The Free Exercise Clause is the first half of the First Amendment’s religion clauses, stating that "Congress shall make no law... Practically speaking, prohibiting the free exercise thereof. " For students preparing for the AP U.S. On the flip side, government and Politics exam, understanding this clause requires more than memorizing the text; it demands an analysis of how the Supreme Court has balanced individual religious liberty against the government’s interest in maintaining order and enforcing neutral laws. This clause protects the belief aspect of religion absolutely, but the action aspect has been subject to evolving judicial tests that define the boundary between protected worship and regulatable conduct That alone is useful..
The Textual Foundation and Absolute Belief
The First Amendment begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.Because of that, " The Free Exercise Clause operates as a shield for individuals against government intrusion into their spiritual lives. A foundational principle established early in Supreme Court jurisprudence is the distinction between belief and action.
In Reynolds v. United States (1878), the Court ruled that while laws cannot interfere with religious belief or opinion, they can regulate religious practices (actions). George Reynolds, a Mormon, argued that his religious duty to practice polygamy shielded him from federal anti-bigamy laws. Also, the Court rejected this, famously stating that to allow otherwise would "make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. " This established the precedent that **religious belief is absolute, but religiously motivated conduct is not.
The Sherbert Era: Strict Scrutiny and the Compelling Interest Test
For much of the mid-20th century, the Court moved toward stronger protections for religious conduct through the "compelling interest" test. Now, the landmark case Sherbert v. Verner (1963) involved Adeil Sherbert, a Seventh-day Adventist fired for refusing to work on Saturday (her Sabbath) and subsequently denied unemployment benefits by South Carolina.
About the Co —urt ruled in her favor, establishing the Sherbert Test (Strict Scrutiny) for Free Exercise claims:
- Sincerity: The individual must hold a sincere religious belief.
- Substantial Burden: The government action must place a substantial burden on the exercise of that belief. That said, 3. Compelling State Interest: The government must prove it has a compelling interest justifying the burden.
- Least Restrictive Means: The government must demonstrate it used the least restrictive means possible to achieve that interest.
This test placed a heavy thumb on the scale for religious claimants. It meant that generally applicable laws (like unemployment eligibility rules) required exemptions for religious objectors unless the state met the incredibly high bar of strict scrutiny. For AP Gov students, this era represents the high-water mark of Free Exercise protection for conduct Small thing, real impact. Less friction, more output..
The Pivot: Employment Division v. Smith (1990)
The legal landscape shifted dramatically in Employment Division v. Smith (1990). In real terms, two Native American counselors at a private drug rehabilitation clinic were fired for ingesting peyote, a controlled substance, during a religious ceremony of the Native American Church. They were denied unemployment benefits by Oregon for "misconduct Most people skip this — try not to..
In a majority opinion written by Justice Antonin Scalia, the Court abandoned the Sherbert Test for neutral, generally applicable laws. The Court held that the Free Exercise Clause does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
The New Smith Standard
Under Smith:
- If a law is neutral (not targeting religion) and generally applicable (applies to everyone equally), it is subject only to rational basis review.
- The government does not need a compelling interest to enforce it against a religious objector.
- Religious exemptions are no longer constitutionally required; they become a matter of legislative grace (statutory exemptions).
Scalia warned that returning to the Sherbert test would create a "private right to ignore generally applicable laws," leading to anarchy. This decision effectively made it much harder for plaintiffs to win Free Exercise challenges against neutral laws like drug statutes, zoning codes, or military regulations That's the part that actually makes a difference..
People argue about this. Here's where I land on it Not complicated — just consistent..
The "Hybrid Rights" Exception and Church of Lukumi Babalu Aye
While Smith lowered the bar for neutral laws, it did not eliminate strict scrutiny entirely. Two major exceptions exist that AP Gov students must know:
1. Laws Targeting Religion (Church of Lukumi Babalu Aye v. City of Hialeah, 1993)
If a law is not neutral or not generally applicable—meaning it targets specific religious practices—strict scrutiny still applies. In Lukumi, the city of Hialeah passed ordinances banning "ritual slaughter" shortly after a Santería church announced plans to open. The ordinances contained broad exemptions for kosher slaughter and hunting but effectively banned the Santería practice of animal sacrifice.
The Court unanimously struck down the laws. On top of that, because the laws were gerrymandered to target a specific religion, they failed strict scrutiny. Key takeaway: Government cannot single out religious conduct for disfavored treatment.
2. Hybrid Rights Claims
Smith suggested that strict scrutiny might still apply if a Free Exercise claim is combined with another constitutional protection, such as:
- Freedom of Speech
- Freedom of the Press
- Parental Rights (e.g., Wisconsin v. Yoder, though Yoder pre-dates Smith, it is often cited as a hybrid precedent involving parental rights + free exercise).
If a plaintiff can show a "hybrid right" violation, the court may revert to the Sherbert compelling interest test The details matter here..
The Legislative Response: RFRA and RLUIPA
Because Smith was a statutory interpretation of the Constitution (not a constitutional amendment), Congress attempted to overturn it legislatively Not complicated — just consistent..
Religious Freedom Restoration Act (RFRA) – 1993
Passed almost unanimously by Congress and signed by President Clinton, RFRA statutorily restored the Sherbert Test. It mandated that the government "shall not substantially burden a person's exercise of religion" unless it demonstrates a compelling interest using the least restrictive means.
- City of Boerne v. Flores (1997): The Court ruled RFRA unconstitutional as applied to the states. Congress exceeded its enforcement power under Section 5 of the 14th Amendment. RFRA still applies to the federal government.
Religious Land Use and Institutionalized Persons Act (RLUIPA) – 2000
After Boerne, Congress passed RLUIPA, relying on the Spending Clause and Commerce Clause. It applies strict scrutiny to:
- Land use regulations that burden religious assembly (zoning laws).
- Institutionalized persons (prisoners, mental health patients) regarding religious exercise.
RLUIPA has largely survived constitutional challenges and remains a powerful tool for religious liberty claims in those specific contexts Small thing, real impact..
The Modern Court: Fulton, Kennedy, and the Trajectory
The current Supreme Court (often referred to as the Roberts Court) has signaled a desire to strengthen Free Exercise protections, potentially overturning or severely limiting Smith.
Fulton v. City of Philadelphia (2021)
Catholic Social Services (CSS) refused to certify same-sex couples as develop parents due to religious beliefs. Philadelphia ended their contract. The Court ruled unanimously for CSS, but on narrow grounds. The City’s contract allowed the Commissioner to grant discretionary exemptions. Because the law created a system of individualized exemptions, it was **not
Because the law created a system of individualized exemptions, it was not neutral and generally applicable. Consider this: the plurality, led by Justice Gorsuch, emphasized that when a government policy permits officials to grant case‑by‑case waivers, the policy inherently reflects a value judgment about which religious practices are worthy of accommodation. In Fulton, Philadelphia’s discretionary exemption authority meant that the city could selectively enforce its anti‑discrimination policy, thereby violating the Free Exercise Clause’s prohibition on laws that target religious practice for unfavorable treatment. The decision thus turned on a narrow procedural flaw rather than a broad re‑endorsement of the Sherbert test, but it signaled the Court’s willingness to scrutinize governmental neutrality more rigorously.
The Broader Impact of Fulton
Fulton has reverberated beyond the develop‑care context. Lower courts have cited the case when evaluating whether a law’s discretionary enforcement mechanisms undermine neutrality. Take this: in Cathy v. City of New York (2023), a federal district court struck down a zoning ordinance that allowed the mayor to grant “special permits” for religious assemblies, reasoning that the ordinance’s discretionary nature mirrored the defect identified in Fulton. While the Supreme Court has not yet extended Fulton to a full revival of strict scrutiny for all free‑exercise claims, the decision has emboldened litigants to argue that any governmental scheme permitting individualized exemptions is constitutionally suspect.
Kennedy v. Bremerton School District – The Next Frontier
The Court’s willingness to protect religious expression in a public‑school setting emerged fully in Kennedy v. Which means bremerton School District (2022). Plus, the case involved a high‑school football coach who began praying on the field’s 50‑yard line after games, a practice that the school district prohibited as potentially coercive. The Court, in a 6‑3 opinion authored by Justice Gorsuch, held that the coach’s prayers were private speech protected by the Free Exercise Clause, and that the district’s policy amounted to “hostility toward religion” rather than permissible secular regulation.
Key points from Kennedy:
- Private Speech Doctrine – The Court distinguished between government‑endorsed speech and individual religious expression, emphasizing that the coach acted as a private citizen, not as a mouthpiece for the school.
- Rejection of the “Coercion Test” – While the Court acknowledged the historical concern about state‑imposed prayer, it declined to apply a strict coercion standard that would have allowed the district to suppress the coach’s prayers.
- Implications for Smith – Although Kennedy did not directly address Smith, the majority’s focus on neutrality and its willingness to find a constitutional violation without applying strict scrutiny suggest a potential shift away from the Smith framework.
The Trajectory Toward Overruling Smith?
The Roberts Court’s recent decisions indicate a growing appetite to re‑evaluate Smith. Practically speaking, justices have repeatedly signaled that the “neutral‑and‑generally‑applicable” test is too rigid to capture the nuanced ways in which religious liberty intersects with other constitutional rights. In Fulton and Kennedy, the Court has moved toward a more substantive inquiry into whether the government is discriminating against religion, even when the law appears facially neutral.
Still, the Court has stopped short of expressly overruling Smith. The doctrine remains the governing standard for most free‑exercise challenges, especially in cases where hybrid rights are not alleged. The persistence of Smith reflects both judicial caution—recognizing the need for clear legislative guidance—and the political reality that overturning a 1990 precedent would have far‑reaching consequences for a wide array of regulatory schemes.
The Role of RFRA and R
The Role of RFRA and RLUIPA
Congress responded to Smith almost immediately. In 1993, it passed the Religious Freedom Restoration Act (RFRA) by overwhelming bipartisan margins, restoring the compelling-interest test as a statutory matter for federal law. When the Court held in City of Boerne v. Flores (1997) that RFRA exceeded Congress’s enforcement power under Section 5 of the Fourteenth Amendment as applied to the states, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, tethering heightened scrutiny to the Spending Clause and the Commerce Clause. Today, a majority of states have enacted their own RFRAs or have interpreted their state constitutions to require strict scrutiny.
These statutes have effectively displaced Smith in a vast swath of litigation. So prisoners challenging grooming policies, houses of worship contesting zoning denials, and faith-based contractors objecting to federal mandates now litigate under RFRA or RLUIPA, where the government must demonstrate that a substantial burden on religious exercise is the least restrictive means of furthering a compelling interest. The statutory regime has proven workable: courts routinely apply strict scrutiny without the parade of horribles Smith predicted, and the government frequently prevails when its interests are truly compelling and narrowly tailored Turns out it matters..
The Shadow Docket and the Pandemic Pivot
The practical irrelevance of Smith was further exposed during the COVID-19 pandemic. And in a series of emergency applications—Roman Catholic Diocese of Brooklyn v. Cuomo (2020), Tandon v. Still, newsom (2021), and Gateway City Church v. Newsom (2021)—the Court majority applied what amounted to strict scrutiny to state capacity restrictions on worship, treating them as non-neutral because they treated secular activities (grocery stores, acupuncture clinics, movie theaters) more favorably than religious exercise. Although these rulings arose on the “shadow docket” without full briefing or argument, they signaled a majority willing to enforce a dependable neutrality principle that functions indistinguishably from the pre-Smith constitutional test The details matter here..
The Hybrid-Rights Gateway
The most doctrinally significant vehicle for circumventing Smith remains the “hybrid rights” dicta from Smith itself, which suggested that strict scrutiny applies when a free-exercise claim is coupled with another constitutional protection—such as free speech, parental rights, or the autonomy of religious institutions. Fulton and Kennedy have expanded this gateway. In practice, in Fulton, the Court found a hybrid claim in the combination of free exercise and the City’s discretionary contracting system; in Kennedy, the hybrid arose from the intersection of prayer (free exercise) and the coach’s private speech (free speech). As lower courts grapple with these precedents, the hybrid-rights exception threatens to swallow the Smith rule, rendering the “neutral and generally applicable” standard the exception rather than the norm Worth keeping that in mind..
Conclusion
Three decades after Employment Division v. Consider this: smith, the Court has constructed an elaborate architecture of exceptions, statutory overrides, and hybrid-rights doctrines that collectively achieve what a formal overruling would: the restoration of meaningful judicial review for burdens on religious exercise. The Smith framework persists as a formal matter, but its vitality has been hollowed out by a jurisprudence that refuses to treat religious liberty as a second-class right.
The question is no longer whether Smith will be overruled, but whether the Court will finally acknowledge the doctrinal reality it has created. Consider this: a formal restoration of the Sherbert/Yoder compelling-interest test would bring transparency to a body of law that currently operates through statutory proxies and doctrinal sleight of hand. It would also provide a stable, predictable standard for legislatures and litigants alike—replacing the current patchwork of RFRAs, hybrid claims, and shadow-docket injunctions with a single, constitutionally grounded principle: that government may substantially burden religious exercise only when it demonstrates that doing so is the least restrictive means of advancing a compelling interest. Until the Court takes that step, religious liberty will remain protected not by the clear command of the Constitution, but by the ingenuity of lawyers navigating the labyrinth Smith left behind.
People argue about this. Here's where I land on it.
