The Belief-Conduct Distinction
The Belief-Conduct Distinction
While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. 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.238 In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws cannot interfere with mere religious beliefs and opinions, they may with practices.239 The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases,240 but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause.241 Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was compelling and if no alternative forms of regulation would serve that interest was the claimant required to yield.242 Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection.
239 Reynolds v. United States, 98 U.S. 145, 166 (1878). Crime is not the less odious because sanctioned by what any particular sect may designate as religion. Davis v. Beason, 133 U.S. 333, 345 (1890). In another context, Justice Sutherland in United States v. Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental power to regulate action in denying that recognition of conscientious objection to military service was of a constitutional magnitude, saying that unqualified allegiance to the Nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.
240 Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory vaccination); Prince v. Massachusetts, 321 U.S. 158 (1944) (child labor); Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the conduct or activities so regulated [in the cited cases] have invariably posed some substantial threat to public safety, peace or order.
241 Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607 (1961): [I]f the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the States secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.
242 Sherbert v. Verner, 374 U.S. 398, 403, 406-09 (1963). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling state interests in provision of public education, but found insufficient evidence that those interests (preparing children for citizenship and for self-reliance) would be furthered by requiring Amish children to attend public schools beyond the eighth grade. Instead, the evidence showed that the Amish system of vocational education prepared their children for life in their self-sufficient communities.
Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow.243 Next the Court held that the test is inappropriate in the contexts of military and prison discipline.244 Then, more importantly, the Court ruled in Employment Division v. Smith that if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.245 Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to the use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. Accommodation of such religious practices must be found in the political process, the Court noted; statutory religious-practice exceptions are permissible, but not constitutionally required.246 The result is tantamount to a return to the Reynolds belief-conduct distinction.
243 United States v. Lee, 455 U.S. 252 (1982) (holding mandatory participation in the Social Security system by an Amish employer religiously opposed to such social welfare benefits to be indispensable to the fiscal vitality of the system); Bob Jones Univ. v. United States, 461 U.S. 754 (1983) (holding governments interest in eradicating racial discrimination in education to outweigh the religious interest of a private college whose racial discrimination was founded on religious beliefs); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (holding that government has a compelling interest in maintaining a uniform tax system free of myriad exceptions flowing from a wide variety of religious beliefs')