Also known as:free exercise · Free Exercise Clause · free-exercise · free exercise clause
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional command, found in the First Amendment, that bars the government from enacting laws or policies that target religious practices or impose substantial burdens on religious exercise. A law triggers strict scrutiny when it is not neutral or generally applicable, such as when it singles out religious conduct for unfavorable treatment or permits individualized exemptions that are denied to religious claimants. Neutral and generally applicable laws that only incidentally burden religion are subject to rational basis review.
Sources & Authorities· 7 primary sources
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Hornbooks
Study Supplements
How it applies
Common Examples
6
State Ban on Prayer Stakes
The Riverbend Indigenous Council seeks to plant small wooden prayer stakes during its annual water blessing ceremony along a protected wetland. The State Habitat Authority enacts a rule that prohibits only seasonal riverbank ceremonies involving such stakes while allowing secular educational displays and research markers that disturb the same soil. The council challenges the rule as a violation of its free exercise rights. Because the regulation targets religious conduct while permitting comparable secular activity, strict scrutiny applies and the rule fails.
Santeria Animal Sacrifice Ordinance
Members of a Santeria congregation in Hialeah perform ritual animal sacrifices as part of their religious practice. The city council passes an ordinance that bans the precise method of slaughter used in those rituals while permitting other forms of animal killing for secular purposes. The congregation sues, claiming the ordinance burdens its free exercise of religion. The law is not neutral or generally applicable and cannot survive strict scrutiny.
Peyote Use and Unemployment Benefits
Francois Fortier is fired from his job after using peyote during a Native American Church ceremony. The state denies him unemployment benefits because the drug use violates a generally applicable criminal prohibition. Fortier sues, arguing that the free exercise clause requires an exemption. The neutral and generally applicable law survives rational basis review even though it incidentally burdens religious practice.
Foster Agency Certification Policy
Midnight Patient, a religiously affiliated foster care agency, refuses to certify same-sex couples on the basis of its sincere religious beliefs. The city maintains a policy that allows officials to grant individualized exemptions for operational reasons but denies Midnight Patient's request. The agency sues, alleging a free exercise violation. The presence of discretionary exemptions renders the policy not generally applicable and subject to strict scrutiny.
Amish School Attendance Exemption
Felicia Fuentes and her Amish community withdraw their children from school after eighth grade so the children can receive religious instruction and participate in traditional farming. The state enforces its compulsory attendance law requiring schooling until age sixteen. The family sues for an exemption under the free exercise clause. The combination of parental rights and free exercise entitles the community to relief because its alternative practices satisfy the state's interests.
Taxpayer Challenge to Religious Funding
Fernando Farrell, a taxpayer, sues to enjoin federal expenditures that support religious instruction in sectarian schools. He alleges that the spending violates the free exercise clause by compelling support for religion. The court must first determine whether Farrell has standing to bring the claim. Standing exists because the challenge rests on the free exercise clause and the taxpayers allege a direct injury from the use of their tax dollars.
Common questions
Frequently Asked
4
When does a law targeting religious conduct trigger strict scrutiny under the Free Exercise Clause?+
A law triggers strict scrutiny when it is not neutral or generally applicable, such as when it singles out religious practices for unfavorable treatment while permitting comparable secular conduct or when it allows individualized exemptions that are denied to religious claimants. In such cases the government must show that the law is narrowly tailored to a compelling interest.
Supporting sources
Does the Free Exercise Clause require exemptions from neutral and generally applicable laws that incidentally burden religion?
No. Neutral and generally applicable laws that only incidentally burden religious practice are subject to rational basis review and ordinarily do not require religious exemptions. The government need only show a legitimate interest and a rational relationship to that interest.
Supporting sources
What standard applies when a compulsory school attendance law conflicts with Amish religious practices?+
The Free Exercise Clause, combined with parental rights to direct children's upbringing, requires an exemption when the Amish community is law-abiding and self-sufficient and its alternative educational practices satisfy the state's interests without formal secondary schooling.
Supporting sources
How does the presence of discretionary exemptions affect free exercise analysis?+
A policy that permits individualized exemptions is not generally applicable. When officials grant secular exemptions but deny comparable religious requests, strict scrutiny applies and the government must justify the denial under that demanding standard.
Supporting sources
thereof."[^maj-36] And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of "the…
on the part of the [appellants] . . . by reason of the fact that they constitute compulsory taxation for religious purposes." The complaint asked for a declaration that appellees' actions…
Family LawBeing married · Family privacyUBEIntermediate