Religious Liberty & the Free Exercise Clause

The second major debate about religious liberty in America has surrounded what is called the Free Exercise Clause of the First Amendment. The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . " In 1878 the Supreme Court was first called upon to interpret the extent of the Free Exercise Clause in a case called Reynolds v. United States. This case related to the prosecution of polygamy under federal law. The Supreme Court upheld Mr. Reynolds' conviction for bigamy, deciding that to rule otherwise would provide constitutional protection for a gamut of religious beliefs, including those as (potentially) extreme as human sacrifice. The Court said: "Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation." Of federal territorial laws, the Court said: "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." Some of the more extreme positions of the Jehovah's Witnesses have also been the target of such court decisions. One of the more controversial periods in the history of the Supreme Court was the time in the 1960s under what we call, after the name of the Chief Justice, the Warren Court. This court adopted an expansive view of the free exercise clause by appealing to the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions, since the 1970s, have reduced the scope of this interpretation.

One of the more celebrated recent cases dealing with free exercise occurred in the 1990s in a decision regarding the use of peyote in the worship of Native Americans. This case, in the view of many who study these issues carefully, legally gutted earlier understandings of Free Exercise Clause. But by 1993 the Religious Freedom Restoration Act (RFRA) increased protection—at least at the federal level—for the exercise of religion. Many states have passed similar measures since 1993.

In UDV v. Gonzales (2006) the Supreme Court upheld a particular application of RFRA that protected the religious liberty interests of a small religious sect that sought exemption from the Controlled Substance Act. A signal achievement for the protection of the Free Exercise Clause came in a Congressional Act that was passed and signed into law in 2000; the Religious Land Use and Industrialized Persons Act RLUIPA). Championed by the Baptist Joint Committee for Religious Liberty this law provided for increased protection in both municipal zoning and in the free exercise cases of former prisoners. The Supreme Court upheld this law in Cutter v. Wilkinson (2005), at least with respect to several prisoner cases. This decision is of particular interest to me because of my involvement in the settlement and housing of former prisoners in local disputes over rehabilitation.

Even more important, however, was the decision known as Good News Club v. Milford Central School (2001). In this decision the Court upheld the right to equal access in cases dealing with religious after-school club programs conducted in public school buildings. It was this Court decision that effectively kept open the doors of public schools for the effective discipleship ministry done by my own son's ministry, Crossroads Kids Clubs. A few years ago I had the privilege of meeting the leader of the Good News Club ministries in New York who was directly involved in this case that was eventually resolved correctly by the Supreme Court and thanked him for pressing this case all the way to the highest court in the land.

America has never gotten the religious freedom, religion and politics, balance just right. Debates will always exist but we can and should thank God for a nation where both the courts and Congress have protected the balance, at least on the whole. Mistakes have clearly been made but they are not as numerous as many extreme conservatives suggest. One reason for this is the solid work being done by advocacy groups on both sides of important church-state cases. There is a kind of pendulum effect that has gone on and over the last several decades we have seen some good decisions and some not so good decisions. On the whole, however, America remains a nation where liberty of conscience is legally upheld and we are free to worship, or not worship, according to our own conscience. Keeping this balanced perspective requires an intelligent public and my greatest fear for the future is that political partisanship can trump good legal sense if we are not very careful in how we handle this precious heritage of religious liberty.