Free Exercise of Religion: Narrowing of the 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 Court's decision in Smith provoked almost unanimous criticism on Capitol Hill, and Congress quickly responded by passing the Religious Freedom Restoration Act, designed to restore the test abandoned in Smith.  This effort, however, largely was to fail, as the Supreme Court ruled that Congress lacked the power to compel state accomodation of significantly burdened religious beliefs and practices. 

In the mid-80s, the Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims.  In 1986, the tide turned against Free Exercise claimants when the Court rejected, 5 to 4, the seemingly sympathetic request of an Orthodox Jewish army psychiatrist who felt religiously-compelled to wear a yamulke on duty, and who asked to be exempted from the military's ban on such headwear (Goldman).

Lyng v Northwest Protective Cemetery Association in 1988 provided a major hint of the revolution in Free Exercise law to come by adopting a per se rule that the government need not concern itself with the impact that its land use decisions might have on religious practices.  Based on this newly announced principle, the Court permitted the United States to proceed with construction of a road through a national forest that would concededly have severe consequences for the practitioners of a Native American religion who considered the area sacred.

Alfred Smith was denied unemployment benefits because of his peyote use

The big development--shocking to some--in Free Exercise jurisprudence came in Employment Division v Smith in 1990.  Reinterpreting and, in some cases, throwing out decades of caselaw, five members of the Supreme Court concluded that a generally applicable criminal law raises no Free Exercise issues at all, ending what had long been the obligation of states to demonstrate at least an important state interest and narrow tailoring when they enforced laws that significantly burdened religious practice.  The Court reinterpreted some Free Exercise cases such as Yoder as "hybrid" cases, raising both Free Exercise and substantive due process issues.  Other cases such as Sherbert, Thomas, and Hobbie were placed in the special category of "unemployment compensation rules" --and left undisturbed.  From now on, the five-member majority proclaimed, states will have to satisfy heightened scrutiny (except for hybrid cases and unemployment cases) only when a law specifically targets religious practice.

Hialeah banned ritual animal slaughter, commonly practiced by followers of the Santeria religion

In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans.  The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.

Trinity Lutheran Church's empty playground in Columbia, Missouri

In 2017, the Court blew more life into the Free Exercise Clause by demonstrating how it can be a potent weapon for religious groups who are denied access to government programs and benefits that are generally open to secular applicants, but which exclude applicants based on religious affiliation.  In Trinity Lutheran Church of Columbia v Comer (2017), the Court considered the case of a Lutheran Church that applied to the Missouri DNR for funding to resurface its gravel playground with a softer surface made from recycled tires.  The funding would have been provided but for the fact that the applicant was a religious institution and Missouri's conclusion that providing such funding would violate its own strict constitutional provision separating church and state.  Writing for a 7 to 2 majority, Chief Justice Roberts found that the rejection of the grant application was a violation of the Free Exercise Clause.  Roberts wrote, "Our cases make clear that a condition that imposes a penalty on the free exercise of religion must be subjected to the most rigorous scrutiny."  Locke v Davey, the Court concluded, was distinguishable.

The Smith decision proved as unpopular with Congress as it did with many within the religious community.  Congress in 1993 responded to the Smith decision by voting overwhelmingly to pass the Religious Freedom Restoratation Act of 1993 designed to return religious exercise cases to the pre-Smith standard for laws burdening religious practices.  Under RFRA, federal, state, and local laws interfering with religious exercise would have to be supported by a compelling state interest and be a least restrictive of religious freedom as possible.  The Supreme Court, however, gets the last word on issues of constitutional interpretation.  In 1997, in City of Boerne v Flores, the Court ruled that RFRA was unconstitutional, at least as applied to state and local governments.  The Court concluded that the Constitution, and in particular Section 5 of the Fourteenth Amendment, gave no power to Congress to do more than adopt remedial measures consistent with Fourteenth Amendment interpretations of the Court, and that Congress had instead tried to changed the substantive law--substituting its interpretation of the Free Exercise Clause for that of the Supreme Court.

Religious Freedom Restoration Act (RFRA)(1993)
Full text of the federal law that attempted to restore the pre-Smith test for laws significantly burdening religious exercise.  The Act relied on Congress's power under Section 5 of the 14th Amendment to "enforce the provisions" of the Amendment, specifically its powers to enforce the Free Exercise Clause.  The Supreme Court found in Bourne that Congress lacked the power to enforce the 14th Amendment in a way inconsistent with the Court's interpretations of the Amendment.
Religious Land Use and Institutionalized Persons Act (RLUIPA)(2000)
Full text of the federal law enacted to overcome Supreme Court objections to RFRA.  The Act, somewhat narrower in scope than RFRA, relies on Congress's powers under the Commerce Clause and the Spending Clause.

Joshua Davey (American Bar Journal photo)

In 2004, the Supreme Court in Locke v Davey considered the reach of Lukumi Babalu in a case involving a Washington State scholarship program for gifted students.  The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology.  When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right.  Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough "play in the joints" to allow Washington to exclude a major in devotional theology, "a religious calling" as much as "an academic pursuit," from the list of endeavors it will support with taxpayer funds.  Justices Scalia and Thomas disagreed, finding the exclusion to be a clear violation of Free Exercise principles laid down in Lukumi Babalu.

Free Exercise Clause

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


Goldman v. Weinberger (1986)
Employment Div. of Oregon v, Smith (1990)
Church of Lukumi Babalu Aye v. Hialeah (1993)
Locke v Davey (2004)
Trinity Lutheran Church of Columbia v Comer (2017)

RFRA/ RLUIPA/ Free Exercise Cases
City of Boerne v. Flores (1997)
Burwell v Hobby Lobby (2014)
Holt v Hobbs (2015)

St. Peter's Church in Boerne, Texas (ABA photo)


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 the Court's conclusion in Smith that the law imposes no limitations on government's ability to enforce criminal laws of general applicability consistent with the framers' original understanding?  Why did the Court in Smith pay so little attention to the historical record on this matter?
3.  After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor.  Is such a prosecution likely to occur?  Why not?  Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?
4.  What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)?  Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?
5.  Lukumi Bababu Aye holds that government may not target a religious practice for prosecution.  Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services.  How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?
6.  What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause?  How would you resolve the tension between the Free Exercise Clause and Establishment Clause?
7. Justice Scalia argues in Smith that an honest application of the compelling state interest test in free exercise cases involving neutral laws would lead to anarchy and chaos, with religions of all sorts getting exemptions from a wide variety of laws and programs.  Is he right?  Has the Court been using a "watered down" compelling state interest test in free exercise cases?
8.  If the compelling state interest teest were to be applied in Smith, would Oregon have been able to satisfy it?  How strong is the state's interest in prohibiting the use of peyote in the religious ceremonies of Native Americans?
9.  The Religious Freedom and Restoration Act of 1993 passed in the Senate on a vote of 96 to 3.  Does that vote suggest that support for the weakened free exercise test of Smith is diffuse at best?
10.  Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing?  

"Church of the Lukumi Babalu Aye
Audio of SCt oral argument in Goldman v Weinberger
Peyote Wisdom 

The Hobby Lobby Case

In 2014, The Supreme Court considered a claim by Hobby Lobby, a closely-held corporation, that a provision of the 2010 Affordable Care Act requiring companies with over 50 employees to provide certain forms of contraceptive coverage violated the First Amendment Free Exercise Clause and Religious Freedom Restoration Act.  Owners of the company argued that requiring them to provide employees with a contraceptive that acted after the point of conception constituted a substantial burden on their free exercise of religion.  Writing for a 5 to 4 majority in Burwell v Hobby Lobby, Justice Alito found the requirement to be a violation of RFRA, but did not find it necessary to address the First Amendment issue.

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