[{"command":"add_css","data":[{"rel":"stylesheet","media":"all","href":"\/sites\/default\/files\/css\/css_veuEhhb1658wti0_ZAig66JOyixENU-N9zhjLQSLfOQ.css?delta=0\u0026language=en\u0026theme=heritage_theme\u0026include=eJwrTi1LzdNPzkksLq7Uy8tPSQUAPMsGtA"}]},{"command":"invoke","selector":null,"method":"openEssay","args":["10000138","\n\n\u003Carticle about=\u0022\/constitution\/amendments\/1\/essays\/139\/free-exercise-of-religion\u0022 class=\u0022node node--type-constitution-essay node--promoted node--view-mode-embedded clearfix\u0022\u003E\n  \u003Ch1 class=\u0022title\u0022\u003E\u003Cspan\u003EFree Exercise of Religion\u003C\/span\u003E\n\u003C\/h1\u003E\n\n      \u003Cdiv class=\u0022con-location\u0022\u003E\n      Amendment I\n    \u003C\/div\u003E\n    \u003Cdiv class=\u0022con-essay-context\u0022\u003E\n      \n            \u003Cdiv\u003E\u003Cp\u003ECongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....\u003C\/p\u003E\n\u003C\/div\u003E\n      \n    \u003C\/div\u003E\n      \n  \u003Cdiv class=\u0022con-essay-body\u0022\u003E\n    \n            \u003Cdiv\u003E\u003Cp\u003EEstablishing freedom of religion as both constitutional principle and social reality is among America\u2019s greatest contributions to the world. Nevertheless, the concept of free exercise of religion is not self-defining. The boundaries of free exercise, like those of other rights, must be delineated as against the claims of society and of other individuals. The history of the Free Exercise of Religion Clause, in both its original understanding and modern interpretations, reveals two recurring impulses, one giving free exercise a broad, the other a narrow, scope. The narrower view sometimes collapses free exercise into other constitutional rights, for example treating religious activity as no more than a variety of speech or expression. The broader view sees the right of choice in religious practice as independently valuable. The tension between broad and narrow rights has played out in five sets of issues under the Free Exercise of Religion Clause: belief vs. conduct; discriminatory vs. generally applicable laws; institutional free exercise and internal vs. outward acts; religion vs. secular conscience; and the scope of \u201cprohibiting\u201d vs. \u201cburdening.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EThe first key issue concerns the meaning of the protected \u201cexercise\u201d of religion: does it encompass only the belief and profession of a religion, or does it also protect conduct that stems from religious tenets or motivations; for example, wearing a head covering or religious garb, or refusing to accept blood transfusions or other medical treatment?\u003C\/p\u003E\n\n\u003Cp\u003EThe great weight of the original understanding controverts the narrowest interpretation of the text, that is, that belief alone is protected. At the Founding, as today, dictionaries defined \u201cexercise\u201d to include action, not just internal belief. Thomas Jefferson, in his famous 1802 \u201cwall of separation\u201d letter to the Danbury Baptist Association, drew a sharp distinction between protected belief and unprotected action: \u201cthe legitimate powers of government reach actions only, and not opinions\u201d and \u201c[man] has no natural right in opposition to his social duties.\u201d But a number of statements from other leading figures support the broader view\u2014from James Madison\u2019s statement that religion includes \u201cthe manner of discharging\u201d duties to God, to William Penn\u2019s statement that \u201cliberty of conscience [means] not only a meer liberty of the mind, in believing or disbelieving\u2009.\u2009.\u2009.\u2009but the exercise of ourselves in a visible way of worship.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EIn its first interpretation of the Free Exercise of Religion Clause, \u003Cem\u003EReynolds v. United States\u003C\/em\u003E (1879), the Supreme Court drew a sharp line between belief and action, relying on Jefferson\u2019s letter to the Danbury Baptists, in holding that the Mormon practice of polygamy was not protected. Since then, however, the Court has ruled more frequently in line with the original meaning, protecting certain religiously motivated actions such as proselytization, \u003Cem\u003ECantwell v. Connecticut\u003C\/em\u003E (1940), refusing work on one\u2019s Sabbath, \u003Cem\u003ESherbert v. Verner\u003C\/em\u003E (1963), choosing the education of one\u2019s children, \u003Cem\u003EWisconsin v. Yoder\u003C\/em\u003E (1972), and sacrificing animals at a worship service, \u003Cem\u003EChurch of Lukumi Babalu Aye v. City of Hialeah\u003C\/em\u003E (1993). Action inevitably receives less protection than belief, but it is not unprotected.\u003C\/p\u003E\n\n\u003Cp\u003E\u003Cem\u003EReynolds\u003C\/em\u003E, which involved federal and territorial laws against polygamy, was the Court\u2019s only free exercise decision on the merits until the middle of the twentieth century, since the clause applied only to acts by the federal government. During that time, the significance of the Free Exercise of Religion Clause lay less in its legal effect than in its affirmation of the value of religion in American culture. In 1940, however, in Cantwell, the Court \u201cincorporated\u201d the Free Exercise of Religion Clause into the Due Process Clause of the Fourteenth Amendment and applied it to the states. Subsequently, most contests over free exercise have involved state laws.\u003C\/p\u003E\n\n\u003Cp\u003EA second key issue involves discriminatory vs. generally applicable laws. Because it is now accepted that the Free Exercise of Religion Clause protects religiously motivated conduct as well as belief, the most important modern issue has been whether the clause only prohibits laws that target religion itself for restriction, or more broadly requires an exemption in some cases even from a generally applicable law that happens to conflict with a particular religious practice. To take just one of many examples, must an Orthodox Jewish military officer, who is religiously obligated to wear a yarmulke, be exempted from a general rule forbidding all servicemen to wear anything other than official headgear?\u003C\/p\u003E\n\n\u003Cp\u003EOn this issue, the text of the clause can support either the narrow or the broad reading. A law could well be said to be \u201c\u003Cem\u003Eprohibiting\u003C\/em\u003E the free exercise [of religion]\u201d if it in fact prohibits a religious practice, even if it does so incidentally, rather than overtly or intentionally. On the other hand, one might argue that the legislature does not \u201c\u003Cem\u003Emake [a] law\u003C\/em\u003E prohibiting the free exercise\u201d unless the prohibition or restriction on religion is part of the law\u2019s very terms or is the legislature\u2019s intent, as opposed to simply the effect of the law in a particular application.\u003C\/p\u003E\n\n\u003Cp\u003EThis issue therefore requires examination of the legal background and the Founding generation\u2019s attitude toward conflicts between law and religious conscience. By 1789, all but one of the states had free-exercise\u2013type provisions in their constitutions. Many of these state guarantees included provisos that such freedom would not justify, or could be denied for, practices that \u201cdisturb[ed] the public peace\u201d or were \u201cinconsistent with the peace and safety of the State.\u201d Michael McConnell has argued that the provisos reflect the broader, pro-exemptions conception of\u0026nbsp;free exercise, because if religious practices were subject to all general laws, there would be no reason to identify a subset of laws that protected the peace of the state. In response, Philip Hamburger has asserted that in eighteenth-century legal terminology, \u201cevery breach of law [was] against the peace [of the state],\u201d so that the provisos would have been triggered by any secular law of general applicability.\u003C\/p\u003E\n\n\u003Cp\u003EThe legal background also includes accommodations made by colonial and state legislatures for specific religious practices. Virtually all states by 1789 allowed Quakers to testify or vote by an affirmation rather than an oath; several colonies had exempted Quakers and Mennonites from service in the militia; and there was a patchwork of other exemptions throughout the states. Supporters of the narrower view of the Free Exercise of Religion Clause, such as Professor Hamburger, argue that these examples imply only that specific statutory exemptions may be granted by legislative grace. But advocates of the broader interpretation, such as Professor McConnell, infer that the Founding generation thought that exemption from the law was the appropriate response to conflicts between legal and religious duties, that is, an exemption was part of the meaning of \u201cfree exercise\u201d so long as the religious activity did not harm public peace or others\u2019 rights.\u003C\/p\u003E\n\n\u003Cp\u003EMore deeply, the question of exemptions from generally applicable laws implicates ideological differences over the relationship between civil government and religion. One important philosophical influence on the Founders, the Enlightenment liberalism stemming from the writings of John Locke, does not lend itself easily to exempting religious practice from general secular laws. In his famous \u003Cem\u003ELetter Concerning Toleration\u003C\/em\u003E (1689), Locke argued that the proper domains of government and religion were largely separate; \u201cthe power of civil government\u2009.\u2009.\u2009.\u2009is confined to the care of the things of this world,\u201d whereas \u201cchurches have [no] jurisdiction in worldly matters.\u201d Although this limit on government control over belief and doctrine was liberal for its time, just as central to Locke\u2019s understanding was the limit on religion\u2019s role in worldly matters. And in those cases where both religion and government claimed jurisdiction\u2014that is where religious duties clashed with general laws, and an exemption is sought\u2014Locke gave the nod to the government on the ground that \u201cthe private judgment of any person concerning a law enacted in political matters\u2009.\u2009.\u2009.\u2009does not take away the obligation of that law, nor deserve a dispensation.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EThe Enlightenment view, however, was hardly the dominant impetus for religious freedom in America. Popular support for religious freedom came most heavily from the newer evangelical Protestant sects, especially the Baptists and Presbyterians. These religious \u201centhusiasts,\u201d who helped defeat religious taxes in Virginia and elect James Madison to Congress, began from a different premise: that religion was a matter of duties to God, and that God, in the words of Massachusetts Baptist leader Isaac Backus, \u201cis to be obeyed rather than any man.\u201d Madison echoed these ideas in his \u003Cem\u003EMemorial and Remonstrance Against Religious Assessments\u003C\/em\u003E (1785), arguing that the duty to the Creator \u201cis precedent, both in order of time and in degree of obligation, to the claims of Civil Society\u201d; thus, everyone who joins a civil society must \u201cdo it with a saving of his allegiance to the Universal Sovereign.\u201d This view logically suggests that the proper governmental response to conflicts between legal and religious duties is, at least sometimes, exemption from legal duties.\u003C\/p\u003E\n\n\u003Cp\u003EWhether religious exemptions from generally applicable laws are ever constitutionally mandated has been the central question in this area for many years. After rejecting mandated exemptions for many years, the Supreme Court switched course and exempted religious claimants from laws in \u003Cem\u003ESherbert v. Verner\u003C\/em\u003E and \u003Cem\u003EWisconsin v. Yoder\u003C\/em\u003E. In \u003Cem\u003ESherbert\u003C\/em\u003E, the Court struck down a state law that denied unemployment benefits to a Seventh-Day Adventist on the basis that she had refused \u201cavailable\u201d work, when her religion forbade her from working or being available for work on Saturday. Because a different provision of state law specifically barred employers from firing or penalizing employees who objected to Sunday work, the state\u2019s laws overall discriminated against Saturday sabbatarians. However, much of the \u003Cem\u003ESherbert\u003C\/em\u003E opinion\u2019s language cut more broadly, and subsequent decisions interpreted \u003Cem\u003ESherbert\u003C\/em\u003E as a protection for religiously based\u0026nbsp;objections to laws that were clearly generally applicable. Thus, in \u003Cem\u003EYoder\u003C\/em\u003E the Court held that the Free Exercise of Religion Clause protected members of the Amish faith from having to abide by a compulsory school attendance law.\u003C\/p\u003E\n\n\u003Cp\u003EThe pro-exemptions approach, however, was often applied half-heartedly in the next two decades, and in \u003Cem\u003EEmployment Division, Department of Human Resources of Oregon v. Smith\u003C\/em\u003E (1990) the Court declared that the Free Exercise of Religion Clause did not grant an exemption from generally applicable drug law to members of a Native American religion who used peyote in its religious services. The Court abandoned the pro-exemptions approach in most cases, holding that exemptions are not required from a \u201cneutral law of general applicability.\u201d Because most restrictions on religious conduct today come from the application of general laws rather than from laws targeting religion, \u003Cem\u003ESmith\u003C\/em\u003E greatly limited the protections accorded religiously motivated actions.\u003C\/p\u003E\n\n\u003Cp\u003EIn response to \u003Cem\u003ESmith\u003C\/em\u003E, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), reinstating the \u003Cem\u003ESherbert-Yoder\u003C\/em\u003E test that laws that \u201csubstantially burden\u201d religion, even if they are neutral and generally applicable, must be justified as the \u201cleast restrictive means\u201d of achieving a \u201ccompelling governmental interest.\u201d Nonetheless, in \u003Cem\u003ECity of Boerne v. Flores\u003C\/em\u003E (1997), the Supreme Court struck down RFRA as applied to state and local laws, on the ground that Congress exceeded its power to enforce the Fourteenth Amendment in attempting to define the constitutional parameters of the (incorporated) Free Exercise of Religion Clause. RFRA, however, remains applicable to federal laws and regulations, and a number of states have passed their own versions of RFRA. Thus, the rule concerning exemptions from general laws remains divided under modern law, just as there is division and ambivalence in the original understanding of the Free Exercise of Religion Clause.\u003C\/p\u003E\n\n\u003Cp\u003EQuestions also remain over what makes a law fail the \u201cneutral, generally applicable\u201d test. In \u003Cem\u003ELukumi\u003C\/em\u003E, the Court held that ordinances prohibiting the killing of animals fell \u201cfar below\u201d the standard because they contained so many exceptions that they effectively targeted only the ritual sacrifices of the Santeria religion. Many laws, however, contain some secular exceptions but not so many as to target religion. In \u003Cem\u003EFraternal Order of Police v. City of Newark\u003C\/em\u003E (1999), the Third Circuit, through then-Judge Samuel Alito, held that a police department\u2019s rule against officers wearing beards violated a Muslim officer\u2019s free exercise rights because the rule contained an exception for officers with medical conditions requiring beards. In the court\u2019s view, the department\u2019s willingness to accommodate a secular interest but not a religious need \u201cdevalued\u201d religion, triggering strict scrutiny. But other lower courts have required that a law contain more than one secular exception in order to find it not \u201cgenerally applicable.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EThe question whether the provision of secular accommodations triggers a duty to accommodate religious objectors also arises in lawsuits over the Obama administration\u2019s rule requiring employers to include contraception, including some \u201cemergency contraception\u201d medicines that may act as abortifacients, in their employees\u2019 health-insurance coverage. The rule exempts churches, but many other religious organizations (social services, hospitals, and schools), along with commercial businesses run by religious individuals, have objected that it would force them to support acts they believe are sinful, including abortions of new embryos. Suing under both the Free Exercise of Religion Clause and RFRA, the organizations argue that the government must exempt them because it has already recognized numerous exceptions for small businesses, \u201cgrandfathered\u201d plans, and businesses receiving case-by-case waivers on ground of hardship.\u003C\/p\u003E\n\n\u003Cp\u003EA third key issue regards the institutional free exercise of religion and internal vs. outward acts. Although many Free Exercise of Religion Clause cases involve the religious practices of individuals, questions also arise whether religious institutions enjoy distinctive protection, especially for their internal governance. Several Supreme Court decisions affirm institutional rights, beginning with \u003Cem\u003EWatson v. Jones\u003C\/em\u003E (1872), the first in a line of disputes over property ownership in the wake of schisms within denominations. \u003Cem\u003EWatson\u003C\/em\u003E held that courts should resolve such disputes by accepting the decision of the body\u2019s highest authority: for a hierarchically organized\u0026nbsp;church, the highest tribunal, and for a congregationally organized church, the congregation in question. \u003Cem\u003EWatson\u003C\/em\u003E\u2019s principles rested on general common law, but the Court adopted them for the Free Exercise of Religion Clause in \u003Cem\u003EKedroff v. St. Nicholas Cathedral\u003C\/em\u003E (1952). \u003Cem\u003EKedroff\u003C\/em\u003E affirmed a religious organization\u2019s \u201cpower to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.\u201d It held that a state statute transferring control of church property from one Russian Orthodox bishop to another intruded on what was \u201cstrictly a matter of ecclesiastical government\u201d: the power of the church\u2019s highest authority to appoint the ruling bishop for North America.\u003C\/p\u003E\n\n\u003Cp\u003EHowever, in \u003Cem\u003EJones v. Wolf\u003C\/em\u003E (1979), the Court determined that courts deciding church-property disputes could apply \u201cneutral principles\u201d of property, trust, or contract law applicable to organizations in general. \u003Cem\u003EJones\u003C\/em\u003E, coupled with the ruling a few years later in \u003Cem\u003EEmployment Division v. Smith\u003C\/em\u003E, led many to question whether special free exercise protection for religious organizations survived.\u003C\/p\u003E\n\n\u003Cp\u003EEven after \u003Cem\u003EJones\u003C\/em\u003E and \u003Cem\u003ESmith\u003C\/em\u003E, however, lower courts continued to recognize the \u201cministerial exception\u201d to Title VII and other anti-discrimination laws. Under that exception, a court cannot hear a lawsuit by a minister challenging a religious employer\u2019s decision to dismiss him, refuse to hire him, or control the terms of his employment. The lower courts pointed out that \u003Cem\u003ESmith\u003C\/em\u003E had continued to prohibit the government from intervening in \u201ccontroversies over religious dogma or authority.\u201d And in \u003Cem\u003EHosanna-Tabor Evangelical Lutheran Church and School v. EEOC\u003C\/em\u003E (2012), the Court unanimously affirmed the ministerial exception, holding that the Free Exercise of Religion Clause guarantees an organization \u201cthe authority to select and control who will minister to the faithful.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EIn \u003Cem\u003EHosanna-Tabor\u003C\/em\u003E, the federal government argued that \u003Cem\u003ESmith\u003C\/em\u003E\u2019s rejection of exemptions had undermined the ministerial exception, and that protection for churches\u2019 decisions concerning ministers rested largely on the First Amendment\u2019s freedom of expressive association. The government\u2019s position in \u003Cem\u003EHosanna-Tabor\u003C\/em\u003E thus epitomized the narrow view of religious freedom, all but reducing it to expressive rights held equally by secular organizations. \u003Cem\u003EHosanna-Tabor \u003C\/em\u003Eresoundingly rejected the narrow position, calling it \u201chard to square with the text of the First Amendment itself, which gives special\u00ad solicitude to the rights of religious organizations\u201d; it rejected \u201cthe remarkable view that the Religion Clauses have nothing to say about a religious organization\u2019s\u00ad freedom to select its own ministers.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EThe Court held that \u003Cem\u003ESmith\u003C\/em\u003E\u2019s rejection of exemptions extended only to \u201coutward physical acts,\u201d such as the ingestion of peyote in that case, and not to \u201cinternal decisions\u201d concerning a religious organization\u2019s governance or doctrine. Future cases will surely explore this line. One principle should be clear: a religious organization does not lose distinctive free-exercise protection simply because it turns \u201coutward\u201d to the broader society by running schools or social services. This principle is implicated in several recent controversies; the contraception mandate, for example, initially denied protection entirely to a religious organization if it served persons outside its own faith, \u003Cem\u003Eor\u003C\/em\u003E if it served anyone through health or social services, rather than preaching or teaching (\u201cinculcat[ing] religious values\u201d). Such a provision confines free-exercise protection to the narrowest category of the house of worship\u2014 reflecting the view of many proponents that once religion enters any area that might be possibly be described as \u201cpublic,\u201d it must follow all the rules of the regulatory state. But \u003Cem\u003EHosanna-Tabor\u003C\/em\u003E rejects this narrow approach, confirming that a non-church organization such as a school has institutional religious-freedom rights. The question remains, however, what acts of a school, hospital, or social service count as \u201cinternal\u201d matters of doctrine and governance.\u003C\/p\u003E\n\n\u003Cp\u003EThe original understanding supports the freedom of religious organizations to decide certain matters of internal governance without state interference\u2014especially to select and control religious leaders. The clergy-selection question has been sensitive in Western history for almost a thousand years, at least since the medieval controversy between popes and Holy Roman Emperors over who had the power to appoint bishops. Although that dispute involved a fundamental clash between two authorities seeking predominance, the rough\u0026nbsp;compromise that ultimately emerged\u2014popes appointed bishops, emperors appointed civil officials\u2014reflected a solution of separating certain core powers of the church and of the state.\u003C\/p\u003E\n\n\u003Cp\u003EEarly Protestantism, in struggling with the Catholic Church, often sought assistance from civil rulers, sometimes to the point of letting them control clergy selection and other important religious functions. In the Church of England, the most familiar example of an establishment to the American Founders, the government appointed leading clerics, the monarch was official head of the church, and Parliament approved the Thirty-Nine Articles (the church\u2019s doctrinal tenets) and the Book of Common Prayer.\u003C\/p\u003E\n\n\u003Cp\u003EThe First Amendment, in its non-establishment as well as its free exercise provision, confirms that Americans rejected any role for the federal government in choosing church leaders. In 1783 the Vatican proposed an agreement with Congress to approve a Bishop-Apostolic for America now that the new states were outside English authority; but Congress responded that it had \u201cno authority to permit or refuse\u201d the appointment, and the Pope could appoint whomever he wished, because \u201c[t]he subject\u2009.\u2009.\u2009.\u2009being purely spiritual, it is without the jurisdiction and powers of Congress.\u201d James Madison, as secretary of state in 1806, reaffirmed that the civil government had no power over the purely \u201cecclesiastical\u201d matters of choosing a Catholic leader for the Louisiana Territory.\u003C\/p\u003E\n\n\u003Cp\u003ELeading Founding-era proponents of the First Amendment understood it to protect religious institutions\u2019 autonomy, especially concerning clergy selection. Isaac Backus, the leader of Massachusetts Baptists, wrote in 1773 that, \u201cGod has appointed two kinds of government in the world which are distinct in their nature and ought never to be confounded together\u201d\u2014civil and ecclesiastical government\u2014and therefore it was solely a church prerogative to determine what [God\u2019s] worship shall be, who shall minister in it, and how they shall be supported.\u201d The same sentiments were expressed by Enlightenment states-men such as Madison, who as President vetoed a bill incorporating a church in the District of Columbia on the ground, in part, that the bill enacted rules \u201crelative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same, so that no change could be made therein by\u201d the congregation or the denomination. After the U.S. took control of the Louisiana Territory, President Jefferson, responding to a letter from Ursuline nuns who ran a school in New Orleans, assured them that \u201cthe principles of the Constitution of the United States\u201d guarantee that \u201cyour institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.\u201d\u003C\/p\u003E\n\n\u003Cp\u003ECivil involvement in clergy selection, a feature of several colonial arrangements, disappeared during the Founding and early republic. In New England and the Southern colonies, civil authorities regulated the conduct of clergy in the established church and at first prohibited, then licensed, religious teachers from dissenting sects. Such measures triggered massive resistance from Baptists and other dissenters, and they disappeared as part of the commitment both to disestablishment and to free exercise. Clergy-selection issues also led to the demise in 1833 of the Massachusetts religious establishment under which a majority of a town\u2019s voters determined which clergyman would presumptively receive tax-funded subsidies and occupy the town\u2019s \u201cFirst Church.\u201d When Unitarians began to control some towns, and courts awarded them control of the First Church and of tax funds, support for the tax system collapsed. This was disestablishment, but it was also a victory for a congregation\u2019s free exercise of religion against civil (town) interference.\u003C\/p\u003E\n\n\u003Cp\u003EIn \u003Cem\u003EHosanna-Tabor\u003C\/em\u003E, the Court refused to limit the ministerial exception to cases where the government explicitly second-guessed a church\u2019s religious criteria for selecting its minister. The original understanding supports this holding; it shows that government can trigger the harms that the Religion clauses seek to avoid\u2014coercion, divisiveness, government overreaching\u2014simply by overriding a church\u2019s decision on who is suitable to be its minister. Under the Massachusetts scheme for clergy taxes, the majority of town voters needed no theological rationale for selecting one clergyman for the \u201cFirst\u201d church; they could\u0026nbsp;choose based on any factor. Other restrictions\u2014 Virginia\u2019s limit on the number of places where a minister could be licensed to speak, and Massachusetts\u2019 requirement that all ministers have college degrees\u2014were formally neutral among theologies and called for no doctrinal determination by civil authorities. Nevertheless these restrictions provoked intense resistance and eventually were repealed.\u003C\/p\u003E\n\n\u003Cp\u003EA fourth key issue addresses religion vs. secular conscience. Related to the question whether religious exercise should be exempted from generally applicable laws is the question whether the exercise \u201cof religion\u201d extends to behavior motivated by norms of secular conscience, as opposed to beliefs in God or other traditional features of religion. For example, should the exemption from school-attendance laws for the Amish in \u003Cem\u003EYoder\u003C\/em\u003E extend to followers of Henry Thoreau who rejected traditional schooling for their children? (Yoder itself answered no.)\u003C\/p\u003E\n\n\u003Cp\u003EThe word \u201creligion\u201d might be understood in direct contrast to a broader idea of \u201cconscience\u201d that includes secular-based norms. Both terms were used during the Founding period\u2014indeed, during the debates on the language of the First Amendment, which began with Madison\u2019s proposal to protect \u201cthe full and equal rights of conscience\u201d but eventually changed to \u201cthe free exercise of religion.\u201d The change may have meant little substantively, because during the Founding period \u201cconscience\u201d was often used as synonymous with \u201creligion.\u201d Or possibly the change may have meant a narrowing from all deep moral convictions to theistic ones.\u003C\/p\u003E\n\n\u003Cp\u003EIn a pair of cases involving challenges to military conscription during the Vietnam War, the Supreme Court read the statutory phrase \u201creligious training and belief\u201d to encompass objections based on any secular conscientious belief \u201cwhich occupies in the life of its possessor a place parallel to that filled by the God of those\u201d who are traditionally religious. \u003Cem\u003EUnited States v. Seeger\u003C\/em\u003E (1965); \u003Cem\u003EWelsh v. United States\u003C\/em\u003E (1970). Those expansive definitions, however, were adopted under the language of the draft-exemption statute. For the Free Exercise of Religion Clause itself, the Court has been more cautious in construing \u201creligion\u201d in cases like \u003Cem\u003EYoder\u003C\/em\u003E. And \u003Cem\u003EHosanna-Tabor\u003C\/em\u003E confirms that the clause gives \u201cspecial solicitude to the rights of religious organizations\u201d in distinction to secular ideological organizations.\u003C\/p\u003E\n\n\u003Cp\u003EThe fifth key issue involves the Scope of \u201cprohibiting\u201d vs. \u201cburdening.\u201d Another question bedeviling courts in Free Exercise of Religion Clause cases has been just what sort of effects on religious exercise trigger protection. Are Free Exercise rights violated only when one is put in jail or fined for religious practice, or are some less serious burdens also unconstitutional?\u003C\/p\u003E\n\n\u003Cp\u003EThe term \u201cprohibiting\u201d in the Free Exercise of Religion Clause may suggest the narrower scope of the right, covering only the affirmative imposition of sanctions such as imprisonment or a fine. Indeed, \u201cprohibiting\u201d might be contrasted directly with \u201cinfringing,\u201d the term used in an earlier draft, and with its broader counterpart in other First Amendment Clauses: \u201cno law abridging\u201d the freedom of speech, press, assembly, or petition. Madison rejected a parallel argument during the 1798 debate over the Alien and Sedition Acts. In response to the claim that Congress could regulate freedom of the press without \u201cabridging\u201d it, he argued against such a semantic distinction because \u201cthe liberty of conscience and the freedom of the press were equally and completely exempted from all [congressional] authority whatever.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EIn \u003Cem\u003ESherbert\u003C\/em\u003E, the Court adopted a broad understanding of unconstitutional \u201cburdens\u201d on religion, holding that the state violated Free Exercise by withholding unemployment benefits on the basis of the claimant\u2019s religiously motivated refusal to work on Saturdays. Later, however, the Court took a more narrow approach, pointing to the term \u201cprohibiting\u201d in holding that the government did not violate Free Exercise by building a road that disrupted forest areas sacred to Native American believers, because the project did not \u201ccoerce individuals into acting contrary to their religious beliefs.\u201d \u003Cem\u003ELyng v. Northwest Indian Cemetery Protective Ass\u2019n\u003C\/em\u003E (1988). \u003Cem\u003ESherbert\u003C\/em\u003E, however, though now limited in its application, has never been directly overruled by the Court. The Court has never questioned \u003Cem\u003ESherbert\u003C\/em\u003E\u2019s holding that the government can \u201cprohibit\u201d free exercise by withholding important benefits from the\u0026nbsp;individual because of a religious practice, not only by imprisoning or fining him.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n  \u003C\/div\u003E\n\n      \u003Cdiv class=\u0022con-essay-author\u0022\u003E\n      \u003Cdiv class=\u0022con-essay-author--media\u0022\u003E\n              \u003Cdiv class=\u0022con-essay-author--photo\u0022 style=\u0022background-image: url(\/sites\/default\/files\/Thomas_Berg.jpg)\u0022\u003E\u003C\/div\u003E\n            \u003C\/div\u003E\n      \u003Cdiv class=\u0022con-essay-author--info\u0022\u003E\n              \u003Ch4 class=\u0022con-essay-author--name\u0022\u003E\n                      \u003Ca href=\u0022http:\/\/www.stthomas.edu\/law\/faculty\/bios\/bergtom.htm\u0022\u003EThomas Berg\u003C\/a\u003E\n                  \u003C\/h4\u003E\n                  \u003Cdiv class=\u0022con-essay-author--job\u0022\u003E\n         James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law\n      \u003C\/div\u003E\n            \u003C\/div\u003E\n    \u003C\/div\u003E\n\n    \u003Cdiv class=\u0022con-essay-tabs\u0022\u003E\n      \u003Cul data-tabs class=\u0022tabs\u0022\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000138-taba\u0022\u003EFurther Reading\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000138-tabb\u0022\u003ECase Law\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000138-tabc\u0022\u003ERelated Essays\u003C\/a\u003E\u003C\/li\u003E\n      \u003C\/ul\u003E\n\n      \u003Cdiv data-tabs-content\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000138-taba\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp style=\u0022margin-left:16px; text-align:justify; text-indent:-11.95pt\u0022\u003EThomas C. Berg et al., \u003Ci\u003EReligious Freedom, Church-State\u003C\/i\u003E \u003Ci\u003ESeparation, and the Ministerial Exception\u003C\/i\u003E, 106\u003Ci\u003E \u003C\/i\u003ENW.\u003Ci\u003E \u003C\/i\u003EL. REV. COLLOQUY 175 (2011)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EWalter Berns, The First Amendment and the Future of American Democracy (1983)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EPhilip A. Hamburger, \u003Ci\u003EA Constitutional Right of Religious Exemption: An Historical Overview\u003C\/i\u003E, 60 Geo. Wash. L. Rev. 915 (1992)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EKurt T. Lash, \u003Ci\u003EThe Second Adoption of the Free Exercise Clause: Religious Exemptions and the Fourteenth Amendment\u003C\/i\u003E, 88 Nw. U. L. Rev. 1106 (1994)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EIra C. Lupu, \u003Ci\u003EWhere Rights Begin: The Problem of Burdens on the Free Exercise of Religion\u003C\/i\u003E, 102 Harv. L. Rev. 933 (1989)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMichael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (1978)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EMichael W. McConnell, \u003Ci\u003EThe Origins and Historical Understanding of Free Exercise of Religion\u003C\/i\u003E, 103 Harv. L. Rev. 1409 (1990)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJohn Witte, Jr., \u003Ci\u003EThe Essential Rights and Liberties of Religion in the American Constitutional Experiment\u003C\/i\u003E, 71 Notre Dame L. Rev. 371 (1996)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000138-tabb\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EWatson v. Jones, 80 U.S. 679 (1872)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EReynolds v. United States, 98 U.S. 145 (1879)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECantwell v. State of Connecticut, 310 U.S. 296 (1940)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EKedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ESherbert v. Verner, 374 U.S. 398 (1963)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EUnited States v. Seeger, 380 U.S. 163 (1965)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EWelsh v. United States, 398 U.S. 333 (1970)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EWisconsin v. Yoder, 406 U.S. 205 (1972)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJones v. Wolf, 443 U.S. 595 (1979)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ELyng v. Northwest Indian Cemetery Protective Ass\u0027n, 485 U.S. 439 (1988)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EEmployment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EChurch of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECity of Boerne v. Flores, 521 U.S. 507 (1997)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EFraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECutter v. Wilkinson, 125 S. Ct. 2113 (2005)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EHosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000138-tabc\u0022\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000137\u0022 class=\u0022use-ajax\u0022\u003EEstablishment of Religion\u003C\/a\u003E\n                      \u003Ca href=\u0022\/essay_controller\/10000149\u0022 class=\u0022use-ajax\u0022\u003EDue Process Clause\u003C\/a\u003E\n                  \u003C\/div\u003E\n      \u003C\/div\u003E\n    \u003C\/div\u003E\n  \n\u003C\/article\u003E\n"]}]