A Blessing in Disguise: Protecting Minority Faiths through State Religious Freedom Non-Restoration Acts
Gildin, Gary S., Harvard Journal of Law & Public Policy
The diversification of American society has increased the prospect that an individual will suffer discrimination at the hands of government on the basis of religion. Our polity arguably has matured to the point where official discrimination is less likely to be inflicted through intentional wrongdoing.(1) On the other hand, the mushrooming of the number and variety of religious faiths has increased the probability that a secular law, meant to apply to the entire citizenry in a nondiscriminatory fashion, will conflict with the religious practices of adherents of non-mainstream faiths whose beliefs and practices were unknown to the legislators.
Odd as it may seem for a nation founded in part upon the desire to be unleashed from the shackles of conformity to a single religion, the struggle for legal protection of religious liberty of minority faiths persists as we enter the new millennium. Ironically, the greatest threat to the ability of members of non-mainstream religions to adhere to their tenets arose in the past decade as a result of two decisions of the United States Supreme Court -- Employment Division v. Smith(2) and City of Boerne v. Flores.(3) Federal statutes designed to countermand the dilution of religious freedom triggered by these decisions continue to be floated, but even if passed, they face serious constitutional hurdles. The very constitutional obstacles to these federal proposals, however, afford affirmative support for state religious freedom non-restoration acts that maximize the ability of all individuals to be faithful to their religion.
II. THE DWINDLING PROTECTION OF MINORITY RELIGIOUS LIBERTY UNDER THE UNITED STATES CONSTITUTION
Ten years ago, there was no cause to look beyond the United States Constitution to secure religious liberty for worshipers of minority faiths. As of 1990, the United States Supreme Court had consistently interpreted the Free Exercise Clause of the First Amendment(4) to afford maximum protection of all individuals whose religion was compromised by requirements of generally applicable laws. The Court solidly endorsed a strict scrutiny test to gauge the constitutionality of legislative or other governmental measures that had the purpose or effect of invading the free exercise of religion.(5) The Court's test demanded that the person claiming a constitutional deprivation first prove that she had a sincerely-held religious belief that the government had infringed. In assessing whether the plaintiff had satisfied her burden, the Court was quite solicitous of minority religious precepts. The Court refused to inquire into the centrality of the belief to the individual's religion or the validity of the individual's interpretation of that belief.(6) The plaintiff was not required to establish that her dogmas were consistent, logical or acceptable to others.(7) To the contrary, the courts were instructed to accept a belief as religious even where the article of faith was not shared by all members of the sect or was even "rank heresy to followers of the orthodox faiths."(8)
While deferential to the individual's claimed religious belief, the Court was quite rigorous in evaluating the government's contention that the demands of civil society trump the individual's religious obligation. To sustain the burden on the religious exercise, the government had to prove both that a) it had a compelling governmental interest, and b) the government's compelling interest could not be satisfied by means less restrictive of the individual's religious beliefs.(9) The test applied even if the government in good faith enacted a general law that unintentionally and unknowingly impinged upon the practice of an individual's faith.
A. Abrogating Strict Scrutiny for Unintended Invasions of Religious Liberty--The Court's Smith Decision
In 1990, however, the United States Supreme Court diminished the safeguards afforded to non-mainstream faiths by the Free Exercise Clause in its 5-4 opinion in Employment Division v. …