I want to talk to you about the Free Exercise Clause of the Constitution. This post is long.
My view of the Free Exercise Clause is one part of a larger approach to 
constitutional adjudication involving the religion clauses. For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone. Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable. It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.
These are fair criticisms, and I do my best to address them. I do this in part by taking a close look at the way in which a selection of district and intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.
What I find is: that rule is not nearly as inviolable as many who invoke it believe. In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors. The trouble, as I have explained before, is the issue of general applicability. Employment Division v. Smith carved out the unemployment compensation cases from its holding. But, per this amicus brief, it is more accurate to think about this carve-out not as an “exception” but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not “generally applicable” are lifted out of the Smith ”rule” and receive judicial balancing. How do we know when a law is not “generally applicable”?
It falls to courts to determine what “generally applicable” means along the spectrum. It cannot mean that the law has no exceptions, period; that would destroy the rule. And yet “generally applicable” must mean something. What it means is the subject of judicial interpretation–for now, very much in the common law style. And that means that the Smith rule is much less predictable than its supporters suppose: “If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches.” Chapter 8, The Tragedy of Religious Freedom. That is not enough, by itself, to convince you to adopt my approach. For that, you need to buy the book!
Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania. The case is somewhat unusual inasmuch as the plaintiffs are both nonprofits and for-profits. The nonprofits’ case was dismissed on standing grounds (only the Eastern District of New York, to my knowledge, has not followed this route for nonprofits). As to the for-profits, after discussing the issue of a corporation’s exercise of religion and the RFRA claim, the court rested its decision to deny the motion to dismiss with respect to plaintiffs’ free exercise decision on an analysis of the issue of general applicability. Here’s a substantial chunk of the decision, beginning around page 46:
There is little doubt that the mandate’s requirements are facially neutral in the sense that they are directed toward benefiting the public health, and are not explicitly targeted at any particular religious conduct. The court’s analysis, however, must extend beyond the face of the regulations in question. The Court of Appeals for the Third Circuit has acknowledged that
the Free Exercise Clause’s mandate of neutrality toward religion prohibits government from ‘deciding that secular motivations are more important than religious motivations.’ . . . Accordingly, in situations where government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation of the reasons underlying a violator’s conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.
Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002). The process of implementing the objected to requirements has been replete with examples of the government impermissibly exercising its discretion by exempting vast numbers of entities while refusing to extend the religious employer exemption to include entities like SHLC.
The primary example of the “categorical exemption” rejected in Fraternal Order of Police in the present case is the grandfathering provision in the ACA, which exempts as many as 191 million entities from the mandate’s requirements. The grandfathering exemption impacts secular employers to “at least the same degree”—and likely far more—than religious objections from entities like SHLC. Blackhawk, 381 F.3d at 209. The fact that the government saw fit to exempt so many entities and individuals from the mandate’s requirements renders their claim of general applicability dubious, at best. Elsewhere in their briefing, defendants respond that the number of grandfathered plans will continue to decrease as time goes on. Even if this comes to fruition (which is not a certainty), the secular exemption for employers with fewer than fifty full-time employees that choose not to provide any insurance coverage remains. 26 U.S.C. § 4980H(c)(2)(A). Taken together, these categorical exemptions for secular entities and individuals raise a concern that the mandate’s requirements are not generally applicable.
In addition to the secular exemptions, the government continues to engage in an impermissible “religious gerrymander” by extending exemptions to an increasing number of religiously-affiliated entities. Although the court of appeals in Blackhawk and Fraternal Order of Police was not faced with the situation where, as here, some religious conduct is exempted, the fact that defendants continue to carve out exemptions, see generally 78 FED. REG. 8,456, while subjecting SHLC and other similarly-situated close corporate entities to the mandate’s requirements, raises a suggestion of “discriminatory intent” against close corporate entities seeking to advance the religious beliefs of their owners. Fraternal Order of Police 170 F.3d at 362. On the present record, this court finds that the Hepler plaintiffs raised plausible claims that the sheer number of exemptions—both secular and religious—to the mandate’s requirements burdened their free exercise rights to an extent sufficient to trigger strict scrutiny. The court already analyzed the mandate’s requirements under the compelling government interest test in the RFRA context and found that they do not survive strict scrutiny; therefore, for the same reasons, the First Amendment claim is sufficient, and the motion to dismiss this claim must be denied.
Let’s set to the side, for the moment, the issue of the proper interpretation of “general applicability.” This court interpreted in a certain way; other courts, as I show, interpret it differently.
The problem with the “general applicability” issue isn’t that one court may decide a case in a way you might like, and another court may decide a different case in a way you might not. The real burn of it is that the very unpredictability that Smith aimed to eliminate has seeped right back in. No matter how rule-like Smith tried to be, it could not squeeze out of constitutional adjudication what is and must be true about it (at least as to issues like these). And if the response is that we can solve all of this by clarifying Smith and making it even more rule-like, my reply is: the more you squeeze, the more slips through.
Targeting, Unequal Application, and Free Exercise
This may be obvious to readers of this blog, but perhaps it’s worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of “constitutional violations.” Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.
I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).
Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group’s plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing “sacrificing” an animal defined sacrifice as “to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption.” The Court struck down these ordinances as violations of the Free Exercise Clause.
How might these cases apply here? Suppose that the government’s explanation for delaying and/or denying a particular group’s application for tax-exempt status was that the group “is not educational” or “is political” or “does not present all views.” As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, “No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views” without violating the Free Exercise Clause as interpreted by Smith (of course, it would be violating other provisions of the Constitution, but I am focusing specifically on free exercise).
Things don’t end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn’t really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or “targeting,” it did not. Only two Justices–Kennedy (writing for the majority) and Stevens (who joined him on this point)–relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City’s desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be–given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be “narrowly tailored” to the government’s aims, and the failure of that narrow tailoring in turn suggests that the government’s interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law’s aims and application is.
One might wonder whether this difference is important. A law that is motivated by the desire to “target” religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might “target” religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a “leap of faith” off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to “target” this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the “dangerous” (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the “targeting” legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.
In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government’s subjective intention to “target” particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.
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Posted in Commentary, Marc O. DeGirolami
Tagged Constitutional Law, Free Exercise Clause, Religious Discrimination