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Free Exercise Exemption From General Governmental Requirements.—As described above, the Court gradually abandoned its strict belief–conduct distinction, and developed a balancing test to determine when a uniform, nondiscriminatory requirement by government mandating action or nonaction by citizens must allow exceptions for citizens whose religious scruples forbid compliance. Then, in 1990, the Court reversed direction in Employment Division v. Smith,211 confining application of the “compelling interest” test to a narrow category of cases.

In early cases the Court sustained the power of a State to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag,212 only within a short time to reverse itself and condemn such exclusions, but on[p.1012]speech grounds rather than religious grounds.213 Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so,214 only in later cases by its statutory resolution to cast doubt on this resolution,215 and still more recently to leave the whole matter in some doubt.216

Braunfeld v. Brown217 held that the free exercise clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant who observed Saturday as the Sabbath and was thereby required to be closed two days of the week rather than one. This requirement did not prohibit any religious practices, the Court’s plurality pointed out, but merely regulated secular activity in a manner making religious exercise more expensive.218 “If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.”219

Within two years the Court in Sherbert v. Verner220 extended the line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh[p.1013]Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. This denial of benefits could be upheld, the Court said, only if “her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden on the free exercise of appellant’s religions may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . .”’221 First, the disqualification was held to impose a burden on the free exercise of Sherbert’s religion; it was an indirect burden and it did not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice.222 Second, there was no compelling interest demonstrated by the State. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, “it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”223

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board224 involved a Jehovah’s Witness who quit his job when his employer transferred him from a department making items for industrial use to a department making parts for military equipment. While his belief that his religion proscribed work on war materials was not shared by all other Jehovah’s Witnesses, the Court held that it was inappropriate to inquire into the validity of beliefs asserted to be religious so long as the claims were made in good faith (and the beliefs were at least arguably religious). The same result was reached in a 1987 case, the fact that the employee’s religious conversion rather than a job reassignment had created the conflict between work and Sabbath observance not being considered mate[p.1014]rial to the determination that free exercise rights had been burdened by the denial of unemployment compensation.225 Also, a state may not deny unemployment benefits solely because refusal to work on the Sabbath was based on sincere religious beliefs held independently of membership in any established religious church or sect.226

The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. The first two such cases involved the Amish, whose religion requires them to lead a simple life of labor and worship in a tight–knit and self–reliant community largely insulated from the materialism and other distractions of modern life. Wisconsin v. Yoder227 held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause. The Court first determined that the beliefs of the Amish were indeed religiously based and of great antiquity.228 Next, the Court rejected the State’s arguments that the Free Exercise Clause extends no protection because the case involved “action” or “conduct” rather than belief, and because the regulation, neutral on its face, did not single out religion.229 Instead, the Court went on to analyze whether a “compelling” governmental interest required such “grave interference” with Amish belief and practices.230 The governmental interest was not the general provision of education, inasmuch as the State and the Amish were in agreement on education through the first eight grades and since the Amish provided their children with additional education of a primarily vocational nature. The State’s interest was really that of providing two additional years of public schooling. Nothing in the record, felt the Court, showed that this interest outweighed the great harm which it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.231

But in recent years the Court’s decisions evidenced increasing discontent with the compelling interest test. In several cases the[p.1015]Court purported to apply strict scrutiny but nonetheless upheld the governmental action in question. In United States v. Lee,232 for example, the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs.233 Compulsory payment of taxes was necessary for the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer.

“A compelling governmental interest” was also found to outweigh free exercise interests in Bob Jones University v. United States,234 in which the Court upheld the I.R.S.’s denial of tax exemptions to church–run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government’s “fundamental, overriding interest in eradicating racial discrimination in education”—found to be encompassed in common law standards of “charity” underlying conferral of the tax exemption on “charitable” institutions—“substantially outweighs” the burden on free exercise. Nor could the schools’ free exercise interests be accommodated by less restrictive means.235

In other cases the Court found reasons not to apply compelling interest analysis. Religiously motivated speech, like other speech, can be subjected to reasonable time, place, or manner regulation serving a “substantial” rather than “compelling” governmental interest.236 Sherbert’s threshold test, inquiring “whether government has placed a substantial burden on the observation of a central religious belief or practice,”237 eliminates other issues. As long as a particular religion does not proscribe the payment of taxes (as was the case with the Amish in Lee), the Court has denied that there

[p.1016]

is any constitutionally significant burden resulting from “imposition of a generally applicable tax [that] merely decreases the amount of money [adherents] have to spend on [their] religious activities.”238 The one caveat the Court left—that a generally applicable tax might be so onerous as to “effectively choke off an adherent’s religious practices”239—may be a moot point in light of the Court’s general ruling in Employment Division v. Smith, discussed below.

The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals’ religious beliefs, on the other. Sherbert’s compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass’n240 held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: “‘the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”’241 Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping.242 It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government’s recordkeeping capabilities), since the na[p.1017]ture of the governmental actions did not implicate free exercise protections.243

Compelling interest analysis is also wholly inapplicable in the context of military rules and regulations, where First Amendment review “is far more deferential than . . . review of similar laws or regulations designed for civilian society.”244 Thus the Court did not question the decision of military authorities to apply uniform dress code standards to prohibit the wearing of a yarmulke by an officer compelled by his Orthodox Jewish religious beliefs to wear the yarmulke.245

A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are “‘valid if . . . reasonably related to legitimate penological interests.”’246 Thus because general prison rules requiring a particular category of inmates to work outside of buildings where religious services were held, and prohibiting return to the buildings during the work day, could be viewed as reasonably related to legitimate penological concerns of security and order, no exemption was required to permit Muslim inmates to participate in Jumu’ah, the core ceremony of their religion.247 The fact that the inmates were left with no alternative means of attending Jumu’ah was not dispositive, the Court being “unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”248

Finally, in Employment Division v. Smith249 the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are “generally applicable” when they apply across[p.1018]the board regardless of the religious motivation of the prohibited conduct, and are “not specifically directed at . . . religious practices.”250 The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work “without good cause.” Sherbert and other unemployment compensation cases thus “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.”251 Wisconsin v. Yoder and other decisions holding “that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action” were distinguished as involving “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections” such as free speech or “parental rights.”252 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, then, the Free Exercise Clause affords no basis for exemption from a “neutral, generally applicable law.” As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in “the political process.”253

The ramifications of Smith are potentially widespread. The Court has apparently returned to a belief–conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment, but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression.254 The result is equal protection, but not substantive protection, for[p.1019]religious exercise.255 The Court’s approach also accords less protection to religiously–based conduct than is accorded expressive conduct that implicates speech but not religious values.256 On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O’Connor warned, result in less protection for small, unpopular religious sects.257


Footnotes

211 494 U.S. 872 (1990) .
212 Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940) .
213 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) . On the same day, the Court held that a State may not forbid the distribution of literature urging and advising on religious grounds that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943) .
214 See United States v. Schwimmer, 279 U.S. 644 (1929) ; United States v. Macintosh, 283 U.S. 605 (1931) ; and United States v. Bland, 283 U.S. 636 (1931) (all interpreting the naturalization law as denying citizenship to a conscientious objector who would not swear to bear arms in defense of the country), all three of which were overruled by Girouard v. United States, 328 U.S. 61 (1946) , on strictly statutory grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) (upholding expulsion from state university for a religiously based refusal to take a required course in military training); In re Summers, 325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because as conscientious objector he could not take required oath).
215 United States v. Seeger, 380 U.S. 163 (1965) ; see id. at 188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 (1970) ; and see id. at 344 (Justice Harlan concurring).
216 Gillette v. United States, 401 U.S. 437 (1971) (holding that secular considerations overbalanced free exercise infringement of religious beliefs of objectors to particular wars).
217 366 U.S. 599 (1961) . On Sunday Closing Laws and the establishment clause, see supra, pp. 987–988.
218 366U.S. at 605–06 366U.S. at 605–06.
219 Id. at 607 (plurality opinion). The concurrence balanced the economic disadvantage suffered by the Sabbatarians against the important interest of the State in securing its day of rest regulation. McGowan v. Maryland, 366U.S. at 512–22 366U.S. at 512–22 (1961). Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366U.S. at 610 366U.S. at 610 (Justice Brennan), 616 (Justice Stewart).
220 374 U.S. 398 (1963) .
221 Id. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963) .
222 Id. at 403–06.
223 Id. at 407. Braunfeld was distinguished because of “a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers.” That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. Id. at 408–09. Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 417 (Justice Stewart concurring), 418 (Justice Harlan and White dissenting).
224 450 U.S. 707 (1981) .
225 Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987) .
226 Frazee v. Illinois Dep’t of Employment Security, 489 U.S. 829 (1989) . Cf. United States v. Seeger, 380 U.S. 163 (1965) (interpreting the religious objection exemption from military service as encompassing a broad range of formal and personal religious beliefs).
227 406 U.S. 205 (1972) .
228 Id. at 215–19. Why the Court felt impelled to make these points is unclear, since it is settled that it is improper for courts to inquire into the interpretation of religious belief. E.g., United States v. Lee, 455 U.S. 252, 257 (1982) .
229 Id. at 219–21.
230 Id. at 221.
231 Id. at 221–29.
232 455 U.S. 252 (1982) .
233 The Court’s formulation was whether the limitation on religious exercise was “essential to accomplish an overriding governmental interest.” 455U.S. at 257–58 455U.S. at 257–58. Accord, Hernandez v. Commissioner, 490 U.S. 680, 699–700 (1989) (any burden on free exercise imposed by disallowance of a tax deduction was “justified by the ‘broad public interest in maintaining a sound tax system’ free of ‘myriad exceptions flowing from a wide variety of religious beliefs”’).
234 461 U.S. 574 (1983) .
235 461U.S. at 604 461U.S. at 604.
236 Heffron v. ISKCON, 452 U.S. 640 (1981) . Requiring Krishnas to solicit at fixed booth sites on county fair grounds is a valid time, place, and manner regulation, although, as the Court acknowledged, id. at 652, peripatetic solicitation was an element of Krishna religious rites.
237 As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) .
238 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378, 391 (1990) . See also Tony and Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to perceive how application of minimum wage and overtime requirements would burden free exercise rights of employees of a religious foundation, there being no assertion that the amount of compensation was a matter of religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) (questioning but not deciding whether any burden was imposed by administrative disallowal of deduction for payments deemed to be for commercial rather than religious or charitable purposes).
239 Jimmy Swaggart Ministries, 493U.S. at 392 493U.S. at 392.
240 485 U.S. 439 (1988) .
241 Id. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).
242 Bowen v. Roy, 476 U.S. 693 (1986) .
243 “In neither case . . . would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity.” Lyng, 485U.S. at 449 485U.S. at 449.
244 Goldman v. Weinberger, 475 U.S. 503, 507 (1986) .
245 Congress reacted swiftly by enacting a provision allowing military personnel to wear religious apparel while in uniform, subject to exceptions to be made by the Secretary of the relevant military department for circumstances in which the apparel would interfere with performance of military duties or would not be “neat and conservative.” Pub. L. 100–180, Sec. 508(a)(2), 101 Stat. 1086 (1987); 10 U.S.C. Sec. 774 .
246 O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987) ).
247 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .
248 Id. at 351–52 (also suggesting that the ability of the inmates to engage in other activities required by their faith, e.g. individual prayer and observance of Ramadan, rendered the restriction reasonable).
249 494 U.S. 872 (1990) (holding that state may apply criminal penalties to use of peyote in a religious ceremony, and may deny unemployment benefits to persons dismissed from their jobs because of religiously inspired use of peyote).
250 Id. at 878.
251 Id. at 884.
252 Id. at 881.
253 Id. at 890.
254 This latter condition derives from the fact that the Court in Swaggart distinguished earlier decisions by characterizing them as applying only to flat license fees. See n., supra. See also Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39–41.
255 Justice O’Connor, concurring in Smith, argued that “the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause.” 494U.S. at 901 494U.S. at 901.
256 Although neutral laws affecting expressive conduct are not measured by a “compelling interest” test, they are “subject to a balancing, rather than categorical, approach.” Smith, 494U.S. at 902 494U.S. at 902 (O’Connor, J., concurring).
257 Id. at 1613.

Supplement: [P. 1019, add new paragraphs following n.257:]

Because of the broad ramifications of Smith, the political processes were soon utilized in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),55 Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provided that laws of general applicability— federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 56 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores 57 held the Act to be unconstitutional as applied to the States, 6 to 3. In applying RFRA to the States Congress had utilized its power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the Due Process Clause. But the Court held that RFRA exceeded Congress’ power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. “Congress,” the Court said, “does not enforce a constitutional right by changing what the right is.” 58 Moreover, it said, RFRA “reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved . . . [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” 59 “RFRA,” the Court concluded, “contradicts vital principles necessary to maintain separation of powers and the federal balance.” 60

Boerne does not close the books on Smith, however. It remains an open issue whether RFRA remains valid as applied to the Federal Government, and Congress has already used powers other than § 5 to try to re–apply a strict scrutiny standard to the States.61 These issues ensure continuing litigation over the appropriate test for free exercise cases.62


Supplement Footnotes

54 508 U.S. 520, 531 (1993) .
55 Pub. L. No. 103–141, 107 Stat. 1488 (1993); 42 U.S.C. §§ 2000bb to 2000bb–4.
56 Pub. L. No. 103–141, § 2(b)(1) (citations omitted). Congress also avowed a purpose of providing “a claim or defense to persons whose religious exercise is substantially burdened by government.” § 2(b)(2).
57 521 U.S. 507 (1997) .
58 521U.S. at 519 521U.S. at 519.
59 521U.S. at 533–34 521U.S. at 533–34.
60 521U.S. at 536 521U.S. at 536.
61 Late in the second session of the 106th Congress, the House and the Senate passed, and President Clinton signed into law, the “Religious Land Use and Institutionalized Persons Act of 2000.” The Act utilizes Congress’ spending power and its power over interstate commerce to impose a strict scrutiny test on state and local zoning and landmarking laws and regulations which impose a substantial burden on an individual’s or institution’s exercise of religion. It utilizes the same powers to impose a strict scrutiny test on state and local governments for any substantial burdens they impose on the exercise of religion by persons in state or locally run institutions such as prisons, mental hospitals, juvenile detention facilities, and nursing homes. See Pub. L. No. 106–274 (2000).
62 See, e.g., In re Young, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811 (1998) (lower court held RFRA to be constitutional as applied to federal bankruptcy law).
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