Religion Law Quiz #2

Today's Quiz deals with generally applicable non-discrimination laws and discretionary exemptions to those laws.  Let's see how you do.  

 

In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the United States Supreme Court held that laws which incidentally burden religion are typically not subject to strict scrutiny under the First Amendment’s Free Exercise clause provided that they are neutral and generally applicable.    With that backdrop in mind, now assume that a governmental unit (such as a state or city) adopts (1) a generally applicable non-discrimination clause which (2) has a system of exemptions but (3) those exemptions are granted at the sole discretion of a designated government official.  Does this law pass muster under the First Amendment?

 

(Scroll down for the answer.)

 

 

Answer: No, it does not.  This was the situation addressed recently by the Supreme Court in Fulton v. City of Philadelphia, Pennsylvania, 141 S.Ct. 1868 (2021).  The Supreme Court stated in relevant part:

 

No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual non-discrimination requirement not generally applicable.

….

The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude,  Smith, 494 U.S. at 884, 110 S.Ct. 1595—here, at the Commissioner’s “sole discretion.”

 

Id. At 1878 and 1879. 

 

Disclaimer: The Religion Law Quizzes are provided as a service to you. They are informal, non-binding hypothetical questions intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.