On the legal standard for evaluating free exercise claims in the context of sex offender civil commitment.

• Author: Bogos, Benjamin J.

INTRODUCTION

Generally, courts have a variety of readily available legal standards at their disposal to analyze constitutional claims relating to the free exercise of religion. However, the recent surge of free exercise litigation brought by those who have been statutorily classified as sexually violent predators (SVPs) and who are held in indefinite civil confinement appears to manifest a significant lacuna in this regard; while analogous to other contexts for which a free exercise legal framework is well established, the context of SVP civil commitment is unique, and none of the existing legal standards clearly apply. As a result, courts are divided in their determination of the applicable legal standard for the evaluation of free exercise claims brought by civilly committed SVPs, with some courts applying an already existing standard developed for an analogous context, others modifying an existing standard, and others adopting a new approach entirely.

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (1) The latter of these two proscriptions, the Free Exercise Clause, means primarily that an individual has "the right to believe and profess whatever religious doctrine one desires." (2) Nevertheless, the exercise of religion often includes the performance of physical acts; and actions, unlike purely spiritual beliefs, are properly within the scope of government regulation. (3)

The extent to which religiously motivated conduct is protected from government interference or restriction depends on the applicable legal standard. The determination of the applicable legal standard, in turn, depends on the source of law under which a particular claim is brought. Different legal standards are used, for example, for constitutional free exercise claims brought under the First Amendment, and statutory free exercise claims brought under more permissive federal or state laws.

The determination of the applicable legal standard further depends on the factual context in which a religious practice occurs. For example, the Supreme Court has established one legal standard for "ordinary" free exercise claims brought by free citizens, and another standard for similar claims brought by convicted prisoners in the specialized context of incarceration.

But the context of sex offender civil commitment is unique. Committed sex offenders are confined in a restrictive environment similar to a prison. However, whereas the involuntary commitment of prisoners is a form of criminal punishment, the commitment of SVPs is nonpunitive in nature, and is justified solely on civil grounds. (4) Further, the established constitutional analysis for the evaluation of free exercise claims in the context of prison presupposes the existence of a penological government interest in the restriction of religious conduct: No such interest or rationale is present in the context of civil confinement. In addition, the Supreme Court has not established any comparable analytical framework for the evaluation of free exercise claims in the unique context of sex offender civil commitment.

Accordingly, there is a lack of uniformity among lower courts in their analytical approach to such claims. Courts diverge in their selection of an applicable legal standard, and, even where they use the same standard, they often interpret and apply that standard differently. These dual points of divergence--the standard applied and the manner of its application--are intertwined. In some cases, for example, a differing judicial interpretation of a single standard may, for practical purposes, be a little different from a distinct legal approach altogether. Whether a differing approach is merely a shift in the manner of application of a common standard, or whether it constitutes an independent standard that is different in kind, is an issue of classification that is outside the scope of this Note, which focuses primarily on a practical assessment of the state of the law and the possible course of its future development. Consequently, for the sake of clarity, this Note simply refers to differing legal trends as "approaches" or "standards."

Beneath the apparent dissonance of legal approaches employed to address the novel issue of free exercise in the context of sex offender civil commitment, a survey of case law on the issue reveals certain common underlying themes in legal analysis. The abstraction of these unifying themes or characteristics, which are sometimes little more than distinct emphases in a court's reasoning, is useful in classifying the current spectrum of legal approaches, and in identifying general trends that may be predictive of the future direction of the law.

The purpose of this Note is to identify, explain, and evaluate the differing legal approaches used by courts in their analysis of free exercise claims brought by civilly committed SVPs. These different approaches towards free exercise claims in the context of SVP civil confinement have not evolved in a vacuum; they draw their terminology, rationales, and logic from the entire body of free exercise law. Therefore, Part I of this Note will provide an overview of free exercise law in general. Part II deals with the application of free exercise law in the context of prison, the setting to which SVP civil commitment is most often analogized for purposes of free exercise. Part III surveys and evaluates the various legal approaches that courts use to analyze free exercise claims in the unique context of sex offender civil commitment. Part IV concludes by reaffirming the inadequacy of existing legal standards for free exercise claims in the context of SVP civil commitment, and highlights the need for the adoption of a new context-specific standard that adequately balances the government's interest in confining dangerous sex offenders with the interest of committed SVPs in the free exercise of religion.

1. OVERVIEW OF FREE EXERCISE IN GENERAL

   The current legal standard for ordinary claims brought under the Free Exercise Clause was established by the Supreme Court in Employment Division v. Smith. (6) In Smith, two employees were terminated from their jobs because they had ingested peyote in violation of Oregon law, as part of a religious ceremony of the Native American Church. (7) The Employment Division denied the employees unemployment compensation on the grounds that the termination was justified for work-related misconduct. (8) The employees claimed that the denial of benefits violated their right to free exercise under the First Amendment. (9) The Oregon Supreme Court ruled in their favor, and the United States Supreme Court reversed. (10)

   In an opinion written by Justice Scalia, the Court 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...." (11) The Court reasoned that while government has no authority to interfere with religious beliefs, it does have the authority to regulate actions, even where such regulation might interfere incidentally with a particular religious practice. (12) To hold otherwise would enable "every citizen to become a law unto himself." (13) Thus, under Smith, a law cannot violate the Free Exercise Clause under the First Amendment unless it targets or singles out a certain religion for unfavorable treatment; such targeting would be present, for example, if a law prohibited an action only when the action is "engaged in for religious reasons, or only because of the religious belief that [it] display[s]." (14)

   The Smith Court expressly rejected a standard under which the government would have to justify a neutral law that incidentally burdens certain religious conduct by showing that the law furthered a "compelling government interest." (15) However, if a law is not neutral or of general applicability, then it must (and may) be justified by a compelling governmental interest, and it must be "narrowly tailored to advance that interest." (16)

   In sum, when addressing an "ordinary" free exercise claim brought under the First Amendment, a court must first determine whether a law or government regulation interferes with the claimant's right to free exercise. (17) Interference is present where the government action compels the claimant to act in a way that violates his sincerely held religious beliefs. (18) The next step is to determine whether the law is a neutral law of general applicability. If it is, then the claimant is entitled to no relief; but if it is not, then the claimant is entitled to relief only if the law is not narrowly tailored to advance a compelling state interest.

2. FREE EXERCISE IN SPECIAL CONTEXTS: PRISON AND INSTITUTIONAL SETTINGS

   1. Prisoner Claims Under the First Amendment: The Turner Test

      Prisoners do not enjoy the same degree of constitutional protections as free persons, and the considerations underlying the penal system necessarily entail the "withdrawal or limitation of many privileges and rights...." (19) Nevertheless, while prisoners' rights are diminished by the exigencies of the prison setting, the "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," (20) and prisoners retain certain fundamental constitutional guarantees, including the right to free exercise of religion. (21)

      The current legal standard for evaluating constitutional claims brought by prisoners, including free exercise claims under the First Amendment, was established by the Supreme Court in Turner v. Safley. (22) Cognizant of the rights of prisoners and the pressing need for deference to the "professional expertise of corrections officials," (23) the Court sought to develop a standard that "is responsive both to the policy of judicial restraint regarding prisoner complaints and [to] the need to protect...