Frederick Mark Gedicks, the United States

• Citation: Vol. 19 No. 2
• Publication year: 2005

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN

THE UNITED STATES

Frederick Mark Gedicks^*

To speak of the "permissible scope" of "legal limitations" on religious liberty is to use the syntax in which religious liberty guarantees are written in Europe. Such guarantees usually state a general definition of the freedom of religion, and then set forth a variety of circumstances under which the government may properly limit that liberty.¹The American law of limitations on freedom of religion is not easily stated in this grammar, because freedom of religion in the United States is less a liberty right than an equality right. Since the Supreme Court's 1990 decision in Employment Division v. Smith,²the U.S. Constitution has been understood to protect against government action that intentionally burdens religious liberty, but not against action that incidentally burdens religious liberty.³In other words, government action that purposely targets religious activity for a regulatory burden is constitutionally invalid, whereas government action that burdens religious activity along with similarly

Id. situated secular activity as the consequence of the government's pursuit of a legitimate regulatory goal is presumptively valid. Articulated in terms of "limitations," the law in the United States is that religious activity generally may be limited for any reason other than anti-religious animus. Although this appears to leave freedom of religion fully exposed to government insensitivity or indifference to incidental burdens that its actions may impose on religion, the equality-shaped contours of constitutional doctrine in the United States buffers religious beliefs and practices from such burdens by enabling believers in many circumstances to claim the same protection as that afforded by government to the beliefs and practices of those committed to secular ideologies and moralities.

I. SOURCES OF LAW ESTABLISHING AND LIMITING THE MANIFESTATION OF

RELIGIOUS BELIEF

A. International Law

International human rights law has played virtually no role in the construction of doctrine relating to religious freedom in the United States. Supreme Court majority opinions rarely cite international human rights documents as authority for holdings bearing on the existence or scope of individual constitutional rights.⁴As one American scholar has put it, lawyers, judges, and scholars in the United States normally limit themselves to

"debating the meaning and significance of our Constitution, our history, and our precedents."⁵Although the United States was prominent in the early effort to universalize fundamental human rights,⁶its current influence in the international rights movement has waned as it has increasingly sought exemptions from or has simply refused to ratify major covenants and conventions designed to protect or to expand the protection of fundamental human rights.⁷

B. Constitutional Law

Religious freedom in the United States is textually rooted in the Establishment and Free Exercise Clauses (often referred to collectively as the "Religion Clauses") of the First Amendment to the U.S. Constitution.⁸

Although the substantive content of the rights protected by the Religion Clauses remains highly contested, the Court's recent doctrine suggests that, at the least, the Clauses render presumptively invalid laws that single out a particular religion or religion generally for special burdens.⁹A number of other clauses of the Constitution also include religious freedom under the umbrella of broader rights protections. For example, the Supreme Court has repeatedly held that the protections of the Speech Clause of the First Amendment, which prohibits government action abridging the freedoms of expression and association,¹⁰extend to religious speech and association.¹¹

Many of the Court's early decisions under the Speech Clause involved religious speech, particularly by Jehovah's Witnesses.¹²

Similarly, the Equal Protection Clause of the Fourteenth Amendment provides constitutional protection against religious discrimination.¹³Suspicion of government action that discriminates against particular religious denominations is rooted in the very origins of modern equal protection doctrine.¹⁴Contemporary decisions continue to group religious traits with racial ones as examples of inherently "suspect" or "arbitrary" bases of classification which are presumptively unconstitutional,¹⁵although the Court has never actually invalidated any government action on the ground that it classifies on the basis of a generic or general "religion," as distinct from a classification based on a particular religion or religious denomination.¹⁶

C. Codes and Statutes

The two most important federal statutes protecting religious freedom are the Religious Freedom Restoration Act of 1993 ("RFRA")¹⁷and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA").¹⁸RFRA attempted to "restore" the law of religious exemptions that was in place prior to Employment Division v. Smith,¹⁹by imposing on federal and state governments the requirement of showing that any burden which they impose on religious activity is necessary to a compelling government regulatory interest, even when the burden is unintentional or incidental.²⁰RFRA was declared unconstitutional as applied to state government action in City of Boerne v. Flores.²¹Although language in Boerne suggested that RFRA might be unconstitutional as applied to federal as well as state government action,²² appellate courts that have considered the issue have upheld application of the statute against federal action.²³

Enacted in the wake of Boerne's invalidation of RFRA, RLUIPA reinstated the compelling interest test for government action that burdens religious land uses and the religious practices of incarcerated persons in connection with a program or activity that receives federal funds or that affects interstate commerce.²⁴RLUIPA also invalidates all government action that burdens religious land uses and religious practices of prisoners, when comparable secular land uses and secular prisoner practices are not subject to such burdens.²⁵Federal appellate courts²⁶and district courts²⁷are divided on the

Id. constitutionality of the statute, but the Supreme Court recently upheld a portion of the statute.²⁸

The constitutions and statutes of some states are also significant sources for the protection of religious exercise. The courts of some states have interpreted their own state constitutional provision protecting the free exercise of religion to mandate application of the pre-Smith compelling interest test to state laws that incidentally burden religious activity,²⁹and one state amended its constitution to require application of the compelling interest test to such laws.³⁰

A number of states have enacted statutes providing for similar protections.³¹

Under the Supremacy Clause of the U.S. Constitution,³²however, federal law preempts contrary state constitutional or statutory law,³³so these state constitutions and statutes provide no protection against incidental burdens on religious exercise imposed by federal government action.

Finally, federal and state laws often include protection for religious activity as part of a larger statutory or regulatory initiative aimed at a widespread and largely secular problem. For example, the federal Civil Rights Act of 1964 generally includes religion among the prohibited bases of discrimination in employment,³⁴public education,³⁵and public accommodations;³⁶the Fair

Housing Act includes religion among the prohibited bases of discrimination in housing;³⁷and federal tax laws exempt qualified religious organizations from the obligation to pay income tax as part of a general statutory exemption of nonprofit corporations and groups.³⁸Federal laws also often provide exemptions for religious organizations or individuals from generally applicable laws that burden religious exercise. For example, the Civil Rights Act exempts qualified religious employers from its general prohibition on religious discrimination when religious affiliation is a "bona fide occupational qualification" for an employment position,³⁹and federal bankruptcy laws exempt religious tithes from the so-called "preference" period during which gifts or disproportionate creditor payments are voidable.⁴⁰

D. Other Sources of Law

In the U.S. system, with its sparse constitutional text and a common law tradition inherited from England, judicial decisions are the primary source of law relating to permissible limitations on religious activity.⁴¹Administrative regulations and guidelines also play an important role, especially those issued by agencies charged with enforcement of anti-discrimination laws.⁴²

Finally, the President may exercise a certain degree of control over the various Cabinet departments and much of the federal bureaucracy without consulting Congress. Presidential directives, proclamations, and other such acts, known as "executive orders," have the force and effect of law when they are founded upon constitutional or federal statutory authority.⁴³For example, on his own authority as chief executive of the United States, President Bush has ordered all federal executive departments and agencies to comply with the so-called "charitable choice" provisions, which generally permit religious social service agencies and other religious groups to compete for federal social welfare grants without sacrificing their religious identity.⁴⁴Executive orders are thus an important source of law in cases involving burdens on religious liberty imposed by federal departments, agencies, and other executive actors.

E. Priority of Laws

At the apex of the hierarchy of laws in the United States sits the federal Constitution, followed by federal statutes, and then regulations promulgated under the authority of such statutes. Executive orders are difficult to place in this hierarchy. Obviously, executive orders...