Amendment 1 — Laws Neutral To Religious Practice From The 1960s Through The 1980s

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First Amendment :

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.

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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn1amd1 " Braunfeld v. Brown, 366 U.S. 599, 601 (1961) (plurality opinion). Sunday closing laws also engendered a number of Establishment Clause challenges. See . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn2amd1 " Braunfeld, 366 U.S. at 601–02. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn3amd1 " Id. at 603, 606. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn4amd1 " Id. at 607. ") In the Court’s view, the Sunday closing law had a valid secular purpose and effect in creating a common day of rest,[5](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn5amd1 " See id.; McGowan v. Maryland, 366 U.S. 420, 507 (1961) (opinion of Frankfurter, J.) (rejecting the Free Exercise Clause claims in Braunfeld after concluding the law had this valid secular purpose). ") and there were no effective alternative measures that would achieve this purpose without incidentally burdening religious freedom.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn6amd1 " Braunfeld, 366 U.S. at 608 (plurality opinion); accord McGowan, 366 U.S. at 520 (opinion of Frankfurter, J.). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn7amd1 " Braunfeld, 366 U.S. at 608–09 (plurality opinion). ") Subsequent cases similarly seemed to suggest that laws placing only “incidental burdens” on religious beliefs might be more readily upheld.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn8amd1 " See, e.g., Gillette v. United States, 401 U.S. 437, 462 (1971) (rejecting Free Exercise Clause challenge to federal law exempting from military service only those who objected, on religious grounds, to participating in all wars, not those with religious objections to a particular war, saying the law’s “incidental burdens” on religious beliefs were “strictly justified by substantial governmental interests” ); Johnson v. Robison, 415 U.S. 361, 385 (1974) (rejecting Free Exercise Clause challenge to federal law excluding conscientious objectors from veterans’ benefits, citing Gillette to conclude that the law’s “incidental burden” on religion was justified by the government’s “substantial interest in raising and supporting armies” ). ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn9amd1 " Sherbert v. Verner, 374 U.S. 398, 406 (1963). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn10amd1 " Id. at 399–401 (quoting S.C. Code Ann. § 68-114 (1952)). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn11amd1 " Id. at 404. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn12amd1 " Id. at 406. ") —an element seemingly not required in Braunfeld.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn13amd1 " See Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn14amd1 " Sherbert, 374 U.S. at 407. ") Further, the state had not shown that “alternative forms of regulations” could not “combat such abuses without infringing First Amendment rights.” [15](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn15amd1 " Id. at 407. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn16amd1 " Id. at 408–09. ")

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 tasks[17](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn17amd1 " Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 719 (1981) (involving a religious objection to making armaments, a newly assigned role for the employee). ") or to working on certain days.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn18amd1 " Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 831, 833 (1989) (involving a sincere religious objection to working on Sunday, which was held to be protected even though the challenger “was not a member of an established religious sect or church” ); Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 141 (1987) (involving a religious objection to working on the Sabbath). Cf. Luetkemeyer v. Kaufmann, 364 F. Supp. 376, 386 (W.D. Mo. 1973) (rejecting free exercise challenge to provisions excluding private schools from a school transportation program, noting the state’s compelling interest in “insist[ing] upon a degree of separation of church and state” ), aff’d, 419 U.S. 888 (1974) (mem.). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn19amd1 " Sherbert, 374 U.S. at 404–05; see also . Cf. Bowen v. Roy, 476 U.S. 693, 706, 703 (1986) (plurality opinion) (ruling that a statutory requirement for benefits claimants to provide a Social Security number did not “place a direct condition or burden on the dissemination of religious views” ); Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm’n, 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on group’s religiously motivated activity, saying that the state’s refusal to grant corporate status “by itself does not infringe in any significant way on the free exercise of their religious practices” ), aff’d, 405 U.S. 901 (1972) (mem.). ")

In another decision, Wisconsin v. Yoder, the Court seemed to apply a Sherbert-like form of heightened scrutiny.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn20amd1 " Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). ") The case involved Amish parents who held religious objections to sending their children to high school and violated a state compulsory attendance law.[21](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-neutral-to-religious-practice-from-the-1960s-through-the-1980s#fn21amd1 " Id. at 207. ")