Free Exercise cases and jurisprudence and bowen v. roy and native american and neutral and uniform and lee and employment division v. smith

Two questions were at issue in this Free Exercise (FE) of religion case. First, was it a violative of Roy's FE rights for the federal government to use the Social Security (SS) number of Roy's 2 year-old daughter in its internal record-keeping and communication? and second, was the law requiring Roy to disclose the girls' SS number as a prerequisite for obtaining welfare benefits a violation of his FE rights, where he claimed that use of the number would harm the spirit of his child? The Court concluded (8-1) that the government could so use the number. However, with respect to the second question, though not speaking for the majority, three Justices devised an alternative test (different from that laid out in Sherbert) for determining whether a government action unconstitutionally restricted freedom of religion. Though this test didn't command the majority's asssent, it entered into the Supreme Court's FE bloodstream, so to speak, and soon would become the majority's approach. I give this test below.

A Few Facts

The facts of the case have an element of the hilarious about them, even if one takes Mr. Roy's beliefs very seriously. He, a native American, asserted (and the government agreed) that his daughter, Little Bird of the Snow, didn't have a SS number. The reason he didn't get one for the daughter is that he and his wife had a religious objection to the number. Technology was robbing "the spirit of man," and one of the ways that this spirit would not longer be robbed was to eliminate the SS number as an identifier. Though he and his wife and other daughter each had a SS number, Roy developed this belief shortly before the trial. Nevertheless, they still wanted federal benefits, which required submission of the social security number in order to obtain them. Hence, the tension between religious belief and governmental requirements. This isn't hilarious.

What happened at the trial was. On the last day of the trial, a federal agent revealed actually that Little Bird of the Snow had a social security number after all. Her first name, on the card, was listed as "Little," her middle name as "Bird of the," and her last name as "Snow." When confronted with the reality that there actually was a SS number for his daughter, Mr. Roy changed tactics, claiming that it was not the mere presence of the number but the use of it that damaged his daughter's spirit. That is the hilarious part--the changing of grounds for his case on the last day of trial, the kind of "making it up as you go along"-feel of this case. This claim, predictably, tied the lower court up in knots, because they weren't sure whether the case was moot and, in fact, tied up the US Supreme Court in knots, as Justices disagreed with each other about the legal effect of the last-minute revelation that Little Bird of the Snow indeed had a SS number.

The Real Point

The Court had no difficulty in holding that Mr. Roy's religious beliefs could not constrain the government's internal operations. Even the most affirmative and expansive reading of the Sherbert opinion wouldn't permit this. Yet, the real point for the develpment of FE doctrine was the attempt by three members of the Court (Burger--who retired a few weeks after writing this opinion, Powell--who retired the next year, and Rehnquist--who is the current Chief Justice) to try to develop a rationale of why the statutory requirement of furnishing one's SS number, over religious objections, to secure government benefits did not run afoul of Sherbert and Thomas. Reaching back to some of the rationale of the Lee case from 1982, these three argued that "not all burdens are unconstitutional....The statutory requirement that applicants provide a SS number is wholly neutral in religious terms and uniformly applicable."

This language, of neutrality with respect to religous language and uniformity in applicability, provided the key thought that guided the remainder of their opinion. Brennan argued in Sherbert (1963) that since coercion was involved (because a person had to choose between religious convictions and government benefits), the government had a heightened burden to show why they had a compelling interest to force compliance in the face of religious practice. However, the three Justices here argued as follows:

"However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less instrusive nature than affirmative compulsion or prohibition, by threat of penal sanction, for conduct that has religious implications."

What then is the standard that the government must meet to overcome the objection of a FE challenge when a "neutral (i.e, with respect to religious language) and uniform" statute is involved? They say:

"Although in some situations a mechanism for individual consideration will be created, a policy decision by the government that it wishes to treat all applicants alike and that it does not wish to become involved in case-by-case inquiries into the genuineness of each religious objection to such condition or restrictions is entitled to substantial deference."

Conclusion

Note the last words of the quotation--substantial deference. That is really where the three Justices were going. If a statute has no religious language (like an unemployment statute), and the statute applies across the board, and if the statute happens to impinge on religious practice, the statute should be given "substantial deference" by courts. The "substantial deference" standard is akin to "rational review," which contrasts strongly with "strict scrutiny." Thus, the three Justices would change the way the Court looks at Free Exercise claims. Though it didn't command a majority here, it got three Justices to go along.

Now we should turn either to Lee, to get further background to this "neutral and uniform" language or to Employment Division v. Smith, to see how this standard became, at least for a while, the law of the land.

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