These eighteenth-century state constitutional provisions not only provide insight into the Founding Fathers’ original understanding of the Free Exercise Clause, they embody the fundamental tenants of modern First Amendment jurisprudence. The Supreme Court has identified three principles underlying the Free Exercise Clause. First, no individual may be compelled by law to accept a particular religion or form of worship. Second, all individuals are constitutionally permitted to freely choose a religion and worship in accordance with their conscience and spirituality without interference from the government. Third, the government may enforce its criminal laws by prosecuting persons whose religious practices would thwart a compelling societal interest.
Only in rare instances is a law that infringes upon someone’s religious beliefs or practices supported by a compelling state interest. The Supreme Court has held that no compelling societal interest would be served in offending someone’s deeply held religious beliefs with a law coercing members of the Jehovah’s Witnesses to salute the American flag in public schools (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), a law denying unemployment benefits to Seventh Day Adventists who refuse to work on Saturdays (Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)), or a law requiring Amish families to keep their children in state schools until the age of sixteen (Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)). However, a compelling governmental interest is served by the Internal Revenue System (IRS), such that no member of any religious sect can claim exemption from paying taxes. U. S. v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982).
A different question is presented when the government disputes whether a particular belief or practice is actually religious in nature. In some instances the Supreme Court is required to determine what constitutes a “religion” for the purposes of the First Amendment. For example, this determination occurs when conscientious objectors resist the government’s attempt to conscript them into military service during wartime. Some draft resisters object to war on moral or ethical grounds unrelated to orthodox or doctrinal religions. If a conscientious objector admits that he is atheistic or agnostic, the government asks, how can he or she rely on the First Amendment to avoid conscription when it protects the free exercise of religion?
In effort to answer this question, the Supreme Court has explained that the government cannot “aid all religions against non-believers” any more than it can aid one religion over another. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). So long as a non-believer holds a sincere and meaningful belief that occupies a place in that person’s life parallel to the place held by God in a believer’s life, then it qualifies as a religious belief under the First Amendment. As to conscientious objectors, the Court has ruled that the First Amendment will insulate them from criminal prosecution if they resist the draft based on “deeply and sincerely” held beliefs that “are purely ethical or moral in source and content but that nevertheless impose … a duty of conscience to refrain from participating in any war at any time.” Welsh v. U. S., 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). However, a religious, moral, or ethical belief that manifests itself in a person’s selective opposition to only certain wars or military conflicts is not protected by the Free Exercise Clause. The same holds true for a religious, moral, or ethical beliefs that are insincere.
In 1993 Congress attempted to add to the body of law protecting the free exercise of religion by enacting the Religious Freedom Restoration Act (RFRA), which provided that the “[g]overnment shall not substantially burden a person’s exercise of religion,” unless in doing so it furthers “a compelling governmental interest” and “is the least restrictive means of furthering that … interest.” 42 U.S.C. § 2000bb-1(a). Congress enacted RFRA in response to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, (1990), a Supreme Court decision that upheld the denial of unemployment compensation claims made by two employees who had been fired for ingesting an illegal drug during a religious ceremony. In passing the law Congress made a specific finding that the Supreme Court in Smith “virtually eliminated” any requirement that the government provide a compelling justification for the burdens it places on the exercise of religion. 42 USCA § 2000bb. Congress hoped that RFRA would restore that requirement.
The constitutionality of RFRA was immediately challenged in a flurry of cases, one of which eventually made its way to the Supreme Court in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Acknowledging that section 5 of the Fourteenth Amendment grants Congress the authority to enforce the First Amendment through measures that “remedy” or “deter” constitutional violations, the Supreme Court said that this authority did not include the power to define “what constitutes a constitutional violation.” Yet this is exactly what Congress attempted to do by enacting RFRA, the Court said. Congress cannot effectively overrule Supreme Court precedent, the Court continued, without violating the separation of powers and other constitutional principles vital to maintaining the balance of power between the state and federal governments. The powers of the legislative branch are “defined and limited,” the Court concluded, and only the judicial branch of government is constitutionally endowed with the authority to interpret and apply the First Amendment or any other provision of the federal Constitution. Thus, RFRA was declared unconstitutional and the precedential value of Smith was restored.