Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Supreme Court has recognized that the Free Exercise Clause "protect[s] religious observers against unequal treatment" and subjects laws that target the religious for "special disability" based on their "religious status" to strict scrutiny.  1 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring "[ministers] of the Gospel, or [priests] of any denomination whatever" from serving as a delegate to a state constitutional convention.  2 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one's religion on the "surrender" of the right to seek office as a delegate.  3
Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding for the resurfacing of playgrounds because of the church's religious affiliation.  4 Specifically, Chief Justice Roberts, on behalf of the Court,  5 noted that Missouri's policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the "most exacting scrutiny."  6 In so holding, the Court rejected the State of Missouri's argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.  7 Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against "indirect coercion or penalties on the free exercise of religion," as well as "outright" prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.  8 Moreover, the Court held that Missouri's policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.  9 As a result, the Court held that Missouri's policy violated the Free Exercise Clause.  10
A year after Trinity Lutheran, the Court suggested that it is equally unconstitutional for hostility to religion to play a role in the government's decisions about how to apply its laws.  11 In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who had, in the view of the state, violated those laws by refusing to make a cake for a same-sex wedding.  12 The Court held that the state had violated the Free Exercise Clause because the Colorado Civil Rights Commission had not considered the baker's case "with the religious neutrality that the Constitution requires."  13 As a general rule, the Court announced that "the delicate question of when the free exercise of [the baker's] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach."  14 The Court highlighted two aspects of the state proceedings that had, in its view, demonstrated impermissible religious hostility: first, certain statements by some of the Commissioners during the proceedings before the Commission  15; and second, "the difference in treatment between [the petitioner's] case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission."  16