A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches

In an ongoing series of occasional reports, “Religion and the Courts: The Pillars of Church-State Law,” the Pew Forum on Religion & Public Life explores the complex, fluid relationship between government and religion. Among the issues to be examined are religion in public schools, displays of religious symbols on public property, conflicts concerning the free exercise of religion, and government funding of faith-based organizations.

Courts have long grappled with questions of religious freedom, but other government bodies also help ensure protection of this cherished liberty. Indeed, some of the most significant protections in this area are derived not from landmark U.S. Supreme Court decisions interpreting the First Amendment’s Free Exercise Clause – which prohibits government discrimination based on religion – but rather from federal and state statutes that extend special protections to people of faith.

These statutes protect or accommodate religious freedom in four basic ways. The first type exempts both religious and secular organizations from specific legal requirements. For instance, the federal government and all 50 states exempt all qualified nonprofit organizations, religious and secular alike, from income taxation.

The second type of accommodation exempts only people of faith or religious entities from a particular legal requirement. One of the earliest examples of such an accommodation actually dates back to the American Revolution, when Pennsylvania exempted religious pacifists – most notably, Quakers – from military conscription. Many states followed Pennsylvania’s example by allowing similar exemptions during the Civil War. The federal government continued this tradition in 1864 when it amended the federal military conscription act to exempt those conscientious objectors who were members of particular religious denominations. Subsequently, the U.S. Congress has passed similar acts, broadening the scope of the exemption each time. The most recent one, passed in 1948, exempts from military service any person whose belief in a Supreme Being conflicts with participating in war.

The third type of religious accommodation is similar to the second in that it extends only to people of faith, but this type of accommodation does not target a particular legal requirement, such as conscription; instead, it broadly exempts religious activity from all excessively burdensome laws. These general accommodations first surfaced after a 1990 Supreme Court ruling made it more difficult for people of faith to argue that they were constitutionally entitled to exemptions from legal requirements. Congress responded to this high court decision by passing laws that reinstated the court’s previous, more religion-friendly interpretation of free exercise.

The fourth and final type of accommodation involves government-sponsored chaplaincies, such as the military chaplaincy. While the Supreme Court has never directly ruled on the constitutionality of the military chaplaincy, lower federal courts have upheld the practice. And the Supreme Court’s other decisions on religious accommodation suggest that the high court would also find that the military chaplaincy is an exceptional instance in which the government may directly fund religious services.

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