Also known as:Free Exercise Clause · Religion Clauses
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional provision in the First Amendment that bars government from enacting laws targeting or substantially burdening religious exercise. A law triggers strict scrutiny when it is not neutral or generally applicable, such as when it singles out religious conduct for unfavorable treatment or vests officials with discretionary power to grant exemptions. Neutral and generally applicable rules that only incidentally burden religion are ordinarily valid under rational basis review.
Sources & Authorities· 7 primary sources
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Cases
Hornbooks
How it applies
Common Examples
6
City Ordinance Bans Ritual Slaughter
Fernando Farrell leads a small religious community that performs animal sacrifice as part of its worship. The city council enacts an ordinance that prohibits the precise method of slaughter used in these rituals while permitting comparable secular uses of animals. The ordinance is not neutral or generally applicable because it was designed to suppress the religious practice. Strict scrutiny applies and the law fails because the city cannot show the ban is necessary to a compelling interest.
Unemployment Benefits Denied After Peyote Use
Floyd Franklin is fired from his job after using peyote during a religious ceremony. State law criminalizes peyote use and treats the dismissal as misconduct. The state denies unemployment benefits under its neutral rule that applies to all workers regardless of religious motivation. The Free Exercise Clause does not require an exemption from this generally applicable prohibition.
Foster Agency Seeks Religious Waiver
Finn Fletcher runs a faith-based foster agency that declines to certify same-sex couples on religious grounds. City policy bars such refusals but allows the director to grant individualized exemptions for secular reasons such as specialized missions. The director denies Fletcher's request while approving waivers for comparable secular agencies. The policy is not generally applicable and strict scrutiny applies to the denial.
Amish Parents Withdraw Children From School
Francisco Frost and his family belong to a religious community whose tenets forbid formal secondary education. State law requires attendance until age sixteen. The family provides alternative instruction through vocational work and religious study that satisfies the state's interests in self-sufficiency and basic skills. The Free Exercise Clause combined with parental rights entitles the family to an exemption from the compulsory attendance rule.
Father Challenges School Pledge Requirement
Felicia Fuentes objects to her child's participation in a daily school pledge that includes religious language. The school district requires all students to recite the pledge or face discipline. The policy burdens the parent's sincere religious beliefs about compelled affirmation. The clause protects the right to decline participation without penalty.
Taxpayers Challenge Religious School Funding
Fumiko Fujimoto and other taxpayers challenge a state program that provides tax credits for donations to organizations funding religious schools. The program allows contributions that support religious education. The clause does not require the state to include religious schools in every generally available funding mechanism when the exclusion rests on neutral criteria.
Common questions
Frequently Asked
4
When does a law targeting religious conduct trigger strict scrutiny under the Free Exercise Clause?+
A law triggers strict scrutiny when it is not neutral or generally applicable. This occurs when the law singles out religious practice for unfavorable treatment compared with analogous secular conduct or when officials possess discretionary authority to grant exemptions that are denied to religious claimants.
Supporting sources
Does the Free Exercise Clause require exemptions from neutral generally applicable laws that incidentally burden religion?
No. Neutral and generally applicable laws that only incidentally burden religious exercise are valid under rational basis review. The government need not show a compelling interest or narrow tailoring when the rule applies across the board without targeting religion.
Supporting sources
How does the presence of individualized exemptions affect Free Exercise analysis?+
When a policy allows officials to grant case-by-case exemptions, the policy is not generally applicable. Strict scrutiny then applies to any denial of a religious exemption because the discretionary system creates a risk of discriminatory treatment against religious exercise.
Supporting sources
What showing must religious parents make to obtain an exemption from compulsory school attendance laws?+
Parents must demonstrate that their religious beliefs forbid formal secondary education and that their alternative practices satisfy the state's interests in basic skills and self-sufficiency. When these conditions are met the Free Exercise Clause requires an exemption.
Supporting sources
of the First Amendment. The District Court held that the ordinances were not targeted at the Church’s religious practices and were therefore constitutional. The Court of Appeals for the…
of article I, section 4 [and related
clauses
] of the Utah Constitution provide[ ] protection over and above that provided by the First Amendment to the United States Constitution." Jeffs…
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