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Religious Discrimination - Module 4 of 5

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Module 4 - Religious Discrimination




Religious liberty is a fundamental right, and the right applies whether or not the beliefs conform to the dogma of any particular religion.[1] Religious liberty is so important to our system of government that the first sentence in the United States Constitution’s First Amendment addresses religious liberty, as the Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.”[2] As Founding Father Thomas Jefferson once wrote, the clause seeks to build “a wall of separation between Church & State.”[3]  


The second clause in the First Amendment, the Free Exercise Clause, reads “Congress shall make no law…prohibiting the free exercise thereof.” It protects a person’s freedom to choose, or not choose, a faith to follow.


In this module, we’ll explore the impact of both clauses on preventing religious discrimination. We’ll explore these constitutional guarantees and examine several federal laws that have emerged seeking to halt religious discrimination.


The Free Exercise Clause


The free exercise clause grants a person the right to believe and profess whatever religious doctrine he desires and the right to participate in or abstain from certain religious practices.[4] For a person to successfully show infringement of free exercise rights, he must establish “the coercive effect of the [state] enactment as it operates against him in the practice of his religion.”[5]


The first thing to note is that the right to free exercise of religion is not absolute. If a legitimate state rule of general applicability inhibits the exercise of religion, it can still be valid. In the 1990 case Employment Division v. Smith, the Court held that Oregon could deny unemployment benefits to two drug rehabilitation counselors who were members of a Native American Church who had been fired for ingesting peyote even though they claimed that it was needed in their religious ceremonies. The Court reasoned that the Oregon law outlawing peyote ingestion was a “neutral law of general applicability” that applied to everyone regardless of religious affiliation.[6]


Still, where even laws of general applicability significantly impact religion, the Court has balanced the religious interests against the state interest to determine whether the state must make exemptions for religious practices. In Wisconsin v. Yoder, a conflict arose between a Wisconsin law requiring that children attend a public or private school until age 16 and Amish parents’ religiously-based practice of keeping their children in school only through the eighth grade to keep them in a church community apart from worldly influences.[7] The Court held that the parents’ interests in the free exercise of their religion outweighed Wisconsin’s interest in compelling school attendance.[8]


The holding in Yoder was buttressed by the holding of another case, almost 10 years later, in Thomas v. Employment Security Division,[9] which held that for a law that substantially burdens religious practice to pass muster, the state must provide a compelling state interest and the state’s law must be the least restrictive means available to regulate religious practice.[10] This, of course, amounts to the application of the strict scrutiny standard we have discussed previously in other contexts.


If a law does target a religious practice (even if it doesn’t specifically say so), then it certainly must pass strict scrutiny. In Church of Lukumi Babalu Aye v. Hialeah, a Hialeah, Florida, zoning ordinance made it illegal to “to unnecessarily kill an animal in a ritual not for the primary purpose of food consumption.” The record made clear that the ordinance targeted practitioners of the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The local ordinance was unconstitutional, the Court ruled, because the “governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice.” In other words, the law was not the least restrictive manner in which to achieve the compelling government interest at issue.[11]


The Religious Freedom Restoration Act


In response to a perceived fear that the courts were not doing enough to protect religious freedom, Congress enacted the Religious Freedom Restoration Act of 1993.[12] The RFRA, as it is commonly known, provided that federal or state governments “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the burden was necessary for the "furtherance of a compelling government interest,” thus legislatively installing strict scrutiny as the standard of review for all federal and state laws that substantially burden the free exercise of religion.[13] The law also created a federal cause of action for a person who claimed that the government interfered with her free exercise rights.[14] Finally, RFRA created a legal defense so that a person charged criminally or sued civilly could assert her religious exercise right under the law to avoid liability.[15]


Less than five years after President Bill Clinton signed RFRA into law, the landmark case, City of Boerne v. Flores, tested the law’s constitutionality. In Boerne, Texas, the St. Peter Catholic Church found itself in need of additional seating for parishioners attending Sunday masses and other services. Flores, the Archbishop of San Antonio, authorized the church to plan for modification of the church structure. Shortly thereafter, Boerne’s City Council passed an ordinance directing “the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts.” The ordinance conditioned “construction affecting historic landmarks or buildings in a historic district” on “preapproval” from the Historic Landmark Commission. Flores applied for the necessary building permits to begin the rehabilitation and expansion of St. Peter Catholic Church. The Historic Landmark Commission denied the application.


The Archbishop sued the City, relying on RFRA. The Supreme Court sided with the city, finding no evidence to suggest that Boerne’s historic preservation ordinance favored one religion over another religion or that it attempted to hinder free religious exercise. The Court also held that RFRA was unconstitutional as applied to state laws. Justice Anthony Kennedy, writing for the Court, concluded that Congress had exceeded its authority by forcing standards on state laws, ruling that the attempt “contradicts vital principles necessary to maintain separation of powers and the federal balance.[16] Justice Kennedy made clear that Congress had the power to remedy constitutional violations, but not to define constitutional rights and force the states to adopt its standards in applying them.[17]


Though RFRA was thus invalidated, 21 states subsequently enacted their own versions of religious freedom laws.[18] In New Mexico, for example, the state’s Religious Freedom Restoration Act provides that a government agency shall not restrict a person's free exercise of religion unless:[19]


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

·         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.


The Religious Land Use and Institutionalized Persons Act


In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act.[20] Congress invoked its Commerce Clause power to regulate interstate commerce and its Spending Clause power in support of its enactment of a further protection of religion in two narrower contexts: land use decisions and treatment of prisoners and others under involuntary commitment.[21]


The Act’s primary goal is to protect religious institutions from unduly burdensome or discriminatory land use regulations. An example of the law in action occurred in Bernards Township, New Jersey. There, the Islamic Society of Basking Ridge was meeting in a rented public school and a public park. It sought permanent space, so it bought a property in a zone permitting places of worship, and which met the minimum acreage requirements for places of worship. However, the city denied the Islamic Society a permit to build a mosque after 39 public hearings over a nearly four year-period. After a thorough investigation, the Department of Justice filed suit alleging violations of the Act. Ultimately, the DOJ and the Islamic Society reached a settlement with the township, allowing mosque construction to proceed.[22]


The land use provisions of the Act impose five rules to protect religious organizations from targeted exclusions, limitations, and burdens that could otherwise be imposed through land use regulations:


1)    governments may not impose a substantial burden on religion, unless they are the least restrictive means available in service of a compelling government interest

2)    governments must treat religious institutions equally with comparable secular institutions

3)    governments are barred from discriminating among religions

4)    governments may not use zoning ordinances to totally exclude religious assemblies from a jurisdiction; and

5)    governments may not impose unreasonable limits on houses of worship.[23]


Another feature of the Act addresses the religious accommodation needs of prisoners.[24] Under the protections for “institutionalized persons,” no government may impose a substantial burden on the religious exercise of a person residing in or confined in a covered “institution” without proving that the burden results from the government’s use of the least restrictive means to secure a compelling government interest.


Religious Discrimination in Employment


Many lawsuits and allegations regarding religious discrimination arise in disputes between religious adherents and their employers. The most important law in such a dispute is Title VII of the Civil Rights Act of 1964, which prohibits workplace harassment and discrimination and prohibits discrimination against workers because of race, color, national origin, sex, and religion.[25]


Religious discrimination is forbidden “when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.”[26] Title VII applies to public and private employers. No covered employer may discriminate against current employees or job applicants due to their religious beliefs.[27]


There are two bases for a plaintiff to prove religious discrimination.[28] They are:


·         disparate treatment, where the employee presents evidence that she was treated less favorably than others because of her religious beliefs; and


·         disparate impact: where the employee presents evidence that a facially neutral employment or policy has a significant adverse impact on her or people who hold the same religious beliefs as hers.


The Act defines “religious belief” to mean a sincere and meaningful belief which occupies in the life of its possessor a place that is parallel to God in traditional religions.[29] A person’s beliefs represent religion regardless of the formal existence of a religious group when a person sincerely holds beliefs dealing with issues of ultimate concern that occupy a place parallel to what “God” fills in a person associated with a traditional religion, such as Christianity or Judaism.[30]


Employers covered under Title VII are those entities with “fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.”[31] They must provide their employees with reasonable accommodations of their religious beliefs or practices unless such accommodations would cause undue hardship.


An employer can demonstrate undue hardship in several ways. These include:


·         costliness of the accommodation (this requires more than a mere de minimis impact in cost);

·         risk to workplace safety or efficiency if the accommodation is granted;

·         impact on the employment conditions and rights of other workers; and

·         impact of accommodation on the terms of a collective bargaining agreement.[32]


To sustain a claim for religious discrimination, an employee must first notify the employer of the need for a religious accommodation so that an employer has “notice” of the conflict. In Redmond v. GAF, a dispute arose between an employer and its employee, who was a Jehovah’s Witness taking part in Saturday Bible classes pursuant to religious beliefs. The employer told the plaintiff that he had to work on Saturdays or he would lose his job. The defendant claimed that it had not been formally notified of the religious conflict. The court, however, found that the terminated employee had met and informally spoken with his immediate supervisors “several times” prior to his firing, letting them know that he wasn’t able to work on Saturdays. These meetings sufficed for purposes of “notice” of a need for religious accommodation.[33]


Religious Discrimination and Immigration


We’ll conclude our discussion with the controversial topic of religious discrimination in immigration. During his presidential campaign in 2015 and 2016, President Donald Trump called for a suspension of admissions to the United States of Muslims from other nations. In September 2017, President Trump signed Proclamation No. 9645, which sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of seven countries may present “public safety threats.”[34] Five of these nations are Muslim-majority.[35] Though the proclamation didn’t prohibit Muslims as such from entering the United States, Muslims were the religious group most likely to be affected.

In 2018, the question of whether this entry policy violated the First Amendment’s Establishment Clause reached the Supreme Court. In Trump v. Hawaii, Hawaii argued that President Trump’s proclamation exceeded his authority and that it violated the establishment of religion constitutional provision. The plaintiffs argued that though the proclamation was “a facially neutral law with a non-secular purpose” that didn’t overtly seek to halt Muslim immigration, it still violated the Establishment Clause because it had an impact of curbing Muslim immigration from nations with Muslim-majority populations, thus disfavoring a particular religion. The government argued that the President’s proclamation resulted from a “worldwide, multi-agency review” that concluded that entry by certain non-citizens would be detrimental to the national interest.[36]  


In siding with the President, the Court found that because this case took place in the fields of national security and international relations, fields where there is great deference to the President, it would apply only rational basis review. This standard only requires the Court to find that the entry policy was “plausibly” related to the Government’s stated objective of protecting the country. Under the lenient rational basis review standard, the Court upheld the proclamation, explaining that President Trump’s policy “is expressly premised on legitimate purposes,” of promoting national security. Here, multiple federal agencies and officials undertook a “worldwide review process” to determine how to improve the vetting process in immigration and how to balance the security needs of Americans. This review justified the inclusion of each country placed on the list, even though five of them are Muslim-majority.


Furthermore, the federal government’s removal of three Muslim-majority countries, Iraq, Sudan and Chad, from the list, and the Proclamation’s carve-outs for non-immigrant permanent residents and asylum seekers, added plausibility to the travel ban’s claimed purposes of promoting national security and not targeting religion.


In our last module, we’ll learn about the nuances of a civil rights lawsuit, their bases and the processes by which they are brought.

[1] Freedom of Religion, University of Baltimore, https://home.ubalt.edu/shapiro/rights_course/Chapter5text.htm (last visited Aug. 1, 2018).

[3] Jefferson’s Letter to the Danbury Baptist, Library of Congress, https://www.loc.gov/loc/lcib/9806/danpre.html (last visited Aug. 1, 2018).

[4] Employment Division v. Smith, 494 U.S. 872, 877 (1990).

[6] Employment Division, 494 U.S. at 879.

[7] John W. Whitehead, “The Conservative Supreme Court and the Demise of The Free Exercise of Religion”, 7 Temp. Pol. & Civ. Rts. L. Rev. 1, 92 (1997).

[8] Wis.v. Yoder, 406 U.S. 205, 234 (1972).

[10] Id.

[12] Religious Freedom Restoration Act of1993, Pub. L. 103–141, 107 Stat. 1488 (Nov. 16, 1993), codified at Title 42 U.S.C. § 2000bb et seq.

[15] 42 U.S.C. § 2000bb-1(c).

[16] City of Boerne v. Flores, 521 U.S. 507, 536 (1997).

[17] Id. at 519-20; Gregory Margarian, “How To Apply the Religious Freedom Restoration Act to Federal Law Without Violating The Constitution”, 99 Mich. L. Rev. 1903, 1913 (2001).

[18] State Religious Freedom Restoration Acts, National Conference of State Legislatures, (May 4, 2017), http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx#RFRA.

[20] Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. 106-274, 106 Stat. § 2689 (Sept. 22, 2000) codified at 42 U.S.C. § 2000cc et esq.

[21] ACLJ Memorandum: An Overview of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) – 2004, ACLJ, https://aclj.org/us-constitution/aclj-memorandum-an-overview-of-the-religious-land-use-and-institutionalized-persons-act-rluipa-2004 (last visited Aug. 2, 2018).

[22] Information About : Federal Religious Land Use Protections, U.S. Dep’t of Justice, Civil Rights Div., https://www.justice.gov/crt/page/file/1070736/download (last visited Aug. 2, 2018).

[23] Statement of the Department of Justice on the Land-Use Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), U.S. Dep’t of Justice, Civil Rights Div.,(Sept. 22 2010), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/rluipa_q_a_9-22-10_0.pdf.

[25] Facts About Religious Discrimination, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/publications/fs-religion.cfm (last visited Aug. 2, 2018).

[26] Religious Discrimination, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/types/religion.cfm (last visited Aug. 2, 2018).

[28] Steven D. Jamar, “Accommodating Religion At Work: A Principled Approach To Title VII and Religious Freedom”, 40 N.Y.L. Sch. L. Rev. 719, 732-34 (1996).

[29] United States v. Seeger, 380 U.S. 163, 176 (1965).

[30] Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005).

[31] Supreme Court Clarifies Method for Counting Employees Under Title VII, FindLaw, https://corporate.findlaw.com/human-resources/supreme-court-clarifies-method-for-counting-employees-under-title.html (last visited Aug. 2, 2018).

[32] Peter R. Shapiro, Examining the Duty to Provide Religious Accomodations, Lexis Practice Advisor Journal, (Sept. 13, 2016), https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/archive/2016/09/13/examining-the-duty-to-provide-religious-accommodations.aspx.

[33] Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir.1978).

[35] James Griffith, Angela Dewan & Emily Smith, What it’s Like in the 7 Countries on Trump’s Travel Ban List, CNN, (June 27, 2018), https://www.cnn.com/2018/06/27/politics/trump-travel-ban-countries-intl/index.html.

[36] Trumpv. Hawaii, 201 L. Ed. 2d 775, 789, 803-04 (2018).