free-exercise-clause

Analysis of the Free Exercise Clause in the First Amendment

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The Free Exercise Clause states that Congress cannot make laws “prohibiting the free exercise” of religious beliefs. The clause is part of the Bill of Rights, ten constitutional amendments that listed rights the federal government must protect. It was a natural outgrowth of a long debate about religious freedom in the Thirteen Colonies, where some colonies restricted religion while others, such as Virginia, enabled religious freedom. Founding Fathers like Patrick Henry and Thomas Jefferson advocated for religious freedom, which was eventually instated in the First Amendment. 

The plain English interpretation of the Free Exercise Clause is that Congress may not pass laws that stop citizens from practicing their religion. However, the Supreme Court has interpreted this clause to allow some limitations. The central question for interpreting the clause is to what extent it protects religious actions considered harmful to society. In the case Reynolds v. United States, the Supreme Court decided that, while a law may not regulate religious beliefs, it can regulate actions that result from those beliefs. The Supreme Court revised the rules in Wisconsin v. Yoder to limit laws that regulate religion to situations where the public interest is “compelling,” meaning it must be absolutely necessary to protect the state or citizens. Further laws and cases have added that regulations on religious actions must use the “least restrictive means,” limiting religious expression as little as possible even if that makes enforcing laws harder. The result of these interpretations is a compromise between total adherence and disregard for the Free Exercise Clause

The debate surrounding the Free Exercise Clause reflects multiple themes from our class and throughout history. The American Constitution, including    a vision of religious tolerance developed by European Enlightenment thinkers like John Locke and Voltaire demonstrates history’s  interconnectedness. The clause also shows how laws reveal values, similar to how the Manden Charter in Mali provided a lens into that society. Finally, the Free Exercise Clause demonstrates the complexities of dealing with  the “Other,” protecting minority rights in the Constitution but allowing old white men with power to limit those protections through court cases.

Personally, when it comes to the Free Exercise Clause, I think both abolishment or literal interpretation would be dangerous. Without the clause, the majority could dictate the expression of beliefs of minority groups. A literal interpretation, however, would let people use religion as an excuse and make it impossible to protect society. The only solution is a compromise as the court has attempted to achieve, but it is challenging to find the perfect balance. This difficulty leads to the Supreme Court occasionally allowing unjust violations, like upholding President Trump’s “Muslim Ban” against many majority Muslim countries. It also sometimes allows religious practices that harm people, such as making it legal for employers to deny full healthcare due to religious beliefs in the case Burwell v. Hobby Lobby Stores. While compromises may be complicated and lead to some bad decisions, finding a balance is necessary to create a functioning democracy.

The Free Exercise Clause

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The Free Exercise Clause in the Constitution stems from freedom sought by early American colonists who left religious persecution in Europe for a place where they would be free to practice their faith without interference from the government or established churches. The Massachusetts Bay Colony, founded by the Puritans, is one such example. The Founding Fathers recognized the importance of religious freedom and codified the right of individuals to freely express their beliefs, worship as they wished, and organize religious communities without government interference in the Constitution. In 1791, the “Free Exercise Clause” was included in the First Amendment of the Bill of Rights and its intent was to ensure that the government would not establish a national religion or impede the exercise of religious freedom by its citizens. 

The Free Exercise Clause protects citizens’ rights to: practice religious beliefs without government interference, follow their religious convictions, participate in religious rituals, attend religious services, and express their faith without fear of persecution or discrimination. What the clause does not specify is when the government may limit the exercise of religious freedom and thus leaves room for interpretation. The Supreme Court established a precedent that the government may impose restrictions on religious practices if they serve a compelling governmental interest and are applied in a neutral manner.

In Reynolds v United States (1878), the Supreme Court ruled against the practice of bigamy and found that free exercise protects belief but not all conduct. “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” In Cantwell vs Connecticut (1940), the Supreme Court found that state law requiring a permit for religious solicitation violated the Free Exercise Clause. Cantwell established that the government must generally allow individuals to freely exercise their religious beliefs without unnecessary restrictions. Citing Reynolds, the Court emphasized that “[c]onduct remains subject to regulation for the protection of society.”

In Employment Division v. Smith (1990), the Court found that free exercise did not relieve people of the obligation to comply with a “valid and neutral law of general applicability.”  Reacting to that decision, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, providing religious exemptions from laws that place a “substantial burden” on religious exercise unless the government demonstrated a “compelling interest.” Relying on RFRA, the Supreme Court ruled in Burwell v Hobby Lobby (2014), that Hobby Lobby was exempt from a law that required health insurance plans to cover abortion-inducing medications.

In many ways, the Constitution’s Free Exercise Clause was the culmination of the successful struggle for religious and personal freedom that compelled people to emigrate from Europe and found the thirteen colonies. Ideals such as the freedom of religion and the individual being entitled to natural rights, even when governed by a social contract, are exemplified in this clause and served as catalysts for the drafting of the United States Constitution.  

 

Maddy Kim’s Constitution Project

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According to the Establishment and Free Exercise Clauses in Amendment I: the federal government will not have a state religion, or support or restrict any religion or religious practice. In the original articles, Article 6, Section 3 provides the only reference to religion and prohibition of a religious test for holding office.

 

The Establishment Clause sought to address the religious tyranny of the British. During England’s reign over the colonies, the Church of England legally required southern colonists to pay religious taxes and often attend church services. Some scholars interpret the clause as a check on religious tyranny. Additionally, due to most of the framers being Deists, the meaning of the clause based on the intentions of the framers indicates that the Establishment Clause aims to avoid persecution. Other scholars assert that the clause is a co-guarantor of religious freedom, designed to reduce the role of religion in American life, and promote the free practice of a variety of religions. These interpretations are two of a variety that have been used in some of the Supreme Court’s best-known Establishment Clause based decisions. In Engel v. Vitale (1962), the Court deemed it unconstitutional for public school children to be led in prayer or read from the bible as the government had no business drafting any formal prayers for any part of its population. 

 

The Free Exercise Clause states that Congress will not prohibit the free exercise of a religion. The clause was responding to the fact that much of the population of colonial America consisted of immigrants and oppressed peoples who sought to escape religious persecution and regarded the protection of religious exercise an inalienable right. The freedom to worship in accordance with an individual’s belief was widely supported by many of the American population. The Free Exercise Clause has been interpreted as a claim that religious liberty is equal liberty, and also that free exercise provides necessary protection for diversity and freedom. As explained by Frederik Gediks, a professor of law, the guarantee of free religious exercise was to prevent government discrimination or abuse on the basis of religion. Others maintain that this clause protects human diversity. Though the clause may seem very short and simple, there have been a variety of supreme court cases involving the Free Speech Clause that contradict each other. When discussing religious exemptions including Amish and Jewish practices, the Supreme Court has changed its perspective multiple times (as explained in my video!).

Shreya Ranjan- The Establishment and Free Exercise Clauses

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The Establishment and Free Exercise Clauses

Created by James Madison as part of the First Amendment, the Establishment and Free Exercise Clauses are now crucial parts of the American right to freedom. However, they weren’t always considered this way: America, since its founding, has been predicated on the concept of religious freedom. Indeed, many of the original colonies had been composed of immigrants who had fled from Europe to escape religious persecution, such as the Quakers in Pennsylvania.

The Establishment and Free Practice Clauses were created to ban the implementation of an official national religion (it’s important to note that under the Establishment Clause, states were still allowed to have official religions, and some continued to do so until the 1830s (1)), to prevent congress from unfairly favoring one religion over another, and to guarantee citizens the ability to practice their respective religions.

The founders included these clauses to prevent the tyranny which would inevitably form out of the union of church and state, as well as to guarantee what was considered the “inalienable right” of citizens to free religious practice. Interpretations of the Free Exercise and Establishment Clauses have often been specific, especially within the rulings of the Supreme Court: the juxtaposition of cases such as Kennedy v Bremerton School District and Santa Fe School District v Doe makes these differences clear.

Interestingly enough, both cases involved similar pretenses; Kennedy sued the Bremerton School District for violating his Free Practice Clause rights after the District ordered him to stop praying before football games, whilst the Santa Fe School District was sued for organizing student led prayers over loudspeakers before football games and thus violating the Establishment Clause.

In the case of Kennedy, the Supreme Court sided with the plaintiffs, writing that since Kennedy’s prayers were non-mandatory and discreet, they did not violate the Establishment Clause. However, the court noted that the District’s order was in violation of the Free Exercise Clause. Nearly 20 years earlier, the court ruled against the Santa Fe School District, saying that prayers conducted over the loudspeaker were in violation of the Establishment Clause since they were organized and affiliated with the public school and, therefore, the government.

The distinction between government affiliated prayer and private prayer lends an interesting weight to these clauses, as the dilemma of separation between church and state has fascinated society for many years. Paralleling the Establishment Clause was the dechristianization of society during the French Revolution, wherein symbols of religion were removed throughout France. Interestingly enough, these sentiments continue today into modern French society— oftentimes, steps taken to eradicate the symbols of religion in public society have been targeted and Islamophobic (2).

This targeting raises the question of where the line should be drawn to separate government-affiliated and private religious symbolism: in the case of Doe, there were arguments that since the prayer was student-led, it did not violate the First Amendment. However, general consensus does seem to indicate that prayer conducted over a loudspeaker is considered public and, therefore, was in violation of the Establishment Clause.

 

Footnotes:

                      (1) Marc A. Clauson, “Religious freedom since the First Amendment and early state constitutions,” Constituting America, accessed June 1, 2023, https://constitutingamerica.org/religious-freedom-since-first-amendment-early-state-constitutions-guest-essayist-marc- clauson/#:~:text=Massachusetts%20was%20the%20last%20state,well%20as%20the%20national%20government.

                     (2)  Rachel Donadio, “Why Is France so Afraid of God?,” The Atlantic, November 22, 2021, accessed June 1, 2023, https://www.theatlantic.com/magazine/archive/2021/12/france-god-religion-secularism/620528/.