[Notes prepared for a meeting of the Jewish Community Relations Board, as it debated whether to support legislation that would provide protection for the free exercise of religion in Missouri.]
Look at two questions relevant to your decision:
1. Where does law relating to free exercise stand today?
2. How would that law change with the enactment of the Missouri RFRA?
1. Where does the law stand today?
To understand where the law stands today, necessary to know a little
of history of SCt interpretation of free exercise clause:
History of SCt jurisprudence divided into 3 eras: early view; view expressed in decisions from 1930's to 1992 (heightened scutiny era); both Smith era which began in 1990 following SCt decision in Ore Dept of Human Resources vSmith
Early view: expressed in 1879 decision (US v Reynolds) upholding prosecutions for polygamy against Mormons in the Utah Territory-- Free Exercise clause protects ONLY religious beliefs and expression, not conduct (under this view, since beliefs and expression also protected by free speech clause, free ex clause doesn't amount to hill of beans)
Heightened scrutiny era: SCt said when govt law or action prevents
the exercise of religiously motivated conduct, at least when the conduct
is dictated by a central and sincerely held religious belief, the govt
must show that its law or action is supported by a CSI and that it has
taken the action least restrictive of religious beliefs that can achieve
its strong interest.
Under this test:
---State could enforce its murder laws against a sect that believed virgins ought to be thrown off cliffs every Tuesday to appease the gods
---Might also be able to compel a Christian Scientist couple to turn over their child for necessary live-saving surgery
Using this test, courts held that:
--Wisconsin could not enforce its compulsory education law against 14 and 15 yr old Amish children, when parents complained law threatened their communal lifestyle (Wis v Yoder)
--States could not deny unemployment compensation to a 7th Day Adventist who refused a job that required Saturday work (Sherbert/Hobbie/Thomas)
--Nebraska must issue a driver's license without the usually required photo to a woman who believed that carrying a license with a photo would violate the 2nd Commandment relating to graven images. (8th cir, affd by USSCt)
--Native Americans could not be prosecuted under state drug laws for using peyote in religious services (AzSCt and CaSCt)
--Athabascans in Alaska could hunt moose out-of-season when necessary for a religously-motivated funeral potlatch (AkSCt)
--United Pentacostal children in Illinois could not be compelled, against their religious beliefs, to wear what they thought were immodest gym clothes in the mandatory gym class at a public high school (IllDCt)
Then came Smith in 1990, SCt came close to reverting to its 19th
century-early 20th century view: States can enforce NEUTRAL, GENERALLY
APPLICABLE LAWS against any claims of free exercise.
USSCt held, for example, Oregon could enforce its laws to prevent peyote from being used in the religious ceremonies of Native Americans.
If generally applicable criminal law, no need to show a CSI and LRM (except in what Court called "hybrid" cases-- nonsensical exception necessary to get 5 votes for opinion-- way of saying "we're not overruling Yoder, the Amish case out of Wisconsin, or in unemployment compensation cases. At least one justice who wouldn't have gone along with Scalia's opinion if it overruled those earlier cases, so he did his best to carve out exception for them.)
--Jan, 1999, 9th Circuit Ct of Appeals (west coast) held that states cannot enforce housing laws against Christian landlords who refuse to rent to married couples because that free ex claims falls under the "hybrid" exception of Smith (free ex + taking issue). Other courts, however, reached the opposite conclusion in this type of case.
Note: Still a violation of free exercise for state to TARGET religious conduct-- that is enact a law that applies only to religious exercise and is not generally applicable.
--States still cannot make it illegal to bow down in front of a golden calf, for example
--1993 SCt unanimously invalidated ordinance of Hialeah, Fla which made the "ritual killing" of animals illegal; law aimed at followers of Santeria religion who were killing goats and chickens as part of religious services (fine if city were to ban ALL killing of animals)
Finally, word about Federal RFRA: attempt by Congress to restore
the pre-Smith CSI and LRM test.
--Applied in Boerne, Texas case to prevent the city from enforcing its historic preservation ordinance against a Catholic Church that wanted to remodel and expand its 1923 mission-style church. When case got to SCt, however, Ct concluded that RFRA was unconstitutional-- that Congress lacked the power to pass such legislation and couldn't change SCt interpretations of federal Constitution
--As a result of City of Boerne v Flores, see efforts by states such as Missouri to adopt own versions of RFRA ( no concern about lack of power)
2. How would Missouri's RFRA change the law?
First, note what it wouldn't change: State RFRA has no effect on the enforcement of federal law, under the Supremacy Clause of the Constitution. Wouldn't cause changes in federal prisons, wouldn't change federal civil rights law, or federal tax law, or federal bankruptcy law, or how Forest Service manages its national forest land in Missouri.
Second, note difference w Yoder test: Mo. RFRA applies to all conduct "substantially motivated by religious belief, whether or not the relgious exercise if compulsory or central to a larger system of relgious belief." (Drops centrality test of SCt)
What it might/might not change....Examples of possible applications....Leave for you to decide whether the positive changes outweigh the negative. Ultimately, whether or not law should be enacted depends upon whether benefits of law outweigh the costs.
1. State HSL rule that prohibits wearing of headwear-- application to orthodox Jewish BB playwer who says he must wear a yalmulke.
2. School uniform-- application to Amish who wear only dark clothes.
3. Homeschooling a right? (Homeschooling religiously-motivated, but not dictated or central)
4. Punish student for refusing to read about evolution, sex education, or literature offends Fundamentalist beliefs? (Mozert: not religious vio and therefore state free to require--- but under Mo law, religiously-motivated refusal to act and state couldn't punish the student for not doing the assigned work)
Refusal to rent to unmarrieds or gays
1. Pictures on driver's license
2. Use of SSN (Little Bird of Snow v Bowen)
1. Ban on incredibly elaborate Xmas light display
2. Building codes relating to religious structures (unless CSI)
3. Restrictions on door-to-door proselytizing
Public safety laws:
1. Ritual snake handling
2. Ritual animal killing
Alcohol and drug laws:
1. Peyote use by Native Americans
2. Prosecution of minister for distributing communion wine to persons under 21
Prisons & Jails:
1. Provision of Bibles and Korans
2. Accomodation of religious worship and services (if no CSI)
State tort law:
1. Fraud laws as applied to religious mail solicitations
2. Ministerial counseling as relates to suicide
3. Odd case: sexual harassment, eg, if argument that interaction somehow religiously motivated
1. Road thru state forest that destroys sacred site
Some of many possible applications.
Costs: adminstrative pain-in-the-butt, some concerns about compromising public policy and safety goals
Benefits: respecting individual dignity and diversity and teaching tolerance
Depends upon what courts see as CSIs and how apply LRM test
Not many serious problems in Yoder era-- that's what this brings us back to