Laws Neutral to Religious Practice and Current Doctrine

prev | next

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.

In the 1990 decision Employment Division v. Smith, the Supreme Court attempted to reconcile its various standards for evaluating Free Exercise Clause challenges, limiting the heightened scrutiny of Sherbert v. Verner to a specific context and outlining a lower level of scrutiny for many other government actions.1 Specifically, in Smith, the Court rejected a free exercise claim brought by two members of a Native American church.2 The state had denied them unemployment benefits after they were fired for using peyote in violation of state criminal drug laws.3 The church members argued that this denial of benefits impermissibly burdened their religious practice, because they had used peyote for sacramental purposes.4 The Supreme Court disagreed, stating that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” 5

The majority opinion in Smith acknowledged that some prior Supreme Court decisions, such as Sherbert, had applied a heightened standard that required the government to demonstrate that any substantial burdens on religion were justified by a compelling governmental interest.6 However, the Court said those earlier cases concerned laws that were not truly “generally applicable,” and had “nothing to do with an across-the-board criminal prohibition on a particular form of conduct.” 7 Instead, those cases involved systems like unemployment benefit programs in which the government decided case by case whether to apply laws through “individualized . . . assessment[s].” 8 Because individual exemption decisions presented a greater risk of religious discrimination, they required a heightened standard of review.9 By contrast, the criminal laws in Smith generally prohibited using certain drugs and were “not specifically directed at [the church members'] religious practice.” 10 The Court noted that other cases such as United States v. Lee and Braunfeld v. Brown11 had upheld the application of generally applicable laws to religiously motivated conduct.12

The majority opinion also said that some of the other cases applying a heightened standard of review to invalidate government actions violating the Free Exercise Clause had involved “hybrid” claims, in which plaintiffs claimed the government had violated additional constitutional rights beyond the free exercise of religion.13 The Court placed its early cases dealing with religious speech in this category, noting they also implicated First Amendment protections for speech and press.14 In contrast, the benefits claimants in Smith presented “a free exercise claim unconnected with any communicative activity” or any other right.15

The Court’s opinion relied in part on its belief that applying a “'compelling interest’ test” in any claim involving the application of a law to religious motivated action “would be courting anarchy.” 16 A rule deeming such applications “presumptively invalid . . . . would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 17 This aspect of the Court’s decision drew from prior cases that had expressed similar concerns18 in attempting to avoid outcomes that would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” 19 For example, in a prior case involving a religious objection to internal government procedures, the Court had said that the government “simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” 20

Accordingly, after Smith, the Court has deemed burdens on free exercise that are “merely the incidental effect of a generally applicable and otherwise valid provision” not to violate the First Amendment.21 However, some judges and commentators found Smith “controversial.” 22 Although the Court has so far resisted calls to overrule the case,23 subsequent cases discussed in another essay have explored limitations on the doctrine, effectively continuing to apply heightened constitutional scrutiny in a way that frequently requires government accommodation of religious exercise.24 Specifically, Smith left open the possibility that some form of heightened scrutiny would apply to laws that were not generally applicable or neutral towards religion.25 In addition, by declining to overrule Sherbert and its progeny, Smith suggested that the compelling interest test might still apply in certain circumstances, potentially when statutory schemes require “individualized governmental assessment.” 26 The Court has not yet elaborated on Smith's discussion of “hybrid” constitutional claims which might also trigger heightened scrutiny.27

1: Emp. Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 884–85 (1990). Sherbert v. Verner, 374 U.S. 398 (1963), is discussed in more detail in Amdt1.4.3.2 Laws Neutral to Religious Practice from the 1960s through the 1980s.
2: Smith, 494 U.S. at 874.
3: Id.
4: Id.
5: Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).
6: Id. at 883; see also Amdt1.4.3.2 Laws Neutral to Religious Practice from the 1960s through the 1980s.
7: Smith, 494 U.S. at 884.
8: Id.
9: Id.
10: Id. at 878.
11: United States v. Lee, 455 U.S. 252 (1982), and Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), are discussed in Amdt1.4.3.2 Laws Neutral to Religious Practice from the 1960s through the 1980s.
12: Smith, 494 U.S.at 880.
13: Id. at 881–82.
14: Id. at 881. These early cases are discussed in Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s. The Court also characterized Wisconsin v. Yoder, 406 U.S. 205 (1972), discussed inAmdt1.4.3.2 Laws Neutral to Religious Practice from the 1960s through the 1980s, as such a hybrid claim, involving “the right of parents . . . to direct the education of their children.” Smith, 494 U.S. at 881.
15: Smith, 494 U.S. at 882.
16: Id. at 888.
17: Id.
18: See id. at 885 (citing Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) and Reynolds v. United States, 98 U.S. 145 (1845)).
19: Reynolds, 98 U.S. at 167.
20: Lyng, 485 U.S. at 452; see also id. ( “The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion.” ).
21: Smith, 494 U.S. at 878. See also Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 697 n.27 (2010) (citing Smith to reject a free exercise claim in which a religious student group sought “an exemption” from a university’s “across-the-board” policy generally requiring school-approved student groups to accept all comers).
22: Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, slip op. at 1 (U.S. June 4, 2018) (Gorsuch, J., concurring). In addition, Congress responded to Smith by adopting the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb–bb-4, and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc–cc-5, which create a statutory cause of action with a heightened form of scrutiny for certain government actions imposing a substantial burden on religious exercise. RFRA was ruled partly unconstitutional in City of Boerne v. Flores, 521 U.S. 507, 536 (1997), discussed in more detail in in Amdt14.S5.4 Modern Doctrine on Enforcement Clause. RLUIPA was upheld against an Establishment Clause challenge in Cutter v. Wilkinson, 544 U.S. 709, 720 (2005), briefly discussed in Amdt1.3.6.3 Lemon’s Effect Prong and Accommodation of Religion and Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause.
23: See, e.g., Fulton v. City of Philadelphia, No. 19-123, slip op. at 4–5 (U.S. June 17, 2021).
24: Amdt1.4.4 Laws that Discriminate Against Religious Practice.
25: Smith, 494 U.S. at 879.
26: Id at 884.
27: Id at 882.