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Verner 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. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion.

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v.

Your Right to Religious Freedom

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.


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Yoder 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.

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. But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee , 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. United States , in which the Court upheld the I. In other cases, the Court found reasons not to apply compelling interest analysis. Smith , discussed below. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates.

Finally, in Employment Division v. Smith 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.

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.

Free Exercise: A Primer

Laws may not single out religiously motivated conduct for adverse treatment, 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. Similar rules govern taxation. 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.

Because of the broad ramifications of Smith , the political processes were soon used in an attempt to provide additional legislative protection for religious exercise.

Regulating Religion: The Courts & the Free Exercise Clause The Courts and the Free Exercise Clause

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. Flores held the Act unconstitutional as applied to the states. 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, and the Supreme Court has applied RFRA to the Federal Government without addressing any constitutional questions. 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 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. Religious Test Oaths. Religious Disqualification.

Regulating Religion: The Courts and the Free Exercise Clause

Schempp, U. Verner, U. S , emphasis in original.

Brown, U. Watkins, U.

First Amendment (Religion-Establishment Clause/Free Exercise Clause)

United States, 98 U. Massachusetts, U. Lee, U. Smith, U. See also Locke v. Davey, U.

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Wilkinson, U. Accord , Thomas v. Review Bd. 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.

Employment Div. In sum, the Court in Cantwell retained the belief—action distinction, but gave actions greater protection than they had enjoyed during the nineteenth century. During the s, the Court extended the constitutional protection afforded to religiously motivated conduct under the free exercise clause. In Sherbert v.

Verner , a Seventh Day Adventist challenged a decision to deny her unemployment benefits following her termination from her job for refusing to work on Saturday, her Sabbath. The Court articulated a new test for assessing whether religiously motivated conduct should be protected under the free exercise clause. The compelling state interest test offered greater protection under the free exercise clause for religiously motivated conduct than had been previously afforded by the Court.

The Court retained this test until its decision in Employment Division v. Smith In Employment Division v. Fearful of the anarchy of religious conscience, the U. Supreme Court opted instead for authoritarianism in this church and state matter: The state's need for civil order is conclusively presumed to be achieved by enforcing uniform obedience to generally applicable laws, and thus legislation must trump the human and constitutional right to religious freedom.

Regulating Religion: The Courts and the Free Exercise Clause - Oxford Scholarship

Rejecting the Court's unthinking rigorism, the book The book recommends an alternative analytical free exercise process grounded within the common law tradition as well as social ethics: casuistry. Casuistical reasoning requires a careful analysis of the particulars and factual context of the case, and relies upon analogies and paradigmatic illustrations to get to the heart of the principles at issue. Keywords: Anarchy , Authoritarianism , casuistry , children , church and state , civil order , conclusive presumptions , conflict of principles , Free exercise of religion , Freedom of conscience , Human rights , Native American Church , Peyote , Religious freedom , social order , Spiritual healing.

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