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.
encounter with a Free Exercise Clause claim came when a Mormon
in the Utah Territory challenged his conviction under a federal
law. The Supreme Court rejected the appellant's claim that his
beliefs necessitated, and therefore excused, his violation of federal
The Court read the Free Exercise Clause as protecting religious beliefs,
not religious practices that run counter to neutrally enforced
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."
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.
mid-80s, the Supreme
Court, while still using heightened scutiny, began to take a more
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
enjoining Nebraska from enforcing a state law requiring photo
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,
began turning against Free Exercise claimants as the story continues:
The Free Exercise
Clause: Narrowing of the Test
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (Amendment 1)
Jonas Yoder, who successfully challenged Wisconsin's compulsory education law (LIFE).
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?