Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 1178. Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty

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Richard F. Duncan*

Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty

TABLE OF CONTENTS

I. Introduction ..................................................... 1179
II. The Transfiguration of Sherbert and Its Progeny..... 1180
A. The Sherbert Line of Cases ...................... 1180
B. The Transfiguration of Sherbert ................. 1184
C. A Categorical Rule: An Individualized Process for
Allocating Governmental Benefits and Burdens Is
Not Generally Applicable ..................................... 1186
III. Protecting Religious Liberty Under the Categorical
Rule ........................................................... 1190
A. Some Thoughtful Decisions ................................... 1190
1. The Tenafly Eruv Case .................................... 1190
2. The Case of the Acting Student Who Refused To
Curse God ................................................ 1192
3. The Case of the College Freshman Who Wanted
To Live Off Campus ....................................... 1194
4. The Case of the Native American Holy Man and
His Black Bears .......................................... 1197
B. The Categorical Rule Applied ................................ 1198
IV. Conclusion ...................................................... 1202

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I. INTRODUCTION

In its 1990 decision in Employment Divison v. Smith,(fn1) the United States Supreme Court dramatically transformed the landscape of religious liberty by holding that, as a general rule, the Free Exercise Clause(fn2) "does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability'"(fn3) even if the law prohibits conduct that his or her religion requires or requires conduct that his or her religion forbids. Although the general rule of Smith thus leaves the practice of religion unprotected against restrictive laws that are both neutral and generally applicable, the Free Exercise Clause continues to protect religious liberty under a number of exceptions recognized by the Court in Smith . Most significantly, as the Court expressly emphasized in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,(fn4) "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny."(fn5) Under this doctrine, underinclusive laws that fail to pursue legislative ends with equal vigor against both religious practice and analogous secular conduct are not governed by Smith 's general rule, but instead are subject to strict scrutiny under Lukumi. (fn6)

Although I am one of many religious-liberty scholars who have criticized the Court's holding in Smith,(fn7) Alan Brownstein recently characterized me as someone who has "started to make the best" of Smith by "trying to build a shield for religious practices and institutions from the bones the Court tossed to religious liberty in deciding that case."(fn8) I plead guilty to this charge, and the purpose of this Article is to analyze one of those "bones"--one which, I believe, has quite a bit of meat on it for the protection of religious liberty in the wake of Smith . In particular, this Article will focus on a landmark pre-Smith decision, Sherbert v. Verner,(fn9) which was transformed--but not overruled--by Smith and survives as an important source of situational religious liberty.

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II. THE TRANSFIGURATION OF SHERBERT AND ITS PROGENY

A. The Sherbert Line of Cases

For nearly three decades prior to Smith, the Court's landmark decision in Sherbert was widely understood as standing for the principle that "government may not make or enforce any law that `substantially burdens' religiously motivated conduct unless it is a narrowly tailored means of achieving a compelling state interest."(fn10) At least in theory, this doctrine, sometimes referred to as the religious "conduct exemption,"(fn11) was highly protective of religious liberty. However, as Ira Lupu has suggested, the strict scrutiny applied by the Court in free exercise cases was all-too-often "strict in theory, but ever-so-gentle in fact."(fn12) In practice, the Court "only rarely sided with the free exercise claimant,"(fn13) and explained these results sometimes by denying that the governmental scheme constituted a "burden" on religious liberty,(fn14) sometimes by concluding that the governmental interest was

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"compelling" and thus justified a burden on religious liberty,(fn15) and sometimes because the free exercise claim was "made within the confines of strictly controlled government institutions,"(fn16) such as prisons(fn17) or the armed forces.(fn18)

Interestingly, Sherbert (fn19) was the first in a line of cases that protected religious liberty in the context of unemployment benefits.(fn20) In Sherbert, a member of the Seventh-day Adventist Church was denied unemployment benefits because her unwillingness to accept employment that required her to work on Saturdays triggered a provision of the South Carolina Unemployment Compensation Act that disqualified applicants who failed, without "good cause," to accept "suitable work" offered to them.(fn21) Sherbert's religiously motivated reason for refraining from work on her Sabbath was not considered "good cause" for her unemployment.(fn22)

The Court held that the denial of benefits forced Sherbert "to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand."(fn23) This, said the Court, was equivalent to a fine imposed by South Carolina on Saturday worship and triggered strict scrutiny under the Free Exercise Clause.(fn24) Although standing alone this coercive burden on religious exercise was sufficient to trigger the protection of strict scrutiny under the First Amendment, the Sherbert opinion contains dictum noting that "[t]he unconstitutionality of the disqualification of the Sabbatarian [was] . . . compounded"(fn25) by the fact that South Carolina law expressly protected employees who are conscientiously opposed to work on Sunday from being required to work on Sundays.(fn26)

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In Thomas v. Review Board,(fn27) Thomas, a Jehovah's Witness whose religious beliefs prevented him from participating in the manufacture of weapons,(fn28) was placed in a crisis of conscience when his employer transferred him to a department that produced turrets for military tanks.(fn29) When his efforts to locate a position in a nonmilitary department of the company failed, Thomas requested a layoff, which was denied by his employer. Thomas promptly terminated his employment and applied for unemployment benefits.(fn30) Under Indiana's unemployment compensation act, a person who voluntarily terminated employment without "good cause" was ineligible for benefits, and Thomas was denied payments because a termination motivated by religious conscience did not satisfy the "good cause" requirement of Indiana law.(fn31)

Chief Justice Burger's majority opinion followed Sherbert, holding in Thomas that a State may not condition "receipt of an important benefit upon conduct proscribed by a religious faith."(fn32) Although the Court did nothing more than apply the Sherbert rule to a similar set of facts in Thomas, it is significant that Indiana law, unlike South Carolina's preference for Sunday over Saturday worship in Sherbert, did not treat majority religions differently from minority religions.(fn33) Thus, Thomas appears to stand clearly for the rule that a State may not impose a substantial burden on the free exercise of religion absent justification under a strict scrutiny standard of review.

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However, at least some members of the Court soon began to view Sherbert and Thomas as decisions protecting religiously motivated conduct against "unequal treatment"(fn34) rather than as a preferred liberty. For example, in Bowen v. Roy,(fn35) the Court upheld a requirement that applicants for certain welfare benefits provide a Social Security number as a condition of eligibility, notwithstanding their religiously motivated objections to the use of Social Security numbers. Basically, the Court held that there was no legally cognizable burden on the free exercise of religion(fn36) because "[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens."(fn37) In a portion of his Bowen opinion joined only by Justices

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Powell and Rehnquist, Chief Justice Burger distinguished Sherbert and Thomas as cases protecting religiously motivated actions from discriminatory treatment:

The statutory conditions at issue in [Sherbert and Thomas] provided that a person was not eligible for unemployment compensation benefits if, "without good cause," he had quit work or refused available work. The "good cause" standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be "without good cause" tends to exhibit hostility, not neutrality, towards religion.(fn38)

In Hobbie v. Unemployment Appeals Commission,(fn39) the third in the Sherbert line of unemployment benefits decisions, Paula Hobbie was employed as an assistant manager of a retail jewelry store. In April 1984, she informed her supervisor that she was joining the Seventh-day Adventist Church and thus no longer would be available for work on her Sabbath, i.e., from sundown Friday to sundown Saturday.(fn40) Although she...