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Religious Liberty
Wayne State University Law School
Lund, Christopher C.

___ Religious_Liberty_Lund_2010_Short_Outline.doc__________________________________________________________
Free Exercise Clause:
– Different Ways Court Approach the issue:
o Liberty Approach: give religious exemption unless there Govt can show good reason
o Equality/Neutrality Approach: denominational neutrality
§ If Christians get Sunday off, then Jews should get Saturday off; or neither get it
o General Applicability Approach: what matters is how non-religious people are treated.
§ If religious person can get an exemption, then a non-religious person can too
o Assimilation Approach: directly hostile to religious exemptions. Law is primary
§ Any exemption is a violation of Establishment Clause

Is Accommodation Required?
– Cantwell v Connecticut (1940): Jehovah Witness going door to door with portable record player and flyers; Cantwell almost gets in fight with Catholics; is arrested for breach of peace and going door to door without a license; Cantwell never tried to apply for a license.
o 1st time court applies 14th amendment, free exercise to state and local govts
o HOLDING: SC reverses convictions and says that states can’t require licenses for door to door preaching.
§ Court begins to allow religious actions (not just beliefs as in Reynolds)
· Beliefs are absolutely protected; acts are somewhat protected
· Balancing act between person interest and govt interest

– Sherbert v Verner(USSC1963): pg. 124: P lost her job for refusing to work on Saturdays bc Sabbath; couldn’t get unemployment bc refused to work any job that worked on Saturdays; SC used distinction between belief and conduct; belief is protected, conduct is protected unless there is a danger
o TEST: Adopts a 2 part test:
§ Is there a burden on P’s religious belief and if so, (if no burden, no problem)
§ Is there a compelling govt interest (strict scrutiny) (if yes, no problem)
o Burden is the catch 22 btw religion and state law (this is the equivalent of a fine)
o Govt compelling interest: fraud by unemployment applicants (also, govt gives Sundays off, so no Sunday Sabbath observer is forced to work)
o HOLDING: P wins. There is a burden and no compelling interest bc no fraud here
§ Dissent : Est CL issue; Cts should not get involved, let the Legislature do it
· No Est CL problem bc govt not favoring this religion by accomodation

– Wisconsin v Yoder (USSC -1972) pg. 133: Law requires compulsory attendance in school until age 18; Amish want to have kids out of school after 8th grade; Amish sue and gets to S.C.
o TEST: burden and compelling interest test (from Sherbert)
o Even though the law looks neutral (applies to everyone), it can still be unconstitutional if there is a burden
o Burden: Amish children are supposed to join the community after 8th grade; forcing them to attend schools changes the Amish religious beliefs
o Compelling Interest: WI Govt says that there is a govt interest in having kids being educated and not a drain on welfare system later (Doesn’t matter bc Amish people have been successful community in history)
o HOLDING: there is a burden to religious belief and there the govt interest (above) is not compelling
o This test becomes less strong in practice through the courts until Smith case*

– Formal Neutrality v Substantive Neutrality:
o Formal Neutrality: no exemptions period (Boerne)
o Middle of the road: Cts should deny exemptions but Legislature can give them (Smith)
o Substantive Neutrality: exemptions. CTs and Legislature should give them (Sherbert, Yoder)

Current State of the Law
– Employment Division v Smith (USSC-1990) pg. 137: Native Americans wanted to use Peyote for religious purposes; fired from jobs for failing drug test; denied unemployment bc fired for misconduct; Peyote is considered a serious drug in Federal law (neutral law); ISSUE: prohibition on peyote, is this constitutional? Rule was passed in neutrality w/o regard to Native Americans
o TEST: compelling interest test changes to Neutral and General Applicable Rule
§ Laws burdening the exercise of religion do not need any justification as long as they are neutral and generally applicable
· ONLY If law is not neutral, then move to compelling interest rule
o Ct explains away the previous cases as hybrids
o Legislature is the one to give exemptions, not the Judiciary
o Want to avoid inquiring into uncomfortable things like sincerity of religion
o HOLDING: This law is neutral and therefore, it is fine (don’t need to look at compelling interest)
§ Smith Majority was mixed as to neutrality; decide on this new rule
§ But also says that there is nothing wrong with Legislature giving exemptions
§ O’Connor’s concurrence says to keep Sherbert compelling interest test
§ Hybrid claims: if free exercise claim is brought with other constitutional claims
§ Individualized assessments: (this is how the CT distinguished Sherbert)
§ Church Autonomy Claims: internal church governance (BELOW)

– RFRA: Religious Freedom Restoration Act of 1993 (Handout): Congress speaks to Smith Decision. Passes this Act that even if a law is neutral to religion, it cannot burden religion; must use compelling state interest** ; makes this test an actual Fed Statute *(back to Yoder and Sherbert)
o Ends up only applying to FEDERAL laws
o Some states enact their own RFRAs: see handout re: TX and Penn.
– RLUIPA (Handout): Shows Congress’ power as to land use and/or institutionalized persons
o Federal and State law

– City of Boerne v Flores (USSC 1997): pg 9, notes: Church wanted to expand but was denied a permit bc historical district; sued under RFRA.
o TEST: RFRA- Even neutral laws may burden religion, so need compelling govt interest not just neutral law test*
§ Congress restored the Compelling Interest test over the Neutrally applicable test
o Case about congress power under Enforcement Clause of Constitution
o HOLDING: RFRA is invalid for states and municipalities; Overstepping Congress power under 14th amendment, Enforcement Clause.; goes too far beyond what the SC said the constitutionality of the 14th amendment was in Smith (but still valid for Federal govt*)

Is Accommodation Required under the Free Exercise Clause (cont.)

Current state of the Law:

o Neutral and Generally Applicable Rule (with Exceptions)
§ Must be Neutral AND Generally applicable (either one will violate)
§ If not neutral/generally app- then use compelling interest/strict scrutiny test (least restrictive means)
(**either a failure of neutrality OR general applicability can make law unconstitutional**)

o Exceptions:
§ (1) Hybrid claims: if free exercise claim is brought with other constitutional claims
§ (2) Individualized assessments: (Sherbert)
§ (3) Church Autonomy Claims: internal church governance*


o RFRA: only for federal govt laws- Compelling Interest Test
o RLUIPA: federal and state;
§ Compelling Interest Test only for substantial burdens on land use (zoning laws) or institutionalized persons (prisons or mental institutions)
o State Constitution RFRAs- Compelling Interest Test under State Law

hway Safety and Motor Vehicles (2006-handout): Muslim women who is veiled; State law says can’t take license picture without removing her veil
o She sues under State RFRA: look for burden and compelling interest
o Can also look for generally applicability:
§ for exceptions that the state has for license pictures; is this enough to render it not generally applicable
o Problem here with interpretations of religious beliefs

– Filinovich v Claar (2006-handout): P interviewed for director of finance of Village of Bolingbrook, position required attendance at quarterly budget mtgs on Saturdays; P was not hired bc as a 7th Day Adventist, she can’t work on Saturdays (Sabbath); P brought suit bc no accommodation
o TEST: Neutral and Generally Applicable (under Smith)
o There is no showing of non-neutrality; no intent to discriminate; rule is generally applicable
§ There was a legitimate reason to have Saturday mtgs- legitimate reason
o HOLDING: P loses; was neutral and generally applicable

Burden and Sincerity for Compelling Interest Test:
– This section applies only when RFRA, RUILPA, or State RFRA applies and thus, burden/compelling interest test applies
– Compelling Interest Test: must show a burden and that there is no sufficient compelling govt interest
o Free Exercise Clause is not absolute: laws that incidental burden particular religious practices do not violate the Free Exercise Clause as long as they are neutral and generally applicable
– Braunfield v Brown (1961): Jewish store owners; state ordinance to keep shops closed on Sunday; had to keep shop closed on Saturday bc of Sabbath; so losing lots of money on weekend
o HOLDING: Not enough for a burden; govt had a secular reason and this was an indirect burden on P
§ Direct burden in Sherbert but not here; difference btw direct and indirect burden
· Direct burden would be if Govt said HAD to work on saturdays
· Sherbert: govt made a decision based on fact that P wouldn’t work Sat
· Braunfield: govt doesn’t withhold any benefit to P, prob is with market

– Lyng v Northwest Indian Cemetery Protective Association (1988): Govt wants to build road that will bypass sacred Indian Ground used in religious practices; Native Am. Say create disturbance for their religious ceremonies. US tries to accommodate by building road as far as they can;
o HOLDING: Free Exercise Cl does not apply- Govt can’t be asked to change policies
o DISSENT: This is a Free Ex. Cl issue, but need to look at burden and sincerity before compelling interest test

– Sherrod v TN Dept of Human Services (2008-handout): Dad doesn’t want to pay child support bc federal statute is §666. ….

– Artificial snow and Native Americans (2008-handout): Native Americans want to stop operators of Snowbowl from using recycled sewage to make snow bc said that it decreases their spiritual fulfillment when practice religion on the mountain. 9th Circuit App said not a substantial burden. Argument about what the “least restrictive means” is.