Free Exercise, Explained Clearly

We explore the Free Exercise Clause, trace the path from Reynolds to Smith, and examine how RFRA, vouchers, and the “tire case” shape modern religious liberty. We connect free exercise to establishment, show where they clash, and ask where the Court might go next.

• Free exercise as anti-persecution baseline 
• Reynolds and limits on religiously motivated conduct 
• Smith’s rule on neutral, generally applicable laws 
• RFRA’s compelling-interest test in federal law 
• Hobby Lobby as statutory interpretation, not a grand theory 
• Equal access to public benefits for religious entities 
• Ministerial training as an establishment red line 
• How to spot free exercise vs establishment issues 
• Conscience versus conduct and modern conflicts 
• Open questions about revisiting Smith

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Episode Transcript

SPEAKER_01 (00:00):
Welcome back to Civics in a year.
We are continuing ourconversation on freedom of
religion.
So again, if you this the firstepisode you're listening to, the
previous one, we talked aboutthe establishment clause, and
the one before that, we kind ofdid an overview on freedom of
religion.
And this is this is complicated.
It's not easy.
And there's a lot to this oneclause in the constitution.

(00:22):
So we have Dr.
Beyenberg back.
Dr.
Beyenberg, last episode wetalked about the establishment
clause.
Today we're going to talk aboutthe free exercise clause.
What does free exercise mean?

SPEAKER_00 (00:33):
Well, one thing that uh, as we joked about, we were
talking about establishment, butwe kept bringing up free
exercise.
And I suspect when we talk aboutfree exercise today, we'll keep
talking about establishmentbecause, as you said, many
people interpret them as sort oftwo clauses, but they're, I
think, better understood as sortof complementary with a with a
sort of shared purpose.
I know that's something mycolleague Paul Caris talked
about uh in the first one ofthese.

(00:54):
But free exercise, at the veryleast, is basically designed to
avoid religious persecution.
What it means beyond that uh isa little more uh contestable,
but that's sort of the baselinethat everybody can agree on.
Effectively, the court has builtup, and I'll try not to get too
con law anderdy here, eventhough that's my day job, but

(01:14):
the court has basically built uptwo lines uh of doctrine on how
to interpret the free exerciseclause.
One I will call the sort of themore traditional perspective or
the narrower perspectiveeffectively holds that the free
exercise clause is ananti-persecution and an
anti-discrimination provision,but does not uh create

(01:35):
effectively a zone of sort ofbroader claims of religious
autonomy.
So that sounds very abstract.
What do I mean by that?
The classic case of that is inReynolds versus United States in
the 1870s.
Congress, the Republicans, folksoften forget this.
The Republican Party platform iscommitted to abolishing the
so-called twin relics ofbarbarism, which they say are

(01:57):
slavery and polygamy.
This is in the 1856 platform.
They obviously can't regulatepolygamy in a state because
that's a federalism issue, butthey certainly can regulate it
in the territories, which isimportant because there are
members of the LDS community inwhat is the Utah Territory who
are wanting to practice polygamyon the grounds that their
religion uh dictates it.

(02:19):
And the uh member of the LDSchurch basically says this
violates free exercise.
I need to be able to practice myreligion.
This is a key tenet of myreligion, therefore, this
violates free exercise.
And the Supreme Courtunanimously, there's one that's
like a little sort of specialconcurrence for jurisdictional
reasons, but basicallyunanimously says no.

(02:40):
They say the purpose of the freeexercise clause is to avoid
religious persecution, but it isnot to create an exemption from
a law that is passed for ageneral public good.
And they say this law was notpassed because the federal
government hates the LDS churchor hates the Mormons.
They say this law was passedbecause Western civilization for

(03:02):
you know centuries has viewedpolygamy as barbarous, it's
viewed it as anti-woman.
Right?
There are basically goodgovernment reasons why one would
be against polygamy withoutbasically trying to do this for
religious persecution.
And so the court rejects theirclaim, the LES Church's claim at
that point.
Obviously, a few years laterthey move away from that as a

(03:22):
doctrine, that that case is sortof the foundational one.
It comes back up in the 1990s,it comes back up a few times,
but it's probably most famousarticulation is in the 1990s, a
case called Employment Divisionof Oregon versus Smith, in which
effectively a group of NativeAmericans, I'll simplify the
case facts a little bit, butbasically they are unable to

(03:43):
collect unemployment benefitsbecause they have been deemed
drug users, because they havebeen using peyote.
And the statute says thateffectively you can't get
unemployment benefits if you'vebeen effectively a convicted
drug user.
And they say, look, thisviolates our free exercise
because we need to use peyotefor some of our religious
rituals.
And Justice Scalia, writing forthe Supreme Court, says, no,

(04:03):
Reynolds basically gets itcorrect.
This isn't being implementedbecause the federal government,
in this case, is anti-NativeAmerican.
They're doing this becausethey're trying to basically
regulate various kinds of, youknow, various kinds of drugs.
It's sort of a broader, broaderscheme.
And Scalia doesn't really layout the sort of originalist
argument for this.

(04:24):
In that case, he does a fewyears later in a 1997 case.
This one's just mostly a, yep,Reynolds got it right.
The dissenters take a verydifferent perspective, though.
And they take, they're basicallypushing for the position that
pops up in the 1960s, which is amuch more expansive version of
free exercise.
And this doctrine effectivelysays that you should be able to

(04:48):
practice your religion, even ifthat means that you are
effectively getting some levelof exemption, judicially
enforced exemption from thoselaws.
Legislatively offered exemptionshave a very, very old history.
So Quakers were often explicitlyexempted from militia laws.
I know Paul Kirese was talkingabout oath or affirmation in the

(05:09):
earlier podcast.
Again, so ways to do thatthrough the legislature, but the
court is saying, no, we shouldinterpret the free exercise
clause to sort of judiciallyprotect a sphere of religious
practice.
The sort of Smith Reynoldsposition says that effectively
makes every person a law underhimself, because you could
himself or herself, because youcan just say, look, you know, my

(05:31):
religion requires me to insertthings here.
And so the doctrine on that sortof it struggles and it gets
really con law technical.
It uses these doctrines calledstrict scrutiny, and you have to
have compelling governmentinterests and so on.
But effectively, this arguesthat there should be a baseline
presumption that unless it'sgoing to seriously disrupt the
enforcement of law, uh,religious claims ought to be

(05:53):
honored.
And this is actually one of theplaces where I think there's
potential really interestingmovement in the doctrine going
forward because historicallyoriginalists sided with Scalia.
I'm focusing on originalistsbecause that's basically what
the bulk of the court is at thispoint.
Historically, originalists sidedwith scalia.
And they would interpret thefounding texts, uh, they would

(06:15):
interpret the stateconstitutions, which some of
which explicitly say things likeyou shouldn't, you do not get
sort of your religious claims donot mean that you can disrupt
the public peace and whatnot.
More recently, manyoriginalists, largely with the
work of Michael McConnell, haveargued sort of the Sherbert line
of cases, even though it wasoriginally sort of developed by

(06:36):
progressives like WilliamBrennan, that that's actually
the correct way to do that.
The court has been being hasbeen goaded to take, to
disregard Smith and move towardthe broader interpretation in
the last few years.
They haven't done that.
Now, that being said, andthere's some great historical
ironies here, when the Smithopinion came down, Scalia

(06:56):
particularly, but the SupremeCourt in general was widely
criticized by Congress,criticized by the president.
You can go back and read thespeeches, I assigned them to my
students, where you have ChuckSchumer, Ted Kennedy, Orrin
Hatch, like big figures in bothparties, President Clinton,
basically all saying AntoninScalia hates religious people.
And so, therefore, as far asfederal law is so, therefore,

(07:19):
we're going to reimpose thewe're going to reimpose the more
protective test that you getsort of a threshold religious
exemption.
They originally applied that toeverything, but it gets struck
down on federalism grounds asapplied to the states.
So states are not bound by thatReligious Freedom Restoration
Act.
Some of them have it their ownin their own state law, but it

(07:40):
is still a law of Congress.
And this is why, if you rememberthe Hobby Lobby case, one of the
things I like to do as I joke tomy students is make con law
boring.
Make law boring.
Everybody had these grandvisions that Hobby Lobby was
this sweeping discussion of likereligious liberty.
And it's not.
It's basically a boringinterpretation of whether the

(08:00):
Dictionary Act and thedefinition of when persons means
natural person and when personmeans a corporation.
So the dictionary act goesthrough and sort of spells that
out.
Which one of those definitionsis supposed to apply in in
Rifra?
But the again, the sort of thefunny irony is Scalia is part of
that majority applying RIFRA,which was a statute that was

(08:21):
passed basically as a criticismof him and his jurisprudence.
So I sort of imagine back behindChambers, he was chuckling about
that.
So now kind of connecting backto the first of the previous
podcast, the court, while stillbasically using Scalia's
definition of the narroweranti-persecution thing, and it's

(08:43):
just and it's it should beemphasized.
There have been times whencommunities have basically said,
we hate this religious groupthat's moved in, let's stick it
to them.
And they will pass a law that'svery clearly designed to sort of
run them out or to bediscriminatory.
Even under Smith, Scalia wouldsay, yeah, absolutely.
So there's a famous case fromHyalia about regulating Santa
Ria sacrifice practices about 20years ago along these lines.

(09:06):
So that's not to say it doesn'tdo anything, but basically it's
supposed to be suppressingexplicit religious persecution.
Now, in order to avoid violatingthe establishment clause,
through the late 20th century,states, municipalities, and
others would pass laws thatwould say we're going to extend
some benefit, but we're notgoing to extend it to religious
people.
So the cleanest example of thiswould be, say, school vouchers

(09:29):
or something along those lines,whether that's directly or
there's a case that came up in2017 about whether you could
apply to collect tires torebuild your playgrounds.
And Missouri was trying to avoidthe establishment clause
problem.
And so they said, everybodybasically can get these tires
except for religiousinstitutions.
And the religious schools said,well, this is seemingly

(09:51):
violating even the narrowinterpretation of the free
exercise clause, because you areimposing a burden on us as
religious people that you're notimposing on everybody else.
It's not just anybody can comeget a tire, it's everybody can
come get a tire unless you'rereligious.
And the court in a series ofcases, initially with the tire
case, more recently with variouskinds of school vouchers and
other things, have said, no, ifyou're choosing to extend this

(10:13):
kind of a benefit, you need toextend it equally.
Otherwise, you will haveviolated the free exercise
clause.
And that's had general support,even among some of the sort of
progressives on the court thatotherwise are more sympathetic
to strict separation.
So that doesn't seem likethere's disagreement, but it is
going to be interesting in thenext few years to see whether,

(10:34):
particularly as some states andcommunities have become have
elevated, I would say,anti-discrimination law in a way
that creates more of a tensionwith claims of religious belief
and religious conduct.
That seemingly has spurred somepeople to rethink whether the
more expansive interpretation iscorrect.

(10:55):
I I don't know what the court'sgoing to do.
In the last case, severaljustices said we should switch.
Several of them said no, Scaliagot it right.
And a few of them said we havesome problems with Scalia's
thing, but this is a hard case,both in terms of the history and
potentially in terms of what thedoctrine would look like.

SPEAKER_01 (11:13):
So when you talked about the tire case, and if if
I'm remembering this right, itwas like to build like it was a
preschool within this church.
And the argument is this has noreligious bearing at all.
We're literally building aplayground for children.
We just happen to be a schoolthat is a parochial school.

(11:41):
So this might be a complicatedquestion, but how do I know if
I'm looking at something, ifit's a free exercise issue or if
it's an establishment issue?
Because it does feel like it isso just complicated to answer
because there are cases whereI'm like, well, maybe that it's

(12:03):
free exercise, maybe it'sestablishment, maybe it's
speech.

SPEAKER_00 (12:06):
Like there's not really a clear line, or is there
so generally speaking, whensomeone is filing a case,
they're going to say it violatesfree exercise, and then they'll
sort of put as a coda, and if weand if we win, it doesn't
violate establishment.
So there's a lot of cases likelike that.
And some of them are gettingpretty complicated in the fact

(12:26):
pattern.
So the as I said, the court hasbeen basically saying you have
to extend those same sorts ofscholarships.
The tire case in some cases iseasy, right?
Because it literally isbasically like kids run, like we
don't want the kids scuffingtheir knees on concrete on the
playground like the tire mulchis softer or whatever, right?
But there's a really interestingcase from about 25 years ago,

(12:46):
which is can a state withholdsub, like basically educational
funding for people who are goingto be trained into the ministry
specifically, right?
Since that really then triggersmore of the core establishment
concerns about basically thestate getting involved with and
participating in religiousinstruction.

(13:07):
Back at the time, even some ofthe justices like Rehnquist, who
said, yeah, they're reading theestablishment clause too
expansively.
It's fine to have sort of schoolvouchers to a Lutheran school.
Even Rehnquist said, but anactual minister getting trained,
that has some establishmentclause concerns.
The dissent in that caseeffectively said, look, if you

(13:31):
said you can get a scholarship,whether you're studying
engineering or English ortheology to go be a minister, it
should be the same.
You don't have to make thescholarship, but you can't say,
except for you religious people.
The courts in the last 10 years,as they've been applying that
sort of there's neutrality, theyhave explicitly said this
doesn't apply to that really,really factually convoluted case

(13:55):
of ministerial training becausethat one is so inseparable with
establishment clause concerns,even under a narrower
understanding of theestablishment clause.
So you're absolutely right.
And this is one of the things toagain emphasize one of the
themes, which is we really needto treat these two clauses sort
of in a conversation with oneanother.
And for a long time, the courtwas treating them completely

(14:20):
separable in a way that wouldthen create these real tensions,
because one line of case lawfrom the exercise was now in
tension with one line of caselaw from establishment.
So whether you think that thecourt has gotten it right of
late in terms of fidelity tohistory and original
understanding or the outcomesthat you're you're seeking, it
does seem like those tensionsare probably decreasing, if by

(14:43):
narrowing the establishmentclause.
If they push to have the moreexpansive interpretation of free
exercise, then that then some ofthose things that had been
seemingly being simplified thatmake it much more, much more
complicated again.
So I think that's probably oneof the three or four probably
most interesting places where Igenuinely have no idea what the

(15:05):
court is going to do in the nextfew years because it they are
it's a fact, it's reallyinteresting.
It's a bunch of originalists,but they're basically squabbling
over whether Scalia gets itright or their favorite Khan Law
professor originalist gets itright.
So I don't know what they'll do.
But fundamentally, again, tosort of reiterate and kind of uh
is that the the purpose of thisis a sort of more unified

(15:30):
interpretation of basically afreedom of religion in which
conscience is fundamentallyprotected.
But you know what, and this willimplicate and sort of foreshadow
what we'll talk about with freespeech.
The line between conscience andconduct gets really, really
messy on top of the relationshipbetween establishment and free

(15:50):
exercise.
But fundamentally, it is worthemphasizing, you know, there's
something Paul Carisse pointedto, that I think it's overstated
to say the First Amendment isfirst because it's important,
but it is striking that, becausethat's historically not true for
what we've talked about in otherpodcasts, but it is striking
that that that's receives suchan early consideration in the

(16:11):
Bill of Rights, as it does inmany in many state
constitutions.

unknown (16:16):
Dr.

SPEAKER_01 (16:17):
Weinberg, thank you so much.
Again, we've gone through thefree exercise clause here, we've
gone through the establishmentclause, we're gonna go through
speech.
Like this is this is the fun,and this is why we're doing
Civic Senior to really dive intothis.
So thank you.