Part 1, Section 1: The Free Exercise Clause

The Free Exercise Clause

Preliminary Discussion

The First Amendment begins by stating that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” The first phrase is called the Establishment Clause. The phrase following the comma is called the Free Exercise Clause. Before we even begin to explain the various interpretations of these provisions it is important to point out that these twin prohibitions no longer apply to just Congress alone, but to all levels (and branches) of government. This incorporation of these clauses is a joint result of the addition of the 14th Amendment to the Constitution in 1868, and a gradual evolution in thought by the U.S. Supreme Court through the years to interpret the Due Process Clause of that amendment as applying most, but not all, of the Bill of Rights to the states as well.

The Free Exercise Clause protects individuals from government persecution based on hostility to their religious beliefs, including the right not to believe. The Establishment Clause forbids government favoritism towards any religious group, at the very least, and government endorsement of religion generally. One clause prevents government persecution of religion; the other prohibits government promotion of religion. The combined effect of these two clauses is intended to maintain government neutrality towards religion.

But what does it mean that government can’t promote or advance religion? Does that mean that government has to pretend that religion doesn’t exist? That the local police department cannot investigate a crime if the local priest has had his church robbed?

What does it mean exactly that government can’t interfere with religion? Does that mean that if your religion requires you to sacrifice your firstborn child, the government can’t prevent or punish this act, allowing you to literally get away with murder?

Such an untrammeled interpretation of either clause would be absurd. Church/state separation does not mean that government must completely blind itself to the existence of religion. Nor does the “free” exercise of religion mean that one can do whatever he or she wants, using a religious justification. But beyond that, what rules can we develop in interpreting these clauses that everyone — or at least most people — could agree were fair and just rules? Is there a principled basis that is clear and understandable for determining how judges should interpret the First Amendment?

One thing most commentators agree on, whatever side of the argument they’re on, is that the state of jurisprudence regarding religious affairs is in disarray with seemingly contradictory, often incoherent, rules governing how decisions are made by the courts.

The Court seems to be scrupulously separationist when it comes to the teaching of evolution in the public school. The mere mention of creationism in the science classroom as a possible competing theory is absolutely forbidden. On the other hand, the existence of chaplains in the legislature, paid for with taxpayer dollars, appears to be a clear victory for the forces of accommodation or non-preferentialism. In other instances, such as in the area of publicly-funded holiday displays, the Court seems to have split the difference between the two sides, with neither side being pleased with the resulting compromise. A crèche, standing alone on public property during the holiday season, is a violation of church/state separation. However, a Jewish menorah surrounded by two or more secular holiday symbols, such as a Santa Claus and Christmas tree, does not cross the line.

Such seemingly contradictory decisions seem to be also present in the history of the jurisprudence of the Free Exercise Clause as well. In the section that follows we will explore the inconsistencies of Supreme Court jurisprudence in this area and what is currently the prevailing view of the Court as to the proper interpretation of this clause.

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