A Delicate Balance: The Free Exercise Clause and the Supreme Court
State Court and Legislative Responses to the Smith Decision
In the years following Smith, the fear that the decision would significantly curtail religious liberty prompted state courts and legislatures, as well as the U.S. Congress, to act. Prior to this ruling, many state courts had followed the Supreme Court’s more expansive view of religious liberty in interpreting their own constitutions’ religion clauses. After Smith, however, several state courts explicitly rejected the high court’s new doctrine and continued to employ some variation of the compelling interest test in deciding religious liberty claims.
For instance, in State v. Hershberger (1990), the Minnesota Supreme Court upheld the right of the Old Order Amish to use silver reflecting tape instead of the state-mandated orange triangle on their slow-moving, horse-drawn buggies. The state court ruled that the Minnesota Constitution’s protection of religious liberty required the state to establish that it had a compelling interest in regulating religiously motivated actions. Furthermore, the state was required to demonstrate that accommodating religious practices would undermine those interests. The court concluded that the state was unable to meet that requirement in this case. Similarly, in First Covenant Church v. City of Seattle (1992), the Washington state Supreme Court, adopting the compelling interest test for religious liberty claims under the Washington state Constitution, ruled in favor of a church that had been prevented from making alterations to its building by the state’s historic preservation laws.
Legislatures, beginning with the U.S. Congress, also acted to counter what they perceived would be the negative impact of Smith. In 1993, a coalition of religious and civil liberties groups persuaded Congress to enact the Religious Freedom Restoration Act (RFRA), which attempted to codify the compelling interest standard that the Supreme Court had applied in Sherbert and Yoder but had curtailed in Smith. Specifically, the statute prohibited the government from burdening religiously motivated activity unless there is a compelling interest to do so, and unless that interest is being furthered in the least restrictive manner.
In 1997, the constitutionality of RFRA came before the Supreme Court in City of Boerne v. Flores. The case involved a dispute between a Texas town and a local Catholic archbishop who wanted to enlarge a church building, which was a violation of local historic preservation rules. In a sweeping decision, the Supreme Court ruled that RFRA was unconstitutional as applied to the states. The foundation of the decision rested upon federalism. The court concluded that Congress lacked the power to impose upon state and local governments the same compelling interest test that the court itself had repudiated in Smith and City of Hialeah. Among other things, the court pointed out that Congress had offered no evidence that state or local governments were systematically imperiling religious liberty. Such findings might have shown that the restoration of the pre-Smith compelling interest test was in fact necessary to maintain religious freedom against state and local government intrusion.
In 2006, the Supreme Court had an opportunity to apply RFRA in a case involving the federal government. In Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, the court unanimously ruled that the statute protects the right of a small religious sect to import and use a hallucinogenic substance in its religious rituals. The court also concluded that the government failed to show that the substance – hoasca tea – is dangerous to human health or is the subject of illicit commercial trafficking. Hence, the court ruled that the government, as required by RFRA, did not demonstrate a compelling interest in denying the religious group access to the tea. A dozen states have followed Congress’ lead and enacted state RFRAs, which require the state to justify burdens they place on religiously motivated actions. However, as of 2007, these state-level RFRAs have not had a significant impact on state court decisions concerning religious freedom. For example, in Freeman v. Department of Motor Vehicles (2006), a Florida appellate court ruled that the state RFRA did not protect the right of a Muslim woman to refuse to be photographed without her head covering if she wanted to obtain a driver’s license. The Florida Supreme Court declined to hear an appeal of the lower court’s decision.
Meanwhile, in 2000, three years after City of Boerne, Congress passed a significantly scaled-back version of RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA). As its name suggests, RLUIPA is focused on two kinds of state and local actions. First, the law regulates government decisions concerning the uses of land by religious organizations. Most such decisions involve matters of zoning or issues of historic preservation. As of mid-2007, many cases involving this portion of RLUIPA were working their way through the lower courts. In addition, the act aims to protect the religious freedom of prison inmates and other persons incarcerated in state or local institutions, such as jails or mental hospitals.
So far, RLUIPA has weathered constitutional challenges better than its predecessor. For instance, in Cutter v.Wilkinson (2005), the Supreme Court unanimously rejected the argument that the portion of the statute that covers prisoners and other institutionalized persons violates the First Amendment’s Establishment Clause, which forbids the government from specially favoring religion or promoting religious belief. The court ruled that Congress is free to insist that states receiving federal financial assistance for their penal institutions respect the religious liberties of prisoners within the standards required by RLUIPA. Prison officials and courts must now apply RLUIPA, as interpreted in Cutter, on a case-by-case basis to the particular religious freedom claims of prisoners and other institutionalized persons. (An upcoming backgrounder will discuss in much greater detail RLUIPA and other legislative accommodations of religious liberty.)
In light of the reasoning in Cutter, there is reason to believe that the court would similarly uphold RLUIPA’s land use provisions against a constitutional challenge based on the Establishment Clause. But this result is by no means assured, since these provisions raise a unique blend of concerns about religious freedom and federal interference in local decisions concerning the effect of land use on the surrounding community.
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