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.
to some--in Free Exercise jurisprudence came in Employment
v Smith in 1990. Reinterpreting and,
in some cases, throwing
out decades of caselaw, five members of the
Supreme Court concluded
a generally applicable criminal law raises no Free
Exercise issues at
ending what had long been the obligation of states
to demonstrate at
an important state interest and narrow tailoring
when they enforced
that significantly burdened religious
practice. The Court
some Free Exercise cases such as Yoder as
both Free Exercise and substantive due process
such as Sherbert, Thomas, and Hobbie
were placed in the
category of "unemployment compensation rules"
From now on, the five-member majority proclaimed,
states will have to
heightened scrutiny (except for hybrid cases and
when a law specifically targets religious
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.
proved as unpopular with Congress as it did with
many within the
community. Congress in 1993 responded to the
by voting overwhelmingly to pass the Religious
of 1993 designed to return religious exercise
cases to the pre-Smith
for laws burdening religious practices.
Under RFRA, federal,
and local laws interfering with religious exercise
would have to be
by a compelling state interest and be a least
restrictive of religious
freedom as possible. The Supreme Court,
however, gets the last
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
the Constitution, and in particular Section 5 of
gave no power to Congress to do more than adopt
with Fourteenth Amendment interpretations of the
Court, and that
had instead tried to changed the substantive
of the Free Exercise Clause for that of the
Joshua Davey (American Bar Journal photo)
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
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
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
no law respecting
an establishment of religion, or
prohibiting the free
thereof. (Amendment 1)
St. Peter's Church in Boerne, Texas (ABA photo)
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?
Restoration Act (RFRA)