Understanding the Free Exercise Clause


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The Free Exercise Clause is the part of the First Amendment that reads:

Congress shall make no law ... prohibiting the free exercise (of religion) ...

The Supreme Court has, of course, never interpreted this clause in a completely literal way. Murder is illegal, for example, regardless of whether it is committed for religious reasons.

Interpretations of the Free Exercise Clause 

There are two interpretations of the Free Exercise Clause:

  1. The first freedoms interpretation holds that Congress may restrict religious activity only if it has a "compelling interest" in doing so. This means that Congress may not, for example, ban the hallucinatory drug peyote that is used by some Native American traditions because it has no compelling interest in doing so. 
  2. The nondiscrimination interpretation holds that Congress may restrict religious activity as long as the intent of a law is not to restrict religious activity. Under this interpretation, Congress can ban peyote as long as the law is not specifically written to target a specific religious practice.

Interpretation largely becomes a non-issue when religious practices stay within the confines of the law. The First Amendment clearly protects an American’s right to worship as he chooses when the practices of his religion are in no way illegal.

It’s typically not illegal to confine a venomous snake in a cage at a service, for example, provided all wildlife licensing requirements are met. It might be illegal to turn that venomous snake loose among a congregation, resulting in a worshiper being struck and subsequently dying. The question becomes whether the worship leader who turned the snake loose is guilty of murder or – more likely – manslaughter. An argument can be made that the leader is protected by the First Amendment because he did not set the snake free with the intent of harming the worshiper but rather as part of a religious rite. 

Challenges to the Free Exercise Clause 

The First Amendment has been challenged numerous times over the years when crimes are unintentionally committed in the course of practicing religious beliefs. Employment Division v. Smith, decided by the Supreme Court in 1990, remains one of the more noteworthy examples of a bona fide legal challenge to the first freedoms interpretation of the law. The court had previously held that the burden of proof fell to the governing entity to establish that it had a compelling interest in prosecuting even if it meant infringing upon the individual’s religious practices. Smith changed that premise when the court ruled that a governing entity does not have that burden if the law that was violated applies to the general population and does not target the faith or its practitioner per se. 

This decision was tested three years later in a 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah. This time, it held that because the law in question – one that involved animal sacrifice – specifically affected the rites of a certain religion, the government did indeed have to establish a compelling interest.

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Head, Tom. "Understanding the Free Exercise Clause." ThoughtCo, Aug. 28, 2020, thoughtco.com/free-exercise-clause-721627. Head, Tom. (2020, August 28). Understanding the Free Exercise Clause. Retrieved from https://www.thoughtco.com/free-exercise-clause-721627 Head, Tom. "Understanding the Free Exercise Clause." ThoughtCo. https://www.thoughtco.com/free-exercise-clause-721627 (accessed June 2, 2023).