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Another fundamental question about religious freedom that divides the public and justices alike is what to do when religious beliefs and practices conflict with state goals. The second part of the First Amendment grant of religious freedom guarantees that Congress shall make no law prohibiting the free exercise of religion. The free exercise clause, as it is called, has generated as much controversy as the establishment clause. When is the state justified in regulating religion? Although Americans have an absolute right to believe whatever they want, their freedom to act is subject to government regulation (see Snapshot of America: What Do We Believe?).²¹ The state’s police power allows it to regulate behavior in order to protect its citizens and to provide social order and security. These two valued goods of religious freedom and social order are bound to conflict, and the Court has had an uneasy time trying to draw the line between them. Although it waffled a bit before doing so, the Court has said that schoolchildren cannot be required to salute the American flag if it violates their religious principles to do so (as it does for Jehovah’s Witnesses).²²

free exercise clause the First Amendment guarantee that citizens may freely engage in the religious activities of their choice

police power the ability of the government to protect its citizens and maintain social order

The Court has gone back and forth on other religious freedom issues as it has struggled to define what actions the state might legitimately seek to regulate. For a while the Court held that any incidental burden placed on religious freedom must be justified by a compelling state interest, that is, the state must show that it is absolutely necessary for some fundamental state purpose that religious freedom be limited.²³ How the Court determines what is and what is not a compelling state interest is examined in Chapter 5.

compelling state interest a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently

Snapshot of America: What Do We Believe?

Description

Source: Pew Research Center, “America’s Changing Religious Landscape,” May 12, 2015, www.pewforum.org/2015/05/12/americas-changing-religious-landscape/.

The Court rejected this compelling state interest test, however, in Employment Division, Department of Human Resources v. Smith (1990), when it held that if the infringement on religion is not intentional but is rather the by-product of a general law prohibiting socially harmful conduct, applied equally to all religions, then it is not unconstitutional.²⁴ The Court found that the compelling state interest test, while necessary for cases dealing with matters of race and free speech, was inappropriate for religious freedom issues. Under the Smith ruling, a number of religious practices have been declared illegal by state laws on the grounds that the laws do not unfairly burden any particular religion.

Religious groups consider the Smith ruling a major blow to religious freedom because it places the burden of proof on the individual or church to show that its religious practices should not be punished, rather than on the state to show that the interference with religious practice is absolutely necessary. In response to the Smith decision, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA). This act, supported by a coalition of ninety religious groups, restored the compelling state interest test for state action limiting religious practice and required that when the state did restrict religious practice, it be carried out in the least burdensome way. However, in the 1997 case of City of Boerne v. Flores, the Court held that the RFRA was an unconstitutional exercise of congressional power.²⁵ Congress amended the act in 2003 to apply only to the federal government, and in 2006 the Supreme Court affirmed the amended federal RFRA when it ruled that the act protected a New Mexico church’s use of tea containing an illegal substance for sacramental purposes, reinstating the compelling state interest test.²⁶

Supporters of greater freedom for religious institutions were heartened greatly in 2012, when the Supreme Court issued a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, which the New York Times called perhaps “its most significant religious liberty decision in two decades.”²⁷ In Hosanna-Tabor, the Court held that the hiring practices of religious groups could not be regulated by federal employment law (in this case, law that prohibited discrimination against an employee with a disability), because that would essentially give government the right to tell such groups whom they could hire. Still, the sweeping decision has not stopped critics of the Court’s earlier Boerne ruling from arguing that to protect religious freedom, the Constitution should be amended to make RFRA the law of the land.²⁸

Concern over religious freedom among church members grew after the full implementation of the Patient Protection and Affordable Care Act (ACA) in 2014. The Obama administration interpreted the ACA requirements as meaning that employer-based health insurance should provide birth control coverage, but in 2012 the Supreme Court ruled, in Burwell v. Hobby Lobby, that corporations that are not publicly traded (so-called closely held corporations) did not have to provide such coverage if it violated the owners’ religious beliefs. This case not only upheld the right of employers not to provide contraception coverage if it conflicted with the employer’s religious beliefs but also affirmed that right for some kinds of corporations as well as for individuals.

Meanwhile, when the federal law appeared to be in jeopardy, many states passed their own RFRAs to protect religious practices at the state level, and they have been used to protect a variety of controversial practices on religious grounds, including the denial of services and rights to those in the LGBTQ community. Such laws proliferated again in 2015 and 2016 in the wake of the Supreme Court’s ruling that constitutionalized marriage equality. States such as Indiana, Mississippi, and North Carolina suffered serious blowback from companies that considered the intent of such laws to be discriminatory and chose to take their business elsewhere. (We will read more about this in Chapter 5.)

In Your Own Words

Describe how the First Amendment protects both church and state, as well as individuals’ religious freedom.