CLE Course Materials

CLE Course Materials, June 11, 2015

These are the course materials for the Free conference call CLE to be held on June 11, 2015. To participate in this free 1/2 credit CLE program, please visit this page.

This course took place in the past, and is no longer available for Minnesota CLE credit. However, if you wish to listen to the audio recording of the program, it is available at this link as an MP3

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State and Federal Religious Freedom Legislation

The Free Exercise Clause and Establishment Clause of the Constitution are often in conflict with one another. When it comes to the religion clauses, it is often impossible for the government to "err on the side of caution." If the government errs on the side of caution to permit free exercise, there is often the risk of violating the establishment clause. And if it errs on the side of caution by vigorously enforcing the establishment clause, there is often the risk of violating free exercise.

Over the years, the pendulum has swung over which side the caution should be exercised. Prior to 1990, the pendulum was favoring free exercise. In 1990, the U.S. Supreme Court moved it to favor the establishment clause. Since that time, in both the courts and legislatures, debate has raged on the proper placement of that pendulum.

A good example of the pre-1990 jurisprudence is Yoder v. Wisconsin, 406 U.S. 205 (1972). In that case, Amish parents in Wisconsin were fined $5 per child for violating the Wisconson compulsory school attendance law. Their religious beliefs were that children should not attend formal school after the eighth grade, and they were convicted of violating the law with respect to their 14 and 15 year old children.

The U.S. Supreme Court reversed the conviction. It held that the the free exercise clause was a defense to the statute, even though by its terms the law was one of general applicability.

While Yoder has apparently never been explicitly overruled, it has been weakened in subsequent years as the pendulum swung back away from erring on the side of caution with respect to free exercise. This change took place in Employment Division v. Smith,

494 U.S. 872 (1990). Smith, a Native American, argued that the use of peyote was part of his religious beliefs, in much the same way that Yoder argued that not schooling his children was part of his. Upon being denied unemployment benefits because of an Oregon law prohibiting the use of this drug, Smith appealed to the U.S. Supreme Court.

This time, the court focused on the fact that the statute was neutral with respect to religion, and was one of general applicability. The court held that this "incidental" burden to free exercise did not constitute a violation of the Free Exercise clause.

In sole holding, it quoted Justice Frankfurter from Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940): "The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

The decision in Smith caused a great deal of consternation. For example, more than one member of the Christian clergy realized that serving wine to minors is, in most states, a violation of a law of general applicability.

In Minnesota, for example, "it is unlawful for any person to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age." Minn. Stat. 340A.503.

As far as I can tell, Minnesota does not have a statutory exception for religious purposes. Some states do. For example: Arizona Code 4-249; Arkansas Code 3-3-202; Delaware Code Sec. 904; Montana Code 16-6-305; Nebraska Rev. Stat. 53-180.02;

With overwhelming support, Congress responded to the Smith decision by passing the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq.:

(a) In general

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) Exception

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.

But in City of Boerne v. Flores, 521U.S. 507 (1997), the Supreme Court held that RFRA was an unconstitutional usurpation by the Congress of the Court's power to interpret the Constitution.

Congress then responded by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc, et seq. This was essentially a tamed-down version of the law in response to the Court's ruling in Flores.

In Cutter v. Wilkinson, 544 U.S. 709 (2005), the High Court grudgingly allowed the institutionalized persons section of the law to stand. However, it declined to rule on whether the land use provisions were valid.

In response to all of this uncertainty, many state legislatures passed similar laws, which are the main subject of this program. The following states have adopted similar legislation: (Note: The following digest of state statutes and cases is not guaranteed to be totally comprehensive or up to date. It’s intended to give a sampling of such state laws. Obviously, consult the current text of the statute before relying upon it.)

Alabama Ala. Const. Amend. No. 622

SECTION V. (a) Government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Government may burden a person's freedom 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 freedom has been burdened in violation of this section may assert that violation as a claim or defense in a judicial, administrative, or other proceeding and obtain appropriate relief against a government.

Arizona Ariz. Rev. Stat. § 41-1493 et seq.

41-1493.01. Free exercise of religion protected

A. Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

B. Except as provided in subsection C, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

C. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:

1. In furtherance of a compelling governmental interest.

2. The least restrictive means of furthering that compelling governmental interest.

D. A person whose religious exercise is 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. A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.

E. In this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.

Connecticut Conn. Gen. Stat. § 52-571b.

Sec. 52-571b. Action or defense authorized when state or political subdivision burdens a person's exercise of religion. (a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) The state or any political subdivision of the state may 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 exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.

(d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief.

(e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state. The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section. As used in this subsection, the term "granting" does not include the denial of government funding, benefits or exemptions.

(f) For the purposes of this section, "state or any political subdivision of the state" includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and "demonstrates" means meets the burdens of going forward with the evidence and of persuasion.

Florida Florida Statutes chapter 761

761.03 Free exercise of religion protected.—

(1) The government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and

(b) Is the least restrictive means of furthering that compelling governmental interest.

(2) 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.

Idaho Idaho Code 73-401 et seq

73-402. FREE EXERCISE OF RELIGION PROTECTED. (1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

(3) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmental interest.

(4) A person whose religious exercise is 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. A party who prevails in any action to enforce this chapter against a government shall recover attorney's fees and costs.

(5) In this section, the term "substantially burden" is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimis infractions.

Illinois 775 Ill. Comp. Stat. 35

Sec. 15. Free exercise of religion protected. Government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.

Sec. 20. Judicial relief. If a person's exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this Act against a government is entitled to recover attorney's fees and costs incurred in maintaining the claim or defense.

Indiana IC 34-13-9

Sec. 8. (a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.

(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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 offurthering that compelling governmental interest.

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person's invocation of this chapter.

Missouri Mo. Rev. Stat. §1.302, 1.307.

1.302. 1. A governmental authority may not restrict a person's free exercise of religion, unless:

(1) The restriction is in the form of a rule of general applicability, and does not discriminate against religion, or among religions; and

(2) The governmental authority demonstrates that application of the restriction to the person is essential to further a compelling governmental interest, and is not unduly restrictive considering the relevant circumstances.

New Mexico N.M. Stat. Ann. § 28-22-1 et seq

A government agency shall not restrict a person's free exercise of religion unless:

A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and

B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

Oklahoma 51 Okla. Stat. §251 et seq

A. Except as provided in subsection B of this section, no governmental entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability.

B. No governmental entity shall substantially burden a person’s free exercise of religion unless it demonstrates that application of the burden to the person is:

1. Essential to further a compelling governmental interest; and

2. The least restrictive means of furthering that compelling governmental interest.

Rhode Island R.I. Gen. Laws § 42-80.1 et seq

§ 42-80.1-3 Religious freedom protected. – (a) Except as provided for in subsection (b), a governmental authority may not restrict a person's free exercise of religion.

(b) A governmental authority may restrict a person's free exercise of religion only if:

(1) The restriction is in the form of a rule of general applicability, and does not intentionally discriminate against religion, or among religions; and

(2) The governmental authority proves that application of the restriction to the person is essential to further a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.

South Carolina S.C. Code Ann. § 1-32-10 et seq.

SECTION 1-32-40. Restriction on state's ability to burden exercise of religion.

The State may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the State demonstrates that application of the burden to the person is:

(1) in furtherance of a compelling state interest; and

(2) the least restrictive means of furthering that compelling state interest.

Tennessee T. C. A. § 4-21-1101

(b) Except as provided in subsection (c), no government entity shall substantially burden a person's free exercise of religion even if the burden results from a rule of general applicability.

(c) No government entity shall substantially burden a person's free exercise of religion unless it demonstrates that application of the burden to the person is:

(1) Essential to further a compelling governmental interest; and

(2) The least restrictive means of furthering that compelling governmental interest.

Texas Civil Practice and Remedies Code § 110.001 et seq

Sec. 110.003. RELIGIOUS FREEDOM PROTECTED. (a) Subject to Subsection (b), a government agency may not substantially burden a person's free exercise of religion.

(b) Subsection (a) does not apply if the government agency demonstrates that the 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 interest.

(c) A government agency that makes the demonstration required by Subsection (b) is not required to separately prove that the remedy and penalty provisions of the law, ordinance, rule, order, decision, practice, or other exercise of governmental authority that imposes the substantial burden are the least restrictive means to ensure compliance or to punish the failure to comply.

Representative cases construing state statutes:

The Connecticut Court of Appeals in Rweyemamu v. Commission on Human Rights,

911 A. 2d 319 (Ct. App. 2006) summarized the legislative history of the Connecticut statute with some examples of the types of protected activities anticipated by the statute:

Such examples include the lighting of candles in church, the receiving of wine at holy communion, wearing a yarmulke in court . . . ; forcing the Amish to use reflectors on their horse drawn buggies, and performing autopsies where it was against the deceased's religion.

In State v. Hardesty, 204 P. 3d 407 (Ariz. Ct. App. 2009), the court held that the state had met its burden of showing a compelling state interest in banning marijuana, despite the defendant's claim that it was used as part of a religious practice.

Sanchez v. City of Phoenix, No. CV-12-1454-PHX-GMS (D. Ariz. 2013) (Discussion of home Bible study, but case held not ripe for adjudication).

Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 615 F. Supp. 2d 980 (D. Ariz. 2009) (zoning ordinance prohibiting church in historic district did not violate statute).

Warner v. City of Boca Raton, 887 So. 2d 1023 (Fla. 2004) (Ordinance prohibiting vertical grave markers in city-owned cemetery did not substantially burden plaintiff's religious practices.)

Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. App. 2001) (Feeding homeless persons was protected activity under statute, and city was required to provide reasonable location for doing so.)

Christian Romany Church v. Broward County, 980 So. 2d 1164 (Fla. App. 2008)

When statute raised as a defense to eminent domain of church building, church did not demonstrate that use of particular structure was necessary.

Westgate Tabernacle v. Palm Beach County, 14 So. 3d 1027 (Fla. App. 2009)

(Zoning restriction prohibiting homeless shelter did not substantially burden plaintiff's religious beliefs.)

Roles v. Townsend, 64 P. 3d 338 (Id. Ct. App. 2003) (State had compelling interest in banning tobacco use in prison, despite Native American's claim that use was for religious purposes.)

Hyde v. Fisher, 152 P. 3d 653 (Id. Ct. App. 2007) (Statute permitted Native American inmate to file suit, without bond, challenging removal of sweat lodge from prison.)

Elane Photography, LLC v. Willock, 284 P. 3d 428 (N.M. Ct. App. 2012)

In action against photographer for discrimination based on sexual orientation, statute did not apply since statute applied only to actions by "government agency."

New Life Worship Center v. Town of Smithfield Zoning Board of Review, No. 09-0924 (R.I. Super. 2010) (Zoning prohibition of operating commercial fitness center in church's school did not substantially burden religion.)

Barr v. City of Sinton, 295 SW 3d 334 (Tex. App. 2005) (Statute did not bar city from prohibiting use of church-owned houses to house parolees.)

Balawajder v. Dept. of Criminal Justice, 217 S.W.3d 20 (Tex. Ct. App. 2006) (Inmate's suit should not have been dismissed on summary judgment motion, since factual question remained as to whether statute required adequate storage space for religious materials.)

Sanchez v. Saghian, No. 01-07-00951-CV (Tex. Ct. App. 2009) (Trial court held that statute prevented autopsy of Orthodox Jew, but Court of Appeals remanded for additional fact finding.)

HEB Ministries, Inc. v. Texas Higher Education Coordinating Board, 235 S.W.3d 627 (Tex. 2007)("Diploma mill" statute unconstitutional as applied to religious school. Case accrued prior to adoption of statute.)

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