Amendment 1 — Laws That Discriminate Against Religious Practice

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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.

The Supreme Court has recognized that the Free Exercise Clause “protect[s] religious observers against unequal treatment.” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn1amd1 " Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993) (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment)). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn2amd1 " Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). ") a law that imposes special burdens on religious activities may not be considered neutral and generally applicable and will trigger heightened scrutiny.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn3amd1 " Church of Lukumi Babalu Aye, 508 U.S. at 531–32. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn4amd1 " 435 U.S. 618, 629 (1978) (plurality opinion). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn5amd1 " Id. at 626; accord id. at 633–34 (Brennan, J., concurring in the judgment). ") As such, the law impermissibly imposed a “special disabilit[y] on the basis of religious views or religious status.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn6amd1 " Smith, 494 U.S at 877 (describing the holding in McDaniel). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn7amd1 " Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 31–32 (U.S. June 27, 2022). The Court held that the school’s policies were not neutral because they were based on the religious character of the actions, and the policies were not generally applicable because the school allowed coaching staff to engage in other types of personal activities after the game. Id. at 14. Although the Court acknowledged that strict scrutiny would ordinarily apply under the Free Exercise Clause, there were open questions in the case about whether a lower standard should apply under a Free Speech Clause framework. Id. at 19–20. The Court avoided answering that open question by concluding the school could not “sustain its burden under any” of the suggested levels of scrutiny. Id. at 20. ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn8amd1 " See Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 15 (U.S. June 26, 2017). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn9amd1 " Id. at 10. The Supreme Court later clarified that Trinity Lutheran had applied “strict scrutiny.” Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 12 (U.S. June 30, 2020). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn10amd1 " Trinity Lutheran, slip op. 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn11amd1 " Id. at 10–11. As a result, the Court characterized the church’s injury not so much as being the “denial of a grant” itself, but rather the “refusal to allow the Church . . . to compete with secular organizations for a grant.” Id. at 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn12amd1 " Id. at 6, 14 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978) (plurality opinion)). ") As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn13amd1 " Id. at 14–15. See also Espinoza, slip op. at 10, 20 (holding that a state violated the Free Exercise Clause by excluding religious schools from a tax credit program based solely on the schools’ “religious status” ); Mitchell v. Helms, 530 U.S. 793, 835 n.19 (2000) (plurality opinion) (saying that excluding religious schools from a federal program authorizing public schools to lend materials to private schools “would raise serious questions under the Free Exercise Clause.” ). But see Locke v. Davey, 540 U.S. 712, 721–22 (2004) (rejecting free exercise challenge to state provision prohibiting scholarships from being used for devotional theology degrees, saying the state could permissibly choose not to fund this “distinct category of instruction” and noting the state’s historically grounded “antiestablishment interests” ). These cases are discussed in more detail in . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn14amd1 " Carson v. Makin, No. 20-1088, slip op. at 15–17 (U.S. June 21, 2022); see also . ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn15amd1 " Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). See also Tucker v. Texas, 326 U.S. 517, 520 (1946) (rejecting a free exercise challenge after noting that the challenged laws did not indicate “a purpose to bar freedom of press and religion” ); In re Summers, 325 U.S. 561, 571 (1945) (rejecting a free exercise challenge after noting that the challenged policy did not appear motivated by a “purpose to discriminate” against certain religious groups). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn16amd1 " Church of Lukumi Babalu Aye, 508 U.S. at 524. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn17amd1 " Id. at 526–28. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/laws-that-discriminate-against-religious-practice#fn18amd1 " <span class="cite cite-type-case" full="Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,