[Music] [Music] suppose a state or a city decides to go dry alcohol is bad for you they say no one can consume it within city limits that might be a wise law or it might be an unwise law but could it be unconstitutional suppose there are Christians who want to celebrate communion or Jews who want to observe Passover with wine under this law they can't so could it violate the First Amendment's protection of the free exercise of religion let's start with the text the words of the Constitution the Free Exercise Clause says that Congress shall make no law prohibiting the free exercise of religion so a couple different things to think about first who does this Rite apply against the Constitution only says Congress but courts have said it applies to the whole federal government and also thanks to the 14th amendment it applies to the States too so that's the first point you have free exercise rights against just about any government actor the second question is what does it mean to prohibit free exercise here are things get a little more complicated there's a distinction that is going to be very important it's the distinction between a law that targets free exercise that prohibits something because it's religious exercise and a law that prohibits something for some other reason go back to the example of drinking wine you could imagine a law that said no one can celebrate communion well no one can observe Passover that's a law that targets free exercise it refers specifically to religious activity and it's presumably enacted out of hostility to religion a law like that is clearly unconstitutional everyone agrees but what about the law I mentioned at the beginning that just says no one may consume alcoholic beverages that's going to prevent people from celebrating communion or Passover because they can't drink wine but it's not we're not obviously aimed at religious activity it might just be that the legislature thinks alcohol is bad for people we did remember once have a constitutional amendment based on that idea it might be that this is a law adopted for non-religious reasons because the legislature generally thinks there's something bad about this activity and it just so happens that some people want to engage in it for religious reasons how should the Free Exercise Clause work with respect to this kind of law the question here is what kind of a right is the right to free exercise and there's another distinction which is sort of a mirror of the first first we distinguished between laws that target religion versus laws of general applicability and now we're distinguishing between a right against targeting which protects you only from that first kind of law in what we could call a preferred freedom which gets you an exemption from ordinary laws if the Free Exercise Clause is just a right against targeting then you can't raise a religious objection to laws that apply to everyone if it's a preferred freedom you can the fact that you want to do something for religious reasons means you can do it even when other people can't so which is it the Supreme Court has changed its mind over the years it started out with the preferred freedom view but in 1990 in a case about peyote called Employment Division against Smith it changed its mind Oregon banned peyote use and some people Native Americans wanted to use it in religious rituals peyote is a cactus that's also a psychoactive drug that produces hallucinations and certain Native American religions have been using it for generations tough luck said Oregon no exemption it's an illegal drug and you can't use it ever and the Supreme Court said that was okay it said that free exercise was just a right against laws that targeted religion if it's a neutral law that applies to everyone believers have to comply to a long line of our decisions has held that an individual's religious beliefs do not exclude him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate for example laws prohibiting polygamy laws regulating the use of child labor laws requiring individuals to perform military service and compelling individuals to pay taxes it's hard to figure out who's right here Smith or the pre Smith cases it's a little easier to figure out what's at stake generally of course the preferred freedom view gives more protection to religion but in particular it gives more protection to minority religions or religion that engage in unusual rituals there's a reason that Smith was about peyote and not wine are we going to have a law that prohibits drinking wine probably not at least not in many parts of the country and that's in part because lots of people like to drink wine for non-religious reasons but it's also because wine is used in religious rituals by major religions with lots of adherents and a lot of political power so the major mainstream religions aren't likely to suffer a lot if we move from an understanding of the free exercise right as a preferred freedom to an understanding of it as a right against target it's the smaller less usual religions that are likely to suffer the other thing that's at stake is the ability of people to say that religion is the supreme authority in their lives but they won't follow federal law or state law if it conflicts with the higher law of their religion what's at stake is where we draw the line between secular and religious authority to what extent do we say that people who live in our society must follow our laws even if their religion says otherwise and in Smith the Supreme Court said neutral laws must be followed religious motivation doesn't entitle people to exemptions but interestingly that's not the end of the story Congress disliked the Smith decision so much that they set out to overrule they enacted a law called the Religious Freedom Restoration Act rifra which basically tried to reinstate the Supreme Court decisions from before Smith the Supreme Court struck that law down which shouldn't be too surprising the court really does not like it when Congress tells it that it made a mistake what's surprising is that rifra still persists with respect to federal law so the situation we have now is actually a mixture of the right against targeting and the preferred freedom approach as far as state laws are concerned Smith governs state laws if they're neutral must be followed but for federal laws refer worked it worked because the court was willing to read it as if it put an exemption into all of the existing federal laws which Congress has the power to do Congress can always change federal laws so it could put a religious exemption into all of them and it did so as far as federal law is concerned religious exercise is a preferred freedom that's complicated and it shows you a little bit about how hard constitutional analysis can get and it doesn't bring us to the end of free exercise questions new ones are always coming up can employers refuse to provide health insurance that covers medical devices or procedures they object to on religious grounds can for-profit corporations assert religious free exercise rights we'll just have to wait to see what the Supreme Court says [Music] [Music] [Applause] [Music]