Religious Organizations and Free Exercise: The Surprising Lessons of Smith

I. INTRODUCTION Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Government action designed to thwart religious exercise is, of course, unconstitutional.1 A more difficult issue arises when the state does not intend to burden religious exercise but does so inadvertently. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded significant relief. Under this approach, developed in the seminal case Sherbert v. Verner,2 individuals were entitled to exemptions from laws that substantially burdened religious conduct unless enforcement was justified by a compelling state interest.3 In 1990, in Employment Division v. Smith,4 the Supreme Court abandoned this balancing test for all but a few categories of cases.5 Under the Court's new rule, the Free Exercise Clause does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise.6 Scholarly writing addressing the proper scope of free exercise protections for individuals has been extensive, and even more than a decade after Smith, individual free exercise rights remain a familiar subject in the academic literature.7 The scholarly and judicial landscape is much different when one turns to the free exercise rights of religious organizations. Just as in the case of individuals, government regulation frequently impacts the activities of religious groups. For example, common areas of litigation include: the application of federal antidiscrimination statutes to employment decisions;8 the imposition of mandatory collective bargaining requirements under state and federal labor laws;9 the application of state licensing, teacher certification and curriculum requirements to church-operated schools;10 zoning and historic preservation regulation;11 and the licensing and regulation of religiously affiliated social services programs.12 However, while clashes between churches13 and regulators are recurring, one finds fewer scholarly works addressing the free exercise rights of religious groups and much less guidance from the Supreme Court. Indeed, the Supreme Court has, surprisingly, never directly addressed the scope of free exercise protections when government regulation interferes with the internal affairs of religious groups. The Court has addressed claims for tax exemptions,14 but none of these cases has involved government action that directly impinges on internal church operations. While no case has addressed this issue directly, Supreme Court precedents involving religious groups provide support for three very different approaches.15 On the one hand, there is some support for a broad right of "church autonomy"16 that prohibits government interference with internal church affairs regardless of whether the activities affected are religious in nature or more mundane administrative matters. On the other hand, Supreme Court decisions also support an approach that mirrors Smith's rule for individuals. When government action is neutral and generally applicable, religious groups are not entitled to special relief even if the regulation burdens religious practices. In between these two options, a third approach provides limited relief where government regulation impinges on religious practice or activity. Under this middle position, religious organizations do not have a broad right of autonomy over all internal affairs, but they are entitled to exemptions from laws that burden religious practice. Each of these approaches can be found in lower court decisions, and each has its supporters in the legal academy. This Article examines the Supreme Court's decision in Smith for guidance in choosing among these three options. The use of Smith as a prism through which to analyze the free exercise rights of religious groups makes sense for several reasons. …