Free Exercise Clause
The First Amendment prohibits Congress (and states through incorporation) from prohibiting the free exercise of religion.
Elements / Test
Employment Division v. Smith (1990) — current framework:
- Neutral, generally applicable law: Only rational basis review required — no religious exemptions from laws of general applicability that do not target religion
- Laws that target religion (non-neutral or non-generally applicable): Strict scrutiny applies
Exceptions to Smith (strict scrutiny applies):
- Law is not neutral (targets religion on its face or in application)
- Law is not generally applicable (contains secular exemptions but not religious ones — Church of Lukumi)
- Hybrid rights claims (free exercise + another constitutional right)
- Individualized exemption system: Where government grants individualized exemptions, it cannot deny them for religious reasons (Sherbert v. Verner)
Exceptions and Edge Cases
- Pre-Smith: Sherbert v. Verner compelling interest test; still applies to unemployment compensation and possibly other individualized government benefit systems
- RFRA: Congress enacted Religious Freedom Restoration Act (1993) restoring Sherbert compelling interest test for federal law; City of Boerne held RFRA inapplicable to states; many states have their own RFRAs
- Ministerial exception: Churches/religious organizations may discriminate in hiring/firing clergy without employment law liability (Hosanna-Tabor)
- Recent trend (Roberts Court): More protective of religious liberty — Fulton v. City of Philadelphia (2021) — Catholic Social Services exemption required
Policy Rationale
Prevents government coercion of religious practice; respects religious pluralism; protects minority religions from majoritarian legislation. Smith prioritizes rule of law and administrability; pre-Smith approach prioritizes religious autonomy.
Key Cases
| Case | Rule |
|---|---|
| Sherbert v. Verner (1963) | Compelling interest test for laws substantially burdening religion (unemployment context) |
| Employment Division v. Smith (1990) | No exemptions required from neutral, generally applicable laws |
| Church of Lukumi Babalu Aye v. City of Hialeah (1993) | Law targeting religion for non-neutral/non-general-applicability gets strict scrutiny |
| City of Boerne v. Flores (1997) | RFRA unconstitutional as applied to states |
| Masterpiece Cakeshop v. Colorado Civil Rights Comm’n (2018) | Anti-religious hostility in enforcement process violated Free Exercise |