because the Court defined “free exercise” narrowly, in a way that restricted religious practices that violated political and cultural norms, without limiting religious belief. Consider for a moment the deep power of Protestant normativity in the Reynolds case. In a host of societies and times in history, including times described in the Bible, plural marriage was common or accepted. In nineteenth-century America, however, “marriage” had a definition—singular and heterosexual—grounded in Protestant Christian beliefs, and that was enough to put Reynolds’ religious practice beyond the protection of the First Amendment.
Reynolds is part of a continuity of cases in which the belief/action distinction has been applied in ways that protect Christianity and its norms and not the religious activities associated with Native American and Caribbean spiritualities, Judaism, Islam, or Sikhism, for example; these are less likely to receive protection in the Courts. For example, most Christian sects do not require men to cover their heads. Judaism does, and in 1986 a suit filed by a Jewish officer in the US Air Force, Dr. S. Simcha Goldman, seeking to overturn the Air Force’s uniform policy as it related to religious headgear, reached the US Supreme Court as Goldman v. Weinberger. Goldman sought a Free Exercise exemption that would allow him to wear his yarmulke while on duty in the on-base hospital where he served as a psychiatrist. A denial of Goldman’s rights would leave him in a difficult position: he owed the Air Force three years’ service in exchange for scholarship funding already received, so he would either have had to violate his religious obligation or face court martial. Goldman lost. The Supreme Court’s majority opinion mischaracterized wearing a yarmulke as a personal preference rather than a religious obligation,25 and gave priority to the military’s stated need for standardized uniforms that did not allow religious head covering.
Shortly after Goldman was decided, Congress added an amendment to a military appropriation bill to allow servicemembers to wear religious head coverings. Yet, twenty years later, we can hear echoes of Goldman’s experience in the cases of multiple Sikh physicians who also sought exemptions from the military’s uniform policies to wear uncut hair (including beards) and turbans. Sikh servicemen had to fight for their rights as if theirs was a new dilemma—without the benefit of Congress’ legislative reversal of Goldman. Likewise, in 2018, US Secret Service Agent Anshdeep Singh Bhatia was asked to remove his turban and shave his beard in order to become the first Sikh in the president’s security detail; it took filing a lawsuit for the Secret Service to relent and allow him to be himself on the job.26 It seems that each new non-Christian group that comes along has to “reinvent the wheel.” And they have to do so repeatedly: Sikhs, for example, had to advocate anew for the right to wear the dastaar (turban) while serving in the military, the Secret Service, and the New York Police Department.
By giving legal meaning to the distinction between “faith” and “action,” the courts have also disadvantaged Native American and Caribbean faiths. For example, the Supreme Court has upheld governmental actions that restrict the religious use of peyote, a hallucinogen consumed as part of certain Native religious practices. In Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), two men who “ingested peyote for sacramental purposes at a ceremony of the Native American Church” were denied unemployment benefits after losing their jobs for using “illegal drugs.” Upholding the denial of benefits, the court reasoned that when the government prohibits an activity—in this case, drug use while on unemployment—a person cannot avoid that rule by saying they were engaged in a religious obligation.27 Likewise, in Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), the United State Supreme Court upheld a ban on the Santeria religious practice of sacrificing small animals as a violation of public health standards.
The Court has also refused to recognize that reverence for and preservation of nature and land are part of spiritual belief for many. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court allowed the US Forest Service to build a paved road through six miles of wilderness that the government’s own study had found was “significant as an integral and indispensable part of [American] Indian religious conceptualization and practice.” The study concluded that constructing a road along any of the available routes “would cause serious and irreparable damage to the sacred areas that are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples,” because essential to the peoples’ religious use of the area were “certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” Even as it acknowledged that the road would threaten “the efficacy of at least some religious practices” in a way that would be “extremely grave,” the Court refused to compel the government to protect citizens’ religious practices. Road construction through sacred land was deemed constitutionally permissible under the free exercise clause.
Across all of these cases, one can argue that the Court was upholding the outcome that appears to affect everyone equally: military uniformity, a ban on using illegal drugs, a non-recognition of religious traditions that would protect a particular geographic location or topographic feature. But if we are going to call these laws “facially neutral,” as courts often do, we must recognize Christianity as the “face” against which other traditions are being compared. If Christian practice included devotional head covering, Dr. Goldman and Sikh soldiers would not have had to fight those fights. If Christians used peyote in their religious practice, it would never have been declared an illegal drug in the first place. If Christianity recognized the notion of sacred lands and called for spiritually important natural spaces to be undisturbed, the logging operations in Lyng would never have commenced. Thus, Christians will never experience a “facially neutral” ban on their practices, and the burden of government regulation will continue to fall only on religious minorities.
Indeed, when Christians find themselves at odds with a “facially neutral” law, they tend to win rather than lose. In Yoder v. Wisconsin (1972), the Court allowed Amish28 residents to withdraw their children from public schooling after eighth grade despite a state law requiring all children to attend school until the age of sixteen. The Court went to great lengths to convey its respect for the Amish religious belief, and ultimately permitted the Amish to withdraw their children from school two years before the law allowed. The Amish succeeded, in part, by appealing to the justices’ nostalgia for a mythic American past—the simple Christian America of horses and buggies and life on the farm. This national past, however romanticized, was one most of the justices could readily understand: Of the seven justices who participated in Yoder, six were Protestant and one, William J. Brennan, was Catholic. So, whereas in 1986 the Supreme Court would call Goldman’s yarmulke a “personal preference” which the Air Force could “subordinat[e] … in favor of the overall group mission,” in 1971 the Yoder Court wrote: “the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction.”29 In the Court’s own words, the Amish were aided in their appeal “by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society.”30 If access to religious liberty is most available to groups who have been here a long time and are familiar to the justices, can we really expect “equal justice under law” for immigrant religious minorities?
Even more recently, in Burwell v. Hobby Lobby (2014), the Supreme Court applied the Free Exercise clause and the Religious Freedom Restoration Act of 1993 (RFRA) to protect corporations whose individual owners were Christians with “religious objections to abortion.” Hobby Lobby sought to avoid providing its employees with a health plan that included family planning coverage, despite the Affordable Care Act’s requirements that health plans include reproductive health care for women. The Court ruled that Christian-owned businesses can avoid complying with the Affordable Care Act’s coverage requirements based on “the sincerely held religious beliefs of the companies’ owners.”
The Hobby Lobby ruling shows that Christians may be able to use Christianity’s normative social power to upend First Amendment jurisprudence. In cases brought by religious minorities, like Goldman and Lyng, the “free exercise” of religious observances
