Religious Freedom and Unemployment Compensation Benefits

In both 1990 and 1991 the Congress showed a penchant for strongly disapproving of recent Supreme Court decisions. This was the case, for example, in both the now-defunct Civil Rights Bill of 1990 and the newly enacted Civil Rights Act of 1991. Much less dramatic, but nonetheless important for employment law, were two 1991 House bills - Religious Freedom Act - both of which were triggered off by one 1990 Supreme Court case, Employment Division of Oregon v. Smith (1990). In this case unemployment compensation benefits were denied the respondents who had been discharged for engaging in certain religious practices. It will be the purpose of this article to (1) briefly consider both the 1991 House bills and the legal background of unemployment compensation and (2) more extensively examine existing Supreme Court decisions and trends concerning the payment of unemployment compensation benefits in light of both the free exercise and establishment clauses of the First Amendment. The 1991 House Bills Each of the 1991 House bills went beyond unemployment compensation; they aimed to protect the fee exercise or "practice religion in general.(1) At the core of each bill are the following concepts: 1. The government shall not burden the exercise or practice of religion "even if the burden results from a rule of general applicability" except when 2. The government demonstrates that application of the burden to the person - a. "[I]s essential to further a compelling governmental interest"; and b. "[I]s the least restrictive means of furthering that compelling governmental interest". Three points are in order at this juncture concerning these two bills. First, the Religious Freedom Restoration Act alone also contained the provision that it was not to be interpreted to address any part of the First Amendment's establishment of religion clause. Second, the core concepts included in each bill indicated above were drawn from the Supreme Court decisions to be discussed below, and thus will be analyzed later. Third, the Religious Freedom Restoration Act had in it a provision that nothing "in this act shall be construed to authorize any government to burden any religious belief" (H.R. 2796, Sec. 6(c)). Representative Christopher Smith introduced in the Religious Freedom Act provisions more specific than this with respect to both the issues of abortion and the status of religious organizations. Basically, Smith wanted to overcome a "Religious Freedom Restoration Act [RFRA] that does not contain an exclusion for religiously based challenges to abortion-restrictive statutes" and was concerned about "H.R. 2927's possible effect on the tax-exempt status of religious organizations and their capacity to participate in Government sponsored social service programs" (Congressional Record, 137, November 26, 1991, E4187). Employment Compensation: The Legal Background Unemployment compensation was provided for in the Social Security Act of 1935. Rather than being an all federal program, it was set up as "a cooperative federal-state program in which employer costs and employee benefits may vary from state to state, rather than being set at a national rate as under social security" (Greenlaw & Kohn, 1986, p. 391). This feature resulted because President Franklin D. Roosevelt and Congress "feared that the United States Supreme Court would declare unconstitutional any social security legislation that imposed federal taxes for the purpose of paying unemployment benefits" (Becker, 1982, p. 366). To reduce this danger, a provision was made for a federal unemployment tax on employers but no federal benefits to be paid to those who became unemployed - only the states could provide strong inducement, all states have enacted unemployment compensation laws. Even though they are state laws, the unemployment compensation statutes fall within the realm of Supreme Court scrutiny of the two First Amendment religious clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (the emphasis is added). …