Mandated Exemptions for Religious Conduct.
Litigation under the Free Exercise Clause, therefore, has largely concerned whether the government must exempt religiously motivated conduct from the application of a general law that conflicts with religious conscience. The question is whether the clause guarantees believers or churches the right to refuse to perform a legally required act that violates their religious beliefs (for example, employing women clergy on a nondiscriminatory basis) or the right to perform a legally prohibited act required by their beliefs (for example, ingesting an illegal drug as a sacrament). If such a guarantee exists, it cannot be absolute—consider the case of ritual human sacrifice—and thus the precise scope of mandated exemptions poses challenging questions.
Reynolds, the 1879 decision on Mormon polygamy, rejected a constitutionally compelled exemption and explicitly limited free exercise protection to beliefs alone. But the belief-conduct distinction was overridden in two modern decisions. In Sherbert v. Verner (1963) the Court ordered a state to pay unemployment benefits to a Seventh-Day Adventist even though she would not accept an available job, as the unemployment compensation law required, because it included work on Saturday, her Sabbath. The state asserted a compelling interest in protecting the integrity of the compensation fund against depletion by those not truly looking for work. But the Court held that government could burden a fundamental right like the free exercise of religion only if it was protecting a compelling interest by the least restrictive means possible, and it found that the state had not met this burden. Several later decisions have affirmed this holding concerning unemployment benefits.
The second case, *Wisconsin v. Yoder (1972), held that Amish parents were not required to send their children to school past the eighth grade in violation of their religious beliefs because the state failed to show that its compelling interests in education—ensuring self-sufficiency and training for citizenship—would be significantly undermined by granting the Amish an exemption from compulsory attendance laws. Yoder reasoned that the state must offer a compelling reason not just for the law in question, but also for denying an exemption to the particular religious objector. This substantially raised the government’s burden of justifying any law that incidentally burdened religious exercise.
The Sherbert-Yoder doctrine of exemptions can be said to protect the value of liberty or private choice in religious matters, since even a nondiscriminatory law can inflict serious burdens on religion in application. Exemption also arguably comports more with strong church-state separation by blocking government regulation of religion. The implications of equality for religious exemptions are more ambiguous. Mandatory exemptions can serve to equalize religions in practice, since minority religions are more likely to conflict with general legal norms than are majority or acculturated faiths. But if equality means how a law on its face treats religious versus nonreligious activities—what law professor Douglas Laycock calls “formal” equality—then exemptions limited to religiously motivated conduct are not required and may even be improper.
After Yoder, the justices soon began retreating from a strong exemptions position, partly because some were attracted to formal equality, partly because of practical challenges that the Sherbert-Yoder doctrine posed when combined with other holdings of the Court. Religious objectors usually constitute a small minority whose disobedience of general legislation would rarely undermine its general effectiveness. Moreover, United States v. Ballard (1944) effectively foreclosed judicial inquiry into the sincerity or reasonableness of religious beliefs. Thus, when read with Ballard, Sherbert and Yoder appeared to require that an exemption from law be granted to nearly any religious objector who asked for one— a scope of freedom that many justices began to find too broad.
Constitutionally mandated exemptions pose less of a difficulty when the benefit to be gained from exemption is something few people would want, such as freedom to keep children home from school. In United States v. Lee (1982), however, the (p. 844) Amish asked for a free exercise exemption from paying social security taxes. Perhaps fearing a tidal wave of exemption lawsuits by people claiming that their religious beliefs forbade paying various taxes, the Court found the government’s interest in denying the exemption to be compelling. Lee was just the first step away from exemptions. In quick succession, the Court denied the claims of a Native American who objected to his daughter receiving a social security number, an Orthodox Jew who sought to wear a yarmulke in violation of Air Force uniform regulations, and a Native American tribe that objected to construction of a federal highway that would prevent them from worshiping on lands they viewed as sacred. These three decisions refused to find a constitutionally relevant burden on religion in the first place, so that government need offer no compelling reason for its action.
In Employment Division v. Smith (1990), the Court did away with mandatory exemptions in a wide range of cases. Two members of the Native American Church were denied unemployment compensation after they were dismissed from their jobs for ingesting the drug peyote at a church ritual. The state argued that because the use of peyote was criminal under state law, the Native Americans had committed “work-related misconduct” and could be denied benefits. The Native Americans argued that the Free Exercise Clause as interpreted in Sherbert prevented the state from applying the misconduct standard to their religious practice. But the Court held that the denial of compensation was constitutional simply because it rested on a “neutral law of general applicability,” the criminal prohibition against peyote use. Under this rule, the importance of the state’s interest or the degree of imposition on religious practice were irrelevant.
The majority opinion by Justice Antonin *Scalia emphasized primarily that judges could not draw principled lines for balancing religious practices against competing governmental interests. In dealing with precedent, Smith recast Yoder as a case involving a “hybrid” of free exercise combined with substantive due process rights of parental and family autonomy. Sherbert was distinguished on the ground that it involved not an across-the-board prohibition, but the general standard of “good cause” that allowed refusals of work for some secular reasons and therefore must recognize religious reasons as well. If taken broadly, Smith makes the Free Exercise Clause essentially redundant to other constitutional rights such as free speech.
The terms of free exercise law are now set by reactions to and interpretations of Smith. Congress reacted negatively by passing the Religious Freedom Restoration Act of 1993 (RFRA), which reinstituted the Sherbert-Yoder “compelling interest” test as a statutory protection against “substantial burdens” on religious exercise. However, in *City of Boerne v. Flores (1997) the Court struck down RFRA as applied to state and local actions on the ground that it exceeded Congress’s powers to enforce *Fourteenth Amendment rights. Congress, the Court said, could not legislate based on a broader understanding of free exercise than the Court had enunciated in Smith.
Boerne leaves open several questions about the governing test. RFRA may remain valid as applied to actions of the federal government, and several states have passed their own versions of RFRA. A newer statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), imposes strict judicial scrutiny on state and local laws concerning zoning, architectural preservation, and prison conditions. All of these statutes have been challenged on the ground that exemptions limited to religious conduct, without exemptions for comparable secular conduct, violate the Establishment Clause. The Court granted certiorari in Cutter v. Wilkinson in 2004 to address the Establishment Clause challenge to RLUIPA in the prison context. The case may also raise questions about congressional authority to pass the statute under the *Commerce Power and the *Spending Power.
Meanwhile, constitutional free exercise claims themselves continue to be governed by Employment Division v. Smith. Interpretation of Smith’s rule has centered on what makes a law “neutral and generally applicable.” Although most lower courts have read the rule to eliminate exemptions, some have held that when a law makes exceptions for secular conduct, it is not generally applicable and religious practice must be exempt as well. Since most laws include some exceptions, this approach would strip Smith of much of its effect. The Court likely will have to resolve this question soon.
Smith also approved the legislature’s ability to write religious exemptions into laws, a practice that the Court had upheld against an Establishment Clause challenge in Corporation of Presiding Bishop v. Amos (1987). Discretion for legislative exemptions when combined with the elimination of constitutionally mandated exemptions may mean that politically powerful religions will be able to lobby successfully for protection while smaller or powerless faiths will be dependent on the goodwill of political majorities. Sometimes legislatures protect minority practices—sacramental peyote use is exempted in many states—but other times they do not, as the relentless federal campaign against Mormon polygamy showed.
A final area of free exercise doctrine relates to adjudication by secular courts of disputes (p. 845) within a religious organization. Situations include contests between factions in a church over who controls the property or offices of the church and claims by individual employees or members that the church has discriminated against them or otherwise treated them illegally. The Court has suggested two approaches to such cases. Under the first, enunciated in Watson v. Jones (1872), the court defers to the resolution of the matter by the church’s governing authority, whether that is a hierarchical tribunal or the majority of the individual congregation. Under the second approach, approved in Jones v. Wolf (1979), the court may apply secular legal principles even if these override the church authority’s decision as long as the secular principles involve no interpretation of religious doctrine. If doctrine must be interpreted, the court must defer to the interpretation by the church’s governing structure.
State courts resolving church property disputes may choose either of these approaches, and many now apply principles of secular property and trust law. By contrast, in disputes directly involving clergy, the Court, and lower courts even after Employment Division v. Smith, have deferred to church authorities rather than apply secular employment laws. The reasoning is that judicial intervention would place the court on one side of a religious controversy and would likely require the court to resolve theological questions such as whether a clergyman performed his job competently. But as to less central religious positions, church autonomy is less likely to prevail over secular laws, unless the case requires determinations of religious doctrine.
Christopher L. Eisgruber and Lawrence G. Sager, “Congressional Power and Religious Liberty after City of Boerne v. Flores,” Supreme Court Review (1997): 79–139. Frederick M. Gedicks, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence (1995). Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Analysis,” George Washington Law Review 60 (1992): 915–948. John C. Jeffries, Jr., and James E. Ryan, “A Political History of the Establishment Clause,” Michigan Law Review 100 (2001): 279–370. Douglas Laycock, “Formal, Substantive, and Disaggregated Neutrality Toward Religion,” DePaul Law Review 39 (1990): 993–1022. Ira C. Lupu, “Government Messages and Government Money: Santa Fe, Mitchell v. Helms, and the Arc of the Establishment Clause,” William and Mary Law Review 42 (2001): 771–822. Michael W. McConnell, “Religious Freedom at a Crossroads,” University of Chicago Law Review 59 (1992): 115–194. Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1409–1517. Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995). John Witte, Jr., “The Essential Rights and Liberties of Religion in the American Constitutional Experiment,” Notre Dame Law Review 71 (1996): 371–445.
Frederick Mark Gedicks; revised by Thomas C. Berg