The Free Exercise Clause has been the subject of substantial litigation. Recent cases have addressed issues as diverse as whether a person can use hallucinogenic drugs[1] or sacrifice animals[2] if that is part of a religious sacrament.
In many respects this requirement that regulations not be directed toward the substance of religious beliefs is similar to the requirement that restrictions on constitutionally protected speech must be content neutral. Government may regulate the time, place, and manner of protected speech if that is done without regard to the substantive content of the speech. For example, the Court has allowed a state to restrict those distributing religious literature and soliciting contributions at a state fair to a fixed booth location, rather than freely roaming the fairgrounds, but only if this is done for purposes of maintaining safe and orderly crowd movement.[3] Similarly, a local government can regulate the location and operation of constitutionally protected but sexually explicit speech, such as topless bars and adult book stores, but only on the basis of preventing adverse secondary impacts on neighboring properties.[4] In both instances, legitimate governmental interests—crowd control and preventing harm to neighboring properties—justified restrictions on speech but only when applied without regard to the content of the speech.
Overview of Supreme Court Decisions
General Laws of Uniform Applicability
The Court has long held that regulations of general applicability that are neutrally
applied can restrict even religiously justified conduct. For example, in 1878
the Court upheld a bigamy conviction even when the petitioner established that
his religious beliefs obligated a second marriage.[5]
Chief Justice Waite wrote for a unanimous court that “Laws are made for the
government of actions, and while they cannot interfere with mere religious beliefs
and opinions, they may with practices.”[6]
The court went on to observe, “Can a man excuse his practices to the contrary
[violations of state criminal law] because of his religious belief? To permit
this would be to 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. Government could exist only in name under such circumstances.”[7]
Similarly, in Cantwell v. Connecticut, the court in 1940 held that the free exercise clause “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”[8]
Most general criminal statutes forbidding harmful activity do not exempt religious practices and have
not been required to do so. For example a state statute prohibiting snake handling was upheld against a free exercise challenge by the North Carolina court in 1949.[9]
Sherbert and Yoder
The current controversy dates to the 1960’s, when the Supreme Court expanded the protection afforded individuals exercising their religious beliefs in ways that conflicted with secular government regulations of conduct.
The initial landmark case establishing strong judicial protection of free exercise rights came in 1963. The case was Sherbert v. Verner,[10] which invalidated the denial of unemployment benefits for Adell Sherbert. Sherbert was a Seventh Day Adventist who lost her job in a South Carolina textile mill for refusing to work on Saturdays when the mill expanded from a five-day to a six-day work week. Justice Brennan, writing for a five member majority of the Court, announced a “strict scrutiny” test for government regulations that significantly burden religious practices: the regulation is invalid unless the government is addressing a compelling state interest[11] and has chosen a narrowly tailored method of regulation.
This test was reaffirmed in a 1972 case, Wisconsin v. Yoder,[12] where the Supreme Court invalidated a state law mandating school attendance for Amish children. The Court held the Amish had deep religious conviction that their children should not attend public schools beyond the eight grade and that the state did not have a compelling justification for requiring two additional years of public schooling in lieu of the Amish long-standing program of informal vocational education for such children.[13]
Smith
In a controversial 1990 drug case, the court retreated from this strict judicial scrutiny. Two Oregon counselors were fired from their private drug rehabilitation firm based on their use of peyote. The counselors were members of the Native American Church and it was undisputed that their use of hallucinogenic peyote was a part of their religious sacraments. The counselors were denied unemployment benefits because they had been dismissed for “misconduct” (peyote use being at that time a criminal offense in Oregon).[14] On appeal of that denial, the Oregon supreme court applied the Sherbert test and ruled that the counselors were entitled to unemployment compensation because the governmental interest involved (preserving the financial integrity of the compensation fund) was not a sufficiently compelling governmental interest to justify substantially burdening the counselors’ religious expression.[15]
However, on review the U.S. Supreme Court ruled in Employment Div., Dep’t of Human Resources v. Smith[16] that if the regulation is a valid and neutral law of general applicability, the Constitution does not mandate that the legislature provide a religion based exemption. Justice Scalia, writing for a five member majority of the court, held the Sherbert test of requiring a compelling justification for substantial burdens on religious practices does not apply to across-the-board criminal prohibition on a particular form of conduct. He concluded, “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ . . . contradicts both constitutional tradition and common sense.”[17] Justice Scalia went on to note that any society providing such a religious exemption would be courting anarchy, calling into question the validity of compulsory military service, payment of taxes, health and safety regulations, compulsory vaccinations, minimum wage, child labor, animal cruelty, environmental protection, and civil rights laws.[18] In a separate opinion, Justice O’Connor took a middle ground position. She urged application of the Sherbert balancing test, but would have held it was met in this instance: while banning sacramental peyote use is a substantial burden on religious practices, there is a compelling governmental interest in a uniform ban given the health dangers of its use and the need to prevent trafficking of a controlled substance.[19]
Pre-Smith Court of Appeals Decisions
Lakewood
In Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood[20] the court upheld an ordinance that prohibited the construction of churches in most of the city’s residential zoning districts.[21] The court in Lakewood held the Sherbert test of a compelling state interest and narrowly tailored restriction only applies if there is in fact a substantial burden on religious practices,[22] which was held not to be the case when the ordinance did not prohibit construction but only restricted the locational options open to the congregation.
Grosz
In Grosz v. City of Miami Beach[23] the court upheld a zoning enforcement action taken to prohibit an elderly Rabbi from conducting religious services in a converted garage adjacent to his house. The property was in a single-family zoning district; Miami Beach’s zoning prohibited churches in that district, but allowed them as permitted uses in all other districts.
The Grosz court applied a two part analysis in upholding the restriction. First, it must be established that the ordinance regulates conduct rather than belief and that it has a secular effect and purpose. Zoning generally easily meets this part of the analysis as it regulates conduct (land uses) for secular purposes (preventing incompatible land uses, controlling traffic and noise impacts, and the like). Second, there must be an appropriate balance between the governmental interest being advanced and the burden placed on religious practices. As for the governmental interest, this entails inquiry into the impacts that would be caused by a religious exception to the regulation and whether the least restrictive regulation possible has been chosen. As for the burden on religious practices, this entails inquiry into the importance of the burdened practice and the degree of interference with it. In Grosz this balance was struck in favor of the city. The court found the interests in protecting residential neighborhoods from the impacts of institutional uses was important and that the burden on the petitioner to move his religious services to an appropriate zoning district was not substantial since half the city, including an area only four blocks away from the plaintiff’s house, freely allowed religious institutions.
Islamic Center
Islamic Center of Mississippi, Inc. v. City of Starkville[24] invalidated the denial of approval to use an existing house in a residential zone for a mosque.
There was considerable circumstantial evidence of religious discrimination at play in this case. Starkville is a college town, with the students at Mississippi State University comprising almost half of the town’s 26,832 population. The student population included about 35 to 50 Muslims. The city zoning ordinance allowed religious uses as a permitted use only in outlying rural areas, the nearest such zone being three miles from campus. All of the city’s twenty-six other churches—all various Christian denominations—were located in zoning districts closer to campus where religious uses were permitted only as an “exception” approved by the city council. The council had approved all nine requests for exceptions made by Christian churches after adoption of zoning. The Islamic Center’s site within walking distance of the University had been selected and purchased after extensive consultation with the planning staff, it provided all of the recommended off-street parking (more than twice as much as provided by the much larger religious facility next door, a converted fraternity house being used by a Pentecostal Christian denomination), and it had been recommended for approval by the Planning Board. Yet the city council denied the “exception” on the basis of a neighbor’s complaint about “congestion, parking, and traffic problems.”25 The Center nonetheless completed their renovations of the structure and operated without incident almost a year before the city ordered cessation of worship services at the site.
The court had little difficulty concluding this application of the zoning ordinance substantially burdened religious practices by allowing no sites for worship within walking distance of campus[26] and was not narrowly drawn in support of a substantial governmental interest.[27]
1. Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990).
2.Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993).
3. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). The state also offered two additional justifications for the restriction—that the restriction prevented fraudulent solicitations, deceptive speech and undue annoyance and that fair-goers were a captive audience who needed protection from harassment. The Court did not consider whether these additional rationales would have been sufficient justification for the rules. Id. at 308, n.6.
4. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). See David W. Owens, REGULATING SEXUALLY ORIENTED BUSINESS (1997) for a discussion of the legal issues involved with land use restrictions on sexually explicit but constitutionally protected speech.
5. Reynolds v. United States, 98 U.S. 244 (1878). See also, Braunfeld v. Brown, 366 U.S. 599 (1961) (upholding Sunday closing law as establishing uniform single day of rest); Prince v. Massachusetts, 321 U.S. 158 (1944) (upholding application of child labor laws to child distributing religious tracts with a relative); Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory vaccination).
6. 98 U.S. 244, 250.
7. Id.
8. 310 U.S. 296, 301 (1940). Also see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (holding Jehovah’s Witnesses could not be compelled to salute the American flag).
9. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dismissed, 336 U.S. 942 (1949).
10. 374 U.S. 398 (1963). The South Carolina statutes provided a religious exemption for those who objected to Sunday work, but did not provide a similar exemption for Sabbatarians. Id. at 406. In a concurring opinion, Justice Stewart noted the inherent conflict between the Establishment and Free Exercise Clauses: If, based on the Free Exercise Clause, the state mandates an exception to a general rule of law to accommodate a person’s religious beliefs, does this not invariably favor that religion in a way that can violate the Establishment Clause? Id. at 413-17. See also Thornton v. Caldor, ___ U.S. ___ (1985) (invalidating a Connecticut statue guaranteeing Sabbath observers a right not to work on their Sabbath.
11. The Court noted that regulations upheld in the past that override religious objections, such as in the Reynolds case, addressed conduct that “invariably posed some substantial threat to public safety, peace or order.” 374 U.S. 398, 403 (1963). See also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (upholding revocation of tax exempt status because compelling governmental interest in eradicating racial discrimination in education justified substantial burden on religious belief against interracial relationships).
12. 406 U.S. 205 (1972).
13. Justice Berger’s majority opinion expressly rejected the contention that the Free Exercise clause did not apply to general laws of uniform application. “[T]o agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under general applicability.” Id. at 220.
14. A number of states exempt peyote use in religious ceremonies from criminal sanction. Shortly after the Smith decision, Oregon did so as well. Or. Rev. Stat. Ann. § 475.992(5) (Supp. 1996). The key issue from a free exercise standpoint though is not whether Oregon could make such an exemption, but whether the Constitution requires states to do so.
15. 721 P.2d 445, 449-150 (Oreg. 1986).
16. 494 U.S. 872 (1990). Justice Scalia’s majority opinion was joined by Chief Justice Renquist and Justices White, Stevens, and Kennedy. In many respects Justice Scalia’s approach of deference to legislative judgment on the necessity for a uniform rule of conduct harkens back to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which had upheld a requirement that all school children participate in a flag salute ceremony with no exceptions for those with religious objections. In that decision Justice Frankfurter wrote, “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” 310 U.S. at ___. The Gobitis decision was largely overruled by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating a mandatory flag salute in public schools as an undue infringement on free speech).
The North Carolina supreme court ruled in 1967 that while constitutional protection extends to unorthodox, unusual, and unreasonable religious beliefs, it does not extend so far as to protect drug use, even if that use is believed to be mandated by Divine Law. In re Williams, 269 N.C. 68, 152 S.E.2d 317, cert. denied, 388 U.S. 918 (1967).
17. 494 U.S. 872, 885 (citations omitted).
18. Id. at 888-89. The Court reiterated the principle that religion-neutral laws of general applicability need not be justified by a compelling state interest in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217, 2226 (1993).
19. Id. at 905. Justice Blackmun’s dissent, joined by Justices Brennan and Marshall, would require an exemption if free exercise of religious beliefs are burdened unless there was a compelling interest that could not be served by less restrictive means. Id. at 907. The dissent concluded the test was not met in this instance given the limited sacramental use of peyote involved and the lack of any demonstrated health impacts or any widespread trafficking in peyote.
20. 699 F.2d 303 (6th Cir. 1983).
21. Lakewood, an older Cleveland suburb with few vacant areas, had a population of 62,000 and a land area of 5.5 square miles at the time of the litigation. Churches were allowed only in some multi-family residential and business districts, which comprised some ten percent of the city land area.
22. The court proposed a two step inquiry to determine whether there was a substantial burden: (1) the nature of the religious observance at stake, with “fundamental tenets” and “cardinal principals” receiving greater protection; and (2) the nature of the burden, with indirect economic impacts being permissible. 699 F.2d at 306-08.
23. 721 F.2d 729 (11th Cir. 1983).
24. 840 F.2d 293 (5th Cir. 1988).
25. The court also noted that the applicants
had not been notified by the city that their application was to be considered
(they attended only after a reporter told them the matter was being taken up
that evening) and that the applicants were heard by the board only after a decision
had been reached. The council gave no reasons for its denial. The lack of substantial
evidence supporting its decision, lack of notice and opportunity for the applicant
to present evidence, lack of findings, and apparent lack of adequate guiding
standards in the ordinance would support a reversal on procedural due process
grounds in many states, North Carolina included.
26. “The burden placed on relatively impecunious Muslim students by the Starkville ordinance is more than incidental, and the ordinance leaves no practical alternatives for establishing a mosque in the city limits.” 840 F.2d at 302.
27. The city’s approval of all nine other requests for exemptions and its failure to take any enforcement action against the neighboring Christian worship center—although it had a membership twice as large, only half the parking, and unlike the Islamic Center its services were audible from the street—led the court to conclude there was no rational basis for the denial.
See also Church of Jesus Christ of Latter-Day Saints v. Jefferson County, 741 F.Supp. 1522 (N.D. Ala. 1990), where the court held a refusal to rezone to allow construction of a church on an eleven acre tract in a low density residential area of the county impermissibly burdened free expression of religion. The zoning ordinance in question did not allow church use in many districts, essentially requiring a rezoning to an institutional zone for each proposed church location. In this instance the denial was not based on objective land use impacts, such as traffic, waste disposal, parking, buffers, lighting, signage, or aesthetics. The sole ground cited for denial was the vociferous opposition of neighbors. The court applied a Grosz analysis and concluded less restrictive measures were available, such as some set aside areas for churches or objective standards for rezoning to accommodate churches, so there was a greater burden on religion than was justified by the governmental interest being protected.
