October 23, 2008

A Fluid Boundary: The Free Exercise Clause and the Legislative and Executive Branches

Exempting Religious Groups From Specific Requirements

Although the most constitutionally acceptable accommodations apply equally to religious and secular organizations, the government at times has found reason to extend an exemption solely to religious believers or organizations. These religion-specific exemptions are often a response to an earlier law that significantly burdened religious practice or belief. For example, a law prohibiting all alcohol consumption would burden many religious believers in ways it would not burden their secular counterparts since alcohol is essential to many sacred ceremonies, such as a Roman Catholic Mass. Therefore, if the government were to prohibit alcohol consumption, as it did in the 18th Amendment, it would have reason to enact a religion-specific exemption permitting consumption in religious ceremonies, which the 1919 Volstead Act did.

The Supreme Court has held that such a religion-specific accommodation is permissible only if it satisfies various criteria. Most fundamentally, a religion-specific accommodation must be targeted to remove a specific government-imposed burden on religious exercise. In addition, the accommodation may not coerce religious participation, transfer governmental power to a religious group, impose unreasonable costs on those not eligible for the exemption, or discriminate on the basis of religious group or denomination.

These rules are the product of more than 50 years of litigation over the constitutionality of religion-specific accommodations. The Supreme Court first addressed this issue in McCollum v. Board of Education (1948). In this case, the court considered an Establishment Clause challenge against a program in Champaign, Ill., that permitted students in public schools to be released from regular secular instruction so that the students, while still on school premises, could receive a half-hour of instruction in Judaism, Roman Catholicism or Protestantism. The schools defended the program on the ground that it was a reasonable way of relieving the burden that school attendance imposed on students’ ability to learn about and practice their religion. The court rejected this argument, finding that the program violated the Establishment Clause because it used “the tax-established and tax-supported public school system to aid religious groups and to spread the faith.”

The McCollum decision provoked a firestorm of criticism that the high court was hostile to religion. Four years later, perhaps in response to this criticism, the court ruled in Zorach v. Clauson (1952) that there is a way for the government to accommodate religious students in public schools without violating the Establishment Clause.

Zorach v. Clauson (1952)

Majority: Minority:
Burton Black
Clark Frankfurter
Douglas Jackson
Minton
Reed
Vinson

In Zorach, the high court upheld a New York program that was essentially identical to the one at issue in McCollum, with one important exception: Students in the New York program were not allowed to receive religious instruction on school property but rather were required to do so off-site. Justice Douglas’ majority opinion in Zorach emphasized that this off-site feature made the New York program a permissible accommodation of the community’s religious values. Although the vigorous dissents in Zorach argued that there was not a “significant difference” between the Illinois and New York programs, the Zorach majority opinion signaled that the government may accommodate religion in particular circumstances.

But the court did not take the first steps toward precisely identifying these circumstances until 1987, when it held in Corporation of Presiding Bishops v. Amos that the government may accommodate religious practices without accommodating their secular counterparts if the accommodation removes a government-imposed burden that specially affects religious practice or belief.

In Amos, the high court considered the constitutionality of an exemption for religious organizations from the federal prohibition of religious discrimination in the workplace. The case arose after the Church of Jesus Christ of Latter-day Saints fired an employee because he was not in good standing as a member of the church. Even though the Civil Rights Act of 1964 generally bars such discrimination, the employee could not bring a suit under this law because a 1972 amendment exempted religious employers. So the employee claimed that this exemption favored religious over nonreligious employers, in violation of the Establishment Clause.

Corporation of Presiding Bishops v. Amos (1987)

Majority:
Blackmun Rehnquist
Brennan Scalia
Marshall Stevens
O’Connor White
Powell

The Supreme Court unanimously upheld this religion-specific accommodation because the exemption fulfilled “the proper purpose of lifting a regulation that burdens the exercise of religion.” In other words, the exemption was constitutional because the Civil Rights Act of 1964 burdened religious organizations in a way it did not burden secular ones.

But the court in Amos also suggested that, when there is no such government-imposed burden, an accommodation that applies only to religious believers violates the Establishment Clause. This is consistent with the Supreme Court’s earlier decisions, such as Abington School District v. Schempp (1963). In Schemmp, the court held that the government may not accommodate religious students by allowing public school teachers to lead Bible readings because school attendance laws do not prevent children from reading the Bible away from school.

A further limitation on religion-specific accommodations is that, just like religion-neutral accommodations, they must not transfer governmental power to religious groups. Indeed, just as the government may not grant a liquor-licensing power to churches and schools, as the court held in Larkin, the government may not grant such authority only to churches.

Board of Education of Kiryas Joel v. Grumet (1994)

Majority: Minority:
Blackmun Rehnquist
Ginsburg Scalia
Kennedy Thomas
O’Connor
Souter
Stevens

In addition, religion-specific accommodations must not impose unreasonable costs on third parties. This principle proved crucial in Estate of Thornton v. Caldor (1985), which invalidated a Connecticut law that provided Sabbath observers with an absolute right not to work on their Sabbath. The court found the accommodation unconstitutional because it imposed unreasonable costs on employers and other employees who might have to change their days and hours to permit a worker to refrain from working on the Sabbath.

Finally, religion-specific accommodations must not discriminate on the basis of religious group. The Supreme Court established this limitation in Board of Education of Kiryas Joel v. Grumet (1994), a case that arose from a controversy over education in the Village of Kiryas Joel, N.Y. The village is populated primarily by Satmar Hasidic Jews, but the surrounding town includes many non-Satmars. Disabled Satmar children, unlike their nondisabled counterparts, attended the town’s public schools with non-Satmar children so that the Satmars could receive special services for the disabled offered only in the public schools. But after Satmar parents complained that their disabled children found it difficult to be educated with non-Satmar students, New York created a special public school district in the village specifically for the disabled Satmar children. The high court struck down this special district, asserting that New York had unconstitutionally singled out the Satmar group for favorable treatment by failing to assure that similar groups would also receive their own school districts.

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