Free Exercise

• Pages: 261-280
• Author: Daniel A. Farber

261

Chapter 13

FREE EXERCISE

The opening clauses of the First Amendment concern relig ion:

“Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof.” These few words have given

rise to tremendous contro versy. What is an “establishment” of

religion? Does it mean only a formal state church, like the Church of

England? Or do es it mean any form of government preference or

support for a specific religion, or any preference or support for

religion in general? And what abou t “free exercise”? Clearly, a law

targeting a specific religious practice is generally impermissible. But

what about a general l aw that happens to forbid a particular

religious practice, like a ban on alcohol as applied to sacramental

wine? Even broader issues lurk behind these, about the role that

religious motivation and sectarian groups play in American public

life, and about religious diversity as a form of multiculturalism.

In terms of societal importance, not to mention scholarly

attention, few areas of First Amendment law have loomed as large

as the religion clauses. The topic of almost every chapter in this book

is complex enough to warrant a book of its own. Nonetheless,

probably none has been the subject of so many rece nt books as the

role of religion in American public life. In these final two chapters,

we will only touch the surface of the profound issues in this area. The

goal of these chapters is simply to identify the issues, sketch the

major opposing positions, and analyze the Supreme Court’s efforts.

This chapter focu ses on the Free Exercise Clause. We begin by

examining the special constitutional standing of religion, including

the reasons for its inclusion in the Constitution. The next section

discusses how the Supreme Court has approached cases involving

government intrusion into religious matters. We then focus on a

central issue in Fre e Exercise law: the extent to which religious

practices are entitled to exemption from general legal requirements.

This is an area where the Supreme Court has been especially

active in the past few ye ars, and there will clearly be much more to

come. The Court seems poised to overturn a decision that has been

central to recent doctrine, and the chapter closes with a discussion of

possible future directions.

I. The Constitutional Status of Religion

Why was “religion” singled out for special treatment in the

Constitution? Should it receive special constitutional treatment? And

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RELIGION

Pt. IV

what does “religion” mean in this context, anyway? We address these

questions in turn.

A. Religious Freedom in American History

When English settlers arrived in America, their prior experience

with religious issues had been incendiary—literally so, in that many

still remembered a history that included burning “heretics” at the

stake. From the time Henry VIII pulled away from Rome, religious

conflict had been in the forefront of English life, beginning with the

bitter struggles between Catholics and Protestants for the remainder

of the Tudor dynasty. The Church of England became the established

church, but Protestant dissenters ultimately were responsible for

deposing and executing Charles I. When Cromwell’s reign was o ver,

the Church of England was reestablished. Only in 1688 did

Parliament foreswear persecution of other Protestants, but even

then, Anglicans had a preferred legal position. It was no t until 1839

that Parliament removed major restrictions applying to Catholics.

The American colonies varied in their attitude toward religious

freedom. The Puritans o f New England, having fled religious

persecution in England, lost no time in persecuting other religious

groups. They expelled Baptists and Quakers, making

Congregationalism the established church. Other states such as New

York and Ne w Jersey basically ignored religious sects. At the other

extreme from the Puritans, the founders o f several colonies

emphasized freedom of religion. William Penn founded Pennsylvania

and Delaware, as Roger Williams founded Rhode Island, as refuges

for religious dissidents. Maryland was founded by a Catholic who

promised to allow “fre e exercise” of re ligion by all Chris tians.

Unfortunately, Maryland soon reverted to a more intolerant regime.

The Carolina colony was founded with the help of philosopher

John Locke. Locke was one of a group of great thinkers, beginning

with Spinoza, who developed the concept of religious freedom. After

some initial waffling, Locke espoused the position that religious

tolerance was the only way to prevent explosive conflicts. He stressed

the need to distinguish civil government, concerned only with earthly

interests, from religion, concerned only with spiritual matters.

Although Locke’s views were far-reaching for his time, his support

for religious freedom was not unqualified. He thought the state could

try to persuade religious dissenters to change their ways, and he did

not oppose the English established church. Locke also had no doubt

that religious practices m ust give way before any legitimate secu lar

regulatory interest.

Locke’s followers, such a s Jefferson, played a prominent role in

the struggle for religious freedom in America. As Jefferson put it, “it

does me no injury for my neighbor to say there are twenty gods, or no