Facially Neutral Laws that Interfere With Religious Practice: Doctrine during 1960s through 1980s

U.S. Constitution Annotated

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.

Braunfeld v. Brown1 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.2 “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.” 3

Within two years the Court in Sherbert v. Verner4 reversed this 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 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. If this denial of benefits is to be upheld, the Court said, “it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because 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 . . . .’” 5 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.6 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.” 7

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board8 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 material to the determination that free exercise rights had been burdened by the denial of unemployment compensation.9 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.10

The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. Wisconsin v. Yoder11 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 parents were indeed religiously based and of great antiquity.12 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.13 Instead, the Court analyzed whether a “compelling” governmental interest required such “grave interference” with Amish belief and practices.14 The governmental interest was not the general provision of education, as the state and the Amish agreed as to education through the first eight grades and as 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, the Court found, showed that this interest outweighed the great harm that it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.15

But in United States v. Lee,16 the Court denied an Amish employer 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.17 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,18 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.19

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.20 Sherbert’s threshold test, inquiring “whether government has placed a substantial burden on the observation of a central religious belief or practice,” 21 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 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.” 22 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” 23 —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’n24 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 Yurok, Karok, and Tolowa Native Americans 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.’” 25 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.26 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 nature of the governmental actions did not implicate free exercise protections.27

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.” 28 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.29 .

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.’” 30 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.31 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.” 32

1: 366 U.S. 599 (1961). See “Sunday Closing Laws,” supra, for application of the Establishment Clause.
2: 366 U.S. at 605–06.
3: 366 U.S. 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, 366 U.S. at 512–22. Three Justices dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 610 (Justice Brennan), 616 (Justice Stewart).
4: 374 U.S. 398 (1963).
5: 374 U.S. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 (1963).
6: 374 U.S. at 403–06.
7: 374 U.S. 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).
8: 450 U.S. 707 (1981).
9: Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987).
10: 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).
11: 406 U.S. 205 (1972).
12: 406 U.S. at 215–19. Why the Court felt impelled to make these points is unclear, as 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).
13: 406 U.S. at 219–21.
14: 406 U.S. at 221.
15: 406 U.S. at 221–29.
16: 455 U.S. 252 (1982).
17: The Court’s formulation was whether the limitation on religious exercise was “essential to accomplish an overriding governmental interest.” 455 U.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’” ).
18: 461 U.S. 574 (1983).
19: 461 U.S. at 604.
20: 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.
21: As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).
22: 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 a deduction for payments deemed to be for commercial rather than religious or charitable purposes).
23: Jimmy Swaggart Ministries, 493 U.S. at 392.
24: 485 U.S. 439 (1988).
25: 485 U.S. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring).
26: Bowen v. Roy, 476 U.S. 693 (1986).
27: “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, 485 U.S. at 449.
28: Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
29: 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, § 508(a)(2), 101 Stat. 1086 (1987); 10 U.S.C. § 774.
30: O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
31: O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
32: 482 U.S. 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).

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