ZONING AND RELIGION:
WILL THE RELIGIOUS FREEDOM RESTORATION ACT OF 1993 SHIFT THE LINE TOWARD RELIGIOUS LIBERTY?
SIMON J. SANTIAGO*
Introduction
- Historical Overview: Zoning and Free Exercise Clause Jurisprudence
- Zoning v. Religion: Balancing Religious Liberties and Competing Governmental Interests
- The Free Exercise Clause Revisited: Religious Protection After Employment Division v. Smith
- Recommendations
The Free Exercise Clause of the First Amendment prevents Congress from passing laws that prohibit the free exercise of religion. [1] In 1963, the Supreme Court in Sherbert v. Verner[2] held that a state cannot substantially burden the free exercise of religion unless the government offers a compelling state interest [3] and uses the least restrictive means to advance this interest. [4] Although past decisions applied the twopart "compelling interest test" to a number of free exercise claims, [5] the Court’s 1990 decision in Employment Division v. Smith[6] distinguished those prior cases [7] and held that the Free Exercise Clause did not require application of the test to claims challenging otherwise neutral and generally applicable laws.[8]
In response to the Smith decision, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), [9] a statutory alternative to free exercise claims, in order to "restore" the compelling interest test to free exercise jurisprudence. [10]
Despite disagreement among commentators regarding the utility and impact of RFRA,[11] the restoration of the compelling interest test was intended to protect religious liberties from the potential harms of Smith. Among the "parade of horribles" feared by sponsors and advocates of RFRA were burdens imposed by neutral and generally applicable zoning ordinances.[12]
Following the Supreme Court's decision in Smith, federal courts have upheld ordinances excluding a religious congregation from a commercially zoned area [13] and preventing a church from expanding its facilities.[14] Viewed as the products of post- Smith free exercise jurisprudence, these decisions were often cited to muster congressional support for RFRA.[15] Expressing the overall fear that Smith will enable governmental regulations to trample on religious freedom, Representative Maloney stated, "[M]y constituents are quite concerned about the unwarranted governmental interference with religious practice . . . . Congregations of different religions have already run afoul of zoning regulations which have banned houses of worship in particular neighborhoods."[16] The legislative history and judicial background suggest that RFRA was motivated, in part, by concerns over zoning regulations that interfere with religious freedom.[17]
Because RFRA enables free exercise claimants to circumvent the decision in Smith by providing an independent statutory claim or defense,[18] the Act adds new hope for individuals and organizations whose religious interests are burdened by generally applicable zoning ordinances, but were left with few remedies after Smith.[19] In fact, research by the Baptist Joint Committee, a coalition of Baptist organizations, found that approximately half of all Free Exercise claims litigated after RFRA's enactment and at the time of the study were decided in favor of religious liberty.[20] Combined with the criticisms levied against cases favoring land use regulations over religious freedom, [21] it comes as no surprise that religious organizations have filed claims under RFRA in a renewed effort to challenge zoning regulations affecting religious interests.[22]
This Comment argues that RFRA will not necessarily provide greater religious protection against zoning ordinances than postSmith free exercise jurisprudence. Although Congress drafted RFRA to mitigate the possible adverse consequences of Smith, the Act does not adequately solve the problems of individuals and religious organizations who find themselves burdened by generally applicable zoning laws. Part I of this Comment provides an overview of zoning and Free Exercise Clause jurisprudence. Part II analyzes whether RFRA will be effective in solving the problems that religious organizations and individuals often encounter when challenging zoning ordinances under the Free Exercise Clause. Part III discusses possible exceptions to the holding in Smith in an attempt to determine whether RFRA’s reinstatement of the compelling interest test represents a significant improvement over the Court’s interpretation of the Free Exercise Clause as enunciated in Smith. Finally, Part IV addresses the statutory shortcomings of RFRA and suggests improvements in order to strike a proper balance between zoning and religious interests.
I. Historical Overview: Zoning and Free Exercise Clause Jurisprudence
Local governments have long imposed regulations on the use and development of land, particularly as a result of the urbanization of America and the accompanying economic and social problems. [23] In Village of Euclid v. Ambler Realty Co., [24] the Supreme Court held that land use regulation was a valid exercise of a state’s police power. [25] Zoning enabled the state to preserve and protect the public welfare. [26]
In defining the public welfare, courts have generally provided wide discretion to states to justify their zoning schemes. [27] The police power is not limited to the elimination of public nuisances. As the Court stated in Village of Belle Terre v. Boraas, [28] police power is “not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” [29] States may use their powers to preserve the spiritual and aesthetic integrity of neighborhoods. [30] For example, a city may impose zoning regulations on adult establishments to prevent the “deleterious” effects associated with such uses. [31]
Because traditional police powers include the ability to create and enforce zoning regulations, a state’s exercise of these powers will be held constitutional unless it appears arbitrary and unreasonable and bears no substantial relation to the health, safety, morals or general welfare of the state. [32] If the state’s purpose and zoning classification are “fairly debatable,” [33] the courts must grant deference to the state legislature’s decision.[34] When zoning regulations conflict with personal and fundamental rights, however, this judicial deference to a state’s zoning scheme does not apply. [35]
In Schad v. Borough of Mount Ephraim, [36] the Supreme Court held that the state’s attempt to regulate live entertainment in commercially zoned areas must be exercised within the boundaries of the Constitution.[37] In particular, the Court stated that the standard of review depends on the nature of the rights threatened rather than the power being exercised by the government.[38] Because the zoning law infringed on the First Amendment right to free speech, [39] the Court applied a First Amendment analysis, holding that the ordinance must be “narrowly drawn and must further a sufficiently substantial government interest” in order to be valid.[40] Applying this rationale, a zoning ordinance that threatens religious exercise must conform with constitutional principles. [41] Because the nature of the threatened right determines the validity of state action in zoning cases involving an infringement on the right to the free exercise of religion, the courts should generally apply the relevant standard of review mandated by the Free Exercise Clause. [42]
Unlike zoning, the concept and role of religion in America can be traced to the birth of this nation. [43] Therefore, it is not surprising that the Founders, in creating the Bill of Rights, included the Free Exercise Clause.[44] Although the Free Exercise Clause has been in effect since 1791, the degree of protection and the proper function of the Free Exercise Clause continues to be a source of debate among modernday scholars. [45]
1. The rise of the compelling interest test
Prior to the middle of the twentieth century, the Free Exercise Clause was not a major independent source of protection for religious conduct against governmental interference. [46] During this period, the Supreme Court relied on due process or free speech jurisprudence rather than the Free Exercise Clause to invalidate governmental action affecting the exercise of religion.[47] In Sherbert v. Verner, [48] the Supreme Court introduced the compelling interest test to free exercise jurisprudence, thereby expanding the possible scope of religious protection under the Free Exercise Clause. [49]
In Sherbert, a Seventh-Day Adventist was discharged by her employer and denied unemployment compensation by the state because she refused to work on Saturday, a designated holy day for her religion. [50] The state found that she did not qualify for unemployment benefits because she failed to provide a good cause for refusing employment. [51] The Supreme Court held that the state’s action violated Sherbert’s religious liberty guaranteed by the Free Exercise Clause. [52]
In striking down the state’s unemployment policy, the Court held that the state cannot substantially burden the free exercise of religion unless a compelling state interest exists as an underlying basis to justify such regulation. [53] Moreover, the state must demonstrate that no less restrictive means exist to advance its interests. [54] Applying this twopronged compelling interest test, the Court determined that the state’s benefit policy burdened Sherbert’s ability to practice her religion. [55] The state’s purported interest in preventing false unem ployment claims by those “feigning religious objections to Saturday work” was not raised previously at the state court level; therefore, the Supreme Court declined to assess the importance of this asserted gov-ernmental interest. [56] Moreover, assuming that the state’s unemployment compensation fund suffered from such claims, the Court in Sherbert held that the government would have to show that “no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” [57] Because the state’s unemployment benefits scheme placed an unjustifiable burden on Sherbert’s free exercise rights, the Court declared the statute constitutionally infirm. [58]
The Supreme Court’s decision in Wisconsin v. Yoder [59] contributed to the rise of religious freedom under the Free Exercise Clause.[60] In Yoder, the Amish claimants challenged the constitutionality of a neutral and generally applicable education law that imposed fines and imprisonment for those who failed to comply.[61] The Amish community argued that the law, which required school attendance until the age of sixteen, burdened a fundamental tenet of their religion, and was thereby unconstitutional under the Free Exercise Clause.[62] The Supreme Court agreed and held that the state could not compel attendance by the Amish children. [63]
In evaluating the state’s interest, the Court recognized that the state could validly impose regulations concerning education.[64] The Court held, however, that the state was not “totally free from a balancing process when it impinges on fundamental rights and interests” [65] and that only those interests of the “highest order” [66] would justify a burden on rights guaranteed by the Free Exercise Clause. [67] Because the compulsory education law unduly burdened Amish religious practice, [68] the state had to demonstrate “with particularity” how an exemption to the Amish would defeat the state’s interests. [69] Because the government failed to show that an exemption would impede the interests of promoting democracy and selfreliance through education, the Court held that the state must exempt the Amish from the mandatory education law. [70]
The Yoder decision was significant for two reasons. First, it extended the compelling interest test beyond the unemployment compensation field. [71] Second, it appeared to add another step to the Court’s Free Exercise Clause analysis as articulated in Sherbert. Unlike Sherbert, the Yoder decision evaluated whether the burdened conduct was a sincere expression of religious belief or motivated by a purely philosophical and personal belief. [72] If the conduct expressed secular values,such conduct would not fall within the protection of the Free Exercise Clause. [73]Evaluating the Amish community’s free exercise claim, Chief Justice Burger stated:
Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and selfsufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization. [74]
The Court realized that determining the sincerity of religious conduct was a delicate process; however, it was necessary to “preclude[] allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” [75] By examining the religious tenets of the Amish and their role in a believer’s life, the Court determined that the Amish community’s opposition to the state’s law was firmly rooted in their religion. [76]
2. The fall of the compelling interest test
According to one scholar, both Sherbert and Yoder represent decisions that “rigorously enforced the compelling interest test.” [77] Application of the test in subsequent free exercise cases, however, did not provide significant protection to religious liberty outside the unemployment context. [78] For the most part, the Supreme Court declined to expand religious protection under the Free Exercise Clause, progressively narrowing the definition of what constituted a religious burden while loosening the compelling state interest requirement of the test. [79]
For example, in Lyng v. Northwest Indian Cemetery Protective Ass’n [80] the Supreme Court held that governmental action did not substantially burden religion absent direct coercion of individuals to act contrary to their religious beliefs. [81] In Lyng, the plaintiffs unsuccessfully challenged the federal government’s attempt to harvest timber and build a road through sacred land. [82] Although the majority acknowledged that the government’s action would “have severe adverse effects” on the Native Americans’ religious practices, [83] the Court declined to apply the compelling interest test because the state’s action did not force the claimants to violate their religious beliefs. [84] The Court’s strict interpretation ofsubstantial burden led many commentators to criticize the Lyng decision for departing from precedent and restricting the scope of free exercise protection. [85]
In determining whether a state’s interest qualifies as compelling, the Court, in recent years, also appeared to decrease religious protection by loosening its interpretation of “compelling” without explicitly abandoning the Sherbert test. For example, in United States v. Lee, [86] the Court held that mandatory participation in the Social Security system served a compelling state interest. [87] Although exemptions existed for selfemployed individuals who opposed paying taxes based on religious beliefs, the Court declined to extend the exemptions to employers who opposed payment on identical grounds. [88] The decision in Lee has been criticized for its loose treatment of the compelling state interest requirement. [89] Finally, in Employment Division v. Smith, [90]the Court held that a state may deny unemployment compensation to those dismissed for violating the state’s criminal law against peyote use, even though the law imposed a substantial burden on the ability of Native Americans to use the drug for religious ceremonial purposes. [91] The Court concluded that the compelling interest test only applied to a select type of free exercise claims, and held that neutral laws of general applicability, such as the criminal law in the instant case, were not otherwise subject to the test. [92] The holding shocked the legal community [93] and appeared to be an unprecedented decision in free exercise jurisprudence.[94] Interpreting the scope of the Free Exercise Clause, the Court stated that the right to free exercise did not relieve a person from obeying a “‘valid and neutral law of general applicability’” merely because the law burdens religious conduct. [95] According to the Court, application of the compelling interest test to these laws “contradict[ed] both constitutional tradition and common sense.” [96] The Court suggested that the test should be applied only if the govern mental action intentionally targeted religious practices or beliefs, [97] implicated another constitutional guarantee in conjunction with burdening religious conduct, [98] or failed to exempt a burdened practice despite the existence of a system of laws which allowed for accommodation. [99] Moreover, the Court felt that limiting the test’s applicability in the free exercise area would prevent judges from evaluating the merits of assertedreligious activity. [100] Although the Court did not overrule Sherbert or Yoder, [101] the Smith decision, with a few excep tions, [102] eliminated the use of the compelling interest test in free exercise jurisprudence.
3. The resurrection of the compelling interest test
In response to the Smith decision, Congress began drafting a bill that would reinvigorate religious protection. [103] Originally introduced in 1990, the Religious Freedom Restoration Act was intended to minimize the impact of Smith by “restoring” the applicability of the compelling interest test through a legislative enactment. [104] Congress, however, did not pass RFRA until three years after its introduction because of strong opposition from prolife groups, [105] debate concerning the scope of the compelling interest test, [106] and constitutional questions regarding congressional authority to pass RFRA. [107]
Prolife groups feared that RFRA would increase access to abortion services because women would use the Act to claim that existing statutes and regulations burdened religious rights. [108] To ease these concerns, the Senate Judiciary Committee included language in the legislative history of the Act stating that RFRA would be neutral to the abortion debate. [109] Regarding the compelling interest test’s application, the Senate and House Judiciary Committees agreed that the “test generally should not be construed more stringently or more leniently than it was prior to Smith.” [110] The other major source of debate centered around the constitutional source of power that would enable Congress to pass RFRA. The House and Senate Committees determined that both Section Five of the Fourteenth Amendment [111] and the Necessary and Proper Clause [112] permitted enactment of RFRA.[113] After Congress re solved these issues and passed the bill, President Clinton signed the Religious Freedom Restoration Act into law on November 16, 1993. [114]
In its final form, RFRA offers a statutory alternative for people who wish to challenge stateimposed burdens on religion. [115] The Act provides that the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” [116] unless the government demonstrates that “1) it is in furtherance of a compelling government interest; and 2) is the least restrictive means of furthering that compelling governmental interest.” [117] Through this language, the Act purports to restore thecompelling interest test the Supreme Court applied in Sherbert and Yoder. [118] Because many commentators believe the Smith decision dramatically weakened religious protection under the Free Exercise Clause, [119] parties are likely to choose to litigate under RFRA. [120] Commentators, however, differ on how the courts will apply and interpret RFRA, [121] even though the Act explicitly states that its purpose is to restore the compelling interest test set forth in Sherbert and Yoder. [122] While some scholars applaud the enactment of RFRA, [123] others argue that it will not dramatically increase the scope of religious protection because courts prior to Smith had already started to put religious freedom in “deep twilight.” [124] Nevertheless, Congress intended for the courts to apply preSmith jurisprudence in the hope of restoring religious liberty under the Act. [125] In the context of zoning regulations that burden religious exercise, RFRA will be tested on whether its pro-religious rhetoric can shift the line toward religious liberty.
II. Zoning v. Religion: Balancing Religious Liberties and Competing Governmental Interests
A. Tension Between Zoning and the Free Exercise Clause
Although the Smith decision and the ensuing debate over RFRA helped bring certain impacts of zoning into the public light, the conflict between a state’s zoning powers and the exercise of religious freedom existed prior to both Smith and RFRA. [126] The courts have held that a state may regulate certain uses of land in the interest of the general welfare. [127] Because religious activities, much like secular uses, may pose traffic, noise, safety, and economic problems for the surrounding communities, [128] local governments have been allowed to impose regulations on the religious use of land in order to curb these problems. For example, courts have permitted governments to exclude churches from residentially zoned areas [129] and bar individuals from conducting worship services in their home. [130]
The government’s attempt to advance and preserve the general welfare, however, also threatens conduct that is protected by the Free Exercise Clause. [131]As one commentator observes, “[t]he Supreme Court has recognized this tension, yet it has confirmed that religious uses of land are within the general zoning power.” [132]Therefore, courts are often called on to define the acceptable boundaries between a state’s exercise of its zoning powers and an individual’s exercise of religion. [133]
In the past, courts have used a variety of standards to evaluate the validity of zoning ordinances, often producing varying degrees of protection for religious freedom. [134] Also, like other areas of law in which state action affects religious interests, courts have struggled to determine whether zoning implicates conduct protected by the Free Exercise Clause. [135] Complicating this task is the underlying concern that exemptions for activities conducted by religious organizations and individuals, by virtue of the imprimatur of religion, may gain an unfair advantage over identical activities performed by secular entities. [136] For example, should a church be allowed to expand its parking lot without the requisite permit while a neighboring store must conform with the zoning law in order to expand its lot? [137] Should a church-located homeless shelter be exempt from the zoning law while a non-profit secular soup kitchen must meet applicable zoning requirements for the purposes of its location? [138] Because the First Amendment’s EstablishmentClause imposes limits on state involvement with religion, [139] courts must carefully weigh both governmental and religious interests before exempting individuals and organizations from neutral and generally applicable zoning laws.
In attempting to accommodate both zoning and religious interests, however, pre-Smith courts have been criticized for adopting a myopic view of free exercise protections. [140] Therefore, the seemingly insensitive exclusion of religious organizations and prohibition of church-related activities by zoning ordinances was not a new phenomenon.
The Smith decision only exacerbated the fear that zoning ordinances would finally run “roughshod” over religious liberties. [141] Sponsors and advocates of RFRA who recognize the conflict between zoning and religion, may hope that the Act will provide the ideal balance for religious liberties and competing governmental interests. Despite the stringency of the compelling interest test, however, the Act may not be the boon envisioned by those who find religious freedom burdened by zoning ordinances. [142]
Despite the overwhelmingly proreligious rhetoric of RFRA’s sponsors and advocates,
[143] Congress passed the law simply
to restore “the legal standard [compelling interest test] that was applied in [preSmith]
decisions.” [144] Although
RFRA provides a “uniform” standard of review, Congress failed to address the
inadequacies and shortcomings of preSmith case law. [145] Even assuming that the compelling interest test of RFRA is intended to
restore free exercise protections to the days of Sherbert and Yoder, [146] courts apply the standard only
after a claimant proves that an “exercise of religion” is “substantially
burdened” by the government. [147]
RFRA defines religious exercise as “the exercise of religion under the First Amendment to the Constitution.” [150] The definition, itself, is tautological and offers no meaningful framework. [151] In fact, it may reflect the overall fear that any definition may violate the religion clauses of the First Amendment. [152] Evidence in the legislative history of RFRA suggests that Congress felt the courts were better suited to determine what constitutes an “exercise of religion” for First Amendment purposes. [153]
Although the Supreme Court has cautioned against “dissecting” religious beliefs to determine whether such beliefs deserve First Amendment protections, [154] lower courts in zoning cases have evaluated both the “sincerity” and “centrality” of the asserted interest to distinguish between religious and secular conduct. [155] The drafters of RFRA apparently recognized the need to distinguish between secular and religious conduct. [156] Representative Solarz, a chief sponsor of RFRA, stated:
Although a devout individual might identify some religious aspect to many everyday actions, it would, as a general rule, not be accurate to describe everything that person does as an “exercise of religion.” The challenge in drafting this legislation was to indicate Congress’ intent to distinguish between practices which may have some religious content but which are essentially secular in nature, and those practices which are clearly exercises of religion. [157]
Although the text of RFRA does not address whether the courts are precluded from testing the sincerity and centrality of the burdened conduct, the Act appears to allow such judicial inquiries because of Supreme Court precedent. For example, the Act explicitly mentions Yoder, a decision in which the Court engaged in this type of analysis. [158]
Determining the sincerity of religious conduct involves assessing the good faith claim that the conduct is rooted in religious rather than secular belief. [159] Centrality involves assessing the importance of the conduct with respect to the doctrines and tenets of the religion as it pertains to the participants. [160] Prior to the Court’s almost complete abrogation of the compelling interest test in Smith, lower courts found no need to apply the test by treating sincerity and centrality as threshold inquiries. [161] If the governmental action burdened secular conduct, no cognizable free exercise rightexisted to justify application of the compelling interest test. [162] In free exercise claims that challenge zoning ordinances, courts have used this distinction to uphold the validity of governmental action.
In Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, [163] a congregation wanted to relocate to a new site because its current storefront facility proved insufficient for accommodating its worshipping needs. [164]When the congregation sought approval to construct a church on its new lot, however, the Building Commission of Lakewood denied the necessary permit because the area was zoned for residential use only. [165] In determining the constitutionality of the ordinance, a Sixth Circuit panel held that construction of a church was not a “fundamental tenet” or a “cardinal principle” of the Ohio Congregation 2_s faith and was therefore considered a “purely secular” activity. [166] Because the ordinance did not infringe upon religious conduct, the court did not require the government to offer a compelling state interest or use the least restrictive zoning scheme. [167] Thus, applying a due process rational basis test, the court upheld the church’s exclusion from a residentially zoned area. [168]
The decision in Lakewood demonstrates that even prior to Smith, zoning ordinances successfully excluded churches from certain areas of town. [169] Although the Smith decision added a new hurdle for religious liberty, claimants challenging neutral and generally applicable zoning laws still wrestled with the secular/religious distinction that existed during pre-Smith days. Therefore, even with the reinstatement of the compelling interest test, RFRA will not increase the likelihood that claims will pass the “exercise of religion” threshold because the Act does not alter the way courts distinguish between religious and secular conduct.
For example, it is unlikely that RFRA can change the outcome of post-Smith cases such as Christ College, Inc. v. Board of Supervisors. [170] In Christ College, the Fourth Circuit held that the Free Exercise Clause did not require a county to grant a zoning exemption to a religious school. [171] Christ College wanted to conduct night classes in three renovated homes that were restricted for residential use only. [172] In deciding the case, the court stated explicitly that it did not need to address whether the Smith holding applied to the school’s claim. [173] Because the school’s preference to locate onresidential property was not “linked to religious imperatives,” the court found no burden on the exercise of religion. [175] If RFRA had been available at the time Christ College filed its claim, the relevant standard of review would have been the compelling interest test. The chances for success, however, would not have increased because the “exercise of religion” threshold would still be a prerequisite to invoke the test.
Both Lakewood and Christ College illustrate the obstacles that face free exercise claimants who challenge land use regulations. In each case, one can argue that a religiously motivated desire to spread the Word of God or promote religious education prompted the claimants to seek an exemption from the zoning ordinances. The courts in Lakewood and Christ College, however, chose to adopt a plausible yet arguably myopic view that the asserted conduct was a secular desire to relocate to more preferable locations. [175] Under RFRA, courts must continue to determine whether the asserted interest in locating to a certain area or using property in a certain way is based on religious rather than secular concerns. RFRA offers no solution to this sensitive inquiry because the Act leaves the judge as sole gatekeeper of this threshold. [176]
In cases where conduct qualifies as an exercise of religion, the government-imposed burden on the religious believer must be substantial in order to invoke the compelling interest test of RFRA. [177] The Senate Judiciary Committee report indicated that courts should examine preSmith cases to determine whether government action “substantially burdens” religion. [178] Similarly, the House report stated that courts are expected to examine cases decided prior to Smith in order to determine if governmental action has a “substantial external impact” on religion. [179] Because courts have often found that zoning ordinances do not impose impermissible burdens on religion, [180] RFRA’s re-affirmation of this prerequisite does not bode well for free exercise claimants seeking religious freedom under the Act. [181]
Interpreting preSmith free exercise cases, lower courts have held that zoning ordinances do not impermissibly burden religion absent “criminal liability, loss of livelihood, or denial of a basic income-sustaining public welfare benefit.” [182] In particular, ordinances that imposed “indirect financial” burdens [183] and limited “geographical options” [184] have survivedfree exercise challenges. This interpretation of substantial burden dramatically narrows the scope of conduct that is exempt from zoning laws. [185] The decision in Christian Gospel Church, Inc. v. City and County of San Francisco [186] illustrates how the substantial burden inquiry can preclude application of the compelling interest test in zoning disputes.
In Christian Gospel Church, a religious organization was denied a permit to practice home worship in an area exclusively zoned for residential use. [187] The church claimed that denial of the permit violated the Free Exercise Clause because worshipping in a home constituted a fundamental part of its religious belief. [188] Conducting a threepart analysis, [189] the Ninth Circuit found no significant burden on religion and upheld the zoning scheme. [190] Because the church could “find another home or another forum for worship,” the court held that the burden was merely one of “convenience and expense” to the church and therefore was minimal. [191] The court’s burden analysis in Christian Gospel Church can be criticized in many ways. [192] Nevertheless, the analysis reflects the trend in free exercise jurisprudence toward the narrow definition of religious burden that existed prior to Smith. [193] The text and legislative history of RFRA fail to provide a clear answer as to whether courts should expand their treatment of the substantial burden requirement. [194] Originally, the House version of RFRA merely required a “burden” on the exercise of religion in order to invoke the compelling interest test. [195] Subsequently, a technical amendment was passed in the Senate to ensure that only state action which “substantially” burdens the exercise of religion would be subject to the test. [196] Although the significance of the amendment can be debated, [197] RFRA does not provide an adequate definition of “substantial burden.” [198] Thus, claimants who challenge zoning ordinances under RFRA may still be precluded from reaching the crux of the Act—the compelling interest test.
III. The Free Exercise Clause Revisited: Religious Protection After Employment Division v. Smith
Because RFRA does not resolve the threshold problems encountered by free exercise claimants, [199] courts may avoid the application of the compelling interest test by determining that the zoning law does not substantially burden the exercise ofreligion. Although sponsors and advocates of RFRA expressed concern for those who were burdened by overly restrictive zoning ordinances, [200] it appears that reinstatement of the compelling interest test will not provide adequate relief. As a result, the Act’s perceived impact of increasing religious protection from zoning laws may be exaggerated. [201]
In addition, the view that Smith’s abrogation of the compelling interest test would allow zoning ordinances to run “roughshod” over religious liberties may have been premature. [202] While RFRA was intended to mitigate the impact of Smith by restoring the test for cases challenging neutral zoning laws of general applicability, [203] the test did not completely disappear after the Smith decision. Even without the aid of RFRA, three viable arguments exist to justify application of the compelling interest test. [204] Admittedly, because RFRA will no longer require claimants to find these “loopholes” in Smith’s general rule, claimants who find themselves burdened by zoning ordinances should file under RFRA. Nevertheless, the courts have recognized the feasibility of these loopholes in deciding cases challenging zoning ordinances. [205] Because the decision in Smith has not been overruled and maintains its precedential value, [206] post-Smith free exercise jurisprudence will be used as a comparative guide in order to illustrate that RFRA’s reinstatement of the compelling interest test may have been a minimal change from Smith’s interpretation of Free Exercise Clause protections.
A. Government Action Targeting Religious Conduct or Belief
The Court in Smith acknowledged that governmental action would violate the Free Exercise Clause if it banned religious conduct “for religious reasons or only because of the religious belief that they display.” [207] The Court also suggested that classifications based on religion would be subject to the compelling interest test. [208] Admittedly, claimants in zoning challenges still face the difficult task of proving that the law targets religious rather than secular conduct. [209] Neverthe less, as illustrated by the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, [210] this exception to Smith’s general rule remains a viable option for challenging ordinances that purport to be neutral and generally applicable.
Ironically, the Court in Lukumi Babalu Aye, applying post-Smith free exercise jurisprudence, decided in favor of the religiousinterest and invalidated a system of zoning, health, and animal cruelty ordinances that prohibited animal sacrifice within city limits. [211]In Lukumi Babalu Aye, the church disclosed plans to construct a house of worship in the city and to conduct religious rituals, such as animal sacrifice, on its property. [212] The Court held that the city specifically targeted the church’s religious conduct, finding that the ordinances were drafted in such a way as to constitute a “‘religious gerrymander.’” [213] Relying on Smith, the Court applied the compelling interest test and found that the ordinances were not narrowly tailored to achieve the city’s interest in protecting the public health. ]214]
In Lukumi Babalu Aye, the Court held that the Free Exercise Clause requires more than facial neutrality and “protects against government hostility which is masked.” [215] Because the object of the city’s ordinances was to suppress religion, the city’s actions violated the mandates of the Free Exercise Clause. [216] Although it is difficult to gauge whether this neutrality requirement will provide a sufficient route to the compelling interest test, the decision in Lukumi Babalu Aye indicates that government officials cannot automatically sanitize an impermissible motive by claiming that an ordinance is facially neutral, even under Smith’s interpretation of the Free Exercise Clause. [217] Based on this rationale, facially neutral zoning ordinances that are passed as a result of animus toward a particular church or religious practice will still be subject to the compelling interest test.
B. Existing System of Exemptions
Related to the ruling that laws impermissibly targeting religion are subject to the compelling interest test, the Court in Smith stated that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” [218] Although the Court in Smith did not explicitly state whether this proposition applies outside of the unemployment context, [219] the Court in Lukumi Babalu Aye appears to recognize its applicability to other areas of the law. [220]
One of the ordinances examined in Lukumi Babalu Aye adopted Florida92_s animal cruelty statute, which prohibited only “unnecessary” killings of animals. [221] Under this ordinance, necessary killings included “hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia” whilekillings for religious reasons were classified as unnecessary. [222] To determine whether conduct was prohibited, the ordinance required an evaluation of the reasons for the killings. [223]Quoting Smith, the Court in Lukumi Babalu Aye held that the city’s animal cruelty ordinance represented an “‘individualized . . . assessment of . . . relevant conduct’” [224] and qualified as a system of individualized exemptions. [225] Absent a compelling reason, the city may not refuse to extend this system of exemptions to the church’s practice of animal sacrifice. [226] Similarly, the Court found that an ordinance prohibiting the killing of animals outside certain zoned areas and exempting slaughtering for commercial purposes was underinclusive as a means of protecting the public health. [227] Because the ordinance burdened religious conduct and treated killings performed in slaughterhouses and killings performed by the church in a disparate manner, the Court applied “the most rigorous of scrutiny” finding the evidence unconstitutional. [228]
The decision in Lukumi Babalu Aye invalidated the city’s ordinanc es based on a variety of factors. [229] As a result, it is difficult to determine whether the city’s refusal to extend individualized exemptions to the church alone would have produced the same result. [230] Nevertheless, it appears that the compelling interest test will be applicable if there exists both a system of exemptions and a substantial burden on religious conduct. In the context of zoning, the district court decision in Alpine Christian Fellowship v. County Commissioners [231] is perhaps more instructive because the court applied the compelling interest test to determine whether denial of a special use permit [232] violated the Free Exercise Clause. [233]
In Alpine Christian Fellowship, a religious organization applied for the necessary permit to operate a school within its church building. [234] The application was denied by the county. [235] Although the county argued that its decision was based on secular reasons, the court held that the denial substantially burdened the church’s religious conduct of providing “religious education to the members of the Church.” [236] Moreover, the court in Alpine Christian Fellowship reasoned that the compelling interest test was the relevant standard of review because the case involved an “individualized question” of whether the county could validly deny the church an exemption from the ordinance. [237] Applying the test, the court held thatthe county failed to offer a compelling state interest to justify the burden on religion. [238]
Examining both the Lukumi Babalu Aye and the Alpine Christian Fellowship decisions, it appears that laws containing a system of exemptions are still subject to the compelling interest test when such laws substantially burden religion. [239] If courts adopt this interpretation, the compelling interest test may be available to a wide array of claims challenging zoning ordinances because most zoning schemes contain a system of “individualized” exemptions. [240] Although claimants must still demonstrate that the governmental action substantially burdens religion, the door to the compelling interest test remains open, even after the Smith decision.
The Supreme Court in Smith also suggested that the compelling interest test may still apply to “hybrid” situations where another constitutional right is asserted in conjunction with a free exercise claim. [241] Indeed, at least one commentator views this approach as an effective way of limiting Smith’s holding [242] and several courts after Smith have remanded cases to allow for reconsideration of possible hybrid claims. [243] Therefore, claimants who challenge neutral and generally applicable zoning ordinances may similarly “bootstrap” other constitutional protections in an attempt to invoke the compelling interest test. [244]
In Cornerstone Bible Church v. City of Hastings, [245] the Eighth Circuit declined to apply the compelling interest test. However, the court remanded the case to allow the claimant to assert a hybrid claim. [246] The Cornerstone Bible Church challenged an ordinance that excluded churches from a commercially zoned area, asserting that the city violated its freedom of speech, freedom of association, equal protection rights, and free exercise of religion. [247] The appellate court held that the lower court had erroneously granted summary judgment for the city on the church’s free speech and equal protection claims. [248] Although it affirmed summary judgment as to the free exercise claim, [249] the court remanded the case, stating “[o]ur reversal of the summary judgment orders breathes life back into the Church’s ‘hybrid rights’ claim; thus the district court should consider this claim on remand.” [250]
The Eighth Circuit decision in Cornerstone Bible Church may not be indicative of how most courts would rule if faced with a hybrid claim. [251] In addition, the hybrid claim has not received universal praise among justices [252] and commentators. [253] Despite debate over whether the hybrid claim will provide sufficient protection under the Free Exercise Clause, [254] it appears that courts are willing to consider it as an exception to Smith’s holding. As a result, free exercise claimants who are able to assert other constitutional protections can still argue the applicability of the compelling interest test during the postSmith era of free exercise jurisprudence.
The decision in Smith and the ensuing outrage over the state of free exercise jurisprudence provided the best opportunity to redefine the scope of religious liberty. Congress, however, merely chose to restore the compelling interest test as set forth in Sherbert and Yoder.[255] Although these two cases represented the high watermark of the compelling interest test, [256] RFRA does not guarantee application of the test to every claim asserting a religious interest. Because the Act does not alter the way courts determine whether an “exercise of religion” is “substantially burdened” by state action, religious organizations and individuals may still find themselves running afoul of zoning ordinances. [257]
RFRA’s failure to address adequately these two threshold issues was likely a product of political necessity. [258] Although the drafters and sponsors of RFRA expressed disapproval toward cases that upheld the validity of certain types of zoning ordinances, RFRA was not meant to overturn or codify the results of any particular court decision. [259] Nevertheless, Congress could have provided more protection against zoning ordinances without drastically departing from the overall purpose of RFRA.
Because this Comment focuses on the utility of RFRA as it relates to zoning, the proposed solutions will be geared toward addressing the threshold problems faced by free exercise claims challenging zoning ordinances. As a result, these solutions may be either underinclusive or overinclusive in attempting to strike “sensible balances between religious liberty and competing . . . governmental interests.” [260] The shortcomings of RFRA, however, may pose similar problems toother types of free exercise challenges. Therefore, the proposed solutions may also have relevance outside the context of zoning.
The drafters of RFRA were aware of the dangers in attempting to formulate a statutory definition of religion. [261] Therefore, Congress left to the courts the task of conducting a case-by-case determination of whether certain conduct falls within the scope of Free Exercise Clause protections. [262] In the context of zoning, however, courts have adopted an overly restrictive view of religious exercise. In order to help solve this problem, RFRA should explicitly provide that “conduct motivated by religious belief” would be protected under the statute. As drafted, however, RFRA does not change the status quo because it offers no helpful guidance by merely reasserting that the “exercise of religion” shall be protected under the statute. [263] In fact, the term “motivated” appeared in an earlier version of RFRA, but was omitted in subsequent drafts. [264]
At first glance, this change may appear insignificant, yet the effect would be important. Courts should recognize that conduct need not be specifically mandated by religious tenets or beliefs. Looking to the plain meaning, [265] the word “motivate” means “to provide with motive, impel, or incite.” [266] Therefore, any type of conduct that is motivated by religious belief should fall within the parameters of RFRA. This change should eliminate the requirement that people challenging zoning ordinances must show that a desire to build a church or to be located in a certain area is required by religious doctrine. [267]
Additionally, RFRA should explicitly prohibit the courts from weighing the centrality of the asserted belief. As mentioned earlier, this inquiry has posed problems for free exercise claimants who are burdened by zoning ordinances. [268] Although this task may be better suited for the judicial branch than for Congress, recent Supreme Court decisions have suggested that an inquiry into the centrality of religious beliefs is improper. [269] Therefore, RFRA should codify this proposition as a matter of public policy, thereby providing an across-the-board prohibition against inquiring into the centrality of beliefs for RFRA claims.
Admittedly, these changes may increase the possibility that RFRA will provide protection for fraudulent claims. [270] In order to curb these possible abuses, RFRA could require individualsto demonstrate a “good faith claim” that the conduct is motivated by religious belief. [271] In essence, this threshold is somewhat similar to the “sincerity” inquiry of Yoder, [272] but avoids examining any particular religious tenet or belief. [273] In determining whether a RFRA claimant meets the “good faith” requirement, courts should determine whether an ulterior motive exists that suggests the presence of bad faith. This requirement may help identify zoning disputes that are “mas querading” as free exercise claims. [274] Although a judge or jury would still need to make this determination, the good faith threshold should avoid the need to dissect an individual’s religious beliefs.
Because Congress instructed the courts to examine pre-Smith case law to determine whether governmental action substantially burdens religion, [275] religious organizations and individuals who challenge zoning ordinances may still find it difficult to meet this threshold. [276] Although Congress did not draft RFRA to favor one type of free exercise claim over another, [277] many commentators have criticized the courts’ recent trend of adopting an overly restrictive view of what constitutes a substantial burden, thereby narrowing the scope of protection for all free exercise claims. [278] As one scholar argues, a narrow interpretation of substantial burden would “undermine the effect of the statute.” [279] Therefore, RFRA’s deference to pre-Smith case law does not provide a workable guide to protect religious freedom.
To strike a more sensible balance between religious liberty and competing governmental interests, [280] RFRA should explicitly state that “government activity need not coerce individuals into violating their religious beliefs nor penalize religious activity by denying any person an equal share of the rights, benefits or privileges enjoyed by any citizen in order to constitute a substantial burden.” Indeed, most of this language is borrowed from the House report. [281] The proposed change, however, would clarify the House report’s text by including the word “substantial burden” and incorporating this text into the statutory language of RFRA. These changes would resolve ambiguities within the legislative history by mandating that courts adopt a broad reading of substantial burden for RFRA claims.
In the context of zoning regulations that burden religious liberties, many commentators believe that the Religious Freedom Restoration Act of 1993 restores the scope of religious protection that had been damaged by Smith. Upon closer examination, however, it appears that the damage existed long before the Smith decision. Although Congress, by passing RFRA, reinstated the compelling interest test, this test is just one of many parts needed to restore religious freedom to the heydays of the Free Exercise Clause. Because the Act does not adequately address the threshold problems faced by those burdened by zoning ordinances, the Religious Freedom Restoration Act may not be able to stop the shrinking zone of religious protection. ____________________________
* This Comment is dedicated to my parents and niece, Elizabeth Lauren de Leon. Also, I would like to thank Professor Burton Wechsler for his invaluable suggestions.
1 U.S. Const. amend. I ("Congress shall make no law . . . prohibiting the free exercise [of religion] . . . ."); see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that Free Exercise Clause applies to state and local governments through Fourteenth Amendment).Return to text.
2 374 U.S. 398 (1963).Return to text.
3 Sherbert v. Verner, 374 U.S. 398, 406 (1963) (holding that unemployment law must be justified by compelling state interest if law substantially infringes on free exercise of religion).Return to text.
4 Id. at 407 (holding that government has burden of showing that "no alternative forms of regulation would combat such abuses without infringing First Amendment rights").Return to text.
5 See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141 (1987) (applying strict scrutiny to determine validity of unemployment compensation law that denied employee benefits for refusing to work on Sabbath); Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) (holding that state must show that denial of benefits to employee, who refused to manufacture weapons based on religious beliefs, furthers some compelling state interest and is least restrictive means); Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) (requiring government to offer interest of "sufficient magnitude" to override free exercise claim of Amish parents to raise children according to religious traditions).Return to text.
6 494 U.S. 872 (1990).Return to text.
7 See Employment Division v. Smith, 494 U.S. 872, 872-81 (1990) ("The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press."); see also id. at 883-84 (arguing that past Court decisions applied compelling interest test only to unemployment laws burdening religion).Return to text.
8 Id. at 885 (refusing to apply compelling interest test to statutes that required benefit applicants to provide social security numbers and that regulated military dress).Return to text.
9 Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. . 2000bb (Supp. V 1993)).Return to text.
10 See H.R. Rep. No. 88, 103d Cong., 1st Sess. 5-6 (1993) [hereinafter House Report] (stating that RFRA responded to Smith decision by creating statutory right requiring application of compelling interest test to governmental burdens on religion); S. Rep. No. 111, 103d Cong., 1st Sess. 7-9 (1993) reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98 [hereinafter Senate Report] (stating that RFRA responded to Smith by creating statutory prohibition against generally applicable laws that substantially burden religion unless such laws are least restrictive means of furthering compelling governmental interest).Return to text.
11 See, e.g., Rex E. Lee, The Religious Freedom Restoration Act: Legislative Choice and Judicial Review, 1993 B.Y.U. L. Rev. 73, 73 (advocating passage of RFRA and commenting that it would "certainly represent an improvement over present state of law"); Leon F. Szeptycki & Jean B. Arnold, Religious Freedom Restoration Act, 88 Educ. L. Rep. (West) 907, 920-21 (1994) (concluding that RFRA incorrectly assumed "that the legal clock could be turned smoothly back" to pre-Smith law); James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1412 (1992) (characterizing RFRA's attempt to reestablish compelling interest test as "futile endeavor").Return to text.
12 See, e.g., 139 Cong. Rec. S14,353 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch) (commenting that Smith decision was responsible for church's exclusion from city business district); 139 Cong. Rec. H2360 (daily ed. May 11, 1993) (statement of Rep. Schumer) (citing church's exclusion from commercially zoned areas as example of Smith's "parade of horribles"); Orrin G. Hatch, "Compelling Interest" is for Our Benefit, Wash. Times , Apr. 11, 1993, at B5 (citing exclusion of churches from business district as one of string of post-Smith lower court decisions "eroding freedom of religion").Return to text.
13 See Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 472 (8th Cir. 1991) (finding ordinance excluding churches from central commercial and industrial area as valid time, place, and manner restriction).Return to text.
14 See St. Bartholomew's Church v. City of New York, 914 F.2d 348, 355-56 (2d Cir. 1990), cert. denied , 499 U.S. 905 (1991). St. Bartholomew's involved a free exercise challenge to New York's Landmark Preservation Laws. Although landmark laws and zoning ordinances are distinct methods of regulation, both impose restrictions on property and regulate the use of land. Therefore, the decision in St. Bartholomew'soffers helpful insight into the conflict between zoning and religious interests. See id. at 355 (stating that zoning and landmark regulation are analogous).Return to text.
15 See supra note 12 (discussing concerns of RFRA proponents about negative impact of neutral zoning ordinances); Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary , 102d Cong., 2d Sess. 13 [hereinafter 1991 House Hearings] (statement of Robert P. Dugan, Dir. of Public Affairs, National Association of Evangelicals) (observing that Smith holding forces churches to obtain permission to relocate altars); Senate Report, supra note 10, at 14 n.43, reprinted in 1993 U.S.C.C.A.N. 1892, 1903-04; see also Thomas C. Berg, What Hath Congress Wrought? An Interpretative Guide to the Religious Freedom Restoration Act , 39 Vill. L. Rev. 1, 55 (1994) (observing that Act's sponsors "often stated that RFRA would restore protection to churches that had been restricted in using their property by draconian rules on zoning or historic preservation").Return to text.
16 139 Cong. Rec. H2363 (daily ed. May 11, 1993) (statement of Rep. Maloney).Return to text.
17 See Berg, supra note 15, at 17-18 (commenting that one goal of RFRA was to alleviate impact of land use regulations upon religious liberties).Return to text.
18 42 U.S.C. . 2000bb(b)(2) (1988 & Supp. V 1993) (stating that purpose of chapter is "to provide a claim or defense to persons whose religious exercise is substantially burdened by government").Return to text.
19 Compare First Assembly of God v. Collier County, 20 F.3d 419, 423 (applying Smith to uphold zoning prohibition of church-located homeless shelter), modified, 27 F.3d 526 (11th Cir. 1994) with Western Presbyterian Church v. Board of Zoning Adjustment, 862 F. Supp. 538, 546 (D.D.C. 1994) (applying RFRA to allow church to operate homeless shelter in residentially zoned area without requisite permit); see also Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 Fordham L. Rev. 883, 894-95 (1994) [hereinafter Laycock, Free Exercise] (discussing how post-Smith jurisprudence reduced merits of free exercise claims challenging zoning ordinances); Sam Roberts, Fight City Hall? Nope, Not Even Mother Teresa, N.Y. Times , Sept. 17, 1990, at B1 (providing account of unlitigated closing of homeless shelter).
Comparing the Eleventh Circuit's decision in First Assembly of God with the district court's decision in Western Presbyterian Church is helpful, but it does not lead to a dispositive determination that RFRA will change the outcome of zoning cases decided under a Smith analysis. Although both cases involved zoning regulations that prohibited the operation of homeless shelters on church property, factual differences may distinguish the holdings. For example, the community in First Assembly of God offered evidence that "homeless people had taken up residence in vacant lots, where the living conditions were unsanitary." First Assembly of God, 20 F.3d at 420. The court attributed this problem in part to the church's homeless shelter. Id. In Western Presbyterian, there existed no evidence showing that the shelter created a nuisance to the surrounding community. See Western Presbyterian, 862 F. Supp. at 546 (commenting that shelter should be allowed to operate absent proof of nuisance). Also, the zoning board in Western Presbyterian Church conceded that it did not have a compelling state interest in prohibiting the operation of the homeless shelter. Id. at 545. This concession may have weakened the government's case significantly. See infra notes 79, 86 and accompanying text (describing court's growing deference to government's interest in religious disputes); see also Christian Gospel Church v. City and County of San Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990) (holding that city had "strong interest in the maintenance of the integrity of its zoning scheme and the protection of its residential neighborhoods"), cert. denied , 498 U.S. 999 (1990). Moreover, while the court in First Assembly based its holding on Smith and declined to discuss the applicability of RFRA, the court supported its decision by applying a test that was based on pre-Smith free exercise jurisprudence. See First Assembly, 20 F.3d at 423-24 (applying balancing test from Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983)).20 See Religious-Freedom Law Marks First Anniversary, Christian Century, Jan. 4, 1995, at 7 (finding that about half of 28 cases decided after RFRA's enactment resulted in favor of religious interests).Return to text.
21 See supra notes 13, 15 and accompanying text (criticizing judicial opinions preferring land use restrictions over religious freedom).Return to text.
22 See Germantown Seventh Day Adventist Church v. City of Philadelphia, No. 94-1633, 1994 U.S. Dist. LEXIS 12163, at *1 (E.D. Pa. Aug. 26, 1994) (amending complaint to include RFRA claim in order to challenge validity of ordinance prohibiting expansion of facilities); Celestial Church of Christ, Inc. v. City of Chicago, No. 93 C 7610, 1994 WL 282304, at *2 (N.D. Ill. June 22, 1994) (including RFRA claim to enjoin prior circuit court's decision excluding church from commercially zoned area).Return to text.
23 See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 87 (1926) (observing need for land use regulations created by develop ments in technology and urban communities).Return to text.
24 272 U.S. 365 (1926).Return to text.
25 Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926); see also 1 Robert M. Anderson, American Law of Zoning õ 3.09, at 93 (2d ed. 1976) (commenting that Euclid " firmly established " that comprehensive zoning was constitutional exercise of state police power). The Tenth Amendment states that " powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. " U.S. Const. amend. X. This amendment grants to the states what is typically referred to as " police power. "Return to text.
26 Euclid , 272 U.S. at 387 ( justifying act of zoning as necessary for preservation of public welfare).Return to text.
27 See, e.g. , Village of Belle Terre v. Boraas, 416 U.S. 1, 4 (1974) (stating that legislative judgment must control if zoning scheme ' s purpose is fairly debatable); Nectow v. City of Cambridge, 277 U.S. 183, 187 (1928) (holding that decision of government officials will be invalidated only upon showing of arbitrary or irrational exercise of power); Euclid , 272 U.S. at 387 (stating that validity of zoning ordinance varies with circumstances and condi tions).Return to text.
28 416 U.S. 1 (1974).Return to text.
29 Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (legitimizing use of police power for purpose of restricting land use to " one-family dwellings " ).Return to text.
30 Id. at 6 (delineating permissible use of police power to include regulation of community ' s beauty, health, expanse, cleanliness, balance, and security).Return to text.
31 See Young v. American Mini Theatres, Inc., 427 U.S. 50, 74 75 (1976) (holding that ordinance restricting location of adult movie theaters advanced public welfare).Return to text.
32 Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928) (setting forth criteria for constitutional use of police power); Euclid , 272 U.S. at 395 (stating that provisions of ordinance will not be scrutinized " sentence by sentence " where broad prohibitions of ordinance were generally opposed).Return to text.
33 Boraas , 416 U.S. at 4.Return to text.
34 Id. at 8 (holding that legislature ' s definition of family for zoning purposes need only bear " a rational relationship to a [permissible] state objective " ); see also Euclid , 272 U.S. at 395 (holding that reasonableness of zoning ordinance precluded judicial determination of unconstitutionality). But see Nectow , 277 U.S. at 188 (holding zoning plan invalid because it did not substantially relate to health, safety, moral, or general welfare of public).Return to text.
35 See Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (stating that ordinance ' s definition of family, which included all those " related by blood, adoption, or marriage, " had intrusive effect on familial relationship and did not deserve usual judicial deference toward legislative judgment). Justice Brennan ' s concurrence, joined by Justice Marshall, provided a sharp critique of the ordinance ' s restrictive definition of family by stating that " the zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life. " Id. at 507 (Brennan, J., concurring). But see Boraas , 416 U.S. at 8 (stating that ordinance limiting one family dwellings to not more than two unrelated persons is exercise of legislative, not judicial function).Return to text.
36 452 U.S. 61 (1981).Return to text.
37 Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981) (setting outer limits of local government ' s zoning powers).Return to text.
38 Id. at 68; see also Euclid , 272 U.S. at 387 (stating that " degree of elasticity " afforded zoning regulations depends on application of constitutional principles).Return to text.
39 See Schad , 452 U.S. at 66 (holding that nude dancing falls within First Amendment protections).Return to text.
40 Id. at 68; cf. Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977) (stating that Court must " examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation " when government intrudes on personal choices protected by Due Process Clause); Village of Belle Terre v. Boraas, 416 U.S. 1, 7 (1974) (applying rational basis test to occupancy requirement because no fundamental right was implicated); Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928) (holding that regulations affecting general property rights are subject to rational basis test).Return to text.
41 See Schad , 452 U.S. at 68 (drawing constitutional boundaries for zoning regulations).Return to text.
42 See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217, 2226-29 (1993) (applying compelling interest test because land use ordinance and animal cruelty law impermissibly targeted religious practice); Islamic Ctr. v. City of Starkville, 840 F.2d 293, 299 (5th Cir. 1988) (applying compelling interest test because ordinance impermissibly burdened religion by excluding mosque from city limits); cf. Western Presbyterian Church v. Board of Zoning Adjustment, 862 F. Supp. 538, 544-45 (D.D.C. 1994) (applying RFRA ' s compelling interest test to determine validity of zoning ordinance prohibiting operation of homeless shelter on church property). But see Ann L. Wehener, When a House is Not a Home But a Church: A Proposal for Protection of Home Worship from Zoning Ordinances , 22 Cap. U. L. Rev. 491, 494 (1993) (commenting that lower courts, in deciding religious zoning issues, tend to focus on Due Process Clause rather than Free Exercise Clause analysis).Return to text.
43 See Douglas Laycock, The Religious Freedom Restoration Act , 1993 B.Y.U. L. Rev. 221, 222 [hereinafter Laycock, Religious Freedom ] ( " [T]he founding generation of Americans had a vision of society in which religion would be entirely voluntary and entirely free. People of all faiths and of none would be welcome. " ). Indeed, the Supreme Court has recognized the religious tradition in America and its influence on the formation of our system of government. See Zorach v. Clauson, 343 U.S. 303, 313 (1952) ( " We are a religious people whose institutions presuppose a Supreme Being. " ).Return to text.
44 U.S. Const. amend. I. The First Amendment contains two religion clauses - the Free Exercise Clause and the Establishment Clause. Although both clauses limit the degree of interaction between Church and State, the Free Exercise Clause has a " reach of its own " in protecting religious freedom from government interference. Gillette v. United States, 401 U.S. 437, 461 (1971) (addressing broader ambit of Free Exercise clause compared to " general harmony " of two First Amendment religion clauses).Return to text.
45 See Howard M. Friedman, Rethinking Free Exercise: Rediscover ing Religious Community and Ritual , 24 Seton Hall L. Rev. 1800, 1801 (1994) (arguing that focus of free exercise debate should be on religious groups and their autonomy rather than individual rights); Laycock, Religious Freedom , supra note 43, at 222 (asserting that Founders recognized need to grant religious exemptions from formally neutral laws as part of right to free exercise of religion); Mark Tushnet, The Rhetoric of Free Exercise Discourse , 1993 B.Y.U. L. Rev. 117, 125 26 (observ ing that early judicial decisions rejected mandatory religious exemp tions from generally applicable laws as part of free exercise and that exemptions were granted as part of public policy).Return to text.
46 See John E. Nowak & Ronald D. Rotunda, Constitutional Law 1218 (4th ed. 1991) (commenting that Free Exercise Clause did not give significant independent protection against police power regula tions prior to 1960); Thomas S. Counts, Justice Douglas ' Sanctuary: May Churches Be Excluded from Suburban Residential Areas , 45 Ohio St. L.J. 1017, 1027 (1984) (observing that religious rights were often protected on grounds other than Free Exercise Clause). The first Supreme Court case decided solely on free exercise grounds was Braunfeld v. Brown, 366 U.S. 599 (1961). In Braunfeld , the Court, applying a rational basis test, held that a Sunday closing law did not violate the Free Exercise Clause. Id. at 607.Return to text.
47 See Cantwell v. Connecticut, 310 U.S. 296, 302 (1940) (holding that distribution of religious materials was protected by First Amend ment right to free speech); Pierce v. Society of Sisters, 268 U.S. 510, 533 (1925) (holding that statute requiring students to attend only public schools violated Due Process Clause); see also Nowak & Rotunda , supra note 46, at 1215 18 (tracing early Supreme Court protection of religious conduct).Return to text.
48 374 U.S. 398 (1963).Return to text.
49 Sherbert v. Verner, 374 U.S. 398, 403-04 (1963) (acknowledging that indirect burden on religious practice may infringe on free exercise of religion to same extent as direct burden); cf. Braunfeld v. Brown, 366 U.S. 599, 612 (1961) (applying rational basis test to free exercise claim because governmental action indirectly burdened religion). After the Sherbert decision, the precedential value of Braunfeld appears to be open to debate. See J. Brett Pritchard, Conduct and Belief in the Free Exercise Clause: Developments and Deviations in Lyng v. Northwest Indian Cemetery Protective Associa tion, 76 Cornell L. Rev. 268, 281 (1990) (arguing that Court ' s failure to explicitly overrule Braunfeld leaves rational basis standard in " suspended animation " ). Yet only three justices viewed Sherbert as overruling the Braunfeld direct/indirect burden distinction. Sherbert , 374 U.S. at 417 (Stewart, J., concurring in result) (arguing that Braunfeld was wrongly decided and should be overruled in light of Court 92 _ s decision); id. at 421 (Harlan, White, JJ., dissenting) (stating that Court ' s decision rejects Braunfeld precedent).Return to text.
50 Sherbert , 374 U.S. at 399 400 (1963).Return to text.
51 Id. at 401.Return to text.
52 Id. at 410.Return to text.
53 Id. at 407.Return to text.
54 Id. at 403. The two pronged compelling interest test outlined by the Court in Sherbert is the functional equivalent of strict scrutiny analysis. See Thomas F. LaMacchia, Note, Reverse Accommoda tion of Religion , 81 Geo. L.J. 117, 121 (1992) (observing that strict scrutiny has been applied in other constitutional contexts, such as discriminatory challenges under Equal Protection Clause and fundamental rights challenges under Due Process Clause).Return to text.
55 See Sherbert , 374 U.S. at 404 (inquiring whether disqualification of benefits burdened Sherbert ' s free exercise of religion).Return to text.
56 Id. at 407.Return to text.
57 Id.Return to text.
58 Id Return to text.
59 406 U.S. 205 (1972).Return to text.
60 See Nowak & Rotunda , supra note 46, at 1211 (stating that Yoder represents first time Supreme Court allowed exemption from generally applicable law due to religious beliefs); Ralph D. Mawdsley, Has Wisconsin v. Yoder Been Reversed? Analysis of Employment Division v. Smith, 63 Educ. L. Rep. (West) 11, 11 (1990) (characterizing Yoder as leading free exercise case in education field); Jennifer E. Spreng, Comment, Failing Honorably: Balancing Tests, Justice O ' Connor and Free Exercise of Religion , 38 St. Louis U. L.J. 837, 852-54 (1994) (commenting that Yoder established " high watermark " of compelling interest test in free exercise jurisprudence).Return to text.
61 Wisconsin v. Yoder, 406 U.S. 205, 207 08 (1972).Return to text.
62 Id. at 213 (explaining respondent ' s argument against state law requiring children to attend school until age of 16).Return to text.
63 Id. at 234 (holding that state law compelling Amish parents to send their children to formal high school violated respondent ' s rights).Return to text.
64 Id. at 213 ( " There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reason able regulations for the control and duration of basic education. " ).Return to text.
65 Id. at 214.Return to text.
66 Id. at 215 (discussing interests of high social importance that would override religious interests such as invalidations of financial aid to parochial schools).Return to text.
67 Id. (distilling the " essence " of all writings on separation of church and state in context of education).Return to text.
68 See id. at 218 (holding that impact of law on religious practice was " not only severe, but inescapable " ).Return to text.
69 Id. at 236 (citing Sherbert v. Verner, 374 U.S. 398 (1963)).Return to text.
70 Id.Return to text.
71 This conclusion does not have universal support. See Nowak & Rotunda , supra note 46, at 1225 (discussing Yoder and stating that " [t]he Court did not use the ' compelling interest ' test, thus suggesting the use of a more open balancing test " ); Szeptycki & Arnold, supra note 11, at 909 (noting that Yoder and Sherbert did not set forth same formulation of compelling interest test). Despite these interpretations, subsequent Supreme Court cases and many commentators have interpreted Yoder as applying a compelling interest standard. See Employment Div. v. Smith, 494 U.S. 872, 894 95 (1990) (O ' Connor, J., concurring in the judgment) (recogniz ing Yoder as one of many cases that required " the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest " ); Thomas v. Review Bd. of Ind. Employ. Soc. Div., 450 U.S. 707, 718 (1981) (quoting language from Yoder to determine definition of compelling state interest); see also Counts, supra note 46, at 1029 (observing that Yoder applied compelling interest test); Mawdsley, supra note 60, at 18 (same).Return to text.
72 See Yoder , 406 U.S. at 215-19 (examining record to determine whether Amish opposition to education law was matter of " deep religious conviction " or " personal preference " ). Some commentators have viewed Yoder as establishing a three part test: (1) whether the activity in question was motivated by and rooted in a legitimate and sincerely held religious belief; (2) whether the free exercise of that religion is unduly burdened by governmental action; and (3) whether the state ' s interests were compelling, justifying the burden on religious practice. See Counts, supra note 46, at 1029 (interpreting Yoder as establishing three part test); Mawdsley, supra note 60, at 18-20 (outlining shifting elements of proof articulated in Yoder ). In Sherbert , the Court declined to inquire into the sincerity of religious conduct or the " truth or falsity of religious beliefs " because the issue was not raised by the state. 374 U.S. at 407. In addition, it appeared that the Court was reluctant to engage in such judicial analysis. Writing for the Court, Justice Brennan commented, " Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, . . . it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. " Id. Subsequent Supreme Court decisions suggest that some religious beliefs do not fall within the protection of the Free Exercise Clause. See Frazee v. Illinois Dep ' t of Employment Sec., 489 U.S. 829, 834 (1989) (granting protection of Free Exercise Clause where individual did not follow teaching of established religious organization but held personal religious beliefs (citing Thomas , 450 U.S. at 707)); Thomas , 450 U.S. at 715 (suggesting that certain claims are " so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause " ). Neither Thomas nor Frazee , however, provide conclusive answers as to which religious beliefs qualify for protection. See Nowak & Rotunda , supra note 46, at 1213 (discussing ambiguous realm of what is considered protected religious belief).Return to text.
73 See Yoder , 406 U.S. at 215 (premising viability of free exercise claim on existence of religious beliefs). For a critique of the distinction between religious and secular beliefs, see Andrew W. Austin, Faith and the Constitutional Definition of Religion , 22 Cumb. L. Rev. 1, 8 (1991-92) (arguing that religious/secular distinction, as discussed in Yoder , is problematic and has no basis in First Amend ment jurisprudence).Return to text.
74 Yoder , 406 U.S. at 235.Return to text.
75 Id. at 215 16; see Nowak & Rotunda , supra note 46, at 1214 (stating that testing individual ' s sincere expression of religious belief does not constitute per se violation of religion clauses).Return to text.
76 Yoder , 406 U.S. at 216 ( " The traditional way of life of the Amish is not merely a matter of preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. " ).Return to text.
77 Laycock, Religious Freedom , supra note 43, at 231.Return to text.
78 See Kenneth Marin, Note, Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine , 40 Am. U. L. Rev. 1431, 1444 45 (1991) (commenting that in recent years compelling interest test failed to extend constitutional protection to religious liberty); Ryan, supra note 11, at 1414 (observing that Supreme Court decided against religious liberty interest in 13 of 17 free exercise claims after Sherbert ).Return to text.
79 See Marin, supra note 78, at 1445 46 (commenting that Court shifted balance in favor of state by " interpreting states ' interest broadly and the religious interest narrowly " ); Ryan, supra note 11, at 1414 15 (noting that Court simultaneously relaxed definition of " compelling " and restricted definition of " burden " ).Return to text.
80 485 U.S. 439 (1988).Return to text.
81 Lyng v. Northwest Indian Cemetery Protective Ass ' n, 485 U.S. 439, 450 (1988). The substantial burden test applied in Lyng is also referred to as the " noncoercive " test. Gregg Ivers, Lowering the Wall: Religion and the Supreme Court in the 1980s , at 79 (1991).Return to text.
82 Lyng , 485 U.S. at 442.Return to text.
83 Id. at 447.Return to text.
84 Id. at 450.Return to text.
85 See, e.g. , Pritchard, supra note 49, at 292 (comment ing that Lyng decision " exhibited ' distressing insensitivity ' " to religious liberties (quoting Sherbert , 374 U.S. at 493 (Stewart, J., concurring))); Alfred J. Sciarrino, The Rehnquist Court ' s Free Exercise Collision on the Peyote Road , 23 Cumb. L. Rev. 315, 329-30 (1993) (viewing Lyng as striking " low point " in Court ' s modern history of free exercise jurisprudence); Ellen Adair Page, Note, The Scope of the Free Exercise Clause: Lyng v. Northwest Indian Cemetery Protective Association, 68 N.C. L. Rev. 410, 421 (1990) (concluding that Lyng ' s restrictive test " reeks of injustice " ); S. Alan Ray, Comment, Lyng v. Northwest Indian Cemetery Protective Association: Government Property and the Free Exercise Clause , 16 Hastings Const. L.Q. 483, 511 (1989) (arguing that Court in Lyng ignored past decisions supporting expansive interpreta tion of Free Exercise Clause).Return to text.
86 455 U.S. 252 (1982).Return to text.
87 United States v. Lee, 455 U.S. 252, 258-59 (1982) (describing mandatory participation in Social Security system as " indispensable " ).Return to text.
88 Id. at 260-61.Return to text.
89 See Marin, supra note 78, at 1446 (arguing that Lee decision started " movement away from the rigorous protection of religious liberty which characterized the free exercise cases of the preceding two decades " ); Spreng, supra note 60, at 854 (commenting that Lee decision marked beginning of judicial deference to legislative and administrative bodies during 1980s and 1990s). But see Laycock, Religious Freedom , supra note 43, at 231. Even before Smith , the Court had been criticized for excessive deference to governmen tal agencies in free exercise cases. But most of these deferential decisions were not decided under the compelling interest test at all, either because the Court found no burden on religious exercise or because it created exceptions to the compelling interest test. These cases cast no light on the meaning of the compelling interest test. Id.Return to text.
90 494 U.S. 872 (1990).Return to text.
91 Employment Div. v. Smith, 494 U.S. 872, 890 (1990). Smith involved two unemploy ment compensation cases. Initially, the Supreme Court remanded the two cases to the Oregon Supreme Court to determine whether religious use of the peyote drug violated the state ' s criminal law. Employment Div. v. Smith, 485 U.S. 660, 674 (1988). On remand, the state supreme court held that Oregon ' s criminal law applied to the sacramental use of peyote, but that the prohibition violated the Free Exercise Clause. Smith v. Employment Div., 763 P.2d 146, 149-50 (Or. 1988), rev ' d , 494 U.S. 872 (1990).Return to text.
92 Smith , 494 U.S. at 885.Return to text.
93 See, e.g. , Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion , 140 U. Pa. L. Rev. 555, 570 (1991) (observing that Smith decision " stunned constitutional lawyers and commentators " ); Tushnet, supra note 45, at 117 (commenting that Smith decision " outraged " most constitutional scholars); Ryan, supra note 11, at 1409 (observing that members of media, academics, and religious interest groups reacted with condemnation and despair).Return to text.
94 See, e.g. , Marin, supra note 78, at 1433 (arguing that Smith contradicted " well established free exercise precedent " ); Susan E. Simoneau, Note, An Anomaly: Religious Freedom Protected Through Political Process Rather Than the First Amendment , 13 Bridgeport L. Rev. 155, 157 (1992) (arguing that Smith decision " reverses " free exercise jurisprudence); Philip Spare, Comment, Free Exercise of Religion: A New Translation , 96 Dick. L. Rev. 705, 705-06 (1992) (characterizing Smith decision as " drastically " changing free exercise interpretation). But see Ryan, supra note 11, at 1416 ( " The Smith decision undoubtedly completed the Court ' s gutting of the Free Exercise Clause, but it seems clear that the clause had already been hollowed by the Court before Smith . " ).Return to text.
95 Smith , 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)).Return to text.
96 Id. at 885. But see id. at 891 (O ' Connor, J., concurring in the judgment) (arguing that compelling interest test should apply to laws of general applicability). Justice O ' Connor criticized the Court for narrowly interpreting past precedent and argued that the Court should have retained the compelling interest test. Id. at 894 96. Nevertheless, in applying the compelling interest test, Justice O ' Connor agreed that the criminal law did not violate the Free Exercise Clause. Id. at 907.Return to text.
97 Id. at 877 78. One scholar argues that the Court in Smith replaced the compelling interest test with an " intentional discrimina tion standard. " LaMacchia, supra note 54, at 123 25. This standard differs from a rational basis review because the former allows courts to be neither more nor less deferential to government interests. Id.Return to text.
98 See Smith , 494 U.S. at 881 82 (referring to combination claims as " hybrid " free exercise claims and concluding that " [t]he present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right " ).Return to text.
99 Id. at 884.Return to text.
100 This concern was a primary motivation in the Court ' s decision to eliminate the compelling interest test. Justice Scalia, writing for the majority, opined that it was " no more appropriate for judges to determine the centrality of religious beliefs before applying a compelling interest test in the free exercise field, than it would be for them to determine the importance of ideas before applying the compelling interest test in the free speech field. " Id. at 886 87.Return to text.
101 See supra text accompanying notes 2-8 (commenting that Smith had distinguished its holding from Sherbert and Yoder). But see Mawdsley, supra note 60, at 21-22 ( " On its face, Smith II , by refusing to create a religious exemption for neutral, uniformly applied criminal statute, would appear to have reversed Yoder . . . . But even if Yoder still has vitality, the compelling interest test discussed by Justice O ' Connor in Smith II is qualitatively different from the test in Yoder . " ).Return to text.
102 See supra text accompanying notes 97 99 (listing situations in which Supreme Court believes compelling interest test should be applied to free exercise claims).Return to text.
103 See generally Religious Freedom Restoration Act of 1990: Hearings on H.R. 5377 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary , 101st Cong., 2d Sess. (1990) [hereinafter 1990 House Hearings ].Return to text.
104 See Allan Ides, The Text of the Free Exercise Clause as a Measure of Employment Division v. Smith and the Religious Freedom Restoration Act , 51 Wash. & Lee L. Rev. 135, 136 37 (1994) ( " The RFRA was expressly designed to return free exercise claims to their perceived legal status prior to Smith , that is, to affirm the doctrinal legitimacy of Sherbert and Yoder , and, as RFRA ' s proponents would have it, to return religious liberty to the United States. " ).Return to text.
105 See Spare, supra note 94, at 731 (observing that chances of passage " diminished significantly " because of abortion controversy); Wendy S. Whitbeck, Note, Restoring Rites and Rejecting Wrongs: The Religious Freedom Restoration Act , 18 Seton Hall Legis. J. 821, 848-51 (1994) (providing overview of abortion debate that accompanied congressional attempt to enact RFRA in 1992).Return to text.
106 See Whitbeck, supra note 105, at 852 (commenting that both proponents and opponents of RFRA voiced concerns over proper scope of test).Return to text.
107 See Lee, supra note 11, at 91 95 (commenting that constitution ality of RFRA will center around whether section five of Fourteenth Amendment grants congressional authority to pass RFRA). Lee concludes that " none of these [constitutional] concerns appears to be implicated by the Religious Freedom Restoration Act. " Id. at 94. But see Flores v. City of Boerne, 877 F. Supp. 355, 357 (W.D. Tex. 1995) (holding that RFRA violates constitutional doctrine of separa tion of powers). The court found that RFRA impermissibly sought to overturn Smith , thereby " intruding on the power and duty of the judiciary. " Id. The Department of Justice, however, has indicated that it would appeal the decision in support of RFRA ' s constitutional ity. See Jerry Sepor, Religious-freedom Ruling Faces Appeal; U.S. Will Challenge Federal Judge ' s Overturning of Law , Wash. Times , Mar. 15, 1995, at A4 (account of Justice Department ' s plan to appeal Flores decision).Return to text.
108 See Laycock, Religious Freedom , supra note 43, at 237 43 (outlining concerns voiced by pro life groups who opposed RFRA).Return to text.
109 See Senate Report , supra note 10, at 12, reprinted in 1993 U.S.C.C.A.N. 1892, 1901 (stating that Committee did not " seek to resolve the abortion debate through this legislation " ).Return to text.
110 Senate Report , supra note 10, at 9, reprinted in 1993 U.S.C.C.A.N. 1892, 1898; House Report , supra note 11, at 8.Return to text.
111 See U.S. Const. amend. XIV, õ 5 ( " The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. " ); see also Lee, supra note 11, at 90 95 (explaining that enforcement power of Section Five of Fourteenth Amendment allows Congress to pass RFRA).Return to text.
112 See U.S. Const. art. I, õ 8, cl. 18. This clause grants Congress the power " [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. " Id. ; see also Whitbeck, supra note 105, at 865-67 (addressing constitutional issues of RFRA).Return to text.
113 House Report , supra note 10, at 9; Senate Report , supra note 10, at 13-14, reprinted in 1993 U.S.C.C.A.N 1892, 1902-03; see infra notes 111-18 and accompanying text (discussing constitutional debate surrounding Congress ' power to enact RFRA).Return to text.
114 42 U.S.C. õ 2000bb(b)4 (Supp. V 1993); see also President ' s Remarks on Signing the Religions Freedom Restoration Act of 1993, 29 Weekly Comp. of Pres. Doc. 2377 (Nov. 16, 1993) (noting majestic quality of signing legislation that affirms right to religious freedom, " perhaps the most precious of all religious liberties " ).Return to text.
115 See Senate Report , supra note 10, at 14 n.43, reprinted in 1993 U.S.C.C.A.N. 1892, 1903-04. The Senate Report stated: While the act is intended to enforce the right guaranteed by the free exercise clause of the first amendment, it does not purport to legislate the standard of review to be applied by the Federal courts in cases brought under the constitutional provision. Instead, it creates a new statutory prohibition on governmental action that substantially burdens the free exercise of religion, except where such action is the least restrictive means of furthering a compelling governmental interest. Id. ; see also House Report , supra note 10, at 15 n.3 ( " Of course, the label ' restoration ' in this context is inappropriate. Congress writes laws -it does not and cannot overrule the Supreme Court ' s interpreta tion of the Constitution and thus it is unable to ' restore ' a prior interpretation of the First Amendment. " ).Return to text.
116 42 U.S.C. õ 2000bb-1 (Supp. V 1993).Return to text.
117 Id.Return to text.
118 Id. õ 2000bb. But see Szeptycki & Arnold, supra note 11, at 913 (arguing that test set forth in RFRA differs textually from test enunciated by Supreme Court in Sherbert and Yoder ).Return to text.
119 See supra notes 46 76 and accompanying text (tracing develop ment of compelling interest test in Sherbert and Yoder ).Return to text.
120 See Laycock, Religious Freedom , supra note 43, at 254 (commenting that Court will not have the opportunity to reconsider Smith because all religious claims will be litigated under RFRA).Return to text.
121 Compare Laycock, Religious Freedom , supra note 43, at 235 (stating that RFRA enacts " universal standard " ) with Szeptycki & Arnold, supra note 11 ( " While Congress has expressed the clear intent that pre Smith cases apply, it has provided no guide for courts faced with two or more pre Smith cases that conflict. " ).Return to text.
122 42 U.S.C. õ 2000bb(b)(1); see supra notes 13-14 and accompanying text (describing federal courts ' post- Smith decisions that restricted scope of allowable religious activities).Return to text. 123 See Mark G. Yudof, Religious Liberty in the Balance , 47 S.M.U. L. Rev. 353, 356 57 (1994) (acknowledg ing efforts of Congress and American Jewish Congress in passing RFRA).Return to text.
124 See Tushnet, supra note 45, at 121-22 (noting that only 23% of free exercise claims succeeded at Supreme Court level between 1963 and 1990, 12% succeeded on federal appellate level in early 1980s, and 16% succeeded at state supreme court level in 1989).Return to text.
125 See House Report , supra note 10, at 5 (stating that Smith decision has created " climate in which the free exercise of religion is continually in jeopardy " ); Senate Report , supra note 10, at 8, reprinted in 1993 U.S.C.C.A.N. 1892, 1897 (finding that legislation is necessary to assure that " all Americans are free to follow their faiths free from governmental interference " ).Return to text.
126 See Grosz v. City of Miami Beach, 721 F.2d 729, 740-41 (11th Cir. 1983) (upholding zoning restrictions that affect home worship), cert. denied , 469 U.S. 827(1984); Lakewood, Ohio Congregation of Jehovah ' s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 309 (6th Cir.) (finding constitu tional city ordinance that prohibited construction of church in residential neighbor hood), cert. denied , 464 U.S. 815 (1983).Return to text.
127 See supra notes 24-25 and accompanying text (discussing judicial recognition of state ' s power to zone).Return to text.
128 See Counts, supra note 46, at 1022 23 (outlining possible health and safety concerns associated with churches). Churches may have a detrimental impact on the value of the surrounding land due to their tax exempt status. Although economic reasons may be more suspect than the traditional health and safety concerns, municipalities generally do take into account the economic impact of churches when enforcing zoning ordinances. Id. at 1022-25.Return to text.
129 See Lakewood , 699 F.2d at 307-09 (holding that generally applicable ordinance that zoned area for residential dwellings did not infringe on congregation ' s right to free exercise even though it prohibited religious group from constructing place of worship because building church was not " fundamental tenet " of religion).Return to text.
130 See Grosz , 721 F.2d at 741 (finding that zoning ordinance that barred individuals from conducting worship services in home did not violate First Amendment because law had secular purpose in furthering goals of increasing safety and reducing traffic noise).Return to text.
131 See Laurie Reynolds, Zoning the Church: The Police Powers Versus the First Amendment , 64 B.U. L. Rev. 767, 767 (1985) ( " All government regulation that affects or constrains any activity undertak en by a religious group is a potential violation of the constitutionally protected right to free exercise of religion . . . . Zoning ordinances are no exception. " ).Return to text.
132 Reynolds, supra note 131, at 767 (citing Wisconsin v. Yoder, 406 U.S. 205 (1972), and Lemon v. Kurtzman, 403 U.S. 602 (1971)); see also Michael W. Macleod Ball, Comment, The Future of Zoning Limitations Upon Religious Uses of Land: Due Process or Equal Protection? , 22 Suffolk U. L. Rev. 1087, 1087 (1988) (observing that " [t]ension between the government ' s authority to impose restrictions upon the use of land and the First Amendment protection afforded to the pursuit of religious beliefs has culminated in differing jurisdictional treatment " ).Return to text.
133 See, e.g. , Christ College, Inc. v. Board of Supervisors, No. 90-2406, 1991 WL 179102, at *3-5 (4th Cir.) (evaluating church ' s request for zoning exception in order to operate school on residentially zoned property), cert. denied , 502 U.S. 1094 (1991); Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221, 1223-25 (9th Cir.) (deciding challenge to ordinance requiring church to obtain conditional use permit), cert. denied , 498 U.S. 999 (1990); Grosz , 721 F.2d at 738-40 (determining validity of zoning ordinances affecting home worship); Lakewood , 699 F.2d at 306-08 (deciding whether congregation may build church in residentially zoned neighbor hood).Return to text.
134 See, e.g. , Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 822-23 (10th Cir. 1988) (using due process analysis to affirm validity of zoning ordinance that barred church from agricultural zone); Islamic Ctr. of Mississippi, Inc. v. City of Starkville, 840 F.2d 293, 299 (5th Cir. 1988) (employing compelling interest test to find exclusion of church from city limits violative of Free Exercise Clause); Grosz , 721 F.2d at 738-41 (balancing government interest against religious interest to determine that ordinance prohibiting religious services in home is constitutional); see also Scott D. Godshall, Land Use Regulation and the Free Exercise Clause , 84 Colum. L. Rev. 1562, 1564 (1984) (stating that courts often " assume that the regulation of church property presents no infringement of First Amendment rights, and approve the regulation in issue without reference to the free exercise clause " ); Reynolds, supra note 131, at 771 (commenting that courts often " ignore or misinterpret " First Amendment protections involved in regulating religious uses); Wehener, supra note 42, at 511-23 (observing that courts have considered variety of claims in land use controversies despite existence of free exercise claim).Return to text.
135 See Reynolds, supra note 131, at 771 75 (outlining problems in attempting to define religion for zoning purposes).Return to text.
136 See Berg, supra note 15, at 45-51 (commenting that exemptions from regulations run risk of promoting religious affiliated services over secular alternatives); Stanley Ingber, Judging without Judgment: Constitutional Irrelevancies and the Demise of Dialogue , 46 Rutgers L. Rev. 1473, 1636 (1994) (observing that legislative accommoda tions would " create a system of perpetual conflict " due to non-uniform pattern of special treatment for religious interests).Return to text.
137 Cf. Germantown Seventh Day Adventist Church v. City of Philadelphia, No. 94-1633, 1994 U.S. Dist. LEXIS 12163, at *2 (E.D. Pa. Aug. 26, 1994) (determining whether city ' s revocation of church ' s permit to expand facilities violated church ' s constitutional rights).Return to text.
138 Cf. Western Presbyterian Church v. Board of Zoning Adjustment, 862 F. Supp. 538, 547 (D.D.C. 1994) (holding that church feeding program was religious activity substantially burdened by application of zoning regulations).Return to text.
139 U.S. Const. amend. I.Return to text.
140 See Counts, supra note 46, at 1029-30 (criticizing Sixth Circuit ' s free exercise analysis involving congregation ' s desire to build church); Godshall, supra note 134, at 1574 (commenting that religious conduct analysis in zoning may lead to " unnecessarily restrictive results " ).Return to text.
141 See 139 Cong. Rec. S14,351 (daily ed. Oct. 26, 1993) (state ment of Sen. Kennedy) ( " ' Since Smith was decided, governments throughout the U.S. have run roughshod over religious conviction. Churches have been zoned even out of commercial areas. ' " (quoting Rev. Oliver S. Thomas)); cf. id. at S14,353 (statement of Sen. Hatch) (arguing that string of post- Smith lower court decisions had overridden religious liberty interest thus reaffirming that First Amendment " has been seriously eroded " by elimination of compelling interest test in Smith ).Return to text.
142 See infra notes 150-98 and accompanying text (illustrating shortcomings of RFRA due to Act ' s inability to resolve threshold issues of compelling interest test).Return to text.