Free Exercise III (Smith Test and RFRA) Lecture 8 Chapter 4 Free Exercise III (Smith Test and RFRA)

This Lecture… This lecture discusses much of the Rehnquist and Roberts Courts on the Free Exercise Clause This covers pages 115-131 The Smith Test RFRA Hobby Lobby

Signs of Change Bob Jones University (1983)- Ruled against a free exercise claim United States v. Lee (1982) An Amish businessman refused to withhold payroll taxes or pay his share Burger, C.J. ruled against them that the government had a compelling government interest in the Social Security system and he did not meet the exemption Was this a change in attitude by the Court? Or a different set of circumstances?

Goldman v. Weinberger (1986) One of the last cases in the Burger Court Plaintiff was an Orthodox Jew in the Air Force that insisted on wearing his yarmulke at all times, whether in or out of uniform He was told it violated the dress regulations He said not wearing it violated his free exercise rights Rehnquist, J. ruled against him Military is separate and apart from civilian life Military has more deference Congress later corrected this opinion This was a 5-4 opinion and Burger and Powell’s departures would not have changed things

Employment Division, Department of Human Services of Oregon v Employment Division, Department of Human Services of Oregon v. Smith (1990) Background Involves the use of peyote, which is similar to LSD It is criminalized except for certain Native American groups, where it is part of their religion Plaintiff was fired for using it as an alcohol/drug counselor They applied for benefits but were turned down on “misconduct” grounds The Oregon Supreme Court ruled for Smith The Court heard the case in 1987 but remanded It comes back again in 1990

Employment Division, Department of Human Services of Oregon v Employment Division, Department of Human Services of Oregon v. Smith- II Arguments For Oregon State has a CSI in controlling drug use and this is a dangerous drug The state cannot accommodate for this reason For Smith They are protected under Sherbert and Thomas Exemptions in other jurisdictions have not had adverse consequences They must be accommodated for these reasons

Employment Division, Department of Human Services of Oregon v Employment Division, Department of Human Services of Oregon v. Smith- III Justice Scalia rules for the Court He sees this as religion being used to escape a criminal law He says Sherbert has only applied to jobless benefits Not across the board criminal statutes Judges should not consider the centrality of religious beliefs Exemptions such as this should be left to the political process their redress is in the Oregon Legislature, not the Courts Oregon did revise its statute after this opinion Prohibition against peyote is constitutional so it may be enforced Essentially abandons Sherbert test as to criminal statutes Brings things back to the Reynolds case

Employment Division, Department of Human Services of Oregon v Employment Division, Department of Human Services of Oregon v. Smith- IV Concurrence by O’Connor, J., partially joined by Brennan, Marshall, Blackmun She agrees in the result, but not the reasoning Is this religiously motivated conduct? She does distinguish between freedom to believe and freedom to act She feels the majority has abandoned precedent Does not see the distinction between civil and criminal statutes She thinks that protection of religious minorities is exactly what the First Amendment was designed to protect, not burden However, using Sherbert, she would reach the same result

Employment Division, Department of Human Services of Oregon v. Smith- V Dissent by Blackman, J. joined by Brennan and Marshall, JJ. They are very critical of the Scalia opinion He does not believe that the founders saw freedom for religious persecution of minorities as a “luxury” But essential to liberty This was not about the War on Drugs, but the state’s refusal for this narrow exemption The State also never sought to prosecute the plaintiffs

Congress responds: RFRA Religious Freedom Restoration Act of 1993 Applies to federal and state and local governments Passes the Senate 97-0 Essentially readopts the Compelling Interest Test CSI plus least restrictive means

City of Boerne v. Flores (1997) Background A Catholic Church in the outskirts of San Antonio needed to expand to meet a growing group of parishioners They got permission from the Archdiocese to tear down the existing church and build a much bigger one However, the city said they could not due to it being a historic structure The Archdiocese sued under RFRA They lost the district court but won at the COA level The Current St. Peter the Apostle Church

City of Boerne v. Flores- II Arguments For the City RFRA violates separation of powers by interpreting the constitution by Congress Smith is the appropriate standard RFRA is not a valid exercise of Congressional power For the Archbishop, Patricio Flores RFRA is authorized by the 14th Amendment RFRA goes beyond the First Amendment This does not impinge on the right to interpret the Constitution

City of Boerne v. Flores- III Justice Kennedy delivers the opinion of the Court Statute exceeded Congress powers Power of Congress is not unlimited When enforcing the 14th Amendment, there must be “congruence and proportionality” to the injury and the proposed end This is only for corrective legislation, not general interest laws Must be remedial This is more preventive as it has no termination date This is more of the state’s traditional role in health and welfare as a zoning issue This was an incidental burden

City of Boerne v. Flores- IV Stevens, J. concurring This is essentially a preference for religion Scalia, J. concurring in part, joined by Stevens The elected representatives should decide things not the courts O’Connor, J, dissenting joined by Breyer RFRA is authorized by the 14th Amendment Smith wrongly decided Souter agrees with this

Response to City of Boerne v. Flores In 2000, Congress enacts the Religious Land Use and Institutionalized Persons Act (RLUIPA) Based on the power to regulate intestate commerce and Congress spending power Applied to any zoning or prison activity using federal money Cutter v. Wilkinson (2005) Upholds the law Allows religious minorities to distribute literature Other interpretations Gonzales v. O Centro Esperita Beneficente Uniao Do Vegetal (2006)- Tea case from the Amazon Holt v. Hobbs (2015)- right of Muslim prisoners to wear a beard

Hobby Lobby v. Burwell (2014) ACA requirement for contraceptives The plaintiffs objected on religious grounds, and would have face massive fines They won in a 5-4 case They were conservative Protestants A liberal piece of legislation now used by conservatives This case also dealt with corporate rights Expect a related question on your first legal writing assignment

Next Lecture We have now wrapped up Free Exercise So we now move to the Establishment Clause Pages 131-144 We will consider Everson and Abdington This deals with compulsory school prayer