The “Other” Religion Clause: New
Perspective on Free Exercise
U.S. CONST. FIRST AMENDMENT: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
I.
The Dichotomy Between Belief and Conduct: The Early Free Exercise
Clause Cases
The Free Exercise Clause has a long and interesting history in First Amendment
jurisprudence. If read literally to permit anyone to follow their religious beliefs regardless of
other governmental interests, it would have a dramatic impact on the power of government to
regulate behavior. Like the Establishment Clause, the Free Exercise Clause has been
incorporated to the States, creating a host of contemporary problems and concerns. Yet, an
important starting point comes from the 19th century.
Reading Reynolds v. United States. George Reynolds, who lived in what was then the U.S.
Territory of Utah, was charged and convicted of violating a law against. The relevant statute
provided that “every person having a husband or wife living who marries another, whether
married or single, in a Territory, or other place over which the United States have exclusive
jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by
imprisonment for a term of not more than five years. Reynolds was tried and convicted. He
appealed based in part, on a free exercise claim that he believed polygamy to be required by his
religion. At the time of his second marriage, he was a member of the Church of Jesus Christ of
Latter-Day Saints, commonly referred to as the Mormon Church. Reynolds argued that it was the
accepted doctrine of the church to practice polygamy, and that failure to follow the Church’s
teaching would result in eternal damnation. He provided evidence that he had received
permission from church officials to enter into a polygamous marriage, and that he was in fact
married to a second wife under the authority of the church. He asserted that court should have
instructed the jury that if it believed this evidence, it should find him not guilty of the charges.
the jury were to credit this evidence. The trial court had refused to give such an instruction.
Instead the court instructed the jury that even if Reynolds acted pursuant to a religious belief that
polygamy was acceptable, that would not excuse him under the law.
REYNOLDS v. UNITED STATES
98 U.S. (8 Otto) 145 (1878)
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
The assignments of error, when grouped, present the following questions: Should
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the accused have been acquitted if he married the second time, because he believed it to
be his religious duty?
Upon this charge and refusal to charge the question is raised, whether religious
belief can be accepted as a justification of an overt act made criminal by the law of the
land. The inquiry is not as to the power of Congress to prescribe criminal laws for the
Territories, but as to the guilt of one who knowingly violates a law which has been
properly enacted, if he entertains a religious belief that the law is wrong.
Congress cannot pass a law for the government of the Territories which shall
prohibit the free exercise of religion. The first amendment to the Constitution expressly
forbids such legislation. Religious freedom is guaranteed everywhere throughout the
United States, so far as congressional interference is concerned. The question to be
determined is, whether the law now under consideration comes within this prohibition.
The word ‘religion’ is not defined in the Constitution. We must go elsewhere,
therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the
history of the times in the midst of which the provision was adopted. The precise point of
the inquiry is, what is the religious freedom which has been guaranteed.
Before the adoption of the Constitution, attempts were made in some of the
colonies and States to legislate not only in respect to the establishment of religion, but in
respect to its doctrines and precepts as well. The people were taxed, against their will, for
the support of religion, and sometimes for the support of particular sects to whose tenets
they could not and did not subscribe. Punishments were prescribed for a failure to attend
upon public worship, and sometimes for entertaining heretical opinions. The controversy
upon this general subject was animated in many of the States, but seemed at last to
culminate in Virginia. In 1784, the House of Delegates of that State having under
consideration ‘a bill establishing provision for teachers of the Christian religion,’
postponed it until the next session, and directed that the bill should be published and
distributed, and that the people be requested ‘to signify their opinion respecting the
adoption of such a bill at the next session of assembly.’
This brought out a determined opposition. Amongst others, Mr. Madison prepared
a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which
he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the
cognizance of civil government. At the next session the proposed bill was not only
defeated, but another, ‘for establishing religious freedom,’ drafted by Mr. Jefferson, was
passed. In the preamble of this act religious freedom is defined; and after a recital ‘that to
suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain
the profession or propagation of principles on supposition of their ill tendency, is a
dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is
time enough for the rightful purposes of civil government for its officers to interfere
when principles break out into overt acts against peace and good order.’ In these two
sentences is found the true distinction between what properly belongs to the church and
what to the State.
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In a little more than a year after the passage of this statute the convention met
which prepared the Constitution of the United States.’ Of this convention Mr. Jefferson
was not a member, he being then absent as minister to France. As soon as he saw the
draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his
disappointment at the absence of an express declaration insuring the freedom of religion
(2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense
and honest intentions of the people would bring about the necessary alterations. 1 Jeff.
Works, 79. Five of the States, while adopting the Constitution, proposed amendments.
Three—New Hampshire, New York, and Virginia—included in one form or another a
declaration of religious freedom in the changes they desired to have made, as did also
North Carolina, where the convention at first declined to ratify the Constitution until the
proposed amendments were acted upon. Accordingly, at the first session of the first
Congress the amendment now under consideration was proposed with others by Mr.
Madison. It met the views of the advocates of religious freedom, and was adopted. Mr.
Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist
Association took occasion to say: ‘Believing with you that religion is a matter which lies
solely between man and his God; that he owes account to none other for his faith or his
worship; that the legislative powers of the government reach actions only, and not
opinions,—I contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should ‘make no law respecting an establishment of
religion or prohibiting the free exercise thereof,’ thus building a wall of separation
between church and State. Adhering to this expression of the supreme will of the nation
in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of
those sentiments which tend to restore man to all his natural rights, convinced he has no
natural right in opposition to his social duties.’ Coming as this does from an
acknowledged leader of the advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment thus secured. Congress
was deprived of all legislative power over mere opinion, but was left free to reach actions
which were in violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western nations of
Europe, and, until the establishment of the Mormon Church, was almost exclusively a
feature of the life of Asiatic and of African people. At common law, the second marriage
was always void and from the earliest history of England polygamy has been treated as
an offence against society. After the establishment of the ecclesiastical courts, and until
the time of James I., it was punished through the instrumentality of those tribunals, not
merely because ecclesiastical rights had been violated, but because upon the separation of
the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most
appropriate for the trial of matrimonial causes and offences against the rights of marriage,
just as they were for testamentary causes and the settlement of the estates of deceased
persons.
[W]e think it may safely be said there never has been a time in any State of the
Union when polygamy has not been an offence against society, cognizable by the civil
courts and punishable with more or less severity. In the face of all this evidence, it is
impossible to believe that the constitutional guaranty of religious freedom was intended
to prohibit legislation in respect to this most important feature of social life. Marriage,
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while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a
civil contract, and usually regulated by law. Upon it society may be said to be built, and
out of its fruits spring social relations and social obligations and duties, with which
government is necessarily required to deal. In fact, according as monogamous or
polygamous marriages are allowed, do we find the principles on which the government of
the people, to a greater or less extent, rests.
In our opinion, the statute immediately under consideration is within the
legislative power of Congress. It is constitutional and valid as prescribing a rule of action
for all those residing in the Territories, and in places over which the United States have
exclusive control. This being so, the only question which remains is, whether those who
make polygamy a part of their religion are excepted from the operation of the statute. If
they are, then those who do not make polygamy a part of their religious belief may be
found guilty and punished, while those who do, must be acquitted and go free. This
would be introducing a new element into criminal law. Laws are made for the
government of actions, and while they cannot interfere with mere religious belief and
opinions, they may with practices. Suppose one believed that human sacrifices were a
necessary part of religious worship, would it be seriously contended that the civil
government under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her dead
husband, would it be beyond the power of the civil government to prevent her carrying
her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of
the United States, it is provided that plural marriages shall not be allowed. Can a man
excuse his practices to the contrary because of his religious belief? To permit this would
be to make the professed doctrines of religious belief superior to the law of the land, and
in effect to permit every citizen to become a law unto himself. Government could exist
only in name under such circumstances.
Upon a careful consideration of the whole case, we are satisfied that no error was
committed by the court below. Judgment affirmed.
II. Accommodating Religion in the Free Exercise Context
The Free Exercise Clause under Reynolds had virtually no impact as governments were
free to regulate conduct, even if that conduct was part of a sincerely held religious belief. There
were very few cases in which the Free Exercise Clause provided any meaningful limit. For
example, in Braunfeld v. Brown, 366 U.S. 599 (1961), the Court rejected a challenge by members
of the Orthodox Jewish faith to a Pennsylvania statute making it a crime for retail stores to open
on Sunday. Given their faith, the plaintiffs closed their store on Saturday (their Sabbath day
under their religion). By having to close on both Saturday and Sunday, it created a significant
burden. The Court rejected the challenge finding that the regulation was a neutral law that
regulated secular activity. While it made practicing their religion more expensive, it did not
force a serious choice between following their religious activities and avoiding criminal
prosecutions.
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READING SHERBERT v. VERNER: Adell Sherbert worked in a textile mill near in
Spartanburg, South Carolina. She was a member of the Seventh-day Adventist Church. After
her employer went to a six day work week, she was discharged by her employer because she
would not work on Saturday, which is the Sabbath day of rest for her religion. She filed a
claim for unemployment benefits under South Carolina law. That law provided that in order to
be eligible for beneifts, a claimant must be “able to work” as well as being “available for
work.” A claimant is ineligible for benefits if they fail “without good cause” to “accept
available suitable work when offered.” The South Carolina Employment Security Commission
found that Sherbert’s refusal to work on Saturday disqualified her from receiving benefits.
SHERBERT v. VERNER
374 U.S. 398 (1963)
Mr. Justice BRENNAN delivered the opinion of the Court.
The door of the Free Exercise Clause stands tightly closed against any
governmental regulation of religious beliefs as such. Government may neither compel
affirmation of a repugnant belief, nor penalize or discriminate against individuals or
groups because they hold religious views abhorrent to the authorities, nor employ the
taxing power to inhibit the dissemination of particular religious views. On the other
hand, the Court has rejected challenges under the Free Exercise Clause to governmental
regulation of certain overt acts prompted by religious beliefs or principles, for ‘even
when the action is in accord with one’s religious convictions, (it) is not totally free from
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legislative restrictions.’ Braunfeld v. Brown, 366 U.S. 599, 60. The conduct or actions so
regulated have invariably posed some substantial threat to public safety, peace or order.
See, e.g., Reynolds.
Plainly enough, appellant’s conscientious objection to Saturday work constitutes
no conduct prompted by religious principles of a kind within the reach of state
legislation. If, therefore. the decision of the South Carolina Supreme Court is to withstand
appellant’s constitutional challenge, it must be either because her disqualification as a
beneficiary represents no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of appellant’s religion
may be justified by a ‘compelling state interest in the regulation of a subject within the
State’s constitutional power to regulate * * *.’ NAACP v. Button, 371 U.S. 415, 438.
We turn first to the question whether the disqualification for benefits imposes any
burden on the free exercise of appellant’s religion. We think it is clear that it does. In a
sense the consequences of such a disqualification to religious principles and practices
may be only an indirect result of welfare legislation within the State’s general
competence to enact; it is true that no criminal sanctions directly compel appellant to
work a six-day week. But this is only the beginning, not the end, of our inquiry. Here not
only is it apparent that appellant’s declared ineligibility for benefits derives solely from
the practice of her religion, but the pressure upon her to forego that practice is
unmistakable. The ruling forces her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand. Governmental imposition of such
a choice puts the same kind of burden upon the free exercise of religion as would a fine
imposed against appellant for her Saturday worship.
Significantly South Carolina expressly saves the Sunday worshipper from having
to make the kind of choice which we here hold infringes the Sabbatarian’s religious
liberty. When in times of ‘national emergency’ the textile plants are authorized by the
State Commissioner of Labor to operate on Sunday, ‘no employee shall be required to
work on Sunday . . . who is conscientiously opposed to Sunday work; and if any
employee should refuse to work on Sunday on account of conscientious . . . objections he
or she shall not jeopardize his or her seniority by such refusal or be discriminated against
in any other manner.’ S.C.Code, Section 64—4. No question of the disqualification of a
Sunday worshipper for benefits is likely to arise, since we cannot suppose that an
employer will discharge him in violation of this statute. The unconstitutionality of the
disqualification of the Sabbatarian is thus compounded by the religious discrimination
which South Carolina’s general statutory scheme necessarily effects.
We must next consider whether some compelling state interest enforced in the
eligibility provisions of the South Carolina statute justifies the substantial infringement of
appellant’s First Amendment right. It is basic that no showing merely of a rational
relationship to some colorable state interest would suffice; in this highly sensitive
constitutional area, ‘only the gravest abuses, endangering paramount interest, give
occasion for permissible limitation,’ No such abuse or danger has been advanced in the
present case. The appellees suggest no more than a possibility that the filing of fraudulent
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claims by unscrupulous claimants feigning religious objections to Saturday work might
not only dilute the unemployment compensation fund but also hinder the scheduling by
employers of necessary Saturday work. But that possibility is not apposite here because
no such objection appears to have been made before the South Carolina Supreme Court,
and we are unwilling to assess the importance of an asserted state interest without the
views of the state court. abuses without infringing First Amendment rights.
In these respects, then, the state interest asserted in the present case is wholly
dissimilar to the interests which were found to justify the less direct burden upon
religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday
closing law which that decision sustained undoubtedly served ‘to make the practice of
(the Orthodox Jewish merchants’) religious beliefs more expensive,’ 366 U.S. at 605. But
the statute was nevertheless saved by a countervailing factor which finds no equivalent in
the instant case – a strong state interest in providing one uniform day of rest for all
workers. That secular objective could be achieved, the Court found, only by declaring
Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically
possible, appeared to present an administrative problem of such magnitude, or to afford
the exempted class so great a competitive advantage, that such a requirement would have
rendered the entire statutory scheme unworkable. In the present case no such
justifications underlie the determination of the state court that appellant’s religion makes
her ineligible to receive benefits.
In holding as we do, plainly we are not fostering the ‘establishment’ of the
Seventh-day Adventist religion in South Carolina, for the extension of unemployment
benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than
the governmental obligation of neutrality in the face of religious differences, and does not
represent that involvement of religious with secular institutions which it is the object of
the Establishment Clause to forestall. Nor does the recognition of the appellant’s right to
unemployment benefits under the state statute serve to abridge any other person’s
religious liberties. Nor do we, by our decision today, declare the existence of a
constitutional right to unemployment benefits on the part of all persons whose religious
convictions are the cause of their unemployment. This is not a case in which an
employee’s religious convictions serve to make him a nonproductive member of society.
See note 2, supra. Finally, nothing we say today constrains the States to adopt any
particular form or scheme of unemployment compensation. Our holding today is only
that South Carolina may not constitutionally apply the eligibility provisions so as to
constrain a worker to abandon his religious convictions respecting the day of rest.
The judgment of the South Carolina Supreme Court is reversed and the case is
remanded for further proceedings not inconsistent with this opinion. It is so ordered.
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Justice DOUGLAS, Concurring:
The case we have for decision seems to me to be of small dimensions, though
profoundly important. The question is whether the South Carolina law which denies
unemployment compensation to a Seventh-day Adventist, who, because of her religion, has
declined to work on her Sabbath, is a law ‘prohibiting the free exercise’ of religion as those
words are used in the First Amendment. It seems obvious to me that this law does run afoul of
that clause.
Religious scruples of Moslems require them to attend a mosque on Friday and to pray
five times daily. Religious scruples of a Sikh require him to carry a regular or a symbolic
sword. Religious scruples of a Jehovah’s Witness teach him to be a colporteur, going from
door to door, from town to town, distributing his religious pamphlets. Religious scruples of a
Quaker compel him to refrain from swearing and to affirm instead. Religious scruples of a
Buddhist may require him to refrain from partaking of any flesh, even of fish.
The examples could be multiplied, including those of the Seventh-day Adventist
whose Sabbath is Saturday and who is advised not to eat some meats.
These suffice, however, to show that many people hold beliefs alien to the majority of
our society—beliefs that are protected by the First Amendment but which could easily be trod
upon under the guise of ‘police’ or ‘health’ regulations reflecting the majority’s views.
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Justice HARLAN, Dissenting:
Today’s decision is disturbing both in its rejection of existing precedent and in its
implications for the future. What the Court is holding is that if the State chooses to condition
unemployment compensation on the applicant’s availability for work, it is constitutionally compelled
to carve out an exception – and to provide benefits – for those whose unavailability is due to their
religious convictions. Such a holding has particular significance in two respects.
First, despite the Court’s protestations to the contrary, the decision necessarily overrules
Braunfeld v. Brown, 366 U.S. 599, which held that it did not offend the ‘Free Exercise’ Clause of the
Constitution for a State to forbid a Sabbatarian to do business on Sunday.
Second, the implications of the present decision are far more troublesome than its apparently
narrow dimensions would indicate at first glance. The meaning of today’s holding, as already noted, is
that the State must furnish unemployment benefits to one who is unavailable for work if the
unavailability stems from the exercise of religious convictions. The State, in other words, must single
out for financial assistance those whose behavior is religiously motivated, even though it denies such
assistance to others whose identical behavior (in this case, inability to work no Saturdays) is not
religiously motivated.
It has been suggested that such singling out of religious conduct for special treatment may
violate the constitutional limitations on state action. My own view, however, is that at least under the
circumstances of this case it would be a permissible accommodation of religion for the State, if it
chose to do so, to create an exception to its eligibility requirements for persons like the appellant.
[T]here is, I believe, enough flexibility in the Constitution to permit a legislative judgment
accommodating an unemployment compensation law to the exercise of religious beliefs such as
appellant’s. For very much the same reasons, however, I cannot subscribe to the conclusion that the
State is constitutionally compelled to carve out an exception to its general rule of eligibility in the
present case. Those situations in which the Constitution may require special treatment on account of
religion are, in my view, few and far between, and this view is amply supported by the course of
constitutional litigation in this area. For these reasons I respectfully dissent from the opinion and
judgment of the Court.
**********
READING WISCONSIN v. YODER: Jonas Yoder and others were members of the Old Order
Amish religion. They were convicted of violating Wisconsin’s compulsory school-attendance
law that required parents to have their children attend public or private school until reaching
age 16. The parents had stopped sending their children to school at age 14. They were charged
under the law and convicted of violating the compulsory attendance law and fined $5. The trial
testimony showed that the Yoder believed that having their children attend public school was
contrary to the Amish religion and way of life. Wisconsin stipulated that Yoder’s religious
beliefs were sincere and firmly grounded in central religious concepts. “They view secondary
school education as an impermissible exposure of their children to a ‘worldly influence in
conflict with Amish beliefs.
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WISCONSIN v. YODER
406 U.S. 205 (1972)
Mr. Chief Justice BURGER delivered the opinion of the Court.
Amish objection to formal education beyond the eighth grade is firmly grounded
in these central religious concepts. They object to the high school, and higher education
generally, because the values they teach are in marked variance with Amish values and
the Amish way of life; they view secondary school education as an impermissible
exposure of their children to a ‘wordly’ influence in conflict with their beliefs.
There is no doubt as to the power of a State, having a high responsibility for
education of its citizens, to impose reasonable regulations for the control and duration of
basic education. See, e.g. Pierce v. Society of Sisters, 268 U.S. 510 (1925). Providing
public schools ranks at the very apex of the function of a State. Yet even this paramount
responsibility was, in Pierce, made to yield to the right of parents to provide an
equivalent education in a privately operated system. [A] State’s interest in universal
education, however highly we rank it, is not totally free from a balancing process when it
impinges on fundamental rights and interests, such as those specifically protected by the
Free Exercise Clause of the First Amendment, and the traditional interest of parents with
respect to the religious upbringing of their children so long as they, in the words of
Pierce, “prepare (them) for additional obligations.”
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice of a
legitimate religious belief, it must appear either that the State does not deny the free
exercise of religious belief by its requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the Free Exercise Clause.
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion. We can accept it as settled, therefore, that,
however strong the State’s interest in universal compulsory education, it is by no means
absolute to the exclusion or subordination of all other interests.
We come then to the quality of the claims of the respondents concerning the
alleged encroachment of Wisconsin’s compulsory school-attendance statute on their
rights and the rights of their children to the free exercise of the religious beliefs they and
their forbears have adhered to for almost three centuries. In evaluating those claims we
must be careful to determine whether the Amish religious faith and their mode of life are,
as they claim, inseparable and interdependent. A way of life, however virtuous and
admirable, may not be interposed as a barrier to reasonable state regulation of education
if it is based on purely secular considerations; to have the protection of the Religion
Clauses, the claims must be rooted in religious belief. Although a determination of what
is a ‘religious’ belief or practice entitled to constitutional protection may present a most
delicate question, the very concept of ordered liberty precludes allowing every person to
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make his own standards on matters of conduct in which society as a whole has important
interests. Thus, if the Amish asserted their claims because of their subjective evaluation
and rejection of the contemporary secular values accepted by the majority, much as
Thoreau rejected the social values of his time and isolated himself at Walden Pond, their
claims would not rest on a religious basis. Thoreau’s choice was philosophical and
personal rather than religious, and such belief does not rise to the demands of the
Religion Clauses.
Giving no weight to such secular considerations, however, we see that the record
in this case abundantly supports the claim that the traditional way of life of the Amish is
not merely a matter of personal preference, but one of deep religious conviction, shared
by an organized group, and intimately related to daily living.
The impact of the compulsory-attendance law on respondents’ practice of the
Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively
compels them, under threat of criminal sanction, to perform acts undeniably at odds with
fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U.S. 599
(1961). Nor is the impact of the compulsory-attendance law confined to grave
interference with important Amish religious tenets from a subjective point of view. It
carries with it precisely the kind of objective danger to the free exercise of religion that
the First Amendment was designed to prevent. As the record shows, compulsory school
attendance to age 16 for Amish children carries with it a very real threat of undermining
the Amish community and religious practice as they exist today; they must either
abandon belief and be assimilated into society at large, or be forced to migrate to some
other and more tolerant region.
In sum, the unchallenged testimony of acknowledged experts in education and
religious history, almost 300 years of consistent practice, and strong evidence of a
sustained faith pervading and regulating respondents’ entire mode of life support the
claim that enforcement of the State’s requirement of compulsory formal education after
the eighth grade would gravely endanger if not destroy the free exercise of respondents’
religious beliefs.
Wisconsin concedes that under the Religion Clauses religious beliefs are
absolutely free from the State’s control, but it argues that ‘actions,’ even though
religiously grounded, are outside the protection of the First Amendment. But our
decisions have rejected the idea that religiously grounded conduct is always outside the
protection of the Free Exercise Clause. It is true that activities of individuals, even when
religiously based, are often subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety, and general welfare, or the Federal
Government in the exercise of its delegated powers. But to agree that religiously
grounded conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under regulations of
general applicability. This case, therefore, does not become easier because respondents
were convicted for their ‘actions’ in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in logic-tight
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compartments.
Nor can this case be disposed of on the grounds that Wisconsin’s requirement for
school attendance to age 16 applies uniformly to all citizens of the State and does not, on
its face, discriminate against religions or a particular religion, or that it is motivated by
legitimate secular concerns. A regulation neutral on its face may, in its application,
nonetheless offend the constitutional requirement for governmental neutrality if it unduly
burdens the free exercise of religion.
The Court must not ignore the danger that an exception from a general obligation
of citizenship on religious grounds may run afoul of the Establishment Clause, but that
danger cannot be allowed to prevent any exception no matter how vital it may be to the
protection of values promoted by the right of free exercise.
The State advances two primary arguments in support of its system of compulsory
education. It notes, as Thomas Jefferson pointed out early in our history, that some
degree of education is necessary to prepare citizens to participate effectively and
intelligently in our open political system if we are to preserve freedom and independence.
Further, education prepares individuals to be self-reliant and self-sufficient participants in
society. We accept these propositions.
However, the evidence adduced by the Amish in this case is persuasively to the
effect that an additional one or two years of formal high school for Amish children in
place of their long-established program of informal vocational education would do little
to serve those interests. Respondents’ experts testified at trial, without challenge, that the
value of all education must be assessed in terms of its capacity to prepare the child for
life. It is one thing to say that compulsory education for a year or two beyond the eighth
grade may be necessary when its goal is the preparation of the child for life in modern
society as the majority live, but it is quite another if the goal of education be viewed as
the preparation of the child for life in the separated agrarian community that is the
keystone of the Amish faith.
The State attacks respondents’ position as one fostering ‘ignorance’ from which
the child must be protected by the State. No one can question the State’s duty to protect
children from ignorance but this argument does not square with the facts disclosed in the
record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows
that the Amish community has been a highly successful social unit within our society,
even if apart from the conventional ‘mainstream.’ Its members are productive and very
law-abiding members of society; they reject public welfare in any of its usual modern
forms. The Congress itself recognized their self-sufficiency by authorizing exemption of
such groups as the Amish from the obligation to pay social security taxes.
The State, however, supports its interest in providing an additional one or two
years of compulsory high school education to Amish children because of the possibility
that some such children will choose to leave the Amish community, and that if this occurs
they will be ill-equipped for life.
There is nothing in this record to suggest that the Amish qualities of reliability,
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Wisconsinv.Yoder
self-reliance, and dedication to work would fail to find ready markets in today’s society.
Absent some contrary evidence supporting the State’s position, we are unwilling to
assume that persons possessing such valuable vocational skills and habits are doomed to
become burdens on society should they determine to leave the Amish faith, nor is there
any basis in the record to warrant a finding that an additional one or two years of formal
school education beyond the eighth grade would serve to eliminate any such problem that
might exist.
Insofar as the State’s claim rests on the view that a brief additional period of
formal education is imperative to enable the Amish to participate effectively and
intelligently in our democratic process, it must fall. The Amish alternative to formal
secondary school education has enabled them to function effectively in their day-to-day
life under self-imposed limitations on relations with the world, and to survive and prosper
in contemporary society as a separate, sharply identifiable and highly self-sufficient
community for more than 200 years in this country. In itself this is strong evidence that
they are capable of fulfilling the social and political responsibilities of citizenship without
compelled attendance beyond the eighth grade at the price of jeopardizing their free
exercise of religious belief. When Thomas Jefferson emphasized the need for education
as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind
compulsory education through any fixed age beyond a basic education. Indeed, the
Amish communities singularly parallel and reflect many of the virtues of Jefferson’s ideal
of the ‘sturdy yeoman’ who would form the basis of what he considered as the ideal of a
democratic society. Even their idiosyncratic separateness exemplifies the diversity we
profess to admire and encourage.
The independence and successful social functioning of the Amish community for
a period approaching almost three centuries and more than 200 years in this country are
strong evidence that there is at best a speculative gain, in terms of meeting the duties of
citizenship, from an additional one or two years of compulsory formal education. Against
this background it would require a more particularized showing from the State on this
point to justify the severe interference with religious freedom such additional compulsory
attendance would entail.
Our holding in no way determines the proper resolution of possible competing
interests of parents, children, and the State in an appropriate state court proceeding in
which the power of the State is asserted on the theory that Amish parents are preventing
their minor children from attending high school despite their expressed desires to the
contrary.
For the reasons stated we hold, with the Supreme Court of Wisconsin, that the
First and Fourteenth Amendments prevent the State from compelling respondents to
cause their children to attend formal high school to age 16. Our disposition of this case,
however, in no way alters our recognition of the obvious fact that courts are not school
boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects
of a State’s program of compulsory education. This should suggest that courts must move
with great circumspection in performing the sensitive and delicate task of weighing a
State’s legitimate social concern when faced with religious claims for exemption from
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Wisconsinv.Yoder
generally applicable education requirements. It cannot be overemphasized that we are not
dealing with a way of life and mode of education by a group claiming to have recently
discovered some ‘progressive’ or more enlightened process for rearing children for
modern life.
Aided by a history of three centuries as an identifiable religious sect and a long
history as a successful and self-sufficient segment of American society, the Amish in this
case have convincingly demonstrated the sincerity of their religious beliefs, the
interrelationship of belief with their mode of life, the vital role that belief and daily
conduct play in the continued survival of Old Order Amish communities and their
religious organization, and the hazards presented by the State’s enforcement of a statute
generally valid as to others. Beyond this, they have carried the even more difficult burden
of demonstrating the adequacy of their alternative mode of continuing informal
vocational education in terms of precisely those overall interests that the State advances
in support of its program of compulsory high school education. In light of this convincing
showing, one that probably few other religious groups or sects could make, and weighing
the minimal difference between what the State would require and what the Amish already
accept, it was incumbent on the State to show with more particularity how its admittedly
strong interest in compulsory education would be adversely affected by granting an
exemption to the Amish.
Nothing we hold is intended to undermine the general applicability of the State’s
compulsory school-attendance statutes or to limit the power of the State to promulgate
reasonable standards that, while not impairing the free exercise of religion, provide for
continuing agricultural vocational education under parental and church guidance by the
Old Order Amish or others similarly situated. The States have had a long history of
amicable and effective relationships with church-sponsored schools, and there is no basis
for assuming that, in this related context, reasonable standards cannot be established
concerning the content of the continuing vocational education of Amish children under
parental guidance, provided always that state regulations are not inconsistent with what
we have said in this opinion. Affirmed.
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Wisconsinv.Yoder
Justice WHITE, Concurring:
Cases such as this one inevitably call for a delicate balancing of important but
conflicting interests. I join the opinion and judgment of the Court because I cannot say that
the State’s interest in requiring two more years of compulsory education in the ninth and
tenth grades outweighs the importance of the concededly sincere Amish religious practice to
the survival of that sect. This would be a very different case for me if respondents’ claim
were that their religion forbade their children from attending any school at any time and from
complying in any way with the educational standards set by the State. Since the Amish
children are permitted to acquire the basic tools of literacy to survive in modern society by
attending grades one through eight and since the deviation from the State’s compulsoryeducation law is relatively slight, I conclude that respondents’ claim must prevail, largely
because ‘religious freedom—the freedom to believe and to practice strange and, it may be,
foreign creeds—has classically been one of the highest values of our society.’ Braunfeld v.
Brown, 366 U.S. 599, 612 (Brennan, J., concurring and dissenting). I join the Court because
the sincerity of the Amish religious policy here is uncontested, because the potentially
adverse impact of the state requirement is great, and because the State’s valid interest in
education has already been largely satisfied by the eight years the children have already spent
in school.
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Wisconsinv.Yoder
Justice DOUGLAS, Dissenting:
The Court’s analysis assumes that the only interests at stake in the case are those of the
Amish parents on the one hand, and those of the State on the other. It is the future of the student,
not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of
school beyond the grade school, then the child will be forever barred from entry into the new and
amazing world of diversity that we have today. The child may decide that that is the preferred
course, or he may rebel. It is the student’s judgment, not his parents, that is essential if we are to
give full meaning to what we have said about the Bill of Rights and of the right of students to be
masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over
him and if his education is truncated, his entire life may be stunted and deformed. The child,
therefore, should be given an opportunity to be heard before the State gives the exemption which we
honor today.
I think the emphasis of the Court on the ‘law and order’ record of this Amish group of
people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony
records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists,
Jehovah’s Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such
a test. It is, of course, true that if a group or society was organized to perpetuate crime and if that is
its motive, we would have rather startling problems akin to those that were raised when some years
back a particular sect was challenged here as operating on a fraudulent basis. But no such factors are
present here, and the Amish, whether with a high or low criminal record, certainly qualify by all
historic standards as a religion within the meaning of the First Amendment.
The Court rightly rejects the notion that actions, even though religiously grounded, are
always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the
Court departs from the teaching of Reynolds v. United States, 98 U.S. 145, where it was said
concerning the reach of the Free Exercise Clause of the First Amendment, ‘Congress was deprived
of all legislative power over mere opinion, but was left free to reach actions which were in violation
of social duties or subversive of good order.’ In that case it was conceded that polygamy was a part
of the religion of the Mormons. Yet the Court said, ‘It matters not that his belief (in polygamy) was
a part of his professed religion: it was still belief and belief only.” Action, which the Court deemed
to be antisocial, could be punished even though it was grounded on deeply held and sincere
religious convictions. What we do today, at least in this respect, opens the way to give organized
religion a broader base than it has ever enjoyed; and it even promises that in time Reynolds will be
overruled.
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Reading Employment Division v. Smith: Alfred Smith and Galen Black were fired from their
jobs with a drug rehabilitation organization because they ingested peyote as part of religious
ceremony of the Native American Church. Under Oregon law, peyote was a “controlled
substance” which could not be used unless prescribed by a doctor. When they applied for
unemployment benefits, their claims were denied because they had been discharged for workrelated “misconduct.”
Smith and Black successfully raised a Free Exercise claim in the state courts. On
appeal to the Oregon Supreme Court, the Employment Division argued that denial of benefits
was proper because using peyote was a crime under Oregon law. The Oregon Supreme Court,
however, held that the illegality did not matter because the “misconduct” provision in the
unemployment scheme was not directly related to enforcing criminal laws. The Supreme Court
heard argument held that if an action violated criminal law, it could form the basis for a state
deciding to withhold unemployment benefits. The case was remanded to the Oregon Supreme
Court to determine if in fact the religious use of peyote was in violation of Oregon’s law.
The Oregon Supreme Court found that the law made no exceptions for religious use of
peyote so that it was in fact illegal under Oregon law. Nonetheless, the Oregon Supreme Court
held that denial of benefits violated the Free Exercise Clause under Sherbert v. Verner.
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN
RESOURCES OF OREGON v. SMITH
494 U.S. 872 (1990)
Justice SCALIA delivered the opinion of the Court.
This case requires us to decide whether the Free Exercise Clause of the First
Amendment permits the State of Oregon to include religiously inspired peyote use within
the reach of its general criminal prohibition on use of that drug, and thus permits the State
to deny unemployment benefits to persons dismissed from their jobs because of such
religiously inspired use. Now that the Oregon Supreme Court has confirmed that Oregon
does prohibit the religious use of peyote, we proceed to consider whether that prohibition
is permissible under the Free Exercise Clause.
The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into the Fourteenth Amendment, provides that
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof.... ” U.S. Const., Amdt. 1 (emphasis added.) The free exercise of
religion means, first and foremost, the right to believe and profess whatever religious
doctrine one desires. Thus, the First Amendment obviously excludes all “governmental
regulation of religious beliefs as such. The government may not compel affirmation of
religious belief, punish the expression of religious doctrines it believes to be false,
impose special disabilities on the basis of religious views or religious status, or lend its
power to one or the other side in controversies over religious authority or dogma.
But the “exercise of religion” often involves not only belief and profession but the
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performance of (or abstention from) physical acts: assembling with others for a worship
service, participating in sacramental use of bread and wine, proselytizing, abstaining from
certain foods or certain modes of transportation. It would be true, we think (though no
case of ours has involved the point), that a State would be “prohibiting the free exercise
[of religion]” if it sought to ban such acts or abstentions only when they are engaged in
for religious reasons, or only because of the religious belief that they display. It would
doubtless be unconstitutional, for example, to ban the casting of “statues that are to be
used for worship purposes,” or to prohibit bowing down before a golden calf.
Respondents in the present case, however, seek to carry the meaning of
“prohibiting the free exercise [of religion]” one large step further. They contend that their
religious motivation for using peyote places them beyond the reach of a criminal law that
is not specifically directed at their religious practice, and that is concededly constitutional
as applied to those who use the drug for other reasons. They assert, in other words, that
“prohibiting the free exercise [of religion]” includes requiring any individual to observe a
generally applicable law that requires (or forbids) the performance of an act that his
religious belief forbids (or requires). As a textual matter, we do not think the words must
be given that meaning. It is no more necessary to regard the collection of a general tax,
for example, as “prohibiting the free exercise [of religion]” by those citizens who believe
support of organized government to be sinful, than it is to regard the same tax as
“abridging the freedom ... of the press” of those publishing companies that must pay the
tax as a condition of staying in business. It is a permissible reading of the text, in the one
case as in the other, to say that if prohibiting the exercise of religion (or burdening the
activity of printing) is not the object of the tax but merely the incidental effect of a
generally applicable and otherwise valid provision, the First Amendment has not been
offended.
Our decisions reveal that the latter reading is the correct one. We have never held
that an individual’s religious beliefs excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate. On the contrary, the record of
more than a century of our free exercise jurisprudence contradicts that proposition.
Subsequent decisions have consistently held that the right of free exercise does not
relieve an individual of the obligation to comply with a “valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).”
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action have
involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction
with other constitutional protections, such as freedom of speech and of the press, see
Cantwell v. Connecticut, 310 U.S. at 304-307 (invalidating a licensing system for
religious and charitable solicitations under which the administrator had discretion to deny
a license to any cause he deemed nonreligious).
Some of our cases prohibiting compelled expression, decided exclusively upon
free speech grounds, have also involved freedom of religion, cf. Wolley v. Maynard, 430
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U.S. 705 (1977) (invalidating compelled display of a license plate slogan that offended
individual religious beliefs). And it is easy to envision a case in which a challenge on
freedom of association grounds would likewise be reinforced by Free Exercise Clause
concerns. Cf. Roberts v. United States Jaycees, 468 U.S. 609 (1984) (“An individual’s
freedom to speak, to worship, and to petition the government for the redress of grievances
could not be vigorously protected from interference by the State [if] a correlative freedom
to engage in group effort toward those ends were not also guaranteed”).
The present case does not present such a hybrid situation, but a free exercise
claim unconnected with any communicative activity or parental right. Respondents urge
us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by
religious convictions, not only the convictions but the conduct itself must be free from
governmental regulation. We have never held that, and decline to do so now. There being
no contention that Oregon’s drug law represents an attempt to regulate religious beliefs,
the communication of religious beliefs, or the raising of one’s children in those beliefs,
the rule to which we have adhered ever since Reynolds plainly controls.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions from a
generally applicable criminal law. The Sherbert test, it must be recalled, was developed
in a context that lent itself to individualized governmental assessment of the reasons for
the relevant conduct. As a plurality of the Court noted in Roy, a distinctive feature of
unemployment compensation programs is that their eligibility criteria invite consideration
of the particular circumstances behind an applicant’s unemployment: “The statutory
conditions [in Sherbert and Thomas ] provided that a person was not eligible for
unemployment compensation benefits if, ‘without good cause,’ he had quit work or
refused available work. The ‘good cause’ standard created a mechanism for
individualized exemptions.” As the plurality pointed out in Roy, our decisions in the
unemployment cases stand for the proposition that where the State has in place a system
of individual exemptions, it may not refuse to extend that system to cases of “religious
hardship” without compelling reason.
The “compelling government interest” requirement seems benign, because it is
familiar from other fields. But using it as the standard that must be met before the
government may accord different treatment on the basis of race, or before the government
may regulate the content of speech, is not remotely comparable to using it for the purpose
asserted here. What it produces in those other fields – equality of treatment and an
unrestricted flow of contending speech – are constitutional norms; what it would produce
here-a private right to ignore generally applicable laws-is a constitutional anomaly.
Nor is it possible to limit the impact of respondents’ proposal by requiring a
“compelling state interest” only when the conduct prohibited is “central” to the
individual’s religion. It is no more appropriate for judges to determine the “centrality” of
religious beliefs before applying a “compelling interest” test in the free exercise field,
than it would be for them to determine the “importance” of ideas before applying the
“compelling interest” test in the free speech field. What principle of law or logic can be
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brought to bear to contradict a believer’s assertion that a particular act is “central” to his
personal faith? Judging the centrality of different religious practices is akin to the
unacceptable “business of evaluating the relative merits of differing religious claims.
It may fairly be said that leaving accommodation to the political process will
place at a relative disadvantage those religious practices that are not widely engaged in;
but that unavoidable consequence of democratic government must be preferred to a
system in which each conscience is a law unto itself or in which judges weigh the social
importance of all laws against the centrality of all religious beliefs.
Because respondents’ ingestion of peyote was prohibited under Oregon law, and
because that prohibition is constitutional, Oregon may, consistent with the Free Exercise
Clause, deny respondents unemployment compensation when their dismissal results from
use of the drug. The decision of the Oregon Supreme Court is accordingly reversed. It is
so ordered.
Justice O’CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and
Justice BLACKMUN join, concurring in the judgment.
Although I agree with the result the Court reaches in this case, I cannot join its
opinion. In my view, today’s holding dramatically departs from well-settled First
Amendment jurisprudence, appears unnecessary to resolve the question presented, and is
incompatible with our Nation’s fundamental commitment to individual religious liberty.
The Court today extracts from our long history of free exercise precedents the
single categorical rule that “if prohibiting the exercise of religion ... is ... merely the
incidental effect of a generally applicable and otherwise valid provision, the First
Amendment has not been offended.” Indeed, the Court holds that where the law is a
generally applicable criminal prohibition, our usual free exercise jurisprudence does not
even apply. Ante, at 1603. To reach this sweeping result, however, the Court must not
only give a strained reading of the First Amendment but must also disregard our
consistent application of free exercise doctrine to cases involving generally applicable
regulations that burden religious conduct.
The Court today, however, interprets the Clause to permit the government to
prohibit, without justification, conduct mandated by an individual’s religious beliefs, so
long as that prohibition is generally applicable. But a law that prohibits certain conductconduct that happens to be an act of worship for someone-manifestly does prohibit that
person’s free exercise of his religion. A person who is barred from engaging in
religiously motivated conduct is barred from freely exercising his religion. Moreover,
that person is barred from freely exercising his religion regardless of whether the law
prohibits the conduct only when engaged in for religious reasons, only by members of
that religion, or by all persons. It is difficult to deny that a law that prohibits religiously
motivated conduct, even if the law is generally applicable, does not at least implicate
First Amendment concerns.
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To say that a person’s right to free exercise has been burdened, of course, does
not mean that he has an absolute right to engage in the conduct. Under our established
First Amendment jurisprudence, we have recognized that the freedom to act, unlike the
freedom to believe, cannot be absolute. Instead, we have respected both the First
Amendment’s express textual mandate and the governmental interest in regulation of
conduct by requiring the government to justify any substantial burden on religiously
motivated conduct by a compelling state interest and by means narrowly tailored to
achieve that interest. The compelling interest test effectuates the First Amendment’s
command that religious liberty is an independent liberty, that it occupies a preferred
position, and that the Court will not permit encroachments upon this liberty, whether
direct or indirect, unless required by clear and compelling governmental interests “of the
highest order,” Yoder, 406 U.S. at 215. “Only an especially important governmental
interest pursued by narrowly tailored means can justify exacting a sacrifice of First
Amendment freedoms as the price for an equal share of the rights, benefits, and privileges
enjoyed by other citizens.”
In my view, however, the essence of a free exercise claim is relief from a burden
imposed by government on religious practices or beliefs, whether the burden is imposed
directly through laws that prohibit or compel specific religious practices, or indirectly
through laws that, in effect, make abandonment of one’s own religion or conformity to
the religious beliefs of others the price of an equal place in the civil community.
Finally, the Court today suggests that the disfavoring of minority religions is an
“unavoidable consequence” under our system of government and that accommodation of
such religions must be left to the political process. Ante, at 1606. In my view, however,
the First Amendment was enacted precisely to protect the rights of those whose religious
practices are not shared by the majority and may be viewed with hostility. The history of
our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had
on unpopular or emerging religious groups such as the Jehovah’s Witnesses and the
Amish.
Thus, the critical question in this case is whether exempting respondents from the
State’s general criminal prohibition “will unduly interfere with fulfillment of the
governmental interest.” Although the question is close, I would conclude that uniform
application of Oregon’s criminal prohibition is “essential to accomplish,” its overriding
interest in preventing the physical harm caused by the use of a Schedule I controlled
substance. Oregon’s criminal prohibition represents that State’s judgment that the
possession and use of controlled substances, even by only one person, is inherently
harmful and dangerous. Because the health effects caused by the use of controlled
substances exist regardless of the motivation of the user, the use of such substances, even
for religious purposes, violates the very purpose of the laws that prohibit them. Moreover,
in view of the societal interest in preventing trafficking in controlled substances, uniform
application of the criminal prohibition at issue is essential to the effectiveness of
Oregon’s stated interest in preventing any possession of peyote.
For these reasons, I believe that granting a selective exemption in this case would
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seriously impair Oregon’s compelling interest in prohibiting possession of peyote by its
citizens. Under such circumstances, the Free Exercise Clause does not require the State to
accommodate respondents’ religiously motivated conduct. I would therefore adhere to
our established free exercise jurisprudence and hold that the State in this case has a
compelling interest in regulating peyote use by its citizens and that accommodating
respondents’ religiously motivated conduct “will unduly interfere with fulfillment of the
governmental interest. Accordingly, I concur in the judgment of the Court.
Reading Church of the Lukumi Babalu Aye. The Church of the Lukumi Babalu Aye, Inc. leased land in
Hialeah, Florida and announced plans to establish a house of worship there. Ernesto Pichardo was to be
the church’s priest. The church was part of the Santeria religion which includes the ritual sacrifice of
animals. Pichardo’s efforts to establish a Santeria church were well publicized, and opposition among the
community was strong. The City Council passed a number of measures targeted at stopping the Church
from conducting its animal sacrifices. The Church and Pichardo filed a lawsuit alleging that the town
ordinances violated their First Amendment rights.
CHURCH OF THE LUKUMI BABALU AYE, INC.
v. CITY OF HIALEAH
508 U.S. 520 (1993)
Justice KENNEDY delivered the opinion of the Court, except as to Part II–A–2
The principle that government may not enact laws that suppress religious belief or
practice is so well understood that few violations are recorded in our opinions. Concerned
that this fundamental nonpersecution principle of the First Amendment was implicated
here, however, we granted certiorari.
Our review confirms that the laws in question were enacted by officials who did
not understand, failed to perceive, or chose to ignore the fact that their official actions
violated the Nation’s essential commitment to religious freedom. The challenged laws
had an impermissible object; and in all events the principle of general applicability was
violated because the secular ends asserted in defense of the laws were pursued only with
respect to conduct motivated by religious beliefs. We invalidate the challenged
enactments and reverse the judgment of the Court of Appeals.
This case involves practices of the Santeria religion, which originated in the 19th
century. When hundreds of thousands of members of the Yoruba people were brought as
slaves from western Africa to Cuba, their traditional African religion absorbed significant
elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, “the way
of the saints.” The Cuban Yoruba express their devotion to spirits, called orishas, through
the iconography of Catholic saints, Catholic symbols are often present at Santeria rites,
and Santeria devotees attend the Catholic sacraments.
The Santeria faith teaches that every individual has a destiny from God, a destiny
fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the
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nurture of a personal relation with the orishas, and one of the principal forms of devotion
is an animal sacrifice.
According to Santeria teaching, the orishas are powerful but not immortal. They
depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death
rites, for the cure of the sick, for the initiation of new members and priests, and during an
annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons,
doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting
of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after
healing and death rituals.
The prospect of a Santeria church in their midst was distressing to many members
of the Hialeah community, and the announcement of the plans to open a Santeria church
in Hialeah prompted the city council to hold an emergency public session on June 9,
1987. The resolutions and ordinances passed at that and later meetings are set forth in the
Appendix following this opinion.
The city council responded at first with a hortatory enactment, Resolution 87–90,
that noted its residents’ “great concern regarding the possibility of public ritualistic
animal sacrifices” and the state-law prohibition. The resolution declared the city policy
“to oppose the ritual sacrifices of animals” within Hialeah and announced that any person
or organization practicing animal sacrifice “will be prosecuted.”
In September 1987, the city council adopted three substantive ordinances
addressing the issue of religious animal sacrifice. Ordinance 87–52 defined “sacrifice” as
“to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual
or ceremony not for the primary purpose of food consumption,” and prohibited owning or
possessing an animal “intending to use such animal for food purposes.” It restricted
application of this prohibition, however, to any individual or group that “kills, slaughters
or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood
of the animal is to be consumed.” The ordinance contained an exemption for slaughtering
by “licensed establishment[s]” of animals “specifically raised for food purposes.”
Declaring, moreover, that the city council “has determined that the sacrificing of animals
within the city limits is contrary to the public health, safety, welfare and morals of the
community,” the city council adopted Ordinance 87–71. That ordinance defined sacrifice
as had Ordinance 87–52, and then provided that “[i]t shall be unlawful for any person,
persons, corporations or associations to sacrifice any animal within the corporate limits of
the City of Hialeah, Florida.” The final Ordinance, 87–72, defined “slaughter” as “the
killing of animals for food” and prohibited slaughter outside of areas zoned for
slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or
processing for sale of “small numbers of hogs and/or cattle per week in accordance with
an exemption provided by state law.” All ordinances and resolutions passed the city
council by unanimous vote. Violations of each of the four ordinances were punishable by
fines not exceeding $500 or imprisonment not exceeding 60 days, or both.
Following enactment of these ordinances, the Church and Pichardo filed this
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action in the United States District Court for the Southern District of Florida. Named as
defendants were the city of Hialeah and its mayor and members of its city council in their
individual capacities. Alleging violations of petitioners’ rights under, inter alia, the Free
Exercise Clause, the complaint sought a declaratory judgment and injunctive and
monetary relief.
Balancing the competing governmental and religious interests, the District Court
concluded the compelling governmental interests “fully justify the absolute prohibition
on ritual sacrifice” accomplished by the ordinances. The court also concluded that an
exception to the sacrifice prohibition for religious conduct would “ unduly interfere with
fulfillment of the governmental interest’ ” because any more narrow restrictions—e.g.,
regulation of disposal of animal carcasses—would be unenforceable as a result of the
secret nature of the Santeria religion. A religious exemption from the city’s ordinances,
concluded the court, would defeat the city’s compelling interests in enforcing the
prohibition. The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph
per curiam opinion. Choosing not to rely on the District Court’s recitation of a
compelling interest in promoting the welfare of children, the Court of Appeals stated
simply that it concluded the ordinances were consistent with the Constitution.
In addressing the constitutional protection for free exercise of religion, our cases
establish the general proposition that a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice. Employment Div., Dept. of
Human Resources of Ore. v. Smith. Neutrality and general applicability are interrelated,
and, as becomes apparent in this case, failure to satisfy one requirement is a likely
indication that the other has not been satisfied. A law failing to satisfy these requirements
must be justified by a compelling governmental interest and must be narrowly tailored to
advance that interest. These ordinances fail to satisfy the Smith requirements. We begin
by discussing neutrality.
At a minimum, the protections of the Free Exercise Clause pertain if the law at
issue discriminates against some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.
Although a law targeting religious beliefs as such is never permissible, if the
object of a law is to infringe upon or restrict practices because of their religious
motivation, the law is not neutral, and it is invalid unless it is justified by a compelling
interest and is narrowly tailored to advance that interest. There are, of course, many ways
of demonstrating that the object or purpose of a law is the suppression of religion or
religious conduct. To determine the object of a law, we must begin with its text, for the
minimum requirement of neutrality is that a law not discriminate on its face. A law lacks
facial neutrality if it refers to a religious practice without a secular meaning discernable
from the language or context. Petitioners contend that three of the ordinances fail this test
of facial neutrality because they use the words “sacrifice” and “ritual,” words with strong
religious connotations. We agree that these words are consistent with the claim of facial
discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual”
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have a religious origin, but current use admits also of secular meanings. See Webster’s
Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of
Religion, at 556 (“[T]he word sacrifice ultimately became very much a secular term in
common usage”). The ordinances, furthermore, define “sacrifice” in secular terms,
without referring to religious practices.
We reject the contention advanced by the city, that our inquiry must end with the
text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause,
like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids
subtle departures from neutrality,” and “covert suppression of particular religious
beliefs.” Official action that targets religious conduct for distinctive treatment cannot be
shielded by mere compliance with the requirement of facial neutrality. The Free Exercise
Clause protects against governmental hostility which is masked, as well as overt.
The record in this case compels the conclusion that suppression of the central
element of the Santeria worship service was the object of the ordinances. First, though
use of the words “sacrifice” and “ritual” does not compel a finding of improper targeting
of the Santeria religion, the choice of these words is support for our conclusion. There are
further respects in which the text of the city council’s enactments discloses the improper
attempt to target Santeria. Resolution 87–66, adopted June 9, 1987, recited that “residents
and citizens of the City of Hialeah have expressed their concern that certain religions may
propose to engage in practices which are inconsistent with public morals, peace or
safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of
any and all religious groups.” No one suggests, and on this record it cannot be
maintained, that city officials had in mind a religion other than Santeria.
It becomes evident that these ordinances target Santeria sacrifice when the
ordinances’ operation is considered. Apart from the text, the effect of a law in its real
operation is strong evidence of its object. To be sure, adverse impact will not always lead
to a finding of impermissible targeting.
The definition excludes almost all killings of animals except for religious
sacrifice, and the primary purpose requirement narrows the proscribed category even
further, in particular by exempting kosher slaughter. We need not discuss whether this
differential treatment of two religions is itself an independent constitutional violation. It
suffices to recite this feature of the law as support for our conclusion that Santeria alone
was the exclusive legislative concern. The net result of the gerrymander is that few if any
killings of animals are prohibited other than Santeria sacrifice, which is proscribed
because it occurs during a ritual or ceremony and its primary purpose is to make an
offering to the orishas, not food consumption. Indeed, careful drafting ensured that,
although Santeria sacrifice is prohibited, killings that are no more necessary or humane in
almost all other circumstances are unpunished.
The ordinance exempts “any licensed [food] establishment” with regard to “any
animals which are specifically raised for food purposes,” if the activity is permitted by
zoning and other laws. This exception, too, seems intended to cover kosher slaughter.
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Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but
almost no others: If the killing is – unlike most Santeria sacrifices – unaccompanied by
the intent to use the animal for food, then it is not prohibited by Ordinance 87–52; if the
killing is specifically for food but does not occur during the course of “any type of
ritual,” it again falls outside the prohibition; and if the killing is for food and occurs
during the course of a ritual, it is still exempted if it occurs in a properly zoned and
licensed establishment and involves animals “specifically raised for food purposes.” A
pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the
gerrymander.
The legitimate governmental interests in protecting the public health and
preventing cruelty to animals could be addressed by restrictions stopping far short of a
flat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice
itself, is the harm to be prevented, the city could have imposed a general regulation on the
disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral
argument that, under the ordinances, Santeria sacrifices would be illegal even if they
occurred in licensed, inspected, and zoned slaughterhouses.
In determining if the object of a law is a neutral one under the Free Exercise
Clause, we can also find guidance in our equal protection cases. Here, as in equal
protection cases, we may determine the city council’s object from both direct and
circumstantial evidence. Relevant evidence includes, among other things, the historical
background of the decision under challenge, the specific series of events leading to the
enactment or official policy in question, and the legislative or administrative history,
including contemporaneous statements made by members of the decisionmaking body.
That the ordinances were enacted “because of, not merely in spite of,” their
suppression of Santeria religious practice, is revealed by the events preceding their
enactment. Although respondent claimed at oral argument that it had experienced
significant problems resulting from the sacrifice of animals within the city before the
announced opening of the Church, the city council made no attempt to address the
supposed problem before its meeting in June 1987, just weeks after the Church
announced plans to open. The minutes and taped excerpts of the June 9 session, both of
which are in the record, evidence significant hostility exhibited by residents, members of
the city council, and other city officials toward the Santeria religion and its practice of
animal sacrifice. The public crowd that attended the June 9 meetings interrupted
statements by council members critical of Santeria with cheers and the brief comments of
Pichardo with taunts. When Councilman Martinez, a supporter of the ordinances, stated
that in prerevolution Cuba “people were put in jail for practicing this religion,” the
audience applauded.
Other statements by members of the city council were in a similar vein. For
example, Councilman Martinez, after noting his belief that Santeria was outlawed in
Cuba, questioned: “[I]f we could not practice this [religion] in our homeland [Cuba], why
bring it to this country?” Councilman Cardoso said that Santeria devotees at the Church
“are in violation of everything this country stands for.” Councilman Mejides indicated
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that he was “totally against the sacrificing of animals” and distinguished kosher slaughter
because it had a “real purpose.” The “Bible says we are allowed to sacrifice an animal for
consumption,” he continued, “but for any other purposes, I don’t believe that the Bible
allows that.” The president of the city council, Councilman Echevarria, asked: “What can
we do to prevent the Church from opening?”
In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their
object the suppression of religion. The pattern we have recited discloses animosity to
Santeria adherents and their religious practices; the ordinances by their own terms target
this religious exercise; the texts of the ordinances were gerrymandered with care to
proscribe religious killings of animals but to exclude almost all secular killings; and the
ordinances suppress much more religious conduct than is necessary in order to achieve
the legitimate ends asserted in their defense. These ordinances are not neutral, and the
court below committed clear error in failing to reach this conclusion.
We turn next to a second requirement of the Free Exercise Clause, the rule that
laws burdening religious practice must be of general applicability. All laws are selective
to some extent, but categories of selection are of paramount concern when a law has the
incidental effect of burdening religious practice.
We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s
governmental interests only against conduct motivated by religious belief. This precise
evil is what the requirement of general applicability is designed to prevent.
A law burdening religious practice that is not neutral or not of general application
must undergo the most rigorous of scrutiny. To satisfy the commands of the First
Amendment, a law restrictive of religious practice must advance “‘interests of the highest
order’” and must be narrowly tailored in pursuit of those interests. The compelling
interest standard that we apply once a law fails to meet the Smith requirements is not
“water[ed] ... down” but “really means what it says.” A law that targets religious conduct
for distinctive treatment or advances legitimate governmental interests only against
conduct with a religious motivation will survive strict scrutiny only in rare cases. It
follows from what we have already said that these ordinances cannot withstand this
scrutiny.
First, even were the governmental interests compelling, the ordinances are not
drawn in narrow terms to accomplish those interests. As we have discussed, all four
ordinances are overbroad or underinclusive in substantial respects. The proffered
objectives are not pursued with respect to analogous non-religious conduct, and those
interests could be achieved by narrower ordinances that burdened religion to a far lesser
degree. The absence of narrow tailoring suffices to establish the invalidity of the
ordinances.
Respondent has not demonstrated, moreover, that, in the context of these
ordinances, its governmental interests are compelling. Where government restricts only
conduct protected by the First Amendment and fails to enact feasible measures to restrict
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other conduct producing substantial harm or alleged harm of the same sort, the interest
given in justification of the restriction is not compelling.
The Free Exercise Clause commits government itself to religious tolerance, and
upon even slight suspicion that proposals for state intervention stem from animosity to
religion or distrust of its practices, all officials must pause to remember their own high
duty to the Constitution and to the rights it secures. Those in office must be resolute in
resisting importunate demands and must ensure that the sole reasons for imposing the
burdens of law and regulation are secular. Legislators may not devise mechanisms, overt
or disguised, designed to persecute or oppress a religion or its practices. The laws here in
question were enacted contrary to these constitutional principles, and they are void.
Reversed.
Justice SCALIA, Concurring:
The Court analyzes the “neutrality” and the “general applicability” of the Hialeah ordinances in
separate sections), and allocates various invalidating factors to one or the other of those sections. If
it were necessary to make a clear distinction between the two terms, I would draw a line somewhat
different from the Court’s. But I think it is not necessary, and would frankly acknowledge that the
terms are not only “interrelated,” but substantially overlap. I do not join that section because it
departs from the opinion’s general focus on the object of the laws at issue to consider the subjective
motivation of the lawmakers, i.e., whether the Hialeah City Council actually intended to disfavor
the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the
singular “motive” of a collective legislative body, and this Court has a long tradition of refraining
from such inquiries.
Justice SOUTER, Concurring:
This case turns on a principle about which there is no disagreement, that the Free Exercise Clause
bars government action aimed at suppressing religious belief or practice. The Court holds that
Hialeah’s animal-sacrifice laws violate that principle, and I concur in that holding without
reservation. Because prohibiting religious exercise is the object of the laws at hand, this case does
not present the more difficult issue addressed in our last free-exercise case, which announced the
rule that a “neutral, generally applicable” law does not run afoul of the Free Exercise Clause even
when it prohibits religious exercise in effect. I write separately to explain why the Smith rule is not
germane to this case and to express my view that, in a case presenting the issue, the Court should reexamine the rule Smith declared.
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Justice BLACKMUN, Concurring:
The Court holds today that the city of Hialeah violated the First and Fourteenth
Amendments when it passed a set of restrictive ordinances explicitly directed at petitioners’
religious practice. With this holding I agree. I write separately to emphasize that the First
Amendment’s protection of religion extends beyond those rare occasions on which the
government explicitly targets religion (or a particular religion) for disfavored treatment, as is
done in this case. In my view, a statute that burdens the free exercise of religion “may stand
only if the law in general, and the State’s refusal to allow a religious exemption in particular,
are justified by a compelling interest that cannot be served by less restrictive means.”
Employment Division v. Smith (dissenting opinion). I continue to believe that Smith was
wrongly decided, because it ignored the value of religious freedom as an affirmative
individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination
principle. Thus, while I agree with the result the Court reaches in this case, I arrive at that
result by a different route.
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III. Statutory Failure to Accommodate Religion
READING CITY OF BOERNE: St. Peter’s Catholic Church is located on a hill in the city of
Boerne, Texas. The church was built in 1923, the church is in the mission style. It seated about
230 worshippers. In order to meet the needs of a growing parish, the Archbishop of San Antonio
gave the St. Peter’s permission to expand. Shortly thereafter, the Boerne City Council passed a
law authorizing the city’s Historic Landmark Commission to develop a preservation plan with
proposed historic landmarks and districts. Under the law, the commission must preapprove
construction affecting historic landmarks or buildings in a historic district. The Church applied
for a building permit, but it was denied because of the Historic Preservation law. The Church
filed suit claiming, among other arguments, that the denial of the building permit violated the
Religious Freedom Restoration Act.
CITY OF BOERNE v. FLORES
521 U.S. 507 (1997)
Justice KENNEDY delivered the opinion of the Court.*
The City of Boerne, Texas applied a historical building preservation ordinance
and denied the church’s request for a building permit to enlarge the church. The diocese
then sued the city under the Religious Freedom Restoration Act (RFRA), seeking to force
the city to grant the building permit). The case calls into question the authority of
Congress to enact RFRA. We conclude the statute exceeds Congress’ power. Congress
enacted RFRA in direct response to the Court’s decision in Employment Division v.
Smith. There we considered a Free Exercise Clause claim brought by members of the
Native American Church who were denied unemployment benefits when they lost their
jobs because they had used peyote. We stated:
“[G]overnment’s ability to enforce generally applicable prohibitions of socially
harmful conduct ... cannot depend on measuring the effects of a governmental action on
a religious objector’s spiritual development. To make an individual’s obligation to obey
such a law contingent upon the law’s coincidence with his religious beliefs, except
where the State’s interest is ‘compelling’ ... contradicts both constitutional tradition and
common sense (internal quotation marks and citations omitted).
The application of the Sherbert test, the Smith decision explained, would have produced
an anomaly in the law, a constitutional right to ignore neutral laws of general
applicability. The anomaly would have been accentuated, the Court reasoned, by the
difficulty of determining whether a particular practice was central to an individual’s
religion. We explained, moreover, that it “is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith, or the validity of particular litigants’
interpretations of those creeds.”
These points of constitutional interpretation were debated by Members of Congress in
hearings and floor debates. Many criticized the Court’s reasoning, and this disagreement
resulted in the passage of RFRA. Congress announced:
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“(1) The framers of the Constitution, recognizing free exercise of religion as an
unalienable right, secured its protection in the First Amendment to the
Constitution;
“(2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws
intended to interfere with religious exercise;
“(3) governments should not substantially burden religious exercise without
compelling justification;
“(4) in Smith, the Supreme Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by laws neutral toward
religion; and
“(5) the compelling interest test as set forth in prior Federal court rulings is a
workable test for striking sensible balances between religious liberty and
competing prior governmental interests.”
The Act’s stated purposes are:
“(1) to restore the compelling interest test as set forth in Sherbert v. Verner and
Wisconsin v. Yoder and to guarantee its application in all cases where free
exercise of religion is substantially burdened; and
“(2) to provide a claim or defense to persons whose religious exercise is
substantially burdened by government.”
RFRA prohibits “[g]overnment” from “substantially burden[ing]” a person’s exercise of
religion even if the burden results from a rule of general applicability unless the
government can demonstrate the burden “(1) is in furtherance of *516 a compelling
governmental interest; and (2) is the least restrictive means of furthering that compelling
governmental interest.” The Act’s mandate applies to any “branch, department, agency,
instrumentality, and official (or other person acting under color of law) of the United
States,” as well as to any “State, or ... subdivision of a State.” The Act’s universal
coverage is confirmed in Section 2000-bb-3(a), under which RFRA “applies to all
Federal and State law, and the implementation of that law, whether statutory or
otherwise, and whether adopted before or after [RFRA’s enactment].” In accordance with
RFRA’s usage of the term, we shall use “state law” to include local and municipal
ordinances.
Under our Constitution, the Federal Government is one of enumerated powers.
The judicial authority to determine the constitutionality of laws, in cases and
controversies, is based on the premise that the “powers of the legislature are defined and
limited; and that those limits may not be mistaken, or forgotten, the constitution is
written.”
Congress relied on its Fourteenth Amendment enforcement power in enacting the
most far-reaching and substantial of RFRA’s provisions, those which impose its
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requirements on the States.
While the line between measures that remedy or prevent unconstitutional actions
and measures that make a substantive change in the governing law is not easy to discern,
and Congress must have wide latitude in determining where it lies, the distinction exists
and must be observed. There must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end. Lacking such a
connection, legislation may become substantive in operation and effect. History and our
case law support drawing the distinction, one apparent from the text of the Amendment.
We now turn to consider whether RFRA can be considered enforcement
legislation under Section 5 of the Fourteenth Amendment.
Respondent contends that RFRA is a proper exercise of Congress’ remedial or
preventive power. The Act, it is said, is a reasonable means of protecting the free exercise
of religion as defined by Smith. It prevents and remedies laws which are enacted with the
unconstitutional object of targeting religious beliefs and practices. See Church of Lukumi
Babalu (“[A] law targeting religious beliefs as such is never permissible”). To avoid the
difficulty of proving such violations, it is said, Congress can simply invalidate any law
which imposes a substantial burden on a religious practice unless it is justified by a
compelling interest and is the least restrictive means of accomplishing that interest. If
Congress can prohibit laws with discriminatory effects in order to prevent racial
discrimination in violation of the Equal Protection Clause, then it can do the same,
respondent argues, to promote religious liberty.
While preventive rules are sometimes appropriate remedial measures, there must
be a congruence between the means used and the ends to be achieved. The
appropriateness of remedial measures must be considered in light of the evil presented.
Strong measures appropriate to address one harm may be an unwarranted response to
another, lesser one.
Regardless of the state of the legislative record, RFRA cannot be considered
remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out
of proportion to a supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior. Sweeping coverage
ensures its intrusion at every level of government, displacing laws and prohibiting official
actions of almost every description and regardless of subject matter. RFRA’s restrictions
apply to every agency and official of the Federal, State, and local Governments.
The stringent test RFRA demands of state laws reflects a lack of proportionality
or congruence between the means adopted and the legitimate end to be achieved. If an
objector can show a substantial burden on his free exercise, the *534 State must
demonstrate a compelling governmental interest and show that the law is the least
restrictive means of furthering its interest. Claims that a law substantially burdens
someone’s exercise of religion will often be difficult to contest.
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The substantial costs RFRA exacts, both in practical terms of imposing a heavy
litigation burden on the States and in terms of curtailing their traditional general
regulatory power, far exceed any pattern or practice of unconstitutional conduct under the
Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to
identify and counteract state laws likely to be unconstitutional because of their treatment
of religion. In most cases, the state laws to which RFRA applies are not ones which will
have been motivated by religious bigotry. RFRA’s substantial-burden test, however, is
not even a discriminatory effects or disparate-impact test. It is a reality of the modern
regulatory state that numerous state laws, such as the zoning regulations at issue here,
impose a substantial burden on a large class of individuals. When the exercise of religion
has been burdened in an incidental way by a law of general application, it does not follow
that the persons affected have been burdened any more than other citizens, let alone
burdened because of their religious beliefs. In addition, the Act imposes in every case a
least restrictive means requirement – a requirement that was not used in the pre-Smith
jurisprudence RFRA purported to codify – which also indicates that the legislation is
broader than is appropriate if the goal is to prevent and remedy constitutional violations.
It is so ordered.
Justice STEVENS, Concurring:
In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an
establishment of religion” that violates the First Amendment to the Constitution. If the historic
landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it
would not be eligible for an exemption from the city ordinances that forbid an enlargement of the
structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its
owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law.
Whether the Church would actually prevail under the statute or not, the statute has provided the
Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for
religion, as opposed to irreligion, is forbidden by the First Amendment.
Justice O’CONNOR, Dissenting:
I dissent from the Court’s disposition of this case. I agree with the Court that the issue before us is
whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress’
power to enforce Section 5 of the Fourteenth Amendment. But as a yardstick for measuring the
constitutionality of RFRA, the Court uses its holding in Smith, the decision that prompted Congress to
enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view
that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there.
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Reading Locke v. Davey: Governor Locke was instrumental in setting up a new college
educational program known as Promise Scholarships to help high-achieving students
with a scholarship, renewable for one year. Students may spend their funds on any
education-related expense, including room and board. The scholarships are funded
through the State’s general fund, and their amount varies each year depending on the
annual appropriation.
The Promise Scholarship Program was set up as follows: A student who applies
for the scholarship and meets the academic and income requirements is notified that he
is eligible for the scholarship. Once the student was enrolled at an eligible institution,
the institution must certify that the student is enrolled at least half-time. The institution
also had to certify that the student is not pursuing a degree in devotional theology. This
regulation followed a provision in Washington State’s constitutional that prohibited on
providing funds to students to pursue degrees that are “devotional in nature or designed
to induce religious faith.” The institution, rather than the State, determines whether the
student’s major is devotional. If the student meets the requirements, the money from the
scholarship is sent to the institution for distribution to the student to pay for tuition or
other educational expenses.
Josh Davey applied for and received a Promise Scholarship. It would have been
worth about $1,100 for his freshman year, and $1,500 for his sophomore year. Davey
decided to Northwest College, a private, Christian college affiliated with the Assemblies
of God denomination. Davey was interested in studying to prepare for a “lifetime of
ministry, specifically as a church pastor.” During his freshman year, he decided to
pursue a double major in pastoral ministries and business management/administration.
The program in pastoral ministries is devotional in nature and thus excluded under the
Promise Scholarship rules.
During his freshman year, Davey met with Northwest’s director of financial aid.
During that meeting, he learned for the first time at this meeting that he could not use his
scholarship to pursue a devotional theology degree. If was told that if he wanted to
receive his Promise Scholarship funds, he must certify in writing that he was not
pursuing such a degree at Northwest. He refused to sign the form. He then filed suit
challenging the restrictions as a violation of his Free Exercise Clause rights under the
First Amendment.
The Ninth Circuit held that Washington’s rules had singled out religion for
unfavorable treatment, so that Washington’s exclusion of theology majors must be
narrowly tailored to achieve a compelling state interest. Finding that the State’s own
antiestablishment concerns were not compelling, the Ninth Circuit declared
Washington’s Promise Scholarship Program unconstitutional.
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LOCKE v. DAVEY
540 U.S. 712 (2004)
Chief Justice REHNQUIST delivered the opinion of the Court.
The Religion Clauses of the First Amendment provide: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof.”
These two Clauses, the Establishment Clause and the Free Exercise Clause, are
frequently in tension. Yet we have long said that “there is room for play in the joints”
between them. In other words, there are some state actions permitted by the
Establishment Clause but not required by the Free Exercise Clause.
This case involves that “play in the joints” described above. Under our
Establishment Clause precedent, the link between government funds and religious
training is broken by the independent and private choice of recipients. As such, there is
no doubt that the State could, consistent with the Federal Constitution, permit Promise
Scholars to pursue a degree in devotional theology, and the State does not contend
otherwise. The question before us, however, is whether Washington, pursuant to its own
constitution, which has been authoritatively interpreted as prohibiting even indirectly
funding religious instruction that will prepare students for the ministry, can deny them
such funding without violating the Free Exercise Clause.
Davey urges us to answer that question in the negative. He contends that under
the rule we enunciated in Church of Lukumi Babalu Aye, the program is presumptively
unconstitutional because it is not facially neutral with respect to religion. We reject his
claim of presumptive unconstitutionality, however; to do otherwise would extend the
Lukumi line of cases well beyond not only their facts but their reasoning. In Lukumi, the
city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found
that the law sought to suppress ritualistic animal sacrifices of the Santeria religion. In the
present case, the State’s disfavor of religion (if it can be called that) is of a far milder
kind. It imposes neither criminal nor civil sanctions on any type of religious service or
rite. It does not deny to ministers the right to participate in the political affairs of the
community. And it does not require students to choose between their religious beliefs and
receiving a government benefit. The State has merely chosen not to fund a distinct
category of instruction.
Justice SCALIA argues [that because] the Promise Scholarship Program funds
training for all secular professions, the State must also fund training for religious
professions. But training for religious professions and training for secular professions are
not fungible. Training someone to lead a congregation is an essentially religious
endeavor. Indeed, majoring in devotional theology is akin to a religious calling as well as
an academic pursuit. And the subject of religion is one in which both the United States
and state constitutions embody distinct views – in favor of free exercise, but opposed to
establishment – that find no counterpart with respect to other callings or professions. That
a State would deal differently with religious education for the ministry than with
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education for other callings is a product of these views, not evidence of hostility toward
religion.
Even though the differently worded Washington Constitution draws a more
stringent line than that drawn by the United States Constitution, the interest it seeks to
further is scarcely novel. In fact, we can think of few areas in which a State’s
antiestablishment interests come more into play. Since the founding of our country, there
have been popular uprisings against procuring taxpayer funds to support church leaders,
which was one of the hallmarks of an “established” religion.
Most States that sought to avoid an establishment of religion around the time of
the founding placed in their constitutions formal prohibitions against using tax funds to
support the ministry. The plain text of these constitutional provisions prohibited any tax
dollars from supporting the clergy. That early state constitutions saw no problem in
explicitly excluding only the ministry from receiving state dollars reinforces our
conclusion that religious instruction is of a different ilk.
Far from evincing the hostility toward religion which was manifest in Lukumi, we
believe that the entirety of the Promise Scholarship Program goes a long way toward
including religion in its benefits. The program permits students to attend pervasively
religious schools, so long as they are accredited. As Northwest advertises, its “concept of
education is distinctly Christian in the evangelical sense.” It prepares all of its students,
“through instruction, through modeling, [and] through [its] classes, to use ... the Bible as
their guide, as the truth,” no matter their chosen profession. And under the Promise
Scholarship Program’s current guidelines, students are still eligible to take devotional
theology courses. Davey notes all students at Northwest are required to take at least four
devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,”
“Evangelism in the Christian Life,” and “Christian Doctrine,” and some students may
have additional religious requirements as part of their majors.
In short, we find neither in the history or text of Article I, Section 11, of the
Washington Constitution, nor in the operation of the Promise Scholarship Program,
anything that suggests animus toward religion. Given the historic and substantial state
interest at issue, we therefore cannot conclude that the denial of funding for vocational
religious instruction alone is inherently constitutionally suspect.
Without a presumption of unconstitutionality, Davey’s claim must fail. The
State’s interest in not funding the pursuit of devotional degrees is substantial and the
exclusion of such funding places a relatively minor burden on Promise Scholars. If any
room exists between the two Religion Clauses, it must be here. We need not venture
further into this difficult area in order to uphold the Promise Scholarship Program as
currently operated by the State of Washington.
The judgment of the Court of Appeals is therefore Reversed.
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Justice SCALIA, with whom Justice THOMAS joins, dissenting.
In Church of Lukumi Bablu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the
majority opinion held that “[a] law burdening religious practice that is not neutral ... must
undergo the most rigorous of scrutiny,” and that “the minimum requirement of neutrality
is that a law not discriminate on its face.” The concurrence of two Justices stated that
“[w]hen a law discriminates against religion as such, it automatically will fail strict
scrutiny.” And the concurrence of a third Justice endorsed the “noncontroversial
principle” that “formal neutrality” is a “necessary condition for free-exercise
constitutionality.” These opinions are irreconcilable with today’s decision, which sustains
a public benefits program that facially discriminates against religion.
When the State makes a public benefit generally available, that benefit becomes
part of the baseline against which burdens on religion are measured; and when the State
withholds that benefit from some individuals solely on the basis of religion, it violates the
Free Exercise Clause no less than if it had imposed a special tax.
That is precisely what the State of Washington has done here. It has created a
generally available public benefit, whose receipt is conditioned only on academic
performance, income, and attendance at an accredited school. It has then carved out a
solitary course of study for exclusion: theology. No field of study but religion is singled
out for disfavor in this fashion. Davey is not asking for a special benefit to which others
are not entitled. He seeks only equal treatment – the right to direct his scholarship to his
chosen course of study, a right every other Promise Scholar enjoys.
The Court’s reference to historical “popular uprisings against procuring taxpayer
funds to support church leaders,” is therefore quite misplaced. That history involved not
the inclusion of religious ministers in public benefits programs like the one at issue here,
but laws that singled them out for financial aid. One can concede the Framers’ hostility to
funding the clergy specifically, but that says nothing about whether the clergy had to be
excluded from benefits the State made available to all. No one would seriously contend,
for example, that the Framers would have barred ministers from using public roads on
their way to church.
The Court does not dispute that the Free Exercise Clause places some constraints
on public benefits programs, but finds none here, based on a principle of “play in the
joints.” I use the term “principle” loosely, for that is not so much a legal principle as a
refusal to apply any principle when faced with competing constitutional directives. There
is nothing anomalous about constitutional commands that abut. A municipality hiring
public contractors may not discriminate against blacks or in favor of them; it cannot
discriminate a little bit each way and then plead “play in the joints” when haled into
court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as
well as easy ones.
Even if “play in the joints” were a valid legal principle, surely it would apply only
when it was a close call whether complying with one of the Religion Clauses would
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violate the other. But that is not the case here. It is not just that “the State could,
consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in
devotional theology.” The establishment question would not even be close.
In any case, the State already has all the play in the joints it needs. There are any
number of ways it could respect both its unusually sensitive concern for the conscience of
its taxpayers and the Federal Free Exercise Clause. It could make the scholarships
redeemable only at public universities (where it sets the curriculum), or only for select
courses of study. Either option would replace a program that facially discriminates
against religion with one that just happens not to subsidize it. The State could also simply
abandon the scholarship program altogether. If that seems a dear price to pay for freedom
of conscience, it is only because the State has defined that freedom so broadly that it
would be offended by a program with such an incidental, indirect religious effect.
What is the nature of the State’s asserted interest here? It cannot be protecting the
pocketbooks of its citizens; given the tiny fraction of Promise Scholars who would pursue
theology degrees, the amount of any citizen’s tax bill at stake is de minimis. It cannot be
preventing mistaken appearance of endorsement; where a State merely declines to
penalize students for selecting a religious major, “[n]o reasonable observer is likely to
draw ... an inference that the State itself is endorsing a religious practice or belief.” Nor
can Washington’s exclusion be defended as a means of assuring that the State will neither
favor nor disfavor Davey in his religious calling. Davey will throughout his life
contribute to the public fisc through sales taxes on personal purchases, property taxes on
his home, and so on; and nothing in the Court’s opinion turns on whether Davey winds
up a net winner or loser in the State’s tax-and-spend scheme.
No, the interest to which the Court defers is not fear of a conceivable
Establishment Clause violation, budget constraints, avoidance of endorsement, or
substantive neutrality – none of these. It is a pure philosophical preference: the State’s
opinion that it would violate taxpayers’ freedom of conscience not to discriminate against
candidates for the ministry. This sort of protection of “freedom of conscience” has no
logical limit and can justify the singling out of religion for exclusion from public
programs in virtually any context. The Court never says whether it deems this interest
compelling (the opinion is devoid of any mention of standard of review) but, selfevidently, it is not.
The Court makes no serious attempt to defend the program’s neutrality, and
instead identifies two features thought to render its discrimination less offensive. The first
is the lightness of Davey’s burden. The Court offers no authority for approving facial
discrimination against religion simply because its material consequences are not severe. I
might understand such a test if we were still in the business of reviewing facially neutral
laws that merely happen to burden some individual’s religious exercise, but we are not.
Discrimination on the face of a statute is something else. The indignity of being singled
out for special burdens on the basis of one’s religious calling is so profound that the
concrete harm produced can never be dismissed as insubstantial.
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Even if there were some threshold quantum-of-harm requirement, surely Davey
has satisfied it. The First Amendment, after all, guarantees free exercise of religion, and
when the State exacts a financial penalty of almost $3,000 for religious exercise—
whether by tax or by forfeiture of an otherwise available benefit—religious practice is
anything but free. The Court’s only response is that “Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution from where they are
studying devotional theology.” But part of what makes a Promise Scholarship attractive
is that the recipient can apply it to his preferred course of study at his preferred
accredited institution. That is part of the “benefit” the State confers.
The other reason the Court thinks this particular facial discrimination less
offensive is that the scholarship program was not motivated by animus toward religion.
The Court does not explain why the legislature’s motive matters, and I fail to see why it
should. If a State deprives a citizen of trial by jury or passes an ex post facto law, we do
not pause to investigate whether it was actually trying to accomplish the evil the
Constitution prohibits. It is sufficient that the citizen’s rights have been infringed.
The Court has not approached other forms of discrimination this way. When we
declared racial segregation unconstitutional, we did not ask whether the State had
originally adopted the regime, not out of “animus” against blacks, but because of a wellmeaning but misguided belief that the races would be better off apart. It was sufficient to
note the current effect of segregation on racial minorities.
There is no need to rely on analogies, however, because we have rejected the
Court’s methodology in this very context. In McDaniel v. Paty, 435 U.S. 618 (1978), we
considered a Tennessee statute that disqualified clergy from participation in the state
constitutional convention. That statute, like the one here, was based upon a state
constitutional provision – a clause in the 1796 Tennessee Constitution that disqualified
clergy from sitting in the legislature. The State defended the statute as an attempt to be
faithful to its constitutional separation of church and state, and we accepted that claimed
benevolent purpose as bona fide. Nonetheless, because it did not justify facial
discrimination against religion, we invalidated the restriction.
It may be that Washington’s original purpose in excluding the clergy from public
benefits was benign, and the same might be true of its purpose in maintaining the
exclusion today. But those singled out for disfavor can be forgiven for suspecting more
invidious forces at work. Let there be no doubt: This case is about discrimination against
a religious minority. Most citizens of this country identify themselves as professing some
religious belief, but the State’s policy poses no obstacle to practitioners of only a tepid,
civic version of faith. Those the statutory exclusion actually affects – those whose belief
in their religion is so strong that they dedicate their study and their lives to its ministry –
are a far narrower set. One need not delve too far into modern popular culture to perceive
a trendy disdain for deep religious conviction. In an era when the Court is so quick to
come to the aid of other disfavored groups, see, e.g., Romer v. Evans, its indifference in
this case, which involves a form of discrimination to which the Constitution actually
speaks, is exceptional.
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Today’s holding is limited to training the clergy, but its logic is readily
extendible, and there are plenty of directions to go. What next? Will we deny priests and
nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience
forbids medicating the clergy at public expense? This may seem fanciful, but recall that
France has proposed banning religious attire from schools, invoking interests in
secularism no less benign than those the Court embraces today. When the public’s
freedom of conscience is invoked to justify denial of equal treatment, benevolent motives
shade into indifference and ultimately into repression. I respectfully dissent.
The following case is before the Supreme Court this Term and will be argued later in the
Fall.
TRINITY LUTHERAN CHURCH OF COLUMBIA v. PAULEY
788 F.3d 779 (8th Cir. 2015)
LOKEN, Circuit Judge.
Trinity Church operates on its church premises a licensed preschool and daycare
called the Learning Center. Initially established as a non-profit corporation, the Learning
Center merged into Trinity Church in 1985. The Learning Center has an open admissions
policy. It is a ministry of Trinity Church that teaches a Christian world view and
incorporates daily religious instruction in its programs.
The Department of Natural Resources (“DNR”) offers Playground Scrap Tire
Surface Material Grants, a solid waste management program. The grants provide DNR
funds to qualifying organizations for the purchase of recycled tires to resurface
playgrounds, a beneficial reuse of this solid waste. In 2012, Trinity Church applied for a
grant to replace the Learning Center’s playground surface, disclosing that the Learning
Center was part of Trinity Church. On May 21, 2012, the Solid Waste Management
Program Director wrote the Learning Center’s Director, advising:
[A]fter further review of applicable constitutional limitations, the department is
unable to provide this financial assistance directly to the church as contemplated
by the grant application. Please note that Article I, Section 7 of the Missouri
Constitution specifically provides that “no money shall ever be taken from the
public treasury, directly or indirectly, in aid of any church, section or
denomination of religion.”
A Solid Waste Management Program planner subsequently advised the Solid Waste
Management District Director that Trinity Church’s application ranked fifth out of forty
four applications in 2012, and that fourteen projects were funded.
Trinity Church commenced this action, asserting federal question jurisdiction over
claims that the denial of its Scrap Tire application violated (i) the Equal Protection Clause
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of the Fourteenth Amendment, (ii) its First Amendment right to free exercise of religion,
(iii) the First Amendment’s Establishment Clause, and (iv) its First Amendment right of
free speech. The Complaint invoked the district court’s supplemental jurisdiction over a
fifth cause of action, alleging that DNR’s denial violated [the Missouri Constitution].
Trinity Church sought injunctive and declaratory relief against DNR “policies and actions
in denying grants to applicants who are churches or connected to churches.”
The district court granted Director Pauley’s motion to dismiss the complaint for
failure to state a claim.
II. The Federal Constitutional Claims
“Missouri has a long history of maintaining a very high wall between church and
state.” Luetkemeyer v. Kaufmann, 364 F.Supp. 276 (W.D. Mo. 1973), aff’d, 419 U.S.
888 (1974). Two provisions in the Missouri Constitution “declaring that there shall be a
separation of church and state are not only more explicit but more restrictive than the
Establishment Clause of the United States Constitution.” Those provisions, one of which
is at the core of this dispute, were initially adopted in 1870 and 1875. As re-adopted in
the Missouri Constitution of 1945, they now provide:
Art. I, § 7. That no money shall ever be taken from the public treasury, directly or
indirectly, in aid of any church, sect, or denomination of religion, or in aid of any
priest, preacher, minister or teacher thereof, as such; and that no preference shall
be given to nor any discrimination made against any church, sect, or creed of
religion, or any form of religious faith or worship.
Art. IX, § 8. Neither the general assembly, nor any county, city, town [etc.] shall
ever make an appropriation or pay from any public fund whatever, anything in aid
of any religious creed, church or sectarian purpose, or to help to support or sustain
any private or public school ... or other institution of learning controlled by any
religious creed, church or sectarian denomination whatever; nor shall any grant or
donation ... ever be made by the state ... for any religious creed, church, or
sectarian purpose whatever.
Trinity Church’s Complaint alleged that, by denying its grant application solely
because it is a church, DNR (i) violated the Free Exercise clause because it “target[ed]
religion for disparate treatment” without a compelling government interest; (ii) violated
the Establishment Clause because the denial “was hostile to religion” and required DNR
“to determine what is religious enough” to justify denial; and (iii) violated the Equal
Protection Clause by discriminating against religious learning centers and day care
organizations without a compelling government interest. Although Trinity Church
couched these claims as an attack on DNR’s “customs, policies and practices,” all its
claims are plainly facial attacks on Article I, Section 7 of the Missouri Constitution,
which provides that “no money shall ever be taken from the public treasury, directly or
indirectly, in aid of any church,” and which was cited by DNR as the sole basis for its
denial.
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Viewed in this light, it is apparent that Trinity Church seeks an unprecedented
ruling—that a state constitution violates the First Amendment and the Equal Protection
Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must
clear a formidable if not insurmountable hurdle, what appears to be controlling adverse
precedent. In Luetkemeyer, a three-judge district court was convened in the Western
District of Missouri to consider a claim that the First Amendment and the Equal
Protection clause required Missouri to provide the same public transportation benefits for
the pupils of church-related schools as were being provided to transport children to public
schools. In denying plaintiffs injunctive and damage relief, the majority explained:
We conclude without hesitation that the long established constitutional policy of
the State of Missouri, which insists upon a degree of separation of church and
state to probably a higher degree than that required by the First Amendment, is
indeed a ‘compelling state interest in the regulation of a subject within the State’s
constitutional power’ ... That interest, in our judgment, satisfies any possible
infringement of the Free Exercise clause of the First Amendment or of any other
prohibition in the Constitution of the United States. * * * The fact that Missouri
has determined to enforce a more strict policy of church and state separation than
that required by the First Amendment does not present any substantial federal
constitutional question.
Plaintiffs appealed to the Supreme Court of the United States. The Court summarily
affirmed. Two Justices dissented, arguing the Court should have noted probable
jurisdiction and set the case for argument on two questions, whether the different
treatment of public-school and parochial-school children violated equal protection
principles, and whether the arbitrary denial of a general public service made the State an
“adversary” of religion. 419 U.S. at 890 (White, J., dissenting).
When the Supreme Court summarily affirms a lower federal court, its decision
“prevent[s] lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided,” but the Court has affirmed only the judgment, not
necessarily the rationale of the lower court. Here, while the parameters of the Supreme
Court’s summary affirmance in Luetkemeyer may not be free from doubt, given the issues
addressed in the dissent from summary affirmance, we conclude that the Court
necessarily decided that Article I, Section 7 of the Missouri Constitution is not facially
invalid.
Trinity Church requests injunctive relief compelling Missouri to provide grants
directly to churches, funding that is prohibited by a provision of the Missouri
Constitution that has been a bedrock principle of state law for nearly 150 years. Without
question, a state constitutional provision is invalid if it conflicts with either religion
clause of the First Amendment, or with the Fourteenth Amendment’s Equal Protection
Clause. We also recognize that the Supreme Court’s Establishment Clause jurisprudence
has evolved rather dramatically in the forty years since Luetkemeyer was decided. For
example, it now seems rather clear that Missouri could include the Learning Center’s
playground in a non-discriminatory Scrap Tire grant program without violating the
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Establishment Clause. But the issue here is not what the State is constitutionally
permitted to do, but whether the Free Exercise Clause, the Establishment Clause, or the
Equal Protection Clause compel Missouri to provide public grant money directly to a
church, contravening a long-standing state constitutional provision that is not unique to
Missouri.
No Supreme Court case, before or after Luetkemeyer, has granted such relief.
Indeed, in Locke v. Davey, 540 U.S. 712 (2004), the Court upheld State of Washington
statutes and constitutional provisions that barred public scholarship aid to post-secondary
students pursuing a degree in theology. The Court noted the “popular uprisings against
procuring taxpayer funds to support church leaders, which was one of the hallmarks of an
‘established’ religion. In Locke, “the link between government funds and religious
training [was] broken by the independent and private choice of [scholarship] recipients,”
prompting the Court to examine carefully the “relatively minor burden” the scholarship
exclusion placed on students taking devotional theology courses. By contrast, in this case
there is no break in the link. Trinity Church seeks to compel the direct grant of public
funds to churches, another of the “hallmarks of an ‘established’ religion.” Therefore,
while there is active academic and judicial debate about the breadth of the decision, we
conclude that Locke reinforces our decision that Luetkemeyer is controlling precedent
foreclosing Trinity Church’s facial attack on Article I, Section 7 of the Missouri
Constitution.
Justice Scalia, dissenting for himself and Justice Thomas in Locke, articulated a contrary
view of the First Amendment’s religion clauses:
When the State makes a public benefit generally available, that benefit
becomes part of the baseline against which burdens on religion are
measured; and when the State withholds that benefit from some
individuals solely on the basis of religion, it violates the Free Exercise
Clause no less than if it had imposed a special tax.
If the Court were to adopt this view, and if Justice Scalia’s reference to withholding
benefits to “individuals” were held to include direct public benefits to churches, then
Article I, Section 7 of the Missouri Constitution could not be validly applied to deny
church participation in a host of publicly-funded programs. That may be a logical
constitutional leap in the direction the Court recently seems to be going, but it is a leap of
great magnitude from the Court’s decisions in Luetkemeyer and in Locke. In our view,
only the Supreme Court can make that leap. As the Court has often reminded us, a court
of appeals “should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203 (1997) (an
Establishment Clause decision). We therefore follow Luetkemeyer and the many Supreme
Court of Missouri decisions concluding that the Missouri Constitution does not conflict
with the First Amendment or the Equal Protection Clause of the United States
Constitution.
For these reasons, we conclude that the district court correctly dismissed Trinity
Church’s federal constitutional claims for failure to state a claim upon which relief could
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be granted. 3
The judgment of the district court is affirmed.
GRUENDER, Circuit Judge, concurring in part and dissenting in part.
Trinity Lutheran Church (“Trinity Lutheran”) applied for a grant through the
Learning Center, a daycare and preschool that Trinity Lutheran runs. This grant would
allow the Learning Center to make its playground safer by swapping the gravel that
covers it for a rubber surface made from recycled tires. The Missouri Department of
Natural Resources (“the Department”), which administers this grant program, accepted
Trinity Lutheran’s application and ranked it fifth out of the forty-four applications from
that year. The Department approved fourteen grant applications, but Trinity Lutheran’s
was not among them. Relying solely on the Missouri Constitution’s prohibition on using
public funds to aid a church, the Department denied Trinity Lutheran’s grant application.
Thus, but for the fact that the Learning Center was run by a church, it would have
received a playground-surfacing grant. Where, as here, generally available funds are
withheld solely on the basis of religion, the Supreme Court’s decision in Locke v. Davey
governs claims brought under the Free Exercise Clause of the First Amendment.
Applying the careful balance struck by Locke, I would conclude that Trinity Lutheran has
sufficiently pled a violation of the Free Exercise Clause as well as a derivative claim
under the Equal Protection Clause.
The court attempts to impose a barrier to full consideration of Locke. Trinity
Lutheran, the court concludes, challenges the facial validity of Article I, § 7 of the
Missouri Constitution by requesting a ruling that “a state constitution violates the First
Amendment and the Equal Protection Clause if it bars the grant of public funds to a
church.” But Trinity Lutheran does not mount the expansive facial challenge that the
court attributes to it. Trinity Lutheran tries to bring an as-applied challenge; the complaint
says so numerous times. Trinity Lutheran, as the court acknowledges, frames its
challenge as an attack on the Department’s “customs, policies, and practices.” And
Trinity Lutheran specifically requests a declaration that the Department’s denial of its
grant application was unconstitutional. Trinity Lutheran also specifically requests
injunctive relief prohibiting the Department from discriminating against it in future grant
3
Even if Luetkemeyer were not controlling, we see little merit to Trinity Church’s constitutional arguments,
based on existing precedent. The Supreme Court in Locke expressly recognized that “there are some state
actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Until the
Court rules otherwise, the direct expenditure of public funds to aid a church is a paradigm example of that
type of state action. “There is no relevant precedent for using [the Establishment Clause’s] negative
prohibition as a basis for extending the right of a religiously affiliated group to secure state subsidies.”
DNR’s decision to deny the grant application because Trinity Church is a “church” within the meaning of
Article I, Section 7 hardly required an excessive entanglement with religion, unlike the state statute at issue
in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) (requiring consideration of
factors to determine whether a scholarship applicant was ineligible because the institution of higher
education was “pervasively sectarian”).
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applications. This claim and relief only implicate Trinity Lutheran.
This brings me to Locke. In the face of a Free Exercise challenge, the Court
upheld a college scholarship program that prevented students from using the scholarship
to pursue a degree in devotional theology, a course of study that the court characterized
as “akin to a religious calling as well as an academic pursuit.” The Court began with the
proposition that “there are some state actions permitted by the Establishment Clause but
not required by the Free Exercise Clause.” Because the “State’s disfavor of religion (if it
can be called that)” in prohibiting recipients from using the scholarship to major in
devotional theology “is of a far milder kind,” the Court concluded that the scholarship
program was not presumptively unconstitutional. In upholding the program, the Court
found that it “goes a long way toward including religion in its benefits”—for example, by
allowing recipients to attend pervasively religious schools that are accredited and to take
devotional-theology courses. To the Court, this “relatively minor burden” was justified
by a “historic and substantial state interest” of not funding “an essentially religious
endeavor.”
Locke did not leave states with unfettered discretion to exclude the religious from
generally available public benefits. To the contrary, Chief Justice Rehnquist’s opinion for
seven members of the Court was careful to acknowledge its parameters. “The [Locke]
opinion thus suggests, even if it does not hold, that the State’s latitude to discriminate
against religion is confined to certain ‘historic and substantial state interest[s],’ and does
not extend to the wholesale exclusion of religious institutions and their students from
otherwise neutral and generally available government support.” Colo. Christian Univ. v.
Weaver, 534 F.3d 1245 (10th Cir. 2008). Locke “suggests the need for balancing interests:
its holding that ‘minor burden[s]’ and ‘milder’ forms of ‘disfavor’ are tolerable in service
of ‘historic and substantial state interest[s]’ implies that major burdens and categorical
exclusions from public benefits might not be permitted in service of lesser or less longestablished governmental ends.” Simply put, the Locke Court “indicated that the State’s
latitude with respect to funding decisions has limits.”
Applying the balancing of interests contemplated by Locke, I conclude that
Trinity Lutheran has sufficiently pled a Free Exercise violation. The disfavor of religion
here is more pronounced than in Locke. The student in Locke could use his scholarship to
attend a pervasively religious school that was accredited and to take courses in devotional
theology there. And a pervasively religious school that received scholarship money even
could require its students to take devotional-theology classes. The program, as the Court
put it, went “a long way toward including religion in its benefits.” The same cannot be
said here. Trinity Lutheran has pled that the Department categorically prohibited the
Learning Center from receiving a playground-surfacing grant because it is run by a
church. This blanket prohibition is different in kind from the disfavor of religion that was
present in Locke. Whereas the Locke program excluded religious study while also
including it, the Department has entirely excluded the Learning Center from receiving a
playground-surfacing grant. Much like the Tenth Circuit, I read Locke to impose some
bounds on such a “wholesale exclusion of religious institutions and their students from
otherwise neutral and generally available government support.”
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The Department’s reason for singling out the Learning Center differs from the
historic and substantial state interest in Locke, where the state sought to avoid paying for
the training of clergy, “an essentially religious endeavor.” The sheer religiosity of this
activity led the court to remark that “we can think of few areas in which a State’s
antiestablishment interests come more into play.” It is true that the Department’s interest
in enforcing Article I, § 7 of the Missouri Constitution is historic in the sense that this
provision is longstanding. But the state’s interest in Locke traced to concerns that were
specific to paying for training the clergy. The Court was unequivocal about this point:
“[T]he only interest at issue here is the State’s interest in not funding the religious
training of clergy.” Here, by contrast, the Department seeks to enforce a general
prohibition on aid to a church that is in no way specific to the playground-surfacing grant
program. This case therefore lacks the correspondence between the past and the
Department’s present interest that the Court found significant in Locke.
Perhaps more importantly, the substantial antiestablishment interest identified in
Locke is not present here. Unlike a student preparing for the ministry, which is “an
essentially religious endeavor,” schoolchildren playing on a safer rubber surface made
from environmentally-friendly recycled tires has nothing to do with religion. If giving the
Learning Center a playground-surfacing grant raises a substantial antiestablishment
concern, the same can be said for virtually all government aid to the Learning Center, no
matter how far removed from religion that aid may be. When the Locke Court spoke of a
substantial antiestablishment concern, I seriously doubt it was contemplating a state’s
interest in not rubberizing a playground surface with recycled tires.
In concluding that Trinity Lutheran has stated a claim under the Free Exercise
Clause, I acknowledge that “[t]he precise bounds of the Locke holding ... are far from
clear.” Colorado Christian, 534 F.3d at 1254. However, the best reading of Locke, in my
view, is that in the absence of a historic and substantial interest, the Department’s
“latitude to discriminate against religion ... does not extend to the wholesale exclusion of
religious institutions and their students from otherwise neutral and generally available
government support.”
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