Freedom of Religion/Legal Codification/US

Freedom of Religion

Is it contained in the US Constitution?

Freedom of religion is included in the First Amendment of the United States Constitution.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The right to free religious exercise was enshrined in the presence of several other noteworthy rights, and was complemented by what we refer to today as the Establishment Clause—a provision mandating the separation of stately matters and religion. Furthermore, the Free Exercise Clause was later expanded by proxy through the Due Process Clause of the Fourteenth Amendment.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment established the process of Selective Incorporation, which extended the Bill of Rights to state governments. The extent of religious freedom guaranteed by the Constitution remains an open question, however, as the evolution of case law pertaining to the Free Exercise Clause and the Establishment Clause has gradually created a formula of exceptions and standards for governments and religious organizations alike.

Given that Constitutionally-protected rights must be manually incorporated to the states, the incorporation of the Free Exercise Clause by the Supreme Court in Cantwell v. Connecticut, 310 U.S. 296 (1940) represented a milestone for religious freedom. The arrest of several Jehovah’s Witnesses in New Haven, Connecticut due to their failure to obtain a religious solicitation license provoked a free exercise lawsuit against the city. Ruling for the Witnesses, the Court decried the “censorship of religion” based on its “right to survive” in a hostile environment (Justice Roberts, 1940). Despite their statements in support of religious freedom, the justices also used the Cantwell decision to imply different ways that religious expression can be regulated while acknowledging the government’s interest in maintaining public order.

In light of the Cantwell precedent, a strenuous situation unfolded between religious organizations and the government, given that the latter’s power to prosecute certain religious activities was both restricted and affirmed by the Court. This situation escalated following the adoption of the Sherbert-Yoder test. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court ruled in favor of Adeil Sherbert, a Seventh-day Adventist in South Carolina who was fired—and denied unemployment benefits—for refusing to work on Saturday, which is viewed as a religious holiday by the Seventh-day Adventist Church. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the justices struck down a Wisconsin statute mandating a public education for children under the age of 16 following a lawsuit from several Amish residents, who accused the law of infringing on their religious exercise.

The Sherbert-Yoder test mandated that strict scrutiny be applied to laws that potentially infringe on religious freedom. Specifically, the state must prove that the law in question is vital to achieving a compelling interest, and that no less restrictive alternatives exist. South Carolina’s refusal to accommodate Adeil Sherbert in spite of her “declared ineligibility” to work on Saturdays, for example, forced her to choose between her financial well-being and religious adherence—a reality that could have reasonably been accommodated by exceptions for practicing Seventh-Day Adventists (Justice Brennan, 1963). Comparatively, the Wisconsin Statute struck down by Yoder did not offer any religious exemptions to compulsory public school attendance. Due to the well-established nature of Amish primary education, such an exception could reasonably have been made in this case without compromising the state’s interest in ensuring an educated populace.

Despite the high standard created by strict scrutiny for the incidental suppression of religious exercise, the Court established clear exceptions for the Free Exercise Clause in Braunfeld v. Brown, 366 U.S. 599 (1961) and Goldman v. Weinberger, 475 U.S. 503 (1986), two cases that preceded and followed the Court’s adoption of the Sherbert-Yoder test, respectively (both cases predated the Smith test, which will be further discussed below). In Braunfeld, the constitutionality of a Pennsylvania Blue Law (ordinances that ban nonessential commercial activity on a certain day, most commonly Sunday) was challenged by Abraham Braunfeld, an Orthodox Jew who could not work on Saturdays due to his religion. Ruling for the state, the justices asserted that Pennsylvania’s attempt to create a “day of rest” represented one of many “important social duties” afforded to the state (Justice Warren, 1961). Given that religious exceptions would likely compromise the legitimacy of this effort by promoting typical commercial activities, no realistic alternative existed for Pennsylvania—a key difference from the situation in Sherbert. Finally, the Court gave its typical deference to “the professional judgment of military authorities” in Goldman (Justice Rehnquist, 1986). The justices ruled that Simcha Goldman, a United States Air Force captain who challenged the Air Force Dress Code due to its prohibition of religious garments, was not entitled to wear a yarmulke while serving in the military.

Despite the various examples of court-imposed limitations to religious activity evidenced by Braunfeld and Goldman, the Sherbert-Yoder test continued to provide a high bar for governmental intrusions on free exercise. The purview of this test was greatly limited, however, by the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), in which the justices rejected a free exercise claim from the Native American Church in Oregon. Two adherents to the Church were fired from their jobs for ingesting peyote, a practice encouraged by their religion but outlawed in the state of Oregon. Like Sherbert, they were fired and denied unemployment benefits. Writing for the majority, Justice Scalia asserted that the Oregon statute was “generally applicable criminal law” that was not designed to infringe on the Native American Church—a stark departure from the Court’s rulings on supposedly secular laws in Sherbert and Yoder. Unlike both cases, however, an exception for Smith would have likely imperiled the legitimacy of Oregon’s drug control laws, thereby creating a problematic issue for public safety. Following this ruling, broad public outcry prompted congress to pass the Religious Freedom Restoration Act of 1993 (RFRA), which effectively mandated the reapplication of the strict scrutiny standard for all levels of government. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court curtailed the RFRA by limiting its purview to federal issues.

In Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the court pivoted back to the least restrictive means test outlined in Sherbert and Yoder without explicitly overruling Smith. In response to a provision by the Affordable Care Act requiring for-profit corporations to provide funding for contraceptives as part of their insurance plans, the owners of Hobby Lobby filed suit, alleging the law violated the RFRA and the Free Exercise Clause. Ruling for Hobby Lobby, the Court asserted that any contraceptive mandate would compel the Burwell family to “facilitate access to contraceptive drugs or devices” that would violate their “sincere Christian beliefs” (Justice Alito, 2014). Furthermore, the justices contended that exemptions for closely-held for-profit companies such as Hobby Lobby would have represented a less restrictive measure—an argument that encapsulated the broader shift towards the Sherbert-Yoder test for certain cases.

Contrary to the Free Exercise Clause, the Establishment Clause plays a more subtle role in matters pertaining to religious exercise. The question of whether freedom of religion includes the right to be free from religion has been debated since the inception of the Constitution, and several cases pertaining to the Establishment Clause have also created implications for free exercise. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established a standard for determining any governmental violations of the Establishment Clause, highlighted by its prohibition of activities that constitute “an excessive government entanglement with religion” (Justice Burger, 1971).

The ambiguity of this test was made clear by Kennedy v. Bremerton School District, 597 U.S. 507 (2022), in which the Court ruled in favor of a public high school football coach in Washington State who had been suspended for holding prayers with his students during school events. This decision replaced the Lemon test with the “historical practices and understandings” test, which asserted that Christianity can be treated as an American cultural phenomenon. This line of reasoning was previously implied in Van Orden v. Perry, 545 U.S. 677 (2005) and American Legion v. American Humanist Association, 588 U.S. ___ (2019), in which the presence of Christian religious symbols on public property (outside a courthouse and in a veterans' cemetery, respectively) were upheld for their cultural—rather than religious—significance. While the cultural importance of Christianity to American culture cannot be denied, this test does not deny that Christian exercises or objects within public property are inherently religious—a dilemma that has sparked fierce debate since the Kennedy ruling.

Cantwell v. Connecticut, 310 U.S. 296 (1940) https://supreme.justia.com/cases/federal/us/310/296/

Sherbert v. Verner, 374 U.S. 398 (1963) https://supreme.justia.com/cases/federal/us/374/398/

Wisconsin v. Yoder, 406 U.S. 205 (1972) https://supreme.justia.com/cases/federal/us/406/205/

Braunfeld v. Brown, 366 U.S. 599 (1961) https://supreme.justia.com/cases/federal/us/366/599/

Goldman v. Weinberger, 475 U.S. 503 (1986) https://supreme.justia.com/cases/federal/us/475/503/

Employment Division v. Smith, 494 U.S. 872 (1990) https://supreme.justia.com/cases/federal/us/494/872/

City of Boerne v. Flores, 521 U.S. 507 (1997) https://supreme.justia.com/cases/federal/us/521/507/

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) https://supreme.justia.com/cases/federal/us/573/682/

Lemon v. Kurtzman, 403 U.S. 602 (1971) https://supreme.justia.com/cases/federal/us/403/602/

Kennedy v. Bremerton School District, 597 U.S. 507 (2022) https://supreme.justia.com/cases/federal/us/597/21-418/

Van Orden v. Perry, 545 U.S. 677 (2005) https://supreme.justia.com/cases/federal/us/545/677/

American Legion v. American Humanist Association, 588 U.S. ___ (2019) https://supreme.justia.com/cases/federal/us/588/17-1717/