Contextualizing the Free Exercise of Religion
48 Pages Posted: 18 Feb 2016 Last revised: 27 Apr 2016
Date Written: February 16, 2016
The Founders drafted the free exercise clause to prohibit the government from substantially interfering with religious liberty, such as through laws that coerce individuals into violating their religious beliefs, target specific religions or religious practices, or to question the sincerity of an individual’s religious beliefs. However, the Founders did not envision that the government was required to grant citizens exemptions from generally applicable laws. The proposed standard in this article furthers the original purposes of the free exercise clause and safeguards citizens from unequal protection of the law.
Four factors should guide the Court should when evaluating whether a law substantially burdens an individual’s religious liberty and whether a countervailing state interest is sufficiently compelling. First, courts must consider the role of the individual who seeks protection under the blanket of religious liberty. For example, is the individual a pastor in a private church or a clerk in the county courthouse? Second, courts should consider the place in which the right is exercised. Is the individual seeking to exercise this right in a church or synagogue, or in a classroom or a courthouse? Third, courts should consider the effects of exercising religion on third parties, particularly where such effects, if they had resulted from state action, would infringe on third parties’ constitutional rights. Fourth, the Court should consider whether a religious liberty claim involves practices that are central to the individual’s belief system. It is one thing for an Amish family to claim that a compulsory education law infringes on the fundamental tenets of their religious faith. It is another thing for individuals to claim that issuing marriage licenses in their public capacity as county clerks infringes on their right to freely practice religion, to freely discriminate (which often coincides with such claims), or to express moral disapproval of a particular group. This test will appropriately balance the free exercise of religion with the guarantee that all citizens enjoy equal liberty, equal dignity, and equal protection of the law, and furthers the broader purposes of the First Amendment.
Keywords: free exercise of religion, First Amendment, Kim Davis, Religious Freedom Restoration Act
JEL Classification: K10, K30
Suggested Citation: Suggested Citation