A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence

Article excerpt

I.   AN INTRODUCTION TO GENERAL
     APPLICABILITY
II.  THE GENERAL APPLICABILITY REQUIREMENT IN
     THEORY AND PRACTICE
  A. The Theoretical Underpinnings of General
     Applicability
  B. The Application of the General Applicability
     Requirement
III. THE GENERAL APPLICABILITY INQUIRY
     AND CONSTITUTIONAL LUCK
  A. More Test Suites
     1. Fraternal Order of Police v.
        City of Newark
     2. Employment Division v. Smith
  B. The Underlying Factors on Which the
     Constitutional Right Depends
     1. Irrelevant Factors
     2. Not Keyed To Important Interests
        a. The Government's Interest
        b. The Religious Claimant's Interest
     3. Smith, Balancing, and the
        Cost-Benefit State
 IV. CONCLUSION

In 1990, the Supreme Court altered the doctrinal landscape of free exercise jurisprudence in Employment Division v. Smith. (1) Before Smith, federal free exercise cases had been governed by the doctrine of Sherbert v. Verner; (2) laws burdening religious exercise had to be justified by a compelling state interest. In Smith, however, the Court articulated a new test, holding that the government need not have a compelling state interest as long as the law burdening religious practice is neutral and generally applicable. (3)

Smith incensed much of the academic community, who complained that it was out of line with the normal judicial constraints: case precedent, original intent, and textual language. (4) Others feared the effects Smith would have on religious communities; they argued that the principles laid out in Smith could not be counted on even to prevent religious persecution. (5)

But the vitriolic attacks against Smith have decreased in fury, as one would expect; the Supreme Court has given no sign that it will change its mind, and so both practitioners and academics have, quite sensibly, thrown their efforts into making the Smith test as protective as possible. In practice, these efforts have been attempts to attack laws as being not generally applicable. Essentially, every time a rule has an exception for some non-religious reason, (6) a religious claimant can argue--perhaps successfully, perhaps not--that making an exception for some secular reason and not making a religious exception effectively discriminates against religious observers. In this manner, the general applicability requirement becomes an expansive form of a disparate-treatment right.

This has seemed very promising for practitioners and academics who favor a strong Free Exercise Clause. Recent lower court cases, such as Fraternal Order of Police v. Newark, (7) Tenafly Eruv Association, Inc. v. Borough of Tenafly, (8) and Rader v. Johnston, (9) have given the idea that a broad enough conception of the general applicability requirement can sufficiently protect religious observers. Thus, the current debate has focused on the internal contours of the general applicability requirement: When does a secular exception necessitate a religious exception? How significant does the secular exception have to be in terms of the rule before a religious exception becomes a constitutional right?

The understanding of the general applicability requirement underpinning these debates is, I contend, a bit naive. The general applicability requirement--no matter how broadly it is interpreted-gives far less of a constitutional right than commentators have assumed. Because a constitutional exemption depends on secular exceptions, which in turn arise only when laws create secular burdens, religious claimants can only receive exemptions from laws when they create substantial secular burdens. As I hope to demonstrate, this fact means that getting an exemption under the new Free Exercise Clause has become a matter of constitutional luck: it depends on random, arbitrary factors, and the protection it provides is sporadic, idiosyncratic, unprincipled, and unpredictable. And in part because it is dependant on irrelevant factors, the general applicability test is completely unresponsive to the strength of the governmental and religious interests at stake. …