Generally Applicable Law and the Free Exercise of Religion

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 1. Generally Applicable Law and the Free Exercise of Religion

Generally Applicable Law and the Free Exercise of Religion

Douglas Laycock and Steven T. Collis(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 2

II. Free Exercise of Religion in the Age of Smith .......... 2

III. Two Requirements with Distinct Content .............. 6
A. Neutrality ......................................... 6
B. General Applicability .............................. 9

IV. Elaborating General Applicability ..................... 10
A. Arguments for Minimizing the Requirement of General Applicability: Stormans v. Wiesman ....... 12
B. Reasonable Exceptions ............................ 15
C. Circular Categories and Circular Government Interests .......................................... 16
D. Secular Exceptions Not Stated in the Law's Text . . . 17

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E. Rules That Apply to Most but Not All Analogous Secular Conduct ................................... 19
F. Laws with a Single Secular Exception That Undermines the State's Interests .................. 21

V. Underlying Reasons ................................... 23
A. Value Judgments about Religion ................... 23
B. Vicarious Political Protection for Religious Minorities ......................................... 24
C. The Level of Protection ............................ 26

VI. Conclusion ............................................ 27

I. INTRODUCTION

Roscoe Pound was one of the true giants of twentieth-century American law, and it was an honor of the first magnitude for one of us to give the Roscoe Pound lecture. Pound's contributions to the law are well documented and well known.(fn1) It is less well known that he covered the first Nebraska football team for the student newspaper, that he was the very first in the long line of fanatical Nebraska fans, and that he wrote cheers and victory songs.(fn2) He wrote some of them in Latin, which would be a challenge for twenty-first century fans at Nebraska or elsewhere.

II. FREE EXERCISE IN THE AGE OF SMITH

Our topic, in the lecture and in this Article, is the free exercise of religion. Free exercise is as fundamental as any other First Amendment right, yet it has become controversial. Few Americans would admit to opposing religious liberty, but many Americans seek to minimize it. Academics question whether religious liberty has any

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modern rationale,(fn3) and many Americans affirmatively oppose religious liberty whenever it conflicts with some other interest they care about more. One of us has addressed this resistance to religious liberty elsewhere;(fn4) here, it merely sets the frame for our topic.

Opponents of religious liberty take much comfort from the Supreme Court's 1990 decision in Employment Division v. Smith.(fn5) This decision came down before much of the recent opposition to free exercise emerged; it was mostly the work of conservatives concerned about what they viewed as judicial activism. The state in Smith penalized the use of peyote in the central ritual of a Native American worship service. Under existing law at the time, the state had to show that this burden on a religious practice was necessary to serve a compelling government interest.(fn6) But Smith held that government has no duty to justify burdens on religion if the burden is inflicted by a law that is "neutral" and "generally applicable."(fn7) Smith held that banning a worship service raises no issue under the Free Exercise Clause if the ban is imposed through a neutral and generally applicable law.

Four dissenters, the religious liberty community, the larger civil liberties community, and Congress all reacted with alarm. Congress and thirty-three states have rejected the Smith standard, either by enacting Religious Freedom Restoration Acts (RFRAs) or by interpreting state constitutions to subject neutral and generally applicable laws that burden religious exercise to heightened judicial scrutiny- usually, but not universally, under the compelling interest test.(fn8) Much of this new state law remains little used and untested. RFRAs have recently become politically toxic, largely as a result of both sides in the culture wars misrepresenting what these laws do,(fn9) but most of them were passed with overwhelming bipartisan support.

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Most recent religious liberty litigation in the Supreme Court has been under the federal RFRA,(fn10) which protects "any" exercise of religion(fn11) but only against federal law,(fn12) or under a similar statute, the Religious Land Use and Institutionalized Persons Act,(fn13) which protects prisoners and religious land use against state and local law.(fn14) There are additional pockets of federal protection. The Court has held that the Free Exercise and Establishment Clauses protect, and that Smith does not apply to, a religious organization's hiring and firing of its religious leadership.(fn15) This constitutional protection for the selection of religious leaders probably applies to all or most questions of internal church governance.(fn16)

Congress and the states have enacted specific exemptions, protecting particular religious practices from particular statutes, and a few of these provide federal protection from state law. So federal statutes now protect Native American religious use of peyote,(fn17) protect medical providers from assisting with abortions,(fn18) and protect churches from state and federal claims to recover contributions made by members who subsequently go bankrupt.(fn19)

But for all the remaining cases, Smith is the relevant federal law. And Smith says that the Free Exercise Clause protects only against laws that are not neutral, or not generally applicable. So what do these concepts mean? What makes a law neutral, generally applicable, or not?

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Smith involved a state prohibition on possession of peyote, an hallucinogenic drug listed on Schedule I, which means it has no legal use. The Court treated the ban on peyote as obviously neutral and generally applicable and said little about what it meant by those words. But as we shall see, the little it did say is revealing.

The Court returned to the question three years later in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.(fn20) Santeria is an Afro-Caribbean religion that sacrifices small animals to its gods. Hialeah sought to ban the practice, without disrupting any of the myriad secular activities in which humans kill animals. There were four ordinances; one will give the flavor of them all. It was illegal to kill an animal unnecessarily, in a ritual or ceremony, not for the primary purpose of food consumption.(fn21) One indication of how the legal community initially understood Smith is that the Eleventh Circuit unanimously upheld these ordinances in a four-sentence, unpublished order.(fn22) The Supreme Court unanimously reversed, holding that the ordinances were neither neutral nor generally applicable.(fn23)

It is now a quarter century since Smith and Lukumi. The Court has said nothing further about the meaning of neutral and generally applicable law. Smith upheld the epitome of a generally applicable law-what the Court called an "across-the-board criminal prohibition" on possession of peyote.(fn24) Lukumi struck down city ordinances gerrymandered to such an extreme degree that they applied to "Santeria adherents but almost no others."(fn25)

There is an impression in some circles that Smith states the broad general rule, and Lukumi states a narrow exception. But Smith and Lukumi are both exceptional, with facts at opposite ends of the continuum. The law in Smith regulated religious use and every conceivable secular use; there were no exceptions. The ordinances in Lukumi regulated religion and nothing but religion. The Court said explicitly that laws do not have to be as bad as in Lukumi to be unconstitutional: the "ordinances fall well below the minimum standard necessary to protect First Amendment rights."(fn26)

Many cases fall between the extremes of Smith and Lukumi. Religious claimants challenge the application of laws that regulate religious conduct and some analogous secular conduct, but exempt other

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analogous secular conduct. The lower courts have disagreed about those cases, and the Supreme Court has remained silent.

Nebraska's Richard Duncan has written about this issue repeat-edly,(fn27) and one of us has written about it repeatedly.(fn28) We keep returning to the issue because it is fundamental to constitutional protection for religious liberty, and because what Justice Stevens called the "crucible of litigation"(fn29) continues to force new thinking and reveal further implications of Smith and Lukumi. We can state new insights and state old insights more clearly. The picture is not nearly as bleak for religious liberty as it was in the three years between Smith and Lukumi, when it was widely feared that the Court would never enforce its new requirements of neutrality and general applicability.

III. TWO REQUIREMENTS WITH DISTINCT CONTENT

A. Neutrality

In Smith, neutrality and general applicability mostly ran together. But Lukumi addressed them as distinct requirements in separate sections of the opinion. The ordinances were not neutral, because they "target[ed]" Santeria, their "object" was to suppress Santeria sacrifice, and they were "gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings."(fn30) These key words-target, targeting, object, and gerrymander-are pervasive in the neutrality section of the opinion.(fn31) But none of them appears even once in the section on general applicability.(fn32)

The neutrality section of the opinion also used the language of equal protection and nondiscrimination law. "At a minimum, the protections of the Free Exercise...