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suppose a city decides to make a laws prohibiting the consumption of alcohol

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would this be constitutional?

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suppose Christians want to celebrate communion or Jews who want to observe Passover with wine

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under this law they could not

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the free exercise clause

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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you have free exercise rights against every government actor, who this law apply against:

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the Constitution says congress

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however, the Supreme Court has ruled that it applies to the whole federal government

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because of the 14th Amendment, it applies to the states as well

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what does it mean to prohibit free exercise

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distinction between law that:

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1. targets free exercise, which prohibits something because it is religious exercise

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e.g. nobody can practice communion or passover

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2. law that prohibits something for some other reason

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e.g. no one may consume alcoholic beverages

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this will prevent people from being able to celebrate communion or passover

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would

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protections

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law against religious targeting

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protects you only from laws explicitly prohibiting religious practices

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law which gives you an exemption in order to practice a religious freedom

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"preferred freedom" view

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Supreme Court supported the preferred freedom view until the 1990 Employment Division v. Smith case

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Oregon banned peyote use

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Native Americans wanted to use it in religious rituals

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peyote is a cactus which is a psychedelic drug which produces hallucinations

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certain American Native tribes have been using it for generations

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Oregon ruled that regardless of this, it could not be used

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Supreme Court supported this view

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ruled that free exercise was just a law against laws which targeted religion

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it's hard to figure out who is right here

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it is easier to figure out what is at stake

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1. minority religions will suffer more

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"preferred freedom" gives more protect to minority religions, or religions that engage in unusual rituals

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the Smith case was about peyote

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wine, on the other hand, is used by many people in general and by majority religions

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2. people will lose the ability to say that religion is the supreme authority in their lives

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most will end up following federal law or state law if it conflicts with the laws of their religion

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what is at stake is where we draw the line between secular and religious authority

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to what extent do we say that people who live in our society must follow our laws, even if their religion says otherwise

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in the Smith case, the Supreme Court ruled that neutral laws must be followed

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religious motivation doesn't entitle people to exemptions

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yet congress disliked the Smith decision so much that they set out to overrule it

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enacted law: "Religious Freedom Restoration Act of 1993" (RFRA)

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"Governments should not substantially burden religious exercise without compelling justification..."

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tried to reinstate the decisions before Smith

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Supreme Court struck this down

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this was not too surprising

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what is surprising is that RFRA still exists with respect to federal law

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now we have a mixture of both approaches:

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state laws, if they are neutral, must be followed

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as far as federal laws are concerned, religious exercise is a preferred freedom

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there are many other complex issues regarding the protection of religious beliefs

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can employers refuse to provide health insurance which provides medical procedures they object to on religious grounds?

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can for-profit corporations assert religious free-exercise rights?