Addressing the hybrid-rights exception: how the colorable-plus approach can revive the free exercise clause.

• Author: Lu, Hope

INTRODUCTION I. THE HYBRID-RIGHTS CONTROVERSY A. The Basic Axiom of Free Exercise Jurisprudence B. The Smith Qualifications 1. The Hialeah Exception 2. The "Individualized Exemption" 3. The Hybrid-Rights Exception II. THE CIRCUIT SPLIT: LOWER COURTS' CONFUSION REGARDING THE HYBRID-RIGHTS EXCEPTION A. The Refusal-To-Recognize Approach B. The Independently-Viable-Claim Theory C. The Colorable-Claim Standard D. "Open Recognition" Approaches 1. Interdependent Considerations 2. Per Se Delineations 3. Completely Open Approaches III. ARGUING FOR THE EXCEPTION: A NOVEL LEGAL APPROACH A. Policy Arguments for Full Recognition of the Hybrid-Rights Exception B. Evaluating Other Approaches 1. Arguing Against the Refusal-to-Recognize Approach 2. Arguing Against Two of the Open Recognition Approaches 3. Arguing Against the Independently-Viable-Claim Theory C. Arguing for the Colorable Claim Requirement--with a Twist CONCLUSION "[I]n this land of equal liberty, it is our boast, that a [person's] religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining and holding the highest offices that arc known in the United States."

--George Washington *

INTRODUCTION

The First Amendment provides the language for the Free Exercise Clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (1) Although the definition of religion and the scope of the Free Exercise Clause have been the subject of much contention for centuries, the last decade has seen a drastic shrinkage in the scope of the Free Exercise Clause and in the protection of individuals' rights to freely practice their religion in the face of governmental regulations. (2) The deflation of the Free Exercise Clause was initiated by the United States Supreme Court in its 1990 decision Employment Division, Department of Human Resources of Oregon v. Smith, (3) which the Court subsequently affirmed in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. (4) Now we are faced with a fundamental constitutional question: What is left of the Free Exercise Clause? Because case law and scholarly discussion regarding the scope of the Free Exercise Clause vary greatly, (5) this question requires further examination.

The scope of this Comment narrowly reviews and addresses a qualification to the generally accepted Smith rule known as the hybrid-rights exception, which states that free exercise claims are deserving of heightened scrutiny if they are combined with an independent, constitutional claim. This doctrine, developed by the Supreme Court in Smith, has caused courts and legal scholars to suffer considerable confusion and criticism. Some courts have contended that since the hybrid-rights exception is dicta in Smith, courts should wait until the Supreme Court provides more guidance. Other courts have attempted to apply the hybrid-rights exception but have not done so successfully. A few courts have even stated that the hybrid-rights theory is illogical and have criticized the Smith majority for seeking to distinguish Smith from precedent using the hybrid-rights exception.

This Comment addresses the hybrid-rights qualification to the Smith axiom and argues for a specific approach to the hybrid-rights exception through a novel set of lenses. Part I introduces the current free exercise legal framework and the hybrid-rights exception. Part II presents the lower courts' confusion with interpreting the Supreme Court's hybrid-rights exception. Part III suggests a novel view for how the hybrid-rights doctrine should be interpreted. This Comment concludes by arguing that the hybrid-rights theory can breathe life back into the Free Exercise Clause so long as courts apply strict scrutiny to state action that restricts the free exercise of religion where the action gives rise to a separate, colorable, and interdependent constitutional claim.

1. THE HYBRID-RIGHTS CONTROVERSY

   The constitutional definition of religion and the scope of the Free Exercise Clause have been controversial topics. (6) This Part reviews the current status of the Supreme Court's free exercise framework, which sets forth the basic axiom of Smith and then the qualifications to Smith: (1) the Hialeah exception, (2) the individualized exemption, and (3) the hybrid-rights exception.

   1. The Basic Axiom of Free Exercise Jurisprudence

      The basic axiom of free exercise jurisprudence is found in Employment Division v. Smith, which held that the Free Exercise Clause cannot be used to challenge a neutral law of general applicability. (7) Smith, however, was seen by many as a drastic change from the decades of Supreme Court free exercise jurisprudence before it. (8) Some commentators subscribe to the idea that free exercise rights received vigorous strict scrutiny protection before Smith and that Smith was a radical departure from previous precedent. (9) Other scholars and courts have argued that the standard in Smith was the same as the standard in most cases even prior to the 1990 decision. (10) Regardless of the camp to which one subscribes, free exercise jurisprudence has been a contentious area for decades. (11)

      In 1963, the Supreme Court held in Sherbert v. Verner (12) that strict scrutiny was the appropriate test in assessing laws burdening religious freedom. (13) The Court concluded that denying unemployment benefits to a Seventh-day Adventist who quit her job instead of working on Saturday Sabbath imposed a substantial burden on her because she had to pick between her job and her faith. (14) Applying strict scrutiny, the Court held that the government did not have a compelling governmental interest and that to deny benefits to the plaintiff violated her free exercise rights. (15) However, strict scrutiny as the standard for free exercise claims came to a screeching halt in 1990 with the Supreme Court's decision in Smith.

      In Smith, the defendants were fired by a drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, as part of a religious ritual for the Native American Church. (16) Oregon law prohibited the "knowing or intentional possession of a 'controlled substance'" unless a medical practitioner authorized amt prescribed such usage. (17) The Court concluded that the Free Exercise Clause did not preclude the state from prohibiting peyote use for religious purposes, and therefore the denial of unemployment benefits was constitutional. (18)

      The Smith Court addressed the change from the previous Sherbert standard, which required governmental actions that substantially burden a religious practice to be justified by a compelling governmental interest. (19) The Court stated that the Sherbert test had been applied to invalidate state unemployment compensation rules in three instances, but outside the unemployment-benefit context, the Court had never used the Sherbert test to invalidate any governmental action. (20) The Smith Court also stated that they "would not apply [the Sherbert test] to require exemptions from a generally applicable criminal law." (21) Thus, the Smith standard became the basic axiom of free exercise jurisprudence.

   2. The Smith Qualifications

      There are three qualifications to the Smith axiom: (1) the Hialeah exception, (2) individualized exemptions, and (3) the hybrid-rights exception. This Part addresses each road around Smith, emphasising the hybrid-rights exception.

      1. The Hialeah Exception

         The one Supreme Court decision that has interpreted and applied Employment Division v. Smith is Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah." (22) In Hialeah, the Court held that a Florida ordinance, which barred "[killing] animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed," was unconstitutional because the law's clear purpose was to prohibit a religious practice. (23) The ordinance was enacted as a response to the Santeria Church's announcement that it was establishing a school, cultural center, and museum to bring its practices, including the ritual sacrifice of animals, into the open. (24)

         The Court ruled that the law was not one of "general applicability" because the ordinance did not prohibit other animal killings besides religious sacrifice. (25) The Court also concluded that the law lacked neutrality because its objective was to stop the practice of the Santeria religion. (26) Since the government could achieve "[t]he proffered [public health] objectives" without burdening the Santeria practices, the law was unconstitutional. (27) Thus, in Hialeah, the Court reaffirmed Smith, stating that even though a neutral and generally applicable law "has the incidental effect of burdening a particular religious practice," the law does not have to be "justified by a compelling governmental interest." (28)

         The conclusion of Smith and its application in Hialeah yield the current state of free exercise jurisprudence. Even if a law encumbers religious practices, as long as the law does not single out religious practices for punishment and is not motivated by the desire to interfere with the individual's right to practice the religion, the law will likely be considered constitutional under Smith. Free exercise rights are not violated by a neutral law of general applicability so long as rational basis review is satisfied. Conversely, a law that is not of general applicability will be found unconstitutional if it does not meet strict scrutiny.

      2. The "Individualized Exemption"

         The "individualized exemption" qualification to the basic Smith rule was discussed in the Smith decision. (29) This exception stands for the proposition that if a state has a facially neutral law with a system of individualized exemptions, then that state may not refuse to extend that system of exemptions to cases of religious hardship without a compelling reason. The Supreme Court has used Sherbert and Thomas as examples of individualized...