First Amendment · WikiFramers

Freedom of Religion · Module 8

Free Exercise, Part I

Free exercise at maximum voltage, and its retreat. Sherbert's compelling-interest test, Yoder's high-water mark, and Smith's rule that a neutral, generally applicable law needs no religious exemption.

Assigned reading

Chemerinsky, Constitutional Law (7th ed. 2023) — 1477–97.

The casebook is the assigned text for this course. This page is the map: what the Module is doing, in what order, and what goes with it.

Topics

The religion clauses mapped. Belief versus conduct. The Sherbert compelled-exemption regime. Smith and the neutral-and-generally-applicable rule. The ministerial exception.

Reading list

6 of 6 readings published

  1. Note Reynolds v. United States 98 U.S. 145 (1879)
  2. Opinion Sherbert v. Verner 374 U.S. 398 (1963)
  3. Opinion Wisconsin v. Yoder 406 U.S. 205 (1972)
  4. Opinion Employment Division v. Smith 494 U.S. 872 (1990)
  5. Opinion Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 565 U.S. 171 (2012)
  6. Note Our Lady of Guadalupe School v. Morrissey-Berru 591 U.S. 732 (2020)

Classroom visuals

Slides for this module PDF

This module in Canvas

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How to read this list

A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.

Notes

Reynolds v. United States

98 U.S. 145 (1879) · Westlaw

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) · Westlaw

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.