In 2013, the Obama administration asked the United States Commission on Civil Rights (USCCR)—a bipartisan agency created to advise the federal government in matters of civil rights and discrimination—to investigate the intensifying conflict between the liberty of religious communities or individuals and non-discrimination legislation. The lofty report, released last month, is comprised of the commission’s findings, recommendations and statements from the commissioners, including dissents.
This timely report comes as the constitutionality of religious exemptions from state and federal laws has reentered the forefront of American politics. Supreme Court cases like Burwell v. Hobby Lobby and individuals like Kim Davis have gripped national headlines in recent years. Moreover, new data from the Pew Research Center shows a divided public on debates over wedding services for same-sex couples and bathroom use for transgender people.
The USCCR report also indicates that the public divide with respect to religious exemptions is reflected by the legal community.
In a landmark decision in 1878, the Supreme Court held that the Free Exercise Clause of the First Amendment does not protect Mormons practicing polygamy. This precedent left those seeking religious exemptions to the mercy of state legislatures and Congress.
However, the legal landscape shifted under the Warren Court. In Sherbert v. Verner, the Supreme Court created a constitutional standard under the First Amendment for religious exemption. The Court ruled that government “burdens on religious exercise—even when imposed by generally applicable laws—had to be justified as the least restrictive way of advancing a compelling government interest.” The 1972 case Wisconsin v. Yoder, which allowed for an exemption from compulsory schooling for teenagers in Amish communities, reaffirmed that standard.
However, in 1990, the Court once again changed course with the case Employment Division v. Smith. In a 5-4 decision, the USCCR report explains, “the Court reasoned that the First Amendment had never been ‘held to excuse [an individual’s religiously motivated conduct] from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.’” The decision in Smith led to the passing of the Religious Freedom Restoration Act (RFRA), a law that placed the burden of proof on the government in an attempt to return to the pre-Smith “compelling interest” standard.
In cases brought under RFRA, the USCCR report notes the distinction between viewpoint discrimination and viewpoint neutrality. For example, in Good News Club v. Milford Central School, a Christian student club sought use of school facilities for club activities. The Supreme Court sided with the club because they believed the school to be practicing viewpoint discrimination by not allowing a specific group to meet on campus just because it was religious in nature. However, in Christian Legal Society v. Martinez, the Court sided with the University of California Hastings Law School because they believed that the school’s denial to a Christian group’s request to meet on campus was neutral to the organization’s viewpoint. The school argued that because the mission of the University was to “foster inclusion,” an organization that discriminated according to race, gender, religion, sexuality or ideology for leadership positions cannot be allowed on campus, regardless of whether that organization was religious or secular.
The legal community remains divided on the reach of constitutional protections for religious conduct. In Justice Antonin Scalia’s majority opinion for Smith, he referenced the 1878 case regarding polygamy, which stated that permitting religious exemptions under “generally applicable laws” (in Smith, the use of the illegal substance peyote in religious ceremonies) “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Justice Scalia still held that religious exemptions are acceptable in some cases, such as in Wisconsin v. Yoder, but that the state law, which was neither promotional nor discriminatory of religious belief, was nevertheless constitutional.
Many advocates, such as Ayesha Khan of Americans United for the Separation of Church and State, have argued that the decision in Smith, which confirms a constitutional protection of belief but not conduct, is the standard by which all cases arguing for religious exemptions should be judged. Khan, who testified before the USCCR, believe that, by limiting religious exemptions, “groups would not use the pretext of religious doctrines to discriminate” and that a “doctrine that distinguishes between beliefs (which should be protected) and conduct (which should conform to the law) is fairer and easier to apply.” She concludes that, because religion has sometimes been used as a justification for racism, sexism, homophobia, and other social ills, what might be seen as “within the purview of religious autonomy at one time would likely change.”
However, in Justice Harry Blackmun’s dissenting opinion in Smith, he argues that the Court seemingly turned on “settled law” and was astonished that the majority regarded the numerous religious exemptions allowed by the Warren Court as “constitutional anomalies.” Justice Blackmun even feared that the decision was an “overreaction to the serious problems the country's drug crisis has generated” and actually had little to do with the specific situation of ceremonial use of peyote by Native Americans. Blackmun’s dissent warned of the potential consequences the Smith decision could have on a fundamental First Amendment right.
Indeed, the response to Smith was swift and bipartisan. Within three years of the decision, RFRA was the law of the land. Congress believed that protecting religious liberty was of the utmost importance, acting to essentially overturn the Court’s ruling in Smith. RFRA opened the door for many organizations, including privately owned and public companies, to seek religious exemptions.
For those in support of RFRA and protecting religious exemptions, a decision like Smith is far too sweeping and legally irresponsible. They argue that if a generally applicable law interferes “with the constitutionally important right to associate with others holding similar religious views” or “discriminate against the viewpoints of religious persons using the pretext of nondiscrimination policy,” then an exemption should be made.
Kimberlee Colby of the Christian Legal Society, who also testified before the USCCR, claims that the decision in Christian Legal Society v. Martinez infringed on the student’s right to free association and emphasized how it has been used as a precedent for colleges to tell “religious students that they cannot meet on campus if they require their group’s leaders to agree with the group’s religious beliefs.” In addition, she believes that recognition of a religious organization and its beliefs, even if they are contrary to the popular view of the time, is not an endorsement. In agreement with Colby, John Inazu, a professor at Washington University School of Law and another USCCR witness, pointed out that the Court failed in Martinez to prove the harm of a student organization self-governing in the selection process for leadership positions.
While the bipartisan commission provided arguments and findings from all sides of this issue, it ultimately recommended that RFRA “protects only religious practitioners’ First Amendment free exercise rights and it does not limit other’s freedom from government imposed religious limitations under the Establishment Clause.” It also recommended that “recognition of religious exemptions … should be made pursuant to the holdings of Employment Division v. Smith.” Further, it was advised that legislators on both the federal and state levels should consider clarifying the language in RFRA and RFRA-type laws in order to accord with Smith.
One of the dissenting commissioners, Gail Hariot, argued that the recommendations were too vague and failed to achieve a meaningful resolution of this highly contested constitutional debate. Hariot remarked that religious liberty should be a legal priority not only because of its basis in the Constitution, but because the liberties belonging to communities of faith foster and strengthen liberties beyond religious exercise.
The free exercise of religion is fundamental to the U.S. Constitution, as are other civil liberties. The USCCR’s report—prudently named “Peaceful Coexistence”—suggests that the tension between these values will remain with us for the foreseeable future. However, it also insists upon the responsibility of both courts and legislatures to create meaningful solutions that allow for “peaceful coexistence.”
Maggie Baldridge is an intern at the National Constitution Center. She is also a recent graduate of Dickinson College.
