Free to Believe: The Supreme Court’s Evolving Take on the Free Exercise Clause

In the last article, we talked about how the First Amendment protects people from the government imposing a religion onto it's citizens. This is done by outlawing the establishment of an official religion. But that begs the question: to what extent can citizens express their own religious beliefs? Our founders were concerned with an individual citizen's right to practice any religion they please, free from government coercion. But just because the First Amendment protects the free exercise of religion, it doesn't simply allow anyone to do what they please because it's 'part of their religion.' If a religion were to claim that its core beliefs were rooted in absolute anarchy and the abolition of the rule of law, the Court wouldn’t be too eager to defend its free exercise.

The free exercise clause is written as: "Congress shall make no law... prohibiting the free exercise [of religion] thereof." Pretty simple right? Well, not really. You may think that all congress has to do is make laws that don't prohibit people's practice (or exercise) of religion, but as we saw in the hypothetical, people could theoretically call any school of thought a religion, and expect their exercise to be exempt from government scrutiny and regulation. The government must intervene in some cases, when there is a possible imposition of other's liberties, and exhibit restraint, when there is harmless practices of religion.

Unfortunately, the cases aren't as clear cut as religious institutions attempting to uproot American democracy, but the previous hypothetical does pose a good question as to what individuals can claim their religious beliefs to be. Congress passed The Religious Freedom Restoration Act (1993) and required the application of the strict scrutiny test to all cases involving the federal government. This test places the 'burden of constitutionality' on the government (meaning the government must prove their actions are in accordance with the constitution, rather than the plaintiff having to prove otherwise). The purpose at the time was to apply the strict scrutiny standard to both federal and state governments, though the Court ruled that as unconstitutional in City of Boerne v. Flores (1997), limiting the application of the act to the federal government alone. Currently, the statute prevents the government from making it harder for a person to exercise their religion, even if the effect comes from a rule that could theoretically apply to anyone. The only case where the federal government is allowed to prevent someone's free exercise is when it "(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." Essentially, the government can only "burden" a person's free exercise when they are attempting to achieve an important goal, and they burden an individual's rights as little as possible when achieving this goal.

As it stands, there isn't a defined test for the free exercise clause, as there ostensibly is for the establishment clause. Even so, the precedent set by previous cases gives us a guideline as to what does and does not violate the free exercise clause. We can see in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) that the court largely upholds the precedent set by cases prior to the Boerne decision.

The case began with the Chruch of Lukumi Babalu Aye (which I will now refer to as the Church of Lukumi) officially establishing itself in August 1987, and the city taking action against the church in June 1987. The citizens of Hialeah were "against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety" and as a result decided to pass a series of emergency ordinances (aka laws created by state governments), which outlawed animal sacrifice. The ordinances noted that animal sacrifice was prohibited under all conditions, "regardless of whether or not the flesh or blood of the animal is to be consumed." These ordinances were clearly aimed at the Church of Lukumi, as they were the single church in the city that performed animal sacrifices. In a unanimous decision (9-0), authored by Justice Anthony Kennedy, the Court decided that the ordinances were not neutral and targeted the Church of Lukumi, attempting to restrict their religious expression.

When making their decision, the Court took into account the actions taken by the city, looking beyond the explicit text of the ordinances that were passed. The Court determined that, "[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality," which is legalese for 'the true intent behind the law cannot be hidden behind its text.' The Court then concludes that because the laws are not neutral nor generally applicable, they must be examined with strict scrutiny. The governmental interests in this case were not compelling nor at all restrictive, so the Court sided with the Church of Lukumi and voided the ordinances that were passed. Here the strict scrutiny test was applied, even though RFRA did not apply. By using the standard to scrutinize the actions of the city in this case, the court set precedent to use strict scrutiny in all cases where the law in question is not neutral or generally applicable.

The Court’s ruling in Church of the Lukumi set a meaningful boundary: the government cannot target religious practices through blatant or disguised means. But in recent years, the Court has gone further—not merely protecting religious groups from targeted restrictions, but going as far as requiring accommodations for religious groups. The court's shift raises a new question: when does protecting religious freedom become privileging it?

The case of Fulton v. City of Philadelphia (2021) provides the Court's stance on this issue. The case begins with a newspaper story on one of the private foster care agencies in Philadelphia. The story illuminated one of the religious beliefs of Catholic Social Services (CSS), echoing that they have believed that "marriage is a sacred bond between a man and a woman." Because of this belief, CSS chose not to certify same-sex couples who wanted to adopt children. The City had to contract these private organizations to certify couples who wanted to adopt, and it was the job of these organizations to ensure that these couples adhered to certain standards. After learning about CSS's beliefs, the City told CSS that they would stop contracting with them if they did not allow the certification of same-sex couples. CSS stood their ground remaining steadfast in their beliefs and, along with three affiliated foster parents, sued the City on the basis of First Amendment violations. In a unanimous decision (9-0) authored by Chief Justice John Roberts, the Court ruled in favor of CSS.

The court begins their analysis by looking at the two different interpretations of the City's action. CSS viewed the City's action as a burdened on their religious expression. To CSS, the certification of same-sex couples was an endorsement of their relationship, and the City's ultimatum forced them to choose between following their religious beliefs or the primary mission of the organization (pairing children with foster parents). Meanwhile, the City saw their action as guaranteeing certification for foster parents who met the certification criteria. The City argued that certification merely signaled that these foster parents met the adopting criteria, not necessarily that the organization "endorses their relationships." The Court sides with CSS here. The precedent (or the rule) that was created in Thomas v. Review Bd (1981) states that religious beliefs don't have to "be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." The Court says that it is CSS's belief that "certification is tantamount to endorsement," so it should be protected under the First Amendment. The problem here is that the Court takes CSS's interpretation of the case as a religious belief. The precedent set in Thomas v. Review Bd only provides merit to First Amendment protections if the belief is religious. The belief that the Court is referring to is that CSS thinks "certification is tantamount to endorsement," which in it of itself is not religious; it is simply the position that CSS takes in order to have their case argued. This distinction between a sincerely held religious belief and a strategic legal position is subtle, yet significant. The Court blurs the line between religious belief and legal strategy in order to subtly advance an ideologically favored outcome, under the guise of neutrality.

Recently, the Court has continued to deviate from precedent by finding legal loopholes to pursue their ideological goals. When deciding a case, the Court has to consider their decisions from older, related cases. This legal principle is called stare decisis. But sometimes the Court realizes that a previous case wasn't thought through all the way. When this happens, the court must clarify the law by explaining what was wrong, and creating a new standard. The new standard serves as a guideline for the lower courts, as well as a stepping stone for any related cases that appear before the court in the future. It's important that the Court upholds their duty to either create new standards, or uphold precedent in order to make the law understandable to, not only the public, but to lawyers as well. The current Court ignores this duty by making specific exceptions, as seen in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n (2018).

The case begins with Charlie Craig and David Mullins going to a bakery in Colorado to get a cake for their wedding. The bakery they went to was called Masterpiece Cakeshop, and it was owned by Jack Phillips, a devout Christian. Phillips told the couple that due to his religious beliefs, he would not bake them a cake for their wedding. The couple then sued, and the case went up to the Supreme Court. In a 7-2 decision authored by Anthony Kennedy, the Court sided with Masterpiece Cakeshop.

The Court starts by saying this case is not what meets the eye. They first echo the Cakeshop's position that this shouldn't be viewed as a business refusing to sell their product to a gay couple; instead, the court says that Philips' claim is narrow because "he had to use his artistic skills to make an expressive statement." Generally, it is important to look at a case within the context of its specific facts, as not doing so would oversimplify the case, and in turn cause the Court to come to an improper decision based off of an incomplete fact pattern. The problem here is that the Court implicitly decides that the rights of one group is above another, without a discussion as to why. The Court should have explained whether or not Phillips' claim holds any weight, and if it did, why the claim holds more weight than the rights of Craig and Mullins. The Court should have performed what is called a balancing test. These tests are typically done to 'weigh' the values or interests of two groups to decide which is more important. Instead what the Court does is criticize the decisions of the lower court that decided the case before them.

Throughout the decision, the Court never takes into account the facts of the case (what actually happened between the couple and Phillips) when analyzing the case. Instead, they talk about the process the previous court went through in making the decision. The Court looked at comments made by the lower court judge and determined that Phillips was discriminated against because of his religious beliefs; but whether or not Phillips was discriminated against in the lower court is entirely irrelevant to the decision the Supreme Court should be making. In any scenario, the Court should explain how they determined the reversal of the previous decision. In this case the determination was essentially 'the lower court decided this in a discriminatory fashion, therefore we shall reverse the decision.' What the Court should have done was decide the case based off the facts. The Court superficially discusses the indignities involved in the case, calling for similar cases to be "resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities," which is a fancy way of saying cases like this should be handled carefully, so the rights of each party are considered. But when the Court is given the chance to create a test that can be used in the future to help these subjugated parties, they avoid their duty.

Justice Ginsburg and Justice Sotomayor disagree with the Court's ruling, and Justice Ginsburg writes a dissent detailing her grievances. She points out that "[t]he proceedings involved several layers of independent decisionmaking," saying that even if Phillips was discriminated against, that discrimination is negligible in the analysis of the case as a whole. She also points out that the Court doesn’t explain how the supposed bias against Phillips affected the lower court's decision. Her dissent highlights the lack of detail in the Court's opinion and how it leads to inadequacies in the decision.

The Court must be thorough in their decisions, so their thought process can be understood and applied in lower Courts. The job of the Supreme Court is to guide lower courts by providing them standards and tests to follow in each case. When the Supreme Court avoids this duty in order to protect their own ideological goals, the repercussions trickle down to the lower courts and everyday people must deal with the effects these decisions have on their rights. Clear and consistent frameworks give people the justice they deserve. It is the Court's prerogative to act in accordance with the law and ensure all people are provided equal protection under the law.