Free Exercise Clause — Sherbert to Fulton

The Free Exercise Clause of the First Amendment — "Congress shall make no law . . . prohibiting the free exercise [of religion]" — protects the right of individuals to practice their religion without government interference. For three decades, the Supreme Court applied the compelling interest/least restrictive means test from Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972): when a neutral law substantially burdened religious exercise, the government had to show a compelling state interest pursued through the least restrictive means. In Employment Division v. Smith (1990), Justice Scalia fundamentally changed this framework: neutral, generally applicable laws that incidentally burden religious practice need only satisfy rational basis review — no compelling interest required. Smith's holding prompted Congress to enact the Religious Freedom Restoration Act (RFRA) of 1993, restoring the compelling interest test for federal law, and the Religious Land Use and Institutionalized Persons Act (RLUIPA) for land use and prisons. The Supreme Court's most recent major free exercise decisions — Fulton v. City of Philadelphia (2021), 303 Creative LLC v. Elenis (2023), and a series of vaccination and COVID mandate cases — have substantially expanded religious exemptions and applied increasingly strict scrutiny to laws with exceptions that make them non-neutral in practice. The free exercise frontier in 2026 is the conflict between religious liberty claims and LGBTQ+ non-discrimination law, with courts defining the scope of exemptions for religious employers and service providers whose beliefs conflict with equal treatment requirements.

Current Law (2026)

Legal Authority

• U.S. Const. amend. I — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — Free Exercise Clause; incorporated against states through Fourteenth Amendment
• 42 U.S.C. § 2000bb et seq. — Religious Freedom Restoration Act (RFRA, 1993): government may not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates a compelling interest and least restrictive means; applies to the federal government
• 42 U.S.C. § 2000cc et seq. — Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000): applies RFRA-like compelling interest/least restrictive means test to land use regulations and regulations of institutionalized persons affecting religious exercise
• Sherbert v. Verner, 374 U.S. 398 (1963) — Adventist denied unemployment benefits for refusing Saturday work; compelling interest/least restrictive means test applied; state had to accommodate religious sabbath observer
• Employment Division v. Smith, 494 U.S. 872 (1990) — Oregon could deny unemployment benefits to Native American employees fired for using peyote in religious ceremony; neutral, generally applicable laws need not provide religious exemptions; Sherbert confined to unemployment compensation context
• City of Boerne v. Flores, 521 U.S. 507 (1997) — RFRA cannot be applied to state and local governments under Congress's Section 5 power; RFRA remains valid as applied to federal government
• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) — Philadelphia's refusal to contract with Catholic Social Services for foster care placements because CSS would not certify same-sex couples; city's discretionary exemption provision made its non-discrimination policy non-generally-applicable; strict scrutiny applied; city failed to meet it
• 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) — Web designer has First Amendment right to decline to create websites for same-sex weddings; compelled speech (not free exercise) holding, but reinforces religious conscience protections for expressive businesses

Key Mechanics

Free exercise doctrine operates on a two-track system set by Employment Division v. Smith (1990) and refined by subsequent cases. The baseline rule: neutral, generally applicable laws that incidentally burden religious practice need only satisfy rational basis review — no religious exemption is constitutionally required. A drug law that applies to everyone's drug use survives free exercise challenge even if it burdens a Native American's sacramental peyote use. The strict scrutiny exception: if a law is not neutral (it targets religion) or not generally applicable (it has secular exceptions while refusing religious exceptions), then the government must demonstrate a compelling interest pursued through the least restrictive means. Fulton v. City of Philadelphia (2021) applied this exception: Philadelphia's non-discrimination policy contained a discretionary exemption clause that made it non-generally-applicable, triggering strict scrutiny that the city could not satisfy. RFRA (42 U.S.C. § 2000bb) applies the compelling interest/least restrictive means test to all federal laws — restoring Sherbert-era protection against the federal government regardless of Smith. State RFRAs (enacted in 21 states) apply the same test to state laws. The practical effect is that most religious exemption fights against the federal government are litigated under RFRA rather than the First Amendment; the constitutional doctrine primarily governs state and local laws.

How It Works

From Sherbert to Smith: The Compelling Interest Standard

Sherbert v. Verner (1963) established the original free exercise framework. Adell Sherbert, a Seventh-day Adventist, was fired because she refused to work on Saturday, her sabbath. South Carolina denied her unemployment benefits on the ground that she had refused "suitable work." The Supreme Court held this was an unconstitutional burden on her religious exercise — the state could not condition unemployment benefits on willingness to violate religious commitments without demonstrating a compelling state interest and showing it had used the least restrictive means to achieve that interest.

Wisconsin v. Yoder (1972) reinforced this standard: the Amish could not be required to send their children to high school beyond eighth grade because compulsory education after that point threatened the survival of their distinctive religious community. The Court applied the compelling interest test and found Wisconsin had not met it.

For nearly three decades, the Sherbert/Yoder compelling interest standard applied: when a neutral, generally applicable law imposed a substantial burden on sincere religious exercise, the government had to justify the burden with a compelling interest pursued through the least restrictive means. Religious exemptions were constitutionally required unless the government cleared this demanding bar.

Employment Division v. Smith (1990): The Neutral and Generally Applicable Rule

Employment Division v. Smith dramatically changed the free exercise landscape. Alfred Smith and Galen Black, members of the Native American Church, were fired from their jobs as drug rehabilitation counselors for ingesting peyote — a controlled substance under Oregon law — as part of a religious ceremony. Oregon denied them unemployment benefits on the ground that they were fired for work-related misconduct.

Justice Scalia's majority opinion held that Oregon's neutral, generally applicable drug prohibition law did not violate the Free Exercise Clause by denying an exemption for religious peyote use. The key rule: "neutral, generally applicable law" that incidentally burdens religious practice need only be rationally related to a legitimate government interest — no compelling interest required. Sherbert was confined to the unemployment compensation context where the state had created a system of individualized exemptions.

Scalia's reasoning was structural: if individuals could claim constitutional exemptions from any law that burdened their religious practice, the result would be "a system in which each conscience is a law unto itself." Courts would need to adjudicate the sincerity and centrality of religious beliefs to determine exemption rights. Better to maintain neutral, generally applicable laws without religious exemptions and leave accommodation to the political process.

Smith was immediately controversial. Justice O'Connor wrote a sharp concurrence arguing the compelling interest test should be preserved. Congress responded by enacting RFRA in 1993, with near-unanimous bipartisan support, expressly to restore the Sherbert/Yoder compelling interest standard.

The Post-Smith Architecture: RFRA, RLUIPA, and the Neutrality Test

Smith established the constitutional floor — what the Free Exercise Clause requires on its own — but Congress can provide more protection by statute. The result is a complex layered system:

Federal government: RFRA (42 U.S.C. § 2000bb) requires the federal government to satisfy compelling interest/least restrictive means before substantially burdening religious exercise. RFRA restored Sherbert's standard for all federal laws and programs. Burwell v. Hobby Lobby (2014) held that closely held corporations can assert RFRA claims against the ACA contraceptive mandate.

State and local government: City of Boerne v. Flores (1997) held that Congress could not apply RFRA to state governments under its Section 5 enforcement power — RFRA applied only to the federal government. State governments must comply only with Smith's neutrality and general applicability standard under the federal Constitution, unless the state has its own RFRA or a stronger state constitutional free exercise provision.

State RFRAs: Twenty-one states have enacted their own RFRAs, applying compelling interest/least restrictive means to state laws burdening religious exercise. In those states, religious exemption claims against state law go beyond Smith's federal constitutional floor.

Land use and prisons: RLUIPA applies compelling interest/least restrictive means to government land use regulations and regulations of institutionalized persons that burden religious exercise — a federal statutory protection that goes beyond Smith for these specific contexts.

The Neutrality and General Applicability Test in Practice

Even under Smith, laws that are not truly neutral or not truly generally applicable must satisfy strict scrutiny — compelling interest and least restrictive means. This has become the primary avenue for successful free exercise claims under the federal Constitution (without RFRA):

Not neutral: A law that specifically targets religion or demonstrates hostility to religion is not neutral. Church of Lukumi Babalu Aye v. City of Hialeah (1993) struck down city ordinances that targeted Santería ritual animal sacrifice — the ordinances were drafted specifically to prevent Santería practices while exempting secular animal killing. The laws were not neutral; strict scrutiny applied; the city failed it.

Not generally applicable: A law with exceptions for secular conduct comparable to the religious conduct it prohibits is not generally applicable. Fulton v. City of Philadelphia (2021) held that Philadelphia's non-discrimination policy was not generally applicable because it gave city officials discretion to grant exemptions — a discretion system analogous to the unemployment compensation exemption in Sherbert. Once a law has individualized exemption mechanisms, it must apply them evenhandedly to religion.

Fulton v. City of Philadelphia (2021): The Exemption Mechanism Rule

Fulton is the most significant free exercise decision since Smith. Catholic Social Services (CSS) contracted with Philadelphia to provide foster care services but refused to certify same-sex couples as foster parents, citing its religious beliefs about marriage. Philadelphia terminated CSS's contract for violating the city's non-discrimination policy. CSS sued.

Chief Justice Roberts's unanimous opinion held that Philadelphia's policy violated CSS's free exercise rights — but the holding is narrower than it might appear. Philadelphia's non-discrimination contract included a provision allowing the Commissioner of the Department of Human Services to grant exceptions. This discretionary exception provision meant the policy was not "generally applicable" under Smith — it had an individualized exemption mechanism. Once Philadelphia created such a mechanism, it had to apply it evenhandedly to CSS's religious exemption request. Philadelphia had failed to show it could not accommodate CSS.

The Court declined to reconsider Smith in Fulton, despite Justices Thomas, Gorsuch, and Alito explicitly calling for it. The narrower holding — based on the exemption mechanism — left Smith formally intact while making it easier to show that laws are not generally applicable.

Religious Liberty and Anti-Discrimination Law

The most contentious free exercise frontier involves the intersection of religious liberty and LGBTQ+ non-discrimination requirements:

Masterpiece Cakeshop v. Colorado (2018): A baker who refused to create a wedding cake for a same-sex couple because of his religious beliefs was found by the Colorado Civil Rights Commission to have violated state anti-discrimination law. The Supreme Court reversed — but narrowly, holding that the Commission had shown hostility to the baker's religious beliefs during the proceedings (a commissioner had made dismissive remarks about religion as a justification for discrimination). The Court did not resolve whether the First Amendment creates a right to refuse services to same-sex couples.

303 Creative LLC v. Elenis (2023): The Court did not resolve the free exercise question here either — it ruled on free speech grounds, holding that a web designer could not be compelled to create websites celebrating same-sex weddings because website design is expressive activity protected by the First Amendment. The free speech compelled-speech holding applies to creative/expressive businesses; it does not create a broad religious exemption from non-discrimination law.

The core question — whether the Free Exercise Clause, RFRA, or the First Amendment requires exemptions from LGBTQ+ non-discrimination laws for religious business owners — has not been directly answered. Lower courts continue to divide; the Supreme Court will likely need to address it in a direct vehicle.

How It Affects You

If you are an individual asserting a religious exemption from government requirements: The constitutional protection you receive under Smith depends on whether the law is neutral and generally applicable. If the law specifically targets religion, or has secular exemptions for analogous conduct, you can claim strict scrutiny protection. If the law is truly neutral and generally applicable, you have no constitutional right to an exemption — but you may have statutory rights. If you are affected by a federal law or program, RFRA requires the government to show compelling interest and least restrictive means before substantially burdening your religious exercise — a very demanding standard that has protected claims ranging from sacramental peyote use to contraception coverage exemptions. If you are affected by state law, check whether your state has its own RFRA; if not, your federal constitutional protection under Smith is limited to neutrality and general applicability arguments.

If you are a religious employer or service provider: RFRA provides significant protection against federal mandates that conflict with your religious beliefs — including the ACA contraceptive mandate (Hobby Lobby), certain employment nondiscrimination requirements, and federal contractor requirements. For state law, your protection depends on whether your state has a RFRA and on the neutrality of the applicable law. The Fulton decision creates a litigation strategy: if the state or local law has any discretionary exemption mechanism, you can argue it is not generally applicable and must apply strict scrutiny to your religious exemption request. For LGBTQ+ non-discrimination laws specifically, the law is still developing; consult counsel, as Masterpiece and 303 Creative suggest significant constitutional protection for religiously motivated refusals when the business has an expressive component, but the outer limits are not yet defined.

If you are an LGBTQ+ customer or employee seeking protection from discrimination: The Smith baseline and RFRA do not, in general, require exemptions from neutral, generally applicable non-discrimination laws — but carve-outs for religious employers and expressive businesses are expanding through litigation. Under Title VII (Bostock v. Clayton County, 2020), your employer cannot discriminate based on sexual orientation or gender identity, subject to religious organization exemptions whose scope is actively litigated. In public accommodations, protections vary by state, and Masterpiece and 303 Creative signal constitutional limits on compelling expressive businesses to serve events they find religiously objectionable. The free exercise/civil rights tension is the most active frontier in constitutional law in 2026; outcomes are state-specific and case-specific.

If you are a state or local government official implementing non-discrimination policy: After Fulton, be careful about building discretionary exemption mechanisms into non-discrimination requirements — if you allow some exemptions, you likely must consider religious exemption requests evenhandedly or face a Fulton challenge. Draft policies without discretionary exception authority if you want to maintain the general applicability defense. When you do grant exemptions for secular reasons (health, safety, business need), be aware that comparable religious exemption requests will be harder to deny under strict scrutiny. Maintain records showing neutral application and absence of hostility to religion in enforcement proceedings — Masterpiece's reversal turned on commissioner comments that showed hostility to religious belief.

State Variations

State RFRAs: Twenty-one states (including Texas, Illinois, Florida, and others) have enacted state Religious Freedom Restoration Acts that apply the compelling interest/least restrictive means test to state laws. These states provide substantially more constitutional protection than Smith's federal floor. In these states, religious exemption claims against non-discrimination requirements, vaccination mandates, licensing requirements, and other generally applicable laws are analyzed under the stricter standard.

State constitutional free exercise: Several states have interpreted their state constitutional free exercise provisions more broadly than Smith's federal standard, effectively maintaining the Sherbert/Yoder compelling interest test without a state RFRA. These states include Wisconsin (under Yoder's legacy) and others with strong state court free exercise traditions.

State non-discrimination coverage: State LGBTQ+ non-discrimination laws vary enormously. States with comprehensive laws (California, New York, Illinois) are more likely to have religious exemption litigation; states without such laws have less conflict between free exercise claims and non-discrimination requirements.

State religious exemption laws: Some states have enacted laws specifically creating religious exemptions from particular requirements — vaccine exemptions, birth certificate documentation requirements, non-discrimination in adoption services. These state-specific exemptions interact with free exercise claims and anti-discrimination law in complex ways.

Pending Legislation

• RFRA and SOGI (Sexual Orientation and Gender Identity) non-discrimination: The Equality Act — proposed federal comprehensive LGBTQ+ non-discrimination legislation — explicitly provides that RFRA cannot be used as a defense to claims brought under its provisions. This would restrict RFRA's scope in the anti-discrimination context. Not enacted as of 2026.
• State RFRA expansion/restriction: Bills to enact, expand, or narrow state RFRAs are regularly introduced in state legislatures; the landscape is dynamic and state-specific.
• Vaccine religious exemption legislation: Multiple states have enacted or restricted religious exemptions from vaccine requirements for school attendance, healthcare employment, and other contexts. The intersection of Smith's general applicability analysis and state exemption policies continues to generate litigation.

Recent Developments

• 2020 — Our Lady of Guadalupe School v. Morrissey-Berru: The Supreme Court expanded the "ministerial exception" — a constitutional doctrine exempting religious employers from anti-discrimination laws for employees who perform religious functions — to cover teachers at Catholic schools who taught religion, even without formal "minister" title. Significant expansion of religious employer exemptions.
• 2021 — Fulton v. City of Philadelphia: Catholic Social Services' exemption from the city's non-discrimination policy required because of the city's discretionary exemption mechanism. Smith not overruled but effectively limited; expectation-setting decision for religious exemption cases.
• 2022 — COVID vaccine mandate cases: Religious exemption claims against COVID-19 vaccine mandates by employers, hospitals, and government agencies generated significant litigation. Courts applied RFRA for federal mandates and Smith neutrality analysis for state mandates; outcomes divided.
• 2023 — 303 Creative LLC v. Elenis: Web designer's free speech right to decline same-sex wedding websites; First Amendment compelled-speech holding reinforces religious conscience protection for expressive businesses without resolving the free exercise question directly.
• 2024-2026 — Title VII religious employer exemptions: Courts continue to define the scope of the Title VII § 702 religious organization exemption as applied to LGBTQ+ employees. Circuit splits and pending petitions signal imminent Supreme Court resolution.