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The Free Exercise Clause and the Parameters of Religious Liberty

The First Amendment of the U.S. Constitution guarantees that the federal government will respect the “free exercise” of religion. But the precise meaning of “free exercise” and exactly what constitutes an infringement of this right are not clear-cut. At the heart of the debate is one basic question: Do individuals or groups professing sincerely held religious beliefs have a right because of those beliefs to be exempt from legal requirements generally imposed on all citizens? The courts’ answer has differed over time and depending on the circumstances.

The latest backgrounder in a series of occasional essays on the relationship between government and religion details the history of the free exercise debate and examines the significant Supreme Court and lower court cases that make up the jurisprudence in this area. As a supplement to this backgrounder, one of its authors, Robert W. Tuttle, spoke with the Pew Forum about how the current law on free exercise might be applied in certain, real-world circumstances.

Featuring: Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, George Washington University Law School

Let’s walk through a few hypothetical situations and see how they would be handled under the current constitutional standards for the free exercise of religion. What about a Sikh who is asked to remove his turban in order to pass through airport security? If he believes that he has a religious obligation not to remove his turban in public and feels that the airport’s requirement violates his religious liberty rights, would a court uphold his claim?

Under current law, the security requirement is not likely to violate the Sikh’s free exercise right as long as the rule applies equally to other types of large headgear, such as cowboy hats, that could be used to conceal weapons. Because the security screening is under the control of the federal government, however, the Sikh passenger might have a claim under the Religious Freedom Restoration Act (RFRA), the statute that requires the government to make reasonable accommodations when a law burdens someone’s free exercise of religion. Indeed, the Transportation Security Administration changed its screening regulations and now offers a variety of alternatives for passengers who raise religious objections to removing headgear or other clothing at airport security checkpoints. Such alternatives give security officers the option of patting down the passenger or using a metal-detecting wand over the headgear instead of requiring its removal.

What about a state program that provides tuition vouchers for high school students in remote areas and allows the students to use the vouchers at public schools or nonreligious private schools but prohibits students from using the vouchers at religious schools? Doesn’t that restriction violate the free exercise rights of students who would like to use the vouchers to attend religious schools, or the rights of religious schools that would like to receive the vouchers?

Probably not. In Locke v. Davey (2004) the Supreme Court held that the government did not violate the Free Exercise Clause when it refused to fund scholarships for students preparing for the ministry, even though the government funded scholarships for students who chose virtually any other vocation or major. If lower courts adopt a broad reading of that precedent, as they have done thus far, the hypothetical religious high schools and students will have little chance of success. The Free Exercise Clause, the courts have reasoned, protects religion against rules that single out religion for special penalties but does not entitle religion to an equal share in the government’s distribution of funds.

Let’s say I’m a military chaplain who believes I should only offer prayers “in the name of Jesus,” but I’m asked to pray at an official military function without using “sectarian” language? Does that restriction violate my free exercise rights?

Under normal – civilian – circumstances, the Constitution would prohibit a government official from ordering a minister to pray using specific language, but courts give wide deference to the military, so the restriction probably would be upheld. The military can justify the restriction as an expression of concern for service members who may not share the chaplain’s faith but have been required to attend the official function. By the way, current military regulations permit a chaplain to refuse to offer prayers at official functions if the chaplain has a religious objection to such participation.

One more hypothetical: What about a person convicted of drunk driving who is sentenced by the court to participate in a faith-based alcohol abuse treatment program? Doesn’t that requirement violate the person’s right to free exercise of religion?

Although a court may order a person convicted of a crime to receive counseling or treatment for an addiction, a court may not order that person to participate in religious activity, which includes any program that has religious content, such as Alcoholics Anonymous. Such an order would violate the free exercise rights of the person ordered to attend the program. It would also violate the Establishment Clause, because the order would reflect government-mandated religious indoctrination.

Finally, two new justices have joined the Supreme Court since the court last decided a case involving the Free Exercise Clause. Based on the past records of Chief Justice John Roberts and Justice Samuel Alito, could their addition to the court lead to any change in free exercise law, such as a shift back to greater protection for religious conduct?

Chief Justice Roberts was not involved in any free exercise cases while he served on the appellate court, and so any prediction about his vision of such cases would be highly speculative. During his circuit court tenure, Justice Alito wrote one significant opinion interpreting the Free Exercise Clause. In Fraternal Order of Police v. Newark (1999; 3rd U.S. Circuit Court of Appeals), the circuit court barred a police department from disciplining two Muslim police officers who claimed that they had a religious obligation to wear beards, even though departmental policy imposed limits on facial hair. The court’s opinion suggests that Alito might be very sympathetic to arguments in favor of expanded constitutional protections for religiously motivated conduct.

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