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  • Intentional vs. unintentional burdens: The Free Exercise Clause prevents the government from unduly interfering with religion whether the government does so intentionally or unintentionally.
    • Intent: If the interference is intentional on government’s part, then the interference is subjected to the most strict scrutiny, and will virtually never survive.
    • Unintentional burden: If the government unintentionally burdens religion, the Free Exercise Clause is still applied. Here, however, the Court uses a somewhat less stringent form of strict scrutiny. (In fact, if the government makes certain conduct a crime, and this unintentionally burdens the exercise of religion, the Court does not use strict scrutiny at all, and instead uses “mere-rationality” review.)
  • Coercion required: The Free Exercise Clause only gets triggered where government in some sense “coerces” an individual to do something (or not to do something) against the dictates of his religion. If the government takes an action that unintentionally happens to make it harder for a person to practice his religion — but without coercing him into taking or not taking some action as an individual — the Free Exercise Clause does not apply.
  • Exemptions required: Because strict scrutiny is traditionally given even to unintentional impairments of religion, government must give an exemption to avoid such an unintentional interference with religion, if this could be done without seriously impairing some compelling governmental interest. (Example: The state may not deny unemployment benefits to a person who refuses to work on his religion’s holy day.)
    • Criminal prohibition: But a generally applicable criminal law is automatically enforceable, regardless of how much burden it causes to an individual’s religious beliefs (assuming that the government did not intend to disadvantage a particular religion or religious practice when it enacted its law).



A.Two clauses:  The First Amendment contains two distinct clauses designed to protect religious freedom. One is the Establishment Clause, which prohibits any law “respecting an establishment of religion.” The other is the Free Exercise Clause, which bans laws “prohibiting the free exercise” of religion.

B. General function of clauses:  These two clauses are designed to protect the same basic value, the freedom of every individual to worship (or not worship) as he wishes, without governmental interference. The two clauses have been summarized as requiring “that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.” Abington School District v. Schempp, 374 U.S. 203 (1963) (Goldberg, J. concurring).

C. Conflict between clauses:  However, in some contexts the two clauses conflict.

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