Reynolds v. United States — Free Exercise Clause and Religious Practice Limits

Reynolds v. United States, 98 U.S. 145 (1879), is the Supreme Court's first major Free Exercise Clause decision — and for nearly a century, the foundational case establishing that the government may prohibit religiously motivated conduct even if it cannot punish religious belief. George Reynolds, secretary to Brigham Young and a practicing member of the Church of Jesus Christ of Latter-day Saints, was convicted under a federal anti-polygamy statute for having two wives simultaneously. Reynolds argued that his religion required polygamy and that the Free Exercise Clause of the First Amendment protected his practice. The Supreme Court unanimously rejected this argument. Chief Justice Waite's opinion drew a sharp line between religious belief — which government cannot touch — and religious practice — which government may regulate in the interest of civil order and social welfare. Laws of general applicability (like the anti-polygamy statute) do not violate the Free Exercise Clause merely because they incidentally prohibit conduct motivated by religious conviction. Reynolds established the belief-practice distinction that governed Free Exercise jurisprudence for most of American constitutional history. Though Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) later created a compelling interest test for laws that substantially burden religious practice, Employment Division v. Smith (1990) returned largely to the Reynolds framework — neutral, generally applicable laws do not violate the Free Exercise Clause even if they burden religious practice. The Religious Freedom Restoration Act (RFRA) and its state equivalents now provide statutory protection beyond the constitutional floor.

Current Law (2026)

Key Mechanics

Reynolds v. United States, 98 U.S. 145 (1879) — the Supreme Court's first major Free Exercise decision — established the belief-practice distinction: the Free Exercise Clause absolutely protects religious belief, but the government may regulate religiously motivated conduct if the law is otherwise valid. George Reynolds, a polygamist LDS member, argued that his religious duty to practice plural marriage exempted him from federal anti-bigamy law. The Court rejected this: allowing religious duty to be a defense to criminal law would make every citizen a law unto himself. The belief-practice rule from Reynolds remained the baseline for nearly a century. The modern test trajectory: (1) Sherbert v. Verner (1963) introduced a compelling interest test — laws that substantially burden religious practice must survive strict scrutiny; (2) Employment Division v. Smith (1990) largely returned to Reynolds — neutral, generally applicable laws do not require religious exemptions even when they substantially burden religious practice; (3) RFRA (42 U.S.C. § 2000bb) — Congress restored the Sherbert compelling interest standard as a statutory matter for federal laws; RFRA requires the federal government to use the least restrictive means of advancing a compelling interest before substantially burdening religious exercise; (4) Fulton v. Philadelphia (2021) — if a law has individualized exemption authority (allowing officials to grant exceptions case-by-case), it is not generally applicable under Smith and must satisfy Sherbert-like scrutiny. The current framework: neutral, generally applicable laws are constitutional under the First Amendment alone; laws that are not neutral or not generally applicable must satisfy strict scrutiny; RFRA adds a statutory layer requiring compelling interest + least restrictive means for federal government actions.

Legal Authority

• U.S. Const. amend. I — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — the Religion Clauses
• 42 U.S.C. § 2000bb — Religious Freedom Restoration Act (RFRA, 1993); federal law requiring the federal government to use the least restrictive means of advancing a compelling interest before substantially burdening religious exercise; enacted to restore the Sherbert compelling interest test after Smith
• Reynolds v. United States, 98 U.S. 145 (1879) — Belief-practice distinction; government cannot punish religious belief but may regulate religiously motivated conduct; anti-polygamy statute applied to LDS members does not violate the First Amendment
• Cantwell v. Connecticut, 310 U.S. 296 (1940) — Free Exercise Clause incorporated against states through Fourteenth Amendment; Connecticut's solicitation permit requirement for religious soliciting violated the Clause; first Supreme Court case applying Free Exercise to states
• Sherbert v. Verner, 374 U.S. 398 (1963) — South Carolina could not deny unemployment benefits to a Seventh-day Adventist fired for refusing to work on Saturdays; a law that substantially burdens religious practice must be justified by a compelling governmental interest; the Sherbert test modified Reynolds's absolute rule
• Wisconsin v. Yoder, 406 U.S. 205 (1972) — Amish parents could not be compelled to send children to school past eighth grade; state's interest in education did not outweigh the deeply rooted religious practice of Amish community; applied Sherbert compelling interest test
• Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) — State could deny unemployment benefits to Native American church members fired for peyote use (a sacrament); neutral, generally applicable laws do not require religious exemptions; returned to a Reynolds-like framework; Sherbert limited to unemployment benefits context
• Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006) — RFRA required the government to allow a religious group to use hoasca (a hallucinogenic tea) in its ceremonies; the government's controlled substances interest was not compelling enough under RFRA's demanding standard
• Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014) — Closely held for-profit corporations can exercise religion under RFRA; the ACA contraceptive mandate substantially burdened Hobby Lobby's religious exercise without using the least restrictive means
• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) — Philadelphia violated RFRA by refusing to contract with Catholic Social Services because it would not certify same-sex couples as foster parents; the city's policy was not generally applicable because it allowed individualized exemptions

How It Works

The Belief-Practice Distinction: Reynolds's Core Rule

Reynolds v. United States arose in the context of the federal government's campaign against polygamy in the territories. The LDS Church taught that polygamy was a religious duty for male members who could afford to support multiple wives. Congress had enacted the Morrill Anti-Bigamy Act (1862) prohibiting polygamy in the territories. Reynolds, a prominent church leader, was charged with having two wives. His defense: the Free Exercise Clause protected his religiously motivated practice.

Chief Justice Waite's unanimous opinion acknowledged that Congress could not pass a law "against opinion" — pure religious belief is absolutely protected. A law that simply prohibited believing in polygamy would be unconstitutional. But Reynolds's conviction was for his acts, not his beliefs. And here, Waite drew the fundamental distinction that would govern Free Exercise law for a century: "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."

The practical content of this distinction: government may prohibit any conduct, even conduct commanded by sincere religious conviction, as long as the law is a general law of civil society (applicable to everyone) rather than a law targeting particular religious beliefs. Human sacrifice, even if sincerely commanded by a religion, could be prohibited. So could polygamy.

Reynolds was not merely about polygamy. It established that the Free Exercise Clause does not require religious exemptions from general laws. A neutral law applies neutrally — the religious motivation behind the conduct it prohibits is legally irrelevant.

Sherbert and Yoder: The Compelling Interest Test

For a century, Reynolds governed relatively undisturbed. The belief-practice distinction kept religion out of politics, and courts rarely had to decide whether specific laws impermissibly burdened religious practice. But the mid-twentieth century produced two cases that significantly modified the Reynolds framework.

Sherbert v. Verner (1963) involved a Seventh-day Adventist, Adell Sherbert, who was fired from her job because she refused to work on Saturdays (her Sabbath). South Carolina denied her unemployment benefits because she had refused "available work." The Supreme Court held that denying benefits to someone who refused to work for sincere religious reasons effectively penalized her for her religious practice. The government must show a "compelling governmental interest" before substantially burdening religious exercise — and "administrative convenience" was not sufficient.

Wisconsin v. Yoder (1972) extended the compelling interest test. Amish parents in Wisconsin refused to send their children to school past eighth grade, believing that high school education would undermine their children's faith and the integrity of the Amish community. Wisconsin prosecuted them under its compulsory education law. The Supreme Court held that the state's interest in education was real but not sufficiently compelling to override a centuries-old religious practice that was central to a distinct religious community's way of life. Amish children's exemption from compulsory high school attendance was constitutionally required.

Together, Sherbert and Yoder created what looked like a compelling interest test for Free Exercise: laws that substantially burden sincere religious practice must be justified by a compelling governmental interest that cannot be achieved by less restrictive means. This is the same high standard that applies to laws burdening other fundamental rights.

Employment Division v. Smith: Back Toward Reynolds

Employment Division, Department of Human Resources of Oregon v. Smith (1990) dramatically pulled back from Sherbert and Yoder. Alfred Smith and Galen Black were members of the Native American Church who were fired from their jobs at a drug rehabilitation clinic for ingesting peyote — a sacrament in their religion — at a church ceremony. Oregon denied their unemployment benefits because they had been fired for misconduct. They challenged the denial as a violation of Free Exercise.

Justice Scalia's majority opinion for a 6-3 Court held that the Free Exercise Clause does not require exemptions from neutral, generally applicable laws. Sherbert's compelling interest test was limited to the unemployment benefits context and did not establish a general rule requiring religious exemptions from criminal laws. The anti-peyote law applied neutrally to everyone — it was not targeted at the Native American Church's sacramental practices.

Smith's rule: a neutral law of general applicability that incidentally burdens religious practice does not violate the Free Exercise Clause, even if it applies to conduct central to sincere religious belief. Government need only show a rational basis for neutral, generally applicable laws — the Reynolds framework, essentially.

The Smith decision was enormously controversial. Justice O'Connor's concurrence (agreeing in the result but not the reasoning) argued that the majority was wrong to abandon the compelling interest test. Justices Blackmun, Brennan, and Marshall dissented, arguing that the Sherbert test should apply and the government had not demonstrated a compelling interest. Religious groups across the political spectrum were outraged.

RFRA: Congress Responds to Smith

Congress responded to Smith with the Religious Freedom Restoration Act of 1993 (42 U.S.C. § 2000bb). RFRA imposed a statutory compelling interest test on federal government action: the federal government may substantially burden a person's exercise of religion only if the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Congress attempted to apply RFRA to state governments as well, but City of Boerne v. Flores (1997) held that Congress lacked power to impose RFRA's requirements on states — it exceeded Congress's Section 5 enforcement power.

The result: RFRA applies to federal law and federal government action. State governments are governed by Smith's constitutional rule (neutral, generally applicable laws are permissible) unless: (1) the state has enacted its own "state RFRA"; (2) the state law is not neutral or generally applicable (Lukumi Babalu Aye, 1993 — a law targeting a specific religious practice triggers strict scrutiny); or (3) the state law involves a "hybrid rights" claim combining Free Exercise with another constitutional right.

Gonzales v. O Centro (2006) applied RFRA to require the government to allow a Brazilian religious group to import and use hoasca (dimethyltryptamine, a Schedule I controlled substance) in its ceremonies. The government's interest in enforcing the Controlled Substances Act uniformly was real but not compelling enough to override a sincere religious practice that posed no demonstrated harm beyond what the statute presumed.

Burwell v. Hobby Lobby (2014) extended RFRA's protections to closely held for-profit corporations. The Green family, owners of Hobby Lobby, sincerely believed that providing contraceptive coverage through the ACA mandate made them complicit in abortion. The Supreme Court held that the Green family's religious exercise extended through their corporation, that the mandate substantially burdened that exercise, and that the government had not used the least restrictive means (it could provide the coverage directly without requiring employer facilitation).

The Modern Landscape: Fulton, Smith Revisited

Fulton v. City of Philadelphia (2021) found a Free Exercise violation without overruling Smith. Philadelphia contracted with foster care agencies but refused to renew Catholic Social Services' contract because CSS would not certify same-sex couples as foster parents. The Court held that Philadelphia's policy was not "generally applicable" because it had a mechanism for individual exemptions — the Commissioner could waive the non-discrimination requirement — and that mechanism made the policy susceptible to Free Exercise challenge even under Smith.

Several justices in Fulton wrote separately to argue that Smith should be reconsidered. Justices Alito, Thomas, and Gorsuch wrote that Smith was wrongly decided and should be overruled in favor of a compelling interest test. The Court did not reach that question in Fulton, resolving the case on narrower grounds.

How It Affects You

If you are a member of a religious minority facing a law that burdens your practice: Your constitutional protection depends on whether the law is neutral and generally applicable. If it is — like the drug laws in Smith — the Free Exercise Clause provides limited protection; you must seek an exemption through legislative channels. If the law was specifically targeted at your religious group, or if it allows individualized exemptions for some but not others (Fulton), Smith does not apply and strict scrutiny may require an exemption. For federal law burdens on religious exercise, RFRA provides statutory protection — substantial burdens require compelling interests and least restrictive means, a demanding standard. Identify which layer of protection applies (constitutional, federal RFRA, state RFRA) and whether your claim meets the relevant threshold.

If you are an employer or business with religious objections to a legal requirement: Hobby Lobby established that closely held for-profit corporations can invoke RFRA to challenge federal requirements. Religious nonprofits and churches have additional RFRA and constitutional protections. Key questions: (1) Is the challenged requirement federal law? (RFRA applies.) (2) Does the requirement substantially burden your sincere religious belief? (3) Has the government used the least restrictive means? If operating under state law, determine whether your state has a RFRA and whether the Smith or compelling interest standard applies. Religious objections to anti-discrimination requirements (serving LGBTQ+ customers, providing same-sex partner benefits) are a rapidly developing area of law in the intersection of RFRA, First Amendment, and anti-discrimination law.

If you are a government official designing a policy: Neutral, generally applicable laws do not require religious exemptions under Smith. But be careful: any mechanism for individualized exemptions makes your policy potentially subject to strict scrutiny under Fulton. If you provide exemptions for some (medical, secular, administrative) but not for religious reasons, you have discriminated against religion and created a Lukumi or Fulton problem. Design laws to be genuinely neutral and generally applicable, or accept that religious exemption claims will receive serious judicial attention. Federal programs must also comply with RFRA.

If you are a civil rights attorney or litigator: The Reynolds/Smith framework, modified by RFRA, creates a multi-layered analysis. First: is the law neutral and generally applicable? If yes: does a RFRA apply (federal law)? Does state RFRA apply? Is there a hybrid rights claim? Are there individualized exemptions that trigger Fulton? Second: if the compelling interest test applies, is the government's interest truly compelling, and is its means truly the least restrictive? Gonzales v. O Centro and Hobby Lobby show that the compelling interest test has real teeth under RFRA. Track whether the Supreme Court reconsiders Smith — the Fulton concurrences signal potential majority for reconsidering — as this would dramatically expand the constitutional floor.

State Variations

Reynolds/Smith's constitutional rule applies to all states. State variations arise from:

State RFRAs: About half of states have enacted their own Religious Freedom Restoration Acts, imposing compelling interest protection for state government action beyond the federal constitutional floor. States with RFRAs include Texas, Indiana, Alabama, Florida, and others. The scope of state RFRAs varies — some track the federal language; others are broader or narrower.

State constitutional Free Exercise provisions: Some state constitutions provide stronger Free Exercise protection than the federal Constitution after Smith. Courts in some states have interpreted their state constitutional provisions to require compelling interest justification for laws burdening religious exercise even after Smith eliminated this requirement from federal doctrine.

Religious exemptions in specific statutes: Many state statutes include specific religious exemptions — from vaccine requirements, from professional licensing requirements, from certain anti-discrimination obligations. These exemptions exist because states have chosen to accommodate religion beyond constitutional requirement.

Anti-discrimination law and religious exemptions: State anti-discrimination laws (protecting LGBTQ+ individuals, for example) frequently generate conflicts with religious objectors. Some states have broad religious exemptions from their anti-discrimination statutes; others do not. This creates significant variation in how religious objections to serving LGBTQ+ customers are treated across states.

Pending Legislation

• First Amendment Defense Act: Proposed federal legislation that would prohibit the federal government from taking adverse action against individuals or organizations that act on the belief that marriage is the union of one man and one woman; would create broad religious exemptions; has been introduced repeatedly but not enacted.
• Do No Harm Act: Proposed legislation to limit RFRA's reach — would prevent RFRA from being used to claim exemptions from civil rights, labor, anti-discrimination, and other generally applicable laws; has been introduced as a counterweight to broad RFRA exemption claims.

Recent Developments

• 2021 — Fulton v. City of Philadelphia: Philadelphia's exclusion of Catholic Social Services from the foster care system violated Free Exercise because the city's contracting policy allowed individualized exemptions; all nine justices agreed the city violated the clause, though on varying grounds; several justices called for reconsidering Smith.
• 2022 — Kennedy v. Bremerton School District: Coach's personal post-game prayer on the field is protected; the government cannot suppress private religious expression by public employees merely to avoid Establishment Clause appearances; the decision applied a historical-understandings approach to both the Free Exercise and Establishment Clause claims.
• 2023–2026 — RFRA and anti-discrimination law: Courts continue to adjudicate conflicts between RFRA-based religious exemption claims and federal anti-discrimination requirements (ACA contraceptive mandate, Title VII, and others); the legal framework is actively developing as the Supreme Court considers the scope of RFRA exemptions.
• 2024–2026 — Smith reconsidered: Multiple cases raising the question whether Smith should be overruled are working through the circuit courts; the Supreme Court may take up the issue in the current or next term.