The First Amendment and the Path to Incorporation

The First Amendment to the United States Constitution stands as a cornerstone of American liberty, protecting the freedoms of speech, press, assembly, petition, and religion. The religion clauses—the Establishment Clause and the Free Exercise Clause—were originally designed to prevent the federal government from interfering with religious matters or establishing a national church. But for nearly 130 years after the Bill of Rights was ratified, these protections applied only to the federal government. States were free to establish official religions, restrict worship practices, or penalize religious minorities without violating the Constitution. That began to change in the early 20th century through a legal process called incorporation, which gradually extended the Bill of Rights to the states via the Fourteenth Amendment.

The story of the Free Exercise Clause's incorporation is not merely an academic exercise in constitutional interpretation; it is the story of how American religious liberty became a universal right enforceable against every level of government. Understanding this process requires examining the Supreme Court's evolving jurisprudence, the historical context of Reconstruction, and the ongoing tension between religious freedom and compelling state interests.

Historical Background: The Bill of Rights and Its Original Scope

When the Bill of Rights was ratified in 1791, it reflected the Founders' concern that a powerful federal government might encroach upon individual liberties. However, the First Amendment explicitly begins with the words "Congress shall make no law," limiting its application to the federal legislature. This meant state governments faced no constitutional constraints on their treatment of religion. Several states maintained established churches well into the 19th century, and others enacted laws that discriminated against religious minorities—such as Catholics, Jews, and nonbelievers—without any federal remedy.

The Supreme Court's 1833 decision in Barron v. Baltimore confirmed this narrow interpretation, holding that the Bill of Rights restricted only the federal government, not the states. This precedent stood for nearly a century. The ratification of the Fourteenth Amendment in 1868, with its Privileges or Immunities Clause and Due Process Clause, created the legal foundation for challenging state actions that infringed on fundamental rights. But it took decades for the Court to fully embrace the doctrine of incorporation.

The Fourteenth Amendment and the Birth of Incorporation

The Fourteenth Amendment's Due Process Clause provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The question for the courts became whether the word "liberty" in this clause included the specific rights enumerated in the Bill of Rights. The doctrine of incorporation answered this question affirmatively, but it did so incrementally, right by right, case by case.

Early 20th-century cases began the process of applying First Amendment freedoms to the states. In Gitlow v. New York (1925), the Court held that the First Amendment's free speech protections applied to the states through the Due Process Clause. Justice Sanford wrote that "for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." This reasoning would soon extend to religious liberty.

The same logic was applied to the free exercise of religion in Hamilton v. Regents of the University of California (1934), where the Court noted in dicta that the Free Exercise Clause likely applied to the states. But the definitive ruling came six years later.

Cantwell v. Connecticut (1940): The Turning Point

The landmark case that formally incorporated the Free Exercise Clause against the states was Cantwell v. Connecticut, decided by a unanimous Supreme Court in 1940. The case involved Newton Cantwell and his sons, Jehovah's Witnesses who were convicted of violating a Connecticut statute requiring a license for solicitation of funds for religious purposes. The Cantwells had been preaching and distributing literature in a predominantly Catholic neighborhood, and they played a phonograph record that criticized organized religion.

Justice Owen Roberts, writing for the Court, held that the Free Exercise Clause was incorporated through the Fourteenth Amendment's Due Process Clause. He stated: "The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."

The Cantwell decision was a watershed moment. It meant that state and local governments could no longer target religious practices for special restriction absent a compelling justification. The ruling also struck down the Connecticut licensing scheme as an invalid prior restraint on religious activity, establishing that states could not condition religious solicitation on a discretionary permit issued by a government official.

Interestingly, Cantwell was decided on the same day as Minersville School District v. Gobitis (1940), in which the Court upheld a compulsory flag salute law against Jehovah's Witnesses—a decision the Court reversed just three years later in West Virginia State Board of Education v. Barnette (1943). This back-and-forth illustrates the dynamic nature of Free Exercise Clause jurisprudence even after incorporation.

Sherbert v. Verner (1963): The Strict Scrutiny Standard

Two decades after Cantwell, the Supreme Court established a rigorous test for evaluating Free Exercise claims. In Sherbert v. Verner (1963), the Court considered whether South Carolina could deny unemployment benefits to Adell Sherbert, a Seventh-day Adventist who was fired for refusing to work on Saturday, her Sabbath. The state's unemployment compensation law required recipients to accept "suitable work when offered," and Sherbert's refusal to work on Saturdays disqualified her.

The Court, in an opinion by Justice William Brennan, held that the state's denial of benefits burdened Sherbert's free exercise of religion. The state could justify such a burden only by showing a compelling governmental interest and that the law was the least restrictive means of achieving that interest. The Sherbert test, as it became known, imposed strict scrutiny on any government action that substantially burdened religious exercise.

Under this standard, South Carolina failed. The state's interest in preventing fraudulent claims was not compelling enough to override Sherbert's religious objection, and the state could have granted a religious exemption without undermining the unemployment system. The Sherbert test was soon applied in other contexts, including unemployment compensation cases involving Sabbath observance and conscientious objection to military service.

The Sherbert decision represented the high-water mark of Free Exercise protection during the mid-20th century. It required states to accommodate religious practices unless they had a truly compelling reason not to do so. This standard provided meaningful protection for minority religions and non-mainstream beliefs, as courts applied strict scrutiny to laws that burdened religious exercise.

Employment Division v. Smith (1990): The Recalibration

The landscape of Free Exercise law shifted dramatically in 1990 with Employment Division v. Smith. The case arose from the dismissal of two Native American substance abuse counselors, Alfred Smith and Galen Black, who were fired for ingesting peyote during a religious ceremony of the Native American Church. The state of Oregon denied them unemployment benefits, citing their discharge for work-related "misconduct."

In a controversial opinion by Justice Antonin Scalia, the Court abandoned the Sherbert strict scrutiny standard for most Free Exercise claims. The Court held that neutral laws of general applicability that incidentally burden religious exercise do not violate the Free Exercise Clause, even if the burden is substantial. As Scalia wrote, "To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling'—permitting him, by virtue of his beliefs, 'to become a law unto himself'—contradicts both constitutional tradition and common sense."

The Smith decision effectively overturned the Sherbert test for all cases except those involving unemployment compensation and hybrid situations where another constitutional right was also implicated. This meant that states could enact laws that burdened religious exercise without offering exemptions, provided the laws were neutral and generally applicable.

Congress responded swiftly to Smith by passing the Religious Freedom Restoration Act (RFRA) in 1993, which restored the strict scrutiny standard as a matter of federal statutory law. RFRA applies to the federal government, and many states passed their own versions—state Religious Freedom Restoration Acts—to ensure similar protection at the state level. The Supreme Court later ruled in City of Boerne v. Flores (1997) that RFRA exceeded Congress's Fourteenth Amendment enforcement powers as applied to the states, but RFRA remains binding on the federal government.

The Impact of Incorporation on Religious Liberty

The incorporation of the Free Exercise Clause has had profound and lasting effects on American religious freedom. Before incorporation, states could theoretically establish official religions, compel church attendance, ban certain worship practices, or penalize individuals for their religious beliefs. After incorporation, these actions became presumptively unconstitutional.

Incorporation has been particularly important for protecting minority religious groups. Jehovah's Witnesses, whose aggressive proselytizing and refusal to salute the flag often provoked legal harassment, were frequent beneficiaries of Free Exercise Clause protections in the mid-20th century. Similarly, Amish families secured a landmark victory in Wisconsin v. Yoder (1972), when the Court held that Wisconsin's compulsory school attendance law violated the Free Exercise Clause by requiring Amish children to attend school beyond the eighth grade in contravention of their religious beliefs.

Jewish and Muslim plaintiffs have also successfully invoked the Free Exercise Clause to challenge laws that disadvantage their religious practices. Cases involving Sabbath observance, religious dress codes, and dietary restrictions have all been litigated under the incorporated Free Exercise Clause, often with outcomes that protect minority religious traditions.

However, the Smith decision significantly narrowed the scope of constitutional protection for religious exercise. Under the current legal framework, there is no general constitutional right to a religious exemption from neutral, generally applicable laws. The focus has shifted from individualized accommodation to equal treatment—the Free Exercise Clause prevents governments from targeting religious practices for disfavorable treatment, but does not require them to carve out exemptions from neutral regulations.

Modern Applications and Continuing Debates

The debate over the scope of Free Exercise Clause protections continues to shape American law and politics. Three areas are particularly active today:

Religious exemptions from anti-discrimination laws. The tension between religious liberty and LGBTQ+ rights has generated numerous high-profile cases. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court held that the Colorado Civil Rights Commission had violated the Free Exercise Clause by showing hostility toward a baker's religious objections to creating a wedding cake for a same-sex couple. The decision was narrow, based on the specific facts of the Commission's treatment of the baker, but it left open larger questions about how to balance religious freedom against equality rights.

Religious exercise in prisons and the military. Incarcerated individuals and service members have raised Free Exercise claims regarding access to religious literature, dietary accommodations, and the right to wear religious symbols. The Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000 provides statutory protection for prisoners and others in government custody, but cases continue to arise under both the Free Exercise Clause and RLUIPA.

Faith-based institutions and government funding. The relationship between the Free Exercise Clause and government funding programs has generated considerable litigation. In Trinity Lutheran Church v. Comer (2017), the Court held that Missouri could not exclude a church from a generally available grant program for playground resurfacing solely because of its religious character. The Espinoza v. Montana Department of Revenue (2020) decision extended this reasoning to school choice programs that include religious schools.

For further reading on these developments, the Congressional Research Service provides an excellent overview of the Free Exercise Clause and its incorporation. Additionally, the Cornell Legal Information Institute's resource on the Free Exercise Clause offers a comprehensive doctrinal summary. The Oyez Project's free exercise collection provides access to oral arguments and case summaries for all major Free Exercise decisions.

The Shadow of Smith and the Search for a New Standard

Critics of the Employment Division v. Smith decision have argued for decades that the Court got it wrong—that the original understanding of the Free Exercise Clause, as well as the historical practice of American religious accommodation, requires governments to offer meaningful exemptions from neutral laws that substantially burden religious exercise. Justice Sandra Day O'Connor, while concurring in the judgment in Smith, urged the Court to retain the Sherbert strict scrutiny standard. Justice Harry Blackmun, in dissent, argued that Oregon had not demonstrated a compelling interest in denying a religious exemption for peyote use.

Several states have passed their own Religious Freedom Restoration Acts to reestablish the Sherbert standard at the state level. These state RFRAs apply to state and local government actions, filling the gap left by the City of Boerne decision. However, the scope and application of state RFRAs vary considerably, and courts in different jurisdictions sometimes reach conflicting results when applying them.

The Supreme Court has suggested, in cases like Fulton v. City of Philadelphia (2021), that it may be willing to reconsider Smith. In Fulton, the Court unanimously held that Philadelphia had violated the Free Exercise Clause by requiring Catholic Social Services to certify same-sex couples as foster parents despite the agency's religious objections. The Court resolved the case on narrow grounds, noting that the city's contract included a mechanism for individual exemptions, which triggered strict scrutiny. But Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh and Justice Samuel Alito, wrote separately to suggest that Smith should be reconsidered. A majority of the Court has not yet agreed to overrule Smith, but the issue remains very much alive.

Conclusion: The Enduring Relevance of Incorporation

The incorporation of the Free Exercise Clause through the Fourteenth Amendment stands as one of the most significant developments in American constitutional law. Without incorporation, Americans would have no constitutional protection from state and local governments that might restrict their religious practices. The guarantee that "Congress shall make no law prohibiting the free exercise thereof" is now, thanks to incorporation, a guarantee that no level of government in the United States may prohibit the free exercise of religion.

This protection has never been absolute. The courts have long recognized that religious exercise may be subject to reasonable regulation in the interest of public health, safety, and order. The question is not whether religious freedom can ever be limited, but rather what standard of justification the government must meet when it imposes such limits. The debate between the Sherbert strict scrutiny standard and the Smith neutral-law standard reflects fundamentally different views about the proper relationship between religious conscience and governmental authority.

For a deeper exploration of these issues, the Pew Research Center's analysis of religious freedom in America provides valuable data on public attitudes and legal trends. The Brennan Center for Justice's work on religious liberty offers thoughtful commentary on the intersection of Free Exercise protections and other fundamental rights.

The incorporation of the Free Exercise Clause ensures that religious liberty remains a right enforceable by every American against every government actor. It is a testament to the Framers' vision and the Reconstruction generation's commitment to nationalizing the protections of the Bill of Rights. As new controversies arise and old ones evolve, the incorporated Free Exercise Clause will continue to define the contours of religious freedom in the United States.

The story of incorporation is not finished. The Supreme Court's composition continues to shift, litigation over religious exemptions continues to fill federal dockets, and state legislatures continue to experiment with their own religious freedom protections. What remains constant is the constitutional commitment, established through incorporation, that the free exercise of religion is a fundamental liberty that deserves the strongest protection the law can provide.

For practitioners, students, and citizens seeking to understand this area of law, the key takeaway is this: the Free Exercise Clause's incorporation was not a single event but a process, one that unfolded over the course of the twentieth century and continues to evolve in the twenty-first. Cantwell v. Connecticut opened the door, Sherbert v. Verner raised the standard, Employment Division v. Smith lowered it, and the future remains uncertain. What is certain is that the incorporation of the Free Exercise Clause has permanently transformed the American religious landscape, ensuring that the freedom to believe and practice according to one's conscience is protected not just against federal overreach but against state and local government action as well.