The Free Exercise Clause:
Past, Present, and Future

by Herbert W. Titus

First:   Free Exercise Clause From 1791-1990
Third:   Religious Freedom Restoration Act
Fourth:   Religious Pluralism v. Jurisdictional Principle


On April 17, 1990, the United States Supreme Court, in a 6 to 3 decision, ruled that the First Amendment Free Exercise Clause did not require a state to exempt the sacramental use of peyote from its general laws prohibiting the use of certain drugs. Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990).

To reach this result, Justice Antonin Scalia applied a jurisdictional test that had initially been framed by the Court 111 years before:

We 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 … We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 … (1879) where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. Id., 494 U.S. at 878-79.

By so ruling, Justice Scalia refused to submit a law prohibiting the general use of certain drugs to the compelling state interest test that had been utilized by the Court in most Free Exercise cases since 1963. Justice Scalia claimed that this test- whereby the interest in protecting an individual’s religious conscience is weighed against the interest of the state – was “inapplicable” to a free exercise challenge to “an across-the-board criminal prohibition on a particular form of conduct.” Id., 494 U.S. at 884.

Justices Sandra Day O’Connor, William Brennan, Jr., Thurgood Marshall, and Harry Blackmun disagreed. They maintained that the Free Exercise Clause demanded that religiously- motivated conduct be protected in every case “by requiring the Government to justify any substantial burden on … [such] conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Id., 494 U.S. at 894.

The four justices preferred this balancing formula over the majority opinion’s “categorical rule” because the balancing approach was “more consistent with our role as judges to decide each case on its individual merits” and more “sensitive to the facts of each particular claim.” Id., 494 U.S. at 899.

Justice Scalia countered this assertion, noting that the balancing formula invited judges to assess the importance of particular religious convictions, an area long considered outside the jurisdiction of civil authorities. Id., 494 U.S. at 887.

In addition, he cautioned that requiring the government to prove a compelling interest in order to override an individual’s conscience “would be courting anarchy.” Id., 494 U.S. at 886, 888.

Unpersuaded, the minority justices insisted that “the compelling interest test reflected the First Amendment’s mandate of preserving religious liberty in a pluralistic society.” Id., 494 U.S. 903. Moreover, they asserted, abandonment of the compelling interest doctrine would sap the Free Exercise Clause of its vitality by limiting its coverage to “only the extreme and hypothetical situation in which a State directly targets a religious practice.” Id., 494 U.S. at 894.

Two and one-half years later, however, what the dissenters characterized as an “extreme and hypothetical” case actually came before the Court. The City of Hialeah, Florida enacted an ordinance prohibiting religious sacrifices of animals. The City Council openly acknowledged that it had enacted the ordinance in response to plans to establish in Hialeah a “church” that practiced the ritual of animal sacrifice. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. –, 124 L.Ed. 2d 472 (1993).

The Court unanimously held that the city ordinance violated the Free Exercise Clause. Justice Anthony Kennedy wrote the Court opinion, in which he applied the Smith jurisdictional test. He found the “object” of the city ordinance to be the religious sacrifices of animals, not the prevention of cruelty to animals. Having determined that the law was neither “religiously neutral” nor “generally applicable,” Justice Kennedy found that the city ordinance had singled out a religious practice for condemnation, and therefore was presumptively an unconstitutional prohibition of the free exercise of religion. Id., 124 L.Ed. 2d at 490-98.

Justice Kennedy invoked the compelling state interest test, but he did so for a very limited purpose, namely, to insure that the Court had correctly concluded that the purpose of the ordinance was not religiously neutral. Id., 124 L.Ed. 2d at 498-500.

Only two justices, Blackmun and O’Connor – both of whom dissented in Smith – refused to apply the jurisdictional test in Hialeah. Justice Blackmun reiterated his view that “Smith was wrongly decided,” and proceeded to analyze the case under the compelling state interest test:

When the State enacts legislation that intentionally or unintentionally places a burden upon religiously motivated practice, it must justify that burden by “showing that it is the least restrictive means of achieving some compelling state interest.” Id., 124 L.Ed. 2d at 520.

While seven justices joined in Justice Kennedy’s majority opinion, it would be a mistake to assume that the five to four vote in Smith had now widened to seven to two. To the contrary, Justice David Souter, in a concurring opinion, made it clear that he had “doubts about whether the Smith rule merits adherence.” Id., 124 L.Ed. 2d at 507.

Justice Souter maintained that the Smith rule was not at issue in Hialeah because the Hialeah ordinance violated the “noncontroversial principle” that the Free Exercise Clause demands that the civil government not single out religious practices, as such, and prohibit them. Id., 124 L.Ed. 2d 507-10.

Justice Souter observed, however, that the Smith rule contained an additional controversial principle that a generally applicable law, that is, one that does not single out a religious practice, as such, is unquestionably constitutional under the Free Exercise Clause. This aspect of the Smith rule, in Souter’s opinion, was not consistent with prior Court opinions and, consequently, had left the Court “with a free-exercise jurisprudence in tension with itself….” Id., 124 L.Ed. 2d at 510-15.

For this reason alone, Justice Souter called for a reexamination of the Smith rule in an appropriate case. Id., 124 L.Ed. 2d at 517. In calling for that reexamination, he recommended a review of that rule “in light not only of the precedent on which it rested but also of the text of the Free Exercise Clause and its origins.” Id.

The Smith Rule Restated

In his Hialeah concurring opinion, Justice Souter stated the Smith rule as follows:

The proposition for which the Smith rule stands … is that formal neutrality, along with general applicability, are sufficient conditions for constitutionality under the Free Exercise Clause. Id., 124 L.Ed. 2d at 509.

What Justice Souter meant by “formal neutrality” is that the Smith rule “secures only protection against deliberate discrimination” against religious practices or, in other words, “only bar[s] laws with an object to discriminate against religion.” Id.

This is a crabbed reading of Smith, but one long held by its critics. In June 1991, three of its most influential academic critics summarized the Smith holding in much the same terms as Justice Souter:

The Court decided [in Smith] that a law forbidding a religious practice presents no issue to be decided under the Free Exercise Clause, so long as it is framed in terms that are ostensibly “neutral” and “generally applicable.” Gaffney, Laycock and McConnell, “An Open Letter to the Religious Community,” First Things 44 (June 1991).

Earlier, in 1990 and 1991, three of Smith’s most influential practitioner critics took a similar position:

The Smith decision held that there is no pure religious liberty defense to generally applicable laws. Whitehead and Knicely, “Religious Freedom Restoration Act: Wolf in Sheep’s Clothing?” Plymouth Rock Foundation Leadership Memo 2 (1991).

Justice Scalia, writing for the majority of the court, declared that religious conduct cannot stand in the face of a generally applicable criminal law unless the conduct finds support in one of the other protected freedoms of the First Amendment. Sharpe, “The Death of Religious Freedom,” Chalcedon Report 2 (Nov. 1990).

What Souter and these critics have done is to ignore large chunks of Justice Scalia s Smith opinion wherein he asserted that the Free Exercise Clause provided two substantial jurisdictional barriers to the exercise of civil power.

First, Justice Scalia clearly stated that the Free Exercise Clause protects “the right to believe and profess whatever religious doctrines one desires.” Employment Division v. Smith, supra, 494 U.S. at 877. From this jurisdictional premise, he concluded that the Free Exercise Clause prohibits the enforcement of any law, even a generally applicable one, if that law “represents an attempt to regulate religious beliefs, [or] the communication of religious beliefs ….” Id., 494 U. S. at 882.

This point can best be illustrated by United States v. Ballard, 322 U.S. 78 (1944), a case cited favorably by Justice Scalia. In that case, the defendants were indicted for mail fraud – a generally applicable, religiously neutral statute – based upon allegations that the defendants had defrauded people of their property by promising a divine cure for illnesses that medical doctors deemed incurable.

Justice William O. Douglas ruled that the Free Exercise Clause precluded any prosecution for mail fraud if based upon the allegation that the substantive religious claims made by the defendants were not true:

Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs … [I]t would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations …. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. Id., 322 U.S. at 86- 87.

In other words, a mail fraud statute, if construed to prohibit false statements about religious faith and belief, would not be a valid law under the Free Exercise Clause.

In contrast to Ballard, the religious claimants in Smith made no attempt to challenge the Oregon drug laws upon jurisdictional grounds. To the contrary, they conceded that the State had general jurisdiction to regulate the use of drugs and that this general regulation was not an infringement upon religion.

What they sought to establish was a constitutionally required exception to a concededly valid law based solely upon “their religious motivation,” not upon an objectively determined jurisdictional ground limiting the application of a generally applicable law. Having failed to raise any Free Exercise jurisdictional challenge, Justice Scalia had no occasion to address it. Instead, he simply ruled that an individual’s religious convictions cannot constitutionally excuse him from compliance with “a generally applicable and otherwise valid provision” of law. Employment Division v. Smith, supra, 494 U.S. at 878. (Emphasis added.)

Justice Scalia did not, however, limit the Free Exercise Clause to jurisdictional limitations on the scope and application of specific statutes. He went one step further, affirming that the Clause absolutely immunizes certain conduct from state regulation:

[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.

Here Justice Scalia emphasized that the jurisdictional ban imposed by the Free Exercise Clause was addressed to the conduct in question, not just to a statute and its interpretation. Later he stated that principle in propositional terms, albeit in the negative:

We 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 Id., 494 U.S. at 878-79. (Emphasis added.)

To illustrate this jurisdictional barrier, Justice Scalia gave several examples of conduct that was within the exclusive governing power of the church, including acts of idolatry. Id., 494 U.S. at 877- 78. Such religious practices and their enforcement have always been considered outside the jurisdiction of civil authorities, even when they are relevant to the resolution of property disputes, which are ordinarily within the authority of the State. See Presbyterian Church v. Hull Church, 393 U.S. 440, 445- 452 (1969).

The point here is that the Free Exercise Clause, according to Smith, absolutely precludes the application of a generally applicable law if to apply that law the civil authorities would be required to resolve a dispute over religious practices and church government. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696,708-725 (1976).

Again, the claimants in Smith made absolutely no effort to prove that the Oregon drug laws interposed the State into a doctrinal dispute within the exclusive jurisdiction of the church. Hence, Scalia had no occasion to address whether their conduct was constitutionally immune from civil power under the Free Exercise Clause.

The Smith Rule Applied

Properly understood, then, the Smith rule provides significant Free Exercise protection to a variety of activities long considered immune from civil power. In fact, the Smith rule should afford even greater protection to those activities than the compelling state interest test because the Smith jurisdictional rule is an absolute or categorical one.

Before turning to the application of the Smith rule in these areas, however, one should first examine .the history of the application of the compelling state interest test to ascertain what protection that test had provided for religious freedom claims during the 27-year period that it was applied by the Court.

University of Chicago law professor, Michael McConnell – a vigorous critic of Smith- has conceded that “after the last major free exercise victory in 1972, the Court rejected every claim requesting exemption from burdensome laws or policies to come before it except for those claims involving unemployment compensation, which were governed by clear precedent.” McConnell, “Free Exercise Revisionism and the Smith Decision,” 57 U. Chic. L. Rev. 1109, 1120,n.45,1122,n.56.

Professor McConnell found that religious conscientious objectors won only five times in the Supreme Court, whereas they lost almost double that number. He further noted that this losing record was especially significant when four of the five wins came in one subject matter area, unemployment benefits.

These observations prompted Professor McConnell to observe that the compelling state interest “doctrine was more talk than substance:”

In its language, it was highly protective of religious liberty. The government could not make or enforce any law or policy that burdened the exercise of sincere religious belief unless it was the least restrictive means of attaining a particularly important (“compelling”) secular objective. In practice, however, the Supreme Court only rarely sided with the free exercise claimant, despite some very powerful claims. Id., at 1109-10.

What was really lost, with Justice Scalia’s rejection of the compelling state interest test, then, was the “hope” of a formidable weapon, but no more. Again, Professor McConnell has documented this:

… [I]t must be conceded that the Supreme Court before Smith did not really apply a genuine “compelling interest” test …. In an area of law where a genuine “compelling interest” test has been applied … no such interest has been discovered in almost half a century …. The “compelling interest” standard [in Free Exercise cases] is a misnomer. Id. at 1127.

But the case against the “compelling state interest” test is even more telling than the one acknowledged by Professor McConnell. Not only had the test not protected religious conscience, it had been used to erode the jurisdictional barrier that had traditionally protected church government from civil intrusion.

For example, in Snyder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640 (Cal. Ct. App. 1989) a church bishop and a parishioner sued their church and church officials “on a plethora of tort claims” for having taken action excommunicating them from the church and influencing church members to “shun” them. The trial court dismissed the claims for lack of jurisdiction because “the conduct complained of is ecclesiastical in nature.” ld., 264 Cal. Rptr. at 642.

The appellate court reversed, holding that even if the church and its officials had acted “pursuant to church policy” and within the confines of their ecclesiastical authority they could still be held liable:

If the court concludes … that this or any of the other alleged conduct on which appellants’ claims are based qualifies as religious expression, the trial court must balance the importance to the state of the interest invaded against the burden which would result from posing tort liability for such a claim. Even if the burden is significant, appellant’s claims will survive a motion to dismiss if the state’s interests are significant, and no less restrictive burden than the possibility of eventual tort liability is available. Id., 264 Cal. Rptr. at 647.

Had the California Appellate Court applied the Smith rule, it would have dismissed the tort claims for lack of jurisdiction unless the plaintiffs could show that the action taken by the church officials was clearly outside their disciplinary authority in the church.

Not only does the compelling state interest threaten church autonomy over its internal affairs, but its traditional immunity in the proselytizing of outsiders. In Maiko v. Holy Spirit Association, 762 P.2d 46 (Cal. 1988), cert. den., 490 U.S. 1084 (1989), the California Supreme Court allowed a tort suit for fraud and intentional infliction of emotional distress based upon allegations that the proselytizing activities of the Unification Church of Sun Myung Moon were deceptive and outrageous:

[A]lthough liability for deceptive recruitment practices imposes a marginal burden on the Church’s exercise of religion, the burden is justified by the compelling state interest in protecting individuals and families from the substantial threat to public safety, peace and order posed by the fraudulent induction of unconsenting individuals into an atmosphere of coercive persuasion. Id., 762 P.2d at 60.

Under Smith, such reasoning would be forbidden as Justice Scalia specifically identified “proselytizing” as conduct that the Free Exercise Clause has excluded entirely from civil jurisdiction without regard to any alleged compelling state interest.

Having identified “proselytizing” as an activity within the constitutional protection of the Free Exercise Clause, Justice Scalia has opened the door to a reexamination of earlier cases where the compelling state interest test has allowed civil intrusions upon proselytizing activities outside the immediate confines of the church.

In Bob Jones University v. United States, 461 U.S. 574 (1983) the Court turned back a Free Exercise challenge to an I.R.S. ruling that a private religious school forfeited its tax-exempt status solely because its racial policies on dating and marriage ran afoul of a national policy prohibiting racial discrimination in education.

At no point did the Bob Jones attorneys contend that the Free Exercise Clause guaranteed tax immunity to the university in order to preclude Congress and the I.R.S. from using its taxing power to intrude upon its proselytizing activities. To the contrary, they rested their claim that the I.R.S. had no such jurisdiction solely on an appeal to statute.

Only after they lost their statutory argument, did they turn to the Free Exercise Clause, claiming an exception “on the basis of sincerely held religious beliefs.” The Court rejected this claim on the ground that the government’s “fundamental, overriding interest in eradicating racial discrimination in education … substantially outweighs whatever burden denial of tax benefits places on petitioner’s exercise of their religious beliefs.” Id., 461 U.S. at 603- 04.

This kind of reasoning could be extended to deny tax-exempt status to a church that taught and promoted policies and practices that were deemed contrary to a “national policy against racial or sex discrimination .” The compelling state interest test would be no barrier to the state’s using its power to tax to pressure churches to conform to such policies.

But the Smith rule should guarantee immunity on the ground that proselytizing is conduct that the Free Exercise Clause absolutely protects from government regulation. This point is especially significant in light of the growing number of cities and states that have added “sexual orientation” to their human rights ordinances. Under the compelling state interest test, traditional church teachings against sodomy could be used as evidence to justify the revocation of their tax-exempt status. Under Smith, however, the Free Exercise Clause should absolutely protect that tax status no matter how “compelling” the state interest might be to eradicate discrimination against homosexuals.

The Smith Rule Attacked

The Smith rule, then, if properly understood and applied, offers substantial protection to religious freedom under the Free Exercise Clause, and in areas where the compelling state interest offers less protection. The compelling state interest test, as it has been applied, offers the hope of more protection in the area of religious conscience, but it was largely an unrealized hope before Smith. Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245, 246-47 (1991).

Why then the almost unanimous outcry against Smith? From the day of its announcement until the present, foes coming from every part of the political spectrum have denounced the Court’s rejection of the compelling state interest test.

First, an unusual coalition of organizations, often on opposite sides in the ongoing debate over the place of religion in public life, joined in a petition to the Court for a rehearing. Among the petitioners were the American Civil Liberties Union and the Rutherford Institute, the People for the American Way and the Christian Legal Society, the Americans United for Separation of Church and State and the National Association of Evangelicals, and the American Jewish Congress and the Baptist Joint Committee on Public Affairs.

Oliver S. Thomas, at that time general counsel to the Baptist Joint Committee, summarized the historic significance of this effort:

These individuals and organizations agree on very little. They all agree, however, that [the Smith] decision is disastrous for the free exercise of religion. The Religious Freedom Alert 11 (June 1990).

Thomas did not overstate the depth and breadth of opposition. The Reverend Dean M. Kelley, director for the National Council of Churches, claimed that Smith “gutted” the First Amendment’s free exercise clause. Amy Adelson, a lawyer with the American Jewish Congress, found the ruling “devastating to the free exercise rights of all Americans.” Id. at 11 and 9.

Jordan Lorence, then litigation director for Concerned Women for America said that he “cannot overstate how damaging it [Smith] is to religious freedom.” John Whitehead, President of the Rutherford Institute claimed that “Justice Scalia’s opinion rejects the notion that free exercise of religion is a preferred right.” Id. at 7.

Following the Court’s rejection of the petition for a rehearing, the Court’s critics escalated their opposition to apocalyptic levels. Texas attorney J. Shelby Sharpe compared the Smith case to the Japanese attack on Pearl Harbor. Sharpe, “The Death of Religious Freedom,” Chalcedon Report 2 (Nov. 1990). Samuel E. Ericsson, then Executive Director of the Christian Legal Society, likened it to an Iraqi Scud missile in the Persian Gulf War, one that “scored a direct hit… demolish[ing] a major barrier to government intrusion into religious affairs.” Letter to Members and Friends of the Christian Legal Society 1 (May 1991).

To support their claims, these critics and their allies assembled an inventory of cases to demonstrate “the havoc that Smith has wreaked.” Included were two cases denying religious conscientious objectors an exemption from the state autopsy laws, a case refusing to exempt a Quaker from having to pay income taxes based upon his opposition to war, and a case refusing to exempt the Salvation Army from having to operate residence facilities and programs consistent with a state Rooming and Boarding House Act. Thomas and Walker, “Religious Freedom is Not A Luxury,” Christian Legal Society Quarterly 3-4 (Fall 1991 ).

These examples hardly support the outrage expressed against Smith. It is doubtful that any of them would have been decided differently under the compelling state interest test as the Court had been applying that test in recent years. For example, the Quaker case against having to pay taxes was the very example used by the Court in United States v. Lee, 455 U.S. 252 (1982) to support the proposition that under no circumstances could a religious conscientious objector sustain a Free Exercise claim of tax exemption under the compelling interest test. Id., 455 U.S. at 260.

Nevertheless, the anti-Smith coalition persisted in their efforts to discredit Smith, taking their case to Congress where they finally succeeded in winning passage of the Religious Freedom Restoration Act (RFRA), signed into law by President Clinton on November 16, 1993.

According to Section 2 of the Act, RFRA has a twofold purpose:

(1) To restore the compelling state interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government. Pub. L. No. 103- 141, 107 Stat. 1488.

By enacting RFRA, Congress has eliminated the absolute jurisdictional immunity previously enjoyed under the Free Exercise Clause as reaffirmed by Smith, and substituted the compelling state interest test as the measure of free exercise in every case. If constitutional, RFRA may ultimately prove a disaster to the Free Exercise of religion in America, not the restoration that its supporters have promised.

First:   Free Exercise Clause From 1791-1990
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.