Freedom of Religious Exercise

AuthorRuthann Robson
Robson The First Amendment
Chapter& Fourteen:& FREEDOM& OF&
This Chapter considers freedom of religion in the First Amendment and
in statutory contexts.
Chapter Outline
I. Belief v. Practice
Reynolds v. United States
Note: The Polygamy Voting Cases
Note: Fraud or Heresy?
II. The Problem of Neutral Rules of General Applicability and Religious Exercise
Sherbert v. Verner
Lyng v. Northwest Indian Cemetery Protective Association
Employment Division, Department of Human Resources of Oregon v. Smith
III. Legislating Free Exercise
Text of Religious Freedom Restoration Act (RFRA)
Note: The Constitutionality of RFRA
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal
Burwell v. Hobby Lobby Stores, Inc.
Text of RLUIPA
Note: The Relevance of RLUIPA for RFRA
Note: Prison Litigation Under RLUIPA
IV. Targeting Religion and Ministerial Employees
Church of the Lukumi Babalu Aye v. City of Hialeah
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment
Opportunity Commission
Robson The First Amendment
98 U.S. 145 (1879)
[ERROR to the Supreme Court of the Territory of Utah.
This is an indictment found in the District Court for the third judicial district of
the Territory of Utah, charging George Reynolds with bigamy, in violation of sect.
5352 of the Revised Statutes, which, omitting its exceptions, is as follows:--
'Every person having a husband or wife living, who marries another,
whether married or single, in a Territory, or other place over which the
United States have exclusive jurisdiction, is guilty of bigamy, and shall
be punished by a fine of not more than $500, and by imprisonment for a
term of not more than five years.']
5. As to the defence of religious belief or duty.
On the trial, the plaintiff in error, the accused, proved that at the time of his
alleged second marriage he was, and for many years before had been, a member
of the Church of Jesus Christ of Latter-Day Saints, commonly called the
Mormon Church, and a believer in its doctrines; that it was an accepted
doctrine of that church 'that it was the duty of male members of said church,
circumstances permitting, to practise polygamy ; . . . that this duty was
enjoined by different books which the members of said church believed to be of
divine origin, and among others the Holy Bible, and also that the members of
the church believed that the practice of polygamy was directly enjoined upon
the male members thereof by the Almighty God, in a revelation to Joseph Smith,
the founder and prophet of said church; that the failing or refusing to practise
polygamy by such male members of said church, when circumstances would
admit, would be punished, and that the penalty for such failure and refusal
would be damnation in the life to come.' He also proved 'that he had received
permission from the recognized authorities in said church to enter into
polygamous marriage; . . . that Daniel H. Wells, one having authority in said
church to perform the marriage ceremony, married the said defendant on or
about the time the crime is alleged to have been committed, to some woman by
the name of Schofield, and that such marriage ceremony was performed under
and pursuant to the doctrines of said church.'
Upon this proof he asked the court to instruct the jury that if they found from
the evidence that he 'was married as charged-if he was married-in pursuance of
and in conformity with what he believed at the time to be a religious duty, that
the verdict must be 'not guilty." This request was refused, and the court did
charge 'that there must have been a criminal intent, but that if the defendant,
under the influence of a religious belief that it was right,-under an inspiration,
if you please, that it was right,-deliberately married a second time, having a first
wife living, the want of consciousness of evil intent-the want of understanding
Robson The First Amendment
on his part that he was committing a crime-did not excuse him; but the law
inexorably in such case implies the criminal intent.'
Upon this charge and refusal to charge the question is raised, whether religious
belief can be accepted as a justification of an overt act made criminal by the law
of the land. The inquiry is not as to the power of Congress to prescribe criminal
laws for the Territories, but as to the guilt of one who knowingly violates a law
which has been properly enacted, if he entertains a religious belief that the law
is wrong.
Congress cannot pass a law for the government of the Territories which shall
prohibit the free exercise of religion. The first amendment to the Constitution
expressly forbids such legislation. Religious freedom is guaranteed everywhere
throughout the United States, so far as congressional interference is concerned.
The question to be determined is, whether the law now under consideration
comes within this prohibition.
The word 'religion' is not defined in the Constitution. We must go elsewhere,
therefore, to ascertain its meaning, and nowhere more appropriately, we think,
than to the history of the times in the midst of which the provision was adopted.
The precise point of the inquiry is, what is the religious freedom which has been
Before the adoption of the Constitution, attempts were made in some of the
colonies and States to legislate not only in respect to the establishment of
religion, but in respect to its doctrines and precepts as well. The people were
taxed, against their will, for the support of religion, and sometimes for the
support of particular sects to whose tenets they could not and did not subscribe.
Punishments were prescribed for a failure to attend upon public worship, and
sometimes for entertaining heretical opinions. The controversy upon this
general subject was animated in many of the States, but seemed at last to
culminate in Virginia. In 1784, the House of Delegates of that State having
under consideration 'a bill establishing provision for teachers of the Christian
religion,' postponed it until the next session, and directed that the bill should
be published and distributed, and that the people be requested 'to signify their
opinion respecting the adoption of such a bill at the next session of assembly.'
This brought out a determined opposition. Amongst others, Mr. Madison
prepared a 'Memorial and Remonstrance,' which was widely circulated and
signed, and in which he demonstrated 'that religion, or the duty we owe the
Creator,' was not within the cognizance of civil government. At the next session
the proposed bill was not only defeated, but another, 'for establishing religious
freedom,' drafted by Mr. Jefferson, was passed. In the preamble of this act
religious freedom is defined; and after a recital 'that to suffer the civil
magistrate to intrude his powers into the field of opinion, and to restrain the
profession or propagation of principles on supposition of their ill tendency, is a
dangerous fallacy which at once destroys all religious liberty,' it is declared 'that
it is time enough for the rightful purposes of civil government for its officers to
interfere when principles break out into overt acts against peace and good
order.' In these two sentences is found the true distinction between what
properly belongs to the church and what to the State.

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