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March 6, 2018

Lesson 6: When Free Exercise of Religion Clashes with the Law

The First Amendment to the Constitution provides that Congress shall make no law restricting freedom of religion or “prohibiting the free exercise” of religion. Does this mean that a citizen can refuse to obey an otherwise valid law because to do so would violate his free exercise of his religious beliefs?

Congress has implicitly recognized this quandary in the extreme case of the military draft, providing an exemption from active military service for those with a religiously based conscientious objection to actively participate in war in World War I, World War II and subsequent conflicts.

The Supreme Court, however, has ruled that such an accommodation of religious beliefs is not always required. In Employment Division v. Smith (1990), the court by a 6-3 margin ruled that Oregon could deny unemployment benefits for a person fired for using peyote, even though this was part of a Native American religious ritual. Justice Antonin Scalia, writing for the majority, said the state peyote ban was a “neutral law of general applicability” and that the free exercise clause did not excuse people from complying with such laws.

The result was widely criticized, and in 1993 Congress acted to override it. The Religious Freedom Restoration Act, introduced by Senator Edward Kennedy and Representative Charles Schumer, was passed unanimously in the House and with three dissenting votes in the Senate and signed by President Bill Clinton.

RFRA states that “the Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” with two exceptions. It may do so to further “a compelling government interest,” and if the rule is the least restrictive means to further that interest.

The tension between the free exercise clause and a law of general applicability is apparent in the case, pending before the Supreme Court, of Colorado baker Jack Phillips who refused, on religious grounds, to make a wedding cake for a same-sex marriage. The couple sued under Colorado’s public accommodations law banning discrimination on the basis of sexual orientation.

The result of the case may depend on whether the Court accepts Phillips’s claim that making a cake is an artistic expression involving active participation in a ceremony which he says violates his religious beliefs, or whether it accepts plaintiffs’ view that it is an ordinary commercial transaction without such implications.

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March 6, 2018