Amendment 1 — Overview Of Free Exercise Clause

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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 First Amendment ’s Free Exercise Clause forbids Congress from “prohibiting the free exercise” of religion.[1](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn1amd1 " U.S. Const. amend. I. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn2amd1 " Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that the Free Exercise Clause had been incorporated against the states through the Fourteenth Amendment); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262 (1934) (holding that the “'liberty’ protected by the due process clause” of the Fourteenth Amendment includes the right to hold and teach certain religious beliefs). See also . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn3amd1 " Cantwell, 310 U.S. at 303–04. See also Sause v. Bauer, No. 17-742, slip op. at 2 (U.S. June 28, 2018) ( “Prayer unquestionably constitutes the ‘exercise’ of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place.” ); ") Starting with the first freedom, as explored in more detail in a subsequent essay,[4](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn4amd1 " . ") the Free Exercise Clause “categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn5amd1 " McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion). ")

The Court also clarified in Cantwell that religious actions, as opposed to beliefs, are “subject to regulation for the protection of society.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn6amd1 " Cantwell, 310 U.S. at 304. See also Braunfeld v. Brown, 366 U.S. 599, 603–04 (1961) (plurality opinion) ( “[L]egislative power . . . may reach people’s actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one’s religion.” ); Sherbert v. Verner, 374 U.S. 398, 403 (1963) (noting that the government may regulate religiously motivated actions under otherwise valid laws that protect “public safety, peace or order” ). ") However, the Court cautioned that the government must exercise its regulatory power cautiously so it does not “unduly . . . infringe” religious freedom.[7](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn7amd1 " Cantwell, 310 U.S. at 304. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn8amd1 " See Emp. Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)). ") This statement echoed early, pre-Cantwell cases involving free exercise challenges to criminal laws prohibiting polygamy in U.S. territories.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn9amd1 " Late Corp. of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) [hereinafter LDS]; Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1845). LDS and Davis involved laws attaching legal consequences to the criminal practice of polygamy: a business’s dissolution and a person’s disenfranchisement. Cf. Cleveland v. United States, 329 U.S. 14, 20 (1946) (concluding that religious motivation did not negate criminal intent in polygamy prosecution); Miles v. United States, 103 U.S. 304, 310–11 (1880) (holding that because religion was not a defense to a polygamy prosecution, the constitutional rights of a juror in a bigamy trial “could not” be violated by inquiring “whether he himself was living in polygamy, and whether he believed it to be in accordance with the divine will and command” ). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn10amd1 " LDS, 136 U.S. at 50; Davis, 133 U.S. at 341–42; Reynolds, 98 U.S. at 166. In Reynolds, the Court looked to the long historical precedent of laws prohibiting polygamy. Id. at 164–66. In the other two cases, the Court appeared to take a more normative approach, saying that to call advocating polygamy “a tenet of religion is to offend the common sense of mankind,” Davis, 133 U.S. at 341–42, and describing the religious belief in the practice of polygamy a “pretence” and “sophistical plea” for engaging in criminal activity, LDS, 136 U.S. at 49. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn11amd1 " United States v. Macintosh, 283 U.S. 605, 624 (1931). ") Although Smith hearkened back to these earlier cases,[12](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn12amd1 " See Smith, 494 U.S. at 879, 882 (citing Reynolds and conscientious objector caselaw as support). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn13amd1 " Sherbert v. Verner, 374 U.S. 398, 403 (1963); see . ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn14amd1 " Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn15amd1 " See . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn16amd1 " Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion). ")

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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn17amd1 " Bd. of Educ. v. Allen, 392 U.S. 236, 248–49 (1968) (rejecting a free exercise challenge to a textbook lending program because the challengers had not alleged the program “coerce[d] them as individuals in the practice of their religion” ). See also Tilton v. Richardson, 403 U.S. 672, 689 (1971) (plurality opinion) (rejecting a free exercise challenge to a federal program offering grants for constructing academic facilities because the challengers could not “identify any coercion directed at the practice or exercise of their religious beliefs” ). ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn18amd1 " Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450–51 (1988); see also . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-free-exercise-clause#fn19amd1 " Zorach v. Clauson, 343 U.S. 306, 308 (1952). ") The program did not involve any free exe