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Individual Rights - Religion & The Constitution Chapter in Publication of Burke, Williams & Sorensen

Posted by attorney Hans Gillinger

Summary of the Law


The U.S. Constitution’s First Amendment states, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment applies the First Amendment to California public entities. Thus, public employers, prison officials, school teachers and administrators, and land use commissioners must walk a fine line between honoring the right of an individual to exercise their faith freely and protecting other employees’ rights to be free from a governmentally established religion.

Free Exercise of Religion

Free exercise of religion is a fundamental constitutional right. This means that the Free Exercise Clause makes an individual’s freedom of religious belief absolute. Individuals do not, however, have the absolute right to practice their religion as they please.

The right to free exercise prevents and remedies laws that are enacted with the unconstitutional purpose of targeting religious beliefs and practices. [i] Thus, it is easier for the courts to find that the government acted constitutionally when its laws or regulations are written to be generally applicable and content neutral such that the government only incidentially burdens the free exercise of religion. Cases of this type present closer constitutional calls for courts, are the subject of more court decisions than content-specific limitations, and is the area of free exercise law that has witnessed the most historical changes. These changes have resulted from both Congressional and judicial action.

Prior to 1997, the United States Supreme Court’s decision in Employment Division Department of Human Resources v. Smith (“Smith") determined the applicable test for free exercise claims, holding that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling government interest." [ii] Prior to 1997, prison regulations were judged under a reasonableness standard whereby a prison regulation need only be reasonably related to a legitimate penological interest to be constitutional. [iii] Essentially, prison officials could not deny prisoners access to religious services without reasonable justification.

The Religious Freedom Restoration Act (“RFRA") [iv] was enacted in direct response to the Supreme Court’s ruling in Smith, and changed the standard for analyzing free exercise cases. After the Smith decision in 1990, and until 1997, the RFRA governed the extent to which all levels of government could regulate religious practice. [v] The RFRA permitted federal, state, and local governments to impose a substantial burden upon an individual’s religious exercise only where the public entity can show that the burden on the free exercise of religion serves a compelling government interest and is the least restrictive means available to further the compelling interest. [vi] The RFRA reestablished the standard commonly referred to as the “strict scrutiny test," which is the toughest, least deferential standard for evaluating government impingement upon individual constitutional rights. The strict scruitiny test is the most difficult standard for the government to meet. The RFRA replaced the reasonableness standard with strict scrutiny. [vii] The RFRA’s restrictions applies to every agency and official of the federal, state, and local governments, [viii] and the RFRA applies to all federal and state law, whether adopted before or after the enactment of the RFRA, [ix] which substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability. [x]

In 1997, the U.S. Supreme Court declared that the RFRA was unconstitutional as it applied to the states. [xi] In City of Boerne v. Flores, [xii]city authorities denied an archbishop’s application for a building permit to enlarge his church. The city rejected the archbishop’s application based on an ordinance that protected the church as an historical landmark. The archbishop claimed that the RFRA exempted his church from the ordinance.

The U.S. Supreme Court ruled against the archbishop, finding that the RFRA’s stringent test reflected a lack of proportionality between the means adopted and the legitimate end to be achieved. [xiii] The U.S. Supreme Court observed that, under the RFRA, the state must demonstrate a compelling government interest and show that the law is the least restrictive means of furthering its interest if an objector shows a substantial burden on his free exercise of religion. [xiv] The court further noted that such claims are often difficult to contest under the RFRA. The Court observed that the RFRA’s test potentially allowed constitutionally required religious exemptions from civic obligations of almost every conceivable kind. In striking down the RFRA as applied to all levels of government except the federal government, the U.S. Supreme Court’s ruling in City of Boerne changed the free exercise standard back to that announced in Smith.

After the Boerne decision, the Ninth Circuit restored a “reasonableness" test sometimes called the “rational basis" test as the applicable standard in free exercise challenge cases involving prisoner rights. [xv] Under this rational basis test, prison officials are permitted to impose a substantial burden upon a prisoner’s religious exercise if the regulation is “reasonably related to legitimate penological interests." [xvi] The Turner court set four balancing factors to determine whether a prison regulation is reasonably related to legitimate penological interests: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate government interests" put forward in justification; (2) whether there are “alternative means of exercising the right that remain open to inmates;" (3) whether “accommodation of the asserted constitutional right" will have an effect on “guards and other inmates, and on the allocation of prison resources generally;" and (4) whether there is an “absence of ready alternatives" verses the “existence of obvious, easy alternatives." [xvii] This standard continues to be applicable to First Amendment challenges to prison regulations impinging upon an inmate’s religious exercise; however, subsequent federal legislation avails prisoners with a more lenient standard than the Constitutional standard. [xviii]

Congress changed this standard in 2000 by enacting the Religious Land Use and Institutionalized Persons Act (“RLUIPA") in response to the U.S. Supreme Court’s decision that invalidated the RFRA, taking care to address the constitutional flaws identified by the high court’s analysis. In this regard, Congress drafted the RLUIPA to apply only to regulations regarding land use and prison conditions. [xix] Under the RLUIPA, the government is prohibited from imposing a “substantial burden" on the religious exercise of an inmate, even if the burden derives from a rule of general applicability, unless the government shows that the burden is the least restrictive means to achieve a compelling governmental interest. [xx] The RLUIPA obliges courts to utilize the “substantial burden" test or “equal access" test for land use-related RLUIPA claims. These tests are discussed in detail below in the RLUIPA section of this chapter.

In addition to supporting a claim under the RLUIPA, precluding access to public facilities and meeting rooms for religious services also raises First Amendment speech issues in addition to free exercise claims. In Faith Center Church Evangelistic Ministries v. Glover, [xxi] the Ninth Circuit found that the meeting rooms were a limited public forum and that enforcement of the county’s policy to exclude religious worship services from the meeting rooms was reasonable in light of the forum’s purpose. [xxii]

Freedom of association is a right also secured by the First Amendment, and an individual’s religious association cannot be punished by the government unless the individual is actively affiliated with a group with illegal aims and which intends to further those illegal aims. [xxiii]

Additional resources provided by the author

[i] See Church of Lukumi Babalu Aye, Inc. v.Hialeah (1993) 508 U.S. 520, 533, 113 S.Ct. 2217, 2227 (“[A] law targeting religious beliefs as such is never permissible.”).
[ii] Emp’t Div. Dep’t of Human Res. v. Smith (1990) 494 U.S. 892, 885, 110 S.Ct. 1595.
[iii] See Turner v. Safley (1987) 482 U.S. 78, 89, 107 S.Ct. 2254.
[iv] 42 U.S.C. §§ 2000bb to 2000bb-4.
[v] City of Boerne v. P.F. Flores (1997) 521 U.S. 507, 535-36.
[vi] 42 U.S.C. § 2000bb-1.
[vii] Freeman v. Arpaio (9th Cir. 1997) 125 F.3d 732, 736.
[viii] 42 U.S.C. § 2000bb-2(1).
[ix] 42 U.S.C. § 2000bb-3(a).
[x] 42 U.S.C. § 2000bb-1.
[xi] City of Boerne v. Flores (1997) 521 U.S. 507,536, 117 S.Ct. 2157, 2172.
[xii] Id.
[xiii] Id. at p. 533.
[xiv] Id. at pp.533-34.
[xv] Freeman v. Arpaio (9th Cir. 1997) 125 F.3d 732.
[xvi] Turner v. Safley, supra, 482 U.S. at p. 89.
[xvii] Id. at pp. 89-90.
[xviii] See, e.g., Shakur v. Schriro (9th Cir. 2008) 514 F.3d 878,884; and see McKenzie v. Ellis (S.D.Cal. 2011) 2011 WL 4571674.
[xix] Cutter v. Wilkinson (2005) 544 U.S. 709, 125 S.Ct. 2113, 2118.
[xx] 42 U.S.C. § 2000cc-1(a)(1)-(2); and see Shakur v. Schriro, supra, 514 F.3d at p. 888.
[xxi] Faith Center Church Evangelistic Ministeries v. Glover (9th Cir. 2006) 462 F.3d 1194, amended and superceedded on denial of rehg. by (9th Cir. 2007) 480 F.3d 891, abrogated on separate grounds by Winter v. Natural Res. Def. Council, Inc. (2008) 555 U.S. 7, 129 S.Ct. 365; see also Cmty. Hous., Inc. v. City of Boise (9th Cir. 2007) 490 F.3d 1041.
[xxii] Id.
[xxiii] See United States v. Lemon (D.C. Cir. 1983) 723 F.2d 922, 939.

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