Constitutional Law II
Free Exercise Clause
Free Exercise Clause
“…or prohibiting the free exercise thereof.”
Principal Inquiry:

To what extent does gov’t burden religious
exercises and beliefs
Types of government interference:



Fall 2006
Prohibition/penalty on belief
Prohibition of exercise (religious practices)
Burden/regulation of exercise
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Free Exercise Clause
“…or prohibiting the free exercise thereof.”
Principal Inquiry:

To what extent does gov’t burden religious
exercises and beliefs
Types of government interference:

Prohibition/penalty on belief
 Compare forced or prohibited speech

Prohibition of exercise (religious practices)
 Compare O’Brien test: regulation of symbolic speech

Burden/regulation of exercise
 Compare TP&M test: regulating mixed speech/action
Fall 2006
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Early Cases
Reynolds v. US (1878)

No religious exemption from general polygamy laws
 “Congress was deprived of all power over mere opinion
(belief), but was left free to reach actions which were in
violation of social duties or subversive of good order.
Laws are made for the government of actions, and while
they cannot interfere with mere religious belief and
actions, they may with practices.”
Cantwell v. Connecticut (1940)

JehWit. arrested for distributing anti-Catholic material
 “the free exercise clause embraces two concepts--
freedom to believe and freedom to act. The first is
absolute, but in the nature of things, the second cannot
be. Conduct remains subject to regulation.”
Fall 2006
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Sherbert v. Verner
(1963)
Facts:


S.Carolina denied unemployment insurance to
Sherbert because her faith prohibited her from
working on Saturday (her sabbath).
S.Car. exempted Sunday worshippers, not Sat.
Free Exercise concerns:


Fall 2006
Burden (on religious practices & faith)
Discrimination (among religions)
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Sherbert v. Verner
(1963)
Distinguish Braunfeld v. Brown (1961)

Sunday closing law served a state purpose
unrelated to religion – uniform day of rest
 Burden on Braunfeld was less than on Sherbert
 Some preference was unavoidable in Braunfeld, but
no comparable administrative need in Sherbert

What if state had enacted a Saturday closing law?
Ad Hoc Balancing

Fall 2006
The greater the burden on religious practices,
the greater the state’s interest and relationship
to means must be to survive (variable) scrutiny
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Wisconsin v. Yoder (1972)
Facts:

Amish challenged Wisc compulsary attendance
law as interfering with their beliefs & practices
Plurality (CJ Burger) [3 votes]

modern high school education “gravely endangers free exercise of [Amish] religious beliefs”
 State interest: participation in economics & politics

Strong, but probably not compelling
 MEANS: compulsary education through age 16


Fall 2006
little gained for Amish ages 14-15, even for those who later
join society
Not closely related to ENDS
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Wisconsin v. Yoder (1972)
Concurrence (White) [3 votes]

Ad hoc balancing of state/private interests
 mid-level scrutiny
Dissent (Douglas) [1 vote]

Whose right involved? Child’s or Parents?
 Minors’ const’l rights not diminished
is this a
SDP case?
 Minors’ const’l rights often shared with parents
 Parents also have SDP right to raise children (Pierce)
 What to do in case of putative conflict?

Elkgrove v. Newdow (2003): assume parent can assert
child’s rights, unless state court has noted conflict
Fall 2006
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Standard of Review
Did the Court correctly apply SS in Sherbert
and Yoder?


At what point does a burden on relig practices
become a burden on religious beliefs?
Seems to be subjective test
 compare “undue burden” test in abortion cases

Factors:
 Type of state action:

Criminal, regulatory (economic), failure to fund
 Centrality of practice to religion
Fall 2006
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Empl. Division v. Smith
(1990)
Facts:

Unemployment insurance denied because of use
of peyote for sacramental purposes.
Scalia’s analytical framework



Relig. practices combine conduct w. belief
Gov’t cannot force or punish belief as such
Is regulation of conduct anti-belief or non-belief?
 Anti-belief if the conduct is punished only when
compare
O’Brien test
Fall 2006
engaged in for religious reasons
 Non-belief if the regulation is directed at the conduct
generally, and not directed at religious practices
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Empl. Division v. Smith
(1990)
Standard of review for (non-belief) regulation
of conduct (affecting, but not aimed at belief)

Sherbert’s ad hoc balancing rejected
 Is Scalia persuasive on Sherbert ?
Applied only to unemployment compensation cases because
of their “individualized application”
 Hardship relief can’t automatically be denied to relig practice

 Degree of burden on religion (e.g., “centrality”)
inappropriate for judges to determine

Fall 2006
Apparently, no heightened scrutiny at all
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Applying Smith
Church of the Lukumi Babalu v. Hialeah

(1993)
Santeria religion uses animal sacrifice in worship
 Hialeah prohibited ritual sacrifice, but not other killing

Unanimous Court found law directed at religion
 Applied strict scrutiny
Locke v. Davey

(2004)
Denial of state scholarship for religious degree
 Lukumi not controlling in funding cases (vs. regulation)
 Although funding would not violate Est. Clause, state
had substantial interest in not using tax dollars for relig
 Scalia dissent: refusal to fund is “hostile” to religion
Fall 2006
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Applying Smith
Religious Practices & Free Speech

Wooley v. Maynard; WV v. Barnette;

Myriad Jevohas Witness cases

Good News Club v. Milford Cent. Sch. (2001)
 Denial of funding violates free speech even if not FE
Fall 2006
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Free Exercise & the Military
Gillette v. US (1971)

FE clause did not require religious exemption
from the draft
Goldman v. Weinberger (1986)

Fall 2006
FE clause did not require military to allow the
wearing of Jewish yarmulkes
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Statutory Responses to Smith
Religious Freedom Restoration Act (1993)

Provides statutory right of action against state
regulations burdening religious practices
 Strict Scrutiny even if no violation under Smith

Held unconstitutional in Boerne v. Flores (1997)
Religious Land Use & Institutionalized
Persons Act (2000)


Similar to RFRA but based on spending clause
Cutter v. Wilkinson (2005):
 6th Cir invalidated as benefiting religious needs only
 SCt. reversed, holding accommodation of religion ok
even if other const’l rights not similarly accommodated
Fall 2006
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