Free Exercise Clause: Overview

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.” 1 Footnote
Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963) . It bars “governmental regulation of religious beliefs as such,” 2 Footnote
Sherbert v. Verner, 374 U.S 398, 402 (1963) . prohibiting misuse of secular governmental programs “to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.” 3 Footnote
Braunfeld v. Brown, 366 U.S. 599, 607 (1961) . Freedom of conscience is the basis of the Free Exercise Clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.4 Footnote
Sherbert v. Verner, 374 U.S. 398, 402 (1963) ; Torcaso v. Watkins, 367 U.S. 488 (1961) . Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute “conduct” rather than pure “belief.” When it comes to protecting conduct as free exercise, the Court has been inconsistent.5 Footnote
Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell , The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause’s origins in religious pluralism) with Marshall , The Case Against the Constitutionally Compelled Free Exercise Exemption , 40 Case W. Res. L. Rev. 357 (1989-90) (arguing that such exemptions establish an invalid preference for religious beliefs over non-religious beliefs). Cf. Sause v. Bauer, 585 U.S. ___, No. 17-742, slip op. at 2 (2018) (per curiam) ( “There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the 'exercise' of religion.” ). It has long been held that the Free Exercise Clause does not necessarily prevent the government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.6 Footnote
E.g., Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879) ; Jacobson v. Massachusetts, 197 U.S. 11 (1905) ; Prince v. Massachusetts, 321 U.S. 158 (1944) ; Braunfeld v. Brown, 366 U.S. 599 (1961) ; United States v. Lee, 455 U.S. 252 (1982) ; Employment Division v. Smith, 494 U.S. 872 (1990) . What has changed over the years is the Court’s willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.

Footnotes 1 Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963) . 2 Sherbert v. Verner, 374 U.S 398, 402 (1963) . 3 Braunfeld v. Brown, 366 U.S. 599, 607 (1961) . 4 Sherbert v. Verner, 374 U.S. 398, 402 (1963) ; Torcaso v. Watkins, 367 U.S. 488 (1961) . 5 Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell , The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause’s origins in religious pluralism) with Marshall , The Case Against the Constitutionally Compelled Free Exercise Exemption , 40 Case W. Res. L. Rev. 357 (1989-90) (arguing that such exemptions establish an invalid preference for religious beliefs over non-religious beliefs). Cf. Sause v. Bauer, 585 U.S. ___, No. 17-742, slip op. at 2 (2018) (per curiam) ( “There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the 'exercise' of religion.” ). 6 E.g., Reynolds v. United States, 98 U.S. (8 Otto) 145 (1879) ; Jacobson v. Massachusetts, 197 U.S. 11 (1905) ; Prince v. Massachusetts, 321 U.S. 158 (1944) ; Braunfeld v. Brown, 366 U.S. 599 (1961) ; United States v. Lee, 455 U.S. 252 (1982) ; Employment Division v. Smith, 494 U.S. 872 (1990) .

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