Every church will be affected- City of Boerne v. Flores, 1997 WL 345322 (1997)
Article summary. The Supreme Court struck down the Religious Freedom Restoration Act on the ground that Congress exceeded its authority in enacting the law. The Court’s decision will impact virtually every religious organization in America. Some of those impacts are predictable, but others are not. This article explores the practical significance of the Court’s decision to churches and other religious organizations.
In 1993 Congress (by an extraordinary unanimous vote) enacted the Religious Freedom Restoration Act (RFRA). The purpose of RFRA was to reverse a 1990 Supreme Court ruling that greatly limited the first amendment guaranty of religious freedom. The Court’s decision will make it much more difficult for churches and religious adherents to challenge a government law or action that infringes upon a religious belief or practice. The Court’s decision impacts most if not all churches and religious organizations. This article will summarize the background and facts of the case, review the Court’s ruling, and evaluate the significance of the case to churches.
Background
pre—1990 law-government needs a compelling interest to restrict the free exercise of religion
The first amendment to the United States Constitution protects a number of fundamental rights, including the free exercise of religion. The first amendment specifies that “Congress shall make no law … prohibiting the free exercise of religion.” For many years, the United States Supreme Court interpreted this language to mean that the government could not impose substantial burdens on the exercise of sincerely—held religious beliefs unless its actions were justified by a “compelling state interest” that could not be served through less restrictive means. In a 1990 ruling, the Supreme Court revised its understanding of the “free exercise” clause. Employment Division v. Smith, 494 U.S. 872 (1990).
The Smith case-no compelling interest needed for “neutral laws of general applicability”
Oregon law prohibits the intentional possession of a “controlled substance,” including the drug peyote. Two employees of a private drug rehabilitation organization were fired from their jobs because they consumed peyote for “sacramental purposes” at a ceremony of the Native American Church. The two individuals applied for unemployment benefits under Oregon law, but their application was denied on the grounds that benefits are not payable to employees who are discharged for “misconduct.” The two former employees claimed that the denial of benefits violated their constitutional right to freely exercise their religion. The Supreme Court ruled that (1) the constitutional guaranty of religious freedom did not prohibit a state from criminalizing the sacramental use of a narcotic drug, and (2) the state of Oregon could deny unemployment benefits to individuals who were fired from their jobs for consuming peyote.
The Court began its opinion by noting that “we have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” On the contrary, the constitutional guaranty of religious freedom “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law [prohibits] conduct that his religion prescribes.”
• Key point. The Court did not throw out the “compelling state interest” requirement in all cases involving governmental restrictions on religious freedom. Rather, the Court stated that this requirement does not apply to restrictions caused by a “neutral law of general applicability.” A law or other government act that targets or singles out religious organizations must be supported by a compelling state interest. Further, as noted below, the compelling state interest requirement applies if a second constitutional right is burdened by a law or other government act.
The real significance of the Court’s ruling was its refusal to apply the “compelling state interest” test as requested by the discharged employees. As noted above, the Supreme Court previously had interpreted the constitutional guaranty of religious freedom to mean that the government could not impose substantial burdens on the exercise of sincerely—held religious beliefs unless its actions were justified by a “compelling state interest” that could not be served through less restrictive means. The former employees argued that the Oregon law’s denial of unemployment benefits to persons using peyote for sacramental purposes was not supported by a “compelling state interest” and accordingly could not be applied without violating the constitution.
The Court justified its refusal to apply the “compelling state interest” test by noting that
- it had not applied the test in a number of its recent decisions
- it had never found a state law limiting religious practices invalid on the ground that it was not supported by a compelling state interest, and
- the compelling state interest test should never be applied “to require exemptions from a generally applicable criminal law”
The Court rejected the former employees’ suggestion that the “compelling state interest” test be applied only in cases involving religiously—motivated conduct that is “central” to an individual’s religion. This would require the courts to make judgments on the importance of religious practices-and this the civil courts may never do. The only options are to apply the “compelling state interest” test to all attempts by government to regulate religious practices, or to not apply the test at all. Applying the test in all cases involving governmental attempts to regulate religious practices would lead to “anarchy,” since it would render “presumptively invalid” every law that regulates conduct allegedly based on religious belief. This would open the floodgates of claims of religious exemption “from civic obligations of almost every conceivable kind-ranging from compulsory military service to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The first amendment’s protection of religious liberty does not require this.”
The Court’s ruling represents a clear departure from its previously well—established understanding of the constitutional guaranty of religious freedom. No longer will a state need to demonstrate that a “compelling state interest” supports a law that prohibits or restricts religious practices. This is unfortunate, and will tend to make it more difficult to prove that a state’s interference with religious practices violates the guaranty of religious freedom. Four of the Court’s nine justices disagreed with the Court’s analysis, and with the virtual elimination of the “compelling state interest” test. The minority asserted that the Court’s ruling diminished the guaranty of religious liberty by making it more difficult for persons to prove a violation of this fundamental constitutional guaranty. One of the dissenting Justices lamented that the Court’s decision tilts the scales “in the state’s favor,” and “effectuates a wholesale overturning of settled law concerning the religion clauses of our Constitution. One hopes that the Court is aware of the consequences ….”
Congress responds – the Religious Freedom Restoration Act
The consequences of the Supreme Court’s reinterpretation of the first amendment guaranty of religious freedom were predictable. Scores of lower federal courts and state courts upheld laws and other government actions that directly restricted religious practices. In many of these cases, the courts based their actions directly on the Smith case, suggesting that the result would have been different had it not been for that decision.
Congress responded to the Smith case in an extraordinary way-by enacting the Religious Freedom Restoration Act by a unanimous vote of both houses. RFRA was signed into law by President Clinton in 1993.
In the Senate, RFRA was introduced by Senators Kennedy and Hatch along with several other Senators. Senator Kennedy, in introducing the Act, made the following remarks:
The Supreme Court’s 1990 decision in Employment Division v. Smith sharply limited the first amendment’s guarantee of freedom of religion. Until then, government actions that interfered with individuals’ ability to practice their religion were prohibited, unless the restriction met a strict two—part test. It must be necessary to achieve a compelling governmental interest, and there must be no less burdensome way to achieve the goal.
The compelling interest test had been the constitutional standard for nearly 30 years. Yet, in 1990, the Court abruptly abandoned it. Under the new standard, there is no special constitutional protection for religious liberty, as long as governmental restrictions are neutral on their face as to religion and have general application.
The bill we are reintroducing today restores the compelling interest test by statute. Not every free exercise claim will prevail. The previous standard had worked well for many years, and it deserves to be reinstated. Few issues are more fundamental to our country. America was founded as a land of religious freedom and a haven from religious persecution. Two centuries later, that founding principle has been endangered. Religious liberty is damaged each day the Smith decision stands. Since Smith , more than 50 cases have been decided against religious claimants, and harmful rulings are likely to continue.
As a result of the Smith decision, it has been suggested that government could regulate the selection of priests and ministers, dry communities could ban the use of wine in communion services, government meat inspectors could require changes in the preparation of kosher food, and school boards could force children to attend sex education classes contrary to their faith. Because of this threat to religious freedom, organizations with widely divergent views strongly support this legislation, including the National Council of Churches, the National Association of Evangelicals, the United States Catholic Conference, the American Jewish Committee, the American Muslim Council, the Southern Baptist Convention, the Baptist Joint Committee, the Episcopal Church, the Christian Legal Society, the Church of Jesus Christ of Latter—day Saints, the American Civil Liberties Union, People for the American Way, Coalitions for America, Concerned Women for America, and the House School Legal Defense Association.
Similarly, Senator Hatch observed:
I am pleased today to introduce, along with Senator Kennedy and others, the Religious Freedom Restoration Act of 1993. This legislation responds to the Supreme Court’s April 17, 1990, decision in Employment Division v. Smith, 494 U.S. 892 (1990). In the Smith case, the Supreme Court abandoned the compelling state interest standard of review for government practices burdening an individual’s exercise of religion where the government action involves a “valid and neutral law of general applicability.”
In my view, the standard outlined by the Court in Smith does not sufficiently protect an individual’s first amendment right to the “free exercise” of religion. Freedom of religion is the first freedom in the Bill of Rights, guaranteed to every individual, not just those who practice their faith in a majority religion. I do not believe the framers of the first amendment envisioned that the religious minority would remain at a relative disadvantage in our society as an unavoidable consequence of our democratic government, as the Court suggests. In my view, it was exactly this relative disadvantage a religious minority might suffer that the authors of the first amendment specifically sought to avoid and protect against. The free exercise of religion is not a luxury afforded our citizenry, but a well conceived and fundamental right …. Supporters of this legislation include over 55 groups, representing an extremely broad and diverse coalition of religious and civil liberties organizations, including the U.S. Catholic Conference.
It is clear to me a legislative response is critical to the preservation of the full range of religious freedoms the first amendment guarantees to the American people, particularly those whose religious beliefs and practices differ from the religious majority in our country. This bill will serve to reestablish those rights guaranteed in the first amendment by imposing the “compelling state interest” standard for judicial review of governmental action which burdens an individual’s free exercise of religion. It is imperative Congress act expeditiously in response to the Smith decision.
RFRA begins by reciting the following “congressional findings”:
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the first amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
RFRA next states its purposes as follows: “(1) to restore the compelling interest test … and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government.”
The key provision of RFRA is section 3, which specifies:
(a) IN GENERAL. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) ….
(b) EXCEPTION. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
(c) JUDICIAL RELIEF. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
In practical terms, how did the enactment of RFRA affect local churches and other religious organizations? There is little doubt that it provided significant protections to the exercise of religion. Any law or government practice (whether at the local, state, or federal level) that “burdened” the exercise of religion was legally permissible only if the law or practice (1) was in furtherance of a compelling governmental interest, and (2) was the least restrictive means of furthering that compelling governmental interest. These were difficult standards to meet. As the Supreme Court itself observed in 1993, the concept of a “compelling governmental interest” is a very difficult standard for the government to satisfy:
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 …. Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 1993 WL 195255 (1993).
As noted below, in the years following the enactment of RFRA a number of government attempts to regulate or interfere with religious practices were struck down by the courts on the basis of the Act.
The Supreme Court’s recent decision
facts of the case
Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church’s structure reflects the mission style of the region’s earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday services. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.
A few months later, the Boerne City Council passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the Commission must pre—approve construction affecting historic landmarks or buildings in a historic district.
Soon afterwards the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they claimed, included the church), denied the application. The Archbishop filed a lawsuit challenging the city’s denial of the permit. The lawsuit relied upon RFRA as one basis for relief from the refusal to issue the permit. A federal district court concluded that by enacting RFRA Congress exceeded the scope of its authority. A federal appeals court reversed this decision, and upheld the constitutionality of RFRA. The city appealed to the United States Supreme Court. The appeal addressed the question of the constitutional validity of RFRA.
the Court’s ruling
The Supreme Court ruled that RFRA was unconstitutional since Congress did not have the authority to enact it. The Court began its opinion by noting that the federal government “is one of enumerated powers.” That is, each branch (legislative, executive, judicial) can only do those things specifically authorized by the Constitution. The first amendment specifies that “Congress” cannot enact legislation “prohibiting the free exercise” of religion. Of course, “Congress” refers to the federal legislature, and so the first amendment guaranty of religious freedom, as originally worded, was not a limitation on the power of state or local governments. In 1868, the fourteenth amendment to the Constitution was ratified, which prohibits any state from depriving “any person of life, liberty, or property without due process of law.” Then, in 1940, the Supreme Court ruled that the “liberty” protected by the fourteenth amendment against state interference included the first amendment guaranty of religious freedom. For the first time, this limitation upon the power of Congress to prohibit the free exercise of religion now applied to state and local governments as well. The fourteenth amendment contained a section (section 5) which gave Congress “power to enforce, by appropriate legislation, the provisions of this [amendment].” Congress pointed to this section as the source of its authority to enact RFRA. Members of Congress insisted that they were only protecting by legislation one of the liberties guaranteed by the fourteenth amendment that had been diminished by the Supreme Court’s ruling in Smith.
The Supreme Court ruled that section 5 of the fourteenth amendment did not authorize Congress to enact RFRA. It acknowledged that section 5 authorizes Congress to “enforce” the fourteenth amendment, and therefore Congress can enact legislation “enforcing the constitutional right to the free exercise of religion.” However, the Court then observed:
Congress’ power under section 5, however, extends only to enforcing the provisions of the fourteenth amendment …. The design of the amendment and the text of section 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the fourteenth amendment’s restrictions on the states. Legislation which alters the meaning of the free exercise [of religion] clause cannot be said to be enforcing the clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the fourteenth amendment] ….”
If Congress could define its own powers by altering the fourteenth amendment’s meaning, no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be “on a level with ordinary legislative acts, and, like other acts … alterable when the legislature shall please to alter it.” Under this approach, it is difficult to conceive of a principle that would limit congressional power. Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained [therein].
The Court conceded that it is not always clear whether Congress is “enforcing” the fourteenth amendment or making unauthorized substantive changes in the Constitution. However, it insisted that there must be a “proportionality between the injury to be prevented or remedied and the means adopted to that end.” The Court concluded that this test was not met in this case, since RFRA was not a “proportional” response to the “injury to be prevented or remedied.” Rather, RFRA was an expansive law that was enacted to address minimal threats to religious freedom. The Court noted that
sweeping coverage ensures [RFRA’s] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the federal, state, and local governments. RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion.
Further, this massive response was not warranted by any significant threat to religious freedom:
RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the [congressional] hearings mentions no episodes occurring in the past 40 years …. The absence of more recent episodes stems from the fact that, as one witness testified, “deliberate persecution is not the usual problem in this country.” Rather, the emphasis of the [congressional] hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs … and on zoning regulations and historic preservation laws (like the one at issue here), which as an incident of their normal operation, have adverse effects on churches and synagogues …. It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress’ concern was with the incidental burdens imposed, not the object or purpose of the legislation.
The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. Requiring a state to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If “compelling interest” really means what it says … many laws will not meet the test …. [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise …. [RFRA] would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the states’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the states and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the free exercise clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry ….
It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. (emphasis added)
Significance of the Court’s ruling to churches and other religious organizations
How will the Supreme Court’s ruling impact churches? It is important for church leaders to understand that the Court’s ruling does not eliminate all constitutional protection of religious freedom. The following rules summarize the current status of the first amendment guaranty of religious freedom, in light of the recent Supreme Court decision 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. Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 1993 WL 195255 (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 made the following clarifications:
If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. The Court added:
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 decisionmaking 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.
• Key point. Those who represent religious institutions and adherents must keep this important point in mind. It can make the difference between winning and losing a religious freedom case.
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.
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.
These four rules are illustrated by the following examples.
• Example. 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.
• Example. 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.
• Example. 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.
• Example. 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.
• 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.”
• Example. 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.
• Example. 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.
• Example. 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.
• Example. 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 is 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.
• Example. 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.
• Example. 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.
• Example. Federal law gives bankruptcy trustees the power to “set aside” transfers by bankrupt debtors for less than “reasonably equivalent value” during the twelve months preceding the filing of a bankruptcy petition. A bankruptcy trustee contacts a church and demands that it return all contributions made by a bankrupt member during the twelve months preceding the filing of a bankruptcy petition. The trustee claims that contributions made by the church were transfers for less than reasonably equivalent value, and accordingly they can be recovered by the bankruptcy court. The church claims that turning over the member’s contributions would violate the member’s first amendment right to freely exercise his religion. The church will lose. The bankruptcy law is a neutral law of general applicability, and so rule #1 controls. The law is presumably valid without the need to prove a compelling governmental interest. A federal court ruled in 1995 that RFRA prevented bankruptcy courts from recovering contributions by bankrupt debtors to their churches-if making contributions was an important religious practice. In re Young, 82 F.3d 1407 (8th Cir. 1996) (discussed in the November—December 1996 issue of this newsletter). The Supreme Court’s recent decision declaring RFRA unconstitutional has the effect of repealing this case. Contributions made by church members to their church within a year before filing a bankruptcy petition are now subject to recovery by a bankruptcy court.
• Example. 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).
• Key point. RFRA was invoked most often by prison inmates seeking special treatment based on their alleged religious beliefs. The Supreme Court’s decision declaring RFRA unconstitutional will be welcome news for prison officials, for now it will be much more difficult for inmates to demand special treatment based on their religious beliefs.
• Key point. Since RFRA was enacted by unanimous vote of both houses of Congress, it is likely that efforts will now be launched to draft a constitutional amendment. Such an amendment would need the approval of two—thirds of each house of Congress, and would then need to be ratified by three—fourths of the states.
© Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 c0597
