In Combination: Using Hybrid Rights to Expand Religious Liberty

• Publication year: 2015

In Combination: Using Hybrid Rights to Expand Religious Liberty

Ryan S. Rummage

IN COMBINATION: USING HYBRID RIGHTS TO EXPAND RELIGIOUS LIBERTY

ABSTRACT

The First Amendment to the United States Constitution protects, among other things, the right to the free exercise of religion. In 1990, the Supreme Court held, in Employment Division v. Smith, that valid and neutral laws of general applicability do not violate the Free Exercise Clause. While this decision has reduced the amount of religious liberty protection available to claimants, the decision did leave a silver lining for religious liberty claimants in the form of hybrid rights, which involve the combination of a free exercise claim with another constitutionally protected claim. Because the Supreme Court in Smith did not adequately address hybrid rights, the question remains: when can a combination of protected rights provide religious liberty to a claimant?

Three different hybrid rights approaches have emerged: treating Smith as dicta, allowing independent claims, and allowing colorable claims. This Comment argues that the first two approaches completely foreclose the possibility of hybrid rights protection, while the colorable claim approach provides the proper avenue for religious claimants. Thus, this Comment argues that the colorable claim approach, which combines a free exercise claim with a constitutionally protected companion claim that has at least a probable chance of success on the merits, is the best approach to the hybrid rights doctrine and should be adopted by both state and federal courts.

Then, this Comment makes two arguments for the expansion of hybrid rights. First, allowing a diversity of constitutional companion claims would remain within the parameters of the Supreme Court's free exercise jurisprudence and would afford more litigants the opportunity to have their interests balanced against those of the government. Second, once a litigant has presented a proper hybrid claim, the reviewing court should balance the claimant's interests against the government's interest using the following three factors: whether the litigant is being compelled to act, whether an exemption would injure others, and whether granting an exemption would violate the Establishment Clause. If a litigant can satisfy the colorable claim approach

[Page 1176]

standard along with these three inquiries, then the litigant should be afforded an exemption from the general law.

Introduction............................................................................................1177

I. Altering the Free Exercise Landscape....................................1182

A. The Free Exercise Clause Pre-1990 ........................................ 1182
B. Employment Division v. Smith ............................................... 1184
C. Post-Smith Application ........................................................... 1187

II. Current Hybrid Rights Approaches.........................................1189

A. Dicta ........................................................................................ 1190
B. Independent Claims ................................................................. 1193
C. Colorable Claims ..................................................................... 1195

III. The Best Approach: Colorable Companion Claims...............1197

A. The Colorable Claim Approach Has the Greatest Potential to Protect ..................................................................................... 1198
B. Combining Factors Is a Common Practice for the Supreme Court ........................................................................................ 1200
C. The Colorable Claim Approach Has Offered the Most Protection in the Lower Courts ............................................... 1202

IV. Expanding the Hybrid Rights Doctrine...................................1205

A. Diverse Companion Claims ..................................................... 1206

1. Freedom of Association..................................................... 1207
2. Other Constitutional Protections ...................................... 1209

B. Relevant Factors for Consideration ........................................ 1211

1. Is the Claimant Being Compelled to Act? ......................... 1212
2. Would Granting an Exemption Injure Others? ................. 1215
3. Would Granting an Exemption Violate the Establishment Clause? .............................................................................. 1218

V. The Proper Application of the Hybrid Rights Doctrine.......1219

Conclusion................................................................................................1225

[Page 1177]

Introduction

In 1998, Christina Axson-Flynn applied for the Actor's Training Program at the University of Utah.¹ When asked during her audition if there were anything that she would feel uncomfortable saying as an actress, Axson-Flynn, a Mormon, responded that "she would not . . . take the name of God in vain, take the name of Jesus in vain, or say the four-letter expletive beginning with the letter F."² Her refusal to say any of these words or phrases stemmed from her religious beliefs.³ After the instructors tried to convince Axson-Flynn to say one of these words during the audition, Axson-Flynn stated, "I would rather not be admitted to your program than use these words."⁴

Despite her stance, Axson-Flynn nonetheless was admitted to the program.⁵ During one monologue assignment, Axson-Flynn substituted other words in place of two words she refused to say and received an "A" for her performance.⁶ Upon hearing that Axson-Flynn had omitted certain words from the monologue, one instructor told her that she would have to "get over" her language concerns and that she could "still be a good Mormon and say those words."⁷ During another assignment, Axson-Flynn objected to the use of particular words, and the instructor informed her that she would perform the scene as written, or else she would receive a grade of zero.⁸ The instructor ultimately relented, allowing Axson-Flynn to omit the language that was offensive to her, and she was allowed to omit offensive language for the rest of the semester.⁹

At the end of the semester review, Axson-Flynn's instructors informed her that her request for exemptions from using certain words was unacceptable.¹⁰ They told her, "You can choose to continue in the program if you modify your

[Page 1178]

values. If you don't, you can leave. That's your choice."¹¹ Axson-Flynn went to both the program's coordinator and the program's director about the situation, and both individuals backed the instructors' position: if she refused to say the words that she found offensive, she would have to find another program.¹²

The case of Axson-Flynn v. Johnson features many differing claims; not only do the state university's actions seem to burden Axson-Flynn's right to the free exercise of religion, but they also seem to be compelling her speech, which infringes upon another right protected by the First Amendment. This case is one of many that has emerged in the past two decades, all presenting a similar issue: how to resolve direct conflicts between government action and the right to the free exercise of religion along with another constitutionally protected right. For Christina Axson-Flynn, may her university's acting program force her to say words that she does not want to say in light of her freedoms of religion and speech?¹³

In addition to Axson-Flynn v. Johnson, questions regarding other combinations of rights have appeared over the past two decades. For example, how should a court handle a case when students challenge a state school's policy against discrimination, arguing that such a policy violates their rights to the free exercise of religion and expressive association?¹⁴ How should a court handle a case when students challenge a school policy that requires students to wear their hair short, as violating their rights to the free exercise of religion and free speech?¹⁵ Or, how should a court handle the competing interests of a same-sex couple's marriage ceremony against a photography business claiming that being forced to take pictures of the ceremony violates its rights to the free exercise of religion and free speech?¹⁶ Finally, how should a court handle a state law compelling a business to act against its religious conscience, a law closely akin to the federal contraception mandate?¹⁷ Throughout all of

[Page 1179]

these examples, the question remains: does such a combination of rights add to a litigant's chance of success? Although courts have not always looked favorably upon such combinations, this Comment asserts that they should.

The First Amendment begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."¹⁸ The second of these religion clauses, the Free Exercise Clause, allows an individual to practice his religious beliefs free from government interference. However, the Free Exercise Clause has had a tumultuous history filled with differing interpretations and levels of scrutiny.¹⁹ In 1990, the Supreme Court held that "valid and neutral laws of general applicability" do not violate a claimant's right to the free exercise of religion.²⁰ Rather than overrule previous cases that applied differing levels of scrutiny to free exercise claims, the Court distinguished these cases on the grounds that they involved a "hybrid situation."²¹

Hybrid situations, or hybrid rights claims, are claims that involve alleged violations of the Free Exercise Clause and some other "constitutional protection[]."²² Under a successful hybrid rights claim, the reviewing court applies a stricter level of scrutiny to the law at hand than rational basis review, which applies to naked free exercise claims.²³ The remedy to a hybrid rights claim usually does not involve finding a law unconstitutional; instead, all the...