Religious exemptions — a guide for the confused

The Hobby Lobby case is about to be argued this week, so talk of religious exemptions is in the air. But what exactly is the law here, even beyond the particular details of Hobby Lobby? When can religious objectors go to court to get exemptions from generally applicable laws (whether drug laws, employment regulations, driver’s license photograph requirements, or whatever else)?

Glad you asked! There’s no simple answer, but here are a few commonly asked specific questions, with answers that can help you navigate the complexity.

1. What’s with religious people getting exemptions? I thought the Supreme Court said that wasn’t required. For most of American history, courts generally didn’t see the Free Exercise Clause as requiring exemptions for religious objectors. But in Sherbert v. Verner (1963), the Supreme Court said that such exemptions were presumptively required, unless the government could show that denying the exemption was necessary to serve a compelling government interest.

Then, in Employment Division v. Smith (1990), the Supreme Court changed its mind, by a 5-to-4 vote. The Free Exercise Clause, the court held, basically just banned intentional discrimination against a particular religion or religious people generally. With a few exceptions (such as for churches’ decisions about choosing their clergy), religious objectors had to follow the same laws as everyone else, at least unless the legislature specifically created a religious exemption.

The lineup in that ruling, by the way, was interesting: conservative Justice Antonin Scalia joined by conservative Justice William Rehnquist, moderate conservative Justice Anthony Kennedy, moderate Justice Byron White, and moderate liberal Justice John Paul Stevens voted for the nondiscrimination rule. Moderate conservative Justice Sandra Day O’Connor — joined by liberal Justices William Brennan, Thurgood Marshall and Harry Blackmun —  disagreed, and wanted to preserve the Sherbert constitutional exemption regime.

But wait. Congress didn’t agree with Smith, and so it enacted — by a nearly unanimous vote — the Religious Freedom Restoration Act of 1993, which gave religious objectors a statutory right to exemptions (again, unless the government could show that denying the exemption was necessary to serve a compelling government interest). In City of Boerne v. Flores (1997), the court said this exceeded  congressional power over the states, but RFRA — pronounced “riffra” — remains in effect for the federal government.

Moreover, since 1990, 17 states enacted similar “state RFRAs” that government state and local governments. One state (Alabama) enacted a constitutional amendment that did the same. Eleven states’ courts interpreted their state constitutions’ religious freedom clauses as following the 1963-1990 Sherbert model. And one state’s high court (in New York) interpreted the state constitution as applying a less protective religious exemption regime, somewhere between the old Sherbert approach and the Smith approach. Here’s a map of how the law works in the states today:


Quite the crazy quilt, but that’s life in our federal republic.

2. Now for a question from the other side: Well, duh. Of course religious objectors are entitled to exemptions. What part of “the free exercise [of religion]” don’t you understand? “The” and maybe “free exercise.” The First Amendment doesn’t say that religious objectors are entitled to exemptions; it refers to “the free exercise [of religion],” which seems to suggest a preexisting legal concept of “free exercise” that the Framers understood as being secured. What “the free exercise” meant at the time is a hotly debated issue — see Scalia’s and O’Connor’s dueling opinions in Flores.

And beyond this, “the free exercise [of religion]” can’t mean freedom to do whatever your religion commands. What if it commands murder of blasphemers? Theft? Statutory rape? Complete exemption from all taxes paid to a government that supports, for instance, abortion or war or blasphemy? That’s why even those justices who support constitutional exemptions don’t really read the Free Exercise Clause as protecting all worship. They carve out an exemption for “compelling government interests” — an exception that isn’t in the constitutional text.

3. I get that — indeed, I’m against religious exemptions, because they discriminate in favor of religion. Isn’t such discrimination forbidden? That’s a perfectly sensible argument, especially given the court’s Establishment Clause cases, which sometimes say that the government may not favor the religious over the nonreligious. And some statutes — such as the conscientious objector exemption from the draft, and Title VII’s requirement of religious accommodation by employers (including private employers) — have been read as protecting secular conscientious objectors as well as religious objectors.

But in Cutter v. Wilkinson (2005), the court seemed to unanimously accept the notion that, when it comes to exemptions from generally applicable laws, the government may often create such exemptions only for religious objectors. And such religious objector exemptions have been a longstanding tradition throughout American history. So while any exemptions have to be available to all denominations that have a particular belief — a sacramental wine exemption from an alcohol ban, for instance, can’t apply only to Catholics and not Jews — they can probably be given just to religious objectors and not to those who have nonreligious reasons.

4. But this way lies anarchy! What’s to stop people from using RFRAs to claim religious exemptions from human sacrifice laws? From bans on race discrimination in employment? From all taxes? From all drug laws? Remember, RFRAs don’t mean that religious objectors always prevail — the government may still deny exemptions when necessary to serve a compelling government interest.

Moreover, in practice that “compelling interest” test has been read in a pretty government-friendly way in religious exemption cases. (The same language in other cases, such as those involving content-based speech restrictions or race discrimination, has been read in a much more demanding way.) Basically, courts grant exemptions if it looks like the exemptions won’t be too burdensome on the government or on others, and deny exemptions if it looks like the exemptions will be too burdensome.

Here’s how Chief Justice John Roberts put it in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case in which the court unanimously held in favor of a religious exemption from a ban on a particular hallucinogen called hoasca:

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause.

But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca.

5. So judges get to choose which laws religious objectors have to follow and which they don’t. That can’t be right. Again, a perfectly sensible argument. Indeed, many states haven’t enacted RFRAs, maybe partly for this very reason.

But the legislatures that have enacted RFRAs disagreed, and required judges to make such decisions. That’s the law in those states (and, as to federal statutes, too, since Congress has enacted a federal RFRA).

And remember that Anglo American judges have long in effect made law, using similarly subjective policy choices. The law of contracts, torts, property, civil procedure, evidence, family relations, and even criminal law have historically been created by judges (that’s what “common-law” decisionmaking generally means).

To be sure, starting in the 1800s, legislatures started enacting more and more statutes. Indeed, some areas of the law are now largely controlled by legislatures, and judges only make narrow decisions along the borders. But a lot of law (such as contract law and tort law) continues to be made by judges — subject to modification by the legislature, if the legislators disagree with courts.

RFRAs essentially tell judges to similarly develop the law of religious exemptions. And, as with common law, these exemptions are subject to legislative revision.

For instance, say that a court uses a state RFRA to says that landlords are free not to rent to unmarried couples, or same-sex couples, if the landlords have religious objections to such behavior. Denying the exemption, the court concludes, isn’t necessary to serve what the court sees as a compelling government interest. If the legislature disagrees — maybe thinking that there is indeed an inherently compelling interest in equal treatment in housing without regard to marital status or sexual orientation — the legislators can come back and amend the RFRA to exclude the exemption. Courts have the first word on whether to grant exemptions under RFRAs, but not the last.

6. But a lot of the religious exemption claims I hear about don’t have any real support in the Bible, or any other religious work. Even many of the objector’s coreligionists don’t agree with him. And the claim doesn’t even make logical sense; the objector says one thing is a mortal sin, but something else that’s just like it is just fine. That’s just people making stuff up.

The American law of religious exemptions is individualistic. The right to a religious exemption belongs to a particular religious believer because of his sincere religious beliefs, whatever they might be.

Small denominations are protected, to the same degree as large denominations. The same is true for dissenting groups within denominations. It’s even true for idiosyncratic religious believers. One doesn’t need a note from one’s priest to prevail in a religious exemption case.

Moreover, American courts are constitutionally forbidden from determining what the Bible — or any other religious work — really means. Courts are forbidden from determining whether a belief is reasonable. (Many religious beliefs are seen as unreasonable by members of other religions, and are often not founded in “reason” even from the perspective of those who hold them.) Courts are forbidden from determining whether a belief is internally consistent, or whether the lines that a religious believer draws make sense. Thus, consider the Supreme Court’s opinion in Thomas v. Review Bd. (1981), where a Jehovah’s Witness’s exemption claim was based on his objection to working in war production (some paragraph breaks changed):

The [lower] court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets …. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences …. [Protection] is not limited to beliefs which are shared by all of the members of a religious sect….

[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation….

[A religious-exemption case is also] not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others …. The [lower] court found [claimant’s willingness to help produce steel, even when it is a raw product to be used in arms, but not tank turrets] inconsistent with Thomas’ stated opposition to participation in the production of armaments. But … Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

Of course, an objector can win only if his religious beliefs are sincerely held. But if the objector’s religious beliefs are sincere, it doesn’t matter whether courts think they are unreasonable, unusual, or unconnected with Scripture. Court should treat minority and dissenting beliefs on par with standard mainstream Muslim, Jewish, Baptist, Methodist, etc. beliefs.

Of course, the claimant could lose even if his religious belief is sincere. The religious exemption I discuss don’t provide absolute protection; see item 4 above. An objector’s claim may be defeated by a showing that it would unavoidably undermine compelling government interests. But the claim shouldn’t be defeated by a showing that many of the claimant’s ostensible coreligionists don’t share the claimant’s beliefs.

7. Does that mean that religious objectors can just stop any government program they think is religiously wrong, at least if the program isn’t “necessary to serve a compelling government interest”? No, because the objectors must also show that the program “substantially burdens” their beliefs, which basically means that

    • the program requires people to do something that “is forbidden by [their] faith,”
    • the program requires people not to do something that is required by their faith,
    • the program requires that people violate their religious beliefs in order to get important benefits (such as unemployment compensation).

What’s not a substantial burden? A few examples:

      • “[T]o the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is not constitutionally significant.” Requiring someone to pay a tax that he thinks it sinful to pay is thus a substantial burden, though one that the Court has said is permissible because denying the exemption is necessary to serve a compelling government interest. But in the absence of such a religious belief in the impropriety of paying the tax, there is no substantial burden.
      • The interference with religious practices caused by the government’s diminishing the privacy offered to American Indian religious sites on government land doesn’t count as a substantial burden.
      • The interference caused by the government’s referring to a person using a social security number, which the person or her parents believe will “‘rob the spirit’ of [the person] and prevent her from attaining greater spiritual power.”

So, at a rough cut, if the law is requiring you — or pressuring you, on pain of lost rights or benefits — to violate your felt religious beliefs, that’s a “substantial burden” on you. It doesn’t mean you’ll win under a RFRA, because the government can still show that denying the exemption is necessary to serve a compelling interest. But it does mean the government has to make such a showing.

Things that are outside the scope of this discussion, though they are very interesting: (1) We’ve only discussed when people can go to court to get exemptions from generally applicable laws. People can also go to the legislature to get such exemptions, and legislatures have granted many such exemptions — consider the conscientious objector exemption from the draft (though it’s applicable to nonreligious conscientious objectors, too), the clergy-penitent privilege not to testify, various exemptions from tax law (though these are generally applicable to nonreligious nonprofits, too), and more.

(2) We’ve only discussed when people can go to court to get exemptions from generally applicable laws. Title VII of the federal Civil Rights Act of 1964 (and some similar state laws) also allow people to get some exemptions from work rules imposed by employers (including private employers). For more on such employee accommodation rules, see this post.

* * *
There’s much more to say about the subject. For more on these issues in the context of the Hobby Lobby litigation, for instance, see my posts collected here or, if you prefer, this e-book that contains an edited version of those posts. But I hope this post provides a big picture view of the matter.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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