Laws Regulating Religious Belief

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has long held that the Free Exercise Clause prohibits “any governmental regulation of religious beliefs as such,” as opposed to “overt acts prompted by religious beliefs or principles.” 1 The Constitution categorically prohibits the government from compelling “the acceptance of any creed or the practice of any form of worship.” 2 Accordingly, a law that expressly requires declaring a specific religious belief will violate the Free Exercise Clause.3 In Torcaso v. Watkins, decided in 1961, the Supreme Court held that a state constitutional provision requiring public officeholders to declare a “belief in the existence of God” violated the Free Exercise Clause.4 Although the Court noted the “historical precedent” for such “religious test oaths” in Europe and in the Colonies,5 it held that the adoption of the U.S. Constitution and the First Amendment, combined with countervailing evidence of opposition to the oaths during colonial times, rendered religious test oaths “historically and constitutionally discredited.” 6 By “limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept,” the state law violated constitutional free exercise protections.7

The First Amendment’s “absolute prohibition of infringements on the ‘freedom to believe’” does not apply to laws that are “directed primarily at status, acts, and conduct.” 8 However, even when courts are considering conduct-focused laws, the constitutional prohibition on regulation of belief can sometimes limit the bounds of judicial inquiry.9 For example, in United States v. Ballard, the Supreme Court held that it would violate the Free Exercise Clause for a jury to determine whether criminal defendants’ religious beliefs were true or false.10 The defendants were charged with mail fraud after promoting a religious movement that claimed supernatural healing powers.11 The district court had instructed the jury only to consider whether the defendants “honestly and in good faith” held their beliefs.12 The court of appeals, in contrast, held that the defendants could only be convicted of fraud if the government proved that the defendants’ beliefs, as they stated them, were false.13 The Supreme Court did not decide whether the jury could consider the sincerity of the defendants’ beliefs, as the district court thought, but it definitively rejected the court of appeals’ view that the jury should decide the truth of those beliefs, citing the absolute prohibition on government regulation of belief.14 The Court stated that “[h]eresy trials are foreign to our Constitution.” 15 The Court later emphasized that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” 16 Neither do religious beliefs have to comport with the “dogma of an established religious sect.” 17

The Court later reached the question it did not squarely resolve in Ballard, clarifying that although courts may not probe the truth of an individual’s religious beliefs, they may assess the sincerity or good faith with which the individual holds those beliefs in evaluating the merits of a free exercise claim or defense.18 A belief must be religious rather than secular to enjoy First Amendment protection,19 and the Supreme Court has suggested there may be some claims “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause.” 20 Accordingly, courts may also scrutinize a claimed belief to ensure that it is religious in nature rather than secular, and in the course of that inquiry, may evaluate evidence showing the centrality of a belief to a certain faith.21 Citing early cases upholding criminal laws prohibiting polygamy,22 the Court has rejected the claim that “any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment.” 23 While “[t]he determination of what is a ‘religious’ belief or practice” may be “a difficult and delicate task,” it may not depend on the government’s “perception of the particular belief or practice.” 24

1: Sherbert v. Verner, 374 U.S. 398, 402–03 (1963) (emphasis added in second quotation); accord Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940).
2: Braunfeld v. Brown, 366 U.S. 599, 603 (1961) (plurality opinion); accord Sherbert, 374 U.S. at 402. See also, e.g., Epperson v. Arkansas, 393 U.S. 97, 106 (1968) (holding that a state law prohibiting teaching evolution in public schools violated both Religion Clauses, saying “the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma” ).
3: Torcaso v. Watkins, 367 U.S. 488, 495–96 (1961). Cf., e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding that a school violated the First Amendment by expelling a student who, citing religious objections, refused to comply with a state law requiring teachers and pupils to salute the flag). Although the Supreme Court cited Barnette in at least one later case as involving a Free Exercise claim, see Everson v. Bd. of Educ., 330 U.S. 1, 15 n.22 (1947), other Supreme Court cases have treated Barnette as an interpretation of the Free Speech Clause, see, e.g., United States v. United Foods, 533 U.S. 405, 410 (2001); Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion). The Barnette opinion itself said its resolution of the case did not “turn on [the student’s] possession of particular religious views,” suggesting that other “citizens who do not share these religious views” might similarly object to this “compulsory rite” and would also receive constitutional protection. Id. at 634–35.
4: Torcaso, 367 U.S. at 489 (quoting Md. Const. Declaration of Rights art. 37).
5: Id. at 489–90.
6: Id. at 491–92, 494.
7: Id. at 494, 496.
8: McDaniel v. Paty, 435 U.S. 618, 627 (1978) (plurality opinion). In McDaniel, a plurality of the Court concluded that a state provision barring ministers from serving as delegates to a state constitutional convention did not operate because of the ministers’ beliefs, as prohibited by Torcaso, but instead disqualified ministers based on their status. Id. at 627. The plurality opinion nonetheless applied a heightened level of scrutiny and held the law unconstitutional. Id. at 629. Two Justices would have held that the law unconstitutionally regulated belief. Id. at 631–32 (Brennan, J., concurring in the judgment). McDaniel, and cases exploring the additional distinction between laws operating based on religious status versus religious activity, are discussed Amdt1.4.4 Laws that Discriminate Against Religious Practice, and Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses.
9: The Supreme Court has suggested that Congress is similarly limited when it outlines protections for religious belief. See United States v. Seeger, 380 U.S. 163, 184 (1965) (interpreting scope of federal conscientious objector law broadly, citing, among other considerations, the government’s inability to question the validity of religious objectors’ beliefs). Cf. Rusk v. Espinosa, 456 U.S. 951 (1982) (mem.), aff’g 634 F.2d 477 (10th Cir. 1980) (holding that city ordinance exempting “religious” groups from solicitation regulations violated the Free Exercise Clause as an impermissible prior restraint, because it gave administrative official overbroad discretion to determine what was religious).
10: United States v. Ballard, 322 U.S. 78, 88 (1944).
11: Id. at 79–80.
12: Id. at 81–82.
13: Id. at 83.
14: Id. at 86.
15: Id.
16: Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714 (1981).
17: Id. at 715–16; Frazee v. Ill. Dep’t of Employment Sec., 489 U.S. 829, 834 (1989). Cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014) (saying the courts have “no business” addressing whether a religious belief is “reasonable” when interpreting a federal statute protecting religious exercise).
18: See, e.g., Frazee, 489 U.S. at 833; Thomas, 450 U.S. at 716; Seeger, 380 U.S. at 185.
19: E.g., Frazee, 489 U.S. at 833. For additional discussion of how the Supreme Court has defined the scope of beliefs protected by the Religion Clauses, see Amdt1.2.1 Overview of the Religion Clauses (Establishment and Free Exercise Clauses).
20: Thomas, 450 U.S. at 715. Cf. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571 (1942) (rejecting a Free Exercise Clause challenge to a prosecution of a pastor under a statute prohibiting offensive addresses, saying the Court could not “conceive that cursing a public officer is the exercise of religion in any sense of the term,” but further holding that even if the activity was religious, that would not shield “concomitant acts committed in violation of a valid criminal statute” ).
21: See Wisconsin v. Yoder, 406 U.S. 205, 216–17 (1972).
22: See discussion Amdt1.4.1 Overview of Free Exercise Clause.
23: Murdock v. Pennsylvania, 319 U.S. 105, 109–10 (1943).
24: Thomas, 450 U.S. at 714. See also, e.g., Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) ( “[I]t is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.” ).