Module 7

Free Exercise — Part I

From Sherbert's compelled-exemption regime to Smith's neutral-generally-applicable rule — the central fault line of modern free exercise — plus the ministerial exception's absolute carve-out for religious employment.

Reading list

T1 Sherbert v. Verner 374 U.S. 398 (1963)
Free exercise at maximum voltage: South Carolina never fined or jailed Adell Sherbert — it simply declined to pay unemployment benefits unless she would take Saturday work — and the Court treats that pressure as the same kind of burden as a fine on Saturday worship. This is the module's compelled-exemption baseline: a substantial burden on religious exercise triggers the compelling-interest test, and the State must also show that no less-restrictive alternative would do. Learn the test's language verbatim; Smith will shrink it and RFRA will resurrect it.
T1 Wisconsin v. Yoder 406 U.S. 205 (1972)
Compulsory schooling meets a 300-year-old way of life, and Sherbert's compelling-interest test reaches its high-water mark: a facially neutral criminal statute must yield to a claimed religious exemption. Watch how much of the outcome the extraordinary trial record buys — sincerity stipulated, centrality proved by uncontradicted experts, an Amish alternative that serves the State's own asserted ends — a showing the Court concedes 'probably few other religious groups or sects could make.' Smith will later re-describe the case as a 'hybrid' of free exercise plus Pierce parental rights; read Parts II through IV and decide whether that label is found or planted.
T1 Employment Division v. Smith 494 U.S. 872 (1990)
Two drug-rehabilitation counselors fired for sacramental peyote use asked for Sherbert balancing; what they got was the rule that remade free exercise — a neutral, generally applicable law needs no religious exemption and no compelling-interest justification, however crushing its incidental burden on religious practice. Scalia confines Sherbert to individualized-exemption schemes, rebrands Cantwell and Yoder as 'hybrid' cases, and consigns accommodation of minority faiths to the political process. O'Connor, concurring only in the judgment, refuses to concede the framework: she keeps compelling-interest balancing, finds it satisfied here, and thereby writes the blueprint for RFRA three years later.
T2 Hosanna-Tabor v. EEOC 565 U.S. 171 (2012)
Two decades after Smith seemed to close the door on free-exercise exemptions from neutral laws, a unanimous Court holds that this door was never shut: the government may not tell a church who will be its ministers. Grounding the ministerial exception in both Religion Clauses — and in a history running from Magna Carta to Madison's veto pen — the Chief Justice concludes that a called teacher who taught religion 45 minutes a day was a minister, so her retaliation suit must be dismissed. Smith, the Court explains, governs outward physical acts, not internal church governance: churches choose their ministers, full stop.

Notes on further cases

Reynolds v. United States

98 U.S. 145 (1879)

The first great free exercise case, and the origin of the distinction everything since has fought over. George Reynolds, secretary to Brigham Young, was convicted of bigamy under a federal statute for the Utah Territory and defended on the ground that plural marriage was his religious duty. The Court affirmed: Congress may not reach opinions — the belief/action line — but “actions which were in violation of social duties or subversive of good order” are punishable regardless of religious motivation. To exempt the believer, Waite, C.J., wrote, “would be to 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.” Read that sentence twice: it is the exact anxiety Scalia, J., will quote and channel 111 years later in Smith. The nineteenth-century context — an explicitly anti-Mormon campaign backed by federal power — is also a standing caution: the belief/action line was announced in a case where the “action” being suppressed was the core practice of a despised minority. Whether Sherbert repudiated Reynolds or merely paroled it, and whether Smith is Reynolds restored, are fair ways to frame this entire module.

Our Lady of Guadalupe School v. Morrissey-Berru

591 U.S. 732 (2020)

Hosanna-Tabor recognized the ministerial exception but conspicuously declined to define “minister,” resolving its case on a cluster of factors — title, training, holding out, religious function. Eight years later, two elementary school teachers at Catholic schools — neither titled “minister,” neither extensively trained in doctrine — sued over age and disability discrimination. The Court, 7–2 (Alito, J.), held both within the exception: the factors are not a checklist, and what matters is what the employee does — here, teaching religion and praying with children, i.e., performing “vital religious duties.” The functional turn matters enormously in practice: it moves the exception’s boundary from formal ecclesiastical office toward any employee whose job includes transmitting the faith, which in a religious school may be nearly everyone. Sotomayor, J., dissenting, objected that the Court had traded a demanding inquiry for near-total deference to the employer’s characterization. When you argue the math-teacher hypothetical in class, this is the case that decides how far the logic travels — and whether “vital religious duties” has a limiting principle anyone can state.

Before class

State the Sherbert test and the Smith rule side by side, then explain what work each still does.
Decide whether Yoder survives Smith on Smith's own terms — the hybrid-rights footnote is not a freebie.
Come ready to argue both sides of the ministerial exception's application to a math teacher.