Note: This is an educational course, not legal advice.
The Free Exercise Clause protects religious belief absolutely and religious practice strongly, but not without limit. The hard question is a law that does not target religion but burdens it: must the government grant an exemption? The answer changed in 1990. This unit teaches the religion clauses as law: what the clauses say, the tests courts use and the holdings. It takes no position on any faith or on religion itself.
| Period | Case | Rule |
|---|---|---|
| 1963–1990 | Sherbert v. Verner (1963); Wisconsin v. Yoder (1972) | a substantial burden on religious practice requires a compelling interest (strict scrutiny), even from a general law |
| 1990–today | Employment Division v. Smith (1990) | a neutral, generally applicable law needs no religious exemption; rational basis |
| Still strict scrutiny | Church of the Lukumi Babalu Aye v. City of Hialeah (1993) | laws that target religion, or that are not generally applicable (they forbid religious conduct while allowing comparable secular conduct), get strict scrutiny |
Why it works
Smith did not leave religion unprotected. In Church of the Lukumi Babalu Aye v. City of Hialeah (1993) a city adopted ordinances aimed at a faith's ritual practices while exempting nearly all other killing of animals; a law that targets religion fails neutrality, and the ordinances failed strict scrutiny, 9 to 0. The ordinances were also not generally applicable: they forbade killings for religious reasons while allowing hunting, pest control and many other killings that harmed the city's stated interests just as much. Supporters of Smith say it avoids making judges weigh the importance of religious practices and leaves exemptions to democratic choice. Its critics say the clause's text and history call for exemptions. Congress responded with RFRA.
Key idea
Free exercise: Employment Division v. Smith (1990) held that neutral, generally applicable laws need no exemption. But laws that target religion or are not generally applicable (Church of the Lukumi Babalu Aye v. City of Hialeah (1993)) get strict scrutiny. Before 1990, Sherbert and Yoder applied strict scrutiny more broadly.
Worked example: A general law
A state bans all use of drones over farmland during harvest. A farmer's faith calls for a blessing ceremony using a drone. Must the state exempt him?
- The law is neutral (it does not target religion) and generally applicable (no exceptions for anyone).
- Under Smith, no exemption is constitutionally required.
- A state RFRA or a legislative exemption could still help him.
Answer: No; Smith governs.
Worked example: Exceptions for some
A police department forbids officers to wear beards but grants exceptions for medical reasons. It refuses an exception to an officer whose faith requires a beard. Test?
- The rule allows a secular exception that undercuts its purpose (a uniform appearance) as much as a religious one would.
- So it is not generally applicable, as Lukumi used the term.
- Strict scrutiny applies.
Answer: Strict scrutiny.
Common mistake
Thinking Smith lets government target religion. Laws that single out religious practice still get strict scrutiny (Lukumi); Smith concerns neutral, generally applicable laws. Check both words: neutral (no targeting) and generally applicable (no favored secular exceptions).