Smith is defended at least in part on the ground that it precludes special protection to religious claimants in a society in which many people do not adhere to a religious tradition, or are not believers in the religious sense of the word. This obviously has establishmentarian (or antiestablishmentarian) implications as well. On the other hand, Smith is often criticized because it arguably renders the Free Exercise Clause a dead letter, and because it arguably underestimates the difficulty of the choice the religiously scrupulous must make between following the dictates of their faith and participating in civil society.The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) is a modest attempt on Congress’ part to rejoin the issue. This law is based at least in part on congressional powers other than i?? 5, specifically the Commerce Clause and the Taxing and Spending Power, and subjects to strict scrutiny laws in two narrow categories that impose a substantial, incidental burden on religious free exercise.

These categories are regulations of the use of land and regulation of institutionalized persons. To my knowledge, a small number of federal courts have upheld RLUIPA against constitutional challenge.You may recall that one “exception” to Smith — or one area in which its rule does not apply — is where a law is not actually “neutral and of general applicability. ” One question that arises in connection with this exception is whether a single secular exception from a law renders the law other than neutral and generally applicable. In Fraternal Order of Police v.

City of Newark (3rd Cir. 1999), the Third Circuit seemed to answer this question in the affirmative. The Ninth Circuit seemed to reach the opposite conclusion in its later-vacated (on other grounds) opinion in Thomas v.Anchorage Equal Rights Commission (9th Cir.

2000), in which it said that only laws that display “substantial” underinclusiveness fall under the rubric of Lukumi. For the Ninth Circuit, this level of underinclusiveness is important because it provides strong circumstantial evidence of discriminatory intent. For the record, at least in theory the government (including courts) is permitted to inquire into the sincerity of religious beliefs, but not into their wisdom. Thus, at least in theory the Sherbert Court could have inquired into whether Sherbert actually was a Seventh-Day Adventist.Does accommodation equal establishment? Arguably, every accommodation of religious free exercise can also be comprehended as an establishment of the religious tradition accommodated. This explains Justice Stevens’ and Ginsburg’s positions in Boerne. Indeed, the conflict between the two clauses is often difficult to resolve. Arguably, an accommodation that simply relieves a religious claimant from a burden the government would otherwise impose does not establish religion, because it leaves the claimant exactly where he or she would have been but for the government’s original action.

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See Wallace v. Jaffree (O’Connor, J. , concurring in the judgment) (page 283, first full paragraph).

See also Corporation of Presiding Bishop v. Amos (1987) (White, J. , for the Court) (“[U]nder the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to carry out their religious missions.

“). Arguably, this kind of thinking explains why the government may provide chaplains in the military without running afoul of the Establishment Clause.See Katcoff v. Marsh (2d Cir.

1985). Conversely, an accommodation that shifts a burden from religious claimants to the non-religious arguably establishes religion, because it rewards religious claimants relative to the non-religious. This appears to explain the decision in Estate of Thornton v. Caldor (1985), in which the Court struck down Connecticut’s law granting employees an “absolute right” not to work on their Sabbath.Because of this law, non-religious employees had to bear a greater burden to work on common Sabbaths, such as Sunday. In any case, the United States and many states do exempt the religiously scrupulous from a great many laws, and such accommodations are often upheld.

The exemption from the draft is probably the most famous example. Another is i?? 702 of the Civil Rights Act of 1964, which exempts religious organizations from the general prohibition against discrimination on the basis of religion. In Corporation of Presiding Bishop v.Amos (1987), the Supreme Court upheld this section against challenge under the Establishment Clause in a case involving the janitor at a gymnasium owned and operated by the Mormon Church on a non-profit basis for the general public. The Court reasoned that Congress had a legitimate secular interest in alleviating religious organizations from the burden of public interference with the definition and execution of their religious mission, and also that Congress had a legitimate secular interest in saving such organizations from having to guess which of their activities were too “secular” to merit an exemption.At another point in the course, we read a decision by a lower court in which the Salvation Army invoked i?? 702 after it had fired an employee who favored certain occult practices. In that case, Dodge v. The Salvation Army (S.

D. Miss. 1989), the court held that application of i?? 702 to this employee would constitute an establishment of religion because the employee’s position was substantially publicly funded. Also standing somewhat in contrast to Amos is Texas Monthly v. Bullock (1989). In this case, the Supreme Court struck down Texas’ exemption of religious periodicals from an otherwise generally applicable sales tax.The Court reasoned that the exemption established religion because the tax, if uniformly applied, would impose at most a minor burden on religious free exercise.

With this case one might compare Walz v. Tax Commission of the City of New York (1970), which the Court discussed in Texas Monthly. In Walz, the Court upheld New York’s exemption of religious organizations from the obligation to pay taxes on property, at least in part because New York also exempted comparable non-religious non-profit organizations.

See footnote 3 on page 303.The teaching of Kiryas Joel v. Grumet (1994) seems to be consistent with the foregoing. If the government accommodates a specific, religious claimant, it must do so in a context in which it would also accommodate a similarly situated claimant of another religion, or a similarly situated non-religious claimant. The government and institutional religion. Religious organizations purchase and hold property, enter into contracts, employ people, and engage in a wide variety of activities with secular as well as religious significance.In doing these things, they take advantage of, or become subject to, a number of civil laws.

For example, they take advantage of, or become subject to, laws governing the organization of voluntary associations. Imagine, for example, a civil that required all non-profit organizations holding property to be managed by a board having at least five voting members. Cf. Mazaika v. Krauczunas (Pa. 1911) (involving a somewhat similar situation). This would probably be consistent with the polity of some religious denominations, but it would be inconsistent with the polity of others.

As is so often the case, one could then ask whether the Free Exercise Clause requires the government to accommodate the polities of various religions, as well as whether the government may enact such laws without establishing religion. Similar issues arise with respect to the fragmentation of churches. At this point, there appear to be two means of resolving legal disputes that arise from such fragmentations that will not run afoul of the Constitution. One is the so-called “rule of deference,” which the Supreme Court of the United States applied in Watson v.Jones (1872). See the first full paragraph on page 380 of your textbook for a presentation of this rule: [W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church tribunals to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. This approach upholds the prerogatives of religious tribunals, thus preserving lines of authority set up by a religious society.

On the other hand, it obviously prefers hierarchy and order to the wishes of dissenting members of such a society. The other constitutional option is for courts to resort to so-called “neutral principles of law. ” See Jones v. Wolf (1979). Under this approach, courts will apply the same principles of law to a dispute arising from the fragmentation of a church that they would apply to any dispute arising from the fragmentation of a voluntary association.

One advantage of this approach is that it saves courts from ever to choose between a church’s hierarchy (if it has one) and dissenting members, unless the church has ordered its affairs in accordance with civil law to require preference of one over the other. One disadvantage of this approach is that it compels religious organizations to become lawyerly in conducting their affairs. See footnote 2 of Justice Powell’s dissent in Jones v. Wolf on page 387. Another is that this approach will at times — perhaps often — lead to results that are obviously disruptive of a particular denomination’s polity.

The remaining option, the so-called “theory of implied trust,” is unconstitutional. Under this approach (as the Court explained in Jones v. Wolf): the property of a local church affiliated with a hierarchical church was deemed to be held in trust for the general church, provided the general church had not “substantially abandoned” the tenets of faith and practice as they existed at the time of affiliation. (383). The Supreme Court has held that this approach unnecessarily embroiled courts in religious disputes.

Religious organizations can also be subject to suit for their actions in the context of employment.We have already seen, of course, that they are exempt from Title VII’s prohibition of discrimination in employment on the basis of religion. It is also generally the case that at religious organizations can discriminate on the basis of sex and even race with regard to the employment of clergy, not because courts approve of such discrimination, but because courts are sensitive to the free exercise implications of requiring members of a religious organization to accept as a leader an individual whom they do not desire.See, for example, Combs v. Central Texas Annual Conference of the United Methodist Church (5th Cir.

1999), as well as EEOC v. Catholic University (D. C. Cir. 1996) (discussed in Combs).

The exact extent of such decisions as Combs and EEOC v. Catholic University is unclear. See note 3 on pages 405-07. Which brings us to torts by churches.

To a significant extent, religious organizations are subject to the same laws as other organizations.As the authors of your book explain, “[t]here is no religious justification for letting a sidewalk deteriorate, driving too fast, or sexually abusing one’s parishioners. ” But there are some exceptions. Courts have generally refused to recognize a cause of action for “malpractice” by a member of the clergy, on the ground that determining the proper standard of care for clergy on a denomination-by-denomination basis, would seriously implicate both establishmentarian and free exercise concerns.Similarly, at least one court has refused to recognize a cause of action for negligence against a pastoral (religious) counselor, on the ground that doing so would deter people from seeking solace from these kinds of people, and would require courts to decide which individuals in a religious organization would acquire the kind of duty, breach of which would give rise to an action for negligence.

(This court also rejected a related claim against the church itself for negligent failure to train its pastoral counselors. ) This court did, however, express approval an action against a church for intentional infliction of emotional distress. See Nally v.

Grace Community Church of the Valley (Cal. 1988). In Nally, a man committed suicide after he had sought and obtained pastoral counseling at a church in the Reformed Protestant tradition.