– Intro: The First Am. bars government from making any law “prohibiting the free exercise” of religion. The Free Exercise Clause flatly forbids the outlawing any religious beliefs. Normally, Free Exercise Clause problems arise when the government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to dictated by someone’s religious belief (as in Scherbert), or (2) compels or encourages conduct which is forbidden by someone’s religious belief (an issue raised by Ps in the Barnett/flag salute case, but not dealt with in the casebook). Prior to the 1960s, whatever protection of religious liberty did come from the Court tended to come from the Free Speech rather than Free Exercise Clause. For instance, in Barnett (1943), a group of Jehovah’s Witnesses attacked regulations requiring students to salute the flag. The Court invalidated the regulations, but on free speech rather than free exercise grounds – the state had no power to “force citizens to confess by word or act” their faith in any particular view of “politics, nationalism, religion or other matter of opinion,” and the right not to be subjected to such compulsion existed whether one’s disagreement came from religion or from other sources. Since 1960s, the Court has tended to emphasize the Free Exercise Clause rather than the Free Speech clause.
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