Cornell Law Review Volume 76 Article 5 Issue 1 November 1990 Conduct and Belief in the Free Exercise Clause: Developments and Deviations in Lyng v. Northwest Indian Cemetery Protective Association J. Brett rP itchard Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation J. Brett rP itchard, Conduct and Belief in the Free Exercise Clause: Developments and Deviations in Lyng v. Northwest Indian Cemetery Protective Association , 76 Cornell L. Rev. 268 (1990) Available at: http://scholarship.law.cornell.edu/clr/vol76/iss1/5 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. CONDUCT AND BELIEF IN THE FREE EXERCISE CLAUSE: DEVELOPMENTS AND DEVIATIONS IN LYNG V NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION INTRODUCTION I am convinced that no liberty is more essential to the contin- ued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the Free Exercise Clause explicit in the First Amendment and imbedded in the Fourteenth. -Justice Potter Stewart' The free exercise clause of the first amendment prohibits a leg- islature from enacting laws that interfere with an individual's reli- gious practice and belief.2 The Supreme Court's modem3 free exercise decisions have echoed Justice Stewart's sentiment, applying the strictest scrutiny to laws that conflict with an individual's ability to practice sincerely held religious beliefs. 4 In its most recent deci- sions, however, the Court has reduced the level of scrutiny applied to free exercise challenges, adopting a more restrictive interpreta- tion of the personal religious freedom secured by the first amendment. 5 This Note first explores a normative theory of free exercise pro- tection6-that religious freedom must encompass religious practices and conduct-and then traces the evolution of the Court's standard for protecting free exercise rights. 7 Early Court decisions adopted a strict construction of the free exercise clause, protecting freedom of I Sherbert v. Verner, 374 U.S. 398, 413 (1963) (Stewart, J., concurring). 2 "Congress shall make no law respecting an establishment of religion, or prohib- iting the free exercise thereof .. " U.S. CONST. amend. I. The first amendment free- doms were first incorporated into the fourteenth amendment and applied to the states in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). s Modem free exercise doctrine originated in Sherbert v. Verner, 374 U.S. 398 (1963). See infra notes 74-87 and accompanying text. 4 See infra notes 77-131 and accompanying text. 5 See infra notes 148-98 and accompanying text (discussion of Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)); see also Employment Div. v. Smith, 110 S. Ct. 1595 (holding that the free exercise clause permits a state to prohibit sacramental peyote use and to deny unemployment benefits to persons discharged for such use), reh'g denied, 110 S. Ct. 2605 (1990). In Smith, the Court reversed the Oregon Supreme Court's holding that the first amendment protects good faith use of peyote for religious purposes even if state law does not permit its sacramental use. See Smith v. Employment Div., 307 Or. 68, 736 P.2d 146 (1988), rev'd, 110 S. Ct. 1595, reh'g denied, 110 S. Ct. 2605 (1990). 6 See infra notes 13-27 and accompanying text. 7 See infra notes 33-131 and accompanying text. 268 1990] NOTE-FREE EXERCISE CLAUSE 269 belief but allowing the state to regulate religious practices and con- duct.8 In later cases the Court applied strict scrutiny to protect reli- gious practices and conduct by focusing on the effect of the offending regulation rather than the form of its burden. 9 In this way, the Court expanded protection of religious practices and con- duct. In Lyng v. Northwest Indian Cemetery ProtectiveAssociation, 10 how- ever, the Court applied minimal scrutiny to a claim by American Indians that a proposed government road would destroy their sa- cred religious grounds and prevent their free exercise of religion." Lyng held that laws that tend to discourage religious practice but do not coerce conduct contrary to religious belief need not meet a stan- dard of strict scrutiny. 12 This Note argues that Lyng incorrectly based its analysis on the form of the regulation, disregarding its del- eterious effect on the Indians' ability to freely exercise their religion. As a result, Lyng narrowed the scope of free exercise protection. This Note concludes that the Court should have focused on the ef- fect of the burden and applied strict scrutiny to the challenged regu- lation in accordance with prior precedent. I BACKGROUND A. The Elements of Free Exercise: Belief and Conduct The free exercise clause guarantees individuals the freedom to hold any religious belief and the right to witness those beliefs in a manner consonant with their faith and conscience.' 3 Although the language of the clause provides textual support for the protection of religious "exercise" or practice, the Supreme Court originally ap- plied the guarantee of religious freedom only to belief.'4 The Con- stitution does not specify the nature or scope of religious freedom, and the First Congress's debates reveal little more than concern for 8 See infra notes 33-45 and accompanying text (discussion of United States v. Rey- nolds, 98 U.S. 145 (1878)). 9 See infra notes 77-105 and accompanying text (discussion of Sherbert v. Verner, 374 U.S. 398 (1963)); infra notes 109-20 and accompanying text (discussion of Wiscon- sin v. Yoder, 406 U.S. 205 (1972)); infra notes 121-31 and accompanying text (discus- sion of Thomas v. Review Bd., 450 U.S. 707 (1981)). 10 485 U.S. 439 (1988). 11 See infra notes 148-198 and accompanying text (discussion of Lyng). 12 Lyng, 485 U.S. at 451. 13 See Ira C. Lupu, Free Exercise Exemption and Religious Institutions: The Case of Employ- ment Discrimination,67 B.U.L. Rev. 391,416 (1987) (discussing the first amendment guar- antee of the substantive rights of religious liberty); see also Cantwell v. Connecticut, 310 U.S. 296, 303 (free exercise encompasses both belief and practice). 14 See infra notes 33-45 and accompanying text (discussion of United States v. Rey- nolds, 98 U.S. 145 (1878)). 270 CORNELL LAW REVIEW [Vol. 76:268 the relationship between conscientious belief and its expression.1 5 Nevertheless, the Court and commentators have recognized that the free exercise clause must protect religious conduct or it will fail to adequately safeguard the principal tenet of religious freedom-the freedom of belief.16 "True" free exercise claims involve religious conduct primarily and belief secondarily.' 7 Most commentators recognize that a state can never successfully regulate belief per se.' s The characteristics of self-determination, free will, and rationality reflect qualities of au- tonomous human beings. 19 They define an inherent condition of freedom, a condition that the state can never directly regulate. Viewed in this way, rights of free exercise are largely rights of auton- omy. 20 For instance, laws can prevent one from acting in a certain way, but they cannot make one believe such action is morally wrong. Similarly, religious belief may prevent one from acting in a certain way even though the state does not proscribe the action. Only in an Orwellian nightmare could the state regulate individual autonomy of thought.2 1 Accordingly, government regulations affecting reli- gion necessarily focus on conduct, that is, on those actions that wit- ness belief;22 they can only indirectly impact belief itself. While individual autonomy may not itself provide the basis for significant 15 MICHAELJ. MALBIN, RELIGION AND POLITICS: THE INTENTIONS OF THE AUTHORS OF THE FIRST AMENDMENT 19 (1978). 16 See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (free exercise designed to prevent undermining of religious practices); Sherbert v. Verner, 374 U.S. 398, 410 (1962) (state may not pressure individuals to abandon religious belief by conditioning receipt of benefits upon foregoing religious practices). 17 Ira C. Lupu, Keeping the Faith: Religion, Equality and Speech in the U.S. Constitution, 18 CONN. L. REv. 739, 772 n. 155 (1986). "True" free exercise cases are decided solely on the basis of the free exercise clause and not in conjunction with other constitutional provisions such as free speech or equal protection. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) (holding that a state may not deny unemploy- ment benefits to religious convert whose employer discharged her for her subsequent refusal to work on the day of her Sabbath); Thomas v. Review Bd., 450 U.S. 707 (1981) (holding that a member of the Jehovah's Witnesses who quit his job in a steel foundry for religious reasons could not be denied unemployment benefits on the ground that his reason for quitting did not constitute 'good cause'); Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that compulsory school attendance law that conflicted with Amish reli- gious practice violated free exercise clause); Sherbert v. Verner, 374 U.S. 398 (1963) (holding that state may not deny unemployment benefits to Seventh-Day Adventist whose employer discharged her for her refusal to work on the day of her Sabbath). 18 See Lupu, supra note 13, at 416-17 n.93. 19 John Garvey, Free Exercise and the Values of Religious Liberty, 18 CONN. L. REV.