Some Background on Religious Exemption Law

The discussion of Elena Kagan’s memo about a RFRA case suggested to me that it would be good to explain some basic principles of American religious exemption law. What follows is my attempt at an objective explanation of the law; I don’t think any of this should be controversial as a statement of what the law actually is, though no doubt many people might have a different view of what the law ought to be.

Say that you feel a religious obligation to use a prohibited drug — hoasca (the drug at issue in the O Centro case from 2006), peyote, marijuana, or LSD. Or say that you’re a landlord who feels a religious obligation not to rent to unmarried couples (or same-sex couples), even though state law bars marital status discrimination or sexual orientation discrimination in housing. Or say that you feel a religious obligation to help someone commit suicide, in violation of state law — or a religious obligation not to testify against your parent, your child, or a coreligionist, even when you have a legal duty to do so. Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?

Until 1963 (more or less), the rule was what I call the statutory exemption model — religious objectors got exemptions if and only if the statute provided for one (as, for instance, draft law historically had). Then in Sherbert v. Verner (1963), the Supreme Court adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption.

Of course, a constitutional exemption model can never simply say “religious objectors get an exemption.” A wide range of generally applicable laws — murder law, theft law, rape law, and so on — must be applicable even to religious objectors. Even as to more controversial cases, such as bans on race discrimination in education, or generally applicable tax laws, the Court has found (even under the Sherbert regime) that religious objectors’ claims must yield.

To distinguish cases where religious objectors win from those in which they lose, the Sherbert-era Court used what it called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs (e.g., when it banned behavior that the objectors saw as religiously compelled, or mandated behavior that the objectors saw as religiously prohibited): Religious objectors must prevail unless applying the law to them is the least restrictive means of serving a compelling government interest. But while the “strict scrutiny” test in race and free speech cases was generally seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, in religious freedom cases it was “strict in theory, feeble in fact” (Larry Sager & Chris Eisgruber’s phrase). The government usually won, and religious objectors won only rarely.

Then in 1990, the Court changed course: In Employment Division v. Smith, a 5-Justice majority returned to the statutory exemption regime, and rejected the constitutional exemption regime. So long as a law doesn’t discriminate against religious objectors, but generally applies to people regardless of their religiosity, it’s constitutionally valid. If religious objectors want an exemption, they need to go to the legislature. (This is an oversimplification, but let’s go with it for now.)

And then in 1993, Congress enacted the Religious Freedom Restoration Act, which gave religious objectors a statutory presumptive entitlement to exemption from generally applicable laws (subject to strict scrutiny). In City of Boerne v. Flores (1997), the Supreme Court held that RFRA exceeded federal power when applied to state laws, but didn’t touch it as to federal law. Since 1997 (and in some measure before), about a dozen states enacted similar state-level RFRAs as to state law, and about a dozen more interpreted their state constitutions to follow the Sherbert model rather than the Smith model.

Therefore, the rule now is that there is a religious exemption regime as to federal statutes (under the federal RFRA), and as to state statutes in the about half the states that have state RFRAs or state constitutional exemption regimes. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws that substantially burden the objectors’ practice, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

Finally, the following all constitute a substantial burden:

  1. The government’s compelling someone to do something that violates his religious beliefs, or prohibiting someone from doing something that is mandated by his religious beliefs.
  2. The government’s denying someone a tax exemption or unemployment compensation unless he does something that violates his religious beliefs, or refrains from something that is mandated by his religious beliefs.
  3. As to state and federal constitutional regimes, it’s not clear whether the above also applies when the objector’s conduct is merely motivated by his religious beliefs (e.g., the objector thinks it’s a religiously valuable thing for him to stay home on the Sabbath, rather than a religious commandment) and not actually mandated by those beliefs. The federal RFRA, many state RFRAs, and RLUIPA expressly apply to “any exercise of religion, whether or not compelled by … a system of religious belief.”
  4. The beliefs need not be longstanding, central to the claimant’s religious beliefs, internally consistent, consistent with any written scripture, or reasonable from the judge’s perspective. They need only be sincere.

But recall that a finding of substantial burden on sincere religious beliefs simply shifts the burden to the government (in those jurisdictions that have religious exemption regimes): The government may still justify the burden by showing that applying the law to the objectors is the least restrictive means of serving a compelling government interest.