Amdt1. Facially Neutral Laws that Interfere With Religious Practice: Current Doctrine

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Finally, in Employment Division v. Smith1 the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are generally applicable when they apply across the board regardless of the religious motivation of the prohibited conduct, and are not specifically directed at . . . religious practices.2 The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work without good cause. Sherbert and other unemployment compensation cases thus stand for the proposition 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.3 Wisconsin v. Yoder and other decisions holding that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action were distinguished as involving not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections such as free speech or parental rights.4 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, the Free Exercise Clause affords no basis for exemption from a neutral, generally applicable law. As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in the political process.5

Smith has potentially widespread ramifications. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment,6 but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of Lukumi Babalu Aye v. City of Hialeah: our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.7

Similar rules govern taxation. Under the Court’s rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression.8 The result is equal protection, but not substantive protection, for religious exercise.9 The Court’s approach also accords less protection to religiously based conduct than is accorded expressive conduct that implicates speech but not religious values.10 On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O’Connor warned, result in less protection for small, unpopular religious sects.11

It does appear that, despite Smith, the Court is still inclined to void the application of generally applicable laws to religious conduct when the prohibited activity is engaged in, not by an individual adherant, but by a religious institution. For instance, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission,12 the Court established a ministerial exception that precludes the application of employment discrimination laws13 to claims arising out of an employment relationship between a religious institution and its ministers.14 The Court found that even where such law is a valid and neutral law of general applicability, and even if the basis for the employment decision is not religious doctrine, the Free Exercise Clause prohibits the application of an employment discrimination law, since enforcement of such law would involve government interference with an internal church decision that affects the faith and mission of the church itself.15


  1.  Jump to essay-1494 U.S. 872 (1990) (holding that state may apply criminal penalties to use of peyote in a religious ceremony, and may deny unemployment benefits to persons dismissed from their jobs because of religiously inspired use of peyote).
  2.  Jump to essay-2494 U.S. at 878.
  3.  Jump to essay-3494 U.S. at 884.
  4.  Jump to essay-4494 U.S. at 881.
  5.  Jump to essay-5494 U.S. at 890.
  6.  Jump to essay-6This much was made clear by Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which struck down a city ordinance that prohibited ritual animal sacrifice but that allowed other forms of animal slaughter. See also Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 584 U.S. ___, No. 16–111, slip op. at 3 (2018) ([T]he delicate question of when the free exercise of . . . religion must yield to an otherwise valid exercise of state power [must] be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.).
  7.  Jump to essay-7508 U.S. 520, 531 (1993).
  8.  Jump to essay-8This latter condition derives from the fact that the Court in Swaggart distinguished earlier decisions by characterizing them as applying only to flat license fees. 493 U.S. at 386. See also Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39–41.
  9.  Jump to essay-9Justice O’Connor, concurring in Smith, argued that the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause. 494 U.S. at 901.
  10.  Jump to essay-10Although neutral laws affecting expressive conduct are not measured by a compelling interest test, they are subject to a balancing, rather than categorical, approach. Smith, 494 U.S. at 902 (O’Connor, J., concurring).
  11.  Jump to essay-11494 U.S. at 902–03.
  12.  Jump to essay-12565 U.S. ___, No. 10-553, slip op. (2012).
  13.  Jump to essay-13In this case, the employee, who suffered from narcolepsy, alleged that she had been fired in retaliation for threatening to bring a legal action against the church under the Americans with Disabilities Act, 104 Stat. 327, 42 U.S.C. § 12101 et seq.
  14.  Jump to essay-14An important issue in the case was determining when an employee of a religious institution was a minister. The Court declined to create a uniform standard, but suggested deference to the position of the religious institution in making such a determinination. In this case, a called elementary school teacher (as opposed to a contract teacher) was found to be a minister based on her title, the religious education qualifications required for the position, how the church and the employee represented her position to others, and the religious functions performed by the employee as part of her job responsibilities. 565 U.S. ___, No. 10-553, slip op. at 15–20.
  15.  Jump to essay-15565 U.S. ___, No. 10-553, slip op. at 15 .