By: John Blattner, CMC ’17
In 1993, the Religious Freedom Act (RFRA) passed through the House of Representatives without a single no vote cast. The act mandated that all laws, even neutral ones, be held to strict scrutiny when they are claimed to burden Free Exercise of religion; that is, the state must show that the law is narrowly tailored to a compelling governmental interest or else grant an exemption to the law. Democrats and Republicans, Liberals and Conservatives alike considered RFRA a victory for religious freedom, and the passage of RFRA was bipartisan and uncontroversial.
But today, the political context has changed. Most liberals oppose the Court’s application of Free Exercise rights to for-profit corporations, as well as a prevalence of religious exemptions that conflict with the Democratic Party’s platform in areas such as gay rights and birth control. The wisdom of religious exemptions to neutral laws is being seriously questioned for the first time since the passage of RFRA, to the point where mandated strict scrutiny for claims to Free Exercise exemptions could once again become a debated political issue. In considering whether it is wise to apply strict scrutiny to Free Exercise claims, it is useful to look back at the case that inspired RFRA, Employment Division v. Smith (1990).
Employment Division v. Smith
Facts of the Case
The facts of the case in Smith were that Alfred Smith and Galen Black, two members of the Native American Church, were fired from their jobs as drug counselors after they ingested peyote in a religious ceremony. Smith and Black applied for unemployment insurance, and were denied their claim because they were fired for violating criminal law. Peyote was one of many Schedule I controlled substances that were prohibited for all citizens by Oregon law. Justice Antonin Scalia’s majority opinion in Smith was one of the most unpopular decisions in Supreme Court history;  it ruled that the Free Exercise Clause of the First Amendment does not require exemptions from a neutral and generally applicable law if said law indirectly burdens religious conduct, and that because the drug laws in question were deemed neutral, Smith and Black had no Free Exercise right to be exempted from those statutes, and therefore no right to their unemployment insurance claims.
Among the most prominent critics of the Smith decision was Michael W. McConnell, then a professor at the University of Chicago Law School, and later a Judge on the Tenth Circuit Court of Appeals from 2002 to 2009. McConnell supports a far broader reading of the Free Exercise Clause, which requires exemptions for religious conduct unless the exemptions would offend the “peace and safety of the State”, which he later clarifies as “mean[ing] that we are free to practice our religions so long as we do not injure others.”  Between Scalia’s narrow interpretation and McConnell’s broad interpretation lies a third, intermediate interpretation, the Sherbert Test. The Sherbert Test states that religious accommodations must be granted to a law that burdens the free exercise of religion, unless that law is narrowly tailored to a compelling state interest. This test was applied by four of the Justices in Smith, albeit to reach two different conclusions in the form of Justice Sandra Day O’Connor’s concurring opinion and Justice Harry Blackmun’s dissenting opinion (joined by Justices Thurgood Marshall and William Brennan). Clearly, there is no consensus on the Free Exercise Clause’s requirement of exemptions. Even within the three factions described above, there is some divergence: Justice O’Connor’s view of what constitutes a compelling government interest is much broader than Justice Blackmun’s, and Justice John Paul Stevens, who joined the majority opinion in Smith, views all religious exemptions as not only not required, but impermissible.
Implications and Interpretations
For all the criticism that Smith inspired, and all the rival interpretations of the Free Exercise Clause that it contends with, it remains the most just and practical standard by which to measure claims for religious exemptions. Broader interpretations prove extremely difficult to apply consistently without severely infringing on the state’s authority to regulate secular conduct, while the Free Exercise Clause under a State-Triggered Interest Test remains sufficient to guarantee religious liberty and equality.
There are certain protections that the Free Exercise Clause is nearly universally accepted to guarantee: that religious belief itself cannot be punished, that laws cannot target specific religions, that religious practice cannot be regulated unless it violates a valid statute, and that all religious denominations must be treated equally and neutrally. The definitions of the last two points are particularly controversial; the Smith test, the Sherbert test and the Peace and Safety Test all have different thresholds of how much secular interest is needed to deny an exemption, and there is widespread disagreement about how religions can be treated the most equally. The Smith Test would hold that, so long as a law provides members of all religions the same treatment under the law and was not intended to target a religion, it is truly neutral. But central to broader interpretations of the Free Exercise Clause is the argument that “the only hope for achieving denominational neutrality is a vigorous Free Exercise Clause.”  To McConnell and others, exemptions are necessary to protect the Free Exercise rights of members of minority religions, because “a genuine neutrality toward minority religions is preferable to a mere formal neutrality, which can be expected to reflect the moral and religious presuppositions of the majority.”  McConnell claims that a genuine neutrality is one in which all citizens can practice any and all aspects of their chosen religion, regardless of the law, so long as they do not violate the peace and safety of the state.
But how this “genuine” neutrality is more just than “formal” neutrality is unclear. While it is true that legislators may hold biases in favor of their religion, their ability to act on these potential biases is severely curtailed by the Establishment Clause. Conventional Establishment Clause jurisprudence prohibits endorsement or preference of any religious sect or sects in any statute, and all mainstream Free Exercise interpretations hold laws that target a specific religious sect unconstitutional. Therefore, any difference in treatment would be incidental, as a result of a religious practice requiring conduct that the government has a secular purpose for regulating. These restrictions on conduct would be applied equally to all citizens, which is as facially neutral as possible. While the Free Exercise Clause promises the right to adhere to any religion, it makes no promise that adherents of certain religions are given advantages over other citizens in secular matters.
This assumes, however, that the statute in question is truly a neutral law generally applied, which would require it to have no exemptions whatsoever. It is quite plausible that a legislature would pass a law that would be neutral if not for exemptions favoring a popular religion. This would surely show unfair preference, just as targeting a religious practice would show unfair discrimination. But it is consistent with the Smith Test to require exemptions for other religions in such cases, through the application of a State-Triggered Compelling Interest Test.
The use of a State-Triggered Compelling Interest Test provides far clearer boundaries for both legislatures and courts, by defining how and when the Compelling Interest Test – or Sherbert Test – must be applied. The basic premise of the State-Triggered Compelling Interest Test is that, in cases where statutes have no exemptions for morally or religiously motivated behavior, this lack of exemptions will be accepted as proof that the state is applying the law neutrally, and has valid reason to prohibit exemptions in general. However, if exemptions are made to the statute’s policy for holders of certain religious, moral or ideological beliefs, this will be taken as proof that the state has no compelling interest in applying the statute’s policy universally and without exemption. In these cases, the state would have to demonstrate how the denial of an exemption was narrowly tailored to the furthering of a compelling (and secular) government objective. This state-triggered test would give legislatures the authority to apply important policies uniformly and universally, while still guaranteeing religious minorities protection from legislative discrimination. It would also provide a stronger definition for when to use the Compelling Interest Test, which has been applied so inconsistently at the Supreme Court level that Michael McConnell considered it a “Potemkin doctrine,” used only in theory.
Indeed, there was disagreement at the time of Smith over not only which test should be used, but also which tests had been used in prior cases. Justice Scalia’s interpretation of the Compelling Interest Test was that it had only become precedent for one narrow type of religious exemption: unemployment insurance claims. Scalia writes in his opinion that “we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant’s willingness to work under conditions forbidden by his religion [but w]e have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.” 
It makes sense that unemployment insurance claims would be treated differently than other cases for two main reasons: firstly, that insurance claimants are not breaking any law, but rather claiming coverage under a government policy, and secondly, that unemployment insurance often covers those who are unavailable for work due to a “good cause.” This second point is particularly relevant because it proves unemployment insurance laws were “developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.” Incidentally, this second point would “trigger” the State-Triggered Compelling Interest Test, and therefore cause the court to hold the law to the same scrutiny that it would have faced under the Sherbert Test.
But drug laws have no such “good cause” exemption. Nor do minimum wage laws, or business permit laws, or traffic laws, or laws regulating polygamy, or in fact the vast majority of neutral laws from which religious exemptions are claimed. And while Scalia admits that the court had “sometimes purported” to apply the Sherbert Test in other contexts, he also sees the facts that it had never mandated an exemption in any context other than unemployment insurance, and that the court had stopped applying it in most free exercise cases, as proof that the Sherbert Test held precedent only over unemployment compensation cases.
But contrary to Scalia’s argument, this was not strictly true: in Wisconsin v. Yoder (1972), the court applied the Sherbert Test and ruled that the state had no compelling interest to deny an exemption. Scalia writes off Yoder as a special kind of “hybrid case,” where the Free Exercise claim is supplemented by another claim to a separate right: here, the right to “direct the education of their children.”  This “hybrid” claim is rejected by McConnell, who postulates that “the notion of “hybrid” claims was created for the sole purpose of distinguishing Yoder [from Smith].” The Yoder decision itself lends credence to McConnell’s skepticism, as the general right to direct education of children is not only withheld, but rejected outright by the Court. Chief Justice Warren E. Burger wrote in his majority opinion that “[a] way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations” and then states bluntly that the court “giv[es] no weight to such secular considerations” in the case at hand. ,  Yoder was a Free Exercise case, and a Free Exercise case only.
What, then, to make of Yoder? It provides the counterpoint to Scalia’s insistence that the Supreme Court “ha[d] never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,”  and yet it is a unique case. Chief Justice Burger’s majority opinion treats the Amish as a sect completely segregated from the rest of society; he writes that “their habits […] do indeed set them apart from much of contemporary society; these customs are both symbolic and practical.” The Court is clear not to establish a general right to opt out of mandated education, as the right extends only to those whose entire religiously based and traditional lifestyle would be made impossible by compulsory high school education. But in differentiating the Amish from other groups, the Court may have ventured into the forbidden territory of religious preference. Burger’s majority opinion places a heavy emphasis on the history and tradition of the Amish culture, as if to prove that it is a more legitimate claimant to a religious exemption. It emphasizes the longevity of the Amish religious culture, noting that “the respondents’ religious beliefs and attitude toward life, family, and home have remained constant […] their religious beliefs and what we would today call “life style” have not altered in fundamentals for centuries.”  It also seems sympathetic to the unique challenges of the Amish lifestyle, recognizing that it “is inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform,”  and noting “almost 300 years of consistent practice [and] strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life.”  But an old and traditionally based religion is no more entitled to government exemptions than a novel and modern religion, if the premise of equal treatment of denominations is to be taken at face value. The Chief Justice’s approval of Amish values and history should be irrelevant to the case at hand.
Precedents and Exceptions
Regardless of the validity of Yoder, it was certainly a case in which the Court unanimously granted a religious exemption to a neutral law, neutrally applied; and therefore the Smith decision did, at least partially, overturn precedent. But Smith was hardly the first Free Exercise case to do so; indeed, such is the diversity of case results that it would be nearly impossible not to invalidate a previous Court ruling. The first major case involving a claim to religious exemption under the Free Exercise clause was Reynolds v. United States (1879). In Reynolds, the Court unanimously rejected a member of the Church of Latter Day Saints’ claim to his right to practice polygamy, as was mandated by his church at the time. Chief Justice Morrison Waite’s opinion stated that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”  In Reynolds, the Court established a doctrine that forbade Congress from regulating religious belief, but permitted them to regulate all religious conduct, provided they had any semblance of a secular purpose for doing so.
This quite narrow view of the Free Exercise clause lasted for over 80 years, until Cantwell v Connecticut (1940). Cantwell unanimously overturned the belief-conduct barrier established by Reynolds, ruling that “the [First] Amendment embraces two concepts—freedom to believe and freedom to act.” Without this reversal of precedent, there would be little debate over when religious exemptions are necessary; only a non-neutral law could violate Free Exercise right. Cantwell also incorporated the Free Exercise clause to the states for the first time, through the liberty provision of the Fourteenth Amendment. Soon after Cantwell, the Court delivered rulings in Minersville v. Gobitis (1940) and Jones v. Opelika (1942) that were swiftly overturned in West Virginia State Board of Education v. Barnette (1943) and Murdock v. Pennsylvania (1943), respectively. Clearly, it is not exceptional for the Court to overturn precedent. Smith itself was essentially overturned de facto, as RFRA effectively mandates the use of the Compelling Interest Test for Free Exercise exemptions at the federal level. The Supreme Court struck down RFRA’s application to the states in Boerne v. Flores (1997), but it upheld RFRA’s federal legitimacy in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), and a number of state legislatures have passed state-level RFRA equivalents.
Given that there is no universally accepted test to evaluate claims to religious exemptions, let alone clear judicial precedent, perhaps it is worth examining which test would be the fairest and clearest standard from this point forward. It is practically uncontested that belief itself cannot be regulated or targeted; but it is no less widely accepted that there is some religious conduct that the government must have the power to control. Even cases that grant exemptions are clear to emphasize this point; Justice Owen Roberts wrote in his unanimous Cantwell opinion that “[t]he first [freedom to believe] is absolute but, in the nature of things, the second [freedom to act] cannot be. Conduct remains subject to regulation for the protection of society.” Likewise in Yoder, where Chief Justice Burger defends the state’s authority to regulate conduct by stating that that “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” 
The Peace and Safety test, advocated by Michael McConnell, is so broad as to hold that “[w]here the putative injury is internal to the religious community, the government generally has no power to intervene, with the narrow exception of injury to children.” This is essentially a nonstarter, as the government is highly unlikely to relinquish its control over practices such as polygamy or drug use, let alone extreme examples like mass suicide. But even aside from these extreme examples, the Peace and Safety standard is so broad that the court could not possibly follow it strictly. Given that “the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege,” and McConnell and the three Smith dissenters’ insistence that each claim to exemption be viewed narrowly, on its own merits, there is no end to the plethora of claims that would be required by this test. If a Jehovah’s Witness can claim selling merchandise or avoiding paying employees the minimum wage as religious conduct, is it any more offensive to “peace and safety” for Quakers to be exempted from paying the portion of their taxes that go toward military spending, or for the Amish to be exempted from paying into Social Security, or for Catholics to be exempted from taxes that fund contraceptives they consider abortive? If a Seventh-Day Adventist is entitled unemployment compensation despite her refusal to work on Saturdays, is a fundamentalist Muslim who refuses to work closely with the opposite sex entitled to unemployment compensation? Subsidies, benefits, and tax exemptions are all different means to the same end: they drain money from public coffers. Public funding is zero-sum; what one person receives in subsidy is paid through another’s taxes. These cases therefore present a burden on members of other religions, or irreligion, and provide, to some extent, a conflict of rights, as well as a potential threat to the social welfare state in a secular government. It is best left for the legislature to evaluate these complex questions of policy.
To further convolute the matter, Free Exercise claims to exemption now apply not only to private citizens and churches, but to private for-profit corporations as well. This broad guarantee of exemptions, claimed to a broad and growing group of entities, would effectively force the Court to act like a legislature, in a matter generally viewed as inappropriate to the judiciary’s role in the federal system. The Peace and Safety test would itself become a “Potemkin doctrine,” requiring both a broad interpretation of peace and safety and a narrow definition of religious belief for laws to retain any semblance of universal applicability.
But even a narrower test, like the Compelling Interest Test, proves similarly insufficient at justly and clearly evaluating claims to religious exemptions. As the Court showed in the Yoder decision, the court often measures the sincerity and centrality of religious beliefs, the history of the religious tradition in question, or even the moral legitimacy of the religious beliefs when reaching a decision on the case. But this weighing of merits opposes the highest principle of the Free Exercise and Establishment clauses: that government cannot favor one religion over another, or hold any religion in particularly high esteem, for any reason. It is readily accepted that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” 
The Smith dissent, too, relies on proving the legitimacy and morality of the Native American Church. Justice Blackmun writes that “the values and interests of those seeking a religious exemption in this case are congruent, to a great degree, with those the State seeks to promote.” This is a dangerously subjective interpretation of how to evaluate the legitimacy of a religious claim; for a government to grant an exemption to a religion because it approves of its values and interests is a clear display of preference. But such judgment is necessary given the presence of religious claims that the state simply cannot admit precisely because they are anathema to the state’s secular laws.
There is also the question of fraudulent claims to religious belief; the court must answer the question of what defines a religion in general, let alone how palatable it is to the state’s sense of morality. As Chief Justice Burger wrote in Yoder, “a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question.”  Nearly anything can be claimed as religiously motivated, and “[w]hat principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is “central” to his personal faith?” Even regarding accepted religions, one cannot help but wonder if Blackmun, Brennan and Marshall would have granted a member of an unpopular religion the same protection they granted Smith and Black, or whether the Burger Court would have granted those groups the same exemption from mandated education as it granted the Amish in Yoder. The Sherbert Test would grant them the means to deny these unpopular claims. Justice Blackmun claims that “It is not the State’s broad [policy] interest […] that must be weighed against respondents’ claim, but the State’s narrow interest in refusing to make an exception.”  But Justice O’Connor, who also applied the Sherbert Test in Smith, disagreed with Blackmun on this point. And even if there were consensus, broad and narrow are relative terms on a sliding scale. A Court granted this much room for interpretation could never apply the test consistently in all cases, and unpopular religions would almost certainly suffer the consequences of this judicial leeway.
In effect, the Supreme Court has acted as a legislature when applying the Sherbert Test, exempting actions it considers offensive to the integrity of the state’s secular authority while granting a right to exemption for claims they consider valid. This jurisprudence undermines the judgment and authority of proper legislatures, while simultaneously allowing for a preference of religion offensive to the Free Exercise and Establishment Clauses. A State-Triggered Compelling Interest Test would allow a legislature the authority to make policies truly neutral and universally applicable if it considers that universal application essential to the law’s purpose. It would also provide a clearer standard for when to apply the Compelling Interest Test, such that judges could apply it more consistently in cases that do trigger strict scrutiny.
It should also be noted that a Free Exercise Clause under the State-Triggered Compelling Interest Test is still more than sufficient to prevent governmental religious discrimination. No belief may be targeted, no religion may be outlawed, no religious preference may be shown by the state, and no conduct may be targeted because of its religious connotations. These are strong protections, capable of guaranteeing religious liberty and equality. Legislatures are permitted to make religious exemptions to laws, and, in cases where similar exemptions have been allowed by the state, claims for further exemptions will be evaluated with strict scrutiny. Legal history and reason have shown us that any further guarantees to exemption from neutral laws are impossible to enforce consistently or justly, and are therefore unwise.
 Burwell v. Hobby Lobby Stores, 537 U.S. __ (2014)
 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
 Smith at 874-891
 McConnell, Michael W. “Free Exercise Revisionism and the Smith Decision.” The University of Chicago Law Review 57, no. 4 (October 1990): 1109-53. (at 1128)
 For purposes of this paper, the Sherbert Test is the same as the Compelling Interest Test or Strict Scrutiny, and the three terms will be used interchangeably. This is the standard used in the Religious Freedom Restoration Act.
 In City of Boerne v. Flores (1997), Stevens wrote in his concurring opinion that religious exemptions provided religious citizens “with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.” (Boerne, 521 U.S. at 536-537). No other Supreme Court Justice has ever espoused this strictly non-preferential view of exemptions, and this paper will not deal extensively with the Establishment Clause argument against exemptions.
 McConnell 1132
 McConnell 1153
 Exemptions not based on religion or morality could also suggest that the state has no compelling interest in applying the law universally, although not necessarily.
 McConnell 1110
 Smith at 883
 Smith at 884
 Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)
 Murdock v. Pennsylvania (City of Jeanette), 319 U.S. 105 (1943)
 Cox v. New Hampshire, 312 U.S. 569 (1941)
 Reynolds v. United States, 98 U.S. 145 (1879)
 Wisconsin v. Yoder, 406 U.S. 205 (1972)
 Smith at 881
 McConnell 1121
 Yoder at 215-216
 Yoder at 216
 Smith at 878-879
 Yoder 217
 Yoder at 216-217
 Yoder at 217
 Yoder at 219
 Reynolds v. United States, 98 U.S. 145 (1879)
 Reynolds at 166
 Cantwell v. Connecticut, 310 U.S. 296, (1940)
 Cantwell at 303
 Minersville School District v. Gobitis, 310 U.S. 586 (1940)
 Jones v. Opelika; Bowden v. Fort Smith; Jobin v. Arizona, 316 U.S. 584 (1942)
 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
 Murdock v. Pennsylvania (City of Jeannette), 319 U.S. 105 (1943)
 Barnette overturned Gobitis by ruling that the state could not require students to salute the flag if they had a religious objection. Murdock overturned Jones by ruling that the evangelically-motivated sale of religious materials is exempt from business license fees. In all four cases, he claimants of exemptions were Jehovah’s Witnesses.
 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
 Cantwell at 303-304
 Yoder at 215-216
 McConnell 1145
 Sherbert at 405
 United States v. Lee, 455 U.S. 252 (1982)
 Burwell v. Hobby Lobby Stores, 537 U.S. __ (2014)
 Hernandez v. Commissioner, 490 U.S. at 699 (1989)
 Smith at 914
 Yoder at 215
 In Smith at 889, Justice Scalia provides eleven separate examples of areas where claimed religious exemptions were offensive to the integrity of the state. In Justice O’Connor’s dissent at 902, she describes these examples as a “parade of horribles.”
 Smith at 887
 Smith at 909-910