Exemptions for Religion Contained in Regulatory Statutes
Discussions of the relation of religion and secular law of the United States often center on constitutional controversies arising out of the Free Exercise and Establishment Clauses of the First Amendment. That narrow focus, however, overlooks the practical and conceptual importance of the thousands of ways in which subconstitutional sources of law such as statutes and common law rules also play a defining role in mapping out the boundaries of civil and religious authority. This entry discusses, in particular, the many federal and state statutes that explicitly provide religious institutions and religiously motivated individuals with exemptions from otherwise applicable secular law. Such statutes seek, variously, to accommodate religious conscience, recognize the relevance of religious norms, minimize intrusion into religious life, acknowledge religious diversity, adjust regulatory regimes to take religious facts into account, or simply oblige religious interest groups. Exemption statutes have been criticized on various grounds, and sometimes pose particular difficulties, although courts have generally indicated that they are not unconstitutional simply for setting out distinctive legal treatment for religion and religious persons. In any event, their existence and variety are vital features of the legal landscape of religion in the United States whose practical significance and larger normative meaning need to be appreciated and understood.
This entry does not attempt an exhaustive account of statutory exemptions. It does try to provide a framework for considering a range of examples, and to suggest how such provisions illuminate the law’s effort to understand and accommodate the normative force of religious life.
Statutory religion-based exemptions can be categorized in a variety of ways. Some create specific exemptions; others create general regimes of exemption. Some accommodate minority religious beliefs; others protect religious self-governance. Some demonstrate a willingness to put aside state interests; others further state interests in the face of the fact of religious diversity.
The oldest and most common form of statutory religion-based exemptions are specific exceptions from otherwise applicable legal norms. As Michael McConnell pointed out in an important study, several of the original American colonies exempted members of certain dissenting faiths from oath requirements, military conscription, and—ironically—assessments to support an established church. Since those early years, as religious diversity in the United States has exploded, and as the degree and scope of governmental regulation have grown even more dramatically, the number of exemption statutes and the range of issues they cover, have grown proportionately. A merely illustrative sampling of such provisions might include, for example, statutes exempting persons with contrary religious beliefs from immunization requirements, exemptions from certain drug laws and certain forms of alcohol regulation, exemption from autopsy requirements, qualified exemptions for Christian Scientists to employ spiritual healers rather than doctors under certain circumstances, qualified exemption of persons whose religions forbid acquiring insurance from the rule requiring automobile owners to obtain liability insurance, exemptions for persons who religion forbids the taking of photographs from the requirement that they have a photograph on their driver’s license, a federal statute allowing military personnel in uniform to wear items of religious apparel under certain conditions, qualified exemptions from certain mandatory autopsy requirements, exemptions of religiously motivated students from certain parts of an otherwise required public school curriculum, exemptions of certain religious believers (such as the Amish) from certain otherwise mandatory provisions of the building codes, and qualified exemptions of certain religious employers from otherwise applicable requirements that their prescription benefit plans cover contraceptives.
All the statutes just listed detail accommodations for religion in particular contexts. A very different category of more recent statutes dating from the 1990s, such as the federal Religious Freedom Restoration Act (RFRA) and similar legislation in at least eleven states, set out instead a general, abstract, standard for drawing the boundaries between secular and religious authority across the whole legal domain. These statutes have a distinct quasiconstitutional coloration, and their history is intertwined with the modern development of the constitutional law of religion.
For many years, the courts have grappled with the question of whether the constitutional protection of free exercise includes any sort of fundamental right to be exempt from laws that directly conflict with religious norms. In Reynolds v. United States, its 1879 decision upholding laws against polygamy, the Supreme Court answered ‘‘no.’’ Beginning in 1963, however, with Sherbert v. Verner, the Supreme Court held in a line of cases that the Free Exercise Clause guaranteed religious believers a prima facie right to be exempt from laws that directly conflicted with the demands of their faith unless the government could demonstrate that its law was the least restrictive means to further a Compelling State Interest. Then, in 1990, in Employment Division v. Smith, the Court all but overruled this line of cases. It held, subject to some important qualifications, that the Free Exercise Clause could not be used to challenge laws that were otherwise ‘‘neutral’’ and ‘‘generally applicable.’’ RFRA and its state counterparts sought, in effect, to reinstate the Sherbert test as a statutory rather than constitutional entitlement. In City of Boerne v. Flores (1997), the Supreme Court struck down, as beyond the Congress’s powers under section five of the Fourteenth Amendment, the federal RFRA’s application to state laws. But the statute remains applicable to federal laws, and the State RFRA’s remain in force
as well. Like most analytic divides, the distinction between specific and general exemption statutes is often a matter of degree. Thus, for example, some exemption statutes are so detailed as to actually name the religions to which they apply, although most do not. Meanwhile, in the wake of Flores, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which mandated a compelling interest test in two specified albeit still broad categories of state laws, subject to a set of jurisdictional predicates that had been absent in the original RFRA. RLUIPA, which might be described as situated somewhere between the ‘‘specific’’ and ‘‘general’’ paradigms of exemption statutes, survived at least one Establishment Clause challenge in Cutter v. Wilkinson (2005).
The statutes discussed so far—whether at the specific or general end of the spectrum—still have in common the goal of accommodating the demands of religious norms that happen to come into conflict with the demands of certain secular laws. Such exemptions, by their terms, only apply to persons, usually in minority faith traditions, for whom such a conflict exists. A whole other category of exemption statutes has a quite different goal: to minimize, more broadly, the intrusion of the state into the self-government of religious communities. These institutional autonomy statutes stand out from other exemption statutes in at least two respects. To begin with, they generally protect churches and other religious institutions rather than individuals. More important, they generally apply with equal force to all religious communities, and do not depend on the existence of a particular conflict between secular law and religious belief. Examples of such institutional autonomy provisions include: exemptions of certain religious organizations from the reach of certain Civil Rights Laws, whether or not the discrimination at issue is religiously motivated; exemption of churches from certain of the reporting and oversight provisions in the Internal Revenue Code and certain state statutes; and special provisions for churches in state charitable corporation laws.
Again, the distinction outlined here often blurs at the edges. For example, the statutory clergy–penitent privilege as enacted in the various states applies across the board, both to faith traditions that include something like a ‘‘seal of confession’’ and to those that do not. In a sense, then, the imperative to protect the distinctive religious practice of certain faiths has expanded, by analogy, to establish a principle protecting against undue intrusion into the religious communications of all faiths. Nevertheless, the conscientious element has not disappeared entirely: in some states, the question of whether the ‘‘penitent’’ can waive the privilege turns on whether revealing the confidence would violate the tenets of the clergyman’s faith.
A final, more subtle, way of categorizing exemption statutes goes to the relation between the exemption and the underlying legal norm to which the exemption applies. In many cases, exemptions clearly reflect a willingness to compromise or limit the reach of an underlying legal norm, and to do so in favor of religious rights. In other cases, though, the relation between the exemption and the underlying norm is more complicated. For example, many state marriage statutes, while ordinarily requiring marriages to be solemnized by a single, licensed celebrant, make an exception for marriages conducted in faith traditions such as the Society of Friends (Quakers) in whose marriage rituals there is no such officiant. Such provisions, however, do not really compromise the state’s policy that marriages be entered into with some formality and deliberation, but instead effectuate that policy in the face of the diverse ways in which religious communities organize their formal and deliberative rituals.
The most interesting cases, of course, are those in which it is not entirely apparent how an exemption relates conceptually to the underlying legal norm. For example, the federal Humane Slaughter Act purports on its face to spell out two equivalent and equally acceptable modes of animal slaughter, either by rendering the animal unconscious before killing it, or ‘‘by slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain . . . .’’ This textual equivalence reflects the fact that Jewish and similar methods of slaughter were themselves designed to be humane. A puzzle remains, however, why, if the two methods are truly equivalent, permission for the second would be limited to the ‘‘ritual’’ context.
The number, breadth, and variety of religious exemptions contained in federal and state statutes suggests some important conclusions about the place of religion in the American legal imagination. Over the years, some commentators have suggested that the Religion Clauses of the First Amendment bar any or at least most classifications based on religion. Indeed, there is a strain of discomfort with apparent religious discrimination that goes back to colonial times and continues in the Supreme Court’s emphasis on the principle of ‘‘neutrality’’ in both its Free Exercise and Establishment Clause cases. In a small number of cases, lower courts have held exemption statutes unconstitutional when they are drafted so as to protect only certain named religions or only ‘‘recognized religions.’’ More famously, the Supreme Court, in its conscientious exemption decisions in the 1960s, stretched the language of the law to encompass persons whose beliefs played a role in their lives functionally equivalent to that of religion, and suggested that a more literal reading would pose problems under the Establishment Clause. Nevertheless, beyond these few counter-instances, statutory religionbased exemptions have generally been upheld, and the Supreme Court has made clear, in cases such as Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987) and Cutter v. Wilkinson, and even in its decision in Employment Division v. Smith, that legislatures are entitled to go beyond formal equality and neutrality to take into account the distinctive normative dilemmas facing adherents of certain faiths and the unique character of religion and religious communities more generally.
Beyond the concern for equality and neutrality, however, lies a deeper jurisprudential puzzle. In Reynolds v. United States, the Court held not only that the Free Exercise Clause did not protect religious polygamists from the enforcement of antibigamy statutes, but that recognizing such a right would ‘‘in effect . . . permit every citizen to become a law unto himself.’’ Some 110 years later, in Smith, the Court quoted this language approvingly and went on to state that recognizing a right to religion-based exemptions in the Free Exercise Clause would create a ‘‘constitutional anomaly.’’ These statements suggest that a general doctrine of constitutionally required religion-based exemptions, particularly those that depend on the religious beliefs of specific claimants, would not only be wrong in the Court’s view, but would violate the rule of law itself. The puzzle, of course, is why exemptions violate the rule of law if required by courts as a constitutional right, but not if enacted by legislatures as a statutory entitlement. The tension here might reflect problems with the Court’s Free Exercise doctrine. It might also, however, suggest a particular legislative capacity, not only to respect religious conscience but to recognize, in an almost political sense, the diversity and juridical dignity of nonstate normative perspectives.
To underscore this point, consider one last example: the New Jersey Declaration of Death Act requires that individuals be declared dead if they have ‘‘sustained irreversible cessation of all functions of the entire brain,’’ but makes an exception for persons whose religious beliefs would require the more traditional cardiorespiratory definition of death. The question arises whose rights this provision is protecting. In a sense, it cannot be the individual in question, since the state would otherwise consider him or her dead. Nor is it even the person’s next of kin, since it is his or her religious views and not theirs that are dispositive. The answer might be that the state is deferring, not so much to the rights of an individual, but to the legitimacy of a normative system alongside its own.
References and Further Reading
Dane, Perry, ‘Omalous’ Autonomy, Brigham Young University Law Review 2004 (2004): 5:1715.
Kurland, Philip B. Religion and the Law: Of Church and State and the Supreme Court. Chicago: Aldine, 1962.
McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review 103 (1990): 1409–1517.
Newsom, Michael deHaven, Some Kind of Religious Freedom: National Prohibition and the Volstead Act’s Exemption for the Religious Use of Wine, Brooklyn Law Review 70 (2005): 739.
Cases and Statutes Cited
- City of Boerne v. Flores, 521 U.S. 507 (1997)
- Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 340 (1987)
- Cutter v. Wilkinson, 125 S.Ct. 2113 (2005)
- Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)
- Humane Slaughter Act, 7 U.S.C. 1901–1906 New Jersey Declaration of Death Act, N.J. Stat. sec. 26:6A-5 (2006)
- Religious Freedom Restoration Act, 42 U.S.C. 2000bb to 2000bb-4
- Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc to 2000cc-5
- Reynolds v. United States, 98 U.S. 145, 167 (1879) Sherbert v. Verner, 374 U.S. 398 (1963)