By Ben Lenhart
The Constitution protects religious freedom for all Americans in two important ways. First, the government can’t create an official religion or take action that favors one religion over another. Second, individuals have a fundamental right to freely practice their religion without interference by the government.
These twin freedoms are both found in the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”
The first section is called the “Establishment Clause” (and was covered in last month’s article) and the second, known as the “Free Exercise Clause” is today’s topic. As with most Constitutional rights, there are easy cases and hard ones.
First and foremost, the Free Exercise clause means freedom to practice your religion—to pray how you want, to believe what you want, and to attend religious services where and when you want. Equally protected is the right to do none of these. The courts would easily reject any law that tried to restrict membership in any religion or attendance at any worship service. Similarly, they would not hesitate to strike down any law that tried to regulate prayer or dictate the tenets of any particular faith. These are the powerful religious freedoms that all Americans enjoy under our Constitution (but which are absent in many other countries today). The harder cases involve a conflict between religious practices and other laws having nothing to do with religion. We look at a few famous examples below.
Amish Home Schooling
Wisconsin required everyone to attend school until age 16, and fined an Amish family for failing to send their teenage children to school. The Amish argued public high school attendance would interfere with Amish religion, claiming that public high school created “an impermissible exposure” of their children to a “worldly” influence in conflict with their religious beliefs, and emphasized competitiveness and worldly success over informal “learning through doing” and a life of “community welfare.” The Court sided with the Amish, finding that the Wisconsin law did interfere with Amish religion, and that the right of the Amish to freely exercise their religion was stronger and more fundamental that Wisconsin’s interest in mandatory high school education.
Oregon banned the use of peyote and imposed severe criminal penalties for its use. A Native American church in Oregon cried foul, and said the law interfered with its religion because peyote played a sacred role in their church ceremonies. The court sided with Oregon. While accepting that peyote was important to the church, the court ruled that Oregon had a stronger interest in clear and uniform enforcement of their drug laws. The court worried about “anarchy” if religious beliefs—even if bona fide— could be used as a “free pass” to violate otherwise valid criminal laws.
Congress Jumps in to Protect Peyote
The peyote case led to a public outcry that religious freedom was being trampled. In response, Congress passed the Religious Freedom and Restoration Act. The RFRA aimed to protect the religious use of peyote and many other religious practices by granting greater protection to those practices than was provided by the 1st Amendment itself (as interpreted by the Court). In other words, Congress went beyond the Constitution to offer greater protection to religious freedom. The RFRA is an example of the stark difference between “Congress-created” rights and Constitutional rights. The former can be taken away at the whim of politics—see recent examples of President Trump reversing rules put in place by the Obama administration. But Constitutional rights are special. They are beyond the reach of Congress or the President, and can be changed only by the People themselves (through the very difficult process of amending the Constitution).
While parts of the RFRA were found unconstitutional (because they went beyond Congress’s powers) other parts remained in place and led to the famous 2014 case of Hobby Lobby. The owners of Hobby Lobby—a large hobby store chain—objected to parts of a federal law requiring them to provide employee health insurance for certain contraceptive measures. The government disagreed, claiming that the burden on Hobby Lobby’s religious beliefs was minimal. A divided Court sided with Hobby Lobby finding that (a) the RFRA protected religious beliefs, even those of “for profit” companies and their owners, (b) Hobby Lobby’s religious beliefs were indeed harmed by the insurance law, and (c) the government had other options—ones that that did not interfere with religious beliefs—to provide the disputed insurance to the employees. A critical but often forgotten fact about Hobby Lobby is this: Since it was based on the RFRA and not on the 1st Amendemnt, a new Congress could easily take away the “Hobby Lobby” religious protections by simply repealing the RFRA.
The Santería church included the ritual sacrifice of a chicken as a core part of certain religious ceremonies. Based on complaints from neighbors, the Hialeah City Council passed a law banning any “ritual slaughter” of animals, and tailored the new law so that it was clearly and specifically aimed at the Santería church. A unanimous court easily overturned the law, finding that it violated the Constitutional guarantee of freedom of religion by specifically targeting a particular religion—the Santería church. Evidence form the case showed that some members of the town council were biased against the Santería church, and that the real purpose of the law was less about animal protection and more about finding a way to shut down Santería religious practices. The Court also noted that the town refused to give an individual exemption from the law to the Santería church even though others had been granted such exemptions for a host of reasons.
Wedding Cakes and Same Sex Marriage
The Supreme court is currently wrestling with the highly publicized “Masterpiece Cake” case. Here, a baker refused to make a wedding case for a same sex couple asserting that doing so would violate his deeply held religious beliefs. Colorado had earlier ruled that the baker’s actions ran afoul of Colorado anti-discrimination laws (which banned discrimination based on several grounds, including race, creed or sexual orientation).
The couple argued the anti-discrimination law had nothing to do with religion, that non-discrimination was a fundamental American value, and that any impact on religion in this case was minimal. They also argued that making and selling a cake did not mean that the baker was endorsing same sex marriage. The baker strongly disagreed and argued (citing the “chicken killing” case) he should be given an individual exemption from the anti-discrimination law to protect his religious beliefs. He also noted that the couple could easily obtain a wedding cake from many other nearby bakers. The case was argued in December, and the Court is likely to be sharply split when it finally rules (which suggests that the Court believes that both sides have credible arguments).
Bringing It All Together
These cases highlight two key takeaways about “Freedom of Religion” under our Constitution.
First, where a government targets a particular religion with the intent to harm or interfere with it (like the “chicken killing” case) that law is almost certainly unconstitutional. But where there is a neutral law that is not aimed at religion (like the “peyote” case) that law will often be upheld against a Constitutional challenge, even if the law has the unintended effect of interfering with a religious practice.
Second, the hardest cases focus on religious conduct or action—baking a cake, sacrificing a chicken, or using peyote. These are hard precisely because they pit valid religious practices against valid laws covering non-religious activities. Since both sides of the dispute are resting on “valid” grounds, the courts often struggle to find a fair compromise.
Contrast these religious “conduct” cases with religious beliefs, prayers, or attendance at worship services. There are very few legal disputes about these core religious freedoms because nearly everyone agrees—they are fully and strongly protected by the Free Exercise clause of the Constitution. In other words, the Court may split 5 to 4 on the Colorado wedding cake case, but all nine justices would agree that the baker has the right to hold his religious beliefs, even if those beliefs contradict Colorado’s anti-discrimination law.
Ben Lenhart is a graduate of Harvard Law School and has taught constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.