1. RELIGION AND THE
AMERICAN
CONSTITUTIONAL
EXPERIMENT
Chapter 6
The Free Exercise of Religion

2. The Fourteenth Amendment
 The incorporation of the First Amendment
religion clauses into the Fourteenth
Amendment due process clause:
 Shifted principal authority over the American
experiment in religious liberty from the states to
the federal courts.
 After the 1940s, most laws in America that
touched religion became subject to First
Amendment influence, if not scrutiny.

3. Free Exercise Rights Versus
Governmental Power
 At the heart of a free exercise case if a conflict
between the exercise of governmental power
and the exercise of a private party’s religion.
 The challenged governmental entity or officer can
be at any level – federal, state, or local.
 A free exercise claimant may be either a religious
individual or a religious group.

4. Free Exercise Claimants
 “Justiciability” requirements:
 The claimants must state an actual “case or
controversy.”
 They must have “standing” to bring the suit.
 They must raise a constitutional issue on which a
court has actual “jurisdiction” rather than a
“political question.”
Claimants must also demonstrate that it is their
religious exercise that has been improperly
burdened.

5. Resolving the Conflict
 The Court uses two principle methods to
resolve this basic conflict between government
power and free exercise rights.
1. Balance juxtaposed constitutional claims,
reach a judicious decision, and then follow
that reasoning and results in subsequent
cases.
2. Examine the Court’s basic standard of review
of the challenged law. This method is more
commonly utilized.

6. Low-Level Scrutiny
 Low-level scrutiny. The Court will uphold the
challenged law if:
 (1) it is in pursuit of a legitimate governmental
interest
 (2) it is reasonably related to that interest.
 This test, often called the rational basis test,
features high judicial deference to the
legislature and other branches of government.

7. Intermediate or Heightened
Scrutiny
 Intermediate or heightened scrutiny. The Court
will uphold the challenged law if:
 (1) it is in pursuit of an important or significant
governmental interest
 (2) it is substantially related to that interest.
 This test, often called the intermediate scrutiny
test, is not as deferential to the legislature.

8. High-Level or Strict Scrutiny
 High-level or strict scrutiny. The Court will
uphold the challenged law only if:
 (1) it is in pursuit of a compelling or overriding
governmental interest
 (2) it is narrowly tailored to achieve that interest,
not intruding on the claimant’s rights anymore
than is absolutely necessary.
 This test, often called the compelling state
interest test, involves close judicial inquiry into
the purposes and provisions of the law.

9. Free Exercise and Polygamy
(1879-1890)
 The Court first applied the free exercise clause
in Reynolds v. United States (1879).
 The Court used an extremely narrow reading of
the free exercise clause to uphold congressional
restrictions on individuals and groups that
preached and practiced polygamy.
 In this case and other similar cases, the Court
quickly dispensed with the Mormons’ free
exercise arguments.

10. Free Exercise and Conscientious
Objections (1918-1971)
 The Court used similar logic to address the
free exercise claims of pacifists who claimed
conscientious objection to war or to oaths
supporting warfare.
 Arver v. United States (1918)
 United States v. Schwimmer (1929)
 United States v. Macintosh (1931)
 Girouard v. United States (1946)

11. Freedom and Equality of Religious
Expression (1940-2002)
 Freedom of expression was at the core of the
free exercise clause.
 Both the eighteenth-century founders and the
nineteenth-century states regarded freedom of
religious speech, press, assembly, and other
expressions of faith to be essential to religious
liberty.
 The issue that emerged in the twentieth-
century was whether the federal courts also
should protect freedom of expression under
the free exercise clause.

12. Liberty of Conscience and Free
Exercise Exemptions (1943-1989)
 The “unalienable right of private judgment in
matters of religion” includes the freedom to
choose or to change one’s religious beliefs or
practices without coercion or control by
government, and without facing discrimination
or penalties for the religious choices once
made.
 Initially, there was discordance between principle
and practice.

13. Neutralizing the Free Exercise
Clause (1982-1993)
 From the 1940s to the 1980s, the Supreme
Court read the free exercise clause in
expansive terms.
 In the 1980s, the Supreme Court gradually
reduced the free exercise clause to a single
and simple principle of neutrality.

14. Free Exercise in the Age of
Statutes
 Employment Division v. Smith (1990)
 Weakened free exercise review.
 Aided somewhat the cause of religious liberty.
 It has done so by pressing litigants and legislators
to look elsewhere in the Constitution for fuller and
firmer protection.
 Another irony of the Smith case is that statutes
now provide considerably more protection for
religious liberty than the First Amendment free
exercise clause itself.