Free Exercise of Religion: Rise of the Compelling State Interest Test
The issue: When may the government enforce a law that burdens an individual's ability
 to exercise his or her religious beliefs?

Supreme Court interpretation of the Free Exercise Clause has come full circle.  From its narrow reading of the clause in 1878 in Reynolds, to its much broader reading of the clause in the Warren and Burger Court years, the Court returned to its narrow interpretation in the controversial 1990 case of Employment Division of Oregon v Smith.  The story of this circular migration is an interesting one, and may provide lessons for other areas of constitutional interpretation.  This page describes the first half of the story: the rise of the compelling state interest test for evaluating government actions that substantially burden religiously motivated conduct.

The Supreme Court's first encounter with a Free Exercise Clause claim came when a Mormon polygamist in the Utah Territory challenged his conviction under a federal anti-polygamy law.  The Supreme Court rejected the appellant's claim that his religious beliefs necessitated, and therefore excused, his violation of federal law.  The Court read the Free Exercise Clause as protecting religious beliefs, not religious practices that run counter to neutrally enforced criminal laws.

Adele Sherbert, the Seventh Day Adventist who brought a successful  free exercise suit against South Carolina for denying her unemployment benefits after she refused to work on Saturdays.

By the Warren Court years of the 1960s, the Court had adopted a much more expansive view of the Free Exercise Clause, reading it to compel governmental accomodation of religiously-motivated conduct in the absence of a compelling state interest and the use of means that least burdened religious practices.  Applying this strict scutiny to laws that significantly burdened religious exercise, the Court found unconstitutional South Carolina's law denying unemployment benefits to a Seventh Day Adventist who turned down a job opportunity that included Saturday work (Sherbert). 

The Burger Court continued to apply this test, using it in 1972 to find unconstitutional (as applied to Amish families) Wisconsin's law mandating attendance in schools until age 17 (Yoder).  The Court found strong evidence for "the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs."

Douglas O. Linder, The Story Behind Yoder v Wisconsin

State and lower federal courts, of course, applied strict scrutiny to enjoin a variety of criminal laws in the 1970s and 80s.  For example, in 1979 in Frank v Alaska, the Alaska Supreme Court held that the state could not enforce its hunting laws against Athabascans who were religiously-motivated to hunt moose out of season--moose being a key ingredient in a religiously proper funeral potlatch.

By the mid-80s, the Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims.  The close division of the Court on these claims was revealed in its 1985 affirmance (by an equally divided Court, Justice Powell not participating) of an Eighth Circuit decision enjoining Nebraska from enforcing a state law requiring photo identification on driver's licenses against a Nebraska motorist who believed that such pictures violated the Second Commandment's warning against worshipping graven images (Jensen v  Quaring).

The next year, the tide began turning against Free Exercise claimants as the story continues:

The Free Exercise Clause: Narrowing of the Test
 (cases 1986 to present)

Free Exercise Clause
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.
(Amendment 1)

United States v Ballard (1944)
Sherbert v. Verner (1963)
Yoder v.Wisconsin (1972)
Frank v. Alaska (1979)
Jensen v Quaring (1985)

Jonas Yoder, who successfully challenged Wisconsin's compulsory education law (LIFE).
"We don't want our children involved in worldly things.  In the public schools they have physical education, science, television, things like that--temptations for a different world.  I don't want to condemn anybody, but we want to hold to what we've got.  We want to hold our religion.  That's what we're working for."-- Jonas Yoder

Centrality and Sincerity of the Burdened Religious Belief
For a free exercise claim to have any chance of success, two things must first be established.  First, it must be shown that the religious belief allegedly burdened by the government is central to one's religious beliefs.  (This issue was debated by justices in Frank v Alaska, above, where the majority concluded that having fresh moose meat for a funeral potlatch was central to Athabascan religious practice, while a dissenting justice disagreed.)  If the conduct in question relates to a belief that is not central to one's religion, a governmental restriction on that conduct would not place a substantial burden on religious exercise.  Second, it must be shown that the religious belief that is allegedly burdened is sincerely held.  Once a good faith belief is established, the court's inquiry should end: there should be no attempt to determine whether the belief is true.  (Ballard v United States).  Note that in Ballard, Justice Jackson in dissent would not even have allowed judicial inquiry into whether the belief was sincerely held: "I would be done with this business of judicially examining other people's faiths."


1. Do you agree that the text of the Free Exercise Clause suggests that it protects religiously-motivated conduct as well as beliefs?
2. Is there any serious argument to be made that the people have an unlimited right to do anything that their religous beliefs compel them to do?  If you were a member of a religion that believed the gods demanded that a virgin be thrown off a cliff every week, could you possibly argue that the Free Exercise Clause protects you against a charge of murder?
3. Should Sherbert be entitled to unemployment benefits if her religious beliefs required her to turn down any job that required her to work on Tuesdays and Thursdays?
4. Yoder holds that the Amish are exempt from state compulsory education laws because public education beyond a certain age threatens the religious values of the Amish.  Does this case suggest that Christian Fundamentalists have a free exercise right to be exempted from, say, biology classes in which evolution is taught or requirements in a literature course that they read religiously-objectionable works?
5.  Do the Frank and Jensen decisions suggest problems with the compelling state interest test?  Do you think either or both of those cases were correctly decided?  What about the argument that granting special treatment to those with a specific religious belief constitutes an establishment of religion?

"Original Intent and the Free Exercise of Religion"
ACLU, "Development of Free Exercise Law"


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