How sound is legal reasoning for religious-protection bills?

By Jeremy Leaming
First Amendment Center

Does the free-exercise clause of the First Amendment require special justification for government actions that impinge on citizens' religious practices?

Coalition for the Free Exercise of Religion members and some law professors argue that before the 1990 Smith decision (involving whether people fired for religious-ceremonial use of peyote could claim unemployment compensation), the Supreme Court had used the "compelling interest" and "least-restrictive means" tests in free exercise of religion claims.

Indeed, the legislative-history documents attached to the 1993 federal Religious Freedom Restoration Act said the act was intended "to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder," two religious-liberty cases.

But a close look at the Supreme Court's treatment of free-exercise claims shows that the coalition's argument that the court used the compelling-interest and least-restrictive-means tests until 1990 is somewhat disingenuous.

Tom McCoy, a Vanderbilt University law professor and constitutional law scholar, says that "nobody knows what the compelling-interest test means." McCoy noted that there are "five or six cases after Sherbert that don't use the compelling-interest test."

Polygamy and working the Sabbath
In 1878, in Reynolds v. U.S., the Supreme Court ruled that government had authority to regulate religiously motivated action as long as it had a rational basis for doing so. The court upheld a federal law banning polygamy by a Mormon whose religion required him to engage in that practice. The rational-basis legal standard was rather easy for the government to satisfy. In 1963, the court altered that standard in Sherbert v. Verner.

Sherbert involved a Seventh-Day Adventist who was fired for refusing to work on Saturday, the Sabbath day of her faith. Unable to find another job that did not require Saturday work, she filed for unemployment compensation. South Carolina officials, however, rejected her claim, saying that by refusing to work on Saturday she had declined suitable work and was therefore disqualified. She then sued the state, contending the denial of unemployment benefits had abridged her First Amendment right to freely exercise religion.

The compelling-interest and least-restrictive-means tests as laid out in RFRA is nowhere to found in Sherbert. Instead, as the Supreme Court pointed out in its Boerne ruling invalidating RFRA, the court in Sherbert applied a "balancing test" that did not require a "compelling government interest" to be supported by a regulation of the least-restrictive means possible.

In Sherbert, Justice William Brennan, writing for the majority, noted that South Carolina's decision to deny unemployment compensation to a person because of religious objections to a job must be supported by "some compelling state interest." Brennan, however, did not include in his compelling-interest test any mention of regulations being applied in the "least restrictive means" possible. Instead Brennan weighed South Carolina's interest in laws affecting unemployment compensation against the employee's free exercise of religion right.

School's out
The balancing test as used in Sherbert was again applied in 1972 when the Supreme Court ruled that a state may not require Amish parents to send their children to school beyond the eighth grade.

Chief Justice Warren Burger, writing for the majority in Wisconsin v. Yoder, noted that a state's "interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests ... ." In this situation, Amish parents of two children, ages 14 and 15, refused to send them to public school despite Wisconsin's compulsory-attendance law. The parents cited their faith as their reason.

Burger said the state's interest in compulsory public education, although compelling, was outweighed by the parents' religious liberty rights and constitutional rights to rear children as they saw fit. Burger did not reach the decision by arbitrarily applying a rigid legal standard, however. Instead, he examined the history of Amish education and decided that the state's compelling interest in providing education to children would not be diminished by allowing the Amish children to adhere to their faith.

"Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional 'mainstream'," Burger noted.

Scales of justice tip toward balance
Justice Kennedy, in Boerne, also noted that Sherbert's balancing test was used in cases involving claims of the free exercise of religion and "state unemployment compensation rules on three occasions where the balance tipped in favor of the individual."

In 1990, Scalia, writing for the majority in Smith, noted that the court's previous decisions "never held that an individual's religious beliefs excuse him from compliance" with a government action or law that might incidentally impinge a person's religious beliefs or practices.

The free-exercise clause of the First Amendment does, however, protect citizens against government actions and laws created with intent to regulate religious actions or beliefs, Scalia said.

"It would be true ... that a state would be 'prohibiting the free exercise [of religion]' if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display," Scalia wrote. "It would doubtless be unconstitutional, for example, to ban the casting of 'statutes that are to be used for worship purposes,' or to prohibit bowing down before a golden calf."

Justice Sandra Day O'Connor, in a Boerne dissent, argued that "Smith adopted an improper standard for deciding free exercise claims." According to O'Connor, Scalia misinterpreted the free-exercise clause in Smith.

"Contrary to the Court's holding in [Smith] ... the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment," she wrote. "Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law."

O'Connor, however, noted that the court's decisions prior to Smith employed more of a balancing standard that held "government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest."

Marci Hamilton, the constitutional-law scholar and attorney who argued against RFRA before the Supreme Court, says the Smith and O'Connor standards differ only slightly and that either standard "is likely to be a pragmatic balance of power in which neither the church nor the state hold an automatic upper hand in their inevitable struggle."

Both the standards, however, are radically different from what the Coalition for the Free Exercise of Religion proposed in RFRA, Hamilton notes.

"Under RFRA, whenever a law substantially burdened religious conduct, the government was required to prove that the law was prompted by a compelling interest and that it was the least-restrictive means of regulation as applied to that conduct," Hamilton said.

"By combining a biting compelling-interest test with a least-restrictive-means test, they have crafted a standard of review that compels exemptions from generally applicable laws. Under that theory, whenever government substantially burdens religious conduct, the Constitution requires government to exempt the religious believer from the impact of law."

Accidental interference
Despite the fact that the compelling-interest and least-restrictive-means tests have never been used by the judiciary — at least not in the way the coalition claims — coalition members, law professors, and various religious-liberty advocates continue to argue that religious liberty in America will remain seriously hampered until state legislatures enact religious-freedom protection bills.

"Religion is hurt severely by unintentional discriminatory laws," said Melissa Rogers, associate counsel of the Baptist Joint Committee, a member of the coalition. "Moreover, it is very hard to prove intentional discrimination. The proof is just not readily there."

David Wescoe, a spokesman for the California office of the American Jewish Congress and also a coalition member, said, "There is a feeling among the members that there is not enough protection for religious liberty. We want to clarify the standard for free exercise of religion in California."

Tom McCoy, the Vanderbilt law professor and constitutional law scholar, says the hue and cry for religious-freedom protection bills centers on "accidental interference with religion" by an array of state laws not intended to target religious persons or religious actions.

"Ninety-nine percent of interferences with religion are accidental," McCoy said. "We pass compulsory-vacation laws and never think it will interfere with Seventh-Day Adventists. Smith says that accidental interferences with religion are not covered by the free exercise clause.

"I do believe that Smith was wrongly decided," he said. "I do think the free-exercise clause should protect religious beliefs and actions from accidental governmental interference, unless government has a good reason. But I don't think Congress or legislatures can fix the problem. The only way to fix it is for Smith to be overruled."

McCoy does not believe, however, that religious-based objections to government actions or laws not intended to harm religion — such as zoning and compulsory education laws — should automatically be respected through the granting of exemptions.

Instead, McCoy believes the Supreme Court should use the legal standard it has employed in instances where free-speech rights have accidentally been infringed upon by government laws and actions apparently not meant to harm speech rights.

Courts should first ask whether the government law or action that subverts religious practices "was the result of an attempt by the majority to impose its religious preferences on nonconformist minority religions," McCoy said.

"If the impact on religion is a deliberate attempt to impose religious objectives on the legislative majority, the regulation is a per se violation of the free-exercise clause," he said. "If, however, the impact on religion was an unintended effect of a general regulation pursuing nonreligious objectives, the court must decide whether the unintended effect on religion is too great to be permitted under the free-exercise clause."

Daniel Conkle, an Indiana University law professor and constitutional law scholar, says he is not sure the "intermediate" legal standard McCoy proposes provides "enough constitutional protection for religious liberty or free speech."

A Supreme Court Justice also raised a question regarding the effect RFRA could have on the separation of church and state principle embodied in the First Amendment.

Justice John Paul Stevens, writing a concurring opinion in Boerne, concluded that RFRA subverted the separation of church and state, a claim that has been derided by the coalition.

"If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid enlargement of the structure," Stevens wrote. "Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment."

Melissa Rogers, associate general counsel for the Baptist Joint Committee and a coalition member, suggests Steven's argument is not credible because no other judge joined in it.

Marci Hamilton, who represented Boerne city officials, however, said little can be drawn from the fact that no other justice discussed the establishment clause — especially since the case was disposed of on federalism grounds.

"He (Stevens), along with five other justices disposed of RFRA's constitutionality on separation of powers and federalism grounds while the three in dissent urged reargument and rebriefing of the vitality of Smith," said Hamilton. "Significantly, none of the justices take issue with his concurrence. In fact, none of the justices opinions would preclude them from joining Justice Stevens' Establishment Clause reasoning if the issue of RFRA's application to federal law ever made it to the Supreme Court."