The Free Exercise Clause Flashcards
First Amendment - Religion
Prevents Government establishment of Religion, and interference with religious operations.
Both Free Exercise and Establishment have been incorporated against the states.
Tension between Free Exercise and Establishment Clauses
The more a gov leans away from Establishment, the more it limits people’s Free Exercise. But the more the gov tries to accommodate your religion, the more it sort of Establishes it. The back and forth battle between these clauses could go on endlessly. But the objective of both is to maintain the gov’s neutrality toward religion.
Defining Religion Torcaso v. Watkins
The court has never properly defined religion. Some moral or ethical convictions might count. The closest we have involves religious or conscientious exemptions from military service. That exemption would apply to an individual, not just everyone in their religion.
The Court has said that religion includes a belief in a god that has expectation in its adherents, or a belief system that serves a similar function.
Torcaso v. Watkins
Torcaso Holding/Test – Absolute Right to believe or disbelieve. You can’t be compelled to believe in God if you want a gov job. It’s a violation of an individual’s Free Exercise of religion.
Are beliefs the same as conduct?
NO, beliefs are not the same as conduct. You can believe whatever you want but can’t necessarily ACT on it.
Reynolds (Mormon polygamists) = they could believe whatever they wanted but could not act on it. Polygamy ban upheld.
Resolving Religious Discrimination - Sherbert v. Verner & Employment Division v. Smith
As a general practice, religious discrimination receives Rational basis review if neutral and generally applicable. (Employment Division v. Smith);
Smith narrowed the scope of Sherbert. If neutral and generally applicable, Sherbert does not apply and instead Smith does.
If a law isn’t neutral OR generally applicable, do strict scrutiny.
Exceptions:
1. Regulations by Feds - Strict Scrutiny (RFRA)
2. Individualized Assessments, like regulations imposed in the employment context - Strict Scutiny (Sherbert v. Verner)
3. Undercutting
Emp Div. v. Smith (Peyote Case)
Guys fired for using peyote and couldn’t get unemployment comp.
Majority in Smith said first ask if the law is neutral and generally applicable. If it is both, apply Smith. The drug law here was both neutral and generally applicable.
The distinction that lets Sherbert survive while being limited is that in the unemployment context, the gov is making INDIVIDUALIZED ASSESSMENTS and so it’s fair to bring religion into the picture when they are weighing your whole situation. Individualized assessments are NOT generally applicable. If an individualized bureaucracy exists, it’s fair to bring religion and Free Exercise into it. If the gov is going to substantially burden religion when it’s already in the business of making individualized exceptions, then it’s fair to ask the gov to satisfy SS.
Generally applicable laws don’t have that bureaucracy and thus get RB.
The Undercutting Exception
If there is an exception that undercuts the general purpose of the law, that can render a law NOT generally applicable and thus subject to SS.
Iowa had Mennonite farmers who rode tractors with steel cleats. Iowa made exception for school buses but not for the Mennonites. That’s a purpose undercutting exception. Thus, Iowa Supreme Ct said that was not generally applicable.
3 ways to show the gov is open to crafting exceptions:
1) bureaucracy exists for it (unemployment)
2) running a classroom in a certain way like actress student in Utah
3) crafting exceptions from the outset (school bus)
Note: medical marijuana would NOT be generally applicable because there are individualized assessments
Braunfeld
Statute prevented stores from opening on Sundays. Jews wanted to open on Sundays since their sabbath is on Saturdays. Court said this was a more indirect conflict than had happened like in Reynolds (polygamists).
The law indirectly taxed them but did not totally stop it. Still a catch-22 though. They did not talk about SoRs in Braunfeld, but implied the day of rest was a “decent” goal.
SOR - Strict Scrutiny - Sherbert v. Verner
Lady working at mill had to go to work 6 days a week but her religion forbid work on Saturdays. She asked for unemployment comp and they said no despite her religious exception. This is a more direct conflict between gov benefit and religion. Gov does INDIVIDUALIZED ASSESSMENT when it applies unemployment comp law. The Court rules in her favor saying if a law substantially burdens your religious practice/conduct, that law is unconstitutional AS APPLIED to you unless it can satisfy SS. It mattered that her religion was DIRECTLY burdened. This was a substantial burden whereas the Braunfeld case was not since it was more INDIRECT.
Steps:
1) Is this a substantial burden?
2) Is it unconstitutional as applied to you? Do a SS analysis to determine if it is or not.
Example: if a law poses a substantial burden on your religious conduct, then that law is unconstitutional unless it satisfies strict scrutiny. Under this case, the Court held that there were other narrowly tailored ways to ensure that the state’s interest can be protected.
Wisconsin v. Yoder
This is an example of a hybrid claim which serves as an exception to the application of RB for generally applicable laws. Although the law saying that parents had to send kids to school until age 16 was generally applicable, the parents raised Free Exercise and fundamental rights issues (to raise their children). Because it was a hybrid case, the court used strict scrutiny as if it had been like Sherbert v. Verner.
RFRA - Federal Legislation on Sherbert’s Applicability
RFRA holds If the law covers a person and substantially burdens a person, the law must pass modified strict scrutiny.
1) Compelling gov interest
2) Least restrictive means (not same as narrowly tailored)
Note:
RFRA is good law against the federal government but does not apply to state or local law.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal - Applying RFRA
Gonzalez – Burdens imposed by federal law must satisfy Sherbert under RFRA. It is just Legislative use of commerce power to enforce strict scrutiny of religious discrimination regulations, despite Employment Division v. Smith’s previous narrowing of Sherbert.
Hobby Lobby (closely held religious corporation) v. Burwell –
The Court held:
Corporations are persons under the Dictionary Act.
The Affordable Care Act under the normal strict standard test passes, because it is neutral but may not be generally applicable.
Therefore, regulations operating under RFRA must also pass the neutral and generally applicable standard.
It may not be generally applicable because the religious nonprofits are an exception to the ACA’s contraception portion which would undercut the ACA’s purpose.
Issues:
The Court said it was a substantial burden, because they said so. Effectively, the only caveat is that the burden is not so implausible that it makes individuals unlikely to believe that burden exists. Its okay to be inconsistent under this standard.
SOR Indirect Conflict
Rational Basis Review - Braunfield v. Brown; Employment Division v. Smith.
Test - If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. (Braunfeld v. Brown)
Test - If a law is generally applicable and neutral, the regulation gets rational basis review. (Employment Division v. Smith)
