A Fourth Amendment Framework for the Free Exercise Clause

Abstract

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have probable cause and a warrant before conducting a search (unless an exception to the warrant requirement applies). In quasi-public spaces, such as a motor vehicle or a place of business, individuals have a reduced expectation of privacy that permits searches based on reasonable suspicion of unlawful conduct. In public spaces, such as open fields or sidewalks, citizens have little, if any, expectation of privacy, and law enforcement typically needs no suspicion whatsoever to observe objects that are placed in public view.

The Court should adopt a similar framework such that the strength of a free exercise claim could vary depending on where, when, and how it is exercised. Specifically, the validity of a law interfering with religious liberty would depend on whether it:

• Affects religious practices or beliefs;

• Prohibits or compels conduct;

• Directly or indirectly targets religious practices or beliefs;

• Applies in the public or private arena; and

• Advances valid and secular governmental interests.

The tiered framework used in the Fourth Amendment context to balance privacy rights against the needs of law enforcement should be adopted to determine the strength of a free exercise claim in light of countervailing governmental interests. This approach would result in protections for religious liberty that are categorical in some instances and context-specific in others.

Keywords: Fourth amendment, Burwell v. Hobby Lobby, First amendment, free exercise of religion, establishment clause, Supreme Court, Employment Division v. Smith

JEL Classification: K10, K42