America's Holy Wars: The Free Exercise Clause on Trial
America’s Holy Wars: The Free Exercise Clause on Trial
Companion post to this week’s episode of “Knowledge is Power” — watch the video here!
What You Need to Know About Freedom of Religion
“Congress shall make no law… prohibiting the free exercise thereof.”
Ten short words, one massive debate.
This week, we’re diving into the Free Exercise Clause — the second half of the First Amendment’s promise of religious liberty. Last time, we unpacked the Establishment Clause (the one that says the government can’t create a religion). This week, it’s all about how far the government can go in regulating religion.
Spoiler: it’s messy, it’s fascinating, and it involves peyote, polygamy, and Hobby Lobby.
The Two Clauses: A Constitutional Tag Team (or Tension Match)
The First Amendment protects religion in two ways:
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The Establishment Clause — no government-sponsored religion.
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The Free Exercise Clause — no government interference in your religious practice.
Sounds simple, but these two often wrestle like siblings in the backseat of American law.
Depending on who you ask, they either:
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Overlap completely,
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Work hand-in-hand to minimize government power,
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Or… directly contradict each other (fun!).
The courts have spent over two centuries trying to draw a line between protecting belief and regulating conduct.
Belief vs. Action: The OG Free Exercise Dilemma
The first big test came in Reynolds v. United States (1878) — a case about Mormon polygamy. The Court ruled that while belief is absolutely protected, actions based on those beliefs can be limited.
Translation: you can believe in having five wives, but you can’t actually have five wives if the law says otherwise.
This “belief vs. conduct” split still shapes Free Exercise law today. As Cantwell v. Connecticut (1940) later put it:
“The freedom to believe is absolute. The freedom to act is not.”
The Sherbert Revolution: When the Court Got Strict
Enter Sherbert v. Verner (1963) — a case about a Seventh-Day Adventist who lost her job for refusing to work on Saturdays. South Carolina denied her unemployment benefits because she wouldn’t work “without good cause.”
The Supreme Court disagreed — big time.
They created the Sherbert Test, a form of strict scrutiny that asks two big questions:
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Does the government action put a substantial burden on someone’s religious practice?
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(Example: forcing you to choose between your faith and your paycheck.)
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If yes, does the government have a compelling interest — and is it using the least restrictive means?
If not, the government loses.
For decades, this test protected individuals like Sherbert and others who refused to work on their Sabbaths or take jobs that violated their faith (see Thomas v. Review Board, Hobbie v. Unemployment Appeals Commission, and Frazee v. Illinois).
The takeaway: if the government was going to mess with your faith, it needed a really, really good reason.
Then Came Scalia: The Peyote Pivot
Everything changed in Employment Division v. Smith (1990) — the peyote case.
Two Native American men were fired from their jobs for using peyote in religious ceremonies. Oregon denied them unemployment benefits, and Justice Scalia (writing for the majority) said:
“If a law is neutral and generally applicable, it doesn’t violate the Free Exercise Clause — even if it burdens religion.”
Translation: if everyone has to follow the same rule, tough luck if it happens to affect your faith.
This ruling gutted the Sherbert test. Suddenly, unless a law explicitly targeted religion, courts would defer to the government.
Congress Claps Back: The Birth of RFRA
Scalia’s decision united an unlikely coalition — conservatives and progressives alike — who thought Smith went too far.
So in 1993, Congress passed the Religious Freedom Restoration Act (RFRA). Its goal:
“Restore the compelling interest test” from Sherbert v. Verner and Wisconsin v. Yoder.
RFRA brought strict scrutiny back for any federal law that substantially burdens religious exercise.
But when the Supreme Court got the chance to review RFRA’s reach in City of Boerne v. Flores (1997), it said, “Not so fast.”
In Boerne, the Court ruled that Congress couldn’t redefine constitutional rights — only enforce them. So RFRA applies to federal actions, not state or local ones.
Still, RFRA became a powerful shield for believers — and a frequent visitor to the Supreme Court docket.
The Chicken Case: Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
If you’ve ever wanted a religion case that involves animal sacrifice, here it is.
The Church of the Lukumi Babalu Aye, a Santería congregation in Florida, used animal offerings in its rituals. The city panicked and passed ordinances banning “religious sacrifice” — but still allowed hunting, fishing, and restaurant slaughter.
The Court saw through the feathers and ruled for the church: the laws targeted religion specifically, and that’s a no-go under the Free Exercise Clause.
Justice Kennedy’s mic-drop moment:
“The Free Exercise Clause protects religious observers against unequal treatment and against laws designed to suppress religious practices.”
RFRA in Action: From Psychedelic Tea to Hobby Lobby
🫖 Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)
A small Brazilian-origin church in New Mexico used a hallucinogenic tea in worship. The government tried to ban it under federal drug law.
The Court said nope — under RFRA, the feds needed a compelling reason to interfere with religion. They didn’t have one.
Result: Church wins.
🧵 Burwell v. Hobby Lobby (2014)
The owners of Hobby Lobby objected to providing certain contraceptives through their company’s health plan, citing their religious beliefs.
The Court (5–4) said that closely held corporations can have religious rights under RFRA and don’t have to comply if the government has less restrictive alternatives.
Justice Ginsburg’s dissent was legendary:
“This is a decision of startling breadth.”
The decision expanded RFRA’s reach from churches and individuals to corporations — a massive shift in the balance between faith and regulation.
⛪ Little Sisters of the Poor v. Pennsylvania (2020)
This Catholic order objected even to signing the paperwork that allowed third parties to provide contraception coverage.
The Court sided with the nuns, saying the government must consider religious liberty when writing regulations.
Result: agencies can (and arguably must) carve out exemptions for religious objectors.
Free Exercise in 2025: The Saga Continues
Religious liberty is still one of the most dynamic—and divisive—fields in constitutional law.
Recent and current cases include:
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Mahmoud v. Taylor (2025): Parents won the right to opt out of school storybooks with LGBTQ+ themes if they conflict with their religious beliefs. The Court likened it to Wisconsin v. Yoder — saying parents don’t lose Free Exercise rights at the schoolhouse door.
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Apache Stronghold v. United States (2025): The Apache lost a fight to protect a sacred site from being transferred to a copper mine. The Court refused to hear the case, but dissenters called it a “grievous mistake.”
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Catholic Charities Bureau v. Wisconsin: Raises the question of whether religious charities must pay state unemployment taxes.
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Oklahoma Charter School Cases: Tests whether religious schools can operate as public charter schools — a collision of Free Exercise and Establishment values.
The Big Picture: Conscience vs. Control
From peyote to prayer to corporate conscience, the Free Exercise Clause is where faith meets federal power.
It asks the hardest question in constitutional law:
How do we protect genuine belief in a nation of 330 million different ones?
Every case — from Sherbert to Hobby Lobby to Mahmoud v. Taylor — redraws the line between private conviction and public obligation.
If you believe in real freedom of religion:
🕊️ Watch this week’s Knowledge is Power episode
💬 Share your thoughts below
🕯️ And maybe light a candle — because in these unprecedented times, you’ve earned it.