Federal Freedom of Religion Legal Memo

This memo was prepared in Jan. 1996 by Marija, a Constitutional and Human Rights attorney, for use by lawyers dealing in cases involving religious freedom. The lawyers will know what to do with it.

Please be advised of the following:

This memo does not constitute or serve as a substitute for legal advice.
This memo is intended to be used in conjunction with the legal services of an attorney admitted to the Bar of your state. This memo concerns the fundamentals of freedom of religion law in the United States. Additional legal research will be required for the specific context of your case (e.g., employment, education, divorce/custody, or use of public parks for religious purposes), and for the specific facts of your case.
It is very important that you hire a lawyer to ensure protection of your legal rights. To obtain a lawyer:
(1) look in your local phone book under "Attorneys";
(2) contact your state Bar Association and ask them for help finding an attorney experienced in constitutional law and employment/education/divorce law (whichever applies) (ask for an attorney willing to work on a sliding scale (based on your income) or pro bono (for free) if you think you cannot afford to hire an attorney);
(3) contact your local legal aid society; or
(4) contact the local chapter of the ACLU.

INTRODUCTION
FREE EXERCISE OF RELIGION AND SEPARATION OF CHURCH AND STATE:
- SOURCE OF THE RIGHTS
- SUBSTANCE OF THE RIGHTS
FREEDOM FROM RELIGIOUS DISCRIMINATION
1993 RELIGIOUS FREEDOM RESTORATION ACT
CIVIL RIGHTS ACT OF 1871
1978 AMERICAN INDIAN RELIGIOUS FREEDOM ACT
CONCLUSION

FREEDOM OF RELIGION IN THE UNITED STATES

INTRODUCTION

The federal constitution, as well as constitutions of the individual states, prevent the government from encroaching on the free exercise of religion, and from sponsoring, supporting, or actively involving itself with a particular religion or religion in general.

Consequently, in the United States, there can be no state- sponsored, supported, or mandated religion. Neither can there be any kind of government-imposed control on any type of religious belief (or non-belief). Nor can there be any discrimination against any individual or group on the basis of religion.

There is absolute freedom of religious belief and non-belief. In addition, religious expression and practice is generally unfettered, subject only to those limits clearly necessary for society's protection--and those limits are subject to the strict scrutiny of the Courts.

FREE EXERCISE OF RELIGION AND SEPARATION OF CHURCH AND STATE:

SOURCE OF THE RIGHTS

The First Amendment to the United States Constitution guarantees the free exercise of religion and ensures that the federal government will comply with the non-establishment principle. The First Amendment is made applicable to state and local governments by the Fourteenth Amendment to the Constitution. Cantwell v. Connecticut, 310 U.S. 296 (1940). The federal constitutional guarantees provide a national minimum standard. See U.S. Const. art. VI, sec. 2.

In addition, the states have their own unique constitutional provisions, applicable to both state and local governments, which guarantee free exercise of religion and non-establishment of religion. These state constitutional provisions are enforceable to the degree that they provide as much or more protection than is guaranteed under the federal constitution.

The First Amendment to the United States Constitution provides: "Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I.

FREE EXERCISE OF RELIGION AND SEPARATION OF CHURCH AND STATE:

SUBSTANCE OF THE RIGHTS

Free exercise of religion is protected throughout the United States if the belief is sincerely held and is a religious belief of any kind. The belief or practice need not be part of an organized religion or sect, and the belief need not even include a belief in Deity. Thus, non-traditional religions--including individualistic religions, indigenous religions, polytheism, secular humanism, agnosticism, and atheism--are all protected to the same degree as traditional organized monotheistic religions. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993); Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989); Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981). Courts will not judge the truth or falsity of any belief or doctrine. U.S. v. Ballard, 322 U.S. 78 (1944).

Free exercise of religion is protected by the First Amendment from intentional encroachment by the government under all circumstances. The government may not single out religion or a particular religion for the imposition of special burdens unless the law or governmental decision is the least restrictive means of furthering a compelling governmental interest. The same compelling interest test applies under the First Amendment when the government inadvertently encroaches on religious exercise through neutral and generally applicable laws but results in substantial burdening of religious exercise. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, supra; Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). See also Religious Freedom Restoration Act, 42 U.S.C. 2000bb (1993); Lawson v. Dugger, 844 F.Supp. 1538 (S.D. Fla. 1994).

The United States Supreme Court has interpreted the Non- Establishment Clause (also known as the Establishment Clause) of the First Amendment to prohibit official sponsorship of, support of, or active involvement in, religious activity. The Non- Establishment Clause promotes religious freedom in the United States by limiting the influence of federal, state, and local governments on religious thought and practice, whether the influence originates in the legislative, executive, or judicial branch of government. This clause recognizes the right of an individual or group to be free from laws and governmental decisions which aid one religion, aid all religions, or prefer one religion over another. See Walz v. Tax Commission, 397 U.S. 664 (1970); Everson v. Board of Education, 330 U.S. 1 (1947).

To pass constitutional muster, the law or decision must meet the following requirements: (1) It must have a legitimate secular purpose, (2) its principal effect must be one that neither advances nor inhibits a particular religion or religion generally, and (3) it must not foster excessive government entanglements with religion. See Lemon v. Kurtzman, 403 U.S. 602 (1971).

FREEDOM FROM RELIGIOUS DISCRIMINATION

A law or governmental decision which operates to discriminate against a religion--including a non-traditional religion--violates the Equal Protection and Non-Establishment Clauses. See Larson v. Valente, 456 U.S. 228 (1982).

The Free Exercise Clause prohibits the government from discriminating against religion by restricting or burdening certain practices because of their religious nature. The Non-Establishment Clause prohibits the government from discriminating by favoring one religion over another.

The Fourteenth Amendment Equal Protection Clause protects against discrimination by state and local governments on the basis of religion and other beliefs, as well as on the basis of ethnicity and gender. The Fourteenth Amendment says: "No state shall...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. This same prohibition applies to the federal government via the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497 (1954).

Under the Equal Protection Clause, a law or governmental decision that discriminates on the basis of a fundamental right, such as freedom of religion, is subject to strict scrutiny by the courts. To pass strict scrutiny, the law or decision must constitute a narrowly-tailored means to meet a compelling governmental interest. See Police Department of Chicago v. Mosley, 408 U.S. 92 (1972).

State constitutions also include their own prohibitions against religious discrimination. As with freedom of religion, state constitutional guarantees against religious discrimination are sometimes stricter than the federal constitution's minimum standard.

1993 RELIGIOUS FREEDOM RESTORATION ACT

Under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb (1993), a person who alleges that his or her rights of free exercise of religion have been violated may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief--including injunctive relief--against a governmental entity. See 42 U.S.C. 2000bb-1(c). See also Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y. 1994); Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 849 F.Supp. 77 (D.D.C. 1994).

RFRA provides:

"(a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person --
- (1) is in furtherance of a compelling governmental interest; and
- (2) is the least restrictive means of furthering that compelling governmental interest.
(c) A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."

42 U.S.C. 2000bb-1. See Campos v. Coughlin, supra; Rust v. Clarke, 851 F.Supp. 377 (D. Neb. 1994); Lawson v. Dugger, 844 F.Supp. 1538 (S.D. Fla. 1994); Allah v. Menei, 844 F.Supp. 1056 (E.D. Pa. 1994).

CIVIL RIGHTS ACT OF 1871

The Civil Rights Act of 1871 provides a remedy for individuals denied their First or Fourteenth Amendment rights. See 42 U.S.C. 1983. Section 1983 states:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Actions "under color of state law," within the meaning of Section 1983, may be perpetrated by federal, state, or local officials. However, some officials, such as judges, enjoy either absolute or qualified immunity. See Bradley v. Fisher, 80 U.S. 335 (1972). Other officials enjoy qualified immunity only. See Burns v. Reed, 500 U.S. 478 (1991). Such immunity will not be afforded where an official has violated clearly established statutory or constitutional rights under circumstances in which a reasonable person would have known of the existence of the rights and of the violation. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Section 1983 can be invoked in private suits before the United States federal courts to address religious discrimination claims. The most common relief under Section 1983 is money damages, subject to the limitations of official immunity. Injunctive relief is also available and is widely used to provide relief under Section 1983. See Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983).

Conspiracies to deny human rights and fundamental freedoms, apart from being punishable by criminal sanctions, may be redressed by civil suits for damages under 42 U.S.C. 1985. See Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, supra.

1978 AMERICAN INDIAN RELIGIOUS FREEDOM ACT

To ensure that the unique religious practices of Native Americans are protected, the American Indian Religious Freedom Act, 42 U.S.C. 1996 (1978), was enacted. It provides:

"(I)t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions...including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."

CONCLUSION

The United States is a multi-faith society in which all the world's religions are practiced. Freedom to practice all these religions is constitutionally guaranteed. No religion has official preference or support from any governmental entity in the United States. Discrimination on the basis of religion is illegal. Each person may believe and express those beliefs according to his or her own conscience without any support or hindrance from the government.