In the Aftermath of the Unthinkable:
Responses to the Loss of Constitutional Protection for Religious Pluralism in the United States

Eleven years ago, in Employment Division v. Smith, the United States Supreme Court responded to the reality of religious pluralism in the U.S. by announcing that, in a "cosmopolitan nation made up of people of almost every conceivable religious preference, …we cannot afford the luxury" of thorough constitutional protection for religious liberty.[1] This meant, the Court acknowledged, "leaving accommodation [of free exercise rights] to the political process," which "will place at a relative disadvantage those religious practices that are not widely engaged in," but the Court concluded that this is an "unavoidable consequence of democratic government."[2]

The Smith decision brought a half-century of broad constitutional free exercise protection to a close. Ironically, just as we were proudly celebrating our Constitution’s bicentennial, and at a time when some of our finest constitutional scholars were being invited to assist with the drafting of new constitutions for emerging democracies, our Supreme Court was getting out of the business of providing constitutional protection for the free exercise of religion.

The implications for religious pluralism are disturbing. As one Supreme Court scholar has observed, "Smith offers little or no protection to the religious liberty claims of unorthodox groups, except in those rare situations in which a sect’s practices are singled out for special restrictions - as, for example, when Hialeah, Florida, forbade ritual sacrifice of animals while permitting virtually every other form of animal slaughter."[3]

Putting aside for the moment the free exercise protection that some states provide, the U.S. Constitution would leave free exercise claimants to seek relief, in most situations, from the legislature, which is a more cumbersome process than litigating. Before Smith, the burden fell on the government to justify, to the court’s satisfaction, its imposition on the claimant’s free exercise rights. After Smith, the burden is on the claimant to persuade the legislature to enact an exemption.

The burden of being left to seek an exemption through the legislature may be an impossible obstacle for free exercise claimants to overcome. As one commentator describes it, "[t]o get a statutory exemption, even a fairly uncontroversial one, religious objectors must get space on the legislative agenda, something that may be hard if the religious group is small, unpopular, or not politically well-organized. (The separatist beliefs of some groups, such as the Amish, may make it especially hard for them to mobilize politically.) It will also take time; while the objectors are waiting for the legislature to act, they may be forced by the law into what they believe to be sinful behavior. And winning in the legislature tends to require not just majority agreement but a mild supermajority: The bill must navigate the legislative committee system and then be accepted by both houses of the legislature and signed by the executive. If the statutory exemption is controversial, it might be rejected even if it has majority support but not the required supermajority."[4]

Those concerned that this shift in the burden of persuasion leaves free exercise claimants, especially adherents of minority faith traditions, at too great a disadvantage have sought to restore access to broad judicial protection for free exercise rights through three primary means: (1) enactment of federal statutes;[5] (2) enactment of state statutes or, in one case, a state constitutional amendment;[6] and (3) procurement of favorable judicial rulings under state constitutions..[7] This paper will describe and evaluate these responses to the loss of federal constitutional protection for religious pluralism in the United States.

Federal statutes

The U.S. Congress reacted immediately to Smith’s drastic restriction of access to federal constitutional protection for free exercise rights. Within months of the Court’s ruling, an unprecedented coalition of more than 50 organizations, many of which are normally at odds with each other, united in support of the Religious Freedom Restoration Act, known as RFRA.[8] In 1993, three years after Smith, RFRA passed, unanimously in the House of Representatives, and with only 3 opposing votes in the Senate.

RFRA aimed to restore the constitutional test that had been applied to free exercise claims prior to Smith, the "compelling interest" test, according to which the "[g]overnment may substantially burden a person’s exercise of religion only if [the government] demonstrates that application of the burden to the person - (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest."[9] But after just four years of restored federal free exercise protection, in 1997’s City of Boerne v. Flores, the United States Supreme Court declared RFRA unconstitutional on the basis that Congress did not have the authority to enact it.[10]

It would be 3 more years before Congress would be able to enact a response to the Boerne decision’s invalidation of RFRA. In 2000, President Clinton signed the Religious Land Use and Institutionalized Persons Act (RLUIPA). The protection that RLUIPA provides, however, is much more limited in scope than either RFRA or the Court’s pre-Smith free exercise jurisprudence. RLUIPA applies only to free exercise infringements on religious land use due to zoning and landmarking laws or on persons who are institutionalized in prisons, hospitals and retirement homes. Like RFRA, RLUIPA requires that any such burden on free exercise must be "in furtherance of a compelling governmental interest" and be "the least restrictive means of furthering that compelling governmental interest."[11

In the first case decided under RLUIPA, the City of Grand Haven, Michigan, agreed in a court-approved consent judgment that its zoning officials had violated RLUIPA by denying a small church the right to use property it had leased in a strip mall.[12] Presumably, RLUIPA will continue to provide significant free exercise protection, but again only in zoning disputes and cases brought by institutionalized persons.

State enactments

Eleven state legislatures have sought to restore broad judicial protection for free exercise rights, whether by enacting their own version of a religious freedom restoration act (in ten states) or by amending their state constitution (in Alabama).[13] These state RFRA’s, like the federal RFRA and RLUIPA, prohibit government infringement of free exercise rights unless the government can demonstrate that the burden imposed is "the least restrictive means" of furthering "a compelling governmental interest."[14] The fate of these state RFRA’s remains to be seen. Some commentators have argued that state RFRA’s are unconstitutional, violating their state and/or the federal constitution.[15]

State constitutional rulings

Less vulnerable are the rulings in ten states that their state constitutions require the application of the pre-Smith "compelling governmental interest" test developed under the federal constitution, since state supreme courts cannot be superceded in their interpretation of their own constitutions, so long as their interpretations of their state constitutions do not conflict with the federal constitution.

What exists, then, at the moment, in the U.S. is a patchwork pattern of uneven, uncertain protection for free exercise rights. In ten states, broad free exercise protection is available, assuming that the state religious freedom restoration acts that provide this protection are not ruled unconstitutional under either the state or the federal constitution. In an eleventh state, Alabama, broad free exercise protection is more secure, since it has been adopted by amendment to the state constitution. This ensures that Alabama’s free exercise protection cannot be ruled unconstitutional under its state constitution and that it cannot be limited by ordinary legislation.[16] The free exercise provisions of the constitutions of ten more states have been interpreted to provide broad free exercise protection. These ten states provide the most secure form of access to judicial protection for free exercise rights.

Thus in only a minority of the United States are members of minority religions able to access free exercise protection through the courts, rather than through the legislatures. As for federal legislation, the RLUIPA offers free exercise protection in limited circumstances, and the federal RFRA appears to remain in force as applied to claims against the federal government, even though it has been declared unconstitutional as applied to claims against state and local governments.[17]

The future is difficult to predict. I have no sense of whether state RFRA’s will be passed in many more states, or how many states’ constitutions will eventually be interpreted to provide pre-Smith-type free exercise protections.

I do find it interesting, though, to consider the possibility that U.S. free exercise law may be evolving toward into something that is preferable to what it was pre-Smith. When broad free exercise protection was available under Smith, the courts were reluctant to apply its test in as strict a manner as its name - the "strict scrutiny" test - would suggest. The U.S. Supreme Court denied most free exercise claims prior to Smith, and they fared just as poorly in the lower federal courts.[18] To illustrate, free exercise claims have lost out to purportedly "compelling" governmental interests in order to collect taxes on sales of Bibles; prevent Muslim inmates from attending prayer services during work-release time; prohibit an orthodox Jewish officer from wearing a yarmulke on duty as a military psychologist; require a driver’s license photograph from a person who believed photographs were "graven images" in violation of the Ten Commandments; require a religious foundation to comply with federal labor regulations; and collect Social Security taxes on Amish earnings.[19] Commentators widely question how "compelling" the governmental interests asserted in these cases really are.

I cannot say why the Supreme Court was so reluctant to provide in practice the kind of free exercise protection that it offered, in theory, under the "strict scrutiny" test. I am intrigued, however, by the point made by UCLA law professor Eugene Volokh: that the pre-Smith approach put the courts in the uncomfortable position of making final decisions -- not subject to legislative adjustment -- about when one person’s liberty should be constrained by the rights and interests of others.[20] As Volokh notes, "A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature."[21] Providing access to judicial free exercise protection under RFRA’s still "lets courts decide in the first instance whether an exemption is to be granted. But because RFRA’s may be revised by the legislature, the courts’ decisions aren’t final."[22]

One very important benefit of having a RFRA, despite the possibility that the legislature might override the court’s decision, is that "the burden of overcoming legislative inertia" is shifted to those opposing the free exercise exemption,[23] and away from the religious adherent, who will likely be a member of a minority faith. In addition, under a RFRA, legislators would face certain disincentives should they attempt to pass a law reversing a court’s decision to grant an exemption. As Volokh notes, "It always takes effort to get anything on the legislative agenda, and many legislators might be hesitant to cast what can be characterized as ‘A vote against religious freedom.’"[24] Finally, when interpreting a RFRA, "a judge may be more willing to decide close cases in a claimant’s favor, precisely because the decision isn’t final. Judges … may also be more willing to grant exemptions as experiments,"”[25] feeling that they have more room to change their minds later -- if the experiment leads to unfavorable results -- when interpreting a statute than when interpreting constitutional text.

In conclusion, with the Smith decision the sky has fallen, in terms of full-blown, broad free exercise protection under the federal constitution. At the moment, U.S. citizens are left with patchy protection: the federal RFRA applies to claims against the federal government; the RLUIPA applies to cases involving zoning and institutionalized persons; and depending on the state in which one lives one may have a state statute or constitution that provides the kind of broad free exercise protection that was available under the federal constitution before Smith. But a sober assessment of pre-Smith free exercise jurisprudence reveals that free exercise claimants weren’t faring all that well under the federal constitution. Due to certain judicial and legislative dynamics, free exercise claimants may fare better under the statutory free exercise protection regime that now exists in ten of the United States.