Religious Liberty, Volume 2: The Free Exercise Clause

By Douglas Laycock

For more than thirty years, Douglas Laycock has been studying, defending, and writing about religious liberty. In this second volume of the comprehensive collection of his writings on the subject, he has compiled articles, amicus briefs, and actual court documents relating to regulatory exemptions under the Constitution, the right to church autonomy, and the rights of non-mainstream religions. This collection — which deals with religious schools and colleges, sex abuse cases, the rights of Hare Krishnas and Scientologists, the landmark decision Employment Division v. Smith, and more — will be a valuable reference for churches, schools, and other religious organizations as they exercise their Constitutionally protected freedom of religion.

• Language: English
• Publisher: Eerdmans
• Release date: Apr 7, 2011
• ISBN: 9781467434294

Douglas Laycock

  Douglas Laycock is Robert E. Scott Distinguished Professor of Law and professor of religious studies at the University of Virginia. In addition to his work as a lawyer, he has written for the New York Times, the Washington Post, and numerous other publications.

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Preface to Volume 2

This is the second of four volumes that collect my writings on religious liberty. Volume 1, Overviews and History, was principally devoted to articles that survey the field and articles on the history of religious liberty in the United States and the original understanding of the religious liberty provisions of the Constitution. This volume, and volume 3, are devoted to legal protections for the free exercise of religion. Volume 4, The Free Speech and Establishment Clauses, will address religious free speech, government speech about religion, and government funding of religious institutions. The entire project is more fully described in the Preface to the Collected Works, in volume 1.

Within that larger framework, this is the first of two volumes devoted to my work on protecting the free exercise of religion. This volume is devoted to constitutional protection — to the protections that are found, or should be found, in the Free Exercise Clause of the First Amendment and in similar provisions in state constitutions. Volume 3, Religious Liberty Legislation, will be devoted to statutory protections for religious liberty, enacted by Congress or state legislatures in response to the narrowing or withdrawal of constitutional protection by judicial interpretation.

The allocation of two volumes to free exercise reflects the fact that the largest portion of my work has been devoted to free exercise issues. The reasons for devoting so much attention to free exercise are summarized in the Introduction that follows.

This volume contains a more diverse array of materials than volume 1. Both volumes contain scholarly articles and articles directed to educated readers who are neither lawyers nor academics. In addition, this and subsequent volumes will contain briefs and arguments and other documents from actual court cases. Some of these briefs were filed on behalf of parties in the case — the specific religious group or individual whose free exercise was at issue. More were filed as friend-of-the-court briefs, also known as briefs amicus curiae or, most commonly, as amicus briefs.

The editors and I decided to include briefs for multiple reasons. Most important, some of these briefs address important issues that I have not addressed anywhere else.

Second, these briefs were closely integrated with my scholarly work. The briefs and scholarship are a unified whole; in each genre, I have applied lessons I learned while working on the other. Long ago I made the decision that I would not argue to a court for any position that I would not take in a scholarly journal. That is, I have insisted on maintaining my scholarly integrity in briefs to courts. I have never tried to fool the courts, and I have hoped that by being honest I would accumulate credibility with the courts over time. Some of this work was paid; most of it was pro bono, a fancy way of saying that no one paid for it.

It occasionally happened when representing parties that some unforeseen collateral issue would arise on which I had to take a position that helped the client even if I would not have been entirely comfortable with that position as an original question in my scholarship. Typically such issues were matters not of religious liberty but of judicial procedure. Such problems never arose with respect to the major religious liberty issues in a case. With more than full-time employment in my university job, I always had the luxury of being entirely free to refuse to get involved if I did not agree with the positions to be asserted. I have regularly turned away cases that would have required me to argue more than I believed to be true.

Third, these briefs (and the legislative testimony to appear in volume 3) are a catalog of the major religious liberty disputes in the twenty years around the turn of the millennium. With the important exception of the funding cases, I have filed a brief in nearly every major religious liberty case in the Supreme Court since 1990, in a few cases from the 1980s, and in some of the more important lower court cases. These cases were important in themselves, and they should be of interest to persons interested in the free exercise of religion. These briefs are a clear guide to the arguments being made on behalf of religious liberty, and they summarize the arguments against religious liberty to which we had to respond.

Finally, while I have tried to hone a clear and simple writing style in all my writing, the explanations tend to be put in simpler terms in briefs. Briefs deal with immediate practical applications, and they have tight word limits. Some readers may find the practical applications of briefs more interesting and the somewhat less elaborate explanations more user friendly.

Briefs are included here only if I was the principal author or a substantially contributing co-author — only if a substantial portion of the prose is my own. I am careful about signing briefs written by others, and when I do it, I do not claim them as my own. Briefs that I signed but did not write are not included here.

We have also omitted briefs and portions of briefs that are substantially duplicative. The litigation process often requires that the same arguments be submitted repeatedly — to the court of appeals, again in a petition for further review, and again in a brief on the merits to the Supreme Court. The argument typically improves with repetition, so each version is a little different from all the others. But in the interests of space, we have omitted all but the final version of arguments that got repeated. This sometimes leaves short segments from lower court briefs, where we have omitted the bulk of the brief but included arguments that became moot or were abandoned in higher courts.

Briefs often begin with a few paragraphs of required detail, but, at least when I write them, they soon slip into ordinary prose. Non-legal readers may find briefs odd in one way: citations are often right in the text instead of out of the way in footnotes. The names of cases and the titles of books and articles are italicized in text, so it is obvious when you have come to a citation. If you don’t care what I am citing for a proposition, you can skip right over the citations in text just as you skip footnotes — and just as easily after a bit of practice. It is generally safe to ignore citations, either in text or in footnotes, unless you want to know what I am citing for some point that captures your attention. But the citations are not hard to understand, and readers interested in understanding legal citations will find a brief guide in Appendix II to volume 1.

Editorial conventions have been carried forward from Volume I. Each entry and each section of related entries is accompanied by a short introduction that places the entries in context and lists related material elsewhere. After the briefs, there is usually a short paragraph explaining what the court decided. Citations to my own writings are generally to the page numbers in the original publication. To enable readers to find the cited passages in these volumes, we have added a parenthetical reference to the footnote number or numbers nearest to the cited passage. In briefs with few footnotes, the parenthetical reference is to the part or section of the brief where the cited passage appears.

Finally, careful readers may notice that I have moved since volume 1. I should perhaps explain that my wife is the one who can’t hold a job. I have followed as she moved through the administrative ranks, and she is now president of the University of Virginia. So it has now been my privilege to teach at four great law schools. I am already learning from my new colleagues at Virginia; Virginia now supports my work as Chicago, Texas, and Michigan did before.

DOUGLAS LAYCOCK

Charlottesville

November 2010

Introduction: The Free Exercise of Religion

The largest portion of my work has been devoted to the free exercise of religion. Free exercise is in my view the most fundamental of the guarantees of religious liberty; these are disputes about whether people can be jailed, fined, or otherwise penalized for practicing their religion — in the United States. In a nation of enormous religious pluralism and pervasive regulation, there is a remarkable variety of conflicts between religious practices and government regulation.

Religious practices that harm others can of course be regulated, although this broad statement requires further specification of what counts as a harm for this purpose. Governments often prohibit religious practices when the only harm is annoyance or modest inconvenience. In my view, harm must pass some threshold of significance to justify suppression of a First Amendment right.

The modern law pertaining to the free exercise of religion — the law since 1963 — may be divided into two periods. From 1963 to 1990, the Supreme Court said that if a law burdened a sincere religious practice, the government must either exempt the religious practice from regulation or prove that the burden on religion is the least restrictive means to achieve a compelling governmental interest. The enforcement of this right was not always vigorous, but the Court’s announced standard was highly protective, and sometimes the courts adhered to that standard.

In 1990, in a case called Employment Division v. Smith, the Court changed the standard. The Court said that if a law is neutral and generally applicable, it can be applied to prohibit a religious practice — even to prohibit a worship service — without any evidence of any governmental need to burden religion. Whether to exempt religious practices from such a law is exclusively a question for the legislature, not subject to judicial review. But if the law that burdens religion is not neutral, or not generally applicable, then the compelling interest test applies as before. The Court did not mention least restrictive means. Nearly all the law of free exercise of religion since 1990 is a response to Employment Division v. Smith.

Part One of this volume addresses the general question of whether, and to what extent, the Free Exercise Clause sometimes requires exemptions from regulation. It is divided into two Sections, before Smith and after Smith. It includes a major scholarly treatment of Smith, and it includes briefs and oral argument from the only Supreme Court case (as of 2009) that casts any light on what Smith means.

Part Two addresses the right to church autonomy — the right of a church to manage its own internal affairs, whether or not any moral or doctrinal tenet is at stake in the government’s interference. It is divided into five subsections, addressing the general theory and a variety of important applications. It contains scholarly articles, briefs from important cases, and legislative correspondence.

Part Three addresses the rights of non-mainstream religions of all sorts — groups such as the Hare Krishnas, the Metropolitan Community Church, Scientology, and Ethical Culture. There are four amicus briefs.

These issues are also treated in many of the overview articles in Volume 1. Specific cross-references are in the introductions to Sections and subsections.

PART ONE

Regulatory Exemptions Under the Constitution

Part One addresses the right to religious exemptions from regulation under the Constitution. It is in two subsections — before Employment Division v. Smith in 1990, and after Employment Division v. Smith.

A. Constitutional Exemptions Before Smith

All the material in this Section was written before the Court’s decision in Employment Division v. Smith. It addresses illustrative cases litigated under the pre-Smith regime. There are two amicus briefs and two short articles addressed to religious audiences.

The law before Smith was much better for churches and believers than the law after Smith, but even before Smith these cases were hard to win. Indeed, the religious claimant lost each of the cases in this Section.

The Briefs …

In Mozert v. Hawkins County Public Schools (1987), parents sought to exempt their children from using a reader that undermined their religious faith.

In Jimmy Swaggart Ministries v. Board of Equalization (1990), Swaggart sought to exempt the sale of religious books and recordings from the California sales and use tax.

Briefs are not hard to read. For a quick guide to their main peculiarity, see the third-to-last paragraph of the Preface to this volume.

… and the Articles

Peyote, Wine, and the First Amendment is an explanation of the issues in Employment Division v. Smith and why Christians should care about those issues, written before the case was decided, when religious liberty scholars all thought it would be decided under then-existing law.

Churches Are Living on Borrowed Time is an interview about the Swaggart case, after it was decided.

Cross References

All the entries in this Section are short. My most substantial scholarly treatment of the exemption issue prior to Smith is in A Survey of Religious Liberty in the United States, in Volume 1.

Mozert v. Hawkins County Board of Education

827 F.2d 1058 (6th Cir. 1987)

Brief of National Council of Churches of Christ in the U.S.A.

With my students at The University of Texas Law School

Children are required to attend school, but they are free to attend private schools or home schools instead of public schools. The question in this case was whether that is an all-or-nothing choice. The parents in this case wanted to send their children to public school for most purposes, but home school them in reading, because they believed that the readers assigned in their local schools would undermine their children’s religious faith to such an extent that they could not permit their children to read them. They objected to a variety of stories in the readers — from stories of magic, mental telepathy, and other supernatural occurrences at one end to stories with what they understood to be secular humanist themes at the other. Cross-examination led one of the plaintiffs into a series of sweeping claims, and she was widely ridiculed in the press and in the school board’s briefs.

Originally the plaintiffs wanted the school to provide an alternate reader for their children, but the trial court refused that remedy. The judge ordered instead that any family that wished could simply opt out of the school’s reading class, choosing instead to home school their children in reading. That made the case a simple exemption case. The school was not asked to do anything except leave these children alone with respect to reading.

But the defendant school board and the educational establishment resisted fiercely. They insisted that any student in the public school must take the entire prescribed curriculum, with no exceptions or options except those that the school itself chose to offer. They saw a challenge to their control that would lead to many more such challenges unless it was firmly stamped out. In their view, and in the press, this case was linked to a very different case pending in Alabama at the same time, in which religious parents claimed that the school curriculum had established a religion of secular humanism: Smith v. Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987). The remedy for that would necessarily have been to change the curriculum for all students and to subject the curriculum to judicial control. But the Mozert plaintiffs sought a much simpler and much less intrusive remedy — simply let them opt out of religiously objectionable material, and make up the instruction on their own. Their part-time home schooling would be subject to the same rules and quality controls that the state applied to full-time home schoolers.

This amicus brief was a class project in an experimental seminar on Representing a Major Religious Organization. Pairs of students drafted sections of brief, and I worked closely with each pair, working through strategic and tactical choices and line editing carefully. Despite all that, it still to some extent reflects its origin as a committee project.

Interest of the Amicus Curiae

The National Council of Churches of Christ in the U.S.A. is a community of communions composed of thirty-two national religious bodies having over forty million constituents in the United States. It is commonly known as the National Council of Churches. Its public positions are based on policies adopted by its Governing Board, composed of about two hundred fifty members selected by the member denominations in proportion to their size and support of the Council. The Governing Board has adopted several policy statements affirming religious liberty, including that of minority religious groups, and affirming the rights of children attending public schools to free exercise of religion and to freedom from established religion.

The positions taken in this brief implement the Council’s vigorous support of both religious liberty and nonsectarian public education. This case is critical to the reconciliation of those two values. The Council has opposed school prayer, and it opposes any effort to tailor public school curricula to religious teachings. But it also insists on the right of parents of all faiths to send their children to public schools without encountering unnecessary burdens on their religious beliefs. It has supported the concept of shared time or dual enrollment, which would permit students to take some classes in public schools and some in other accredited educational institutions, or some classes at home in those states whose laws permit home schooling. Tennessee is such a state, and the opt-out program ordered by the district court is such a program. The judgment below protects religious minorities without inserting religion into the public school curriculum.

This case is also important to the free exercise of religion more generally. The school board urges this court to apply broad threshold principles that would frustrate free exercise claims in contexts far removed from public education. The National Council of Churches has a strong interest in protecting the Free Exercise Clause against the destructive consequences of the school board’s arguments. Very few members of the Council’s affiliated churches share plaintiffs’ specific religious beliefs, but religious people of all faiths care about religious liberty.

Summary of Argument

Plaintiffs’ objection to the Holt readers is based on a sincerely held religious belief that it is their duty to raise their children in their faith. Because the Holt readers interfere with plaintiffs’ performance of that duty, their religious exercise is burdened when their children are exposed to the readers. The school board’s argument that exposure is not enough to burden plaintiffs’ free exercise rights is merely an attempt to redefine plaintiffs’ religious beliefs.

Plaintiffs’ religious duty to their children is central to their faith, but that is not required. Legal precedent does not support a centrality requirement. Supreme Court opinions discuss the importance of beliefs only to emphasize a free exercise burden, and the Court warns against judicial interference in religious doctrines. Other federal courts have rejected a centrality test. Although some Sixth Circuit opinions suggest a centrality threshold, the cases could easily have been decided without reaching the issue of centrality. This court should, therefore, reject the school board’s request to give greater application to an erroneous doctrine.

The state has shown no compelling interest that justifies the burden on plaintiffs’ free exercise. The plaintiffs’ children will be adequately educated at home, and the non-objecting children will not suffer any material disruption of their education. The trial court found that the school board failed to show any disruption, and defendants do not seriously contend that that finding is clearly erroneous.

The judgment merely exempts plaintiffs from a burdensome requirement; it does not require the school board to aid their religion in any way. The costs of opt out and of alternative reading instruction are to be borne by plaintiffs. The judgment therefore raises no question under the Establishment Clause.

Argument

I. Plaintiffs’ Right to Freely Exercise Their Religion Is Burdened by the School Board.

A. The School Board Attempts to Redefine Plaintiffs’ Beliefs.

The plaintiffs’ claim is based on the parents’ right to raise their children in their faith. The plaintiffs sincerely believe that this constitutional right is also an affirmative religious duty. The plaintiffs believe it is their duty to supervise the moral and religious training of their children and that they violate this duty when they permit their children to study material that undermines their faith. The Supreme Court has recognized this right and protected much more expansive exercises of it. Wisconsin v. Yoder, 406 U.S. 205 (1972) (exempting children from any instruction in subjects taught in the last two years of compulsory education); cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925) (exempting private school students from compulsory public education; decided under the Due Process Clause).

The school board argues that plaintiffs’ rights have not been burdened. The school board posits a distinction between being forced to violate one’s religious beliefs and merely being exposed to material offensive to one’s religious beliefs. But this argument misconceives plaintiffs’ claim. The school board forces the parents to violate their religious beliefs and duties when it forces them to expose their children to the offensive books. Moreover, the children are not merely exposed to the offensive books. They must actively study them if they are to learn reading skills.

A more fundamental defect in the school board’s argument is that it attempts to redefine plaintiffs’ religious beliefs. This is constitutionally beyond the school board’s power. Only the plaintiffs can determine the content of their religious beliefs. The official doctrine of their church or the commonly held beliefs of the majority of the congregation of their church do not define or limit the plaintiffs’ religious beliefs. See Thomas v. Review Board, 450 U.S. 707, 715–16 (1981). A fortiori, the school board cannot do so.

Nor may a court redefine plaintiffs’ beliefs. It can determine only whether plaintiffs sincerely believe what they claim to believe. Subject to judicial determination of sincerity, courts must accept a claimant’s understanding of his own religious beliefs and of what activities violate those beliefs. United States v. Lee, 455 U.S. 252, 257 (1982); Thomas v. Review Board, 450 U.S. 707, 716 (1981); State v. Whisner, 351 N.E.2d 750, 761–62 (Ohio 1976). The government’s argument in Lee was very similar to the school board’s argument here. The government agreed that the claimants were sincere, but it argued that the integrity of the Amish religious belief or observance was not threatened. 455 U.S. at 257. The Court found it beyond judicial competence to resolve such an argument; it accepted the Amish understanding of their own faith. In this case, plaintiffs’ sincerity has been found by the trial court and stipulated by the parties. There can be no claim that this finding is clearly erroneous. The finding of plaintiffs’ sincerity must stand, and the court must accept plaintiffs’ own understanding of their sincere religious belief.

Free exercise rights would have little meaning if a state could successfully argue that sincere plaintiffs misunderstand their own faith. The school board’s effort to redefine religious beliefs threatens the religious freedom of all and not just the plaintiffs. The right of an individual or religious community to determine its own religious beliefs is the very core of the Free Exercise Clause, not only for the plaintiffs, but for every religious group in the land. Because defendants in the present case do not question plaintiffs’ sincerity, defendants’ argument is reduced to second guessing what plaintiffs’ true religious beliefs are.

Similarly, evidence concerning how the plaintiffs conduct the rest of their lives bears only on their sincerity and is not a test in itself. Specifically, evidence that the plaintiffs are exposed to the ideas that violate their religious beliefs in contexts other than public education, such as television, radio, and movies, is irrelevant to whether plaintiffs’ beliefs are violated by compulsory curriculum in public education. Some of these other contexts are unavoidable in modern society. In addition, none of these other sources of ideas comes with the imprimatur and authority of the state, and none of these other contexts makes the children study the subject matter and pass tests on it. In the words of the trial court, plaintiffs can draw a line between what is tolerable and intolerable to their religious convictions. 647 F. Supp. at 1201. Plaintiffs have drawn a line at the Holt readers.

B. Plaintiffs Must Either Violate Their Religious Beliefs or Forfeit Their Children’s Right to a Free Public Education in Other Subjects.

Under the school board’s rule, the only way plaintiffs can avoid violation of their free exercise rights is to forfeit their state constitutional right to a free public education for their children. See Tenn. Const. art. 11, § 12. This compelled choice between state and federal constitutional rights clearly burdens the federal right. Plaintiffs must either forfeit a state entitlement or violate their religious beliefs.

The Supreme Court has held that free exercise rights are burdened when people are forced to choose between forfeiting government benefits and violating their religious beliefs. Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 139–46 (1987); Thomas v. Review Board, 450 U.S. 707, 716–18 (1981); Sherbert v. Verner, 374 U.S. 398, 403–06 (1963). Plaintiffs here are forced to forfeit their free public education or let their children study material that undermines their religious beliefs. On the issue of burden, the present case is indistinguishable from Sherbert, Thomas, and Hobbie.

The judgment below eliminates this burden. It allows plaintiffs to decline one benefit (the reading program) without giving up all the other benefits of public education. The school board’s demand that plaintiffs accept all or nothing clearly burdens plaintiffs’ religious free exercise. The school board defends this all or nothing requirement by arguing that if plaintiffs choose to participate in the public school program, they should not be heard to complain that they are burdened by exposure to themes and ideas that they find offensive.… Appellants’ Brief at 30. This argument is wholly unjustified and contrary to the basic American right and freedom to question government control. Plaintiffs are not required to accept government benefits blindly without being able to question unconstitutional conditions that accompany these benefits. Cf. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985) (rejecting the bitter with the sweet argument in a due process case). If plaintiffs were really forbidden to question the way in which government services are delivered, separate but equal institutions and segregated schools would still be the norm in this country. Plaintiffs are entitled to challenge constitutional violations in the public school curriculum without entirely withdrawing their children from the schools.

II. Centrality Should Not Be a Part of Free Exercise Clause Doctrine.

The school board argues that even if the reading program burdens plaintiffs’ religion, it does not burden a central or fundamental tenet of their religion, and thus they have no claim. This argument is wrong both factually and legally. Plaintiffs’ duty to transmit their faith to their children is central to their faith, as the Supreme Court recognized with respect to the Amish in Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).

More generally, and more fundamentally, the school board’s argument injects a threshold requirement of centrality into the First Amendment. Such a requirement is contrary to both religious liberty and established precedent. The text of the Free Exercise Clause does not distinguish between central and non-central beliefs; nor is there evidence that the framers intended to protect only central beliefs.

The school board’s argument that plaintiffs’ religious beliefs are not burdened was an attempt to redefine plaintiffs’ beliefs. The school board’s centrality argument is similar in effect; it is an attempt to define which of plaintiffs’ beliefs count. Subject to overriding state interests and to determinations of sincerity, individuals define the scope of free exercise interests by defining the content of their religious beliefs. But when protection is limited to the central or important part of an individual’s belief, the court and not the individual is given the power to define the beliefs that come within the scope of the Free Exercise Clause. A court that exercises this power frustrates a core value of the clause.

A. Supreme Court Precedent.

The Supreme Court has never established a centrality test, and, indeed, its precedent warns against the type of court intrusion into religious affairs that a centrality threshold would require.

First, the Supreme Court has never imposed a centrality requirement, although the language in some opinions might suggest one. See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (finding that the Amish way of life is one of deep religious conviction); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (finding that for plaintiff to work on Saturday would violate a cardinal principle of her religious faith). But Yoder and Sherbert mention the importance of the belief only to emphasize the burden placed upon the individual by the state’s actions. The cases do not mandate that a belief be central before a plaintiff can state a valid claim. Moreover, other language in the same opinions discusses religious precepts generally and omits any mention of a centrality threshold, implying that even non-central beliefs are encompassed by the Free Exercise Clause. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Sherbert, 374 U.S. at 404. This is the language quoted in the most recent case, which makes no mention of central, fundamental, or cardinal precepts. Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 140 (1987).

The Supreme Court also has warned against court interference in matters of church policy. See, e.g., United States v. Lee, 455 U.S. 252, 257 (1982) (deciding that the judiciary should not determine who has the proper interpretation of the Amish faith; ‘[c]ourts are not arbiters of scriptural interpretation’) (quoting Thomas v. Review Board, 450 U.S. 707, 716 (1981); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976) (stating that, in deciding religious controversies, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.).

A centrality threshold would mandate exactly the judicial entanglement with religious doctrine that the Court wishes to prevent. Determining which beliefs are central to plaintiffs’ faith requires an understanding of the entire structure of plaintiffs’ beliefs and the relationship among component beliefs. Such an inquiry is far more intrusive, and far more vulnerable to secular misunderstanding of religious matters, than the permitted inquiry into whether the particular belief at issue is sincere. A doctrine that requires so much inquiry into the structure of religious faith should obviously be avoided.

B. Other Precedent.

1. Cases Rejecting Centrality. Other courts have also recognized the difficulties of determining centrality. For example, in evaluating a free exercise challenge to private development of government owned land, the District of Columbia Circuit noted that the First Amendment protection of religion ‘does not turn on the theological importance of the disputed activity.’ Wilson v. Block, 708 F.2d 735, 743 (D.C. Cir. 1983), quoting Unitarian Church West v. McConnell, 337 F. Supp. 1252, 1257 (E.D. Wis. 1972), aff’d mem., 474 F.2d 1351 (7th Cir. 1983), vacated on other grounds, 416 U.S. 932 (1974); see also Dayton Christian Schools v. Ohio Civil Rights Commission, 578 F. Supp. 1004, 1032 (S.D. Ohio 1984) ("What is not involved in the determination of centrality is an evaluation of which beliefs asserted by the plaintiffs are more important or form the ‘real’ tenets of the Plaintiffs’ faith. To engage in such a substantive evaluation of the Plaintiffs’ asserted religious beliefs would involve the Court in the sort of scriptural interpretation for which the courts are quite ill suited.") (emphasis in original), rev’d on other grounds, 766 F.2d 932 (6th Cir. 1985), rev’d on other grounds, 477 U.S. 619 (1986); Geller v. Secretary of Defense, 423 F. Supp. 16, 17 (D.D.C. 1976) (There is no requirement that the religious practice be absolutely mandated in order to elevate a plaintiff’s claim to a level of constitutional significance. It is not the province of the courts to dictate which practices are or are not required in a particular religion.).

2. The Sixth Circuit. The Sixth Circuit, however, apparently did impose a threshold centrality requirement in two cases. See Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159, 1165 (6th Cir. 1980); Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 306–08 (6th Cir. 1983). This standard was apparently derived from Yoder and two state-court cases: Frank v. State, 604 P.2d 1068 (Alaska 1979), and People v. Woody, 394 P.2d 813 (Cal. 1964). Frank overturned on free exercise grounds a conviction for illegally transporting moose meat. The court noted that moose meat was essential for certain religious ceremonies in defendant’s religion. Nevertheless, the court never applied a centrality requirement; it required only that the conduct in question is religiously based and that the claimant is sincere. 604 P.2d at 1071. Woody, while stating the importance of peyote to the defendant’s religion, nevertheless held that the trier of fact need inquire only into the question of whether the defendant’s belief in Peyotism is honest and in good faith. 394 P.2d at 820–21.

This court’s earlier characterization of these cases was erroneous. Frank and Woody, like Yoder, merely noted the importance of the religious practices at issue to the claimant’s beliefs. Neither court held that the importance or centrality of the practice was a prerequisite to a valid free exercise claim. Although in both cases the religious practices at issue were probably central, the centrality merely emphasized the court’s conclusion that the regulation imposed a severe burden on free exercise.

This court’s characterization of Frank and Woody was not only erroneous but unnecessary. Both Sequoyah and Lakewood could have been decided without the imposition of a new requirement of centrality. The new requirement was merely a label for an underlying balancing test in which the court weighed the statute’s free exercise burden against the state’s interest in the statute. Although the opinions disclaimed the need to reach such a balancing test, the court plainly believed that any balancing would be resolved in favor of the government.

Sequoyah concerned a free exercise challenge by Indians to the creation of a dam and the flooding of land on the Little Tennessee River. The Indians claimed that the flooded land was sacred to the Cherokee religion. The government clearly had an important interest in the use and development of its own land. To protect that interest, the court required that the Indians could override it only by showing the indispensability of the land to the practice of their religion. The Indians, however, were unable to make that showing. At most … a few Cherokees had made expeditions to the area, prompted for the most part by an understandable desire to learn more about their cultural heritage. Sequoyah, 620 F.2d at 1163.

Lakewood concerned a congregation that wished to construct a church building on a lot zoned for single-family residential use only. The construction of a church on the particular site had no religious or ritualistic significance. 699 F.2d at 306. The congregation had an existing church, and new churches could be built on land zoned commercial or multi-family. Id. at 307. Thus, the burden on religious exercise was slight. Moreover, much of the burden on religious exercise was self-inflicted. The church had applied for a zoning variance before it bought the lot. The city council refused, but the church bought the lot anyway, apparently hoping to force the city council to grant the exception. Id. at 304–05.

Even so, the city had imposed a significant burden on religious exercise by restricting churches to the zones that were most expensive and least conducive to worship. See id. at 307. Properly analyzed, that burden might have outweighed the city’s concerns about traffic and noise at a corner lot on a sixlane thoroughfare. See id. at 304–05. But this court viewed the admitted burdens on churches as having no First Amendment significance. Id. at 307–08. That is the key to the decision. Given that conclusion, the case could be explained as simply falling outside the scope of the First Amendment, or as a case in which the balance of interests favored the city. That it was explained instead in terms of a threshold centrality test is not important to the result.

The close relationship between burden and centrality was recognized by the district court in Dayton Christian Schools. That court held that Sequoyah requires a court to look at centrality only to determine the extent to which plaintiffs’ religion is burdened, not to determine whether some beliefs are more important than others. 578 F. Supp. at 1033. Other courts have interpreted Sequoyah similarly, refusing to expand the centrality requirement beyond Indian claims to government lands — an area in which courts examine the burden with particular stringency because of the important governmental interests at stake. For example, the District of Columbia Circuit rejects the centrality threshold generally, but retains it when the use of government land is at issue. Wilson v. Block, 708 F.2d 735, 743 (D.C. Cir. 1983); see also Northwest Indian Cemetery Protective Association v. Peterson, 795 F.2d 688, 692 (9th Cir. 1986) (citing Sequoyah for the necessity of the Indians’ showing that the area at issue is indispensable and central to their religious practices and beliefs);¹ United States v. Means, 627 F. Supp. 247 (D.S.D. 1985) (citing Sequoyah for centrality only in the context of Indian access to religious sites).

Even these government land cases are easily understood in balancing terms. Religious groups generally acquire ownership of their own sacred sites, and the Establishment Clause would normally forbid the dedication of public land to religious uses. The history of Indian land transactions, and the special relationship between the Indians and the federal government, might justify a different result for Indian sacred sites. See Sequoyah, 620 F.2d at 1104. But courts might reasonably conclude that even in Indian cases, public land should be preserved for religious uses only in extraordinary cases — only when the site is indispensable to religious belief. However it arose, a centrality requirement in these land cases should not be generalized to all free exercise claims.

A threshold centrality requirement is fundamentally different from a recognition that burdens on free exercise must sometimes be balanced against compelling state interests. A threshold centrality requirement would allow the government to burden or prohibit the free exercise of non-central religious beliefs for any reason that passes minimum rationality review — which is tantamount to any reason or no reason. The Free Exercise Clause means more than this. Many exercises of religion are motivated but not required by religious beliefs or doctrine. See Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1390–92 (1981) (text at notes 141–51). Such exercises of religion might not pass a centrality test, and they might be overridden by correspondingly less weighty government interests, but they are not wholly outside the scope of the Free Exercise Clause.

The threshold centrality inquiry is also dangerous because it magnifies the consequences of judicial misunderstanding of religious belief. If a court applying a centrality requirement erroneously concludes that a central belief is non-central, it will wholly deny constitutional protection to a central religious belief. But if a court applying a balancing test underestimates the importance of a religious belief, constitutional protection will continue and the balance will be affected only in proportion to the court’s misunderstanding. Most such errors are likely to be small. Small errors will not have exaggerated impact, because no all-or-nothing judgment is required. This court should reject any threshold inquiry into centrality, and simply ask whether the school board has shown an interest so compelling that it justifies the serious burden on plaintiffs’ right to raise their children in their faith.

III. The School Board Has Shown No Compelling Interest.

The plaintiffs argued in the district court that they should be allowed to participate in an alternative reading program. This alternative to the Holt readers was to be taught in conjunction with the Holt readers already in use in the Hawkins County public schools. The court below rejected an alternative reading curriculum due to potential entanglement and establishment problems. 647 F. Supp. at 1203. Instead, the court found that permitting the plaintiffs’ children to opt out of reading would be a reasonable, less restrictive alternative to compulsory use of the Holt readers. Id.

A. The Compelling Interest Standard.

Because the plaintiffs’ free exercise rights have been seriously burdened, the state must show a compelling interest that justifies such a burden. Thomas v. Review Board, 450 U.S. 707, 718–19 (1981). The Court has stated that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). In its most recent case, Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987), the Supreme Court reiterated its holdings in Thomas and in Sherbert v. Verner, 374 U.S. 398, 406–09 (1963), stating that infringements on free exercise must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest. Hobbie, 480 U.S. at 141.

It is important that compelling interest retain its meaning as a truly crucial and essential state interest. The First Amendment explicitly protects the free exercise of religion in absolute terms. The court should imply exceptions to that protection only to avoid intolerable harms to our society. The state must not be permitted to assert merely reasonable interests that are less significant than First Amendment liberties. The Supreme Court has made it clear that no showing merely of a rational relationship to some colorable state interest would suffice in establishing a compelling interest. Sherbert, 374 U.S. at 406. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Id., quoting Thomas v. Collins, 323 U.S. 516, 530 (1944). A slight burden on religious liberty may be justified by a weaker government interest, but the compelling interest standard requires that any balancing be weighted in favor of the constitutional right.

Although the school board argues that its interests should override the plaintiffs’ free exercise claim, its assertions cannot rise to this paramount level. The state’s arguments simply demonstrate a reasonable means of promoting a legitimate public interest. Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion). But the Court rejected this standard in Hobbie: Such a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimal scrutiny that the Equal Protection Clause already provides. Hobbie, 480 U.S. at 141–42 (quoting Justice O’Connor’s dissent in Bowen, 476 U.S. at 727).

Of course, the state does have compelling interests in the education of its young people. Today education is perhaps the most important function of state and local governments. Brown v. Board of Education, 347 U.S. 483, 493 (1954). But the administrative details of an educational system rarely present compelling state interests, nor does every state goal or preference with respect to education give rise to such a high interest. It is essential to isolate those few educational goals that are so important that they justify the violation of what would otherwise be First Amendment rights.

In identifying these compelling interests, it is important to distinguish between those students wishing to opt out of certain subjects and those desiring to take full advantage of the education provided by the state. With respect to plaintiffs’ children, the state’s compelling interest is limited to those skills and information that are so essential that it may teach them even over the parents’ religious objection. The state also has a compelling interest in insuring that all students have an opportunity for a high quality education, undisrupted by the exercise of others’ First Amendment rights.

In order to justify its burden on the plaintiffs, the state must affirmatively demonstrate that at least one of these interests necessarily forecloses any implementation of a partial opt-out program.

B. The State’s Interest in Educating the Plaintiffs’ Children.

With respect to plaintiffs’ children, the school board has a compelling interest in two areas. First, it has a compelling interest in providing basic educational skills to all its students. See Yoder, 406 U.S. at 213. (There is no doubt as to the power of the state, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.)

Second, the state must be permitted to present students with the basic elements of democracy and principles of citizenship. The Supreme Court recognized in Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925), that certain studies plainly essential to good citizenship must be taught in both public and private schools.

Neither of these interests is endangered by the district court’s opt-out plan. The state’s compelling interest in presenting democratic values and principles of citizenship will not be affected, because the children will not opt out of courses teaching these values. The plaintiffs wish to opt out of the reading course only. But the opt-out plan makes provision for the plaintiffs’ children to learn reading at home, and the parents are willing to assume that burden, so the state’s compelling interest in providing basic educational skills is not endangered either. The state can test the children’s reading skills as necessary.

Tennessee law currently allows these plaintiffs to entirely remove their children from the public schools and elect home schooling in all subjects. Tenn. Code Ann. § 49–6–3050 (Supp. 1986). Alternatively, they can choose private religious schools with minimal state regulation. Tenn. Code Ann. § 49–50–801 (1983). A policy that plaintiffs’ children can opt out of all subjects but cannot opt out of a single subject may reflect a concern for administrative convenience, or hostility to plaintiffs’ claim, but it does not reflect a concern for educating plaintiffs’ children.

In asserting that an opt-out program will conflict with its interest in educating plaintiffs’ children, the school board argues that it has a compelling interest in requiring the students to participate in its reading program if they attend public schools. With this argument, the board is effectively asserting that it has a compelling interest in teaching every aspect of its present curriculum as a package. There are some elements of the curriculum that the state has a compelling interest in requiring all children to learn, even over parental objections. But there are numerous elements in the curriculum that could never survive the compelling interest analysis. In effect, the school board is attempting to inextricably link the elements of its curriculum that are compelling with the many that are not, asserting that it has a compelling interest in teaching all of them if it teaches any of them. Thus, by insisting that its choice of curriculum is an all or nothing package, the school board is effectively asserting that it has a compelling interest to teach whatever it wants to plaintiffs who are unable or unwilling to forfeit their free public education.

The board also asserts an interest in developing educational objectives such as higher order cognitive skills, critical reading skills, moral questions, and tolerance (Appellants’ Brief at 37–39), which will be hindered by the opt-out program. These objectives concern only the adequacy of the education of plaintiffs’ children. To the extent that these objectives represent compelling interests, the plaintiffs’ children will be required to learn them at home, and state law recognizes and permits this. To the extent that Tennessee does not require children outside the public schools to learn these skills, it does not consider itself to have a compelling interest in teaching these skills. Because the opt-out program provides plaintiffs’ children with the basic education required by the state, any particularized objectives that go beyond basic educational skills, and therefore are not compelling, cannot outweigh the plaintiffs’ free exercise claim.

The crucial issue in this case is not whether the school board has a compelling interest in teaching plaintiffs’ children to read, critically or otherwise. The issue is whether the board has a compelling interest in requiring the plaintiffs’ children to use the Holt reader. No such compelling interest exists. The state cannot show that opting out of the Holt reader will prevent plaintiffs’ children from learning those educational skills that the state has a compelling interest in teaching. The partial opt-out program makes provision for the adequate education of the plaintiffs’ children by requiring that the parents teach them the reading they miss. Therefore, the state’s interest in assuring that plaintiffs’ children have been adequately educated is met. Compare the cases upholding a constitutional right to home schooling generally. Wisconsin v. Yoder, 406 U.S. 205 (1972); In re Care and Protection of Charles, 504 N.E.2d 592, 598–602 (Mass. 1987); Appeal of Pierce, 451 A.2d 363, 366–68 (N.H. 1982) (Douglas & Brock, JJ., concurring). Compare also the state cases in this circuit striking down unduly intrusive regulation of private schools. Kentucky State Board for Elementary and Secondary Education v. Rudasill, 589 S.W.2d 877 (Ky. 1979); State v. Whisner, 351 N.E.2d 750 (Ohio 1976). Any further attempt to compel the children to participate in the offensive reading program merely penalizes the children for attempting to opt out of one element of the curriculum.

C. The State’s Interest in Preventing Educational Disruption to Other Students.

The state’s second interest seeks to protect the education of other, non-complaining students. The state has a compelling interest in providing the opportunity for a high quality education to all students who desire to participate in public education. This interest is of the highest order. See Yoder, 406 U.S. at 215. What distinguishes this second interest from the first is that the former is limited to the state’s narrow interest in teaching skills and information to those who do not want to learn them. On the other hand, the second interest protects those who wish to take full advantage of the educational opportunity provided them by the state. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Brown, 347 U.S. at 493.

The state has a legitimate interest in ensuring that the costs of establishing an opt-out program for plaintiffs do not fall to any significant extent on the students who remain in the classroom. Although courts have consistently recognized the importance of free exercise, they have insisted that those who assert such claims not shift significant costs of their faith to others. Although the school board cannot insist that the opt-out program have absolutely no effect on other students, it can insist that the opt-out program not materially threaten its efforts to provide quality educational opportunities to those students.

That interest is threatened when the opt-out program unavoidably reduces the quality of education actually achieved by Tennessee’s public schools. But this reduction in quality must be more than minimal. Minor disruptions comparable to those that would likely occur in the accommodation of other important minority rights, such as bilingual education and special education, would be within this de minimis exception. Furthermore, disruptions that may be eliminated through reasonable administrative efforts are avoidable and should not be considered disruptions at all. If the opt-out program significantly hinders the state’s efforts to provide a quality education to other students, and if this harm cannot be avoided by reasonable administrative means, then the disruption is material, and the state’s interest overrides plaintiffs’ free exercise rights.

The school board argues that the disruption caused by the opt-out program is material and will require other students to suffer at least some loss of educational quality, but these assertions are totally unsupported by the findings of the trial court. In fact, the court found that the opt-out program would cause no significant disruption to the other students in the Hawkins County Public Schools. 647 F. Supp. at 1201–02. The court’s findings cannot be overturned on appeal unless they are clearly erroneous. Fed. R. Civ. Proc. 52. Therefore, the following arguments put forward by the state should be rejected.

First, the school board asserts that the opt-out program will substantially disrupt the normal classroom setting, that the students opting out will require additional supervision, that the program will interfere with the school’s integrated curriculum, and that it will overcrowd classrooms. The common fallacy of these allegations is that they rely upon a distorted view of what the district court ordered. The school need not identify passages that violate plaintiffs’ beliefs, or change the curriculum to accommodate students who opt out of the Holt readers. The court’s order requires plaintiffs and their children to assert their opt-out rights and bear the cost of learning the same reading skills with material other than the Holt readers. 647 F. Supp. at 1203. If plaintiffs’ children have difficulty following some of the class discussion in other subjects, that is a cost they must bear as a result of opting out. The district court found that the proof at trial demonstrated that accommodating the plaintiffs is possible without materially and substantially disrupting the educational process. Id. at 1201. The board’s principal brief does not even argue that these findings are clearly erroneous. Indeed, it is written as though all facts will be decided de novo in this court.

Second, the school board claims that the opt-out program will discourage inclusion of controversial materials in the school curriculum, resulting in a watered-down curriculum for all students in the school system. In its efforts to provide the opportunity for a quality education, the school board certainly has an interest in assuring that students learn to understand and appreciate different points of view. (Appellants’ Brief at 7.) But this argument has merit only if the curriculum will be censored in a way that hinders the education of other students. The judgment below does not require the school board to change a word in the curriculum for other students.

Third, the school board argues that the opt-out program will create religious divisiveness and that it has a compelling interest in avoiding such religious divisiveness. Although opt-out alternatives may accentuate the differences among religious groups, this does not necessarily foster divisiveness. In fact, as the court below stated, even a more intrusive accommodation might promote a spirit of religious tolerance in the school system and impress upon the student body the high regard this society has for religious freedom. 647 F. Supp. at 1202.

Finally, the state asserts that allowing the plaintiffs to opt out of the reading curriculum will result in numerous demands for exemption. Simply because the plaintiffs are given the right to free exercise of their religious beliefs in the face of a state interest does not mean that similar free exercise claims will necessarily arise. The decision to opt out is not one that will be lightly made by parents and their children. Such a decision will necessarily place a significant burden on the parents to assume responsibility for teaching reading to their children. Furthermore, such a decision will put the parents and the children in the position of taking an unpopular stand on difficult issues. The school board attempts to convince the court that this decision will have some sort of landslide effect, when, in fact, there is no evidence that even one other child in the Hawkins County public schools would desire to opt out.

The state may not create a compelling interest based upon an unlikely future contingency that numerous demands for exemption will be made. The Supreme Court has rejected such assertions by the state as mere speculation. In Yoder, the state claimed that some Amish children might choose to leave the Amish community and would be ill-equipped for life in the outside world; the Court rejected this as highly speculative and unsupported by the evidence. 406 U.S. at 224. In Sherbert, the state asserted that allowing a Seventh-day Adventist’s claim would result in numerous fraudulent claims for unemployment compensation. The Court rejected this argument as no more than a possibility. 374 U.S. at 407. It found no proof whatever to warrant such fears of malingering and deceit as those which the respondents now advance. Id. Furthermore, even if the state could prove that numerous demands for exemption will result, it still must show that such numerous demands will result in a material disruption.

The burden of proof on each of these alleged disruptions rests on the state. Hobbie, 480 U.S. at 141; Sherbert, 374 U.S. at 407. Under the district court’s findings of fact, the state has failed to meet its burden of proving that the opt-out program materially disrupts the educational opportunities of the other students.

IV. The Opt-Out Plan Will Not Violate the Establishment Clause.

The school board argues that even the opt-out program ordered by the district court violates the Establishment Clause. It claims that the opt-out program fosters an excessive entanglement with religion. (Appellants’ Brief at 59.) The proposed opt-out program does not foster entanglement between church and state. It merely accommodates the religious practices of the plaintiffs. Although the state may not support religious practices, the Supreme Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Hobbie, 480 U.S. at 144–45. Therefore, the state may allow the opt-out program as an accommodation to the plaintiffs’ free exercise of religion as long as the state does not become involved in supporting religion. See generally Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1.

The district court said that an accommodation such as the alternative reading program would run afoul of the Establishment Clause, 647 F. Supp. at 1203, because it would require the state to support plaintiffs’ religion by providing literature that is consistent with the plaintiffs’ beliefs. Such a program is not at issue here. However, the state argues that the opt-out program presents the very problems the court foresaw in the alternative reading program. Appellants claim that an excessive entanglement between the state and religion would result because the teachers would be obligated to identify material that violates the students’ religious beliefs. (Appellants’ Brief at 59.) The district court acknowledged that in implementing the alternative reading program the average reading teacher might not readily recognize those portions of the texts which offend the plaintiffs’ beliefs. Therefore, if, in fact, the opt-out program requires teachers in other parts of the curriculum to make such determinations, then an Establishment Clause problem may arise.

This is not, however, a concern in this case. Plaintiffs and their children must identify the offending passages and assert their opt-out rights. The Hawkins County School Board is not required to adjust any part of its curriculum. In fact, to do so would be contrary to the district court’s order, and as appellants argue, any such accommodation would at least raise questions under the Establishment Clause.

Therefore, although it is true that portions of the school district’s integrated curriculum may continue to offend plaintiffs’ religious beliefs, the opt-out program does not require that teachers attempt to identify materials that violate such beliefs, and thus it does not violate the Establishment Clause.

Conclusion

The Holt readers burden plaintiffs’ exercise of religion and serve no compelling interest. There is no pretense that every child in Tennessee must learn the content of the Holt readers, but only that every child must learn to read. The opt-out plan protects that interest while also protecting plaintiffs’ right