Chapter 25 - § 25.5 • OTHER RELIGIOUS ACCOMMODATIONS

• Jurisdiction: Colorado

§ 25.5 • OTHER RELIGIOUS ACCOMMODATIONS

Many other areas of the law include accommodations for religious activities and religious organizations. This section discusses several primary examples. In each of these examples (and others), the availability of the accommodation turns in part on the religious character of the organization and/or activity in question. Determining this religious character raises similar issues to those discussed above with respect to tax and employment accommodations.

§ 25.5.1—Constitutional Exemptions

In addition to the exemptions included in federal, state, and local statutes, the federal constitution also offers some protection for religious organizations, which may apply to employment laws and to other areas of the law. Many religious exemptions implement concepts of liberty rooted in the Establishment and Free Exercise Clauses of the First Amendment of the U.S. Constitution. As articulated in a U.S. Supreme Court case, "[t]he essence of religion is belief in a relation to God involving duties superior to those arising from any human relation." United States v. Macintosh, 283 U.S. 605, 633-34 (1931). Similarly, to avoid excessive entanglement, the Court has consistently steered away from interpreting or making findings based on religious tenets. See, e.g., Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987); New York v. Cathedral Academy, 434 U.S. 125 (1977). The Eighth Circuit has said that "[i]t is not the province of government officials or courts to determine religious orthodoxy." Teterud v. Burns, 522 F.2d 357, 360 (8th Cir. 1975).

Free Exercise and RFRA Exemptions

The Free Exercise Clause of the First Amendment provides that Congress shall not pass laws prohibiting the free exercise of religion. Religious organizations historically have been entitled to certain accommodations under this clause. In 1990, however, the Supreme Court scaled back these accommodations in Employment Division v. Smith, 494 U.S. 872 (1990). More importantly, the court held that neutral and generally applicable laws were not unconstitutional as applied to religiously mandated activities.

Congress responded to the Court's decision in Smith by passing the Religious Freedom Restoration Act (RFRA). See 42 U.S.C. § 2000bb. The RFRA provides that a law may substantially burden religious exercise only in a way that is the least restrictive means of furthering a compelling state interest. Although the U.S. Supreme Court held that the RFRA could not be applied to state laws, see City of Boerne v. Flores, 521 U.S. 507 (1997), it still applies to generally applicable laws passed by the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). Indeed, the U.S. Justice Department has issued an opinion that faith-based hiring restrictions in federal laws may be invalid under the RFRA.

Free Speech Exemptions

Religious organizations generally have rights to expressive association under the Free Speech Clause of the First Amendment. That is, implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of religious ends. See Roberts v. United States Jaycees, 468 U.S. 609 (1984).

In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the U.S. Supreme Court held that the Boy Scouts organization was entitled to exclude a leader from the organization when it learned that he openly advocated a perspective on sexual activity that the Boy Scouts opposed. The New Jersey Supreme Court had previously held that the Boy Scouts were required to retain the leader because New Jersey law prohibited the Boy Scouts as a place of public accommodation from discriminating on the basis of sexual orientation. See Dale v. Boy Scouts of Am., 160 N.J. 562 (1999).

To the extent a religious organization engages in some form of religious expression, its right to associate through employment with...