Constitutional Law II

Free Exercise Clause

Two approaches have been taken to the Free Exercise Clause when one's religious belief is burdened:

  1. Heightened scrutiny
  2. Laws of general applicability
    • If your religious belief breaks a law that applies to everyone, it will not get you out of jail.
      • Exceptions:
        • Hybrid cases (such as involving parental rights too)
        • Unemployment compensation
        • If the crime is symbolic expression
        • If the law targets religion

RFRA is a federal law that "ensures that interests in religious freedom are protected." It has been held to be unconstitutional as applied to the states, but it can bind federally.

  • It thus applies strict scrutiny to any federal action that substantially burdens one's free exercise of religion.

If a law would violate the Free Exercise Clause, then an accommodation must be made for religion.

Even where the Free Exercise Clause is not violated, the state may accommodate a religious practice, unless granting such a protection to religious people would violate the Establishment Clause (Lemon test). However, it does not have to accommodate.

The state has some play-in-the-joints where neither the Free Exercise Clause nor the Establishment Clause are violated, and it can thus choose to accommodate religion or to not.

If a tax accommodation is made to religious organizations, it must also be made to secular organizations.