Freedom of Religion

The earliest court cases addressing free exercise of religion focused on the issue of polygamy practiced among the Mormons (members of the Church of Jesus Christ of Latter-Day Saints). Federal territorial laws in Utah and Idaho prohibited plural marriages and denied the right to vote to those who advocated such lifestyles, respectively. Perhaps largely influenced by the overwhelming Protestant majority in the nation at the time, the Court in Reynolds v. United States (1879) and Davis v. Beason (1890) upheld the restrictive laws against polygamist marriages and ruled the free exercise of religion "must be subordinate to the criminal laws of the country." Similarly, in Jacobson v. Massachusetts (1905) the Court upheld state law requiring mandatory vaccination opposed by Seventh-Day Adventists based on religious convictions. Like criminal laws, public safety took precedence over religious belief.

Major changes in the American population occurred around the beginning of the twentieth century. Protestant domination further dwindled as immigration from eastern and southern Europe increased the numbers of Catholics and Jews. The United States was becoming more pluralistic (multiple religious traditions) just as it was becoming more secular driven by new Darwinian scientific ideas and increasing interest in socialism. The Court overturned an Oregon state law enacted during a wave of anti-Catholic sentiment requiring all children to attend public schools in Pierce v. Society of Sisters (1925).

In the twentieth century, freedom of religion became integrally related to the other protected freedoms in the First Amendment - speech, press, and association. What good are one's views, if they cannot be freely expressed and practiced jointly with others. Such relationships were highlighted in the 1938 Lovell v. City of Griffin case involving Jehovah's Witnesses. A local ordinance prohibited distribution of leaflets on public property, but the Court ruled the ordinance was too broad a restraint on the press, and hence was unconstitutional.

The 1940s brought a series of important free exercise rulings. In Cantwell v. Connecticut (1940) the Court extended the Free Exercise Clause to the states by overturning a Connecticut state law that prohibited solicitation for religious causes without a license certifying the religion as bona fide. The Court held that the entire First Amendment had been incorporated into the Fourteenth Amendment, and thus were included in one's right to due process of law. Freedom of religion became an assumed fundamental right, free of any level of governmental intervention. In 1943 the Court in Murdock v. Pennsylvania held that a peddler's license fee applied to door-to-door sales of religious literature constituted a tax on the free exercise of religion, and thus was unconstitutional. Also in 1943 in West Virginia State Board of Education v. Barnette, the Court broke from a standard weighing the secular purpose of a rule by holding that a requirement that school children must salute the flag on a daily basis was unconstitutional when conflicting with their Jehovah Witness religious beliefs. Justice Robert H. Jackson wrote, "we apply the...Constitution with no fear that freedom to be intellectually and spiritually diverse...will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds." In the 1944 United States v. Ballard case, the Court also held that the government cannot question the truth of religious beliefs, even if fraud may be involved.

The secular purpose test commonly applied by the Court in the 1940s and 1950s was exemplified in a 1961 case. In Braunfeld v. Brown the Court upheld a state Sunday-closing law challenged by an Orthodox Jewish store-owner. The owner argued he needed to be open for business on Sundays due to his closure on Saturdays for religious observances. The Court found no violation of the Free Exercise Clause because the closing law only made his religious practice more expensive, but did not restrict it. The Court found the goals sufficiently secular with no other practical means to avoid the indirect burden on religious practice.

The 1960s and 1970s brought tougher restrictions on government involvement in religious matters. In 1963 in Sherbert v. Verner the Court established the stricter "compelling interest" test. Only a compelling state interest could justify restrictions on religious liberty. The Court reinstated unemployment compensation benefits to a Seventh-Day Adventist fired for refusing to work Saturdays, her Sabbath. The Sherbert test was later applied when Amish parents refused to send their children to high school because the values taught were contrary to Amish beliefs (Wisconsin v. Yoder [1972]). The Court in Yoder found no compelling reason for enforcement of the state law against Amish citizens.