Free Exercise Clause - Overview

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 the scope of the Free Exercise Clause was Reynolds v. United States in 1879. 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 upheld the law and the government's prosecution. This 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. This 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 well, holding that it unconstitutionally attempted to usurp the Supreme Court's role in interpreting the Constitution, thus leaving the Smith test in place.