Limits of Religious Freedom

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Constitutional arguments over the First Amendment have always been legally treacherous and fraught with political strife. While the first half remains clear (“establishment of religion”), the latter half (“free exercise thereof”) has been the subject of much legal and political debate.

Legality surrounding religious law in America is best understood as a wide spectrum of interpretation. While there is extensive historical precedent on matters of religious liberty in the United States, several hot button issues currently standing before the Supreme Court and Congress could shift conceptions of just how far religious liberty extends.


The First Amendment was originally intended to keep the federal government out of religion and did not apply to the states. However, the Fourteenth Amendment extended some constitutionally guaranteed rights to the states, including a wider range of religious freedoms.

While there have not been many legal tests of the “free-exercise” clause, existing precedence has generally held federal law superior to religious practice. In Reynolds v. United States (1878), the Mormon Church sued over the Morrill Anti-Bigamy Act in an attempt to continue their polygamist practices. The majority opinion declared that the law was constitutional since it neither interfered with religious belief nor selectively outlawed religious practice. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land,” wrote Chief Justice Morrison Waite, “and, in effect, permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Almost a century later, Reynolds was reaffirmed in Employment Division v. Smith (1990). Oregon’s Employment Division fired Alfred Smith, a public employee, after he used peyote in a Native American Church ceremony. Justice Antonin Scalia, in the majority opinion, explained that the ban applied to everyone equally and that it would be unfair to give a private excuse. He held that religious exceptions would have undermined the law.

The Sherbert Test

While Reynolds and Smith can be used to argue that the free-exercise clause has a rather narrow application, a concurring opinion in Smith by Justice Sandra Day O’Connor applied the test of “compelling government interest.” She argued that the government can only infringe on religious liberty when a compelling interest exists to do so. This test, established by Justice William Brennan, has been used in defense of religious liberty. In Sherbert v. Verner (1963), Adell Sherbert sued her employer when he extended her hours to include Saturdays—a day on which Sherbert, a Seventh-day Adventist, was religiously obliged not to work. The court ruled that the employer had placed a “substantial burden” on her and that the government lacked a compelling interest to deny benefits.

The hence-named “Sherbert Test” requires that an individual must prove sincere religious beliefs and substantial burden through government action. If these are established, the law is unconstitutional unless the government proves a “compelling state interest” and that the interest was pursued in the least intrusive way possible. The Sherbert Test had lasted fewer than 30 years when Smith changed the precedent; since then, the legal community has grown to scorn such tests. Nonetheless, Congress became concerned that religious exercise was at risk and passed the bipartisan Religious Freedom Restoration Act of 1993 (RFRA) to legislatively establish the Sherbert Test. Though President Clinton strengthened the laws through executive orders, Boerne v. Flores (1997) established that Congress can only strengthen federal religious freedoms. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006) thus became the first use of RFRA and the Sherbert Test. Coincidentally, the Court ruled in Gonzales that the government had not established a compelling interest to limit the use of peyote tea in a New Mexico Native American ceremony.

Free Exercise Today

The Sherbert Test and free-exercise clause play into arguments over two current exercise events: gay rights and contraceptive coverage. Though these two issues are different and apply separate constitutional arguments, each rests principally on the role of religious liberty within American society.

Sixteen states have approved laws allowing citizens to “ignore state regulations or laws that contradict his or her sincerely held religious beliefs,” and Kentucky seems likely to approve a similar bill soon. Though applied broadly, these laws are a thinly veiled attempt to allow employment, housing, and other forms of discrimination against homosexuals. In essence, the laws apply a version of the Sherbert Test to states—groups establish sincerely held beliefs and then demonstrate a burden originating from following the law. Because the Sherbert Test applies only at the federal level, it could be seen as either changing state law or as unconstitutional based on Smith’s precedent. Considering many religious objections to gay marriage, any verdict on the issue could have future implications for the debate over who is required to acknowledge marriage between homosexual couples.

This requires something of a tricky legal balance. Even many liberals do not think religious institutions should be forced to perform same-sex marriage, but Smith might not allow for that if same-sex marriage were granted on constitutional grounds. But, the free-exercise clause could allow for private groups to discriminate against homosexual couples (for example, by not catering certain weddings). While states that legalize same-sex marriage can easily outline precisely what discrimination is acceptable, courts are much less able to navigate a middle ground.

Contraceptive Coverage

More publicized has been the U.S. Conference of Catholic Bishop’s lawsuit against the Obama administration. Cardinal Timothy Dolan of New York has led 43 Catholic institutions, ranging from schools to hospitals, in arguing that it is unconstitutional that they must provide birth control to their employees. Most legal scholars argue that the free-exercise clause does not apply here—especially given recent changes exempting religious groups from directly supplying to their employees. The only attempted argument is that not all businesses are subject to the Affordable Care Act’s requirements; therefore, at least in theory, an argument could be made that certain businesses were targeted.

However, the best case for the Catholic group involves using RFRA and the Sherbert Test. Ira Lupu of George Washington Law School laid out to the HPR what could happen. First, groups would need to establish a sincere belief. This has so far required the institution to be a non-profit owned by an explicitly religious group, such as a church. Catholic hospitals and similar institutions that have beliefs but are not active worship places generally have not qualified for the sincere belief requirements.

Next, groups would need to establish that paying for contraceptives constitutes a substantial burden. Lower courts have been divided, but experts expect that the recent exemptions offered by the Obama administration will lessen the burden sufficiently. The exemptions say that religious institutions do not have to pay for contraceptives, but instead insurance companies do (such companies think that in the long run they save the money from preventing unwanted pregnancies). However, when the employers do not pay for the contraceptives, everyone else who buys the company’s insurance bears some of the cost.

The Free-Exercise Clause

Most constitutional law professors that the HPR spoke with believe that the free-exercise clause should not apply to justify gay discrimination or Obamacare exemptions. Eugene Volokh, professor at UCLA Law School, largely reiterated Justice Scalia’s decision and argued that the question was absurd. Federal and state law, he believes, will end up deciding current issues of church and state, and RFRA, in particular, will play a major role. But there is a decent chance that the Supreme Court will rule otherwise.

Stephen L. Carter, professor at Yale Law School, described for the HPR what he calls the “accommodationist” position of the free-exercise clause. “The law must generally accommodate itself to the needs of religious organizations rather than the other way around,” he argues, because “religionists are entitled to exemptions as long as their positions are sincerely held and long-standing—that is, except when the regulation in question is narrowly tailored to serve a compelling state interest.” This common sense approach rejects Smith, and argues instead that the religious should not be required to do anything against their religion. While Justice Scalia argued that this could undermine the law, Carter’s approach essentially requires judgment as to whether the religion’s practices are sincerely held beliefs; thus, there is minimal fear that a new religious practice could be created to undermine the law. Though at times religious institutions have abused the balance of church and state in the past, Carter and many others believe that politicians are the ones overreaching right now, particularly on issues such as contraceptives.

At the moment, Carter’s position is considered conservative. But as recently as the 1990s, his sentiments might have been considered liberal. Justice Scalia, an extreme conservative, wrote the last opinion narrowly reviewing the free-exercise clause, but it is possible that he will join the Court’s conservatives this time around. It is even possible that a liberal judge will select the “old-school” liberal opinion. Justice Sotomayor, a Catholic, may have some sympathy for the USCCB plaintiffs.

Religious Freedom

Current legal precedent has stripped the free-exercise clause of any scope, beyond reiterating the illegality of ad hoc laws. A conservative court ruling could change that, but for now religious practices in the United States are subject to federal, state, and local laws. Depending on whom you talk to, this is either good legal practice or an infringement on religious freedom. Upcoming rulings from the Supreme Court and various legislative compromises will have long-term ramifications on exactly where the line is drawn between the two. It is certainly possible that the Court will argue that religious practice is free only within the limits of the law.

If that happens, America, it seems, will have certainly shed its “Christian” ideals and taken up secular replacements. If, on the other hand, religious freedoms are held as superior to the law, America will affirm its commitment to individualism and aggressive protections of the Bill of Rights. Both paths represent potentially far-reaching ramifications for Obamacare and, perhaps more importantly, protections from discrimination for homosexuals. While elected officials have the power to decide these issues, courts can defer to the Constitution as a sort of trump card. Indeed religious freedom, as much as anything else, is a balancing act between the different branches of government.

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