Faith in the law reinterpretation of the free exercise clause, 1940-1993

Abstract

The U.S. Supreme Court has used three legal standards to apply the First Amendment's Free Exercise Clause. The Court created the secular regulation rule in 1879, under which there were no constitutionally mandated exemptions from general laws having a valid secular purpose with a rational basis. It held in 1940 that the Due Process Clause of the Fourteenth Amendment incorporated the protections of the Free Exercise Clause; accordingly, it applied the Clause to state cases using the secular regulation rule. In 1963, the liberal Warren Court adopted a new and more exacting standard for free exercise cases, the Sherbert test. Under Sherbert, if a party could demonstrate that a law or regulation infringed free exercise, then the government had to demonstrate that the law was necessary to meet a compelling interest. If universal enforcement of a law meeting a compelling interest were not the least restrictive means of meeting that interest, exemption on free exercise grounds was constitutionally mandated. Sherbert shifted the burden of proof to the government, requiring it to justify its actions. Nevertheless, the Court found against most claimants under Sherbert between 1963 and 1987. A conservative majority of the Court, dominated by Reagan appointees, abandoned Sherbertin 1990. In its stead the Court adopted the Smith test, which held that any generally applicable and otherwise valid law facially neutral toward religion need not be subject to strict scrutiny, nor was free exercise exemption constitutionally required from such a law. Smith essentially represented a tum from Sherbert (whose test was similar to that used for all other First Amendment rights cases) to the weaker, old secular regulation rule. Many times, when the Court ruled against free exercise claimants, the legislative branch passed specific free exercise exemptions to the law in controversy. In fact, Congress passed the Religious Freedom Restoration Act of 1993 to overturn Smith and require all federal and state courts to use the Sherbert test in free exercise cases. It is unclear whether that statute will withstand judicial review. The passage of the RFRA and free exercise exemptions vindicates the conservative Court's view that it is safe to defer to the political process to determine when exemptions are suitable, rather than subject all burdensome laws to strict scrutiny under the Free Exercise Clause. This thesis examines the theory and application of the Court's free exercise jurisprudence from the initial interpretation of the Free Exercise Clause in 1879 through its reinterpretation between 1940 and 1993. Primary sources are the Supreme Court's published opinions, the Constitution, writings of some of the Framers of the First and Fourteenth Amendments, and contemporary scholarly and popular periodicals. Secondary sources include works by noted scholars in the fields of constitutional law and history, as well as autobiographical and scholarly materials written by Supreme Court Justices involved in free exercise cases.