Free Exercise Clause Flashcards
Church of the Lukumi Babalu: City adopted some ordinances that prohibited ritualistic animal sacrifices; Santeria Church claimed it was a violation of 1A’s freedom to exercise religion. Law wasn’t generally applicable and didn’t expressly call out Santeria.
Majority (Kennedy): Given the context of the making/passing of the statute, the ordinance is discriminatory in effect and is subject to strict scrutiny
Concurrence (Scalia): No need to read to far into the intent, it is already invalid because of its purpose and impact on Santeria practices
Concurrence (Blackmun): discriminatory regulations automatically fail SS, no need to look at context and intent
Masterpiece Cakeshop v. Colorado Civil Rights Commissions: Cakeshop didn’t want to bake wedding cake for gay couple; CO Civil Rights Commissions got involved and showed animosity towards the cakeshop during proceedings
Issue: Must adjudicatory proceedings against a person for unlawful discrimination give neutral and respectful consideration to the person’s defense of sincere religious motivation?
Majority (Kennedy): Yes, the constitutional violation is in the animosity the Colorado Civil Rights Commissions showed towards the baker → adjudicatory proceedings must give neutral and respectful consideration to a person’s defense of sincere religious motivations.
Note: The court doesn’t address the main issue of whether the free exercise clause protects the baker in refusing to comply with nondiscrimination laws in refusing to bake the cake
Ginsburg Dissent: The defendant’s refusal was discrimination based on sexual orientation and the biased comments made by the commissioners shouldn’t so heavily taint the proceedings.
Sherbert v. Verner: 7th day Adventist wasn’t able to get unemployment bc gov’t said she wasn’t willing to comply with program requirements when she said she wasn’t available to work on Saturdays
Majority (Brennan): The gov’t doesn’t have the purpose of burdening religion, but it is affecting religious practices. Although this law is facially neutral, strict scrutiny must be applied.
Presumption that law is burdening religion w/o CGI + NT = unconstitutional
ALLOWS INDIVIDUAL EXEMPTIONS where SS cannot be met
Concurrence (Stewart): Requiring the state to pay unemployment benefits to Sherbert places the state in violation of the Establishment Clause. The Court must reconcile its interpretation of these two clauses to uphold the constitutional guarantees of true religious freedom.
Dissent (Harlan): She’s refusing to work, she shouldn’t receive an exemption and should be treated like anyone else refusing to work.
Smith: Oregon law prohibited Peyote.
Issue: Whether the Free Exercise Clause of the First Amendment permits the state of Oregon to criminalize religious practices that violate generally applicable laws.
How to think about situations where the state government makes a law while not having an anti-religious motivation and has some interest in making the law, and the law ends up having a disparate impact on some individual’s rights to exercise their religion.
Majority (Scalia): The Free Exercise Clause of the First Amendment protects the right of individuals to believe whatever they wish, but does not necessarily protect the right to act on those beliefs
The state really only needs to pass RB if it passes a law without a discriminatory purpose that affects religious practices
Dissent (Blackmun): There is no reason to depart from the Sherbert SS
Note:
Compare this case to Sherbert, which calls for SS where the law affects religion, otherwise the affected religious individuals should get an exemption from the law
Smith has never been overruled - not even by the RFRA
In response to Smith Congress passed the Religious Freedom Restoration Act
Where a law burdens religious practices, it must meet SS, otherwise an exemption from the law must be granted to those burdened
Congress cannot make the state governments provide religious exemptions, and it can’t change the scrutiny test for state governments, but it can require a higher standard from the federal government (City of Boerne)
Tandon: Newsoms COVID socializing law; religious person complained because the law unfairly impacted religious practices/services, as well as other non-religious groups
Held: If a government regulation treats religious exercise less favorably than any comparable secular activity, the government must show that less-restrictive measures would not have achieved the government interest addressed by the regulation.
Reasoning:
A government regulation that is not neutral to the right to free exercise of religion must be reviewed under strict scrutiny.
Here, some commercial activities were treated favorably compared to at-home religious gatherings because persons from more than three households were allowed to gather in commercial settings to participate in commercial activities but not private residences to practice religion.
Gatherings in commercial settings are comparable to gatherings in private settings because the government interest in restricting gatherings is for the purpose of reducing the risk of transmission of COVID-19.
The government failed to show that religious gatherings of persons from more than three households posed a greater health risk than gatherings of persons from more than three households in commercial settings.
Thus, Tandon is likely to succeed on the merits of his free-exercise claim because the government did not show there would have been an increased risk to public health if they had used less-restrictive measures regarding at-home religious gatherings.
Therefore, Tandon is entitled to an injunction pending disposition of the appeal. The judgment of the court of appeals regarding the application for an injunction is reversed.
Kagan Dissent:
California placed a blanket restriction on all at-home gatherings, not just at-home religious gatherings.
The proper comparators to in-home religious worship are secular in-home activities, not commercial activities conducted in public settings.
Further, the lower courts both recognized and explained why at-home social gatherings posed higher health risks than secular activities in commercial settings.
Here, the majority insists on treating unlike cases equivalently, which is an improper application of strict-scrutiny analysis.
Fulton v. City of PA: A city ordinance that bars a religious organization from participating in the placement of foster children because it won’t place w gay couples
Held (Roberts): The city ordinance violated the Free Exercise Clause.
Reasoning: These ordinances are not generally applicable because it provides for discretion through the possibility of individualized exemptions. The policy grants the commissioner discretion to make exceptions.
Because it’s not general, it must pass strict scrutiny. The city’s interest in promoting equality, though important, is not compelling enough to deny CSS’s ability to secure and approve foster-care parents or require that CSS act in a manner inconsistent with its religious beliefs.
Argument that they would be liable for discrimination is too speculative.
Barrett Concurrence: Smith should be overruled because it allows a law that severely burdens religion to be upheld as long as the law is neutral/general. But skeptical as to what should replace it because even free speech requires a nuanced test instead of just flat out strict scrutiny.
Alito Concurrence in result only: Smith should be overruled. Could allow banning of certain things that clearly burden free exercise (one example he gave was banning circumcision). Smith paid no attention to the text of the Free Exercise Clause.
Gorsuch Concurrence: The majority is making weird readings of the city ordinance to avoid overruling Smith
Burwell (Hobby Lobby case): The Affordable Care Act required that corporations provide health insurance coverage for certain methods of contraception. Hobby Lobby’s owners brought suit claiming that the requirement violated the Religious Freedom Restoration Act.
Majority(Alito): A regulation that requires a closely held corporation to provide health-insurance coverage for contraception violates the Religious Freedom Restoration Act of 1993 if the regulation impinges on the sincerely held religious beliefs of the corporation’s owners
Hobby Lobby is entitled to an exemption because it is a closely held corporation, making it coherent to say that the corporation is capable of holding a religious belief
Jumped straight to NT prong of SS → the government could easily provide contraceptives to those who have employers that don’t offer contraceptives for religious reasons
Concurrence (Stevens): There is a CGI in the health and safety of female workers, but there is still not NT/LRM
Dissent (Ginsburg): The majority’s opinion is overbroad.
The holding will permit any for-profit company to opt out of any law, except for a tax law, that violates the company’s religious beliefs
Hobby Lobby has not shown that the HHS regulations substantially burden its exercise of religion. The Court does not undertake this substantiality analysis. If it did, it would find that Hobby Lobby’s religious beliefs are not sufficiently connected to the contraception-coverage requirement to be considered a substantial burden. Under the regulations, it is the companies’ employees that choose health-insurance coverage, and it is the health-insurance companies that provide the contraception. There is no substantial link to Hobby Lobby itself
