Amdt1. Facially Neutral Laws and Internal Government Affairs

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Two Supreme Court cases from the late 1980s held that the First Amendment’s Free Exercise Clause is not implicated by internal government procedures—at least, so long as the internal policy is generally applicable and facially neutral towards religion.1 The religious challenger in Bowen v. Roy believed that by assigning his daughter a Social Security number and using that number to administer certain government programs, her spirit had been robbed.2 The Supreme Court rejected the father’s constitutional challenge, saying “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 3 The Court further said that the Clause “affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” 4 In the Court’s view, the federal government’s use of a Social Security number did not “in any degree impair” the father’s free exercise of religion.5

The Supreme Court extended this principle in Lyng v. Northwest Indian Cemetery Protective Ass’n, holding that the federal government could allow timber harvesting in a national forest that had “historically been used for religious purposes” by certain Native American tribes.6 The Court declined to analyze the law under any heightened form of scrutiny, although it acknowledged that—as in Roy—the government’s action would “interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs.” 7 Critically, though, the Court further concluded that the government’s action would not coerce anyone into violating their religious beliefs or “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” 8 While prior cases had held that “indirect coercion or penalties on” religion could trigger heightened constitutional scrutiny, the Court distinguished prohibitions on religious activity from “incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs.” 9 Even assuming that the government’s decision about how to use the public land would destroy the tribes’ ability to practice their religion, the Court said that the First Amendment could not give citizens the ability to “veto . . . public programs that do not prohibit the free exercise of religion.” 10

Cf. Fulton v. City of Philadelphia, No. 19-123, slip op. at 8 (U.S. June 17, 2021) (concluding that prior “cases involving internal government affairs” were not relevant to a government policy that was not generally applicable, noting that the Court has “never suggested that the government may discriminate against religion when acting in its managerial role” ). back
Bowen v. Roy, 476 U.S. 693, 696, 699 (1986). The religious challengers also objected to having to provide a Social Security number in order to obtain certain benefits. Id. at 699. That aspect of the case is discussed Amdt1. Facially Neutral Laws From the 1960s Through the 1980s. back
Roy, 476 U.S. at 699. back
Id. at 700. back
Id. back
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988). back
Id. at 447–49. back
Id. at 449. back
Id. at 450–51. back
Id. at 451–52. back