FREE EXERCISE AND LAWS OF GENERAL APPLICATION INDEPENDENT GAY FORUM NOVEMBER 13, 2016

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1 FREE EXERCISE AND LAWS OF GENERAL APPLICATION INDEPENDENT GAY FORUM NOVEMBER 13, 2016 SCOPE This is a brief summary of the Sherbert/Yoder/Employment Division/Bourne case lines and the Religious Freedom Restoration Act of prepared for the Independent Gay Forum. BACKGROUND The First Amendment prohibits three types of governmental action: (1) laws "abridging the freedom of speech, or of the press", commonly referred as the "Right to Free Speech"; (2) laws abridging "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances", commonly referred to as the "Right of Assembly" and/or the "Right to Petition"; and (3) laws "respecting an establishment of religion, or prohibiting the free exercise thereof", commonly referred to as "Freedom of Religion". The "Freedom of Religion" part of the Amendment has two clauses, commonly referred to as the "Establishment Clause" and the "Free Exercise" clause. The two clauses have different purposes and restrict the government in different ways. The "Establishment Clause" comes into play when the government or a government official takes an action that promotes religion and/or a particular religion (as in cases where a high school principal uses the intercom system to lead a morning prayer "in the name of Jesus", or a government official posts the "Ten Commandments" in a public courthouse) and is not at issue in the cases discussed in this summary. The "Free Exercise Clause" comes into play when the government enacts a law or takes an action that prohibits or restricts a religious practice (as in cases prohibiting the use of peyote in religious services), or compels an individual to act contrary to his or her religious beliefs (as in cases requiring Quakers to serve in the military). The boundaries of the "Free Exercise Clause" are at issue in the cases discussed in this summary. The area law is complex and has many case lines weaving in and out of different fact situations and/or contexts. For example, the "Free Exercise Clause" is treated differently in a military context than it is treated in a civilian context, treated differently when minors are involved than it is when adults are involved, and so. I raise that only to point out that it is very easy to get lost in the bramble bush when it comes to "Freedom of Religion" cases, ignoring distinctions that are critical in understanding the decisions. The cases, fact situations and contexts in which we have been discussing the "Free Exercise Clause" assume adult, individual civilians, living and operating in a civilian context, and action by the government or a government official that prohibits or restricts a religious practice or compels an individual to act contrary to his or her religious beliefs. EARLY CONFLICTS AND CASES In the early days of the Republic, when the Free Exercise clause was understood to limit government prohibition of religious services/rites but not extend beyond that prohibition, and when government was smaller and laws were fewer, conflicts between the government and individuals involving Free Exercise were few and far between, typically limited to conflicts between the government and Quakers over military service. The earliest Supreme Court case of any importance was Reynolds v. United States (1879), a case dealing with the prosecution of a polygamist under federal law. The polygamist, a Mormon, claimed protection under the Free Exercise Clause. The Court upheld the constitutionality of the law and the government's prosecution of PAGE 1 OF 11

2 the polygamist. The Court read the Free Exercise Clause as protecting religious practices, but not religious practices which were crimes. Within legal circles, the Reynolds decision was understood to hold that although religious exercise is protected in general (that is, protection is not confined to religious services/rites) under the First Amendment, the Free Exercise Clause does not prevent the government from passing laws of general application that have an incidental impact on specific religious practices. As the role of government expanded in the 19 th Century, conflicts between government and religious belief/practice became more common, and Free Exercise cases became more common. Between the mid-1930's and the mid-1950's, a cluster of cases, commonly known as the Jehovah's Witness cases, were decided by the Court. The most significant among the forty-odd cases decided during those years were (1) Lovell v. City of Griffin, in which the Supreme Court held that cities could not require permits for the distribution of religious pamphlets, (2) Schneider v. Town of Irvington, in which the Supreme Court invalidated anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets, (3) Cantwell v. Connecticut, which struck down a law which allow government officials to determine what was, and what was not, a religion, (4) Fowler v. Rhode Island, in which the Court ruled a law that prohibited religious preaching in a public park did not meet constitutional muster, and (5) West Virginia State Board of Education v. Barnette, in which the Court held that students could not be compelled to recite the Pledge of Allegiance or salute the flag. The Jehovah's Witness cases carved out exceptions to the Reynolds holding that the Free Exercise Clause does not prevent the government from passing laws of general application that have an incidental impact on specific religious practices, but the Court had not, as yet, articulated a clear constitutional standard for resolving cases involving conflicts between laws and government actions and religious practice. SHERBERT V. VERNER (1963) In Sherbert v. Venner (1963), the Court articulated a three-part standard for determining the constitutionality of laws and government actions that impacted religious belief and practice. The Sherbert test greatly expanded the scope of religious freedom in the United States in cases where laws and/or government action directly impacted religious practice, although the Reynolds holding remained the law of the land in cases involving laws of general application. The Court summarized the facts of the case as follows: [Adele Sherbert] a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant's application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court. At issue was the question of whether South Carolina could require Sherbet to accept work on the Sabbath as a condition of obtaining unemployment benefits. The Court began its inquiry by looking at the question of whether or not South Carolina's unemployment compensation laws burdened Sherbert's religious practice: We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense, the consequences of such a PAGE 2 OF 11

3 disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For if 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. The Court, contrasting South Carolina's Sunday Laws, which prohibited employers from requiring employees to work on Sunday, concluded that that the state's unemployment compensation law discriminated between religions: Significantly, South Carolina expressly saves the Sunday worshiper from having to make the kind of choice which we here hold infringes the Sabbatarian's religious liberty. When, in times of "national emergency," the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, no employee shall be required to work on Sunday... who is conscientiously opposed to Sunday work, and if any employee should refuse to work on Sunday on account of conscientious... objections, he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.... No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina's general statutory scheme necessarily effects. The Court next turned to an analysis of the state's interest and whether or not an alternative means of meeting that interest was available: We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, "[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation". No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund, but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here, because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs -- a question as to which we intimate no view, since it is not before us -- it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights. The Court, having found that South Carolina had no compelling interest offsetting the burden imposed on Sherbert's practice of her religion, held that South Carolina's unemployment compensation laws unconstitutionally infringed upon Sherbert's religious practice. The Sherbert case was understood by lawyers and legal scholars to have established a three-part test for determining whether the government has violated an individual's constitutionally-protected right to the free exercise of religion: (1) Substantial Burden The threshold question is whether or not the law or government action imposes a substantial burden on an individual's free exercise of religion. If it does not, then there is no constitutional question and the government prevails. If it does, the courts look at additional questions. PAGE 3 OF 11

4 (2) Compelling Government Interest If a substantial burden is found, then the courts look at whether or not the government has a compelling interest. If the government does not (as in Sherbert), then the law or government action is unconstitutional and the individual prevails. If the government does have a compelling interest, then the courts look at yet another question. (3) Least Restrictive Means If the government has a compelling interest at stake, the question becomes (in the words of the Court) whether no alternative forms of regulation would combat such abuses without infringing on the individual's religious practice. If the state has no alternative means of protecting the compelling government interest, then the law or government action is constitutional, and the government prevails. If the government does have an alternative, then the law or government action is unconstitutional, and the individual prevails. Legal scholars argued back and forth about the impact of Sherbert, specifically about whether the three-part substantial burden, compelling government interest, least restrictive means test applied in all cases where a law or government action imposed a substantial burden on religious practice, or whether the law or government action needed to be targeted at a particular religion or religious practice in order for the test to be triggered. The argument centered around the facts. Although South Carolina's unemployment compensation law was religion-neutral on its face, the facts in evidence, coupled with the Court's language, left open the question of whether application of the law (treating Sunday Sabbath differently than Saturday Sabbath) was targeted to discriminate against the Saturday Sabbath. That question was settled in Yoder v. Wisconsin (1972). YODER V. WISCONSIN (1972) The government-religious conflict decided in Yoder v. Wisconsin (1972) originated in a newly-formed settlement at New Glarus, Green County, Wisconsin, about 50 miles south of Madison. Local school administrators in Green County objected to the Amish practice of removing their children from school at completion of the eighth grade. In the fall of 1968, three fathers of Amish children aged fourteen and fifteen were arrested for refusal to enroll their children in high school. This refusal on the part of the Amish came in direct violation of Wisconsin law requiring school attendance, which at the time mandated school attendance from ages 6 to 16 years. Amish are litigation-adverse, and the conflict rose through the courts because the National Committee for Amish Religious Freedom, a group formed by non-amish for the legal defense of Amish religious liberty, took up the case through Wisconsin state courts, with the ACLU joining in at the US Supreme Court level. The core of the Yoder "Free Exercise" argument, relying on the Sherbert decision was that compulsory school attendance laws enforced by Wisconsin officials violated the religious liberty of the Amish. After hearings at local and state appellate levels, the case was heard by the Wisconsin Supreme Court, which ruled in favor of the Amish. At that point, Wisconsin officials took the case to the Supreme Court. In 1972, the Supreme Court ruled in favor of the Amish by a vote of 7-0 (Justices Powell and Rehnquist took no part in the proceedings or the opinion), holding that the First Amendment supported the Amish practice of removing students from school after the 8th grade. The Supreme Court, addressing the question of religious belief and "substantial burden", found this: The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith PAGE 4 OF 11

5 community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child. The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region. In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs. With respect to Wisconsin's argument that the state had an "compelling interest" in requiring minimum levels of education for all children, the Supreme Court found this: The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and selfsufficient participants in society. We accept these propositions. However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents' experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. The State attacks respondents' position as one fostering "ignorance" from which the child must be protected by the State. No one can question the State's duty to protect children from ignorance but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional "mainstream." Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life. The State argues that if Amish children leave their church they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational short-comings. Yoder was understood to clarify that the Sherbert substantial burden, compelling government interest, least restrictive means test applied to laws of general application. Cases decided in subsequent years cited the both Sherbert and Yoder as if the two taken together comprised a single test, applicable to both targeted laws and laws of general application. PAGE 5 OF 11

6 EMPLOYMENT DIVISION V. SMITH (1990) The Rehnquist Court issued a series of decisions during the 1980's that chipped away at Yoder's application of the compelling interest test to laws of general application and foreshadowed the Court's decision in Employment Division v. Smith (1990). The facts in Employment Division are not complicated. Alfred Leo Smith and Galen Black were members of the Native American Church and counselors at a private drug rehabilitation clinic. They were fired because they had ingested peyote as part of their religious ceremonies as members of the Native American Church. At the time, intentional possession of peyote was a crime under Oregon law without an affirmative defense for religious use. The counselors filed a claim for unemployment compensation with the state, but the claim was denied by a Oregon trial-level court because the reason for their dismissal was deemed work-related "misconduct." The legal history of the case is more complicated, involving two trips to the Supreme Court before the Court rendered a final decision on the constitutionality of Oregon's unemployment law. The Oregon Court of Appeals reversed that lower court's ruling, holding that denying Smith and Black unemployment benefits for their religious use of peyote violated their right to exercise their religion. The Oregon Supreme Court affirmed the decision, holding that the state's justification for withholding the unemployment benefits preserving the "financial integrity" of the workers' compensation fund was outweighed by the burden imposed on the employees' exercise of their religion. The state appealed to the US Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime. The Court returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws. On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the Free Exercise Clause. The state appealed the Oregon Supreme Court's decision to the US Supreme Court (at this point in time, direct appeal was no longer an option, as it was in 1972 when Yoder came up on direct appeal), and the Court granted certiorari. The Court ruled against Smith and Black, upholding the constitutionality of the state's action denying unemployment benefits: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. (a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. [citing Reynolds v. United States]. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections [citing Cantwell v. Connecticut and Wisconsin v. Yoder]. (b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable PAGE 6 OF 11

7 to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. The Court's holding in Employment Division effectively reinstated the Reynolds v. United States holding that the Free Exercise Clause does not prevent the government from passing laws of general application that have an incidental impact on specific religious practices. The Employment Division opinion distinguished Sherbert/Yoder without directly overruling either decision. Legal generally scholars read the Employment Division decision to permit application of the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test when, but only when, a challenged law directly targets religious practice. Subsequent cases applying Employment Division suggest that the decision is not as broad as it seems to read exempting religiously-neutral laws of general application entirely from Free Exercise Clause constitutional scrutiny but instead to lower the compelling interest requirement to a rational basis requirement. Whichever reading is correct, however, Employment Division removes the compelling government interest test from constitutional analysis of laws and governmental actions that do not target a particular religious practice either laws of general application do not violate the Free Exercise Clause at all or do so only if there is no rational basis for the law. The distinction between theories has no practical impact. RELIGIOUS FREEDOM RESTORATION ACT OF 1993 The Employnment Division decision which severely curtailed religious freedom in situations where religious practice ran into conflict with laws outraged the public as well as many members of Congress. As a result of public pressure and Congressional concern, the Religious Freedom Restoration Act of 1993, which restored the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to all laws -- explicitly including religiously-neutral laws of general application -- at both the federal and state governments, was enacted. The law had widespread support from both conservatives and liberals, passing unanimously in the House and almost unanimously in the Senate. The bill was support by the ACLU, many conservative groups like the Traditional Values Coalition, and religious groups such as the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals. The bill was signed into law by President Clinton. The text of the Religious Freedom Restoration Act (1993) as enacted reads: SECTION 1. SHORT TITLE. This Act may be cited as the "Religious Freedom Restoration Act of 1993". SECTION 2. CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES. (a) FINDINGS. The Congress finds that: (1) the framers of the Constitution, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the Constitution; (2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise; (3) governments should not substantially burden religious exercise without compelling justification; (4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior PAGE 7 OF 11

8 governmental interests. (b) PURPOSES. The purposes of this Act are: (1) to restore the compelling interest test as set forth in Sherbert v. Vemer, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government. SECTION 3. FREE EXERCISE OF REUGION PROTECTED. (a) IN GENERAL. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) EXCEPTION.Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) JUDICIAL RELIEF. A person whose religioiis exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. SECTION 4. ATTORNEYS FEES. (a) JUDICIAL PROCEEDINGS. Section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting "the Religious Freedom Restoration Act of 1993," before "or title Vl of the Civil Rights Act of 1964". (b) ADMINISTRATIVE PROCEEDINGS.Section 504(bXlXC) of title 5, United States Code, is amended (1) by striking "and" at the end of clause (ii); (2) by striking the semicolon at the end of clause (iii) and inserting ", and"; and (3) by inserting "(iv) the Religious Freedom Restoration Act of 1993," after clause (iii). SECTION. 5. DEFINITIONS. As used in this Act (1) the term "government" includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State; (2) the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States; (3) the term "demonstrates" means meets the burdens of going forward with the evidence and of persuasion; and (4) the term "exercise of religion means the exercise of religion under the First Amendment to the Constitution. SECTION 6. APPLICABILITY. (a) IN GENERAL. This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act. (b) RULE OF CONSTRUCTION. Federal statutory law adopted after the d ^ of the enactment of this Act is subject to this Act unless such liaw explicitly excludes such application by reference to this Act. (c) RELIGIOUS BELIEF UNAFFECTED. Nothing in this Act shall be construed to authorize any government to burden any religious belief. SECTION 7. ESTABLISHMENT CLAUSE UNAFFECTED. Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the "Establishment Clause"). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term "granting^, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions. The bill is short and to the point. It restores the Sherbert/Yoder test to all laws of the United States, both federal and state, and contains as clear a statement of the Sherbert/Yoder test as I've seen anywhere: (a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). PAGE 8 OF 11

9 (b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. BOERNE v. FLORES (1997) It took the Supreme Court only four years after the Religious Freedom Restoration Act of 1993 was enacted into law to once again restrict application of the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test in Boerne v. Flores (1997). Boerne involved the proposed expansion of a Catholic church in Boerne, Texas. The church, built in 1923, was an historic, mission-style structure designated as a landmark by the city, which had nonetheless become too small for its growing parish. The Catholic Archbishop of San Antonio, Patrick Flores, applied for a permit to expand the church, but the City of Boerne denied it, maintaining that the church qualified as a historic structure under the city's historic preservation ordinances, and that local zoning laws forbade the expansion. In response, Archbishop Flores filed a lawsuit against the city in federal court, claiming that the Religious Freedom Restoration Act of 1993, prohibited "governments" like the City of Boerne from "substantially burdening" the exercise of religion unless the government proves the burden "is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that... interest." Boerne held, in a nutshell, that Congress exceeded its constitutional powers when it attempted, via the Religious Freedom Restoration Act of 1993, to apply the Sherbert/Yoder test to state laws, and, as a result, the Religious Freedom Restoration Act of 1993 as it applied to state laws, was unconstitutional. The Court did not, however, overturn the Act's application of the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to federal laws. SUMMARY TIMELINE Controlling Law: The controlling case was Reynolds v. United States (1879). Laws of General Application: Laws of general application that burdened religious practice only as an incident to the law's main purpose were exempt from the Free Exercise Clause. Laws Targeting Religious Practice: Laws specifically targeting a particular religious practice were constitutionally invalid under the Free Exercise Clause. Controlling Law: The controlling cases were Sherbert v. Verner (1963) and Yoder v. Wisconsin (1972). Laws of General Application: The Free Exercise Clause invalidated laws or government actions that imposed a substantial burden on religious practice, unless the government could establish that the laws served a compelling government purpose and were the least restrictive means of achieving that purpose. The substantial burden, compelling government interest, least restrictive means test applied to all local, state and federal laws, both laws specifically targeting a particular religious practice and laws of general application. Laws Targeting Religious Practice: The Free Exercise Clause invalidated laws or government actions that imposed a substantial burden on religious practice, unless the government could establish that the PAGE 9 OF 11

10 to 1997 laws served a compelling government purpose and were the least restrictive means of achieving that purpose. The substantial burden, compelling government interest, least restrictive means test applied to all local, state and federal laws, both laws specifically targeting a particular religious practice and laws of general application. Controlling Law: The controlling cases were Sherbert v. Verner (1963), Yoder v. Wisconsin (1972) and Employment Division v. Smith (1990). Laws of General Application: Laws of general application that burdened religious practice only as an incident to the law's main purpose were exempt from the Free Exercise Clause. Laws Targeting Religious Practice: Laws specifically targeting a particular religious practice were subject to the substantial burden, compelling government interest, least restrictive means test. Controlling Law: The controlling cases were Sherbert v. Verner (1963), Yoder v. Wisconsin (1972) and Employment Division v. Smith (1990). The controlling law was the Religious Freedom Restoration Act of Laws of General Application: The Religious Freedom Restoration Act of 1993 restored the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to all local, state and federal laws, including laws of general application. Laws Targeting Religious Practice: The Religious Freedom Restoration Act of 1993 restored the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to all local, state and federal laws, including laws specifically targeting a particular religious practice to PRESENT Controlling Law: The controlling cases are Sherbert v. Verner (1963), Yoder v. Wisconsin (1972), Employment Division v. Smith (1990) and Boerne v. Flores (1997). The controlling federal law is the Religious Freedom Restoration Act of Applicable controlling state laws, if any, vary from state to state. Laws of General Application: Federal: The Religious Freedom Restoration Act of 1993 restored the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to all federal laws, including laws of general application. State and Local: The Religious Freedom Restoration Act of 1993 does not apply to state and local laws. Unless states have adopted constitutional protections or enacted state laws identical or similar to the Religious Freecom Restoration Act of 1993, state and local laws of general application that burden religious practice only as an incident to the law's main purpose are exempt from the Free Exercise Clause. A number of states have constitutional provisions and/or state laws that have been interpreted by the courts to apply the substantial burden, compelling government interest, least restrictive means test (or a close variant thereof) to state and local laws, as summarized in this 2013 table prepared by Eugene Volokh, a professor at the University of California Law School: PAGE 10 OF 11

11 Laws Targeting Religious Practice: Federal: The Religious Freedom Restoration Act of 1993 restored the Sherbert/Yoder substantial burden, compelling government interest, least restrictive means test to all federal laws, including laws specifically targeting a particular religious practice. State and Local: State and local laws specifically targeting a particular religious practice are subject to the substantial burden, compelling government interest, least restrictive means test under Sherbert/Yoder. PAGE 11 OF 11