How Jewish Laws of Resistance Can Aid Religious Freedom Laws

Transcription

1 California Law Review Volume 100 Issue 4 Article How Jewish Laws of Resistance Can Aid Religious Freedom Laws Daniel Kazhdan Follow this and additional works at: Recommended Citation Daniel Kazhdan, How Jewish Laws of Resistance Can Aid Religious Freedom Laws, 100 Calif. L. Rev (2012). Link to publisher version (DOI) This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 How Jewish Laws of Resistance Can Aid Religious Freedom Laws Daniel Kazhdan* This Comment synthesizes current United States religious freedom jurisprudence and argues that it is inadequate for protecting religious practice. As currently applied, the First Amendment, the Religious Freedom and Restoration Act, and the Religious Land Use and Institutionalized Persons Act do not sufficiently consider the perspective of the burdened religion. Religious freedom laws exist to navigate between the needs of society and the needs of religious participants. An evaluation of any prospective law should therefore consider both sides needs. This Comment presents a framework for considering the severity of the burden that a law places on a religion and argues that the severity of the burden should be a factor in determining whether a secular law should be upheld. Introduction I. U.S. Religious Freedom Laws A. First Amendment Smith and Lukumi The Broad Reading of General Applicability The Narrow Reading of General Applicability What Is a Burden? B. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA) II. Problems with Current Religious Freedom Jurisprudence A. Problems with Free Exercise Jurisprudence Copyright 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * J.D., University of California, Berkeley, School of Law, I would like to thank Stephen Sugarman, Molly Shaffer van Houweling, Bea Gurwitz, Robert Yeh, Lauren Maisel, David Kazhdan, Cory Isaacson, Noah Greenfield, Kenneth Bamberger, and Ezi Soloveichik for their invaluable assistance. Additionally, I wish to thank Nicholas Fram, Anne Kim, Sean McCormick, and the California Law Review editors who went above and beyond in helping me improve this piece. Finally, I would like to thank the Berkeley Institute for Jewish Law for funding for research assistance. 1069

3 1070 CALIFORNIA LAW REVIEW [Vol. 100:1069 B. Problems with RFRA and RLUIPA Jurisprudence III. Alternative Free Exercise Interpretations A. The Potential for Religious Freedom Doctrines to Evolve B. Balancing Test Considerations for Resistance Within Jewish Law How Jewish Laws of Resistance Can Inform U.S. Law Analogous Considerations Within U.S. Law C. Ancillary Benefits of the New Framework Conclusion INTRODUCTION Just over twenty years ago, in Employment Division, Department of Human Resources v. Smith, the Supreme Court held that, in evaluating whether a challenged law violates the First Amendment, the burden on the religion need not be considered. 1 Instead, if a state law was neutral and generally applicable, then the law was per se immune to a Free Exercise challenge. 2 Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), which restored the pre-smith test when evaluating federal (but not most state) actions. 3 Under these statutes, the federal government (and, on occasion, state governments) cannot impose a substantial burden on a person s exercise of religion, even if the burden results from a rule of general applicability, unless the law furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 4 Part I of this Comment summarizes the way various courts have understood the First Amendment, RFRA, and RLUIPA. It notes that federal courts disagree on whether neutral laws that are not generally applicable violate the First Amendment. It also describes a circuit split on whether laws must substantially burden religion before there is a violation of the First Amendment. In terms of RFRA and RLUIPA, this Comment notes that courts diverge on the meaning of substantial burden. Some courts look to whether the practice is mandated by religion, while others do not. Part II contends that the current judicial understanding of the First Amendment, RFRA, and RLUIPA is inadequate. The Free Exercise doctrine imprudently ignores the degree of burden to religion. RFRA and RLUIPA s binary focus on whether there is a substantial burden is too coarse U.S. 872, 882 (1990). 2. See id. at See 42 U.S.C. 2000bb to bb-4 (2006); id. 2000cc to cc Id. 2000bb-1(a) (b) (using the phrase [g]overnment shall not substantially burden ); 2000cc-1(a)(1) (2) (stating that government shall not impose a substantial burden ).

4 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1071 Part III argues that considering the degree to which secular law burdens a religious practice requires a finer approach. A nuanced understanding of the degree of religious burden should be balanced against the government s interest. To help establish such a framework, this Comment looks to Jewish laws of resistance to secular laws to evaluate the degree of burden from a Jewish perspective. Jewish jurisprudence lays out a combination of factors that determine whether Jews should acquiesce to a burdening law or whether they must resist even to the point of martyrdom. These factors include whether the religious practice is central, whether the practice requires an act (versus an omission), and whether the practiced act is performed publicly. These factors can be applied by secular governments in considering how much a potential law burdens a religion. By understanding the burden that a law places on religion, the government will be in a better position to balance this burden against the state s interest in the potential law. I. U.S. RELIGIOUS FREEDOM LAWS This Part will explain the three main sources of U.S. religious freedom laws: the First Amendment s Free Exercise Clause, 5 the Religious Freedom Restoration Act (RFRA), 6 and the Religious Land Use and Institutionalized Persons Act (RLUIPA). 7 A. First Amendment The First Amendment forbids Congress from making laws that prohibit the free exercise of religion, 8 but the Supreme Court s definition of what constitutes an impermissible prohibition has not been static. Until 1990, the doctrine the Supreme Court applied when determining whether congressional action violated the Free Exercise Clause was a test set out in Sherbert v. Verner. 9 Sherbert held that a burden on religious freedom was impermissible unless there existed a compelling state interest for imposing it. 10 This test was rephrased in Wisconsin v. Yoder, where the Court held that the government s interest had to be balanced against the burden on religious freedom. 11 Beginning in the 1980s, the Supreme Court retreated from its broad review of laws that burdened religion. By 1989, the Court recast Sherbert and Yoder as limited to cases where laws substantially burdened religion even 5. U.S. CONST. amend. I U.S.C. 2000bb to bb Id. 2000cc to cc U.S. CONST. amend. I U.S. 398 (1963). 10. Id. at U.S. 205, 214 (1972).

5 1072 CALIFORNIA LAW REVIEW [Vol. 100:1069 though Sherbert and Yoder never stated such a requirement. 12 This retreat from review of laws that burdened religion foreshadowed the Court s decision in Smith, 13 where the Court almost completely abandoned review of Free Exercise challenges. 1. Smith and Lukumi In 1990, the Court decided Smith, holding that any law that was neutral and generally applicable was per se permissible even without a compelling government interest. 14 While the majority used the expressions neutral and general applicability at least a half dozen times each in Smith, the Court did little to explain what these expressions meant. In a subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court elaborated on the meaning of neutral law of general applicability. 15 The Church of the Lukumi Babalu Aye was a congregation of the Santeria religion whose members wished to practice animal sacrifice in Hialeah, Florida. 16 The city passed ordinances forbidding killing animals if the primary purpose was not for food, and members of the church challenged the law as violating the First Amendment. 17 The Supreme Court held that while the ordinances were facially neutral, their object was to target religion, and they were, therefore, not neutral. 18 The Court stated that the ordinances created a religious gerrymander whereby only Santeria conduct was forbidden. 19 In addition to slaughter for food, the city permitted hunting, fishing for sport, eradicating insects and pests, using euthanasia on stray animals, and using live rabbits to train greyhounds. 20 The ordinances were thus underinclusive that is, they did not regulate all conduct that should have raised the same concern in that almost the only conduct subject to [the ordinances was] the religious exercise of Santeria church 12. Hernandez v. Comm r, 490 U.S. 680, 699 (1989) ( The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. ). The first case to stress the substantial aspect of the religious burden was Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718 (1981). The Court followed Thomas with a series of decisions highlighting the substantiality of the burden. See, e.g., Hobbie v. Unemployment Appeals Comm n, 480 U.S. 136, 141, 143 (1987); see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1089 (9th Cir. 2008) (Fletcher, J., dissenting) ( The Court in Sherbert and Yoder used the word burden, but nowhere... used... the phrase substantial burden.... The phrase substantial burden is a creation of later cases which sometimes use Sherbert or Yoder as part of a string citation. ). 13. Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872 (1990). 14. See id. at U.S. 520 (1993). 16. Id. at Id. at Id. at Id. at Id. at 537.

6 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1073 members. 21 Thus, the object of the ordinances was not neutral: it targeted Santeria practice. The Supreme Court also argued that the ordinances were not generally applicable and were overinclusive. Citing Smith, the Court explained that once a law that burdens religion has individualized exemptions... the government may not refuse to extend that system... without compelling reason. 22 The individualized exemptions for hunting, fishing, and the like made clear that the city considered religious hardships to be less important than nonreligious hardships. 23 Furthermore, to protect public health and prevent animal cruelty, the ordinances could have stopp[ed] far short of a flat prohibition of all Santeria sacrificial practice. 24 For instance, in terms of protecting public health, the ordinances could have merely regulated how carcasses were disposed of, not the slaughter itself. 25 Therefore, they were overinclusive as well that is, they regulated too much conduct. 26 Additionally, Justice Kennedy, joined by Justice Stevens, argued that the Court could look to the historical background of the ordinances to show that they were not neutral. 27 Justices Scalia and Rehnquist, though concurring in judgment, held that the lawmakers motivation was irrelevant. 28 Since the city s ordinances were not neutral and generally applicable, and the exceptions were substantial[ly], not inconsequential[ly] underinclusive, 29 they were subjected to the highest scrutiny: the ordinances had to advance interests of the highest order and... be narrowly tailored in pursuit of those interests. 30 The ordinances failed both criteria: [A] law cannot be regarded as protecting an interest of the highest order... when it leaves appreciable damage to that supposedly vital interest unprohibited. 31 The ordinances were also overbroad and underinclusive, and therefore not narrowly tailored. 32 The Court therefore invalidated the ordinances Id. at Id. at 537 (citing Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 884 (1990)). 23. Id. at ( Respondent s application of the ordinance s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. ). 24. Id. at Id. 26. Id. at Id. at Id. at (Scalia, J., concurring in part and concurring in the judgment). 29. Id. at Id. at Id. at 547 (quoting Florida Star v. B.J.F., 491 U.S. 524, (1989) (Scalia, J., concurring in part and concurring in the judgment) (citation omitted)). Since the Court defines a law as not being generally applicable when the law is substantial[ly] underinclusive, id. at 543, it seems like a tautology that all such laws will be unconstitutional since they automatically leave appreciable damage unchecked, id. at Id. at Id. at 547.

7 1074 CALIFORNIA LAW REVIEW [Vol. 100:1069 Lukumi is difficult to apply to other cases because the ordinances clearly indicated a specific effort to prohibit Santeria practice and nothing else. As the Court noted, The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. 34 That the ordinances clearly intended to uniquely target members of the Santeria religion is reiterated throughout the Lukumi opinion. 35 As a result, the Court did not need to define with precision the standard used to evaluate whether a prohibition is of general application. 36 Hence, Lukumi left a lingering question: Is a law valid if it includes some exceptions, but not enough to suggest that it was passed to target a religion? 2. The Broad Reading of General Applicability In Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, then-judge Alito read general applicability broadly, holding that a law with secular exemptions need not display animus to fail the Smith test. 37 Fraternal Order of Police arose in response to a city order that, for the sake of uniformity in police appearances, prohibited police officers from growing a beard. 38 The order made an exception for officers who kept a beard for medical reasons. 39 Two Muslim police officers challenged the order, claiming that they were required to grow beards by Islamic law and that the order was an impermissible restriction on their religious freedom. 40 Judge Alito agreed with the plaintiffs, holding that [t]he Department s decision to allow officers to wear beards for medical reasons undoubtedly undermines the Department s interest in fostering a uniform appearance through its no-beard policy. 41 He argued that the order raises concern 34. Id. at Id. at 524 ( [T]he principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. ); id. at 535 ( It is a necessary conclusion that almost the only conduct subject to [the ordinances was] the religious exercise of Santeria church members. ); id. at 536 ( The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter. ); id. ( [O]ur conclusion [is] that Santeria alone was the exclusive legislative concern. ); id. ( Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others. ); id. at 538 ( [R]eligious practice is being singled out for discriminatory treatment. ); id. at 540 ( [T]he ordinances were enacted because of, not merely in spite of, their suppression of Santeria religious practice. ); id. at 542 ( In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. ). 36. Id. at F.3d 359 (3d Cir. 1999). 38. Id. at Id. at 360. There was also an exception for undercover officers. Id. This was irrelevant to the case since the exemption for undercover officers did not undermine the Department s interest in uniformity because undercover officers obviously are not held out to the public as law enforcement personnel. Id. at 366 (brackets omitted). 40. Id. at Id. at 366.

8 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1075 because it indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not, and therefore the order was held to heightened scrutiny, which it failed. 42 The reasoning behind Alito s argument is that the existence of any substantial exemptions to a law indicates that the law can withstand exemptions, and therefore religious exemptions should be made as well. 43 Thus, Alito read Lukumi broadly to hold that a law that allowed several exemptions need not display animus to fail the Smith test. 44 The Eleventh Circuit has since adopted a similar reading The Narrow Reading of General Applicability While Judge Alito argued that Fraternal Order of Police was a natural outgrowth of Lukumi, 46 this is in no way obvious. A narrower reading of Lukumi would dictate that laws only violate the Free Exercise Clause if the prohibition is clearly intended only (or mainly) to apply to religious acts. 47 As Professor Frederick Gedicks reads Lukumi, to be invalidated, the law must be so dramatically underinclusive that religious conduct is virtually the only conduct to which the law applies. 48 The narrow reading of Lukumi is jurisprudentially appealing. Why should the government not be allowed to consider medical exemptions (or any specific exemption) as more important than religious exemptions? 49 Other areas of the law consider medical needs as more important than religious ones. Individual religious preferences do not allow people to harm others, and, at times, U.S. law even forbids inflicting harm upon oneself, even for religious reasons. 50 In other words, Alito s argument that it is problematic for the government to 42. Id. 43. Fraternal Order of Police, 170 F.3d at See Stormans, Inc. v. Selecky, 524 F. Supp. 2d 1245, (W.D. Wash. 2007) (explaining that Judge Alito applies Lukumi even where a law was obviously adopted with no intent to target religious practices ), rev d, 586 F.3d 1109 (9th Cir. 2009). This Comment discusses Stormans in greater detail below. See infra Part I.A.1.c. 45. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1234 n.16 (11th Cir. 2004) ( [I]t is unnecessary to identify an invidious intent in enacting a law.... ). 46. Fraternal Order of Police, 170 F.3d at See STEVEN H. SHIFFRIN & JESSE H. CHOPER, THE FIRST AMENDMENT: CASES, COMMENTS, QUESTIONS (4th ed. 2006). 48. Frederick Mark Gedicks, The Normalized Free Exercise Clause: Three Abnormalities, 75 IND. L.J. 77, 114 (2000). 49. See Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1541 (1999) (arguing that it may be perfectly proper for the government to value certain secular activities more than religious activities). 50. See, e.g., 18 U.S.C. 116 (forbidding female genital mutilation for nonmedical reasons); Marguerite Ann Chapman, The Uniform Rights of the Terminally Ill Act: Too Little, Too Late?, 42 ARK. L. REV. 319, 324 n.15 (1989) (discussing case law regarding forcing people to receive medical treatment against their religious beliefs).

9 1076 CALIFORNIA LAW REVIEW [Vol. 100:1069 consider medical reasons more important than religious reasons is flawed. 51 Laws make this value judgment in other areas, and this value judgment should not raise concerns here. The distinction between these two readings of Lukumi is the basis of the dispute between the district court and the Ninth Circuit in Stormans, Inc. v. Selecky. 52 Washington adopted regulations requiring that pharmacies dispense any prescribed drug, including Plan B. 53 Some pharmacists refused to dispense Plan B on religious grounds. 54 Pharmacies threatened to fire these pharmacists, since the pharmacies now under obligation to dispense any prescribed drug would need another pharmacist on duty in case a patient requested Plan B. 55 The district court held that the Washington regulation contained a number of exemptions, and therefore was subject to strict scrutiny under Lukumi, which it failed. 56 It bolstered its opinion by noting that Alito read Lukumi to apply even to regulations obviously adopted with no intent to target religious practices. 57 Using this broad reading of Lukumi, it was clear that the secular exemptions mandated religious exemptions. The Ninth Circuit reversed because there was no evidence that State Appellants pursued their interests only against conduct with a religious motivation. 58 In other words, the Ninth Circuit, disagreeing with Alito, read Lukumi narrowly to only apply to cases where the exemptions prove that the law was not neutral. The First and Tenth Circuits also adopt the narrow reading of Lukumi. 59 The question of how broadly to read Lukumi is still unresolved by the Supreme Court. Of course, it would be foolhardy to discount the opinion of then Judge, now Justice, Alito, in understanding the reach of Lukumi. 4. What Is a Burden? While the Court in the 1980s required a showing of a substantial burden before considering a Free Exercise challenge, it is possible that after Smith no such showing is necessary. Justice Scalia has argued (in dissent) that a requirement that a burden be substantial only makes sense in the Sherbert framework, where laws can be challenged under the First Amendment even if 51. See Fraternal Order of Police, 170 F.3d at F. Supp. 2d 1245 (W.D. Wash. 2007), rev d, 586 F.3d 1109 (9th Cir. 2009). 53. Id. at Id. at Id. 56. Id. at Id. at (explaining Alito s decision in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)). 58. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009). 59. Strout v. Albanese, 178 F.3d 57, 65 (1st Cir. 1999); Axson-Flynn v. Johnson, 356 F.3d 1277, (10th Cir. 2004) (noting that it was disagreeing with Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)).

10 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1077 there is no evidence of ill will on the government s part. 60 After Smith, when a law can only be challenged if it is not neutral or generally applicable, [t]he indignity... is so profound that the concrete harm produced can never be dismissed as insubstantial. 61 Though three circuits agree with Justice Scalia, 62 most circuits require that a burden be substantial before a Free Exercise challenge may be brought. 63 Further complicating this issue is that circuit courts disagree as to the meaning of substantial. Some require that the burdened practice be central to religion, others require that it be mandated by religion, and some require neither. 64 It is difficult to square the position that courts should look at the centrality of a religious practice with Smith s explicit statement that it is not appropriate for courts to determine the centrality of a religious belief in the First Amendment context. 65 In sum, the Supreme Court has declared that any law that is not neutral and generally applicable is subject to a non watered down form of strict scrutiny. 66 However, circuits are split on two issues. First, does the lack of general applicability in a law need to suggest that it targets religion, or is lack 60. See Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting). 61. Id. 62. World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 534 (7th Cir. 2009); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, (3d Cir. 2007) (noting, however, that the court still expect[s] a plaintiff to articulate why it is a burden on its religious exercise (as opposed, for instance, to its pocketbook or its convenience) ); Hartmann v. Stone, 68 F.3d 973, 979 n.3 (6th Cir. 1995). But see St. John s United Church of Christ v. City of Chicago, 502 F.3d 616, 631 (7th Cir. 2007) ( The Free Exercise Clause prohibits the government from placing a substantial burden on the observation of a central religious belief or practice without first demonstrating that a compelling governmental interest justifies the burden unless the law is neutral and generally applicable.) (brackets omitted). 63. McAlister v. Livingston, 348 Fed. App x 923, 932 (5th Cir. 2009). Admittedly, this is a prison case, which might have different rules in terms of the reach of the First Amendment. See, e.g., Beard v. Banks, 548 U.S. 521, 528 (2006) ( [T]he Constitution sometimes permits greater restriction of [First Amendment rights] in a prison than it would allow elsewhere. ); Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir. 2007) ( Smith was not a prison case and... many courts have questioned its effect, if any, on the standard for evaluating prisoner free exercise claims.... ); Fernandez v. Mukasey, 520 F.3d 965, 966 n.1 (9th Cir. 2008); Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (prisoner case); Boles, 486 F.3d at 1182 (prisoner case); Smith v. Allen, 502 F.3d 1255, 1264 n.5 (11th Cir. 2007) (prison case), abrogated on other grounds, Sossamon v. Texas, 131 S. Ct (2011); Skoros v. City of New York, 437 F.3d 1, 39 (2d Cir. 2006); Eulitt ex rel. Eulitt v. Maine, Dep t of Educ., 386 F.3d 344, 354 (1st Cir. 2004); Branch Ministries v. Rossotti, 211 F.3d 137, 171 (D.C. Cir. 2000); United States v. Grant, 117 F.3d 788, 793 (5th Cir. 1997); Goodall ex rel. Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168, 169 (4th Cir. 1995); Brown v. Ray, 695 F. Supp. 2d 292, 300 (W.D. Va. 2010) (prisoner case). 64. See infra notes and corresponding text; Patel, 515 F.3d at 813 & n.7 (holding that courts should consider the centrality of a belief for purposes of the First Amendment, but explicitly suggesting that RLUIPA might be different); St. John s United Church of Christ, 502 F.3d at 631 (looking to centrality). 65. Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872, (1990). 66. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (citing Smith, 494 U.S. at 888) (brackets and ellipses omitted).

11 1078 CALIFORNIA LAW REVIEW [Vol. 100:1069 of general applicability itself a problem? Second, is there a threshold of harm that a law must inflict on a religion before a Free Exercise challenge may be raised, and if there is, what is that threshold? B. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA) In response to Smith, Congress enacted RFRA with the explicit goal of restoring the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder. 67 RFRA stated that unless there is a compelling government interest and the burden to religion is the least restrictive means available for furthering that interest, [g]overnment shall not substantially burden a person s exercise of religion even if the burden results from a rule of general applicability. 68 The Supreme Court declared this broad form of RFRA unconstitutional as applied to the states because it went beyond Congress s enumerated powers. 69 Congress responded by enacting two new statutes that were upheld by the Supreme Court 70 : a new version of RFRA limited to federal actions only, 71 and U.S.C. 2000bb(b)(1) (2006) (citations omitted). Indeed, the very name, the Religious Freedom Restoration Act, carries this connotation. 68. Id. 2000bb-1(a). It is confusing that Congress on the one hand required that the burden on religion be substantial while at the same time applying the test set forth in Sherbert and Yoder, two cases that had no such requirement. This may have led to the debate among Ninth Circuit judges concerning the relevance of pre-1990 Supreme Court cases in interpreting RFRA. Compare Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1071 n.13 (9th Cir. 2008) (en banc) (looking to pre-1990 Supreme Court for guidance in interpreting RFRA), with id. at 1088 (Fletcher, J., dissenting) (arguing that these cases are irrelevant for the purposes of interpreting RFRA). Here, Congress may have failed to notice that the test it ascribed to Sherbert and Yoder was actually the Supreme Court s retreat from the broad test expounded in those cases. If so, then the majority in Navajo most likely has it right and the more recent cases should be considered. Cf. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 790 (1985) ( [T]he relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was. ). The majority s approach is bolstered by the legislative history of RFRA. See S. Rep. No , at 7 (1993) (citing approvingly Justice O Connor s concurrence in Smith, 494 U.S. at , that set out the substantial burden test based on a number of the 1980s cases). 69. City of Boerne v. Flores, 521 U.S. 507, 536 (1997). It seems that originally Justice Thomas planned to vote to uphold RFRA. See Swanner v. Anchorage Equal Rights Comm n, 513 U.S. 979 (1994) (Thomas, J., dissenting from denial of cert.). On another note, even after Boerne, many states continue to use the Sherbert test for interpreting language in their states constitutions. See 1 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: FREE EXERCISE AND FAIRNESS 82 n.53 (2006) and corresponding text. 70. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439 (2006) (RFRA); Cutter v. Wilkinson, 544 U.S. 709, 715 n.3, 720 (2005) (upholding section 3 of RLUIPA, while expressing no opinion on the validity of section 2). Nevertheless, the Sherbert test that Smith refused to apply because it would be courting anarchy, Smith, 494 U.S. at 888, was imposed on the Court by Congress (as applied to federal actions) U.S.C. 2000bb-2 (2006). This was a change from the previous version of RFRA, 42 U.S.C. 2000bb-2 (1994), that applied RFRA to states as well. See Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No , 114 Stat (a) ( Section 5 of the

12 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1079 RLUIPA, a separate act that instituted the same protections for land use regulations and institutionalized persons. 72 RFRA and RLUIPA use identical language in terms of the religious burden and the government interest (RFRA even cites RLUIPA for the definition of religious exercise). 73 This Comment will therefore consider these two statutes together. 74 RFRA and RLUIPA state that the government cannot impose a substantial burden on a person s exercise of religion. 75 While these acts do explain that [t]he term religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief, 76 they never explain what substantially burden means. Federal courts are split on whether prohibition of conduct that is motivated by, but not mandated by, religion should be considered a substantial burden. RFRA and RLUIPA explicitly include within the definition of religious exercise acts that are not compelled by religious beliefs, which indicates that even religiously motivated conduct should be protected. 77 Why else would Congress go to the trouble of including religiously motivated conduct within the definition of religious exercise only to have that same conduct automatically excluded under the substantial burden test? Indeed, the Supreme Court has explicitly cited to RFRA and RLUIPA s definition of religious exercise, as any exercise of religion, whether or not compelled by, or central to, a system of religious belief, 78 to prove that courts should not consider the centrality of a practice under RLUIPA. 79 Why should the second part of the definition, which says that religious exercise includes actions not compelled by religious belief, be treated differently? Surprisingly, circuits are Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-2) is amended (1) in paragraph (1), by striking a State, or a subdivision of a State.... ) U.S.C. 2000cc, 2000cc Id. 2000bb See Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, (6th Cir. 2011) ( RLUIPA s strictures... are identical [to RFRA].... In fact, Congress intended that RLUIPA replace RFRA after the latter s invalidation by the Supreme Court. ). As a result of Congress s intent, an earlier settlement under RFRA was still applicable under RLUIPA. See id.; Abdulhaseeb v. Calbone, 600 F.3d 1301, (10th Cir. 2010); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, (7th Cir. 2003) U.S.C. 2000bb-1(a) (b) (using the phrase government shall not substantially burden ); 2000cc-1(a)(1) (2) (stating government shall not impose a substantial burden ). 76. Id. 2000cc-5(7); see also id. 2000bb-2(4) ( [T]he term exercise of religion means religious exercise, as defined in section 2000cc-5 of this title. ). 77. See id. 2000cc-5(7); id. 2000bb-2(4). 78. Id. 2000cc-5(7). 79. Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005). Still, occasionally courts do look at centrality. See Hoevenaar v. Lazaroff, 276 F. Supp. 2d 811, 818 (S.D. Ohio 2003) ( [T]o satisfy the substantial burden requirement... the plaintiff had to show that the government s action interfered with a tenet or belief that is central to the religious doctrine. ) (citing Winburn v. Bologna, 979 F. Supp. 531, 535 (W.D. Mich. 1997)), rev d on other grounds, 108 Fed. App x 250 (6th Cir. 2004), vacated, 545 U.S (2005)); see also Mahoney v. Doe, 642 F.3d 1112, (D.C. Cir. 2011) (seemingly focusing on centrality).

13 1080 CALIFORNIA LAW REVIEW [Vol. 100:1069 split on this issue: six circuits hold that RFRA applies to prohibitions of religiously motivated conduct, 80 but five circuits only apply RFRA to laws that forbid religiously mandated conduct. 81 There are no Second or Federal Circuit cases on point. II. PROBLEMS WITH CURRENT RELIGIOUS FREEDOM JURISPRUDENCE Current U.S. jurisprudence on religious freedom is inadequate and not just because it is plagued by circuit splits. In attempting to avoid having to navigate the details of religious laws, courts have abandoned one of the most important signposts in religious freedom law the religion s perspective. This problem is particularly potent in modern First Amendment jurisprudence where the current test refuses to consider the religion s perspective altogether. But even RFRA and RLUIPA, which do consider the burden on religion, do so in an overly formalistic manner: they ask a binary question is the burden on religion substantial? and then set aside the religion s perspective. A. Problems with Free Exercise Jurisprudence In Smith, the majority claimed that the major benefit of the neutral and general applicability test would be that courts would no longer have to determine the centrality or importance of a religious practice. 82 Smith admitted that challenges to a law prohibiting throwing rice at church weddings would now be treated the same as challenges to a law prohibiting church weddings. 83 But is that a good thing? A law prohibiting weddings is far more burdensome 80. See Merced v. Kasson, 577 F.3d 578, 590 (5th Cir. 2009); Van Wyhe v. Reisch, 581 F.3d 639, (8th Cir. 2009); Parks-El v. Fleming, 212 Fed. App x 245, 247 (4th Cir. 2007); Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007); Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643, (10th Cir. 2006); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). 81. See Mahoney, 642 F.3d at 1121; Weinberger v. Grimes, No , 2009 WL , at *5 (6th Cir. Feb. 10, 2009); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1078 n.24 (9th Cir. 2008) (en banc); Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 21 (1st Cir. 2004); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). Mahoney (unsuccessfully) struggles to explain how RFRA s broad definition of exercise of religion which explicitly does not require religious compulsion can be squared with the D.C. Circuit s very narrow definition of substantial burden which requires religious compulsion. 642 F.3d at Interestingly, an earlier D.C. Circuit case did not require that a practice be mandated by religion. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002). Also, it seems there is some tension within the Ninth Circuit on this question. The Navajo Nation opinion explicitly distinguishes between the Navajo Nation s claim, which was not religiously mandated, and other cases, which were religiously mandated, and it sees this distinction as dispositive. See Navajo Nation, 535 F.3d at 1078 n.24. However, United States v. Lafley, a later Ninth Circuit case, says that a practice need only be rooted in religious belief. 656 F.3d 936, 939 (9th Cir. 2011) (quoting United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007)). 82. Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 886 n.4, 889 n.5 (1990). 83. Id. at 887 n.4.

14 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1081 and should be judged more critically than one prohibiting throwing rice at weddings. The burden on the religion should be relevant. Additionally, as many critics of Smith have noted, 84 the test currently applied by the Supreme Court is too narrow. Smith and Lukumi focus only on how neutral and generally applicable the government regulation is; they refuse to consider how critical it is for the government to pass the disputed law. Whether the regulations are neutral and generally applicable only barely correlates, if at all, with how much the government needs the law. 85 If the government passes a law that burdens religion with little to no justification, the law should not be immune to attack simply because it is formally neutral and generally applicable. From the perspective of the religion, the test of neutrality and general applicability is also inadequate. It is true that a law that is not neutral or generally applicable may reflect governmental animus, and this in turn may affect how burdened members of a religion feel. But there are clearly other factors that affect this burden, such as how central the regulated practice is. The First Amendment s guarantee that Congress shall make no law... prohibiting the free exercise [of religion] 86 indicates a far broader scope of protection than the mere formalistic test introduced in Smith. 87 In addition, courts do not limit themselves to applying the rigid Smith test. Instead courts apply a variety of tests, including balancing the religion s burden against the importance of the challenged law. 88 As John Forren has shown, in the first three years after Smith (that is between Smith and the first passage of RFRA), only 21 percent of courts applied the neutral and general applicability test. 89 Even the Supreme Court has applied a balancing test in a First Amendment case. In 2004, the Court considered a Free Exercise challenge to Washington State s policy of granting Promise Scholarships to qualified students pursuing degrees in any field except devotional theology. 90 The 84. E.g., id. at (O Connor, J., concurring); Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, (1992); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, (1990). 85. As Eugene Volokh notes, many very important laws have exceptions. Volokh, supra note 49, at For instance, the ban against intentional homicide has exceptions for administering the death penalty, killing in war, police killing of a dangerous fleeing felon, killing in defense of oneself or another, and disconnecting life support at a patient s request. Id. 86. U.S. CONST. amend. I. 87. See McConnell, supra note 84, at 1116 (1990) (arguing for a broad reading of the First Amendment based on the fact that it does not have limiting language as opposed to the Fourth Amendment ( unreasonable ) or the Fifth Amendment (without due process of law )). Cf. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 13 (1980) (arguing that the First Amendment s language was intended to be interpreted broadly and in a manner that evolved with time). 88. John P. Forren, Revisiting Four Popular Myths About the Peyote Case, 8 U. PA. J. CONST. L. 209, (2006). 89. Id. at Locke v. Davey, 540 U.S. 712, 715 (2004).

15 1082 CALIFORNIA LAW REVIEW [Vol. 100:1069 Court first distinguished Lukumi, 91 but in concluding that there was no Free Exercise problem, held that [t]he State s interest... is substantial, and the exclusion of such funding places a relatively minor burden on Promise Scholars. 92 In other words, the Court applied a balancing test, weighing the burden to the religious group against the burden to the state. The inconsistency across courts in whether to apply a balancing test will result in inconsistent jurisprudence. It would be better to embrace a balancing test and attempt to normalize the way the test is applied. Moreover, in some cases (cases that involve federal actions, land uses, or institutionalized persons), courts already apply a balancing test under RFRA or RLUIPA. Finally, Smith s main appeal would seem to be its ease of administrability, 93 but that ease is illusory. Whether we define a law as generally applicable or not is highly normative. For instance, the law challenged in Smith prohibited knowing possession of a controlled substance unless it was prescribed by a medical practitioner even if the drug use was religiously mandated. 94 Smith called this a generally applicable law. 95 Perhaps that is true. But one could argue that a law making an exception for prescribed medicines is not generally applicable. 96 The main question is how one differentiates a medically prescribed drug from a religiously mandated drug. If the two are considered analogous, then an exception for medical prescriptions but not for religious needs indicates that the law is not generally applicable. However, if the two are considered meaningfully distinct, then one exception does not necessarily imply the need for the other. In other words, whether a law is generally applicable cannot be decided in a vacuum. To decide whether medical uses and religious uses were analogous, the Supreme Court in Smith had to consider outside factors. Perhaps the Court considered the medical exception to be critical, but not the religious exception. Perhaps the Court reasoned that it would be more difficult for the government to monitor drugs if there existed a religious exemption than if there existed a medical one. Whatever factors the Court used to distinguish medical and religious uses of a drug, the Court did evaluate the validity of the two potential exceptions in other words, it must have applied a normative test Id. at Id. at See Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 889 n.5 (1990) (arguing against the balancing test proposed by the concurrence because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice ). 94. Id. at Id. at See Andrew A. Beerworth, Treating Spiritual and Legal Counselors Differently: Mandatory Reporting Laws and the Limitations of Current Free Exercise Doctrine, 10 ROGER WILLIAMS U. L. REV. 73, 89 (2004). 97. See St. John s United Church of Christ v. City of Chicago, 502 F.3d 616, 632 & n.2 (7th Cir. 2007) (noting that the Seventh Circuit split on deciding whether a law was generally applicable

16 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1083 Finally, scholars have shown that Smith misapplied precedent. 98 As Smith has been around for more than twenty years, its misuse of precedent alone might not be sufficient reason to overrule it. But, since courts are not applying the Smith test uniformly, Smith has not become part of the tissue of the law and is not therefore due the full weight of stare decisis. 99 Moreover, as noted before, the logical problems with Smith extend far beyond mere misuse of precedent. B. Problems with RFRA and RLUIPA Jurisprudence The main difficulty with RFRA and RLUIPA is that courts cannot agree on their meaning. As noted before, circuit courts are split over how to define a substantial burden. 100 Some circuits hold that the burdened practice must be mandated by religion, while others do not. 101 This difficulty stems, in part, from the fact that courts are trying to define substantial burden in a rigorous fashion. But RFRA and RLUIPA do not lend themselves to such a formalistic approach. The thrust of these statutes, and Sherbert and Yoder the cases that these statutes explicitly restore 102 is that a burden on religion must be justified by a sufficient government interest. Yet because it was unclear what is the proper comparison to make? ); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (attempting to explain how the medical exemption in Smith did not make the law not generally applicable). 98. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993) (Souter, J., concurring); Smith, 494 U.S. at 891 (O Connor, J., concurring); id. at (Blackmun, J., dissenting); GREENAWALT, supra note 69, at 77 85; Richard F. Duncan, Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. PA. J. CONST. L. 850, (2001); Jesse H. Choper, The Rise and Decline of the Constitutional Protection of Religious Liberty, 70 NEB. L. REV. 651, (1991); Harry F. Tepker, Jr., Hallucinations of Neutrality in the Oregon Peyote Case, 16 AM. INDIAN L. REV. 1, (1991); McConnell, supra note 84, at Let me just add to the mix of Smith s problems, that the only case cited in Smith that actually supports the proposition that once a law is neutral and generally applicable, then it is automatically valid is a single concurrence in United States v. Lee, 455 U.S. 252, 261 (1982) (Stevens, J., concurring). Every other case cited in Smith looks to neutrality and general applicability as one factor in determining whether a law is valid. The cases either highlight the importance of the law or the minimal religious burden the law would create. See Gillette v. United States, 410 U.S. 437, 462 (1971) (noting that a law would not be upheld if the burden on First Amendment values is not justifiable in terms of the Government s valid aims ); Braunfeld v. Brown, 366 U.S. 599, (1961) (explaining that the religious burden was minimal); Prince v. Massachusetts, 321 U.S. 158, (1944) (explaining the importance of the law); Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 595 (1940) (stating that the laws were essential to secure and maintain that orderly, tranquil, and free society without which religious toleration itself is unattainable ); Reynolds v. United States, 98 U.S. 145, (1878) (also explaining the importance of the law). 99. See Radovich v. Nat l Football League, 352 U.S. 445, 455 (1957) (Frankfurter, J., dissenting) See supra, Part I.A See supra, Part I.A U.S.C. 2000bb(b)(1) (stating that the purposes of RFRA include to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 298 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) ).

17 1084 CALIFORNIA LAW REVIEW [Vol. 100:1069 courts try to split these two requirements into two distinct steps. 103 First, they ask in a vacuum whether the burden is substantial; second, again in a vacuum, they ask whether the government interest is compelling. 104 But this binary approach whether the burden is substantial and whether the interest is compelling is misguided. Not all substantial burdens are created equal, nor are all compelling government interests. Indeed, the burden a religious adherent experiences may depend on the quality of the government s interests. A law limiting a religious activity that serves no purpose other than to burden religion is more offensive than a law similarly burdening religion for good cause. 105 Though it is old hat to criticize strict scrutiny for considering the burden and the government interest separately, 106 it bears repeating that a more textured approach, whereby courts consider both questions simultaneously, is far preferable. As Professors Christopher L. Eisgruber and Lawrence G. Sager suggest, no balancing formula will be remotely plausible unless it applies a proportionality standard rather than a threshold test: the formula would, in other words, have to be sensitive to the nature and weight of the burden imposed on religious exercise as well as to the gravity of the state s interest. 107 Wisconsin v. Yoder, one of the two cases that RFRA and RLUIPA explicitly tried to reinstate, clearly considered the question of the religious burden alongside the question of the government s interest. In Yoder, the Court weighed the need for Wisconsin to mandate high school attendance against the burden on the Amish in having their children attend high school. 108 As the Court noted, a State s interest in universal education, however highly we rank it, is not totally free from a balancing process. 109 That is, the Court evaluated whether the state s interest was sufficient against the burden on religion not 103. See, e.g., United States v. Lafley, 656 F.3d 936, 939 (9th Cir. 2011) ( RFRA requires a two-step analysis. ); United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011). But see Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, (2d Cir. 2007) (suggesting that in RLUIPA, considerations of general applicability should be factored into determining whether a burden is substantial) See, e.g., Daly v. Davis, No , 2009 WL , at *2 (7th Cir. Mar. 25, 2009); Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm n, 545 F.3d 1207, (9th Cir. 2008); Kaemmerling v. Lappin, 553 F.3d 669, (D.C. Cir. 2008); United States v. Friday, 525 F.3d 938, (10th Cir. 2008); Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th Cir. 2005); see also Mayfield v. Tex. Dep t of Criminal Justice, 529 F.3d 599, 616 (5th Cir. 2008) ( [A party] cannot use what is effectively a compelling interest argument to answer the preceding question of whether Mayfield s religious exercise is substantially burdened. ) See infra Part III.B.2 (showing that Jewish law considers laws enacted specifically to target Jews more offensive than similar laws passed for other reasons) See, e.g., Craig v. Boren, 429 U.S. 190, 212 (1976) (Stevens, J., concurring); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, (1973) (Marshall, J., concurring) CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 85 (2007) Wisconsin v. Yoder, 406 U.S. 205, (1972) Id. at 214.