Part 2, Module 3: The Free Exercise Clause in Specific Contexts
Module 3: The Free Exercise Clause in Specific Contexts
In this module, we will study how the courts have applied the free exercise clause to specific legal and factual contexts. Specifically, we will consider whether:
· Individuals may refuse medical treatment for themselves or their children for religious reasons;
· Prisoners may be exempt from policies that allegedly infringe on their religious beliefs;
· Individuals may use property for religious purposes when zoning laws forbid such use; and
· Employees’ religious liberty is entitled to protection in the workplace and, if so, the extent of that protection.
The government is almost always prohibited from restricting the right to freely exercise religion in private places, such as the home or a place of worship. Accordingly, the overwhelming majority of legal issues involving the free exercise clause concern the extent to which religious liberty may be restricted in public or quasi-public places. In these places, the right to religious freedom often conflicts with countervailing interests of the government. Ultimately, therefore, the challenge confronting courts involves determining how to balance the right to religious liberty with the competing interests of government.
Notwithstanding, the courts have developed legal rules in particular contexts that clarify both the scope of the free exercise clause’s protections and the limits on the government’s power to restrict religious freedom.
The Right to Refuse Medical Treatment
Court have interpreted the free exercise clause to permit people to refuse necessary and, in some cases, lifesaving medical treatment. As one scholar states:
Religious beliefs may lead people to reject medical treatment. For example, Jehovah’s Witnesses refuse blood transfusions and Christian Scientists refuse a range of medical care. Can parents refuse blood transfusions or other life sustaining treatment for their children? In answering that question, it is useful to begin with the right of parents to refuse unwanted medical care for themselves. On that question, the common law and constitutional doctrine come to the same conclusion: People may refuse undesired medical care, even if the care is necessary to prolong life. The state’s interest in preserving life yields to the individual’s interests at stake—the common law right to accept or refuse recommended treatment (the doctrine of informed consent), the substantive due process right to avoid unwanted bodily intrusions, and the First Amendment right to freedom of religion.
Indeed, “the right to refuse treatment rests on alternative secular and sectarian constitutional grounds, and either one alone is sufficient.” In Stamford Hospital v. Vega, for example, the Connecticut Supreme Court held that the interest in autonomy and self-determination allows one to refuse life-saving medical treatment.
Still, in most circumstances, people may not refuse necessary or lifesaving medical treatment on behalf of another person. For example, although parents may make informed medical decisions on behalf of their children because children are not considered competent to make such decisions, parents’ may not refuse necessary or life-saving medical treatment for their children.  One commentator explains as follows:
While adults enjoy an unlimited right to refuse treatment for themselves, their right to decide is limited when exercised on behalf of their children. Parents generally have authority to make medical decisions for their children, but not to refuse care that provides great benefit. As courts have observed, parents may make martyrs of themselves, but not of their children. If a refusal of care would constitute child abuse or neglect, the state may prohibit the refusal.
Additionally, the government may, in some cases, order parents to provide medical treatment for a child’s non-threatening condition if doing so would alleviate or cure the condition.
Let’s consider two examples:
An elderly male is recently diagnosed with Stage IV lung cancer and given approximately six months to live. As part of his treatment program, doctors recommend that he undergo radiation and chemotherapy treatment, which may extend his life by several months. The man refuses and opts to attempt alternative, holistic treatments to treat the cancer. Unfortunately, the treatments are not successful, and he begins to suffer extreme pain and discomfort over the next few months, which ultimately requires admission to the hospital. Doctors offer to provide medications that will alleviate his pain and suffering, and to attempt experimental medications to possibly slow the cancer’s progression. The man refuses, claiming that his religion rejects all forms of “drugs,” and that “God will take me when it is time.” The government intervenes to obtain a court order requiring the man to take the prescribed medications, arguing that the state’s interest in “alleviating the pain and suffering of its most vulnerable populations” outweighs the man’s interest in refusing treatment.
A court would almost certainly rule for the patient because the individual interests in religious liberty and autonomy outweigh the government’s authority to require individuals to take medication for non-curable conditions.
The Jones’s, who are members of the unorthodox religious group, Faith, Not Science, live in Brooklyn, New York and are proud parents of three children, all of whom attend private schools. The Jones’s daughter, Amy, who is fourteen years old and a sophomore in high school, recently visited the family physician for a routine examination, including a comprehensive blood test. Unfortunately, the results of this test show that Amy is HIV-positive. Amy’s physician informs her parents that HIV is no longer life-threatening, and that strict adherence to a prescribed medication regime will ensure that Amy lives a full and functional life. Amy’s parents refuse to allow Amy to take any medication, stating that “the members of our church will pray for Amy and through God she will find healing.” With assistance of an attorney, Amy files a lawsuit requesting that a court order Amy’s parents to allow Amy to take the prescribed medication. How should a court rule?
The court will order the parents to allow Amy to take her prescribed medication. Although the free exercise clause protects an individual’s right to refuse medical treatment, it does not allow individuals, such as Amy’s parents, to refuse medical treatment for a child whose serious medical condition would be cured or managed through that treatment.
Sometimes, of course, it cannot be determined with certainty what a person who cannot express her wishes would have wanted. In a case that garnered nationwide attention in 2005, state and federal governments, along with many private advocacy groups, got involved in the controversy over whether invalid Terri Schaivo’s life support should be removed. The Supreme Court’s position, set forth in a landmark 1990 case, Cruzan v. Director, Missouri Department of Health, in such case allows a state to continue life support treatment unless is can be shown by “clear and convincing” evidence that the recipient would want to terminate treatment.
Prisoners often allege that the policies of the penal institution where they are incarcerated violate their religious beliefs. For example, prisoners may allege that dietary, grooming, and worship services fail to accommodate their religious beliefs and practices.
The courts have not developed clear and categorical rules to determine the extent to which prison officials must accommodate prisoners’ religious beliefs and practices. The Supreme Court, however, has created a standard that balances prisoners’ religious liberty against the government’s interests in enforcing prison policies. In Turner v. Safley, the Court stated that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”
The Court identified the following factors to determine if a regulation is “reasonably related to legitimate penological interests”:
· Whether there is a “valid, rational connection” between the prison regulation and the government interest that the regulation seeks to achieve;
· Whether the government’s objective is legitimate and neutral (which means that it is not targeted at a particular religion or religion generally);
· Whether accommodating prisoners’ constitutional rights will infringe on the rights of guards or other inmates, and on the allocation of prison resources generally and
· Whether there are alternative methods of accommodating prisoners’ rights at minimal cost to valid penological interests.
The Court has emphasized that, although prisoners’ religious freedom is entitled to protection, it is typically “unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end.”
Applying this standard, courts have generally held that prisoners have the right to attend religious services and engage in prayer. However, prison officials are not required to accommodate every religious faith, and can stop at providing religious services for those faiths that have the most adherents in particular prisons. Additionally, prison officials need not provide worship services for religious faiths that advocate policies endangering prison safety and security.
Furthermore, the courts have held that, while prison officials may limit the number of written materials that prisoners have in their cells, each prisoner is, in most cases, permitted to keep the primary book of his religious faith. Regarding religious objects, the courts have held that prison officials may ban prisoners from having religious objects in their cells if doing so would present a safety or security risk. Regarding religious foods, courts have held that prisoners are generally allowed to avoid eating foods that their religious faiths prohibit. However, prison officials are not required to provide individualized diets for specific prisoners. Finally, prisoners are entitled to observe the Sabbath and other religious duties, and any attempt to force prisoners to violate such duties violates the free exercise clause.
Let’s consider two examples.
A policy in Statesville Prison prohibits prisoners from growing any facial hair and claims that such a policy prevents individuals from hiding contraband, including potentially dangerous weapons. A Muslim prisoner files suit and alleges that the policy violates his religious liberty, which requires him to grow a beard. How should the court rule?
The policy violates the free exercise clause. There is no evidence that facial hair in any amount is or has been used to hide contraband. Indeed, inmates can also hide contraband in clothing or shoes, but the prison does not prohibit prisoners from wearing clothes or shoes.
Two prisoners sue Statesville prison, alleging that prison officials are refusing to provide them with any venue or time period in which to conduct worship and prayer services. The prisoners are members of the Salvation Lies Within fellowship, a non-denominational religion that, among other things, advocates for resistance against government authorities and rebellion against “man-made laws.” Are prison officials required to provide the prisoners with a forum in which to conduct worship and prayer services?
The answer is almost certainly “no.” The prisoners’ religion, which specifically advocates for resistance and rebellion against government authorities, presents possible safety and security issues for the prison.
Zoning and Religious Structures
In some cases, people seek to use private property for religious purposes, but in so doing, violate a zoning law that prohibits such uses. In such circumstances, the individual right to religious liberty conflicts directly with the government’s intertest in regulating, among other things, the aesthetic character of a neighborhood.
To resolve the uncertainty surrounding these disputes, Congress enacted the Religious Land Use and Institutionalized Persons Act of 2000. The Act “forbids governments from implementing land use regulations that treat ‘a religious assembly or institution on less than equal terms with nonreligious assembly or institution.’” It also provides that “no government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution,” unless the government demonstrates there that is a “compelling governmental interest” justifying the regulation and that the law is the least restrictive means of achieving that interest.
The courts have not yet developed a clear standard to determine whether, and under what circumstances, a law that restricts religious uses on private property violates the free exercise clause. Notwithstanding, courts typically rely on the following factors when conducting their analysis:
· Land-use regulations must be based on secular land-use impacts rather than on concern about the religious beliefs involved;
· Regulations should be applied equally to religious and secular land-uses with similar impacts;
· Land-use regulations must be neutrally applied to all religious uses with similar land-use impacts; and,
· There should be an appropriate balance between the burdens imposed on religious practices and benefits secured for the governmental interests being addressed.
As a practical matter, many challenges to zoning laws under the free exercise clause fail because courts often find that the law in question has a secular purpose, and that it is “generally applicable” because it regulates both religious and secular institutions.
In summary, several principles have emerged that clarify the scope of the free exercise clause. Specifically:
· People have the right to refuse medical treatment for religious (and secular) reasons, even in life-threatening circumstances;
· People may not, in most circumstances, refuse medical treatment on behalf of other people. For example, although parents have the authority to make medical decisions on behalf of their children, they may not refuse medical treatment for their children if doing so would constitute abuse and neglect, which includes endangering a child’s life or denying treatment that would cure or alleviate a medical condition;
· The free exercise clause protects prisoners’ right to religious liberty, but restrictions on that right are permissible if they are reasonably related to legitimate penological interests; and
· The government cannot enact zoning regulations that treat religious institutions differently than nonreligious institutions, or that substantially burden religious liberty.
Ultimately, the extent of the right to freely exercise religion, like other constitutional rights, is determined by balancing the individual’s right against the government’s competing interests in restricting that right. The upshot is that legal issues involving religious liberty are decided on a case-by-case basis, and the rules in this area continue to evolve.
In our next module, we’ll turn to the establishment clause – that other element of the First Amendment’s guarantee of religious freedom.
 U.S.C.S. Const. Amend. 1.
 Id. supra.
 Stamford Hosp. v. Vega, 236 Conn. 646 (1996).
 See, e.g., Douglas Diekema, Parental Refusals of Medical Treatment: The Harm Principle as Threshold for State Prevention, 25 Theoretical Medicine 243, 250 (2004).
 David Orentlicher, Law, Religion and Health Care, 8 U.C. Irvine L. Rev. at 617.
 State v. Rogers (In re D.R.), 20 P3d 166 (Okla. Civ. App. 2001); see also, 325 Ill. Comp. Stat. Ann. 5/3 (2006).
 Cruzanv. Dir. Mo. Dep’t of Health, 497 U.S. 261 (1990).
 Turnerv. Safely, 482 U.S. 78 (1987).
 Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001).
 Smith v. Kyler, 295 Fed. App’x. 479 (3d Cir. 2008).
 Murphy v. Missouri Dept. of Corrections, 372 F.3d 979, 983-84 (8th Cir. 2004).
 Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003).
 McFaul v. Valenzuela, 684 F.3d 564 (5th Cir. 2012).
 Moorish Science Temple, Inc. v. Smith, 693 F.2d 987 (2d Cir. 1982).
 DeHart v. Horn, 390 F.3d 262 (3d Cir. 2004).
 Love v. Reed, 216 F.3d 682 (8th Cir. 2000).
 See, Holt v. Hobbs, 135 S. Ct. 853 (2015).
 RLUIPA, 2000 Enacted S. 2869, 106 Enacted 2869, 114 Stat. 803; see also, Thomas E. Raccuia, RLUIPA and Exclusionary Zoning, Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases. 80 Fordham L. Rev. 1853, (2012) (internal citation omitted).
 42 U.S.C.S. § 2000cc.
 See, David W. Owens, Land Use Regulation of Religious Uses (1997), https://www.sog.unc.edu/resources/legal-summaries/land-use-regulation-religious-uses.
 See, e.g., First Assembly of God v. City of Alexandria, 739 F.2d 942 (4th Cir. 1984), cert. denied, 469 U.S. 1019 (1984); Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).