The free exercise of religion after the fall: the case for intermediate scrutiny.

• Author: Smolla, Rodney A.
• Position: Symposium: Reflections on City of Boerne v. Flores

1. INTRODUCTION

   In City of Boerne v. Flores(1) the Supreme Court struck down the Religious Freedom Restoration Act of 1993(2) (RFRA or the "Act"), at least insofar as the Act is applied against state and local governments.(3) For the moment, at least, free exercise cases again are governed largely by the regime of Employment Division v. Smith,(4) under which the Free Exercise Clause is not deemed violated by laws of general applicability that happen to place substantial burdens on religion. Several Justices in Flores, however, again called for the Court to reconsider the principles of Smith.(5)

   Should the Court or Congress take up this challenge? Consider three options:

   (1) After Flores, matters should be left to rest. The law (at

   least with regard to state and local governments) has now

   reverted to the rule of Smith. Smith should be accepted as

   wisely decided, and its principle left to govern future conflicts.

   (2) After Flores, Congress should try again. Smith, an unwise

   decision, should be fought with all the resourcefulness

   that Congress can muster. Congress should pass a new law,

   "Son of RFRA." Using a combination of Congress's power to

   attach conditions on the receipt of federal largess, Congress's

   power to regulate interstate commerce, and Congress's enforcement

   power under Section 5 of the Fourteenth Amendment,

   and bolstered by a more exhaustive legislative record

   than that which supported the original enactment of RFRA, a

   new federal statute should be passed that reaches most, if

   not all, of the activities of state and local governments.(6)

   (3) Whatever Congress may attempt, the Supreme Court

   should itself reconsider the Smith rule. Rather than approach

   the issue posed by Smith as an "all-or-nothing" dilemma,

   however, in which the choice is either the strict scrutiny test

   or rational basis review, the Court should adopt the intermediate

   scrutiny standard.

   This Essay explores the third option.

2. THE CASE FOR INTERMEDIATE SCRUTINY

   The problem posed by Employment Division v. Smith and RFRA, put simply, is this: What should the proper response be to challenges brought against neutral laws of general applicability, broad proscriptions that were not enacted with religion in mind and that do not mention or appear to concern religion, but that nevertheless happen to place substantial burdens on an individual's religious exercise? Suppose a local government passes a zoning law declaring that no more than four unrelated persons may reside in a residential dwelling. Five Buddhist monks, unrelated by blood, inhabit a commodious home in a residential neighborhood, where they live a contemplative life of physical labor and meditation, comprising a small "wat," or monastery. One day, zoning officials tell the five monks that in light of the ordinance, one of them must leave. A minimum of five monks, however, is necessary to perform most sacred Buddhist rituals, and the departure of one monk will burden substantially their free exercise of religion. Must the monks buckle to the zoning law, or should they have some legally enforceable right to an accommodation of their religious practices? If some legally enforceable right to accommodation should exist, then what should its contours be?

   Congress enacted RFRA in response to the Supreme Court's decision in Smith, which involved a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits after losing their jobs because they had ingested peyote in small amounts as part of a sacramental ritual.(7) They challenged an Oregon criminal statute forbidding the use of peyote, claiming what was in substance a constitutional right to a religious exemption from an otherwise applicable criminal law.(8)

   Prior to Smith, the cases seemed to contain two different and opposing solutions to the issue. On the one hand, many decisions appeared to support the view that the Free Exercise Clause did not require exemption from the application of generally applicable laws. In Reynolds v. United States,(9) for example, the Court rejected the assertion that criminal laws forbidding polygamy could not be constitutionally applied to persons who practiced polygamy pursuant to religious command.(10) On the other hand, a number of Supreme Court decisions had appeared to support the principle that laws substantially burdening a religious practice must be justified by a compelling governmental interest and be narrowly tailored to effectuate that interest. A series of cases involving government benefits such as unemployment compensation, emanating from Sherbert v. Verner,(11) seemed to require the application of the strict scrutiny standard even to neutral laws of general applicability that only "indirectly" burdened religion.(12) In Sherbert, a Seventh-Day Adventist was discharged by her private employer because she would not work on Saturday, the Sabbath Day of her faith.(13) No law commanded the claimant to do that which was forbidden by her religion, or forbid her from doing that which her religion commanded.(14)

   Nevertheless, the Supreme Court held that the First Amendment could be violated even when the burden at issue was only "indirect:"

   But this is only the beginning, not the end, of our inquiry. For

   "[i]f the purpose or effect of a law is to impede the observance

   of one or all religions or is to discriminate invidiously between

   religions, that law is constitutionally invalid even though the

   burden may be characterized as being only indirect."(15)

   The Supreme Court in Smith resolved this split by opting for the line of precedent typified by Reynolds, holding that the Free Exercise Clause imposed no heightened constitutional burdens on government when it sought merely to enforce neutral and generally applicable laws.(16) "[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct," the Court argued, "`cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.' To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling' ... contradicts both constitutional tradition and common sense."(17)

   The Court did not overrule the opposing line of precedent, however, but instead sought to distinguish it on the grounds that the cases in that line did not involve "the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press ... or the right of parents ... to direct the education of their children."(18) In contrast, the Court in Smith explained, the case before it did "not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right."(19) This attempt to reconcile these two lines of precedent was restated matter-of-factly in Flores, as the Court summarized its ruling in Smith.(20) As to Sherbert v. Verner and its progeny, the Court in Smith attempted to cabin those cases within the principle that "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of `religious hardship' without compelling reason."(21)

   The Court's handling of prior precedent in Smith was not particularly satisfying. There is first the "hybrid right" business, and the question of why it should matter that a claim implicates more than one fundamental right, as if the Constitution were limited to two-for-one sales. The Court in Smith gave absolutely no reasons as to why the strict scrutiny test should be triggered only when a free exercise claim is coupled with some other constitutional claim. Is there some sort of constitutional chemistry at work, some sort of synergy created by the combination of ingredients, so that the free exercise claim, when joined with a privacy or free speech claim somehow activates an otherwise inert clause? Or was the Court in Smith saying something even simpler--that the Free Exercise Clause has no appreciable power of its own, at least in the absence of laws that especially target religion for discriminatory treatment? Perhaps prior cases that seemed to be grounded in the Free Exercise Clause simply were not really religion cases at all, but cases based on other rights, in which the subject matter just happened to involve religious issues.

   This explanation, more expansive than any the Court itself actually gave, is plausible for some of the precedents the Court sought to explain away. For example, Pierce v. Society of Sisters,(22) striking down a requirement that children attend a public school, was decided and explained on substantive due process grounds.(23) Although a majority of private schools then and now are affiliated with religious groups, the right to send children to private schools could be vindicated with no mention of the Free Exercise Clause at all. So too, the fiat tax on the dissemination of information, struck down in Murdock v. Pennsylvania,(24) happened to have been applied to literature distributed by Jehovah's Witnesses,(25) but easily could have been seen as a violation of the Speech Clause and its prohibitions on prior restraints.

   Cantwell v. Connecticut,(26) however, is a somewhat tougher sell. Yes, Cantwell in theory might be explained entirely in free speech terms. The Connecticut law at issue stated that no person could solicit money, services, subscriptions, or any valuable thing for any alleged "religious, charitable or philanthropic cause" without a permit from the Secretary of the Welfare Council.(27) To obtain a permit, the Secretary had to determine "whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity."(28) The law was thus a prior restraint, empowering the official in charge of issuing the license to...