A Brief for the Free Exercise Clause

Abstract

What is the role of the constitutional promise of freedom of religion in late twentieth century America? As we enter the third century of life under the Constitution, the answer to this question is not clear, for the place of religion in the American polity has yet to be clearly demarcated. Consider a seemingly simple case. Mrs. Frances Quaring, a Nebraska farm housewife, believes that the Second Commandment prohibits her from having her photograph taken or from carrying or using photographs. The state of Nebraska, however, requires that applicants for a driver's license have their photographs taken and affixed to the license. The state prohibits driving without a valid driver's license. Thus, by state law Mrs. Quaring is denied that primary instrument of freedom and mobility in modern America— use of the automobile—because of her religious beliefs. Is Mrs. Quaring's mobility protected by the Constitutional guaranty of freedom of religion? The Supreme Court doesn't know. Five years ago it split four to four, and was thus unable to decide the case.