A Delicate Balance: The Free Exercise Clause and the Supreme Court
Expansion and Contraction of Free Exercise Rights
Early in the tenure of Chief Justice Warren Burger, who was appointed to lead the Supreme Court in 1969, the court issued a decision that dramatically reinforced the principles laid down in Sherbert. The case, Wisconsin v. Yoder (1972), involved a challenge by members of the Old Order Amish to a state law that required all children to attend school until the age of 16. The Amish, who eschew many aspects of modern life, objected to high school education for their children because they believed that the experience exposed their young to worldly influences, competitive values and material concerns inconsistent with life in a traditional Amish community. As a result, a number of Amish parents had removed their children from school at age 14. When Wisconsin charged these parents with violating the state’s school attendance statute, the parents replied that the law, as applied to them, infringed upon their right to the free exercise of religion.
Wisconsin v. Yoder (1972)
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Note:While Justice William Douglas agreed with the majority’s overall rational, he dissented in part because he believed that the case should be sent back to the lower courts for reconsideration. Justice Lewis Powell and Justice William Rehnquist did not participate in the decision because they were not yet on the court when the case was argued.
In a 6-1 decision, the court ruled that Wisconsin indeed had violated the Amish parents’ free exercise rights. Writing for the majority, Burger stated that requiring Amish children to attend school until age 16 threatened the longstanding customs of the Amish community. Moreover, Burger stressed, these traditions were clearly grounded in religious belief. The court then subjected Wisconsin’s school attendance law to the compelling interest test first set out in the Sherbert case and found that although the state had a strong interest in a well-educated populace, its interest in the extra period of formal education between ages 14 and 16 was relatively small, especially with regard to children who were part of a traditional farming community. At the same time, Burger asserted, the impact on the Amish of continued formal schooling at these ages was substantial. “During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife,” he wrote.
As noted, many people had wondered whether the Sherbert decision would lead to frequent special exemptions for the free exercise of religion. With Yoder, the answer seemed to be “yes.” Indeed, the court took pains in its ruling to emphasize that it was the deep religious beliefs of the Amish that justified this extraordinary constitutional protection.
On the other hand, the judicial methodology employed in Yoder – weighing the gains to the state against the costs to the Amish – involved a balancing of interests. Thus the ruling was no guarantee that in all future free exercise cases the court would tip in favor of religiously motivated behaviors.
Indeed, in the years immediately following Yoder, the court was generally reluctant to exempt religiously motivated actions from general legal requirements. From 1972 to 1990, the Supreme Court ruled in favor of free exercise claims in only three cases, and all three – like Sherbert – involved unemployment compensation. In the first decision, Thomas v. Review Board (1981), the court ordered the state of Indiana to pay unemployment benefits to a member of the Jehovah’s Witnesses who, for religious reasons, had left his job in a factory that had switched to the manufacture of munitions. Later, in Hobbie v. Unemployment Appeals Commission (1987), the court protected the unemployment benefits of a Florida woman who had been fired from her job after she became a Seventh-day Adventist and informed her employer that she could no longer work on Saturdays because it was now her Sabbath. Likewise, in Frazee v. Illinois Department of Employment Security (1989), the court ordered Illinois to pay unemployment benefits to an employee who believed that Sunday was the “Lord’s Day” (though he did not attend worship services on that day) and was fired from his job because he refused to work on Sundays.
In some of the cases in which the court rejected free exercise claims, it applied a less rigorous version of the compelling interest test than it had in earlier decisions. For example, in Bob Jones University v. United States (1983), the court rejected a First Amendment challenge to the Internal Revenue Service’s policy of denying tax-exempt status to nonprofit educational institutions that had racially discriminatory policies. The university argued that even though it prohibited interracial dating among its students, it should retain its tax-exempt status because the school’s dating policy was grounded in the institution’s religious values. The court rejected the university’s claim, and in doing so dispensed with the detailed balancing test it had used in Sherbert and Yoder. With minimal analysis, the court found that the government’s interest in ending racial discrimination was a sufficiently compelling one and dismissed the notion that the university would be severely burdened by the loss of its tax exemption. The court did not attempt to rigorously assess whether allowing the university to keep the exemption would seriously impede the government’s civil rights enforcement effort.
In several other post-Yoder decisions, the court refused to apply the compelling interest test because the justices concluded that the issues involved situations that should not be closely monitored by the judiciary. For example, in Goldman v.Weinberger (1986), the court held that the compelling interest test should not be applied to the military. Accordingly, the court ruled against a Jewish Air Force captain who sought the right to wear a yarmulke – a religious head covering – despite the Air Force rule that forbade the wearing of any headgear indoors. By a 5-4 vote, the court held that the judicial branch should not interfere with military judgments about when religious exemptions from military policies should be allowed.
In O’Lone v. Estate of Shabazz (1987), the court similarly invoked a policy of deference to officials who administer prisons. Ahmad Uthman Shabazz and other Muslim inmates had challenged New Jersey state prison policies that made it impossible for them to attend Jum’ah, Friday afternoon Muslim prayer services. Chief Justice William Rehnquist, writing for a 5-4 majority, asserted that judges should defer to prison policies that are supported by “reasonable penological interests.” In this case, the court ruled, considerations of rehabilitation and security provided a reasonable basis for restrictions on inmate attendance at this service.
In still other cases, the court has refused to apply the compelling interest test because it concluded that the challenged government action simply did not impose a substantial burden on the plaintiff ’s free exercise of religion. For example, in Bowen v. Roy (1986), a Native American family claimed that by assigning a Social Security number to their daughter, the federal government had robbed her of her spirit and, hence, offended their religious beliefs. The family argued that the Free Exercise Clause obligated the government to exempt them from the requirement, even though the girl needed a Social Security number in order to receive welfare benefits. The court, however, rejected the parents’ claim and ruled that the government’s assignment of a Social Security number to their daughter did not obstruct the parents’ ability to “believe, express and exercise” their religion. In addition, the court asserted, the Free Exercise Clause should not be read to limit the way the government makes decisions about its internal affairs – in this case, how it distributes benefits.
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