Religious Freedom Legal Framework and Application
Constitutional Protection
Religious Freedom is enshrined in the Establishment and Free Exercise Clauses of the First Amendment which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The First Amendment also applies to the states through the Due Process Clause of the Fourteenth Amendment, known as the incorporation doctrine.
If a case is brought against the government in violation of the Establishment Clause, the Court applies a three-part test as set forth in Lemon v. Kurtzman: (1) does the law have a secular purpose; (2) does the law have a primary effect that does not advance or inhibit religion; and (3) did the government avoid excessive entanglement with religion?
If a case is brought against the government for violation of the Free Exercise Clause, then the Court applies strict scrutiny, the highest standard of scrutiny, which requires the Government prove that the law at issue: (1) serves a compelling state interest; (2) is necessary to serve that interest; (3) is narrowly tailored; and (4) uses the least restrictive means to further the government interest.
Federal Legislation
The Civil Rights Act of 1964 prohibits employment discrimination on “the basis of race, color, religion, sex, or national origin.” However, an employer may not be required to accommodate an individual’s religious practices if the employer demonstrates that accommodation would result in “undue hardship.” In addition, Section 702 of the Act recognizes that religious institutions have the right to employ those of the same religion in order “to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”
The Religious Freedom Restoration Act of 1993 also protects religious freedom, prohibiting the government “from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The standard of review is strict scrutiny and thus the highest standard for the government to overcome.
In 2022, Congress passed the Respect for Marriage Act, which requires all states to recognize and give “full faith in credit” to same sex marriages. The Act states that it shall not be “construed to diminish or abrogate a religious liberty or conscience protection.” Moreover, no religious organization or its employee shall be “required to provide services… for the solemnization or celebration of a marriage” nor will a refusal to provide such services “create any civil claim or cause of action.” However, there is concern that those religious organizations may still be otherwise penalized through the loss of tax exception status and licensure, thus limiting their ability to function. An amendment addressing this concern was proposed but was not included in the final bill. Additionally, the ambiguity regarding what constitutes a “person acting under color of State law” is a concern as it may provide a potential loophole for lawsuits.
Recent Supreme Court Cases
In Fulton v. City of Philadelphia, decided on June 17, 2021, the City of Philadelphia refused to contract with Catholic Social Services (CSS) to provide foster care services, due to CSS’s refusal to certify same sex couples as potential foster families. The issue was whether the contractual requirement from Philadelphia, forbidding discrimination based on sexual orientation, violated the Free Exercise Clause. The Court found in favor of CSS, stating that “the contractual non-discrimination requirement imposes a burden on CSS’s religious exercise” and that the City of Philadelphia did not have a compelling interest in denying an exception to CSS.
In Carson v. Makin, decided June 21, 2022, the State of Maine offered a tuition assistance program for parents in a school district without a secondary school. Under the program, parents could choose a school, in turn, the school district would send payments to the school to offset the cost of attendance. To qualify, schools must be “nonsectarian”, excluding faith based private schools. The issue was whether the “nonsectarian” clause violated the Establishment and Free Exercise Clauses. The Court held that Maine’s program was unconstitutional because the state could not “exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
In Kennedy v. Bremerton, decided June 27, 2022, a high school football coach lost his job for kneeling after a football game to offer a prayer on the field. The issue was whether the removal of the coach from his position by the school district violated Free Speech and the Free Exercise Clause. The Court held that punishing the coach for his act of prayer was not neutral nor generally applicable, triggering strict scrutiny. The school district did not meet its burden and had “sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech.”
The Little Sisters of the Poor and other religious organizations have been in a continuing legal battle since 2013, when the Department of Health and Human Services (HHS) mandated employers cover contraceptive and abortifacients in their health care coverage in 2011. From 2013 to 2016, the Supreme Court ruled in favor of the Little Sisters three times. Consequently, the HHS issued an exception in 2017 to religious non-profits. However, the issue arose again in 2017 when the state of New York required employers to cover abortions in their health care plans. In Diocese of Albany v. Vullo, the latest 2021 case involving the Little Sisters of the Poor, the Supreme Court remanded the case back to the New York Court of Appeals, finding that the appellate court failed to apply a strict scrutiny analysis.
Incidents and Developments
Hate Crimes
Hate crimes motivated by religious bias have notably increased in 2021 from the previous year, with the exception of anti- Jewish hate crimes. According to the latest 2021 report from FBI’s Uniform Crime Reporting (UCR) Program, 1,112 single bias hate crimes against religions were reported. Out of those offenses: 31.6 percent were anti-Jewish in contrast to 56.6 percent in 2020, which is over a twenty-point decrease in 2021. In contrast, 19.6 percent of reported hate crimes were anti-Sikh, tripling its percentage from 2020 at 6.6 percent; 10.9 percent were anti-Islamic, increasing by almost two percent from 9.0; 6.7 percent were anti-Eastern Orthodox, doubling from 3.1 percent; and anti- Catholic hates crimes rose by nearly one percent from 5.5 to 6.4 percent.
The FBI leaked a document to the media, dated 23 January 2023, titled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities.” The document equated conservative Catholics with extremists holding links to dangerous groups, and was recommending to approach parishes and try to identify those who would even use places of worship “as facilitation platforms to promote violence.” The FBI, when questioned by the Catholic News Agency, stated they would withdraw the document immediately, as it did not meet the standards of the FBI.
In its 2021, the Anti- Defamation League (ADL) reported a total of 2,717 incidents of assault, harassment, and vandalism against Jews, a 34 percent increase from 2020. Furthermore, the reports notes that there were 88 anti-Semitic assaults in the United States with a total of 131 victims; examples of the reported incidents can be found in the incidents. Another report by Americans against anti-Semitism, recorded 194 cases of anti-Semitic hate crimes in New York City from 2018 to 2022. Out of the total 194 hate crimes, 94 percent of the victims were Orthodox or Hasidic Jews.
In April 2022, a New Jersey man was charged with four counts of hate crimes violations and one count of carjacking after physically assaulting four Orthodox Jews, telling investigators “it had to be done” and “those are the real devils.”
Also in April 2022, during three separate incidents, three Sikh men on the same block in Queens, New York, were struck by two unknown men who removed their turbans and robbed them.
A 2022 report by the Council on American - Islamic Relations (CAIR) received 308 complaints for hate/ bias incidents and recorded several incidents of hate crimes in 2021, which included “verbal harassment, mosque vandalism, and physical violence, such as the forcible removal of hijabs.” The 2022 report also stated that there was a 28 percent increase in hate and bias incidents, which, CAIR asserted, revealed a lack of reporting to the FBI due to the unwillingness of statistic sharing by enforcement agencies, as well as a lack of trust in law enforcement in the Muslim community “due to mass surveillance, deportation, questioning, and other harassment by local and federal law enforcement with no accountability in sight.”
In May 2022, Catholic Churches also saw an increase in property destruction and vandalism after the draft of Dobbs v. Jackson, the Supreme Court decision overturning Roe v. Wade, was leaked. Out of an overall total of 285 attacks recorded since May 2020, 127 of those attacks occurred after the draft decision was leaked to the media.
From May 2020 to the present, the United States Conference of Catholic Bishops (USCCB) recorded 199 incidents of attacks on Catholic churches or sites, which included “arson, statues beheaded, limbs cut, smashed, and painted, gravestones defaced with swastikas and anti-Catholic language and American flags next to them burned, and other destruction and vandalism.” One of the most recent incidents occurred in a Benedictine monastery in Arkansas where an altar was destroyed with a sledgehammer and 1,500 year-old relics of saints were stolen. Further incidents, categorized by month and year, can be found on the USCCB’s website.
COVID-19
During the pandemic, several members of the Armed Forces were discharged for refusing the COVID vaccine after filing religious accommodation requests, resulting in several lawsuits. In December of 2022, President Biden signed into law the National Defense Authorization Act, lifting the federal COVID vaccine mandate for military personal.
Still following due process since 2020, the mandate across the nation to religious institutions to undergo lockdowns or limit in person services, led to a series of constitutional lawsuits in several states. In Tandon v. Newsom, one of the most recent cases concerning religious COVID lockdowns, the Supreme Court forbade California from enforcing a restriction on private gatherings, limiting religious gatherings to three households at a time. California had not applied the same limitations to secular activities, instead offering them “a myriad exceptions and accommodations.” The Court found that the restriction was unconstitutional and held that the State cannot “assume the worst when people go to worship but assume the best when people go to work.”
Prospects for Freedom of Religion
As Thomas Jefferson said in 1822, “The constitutional freedom of religion [is] the most inalienable and sacred of all human rights.” To this day, it remains a steadfast bulwark of American liberty. Nevertheless, the right to religious freedom has been greatly impacted by current political and cultural conflicts, leading to increasing opposition and constitutional challenges.
In recent years, the Supreme Court has consistently upheld the right of religious organizations and individuals to freely exercise their religion, utilizing a strict scrutiny analysis. However, it remains to be seen whether the newly enacted Respect for Marriage Act will uphold protections in practice for religions organizations and individuals who believe in traditional marriage.
The increase in hate crimes against visible religious minorities, such as Orthodox Jews, Sikhs, and Muslims, remains a concern. Additional unease is merited by the wave of increasing attacks on Catholic church buildings and property in 2022, following the Dobbs decision, symptomatic of a stark cultural division within American society. Notwithstanding these, the prospects for religious freedom remain unchanged.
United States of America