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C O U R S E 
Key Constitutional Concepts and Supreme Court Cases
Professor Kermit Roosevelt, III, University of Pennsylvania
C O U R S E   L E C T U R E 
The Supreme Court and the Free Exercise of Religion Clause
Notes taken on March 29, 2015 by Edward Tanguay
suppose a city decides to make a laws prohibiting the consumption of alcohol
would this be constitutional?
suppose Christians want to celebrate communion or Jews who want to observe Passover with wine
under this law they could not
the free exercise clause
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.
you have free exercise rights against every government actor, who this law apply against:
the Constitution says congress
however, the Supreme Court has ruled that it applies to the whole federal government
because of the 14th Amendment, it applies to the states as well
what does it mean to prohibit free exercise
distinction between law that:
1. targets free exercise, which prohibits something because it is religious exercise
e.g. nobody can practice communion or passover
2. law that prohibits something for some other reason
e.g. no one may consume alcoholic beverages
this will prevent people from being able to celebrate communion or passover
law against religious targeting
protects you only from laws explicitly prohibiting religious practices
law which gives you an exemption in order to practice a religious freedom
"preferred freedom" view
Supreme Court supported the preferred freedom view until the 1990 Employment Division v. Smith case
Oregon banned peyote use
Native Americans wanted to use it in religious rituals
peyote is a cactus which is a psychedelic drug which produces hallucinations
certain American Native tribes have been using it for generations
Oregon ruled that regardless of this, it could not be used
Supreme Court supported this view
ruled that free exercise was just a law against laws which targeted religion
it's hard to figure out who is right here
it is easier to figure out what is at stake
1. minority religions will suffer more
"preferred freedom" gives more protect to minority religions, or religions that engage in unusual rituals
the Smith case was about peyote
wine, on the other hand, is used by many people in general and by majority religions
2. people will lose the ability to say that religion is the supreme authority in their lives
most will end up following federal law or state law if it conflicts with the laws of their religion
what is at stake is where we draw the line between secular and religious authority
to what extent do we say that people who live in our society must follow our laws, even if their religion says otherwise
in the Smith case, the Supreme Court ruled that neutral laws must be followed
religious motivation doesn't entitle people to exemptions
yet congress disliked the Smith decision so much that they set out to overrule it
enacted law: "Religious Freedom Restoration Act of 1993" (RFRA)
"Governments should not substantially burden religious exercise without compelling justification..."
tried to reinstate the decisions before Smith
Supreme Court struck this down
this was not too surprising
what is surprising is that RFRA still exists with respect to federal law
now we have a mixture of both approaches:
state laws, if they are neutral, must be followed
as far as federal laws are concerned, religious exercise is a preferred freedom
there are many other complex issues regarding the protection of religious beliefs
can employers refuse to provide health insurance which provides medical procedures they object to on religious grounds?
can for-profit corporations assert religious free-exercise rights?