Religion forms culture, and culture dictates laws. A core element of culture is its understanding of the human person and of marriage, sexuality, and the family. In the post-Christian era, as Jewish and Christian morality loses its hold on the culture, we are witnessing new attitudes about these foundational issues. The laws of this country—whether enacted by legislation or executive orders or imposed by judicial fiat—have followed suit, recognizing novel individual rights. The most prominent include the right to same-sex marriage, to abortion on demand, and to change one’s biological sex.
Some religious believers, now seemingly in the minority, find themselves subject to government coercion requiring them not only to recognize these rights but also to participate in conduct that their religion declares objectively immoral. The protagonists include bakers fined for refusing to bake a wedding cake for a same-sex union; nuns forced to provide their employees with health insurance covering abortifacient drugs; and doctors and pharmacists disciplined for refusing to provide medical procedures or drugs they consider immoral.
So the question is, Does the First Amendment’s guarantee of the right to the “free exercise” of religion provide any protection to those who resist laws requiring them to act contrary to their religiously informed consciences? Unless the Supreme Court reverses its case law, the answer is “not much.”
The Constitution of 1787 established a republic in which the interests of the majority of citizens, subject to enumerated procedural checks and balances, would ultimately prevail. The Bill of Rights, adopted two years later, provided a needed counterbalance to the majoritarianism of the original document. Although the majority generally has the power to make the rules, it must nevertheless respect certain rights of the minority. The First Amendment—presumably “first” because of its importance in a free society—protects important rights in absolute terms:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
When faced with state restrictions on freedom of speech or the press, the Supreme Court has honored the language of the First Amendment by subjecting restrictions to strict scrutiny. Most types of restriction are presumed invalid, with the burden on the government to identify a “compelling” state interest and to demonstrate that the law is the least restrictive means available to attain that compelling interest. Although the freedoms of speech and press are not absolute and must occasionally yield to other important interests, the strict-scrutiny standard weighs the balance heavily in favor of individual freedom.
A History of Religious Liberty in America
Given the centrality of religious liberty to the history of the Founding, one might assume a similarly rigorous approach to the religious liberty guaranteed in the Free Exercise Clause of the same amendment. Not so. In those cases where the Court has applied the Free Exercise Clause, except for a brief period in the mid-20th century, it has refused to find that religiously motivatedconduct enjoys any special protection from majoritarian laws.
The first, and still influential, case decided by the Supreme Court under the Free Exercise Clause was Reynolds v. United States (1879). Reynolds upheld a federal law declaring polygamy illegal in the Utah territory, against the claims of a Mormon whose religious duty was to practice plural marriage. The Court articulated a distinction between belief and conduct that holds true today:
Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Having recognized the dichotomy between highly protected belief and less protected conduct, the Court could have articulated some sort of test by which the demands of conscience might be balanced against the competing demands of “social duty” and “good order,” but it did not. The holding of Reynolds may be summarized as “believe what you want but do as the law commands.” In subsequent cases, the Court relied on this principle to reject claims by religious conscientious objectors that the Free Exercise Clause relieved them of the duty to comply with military conscription laws or state laws requiring military education.
During the early 20th century, when the Supreme Court was generally expanding its recognition of individual rights, it assiduously avoided taking up free exercise claims. For example, Pierce v. Society of Sisters (1925) involved a challenge to the constitutionality of the Oregon Compulsory Education Act, which required most children to attend public schools through age 16, in effect abolishing private and parochial schools. Plaintiffs (the Society of Sisters and a group of Catholic parents) argued that the law abridged their rights under several provisions of the Constitution, including the Free Exercise Clause. The Court struck down the law, but not on First Amendment grounds, which it ignored. Instead, the Court found a violation of the sisters’ property right to run a legitimate business, as well as the parents’ due process right to direct their children’s upbringing. The Court avoided an obvious opportunity to establish circumstances in which the First Amendment allows a believer to act in accordance with conscience contrary the requirements of law.
Claims of religious exemption from the requirements of law were, however, unavoidable in the celebrated “flag salute cases” of the 1940s. Minersville School District v. Gobitis (1940) arose from the expulsion of two elementary school children from a public school in Pennsylvania because of their refusal to recite the Pledge of Allegiance, as required by state law. The children’s parents, members of the Jehovah’s Witnesses, challenged the state law on free exercise grounds, as their religion considered the pledge to pay homage to a graven image. Although the lower courts upheld the parents’ free exercise claim, the Supreme Court rejected it. Relying on Reynolds, Justice Felix Frankfurter reaffirmed the principle that religious liberty had never included “exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good.” With all but one Justice agreeing, the Court refused to recognize a First Amendment protection for conduct that violates generally applicable laws: “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” The state had a legitimate interest in promoting national unity, even at the cost of coercing schoolchildren to act against their religious consciences. A spate of discrimination and even violence against the Jehovah’s Witnesses ensued.
Three years later, in West Virginia State Board of Education v. Barnette (1943), the Court reversed the Gobitis case. This, too, involved a challenge by Jehovah’s Witnesses to a law compelling public schoolchildren to salute the flag. The majority of the Court held that the law was unconstitutional, but rather than relying on the Free Exercise Clause, the Court found that the state lacked authority to impose upon any individual the duty to participate in “a ceremony so touching matters of opinion and political attitude.” Therefore, it was “not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute.” The grounds for this decision are important for our analysis. The Barnette decision is now understood to have established the First Amendment right against “compelled speech” rather than any principle of religious liberty.
Until 1963, the Supreme Court had never held that the Free Exercise Clause grants believers any religious exemption from complying with laws of general applicability. Familiar religious exemptions were all a matter of legislative grace. The Selective Services Act, for example, provided express accommodations for Quakers and others who held pacifist religious beliefs. The Volstead Act, passed to implement the prohibition of alcoholic beverages under the Eighteenth Amendment, allowed but regulated the possession and use of wine for “sacramental purposes, or like religious rites.” In these and other areas of life, the demands of conscience were at the mercy of majoritarian legislatures, which were free to recognize religious exemptions but not constitutionally required to do so. As long as the law was neutral (that is, not aimed specifically at religious practice), and of general applicability (that is, not subject to discretionary exceptions), it must be obeyed, regardless of religious objections.
In 1963, however, the Court’s treatment of free exercise claims changed. The landmark case, Sherbert v. Verner (1963), involved another small American denomination, the Seventh Day Adventists. Plaintiff was denied unemployment compensation benefits under state law because she refused to work on Saturday, which she, as an Adventist, honored as the Sabbath. The Warren Court held that the state’s denial of unemployment benefits placed a burden on the exercise of Sherbert’s right of free exercise of her religion. For the first time in its history, the Court applied a strict-scrutiny analysis, requiring that the state prove that a compelling state interest was served by the law and that its means were the least restrictive necessary to accomplish this interest. The strict-scrutiny test, which is extremely hard to satisfy, was predictably not met in this case. The Court found that the state’s identified interest—administrative difficulty in distinguishing feigned religious objections from sincere ones—was insufficient. In several subsequent cases, the Court vindicated the free exercise claims of employees denied unemployment compensation arising from their refusal to work on their Sabbath or to perform work that violated their religious beliefs.
In Wisconsin v. Yoder (1972), the Supreme Court applied the strict-scrutiny test to a free exercise claim outside the workers’ compensation context. Yoder was a challenge by members of the Old Order Amish to the requirements of the Wisconsin Compulsory Education Law, which required attendance at school until age 16. Applying the strict-scrutiny test, the Court found that the state’s interest in education, although important, was not so “compelling” that it justified forcing Amish families to expose their children to secondary schooling, where the children would be taught principles contrary to their faith.
The Sherbert-Yoder line of cases worked a tectonic change in the analysis of religious liberty claims. For the preceding century, the Supreme Court had drawn a clear distinction between religious belief, which was entitled to the highest level of protection against state encroachment, and religiously motivated conduct, which was entitled to no protection when it conflicted with generally applicable law. The Court worried out loud about a lawless society in which everyone was entitled to act as he pleased in accordance with his religious tenets, regardless of the law. The Court made no real effort to articulate standards by which the claims of individual conscience were to be balanced against the demands of the civil law. Sherbert and the cases that followed it took a radically different approach: When the state seeks to coerce compliance with a law that violates sincerely held religious morality, the state must justify its action by identifying a very good reason to do so (a “compelling state interest”) as well as show that it has no other reasonable way to accomplish its goal (“least restrictive means”). Religiously motivated conduct went from unprotected to highly protected.
This regime came to a halt in 1993 with Employment Division v. Smith. The plaintiffs in Smith, Native Americans, were fired because of their use of sacramental peyote in a religious ceremony. The state of Oregon denied their claims for unemployment compensation, on the ground that drug use was “misconduct” under the statute and because peyote use violated Oregon criminal law. Plaintiffs contended that disqualifying them for religious use of peyote burdened their free exercise of religion. Under the Sherbert-Yoder line of decisions, the plaintiffs had a slam-dunk case; even the Oregon Supreme Court held in their favor. But Justice Antonin Scalia, writing for a majority of the Court, rejected the free exercise claim. Without overruling the Sherbert-Yoder line of cases, Justice Scalia distinguished them on the ground that those cases “involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” In analyzing Smith’s claim grounded only in the Free Exercise Clause, the Court returned to Reynolds and Gobitis, remarking that “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” The Court explicitly rejected the strict-scrutiny test. As long as the enactment is a “neutral law of general applicability,” the Free Exercise Clause provides no exemption from obedience. The Court said that any other system would allow each citizen to become a “law unto himself.”
Smith returned the country to the status quo before 1963, under which the only way to gain exemption for religious scruples must be through legislation. Recognizing this, Congress quickly passed the Religious Freedom Restoration Act (RFRA), signed into law by President Bill Clinton in 1993. RFRA purported to reinstate the Sherbert-Yoder test: Laws substantially burdening religious practice, even if they are neutral and generally applicable, must be justified as the least restrictive means of achieving a compelling state interest. The Supreme Court held in 1997 that Congress did not have the authority to impose this standard on the states. Consequently, RFRA now applies only to federal laws and regulations that substantially burden the exercise of religion. Despite what many casual observers may imagine, much of the famous litigation in recent years involving free exercise—notably Burwell v. Hobby Lobby (2014) and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020)—involved RFRA, not the Free Exercise Clause.
After Smith, the Court has occasionally invalided laws on free exercise grounds on a finding that the laws were not neutral or of general applicability and were therefore subject to strict scrutiny. In the most recent case, Fulton v. Philadelphia (2021), Catholic Social Services (CSS) challenged the decision of Philadelphia’s child welfare department to stop referring children to CSS upon discovering that the CSS would not certify same-sex couples to be foster parents on account of its religious beliefs about marriage. The Court found that the city’s policy was not generally applicable, because it contained numerous discretionary exemptions. Applying strict scrutiny, the Court concluded that Philadelphia did not have a compelling reason to deny a religious exemption to CSS, even though the city had never granted exemptions to other agencies on nonreligious grounds. The concurring justices, as well as many commentators, complained that the Court’s determination that the city’s policy was not “generally applicable” was contrived and reflected the majority’s reluctance to face the real issue in the case—whether Smith should be overruled. The same critics pointed out that a simple amendment to Philadelphia’s ordinance would satisfy Fulton and allow the city once again to eliminate CSS from the adoption program. Thus, while Fulton seems to be a victory for religious freedom, it is a narrow and superficial one, as the decision articulated no principle useful in any other case.
As a consequence of a century of Supreme Court cases, culminating in the Smith decision, religious believers have no constitutional protection against laws that force them to cooperate in, or even implement, conduct that is abhorrent to their religiously formed moral beliefs. Although the Court was able to avoid the question in Fulton, the social problem created by the Smith rule is not likely to disappear any time soon.
Until the Supreme Court establishes a workable constitutional principle for the evaluation of free exercise claims, it will face unrelenting pressure to resolve the societal clash between regnant social values and religious belief. Natural law and biblical morality no longer have currency among the media, academics, or many of those who make or enforce the laws. Conduct that was deemed immoral, unnatural, or criminal a few years ago has gained legal and even constitutional protection. Citizens adhering to traditional morality find themselves subjected to the coercive power of the state for refusing to cooperate in acts that their faith tells them are immoral. Although the First Amendment guarantees them the right to the free exercise of their religion, the Supreme Court has told them that “exercise” is limited to belief: They are free to believe but not to live their lives in accordance with their faith. Simply put, in America, the Land of the Free, believers now have no constitutional right to act in accordance with conscience.
The clash between those who adhere to traditional morality and those who claim the right not only to ignore traditional morality but also to compel believers to actively support them has predictably led to social strife. In America, social strife inevitably leads to recourse to the courts. Father John Courtney Murray described the First Amendment as “Articles of Peace,” a civic framework by which individuals in a pluralistic society can live together. By emptying the Free Exercise Clause of any protection for believers who refuse to cooperate in conduct they consider immoral, the Smith decision deprives the Clause of its intended purpose of keeping the peace. The strict-scrutiny test of Sherbert and Yoder, by contrast, forces the state to justify whether the vindication of newly found sexual rights really requires coercing the cooperation of unwilling religious believers. Adoption of this test would by no means guarantee that believers will prevail in every case, but it would at least require a balancing of their rights against the newly found rights of others. If the Bill of Rights is to serve its function of allowing the majority to make the rules while preserving minority rights, it is now incumbent upon the Court to overrule Smith and to articulate standards under which the dictates of conscience can coexist with sexual freedom in this brave new world.
