Omaha, Nebraska
Spring 1998
Volume 9, Number 2

Religious Freedom vs. Compelling State Interests

Bette Novit Evans
Associate Professor of Political Science

Religious freedom is one of America's most cherished constitutional rights.1 To identify religious freedom as a right is to recognize that it deserves protection, even in the face of strong conflicting values. Sometimes the costs to these other values are substantial indeed, and sometimes they are even sufficient to outweigh rights claims. When a right is constitutionalized, it is protected from change through the ordinary political process. I think of a constitutional right as one of the ways our Founding Fathers put a thumb on the scale on the side of some very important liberties, so that they cannot easily be voted away by careless majorities, or balanced away when they become inconvenient.

It is easy to see why we need a thumb on the scale. If the interests of a single individual are balanced against a whole social policy, the individual will almost always lose. This is what happened when the Supreme Court majority in the Smith case tried to balance Alfred Smith's interests in participating in a peyote ceremony at his church against the state's interest in waging a vigorous war against illicit drugs.2 This kind of balancing of interests places the individual at a disadvantage because more widely shared interests can easily outweigh the interests of dissenting individuals or groups. In fact, this kind of balancing doesn't treat rights as rights at all.

To protect our special commitment to rights, the courts over the last 60 years have developed a way to keep a thumb on the scale. When a law threatens certain fundamental rights, the laws defenders assume the burden of proof to justify it. They have to convince the court that (1) the challenged law served not just an important public purpose, but a genuinely compelling one; (2) the law was well tailored to achieve that purpose, and (3) the purpose could not be achieved by some less burdensome method. This method of argument is called the compelling state interest test. Perhaps the single dearest statement of this doctrine is in Wisconsin v. Yoder, in which the Supreme Court upheld the right of Amish parents to give their teenagers traditional vocational training in the community rather than send them to schools. In Chief Justice Burger's words ". . . only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."3 While the standard gives special weight to religious freedom claims, that extra weight has not always been sufficient to outweigh State claims. Very often, other interests do prevail against religious claims. As important as religious freedom is, Courts have ruled that public health and safety, protection against fraud, and even administrative consistency sometimes outweigh religious freedom claims. Still, when the Smith case was argued, lawyers for both sides assumed the compelling state interest standard to be the appropriate standard of review. Thus, when the majority rejected this standard, they made a significant reversal in constitutional policy to the surprise of both parties to the case.

No case in this generation has fueled battles over religious freedom like the majority's cavalier treatment of religious liberty in Smith. The case began when Alfred Smith and Galen Black were fired from their jobs in a drug rehabilitation program for using peyote, which was part of religious ritual of the Native American Church. They applied for unemployment compensation, but their application was denied on the grounds that they were fired for work related misconduct. Smith and Black appealed the denial of state benefits, and the Oregon Supreme Court decided in their favor, but in 1990 the United States Supreme Court ruled against them. Beyond the specific ruling on peyote use, the decision in Smith significantly narrowed the scope free exercise protection. The decision divided the Court as well. Justice Antonin Scalia wrote the opinion of the Court, speaking for himself and four other Justices. Justice O'Connor wrote a concurring opinion, joining him in the decision, but disagreeing profoundly with his reasoning. Three justices dissented.

According to Justice Scalia, general laws that do not discriminate against any particular religious practice do not violate the constitution. Because Oregon's drug laws were not targeted at the Native American church, but only incidentally penalized the Church's peyote rituals, the constitution was not violated. Moreover, he asserted that the First Amendment does not require that laws burdening religious exercise be justified by a compelling state interest. This removes the thumb from the scales on behalf of religious liberty and allows courts simply to weigh the interests of Smith and Black against the whole state policy of combating illegal drugs. As we have seen, without the extra weight of the compelling state interest test, religious practices like theirs do not fare very well. This throws protection of religious liberty back to the political process, as Justice Scalia recognized, in one of his most quoted and most criticized lines: "Values that are protected against government interferences through enshrinement in the Bill of Rights are not thereby banished from the political process." He readily admits that "leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequences of democratic government must be preferred to a system in which each conscience is a law unto itself . . ."

Justice Scalia feared that anyone with a religious objection to a law could simply refuse to obey it and demand an exemption as a constitutional right; the result would be anarchy. Especially in a religiously plural society, virtually every ordinary policy, from labor to health policy, foreign policy to education could potentially burden the religious interests of some faith. In Scalia's words, to hold such laws presumptively invalid--at least as applied to religiously motivated persons, would be "to make an obligation to obey...a law contingent upon the law's coincidence with religious beliefs, except where the State's interest is compelling," permitting one "to become a law unto himself." This danger is all the more troubling, he argues, because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference." Hence, "we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order."

Scalia found the compelling state interest standard vulnerable on another count as well. He argues that it is inconsistent with judicial restraint. When judges place their thumbs on the scale in favor of individual rights, they are weighting the balance against a decision made in the political process in this case, by the legislature of the State of Oregon. Furthermore, by removing the balancing from the legislative process and placing it in the hands of unelected judges, this process enhances the power of courts to substitute their judgment for those of elected officials.

Justice Scalia's reasoning did not persuade four of his colleagues. Justice O'Connor's opinion and the vigorous dissent authored by Justice Blackmun, provide a strong defense of compelling state interest. What looked like a weakness to Justice Scalia looked like a strength to these justices. Without serious judicial scrutiny, the fate of minority religions would indeed be left up to the political process, which is precisely what the Bill of Rights is intended to prevent. "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

In Justice O'Connor's words:

    "The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order."

    "Only an especially important government interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens."

Dissenting Justice Blackmun reminded his brethren that: "It is not the State's broad interest in fighting the critical 'war on drugs' that must be weighed against respondents' claim, but the State's narrow interest in refusing to make an exception for the religious, ceremonial use of peyote." From this perspective, the dissenters concluded that virtually nothing is lost by granting the exemption especially since the State could present no evidence of harm resulting from sacramental peyote use. The dissenters pointed out that both the United States and 23 states exempt sacramental use of peyote from criminal prosecutions, without reported problems.

The decision in Smith galvanized one of the broadest coalitions of activists ever assembled. Religious fundamentalists joined forces with civil libertarians, religious leaders of virtually every faith, and constitutional scholars organized to persuade Congress to restore the compelling state interest test to federal law through legislation. Responding to this broad-based demand, Congress in 1993 adopted the Religious Freedom Restoration Act, which legislatively restored the standard for constitutional review in the federal courts.4 The statute could not be more clear about Congress' attitude toward the Smith precedent:

    in Employment Division v Smith, the Supreme Court virtually eliminated the requirement that government justify burdens on religious exercise imposed by laws neutral toward religion; and the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior government interests.

Congressional adoption of the Religious Freedom Restoration Act demonstrates the genius of our complex democracy, and undermines Justice Scalia's rather simple view of majority rule. By adopting the Act, Congress put the weight of the popularly elected branch of government squarely behind the compelling state interest standard and thus squarely behind a strong judicial protection of constitutional rights. So, when the Supreme Court struck down the Religious Freedom Restoration Act in Tune, 1997 in the Boerne case5 supposed defenders of majority rule turned out to be just the opposite, telling the Congress to butt out of constitutional issues and leave them to the Courts alone. Striking down the law meant both overriding the electoral branch of government and maintaining a very constricted view of religious liberty. It is difficult for such a court to proclaim itself as either champion of majority rule or of individual rights.

I think it helps to think of this whole conflict within the context of our political system as a whole. The genius of our political system is the distribution of power. The variety of governmental institutions at all levels helps provide access to many different groups; those who may be disadvantaged in dealing with one institution may find more favorable access in another. Congress may be attentive to certain kinds of interests, and courts to others; federal agencies have particular constituencies, but State agencies, city councils, other institutions are receptive to others. Every branch including the courts is constituted to provide access to some different combination of interests. The compelling state interests test empowers courts to balance interests in different ways than legislative or administrative procedures. Policies made by legislative or administrative bodies are likely to be responsive to mainstream interests. When these policies are challenged in courts, judges weigh the balance with different weights. The different institutions and different measuring devices contribute a crucial redundancy to the system of constitutional protections. There is no guarantee that judicial decisions will differ from legislative ones, but there is a second option to increase the opportunities for religious interests to receive a serious hearing. The courts provide a place for conflicting interests to be heard, and to be weighted on a different scale than those used in the original instance.

If there is a happy side to this story, it is the fact that in our system of government not even the U.S. Supreme Court has the last word. State Courts and legislatures are free to give more vigorous protection under their own constitutions, and school boards, city councils, landmark commissions, and legislatures keep the process going. In American constitutional politics, there is no final authority. The story continues.


1 The very first words of our Bill of Rights declare that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . ."

2 Employment Division, Department of Human Resources of Oregon v Smith 494 US 872 (1990).

3 406 US 205 (1972).

4 Pub. L. No. 103-144; 107 Stat. 1480.

5 City of Boerne v Flores 117 S. Ct.--(1997)