chevron-down Created with Sketch Beta.
January 01, 2013

Religion Governed by the Rule of Law

by Marci A. Hamilton, Lana Seligsohn

The Free Exercise Clause does not create a right to avoid neutral, generally applicable laws. There is no First Amendment right to avoid the law that applies to every other actor. The Supreme Couart affirmed this principle in Employment Division v. Smith, 494 U.S. 872 (1990), often referred to as the “peyote decision.” This case involved drug counselors who were fired for using the illegal drug peyote and were lawfully denied unemployment compensation because of their drug use. Laws such as the one at issue in Smith, that apply to actions without reference to belief or religion, are constitutional. The case established that a neutral, generally applicable law does not violate the Free Exercise Clause even if the law burdens religious conduct. Religious believers are governed by the rule of law. This principle was first announced by the Supreme Court in Reynolds v. United States, 98 U.S. 145 (1878), which held that a member of the Church of Jesus Christ of Latter-day Saints did not have a free exercise defense to the anti-polygamy law.

In fact, Smith did little to change the free exercise landscape. (Marci A. Hamilton, Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse, 32 Cardozo L. Rev. 1671 (2011).) As a majority of the Supreme Court held, the “vast majority” of the Court’s free exercise cases had upheld neutral, generally applicable laws. However, academics and religious groups asserted that Smith radically departed from governing jurisprudence and that the Court had adopted a newly unsympathetic theory against religious believers. Within weeks of the decision in 1990, religious groups started to lobby members of Congress, who enacted the Religious Freedom Restoration Act of 1993 (RFRA). Under RFRA, the believer bears the initial burden of proving a law imposes a “substantial burden” on religious conduct. If the believer succeeds, the burden shifts to the government to prove the law serves a “compelling interest” in the “least restrictive means.”

In 1997, the Supreme Court struck down RFRA in City of Boerne v. Flores, 521 U.S. 507 (1997). The Court held that RFRA violated the separation of powers, was beyond the power of Congress under section 5 of the Fourteenth Amendment, and failed to follow the appropriate procedures for constitutional amendment.

Despite the Court’s comprehensive analysis, Congress treated the decision as holding only that RFRA violated federalism, or states’ rights, and reenacted RFRA to apply solely to federal law. A constitutional challenge to RFRA solely as applied to federal law has not made its way to the Supreme Court. In Gonzales v. O Centro Espirita Benficiente Uniao do Vegetal, 546 U.S. 418 (2006), the Court upheld a preliminary injunction against federal drug laws for a religious group that uses a hallucinogenic tea during worship services, addressing the government’s lack of compelling interest in the uniform application of the Controlled Substances Act, and did not preclude individualized assessments of application.

Most recently, RFRA was invoked by the military psychiatrist who opened fire at Fort Hood in 2009, who argued during his military trial that he should not have to shave his beard. See Jennifer Rizzo, Court Says Hasan Can Be Shaved, CNN Security Clearance (Oct. 18, 2012), He lost because he could not prove that maintaining his beard was an expression of a sincerely held religious belief, and even if he could prove his sincerity, the Court found that the government’s interest in following the Army’s clean-shaven grooming policy was compelling.

Once RFRA was no longer available for state law, religious organizations fanned out to lobby state legislatures to enact so-called “mini-RFRAs.” At this point, sixteen states have some version of an RFRA. Alabama’s, which is a state constitutional amendment, is the most extreme as it requires the plaintiff only to show a “burden” as opposed to a “substantial burden,” while other states, like Pennsylvania, reduced its scope by exempting particular areas of the law from its coverage.

The enthusiasm for state-enacted RFRAs has slowed as organizations dedicated to law enforcement, civil rights, reproductive rights, and child protection have lobbied against them. Most recently, a North Dakota ballot initiative failed to pass. Related organizations defeated the Religious Liberty Protection Act, which was intended to replace RFRA. The push for a federal free exercise statute did not abate, however, and in 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act, which applies the RFRA standard to state and local land use laws and state-run institutions, like prisons. It has been the basis of numerous lawsuits against prison authorities and cities. On the land use side, it has had a pronounced impact on residential neighborhoods.

Currently, religious liberty is governed by several standards at once. The Constitution mandates one set of rights while federal or state statutes mandate a quite different standard. It can be even more complicated in states where the state constitution is interpreted differently from the federal Constitution.

RFRAs offer a defense to neutral, generally applicable laws and therefore create a privilege for religious entities in hard-to-defend contexts, such as child protection and welfare. Most states provide religious exemptions from a parade of grievances set forth by religious entities and believers, including exemptions for vaccinations, medical neglect, and reproductive health care conscience clauses, which adds yet another level of complexity to this evolving arena.