Laws that Discriminate Against Religion
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.
The Supreme Court has recognized that the Free Exercise Clause “protect[s] religious observers against unequal treatment.” 1 Thus, even after Employment Division v. Smith held that laws burdening religion generally will not violate the Free Exercise Clause if they are neutral and generally applicable,2 a law that imposes special burdens on religious activities may not be considered neutral and generally applicable and will trigger heightened scrutiny.3 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring “[ministers] of the Gospel, or [priests] of any denomination whatever” from serving as a delegate to a state constitutional convention.4 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one's religion on the “surrender” of the right to seek office as a delegate.5 As such, the Court held that the law imposed a “special disabilit[y] on the basis of . . . religious status.” 6
Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding to resurface playgrounds because of the church's religious affiliation.7 Specifically, Chief Justice Roberts, on behalf of the Court,8 noted that Missouri's policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the “most exacting scrutiny.” 9 In so holding, the Court rejected the State of Missouri's argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.10 Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion,” as well as “outright” prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.11 Moreover, the Court held that Missouri's policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.12 As a result, the Court held that Missouri's policy violated the Free Exercise Clause.13
Even if a law does not expressly target religion, it will trigger strict scrutiny if its object “is to infringe upon or restrict practices because of their religious motivation.” 14 Accordingly, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court struck down a set of ordinances enacted by a Florida city that had the “impermissible object” of targeting “conduct motivated by religious beliefs.” 15 The Florida ordinances prohibited animal sacrifice, making certain exemptions for animals killed for food consumption, and were passed in direct response to the establishment of a Santeria church within the city and city residents’ concerns about the Santeria practice of animal sacrifice.16 The Supreme Court concluded that the ordinances were not neutral within the meaning of Smith because they unconstitutionally sought to suppress Santeria religious worship.17 Among other factors, the Court noted that the laws accomplished a “religious gerrymander” : although the text did not expressly refer to Santeria, the law nonetheless prohibited only Santeria sacrifice.18 The Court also held that the ordinances were not generally applicable under Smith because they selectively burdened “only . . . conduct motivated by religious belief.” 19 The Court therefore applied “the most rigorous of scrutiny” and ruled the ordinances unconstitutional.20
The Court has suggested that it is equally unconstitutional for hostility to religion to motivate the government's decisions to apply its laws.21 In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who had, in the view of the state, violated those laws by refusing to make a cake for a same-sex wedding.22 The Court held that the state had violated the Free Exercise Clause because the Colorado Civil Rights Commission had not considered the baker's case “with the religious neutrality that the Constitution requires.” 23 As a general rule, the Court announced that “the delicate question of when the free exercise of [the baker's] religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.” 24 The Court highlighted two aspects of the state proceedings that had, in its view, demonstrated impermissible religious hostility: first, certain statements by some of the Commissioners during the proceedings before the Commission25 ; and second, “the difference in treatment between [the petitioner's] case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” 26
Seemingly building on the Court's second rationale in Masterpiece Cakeshop, the Supreme Court has said that government regulations are not neutral and trigger strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise.” 27 In November 2020 and April 2021, the Supreme Court issued two per curiam opinions applying strict scrutiny to state regulations that limited gatherings, including religious gatherings, in response to the COVID-19 pandemic.28 In the first case, Roman Catholic Diocese of Brooklyn v. Cuomo, the Court noted that while houses of worship were subject to strict occupancy limits, “essential” businesses faced no such restrictions.29 This “especially harsh treatment” triggered strict scrutiny, which the government could not satisfy. 30 In the second case, Tandon v. Newsom, the Court explained that “whether two activities are comparable . . . must be judged against the asserted government interest that justifies the regulation at issue.” 31 In the context of restrictions to prevent the spread of COVID-19, the Court said comparability was “concerned with the risks various activities pose.” 32 Applying these principles to the challenged restrictions, the opinion held that the state did treat “some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.” 33 The Court further held that the challengers were likely to prevail under a strict scrutiny analysis because the state had “not shown that 'public health would be imperiled' by employing less restrictive measures.” 34
Accordingly, a law that contains exemptions may be subject to strict scrutiny if those exemptions create or allow religious discrimination.35 Smith itself said that the Court had reviewed laws creating “a system of individual exemptions” under a balancing test requiring the government to demonstrate a compelling interest.36 The Supreme Court explained that, for example, it had applied this heightened standard of review to an unemployment compensation system that required “individualized governmental assessment” of whether an individual had shown “good cause” for refusing work.37
The Court expanded on this aspect of the Smith opinion in Fulton v. City of Philadelphia, decided in 2021, saying that the presence of individualized exemptions may render a law not generally applicable and therefore subject to strict scrutiny.38 In Fulton, the Supreme Court held that a Catholic foster care agency was entitled to a constitutional exception from a city's nondiscrimination policy.39 The city had refused to sign a contract with the agency unless it agreed to a provision prohibiting discrimination on the basis of certain protected classes, including sexual orientation, in the provision of services.40 The agency argued that this would impermissibly require it to certify same-sex foster parents in violation of its religious beliefs, and the Supreme Court agreed.41 The Court said that the contract's nondiscrimination provision was not generally applicable under Smith because it allowed a city official to grant exceptions, in the official's “sole discretion.” 42 Although the city had never actually granted an exception to either secular or religious activities and asserted that it had no intention of granting any such exception in the future, the Court nonetheless held that the nondiscrimination provision “incorporate[d] a system of individual exemptions,” and that the city could not “refuse to extend that [exemption] system to cases of religious hardship without compelling reason.” 43 Ultimately, the Supreme Court concluded that the city failed to meet this standard, because it had offered “no compelling reason why it has a particular interest in denying an exception to [the religious agency] while making them available to others.” 44
- Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542 (1993) (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment)).
- Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).
- Church of Lukumi Babalu Aye, 508 U.S. at 531–32.
- 435 U.S. 618, 620 (1978).
- See McDaniel, 435 U.S. at 626 (plurality opinion). A plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens noted that the absolute prohibition on the government regulating religious beliefs (as established by Torasco v. Watkins, 367 U.S. 488 (1961)) was inapplicable to the case because the Tennessee disqualification was a prohibition based on religious “status,” not belief. See id. at 626–27. Nonetheless, the plurality opinion concluded that the (1)Tennessee law was governed by the balancing test established under Sherbert v. Verner, 374 U.S. 398, 406 (1963), and (2) the law's regulation of religious status could not be justified based on the state's outmoded views of the dangers of clergy participation in the political process. Id. at 627–28.
Justice Brennan, joined by Justice Marshall, relying on Torasco, argued that the challenged provision, by establishing as a “condition of office the willingness to eschew certain protected religious practices,” violated the Free Exercise Clause. Id. at 632 (Brennan, J., concurring). Justice Brennan's concurrence also maintained that the exclusion created by the Tennessee law could violate the Establishment Clause. Id. at 636. In a separate opinion, Justice Stewart noted his agreement with Justice Brennan's conclusion that Torasco controlled the case. Id. at 642 (Stewart, J., concurring). Rather than relying on the Free Exercise Clause to invalidate the Tennessee law, Justice White's concurrence suggested that the law was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Id. at 643 (White, J., concurring).
- Smith, 494 U.S at 877.
- See also Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 5 n.1 (U.S. June 26, 2017).
- Three Justices (Kennedy, Alito, and Kagan) joined Chief Justice Roberts' entire opinion, while Justices Thomas and Gorsuch joined in all but a single footnote of the decision. The footnote that Justices Thomas and Gorsuch declined to join was a footnote that disclaimed that the instant case was examining “express discrimination based on religious identity with respect to playground resurfacing” and did not “address religious uses of funding or other forms of discrimination.” Id. at 18 n.3.
- Id. at 10.
- Id. at 10–11. As a result, the Court characterized the church's injury not so much as being the “denial of a grant” itself, but rather the “refusal to allow the Church . . . to compete with secular organizations for a grant.” Id. at 11.
- Id. at 14. Both parties agreed, and the Court accepted, that the Establishment Clause did not prevent Missouri from including the church in the state's grant program. Id. at 6.
- Id. at 14–15. See also Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 10, 20 (U.S. June 30, 2020) (holding that a state violated the Free Exercise Clause by excluding religious schools from a tax credit program based solely on the schools’ “religious status”).
- Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993).
- Id. at 524.
- Id. at 526–28.
- Id. at 540.
- Id. at 534–35.
- Id. at 543.
- Id. at 546.
- Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, No. 16-111, slip op. at 18 (U.S. June 4, 2018).
- Id. at 3.
- Id. at 3.
- Id. at 13–14.
- Id. at 14. See also id. at 16 ( “A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness.” ).
- Tandon v. Newsom, No. 20A151, slip op. at 1 (U.S. Apr. 9, 2021) (per curiam).
- Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, slip op. at 3 (U.S. Nov. 25, 2020) (per curiam); Tandon, No. 20A151, slip op. at 1. The per curiam opinion in Roman Catholic Diocese of Brooklyn also “addresse[d]” another case, Agudath Israel of America v. Cuomo, No. 20A90. No. 20A87, slip op. at 1 (U.S. Nov. 25, 2020). See also S. Bay United Pentecostal Church v. Newsom, No. 20A136 (U.S. Feb. 5, 2021) (mem.) (granting temporary relief enjoining prohibition on indoor worship services); Gateway City Church v. Newsom, No. 20A138 (U.S. Feb. 26, 2021) (mem.) (granting temporary relief enjoining prohibition on indoor worship services and stating that such relief was “clearly dictated by this Court's decision in South Bay United Pentecostal Church v. Newsom” ).
- Roman Catholic Diocese of Brooklyn, No. 20A87, slip op. at 3. The per curiam opinion did not explicitly analyze whether activities at these essential businesses were comparable to the religious activities before concluding that the policy was not neutral, though it did note that “factories and schools have contributed to the spread of COVID-19.” See id. at 3. In a concurring opinion, Justice Gorsuch emphasized that strict scrutiny is triggered if the government treats “religious exercises worse than comparable secular activities,” and emphasized that people may also gather for extended periods in the businesses designated as essential. Id. at 1–2 (Gorsuch J., concurring) (emphasis added).
- Id. at 3, 4 (per curiam). The Court held that while the government had a “compelling interest” in “stemming the spread of COVID-19,” these regulations were not narrowly tailored to that interest. Id. at 4.
- Tandon, No. 20A151, slip op. at 2.
- Id. at 3.
- Id. at 4 (quoting Roman Catholic Diocese of Brooklyn, No. 20A87, slip op. at 5).
- See id. at 2.
- Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 883–84 (1990).
- Id. at 884.
- Fulton v. City of Philadelphia, No. 19-123, slip op. at 6–7 (U.S. June 17, 2021).
- Id. at 15.
- Id. at 3.
- Id. at 3, 15.
- Id. at 11.
- Id. (quoting Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990)) (internal quotation marks omitted) (alteration in original).
- Id. at 15.
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