Also known as: Free Exercise Clause · Free Exercise Clause of the First Amendment
Written by attorneys — see sources below.
A constitutional provision prohibiting government from enacting laws that prohibit the free exercise of religion. Laws burdening religious practice receive strict scrutiny when they are not neutral or generally applicable or when they target religious conduct for disfavored treatment. Neutral and generally applicable laws that only incidentally burden religion are subject to rational basis review.
The city council enacts an ordinance that bans the precise animal-slaughter method used in Santeria ceremonies while leaving other animal-killing practices untouched. Practitioners sue, claiming the ordinance singles out their faith. The court applies strict scrutiny because the law is neither neutral nor generally applicable and strikes the ordinance down.
State law criminalizes peyote possession and denies unemployment benefits to workers fired for violating that prohibition. Fabian Flynn is dismissed after using peyote during a religious ceremony. The court upholds the denial because the criminal prohibition is neutral and generally applicable.
A city policy bars foster agencies from declining same-sex couples but permits the director to grant individualized exemptions for secular reasons. Freya Freeman's religiously affiliated agency requests an exemption based on faith and is denied. The court applies strict scrutiny because the discretionary exemption system renders the policy not generally applicable.
State law requires children to attend school until age sixteen. Frank Fisher, an Amish parent, withdraws his children after eighth grade for religious reasons and provides alternative vocational training within the community. The court grants an exemption because the compulsory-attendance law substantially burdens sincere religious exercise and the state's interests are met by the alternative practices.
A state statute grants grandparents visitation rights over a fit parent's objection. Flora Ford refuses visitation on religious grounds tied to her child-rearing beliefs. The court evaluates whether the statute, as applied, burdens protected parental and religious interests without adequate justification.
Tommie Granville and Brad Troxel never married but had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad's parents and the paternal grandparents of the children. After Granville and Brad separated in 1991, Brad lived with his parents and regularly brought Isabelle and Natalie to their home for weekend visitation. Brad Troxel committed suicide in May 1993. The Troxels continued to see the children on a regular basis after his death. In October 1993 Granville informed the Troxels that she wished to limit their visitation to one short visit per month. In December 1993 the Troxels filed a petition in Washington Superior Court for Skagit County under Rev. Code Wash. § 26.10.160(3) seeking visitation rights. The statute provides that any person may petition the court for visitation rights at any time. The court may order visitation when it may serve the best interest of the child whether or not there has been any change of circumstances. The Troxels requested two weekends of overnight visitation per month and two weeks each summer. Granville proposed one day of visitation per month with no overnight stay. In 1995 the Superior Court ordered visitation one weekend per month, one week during the summer, and four hours on both grandparents' birthdays. Granville appealed. The Washington Court of Appeals reversed on the ground that nonparents lack standing to seek visitation under the statute unless a custody action is pending. The Washington Supreme Court granted review, held that the Troxels had standing, but affirmed on the ground that the statute unconstitutionally infringes on the fundamental right of parents to rear their children. The United States Supreme Court granted certiorari and affirmed the judgment.
View caseA school district requires daily recitation of the Pledge of Allegiance. Felipe Figueroa, a student whose faith prohibits affirming a nation under God, seeks an exemption. The court considers whether the requirement burdens sincere religious exercise and whether any resulting policy is neutral and generally applicable.
In 1892 a national magazine proposed that schoolchildren recite a pledge of allegiance to the flag. Congress first codified rules for the Pledge in a 1942 joint resolution and amended the text twelve years later to add the words "under God." California law requires every public elementary school to begin each day with appropriate patriotic exercises. The Elk Grove Unified School District satisfies the requirement by directing that each elementary class recite the Pledge once daily, while permitting students who object on religious grounds to abstain. Michael A. Newdow, an atheist whose daughter was then enrolled in kindergarten in the district, filed suit in March 2000 in the United States District Court for the Eastern District of California against Congress, the President, the State of California, the School District, and its superintendent. The complaint sought a declaration that the 1954 amendment adding "under God" violated the Establishment and Free Exercise Clauses and an injunction against the district's daily recitation policy. The district court adopted a magistrate judge's recommendation and dismissed the complaint on July 21, 2000. A divided Ninth Circuit panel reversed, holding that Newdow had standing as a parent and that both the 1954 Act and the district policy violated the Establishment Clause. After that decision, Sandra Banning, the mother of Newdow's daughter, moved to intervene or dismiss, stating that she held sole legal custody and that the child was a Christian who had no objection to reciting or hearing the Pledge. On September 25, 2002, a California Superior Court enjoined Newdow from including his daughter as a party or suing as her next friend. The Ninth Circuit subsequently held that Newdow retained Article III standing as a noncustodial parent under California law. In February 2003 the court amended its opinion to omit any determination of standing to challenge the 1954 Act itself. At a September 2003 hearing the Superior Court announced that the parents now share joint legal custody but that Banning makes the final decisions if they disagree. The Supreme Court granted certiorari to consider both Newdow's standing and the First Amendment question.
View caseStrict scrutiny applies when a law is not neutral or generally applicable or when it targets religious practice for disfavored treatment. Discretionary exemption systems that allow officials to grant secular but not religious relief also trigger strict scrutiny.
No. Neutral and generally applicable laws that incidentally burden religious practice are subject only to rational basis review and do not require religious exemptions.
Selective enforcement that singles out religious practice while permitting comparable secular conduct demonstrates that a law is not neutral or generally applicable and therefore triggers strict scrutiny.
A policy that reserves discretionary authority to grant exemptions is not generally applicable. Denying a religious exemption while granting secular ones under the same discretionary system requires strict scrutiny.
Majority opinion Opinion of Justice Scalia This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny…