THE LEGACY OF THE COMPELLING INTEREST/LEAST RESTRICTIVE MEANS TEST

FLASHLINE

The Legacy of the Compelling Interest/Least Restrictive Means Test

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Introduction: The Legacy of Compelling Interest...

A Statement: RLPA Requires Closer Examination

Letter From Dr. Marci Hamilton to Senate Judiciary Committee

Knives in schools
Sexual abuse
Refusal to pay child support
Faith healing resulting in the death of a child
Refusal to cooperate with discovery request
Conjugal visits in prison
Jewelry in prison
Class action against prison's grooming policy
Landmarking
Polygamy and abuse
Refusal to provide social security numbers to DMV
Historical preservation
Secular Developer Uses Religious Tenant to Avoid Height Restrictions
Narcotics use

1)   Knives in schools.   Pursuant to its policy prohibiting the possession of knives on school property, the school district forbade Sikh elementary school children to wear kirpans -- seven-inch, ceremonial knivesthat are required by their religion for the purpose of defending one's honor. Relying on the Religious Freedom Restoration Act,the Sikhs filed suit and moved for a preliminary injunction barring the district from applying its no-knives policy to ban the possessionof kirpans at school. The court required the school district to permit the children to wear the knives ifthe knives were basted into their scabbars. See Cheema v. Thompson, 36 F.3d 1102 (9th Cir. 1994). This is a decision the Coalition for the Free Exercise of Religion has endorsed.
   RLPA ties the hands of elected representatives. The reasoning of Employment Div. v. Smith, 494 U.S. 872 (1990), permits legislatures to weign exemptions from general laws and to consider whether a religious exception will be consistent with the common good. For example, the California legislature considered whether children should be permitted to wear sharp knives to school. After debate and deliberation,the California legislature concluded that even when sharp knives are required by a religion, they should not be permitted in public schools. In other words, RLPA will require knives in public schools and Smith permits legislatures to weigh costs and benefits to society of permitting some members to disobey the law.
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2)   Sexual abuse.   In Arizona, a Warlock recently defended his alleged sexual abuse of a 13-year-oldgirl as part of the Wiccan religion. The open question is what is the least restrictive means of dealing with religious conduct that results in sexual abuse or statutory rape. Although the state may have a compelling interest in preventing sexual abuse or statutory rape, conviction and incarceration may not be the least restrictive means of dealing with such individuals.
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3)   Refusal to pay child support.   A member of the Northeast Kingdom Community Church -- which requires members to eschew all their personal possessions and work for the benefit of the Community and forbids members to support estranged spouses or children who live outside the community -- was found in contempt of court for failure to comply with an order to pay child support. He alleged that both the finding of contempt and the underlying support order violated his religious rights. The court vacated the judgment of contempt and remanded the case for a hearing as to the least restrictive means to enforce the defendant's support obligation. See Hunt v. Hunt, 162 Vt. 423 (1994).
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4)   Faith healing resulting in the death of a child.    The son of a believer in the Christian Science religion died at age 11 from juvenile-onset diabetes following three days of Christian Science care. A medical professional could have easily diagnosed the child's diabetes from the various symptoms he displayed in the weeks and days leading up to his death (particularly breath with a fruity aroma). Althoiugh juvenile-onset diabetes is usually responsive to insulin, even up to within two hours of death, the Christian Science individuals who cared forthe child during hislast days failed to seek medical care for him -- pursuant to a central tenet of the Christian Science religion. The mother argued that a wrongful death suit brought by the child's father was not the least restrictive means of servingthe state's interest in the health of the child. Rather, the state could have required the mother to report the child's illness to the authorities when death seemed imminent. The court held that the constitutional right to the free exercise of religion does not extend to conduct that threatens a child's life. See Lundman v. McKown, 530 N.W.2d 807 (minn. App. 1995).
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5)   Refusal to cooperate with discovery request   A wrongful death suit alleged that the Church of Scientology is responsible forthe death of an individual who died of a blood clot in her left lung after spending seventeen days in the care of church staffers. The church is attempting to block discovery by contending that releasing the decedent's files would violate the church's "sacred religious belief" that the files remain confidential and that they be retained by the church for use in a parishioner's future lives. The court ruled that the decedent's estate had the right to see her files. Uponthe passage of the Florida religious freedom restoration act, the court is now reconsidering its previous ruling. See Thomas C. Tobin, Scientologists Fighting to Keep Files Secret, St. Petersburg Times, Aug. 6, 1998, at 4B.
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6)   Conjugal visits a prison.   A Roman Catholic argued that a prison regulation prohibiting condemned inmates from receiving conjugal visits violates his first amendment right to free exercise of religion. The court rejected this argument because the prisoner failed to show that the prison regulation prohibiting conjugal visits for condemned inmates is not rationally related to a valid penological interest. See Noguera v. Rowland, 940 F.2d 1535 (9th Cir. 1991). Under RFRA and RLPA, the prison would have to show that its policy regulating conjugal visits was the least restrictive means of achieving compelling penological interests.
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7)   Jewelry in prison   Wisconsin severely restricting the wearing of jewelry by jail and prison inmates. The prison regulation forbade the possession of "items which because of shape or configuration are apt to cause a laceration if applied to the skin with force," and the state refused to make an exception for religious jewelry, such as crucifixes, which (unless made of cloth) fall within the ban. Inmates brought a suit against the relevant officials to enjoin, as a violation of RFRA, the defendants' refusal to make such an exception. The court held as follows: because prison security is a compelling state interest, if particular types of religious jewelry (or religious jewelry of any type in the hands of prisoners reasonably believed prone to use it for purposes of weaponry, barter, or gang insignia) pose a genuine threat to prison security, the state can ban them. Second-guessing the prison authorities on the least restrictive means of ensuring prison security, however, the court ruled that jewelry in that case could not be banned. See Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir. 1996), vacated and remanded in light of Boerne v. Flores, 117 S. Ct. 2157 (1997).
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8)   Class action against prison's grooming policy.   Inmates confined by the State of South Carolina, including Muslims, Rastafarian, and Native Americans, filed a class action challenging a South Carolina grooming policy that required all male inmates to keep their hair short and their faces shaven. The inmates claimed that the Grooming Policy forced them to compromise their religious beliefs and practices, and therefore violated their rights guaranteed by the Free Exercise Clause of the First Amendment. Following invalidation of RFRA, the Court held that the Grooming Policy is an eminently rational means of achieving the compelling governmental and penological interests of maintaining order, discripline, and safety in prisons and did not violate the Inmates' free exercise rights. See Hines v. Taylor, 1998 U.S. App. LEXIS 13362 (4th Cir. 1998).
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9)   Landmarking.   St. Bartholomew's Church owned a Community House in which the Church conducted many of its religious and community outreach activities. New York's Landmarks Preservation Commission denied the Church's request to level the historic Community House and replace it with an office tower, which would both house the Church's religious activities and significantly enhance the Church's revenues through commercial rents. The Second Circuit found that whether the Church's religious activity was "substantially burdened" by New York's action turned on whetherthe Church "had been denied the ability to practice (its) religion or coerced in the nature of those practices." The court found that New York's action did not punish any religious activity. See St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2nd Cir. 1990). Interestingly, many of the cases filed under RFRA turned on whether there was a "substantial burden" and determined that there was no such burden. In other words, RFRA (and RLPA) open the doors to the courthouse in many cases where the religion cannot meet the threshold inquiry.
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10)   Polygamy and abuse   A battered and bruised teenagers fled from an isolated ranch that is used by a Utah polygamist sect as a reeducation camp for recalcitrant women and children. The husband of the girl was charged with incest and unlawful sexual conduct stemming from the sexual relaitons he allegedly had with her, his fifteenth wife. See Tom Kenworthy, Spotlight on Utah Plygamy; Teenager's Escape from Sect Revives Scrutiny of Practice, Wash. Post, Aug. 9, 1998, at A3. RLPA would offer the father a defense against statutory rape and polygamy.
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11)   Refusal to provide social security numbers to DMV.   California residents contended that social security numbers are the "mark of the beast" in the biblical Book of Revelation and refused to give the DMV their numbers for applications of their driver's licenses. The court held that, because sincere religious convictionswere involved, the DMV must use an alternate identification for those individuals. See John Dart, Judge Upholds Objections to Identifications, L.A. Times, October 25, 1997 at B1. In 1986, the Supreme Court rejected a similar request in Bowen v. Roy, 476 U.S. 693 (1986). RLPA would require a result much more in line with the California ruling than the Supreme Court's ruling.
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12)   Historical preservation.   A Roman Catholic Church holding one service per week asked permission to demolish the entirety of the church, which is located in the historical preservation district, for the purpose of expanding. When the City Council refused permission to demolish the church in its entirety, the church files suit under the Religious Freedom Restoration Act, claiming that the city's historical preservation law could not be applied to a church. The Supreme Court held that RFRA is unconstitutional. Boerne v. Flores, 115 S. Ct. 2157 (1997). RLPA's land use provisions similarly invite churches and religious individuals to thwart, ignore, or litigate all land use laws, including historical and cultural preservation laws.
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13)   Secular Developer Uses Religious Tenant to Avoid Height Restrictions.    In New York City, a congregation of fifty meet in a highly desirable location in a high-rent district. They cannot afford the cost of keeping the building in conformance with land use regulations. A developer has offered to buy the lot from them and to include a chapel on the first floor of a new, 50-story office and condominium building if the developer can circumvent the height restrictions that limit building on that lot to two stories. The church and the developer argue that because the building will be used by religious individuals, there is a free exercise right to defeat the height restrictions. The denomination arguesthatthe height restrictions are threatening the continued survival of the church and therefore they must be exempted from the height restrictions. The surrounding neighboirhood is battling the new building because it will block many tenants' water views, and they paid top dollar believing that the height restrictions would stay in place.
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14)   Narcotics Use.   Two state-paid drug counselors use peyote, a banned narcotic, and are fired for violating the law. They request unemployment compensation, but are denied because they broke the law. They then challenge the firing by claiming that they used peyote in a Native American Church service. In Smith, the Supreme Court ruled that the Constitution does not require the state to exempt religious individuals from the narcotics law and left it to the state legislature to consider whether it would be appropriate to permit the Native American Church to circumvent the narcotics laws. Congress and state legislatured weighed the matter and concluded that peyote use is almost exclusively religious, that there is little risk exempting its use will significantly undermine the war on drugs and enacted exemptions for religious peyote use. RFRA and RLPA take that decision from the legislatures, presumes religious individuals should be able to trump the law, and gives the power over such decisions to the courts.
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