Religious Liberty (Update 2)

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Religious liberty in a broad sense—the liberty of persons to make decisions about religious matters—is central to both concepts in the first amendment's religion provision, free exercise and nonestablishment. The establishment clause secures a person's liberty to reject or refrain from religious activity. But religious liberty in a stricter, positive sense—the liberty to follow religion and engage in religious activity—is the particular concern of the free exercise clause and, where the religious activity involves expression, the freedom of speech guarantee as well.

The Supreme Court has upheld strong free speech protection for citizens' religious expression. Several recent decisions forbid the government to exclude the speech of private individuals or groups from a public institution or public forum solely because the speech is religious in content, including lamb ' s chapel v. center moriches school district (1993), capitol square review and advisory board v. pinette (1995), and rosenberger v. rector & visitors of university of virginia (1995).

Sharp controversy continues, however, over the constitutional protection of religious activity that is primarily conduct rather than speech. One narrower view holds that government has power to punish or restrict religiously motivated conduct as long as it does not single it out; that is, the free exercise clause gives religious believers no protection from laws that apply generally to certain conduct. The Court adopted this view—with some potentially significant limits and exceptions—in employment division, department of human resources of oregon v. smith (1990), holding that a state could apply its "generally applicable" criminal law against peyote use to Native American religious believers who used the drug in their worship services.

A broader view holds that the free exercise of religion requires government to have a strong reason for substantially restricting religious conduct, even when the restriction comes through a law that applies generally. This view, which held sway in the Court from 1963 into the late 1980s, would require the government to accommodate, or exempt, sincere religious practice unless the reason for restricting the practice was important or even "compelling" (the language of sherbert v. verner (1963) and wisconsin v. yoder (1972)).

According to the pro-accommodation view, the free exercise clause recognizes that religious believers claim a duty to a power outside (or above) the state—a belief prevalent at the time of the founding and enunciated, for example, in james madison'sMemorial and Remonstrance Against Religious Assessments (1785)—and such a competing allegiance is infringed as much by a general law as by one aimed at religion. Moreover, with today's increase in both government regulation and religious diversity, most instances of government suppression of religious exercise will result from general laws rather than deliberate discrimination.

Opponents answer that accommodation of religion in the form of exemptions from general laws wrongly favors religious motives over other motives for acting. They add that religious practice cannot be entirely unregulated (consider, for example, ritual human sacrifice), and say that there is no principled line for distinguishing laws that are sufficiently important to override religious freedom from laws that are not. Some opponents go so far as to claim that religious exemptions are constitutionally prohibited; others simply say they are not constitutionally required. Smith took the latter view, suggesting that legislatures could exempt religion but did not have to do so.

Since Smith, religious liberty issues have fallen into two categories. The first is how much protection for religious conduct remains under the free exercise clause as interpreted narrowly in Smith. The Court's standard left open the question of when a law is "generally applicable" and thus immune from challenge. Nearly every law contains some exception (for example, small-business exemptions from commercial regulations, or medicinal-use exceptions to drug laws). Exempting religious conduct whenever any secular exception exists would vindicate religious exercise as a preferred freedom, but it would also mean that Smith had little effect in expanding government's discretion. In church of lukumi babalu aye, inc. v. city of hialeah (1993), the Court applied Smith to invalidate laws that prohibited almost nothing but religiously motivated conduct—in that case, laws against animal killing that exempted numerous forms of killing (hunting, fishing, even kosher slaughter) but covered the ritual sacrifices of the Santería sect. But when a law contains some exceptions but still applies widely, the result under Smith is uncertain.

A related source of protection might be found in Smith 's suggestion that when a highly discretionary standard, leading to differing results in particular cases, is applied to restrict religion, there must be a compelling reason for the result. Finally, Smith indicated that when religious conduct implicates another constitutionally recognized interest (such as free speech or parents' control over their children's upbringing), the "hybrid" of the two rights should trigger strict judicial review. The scope of this argument is uncertain; but at the least, courts should give careful attention when religious persons or groups assert other constitutional rights such as speech or the freedom of association (as is common, for example, in cases involving the selection and discipline of clergy).

The second major religious liberty question after Smith has been the authority of other actors, especially legislatures, to protect religious conduct from generally applicable laws where the federal courts under Smith would not. Many such accommodations appear in particular federal and state statutes, such as exemptions of religious entities from some antidiscrimination legislation and exemptions of faith-healing practices from some child-endangerment laws. Such exemptions have been challenged as establishments because they give religious conduct special protection. It is one thing to say (as Smith does) that legislatures are not required to accommodate religion; it is quite another, and far more restrictive of religious liberty, to say that legislatures are not even permitted to accommodate.

The Court has upheld statutory accommodations in principle, but has disapproved them in some instances. Smith, with its emphasis on legislative discretion, expressly invited statutory exemptions; and decisions such as Corporation of Presiding Bishop of the Church of Latter-Day Saints v. Amos (1987) state that leaving religion unregulated does not necessarily advance religion to an unconstitutional degree. But other decisions have struck down religious exemptions as excessive favoritism for religion, especially where the measure shifted significant burdens to nonbelievers—for example, a tax exemption in Texas Monthly v. Bullock (1989) and a blanket exemption from Sabbath work in Estate of Thornton v. Caldor (1985). No explicit majority standard has emerged for this question. The most recent decision, board of education of kiryas joel school district v. grumet (1994), invalidated a New York school district created to accommodate the religious needs of children in one insular Hasidic Jewish sect, but it suggested again that accommodations that did not explicitly single out one faith would (at least sometimes) be permissible.

Meanwhile, Congress and state legislatures pursued another response to Smith:legislation not to protect religion from a particular law, but to restore the pre-Smith, religion-protective general standard for all claims. Under the religious freedom restoration act (RFRA), passed by Congress in 1993, all federal and state laws that "substantially burden" religious exercise once again had to be justified by a "compelling governmental interest." Some states have also passed their own statutes ("mini-RFRAs") protecting religious conduct against all but compelling interests.

Both the congressional RFRA and the state statutes will probably be challenged as excessively favoring and thus establishing religion—although more likely in particular applications than on their face. But RFRA also faced questions whether it fell within Congress's enumerated powers. The Court in City of Boerne v. Flores (1997) held that insofar as RFRA overrode state and local laws, it exceeded the power of Congress to enforce the provisions of the fourteenth amendment against states. Congress, the Court said, was limited to enforcing free exercise as the Court had interpreted it (the Smith rule), not the more religion-protective standard of RFRA.

After Boerne, RFRA's more religion-protective standard still may apply to federal laws, where the statute can be seen as simply an exercise of the power of Congress to amend each law it has enacted. Opponents claim in response that even as to federal laws, RFRA unconstitutionally invades the province of the judicial branch to declare general standards for religious liberty. The tension between Court and Congress over the proper general scope of religious liberty may continue for some time. Meanwhile, some state constitutions and mini-RFRA statutes reflect the more protective standard of religious liberty.

Thomas C. Berg


Berg, Thomas C. 1995 Slouching Toward Secularism: A Comment on Kiryas Joel School District v. Grumet. Emory Law Journal 44:433–499.

Eisgruber, Christopher L. and Sager, Lawrence G. 1997 Congressional Power and Religious Liberty After City of Boerne v. Flores. Supreme Court Review 1997:79–139.

Hamburger, Philip A. 1992 A Constitutional Right of Religious Exemption: An Historical Perspective. George Washington Law Review 60:915–948.

Laycock, Douglas 1990 The Remnants of Free Exercise. Supreme Court Review 1990:1–68.

Lupu, Ira C. 1992 The Trouble With Accommodation. George Washington Law Review 60:743–781.

Mc Connell, Michael W. 1990 The Origins and Historical Understanding of Free Exercise of Religion. Harvard Law Review 103:1409–1517.

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Religious Liberty (Update 2)

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