What Is Free Exercise?

" Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.vjr5l61P.dpuf

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.vjr5l61P.dpuf

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof - See more at: http://constitution.laws.com/1st-amendment#sthash.RE6wphSD.dpuf

What kind of religious exercise is protected by the FEC? Behavior "mandated" by one's faith? Or behavior merely "motivated" by one's faith? Is there a difference between these concepts?

Ninth Circuit Judge John Noonan, a former law prof and prolific scholar, perhaps has given us the best definition of what is protected by the FEC. In Peterson v. Minidoka County School Dist, 118 F. 3d 1351, 1356-1377, he called the free exercise of religion "the robust putting into practice of a person's religious beliefs," and went on to discuss the issue of mandated vs. motivated religious conduct:

"What is mandated by religion, however, is not to be equated with what is minimally required of adherents of a religion. What is mandated is what the individual human being perceives to be the requirement of the transhuman Spirit to whom he or she gives allegiance. To adapt a Holmesian phrase, what is mandated is a 'can't help.' The person who responds to the Spirit 'can't help' believing that the response is required. Francis of Assisi was exercising his religion when he gave his costly clothes to the poor; if a government had tried to prevent the gesture it would have violated his free exercise although he acted from no binding precept. What the Constitution protects is an act 'rooted in religious belief.'"

By the way, Free Exercise is not limited to actions that are "central" to one's religious beliefs as some commentators occasionally assert. Indeed, it would violate the Establishment Clause (entanglement) for federal courts to sit in judgment over whether a particular religious belief is central or non-central to one's religion.

The Free Exercise Clause is triggered by a law that substantially burdens a sincerely-held religious belief. Period.