Learning Outcomes
After reading this article, you will be able to explain the constitutional protection for religious belief and practice under the Free Exercise Clause, distinguish between laws that target religion and neutral laws of general applicability, identify when religious exemptions may be required, and apply these principles to MBE-style scenarios.
MBE Syllabus
For the MBE, you are required to understand how the Constitution protects religious freedom and the limits of that protection. This article focuses your revision on:
- The scope of the Free Exercise Clause of the First Amendment.
- The distinction between laws that target religion and neutral, generally applicable laws.
- The standard of review for government actions burdening religious practice.
- When religious exemptions or accommodations may be constitutionally required.
- The relationship between Free Exercise rights and other constitutional provisions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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A city denies a police officer's death benefit because the officer refused a blood transfusion for religious reasons. The denial is based on a neutral policy that applies to all employees. Is this likely a violation of the Free Exercise Clause?
- (A) Yes, because it burdens a religious practice.
- (B) Yes, because it targets religious conduct.
- (C) No, because the policy is neutral and generally applicable.
- (D) No, because the officer was a government employee.
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Which of the following government actions is most likely to violate the Free Exercise Clause?
- (A) A law banning all use of a hallucinogenic drug, including in religious ceremonies.
- (B) A law that prohibits only religious animal sacrifice but allows secular slaughter.
- (C) A law requiring all drivers to have a photo on their license, with no exceptions.
- (D) A law requiring all children to attend school until age 16, with an exemption for all sincerely held beliefs.
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Under current Supreme Court doctrine, when does the government have to provide a religious exemption from a generally applicable law?
- (A) Always, if the law burdens religious practice.
- (B) Only if the law is not neutral or not generally applicable.
- (C) Never, unless Congress requires it.
- (D) Only for fundamental religious practices.
Introduction
The Free Exercise Clause of the First Amendment protects the right to hold and practice religious beliefs. However, this protection is not absolute. The government may regulate conduct, even if it is religiously motivated, as long as the law is neutral and applies to everyone equally. Understanding the limits of this protection and when religious exemptions are required is essential for MBE success.
Key Term: Free Exercise Clause The constitutional provision in the First Amendment that prohibits government from enacting laws that target or punish religious beliefs or practices.
The Scope of Free Exercise Protection
The Free Exercise Clause absolutely protects religious belief. The government may not punish or reward people based on their beliefs. However, religiously motivated conduct is protected only to a qualified extent.
Belief vs. Conduct
- The government cannot require or forbid any religious belief.
- The government may regulate conduct, even if religiously motivated, as long as the law is not aimed at religion.
Key Term: Neutral Law of General Applicability A law that applies equally to everyone, regardless of religious motivation, and does not single out religious practices for special burdens.
Neutral, Generally Applicable Laws
If a law is neutral and applies to everyone, it does not violate the Free Exercise Clause even if it incidentally burdens religious practice. The Supreme Court has held that individuals must comply with valid, neutral laws, even if those laws conflict with their religious beliefs.
- Example: A law banning all use of peyote applies to everyone, including Native Americans who use it in religious ceremonies. The law is constitutional if it is not aimed at religion.
Worked Example 1.1
A state denies unemployment benefits to anyone fired for using illegal drugs. A member of a religious group is fired for using peyote in a religious ceremony and is denied benefits. The law banning peyote is neutral and generally applicable.
Answer: The denial of benefits does not violate the Free Exercise Clause because the law is not targeted at religion; it applies to all drug use.
Laws Targeting Religion
If a law is not neutral or not generally applicable—meaning it singles out religious practices for special burdens or exceptions—the government must show that the law is necessary to achieve a compelling interest.
- Laws that intentionally discriminate against religion are subject to strict scrutiny and are almost always unconstitutional.
Key Term: Strict Scrutiny The highest standard of judicial review, requiring the government to prove a law is necessary to achieve a compelling interest and is narrowly tailored.
Worked Example 1.2
A city bans ritual animal sacrifice but allows secular slaughter for food. A religious group is prosecuted for sacrificing animals as part of a ceremony.
Answer: The law is not neutral because it targets religious conduct. The city must satisfy strict scrutiny, and the law is likely unconstitutional.
Religious Exemptions and Accommodations
The Constitution does not require the government to provide religious exemptions from neutral, generally applicable laws. However, if a law allows secular exceptions but not religious ones, or if it is enforced in a discriminatory way, a religious exemption may be required.
- Congress or state legislatures may choose to grant religious exemptions by statute, but the Free Exercise Clause does not mandate them unless the law is not neutral or generally applicable.
Key Term: Religious Exemption A legal provision allowing individuals to avoid compliance with a law because of their religious beliefs or practices.
When Is Strict Scrutiny Required?
Strict scrutiny applies only if:
- The law is not neutral or not generally applicable (e.g., it targets religion or allows secular but not religious exceptions).
- The government acts with hostility toward religion.
Otherwise, neutral laws of general applicability are reviewed under rational basis, and the government does not need to justify the burden on religious practice.
Worked Example 1.3
A state requires all children to attend school until age 16. The Amish object on religious grounds. The state allows no exceptions.
Answer: The Supreme Court has held that, in rare cases involving fundamental parental rights and religious practice, an exemption may be constitutionally required. However, this is the exception, not the rule.
Exam Warning
Laws that appear neutral on their face but are enforced in a way that targets religion may trigger strict scrutiny. Always check for hidden discrimination.
Revision Tip
Always ask: Is the law neutral and generally applicable? If yes, Free Exercise is not violated unless the law is enforced in a discriminatory way.
Key Point Checklist
This article has covered the following key knowledge points:
- The Free Exercise Clause protects religious belief absolutely, but conduct only to a qualified extent.
- Neutral, generally applicable laws that burden religious practice are usually constitutional.
- Laws that target religion or are not generally applicable are subject to strict scrutiny.
- Religious exemptions are not constitutionally required unless the law is not neutral or not generally applicable.
- Congress or legislatures may grant religious exemptions by statute, but the Constitution does not require them in most cases.
Key Terms and Concepts
- Free Exercise Clause
- Neutral Law of General Applicability
- Strict Scrutiny
- Religious Exemption
