A Delicate Balance: The Free Exercise Clause and the Supreme Court

  • October 24, 2007


When Americans speak of their most cherished liberties, freedom of worship often tops the list. But this freedom is not absolute. Indeed, throughout most of the nation's history, religious practices have often been subordinated to a variety of government laws and regulations. It was not until the 1960s that courts began to seek a more finely tuned balance between the government's public policy needs and peoples' interest in practicing their faith unencumbered by government regulations or requirements.

The foundation of religious liberty in America is the Free Exercise Clause of the First Amendment to the U.S. Constitution, which states that Congress "shall make no law … prohibiting the free exercise" of religion. This constitutional protection was born out of the Founding Fathers' desire to foster and safeguard freedom of religion. They hoped that, by protecting freedom of worship, they would shield what was already a religiously diverse country from the kinds of religious conflict that had raged in Europe through much of the 16th and 17th centuries.

Many of the first European settlers in America were refugees from these religious conflicts. Ironically, some of these refugees, such as the Puritans of Massachusetts, went on to found colonies that had official or state-sanctioned churches and to punish individuals who dissented from established forms of worship. By the mid-18th century, however, most Protestants in America had earned some measure of religious toleration and freedom. But Catholics, Jews, atheists and other religious minorities remained largely outside the scope of religious liberty protections.

It was the First Great Awakening of the 1730s and 1740s and the American Revolution later in the 18th century that ultimately created a new climate for religious freedom. Between 1776 and 1790, for example, many states included provisions guaranteeing freedom of worship in their new constitutions. And in 1791, the First Amendment was ratified as part of the first 10 amendments to the Constitution, known as the Bill of Rights.

The First Amendment's guarantee that the federal government will respect the "free exercise" of religion seems relatively straightforward. However, in most religious liberty cases, courts have grappled with the same difficult question: Do individuals or groups professing sincerely held religious beliefs have a right because of those beliefs to be exempt from legal requirements generally imposed on all citizens? While the question has remained the same, the courts' answer has changed repeatedly. Indeed, more than a century of Supreme Court decisions in this area have forged a ragged path from one extreme to the other, with a number of permutations in between.

The issue was first addressed by the Supreme Court in the last decades of the 19th century in a number of cases concerning polygamy -- religiously based plural marriages practiced at that time among some members of the Church of Jesus Christ of Latter-day Saints. Polygamy had been outlawed by the federal government in 1862. In the polygamy rulings, the court established the precedent that while the Free Exercise Clause protected religious "beliefs," it did not shield religiously motivated "actions" that came into conflict with the law. Then, beginning in the early 1960s, the court reversed course and issued a number of rulings that embraced the idea that the Free Exercise Clause could exempt religiously motivated actions from certain generally applicable legal requirements. Even important government concerns, such as the education of children, were curtailed in the interest of religious liberty. But by the 1990s, the court once again changed direction and largely re-established the doctrine forged in the 19th-century polygamy cases. This, in turn, prompted a reaction from the U.S. Congress and some state legislatures, which passed laws aimed at offering greater protection for religious liberty.

These shifting interpretations of the right to free exercise illustrate the fact that the country -- not to mention the courts -- has yet to reach a consensus on exactly how to accommodate religious beliefs and practices. Whether the appointments of two new justices to the Supreme Court (Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006) will help forge this elusive consensus remains to be seen. But if history is any guide, judges, politicians and citizens will continue to spar over the exact meaning of "free exercise" for decades to come.