Advancing freedom for all in the 21st century
What is the current law of religious freedom?

Written by William C. Duncan

August 7, 2020

This is part 2 in a series on an approach to advancing religious freedom by reducing opportunities for conflict between people of faith and those who feel discriminated against by the actions of people of faith. Part 1 described the sources of law that create the legal climate for religious practice. This article will outline the current law of religious freedom in the United States.

In a recent decision, a bare majority of the U.S. Supreme Court declined to hear a challenge to a Nevada law that shuttered churches during the pandemic but allowed casinos to open. When we hear about things like this, we might wonder why leaving casinos open but not churches would be possible. To begin, we can look at the current legal rules related to religious freedom.

The First Amendment to the U.S. Constitution, Supreme Court decisions, and some state and federal statutes provide important legal protections for religious freedom. However, the law does not address every possible circumstance. Conflicts arise when government agencies create new regulations, when current laws are vague, or other situations come up that the courts have not yet addressed. These areas create uncertainties for people of faith and religious groups.

U.S. Constitution

Under the current interpretation of the U.S. Constitution’s free exercise clause, the government can actually create burdens on religious exercise (requiring people to do things against their beliefs or prohibiting religious practices) as long as the requirement applies to nonreligious actions in the same way. So, in the currently controlling case, the First Amendment was interpreted in 1990 to allow firing a Native American Church member for using peyote in a religious ceremony because no one else could use the drug regardless of religious motives.

A law that singles out religious practice for treatment worse than nonreligious practice, however, would still be unconstitutional. That’s why the Supreme Court recently struck down a Montana law that allowed parents to use private school scholarships for any schools except religious schools, and an earlier decision struck down a city ordinance that allowed killing chickens unless it was part of a religious ritual.

This is an important legal development, but not an unmixed blessing. It ensures that religious freedom is not singled out for disfavor – but if this is all the courts look for, that could do a disservice to the concept of religious freedom. Religious practice is singled out for protection in the U.S. Constitution not just because religious people might be treated differently from others, but because religious faith, and the ability to act on it, is so central to the identity, motivations and loyalties of citizens. That means infringements of that freedom uniquely impact them, even if the result of the infringement is that they are treated the same as others.

The Supreme Court has also interpreted the First Amendment to prevent courts from hearing disputes over whom a church chooses as a minister or other religious representative. The two major cases, one in 2017 and one this year, involved teachers in private religious schools who claimed the schools had discriminated against them by firing them from teaching positions in which they taught the religious faith of the school to their employees.

Without this rule, the core work of religious organizations would always take place under a cloud. It is a way of policing the separation of church and state from the church’s side of the fence; it keeps the government from getting involved in second-guessing religious decisions that make up the core of the faith, such as who will represent the church or what its official doctrines are.

State constitutions

The majority of state supreme courts either interpret their state religious freedom protections in the same way the U.S. Supreme Court has interpreted the free exercise clause, or they have not yet had a case that has settled the issue. About a dozen states have adopted more protective approaches to religious freedom in the text or interpretations of their state constitutions.* In these states the approach of the courts would be similar to the Religious Freedom Restoration Act discussed below.

Legislation

As noted in the first part of this series, Congress can enact laws that protect or threaten religious freedom. To prevent the latter possibility, Congress overwhelmingly approved the Religious Freedom Restoration Act (RFRA) in 1993. It was drafted after the Supreme Court stepped back from a very protective interpretation of the free exercise clause that had been applied since the early 1960s. Congress wanted to ensure the federal government gave as much protection as possible to religious practice. (Originally, it was also meant to control the states, but the Supreme Court ruled it lacked authority to govern state actions.)

The idea of RFRA is that it lays out an approach to any federal law or policy that would affect religious exercise. It says that if the government creates a burden on that exercise, it has to show that the burden is justified by a compelling reason (i.e., protecting life or public health). Even if the law is connected to such a purpose, it must also be crafted so it affects only the religious exercise necessary. For instance, if there are public health reasons to put restrictions on religious gatherings, the government will have to show that there is no narrower way to accomplish its protective purpose. So, a ban on religious services is less likely than a mask requirement to be compliant with RFRA.

Twenty state legislatures have enacted RFRAs, and the rule described above would apply to any of their actions that might implicate religious freedom.**

Some state and federal laws include specific exemptions from laws that might burden religious practice (e.g., a federal statute that allows religious universities to have sex-segregated facilities or that exempts the Amish from Social Security taxes). These can be helpful in specific areas where conflict between government policies and religious practice are foreseeable. In fact, Congress enacted a statute dealing with the specific contexts of prison and zoning for this reason.

Administrative regulations

By their nature, administrative regulations tend to be very specific, so there is no general administrative law of religious liberty like Supreme Court decisions or the RFRA statute. In fact, administrative decisions are actually governed by these other two sources of law.

Having said that, there are all kinds of ways administrative regulations can impact religious freedom, such as military uniform policies, health insurance mandates or government contracts. Even though federal regulations (or similar state rules where the state has a RFRA) are governed by RFRA, this is not invariably the practice. So, litigation by religious people affected by administrative requirements (like the Hobby Lobby case) are likely to continue in the 21st century.

Summing up

If a religious organization or person of faith feels that a government action is asking them to do something contrary to their faith (or preventing them from doing something dictated by their beliefs), what can they do under current legal rules?

Although the answer will of course be specific to the circumstance, the rules we have described so far suggest the following general approach:

  1. They could invoke the protection of the U.S. Constitution if the government is singling them out for negative treatment (e.g., a government program that allows all schools except religious schools to apply for a playground safety grant) or if the government tries to get involved in a dispute over who can lead or represent a religious organization.
  1. If they live in a state with a more protective state constitutional rule or a state RFRA, or if the federal government is the actor, they can sue to require the government to show it has a compelling reason for burdening their religious practice and has written its laws or policies as narrowly as possible to avoid religious conflicts. Whether they win will depend on the specific facts of the case and the approach of the judges who hear the case.
  1. In some very specific circumstances, they can avoid litigation altogether by invoking a targeted exemption, enacted by a state legislature, that protects them.

This snapshot suggests there are many important protections of religious freedom in the law today but also some critical gaps. These gaps are most pronounced in situations where the potential protection of a religious practice depends on the judges deciding the case.

So, why do we hear so much about religious freedom and threats to religious freedom today? Are these threats real, and if so, where do they come from? In part 3, we will discuss the current climate of religious freedom in the United States, laying out prominent areas of conflict.

*The states are Alabama, Alaska, Indiana, Maine, Massachusetts, Michigan, Minnesota, New York, Ohio, Washington and Wisconsin.

** The states with statutory RFRA protections not already mentioned in the previous note are Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia.

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