---
title: "Free Exercise Clause"
type: Legal Rule
source: https://casebriefly.com/legal-rules/free-exercise-clause
---

# Free Exercise Clause

The First Amendment prohibits government from burdening the free exercise of religion. Neutral, generally applicable laws that incidentally burden religion receive rational basis review; laws targeting religion receive strict scrutiny.

## Definition

The Free Exercise Clause of the First Amendment provides that Congress shall make no law prohibiting the free exercise of religion, applicable to the states through the Fourteenth Amendment. It protects both the right to believe and, to a more limited extent, the right to act on religious beliefs.

The modern framework was set by Employment Division v. Smith (1990), in which the Court held that neutral laws of general applicability that incidentally burden religious practice do not violate the Free Exercise Clause and need satisfy only rational basis review. Under Smith, the government is not required to grant religious exemptions from generally applicable laws. However, if a law is not neutral or not generally applicable -- meaning it targets religious conduct or contains a system of individualized exemptions that disfavors religion -- it is subject to strict scrutiny and must be narrowly tailored to a compelling government interest.

The Smith framework was reinforced and refined in Church of Lukumi Babalu Aye v. City of Hialeah (1993), where the Court struck down ordinances targeting the Santeria practice of animal sacrifice because they were neither neutral nor generally applicable. More recently, in Fulton v. City of Philadelphia (2021), the Court held that a non-discrimination policy with a discretionary exemption mechanism was not generally applicable, triggering strict scrutiny. The Court has shown increasing willingness to scrutinize laws that burden religion even facially, particularly where secular exemptions undermine the claim of general applicability. Congress attempted to override Smith with the Religious Freedom Restoration Act (RFRA), which applies strict scrutiny to federal actions substantially burdening religion.

## Elements

- The claimant must show a sincerely held religious belief
- The government action must burden the exercise of that belief
- Determine whether the law is neutral and generally applicable
- If neutral and generally applicable, rational basis review applies under Smith
- If the law targets religion or is not generally applicable, strict scrutiny applies
- Under strict scrutiny, the government must show a compelling interest and narrow tailoring

## Key Case

Employment Division v. Smith, 494 U.S. 872 (1990)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Sherbert v. Verner | 374 U.S. 398 (1963) | Applied strict scrutiny to denial of unemployment benefits based on religious observance; established the compelling interest test (largely superseded by Smith for generally applicable laws) |
| Employment Division v. Smith | 494 U.S. 872 (1990) | Held that neutral, generally applicable laws that incidentally burden religion need only satisfy rational basis review |
| Church of Lukumi Babalu Aye v. City of Hialeah | 508 U.S. 520 (1993) | Struck down ordinances targeting Santeria animal sacrifice as neither neutral nor generally applicable, applying strict scrutiny |
| Fulton v. City of Philadelphia | 593 U.S. 522 (2021) | Held that a government policy with discretionary exemptions is not generally applicable, triggering strict scrutiny under the Free Exercise Clause |

## Exam Tips

- The key question under Smith is whether the law is neutral AND generally applicable -- if either element is missing, strict scrutiny applies
- Look for systems of individualized exemptions or discretionary waivers that undermine general applicability (Fulton)
- Remember that RFRA applies strict scrutiny to federal actions burdening religion, even where Smith would allow rational basis review
- Distinguish between the right to believe (absolutely protected) and the right to act on belief (subject to regulation)

## Common Mistakes

- Applying strict scrutiny to all Free Exercise claims -- under Smith, neutral, generally applicable laws receive only rational basis review
- Forgetting to analyze both neutrality and general applicability as separate requirements -- a law can fail either prong
- Confusing the Free Exercise Clause standard (Smith) with the RFRA standard (strict scrutiny for federal actions) -- they differ significantly

## Mnemonic Or Memory Aid

Smith = NGA: Neutral + Generally Applicable laws get rational basis. If either is missing, strict scrutiny kicks in.

## Related Rules

- establishment-clause
- lemon-test
- free-speech-strict-scrutiny

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Source: [Free Exercise Clause — CaseBriefly](https://casebriefly.com/legal-rules/free-exercise-clause)