Free Exercise, Explained Clearly

We explore the Free Exercise Clause, trace the path from Reynolds to Smith, and examine how RFRA, vouchers, and the “tire case” shape modern religious liberty. We connect free exercise to establishment, show where they clash, and ask where the Court might go next.

• Free exercise as anti-persecution baseline 
• Reynolds and limits on religiously motivated conduct 
• Smith’s rule on neutral, generally applicable laws 
• RFRA’s compelling-interest test in federal law 
• Hobby Lobby as statutory interpretation, not a grand theory 
• Equal access to public benefits for religious entities 
• Ministerial training as an establishment red line 
• How to spot free exercise vs establishment issues 
• Conscience versus conduct and modern conflicts 
• Open questions about revisiting Smith

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Center for American Civics

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SPEAKER_01 0:46

Welcome back to Civics in a year. We are continuing our conversation on freedom of religion. So again, if you this the first episode you're listening to, the previous one, we talked about the establishment clause, and the one before that, we kind of did an overview on freedom of religion. And this is this is complicated. It's not easy. And there's a lot to this one clause in the constitution. So we have Dr. Beyenberg back. Dr. Beyenberg, last episode we talked about the establishment clause. Today we're going to talk about the free exercise clause. What does free exercise mean?

SPEAKER_00 1:19

Well, one thing that uh, as we joked about, we were talking about establishment, but we kept bringing up free exercise. And I suspect when we talk about free exercise today, we'll keep talking about establishment because, as you said, many people interpret them as sort of two clauses,

Framing The Free Exercise Debate

SPEAKER_00 1:32

but they're, I think, better understood as sort of complementary with a with a sort of shared purpose. I know that's something my colleague Paul Caris talked about uh in the first one of these. But free exercise, at the very least, is basically designed to avoid religious persecution. What it means beyond that uh is a little more uh contestable, but that's sort of the baseline that everybody can agree on. Effectively, the court has built up, and I'll try not to get too con law anderdy here, even though that's my day job, but the court has basically built up two lines uh of doctrine on how to interpret the free exercise clause. One I will call the sort of the more traditional perspective or the narrower perspective effectively holds that the free exercise clause is an anti-persecution and an anti-discrimination provision, but does not uh create effectively a zone of sort of broader claims of religious autonomy. So that sounds very abstract. What do I mean by that? The classic case of that is in Reynolds versus United States in the 1870s. Congress, the Republicans, folks often forget this. The Republican Party platform is committed to abolishing the so-called twin relics of barbarism, which they say are slavery and polygamy. This is in the 1856 platform. They obviously can't regulate polygamy in a state because that's a federalism issue, but they certainly can regulate it in the territories, which is important because there are members of the LDS community in what is the Utah Territory who are wanting to practice polygamy on the grounds that their religion uh dictates it. And the uh member of the LDS church basically says this violates free exercise. I need to be able to practice my religion. This is a key tenet of my religion, therefore, this violates free exercise. And the Supreme Court unanimously, there's one that's like

Two Competing Doctrines Emerge

SPEAKER_00 3:21

a little sort of special concurrence for jurisdictional reasons, but basically unanimously says no. They say the purpose of the free exercise clause is to avoid religious persecution, but it is not to create an exemption from a law that is passed for a general public good. And they say this law was not passed because the federal government hates the LDS church or hates the Mormons. They say this law was passed because Western civilization for you know centuries has viewed polygamy as barbarous, it's viewed it as anti-woman. Right? There are basically good government reasons why one would be against polygamy without basically trying to do this for religious persecution. And so the court rejects their claim, the LES Church's claim at that point. Obviously, a few years later they move away from that as a doctrine, that that case is sort of the foundational one. It comes back up in the 1990s, it comes back up a few times, but it's probably most famous articulation is in the 1990s, a case called Employment Division of Oregon versus Smith, in which effectively a group of Native Americans, I'll simplify the case facts a little bit, but basically they are unable to collect unemployment benefits because they have been deemed drug users, because they have been using peyote. And the statute says that effectively you can't get unemployment benefits if you've been effectively a convicted drug user. And they say, look, this violates our free exercise because we need to use peyote for some of our religious rituals. And Justice Scalia, writing for the Supreme Court, says, no, Reynolds basically gets it correct. This isn't being implemented because the federal government, in this case, is anti-Native American. They're doing this because they're trying to basically regulate various kinds of, you know, various kinds of drugs. It's sort of a broader, broader scheme. And Scalia doesn't really lay out the sort of originalist argument for this. In that case, he does a few years later in a 1997 case. This one's just mostly a, yep, Reynolds got it right. The dissenters take a very different perspective, though. And they take, they're basically pushing for the position that pops up in the 1960s, which is a much more expansive version of free exercise. And this doctrine effectively says that you should be able to practice your religion, even if that means that you are effectively getting some level of exemption, judicially enforced exemption from those laws. Legislatively offered exemptions have a very, very old history. So Quakers were often explicitly exempted from militia laws. I know Paul Kirese was talking about oath or affirmation in the earlier podcast. Again, so ways to do that through the legislature, but the court is saying, no, we should interpret the free exercise clause to sort of judicially protect a sphere of religious practice. The sort of Smith Reynolds position says that effectively makes every person a law under

Reynolds And The Limits On Conduct

SPEAKER_00 6:14

himself, because you could himself or herself, because you can just say, look, you know, my religion requires me to insert things here. And so the doctrine on that sort of it struggles and it gets really con law technical. It uses these doctrines called strict scrutiny, and you have to have compelling government interests and so on. But effectively, this argues that there should be a baseline presumption that unless it's going to seriously disrupt the enforcement of law, uh, religious claims ought to be honored. And this is actually one of the places where I think there's potential really interesting movement in the doctrine going forward because historically originalists sided with Scalia. I'm focusing on originalists because that's basically what the bulk of the court is at this point. Historically, originalists sided with scalia. And they would interpret the founding texts, uh, they would interpret the state constitutions, which some of which explicitly say things like you shouldn't, you do not get sort of your religious claims do not mean that you can disrupt the public peace and whatnot. More recently, many originalists, largely with the work of Michael McConnell, have argued sort of the Sherbert line of cases, even though it was originally sort of developed by progressives like William Brennan, that that's actually the correct way to do that. The court has been being has been goaded to take, to disregard Smith and move toward the broader interpretation in the last few years. They haven't done that. Now, that being said, and there's some great historical ironies here, when the Smith opinion came down, Scalia particularly, but the Supreme Court in general was widely criticized by Congress, criticized by the president. You can go back and read the speeches, I assigned them to my students, where you have Chuck Schumer, Ted Kennedy, Orrin Hatch, like big figures in both parties, President Clinton, basically all saying Antonin Scalia hates religious people. And so, therefore, as far as federal law is so, therefore, we're going to reimpose the we're going to reimpose the more protective test that you get sort of a threshold religious exemption. They originally applied that to everything, but it gets struck down on federalism grounds as applied to the states. So states are not bound by that Religious Freedom Restoration Act. Some of them have it their own in their own state law, but it is still a law of Congress. And this is why, if you remember the Hobby Lobby case, one of the things I like to do as I joke to my students is make con law boring. Make law boring. Everybody had these grand visions that Hobby Lobby was this sweeping discussion of like religious liberty. And it's not. It's basically a boring interpretation of whether the Dictionary Act and the definition of when persons means natural person and when person means a corporation. So the dictionary act goes through and sort of spells that out. Which one of those definitions is supposed to apply in in Rifra? But the again, the sort of the funny irony is Scalia is part of that majority applying RIFRA, which was a statute that was passed basically as a

Smith, Scalia, And Narrow Protection

SPEAKER_00 9:10

criticism of him and his jurisprudence. So I sort of imagine back behind Chambers, he was chuckling about that. So now kind of connecting back to the first of the previous podcast, the court, while still basically using Scalia's definition of the narrower anti-persecution thing, and it's just and it's it should be emphasized. There have been times when communities have basically said, we hate this religious group that's moved in, let's stick it to them. And they will pass a law that's very clearly designed to sort of run them out or to be discriminatory. Even under Smith, Scalia would say, yeah, absolutely. So there's a famous case from Hyalia about regulating Santa Ria sacrifice practices about 20 years ago along these lines. So that's not to say it doesn't do anything, but basically it's supposed to be suppressing explicit religious persecution. Now, in order to avoid violating the establishment clause, through the late 20th century, states, municipalities, and others would pass laws that would say we're going to extend some benefit, but we're not going to extend it to religious people. So the cleanest example of this would be, say, school vouchers or something along those lines, whether that's directly or there's a case that came up in 2017 about whether you could apply to collect tires to rebuild your playgrounds. And Missouri was trying to avoid the establishment clause problem. And so they said, everybody basically can get these tires except for religious institutions. And the religious schools said, well, this is seemingly violating even the narrow interpretation of the free exercise clause, because you are imposing a burden on us as religious people that you're not imposing on everybody else. It's not just anybody can come get a tire, it's everybody can come get a tire unless you're religious. And the court in a series of cases, initially with the tire case, more recently with various kinds of school vouchers and other things, have said, no, if you're choosing to extend this kind of a benefit, you need to extend it equally. Otherwise, you will have violated the free exercise clause. And that's had general support, even among some of the sort of progressives on the court that otherwise are more sympathetic to strict separation. So that doesn't seem like there's disagreement, but it is going to be interesting in the next few years to see whether, particularly as some states and communities have become have elevated, I would say, anti-discrimination law in a way that creates more of a tension with claims of religious belief and religious conduct. That seemingly has spurred some people to rethink whether the more expansive interpretation is correct. I I don't know what the court's going to do. In the last case, several justices said we should switch. Several of them said no, Scalia got it right. And a few of them said we have some problems with Scalia's thing, but this is a hard case, both in terms of the history and potentially in terms of what the doctrine would look like.

SPEAKER_01 11:59

So when you talked about the tire case, and if if I'm remembering this right, it was like to build like it was a preschool within this church. And the argument is this has no religious bearing at all. We're literally building a playground for children. We just happen to be a school that is a parochial school. So this might be a complicated question, but how do I know if I'm looking at something, if it's a free exercise issue or if it's an establishment issue? Because it does feel like it is so just complicated to answer because there are cases where I'm like, well, maybe that it's free exercise, maybe it's establishment, maybe it's speech.

SPEAKER_00 12:52

Like there's not really a clear line, or is there so generally speaking, when someone is filing a case, they're going to say it violates free exercise, and then they'll sort of put as a coda, and if we and if we win, it doesn't violate establishment. So there's a lot of cases like like that. And some of them are getting pretty complicated in the fact pattern. So the as I said, the court has been basically saying you have to extend those same sorts of scholarships. The tire case in some cases is easy, right? Because it literally is basically like kids run, like we don't want the kids scuffing their knees on concrete on the playground like the tire mulch is softer or whatever, right? But there's a really interesting case from about 25 years ago, which is can a state

The Push For Broader Exemptions

SPEAKER_00 13:36

withhold sub, like basically educational funding for people who are going to be trained into the ministry specifically, right? Since that really then triggers more of the core establishment concerns about basically the state getting involved with and participating in religious instruction. Back at the time, even some of the justices like Rehnquist, who said, yeah, they're reading the establishment clause too expansively. It's fine to have sort of school vouchers to a Lutheran school. Even Rehnquist said, but an actual minister getting trained, that has some establishment clause concerns. The dissent in that case effectively said, look, if you said you can get a scholarship, whether you're studying engineering or English or theology to go be a minister, it should be the same. You don't have to make the scholarship, but you can't say, except for you religious people. The courts in the last 10 years, as they've been applying that sort of there's neutrality, they have explicitly said this doesn't apply to that really, really factually convoluted case of ministerial training because that one is so inseparable with establishment clause concerns, even under a narrower understanding of the establishment clause. So you're absolutely right. And this is one of the things to again emphasize one of the themes, which is we really need to treat these two clauses sort of in a conversation with one another. And for a long time, the court was treating them completely separable in a way that would then create these real tensions, because one line of case law from the exercise was now in tension with one line of case law from establishment. So whether you think that the court has gotten it right of late in terms of fidelity to history and original understanding or the outcomes that you're you're seeking, it does seem like those tensions are probably decreasing, if by narrowing the establishment clause. If they push to have the more expansive interpretation of free exercise, then that then some of those things that had been seemingly being simplified that make it much more, much more complicated again. So I think that's probably one of the three or four probably most interesting places where I genuinely have no idea what the court is going to do in the next few years because it they are it's a fact, it's really interesting. It's a bunch of originalists, but they're basically squabbling over whether Scalia gets it right or their favorite Khan Law professor originalist gets it right. So I don't know what they'll do. But fundamentally, again, to sort of reiterate and kind of uh is that the the purpose of this is a sort of more unified interpretation of basically a freedom of religion in which conscience is fundamentally protected. But you know what, and this will implicate and sort of foreshadow what we'll talk about with free speech. The line between conscience and conduct gets really, really messy on top of the relationship between establishment and free exercise. But fundamentally, it is worth emphasizing, you know, there's something Paul Carisse pointed to, that I think it's overstated to say the First Amendment is first because it's important, but it is striking that, because that's historically not true for what we've talked about in other podcasts, but it is striking that that that's receives such an early consideration in the Bill of Rights, as it does in many in many state constitutions.

unknown 17:03

Dr.

SPEAKER_01 17:03

Weinberg, thank you so much. Again, we've gone through the free exercise clause here, we've gone through the establishment clause, we're gonna go through speech. Like this is this is the fun, and this is why we're doing Civic Senior to really dive into this. So thank you.