Laws that Discriminate Against Religious Practice

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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 from serving as delegates to a state constitutional convention.4 While the Court splintered with respect to its rationale, a majority agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right to exercise one’s religion on the “surrender” of the right to seek office as a delegate.5 As such, the law impermissibly imposed a “special disabilit[y] on the basis of religious views or religious status.” 6 To take another example, in Kennedy v. Bremerton School District, the Court ruled that a school district violated the Free Exercise Clause by suspending a football coach because he engaged in religious conduct—praying at the fifty-yard line after a football game.7

Similarly, in Trinity Lutheran Church of Columbia, Inc. 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.8 The Court concluded 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—a result that triggered the “most exacting scrutiny.” 9 The Court rejected the State of Missouri’s argument that withholding funds did not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.10 Relying on McDaniel, Chief Justice John 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 In evaluating whether the state’s policy was justified by “a state interest ‘of the highest order,’” the Court noted the parties’ agreement that the Establishment Clause did not require religious organizations’ exclusion from the program, and said that the state’s “policy preference” for achieving an even greater separation of church and state did not “qualify as compelling.” 12 As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.13 In a later case discussed in more detail in another essay, the Court further held that a law excluding religious schools from a state’s tuition assistance program based on the fact that the schools would use the funds for religious activities was similarly unconstitutional.14

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.” 15 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.” 16 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.17 The Supreme Court concluded that the ordinances were not neutral within the meaning of Smith because they unconstitutionally sought to suppress Santeria religious worship.18 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.19 The Court also held that the ordinances were not generally applicable under Smith because they selectively burdened “only . . . conduct motivated by religious belief.” 20 The Court therefore applied “the most rigorous of scrutiny” and ruled the ordinances unconstitutional.21

The Court has suggested that it is equally unconstitutional for hostility to religion to motivate the government’s decisions to apply its laws.22 Consequently, even laws that are neutral on their face and in their purpose may violate the Free Exercise Clause if they are applied in a way that discriminates against religious activity.23 For example, the Supreme Court held that a city violated the First Amendment when it applied an ordinance prohibiting certain activities in public parks in a discriminatory fashion.24 According to the Court, the evidence showed that a certain group’s religious service had been treated differently “than a religious service of other sects,” amounting “to the state preferring some religious groups over this one.” 25 The Court cautioned that it was “no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.” 26

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, another case involving allegations of religious hostility, the Court set aside state administrative proceedings enforcing Colorado’s anti-discrimination laws against a baker who had refused to make a cake for a same-sex wedding.27 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.” 28 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 Commission29 ; 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.” 30

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.” 31 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.32 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.33 This “especially harsh treatment” of religious groups triggered strict scrutiny, which the government could not satisfy.34 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.” 35 In the context of restrictions to prevent the spread of COVID-19, the Court said comparability was “concerned with the risks various activities pose.” 36 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.” 37 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.” 38

Accordingly, a law that contains exemptions may be subject to strict scrutiny if those exemptions create or allow religious discrimination.39 As discussed in more detail elsewhere,40 early Supreme Court jurisprudence considering restrictions on religious speech in public forums invalidated rules that granted officials broad discretion that they could use to discriminate against religious speech.41 Citing seemingly similar concerns, Smith said that the Court had reviewed laws creating “a system of individual exemptions” under a heightened level of scrutiny requiring the government to demonstrate a compelling interest.42 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.43

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.44 In Fulton, the Supreme Court held that a Catholic foster care agency was entitled to a constitutional exception from a city’s nondiscrimination policy.45 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.46 The agency argued that this provision would impermissibly require it to certify same-sex foster parents in violation of its religious beliefs.47 The Supreme Court agreed, saying 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.” 48 Although the city had never actually granted an exception to either secular or religious activities under its other contracts, 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.” 49 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.” 50

1: 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)).
2: Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).
3: Church of Lukumi Babalu Aye, 508 U.S. at 531–32.
4: 435 U.S. 618, 629 (1978) (plurality opinion).
5: Id. at 626; accord id. at 633–34 (Brennan, J., concurring in the judgment).
6: Smith, 494 U.S at 877 (describing the holding in McDaniel).
7: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 31–32 (U.S. June 27, 2022). The Court held that the school’s policies were not neutral because they were based on the religious character of the actions, and the policies were not generally applicable because the school allowed coaching staff to engage in other types of personal activities after the game. Id. at 14. Although the Court acknowledged that strict scrutiny would ordinarily apply under the Free Exercise Clause, there were open questions in the case about whether a lower standard should apply under a Free Speech Clause framework. Id. at 19–20. The Court avoided answering that open question by concluding the school could not “sustain its burden under any” of the suggested levels of scrutiny. Id. at 20.
8: See Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 15 (U.S. June 26, 2017).
9: Id. at 10. The Supreme Court later clarified that Trinity Lutheran had applied “strict scrutiny.” Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 12 (U.S. June 30, 2020).
10: Trinity Lutheran, slip op. 10
11: 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.
12: Id. at 6, 14 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978) (plurality opinion)).
13: Id. at 14–15. See also Espinoza, slip op. at 10, 20 (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” ); Mitchell v. Helms, 530 U.S. 793, 835 n.19 (2000) (plurality opinion) (saying that excluding religious schools from a federal program authorizing public schools to lend materials to private schools “would raise serious questions under the Free Exercise Clause.” ). But see Locke v. Davey, 540 U.S. 712, 721–22 (2004) (rejecting free exercise challenge to state provision prohibiting scholarships from being used for devotional theology degrees, saying the state could permissibly choose not to fund this “distinct category of instruction” and noting the state’s historically grounded “antiestablishment interests” ). These cases are discussed in more detail in Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses.
14: Carson v. Makin, No. 20-1088, slip op. at 15–17 (U.S. June 21, 2022); see also Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses.
15: Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993). See also Tucker v. Texas, 326 U.S. 517, 520 (1946) (rejecting a free exercise challenge after noting that the challenged laws did not indicate “a purpose to bar freedom of press and religion” ); In re Summers, 325 U.S. 561, 571 (1945) (rejecting a free exercise challenge after noting that the challenged policy did not appear motivated by a “purpose to discriminate” against certain religious groups).
16: Church of Lukumi Babalu Aye, 508 U.S. at 524.
17: Id. at 526–28.
18: Id. at 540.
19: Id. at 534–35.
20: Id. at 543.
21: Id. at 546.
22: Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111, slip op. at 18 (U.S. June 4, 2018). See also Cruz v. Beto, 405 U.S. 319, 322 (1972) (holding that the government would violate the Free Exercise Clause if it discriminated against a Buddhist prisoner by denying him “a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners” ); Niemotko v. Maryland, 340 U.S. 268, 272 (1951) ( “The conclusion is inescapable that the use of the park was denied because of the City Council’s dislike for or disagreement with the [Jehovah’s] Witnesses or their views. The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body.” ). In some cases involving both Religion Clauses, the Court has suggested that refusing to accommodate religious activity might also demonstrate impermissible hostility to religion. See Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses.
23: See, e.g., Fowler v. Rhode Island, 345 U.S. 67, 67, 70 (1953).
24: Id.
25: Id. at 69.
26: Id. at 69–70.
27: Masterpiece Cakeshop, slip op. at 3. In a subsequent case, the Supreme Court emphasized that these “'official expressions of hostility’ to religion” led the Court to “set aside” the policies “without further inquiry.” Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 12 (U.S. June 27, 2022) (quoting Masterpiece Cakeshop, slip op. at 18). Two members of the six-Justice majority in Masterpiece Cakeshop, however, had stated that the case was reviewed under strict scrutiny analysis in a concurring opinion. Masterpiece Cakeshop, slip op. at 1 (Gorsuch, J., concurring).
28: Masterpiece Cakeshop, slip op. at 3.
29: Id. at 13–14.
30: 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.” ).
31: Tandon v. Newsom, No. 20A151, slip op. at 1 (U.S. Apr. 9, 2021) (per curiam).
32: Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, slip op. at 3 (U.S. Nov. 25, 2020) (per curiam); Tandon, 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” ).
33: Roman Catholic Diocese of Brooklyn, 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 Neil 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).
34: 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.
35: Tandon, slip op. at 2.
36: Id.
37: Id. at 3.
38: Id. at 4 (quoting Roman Catholic Diocese of Brooklyn, slip op. at 5).
39: See Tandon, slip op. at 2.
40: Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s.
41: See, e.g., Niemotko v. Maryland, 340 U.S. 268, 273 (1951); Cantwell v. Connecticut, 310 U.S. 296, 305 (1940).
42: Smith, 494 U.S. at 883–84. Smith did not expressly draw a comparison between the broad “good cause” inquiry that was at issue in Sherbert v. Verner, 374 U.S. 398, 401 (1963), and the broad discretionary regimes governing public forums. Instead, Smith suggested that the Court had applied a heightened standard of review in the latter set of cases because they involved “the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” 494 U.S. at 881.
43: Smith, 494 U.S. at 884.
44: Fulton v. City of Philadelphia, No. 19-123, slip op. at 6–7 (U.S. June 17, 2021).
45: Id. at 15.
46: Id. at 3.
47: Id. at 3, 15.
48: Id. at 11.
49: 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).
50: Id. at 15.