Skip to main content
  • About
  • Public Officials
  • Topics
  • Courses
  • Publications
  • Blogs
  • Resources
  • Giving
  • Knapp Library
  • MPA Degree
  • About
    As the largest
    university-based local
    government training,
    advisory, and research
    organization in the United
    States, the School of
    Government serves more
    than 12,000 public officials
    each year.
    • Mission and Values
    • News
    • Faculty and Staff
    • School of Government Foundation
    • Diversity and Inclusion
    • Visitor Information
    • Accessibility
    • Employment
    • SERVICE Mural
    • Our Impact
    • Browse by Role
      The School provides
      content and resources for a
      wide array of local
      government and judicial
      officials in North Carolina.
      Select your role to explore
      all related content.
      Local and State Government
      • Appointed Board Members
      • Attorneys
      • City and County Clerks
      • City and County Managers
      • Community and Economic Development Professionals
      • Elected Officials
      • Health and Human Services Professionals
      • HR Professionals
      • IT Professionals
      • Managers and Supervisors
      • Planning and Zoning Professionals
      • Tax and Finance Officials
      Courts and Judicial Administration
      • Appellate Court Judges
      • Clerks of Court
      • Criminal Defense Attorneys
      • District Court Judges
      • Guardians ad Litem
      • Indigent Defense
      • Jailers and Corrections Officers
      • Judicial Administrators
      • Juvenile Court
      • Law Enforcement Officers
      • Magistrates
      • Prosecutors
      • Superior Court Judges
    • Browse by Topic
      The School provides content
      and resources on a wide array
      of topics in local government
      and judicial administration in
      North Carolina.
      Select a topic to explore all
      related content.
      Local and State Government
      • State Government
      • Planning and Development Regulation
      • Community and Economic Development
      • Environment
      • General Structure and Authority
      • Health and Human Services
      • Human Resources
      • Information Technology
      • Intergovernmental Relations
      • Leadership and Management
      • Local Government Finance
      • Open Government
      • Other Local Government Functions and Services
      Courts and Judicial Administration
      • Civil Commitment and Guardianship
      • Civil Law and Procedure
      • Corrections
      • Criminal Law and Procedure
      • Evidence
      • Family Law
      • Indigent Defense
      • Judicial Administration and Authority
      • Juvenile Law
      • Motor Vehicle Law
    • Courses
      The School of Government
      offers up to 200 courses,
      workshops, webinars, and
      professional conferences
      each year.
      All Courses
      • Courses
      • Upcoming Courses
      • Online Modules
      • Webinar
      • Webinar Series
      • Continuing Professional Education
        Scholarship Opportunities
        Request a Transcript
      • Publications
        The School of Government
        publishes essential books,
        manuals, reports, articles,
        bulletins, and other print and
        online content related to state
        and local government.
        All Publications
        • Books
        • Book Chapters
        • Bulletins
        • Reports
        • Bulletin Series Index
          Publication Sales
        Browse
        • New Publications
        • Forthcoming Titles
        • Updates and Supplements
      • Blogs
        Faculty write for a number
        of School of Government
        blogs providing timely
        updates on emerging issues.
        • Coates' Canons: NC Local Government Law
        • Community and Economic Development
        • Death and Taxes
        • Environmental Finance
        • Facts That Matter
        • MPA Matters
        • North Carolina Criminal Law
        • On the Civil Side
        • Resources
          The School of Government
          offers information and
          services related to a wide
          range of topics relevant to
          government and judicial
          officials—in-person and on a
          variety of platforms.
          • Blog Posts
          • Timely updates on emerging issues
          • Centers and Services
          • Specialized training/research hubs and consulting services
          • Frequently Asked Questions
          • Aggregated answers to common questions on a variety of topics
          • Knapp Library
          • Print and online materials and research expertise
          • Legal Summaries
          • Brief descriptions of legal cases, bills, or legislative activity
          • Listservs
          • Information exchanges for peers and faculty experts
          • Microsites
          • In-depth or aggregated content for local government and judicial officials
          • Tools and Apps
          • Online and mobile tools for employees on-the-go
          • Master of Public
            Administration Program
            The UNC MPA program prepares public service leaders. The program is offered in two formats: on-campus and online.
            For more information, visit mpa.unc.edu
            MPA_Logo_Large_H_
              Why an MPA?
             
              Online or on-campus?
          • Giving
            The School of Government depends on private and public support for fulfilling its mission. Your gift will make a lasting impact on the quality of government and civic participation in North Carolina.
            • University Development
            • Make a Gift
            • Development FAQ
            • Knapp Library
              The Joseph Palmer Knapp Library houses a large collection of material on state and local government, public administration, and management to support the School's instructional and research programs and the educational mission of the Master of Public Administration program. Reference and research services are available to all residents of North Carolina, and additional assistance is available to state and local government personnel, both elected and appointed.
              • Covid-19 Response
              Resources | Legal Summaries

              Additional Information on the Free Exercise Clause

              David W. Owens
              August, 1997
              Legal topic(s)

              The Free Exercise Clause has been the subject of substantial litigation. Recent cases have addressed issues as diverse as whether a person can use hallucinogenic drugs[1] or sacrifice animals[2] if that is part of a religious sacrament.

              In many respects this requirement that regulations not be directed toward the substance of religious beliefs is similar to the requirement that restrictions on constitutionally protected speech must be content neutral. Government may regulate the time, place, and manner of protected speech if that is done without regard to the substantive content of the speech. For example, the Court has allowed a state to restrict those distributing religious literature and soliciting contributions at a state fair to a fixed booth location, rather than freely roaming the fairgrounds, but only if this is done for purposes of maintaining safe and orderly crowd movement.[3] Similarly, a local government can regulate the location and operation of constitutionally protected but sexually explicit speech, such as topless bars and adult book stores, but only on the basis of preventing adverse secondary impacts on neighboring properties.[4] In both instances, legitimate governmental interests—crowd control and preventing harm to neighboring properties—justified restrictions on speech but only when applied without regard to the content of the speech.

              Overview of Supreme Court Decisions

              General Laws of Uniform Applicability

              The Court has long held that regulations of general applicability that are neutrally
              applied can restrict even religiously justified conduct. For example, in 1878
              the Court upheld a bigamy conviction even when the petitioner established that
              his religious beliefs obligated a second marriage.[5]
              Chief Justice Waite wrote for a unanimous court that “Laws are made for the
              government of actions, and while they cannot interfere with mere religious beliefs
              and opinions, they may with practices.”[6]
              The court went on to observe, “Can a man excuse his practices to the contrary
              [violations of state criminal law] because of his religious belief? To permit
              this would be to make the professed doctrines of religious belief superior to
              the law of the land; and in effect to permit every citizen to become a law unto
              himself. Government could exist only in name under such circumstances.”[7]

              Similarly, in Cantwell v. Connecticut, the court in 1940 held that the free exercise clause “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”[8]

              Most general criminal statutes forbidding harmful activity do not exempt religious practices and have
              not been required to do so. For example a state statute prohibiting snake handling was upheld against a free exercise challenge by the North Carolina court in 1949.[9]
              Sherbert and Yoder

              The current controversy dates to the 1960’s, when the Supreme Court expanded the protection afforded individuals exercising their religious beliefs in ways that conflicted with secular government regulations of conduct.

              The initial landmark case establishing strong judicial protection of free exercise rights came in 1963. The case was Sherbert v. Verner,[10] which invalidated the denial of unemployment benefits for Adell Sherbert. Sherbert was a Seventh Day Adventist who lost her job in a South Carolina textile mill for refusing to work on Saturdays when the mill expanded from a five-day to a six-day work week. Justice Brennan, writing for a five member majority of the Court, announced a “strict scrutiny” test for government regulations that significantly burden religious practices: the regulation is invalid unless the government is addressing a compelling state interest[11] and has chosen a narrowly tailored method of regulation.

              This test was reaffirmed in a 1972 case, Wisconsin v. Yoder,[12] where the Supreme Court invalidated a state law mandating school attendance for Amish children. The Court held the Amish had deep religious conviction that their children should not attend public schools beyond the eight grade and that the state did not have a compelling justification for requiring two additional years of public schooling in lieu of the Amish long-standing program of informal vocational education for such children.[13]

              Smith

              In a controversial 1990 drug case, the court retreated from this strict judicial scrutiny. Two Oregon counselors were fired from their private drug rehabilitation firm based on their use of peyote. The counselors were members of the Native American Church and it was undisputed that their use of hallucinogenic peyote was a part of their religious sacraments. The counselors were denied unemployment benefits because they had been dismissed for “misconduct” (peyote use being at that time a criminal offense in Oregon).[14] On appeal of that denial, the Oregon supreme court applied the Sherbert test and ruled that the counselors were entitled to unemployment compensation because the governmental interest involved (preserving the financial integrity of the compensation fund) was not a sufficiently compelling governmental interest to justify substantially burdening the counselors’ religious expression.[15]

              However, on review the U.S. Supreme Court ruled in Employment Div., Dep’t of Human Resources v. Smith[16] that if the regulation is a valid and neutral law of general applicability, the Constitution does not mandate that the legislature provide a religion based exemption. Justice Scalia, writing for a five member majority of the court, held the Sherbert test of requiring a compelling justification for substantial burdens on religious practices does not apply to across-the-board criminal prohibition on a particular form of conduct. He concluded, “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ . . . contradicts both constitutional tradition and common sense.”[17] Justice Scalia went on to note that any society providing such a religious exemption would be courting anarchy, calling into question the validity of compulsory military service, payment of taxes, health and safety regulations, compulsory vaccinations, minimum wage, child labor, animal cruelty, environmental protection, and civil rights laws.[18] In a separate opinion, Justice O’Connor took a middle ground position. She urged application of the Sherbert balancing test, but would have held it was met in this instance: while banning sacramental peyote use is a substantial burden on religious practices, there is a compelling governmental interest in a uniform ban given the health dangers of its use and the need to prevent trafficking of a controlled substance.[19]

              Pre-Smith Court of Appeals Decisions

              Lakewood

              In Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood[20] the court upheld an ordinance that prohibited the construction of churches in most of the city’s residential zoning districts.[21] The court in Lakewood held the Sherbert test of a compelling state interest and narrowly tailored restriction only applies if there is in fact a substantial burden on religious practices,[22] which was held not to be the case when the ordinance did not prohibit construction but only restricted the locational options open to the congregation.

              Grosz

              In Grosz v. City of Miami Beach[23] the court upheld a zoning enforcement action taken to prohibit an elderly Rabbi from conducting religious services in a converted garage adjacent to his house. The property was in a single-family zoning district; Miami Beach’s zoning prohibited churches in that district, but allowed them as permitted uses in all other districts.

              The Grosz court applied a two part analysis in upholding the restriction. First, it must be established that the ordinance regulates conduct rather than belief and that it has a secular effect and purpose. Zoning generally easily meets this part of the analysis as it regulates conduct (land uses) for secular purposes (preventing incompatible land uses, controlling traffic and noise impacts, and the like). Second, there must be an appropriate balance between the governmental interest being advanced and the burden placed on religious practices. As for the governmental interest, this entails inquiry into the impacts that would be caused by a religious exception to the regulation and whether the least restrictive regulation possible has been chosen. As for the burden on religious practices, this entails inquiry into the importance of the burdened practice and the degree of interference with it. In Grosz this balance was struck in favor of the city. The court found the interests in protecting residential neighborhoods from the impacts of institutional uses was important and that the burden on the petitioner to move his religious services to an appropriate zoning district was not substantial since half the city, including an area only four blocks away from the plaintiff’s house, freely allowed religious institutions.

              Islamic Center
              Islamic Center of Mississippi, Inc. v. City of Starkville[24] invalidated the denial of approval to use an existing house in a residential zone for a mosque.

              There was considerable circumstantial evidence of religious discrimination at play in this case. Starkville is a college town, with the students at Mississippi State University comprising almost half of the town’s 26,832 population. The student population included about 35 to 50 Muslims. The city zoning ordinance allowed religious uses as a permitted use only in outlying rural areas, the nearest such zone being three miles from campus. All of the city’s twenty-six other churches—all various Christian denominations—were located in zoning districts closer to campus where religious uses were permitted only as an “exception” approved by the city council. The council had approved all nine requests for exceptions made by Christian churches after adoption of zoning. The Islamic Center’s site within walking distance of the University had been selected and purchased after extensive consultation with the planning staff, it provided all of the recommended off-street parking (more than twice as much as provided by the much larger religious facility next door, a converted fraternity house being used by a Pentecostal Christian denomination), and it had been recommended for approval by the Planning Board. Yet the city council denied the “exception” on the basis of a neighbor’s complaint about “congestion, parking, and traffic problems.”25 The Center nonetheless completed their renovations of the structure and operated without incident almost a year before the city ordered cessation of worship services at the site.

              The court had little difficulty concluding this application of the zoning ordinance substantially burdened religious practices by allowing no sites for worship within walking distance of campus[26] and was not narrowly drawn in support of a substantial governmental interest.[27]


              1. Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990).

              2.Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993).

              3. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). The state also offered two additional justifications for the restriction—that the restriction prevented fraudulent solicitations, deceptive speech and undue annoyance and that fair-goers were a captive audience who needed protection from harassment. The Court did not consider whether these additional rationales would have been sufficient justification for the rules. Id. at 308, n.6.

              4. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). See David W. Owens, REGULATING SEXUALLY ORIENTED BUSINESS (1997) for a discussion of the legal issues involved with land use restrictions on sexually explicit but constitutionally protected speech.

              5. Reynolds v. United States, 98 U.S. 244 (1878). See also, Braunfeld v. Brown, 366 U.S. 599 (1961) (upholding Sunday closing law as establishing uniform single day of rest); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding application of child labor laws to child distributing religious tracts with a relative); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccination).

              6. 98 U.S. 244, 250.

              7. Id.

              8. 310 U.S. 296, 301 (1940). Also see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (holding Jehovah’s Witnesses could not be compelled to salute the American flag).

              9. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dismissed, 336 U.S. 942 (1949).

              10. 374 U.S. 398 (1963). The South Carolina statutes provided a religious exemption for those who objected to Sunday work, but did not provide a similar exemption for Sabbatarians. Id. at 406. In a concurring opinion, Justice Stewart noted the inherent conflict between the Establishment and Free Exercise Clauses: If, based on the Free Exercise Clause, the state mandates an exception to a general rule of law to accommodate a person’s religious beliefs, does this not invariably favor that religion in a way that can violate the Establishment Clause? Id. at 413-17. See also Thornton v. Caldor, ___ U.S. ___ (1985) (invalidating a Connecticut statue guaranteeing Sabbath observers a right not to work on their Sabbath.

              11. The Court noted that regulations upheld in the past that override religious objections, such as in the Reynolds case, addressed conduct that “invariably posed some substantial threat to public safety, peace or order.” 374 U.S. 398, 403 (1963). See also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (upholding revocation of tax exempt status because compelling governmental interest in eradicating racial discrimination in education justified substantial burden on religious belief against interracial relationships).

              12. 406 U.S. 205 (1972).

              13. Justice Berger’s majority opinion expressly rejected the contention that the Free Exercise clause did not apply to general laws of uniform application. “[T]o agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under general applicability.” Id. at 220.

              14. A number of states exempt peyote use in religious ceremonies from criminal sanction. Shortly after the Smith decision, Oregon did so as well. Or. Rev. Stat. Ann. § 475.992(5) (Supp. 1996). The key issue from a free exercise standpoint though is not whether Oregon could make such an exemption, but whether the Constitution requires states to do so.

              15. 721 P.2d 445, 449-150 (Oreg. 1986).

              16. 494 U.S. 872 (1990). Justice Scalia’s majority opinion was joined by Chief Justice Renquist and Justices White, Stevens, and Kennedy. In many respects Justice Scalia’s approach of deference to legislative judgment on the necessity for a uniform rule of conduct harkens back to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which had upheld a requirement that all school children participate in a flag salute ceremony with no exceptions for those with religious objections. In that decision Justice Frankfurter wrote, “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” 310 U.S. at ___. The Gobitis decision was largely overruled by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating a mandatory flag salute in public schools as an undue infringement on free speech).

              The North Carolina supreme court ruled in 1967 that while constitutional protection extends to unorthodox, unusual, and unreasonable religious beliefs, it does not extend so far as to protect drug use, even if that use is believed to be mandated by Divine Law. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918 (1967).

              17. 494 U.S. 872, 885 (citations omitted).

              18. Id. at 888-89. The Court reiterated the principle that religion-neutral laws of general applicability need not be justified by a compelling state interest in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217, 2226 (1993).

              19. Id. at 905. Justice Blackmun’s dissent, joined by Justices Brennan and Marshall, would require an exemption if free exercise of religious beliefs are burdened unless there was a compelling interest that could not be served by less restrictive means. Id. at 907. The dissent concluded the test was not met in this instance given the limited sacramental use of peyote involved and the lack of any demonstrated health impacts or any widespread trafficking in peyote.

              20. 699 F.2d 303 (6th Cir. 1983).

              21. Lakewood, an older Cleveland suburb with few vacant areas, had a population of 62,000 and a land area of 5.5 square miles at the time of the litigation. Churches were allowed only in some multi-family residential and business districts, which comprised some ten percent of the city land area.

              22. The court proposed a two step inquiry to determine whether there was a substantial burden: (1) the nature of the religious observance at stake, with “fundamental tenets” and “cardinal principals” receiving greater protection; and (2) the nature of the burden, with indirect economic impacts being permissible. 699 F.2d at 306-08.

              23. 721 F.2d 729 (11th Cir. 1983).

              24. 840 F.2d 293 (5th Cir. 1988).

              25. The court also noted that the applicants
              had not been notified by the city that their application was to be considered
              (they attended only after a reporter told them the matter was being taken up
              that evening) and that the applicants were heard by the board only after a decision
              had been reached. The council gave no reasons for its denial. The lack of substantial
              evidence supporting its decision, lack of notice and opportunity for the applicant
              to present evidence, lack of findings, and apparent lack of adequate guiding
              standards in the ordinance would support a reversal on procedural due process
              grounds in many states, North Carolina included.

              26. “The burden placed on relatively impecunious Muslim students by the Starkville ordinance is more than incidental, and the ordinance leaves no practical alternatives for establishing a mosque in the city limits.” 840 F.2d at 302.

              27. The city’s approval of all nine other requests for exemptions and its failure to take any enforcement action against the neighboring Christian worship center—although it had a membership twice as large, only half the parking, and unlike the Islamic Center its services were audible from the street—led the court to conclude there was no rational basis for the denial.

              See also Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 741 F.Supp. 1522 (N.D. Ala. 1990), where the court held a refusal to rezone to allow construction of a church on an eleven acre tract in a low density residential area of the county impermissibly burdened free expression of religion. The zoning ordinance in question did not allow church use in many districts, essentially requiring a rezoning to an institutional zone for each proposed church location. In this instance the denial was not based on objective land use impacts, such as traffic, waste disposal, parking, buffers, lighting, signage, or aesthetics. The sole ground cited for denial was the vociferous opposition of neighbors. The court applied a Grosz analysis and concluded less restrictive measures were available, such as some set aside areas for churches or objective standards for rezoning to accommodate churches, so there was a greater burden on religion than was justified by the governmental interest being protected.

              Faculty Coordinators

              individual image for David W. Owens
              David W. Owens
              Gladys Hall Coates Professor of Public Law and Government
              owens@sog.unc.edu

              See Also

              Land-Use Regulation of Religious Uses
              • About the School
              • Faculty and Staff
              • Events Calendar
              • Driving Directions
              • Knapp Library
              • Employment
              • Contact Us
              • Gladys
              • Employee Intranet
              • UNC Home Page
              • Employee Login
              • Information Technology
              • Registration Account Portal
              • Accessibility
              • UNC Privacy Policy
              Knapp-Sanders Building
              Campus Box 3330, UNC Chapel Hill
              Chapel Hill, NC 27599-3330
              • T: 919.966.5381
              • F: 919.962.0654
              © Copyright 2025,
              The University of North Carolina at Chapel Hill