CONSTITUTIONAL LAW SPRING 2007
CLASS 40: THE FIRST AMENDMENT’S RELIGION CLAUSES:
FREE EXERCISE
1. CENTRAL THEMES – When, if ever, is it constitutional for the
government to restrict religious belief and/or religious practice?
2. TEXT: Amendment I – “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof.” (See also Article VI s. 3 prohibition of religious tests for
government office)
3. Free exercise clause applied to states through incorporation in
due process clause of Amendment XIV in Cantwell v. Connecticut
(1940). Prior to this time, Court protected religious freedom
under other constitutional provisions like due process clause of
Amendment XIV (e.g. Pierce v. Society of Sisters)
4. Some tension between free exercise clause and establishment
clause
5. Difficulties of using history in constitutional interpretation
(separatism: Everson v. Board of Education (1947) (CB p. 1504),
Souter’s dissent in Rosenberg v. Rector (1995) (CB p. 1506)) vs.
nonpreferentialism (Madison? Thomas in Rosenberg, Rehnquist’s
dissent in Wallace v. Jaffree (1985) (CB p. 1506))); considerable
change since founding in terms of religious diversity.
6. What is “religion”? Court has not formulated a definition. But
clear that court can look into whether a belief is sincerely held;
whether belief is widely accepted or dominant dogma is not
necessary for protection. Issue of what is religion has come up
most frequently in cases involving scope of religious exemption to
draft: United States v. Seeger (1965) (CB p. 1510) (broad view of
religion; Welsh v. United States (1970) (CB p. 1510); Gillette v.
United States (1971) (CB p. 1511)
7. Does the free exercise clause prohibit punishing or compelling
religious belief as opposed to religious practice? Reynolds v.
United States (1878) (CB p. 1521)
8. Prior to 1940, when Supreme Court first applied free exercise
clause to the states in Cantwell, Court protected religious freedom
under other constitutional provisions like due process clause of
Amendment XIV (see, eg. Pierce v. Society of Sisters (1925)
9. 1963-1990: Strict Scrutiny applied to government laws burdening
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religious freedom (at least in theory): Sherbert v. Verner (1963)
(CB p. 1523).
During this time, however, Court only upheld free exercise
challenges in two areas:
i.
denials of unemployment benefits like Sherbert, e.g.
Thomas v. Review Board (1981) (CB p. 1526), Hobbie v.
Unemployment Appeals Comm’n (1987) (CB p. 1526),
Frazee v. Illinois Employment Security Department (1989)
(CB p. 1526)
ii.
compulsory school law applied to Amish high school
aged children : Wisconsin v. Yoder (1972) (CB p. 1526)
Some examples of denials of free exercise claims from 1963-1990
(using 3 techniques – finding overriding government interest in
uniform regulation, finding that free exercise interests were
attenuated and government interests paramount in certain
environments like the military; rejecting free exercise claims
seeking to alter “internal” government operations
i.
United States v. Lee (1982) (CB p. 1528)
ii.
Bob Jones University v. United States (1983) (CB p. 1529)
iii. Goldman v. Weinberger (1986) (CB p. 1529)
iv.
Bowen v. Roy (1986) (CB p. 1531)
v.
Lyng v. Northwest American Cemetary Protective Ass’n
(1988) (CB p. 1532)
10.1990: A big change in the law of free exercise: Employment
Division Dept. of Human Resources v. Smith (1990) (CB p. 1533),
Church of Lukumi Babalu Aye v. Hialeah (1993) (CB p. 1514) –
now a NEUTRAL LAW OF GENERAL APPLICABILITY will
not violate the free exercise clause unless it fails RATIONAL
BASIS scrutiny; but a LAW THAT IS NOT NEUTRAL OR OF
GENERAL APPLICABILITY will be found unconstitutional
unless it meets STRICT SCRUTINY.
11.An attempt to negate the Smith test: THE RELIGIOUS
FREEDOM RESTORATION ACT of 1993: City of Boerne v.
Flores (1997) (CB p. 1541) – what is the constitutional status of the
RFRA as applied to (i) state governments (ii) local governments (iii)
federal government?; Gonzalez v. O Centro Espirita Beneficiente
Uniao do Vegetal (2006) (Supp. p. 52)
12.Religious Land Use and Institutionalized Persons Act of 2000:
government must meet strict scrutiny if it significantly burdens
religion in land use decisions and to regulate institutionalized
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persons
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