The following rules summarize the current interpretation of the First Amendment guaranty of religious freedom, in light of the most recent Supreme Court decisions and other relevant precedent.
RULE #1. It will be difficult for religious organizations to challenge neutral laws of general applicability that burden religious practices or beliefs, because such laws are presumably valid whether or not supported by a compelling government interest.
Rule #1 is based on the Supreme Court’s decisions in the Smith and City of Boerne cases. RFRA’s attempt to establish a “compelling government interest” requirement in order to justify governmental infringements upon religion was declared unconstitutional by the Court in the City of Boerne ruling.
RULE #2. Laws that are not “neutral” towards religion, or that are not of “general applicability,” will violate the First Amendment guaranty of religious freedom unless supported by a compelling government interest.
The Court’s repeal of the “compelling state interest” requirement in the Smith case applied only in the context of neutral laws of general applicability. In 1993, the Court clarified the meaning of these important terms.49 Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).It also clarified the meaning of a “compelling state interest.”
neutrality
The Court ruled that a law that is not neutral “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” It is very important to define neutrality. The Court noted that “[i]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” It continued:
There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.
A law may not be neutral even though it is neutral “on its face.” The Court observed:
The free exercise clause … “forbids subtle departures from neutrality,” and “covert suppression of particular religious beliefs.” Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The free exercise clause protects against governmental hostility which is masked, as well as overt. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.
In evaluating the neutrality of a government action, the courts should consider “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, as well as the legislative or administrative history, including contemporaneous statements made by members of the decision-making body,” to determine if the intent was to single out religious organizations or believers for unfavorable treatment.
general applicability
The Court ruled that a law that is not of general applicability “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” This is so even if the law is neutral. Neutrality and general applicability are separate considerations. If a law fails either, then it must be supported by a compelling governmental interest in order to justify a negative impact on religious practices. With regard to the concept of “general applicability,” the Court made the following clarification:
All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The free exercise clause “protects religious observers against unequal treatment,” and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the free exercise clause.
The court further observed that “in circumstances in which individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reason.” In other words, if a law of general applicability contains some non-religious exceptions, it cannot deny an exemption to religious institutions (in cases of religious hardship) without a compelling reason.
compelling state interest
The Court emphasized the high standard that a law or governmental practice must satisfy that burdens religious practice and that is either not neutral or not generally applicable:
A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance interests of the highest order and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “watered … down” but “really means what it says.” A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.
The Court then proceeded to give one of its most detailed interpretations of the concept of a “compelling governmental interest”:
Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that “a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited.”
RULE #3. Neutral laws of general applicability that infringe upon a second constitutional right (in addition to religious freedom) will be unconstitutional unless supported by a compelling government interest.
In the Smith case the Supreme Court observed that the compelling government interest test is triggered if a neutral and generally applicable law burdens not only the exercise of religion, but some other First Amendment right (such as speech, press, or assembly) as well. The Court observed, “The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press. …” In other words, if a neutral and generally applicable law or governmental practice burdens the exercise of religion, then the compelling governmental interest standard can be triggered if the religious institution or adherent can point to some other First Amendment interest that is being violated. In many cases, this will not be hard to do. For example, the First Amendment guaranty of free speech often will be implicated when a law or governmental practice burdens the exercise of religion. The same is true of the First Amendment guarantees of free press and assembly.
RULE #4. The government may not refuse to extend a system of exemptions to cases of religious hardship without compelling reason.
In the Smith case the Supreme Court observed, “[O]ur decisions in the unemployment cases 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.”
RULE #5. Every state constitution has some form of protection for religious freedom. In some cases, these protections are more comprehensive than under the federal Constitution. State constitutional protections in some cases may provide religious organizations with additional protections. Additionally, more than half of the country’s state legislatures have adopted their own versions of the federal RFRA.
Churches and religious adherents whose First Amendment right to the free exercise of religion is not violated by a neutral law of general applicability may claim that their state constitution’s guaranty of religious freedom has been violated. In states where a RFRA has been adopted, churches and individuals also may have the ability to file a lawsuit making a similar claim based upon their respective state’s law.
RULE #6. Government may never interfere with an individual’s right to believe whatever he or she wants. Only religiously-motivated conduct may be regulated, in accordance with the previous rules.
These rules are illustrated by the following examples.
Examples
• A state law prohibits the issuance of securities by any organization unless the securities are registered with the state securities commissioner. One of the purposes of the law is to prevent fraud. A church would like to sell promissory notes to raise funds for a new sanctuary. When it learns that it cannot do so without registering its securities, it insists that the application of such a law to churches violates the First Amendment’s Free Exercise of Religion Clause. The church will lose. The securities law is neutral and of general applicability, and accordingly rule #1 controls. The law is presumably valid without the need to prove a compelling governmental interest.
• A number of common church practices may violate copyright law. Does the application of copyright law to churches violate the First Amendment’s Free Exercise of Religion Clause? No. The copyright law is neutral and of general applicability, and accordingly rule #1 controls. The law is presumably valid without the need to prove a compelling governmental interest.
• A city enacts a civil rights ordinance that bans any employer (including churches) from discriminating on the basis of sexual orientation in any employment decision. A church argues that applying such a law to a church that is opposed on the basis of religious doctrine to hiring homosexuals will violate its constitutional right to freely exercise its religion. Under the Supreme Court’s ruling in the Smith case, it is doubtful that the church would prevail. The civil rights law in question clearly is neutral and of general applicability, and accordingly rule #1 applies. This means that the law is presumably valid without the need to prove a compelling governmental interest. However, a number of federal courts (prior to Smith) concluded that the clergy-church relationship is unique and is beyond governmental regulation. Accordingly, it is doubtful that such an ordinance could be applied to clergy. This of course assumes that the Supreme Court, after Smith, would agree with these previous rulings.
• A religious denomination does not ordain women. A female church member sues the denomination, claiming that its ban on female clergy violates a state civil rights law banning discrimination in employment on the basis of gender. Is the denomination’s practice legally permissible as a result of the First Amendment’s Free Exercise of Religion Clause? See the preceding example.
• A city council receives several complaints from downtown business owners concerning homeless shelters that are operated by churches. In response to these complaints, the city council enacts an ordinance banning any church from operating a homeless shelter. This ordinance is neither neutral nor of general applicability, and so rule #2 applies. This means that the city will need to demonstrate that the ordinance is supported by a compelling government interest. It is doubtful that it will be able to do so. First, the law is “underinclusive,” meaning that it singles out churches to further its purposes. Further, as the Supreme Court observed in the Hialeah case (discussed above), “[a] law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.”
• Same facts as the previous example, except that the ordinance bans any homeless shelter in the downtown area, whether or not operated by a church. A downtown church sues the city, claiming that the ordinance violates its First Amendment right to freely exercise its religion. The church will lose. The ordinance in this example is a neutral law of general applicability, and so rule #1 controls. This means that the ordinance is presumably valid without the need for demonstrating that it is based on a compelling government interest.
• A state legislature enacts a law that requires teachers at all public and private elementary and secondary schools, including those operated by churches, to be state-certified. A church challenges this law on the basis of the First Amendment guaranty of the free exercise of religion. The church probably will lose. The law in question clearly is neutral and of general applicability, and so rule #1 controls. This means that the law is presumably valid without the need to prove a compelling governmental interest.
• A state legislature enacts a law imposing a sales tax on purchases made by most organizations, including churches. A church challenges this law on the ground that it violates the First Amendment guaranty of the free exercise of religion. It is doubtful that the church will prevail. The law in question clearly is neutral and of general applicability, and so rule #1 controls. This means that the law is presumably valid without the need to prove a compelling governmental interest.
• A city enacts an ordinance establishing a “landmark commission.” The commission is authorized to designate any building as an historic landmark. Any building so designated cannot be modified or demolished without the commission’s approval. A church is designated as an historic landmark. A few years later, the church asks the commission for permission to enlarge its facility in order to accommodate its growing congregation. The commission rejects this request, despite proof that several persons are “turned away” each Sunday because of a lack of room in the current church facility. These were the facts in the City of Boerne case. If the church relies solely on a violation of its First Amendment right to religious freedom, it will lose because the ordinance is neutral and of general applicability, and so rule #1 controls. This means that the law is presumably valid without the need to prove a compelling governmental interest. However, note that the First Amendment also guarantees the rights of assembly and association, and a strong case can be made that these rights are violated by the commission’s action since the right of some members to engage in religious services (assembly and association) is being curtailed. By asserting that these First Amendment rights are being violated in addition to the free exercise of religion, the church invokes rule #3. This will force the city to demonstrate a compelling government interest supporting its decision to deny the church permission to expand its facilities. It is doubtful that the city could meet this requirement.
• A church is located on a major highway. It constructs a billboard on its property that contains religious messages. The city enacts an ordinance prohibiting any billboards along the highway. Since the ordinance is a “neutral law of general applicability” (it applies equally to all property owners and does not single out religious organizations), it is legally valid though it interferes with the church’s First Amendment right to freely exercise its religion. There is no need for the city to demonstrate a compelling government interest. However, if the church asserts that its First Amendment right to free speech is being violated by the city ordinance (in addition to its right to freely exercise its religion), then rule #3 is invoked. This will force the city to demonstrate a compelling government interest supporting the ordinance. As noted above, this is a difficult (though not impossible) test to meet. Note, however, that if the church can force the city to demonstrate that the ordinance is based on a compelling government interest, then it has obtained the same legal protection that it would have had under RFRA.
• Federal tax law forbids most tax-exempt organizations from intervening or participating in political campaigns on behalf of or in opposition to any candidate for public office. A church publicly supports a particular candidate during a campaign, and the IRS revokes its exempt status. The church claims that the law violates its First Amendment right to the free exercise of religion. If this is the church’s only argument, it will lose since the law is a neutral law of general applicability and therefore need not be supported by a compelling government interest. However, if the church argues that its First Amendment rights to speech and press are also violated by the ban on political participation, then rule #3 is invoked. This will force the government to prove a compelling government interest to justify the law. As noted above, this is a difficult (though not impossible) test to meet. Note, however, that if the church can force the government to demonstrate that the law is based on a compelling government interest, then it has obtained the same legal protection that it would have had under RFRA.
• A public school adopts a policy prohibiting any outside group to rent or use its facilities for any purpose. A church asks for permission to rent the school gymnasium for a special religious service. The school denies this request. The church claims that its First Amendment right to the free exercise of religion has been violated by the school’s policy. Since the policy is a neutral law of general applicability, rule #1 controls. The law is presumably valid without the need to prove a compelling governmental interest. However, if the church asserts that its First Amendment rights to free speech, assembly, and association are violated by the school policy (in addition to its right to freely exercise its religion), then rule #3 is invoked. This will force the school to demonstrate a compelling government interest supporting its policy. Other decisions by the Supreme Court suggest that the school will be able to demonstrate a compelling government interest — avoiding the “establishment” of religion (by singling out religious groups for special or favored treatment).
One additional observation must be made about the Free Exercise Clause. The concept of free exercise is fundamentally incompatible with the philosophy of disestablishment contained in the establishment clause.50 See generally chapter 11, supra.This tension has been aggravated in the past few decades by judicial emphasis upon disestablishment. Chief Justice Burger, in the Walz decision, commented on this underlying tension: “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”51 Walz v. Tax Commission, 397 U.S. 664, 669 (1970).Similarly, Justice Stewart, dissenting in Schempp, observed: “There are areas in which a doctrinaire reading of the establishment clause leads to irreconcilable conflict with the free exercise clause.”52 School District of Abington v. Schempp, 374 U.S. 203, 309 (1963).The Supreme Court in more recent years has attempted to synthesize the religion clauses by emphasizing the concept of neutrality:
The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.53 Walz v. Tax Commission, 397 U.S. 664, 669 (1970).