Have you ever wondered how the United States Constitution came to incorporate "free exercise of religion" in the First Amendment? James Madison wrote the initial draft of the Bill of Rights. He and other Federalists initially opposed it because, among other reasons, the federal government was intended to be a government of limited powers without authority to pass laws affecting religion. Federalists fretted that the mention of some liberties would disparage the existence of others. The exclusive provisions in the original Constitution dealing with religious liberty were accommodations to Quakers: the prohibition on religious tests for office in article VI and the allowance of affirmations in lieu of oaths in articles I, II and VI. But the Federalists could not assure ratification of the Constitution without promising the Bill of Rights. Baptists, horsewhipped and imprisoned for preaching without a license in states like Virginia with Anglican establishments, were foremost proponents of them. In a contest with James Monroe for his congressional seat, Madison became a supporter of free exercise and received decisive support from Baptist ministers in exchange.

Madison prepared the first draft of what became the free exercise clause: "The civil rights of none will be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed." Madison initially favored the formulation "rights of conscience" over "exercise of religion," whereas seven states earlier proposed amendments referencing something like "exercise of religion" or both. The House of Representatives eventually approved this language proposed by Rep. Fisher Ames of Massachusetts: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." But for unknown reasons the House and Senate journals reported the amendment with the verb "prohibit" in lieu of "prevent." In contrast, the Senate adopted this language: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion...." The House rejected it and a conference committee on which Madison served proposed the version of the clause that was ultimately ratified.

As enacted, the clause limited exclusively Congress. Madison proposed an additional amendment that would have been applicable to the states, which the House adopted with minor changes but the Senate rejected: "[N]o State shall infringe the equal rights Of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases." Madison did not propose making the Establishment Clause applicable to the states, but even rights of conscience would not be federally guaranteed among the states until the Supreme Court "incorporated" the First Amendment in the 1940s under the Fourteenth Amendment. About the substitution of "prohibit" for "prevent," Madison would later treat as absurd the narrow view of the free exercise clause that Congress may not forbid or prevent, but may reduce or limit free exercise. More important was Rep. Ames's substitution of free exercise for Madison's right of conscience.

It means at least two things: first, the clause protects religiously motivated conduct as well as belief. Dictionaries at the time defined exercise as action: "labour of the body," "use; actual application of any thing," "task; that which one is appointed to perform," "act of divine worship, whether public or private." In contrast, "conscience" meant opinion or belief; "knowledge," "real sentiment; veracity; private thoughts," "scruple; difficulty," "reason; reasonableness," and "testimony of one's own mind." Second, the clause encompasses the corporate or institutional aspects of religious belief, besides individual judgment. Most controversially, whereas a right of conscience might embrace non-religious belief systems, "free exercise of religion" does not. 

The framers considered religion worthy of special protection because they found it conceivable that God exists and, as a result, considered freedom of religion an inalienable duty to God, rather than individual privilege. For questions contact the author or for more on this subject, read the pathbreaking treatment of the subject to which this update owes credit: Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1416 (1990).

Key Cases

Supreme Court Rules Compelled Affirmation Outside the Scope of a Federal Funding Program Unconstitutional

In Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, No. 12-10 (U.S. June 20, 2013), the U.S. Supreme Court ruled that a requirement that organizations receiving federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act have a policy expressly opposing prostitution, by compelling as a condition of federal funding the affirmation of a belief that by its nature could not be confined with the scope of the government program, violates the Free Speech Clause. The respondents argued that adopting a policy explicitly opposing prostitution may alienate certain host governments and diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS. The Court ruled that, although a party's recourse if it objects to a condition of the receipt of federal funding is ordinarily to decline the funds, government may not deny a benefit to a person on a basis that infringes the person's freedom of speech even if the person has no entitlement to that benefit. This is true when the condition is not relevant to the objectives of the program, the condition is coercive in the sense of an offer that cannot be refused, and the condition seeks to leverage funding to regulate speech outside the contours of the program. The Court ruled the condition imposed under the Act similar to the last of these, as compared to what the court deemed a bona fide condition on tax exemption that nonprofit organizations not engage in substantial efforts to influence legislation.

Appeals Court Rules in Favor of Hobby Lobby against Contraceptive Coverage Mandate

In Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013), the full court (with one judge recused) ruled that Hobby Lobby, a for-profit craft store chain, and Mardel, a Christian bookstore chain, are entitled to bring claims under the Religious Freedom Restoration Act (RFRA), have established a likelihood of success that their rights under RFRA are substantially burdened by the contraceptive coverage mandate contained in the 2010 Patient Protection and Affordable Care Act (PPACA), and have shown irreparable harm, but the court remanded the case to the district court for two remaining factors necessary for a preliminary injunction. A plurality of four judges would have resolved these factors in the plaintiffs' favor, but lacked a majority to do so. The court unanimously agreed on standing and rejected the applicability of the Anti-Injunction Act, which would have stripped the court of subject matter jurisdiction on the grounds plaintiffs are not seeking to enjoin the collection of taxes or the execution of any IRS regulation, but the enforcement of an HHS regulation.

David and Barbara Green and their children operate Hobby Lobby and Mardel through a management trust governed by religious principles. The trust exists "to honor God with all that has been entrusted" to the Greens and to "use the Green family assets to create, support, and leverage the efforts of Christian ministries." Hobby Lobby and Mardel are not open on Sundays, Hobby Lobby buys hundreds of full-page newspaper ads inviting people to "know Jesus as Lord and Savior," and Hobby Lobby refuses to engage in business activities that facilitate or promote alcohol use. Hobby Lobby's statement of purpose recites the Greens' commitment to "[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles." The Greens believe human life begins at conception; therefore, they oppose the requirement in PPACA to provide coverage for certain types of abortifacients.

The government argued that when Congress enacted RFRA it meant to exclude for-profit companies, but the court was not persuaded. It pointed out that Congress has repeatedly demonstrated it knows how to exclude them in other statutes and did not in this one. The government also argued that the carve out is necessary under the Free Exercise Clause, but the court disagreed: "individuals may incorporate for religious purposes and keep their Free Exercise rights, and unincorporated individuals may pursue profit while keeping their Free Exercise rights.... The problem for the government, it appears, is when individuals incorporate and fail to satisfy Internal Revenue Code §501(c)(3). At that point, Free Exercise rights somehow disappear. This position is not 'rooted in the test of the First Amendment.'" At the same time, the court appeared to distinguish the rights of publicly-traded corporations.

The court answered affirmatively the question whether the mandate imposes a "substantial burden" on religious exercise based on a three-part test whether it: (1) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief. The government argued that the plaintiffs could not satisfy the last prong because the alleged government coercion depends on the independent actions of third parties. The court rejected this argument as fundamentally flawed because it presumes "substantial" requires an inquiry into the theological merit of the belief in question rather than the intensity of the coercion applied by the government to act contrary to those beliefs. "It is not the employees' health care decisions that burden the corporations' religious beliefs, but the government's demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic."

Last, the court rejected the government's claimed compelling interests in imposing the burden on plaintiffs: (1) public health, and (2) gender equality. It said the interests are too broadly formulated, the government already exempts tens of millions of people from PPACA and the government failed to explain how also exempting plaintiffs would undermine its interests.

Court Awards Injunction to College against Contraceptive Coverage Mandate

In Geneva College v. Sebelius, 2013 WL 3071481 (W.D. Pa. June 18, 2013), on a motion for reconsideration, the court granted an injunction to the plaintiff against enforcement of the contraceptive coverage mandate because of concerns that the college would be forced to contract for its student health insurance plan before the defendants' final rules, including new exemptions, were implemented. The court reasoned that the injunction would preserve the status quo, avoid frustrating the college's religious desire to support the physical well-being of its students and avoid burdening its student recruitment efforts. The court added, "The tens of millions of individuals who remain unaffected by the mandate's requirements including those institutions that have no objection to the recommendation contradict any notion that the government's interests are as compelling as defendants argue."

Employees Fail to State Claims for Religious Discrimination

In Hall v. Tift Cnty. Hosp. Auth., No. 7:12-cv-12 (HL), 2013 WL 2484089 (N.D. Ga. June 10, 2013), the court granted summary judgment to the defendant on the plaintiff's religious discrimination, free exercise, free speech and equal protection claims when she was terminated for placing a pamphlet entitled "How Should Christians Respond to 'Gay' Marriage?" in a colleague's locker and commented upon it to her via email. The plaintiff told her colleague that she felt led to give the pamphlet to her and in her email explained how she was seeking to open her eyes to her sin. The plaintiff's colleague complained of harassment. The defendant placed the plaintiff on leave without pay for four shifts while it investigated the complaint, put her on probation for six months, demoted her from supervisor, changed her department and instructed her that she could not harass coworkers or talk about Jesus or share her faith any more at work.

The plaintiff filed a charge of discrimination, which the EEOC dismissed. The district court ruled that the instruction that the plaintiff could not share her faith at work or talk about Jesus at work "is not the sort of blatant remark 'whose intent could be nothing other than to discriminate on the basis of [religion]' in connection with the employment action taken." Likewise, the court found there was not evidence of someone outside of the Christian religion who was treated more favorably than the plaintiff so as to sustain her Title VII claim for religious discrimination and equal protection claim. The court also rejected her free speech claim because her speech was expressed in private, rather than in public. Last, the court said any burden on the plaintiff's right to exercise religion was the result of a neutral policy of general applicability.

In Valenzisi v. Stamford Bd. of Educ., No. 3:10-CV-958 (JCH), 2013 WL 2456345 (D. Conn. June 5, 2013), the court granted summary judgment to the defendant against the plaintiff's claim of religious discrimination when denied access to a Christian counselor for incidents including alleged sexually aggressive behavior toward a female colleague, hostile behavior toward a custodian and difficulty focusing and recognizing people with whom he worked. The court found that the plaintiff never informed the defendant that he needed an accommodation, never raised any issue regarding religious freedom during a grievance process and never mentioned that he could not obtain a "fit for duty" evaluation due to his religious beliefs; therefore, he could not establish a prima facie case of religious discrimination under Title VII. Likewise, because the plaintiff could not show that the purpose of defendant's policy requiring him to submit to a medical examination was to infringe upon his religion, the court dismissed his First Amendment section 1983 claim. The court denied the defendant's motion for summary judgment with respect to his disability discrimination claim under the ADA and Rehabilitation Act.

Muslim Americans State Equal Protection Claim Due to Religious Questioning at Border

In Cherri v. Mueller, No. 12-11656, 2013 WL 2558207 (E.D. Mich. June 11, 2013), the court ruled that the plaintiffs, Muslim Americans, had standing to state a claim for violation of the Equal Protection Clause but not the First Amendment or Religious Freedom Restoration Act (RFRA), by alleging that various federal agencies, including the United States Customs and Border Protection, had a policy, custom and practice of excessively detaining Muslim Americans at border crossings and ports of entry across the United States to question them about their Islamic practices and beliefs. Questions include: Which mosque do you attend? How many times a day do you pray? Who is your religious leader? Do you perform morning prayer? Are your family members strictly religious? When did you convert? Do you consider yourself a religious person?

As a result, the plaintiffs allege that they stopped crossing the border to avoid injury. The defendants alleged that the court lacked subject matter jurisdiction to interfere with executive authority at the border, but the court disagreed because the challenge was not to the government's power to detain individuals or conduct suspicionless searches but to the line of religious questioning. The court dismissed the plaintiffs' free exercise claim on the grounds that the questioning does not infringe or burden their ability to exercise religion: "[a]t most, plaintiffs' factual allegations suggest a burden on their ability to cross the border quickly, not their ability to practice Islam." The court also dismissed the plaintiffs' establishment claim, because the defendants have no religious objective and do not endorse religion by virtue of their questioning. Once these claims were dismissed, the court also dismissed the plaintiffs' retaliation claim under the First Amendment. The single claim the court ruled the plaintiffs adequately pled was that the defendants' policies have a discriminatory effect upon and disparately impact Muslim Americans in violation of the Fifth Amendment Equal Protection Clause; however, the court warned that the government may be able to come forward with a permissible reason for profiling and questioning as the proceeding continues.

Public Homeless Shelters May Exclude Religious Services

In Caractor v. City of N.Y. Dep't of Homeless Servs., No. 11 Civ. 2990(DLC) (S.D. N.Y. June 14, 2013), the court granted the defendants' motion for summary judgment against the plaintiff's claim that the defendant treated him differently than similarly-situated individuals in preventing him from offering religious services in homeless shelters and violated his free exercise rights. The defendant's revised access procedure limits access to shelters to authorized visitors who may assist it in furthering its statutory mission (e.g., childcare and job training services). The defendants stated they were not aware of requests by other than the plaintiff to offer religious services in its shelters. The plaintiff failed to present evidence to the contrary that could tend to show the shelters are designated public fora where authorized religious services have occurred instead of nonpublic or limited public fora. The court ruled the shelters are nonpublic fora, so the defendants may impose restrictions on speech as long as they are reasonable and viewpoint neutral such as restrictions intended to protect the privacy of residents and avoid the appearance of an endorsement of religion. Also, the court deemed the revised access procedure a valid neutral, generally applicable rule consistent with the Free Exercise Clause.

Driver States Claim That License Plate Image Compels Religiously Objectionable Speech

In Cressman v. Thompson, No. 12-6151, 2013 WL 2501938 (10th Cir. June 12, 2013), the appellate court reversed the district court's order dismissing the plaintiff's complaint and denying his motion for preliminary injunction against compelled display of an image stamped on the standard Oklahoma license plate of a Native American shooting an arrow toward the sky. The plaintiff objects to the image as a form of speech contrary to his religious views. The image is based on a sculpture, in turn, based on a legend in which a warrior convinced a medicine man to bless his bow and arrows during a time of drought and shot the arrow into the sky, hoping the "rain god" would answer the people's prayers for rain.

To avoid displaying the image, the plaintiff first bought a specialty plate and eventually decided he did not want to pay the premium. He then asked the Motor Vehicle Division whether he could obscure the image and was told he would be ticketed for it. The court agreed with the plaintiff that he adequately alleged the image conveys a particularized message that viewers are likely to understand. It also agreed that he is compelled to speak because the image conveys a religious/ideological message, covering up the image poses a threat of prosecution and the plaintiff’s only alternative to displaying the image is to pay additional fees for specialty plates that do not contain the image. The court observed that factual development through discovery may or may not support the allegation.

Court Finds One Church the Alter Ego of Another and Compels Arbitration

In General Conference of the Evangelical Methodist Church v. Crossing Church, Inc., 2013 WL 2422748 (D. Idaho June 3, 2013), the court granted the plaintiff's motion for summary judgment, denied the defendant's and ordered both entities to participate in arbitration in accord with the Discipline of the Evangelical Methodist Church (Discipline). The plaintiff persuaded the court that the defendant is the alter ego of New Heart Community Fellowship, Inc. (New Heart), which executed an affiliation resolution to join the Evangelical Methodist Church (EMC) and follow the Discipline in 2004. In 2009, Rev. Randy Reams, who had served as pastor for New Heart, informed EMC that he had become pastor of a new church known as Crossing Church, Inc. (Crossing) located in the same space as New Heart and having the same members, president, secretary and directors. New Heart never withdrew or disaffiliated from EMC and owed some $93,000 to EMC. In this lawsuit, EMC sought to compel arbitration under a clause in the Discipline to recover this sum. The court ordered arbitration after finding a "unity of interest" between the two corporations and ruling that the observance of the fiction of a separate existence would sanction a fraud or promote injustice. Simply put, the court observed, "nothing distinguished what is Crossing from what was New Heart." The court ruled that Crossing could not claim the benefits of the contractual relationship between EMC and New Heart while simultaneously attempting to avoid the burdens of the contractual relationship (i.e., the arbitration clause).

Commissioner Lacks Legislative Immunity to Open Board Meeting in Prayer

In Doe v. Franklin Cnty, Mo., No. 4:12-V-918 SNLJ, 2013 WL 2467926 (E.D. Mo. June 7, 2013), the court denied the county and county commissioner's motion to dismiss plaintiff's complaint based on legislative immunity, challenging the county's practice of leading and sponsoring a prayer at board meetings. The defendants argued for a per se rule founded on the federal "Speech or Debate Clause" granting the commissioner absolute immunity for his prayer during the legislative meeting, but the court ruled that it must examine whether the act was functionally legislative and determined otherwise. The court observed, "the speech content of the prayer — did not pertain to deliberating or passing any law. Therefore, legislative immunity does not attach." The court determined there was a question of fact whether the commissioner was acting in his official capacity when he prayed and held in abeyance pending a U.S. Supreme Court ruling in Galloway v. Town of Greece, 81 U.S.L.W. 3336 (U.S. May 20, 2013), whether plaintiff's challenge is a nonjusticiable political question.

No Duty to Defend Conference Arises from a Duty to Indemnify

In St. Paul United Methodist Church v. Gulf States Conf. Ass'n of Seventh-day Adventists, Inc., 2013 WL 2453719 (M.D. Ala. June 5, 2013), the court ruled that a retreat rental agreement that contained an indemnity clause did not imply a duty to defend the landlord. The plaintiff entered into a lease with defendant to rent defendant's Camp Alamisco in Alabama. A member of St. Paul United Methodist Church sued the defendant when the defendant's employee ejected her from the back of a wave runner and threw her into the path of the machine's jet propulsion nozzle, causing her injuries. The court ruled that a duty to indemnify is separate and distinct from a duty to defend, and that the latter was missing from the rental agreement. Therefore, the court granted summary judgment to the plaintiff in its declaratory judgment action.

Religious Institutions in the News

The federal government released guidelines for houses of worship that confront shooters. http://www.whitehouse.gov/sites/default/files/docs/
developing_eops_for_houses_of_worship_final.pdf

Americans are split over their assessment of the growing number of nonreligious among us. http://www.pewforum.org/growth-of-the-nonreligious-many-say-trend-is-bad-for-american-society.aspx

The final contraceptive mandate rules issued containing no carve-out for private business. http://articles.washingtonpost.com/2013-06-28/national/40250900_1_religious-freedom-final-rules-obama-administration; http://www.ofr.gov/OFRUpload/OFRData/2013-15866_PI.pdf

A coalition of religious organizations opposed to the final rules sent an open letter to HHS. http://www.washingtonpost.com/national/on-faith/broad-coalition-says-contraception-mandate-a-religious-liberty-threat/2013/07/02/40511d7e-e360-11e2-bffd-37a36ddab820_story.html; http://www.usccb.org/issues-and-action/religious-liberty/upload/standing-together-for-religious-freedom.pdf

Topics:  Contraceptive Coverage Mandate, Equal Protection, First Amendment, Free Exercise, Freedom of Religion, Hobby Lobby, Indemnification, Legal History, Religion, Religious Discrimination, Religious Institutions

Published In: Civil Remedies Updates, Constitutional Law Updates, Health Updates, Immigration Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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