As described above, the Court gradually abandoned its strict belief-conduct distinction, and developed a balancing test to determine when a uniform, nondiscriminatory requirement by government mandating action or nonaction by citizens must allow exceptions for citizens whose religious scruples forbid compliance. Then, in 1990, the Court reversed direction in Employment Division v. Smith,262 confining application of the “compelling interest” test to a narrow category of cases.
In early cases the Court sustained the power of a State to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag,263 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds.264 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so,265 only in later cases to cast doubt on this resolution by statutory interpretation,266 and still more recently to leave the whole matter in some doubt.267
262 494 U.S. 872 (1990).
263 Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
264 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). On the same day, the Court held that a State may not forbid the distribution of literature urging and advising on religious grounds that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943). In 2004, the Court rejected for lack of standing an Establishment Clause challenge to recitation of the Pledge of Allegiance in public schools. Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004).
265 See United States v. Schwimmer, 279 U.S. 644 (1929); United States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 283 U.S. 636 (1931) (all interpreting the naturalization law as denying citizenship to a conscientious objector who would not swear to bear arms in defense of the country), all three of which were overruled by Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (upholding expulsion from state university for a religiously based refusal to take a required course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because as conscientious objector he could not take required oath).
266 United States v. Seeger, 380 U.S. 163 (1965); see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970); and see id. at 344 (Justice Harlan concurring).
267 Gillette v. United States, 401 U.S. 437 (1971) (holding that secular considerations overbalanced free exercise infringement of religious beliefs of objectors to particular wars).
Braunfeld v. Brown268 held that the free exercise clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant who observed Saturday as the Sabbath and was thereby required to be closed two days of the week rather than one. This requirement did not prohibit any religious practices, the Court’s plurality pointed out, but merely regulated secular activity in a manner making religious exercise more expensive.269 “If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.”270
Within two years the Court in Sherbert v. Verner271 reversed this line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. This denial of benefits could be upheld, the Court said, only if “her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden on the free exercise of appellant’s religions may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . .”'272 First, the disqualification was held to impose a burden on the free exercise of Sherbert’s religion; it was an indirect burden and it did not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice.273 Second, there was no compelling interest demonstrated by the State. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, “it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”274
268 366 U.S. 599 (1961). See section on “Sunday Closing Laws,” supra, for application of the establishment clause.
269 366 U.S. at 605-06.
270 366 U.S. at 607 (plurality opinion). The concurrence balanced the economic disadvantage suffered by the Sabbatarians against the important interest of the State in securing its day of rest regulation. McGowan v. Maryland, 366 U.S. at 512- 22. Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 610 (Justice Brennan), 616 (Justice Stewart).
271 374 U.S. 398 (1963).
272 374 U.S. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963).
273 374 U.S. at 403-066.
274 374 U.S. at 407. Braunfeld was distinguished because of “a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers.” That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. Id. at 408-09. Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 417 (Justice Stewart concurring), 418 (Justice Harlan and White dissenting).
Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board275 involved a Jehovah’s Witness who quit his job when his employer transferred him from a department making items for industrial use to a department making parts for military equipment. While his belief that his religion proscribed work on war materials was not shared by all other Jehovah’s Witnesses, the Court held that it was inappropriate to inquire into the validity of beliefs asserted to be religious so long as the claims were made in good faith (and the beliefs were at least arguably religious). The same result was reached in a 1987 case, the fact that the employee’s religious conversion rather than a job reassignment had created the conflict between work and Sabbath observance not being considered material to the determination that free exercise rights had been burdened by the denial of unemployment compensation.276 Also, a state may not deny unemployment benefits solely because refusal to work on the Sabbath was based on sincere religious beliefs held independently of membership in any established religious church or sect.277
275 450 U.S. 707 (1981).
276 Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).
277 Frazee v. Illinois Dep't of Employment Security, 489 U.S. 829 (1989). Cf. United States v. Seeger , 380 U.S. 163 (1965) (interpreting the religious objection exemption from military service as encompassing a broad range of formal and personal religious beliefs).
The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. The first two such cases involved the Amish, whose religion requires them to lead a simple life of labor and worship in a tight-knit and self-reliant community largely insulated from the materialism and other distractions of modern life. Wisconsin v. Yoder278 held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause. The Court first determined that the beliefs of the Amish were indeed religiously based and of great antiquity.279 Next, the Court rejected the State’s arguments that the Free Exercise Clause extends no protection because the case involved “action” or “conduct” rather than belief, and because the regulation, neutral on its face, did not single out religion.280 Instead, the Court went on to analyze whether a “compelling” governmental interest required such “grave interference” with Amish belief and practices.281 The governmental interest was not the general provision of education, inasmuch as the State and the Amish were in agreement on education through the first eight grades and since the Amish provided their children with additional education of a primarily vocational nature. The State’s interest was really that of providing two additional years of public schooling. Nothing in the record, felt the Court, showed that this interest outweighed the great harm which it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.282
But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee,283 the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs.284 Compulsory payment of taxes was necessary for the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer.
278 406 U.S. 205 (1972).
279 406 U.S. at 215-19. Why the Court felt impelled to make these points is unclear, since it is settled that it is improper for courts to inquire into the interpretation of religious belief. E.g., United States v. Lee, 455 U.S. 252, 257 (1982).
280 406 U.S. at 219-21.
281 406 U.S. at 221.
282 406 U.S. at 221-29.
283 455 U.S. 252 (1982).
284 The Court’s formulation was whether the limitation on religious exercise was “essential to accomplish an overriding governmental interest.” 455 U.S. at 257-58. Accord, Hernandez v. Commissioner, 490 U.S. 680, 699-700 (1989) (any burden on free exercise imposed by disallowance of a tax deduction was “justified by the ‘broad public interest in maintaining a sound tax system’ free of ‘myriad exceptions flowing from a wide variety of religious beliefs”').
“A compelling governmental interest” was also found to outweigh free exercise interests in Bob Jones University v. United States,285 in which the Court upheld the I.R.S.’s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government’s “fundamental, overriding interest in eradicating racial discrimination in education”—found to be encompassed in common law standards of “charity” underlying conferral of the tax exemption on “charitable” institutions— “substantially outweighs” the burden on free exercise. Nor could the schools’ free exercise interests be accommodated by less restrictive means.286
In other cases the Court found reasons not to apply compelling interest analysis. Religiously motivated speech, like other speech, can be subjected to reasonable time, place, or manner regulation serving a “substantial” rather than “compelling” governmental interest.287 Sherbert’s threshold test, inquiring “whether government has placed a substantial burden on the observation of a central religious belief or practice,”288 eliminates other issues. As long as a particular religion does not proscribe the payment of taxes (as was the case with the Amish in Lee), the Court has denied that there is any constitutionally significant burden resulting from “imposition of a generally applicable tax [that] merely decreases the amount of money [adherents] have to spend on [their] religious activities.”289 The one caveat the Court left—that a generally applicable tax might be so onerous as to “effectively choke off an adherent’s religious practices”290 —may be a moot point in light of the Court’s general ruling in Employment Division v. Smith, discussed below.
285 461 U.S. 574 (1983).
286 461 U.S. at 604.
287 Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas to solicit at fixed booth sites on county fair grounds is a valid time, place, and manner regulation, although, as the Court acknowledged, id. at 652, peripatetic solicitation was an element of Krishna religious rites.
288 As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).
289 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to perceive how application of minimum wage and overtime requirements would burden free exercise rights of employees of a religious foundation, there being no assertion that the amount of compensation was a matter of religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (questioning but not deciding whether any burden was imposed by administrative disallowal of deduction for payments deemed to be for commercial rather than religious or charitable purposes).
290 Jimmy Swaggart Ministries, 493 U.S. at 392.
The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals’ religious beliefs, on the other. Sherbert’s compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass'n291 held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: “'the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”'292 Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping.293 It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government’s recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections.294
Compelling interest analysis is also wholly inapplicable in the context of military rules and regulations, where First Amendment review “is far more deferential than . . . review of similar laws or regulations designed for civilian society.”295 Thus the Court did not question the decision of military authorities to apply uniform dress code standards to prohibit the wearing of a yarmulke by an officer compelled by his Orthodox Jewish religious beliefs to wear the yarmulke.296
291 485 U.S. 439 (1988).
292 485 U.S. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).
293 Bowen v. Roy, 476 U.S. 693 (1986).
294 “In neither case . . . would the affected individuals be coerced by the Govern-ment’s action into violating their religious beliefs; nor would either governmental action penalize religious activity.” Lyng, 485 U.S. at 449.
295 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
296 Congress reacted swiftly by enacting a provision allowing military personnel to wear religious apparel while in uniform, subject to exceptions to be made by the Secretary of the relevant military department for circumstances in which the apparel would interfere with performance of military duties or would not be “neat and conservative.” Pub. L. 100-180, § 508(a)(2), 101 Stat. 1086 (1987); 10 U.S.C. § 774.
A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are “valid if . . . reasonably related to legitimate penological interests.”297 Thus because general prison rules requiring a particular category of inmates to work outside of buildings where religious services were held, and prohibiting return to the buildings during the work day, could be viewed as reasonably related to legitimate penological concerns of security and order, no exemption was required to permit Muslim inmates to participate in Jumu'ah, the core ceremony of their religion.298 The fact that the inmates were left with no alternative means of attending Jumu'ah was not dispositive, the Court being “unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”299
Finally, in Employment Division v. Smith300 the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are “generally applicable” when they apply across the board regardless of the religious motivation of the prohibited conduct, and are “not specifically directed at . . . religious practices.”301 The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work “without good cause.” Sherbert and other unemployment compensation cases thus “stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”302 Wisconsin v. Yoder and other decisions holding “that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action” were distinguished as involving “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections” such as free speech or “parental rights.”303 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, then, the Free Exercise Clause affords no basis for exemption from a “neutral, generally applicable law.” As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in “the political process.”304
297 O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) ).
298 O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
299 482 U.S. at 351-52 (also suggesting that the ability of the inmates to engage in other activities required by their faith, e.g., individual prayer and observance of Ramadan, rendered the restriction reasonable).
300 494 U.S. 872 (1990) (holding that state may apply criminal penalties to use of peyote in a religious ceremony, and may deny unemployment benefits to persons dismissed from their jobs because of religiously inspired use of peyote).
301 494 U.S. at 878.
302 494 U.S. at 884.
303 494 U.S. at 881.
304 494 U.S. at 890.
The ramifications of Smith are potentially widespread. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment,305 but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of the Lukumi Babalu Aye v. City of Hialeah: “our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”306 Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression.307 The result is equal protection, but not substantive protection, for religious exercise.308 The Court’s approach also accords less protection to religiously-based conduct than is accorded expressive conduct that implicates speech but not religious values.309 On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O'Connor warned, result in less protection for small, unpopular religious sects.310
305 This much was made clear by Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), striking down a city ordinance that prohibited ritual animal sacrifice but that allowed other forms of animal slaughter.
306 508 U.S. 520, 531 (1993).
307 This latter condition derives from the fact that the Court in Swaggart distinguished earlier decisions by characterizing them as applying only to flat license fees. 493 U.S. at 386. See also Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 39-41.
308 Justice O'Connor, concurring in Smith, argued that “the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause.” 494 U.S. at 901.
309 Although neutral laws affecting expressive conduct are not measured by a “compelling interest” test, they are “subject to a balancing, rather than categorical, approach.” Smith, 494 U.S. at 902 (O'Connor, J., concurring).
310 494 U.S. at 902-03.
Because of the broad ramifications of Smith, the political processes were soon used in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),311 Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.”312 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores313 held the Act to be unconstitutional as applied to the states. In applying RFRA to the states Congress had utilized its power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the due process clause. But the Court held that RFRA exceeded Congress’ power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. “Congress,” the Court said, “does not enforce a constitutional right by changing what the right is.”314 Moreover, it said, RFRA “reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved ... [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”315 “RFRA,” the Court concluded, “contradicts vital principles necessary to maintain separation of powers and the federal balance.”316
311 Pub. L. 103-141, 107 Stat. 1488 (1993); 42 U.S.C. §§ 2000bb to 2000bb-4.
312 Pub. L. 103-141, § 2(b)(1) (citations omitted). Congress also avowed a purpose of providing “a claim or defense to persons whose religious exercise is substantially burdened by government.” §2(b)(2).
313 521 U.S. 507 (1997).
314 521 U.S. at 519.
315 521 U.S. at 533-34.
316 521 U.S. at 536.
Boerne did not close the books on Smith, however, or even on RFRA. Although Boerne held that RFRA was not a valid exercise of Fourteenth Amendment enforcement power as applied to restrict states, it remained an open issue whether RFRA may be applied to the federal government, and whether its requirements could be imposed pursuant to other powers. Several lower courts answered these questions affirmatively,16 and the Supreme Court has applied RFRA to the federal government without addressing any constitutional questions.17
Congress responded to Boerne by enacting a new law purporting to rest on its commerce and spending powers. The Religious Land Use and Institutionalized Persons Act (RLUIPA)18 imposes the same strict scrutiny test struck down in Boerne but limits its application to certain land use regulations and to religious exercise by persons in state institutions.19 In Cutter v. Wilkinson,20 the Court upheld RLUIPA’s prisoner provision against a facial challenge under the Establishment Clause, but it did not rule on congressional power to enact RLUIPA. The Court held that RLUIPA “does not, on its face, exceed the limits of permissible government accommodation of religious practices.”21 Rather, the provision “fits within the corridor” between the Free Exercise and Establishment Clauses, and is “compatible with the [latter] because it alleviates exceptional government-created burdens on private religious exercise.”22
16 See, e.g., In re Young, 141 F.3d 854 (8th Cir. 1998), cert. denied, 525 U.S. 811 (1998) (RFRA is a valid exercise of Congress’ bankruptcy powers as applied to insulate a debtor’s church tithes from recovery by the bankruptcy trustee); O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003) (RFRA may be applied to require the Bureau of Prisons to accommodate religious exercise by prisoners); Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) (RFRA applies to Bureau of Prisons).
17 Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) (affirming preliminary injunction issued under RFRA against enforcement of the Controlled Substances Act to prevent the drinking of a sacramental tea that contains a hallucinogen regulated under the Act).
18 Pub. L. 106-274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq.
19 The Act requires that state and local zoning and landmark laws and regulations which impose a substantial burden on an individual’s or institution’s exercise of religion be measured by a strict scrutiny test, and applies the same strict scrutiny test for any substantial burdens imposed on the exercise of religion by persons institutionalized in state or locally run prisons, mental hospitals, juvenile detention facilities, and nursing homes. Both provisions apply if the burden is imposed in a program that receives federal financial assistance, or if the burden or its removal would affect commerce.
20 544 U.S. 709 (2005).
21 544 U.S. at 714.
22 544 U.S. at 720.
Last modified: June 9, 2014