This past Sunday (January 16), the United States observed National Religious Freedom Day 2022. Here are nine things you should know about religious freedom in America since the time of the nation’s founding.
1. Religious freedom is a natural right given by God and protected by the U.S. Constitution.
Religious freedom in America can be defined as a natural 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 laws protect this right to determine both what we believe and, in a more limited sense, how we act on those beliefs.
2. National Religious Freedom Day began nearly 30 years ago.
In 1993, Congress issued a resolution designating January 16, 1993, as “Religious Freedom Day.” That date was chosen to commemorate the day the Virginia Statute for Religious Freedom was signed on January 16, 1786. The resolution requests that the president “issue a proclamation calling on the people of the United States to join together to celebrate their religious freedom and to observe the day with appropriate ceremonies and activities.” Every president has issued such a proclamation since the resolution was issued.
3. The Constitution contains several clauses related to religious freedom.
While the First Amendment is the first thing that comes to mind regarding the Constitution and religious freedom, the first time that issue is mentioned is in Article VI: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” This prohibition on religious tests for public office is the only explicit reference to religion in the main text. The second reference is in the First Amendment’s religious-liberty clauses, which state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The 14th Amendment doesn’t mention religion directly but made the First Amendment applicable to the states. Prior to this amendment, states were free to take such actions as imposing religious tests for elected officials.
4. ‘Conscience’ didn’t make the cut for the First Amendment.
James Madison proposed three religion clauses, one of which protected against the “full and equal rights of conscience.” The House settled on a similar wording: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” However, the Senate adopted the first two parts of the House version but dropped “nor shall the rights of conscience be infringed.” After that, a direct protection of the individual right of conscience never reappeared in the language of the final religion clauses.
5. ‘Free exercise’ applies to the head and heart but not always the hands.
“Free exercise” is the freedom of every American to determine their religious beliefs according to the dictates of conscience. The Supreme Court has interpreted free exercise to mean that while any individual may believe anything they want, there may be times when the state can limit or interfere with practices that result from those beliefs. The determination of when protected religious beliefs result in protected religious action resulted in a range of religious freedom exemptions.
6. American history has seen four periods of religious freedom exemptions.
Because the Free Exercise of Religion Clause protects religiously motivated conduct as well as belief, the most important modern issue for the courts, as Thomas Berg says, “has been whether the clause only prohibits laws that target religion itself for restriction, or more broadly requires an exemption in some cases even from a generally applicable law.” Legal scholar Eugene Volokh has identified four periods in modern American history that relate to religious freedom exemptions:
Pre-1960s — Statute-by-statute exemptions: Prior to the early 1960s, exemptions for religious objections were only allowed if the statute provided an explicit exemption.
1963–1990 — 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. During this period the 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 — The era of the Religious Freedom Restoration Act (RFRA).
7. Members of Congress overwhelmingly rushed to restore religious freedom (though some have since had a change of heart).
After the ruling in Employment Division v. Smith, a broad spectrum of secular and religious groups lobbied Congress to defend religious liberty. Congress responded in 1993 by passing 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. Since then, though, many of the Democrats in Congress that supported RFRA have tried to pass legislation to make it inapplicable to federal laws or implementations of laws when religious beliefs conflict with a variety of issues, such as abortion or gender identity. (See also: 9 Things You Should Know About the Religious Freedom Restoration Act.)
8. More than half of the individual states have strong religious liberty protections.
RFRA was intended to apply to all branches of government and to both 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. In response, many states began passing their own religious freedom laws. Currently, 21 states have a Religious Freedom Restoration Act (Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia). Ten other states have religious liberty protections that state courts have interpreted to provide a similar (i.e., strict scrutiny) level of protection (Alaska, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin). With some exceptions (such as Mississippi), the state versions are almost exactly the same as the federal version.
9. Religious freedom has been on a decade-long winning streak.
From 2011 to 2020, the issue of religious freedom won victory after victory in the Supreme Court. “Religious freedom is on a massive, decade-long winning streak at the Supreme Court,” says Luke Goodrich, a religious liberty lawyer at Becket. “This 15-case winning streak hits every major area of religious freedom law: religious exemptions, religious autonomy, religious speech, religious symbols, and government funding for religious groups.” During 2021, the Court also supported religious freedom by striking down California’s ban on indoor worship, siding with a former college student on religious free speech, and affirming faith-based foster care and adoption providers.