The Free Exercise Clause:
Past, Present, and Future

by Herbert W. Titus

Second:   The Smith Rule Restated, Applied, Attacked
Third:   Religious Freedom Restoration Act
Fourth:   Religious Pluralism v. Jurisdictional Principle


Eighty-eight years after the First Amendment became a part of the United States Constitution, the United States Supreme Court decided the case of Reynolds v. United States, 98 U.S. 145 (1879). For the next 82 years, the Reynolds case determined the meaning and application of the clause forbidding laws “prohibiting the free exercise of … [religion].”

Reynolds arose out of a prosecution for violation of the law prohibiting bigamy in the Territory of Utah. The defendant, a Mormon, claimed that he had married his second wife pursuant to a religious duty and, therefore, the statute as applied to him violated the Free Exercise Clause.

The Court rejected this contention. The Court began its analysis with a search for the meaning of religion. It acknowledged that the text of the First Amendment did not define the term. So, it launched an historical inquiry to determine its definition.

It found that definition in the history of the development of freedom of religion in America, which “culminate[d] in Virginia.” Id., 98 U.S. at 162-63. Relying upon the works of Madison and Jefferson, the Court defined the term in accordance with its original meaning.

First, it endorsed Madison’s proposition that religion defined those duties that “we owe to the Creator” outside “the cognizance of civil government.” From this general jurisdictional principle, the Court turned to Jefferson’s Preamble to the 1785 Virginia Statute for Establishing Religious Freedom for more specific guidelines:

In the preamble of this Act … religious freedom is defined; … after a recital “That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,” it is declared “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” Id., 98 U.S. at 163.

On the basis of these statements, the Court concluded that the Free Exercise Clause of the First Amendment deprived Congress of “all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Id., 98 U.S. at 164.

In the case before it, the defendant had obviously not been prosecuted for having a wrong opinion about polygamy; rather, he had been convicted of the act. Just because Congress had outlawed the act, and not the opinion, however, did not resolve the Free Exercise Clause issue. According to the Jefferson formula, approved by the Court, the Free Exercise Clause also protected some acts from the jurisdiction of Congress.

The question, then, before the Court was whether polygamy was an overt act against the peace and good order of society or just an act contrary to the peace and good order of the church. The Court sought the answer, first, in the common law.

“At common law,” the Court observed, “the second marriage was always void … and from the earliest history of England polygamy has been treated as an offense against society.” Id. But, the Court conceded, the common law governing marriage and prohibiting polygamy had been enforced in England’s ecclesiastical courts.

Did this mean that polygamy was an offense against the church only? The Court first noted that ecclesiastical courts had been given jurisdiction over civil, as well as church, matters. Then, it observed that, by the early 17th century a statute had been passed, making polygamy an offense “punishable in the civil courts.” This statute, the Court discovered, had been reenacted in all of the American colonies. Of particular significance to the Court was that Virginia had enacted the same statute in 1788, after the adoption of Jefferson’s Statute for Establishing Religious Freedom. Id., 98 U.S. at 165.

This history enabled the Court to conclude that “there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts ….” Id.

The Court, then, turned its attention to the institution of marriage, itself. It found that, while marriage was “by its very nature a sacred obligation,” it was also “in most civilized nations, a civil contract, and usually regulated by law.” Furthermore, the Court claimed, a nation’s law governing the marriage relationship was the primary determinant of the civil liberties of that nation:

[P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Id., 98 U.S. at 165-66.

On the basis of this survey and analysis, the Court concluded that the statute prohibiting bigamy in the territory of Utah was “within the legislative power of Congress.” Id., 98 U.S. at 166. While this was all the Court was required to do to dismiss the defendant’s Free Exercise claim, it went further to explain why it refused to apply the Free Exercise Clause to require an exception to the polygamy statute for religious conscientious objectors. The defendant in Reynolds had claimed that the Free Exercise Clause required an exception for those, like himself, who had taken two or more wives pursuant to a religious belief. This argument was dismissed by the Court as wholly illegitimate.

First, the Court said that such an argument, if allowed, would introduce “a new element into criminal law,” discriminating between offenders solely on the basis of their personal religious beliefs and subordinating even the laws prohibiting murder to individual religious beliefs.

Second, the Court maintained that to allow an argument based upon a subjective definition of religion would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id., 98 U.S. at 167.

In summary, the Court in Reynolds decided that religion was an objective term that distinguished, on the one hand, those matters that belonged exclusively to God, outside the jurisdiction of the State, and, on the other, those matters that remained within the authority of the state. Until 1961, no one on the Court would question these principles, but there would be some lively differences of opinion as to their application.

It was not until the 1940’s that the Court would have opportunity to apply the Reynolds doctrine, outside the context of the polygamy issue. {As for such cases, see Davis v. Beason, 133 U.S. 333 (1890).} Within the first four years of this decade, a number of cases involving Jehovah’s Witnesses would test the vitality of the 60-year old precedent.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court was faced with a statute that authorized a government official to withhold a permit to solicit funds if that official determined that the cause for solicitation was “not a religious one.” Id., 310 at 305.

Beginning with the Reynolds principle, that “belief” was wholly outside the cognizance of the civil authorities, the Court stated as its Free Exercise premise “the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views.” Id., 310 U.S. at 304. Presumably, these activities were within the area of “opinion” and immune from the jurisdiction of the state. Id., 310 U.S. at 303.

From this premise, the Court reasoned that no civil authority had jurisdiction to inquire into a person’s beliefs when that inquiry determined whether or not the person would be issued a permit to solicit funds. While the state had jurisdiction to protect the public from fraud, it did not have any authority to protect the public from non-religious beliefs:

[T]o condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what it is religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution. Id., 310 U.S. at 307.

From 1942 to 1944, a number of cases came to the Court testing the constitutionality of a license tax on “missionary evangelism.” Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1 943); Follett v. Town of McCormick, 321 U.S. 573 (1944). The license taxes at issue were of a general nature, levied on anyone who offered anything for sale. In the cases before the Court, the tax had been required of Jehovah’s Witnesses who made sales of religious literature incidental to their primary activity of preaching and proselytizing.

Justice William O. Douglas, writing for a sharply divided court, ruled that the license tax as applied to the Jehovah’s Witnesses was tantamount to the state’s levying a license tax upon the preaching of the gospel inside a church. Murdock v. Pennsylvania, 319 U.S. at 108-10. The state, Justice Douglas stated, had no more jurisdiction to levy a tax upon “the privilege of delivering a sermon” than it did upon “the privilege of carrying on interstate commerce.” Both were outside its jurisdiction. Id, 319 U.S. at 112-13.

Douglas conceded that had the Jehovah’s Witnesses been engaged in a “commercial venture” rather than a “religious” one, the tax would have been valid. Id, 319 U.S. at 110-111. The dissenters claimed just that. They asserted that the activities engaged in by the Jehovah’s Witnesses were primarily commercial in nature, and therefore, subject to the jurisdiction of the State. Id, 319 U.S. at 119.

It would be almost 20 years before the Reynolds doctrine would be tested again. In 1961, the Court upheld state Sunday closing laws to be within the jurisdiction of the State. Such laws, the Court ruled, were within the state’s power to provide a uniform day of rest for all citizens, relying, in part, on Reynolds. McGowan v. Maryland, 366 U.S. 420, 437-40, 450-51 (1961).

In a companion case, the Court denied that the Free Exercise Clause commanded that a religious Sabbatarian was entitled to an exception to the Sunday closing laws. Restating the formula set forth in Reynolds, the Court noted that the Sunday closing laws did not prohibit the religious Sabbatarian from honoring Saturday as a day of rest. Thus, the Sunday closing laws could not possibly infringe upon the Sabbatarian’s freedom of belief. Braunfeld v. Brown, 366 U.S. 599,603-05 (1961).

As for action, the Court repeated its holding m McGowan, that the State has jurisdiction “to provide a weekly respite from all labor … [by] set[ting] one day of the week apart from the others as a day of rest….” Id, 366 15 U.S. at 607. Having so ruled, the Court concluded that the Free Exercise Clause could not be construed in such a way as to require a religious conscientious objector exception lest the purpose of the uniform day of rest be thwarted. Id, 366 U.S. at 608-09.

Justice William J. Brennan filed a dissenting opinion in which he set forth an approach to the Free Exercise Clause that departed significantly from the Reynolds legacy. While he did not persuade his colleagues in 1961, he succeeded two years later in Sherbert v. Verner, 374 U.S. 398 (1963), an opinion that went largely unchallenged for the next 27 years.


From 1791 through 1961, the United States Supreme Court subjected claims under the Free Exercise Clause of the First Amendment to a jurisdictional test: Was the duty imposed by the law in question within or outside the authority of civil government?

If the duty was a “religious one,” that is, enforceable only by reason and conviction, then the Free Exercise Clause absolutely prevented the state from “prohibiting” its performance. This absolute immunity from state power could not be com- promised even upon a showing that the prohibited action threatened the peace of the community.

The leading case was Cantwell v. Connecticut, 310 U.S. 296 (1940). In Cantwell, the defendant – a Jehovah’s Witness – claimed that the Free Exercise Clause prohibited his conviction for having breached the peace. At trial, the prosecution had introduced evidence that the defendant had threatened the public peace by his aggressive proselytizing activities on a public sidewalk. The Supreme Court reversed. Dissemination of one’s religious views, the Court concluded, was an activity immune from civil rule, and therefore, protected by the Free Exercise Clause.

On the other hand, if the duty was a “civil” one, that is, enforceable by force or violence, then the Free Exercise Clause did not except any one from obedience to the law, even if the law required disobedience to a religious precept or practice.

The leading case was Reynolds v. United States, 98 U.S. 145 (1879). In Reynolds, the defendant in a criminal prosecution for violation of a statute prohibiting bigamy claimed that, because he had married his second wife out of obedience to a religious command, the Free Exercise Clause protected him from such prosecution.

The Court concluded that marriage was a “civil contract” and that civil government had authority to set the standards of eligibility to enter into that contract.

Having resolved the jurisdictional question in favor of the State, the Court refused even to consider a claim that the Free Exercise Clause carved out a religious exception.

In 1961, the Court applied this same jurisdictional test when it ruled that a Sabbatarian could not force a religious exemption to a state’s Sunday closing laws on the ground that he was required by his religious belief to close his business on Saturdays. Having determined that the state had jurisdiction to impose a uniform day of rest, the Court would not allow any one to use the Free Exercise Clause to carve out an exception. Braunfeld v. Brown, 366 U.S. 599 (1961).

Just two years later, however, the Court repudiated its traditional jurisdictional test in favor of a balancing formula that would monopolize Free Exercise jurisprudence until 1990.

The Balancing Test: Invented

Justice William J. Brennan, Jr., laid the groundwork for change in his concurring and dissenting opinion in the 1961 Braunfeld case. Conceding that a state could require its people to rest “from worldly labor” one day a week, Justice Brennan nevertheless insisted that the Free Exercise Clause guaranteed to an Orthodox Jew the right to rest on Saturday, rather than Sunday as the law prescribed. Id., 366 U.S. at 611.

Justice Brennan maintained that the Free Exercise Clause protected a person from having to suffer “substantial competitive disadvantage” occasioned solely because the state had not respected his religious conscience. Only if the state had a “compelling…interest” or an “overbalancing need” could it, wrote the justice, impose this kind of economic burden upon a religious conscientious objector. Id., 366 U.S. at 613-14.

Two years later, Justice ·Brennan succeeded in persuading four of his colleagues to join him in ruling that the State of South Carolina could not deny unemployment benefits to a Sabbatarian solely because she refused, out of religious conscience, to work on Saturdays.

In Sherbert v. Verner, 374 U.S. 398 (1963), the law of the State of South Carolina denied unemployment benefits to anyone who for personal reasons was unemployed. Such benefits were available only if one was “involuntarily” unemployed, that is, out of work because of the “inability of industry to provide a job” not because of “personal circumstances, no matter how compelling.” Id., 374 U.S. at 418-19 (Harlan, J. dissenting).

Pursuant to this policy, state authorities ruled that a Seventh-Day Adventist lady had made herself “unavailable for work” for personal reasons when she refused employment that required her to work on Saturdays.

Justice Brennan ruled that this action denied the lady’s constitutional right to free exercise of her religion. In doing so, Justice Brennan introduced a new two-step analysis to Free Exercise jurisprudence. He narrowed the category of cases in which the jurisdictional test was to be applied to those involving “regulations of religious beliefs, as such,” to regulations discriminating against “religious views” or to regulations inhibiting “the dissemination of particular religious views.” Id., 374 U.S. at 402.

Outside the areas of religious belief and profession of those beliefs, Justice Brennan conceded that the civil authorities had general jurisdiction over “conduct or action,” provided that the proscribed behavior posed “some substantial threat to public safety, peace or order.” Id., 374 U.S. at 402-03. As for these cases, Justice Brennan devised a new three-part balancing test.

First, Justice Brennan examined the religious practice to ascertain whether it posed a “substantial” threat to the public safety, peace, and order. In Sherbert, he quickly concluded that conscientious objection to Saturday work did not pose any such dangers. Id., 374 U.S. at 403.

Next, Justice Brennan asked if the denial of unemployment benefits “imposed any burden on the free exercise of appellant’s religion.” He concluded in the affirmative. By withholding benefits, the South Carolina policy requiring appellant to be available for Saturday work “pressure[d]” her to “abandon … one of the precepts of her religion.” This pressure, Justice Brennan contended, “puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” Id., 374 U.S. at404.

Finally, having determined that the South Carolina statute constituted a “substantial infringement of appellant’s First Amendment right,” Justice Brennan called upon the State to demonstrate that it had “some compelling state interest” to do so. All the State could muster on its behalf was “a possibility … of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work ….” Such a “possibility,” Justice Brennan asserted, was hardly compelling. Id., 374 U.S. at 407.

Had Justice Brennan followed the Reynolds formula, as did Justice John Marshall Harlan in his dissent, he would have addressed first whether the Free Exercise Clause permitted the State to establish a welfare program designed to protect its people from the hazard of involuntary employment. Had he answered this question in the affirmative, as Justice Harlan did, then the Free Exercise claim would have been rejected, as had been the case with Sabbatarian’s plea to be exempt from the Sunday closing laws decided just two years before. Id., 374 U.S. at 418-21.

The Balancing Test: Revised

Nine years after Sherbert v. Verner, the Court chose to discard the jurisdictional test altogether in favor of a revised balancing test, the centerpiece of which featured the weighing of the interest of the individual to exercise his religious conscience against the interest of the state in the public safety, peace and order. Only if the interest of the state was found to be compelling could the individual’s religious conscience be nullified.

In Wisconsin v. Yoder, 406 U.S. 205 (1972), some Old Order Amish parents were convicted of violating Wisconsin’s compulsory school attendance law for having failed to send their children to school after the eighth grade. The parents claimed that this conviction violated their Free Exercise rights. They bottomed their claim on the ground that their purpose in keeping their children out of high school was to preserve their religious faith:

The trial testimony showed that respondents believed, in accordance with the tenets of the Old Order Amish communities general, that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. Id., 406 U.S. at 209.

Had the Court applied the traditional jurisdictional test, even as it had been preserved in Sherbert, it would have had

to reverse the conviction. Clearly, the Old Amish Order parents had disobeyed the compulsory attendance law in order to disseminate their religious beliefs to their children. That would have been absolutely protected by the Free Exercise Clause, no matter what showing the State might have made that such actions threatened the peace and good order of the community.

But the Court did not apply the traditional jurisdictional test. Rather, Chief Justice Warren Burger presumed state jurisdiction even over the “religious education” of children, and subjected the “State’s interest in universal education” to “a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause ….” Id., 406 U.S. at 213-14.

While the Court incorporated into its analysis all of the elements of the three-part test devised by Justice Brennan in Sherbert, it revised it significantly. First, the Court spelled out the specific criteria whereby it would determine if a claim was “rooted in religious belief.” If a claim was based solely on personal or philosophical views, the Court ruled, it would not qualify for protection under the Free Exercise Clause.

The Court found, however, that the Old Amish position on education arose out of a “deep religious conviction … in response to a literal interpretation of the Biblical injunction … be not conformed to this world …’ [which] pervades and determines virtually their entire way of life” and that this way of life had endured relatively unchanged “for centuries.” Thus, the Court concluded that the objection qualified for protection under the Free Exercise Clause. Id., 406 U.S. at 215-17.

Having so decided, the Court turned to the second part of the test, namely, whether the compulsory attendance law had imposed a substantial burden on the Old Amish way of life. The Court found not only that the burden of criminal liability was substantial, but that exposure to “formal secondary education would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.” Id., 406 U.S. at 217-19.

Finally, the Court concluded that this substantial interference with the Old Amish way of life “unduly burden[ ed]” their religious beliefs without proof of any overriding state interest to do so. In this portion of its opinion the Court emphasized again and again that the Old Amish were law-abiding, “self-reliant and self-sufficient participants in society.” Id., 406 U.S. 221, 222, 224, 225,226-27,229. Hence, the Court concluded that the State’s goals to produce a responsible citizenry through formal education through the high school years was in no way threatened by Old Amish drop-outs. Nor was there any evidence that the parents abused their children by taking them out of high school. Id. , 406 U.S. at 229-36.

The Balancing Test: Diluted

Ten years after Yoder, another Old Amish plaintiff would not find the Court as hospitable, even though the Old Amish had remained just as law-abiding, self-reliant, and self-sufficient.

In United States v. Lee, 455 U.S. 252 (1982), an Old Order Amish farmer and carpenter sued for a refund of social security and unemployment taxes that he had paid under protest, claiming the protection of the Free Exercise Clause. He supported his claim with proof that “the Amish religion not only prohibits the acceptance of social security benefits, but also bars all contributions by Amish to the social security system.” Id., 455 U.S. at 255.

This time the Court had no time for an inventory of the virtues of the Old Amish way of life. Nor did it pause even to note the substantial burden that imposition of the social security tax would have on the Amish religious conscience. Rather, the Court vaulted over the first two prongs of the three-part test, so carefully followed in Yoder, to an assessment of the government’s interest in near universal participation in “the largest domestic governmental program in the United States today, distributing approximately $11 billion monthly to 36 million Americans.” Id., 455 U.S. 258.

“The design of the program,” the Court pronounced, “requires support by mandatory contributions from covered employers and employees.” Such participation, the Court warned, was “indispensable to the fiscal vitality of the social security system.” Id., 455 U.S. 258- 59.

To allow anyone to opt out, even for reasons of religious conscience, the Court continued, would not only threaten the integrity of the social security tax, but all taxes:

There is no principled way … to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have similarly valid claim to be exempt from paying that percentage of the income tax. Id., 455 U.S. at 260.

In the next 8 years after Lee, the Supreme Court deferred to the government in every Free Exercise case, except in the area of unemployment compensation. See Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987); Frazee v. Illinois Department of Employment Security, 489 U.S. 136 (1989).

In 1986, the Court turned down a plea from an orthodox Jewish Air Force officer protesting his having been disciplined for wearing a yarmulke. Goldman v. Weinberger, 475 U.S. 503 (1986). In the same year, the Court refused to exempt religiously motivated parents from a federal law requiring their two-year old daughter to have a social security number as a condition precedent to their receiving ADC benefits. Bowen v. Roy, 476 U.S. 693 (1986).

In 1987, the Court rejected a Muslim prisoner’s challenge to a prison policy preventing him from attending a weekly congregational service commanded by the Koran. 0 Lone v. Estate of Shabazz, 482 U.S. 342 (1987). One year later, the Court turned down an effort by various American Indian tribes to save their sacred religious grounds from a United States Forest Service plan to permit timber harvesting and road construction. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S.439 (1988).

In each of these cases, the Court gave short shrift to the religious claim and the significant burden imposed on the dissenting religious adherent. Justice Sandra Day O’Connor’s opinion in Lyng was typical. She admitted that carrying out the Forest Service plan “could have devastating effects on traditional Indian religious practices,” but she ruled:

… [The] incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to the religious beliefs [do not] require government to bring forward a compelling justification for its otherwise lawful actions. Id., 485 at 450-51.

And in all but three of the four cases the insensitivity of the majority to the significant burdens imposed on the religious dissenters, brought Justice Brennan, the architect of the compelling interest approach, to protest in dissent. His opinion in Lyng was typical:

… [T]he Court today refuses even to acknowledge the constitutional injury respondents will suffer …. Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land …. land is itself a sacred, living being … [ and} like all other living things, is unique, and specific sites possess different spiritual properties and significance … For respondent Indians, the most sacred of lands is the high country where, they believe, prehuman spirits moved with the coming of humans to the Earth …. Id., 485 U.S. at 459, 460-61, 467-68.

Here the threat posed by the desecration of sacred lands that are indisputably essential to respondent’s religious practices is both more direct and more substantial than that raised by a compulsory school law that simply exposed Amish children to an alien value system.

The Balancing Test: Snubbed

Two years after Lyng, Justice Antonin Scalia dropped a bombshell in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990). Writing for a slim majority of five, Justice Scalia jettisoned the compelling interest test in favor of a return to the jurisdictional test of Reynolds.

He reaffirmed that the Free Exercise Clause absolutely precludes any government exercise of jurisdiction over belief or profession of belief. He extended this constitutional immunity beyond “belief and profession” to “the performance of (or abstention from) physical acts.” He then proceeded to name a few acts that he believed were constitutionally outside the jurisdiction of the government:

[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. Id., 494 U.S. at 877.

But the case before the Court, Justice Scalia noted, was one of a different order. It involved an Oregon law prohibiting drug use, jurisdiction over which had been conceded to the state. The Free Exercise claim put to the Court was that those who used a drug, here peyote, for religious purposes were constitutionally exempted from its reach.

Justice Scalia rejected this claim as illegitimate. First, he noted that the text proscribes only those prohibitions where “the exercise of religion is … the object,” but not “generally applicable and otherwise valid” laws that only incidentally affect religious faith and practice. Id., 494 U.S. at 878.

Second, he claimed that the Court’s own precedents “have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” He then rehearsed a number of cases from Reynolds to Braunfeld, to support that proposition. Id., 494 U.S. at 878-80.

Third, he attempted to distinguish a number of cases, such as Wisconsin v. Yoder, that did not fit this pattern. He did so by emphasizing that the Free Exercise claim had been pressed into service in areas that were constitutionally protected by other clauses of the constitution, which was not the case here. Id., 494 U.S. at 881-82. Therefore, Justice Scalia refused to apply the balancing test applied in Yoder.

As for those cases where the Court had applied the balancing test where only the Free Exercise Clause had been invoked, Justice Scalia noted that the Court had already confined such analysis to the unemployment field. Id., 464 U.S. at 882-84. Hence, he concluded that the test would not be applied to a case involving a generally applicable criminal law.

Justice Scalia maintained that the balancing test had to be so limited lest it “make an individual’s obligation to obey … [the] law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling’ -permitting him, by virtue of his beliefs, to become a law unto himself.”‘ Id., 494 U.S. at 884- 85.

From this observation, Justice Scalia launched into a wide-ranging critique of the “compelling state interest” test. Calling it a “constitutional anomaly,” if it were applied in such a way as to create a “private right to ignore generally applicable laws,” he warned that such a right “would be courting anarchy.” Id., 494 U.S. 886, 888.

The only safeguard against this threat, he argued, would be for courts to sit in judgment over the nature and importance of the religious precept or practice relied upon. This, Justice Scalia, found unthinkable for it would, in his opinion, thrust the civil arm into matters of religious faith and practice which the religion clauses had removed from its reach. Id., 494 U.S. at 887.

Calling the majority opinion a dramatic departure from “well-settled First Amendment jurisprudence,” Justice Sandra Day O’Connor reiterated, on behalf of her three concurring colleagues, continued faith in the compelling state interest test and its balancing formula.

Justice O’Connor’s critique focused primarily upon Justice Scalia’s claim that the Free Exercise Clause only prohibited laws directly targeting religious practices:

… [F]ew states would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. Id., 494 U.S. at 894.

Justice O’Connor noted, however, that just because “a person’s right to free exercise has been burdened … does not mean that he has an absolute right to engage in the conduct.” But it does mean that the government must furnish “a compelling state interest and … [a] narrowly tailored [means] to achieve that interest” in order “to justify any substantial burden on religiously motivated conduct.” Id.

Justice O’Connor then asserted that the Court had no other choice than to use a pragmatic “case-by-case” tool lest governments ignore the impact that their generally applicable laws might have on minority religious sects. Id., 494 U.S. at 897-900.

Prompted by the O’Connor critique and by fears that the abandonment of the Court’s balancing test would seriously undermine religious freedom in America, an unusual coalition of conservative Christian activists, liberal civil liberties advocates, and over one hundred constitutional law scholars filed a petition for rehearing. “Diverse Coalition Asks Supreme Court to Rehear Peyote Case,” Religious Freedom Alert II (June 1990). On June 4, 1990, the Court denied the petition.

This denial set the stage for the next chapter in the history of the Free Exercise Clause, featuring continued conflict over the meaning of the Free Exercise Clause both on and off the Court and, most significantly, in Congressional enactment of the Religious Freedom Restoration Act.

Second:   The Smith Rule Restated, Applied, Attacked
Third:   Religious Freedom Restoration Act
Fourth:   Religious Pluralism v. Jurisdictional Principle


*     Copyright © 1995, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 2, Nos. 5-11 (1995). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.