Free Exercise or Free Entitlement?

Ed Cook May/June 2021

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Those 16 words encapsulate what many modern declarations of religious liberty attempt to guarantee by a plethora of verbiage. James Madison penned those clauses, and deliberated whether to use the term conscience, but after much debate he opted for the current version. But why did Madison desire to include the term conscience?

During the colonial period of American history (early 1600s to 1776), and even several decades into the founding era (1776–1820), established churches existed among the original 13 colonies, which evolved into states. Because of the religion clauses of the First Amendment, a movement began among the states for disestablishment, which removed the favored status of any religious group. Most, if not all, state constitutions adopted provisions that promoted a separation of church and state to prevent the religious dominance and preferential status that had existed in prior years. These provisions included a loss of monetary benefits for failure to comply. 

Leading American statesmen, such as Thomas Jefferson, James Madison, and Benjamin Franklin, were well aware of the overtures and encroachment practiced by the Catholic Church throughout European history. They were not necessarily anti-Catholic, but they were antiestablishment—of any religion, because historically some of the established churches that were eventually disestablished were the Anglican churches, the Congregationalist churches, and the Presbyterian churches (all non-Catholic, Protestant churches).

Those established churches exercised political influence and financial largesse of taxes, and often imposed restrictions on conscience. They required by law for citizens to attend church every Sunday. Penalties ranged from fines to being put in stockades and, in extreme cases, the death penalty (many Quakers were hanged on gallows in public, and Baptists, a minority group at that time, were publicly whipped for unauthorized preaching). They passed laws that proscribed Catholics, Jews, or heathen from holding public office and that required an oath of office that affirmed faith in Jesus Christ, as well as the basic tenets of Christianity. They required citizens to pay money for the support of the local minister, even if that minister was not of one’s religious faith and even if such payment was against one’s conscience. 

Majority Protestant groups exercised this type of legal dominance and oppression in many of the colonies (Roger Williams and the founding of Rhode Island being an exception). That historical reality paralleled the actions and dominance of the Roman Catholic Church in what was then referred to as the “Old World” (Europe). What Catholics had done to Protestants and any dissenters in Europe for centuries was now replicated among the colonies, albeit with a role reversal. From this historical context, our Founders recognized the need to prohibit any religious entity from establishing political, financial, or influential dominance in society in such a way that would lead to oppression of the masses, or existing minority groups. Of equal importance, they guaranteed the free exercise (practice) of one’s religious convictions, with minor limitations of practices that infringe upon the rights of others, or that endanger their well-being.

Free exercise cases adjudicated by the Supreme Court of the United States (SCOTUS) in the 1940s in particular shaped religious freedom and freedom of conscience jurisprudence.

In Cantwell v. Connecticut (1940), the SCOTUS rendered a significant victory to Jehovah’s Witnesses by ruling that they did not have to pay any fee in order to preach publicly.¹ Jehovah’s Witnesses traveled from door to door sharing their faith. At times their doctrinal message was condemnatory of other faiths and produced great protests. Small towns where they went typically passed laws that required persons conducting such activity to register with the city clerk and pay a fee to obtain a permit. Jehovah’s Witnesses refused to make the payment or register, and many of them were incarcerated. 

 In another case the SCOTUS ruled that children of Jehovah’s Witnesses did not have to salute the American flag or recite the Pledge of Allegiance in public schools. To underscore the sacred regard for conscience, Justice Robert H. Jackson penned this famous quote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”²

Human rights and freedom of conscience became central themes from the 1940s through the 1960s, not just in America but also globally. Allied powers in World War II (1939-1945) fought against the atrocities of the Nazis, in particular their ethnic and religious genocide against the Jews, which was highlighted during the Nuremberg war trials (1945-1946). By 1948 the United Nations had formulated the U.N. Declaration of Human Rights, Article 19 of which guarantees the right to freedom of conscience. 

In America the civil rights movement of the 1950s and 1960s reflected the growing consensus regarding human equality; which culminated in the Civil Rights Act of 1964. The Roman Catholic Church shifted its posture toward other non-Christian faiths and toward Protestants during Vatican II (1962-1965); no longer referring to the latter group as “heretics,” but instead as “separated brethren.”³

In light of such emphasis upon human rights and freedom of conscience, the SCOTUS decision in Sherbert v. Verner (1963) was not surprising. The Court ruled in favor of Adell Sherbert, a Seventh-day Adventist who was denied unemployment benefits because she would not accept an available job that would require her to work during the biblical Sabbath (from sundown Friday to sundown Saturday). In this decision the Court took a more expansive view of the free exercise clause. In essence, such a view requires government to accommodate religiously motivated conduct in the absence of a compelling state interest and to use means that least burdened religious practices.⁴ The same test was also reflected in the Court’s decision in Yoder v. Wisconsin (1972), in which the state’s compulsory education through 17 years of age was deemed to be too restrictive of Yoder’s religious beliefs.

However, almost 20 years later, in Unemployment Division of Oregon v. Smith, the SCOTUS did an about-face from its ruling in Sherbert. Smith belonged to the Native American church, which used peyote, a mildly hallucinogenic drug. In Smith the Court ruled that any generally applicable law must be obeyed and, if in conflict with one’s religious convictions, then a religious adherent must seek legal relief through the political process of a given state, rather than seeking accommodation through appeal to the free exercise clause of the First Amendment. For Smith, this resulted in the denial of unemployment benefits because Oregon law disqualified anyone who used drugs. 

In an effort to restore the pre-Smith protections to religious freedom, Congress passed the Religious Freedom Restoration Act (RFRA, 1993). The intention was good, but the SCOTUS struck down as unconstitutional those portions applying to the states in City of Boerne v. Flores (1997). Since then, about 20 individual states have passed their own RFRA legislation to give the protection to faith. Undeterred, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000). It requires the compelling interest and the least-restrictive-means tests to be applied to free exercise cases involving lands used for religious purposes, as well as to the religious freedoms of persons who are institutionalized.

In the 1990 Smith decision the Court abandoned the strict scrutiny test, and by 1995 the SCOTUS took another shift that would categorize religious freedom as a hybrid right, dependent upon other rights, such as free speech. In Rosenberger v. University of Virginia the Court decided a traditional establishment clause case on free exercise grounds and freedom of speech. The SCOTUS ruled that the university’s charter, which prohibited university money from being given to religious organizations, was in violation of Rosenberger’s free exercise rights, as well as a limitation upon his free speech rights.

Prior free exercise cases were based on the religious convictions (or freedom of conscience) and unique religious practices that obligated government to make an accommodation for them. In this light, religion held a revered place that was not dependent upon additional rights. When the Court decided Rosenberger on free exercise and free speech grounds, religious rights could no longer be assessed as “stand alone” rights. Perhaps the most disturbing aspect of Rosenberger was that it granted a free exercise claim without a stated religious belief—Rosenberger’s religious beliefs did not include a belief to an entitlement of university student fees. Rather, the Court ruled that by not granting those funds, Rosenberger’s right to practice his faith was limited. Such confusion and blurring of the lines between establishment clause and free exercise clause cases has contributed to the mistaken assumption that free exercise rights equal religious entitlement. The extent to which both clauses have morphed into an amalgam is evident in Espinoza v. Montana.

In June 2020 the SCOTUS ruled in Espinoza v. Montana Department of Revenue that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents violated the federal Constitution’s free exercise clause, which protected religious adherents from discrimination.⁵ SCOTUS argued that the prohibitions applied by Montana Department of Revenue that did not allow state aid to be used by plaintiffs for the education of their children at religious schools was a greater separation of church and state than the federal Constitution requires. Although the interpretation of the establishment clause of the federal Constitution was not at issue in this case, the SCOTUS nonetheless alluded to it in arguing why the Montana Constitution’s “no-aid” provision was in violation of federal jurisprudence.

In Espinoza Chief Justice Roberts relied upon the Court’s ruling in Trinity Lutheran (2017) as a justification for supporting the voucher program. Justice Breyer dissented, arguing that Espinoza was similar to Locke v. Davey (2004) and should have been decided in like manner—aid, or grant money, does not necessarily need to include aid to religion, especially if a state has a no-aid prohibition. In essence, Espinoza further widens the crack in the establishment clause “wall of separation” and opens the floodgates for subsequent challenges to state prohibitions to government aid to religious entities. 

1 Cantwell v. Connecticut, 310 U.S. 296, 303-311 (1940).

2 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

3 Unitatis Redintegratio (Latin, Restoration of Unity, a.k.a. Decree on Ecumenism), https://www.vatican.va/archive/hist_councils/ ii_vatican_council/documents/vat-ii_decree_19641121_unitatis-redintegratio_en.html, accessed on January 20, 2021.

4 Exploring Constitutional Conflicts website, Free Exercise of Religion: Rise of the Compelling State Interest Test, http://law2.umkc.edu/faculty/projects/ ftrials/conlaw/freeexercise.htm, accessed January 20, 2021.

5 591 U.S. _ (2020), “Espinoza v. Montana Department of Revenue,” www.oyez.org/ cases/2019/18-1195. Accessed January 6, 2021. 

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Article Author: Ed Cook

Ed Cook has a doctorate in church-state studies from Baylor University, Waco, Texas, where he currently leads in church religious liberty activities.