There’s a scene in the sitcom The Office in which Oscar, an accountant, attempts to explain a budget surplus to his boss, Michael Scott. “Why don’t you explain this to me like I’m an 8-year-old,” Michael says. When Oscar explains it in a simpler manner, his boss remains perplexed. “Why don’t you explain this to me like I’m 5,” Michael says.
The world, like accounting, can be complicated. Sometimes it helps to have concepts or ideas explained to us like we’re a child—not because we’re dumb or simple-minded, but because we may need a basic understanding of the whole before we can understand how it all fits together.
In this article, I’ll apply this technique to the concept of religious freedom. The hope is that by providing three levels of explanation—each saying essentially the same thing, though increasing in complexity—you and I can both gain a better understanding of religious freedom in American.
1. Basic Explanation
Religious freedom is a right, given by God and guaranteed by the First Amendment of the U.S. Constitution, that allows individual people or groups to practice a religion—or to practice no religion at all—both in private and also in public with a minimal amount of interference from the local, state, or federal government. The Constitution and other federal and state law protect this right to determine both what we believe and, in a more limited sense, how we act on those beliefs.
2. Intermediate Explanation
Religious freedom is rooted in the idea that the government should not, without a compelling reason, be able to violate a person’s conscience. The conscience, as Andy Naselli and J. D. Crowley explain, is “your consciousness of what you believe is right and wrong.” During the founding period when the Bill of Rights was written, the term “conscience” was often used as synonymous with “religion.” Thus, the concept of freedom of religious and freedom of conscience have often been used somewhat interchangeably.
The legal basis for the right to religious freedom (and the right of conscience) is the Free Exercise Clause of the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” This clause is extended to state and local states through the Fourteenth Amendment.
However, the courts haven’t always interpreted the clause in a way that protected religious freedom. So a federal law known as the Religious Freedom Restoration Act (RFRA) was passed in 1993 to prevent other federal laws from substantially burdening a person’s free exercise of religion.
3. Advanced Explanation
Religious freedom is a legal right that flows from the moral right to conscience. It is rooted in the idea, as Melissa Moschella explains, “that as human beings we have a grave obligation to seek the truth, and to follow the truth as we understand it.” As Moschella adds,
Conscience rights go to the core of what it is to be a human person: the capacity to act based not only on desires or instincts, but on judgments about what is good and bad, right and wrong—and the moral responsibility that is inseparable from that capacity. To force a person to act contrary to conscience is to force him to violate his moral integrity. It is an assault on the person at his core, much worse than any merely physical harm.
For Christians, acting against one’s conscience is not only a violation of moral integrity by an act of sin. As the apostle Paul says, “For whatever does not proceed from faith is sin” (Rom. 14:23).” R. C. Sproul expands on that verse by saying:
If we do something that we think is sin, even if we are misinformed, we are guilty of sin. We are guilty of doing something we believe to be wrong. We act against our consciences. That is a very important principle. Luther was correct in saying, “It is neither right nor safe to act against conscience.”
A primary reason Christians consider religious freedom so important is because we do not believe the state should have the authority to force us to engage in sinful actions.
The Free Exercise Clause of the First Amendment was adopted to protect our conscience from government intrusion. But until the early to mid-20th century, the clause applied only at the federal level. From about 1920 to the late 1940s, the courts began to adopt and apply the doctrine of selective incorporation, which makes selected provisions of the Bill of Rights applicable to the states through the due process clause of the Fourteenth Amendment. In 1940, the Supreme Court invoked this doctrine in the case of Cantwell v. Connecticut, ruling that the Free Exercise Clause is enforceable against state and local governments.
Because the Free Exercise of Religion Clause protects religiously motivated conduct as well as belief, the most important modern issue for the courts, as James L. Oberstar says, “has been whether the protection only runs against laws that target religion itself for restriction, or, more broadly, whether the clause sometimes requires an exemption from a generally applicable law.”
Legal scholar Eugene Volokh identifies four periods in modern American history that relate to religious freedom exemptions:
Pre 1960s — Statute-by-statute exemptions: Prior to the early 1960s, exemption for religious objections were only allowed if the statute provided an explicit exemption.
1963 to 1990 — Sherbert/Yoder era of Free Exercise Clause law: In the 1963 case Sherbert v. Verner the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption because of the Free Exercise clause. This decision was reaffirmed in the 1972 case, Wisconsin v. Yoder. During this period that Court used what it called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs. Under this strict scrutiny, religious objectors were to be given an exemption, unless denying the exemption was the least restrictive means of serving a compelling government interest. But during this period, as Volokh notes, “The government usually won, and religious objectors won only rarely.”
1990-1993 — Return to statute-by-statute exemptions: In Employment Division v. Smith, the Supreme Court returned to the statute-by-statute exemption regime, and rejected the constitutional exemption regime.
1993-Present — Religious Freedom Restoration Act (RFRA) era: In 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws subject to strict scrutiny. (To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.)
According to the text of the law, the purposes of the RFRA are:
1. to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
2. to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
RFRA was intended to apply to all branches of government, and both to federal and state law. But in 1997 in the case of City of Boerne v. Flores, the Supreme Court ruled the RFRA exceeded federal power when applied to state laws. In response to this ruling, some individual states passed state-level Religious Freedom Restoration Acts that apply to state governments and local municipalities. This is the reason many of the most hotly disputed religious liberty issues are now at the state and local level rather than at the federal level.
