Free Exercise of Religion

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.


“The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority.”253 It bars “governmental regulation of religious beliefs as such,”254 prohibiting misuse of secular governmental programs “to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect.”255 Freedom of conscience is the basis of the Free Exercise Clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.256 Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute “conduct” rather than pure “belief.” When it comes to protecting conduct as free exercise, the Court has been inconsistent.257 It has long been held that the Free Exercise Clause does not necessarily prevent the government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.258 What has changed over the years is the Court’s willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.

The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices.259 So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. “This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”260 “There is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference.”261

In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was “fostering an ‘establishment’ of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.”262 Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has been upheld against Establishment Clause challenge,263 although it is also possible for legislation to go too far in promoting free exercise.264 Government need not, however, offer the same accommodations to secular entities that it extends to religious practitioners in order to facilitate their religious exercise; “[r]eligious accommodations . . . need not ‘come packaged with benefits to secular entities.’”265

“Play in the joints” can work both ways, the Court ruled in Locke v. Davey upholding a state’s exclusion of theology students from a college scholarship program.266 Although the state could have included theology students in its scholarship program without offending the Establishment Clause, its choice “not to fund” religious training did not offend the Free Exercise Clause even though that choice singled out theology students for exclusion.267 Refusal to fund religious training, the Court observed, was “far milder” than restrictions on religious practices that have been held to offend the Free Exercise Clause.268

The Court distinguished Locke, however, in Trinity Lutheran Church, explaining that Locke’s holding hinged on that the fact that the State of Washington was prohibiting the dissemination of scholarship money because of what the theology student “proposed to do” with the money as opposed to “who he was.”269 In particular, the Court noted that the Washington scholarship program in Locke could be used by students to attend pervasively religious schools, but the program could not be used for the training of the clergy.270 In contrast, the Trinity Lutheran Church Court held that the State of Missouri’s decision to exclude an otherwise qualified church from a government grant program on the basis of the church’s religious status violated the Free Exercise Clause.271 In so holding, the Court concluded that while the First Amendment allows the government to limit the extent government funds can be put to religious use, the government cannot discriminate based on one’s religious status and, in so doing, put the recipient of a government benefit to the choice between maintaining that status or receiving a government benefit.272

The Belief-Conduct Distinction.—Although 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.”273 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.”274 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,275 but later cases established that religiously grounded conduct is not always outside the protection of the Free Exercise Clause.276 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.277 Thus, although freedom to engage in religious practices was not absolute, it was entitled to considerable protection.

Later cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction of the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow.278 Next, the Court held that the test is inappropriate in the contexts of military and prison discipline.279 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.”280 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.”281 The result is tantamount to a return to the Reynolds belief-conduct distinction.282

The Mormon Cases.—The Court’s first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against the Mormons because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, as it could distinguish between beliefs and acts.283 But the presence of large numbers of Mormons in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute that barred “bigamists,” “polygamists,” and “any person cohabiting with more than one woman” from voting or serving on juries. The Court sustained the law, even as applied to persons entering the state prior to enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run.284 Subsequently, an act of a territorial legislature that required a prospective voter not only to swear that he was not a bigamist or polygamist but also that “I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . ,” was upheld in an opinion that condemned plural marriage and its advocacy as equal evils.285 And, finally, the Court sustained the revocation of the charter of the Mormon Church and confiscation of all church property not actually used for religious worship or for burial.286

The Jehovah’s Witnesses Cases.—In contrast to the Mormons, the sect known as Jehovah’s Witnesses, in many ways as unsettling to the conventional as the Mormons were,287 provoked from the Court a lengthy series of decisions288 expanding the rights of religious proselytizers and other advocates to use the streets and parks to broadcast their ideas, though the decisions may be based more squarely on the speech clause than on the Free Exercise Clause. The leading case is Cantwell v. Connecticut.289 Three Jehovah’s Witnesses were convicted under a statute that forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant’s cause was “a religious one” and to decline to issue a license if he determined that it was not.290 Such power amounted to a prior restraint upon the exercise of religion and was invalid, the Court held.291 The breach of the peace count arose when the three accosted two Catholics in a strongly Catholic neighborhood and played them a phonograph record which grossly insulted the Christian religion in general and the Catholic Church in particular. The Court voided this count under the clear-and-present danger test, finding that the interest sought to be upheld by the state did not justify the suppression of religious views that simply annoyed listeners.292

A series of sometimes-conflicting decisions followed. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets,293 but eleven months later it vacated the decision and struck down such fees.294 A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held to violate the First Amendment when applied to distributors of leaflets advertising a religious meeting.295 A state child labor law, however, was held to be validly applied to punish the guardian of a nine-year old child who permitted her to engage in “preaching work” and the sale of religious publications after hours.296 The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory “times, places, and manners” terms and which did not seek to regulate the content of the religious message to be communicated.297 In 2002, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit.298 The Court stated that the requirement was “offensive . . . to the very notion of a free society.”

Free Exercise Exemption From General Governmental Requirements.—As described above, the Court gradually abandoned its strict belief-conduct distinction, and developed a balancing test to determine when a uniform, nondiscriminatory requirement by government mandating action or nonaction by citizens must allow exceptions for citizens whose religious scruples forbid compliance. Then, in 1990, the Court reversed direction in Employment Division v. Smith,299 confining application of the “compelling interest” test to a narrow category of cases.

In early cases the Court sustained the power of a state to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag,300 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds.301 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so,302 only in later cases to cast doubt on this resolution by statutory interpretation,303 and still more recently to leave the whole matter in some doubt.304

Braunfeld v. Brown305 held that the Free Exercise Clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant who observed Saturday as the Sabbath and was thereby required to be closed two days of the week rather than one. This requirement did not prohibit any religious practices, the Court’s plurality pointed out, but merely regulated secular activity in a manner making religious exercise more expensive.306 “If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s 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.”307

Within two years the Court in Sherbert v. Verner308 reversed this line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. If this denial of benefits is to be upheld, the Court said, “it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant’s religions may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . . .’”309 First, the disqualification was held to impose a burden on the free exercise of Sherbert’s religion; it was an indirect burden and it did not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice.310 Second, there was no compelling interest demonstrated by the state. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, “it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”311

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board312 involved a Jehovah’s Witness who quit his job when his employer transferred him from a department making items for industrial use to a department making parts for military equipment. While his belief that his religion proscribed work on war materials was not shared by all other Jehovah’s Witnesses, the Court held that it was inappropriate to inquire into the validity of beliefs asserted to be religious so long as the claims were made in good faith (and the beliefs were at least arguably religious). The same result was reached in a 1987 case, the fact that the employee’s religious conversion rather than a job reassignment had created the conflict between work and Sabbath observance not being considered material to the determination that free exercise rights had been burdened by the denial of unemployment compensation.313 Also, a state may not deny unemployment benefits solely because refusal to work on the Sabbath was based on sincere religious beliefs held independently of membership in any established religious church or sect.314

The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. The first two such cases involved the Amish, whose religion requires them to lead a simple life of labor and worship in a tight-knit and self-reliant community largely insulated from the materialism and other distractions of modern life. Wisconsin v. Yoder315 held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause. The Court first determined that the beliefs of the Amish were indeed religiously based and of great antiquity.316 Next, the Court rejected the state’s arguments that the Free Exercise Clause extends no protection because the case involved “action” or “conduct” rather than belief, and because the regulation, neutral on its face, did not single out religion.317 Instead, the Court analyzed whether a “compelling” governmental interest required such “grave interference” with Amish belief and practices.318 The governmental interest was not the general provision of education, as the state and the Amish agreed as to education through the first eight grades and as the Amish provided their children with additional education of a primarily vocational nature. The state’s interest was really that of providing two additional years of public schooling. Nothing in the record, the Court found, showed that this interest outweighed the great harm that it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.319

But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee,320 the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs.321 Compulsory payment of taxes was necessary for the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer.

“A compelling governmental interest” was also found to outweigh free exercise interests in Bob Jones University v. United States,322 in which the Court upheld the I. R. S.’s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government’s “fundamental, overriding interest in eradicating racial discrimination in education”—found to be encompassed in common law standards of “charity” underlying conferral of the tax exemption on “charitable” institutions—“substantially outweighs” the burden on free exercise. Nor could the schools’ free exercise interests be accommodated by less restrictive means.323

In other cases, the Court found reasons not to apply compelling interest analysis. Religiously motivated speech, like other speech, can be subjected to reasonable time, place, or manner regulation serving a “substantial” rather than “compelling” governmental interest.324 Sherbert’s threshold test, inquiring “whether government has placed a substantial burden on the observation of a central religious belief or practice,”325 eliminates other issues. As long as a particular religion does not proscribe the payment of taxes (as was the case with the Amish in Lee), the Court has denied that there is any constitutionally significant burden resulting from “imposition of a generally applicable tax [that] merely decreases the amount of money [adherents] have to spend on [their] religious activities.”326 The one caveat the Court left—that a generally applicable tax might be so onerous as to “effectively choke off an adherent’s religious practices”327 —may be a moot point in light of the Court’s general ruling in Employment Division v. Smith, discussed below.

The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals’ religious beliefs, on the other. Sherbert’s compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass’n328 held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: “ ‘the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’”329 Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping.330 It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government’s recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections.331

Compelling interest analysis is also wholly inapplicable in the context of military rules and regulations, where First Amendment review “is far more deferential than . . . review of similar laws or regulations designed for civilian society.”332 Thus the Court did not question the decision of military authorities to apply uniform dress code standards to prohibit the wearing of a yarmulke by an officer compelled by his Orthodox Jewish religious beliefs to wear the yarmulke.333

A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are “‘valid if . . . reasonably related to legitimate penological interests.’”334 Thus because general prison rules requiring a particular category of inmates to work outside of buildings where religious services were held, and prohibiting return to the buildings during the work day, could be viewed as reasonably related to legitimate penological concerns of security and order, no exemption was required to permit Muslim inmates to participate in Jumu’ah, the core ceremony of their religion.335 The fact that the inmates were left with no alternative means of attending Jumu’ah was not dispositive, the Court being “unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”336

Finally, in Employment Division v. Smith337 the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are “generally applicable” when they apply across the board regardless of the religious motivation of the prohibited conduct, and are “not specifically directed at . . . religious practices.”338 The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work “without good cause.” Sherbert and other unemployment compensation cases thus “stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”339 Wisconsin v. Yoder and other decisions holding “that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action” were distinguished as involving “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections” such as free speech or “parental rights.”340 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, the Free Exercise Clause affords no basis for exemption from a “neutral, generally applicable law.” As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in “the political process.”341

Smith has potentially widespread ramifications. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment,342 but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of Lukumi Babalu Aye v. City of Hialeah: “our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”343

Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e. g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression.344 The result is equal protection, but not substantive protection, for religious exercise.345 The Court’s approach also accords less protection to religiously based conduct than is accorded expressive conduct that implicates speech but not religious values.346 On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O’Connor warned, result in less protection for small, unpopular religious sects.347

It does appear that, despite Smith, the Court is still inclined to void the application of generally applicable laws to religious conduct when the prohibited activity is engaged in, not by an individual adherant, but by a religious institution. For instance, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission,348 the Court established a “ministerial exception” that precludes the application of employment discrimination laws349 to claims arising out of an employment relationship between a religious institution and its ministers.350 The Court found that even where such law is a “valid and neutral law of general applicability,” and even if the basis for the employment decision is not religious doctrine, the Free Exercise Clause prohibits the application of an employment discrimination law, since enforcement of such law would involve “government interference with an internal church decision that affects the faith and mission of the church itself.”351

Because of the broad ramifications of Smith, the political processes were soon used in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),352 Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was “to restore the compelling interest test subject antee its application in all cases where free exercise of religion is substantially burdened.”353 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores354 held the Act unconstitutional as applied to the states. In applying RFRA to the states, Congress had exercised its power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the Due Process Clause. But the Court held that RFRA exceeded Congress’s power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. “Congress,” the Court said, “does not enforce a constitutional right by changing what the right is.”355 Moreover, it said, RFRA “reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved . . . [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”356 “RFRA,” the Court concluded, “contradicts vital principles necessary to maintain separation of powers and the federal balance.”357

Boerne did not close the books on Smith, however, or even on RFRA. Although Boerne held that RFRA was not a valid exercise of Fourteenth Amendment enforcement power as applied to restrict states, it remained an open issue whether RFRA may be applied to the Federal Government, and whether its requirements could be imposed pursuant to other powers. Several lower courts answered these questions affirmatively,358 and the Supreme Court has applied RFRA to the Federal Government without addressing any constitutional questions.359

Congress responded to Boerne by enacting a new law purporting to rest on its commerce and spending powers. The Religious Land Use and Institutionalized Persons Act (RLUIPA)360 imposes the same strict scrutiny test struck down in Boerne but limits its application to certain land use regulations and to religious exercise by persons in state institutions.361 In Cutter v. Wilkinson,362 the Court upheld RLUIPA’s prisoner provision against a facial challenge under the Establishment Clause, but it did not rule on congressional power to enact RLUIPA. The Court held that RLUIPA “does not, on its face, exceed the limits of permissible government accommodation of religious practices.”363 Rather, the provision “fits within the corridor” between the Free Exercise and Establishment Clauses, and is “compatible with the [latter] because it alleviates exceptional government-created burdens on private religious exercise.”364

Religious Test Oaths.—Although the Court has been divided in dealing with religiously based conduct and governmental compulsion of action or nonaction, it was unanimous in voiding a state constitutional provision which required a notary public, as a condition of perfecting his appointment, to declare his belief in the existence of God. The First Amendment, considered with the religious oath provision of Article VI, makes it impossible “for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly, profess to have, a belief in some particular kind of religious concept.”365

Religious Disqualification.—The Supreme Court has recognized that the Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects laws that target the religious for “special disability” based on their “religious status” to strict scrutiny.366 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring “[ministers] of the Gospel, or [priests] of any denomination whatever” from serving as a delegate to a state constitutional convention.367 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one’s religion on the “surrender” of the right to seek office as a delegate.368 Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding for the resurfacing of playgrounds because of the church’s religious affiliation.369 Specifically, Chief Justice Roberts, on behalf of the Court,370 noted that Missouri’s policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the “most exacting scrutiny.”371 In so holding, the Court rejected the State of Missouri’s argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.372 Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion,” as well as “outright” prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.373 Moreover, the Court held that Missouri’s policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.374 As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.375

253 Abington School District v. Schempp, 374 U.S. 203, 222–23 (1963).

254 Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in original).

255 Braunfeld v. Brown, 366 U.S. 599, 607 (1961).

256 Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. Watkins, 367 U.S. 488 (1961).

257 Academics as well as the Justices grapple with the extent to which religious practices as well as beliefs are protected by the Free Exercise Clause. For contrasting academic views of the origins and purposes of the Free Exercise Clause, compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1410 (1990) (concluding that constitutionally compelled exemptions from generally applicable laws are consistent with the Clause’s origins in religious pluralism) with Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L. Rev. 357 (1989–90) (arguing that such exemptions establish an invalid preference for religious beliefs over non-religious beliefs).

258 E.g., Reynolds v. United States, 98 U.S. 145 (1879); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494 U.S. 872 (1990).

259 “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.” Walz v. Tax Comm’n, 397 U.S. 668–69 (1970).

260 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987).

261 Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davey, 540 U.S. 712, 718 (2004); Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).

262 Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord, Thomas v. Review Bd., 450 U.S. 707, 719–20 (1981). Dissenting in Thomas, Justice Rehnquist argued that Sherbert and Thomas created unacceptable tensions between the Establishment and Free Exercise Clauses, and that requiring the states to accommodate persons like Sherbert and Thomas because of their religious beliefs ran the risk of “establishing” religion under the Court’s existing tests. He argued further, however, that less expansive interpretations of both clauses would eliminate this artificial tension. Thus, Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring government to grant exemptions from general requirements that may burden religious exercise but that do not prohibit religious practices outright, and would have interpreted the Establishment Clause as not preventing government from voluntarily granting religious exemptions. 450 U.S. at 720–27. By 1990 these views had apparently gained ascendancy, Justice Scalia’s opinion for the Court in the “peyote” case suggesting that accommodation should be left to the political process, i.e., that states could constitutionally provide exceptions in their drug laws for sacramental peyote use, even though such exceptions are not constitutionally required. Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

263 See, e.g., Walz v. Tax Comm’n, 397 U.S. 664 (upholding property tax exemption for religious organizations); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights Act exemption allowing religious institutions to restrict hiring to members of religion); Gillette v. United States, 401 U.S. 437, 453–54 (1971) (interpreting conscientious objection exemption from military service); Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a provision of the Religious Land Use and Institutionalized Persons Act of 2000 that prohibits governments from imposing a “substantial burden on the religious exercise” of an institutionalized person unless the burden furthers a “compelling governmental interest”).

264 See, e.g., Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788–89 (1973) (tuition reimbursement grants to parents of parochial school children violate Establishment Clause in spite of New York State’s argument that program was designed to promote free exercise by enabling low-income parents to send children to church schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales tax exemption for religious publications violates the Establishment Clause) (plurality opinion); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07 (1994) (“accommodation is not a principle without limits;” one limit is that “neutrality as among religions must be honored”).

265 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987)).

266 Locke v. Davey, 540 U.S. 712 (2004).

267 540 U.S. at 720–21. Excluding theology students but not students training for other professions was permissible, the Court explained, because “[t]raining someone to lead a congregation is an essentially religious endeavor,” and the Constitution’s special treatment of religion finds “no counterpart with respect to other callings or professions.” Id. at 721.

268 540 U.S. at 720–21 (distinguishing Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (law aimed at restricting ritual of a single religious group); McDaniel v. Paty, 435 U.S. 618 (1978) (law denying ministers the right to serve as delegates to a constitutional convention); and Sherbert v. Verner, 374 U.S. 398 (1963) (among the cases prohibiting denial of benefits to Sabbatarians)).

269 See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15–577, slip op. at 12 (2017) (emphases in original).

270 Id. at 13 (citing Locke, 540 U.S at 724).

271 Id. at 14–15.

272 Id. at 13–14 (“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.”) (emphasis added).

273 Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).

274 Reynolds v. United States, 98 U.S. 145, 166 (1879). “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.”

275 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.”

276 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 State’s 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.”

277 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.

278 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 government’s 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’”)

279 Goldman v. Weinberger, 475 U.S. 503 (1986); O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

280 494 U.S. 872, 878 (1990).

281 494 U.S. at 890.

282 Employment Division v. Smith is discussed under “Free Exercise Exemption From General Governmental Requirements,” infra, as is the Religious Freedom Restoration Act, which was enacted in response to the case.

283 Reynolds v. United States, 98 U.S. 145 (1879); cf. Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief defense to Mann Act prosecution for transporting a woman across state line for the “immoral purpose” of polygamy).

284 Murphy v. Ramsey, 114 U.S. 15 (1885).

285 Davis v. Beason, 133 U.S. 333 (1890). “Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. . . . To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.” Id. at 341–42.

286 The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). “[T]he property of the said corporation . . . [is to be used to promote] the practice of polygamy—a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. . . . The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” Id. at 48–49.

287 For later cases dealing with other religious groups discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 (1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) (Unification Church). Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Santeria faith).

288 Most of the cases are collected and categorized by Justice Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) (concurring opinion).

289 310 U.S. 296 (1940).

290 310 U.S. at 305.

291 310 U.S. at 307. “The freedom to act must have appropriate definition to preserve the enforcement of that protection [of society]. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. . . . [A] State may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” Id. at 304.

292 310 U.S. at 307–11. “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probabilities of excesses and abuses, these liberties are in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Id. at 310.

293 Jones v. Opelika, 316 U.S. 584 (1942).

294 Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943). See also Follett v. Town of McCormick, 321 U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 389 (1990), as applying “only where a flat license fee operates as a prior restraint”; upheld in Swaggart was application of a general sales and use tax to sales of religious publications.

295 Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance sustained in commercial solicitation context).

296 Prince v. Massachusetts, 321 U.S. 158 (1944).

297 E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v. Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by Unification Church members).

298 Watchtower Bible & Tract Soc’y v. Village of Stratton, 536 U.S. 150 (2002).

299 494 U.S. 872 (1990).

300 Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).

301 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). On the same day, the Court held that a state may not forbid the distribution of literature urging and advising on religious grounds that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943). In 2004, the Court rejected for lack of standing an Establishment Clause challenge to recitation of the Pledge of Allegiance in public schools. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

302 See United States v. Schwimmer, 279 U.S. 644 (1929); United States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 283 U.S. 636 (1931) (all interpreting the naturalization law as denying citizenship to a conscientious objector who would not swear to bear arms in defense of the country), all three of which were overruled by Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (upholding expulsion from state university for a religiously based refusal to take a required course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because as conscientious objector he could not take required oath).

303 United States v. Seeger, 380 U.S. 163 (1965); see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970); see also id. at 344 (Justice Harlan concurring).

304 Gillette v. United States, 401 U.S. 437 (1971) (holding that secular considerations overbalanced free exercise infringement of religious beliefs of objectors to particular wars).

305 366 U.S. 599 (1961). See “Sunday Closing Laws,” supra, for application of the Establishment Clause.

306 366 U.S. at 605–06.

307 366 U.S. at 607 (plurality opinion). The concurrence balanced the economic disadvantage suffered by the Sabbatarians against the important interest of the state in securing its day of rest regulation. McGowan v. Maryland, 366 U.S. at 512–22. Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 610 (Justice Brennan), 616 (Justice Stewart).

308 374 U.S. 398 (1963).

309 374 U.S. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963).

310 374 U.S. at 403–06.

311 374 U.S. at 407. Braunfeld was distinguished because of “a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers.” That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. Id. at 408–09. Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 417 (Justice Stewart concurring), 418 (Justice Harlan and White dissenting).

312 450 U.S. 707 (1981).

313 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987).

314 Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (1989). Cf. United States v. Seeger, 380 U.S. 163 (1965) (interpreting the religious objection exemption from military service as encompassing a broad range of formal and personal religious beliefs).

315 406 U.S. 205 (1972).

316 406 U.S. at 215–19. Why the Court felt impelled to make these points is unclear, as it is settled that it is improper for courts to inquire into the interpretation of religious belief. E.g., United States v. Lee, 455 U.S. 252, 257 (1982).

317 406 U.S. at 219–21.

318 406 U.S. at 221.

319 406 U.S. at 221–29.

320 455 U.S. 252 (1982).

321 The Court’s formulation was whether the limitation on religious exercise was “essential to accomplish an overriding governmental interest.” 455 U.S. at 257–58. Accord, Hernandez v. Commissioner, 490 U.S. 680, 699–700 (1989) (any burden on free exercise imposed by disallowance of a tax deduction was “justified by the ‘broad public interest in maintaining a sound tax system’ free of ‘myriad exceptions flowing from a wide variety of religious beliefs’”).

322 461 U.S. 574 (1983).

323 461 U.S. at 604.

324 Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas to solicit at fixed booth sites on county fair grounds is a valid time, place, and manner regulation, although, as the Court acknowledged, id. at 652, peripatetic solicitation was an element of Krishna religious rites.

325 As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).

326 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to perceive how application of minimum wage and overtime requirements would burden free exercise rights of employees of a religious foundation, there being no assertion that the amount of compensation was a matter of religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (questioning but not deciding whether any burden was imposed by administrative disallowal of a deduction for payments deemed to be for commercial rather than religious or charitable purposes).

327 Jimmy Swaggart Ministries, 493 U.S. at 392.

328 485 U.S. 439 (1988).

329 485 U.S. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).

330 Bowen v. Roy, 476 U.S. 693 (1986).

331 “In neither case . . . would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity.” Lyng, 485 U.S. at 449.

332 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

333 Congress reacted swiftly by enacting a provision allowing military personnel to wear religious apparel while in uniform, subject to exceptions to be made by the Secretary of the relevant military department for circumstances in which the apparel would interfere with performance of military duties or would not be “neat and conservative.” Pub. L. 100–180, § 508(a)(2), 101 Stat. 1086 (1987); 10 U.S.C. § 774.

334 O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

335 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

336 482 U.S. at 351–52 (also suggesting that the ability of the inmates to engage in other activities required by their faith, e.g., individual prayer and observance of Ramadan, rendered the restriction reasonable).

337 494 U.S. 872 (1990) (holding that state may apply criminal penalties to use of peyote in a religious ceremony, and may deny unemployment benefits to persons dismissed from their jobs because of religiously inspired use of peyote).

338 494 U.S. at 878.

339 494 U.S. at 884.

340 494 U.S. at 881.

341 494 U.S. at 890.

342 This much was made clear by Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which struck down a city ordinance that prohibited ritual animal sacrifice but that allowed other forms of animal slaughter.

343 508 U.S. 520, 531 (1993).

344 This latter condition derives from the fact that the Court in Swaggart distinguished earlier decisions by characterizing them as applying only to flat license fees. 493 U.S. at 386. See also Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 39–41.

345 Justice O’Connor, concurring in Smith, argued that “the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause.” 494 U.S. at 901.

346 Although neutral laws affecting expressive conduct are not measured by a “compelling interest” test, they are “subject to a balancing, rather than categorical, approach.” Smith, 494 U.S. at 902 (O’Connor, J., concurring).

347 494 U.S. at 902–03.

348 565 U.S. ___, No. 10–553, slip op. (2012).

349 In this case, the employee, who suffered from narcolepsy, alleged that she had been fired in retaliation for threatening to bring a legal action against the church under the Americans with Disabilities Act, 104 Stat. 327, 42 U.S.C. § 12101 et seq.

350 An important issue in the case was determining when an employee of a religious institution was a “minister.” The Court declined to create a uniform standard, but suggested deference to the position of the religious institution in making such a determinination. In this case, a “called” elementary school teacher (as opposed to a “contract” teacher) was found to be a “minister” based on her title, the religious education qualifications required for the position, how the church and the employee represented her position to others, and the religious functions performed by the employee as part of her job responsibilities. 565 U.S. ___, No. 10–553, slip op. at 15– 20.

351 565 U.S. ___, No. 10–553, slip op. at 15.

352 Pub. L. 103–141, 107 Stat. 1488 (1993); 42 U.S.C. §§ 2000bb to 2000bb–4.

353 Pub. L. 103–141, § 2(b)(1) (citations omitted). Congress also avowed a purpose of providing “a claim or defense to persons whose religious exercise is substantially burdened by government.” § 2(b)(2).

354 521 U.S. 507 (1997).

355 521 U.S. at 519.

356 521 U.S. at 533–34.

357 521 U.S. at 536.

358 See, e.g., In re Young, 141 F.3d 854 (8th Cir. 1998), cert. denied, 525 U.S. 811 (1998) (RFRA is a valid exercise of Congress’s bankruptcy powers as applied to insulate a debtor’s church tithes from recovery by the bankruptcy trustee); O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003) (RFRA may be applied to require the Bureau of Prisons to accommodate religious exercise by prisoners); Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) (RFRA applies to Bureau of Prisons).

359 SeeBurwell v. Hobby Lobby573 U.S. __, No. 13–354. slip op. (2014)(holding that RFRA applied to for-profit corporations and that a mandate that certain employers provide their employees with “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” violated RFRA’s general provisions); See alsoGonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) (affirming preliminary injunction issued under RFRA against enforcement of the Controlled Substances Act to prevent the drinking of a sacramental tea that contains a hallucinogen regulated under the Act).

360 Pub. L. 106–274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq.

361 The Act requires that state and local zoning and landmark laws and regulations which impose a substantial burden on an individual’s or institution’s exercise of religion be measured by a strict scrutiny test, and applies the same strict scrutiny test for any substantial burdens imposed on the exercise of religion by persons institutionalized in state or locally run prisons, mental hospitals, juvenile detention facilities, and nursing homes. Both provisions apply if the burden is imposed in a program that receives federal financial assistance, or if the burden or its removal would affect commerce.

362 544 U.S. 709 (2005).

363 544 U.S. at 714.

364 544 U.S. at 720.

365 Torcaso v. Watkins, 367 U.S. 488, 494 (1961).

366 See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 506 U.S. 520, 533, 542 (1993).

367 435 U.S. 618, 620 (1978).

368 See Id. at 626 (plurality opinion). A plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens noted that the absolute prohibition on the government regulating religious beliefs (as established by Torasco v. Watkins, 367 U.S. 488 (1961)) was inapplicable to the case because the Tennessee disqualification was a prohibition based on religious “status,” not belief. See id. at 626–27. Nonetheless, the plurality opinion concluded that the (1) Tennessee law was governed by the balancing test established under Sherbert v. Verner, 374 U.S. 498, 406 (1963), and (2) the law’s regulation of religious status could not be justified based on the state’s outmoded views of the dangers of clergy participation in the political subject argued that the challenged provision, by establishing as a “condition of office the willingness to eschew certain protected religious practices,” violated the Free Exercise Clause. Id. at 632 (Brennan, J., concurring). Justice Brennan’s concurrence also maintained that the exclusion created by the Tennessee law could violate the Establishment Clause. Id. at 636. In a separate opinion, Justice Stewart noted his agree-subject (Stewart, J., concurring). Rather than relying on the Free Exercise Clause to invalidate the Tennessee law, Justice White’s concurrence suggested that the law was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Id. at 643 (White, J., concurring).

369 See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15–577, slip op. at 5 n.1 (2017).

370 Three Justices (Kennedy, Alito, and Kagan) joined Chief Justice Roberts’ entire opinion, while Justices Thomas and Gorsuch joined in all but a single footnote of the decision. The footnote that Justices Thomas and Gorsuch declined to join was a footnote that claimed that the instant case was examining “express discrimination based on religious identity with respect to playground resurfacing” and did not “address religious uses of funding or other forms of discrimination.” Id. at 18 n.3.

371 Id. at 10.

372 Id.

373 Id. at 10–11. As a result, the Court characterized the church’s injury not so much as being the “denial of a grant” itself, but rather the “refusal to allow the Church . . . to compete with secular organizations for a grant.” Id. at 11.

374 Id. at 14. Both parties agreed, and the Court accepted, that the Establishment Clause did not prevent Missouri from including the church in the state’s grant program. Id. at 6.

375 Id. at 14–15.

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