Supreme Court interpretation of the Free Exercise Clause has come full circle. From its narrow reading of the clause in 1878 in Reynolds, to its much broader reading of the clause in the Warren and Burger Court years, the Court returned to its narrow interpretation in the controversial 1990 case of Employment Division of Oregon v Smith.
The Court's decision in Smith provoked almost unanimous criticism on Capitol Hill, and Congress quickly responded by passing the Religious Freedom Restoration Act, designed to restore the test abandoned in Smith. This effort, however, largely was to fail, as the Supreme Court ruled that Congress lacked the power to compel state accomodation of significantly burdened religious beliefs and practices.
In the mid-80s, the Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims. In 1986, the tide turned against Free Exercise claimants when the Court rejected, 5 to 4, the seemingly sympathetic request of an Orthodox Jewish army psychiatrist who felt religiously-compelled to wear a yamulke on duty, and who asked to be exempted from the military's ban on such headwear (Goldman).
Lyng v Northwest Protective
Cemetery Association in 1988 provided
a major hint of the revolution in Free Exercise
law to come by adopting a per se rule that
the government need not concern itself with the
impact that its land use decisions might have on
religious practices. Based on this newly
announced principle, the Court permitted the
United States to proceed with construction of a
road through a national forest that would
concededly have severe consequences for the
practitioners of a Native American religion who
considered the area sacred.
Alfred Smith was denied unemployment benefits because of his peyote use
development--shocking to some--in Free Exercise
jurisprudence came in Employment Division v
Smith in 1990. Reinterpreting and, in
some cases, throwing out decades of caselaw, five
members of the Supreme Court concluded that a
generally applicable criminal law raises no Free
Exercise issues at all, ending what had long been
the obligation of states to demonstrate at least
an important state interest and narrow tailoring
when they enforced laws that significantly
burdened religious practice. The Court
reinterpreted some Free Exercise cases such as Yoder
as "hybrid" cases, raising both Free Exercise and
substantive due process issues. Other cases
such as Sherbert, Thomas, and Hobbie
were placed in the special category of
"unemployment compensation rules" --and left
undisturbed. From now on, the five-member
majority proclaimed, states will have to satisfy
heightened scrutiny (except for hybrid cases and
unemployment cases) only when a law specifically
targets religious practice.
In 1993, in Church of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans. The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.
decision proved as unpopular with Congress as it
did with many within the religious
community. Congress in 1993 responded to the
Smith decision by voting overwhelmingly to
pass the Religious Freedom Restoratation Act of
1993 designed to return religious exercise cases
to the pre-Smith standard for laws burdening
religious practices. Under RFRA, federal,
state, and local laws interfering with religious
exercise would have to be supported by a
compelling state interest and be a least
restrictive of religious freedom as
possible. The Supreme Court, however, gets
the last word on issues of constitutional
interpretation. In 1997, in City of Boerne
v Flores, the Court ruled that RFRA was
unconstitutional, at least as applied to state and
local governments. The Court concluded that
the Constitution, and in particular Section 5 of
the Fourteenth Amendment, gave no power to
Congress to do more than adopt remedial measures
consistent with Fourteenth Amendment
interpretations of the Court, and that Congress
had instead tried to changed the substantive
law--substituting its interpretation of the Free
Exercise Clause for that of the Supreme Court.
Religious Freedom Restoration Act (RFRA)
Full text of the federal law that attempted to restore the pre-Smith test for laws significantly burdening religious exercise.
Joshua Davey (American Bar Journal photo)
2004, the Supreme Court in Locke v Davey
considered the reach of Lukumi Babalu in a case
involving a Washington State scholarship program
for gifted students. The program allowed
students receiving a state scholarship to pursue
any major, with one exception: a degree in
devotional theology. When Joshua Davey, a
scholarship recipient, was denied funding to
pursue a theology program at Northwest, a private
religious college, he sued, alleging that
Washington had violated his Free Exercise
right. Chief Justice Rehnquist, writing for
a 7 to 2 majority, found that the Free Exercise
Clause and Establishment Clause, read together,
offered enough "play in the joints" to allow
Washington to exclude a major in devotional
theology, "a religious calling" as much as "an
academic pursuit," from the list of endeavors it
will support with taxpayer funds. Justices
Scalia and Thomas disagreed, finding the exclusion
to be a clear violation of Free Exercise
principles laid down in Lukumi Babalu.
make no law respecting an
establishment of religion, or
prohibiting the free exercise thereof. (Amendment
2. Is the Court's conclusion in Smith that the law imposes no limitations on government's ability to enforce criminal laws of general applicability consistent with the framers' original understanding? Why did the Court in Smith pay so little attention to the historical record on this matter?
3. After Smith, it would be possible for a state to prosecute a priest or minister who offers communion wine for distributing alcohol to a minor. Is such a prosecution likely to occur? Why not? Does this suggest that the real losers in Smith are religions that have relatively few adherents, and especially those that are unpopular?
4. What in the Constitution supports applying a different and more deferential standard when it is a military regulation, rather than a civilian regulation, that is alleged to impinge upon constitutional liberties (as the Court suggested in Goldman)? Would it be better to apply the same standard, recognizing (of course) that national security is an interest of the highest order?
5. Lukumi Bababu Aye holds that government may not target a religious practice for prosecution. Suppose a state where concerned about a religious sect that practiced the handling of poisonous snakes in its worship services. How might the state draft a law that would avoid the constitutional problems that Hialeah encountered with its law attempting to deal with animal sacrifice?
6. What do you think about the argument of Justice Stevens in the Boerne case: that to grant the Catholic Church an exemption from zoning laws that would not be given to a non-religious institution violates the Establishment Clause? How would you resolve the tension between the Free Exercise Clause and Establishment Clause?
7. Justice Scalia argues in Smith that an honest application of the compelling state interest test in free exercise cases involving neutral laws would lead to anarchy and chaos, with religions of all sorts getting exemptions from a wide variety of laws and programs. Is he right? Has the Court been using a "watered down" compelling state interest test in free exercise cases?
8. If the compelling state interest teest were to be applied in Smith, would Oregon have been able to satisfy it? How strong is the state's interest in prohibiting the use of peyote in the religious ceremonies of Native Americans?
9. The Religious Freedom and Restoration Act of 1993 passed in the Senate on a vote of 96 to 3. Does that vote suggest that support for the weakened free exercise test of Smith is diffuse at best?
10. Could you suggest a way in which Hialeah could redraft its ordinances to effectively prohibit animal sacrifice without violating the Free Exercise Clause or criminalizing widely accepted forms of animal killing?