A blessing in disguise: protecting minority faiths through state religious freedom non-restoration acts.

• Author: Gildin, Gary S.

1. INTRODUCTION

   The diversification of American society has increased the prospect that an individual will suffer discrimination at the hands of government on the basis of religion. Our polity arguably has matured to the point where official discrimination is less likely to be inflicted through intentional wrongdoing.(1) On the other hand, the mushrooming of the number and variety of religious faiths has increased the probability that a secular law, meant to apply to the entire citizenry in a nondiscriminatory fashion, will conflict with the religious practices of adherents of non-mainstream faiths whose beliefs and practices were unknown to the legislators.

   Odd as it may seem for a nation founded in part upon the desire to be unleashed from the shackles of conformity to a single religion, the struggle for legal protection of religious liberty of minority faiths persists as we enter the new millennium. Ironically, the greatest threat to the ability of members of non-mainstream religions to adhere to their tenets arose in the past decade as a result of two decisions of the United States Supreme Court -- Employment Division v. Smith(2) and City of Boerne v. Flores.(3) Federal statutes designed to countermand the dilution of religious freedom triggered by these decisions continue to be floated, but even if passed, they face serious constitutional hurdles. The very constitutional obstacles to these federal proposals, however, afford affirmative support for state religious freedom non-restoration acts that maximize the ability of all individuals to be faithful to their religion.

2. THE DWINDLING PROTECTION OF MINORITY RELIGIOUS LIBERTY UNDER THE UNITED STATES CONSTITUTION

   Ten years ago, there was no cause to look beyond the United States Constitution to secure religious liberty for worshipers of minority faiths. As of 1990, the United States Supreme Court had consistently interpreted the Free Exercise Clause of the First Amendment(4) to afford maximum protection of all individuals whose religion was compromised by requirements of generally applicable laws. The Court solidly endorsed a strict scrutiny test to gauge the constitutionality of legislative or other governmental measures that had the purpose or effect of invading the free exercise of religion.(5) The Court's test demanded that the person claiming a constitutional deprivation first prove that she had a sincerely-held religious belief that the government had infringed. In assessing whether the plaintiff had satisfied her burden, the Court was quite solicitous of minority religious precepts. The Court refused to inquire into the centrality of the belief to the individual's religion or the validity of the individual's interpretation of that belief.(6) The plaintiff was not required to establish that her dogmas were consistent, logical or acceptable to others.(7) To the contrary, the courts were instructed to accept a belief as religious even where the article of faith was not shared by all members of the sect or was even "rank heresy to followers of the orthodox faiths."(8)

   While deferential to the individual's claimed religious belief, the Court was quite rigorous in evaluating the government's contention that the demands of civil society trump the individual's religious obligation. To sustain the burden on the religious exercise, the government had to prove both that a) it had a compelling governmental interest, and b) the government's compelling interest could not be satisfied by means less restrictive of the individual's religious beliefs.(9) The test applied even if the government in good faith enacted a general law that unintentionally and unknowingly impinged upon the practice of an individual's faith.

   1. Abrogating Strict Scrutiny for Unintended Invasions of Religious Liberty--The Court's Smith Decision

   In 1990, however, the United States Supreme Court diminished the safeguards afforded to non-mainstream faiths by the Free Exercise Clause in its 5-4 opinion in Employment Division v. Smith.(10) Smith arose out of the denial of unemployment benefits to two members of the Native American Church, who were fired from their jobs at a drug rehabilitation facility because they had ingested peyote during a church ceremony. Oregon law criminalized possession of peyote as a controlled substance and contained no exception for use of peyote for sacramental purposes. Finding that plaintiffs had been fired for work-related misconduct, the Employment Division of the Oregon Department of Human Resources ruled plaintiffs ineligible for unemployment compensation. Plaintiffs challenged the ruling, arguing that the Constitution precluded the government from conditioning public benefits on the sacrifice of religious practices.(11)

   The Supreme Court refused to apply the compelling interest/no less restrictive alternatives test to the plaintiffs' Free Exercise claim. The Court held that, in ordinary circumstances, it would sustain a neutral and generally applicable law that had the effect of burdening an individual's religious beliefs as long as the government had a rational basis for passing the law. Courts were now to apply strict scrutiny to governmental measures that invaded religion only in three limited circumstances. First, the government must continue to satisfy the compelling interest/no less restrictive alternatives test in the rare instances in which it passed a law whose object "is to infringe upon or restrict practices because of their religious motivation."(12) Secondly, courts would utilize the heightened standard of review for what the Court termed "hybrid" violations -- governmental action that violated not only religious liberty but in addition trammeled upon a second fundamental right, such as freedom of speech.(13) Finally, the Court maintained strict scrutiny for government programs that have a protocol for affording exemptions from a law of general applicability but that deny an exemption to a religious objector.(14)

   Mainstream religions will not likely suffer the erosion of religious liberty precipitated by Smith because they have the political clout to ensure that no majoritarian legislation is passed that inadvertently offends their religious tenets. Minority faiths, however, are easily victimized by uniform laws promulgated either in ignorance of, or indifference to, the fact that the laws burden their religious prescriptions.(15) Justice Scalia, writing for the majority in Smith, accepted this inequity as an inevitable by-product of the Court's approach to Free Exercise 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.(16) In her concurring opinion, Justice O'Connor condemned the majority's offhanded discounting of minority belief systems. Justice O'Connor castigated the Court's abrogation of strict scrutiny for unintended burdens on religious liberty as "dramatically depart[ing] from well-settled First Amendment jurisprudence"(17) in favor of an approach that is antithetical to the Constitution's intended solicitude for non-mainstream religious beliefs:

   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. 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.(18) B. Post-Smith Interpretations of the Free Exercise Clause--Solidifying the Erosion of Religious Freedom

   While individual Justices have volleyed attacks on Smith, prospects for judicially restoring strict scrutiny under the Free Exercise Clause remain dim. The United States Supreme Court reaffirmed the vitality of Smith in Church of Lukumi Babalu Aye, Inc. v. Hialeah.(19) The case arose out of a challenge to city ordinances that criminalized animal sacrifices. As a consequence of the ordinances, religious rituals of members of the Santeria religion, whose devotion to spirits is expressed through sacrifice of animals, were outlawed. The Church of the Lukumi Babalu Aye, whose congregants practice the Santeria religion, filed a civil action averring that these ordinances violated the Free Exercise Clause.(20)

   The Supreme Court began its analysis by endorsing the watered-down standard of scrutiny adopted in Smith -- that a law that is neutral and generally applicable but that has the effect of burdening a religious practice need not be justified by a compelling governmental interest.(21) The Court found, however, that the Hialeah ordinances were neither neutral nor generally applicable; to the contrary, the object of the ordinances was to suppress the religious practices of the followers of the Santeria faith.(22) The city council accomplished this goal by selectively burdening only sacrifices motivated by religious beliefs while authorizing the killing of animals for secular purposes.(23) Thus, the Court subjected the legislation to strict scrutiny and concluded that the City of Hialeah's ordinances failed both prongs of the operable test. The city did not have a compelling interest in outlawing religious sacrifices and did not seek to achieve its objectives by means least restrictive of religious conduct.(24)

   In his concurring opinion, Justice Souter plotted a roadmap for future litigants wishing to have the Court override Smith and restore...