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PANEL O NE CO MMENTARY
LAWRENCE G. SAGER*
Baseball h as been th e govern in g metaph or of th e con feren ce,
an d in th ese brief remarks I h ope to touch all th e bases. I will talk a
bit about th e con stitution al status of religious liberty in th e Un ited
States before, as well as after, th e Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith.1
Th en I will turn to th e Court’s decision s in City of Boerne v. Flores2
an d its progen y. Fin ally, I will con sider th e Religious Lan d Use an d
In stitution alized Person s Act ( “RLUIPA”) of 2000,3 th e statute th at
I h ad h eretofore th ough t to be un pron oun ceable. Even ren dered
pron oun ceable, RLUIPA is a bad piece of legislation ; at best it does
a job in a crude an d radically overbroad way th at Con gress could
h ave don e surgically. RLUIPA may well be un con stitution al, an d it
is almost certain to en courage th e Supreme Court in its on goin g
h ostility to wh at it perceives as con gression al excess.
To un derstan d religious liberty after Smith it is importan t to
un derstan d th e status of religious liberty before Smith. For some
twen ty-seven years, Sherbert v. Verner 4 provided th e n omin ally govern in g rule. Un der Sherbert, an y govern men tal act th at sign ifican tly
burden ed religiously-motivated con duct was presumptively un con stitution al an d could be redeemed on ly by a sh owin g of a compellin g state in terest. Taken at face value, Sherbert th us gave person s
motivated by th eir religious beliefs a presumptive righ t to disregard
laws th ey deemed to obstruct religiously-motivated con duct, laws
th at all oth er person s were required to obey.
But it would be a great mistake to take Sherbert at face value;
certain ly th e Supreme Court did n ot do so. Th e rule of Sherbert was
h on ored almost exclusively in th e breach ; Sherbert claiman ts almost
in variably were disappoin ted to learn th at th ey were n ot free to dis* Robert B. McKay Professor of Law, New York University Sch ool of Law.
1. 494 U.S. 872 ( 1990) .
2. City of Boern e v. Flores, 521 U.S. 507 ( 1997) ( h olding that Congress exceeded its power in enactin g th e Religious Freedom Restoration Act ( RFRA) of
1993, 42 U.S.C. § 2000 ( 1994) , as it gran ted rather than merely enforced con stitution al protection s) .
3. Religious Lan d Use and Institutionalized Persons Act ( RLUIPA) , 42 U.S.C.
§ 2000cc ( 2000) . On e of th e many reason s that I am grateful to the editors of the
NYU Annual Survey of American Law is th at they’ve given us a name: th ey say we
sh ould pron ounce it “are-LOO-pah.”
4. Sh erbert v. Vern er, 374 U.S. 398 ( 1963) .
9
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regard laws th at were obstacles to th eir religiously-motivated en terprises. O n ly two small groups of con stitution al claiman ts
successfully in voked Sherbert. Sherbert itself was join ed by th ree oth er
un employmen t in suran ce cases th at were more or less con gruen t.
In addition , Amish litigan ts in Wisconsin 5 secured a limited exemption from state education al requiremen ts, allowin g th em to with draw th eir ch ildren from formal education two years early. If we set
Wisconsin aside as an exotic outlier, we can see h ow stran ge th e apparen t reign of Sherbert actually was: for twen ty-seven years th e Supreme Court paid lip service to an apparen tly robust premise of
religious liberty, but reliably acted in accord with th at premise on ly
in cases in volvin g un requited claims of eligibility for un employmen t
in suran ce.6
Th e reason for th is un usual state of affairs is th at th e rule of
Sherbert was always an un attractive con stitution al n orm —so un attractive th at th e Supreme Court could n ever really abide it. Th e
problems with th e Sherbert rule can be put succin ctly: first, religion
spon sors con duct th at is good, con duct th at is bad, an d con duct
th at is very ugly. A rule th at gives religiously motivated person s a
presumptive righ t to disregard oth erwise valid laws just doesn ’t
make sen se given th e poten tial ran ge of beh avior en dorsed by religious faith . Secon d, th e n omin al rule of Sherbert in defen sibly privileges religious commitmen ts over oth er deep an d valuable h uman
commitmen ts—commitmen ts, for example, to family, to moral probity on secular groun ds, an d to artistic statemen t. Un der Sherbert,
two people run n in g a soup kitch en , two lan dlords wh o despise th e
con duct of th eir ten an ts, or two same sex couples wh o wish to be
married, could h ave radically differen t con stitution al stan din g if
on e is motivated by religion an d th e oth er merely by a passion to
alleviate h uman sufferin g, to dissociate from repreh en sible beh avior, or to formally recogn ize lovin g commitmen ts to each oth er.
For th ese two reason s, th e Sherbert rule was n ever an appealin g con stitution al n orm an d n ever en joyed th e fun ction al allegian ce of th e
Supreme Court.
5. Wisconsin v. Yoder, 406 U.S. 205 ( 1972) ( holdin g that state interest in education was in sufficien t to impin ge on th e free exercise rights of Amish families) .
6. Smith, 494 U.S. at 883-84; Frazee v. Ill. Dep’t. of Employment Sec., 489 U.S.
829 ( 1989) ( h oldin g that claimant was en titled to un employmen t benefits even if
religious views were in depen dent of an y sect) ; Hobbie v. Unemploymen t Appeals
Comm’n, 480 U.S. 136 ( 1986) ( in volvin g unemployment compensation to a Seven th -Day Adven tist fired for refusing to work on th e Sabbath ) ; Th omas v. Review
Bd. of Ind. Employment Sec. Div., 450 U.S. 707 ( 1980) ( in volving un employmen t
compen sation for a Jeh ovah’s Witness fired for refusing to produce weapons) .
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Th e Sherbert quartet of cases th emselves are best un derstood as
prompted by a proph ylactic impulse—an impulse to protect un employmen t in suran ce applican ts with n on -main stream religious affiliation s from discrimin ation in a h igh ly discretion ary admin istrative
con text.7 On th is accoun t, Sherbert an d its immediate progen y are
best explain ed as an ti-discrimin ation cases. More precisely, th ey are
best explain ed as reflectin g wh at Ch ris Eisgruber an d I h ave described as th e con stitution al n orm of equal regard.8
Equal regard is a gen eral requiremen t of a politically just society. It h olds th at th e in terests an d con cern s of every member of th e
political commun ity sh ould be treated equally, th at n o person or
group sh ould be treated as un worth y or oth erwise subordin ated to
an in ferior status. In th e special con text of religious liberty, equal
regard requires th at th e religious con cern s of min ority religious believers be treated with th e same regard as main stream religious an d
secular con cern s. In th e distin ct con text of un requited un employmen t in suran ce claiman ts, th e Sherbert rule was a plausible proph ylaxis again st th e failure of equal regard. But in oth er con texts,
wh ere th e n ormative appeal of equal regard did n ot len d in tuitive
support to th e results deman ded by Sherbert, th e Court could n ot
abide by its own articulated rule. Th us, Smith an n oun ced th e death
of a rule th at n ever really existed.
In th e wake of Smith, equal regard h as been brough t closer to
th e surface of th e Court’s religious liberty jurispruden ce; religious
liberty h as ben efited rath er th an suffered from th is turn toward
equality. Smith’s somewh at elusive in sisten ce on n eutral an d gen erally applicable stan dards9 begin s to make sen se if it is un derstood as
a surrogate for equal regard. In th e Hialeah decision ,10 th e Court
embarrassed th ose wh o h ad declared th at Smith sign aled th e death
of religious liberty by un an imously strikin g down legislation th at
sin gled out religiously-motivated an imal slaugh ter for adverse treatmen t. Hialeah was quin tessen tially an application of th e n orm of
equal regard.
7. Th is poin t is n ot in ciden tal to RLUIPA, to th e discussion of wh ich we will
sh ortly turn . RLUIPA is in part structured to exploit th e prophylactic interpretation of Sherbert.
8. In essen ce, “[ e] qual regard requires simply th at government treat the deep,
religiously inspired concerns of minority religious believers with the same regard as that enjoyed by the deep concerns of citizens generally.” Ch ristoph er L. Eisgruber & Lawrence
G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious
Conduct, 61 U. CH I. L. REV. 1245, 1283 ( 1994) .
9. Smith, 494 U.S. at 878-80, 884-86.
10. Church of th e Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 ( 1993) .
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Equal regard also best explain s th e improved prospects of religious liberty claiman ts in th e lower courts after Smith. Th us, if a
police departmen t permits officers with a skin con dition adverse to
sh avin g to wear beards, th en th at same departmen t must permit
officers wh o h ave a religious con dition adverse to sh avin g to wear
beards.11 Similarly, if a public un iversity permits fresh men to live in
private h ousin g rath er th an dormitories based on secular reason s, it
must give religiously motivated fresh men th e same opportun ity.12
As a fin al example, if a commun ity gran ts exemption s from lan d
use regulation s on groun ds of fin an cial h ardsh ip, it must make
available comparable exemption s on groun ds of religious h ardsh ip.13 Th ese cases are all best un derstood as driven by con cern s of
equal treatmen t, an d th ey offer a glimpse of th e con tours of a jurispruden ce of equal regard.
In summary, th e twen ty-seven year reign of Sherbert obscured
th e actual source of n ormative en ergy beh in d th e Free Exercise
Clause. Th e n ormative en ergy was, for all practical purposes, a tacit
commitmen t to equal regard. Smith’s deman d for n eutral rules of
gen eral applicability is best un derstood as respon din g to much th e
same impulse. In th e wake of Smith, in both th e Supreme Court
an d th e lower courts, th e cen trality of equality con cern s is becomin g in creasin gly tran sparen t.
All of wh ich brin gs us to th e Religious Freedom Restoration
Act ( “RFRA”) of 1993,14 City of Boerne,15 an d RLUIPA.16 In respon se
to Smith, as man y of you kn ow, Con gress en acted RFRA. RFRA attempted to make th e n omin al rule of Sherbert th e actual rule an d
th ereby purported to “restore” a regime of religious liberty th at h ad
n ever existed. RFRA suffered fully from th e vices th at led th e Court
to avoid a serious application of Sherbert in th e first place, an d from
at least two addition al vices as well. In th e n ame of th e restoration
11. FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 ( 3d Cir. 1999) .
12. Rader v. Joh nston , 924 F. Supp. 1540 ( D. Neb. 1996) . But see Hack v.
President & Fellows of Yale College, 237 F.3d 81 ( 2d Cir. 2000) ( h oldin g that studen ts required to live in coeducational halls in spite of religious beliefs did not
h ave a claim again st Yale College because Yale was not a state actor for § 1983
liability an d the policy was one of inclusion not exclusion, thus precludin g a Fair
Housin g Act claim) .
13. Keeler v. Mayor & City Council of Cumberland, 940 F. Supp. 879 ( D. Md.
1996) .
14. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ( 1994) .
15. 521 U.S. 507 ( 1997) ( holding that Con gress exceeded its power in enactin g th e Religious Freedom Restoration Act of 1993 as it gran ted rather th an merely
en forced con stitution al protection s) .
16. Religious Land Use an d Institution alized Persons Act, 42 U.S.C. § 2000cc
( 2000) .
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of religious liberty, RFRA required th e Supreme Court to en gage in
a ch arade. RFRA required th e Court to adopt th e rh etoric an d
failed rule of th e Sherbert regime, a regime wh ich a majority of th e
Court h ad rejected twice over: first, by refusin g to act on Sherbert’s
directive for th e twen ty-seven years of its n omin al life; an d secon d,
by ren oun cin g th at directive as a “con stitution al an omaly” in Smith.
In th e n ame of th e restoration of a failed view of religious liberty,
RFRA cut a staggerin gly broad swath of federal oversigh t in to th e
oth erwise reason able an d valid policies an d en terprises of state an d
local govern men ts. It would h ave been remarkable for th e Supreme Court to h ave allowed RFRA to stan d, an d th is th e Court
declin ed to do in City of Boerne.17
Wh ile th e in validation of RFRA was all but in evitable, th e an alytical framework relied upon by th e Court in City of Boerne was a
mistake. In City of Boerne, th e Court in sisted th at wh en Con gress is
actin g pursuan t to its auth ority un der Section Five of th e Fourteen th Amen dmen t, its prerogatives are exclusively remedial.18
Con gress, on th is view, is bereft of an y auth ority to augmen t th e
Court’s un derstan din g of th e un derlyin g substan ce of con stitution al righ ts. Wh at th is view most promin en tly fails to take accoun t
of is th e powerful in stitution al forces th at con strain an d foresh orten th e Court’s doctrin al implemen tation s of th e righ ts-bearin g
provision s of th e Con stitution –in particular th e substan tive provision s of th e Fourteen th Amen dmen t. In addition , th is view n eedlessly sacrifices th e capacity of Con gress to act as th e Court’s
partn er in iden tifyin g th e elemen ts of freedom an d equality th at
compose a just society. Th e h ope th at City of Boerne would come in
time to be tempered by th e Court’s appreciation of th ese con cern s
h as been dimmed by subsequen t decision s in th at case’s n ame, decision s th at lean towards rigidity rath er th an n uan ce.19
Con gress bears at least some of th e respon sibility for th is un fortun ate developmen t. After Smith, a broad political coalition formed
wh ich brough t fevered pressure on Con gress to respon d to wh at
was grossly misch aracterized as a deep th reat to religious liberty.
17. 521 U.S. at 536.
18. Id. at 519.
19. See, e.g., Board of Trustees v. Garrett, 121 S. Ct. 955, 963 ( 2001) ( h olding
th at an in dividual may n ot sue a State under the Americans with Disabilities Act
( ADA) of 1990, 42 U.S.C. §§ 12111-12117 ( 1995) , an d n oting th at “it is the respon sibility of th is Court, n ot Con gress, to defin e th e substan ce of constitution al guarantee.”) ; Kimel v. Florida Bd. of Regen ts, 528 U.S. 62, 88-91 ( 2000) ( holdin g that
Con gress exceeded its power in enacting th e Age Discrimination in Employmen t
Act ( ADEA) of 1967, 29 U.S.C. § 621 ( 1999) ( as amended) because it granted
rather than en forced con stitutional protections) .
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Th at pressure could h ave been coun tered by simple good sen se
but, un fortun ately, at th at time good sen se lacked a political con stituen cy. Th e result was Con gress’s n early un an imous adoption of
RFRA. RFRA begged for th e Court’s critical scrutin y an d could
on ly h ave exacerbated th e ten den cy of at least some members of
th e Court to question th e soun dn ess of Con gress’s judgmen t.
RLUIPA, un h appily, is more of th e same. It too is a markedly
bad piece of legislation . RLUIPA will also do little to en courage th e
Court to welcome Con gress’s partn ersh ip. I h ave in min d th e lan d
use provision s of RLUIPA an d, in particular, th e most importan t
lan d use provision , wh ich addresses an y lan d use restriction wh ich
in volves th e discretion ary judgmen t of local officials.
An y time a ch urch is den ied permission to use its lan d for an y
ch urch -related purpose—in cludin g th e con struction of a h igh -rise
busin ess buildin g, a towerin g tabern acle or a radio an ten n a—
RLUIPA in terven es if th e mun icipal decision in question in volved
discretion ary judgmen t. RLUIPA gran ts th e affected ch urch a federal cause of action in wh ich th e mun icipality bears th e burden of
demon stratin g th at its decision was n ecessitated by a compellin g
state in terest. Given th e pervasive availability of varian ces, special
use permits an d th e like, most lan d use restriction s ultimately in clude th e possibility of discretion ary judgmen t by local officials. As
a result, almost an y time a commun ity does n ot allow th e developmen tal plan s of a ch urch , it will face th e costly an d precarious prospect of defen din g itself in federal court, wh ere its attempt to apply
reason able lan d use restriction s will be presumed to be in valid.
Th is is a remarkable privilegin g of th e lan d use in terests of
ch urch es over all but th e most weigh ty of lan d use con cern s.
Th e en dorsers of RLUIPA seem –at least publicly–to esch ew th e
in defen sible claim th at th e lan d use in terests of ch urch es sh ould be
presumed to be more weigh ty th an th e collection of con cern s
served by mun icipal lan d use restriction s. In stead, th ey defen d
RLUIPA as a proph ylaxis again st discrimin ation by mun icipalities
again st disfavored ch urch es. Th is argumen t, redolen t of th e n orm
of equal regard an d th e proph ylactic in terpretation of th e Sherbert
quartet, represen ts a distin ct con ceptual advan ce. Wh ile th is defen se of RLUIPA h as th e righ t con ceptual form, it can n ot justify
RLUIPA itself.
Con gress could h ave protected ch urch es again st mun icipal discrimin ation with much more n arrowly tailored or surgically design ed legislation , legislation th at would n ot h ave upen ded
mun icipal lan d-use auth ority by presumptively exemptin g ch urch
en terprises from th at auth ority. For example, if th e primary con -
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cern is th at all religion s be able to provide th eir faith ful with h ouses
of worsh ip, much more n arrow legislation would h ave sufficed.
On e possibility, for example, is legislation th at did n ot permit
h ouses of worsh ip to violate h eigh t restriction s but did en title th em
to locate in residen tial districts absen t a compellin g state in terest to
th e con trary. An oth er possibility would h ave been legislation th at
iden tified specific circumstan ces th at give rise to suspicion of discrimin ation , th e presen ce of wh ich would trigger a presumptive
righ t of a ch urch to locate in th e commun ity. Such circumstan ces
could in clude th e un availability of an y location s in th e commun ity
th at are appropriate for th e location of a h ouse of worsh ip, in con sisten t treatmen t between ch urch es establish ed in th e commun ity
an d th ose wh ich wan t to establish th emselves in th e commun ity,
an d ch an ges of zon in g practices adverse to particular ch urch es.
Legislation of th is sort would h ave provided an effective barrier to
th e discrimin ation th at h as been vividly in voked by RLUIPA’s
supporters.
More n arrowly crafted legislation of th e sort outlin ed h ere
would n ot favor a ch urch th at wan ts to build a radio tower, an en ormous tabern acle, an open religious stadium, or a skyscraper for econ omic purposes in violation of lan dmark preservation ordin an ces.
Un der RLUIPA, h owever, every on e of th ose ch urch es h as a presumptive righ t to proceed, a righ t en forceable in federal court.
RLUIPA is n ot fairly ch aracterized as a mean s of protectin g
ch urch es again st discrimin ation ; it is a bald an d rath er extreme
privilegin g of ch urch es for wh ich n o justification is available.
RLUIPA is best un derstood as aimed n ot at th e protection of
ch urch es again st discrimin ation but rath er at a very differen t target.
Th e propon en ts of RFRA h ave been relen tless in th eir effort to gain
back some of th e groun d lost wh en th e Supreme Court in validated
th at measure. Lan d use offered a domain wh ere th e rein stitution
of RFRA was politically acceptable.
To come full circle: RLUIPA is wh olly in con sisten t with th e
best un derstan din g of religious liberty, wh ich cen ters on th e n orm
of equal regard. In addition RLUIPA, like RFRA before it, will en courage th e Supreme Court to view Con gress as irrespon sible an d
overreach in g rath er th an as a valued partn er in th e en terprise of
securin g con stitution al justice. RLUIPA may well fare badly in th e
courts. Th e judiciary may sh arply curtail th e statute’s reach by n arrowly in terpretin g wh at coun ts as a “substan tial burden ” on religion
by its own terms. Th e judiciary may even in validate RLUIPA. But,
th ose possibilities are n ot my focuses h ere. I simply wan t to observe
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th at RLUIPA is a bad law, a law wh ich is likely to produce bad results h owever it fares in th e courts.