that required “individualized governmental assessment” of whether an individual had shown “good cause” for refusing work.⁴³

The Court expanded on this aspect of the Smith opinion in Fulton v. City of Philadelphia, decided in 2021, saying that the presence of individualized exemptions may render a law not generally applicable and therefore subject to strict scrutiny.⁴⁴ In Fulton, the Supreme Court held that a Catholic foster care agency was entitled to a constitutional exception from a city’s nondiscrimination policy.⁴⁵ The city had refused to sign a contract with the agency unless it agreed to a provision prohibiting discrimination on the basis of certain protected classes, including sexual orientation, in the provision of services.⁴⁶ The agency argued that this provision would impermissibly require it to certify same-sex foster parents in violation of its religious beliefs.⁴⁷ The Supreme Court agreed, saying that the contract’s nondiscrimination provision was not generally applicable under Smith because it allowed a city official to grant exceptions, in the official’s “sole discretion.”⁴⁸ Although the city had never actually granted an exception to either secular or religious activities under its other contracts, and asserted that it had no intention of granting any such exception in the future, the Court nonetheless held that the nondiscrimination provision “incorporate[d] a system of individual exemptions,” and that the city could not “refuse to extend that [exemption] system to cases of religious hardship without compelling reason.”⁴⁹ Ultimately, the Supreme Court concluded that the city failed to meet this standard, because it had offered “no compelling reason why it has a particular interest in denying an exception to [the religious agency] while making them available to others.”⁵⁰