What Does "Free Exercise" Actually Mean?
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Politics and Activism

What Does "Free Exercise" Actually Mean?

What exactly can we practice?

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What Does "Free Exercise" Actually Mean?
Constitution Center

At some point of our lives, we have seen the words of the First Amendment. The first line seems straightforward and clear:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Even though the Constitution's amendments are self-explanatory for the most part, the court system still has to interpret the words to apply to the many complex situations that society faces today. What does "free exercise" actually mean, and what does it cover under the amendment? The court has answered these questions for over 150 years and continues to do so today.

One of the first cases regarding the Free Exercise Clause was the 1878 case of Reynolds v. U.S. George Reynolds, which involved a member of the LDS Church who was arrested for bigamy under a federal law. Reynolds contended that his religious beliefs were infringed upon and thus, his "free exercise" right was violated. The court disagreed and created a dichotomy between beliefs and actions. The court ruled that Congress could not regulate beliefs but could pass laws that happened to infringe upon the practice of a belief.

The position from Reynolds v. U.S. was further clarified in Cantwell v. Connecticut, which developed the Valid Secular Policy Test. The first part of the test determines whether the government has a valid secular reason while the second part of the test checks whether the test applies equally. This test is best exemplified in Minersville School District v. Gobitis which decided that laws which required everyone to salute the flag were to be upheld, as there was a valid secular purpose of instilling patriotism in young children. The law applied to everyone, regardless of religion.

The Valid Secular Policy Test allowed for the government to abide by low standards when passing laws that wouldn't infringe upon the religious actions of individuals. This changed with the rise of the Warren Court under the case of Sherbert v. Verner. The case led to the development of the compelling state interest test – aka, the Sherbet Test. This test required the government to show a compelling state interest in enacting a law, such as ending racial discrimination. The state interest test became the least restrictive manner to achieving state goals.

The Sherbert Test lasted until the rise of Employment Division v. Oregon, which scrapped the Sherbet Test in favor of a new test based on neutral and general applicability. Thus, the burden to prove wrongdoing in terms of religious freedom shifted away from the government and back to the people. Today, the Supreme Court uses the Reynolds case's interpretation to interpret the Free Exercise Clause of the First Amendment.

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