dismissal of various contract and tort claims brought by a former student and seminarian against his diocese and several priests, emphasizing that “[t]he First Amendment does not immunize every legal claim against a religious institution and its members.”
Section 1.6. Religion and the Public-Private Dichotomy
1.6.1 Overview. Under the establishment clause of the First Amendment, public institutions must maintain a neutral stance regarding religious beliefs and activities; they must, in other words, maintain religious neutrality. Public institutions cannot favor or support one religion over another, and they cannot favor or support religion over nonreligion. Thus, for instance, public schools have been prohibited from using an official nondenominational prayer (Engel v. Vitale, 370 U.S. 421 (1962)) and from prescribing the reading of verses from the Bible at the opening of each school day (School District of Abington Township v. Schempp, 374 U.S. 203 (1963)).
The First Amendment contains two “religion” clauses. The first prohibits government from “establishing” religion; the second protects individuals' “free exercise” of religion from governmental interference. Although the two clauses have a common objective of ensuring governmental “neutrality,” they pursue it in different ways. As the U.S. Supreme Court explained in School District of Abington Township v. Schempp:
The wholesome “neutrality” of which this Court's cases speak thus stems from a recognition of the teaching of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the state or federal government would be placed behind the tenets of one or of all orthodoxies. This the establishment clause prohibits. And a further reason for neutrality is found in the free exercise clause, which recognizes the value of religious training, teaching, and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the free exercise clause guarantees… The distinction between the two clauses is apparent—a violation of the free exercise clause is predicated on coercion, whereas the establishment clause violation need not be so attended [374 U.S. at 222–23].
Neutrality, however, does not necessarily require a public institution to prohibit all religious activity on its campus or at off-campus events it sponsors. In some circumstances the institution may have discretion to permit noncoercive religious activities (see Lee v. Weisman, 505 U.S. 577 (1992) [finding indirect coercion in context of religious invocation at high school graduation]). Moreover, if a rigidly observed policy of neutrality would discriminate against campus organizations with religious purposes or impinge on an individual's right to freedom of speech or free exercise of religion, the institution may be required to allow some religion on campus.
In a case that has now become a landmark decision, Widmar v. Vincent, 454 U.S. 263 (1981) (see Section 10.1.5 of this book), the U.S. Supreme Court determined that student religious activities on public campuses are protected by the First Amendment's free speech clause. The Court indicated a preference for using this clause, rather than the free exercise of religion clause, whenever the institution has created a public forum (see Section 9.4.2) generally open for student use. The Court also concluded that the First Amendment's establishment clause would not be violated by an “open-forum” or “equal-access” policy permitting student use of campus facilities for both nonreligious and religious purposes.
1.6.2 Religious autonomy rights of religious institutions and their personnel. A private institution's position under the establishment and free exercise clauses differs markedly from that of a public institution. Private institutions have no obligation of neutrality under these clauses. Moreover, these clauses affirmatively protect the religious beliefs and practices of private religious institutions from government interference. For example, establishment and free exercise considerations may restrict the judiciary's capacity to entertain lawsuits against religious institutions. Such litigation may involve the court in the interpretation of religious doctrine or in the process of church governance, thus creating a danger that the court—an arm of government—would entangle itself in religious affairs in violation of the establishment clause.
Such litigation may also invite the court to enforce discovery requests (such as subpoenas) or award injunctive relief that would interfere with the religious practices of the institution or its sponsoring body, thus creating dangers that the court's orders would violate the institution's rights under the free exercise clause. Sometimes such litigation may present both types of federal constitutional problems or, alternatively, may present parallel problems under the state constitution. When the judicial involvement requested by the plaintiff(s) would cause the court to intrude upon establishment or free exercise values, the court must decline to enforce certain discovery requests, or must modify the terms of any remedy or relief it orders, or must decline to exercise any jurisdiction over the dispute, thus protecting the institution against governmental incursions into religious beliefs and practices. These issues are addressed with respect to suits by faculty members in Sections 4.7 and 6.4 of this book; for a parallel example regarding a suit by a student, see McKelvey v. Pierce, discussed in Section 1.5.3.
A private institution's constitutional protection under the establishment and free exercise clauses is by no means absolute. Its limits are illustrated by Bob Jones University v. United States, 461 U.S. 574 (1983)). Because the university maintained racially restrictive policies on dating and marriage, the Internal Revenue Service had denied it tax-exempt status under federal tax laws. The university argued that its racial practices were religiously based and that the denial abridged its right to free exercise of religion. The U.S. Supreme Court, rejecting this argument, emphasized that the federal government has a “compelling” interest in “eradicating racial discrimination in education” and that interest “substantially outweighs whatever burden denial of tax benefits places on [the university's] exercise of…religious beliefs” (461 U.S. at 575).
Although the institution did not prevail in Bob Jones, the “compelling interest” test that the Court used to evaluate free exercise claims does provide substantial protection for religiously affiliated institutions. The Court severely restricted the use of this strict scrutiny test, however, in Employment Division v. Smith, 494 U.S. 872 (1990), and thus severely limited the protection against governmental burdens on religious practice that is available under the free exercise clause. Congress sought to legislatively overrule Employment Division v. Smith and restore broad use of the compelling interest test in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., but the U.S. Supreme Court invalidated this legislation.
Congress had passed RFRA pursuant to its power under section 5 of the Fourteenth Amendment to enforce that amendment and the Bill of Rights against the states and their political subdivisions. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that RFRA is beyond the scope of Congress's section 5 enforcement power. Although the Court addressed only RFRA's validity as it applies to the states, the statute by its express terms also applies to the federal government (§§ 2000bb-2(1), 2000bb-3(a)). As to these applications, the Court has apparently conceded that RFRA remains constitutional (Gonzales v. O Centro Espirita Beneficente Unias Do Vegetal, 546 U.S. 418 (2006); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).
The invalidation of RFRA's application to the states has serious consequences for the free exercise rights of both religious institutions and the members of their academic communities. The
