Free Exercises?

March/April 1997
In 1984 drug counselor Alfred Smith was fired for ingesting peyote in a religious ceremony for a Native American Church ritual. Though as early as 1964 the California Supreme Court noted the significance of peyote to that church's religious practices,1 the State of Oregon denied Mr. Smith unemployment compensation because "the state's interest in proscribing the use of dangerous drugs . . . justified denying the claim-ant unemployment benefits."2 The United States Supreme Court upheld that denial, arguing that states can enforce a general prohibition of conduct motivated even by religious convictions.3

Congress responded with the Religious Freedom Restoration Act, or RFRA,4 which reimposed the standard rejected in Smith. Under the pre-Smith (and new statutory) standard, government may substantially burden a person's exercise of religion only if the burden "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that interest."5 Though the constitutionality of RFRA itself is being challenged,6 the deeper - and more troubling - question persists: When should religiously-motivated conduct be exempted from laws that otherwise would prohibit that conduct? In other words, at what point can and should the free exercise of religion be stopped?

The Supreme Court and the lower courts have grappled with this question in hundreds of opinions issued over more than a century. After all this time, and all these decisions, one thing remains clear: no matter how sacred the practice, and no matter what statutory or constitutional standard ultimately adopted by the courts, religious conduct can be subjected to government control. The hard part is deciding when and under what circumstances.

Decades ago the Supreme Court said that the First Amendment's provision protecting the free exercise of religion "embraces two concepts-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."7 The result would be no different under a standard embodied in a statute such as RFRA. Religious conduct will never be absolutely protected, because "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect every citizen to become a law unto himself."8 And though the nation has not yet clearly decided which types of religious conduct should be protected from state regulation, there are steps that can help the courts decide how to protect free exercise rights.

The first step in assessing the level of legal protection for free exercise is to determine the circumstances in which religious conduct is likely to conflict with society. There are at least three broad contexts in which this usually happens, and each should lead to different levels of protection.

Harm to Others

The first type arises when the religious conduct of one person directly harms another - such as when parents deny a child medical care. The courts have uniformly held that the law doesn't prevent the state from intervening in order to provide critical medical attention (such as blood transfusions) denied by parents on religious grounds.9 When free exercise of religion involves something as dramatic as a child's life, the courts understandably err on the side protecting the child, even if it means refusing to respect the parents' religious practices. Other courts have held that states may even impose criminal sanctions on parents whose religiously motivated denial of care results in a child's death.10

In other contexts, however, the courts frequently defer to the religious practices of parents, even when those practices have a deep and lasting impact on the children. The most famous Supreme Court case on this subject involved Amish who removed their children from school after the eighth grade despite a state law requiring school attendance until the age of 16. Though removing children from school so young would make it extremely difficult for them to leave the Amish community (and perhaps adopt another religion) as adults, the Court deferred to the parents and granted the exemption.11

Outside the context of parent/child relations, the recent RFRA case before the Supreme Court presents another example of religious conduct that arguably harms others. A Texas church challenged a city's historical preservation statute that prevented the church from expanding its structure. Though the religious activity (expanding the church) "harmed" the public's interest in preserving its architectural heritage, the court of appeals held that the religious group's actions were nevertheless subject to RFRA protection.12

These three situations differ only in degree. In the Amish education and blood transfusion cases, the state was being asked to serve in loco parentis - in the place of the parent - to preserve the child's freedom eventually to choose his or her own religious beliefs (in the blood transfusion conflict, if the child died, he would have no chance to make a religious choice later on) even if those choices would differ from the parents. Likewise, the Texas zoning case is different in degree, not in kind, from the others in that the "harm" is more generalized (it impacts the public rather than one individual) and is more abstract than the concrete, physical form that would come from denying a needed blood transfusion. Yet it is argued that even abstract "harm" does, indeed, intrude on the rights and interests of others and thus must be addressed.

Hampering the Government

The second type of conflict arises when religious practitioners engage in conduct that hampers the government's ability to function, even though the conduct does not directly harm anyone. In public schools, for example, practitioners argue that their religion requires the school to exempt their children from parts of the curriculum.13 In other cases, public school teachers have claimed that their religious faith prevents them from teaching subjects prescribed in the curriculum,14 or compels them to inject their personal religious views into classroom discussions.15

In the area of taxation, some religious practitioners have sought exemption from generalized social welfare programs like Social Security.16 Others have challenged the internal administration of government benefits programs. For example, religious practitioners often agree to participate in programs like Social Security, but refuse to comply with administrative requirements that violate their religious precepts (such as obtaining a Social Security number).17 Others have refused to comply with more general regulations (one person objected to getting a driver's license because on religious grounds she didn't want her picture taken).18

Claims by prisoners are perhaps the most typical context in which free exercise conflicts with the government. Prisoners have challenged various regulations impinging on religious activity, including restrictions on attendance at services,19 hair and beard length,20 diet,21 access to texts,22 use of religious names,23 jewelry (such as crucifixes),24 and the celebration of holidays.25

Though these conflicts require the courts to closely examine the questioned government action, in most cases the government program will be upheld. The reasons are manifold. First, many government programs could not operate if authorities were forced to constantly mold the programs to an almost unlimited variety of religious practices. Also, permitting religious employers to avoid making Social Security payments for their employees would endanger the financial base of the entire program, which assumes universal participation. (Excluding religious employers from the program would also harm the retirement prospects of employees, which would make the case an example of the first type of conflict.) And public schools could not function if one religious group refused to participate in English classes, another in biology, and so on.

Another reason these cases are often resolved in favor of the government is the Establishment Clause. In conflicts, for example, between teachers and the public schools, because the teacher is acting as the agent of the state, his or her conduct will inevitably be seen as conduct endorsed by the state. Therefore, if the government permitted public school teachers to engage in religious conduct, or even express their personal religious beliefs in the classroom, the school would, in essence, be complicit in violating clear-cut Establishment Clause principles. As in the harm cases, the government must regulate the religious behavior of one person (the teacher) in order to preserve the religious freedom of others (the students). Similarly, by requiring religious employers to participate in Social Security, the government is ensuring that the employer's religious beliefs do not infringe on the employees' freedom to reject those beliefs and their consequences.

On the other hand, the government sometimes refuses to accommodate religious practices restricted by trivial administrative rules that should not justify denial of government benefits to individuals whose sincerely motivated religious practices conflict with the law. For example, why must the government require a picture on the driver's license of those who demonstrate a sincere religious reason for not complying? Or why should the government require all participants in social welfare programs to obtain Social Security numbers, when other means exist to easily identify recipients?

Prison cases raise similar concerns. Clearly a prison should not be forced to prepare special meals every day for each individual prisoner at state expense, nor should the prison be forced to accommodate religious behavior that threatens the health of others or general prison security. But many cases involve practices that can easily be accommodated. Allowing religious prisoners to wear clean beards, to receive religious literature, or to worship on the day of their choice will not result in a fundamental breakdown of prison discipline. The same goes for other heavily regulated government activities, such as military service. It is difficult to justify the Supreme Court's decision that the military can prohibit an Orthodox Jew from wearing an unobtrusive yarmulke while on duty.26

Moral Offenses

The third type of conflict generates the strongest arguments in favor of protecting free exercise: when the religious practitioner engages in conduct that does not directly affect anyone but himself or herself, and where the law simply embodies the political majority's generalized moral or political judgments.

In Smith the state's laws prohibiting drug use made no exceptions for religious ceremonies. In a decision prior to Smith the Oregon Supreme Court explained that it didn't matter if peyote use in religious ceremonies posed no public health or safety threat. It was enough that "peyote and mescaline have been declared by the legislature to be dangerous drugs as a matter of law."27 Under either constitutional or statutory protections, it is difficult to see how this generalized (and inaccurate) legislative assumption justifies punishing the practitioners' conduct. If protection of religious practice amounts to anything, it at least prohibits demonstrably untrue legislative policy assumptions from infringing upon free exercise rights.

Of course, it is not always easy to determine whether a case fits within the "harmless conduct" category. For example, how should society deal with cases involving religiously motivated polygamy? Is polygamy a victimless crime, or does it inflict financial and emotional harm on women? When the Supreme Court upheld the bigamy conviction of a Mormon in the past century, the Court asserted that the government may prohibit only "actions which [are] in violation of social duties or subversive of good order."28 If this phrase means that the government can assert one form of morality (which itself may have a religious basis) over conflicting moral views, then the government's actions seem contrary to the principles of religious freedom, which encourage and protect moral and religious diversity.

Likewise, how should society deal with animal sacrifice? Are the harms here - that is, nonhuman harms - enough to override the practices themselves? The Supreme Court recently struck down a statute prohibiting animal sacrifice because it constituted a prejudicial attack on a particular religious group.29

But suppose the statute had not been motivated by animus against an unpopular sect. In that situation it would be difficult to construct a harm-related justification for regulating the sacrifices, especially when animals are allowed to be killed for other reasons: (The possibility of improper disposal of sacrificed animals is one harm-related concern, but this problem can be addressed without prohibiting the action altogether; the state can simply punish improper disposal itself.) Is a governmental decision based on a moral assumption that cruelty to animals is wrong enough to hamper free exercise rights? And if the cruelty of animal sacrifice is no greater than the cruelty of animal slaughter generally (such as hunting), then laws prohibiting animal sacrifice rest on majoritarian morality, nothing else. This is problematic, because both constitutional and statutory free exercise protections would seem to prohibit the government form - on the basis of nothing more than majoritarian morality - regulating these, or any other, religious practices.

Though the logic of free exercise rights may lead to the protection of "victimless" religious activities, logic at times does run counter to political intuition. In the light of practical politics, it is doubtful that society or the courts would tolerate routine animal sacrifice, polygamy, or rampant drug use, even during religious ceremonies. But if these practices can be prohibited simply because society declares them morally unpalatable - and if the courts are likely to endorse the much stronger reasons for regulating harmful religious conduct and religious conduct that impede legitimate state activities - then how much free exercise protection really exists?

The answer may be "Not much," which seems to say something about the role that religion plays in the modern world. At a time when government intercedes more and more into daily actions, religion may have been relegated to the sidelines of public life. Sure, religion can still provide a spiritual justification for human existence, and it can likewise motivate secular conduct through the inculcation of a comprehensive moral framework. But purely religious action itself seems to be protected only as it falls within the broad mainstream of conduct endorsed by society, not a particularly good or safe parameter for so basic a right.

Free Exercises?

In the end the Supreme Court - and for that matter, society at large - seems unlikely to deviate from the principle motivating its early religious conduct cases: the freedom to believe is absolute, but in the nature of things, the freedom to act will never be. And it shouldn't. But as Alfred Smith can testify, determining just when it shouldn't - that isn't always easy.

for Free Excercises?

1People v. Woody, 394 P.2d 813, 817 (1964).
2Smith v. Employment Division, 763 P.2d 146, 147 (Oreg., 1988).
3Employment Division v. Smith, 494 U.S. 872, 882 (1990).
4See 42 U.S. C. &2000bb (1996).
542 U.S.C. &2000bb-1(b)(1) &(2) (1996).
6Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. granted, 117 S.Ct. 293 (1996).
7Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940).
8Reynolds v. United States, 98, U.S. 145, 167 (1879).
9Jehovah's Witnesses v. King County Hospital, 278, F. Supp. 448 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968); Hoener v. Bertinato, 171, A. 2d 140 (N.J. Super. Ct. 1961); Wallace v. Labrenz, 104 N.E. 2d 769 (Ill. 1952).
10Hermanson v. State, 570 So.2d 322 (Fla. Dist. Ct. App. 1990) rev'd on other grounds, 604 So.2d 775 (Fla. 1992); Hall v. State, 493 N.E.2d 433 (Ind. 1986); Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985).
11Wisconsin v. Yoder, 406 U.S. 205 (1972).
12Flores v. City of Boerne, 73 F.3d 1352 (5th Cir.), cert. granted, 117 S.Ct. 293 (1996).
13Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995) cert. denied, 116 S.Ct. 1044 (1996); Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988).
14Peloza v. Capistrano Unified School District, 37 F.3d 517 (9th Cir. 1994), cert. denied, 115 S.Ct. 2640 (1995).
15Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), cert. denied, 505 U.S. 1218 (1992); Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992).
16United States v. Lee, 455, U.S. 252 (1982).
17Bowen v. Roy, 476, U.S. 693 (1986).
18Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985).
19O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
20Harris v. Chapman, 97 F.3d 499 (11th Cir. 1996); Fromer v. Scully, 817 F.2d7 (2d Cir. 1987).
21Friedman v. South, 92 F.3d 989 (9th Cir. 1996).
22Stefanow v. McFadden, 103 F.3d 1466 (9th Cir. 1996).
23Malik v. Brown, 71 F.3d 724 (9th Cir. 1995).
24Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996).
25O'Leary v. Peters, 80 F.3d 1175 (7th Cir. 1996).
26Goldman v. Weinberger, 475 U.S. 503 (1986).
27State v. Soto, 537 P.2d 142, 144 (Oreg., 1975), cert. denied, 424 U.S. 955 (1976).
28Reynolds v. United States, 98 U.S. 145, 164 (1879).
29Church of the Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. 520 (1993).