Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

The Free Exercise Clause is perhaps the least commonly understood part of the First Amendment. The mythical “average American” presumably understands what freedom of speech means – we protect the right of almost anyone to say almost anything – and the Establishment Clause has been given the catchy, if mostly inaccurate, shorthand of “separation of church and state.” But were one to ask this hypothetical average American what protecting free exercise of religion means, she might respond with a blank stare.

So why is the Free Exercise Clause so unknown, and what does it really mean today? Some blame for the Clause’s obscurity must lie with its checkered history. That history can be divided into roughly five stages. The first stage lasted 87 years, from 1791 to 1878, and was characterized by judicial silence. Although the Clause was ratified as part of the Bill of Rights in 1791, the Supreme Court had no occasion to address it, other than to say briefly, in 1842, that it applied only to the federal government, not states and cities. This silence does not mean that the Clause had no public meaning; indeed, it was cited time and again in debates over religion in the public square. But it did not appear in court, and its meaning remained rhetorical and political, not legal.

That first phase came to an end in 1878, with the Reynolds case. In that case, the Supreme Court held that the Free Exercise Clause did not protect the practice of religious polygamy. Thus began an unsettled period for the Court’s Free Exercise jurisprudence. Two separate strands of caselaw emerged—one rooted in Reynolds and limitations on religious exercise, and another rooted in the ability of churches, synagogues, and other religious institutions to manage their own internal structures and their property.

The tensions in Free Exercise jurisprudence became apparent in a series of cases involving Jehovah’s Witnesses during the 1940s. These cases at first resulted in at first narrow readings of the Clause and then increasingly broader readings that provided protections to the Jehovah’s Witness plaintiffs.

This second and turbulent stage ended, and the third began, with Sherbert v. Verner, decided in 1963. In that case, the Court took a very strong stand in favor of individual religious liberty, holding that a Seventh-day Adventist could not be denied unemployment benefits because she was fired from her job for observing the Sabbath. The Court said that any government-imposed “substantial burden” on religious activity would be very difficult for the government to justify. This standard, extremely protective of religious liberty, represented a high-water mark in the history of the protection of Free Exercise.

The Clause’s course took a sharp turn in a less religion-friendly direction 28 years after Sherbert was decided. In Employment Division v. Smith, decided in 1990, the Court held that Native Americans who had been convicted for smoking peyote in accordance with their religious beliefs did not have a right to state unemployment benefits. Because the Oregon anti-narcotic law at issue was a “neutral rule of general applicability” the Free Exercise Clause would provide no protection to the religious plaintiffs.

This was true even though, like the Sherbert regulation, the rule imposed a “substantial burden” on their religious activity. The Smith ruling represented a dramatic shift in the law of Free Exercise, making it much more difficult for religious people to protect themselves against religion-restrictive laws. For a time, it seemed that the only way to evade Smith’s rule would be by convincing Congress and state legislatures to provide relief in the form of civil rights statutes protecting religion.

But in 2012, the Court announced a fifth and entirely new stage of the Clause’s existence in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor, the Court held, in a 9-0 decision,that federal and state employment discrimination laws do not apply to “ministerial” positions. The Court thus made clear that Smith’s rule did not apply in the same way to religious institutions as it did to religious individuals. Indeed, religious activities related to “internal church decisions” would fall outside the Smith rule entirely, a result that shocked many long-time observers of the Court’s religion decisions.

The next steps for the law of Free Exercise are not clear, but they are much more hopeful for religious people and institutions than they were before Hosanna-Tabor was decided.One could argue that this up-and-down history shows a kind of national, or at least judicial, schizophrenia when it comes to the place of religious people in public life. But that schizophrenia may simply mirror Americans’ uncertainty about the role of religion in public life, especially given the increasing religious diversity of our nation. The law could move in the direction of France or other Western European countries that have in effect attempted to drive religion out of public life, or to control it directly. But the law might also move in the direction of increasing religious freedom for every American, and decreasing government interference with religious people.

So what should the Free Exercise Clause mean, at its most fundamental level? There is a case to be made that the Clause stands for the idea that every person, and every religious group, gets to decide for themselves what they believe about the good and the true, and to act on those beliefs in public. In that sense, the Clause carves out a kind of sacred space in the American body politic—a place where Americans can work out their relationship with God free from government interference, indeed, a place where the government must fear to tread. By its nature, religious freedom cannot be without limits. But by the same token government cannot be without limits, and some areas must remain completely free from government influence.

But this sacred space is under siege in today’s ever-growing regulatory state. As they expand their influence over more and more areas of American life, governments at the federal, state, and local levels increasingly run roughshod over the claims of conscience. Prominent recent examples include the federal government’s attempt in the Hosanna-Tabor case to take over some ministerial and hiring and firing decisions, as well as the recently-issued healthcare mandates that would force Catholic, Protestant, and other religious groups to violate their consciences by paying for drugs and devices they believe cause abortion. State governments have made similar attempts to limit the conscience rights of religious institutions like churches and homeless shelters, as well as the conscience rights of individuals like pharmacists and doctors who object to participating in certain medical procedures.

These conflicts will only grow in size and number as government expands and becomes more aggressively secular. Therefore it will be important for religious Americans in coming years to fight for the sacred space staked out by the Free Exercise Clause, because government will not stay out on its own.

Eric Rassbach is Deputy General Counsel at The Becket Fund for Religious Liberty, a non-profit law firm based in Washington, D.C. that defends the free expression of all religious traditions. He led the Becket Fund team that litigated the Hosanna-Tabor case.

February 24, 2012 

Essay #5 

18 replies
  1. Matthew Gabanyic
    Matthew Gabanyic says:

    Hey everyone,

    It’s so refreshing to see a site dedicated to spelling out our founding principles! Their are many people that try to follow and learn about the true beginnings of this country but are so busy just trying to make it in life, they can’t devote a lot of time to do so. I’ve had my own personal battles within my community to fight an ever growing progressive agenda. I’ve been battling my school about a program they have introduced that puts a face to indoctrination in America. This program has divided my community severely and teaches progressive values. It’s truly a wolf in sheep’s clothing and I can use all the help I can get in order to combat the scourge that has infected this country and is trying to put down freedom.

    Once again, thank you for providing another source to me that provides a solid outline that I can more easily do my own independent research. God Bless all of you!

    Matthew Gabanyic

    • says:

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  2. Carol
    Carol says:

    Clarity is hard to achieve these days. We must strive for it in all discussions. When officials work to undermine clarity, we end up with confusion and cynicism. Sacred space vs. Secular space is pretty clear and we need to keep the neutral space between them.

  3. Richard Cahalan
    Richard Cahalan says:

    Howdy folks,
    How has this morphed into such a separation of search and state that all mention of religion at a public school is not allowed and a coach can be threatened with jail for allowing a football team to pray before a game. Seems like a real stretch doesn’t it.
    Richard Cahalan

    • Ray Gross
      Ray Gross says:

      What if the coach practices Voodoo religion? Is it OK for him to conduct Voodoo rites for the kids on school property before the game. Or Jewish? or Muslim? or Mormon? If he is an Atheist, do you want him to make fun of the kids who believe in Talking Snakes in the locker room before the game? And to tell the kids why the Bible is wrong? or promote books like “The God Delusion”?
      I think it is better for religion if NO RELIGION is allowed to use Government ( PUBLIC ) Assets to promote their religion.

      • Marc W. Stauffer
        Marc W. Stauffer says:

        This has become a very controversial subject and trying to strike a balance has to date, in my opinion, been unsuccessful. If a Muslim or Christian wish to pray before a meal in a public building, say a school, then it should be their right to do so as long as it is not disruptive. If a City council or Government agency votes to open a meeting in prayer, it should be allowed to do so. If a football player wishes to give thanks by pointing heavenward or bowing to the East after a touchdown, that should be their right. We should have the liberty to express ourselves within the bounds of the law.
        This amendment was not intended to be “freedom from religion” in the public sector, only to keep government from controlling religion (or creating a state religion). Unfortunately, the pendulum has swung to the point of religious oppression…..the, “don’t express it where I can see it attitude” has become overbearing.
        Thomas Jefferson’s famous letter to the Danbury Baptists has been grossly misused in the courts and since the Library of Congress has had the original draft restored, we now can see the scratched out wording and should realize that Jefferson in no way was touting “freedom from religion”. His “wall” was simply a wall keeping government out of the business of religion…not religious views out of government. We are to have the liberty to bring our views (religious or otherwise) to the table in all that we do. We are a country made up of many beliefs, and we need to allow those beliefs to flourish as long as their practice does not violate the ideals set forth in the Declaration, Constitution or Bill of Rights.

  4. Joan Hamblin
    Joan Hamblin says:

    The Supreme Court has so overreached with interpretations of this clause. What the Founding Fathers intended was that such decisions should never be made at the federal level but left to the states! States’ rights are continually being run over by the federal train.

  5. Linda and Halley
    Linda and Halley says:

    As a child growing up in Oklahoma in the 1950’s, I clearly recall the class saying grace prior to marching to the school cafeteria. Our sixth grade Christmas play was “The Innkeeper’s Daughter”. I find it very sad today that public schools are to a point where one cannot say “God Bless You” when someone sneezes!

  6. Ray Gross
    Ray Gross says:

    The greatest threat we face today is from right wing religious zealots who seek to use the power of the Government to force their religious dogma onto everybody else. This is the same threat we faced when the constitution was written. At that time the Anabaptists were afraid the Anglicans would gain control of the Government and then use that power to advance their beliefs and codify them into law and force their beliefs onto everybody else. None of the resources or assets of government may be used to advance or establish any religion which is why the coach cannot lead prayer on government owned premises like stadiums and schools or during government sponsored events like ball games and school.
    Notice that the people who seek to use the Law to impose their religious views onto others would scream “separation of church and state” if Catholics, Jews, Muslims, Atheists, Buddhists or any other competing belief system were to do the same. For example what if Atheists took “In God we Trust” off our money and replaced it with “There is no God, she doesn’t exist” or if Muslims were to some day try to impose Sharia Law (which is prohibited by the First Amendment) onto the rest of us or put “Allah Akbar” on the money.

    • Ron
      Ron says:

      Ray, there are no “religious zealots” in America today who “seek to use the power of government to force their religious dogma on everyone else.” The primary drafters of the Declaration & Constitution, including Jefferson, were Christian, but simply did not want the type of state religion that you rightly observe was prevalent in Europe at that time.

      Our founders did, however, recognize that our rights were God-given, not human law-given. We all are free to believe or not believe in the Christian God, with eternal consequences to each of us. Public prayer does not force anyone to believe in the God to whom the person or institution is praying. One who is not a believer can simply have a moment of silence, being tolerant of the majority in attendence who do believe in the God to whom the prayer is directed, and which majority are tolerant of their right to not believe in our God. Having spent some time in Saudi Arabia, this is not an option there for Christians, who might be arrested if they held a private bible study (using smuggled in bibles) inside someone’s private home.

      Your strawmen are extreme exaggerations of reality. In today’s society, the proponents of tolerance have become intolerant to the extreme. Christians and Jews have consistently demonstrated that they are extremely tolerant of opposing worldviews, to the degree that, over the past 100 years, the core Judeo-Christian values that our founders believed have been systematically and incrementally eliminated from our society. We Christians indeed have been extremist, in that we have been so extremely tolerant of unbelievers actions that our nation’s core values are almost completely unrecognizable.

      One of the reasons many of us fear Islam is that the “extreme” religious zealots in Islam, who number in excess of 100 million, want to do exactly what you fear – establish Islam as the state religion and Sharia as the law. We seem to fear an established state religion far more than those proponents of “tolerance” who see no threat of Islam and who bend over backwards to tolerate those who’s first action upon taking power would be to give atheists and other unbelievers the option of converting or being killed. I know of no Christian evangelicals who offer this option to anyone. One would think that Christians would be tolerant of Islam (which we are) and that atheists and unbelievers would be on the front lines in opposition of Islam; that would be consistent with their fear of a state religion, but they are not consistent in this respect.

      I respect your right to believe what you believe and to state in this and any public forum what you believe, but I have an obligation to present the truth and not merely accept untruth.

    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      I object to the implication of public schools as being a (federal) government asset. Besides the fact the Bill of Rights only curtails the federal government excepting for the 2nd Amendment, (and no, the 14th does not either for that only gives federal scope to review Due Process…the right to defend yourself in court, and Equal Protection…the right to sue someone in court) education is not for the government to give. And all the public spaces do not belong to the government either. What you are also advocating is a pluralistic, secular society. Such a society cannot ever be attained because civil moral codes among cultural populations become incompatible. Here in the U.S. the Constitution was written under the color of the Common Law and Natural Law, and those alone separate the US from European Civil Law. You cannot mix law and expect to have justice. Further, the Constitution’s “job description” is for running the government, not running the country and especially not to the regulating the civil moral code. To confer morals with the Constitutional definition of Establishment of Religion is wrong.

  7. Ebben Raves
    Ebben Raves says:

    I wrote an article for American Thinker last week pointing out the dangers of religion becoming co-opted and eventually supplanted by government through abuse of the first amendment.

    • Ray Gross
      Ray Gross says:

      Over several centuries it is impossible to predict which religions, IF ANY, will dominate our culture. The “Separation of Church and State as described by Thomas Jefferson is brilliant because it protects the right to practice any religion while preventing any group from using the power or assets of the government to advance THEIR dogma.
      The power of government married to the passion of religion can be dangerous. My ancestors were Protestant Hugenots in France which was a Roman Catholic country and it was the Death Penalty to be a Protestant. Ironically at that time England was a Protestant country and it was the Death Penalty to practice Catholism.

  8. Jerry Morris
    Jerry Morris says:

    The way I enterpret the first Amendment is that the US Government is to take a “hands off” approach to religion, in regards to regulating it. I see no “separation” intended between government and religion regarding the “free exercise or expression” of religion.

    However, religious groups do not have a right to practice their relion if it means violating the enumerated Rights of others. BTW, I don’t recall seeing anything in the Constitution that protects any assumed right not to be offended. That goes for everyone.

    The biggest problem we have concerning the erosion of our Constitutional Rights is that “WE the People” have, for decades, been enouraging government to trample on the rights of individuals and groups. We have been calling on government to violate our various Rights, by demnding government to do for us what we should be doing for ourself. Is this due to ignorance of the Constitution, or because too many people don’t care about it?

  9. Jerry Morris
    Jerry Morris says:

    There is no qualifier in regards to “…OR PROHIBITING THE FREE EXERCISE THEREOF”, like “EXCEPT, (this place, that place, or over here)”.

    Common sense, however should make it rather unacceptable to hold a pray service in the middle of a busy intersection during rush hour.

  10. Ammie
    Ammie says:

    IMHO the government should not be involved in religion. As much as I would like to prohibit some practices I realize we have enough city and state laws that protect unsavory practices regarless of religious beliefs. If my belief infringes on another persons belief, then I have done something wrong. It is not intended for me to abuse anyone, for any reason, in any way, to satisfy my personal freedom. If my practices violate laws where my home is, then I accept responsibility and consequences. “Keep it simple”..


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