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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 First Amendment: Free Speech and Freedom of Speech

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In the constitution, the First Amendment in the Bill of Rights protects Americans freedom of speech. When the Bill of Rights was written in 1789, the American colonies had recently revolted against British rule. Previously, the British Monarchy had controlled the press and saying bad things about the British crown was a crime one that could be punished by imprisonment or death. However, in writing the Constitution, and adapting it with the Bill of Rights, the founding fathers attempted to enshrine important ideals of democracy — that people should be free to say what they wish and the press should be able to criticize public officials — with the First Amendment.

It is important to note that this does not apply to private companies, employers, or landowners. While the amendment refers only that Congress may not restrict freedom of speech, the Supreme Court has ruled that this applies to the entire Federal government. Moreover, in the case of Gitlow v. New York (1925) the Supreme Court ruled that the First Amendment also restricts the power of states and local governments. The protections of the First Amendment are not unilateral, however, and there are a few hotly debated exceptions of when free speech is, or is not, protected. Government officials, for example public school teachers, can be punished for certain kinds of speech not endorsed by the government.

Filters not based on the content of a message but rather can be based on some other quality such as noise or other kinds of disruption are sometimes not restricted, like in the case of Turner Broadcasting Inc. v. FCC (1994) but this is on a varying case by case basis. Finally, the Supreme Court has ruled that the government can restrict “low” speech. Defamation, threats, obscenities, and misleading advertising all constitute “low” speech that the government regulates.

The Supreme Court is extremely loath to use “low” speech. For example, the 1978 case of National Socialist Party of America v. Village of Skokie was one of the most controversial decisions in the history of the United States Supreme Court, wherein the judges defended the freedom of a neo-Nazi group that aimed to demonstrate in Skokie, Illinois. The NSPA argued that the Illinois Supreme Court violated the free speech clause of the First Amendment by restricting their right to protest. Today, the First Amendment is still a matter of hot debate.

An example of an important issue regarding the modern day application of the First Amendment arises from campaign donations in politics. The Supreme Court has held that political contributions are “speech” and are thus protected by the First Amendment. That said, the Supreme Court has ruled the government is allowed to regulate contributions if there is a risk of undue influence in Buckley v. Valeo (1976) and in McConnell v. The Federal Election Commission (2003) the Court ruled that the government could regulate corporation’s spending on political expenditure. All in all, these issues of free speech and the questions of what kinds of expression the government should, and should not, restrict extend into the present day and can have serious ramifications on everyday life, elections, and more. 

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.  

 

Josie Hsieh – Free Speech in the First Amendment

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Ratified on December 15, 1791, the Freedom of Speech Clause was imposed as part of the Bill of Rights, the first ten Amendments to the Constitution. The clause, which was written alongside laws disclosing matters of establishing and exercising religion and the right to petition the government, is most basically understood to state that that the government cannot convict people or organizations on the basis of what they say or write. However, the First Amendment only protects citizens against government officials and agencies, not private corporations or individuals. Free speech is not a limitless right, but the Constitution never clearly defines its boundaries.

The ambiguity in the use of the terms “speech” and “press” have made the amendment susceptible to controversy, as the vast scope of interpretation of these regulations have resulted in political backlash as to what should be deemed acceptable or not. “Speech” also applies to circumstances of the Internet and most forms of expression. Symbolic speech is also protected, as seen in West Virginia State Board of Education v. Barnette (1943) which determined that forcing students to recite the pledge of allegiance violated their first amendment rights, and Texas v. John (1989) that determined that flag burning was not prohibited in the Constitution, and could not be punished.

In most circumstances, decisions on free speech are made based on past court cases and the history of governmental regulation. Political and symbolic speech are regularly safeguarded under the Constitution, as is hate speech. However, over time, specific categories were classified as “low-value”, establishing them as unprotected by the First Amendment. These categories have been deemed non-essential to expression of ideas, but what is within these categories is still subject to debate. Schenck v. The United States (1919) was the first Supreme court case to establish a “low value” category under the conditions of speech that created “clear and present danger”, after Schenck persuaded people to not join the war. 

Following that, Chaplinsky v. New Hampshire (1942) deemed “fighting words,” face-to-face personal insults which are expected to instigate immediate fights, unprotected, although it is unclear whether Chaplinsky’s insults could actually incite a fight today. Defamation was instated as unprotected in 1964, after the New York Times was charged for containing minor inaccuracies in an ad about a public figure in New York Times v. Sullivan. Obscenity was initially established as unconstitutional under the First Amendment in Roth v. The United States (1957), claiming that Roth’s mailing of obscene content was “without redeeming social importance.”

Deciding these cases depends on whether one wants to uphold individual liberty or social order. Opinions on what should or is constituted as “low value” speech are still debated in the twenty-first century as the rise of new technology gives people the opportunity to say anything anonymously or with little consequence. 

 

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/.

The Free Exercise Clause and Arguments for and against Religious Exemptions

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The Free Exercise clause is a clause in the First Amendment to the United States Constitution. This amendment was ratified alongside nine others. These first ten amendments are collectively known as the Bill of Rights. By providing the people with guaranteed natural rights in these amendments, the government hoped to appease opposition to the Constitution on the grounds that it would give the federal government far too much power. The Free Exercise clause is a section of the First Amendment that protects freedom of religion. Many early Americans viewed religious freedom as one of the most important and fundamental natural rights because several American colonies had been created by religious groups fleeing from persecution in Europe.

By using the specific phrasing of “free exercise of religion,” Congress, which wrote the Bill of Rights, made it clear that it was protecting not just religious convictions but also practices. Using this clause as their argument, many religious groups have sought to receive exemptions from laws on the grounds that they interfere with their religious convictions or practices. In different time periods, the Free Exercise clause has been interpreted differently in order to either permit or disallow religious exemptions. In 1972, the Supreme Court decided in the case Wisconsin v. Yoder that governments could not apply laws that go against religious beliefs to the holders of said beliefs unless they had a “compelling interest” to do so. This ruling allowed for religious exemptions to occur for many laws. However, in 1990, the Supreme Court ruled in Employment Division v. Smith that religious groups could not be exempted from religiously neutral laws that disallow religious practices or enforce doctrine contrary to religious classes.

One large reason for this ruling was the fear that by being exempt from laws just because of religious beliefs, people would be above the law. The argument of whether or not to grant religious exemptions is one of the greatest areas of dispute about the Free Exercise clause. To argue in favor of religious exemptions, it could be said that in most cases, awarding these exemptions results in practically no detriment to anyone and therefore it would only be a benefit to religious individuals who want to comply with their beliefs. On the other hand, James Madison, one of the most influential writers of the Bill of Rights and Constitution, wrote that while people should not be mistreated on account of their religion, no special privileges should be given for religious beliefs. Based on this information, an argument can be made that the intended meaning of the Free Exercise clause was not to permit religious exemptions, and therefore none should be given.

While it may be true that the Framers may not have intended for the Free Exercise clause to be interpreted in a way that allows for religious exemptions, the manner in which they wrote it seems to evoke the idea. Additionally, when a religious exemption does not cause any harm to other people, there is no reason not to support it. It is simply ridiculous to say that no one should get religious exemptions even when they cause no harm to anyone else. James Madison may have thought otherwise, but it is perfectly fair to give religious exemptions in cases where there are no adverse effects.