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The First Amendment: The Right to Freedom of Religion, Expression, Press, and Assembly
Political Science Textbooks Boundless Political Science Civil Liberties The First Amendment: The Right to Freedom of Religion, Expression, Press, and Assembly
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Concept Version 10
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The Free Exercise Clause: Freedom of Religion

The Free Exercise Clause of the First Amendment establishes the right of all Americans to freely practice their religions.

Learning Objective

  • Describe how the interpretation of the Free Exercise clause has changed over time.


Key Points

    • The Free Exercise Clause and the Establishment Clause (which essentially establishes the separation of church and state), compose the provisions on religious freedom in the First Amendment of the Bill of Rights.
    • The interpretation of the Free Exercise Clause has narrowed and widened throughout the past decades. In the late 1800s, the Supreme Court took the view that it acceptable for the government to pass neutral laws that may incidentally impact certain religions.
    • During the time of the Warren Court in the 1960s, the Supreme Court took the view that there must be a "compelling interest" in order for religious freedom to be restricted.
    • In the 1990s, the Supreme Court moved away from this strict interpretation of the Free Exercise Clause, and removed the idea that there had to be a "compelling interest" in order to violate religious freedom.
    • Jehovah Witnesses have been involved in a lot of litigation related to the Free Exercise Clause and, consequently, have helped define its limits.

Terms

  • strict scrutiny

    The most stringent standard of legal review in American courts, used to evaluate the constitutionality of laws and government programs.

  • Warren Court

    The Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, expanding civil rights, civil liberties, judicial power, and the federal power.

  • Jehovah's Witnesses

    A monotheistic and nontrinitarian Restoration Christian denomination founded in 1879 as a small Bible study group.

  • free exercise clause

    the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution, which prohibits Congress from interfering with the practices of any religion


Full Text

The Free Exercise Clause

The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Thus, the Establishment Clause prevents the US from establishing or advocating for a specific religion, while the Free Exercise clause is intended to ensure the rights of Americans to practice their religions without state intervention . The Supreme Court has consistently held, however, that the right to free exercise of religion is not absolute, and that it is acceptable for the government to limit free exercise in some cases.

Church and Political Socialization

Participation in organized religion or church attendance can be another important source of political socialization, as churches often teach certain political values.

Interpreting the Free Exercise Clause

The history of the Supreme Court's interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention. Then it took on a relatively narrow view of the governmental restrictions required under the clause. The 1960s saw it grow into a much broader view and later receding again.

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds' conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. This case, which also revived Thomas Jefferson's statement regarding the "wall of separation" between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.

This interpretation of the Free Exercise Clause continued into the 1960s. With the ascendancy of the Warren Court under Chief Justice Earl Warren, a new standard of "strict scrutiny" in various areas of civil rights law was applied. The Court established many requirements that had to be met for any restrictions of religious freedom. For example, in Sherbert v. Verner (1963), the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.

This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug's use as part of a religious ritual . In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert v. Yoder. In another case in 1997, the Court struck down the provisions of the Act on the grounds that, while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.

Peyote Cactus

Native Americans used peyote (a cactus that has psychedelic effects when ingested) in spiritual rituals. In 1990, the Supreme Court banned the use of this drug, demonstrating a move away from the requirement to show "compelling interest" before limiting religious freedom.

Jehovah's Witnesses Cases

During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah's Witnesses . Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. For example, the first important victory came in 1938 with Lovell v. City of Griffin. The Supreme Court held that cities could not require permits for the distribution of pamphlets.

Jehovah's Witnesses

The specific beliefs and practices (such as a belief in door-to-door proselytizing, depicted here) of the Jehovah's Witnesses has meant that Jehovah's Witnesses' litigation has played a key role in defining the Free Exercise Clause of the First Amendment.

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