Laws Neutral to Religious Practice from the 1960s through the 1980s

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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.

In the 1960s through the 1980s, the Supreme Court began to apply a heightened level of scrutiny in many Free Exercise Clause challenges—although the precise contours of this heightened scrutiny were inconsistent, both in the particulars of the test and in its application.

In 1961’s Braunfeld v. Brown, business owners who observed the Saturday Sabbath challenged a law requiring their businesses to close on Sundays.1 Although the law was facially neutral as to religion, the merchants argued the law burdened their religious exercise by either compelling them “to give up their Sabbath observance” or putting them “at a serious economic disadvantage” if they closed for the entire weekend.2 A plurality of the Court cautioned that courts should not unduly constrain “legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself.” 3 The plurality held that “if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.” 4 In the Court’s view, the Sunday closing law had a valid secular purpose and effect in creating a common day of rest,5 and there were no effective alternative measures that would achieve this purpose without incidentally burdening religious freedom.6 Although the opinion seemed to state a somewhat heightened standard of review, the Court upheld the law after concluding that proposed alternative schemes that would accommodate the business owners “might well” be less effective at achieving the state’s goals.7 Subsequent cases similarly seemed to suggest that laws placing only “incidental burdens” on religious beliefs might be more readily upheld.8

The Court articulated and applied a heightened standard of review to evaluate a free exercise claim in Sherbert v. Verner, issued just two years after Braunfeld.9 A state had denied unemployment benefits to an employee who was fired after refusing to work on the Sabbath, claiming the employee was ineligible for benefits because she had “failed, without good cause . . . to accept suitable work.” 10 The Supreme Court held first that this denial burdened the employee’s religious exercise by forcing “her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” 11 The Court then said that to justify this “substantial infringement” of her rights, the state could not show “merely . . . a rational relationship to some colorable state interest,” but would have to demonstrate that its policy served a “compelling state interest” 12 —an element seemingly not required in Braunfeld.13 The Court held that the state had not met its burden, as its concerns about fraudulent claims filed by “unscrupulous claimants feigning religious objections to Saturday work” were unsupported by the record.14 Further, the state had not shown that “alternative forms of regulations” could not “combat such abuses without infringing First Amendment rights.” 15 This stood in contrast to Braunfeld, which the Court said involved a “less direct burden upon religious practices,” and where the alternative methods appeared to pose such significant administrative problems that they “would have rendered the entire statutory scheme unworkable.” 16

A number of subsequent decisions seemed to follow Sherbert's heightened scrutiny standard, particularly in the unemployment benefits context. Additional decisions in the 1980s held that states had failed to satisfy the compelling interest test in denying unemployment benefits to those who lost employment based on religious objections to the nature of their assigned tasks17 or to working on certain days.18 These decisions can be seen as the Court applying the general doctrine of unconstitutional conditions, which holds that the government cannot infringe constitutional rights “by the denial of or placing of conditions upon a benefit or privilege.” 19

In another decision, Wisconsin v. Yoder, the Court seemed to apply a Sherbert-like form of heightened scrutiny.20 The case involved Amish parents who held religious objections to sending their children to high school and violated a state compulsory attendance law.21 Although the Court recognized the state’s “interest in universal education” as generally compelling, it held that such interest was “not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children.” 22 After noting that the law’s effect on the Amish parents’ religious exercise was “not only severe, but inescapable,” and would “gravely endanger if not destroy the free exercise” of their beliefs,23 the Court said it had to “searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16.” 24 The Court concluded that the evidence did not suggest the law was so necessary to serve the state’s interests as “to justify the [law’s] severe interference with religious freedom.” 25

The Court again applied a heightened form of scrutiny in United States v. Lee, although in that case it rejected a free exercise challenge to the forced payment of social security taxes.26 An employer raised religious objections to accepting or paying into the national social security system.27 The Court said the government could justify the law’s infringement on his religious liberty by showing the law was “essential to accomplish an overriding governmental interest.” 28 After describing the government’s interest in “mandatory and continuous participation in” the social security system as “very high,” the Court held that “it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs.” 29 Accordingly, “religious belief” could not provide a “basis for resisting the tax.” 30 More broadly, the Court declared that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 31 Justice John Paul Stevens, in a concurring opinion, suggested that this decision was in “tension” with Sherbert.32

Subsequent decisions of the Court attempted to reconcile the tension between the two standards in various ways. In Bob Jones University v. United States, a religious university argued that racial nondiscrimination requirements infringed upon its religious beliefs prohibiting interracial dating and marriage.33 The Supreme Court held that the government had satisfied Sherbert's compelling interest test, citing Lee for the idea that the government may sometimes burden religious liberty.34 Another opinion rejected a constitutional challenge to a federal decision to tax certain payments for religious services, saying that Sherbert's compelling interest test applied only if the government had “placed a substantial burden on the observation of a central religious belief or practice.” 35 However, the Court in that case said that under Lee, even a substantial religious burden would be justified by the government’s interest in maintaining a uniformly applicable tax system.36 In another case involving a Free Exercise Clause challenge to a sales and use tax applied to religious materials, the Court concluded Sherbert's compelling interest standard did not apply where the challenger’s religious beliefs did not “forbid payment” of the tax, holding that the collection and payment of the tax imposed “no constitutionally significant burden on appellant’s religious practices or beliefs.” 37

In Bowen v. Roy, involving a religious objection to the federal government’s assignment and use of Social Security numbers, a plurality of the Court agreed that public benefits laws should not be subject to the heightened standard of Sherbert and Yoder.38 The Court drew a distinction between “government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs” and “governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons.” 39 Further, the plurality suggested that the heightened scrutiny applied in Sherbert was motivated by concerns specific to the state law’s “'good cause’ standard,” which “created a mechanism for individualized exemptions” that opened the door for religious discrimination.40 Applying a less rigorous standard, the Bowen plurality rejected a free exercise challenge to a federal law requiring benefits applicants to provide a Social Security number, saying there was no evidence “suggesting antagonism by Congress towards religion generally or towards any particular religious beliefs.” 41 The Social Security number requirement “clearly promote[d]” the government’s stated interest in preventing fraud—a “legitimate and important public interest.” 42 The Bowen plurality’s views on the appropriate standards to evaluate Free Exercise Clause challenges would be largely vindicated with the Supreme Court’s 1990 decision in Employment Division v. Smith, discussed in a subsequent essay.43

1: Braunfeld v. Brown, 366 U.S. 599, 601 (1961) (plurality opinion). Sunday closing laws also engendered a number of Establishment Clause challenges. See Amdt1.3.5.3 Purpose and Effect Test Before Lemon.
2: Braunfeld, 366 U.S. at 601–02.
3: Id. at 603, 606.
4: Id. at 607.
5: See id.; McGowan v. Maryland, 366 U.S. 420, 507 (1961) (opinion of Frankfurter, J.) (rejecting the Free Exercise Clause claims in Braunfeld after concluding the law had this valid secular purpose).
6: Braunfeld, 366 U.S. at 608 (plurality opinion); accord McGowan, 366 U.S. at 520 (opinion of Frankfurter, J.).
7: Braunfeld, 366 U.S. at 608–09 (plurality opinion).
8: See, e.g., Gillette v. United States, 401 U.S. 437, 462 (1971) (rejecting Free Exercise Clause challenge to federal law exempting from military service only those who objected, on religious grounds, to participating in all wars, not those with religious objections to a particular war, saying the law’s “incidental burdens” on religious beliefs were “strictly justified by substantial governmental interests” ); Johnson v. Robison, 415 U.S. 361, 385 (1974) (rejecting Free Exercise Clause challenge to federal law excluding conscientious objectors from veterans’ benefits, citing Gillette to conclude that the law’s “incidental burden” on religion was justified by the government’s “substantial interest in raising and supporting armies” ).
9: Sherbert v. Verner, 374 U.S. 398, 406 (1963).
10: Id. at 399–401 (quoting S.C. Code Ann. § 68-114 (1952)).
11: Id. at 404.
12: Id. at 406.
13: See Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion).
14: Sherbert, 374 U.S. at 407.
15: Id. at 407.
16: Id. at 408–09.
17: Thomas v. Review Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 719 (1981) (involving a religious objection to making armaments, a newly assigned role for the employee).
18: Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 831, 833 (1989) (involving a sincere religious objection to working on Sunday, which was held to be protected even though the challenger “was not a member of an established religious sect or church” ); Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 141 (1987) (involving a religious objection to working on the Sabbath). Cf. Luetkemeyer v. Kaufmann, 364 F. Supp. 376, 386 (W.D. Mo. 1973) (rejecting free exercise challenge to provisions excluding private schools from a school transportation program, noting the state’s compelling interest in “insist[ing] upon a degree of separation of church and state” ), aff’d, 419 U.S. 888 (1974) (mem.).
19: Sherbert, 374 U.S. at 404–05; see also Amdt1.7.13.1 Overview of Unconstitutional Conditions Doctrine. Cf. Bowen v. Roy, 476 U.S. 693, 706, 703 (1986) (plurality opinion) (ruling that a statutory requirement for benefits claimants to provide a Social Security number did not “place a direct condition or burden on the dissemination of religious views” ); Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm’n, 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on group’s religiously motivated activity, saying that the state’s refusal to grant corporate status “by itself does not infringe in any significant way on the free exercise of their religious practices” ), aff’d, 405 U.S. 901 (1972) (mem.).
20: Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
21: Id. at 207.
22: Id. at 214, 221; see also id. at 215 ( “[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” ). Further, distinguishing the child labor law that was upheld in Prince v. Massachusetts, 321 U.S. 158, 169–70 (1944), the Court said the state’s compulsory education law did not confront “any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare.” Yoder, 406 U.S. at 230. Prince is discussed in more detail in Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s.
23: Yoder, 406 U.S. at 218–19.
24: Id. at 221.
25: Id. at 227. Although this language could be seen as going to the law’s fit, or tailoring, the Court phrased the inquiry largely in terms of the state’s interest. See id. at 228–29 (saying that after reviewing evidence on the law’s purpose and effects, “Wisconsin’s interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally” ).
26: United States v. Lee, 455 U.S. 252, 254 (1982).
27: Id. at 255–56. The law contained a religious exemption available to self-employed individuals, for which he did not qualify. Id. at 256.
28: Id. at 258. As support for this standard, the Court cited Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Gillette v. United States, 401 U.S. 437, 462 (1971); and Sherbert v. Verner, 374 U.S. 398, 406 (1963). Lee, 455 U.S. at 257–58. As discussed above, these three cases could be seen as articulating slightly different standards for evaluating Free Exercise Clause claims.
29: Lee, 455 U.S. at 259–60.
30: Id. at 260.
31: Id. at 261.
32: Id. at 263 n.3 (Stevens, J., concurring).
33: Bob Jones Univ. v. United States, 461 U.S. 574, 602–03 (1983).
34: Id. at 603–04.
35: Hernandez v. Commissioner, 490 U.S. 680, 699 (1989).
36: Id. at 699–700.
37: Jimmy Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 391–92 (1990). The Court distinguished prior cases invalidating flat license taxes as unconstitutional prior restraints by saying concerns that the tax would “act as a precondition to the free exercise of religious beliefs” were “simply not present where a tax applies to all sales and uses of tangible personal property in the State.” Id. at 387. Those prior cases evaluating flat license taxes, Murdock v. Pennsylvania, 319 U.S. 105 (1943), and Follett v. Town of McCormick, 321 U.S. 573 (1944), are discussed supra Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s.
38: Bowen v. Roy, 476 U.S. 693, 706–08 (1986) (plurality opinion).
39: Id. at 706. See also Emp. Div., Dep’t of Human Res. of Or. v. Smith, 485 U.S. 660, 671–74 (1988) (saying that Sherbert might have been decided differently “if the employees had been discharged for engaging in criminal conduct,” and remanding the case to the lower courts to reconsider a free exercise challenge to a denial of unemployment benefits, instructing the courts to consider whether religiously motivated peyote use was constitutionally protected or prohibited by state criminal law); Reynolds v. United States, 98 U.S. 145, 166 (1845) (rejecting a free exercise challenge to a criminal prosecution for bigamy).
40: Bowen, 476 U.S. at 708.
41: Id.
42: Id. at 709. The plaintiffs also challenged the federal government’s internal use of Social Security numbers. See Amdt1.4.3.3 Laws Neutral to Religious Practice and Internal Government Affairs.
43: Emp. Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990); see Amdt1.4.3.4 Laws Neutral to Religious Practice and Current Doctrine.