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LUA97-033
Transportation Solutions, Inc. DAVID D. MARKLEY Principal Engineer Mr. Markley is founder and Principal of Transportation Solutions, Inc.. He has technical and administrative responsibility for a full range of traffic engineering and transportation planning projects. His practical approach is particularly suited to detailed analysis and evaluation of applied traffic engineering problems and short range transportation planning issues. An important part of his work involves the bringing together of community groups, private developers, and public agencies to find realistic resolutions to controversial issues. Through over twenty five years of applied experience in Washington, Alaska, California, and along the east coast, Mr. Markley has gained recognized expertise in the fields of short-range transportation planning, traffic engineering, parking analysis and design, and transportation analysis of public assembly facilities. He blends traditional techniques with creative approaches to develop solutions that respond to complex issues and challenges. His understanding of the relationships between land use and transportation results in solutions that serve the needs of the general public while remaining sensitive to the neighboring area. His areas of special expertise are: • Traffic circulation and operations studies; • Transportation and parking management plan development; • Traffic impact analyses for public and private developments; • Downtown and business area traffic and parking analysis; • Parking demand and utilization analysis; • Analysis of public assembly facilities. Mr. Markley is a graduate of the University of Washington (BSCE, 1969), and Pennsylvania State University, Bureau of Highway Traffic (MCE, 1972) where he was selected as Outstanding Student of the Year. Before establishing Transportation Solutions, Inc., he worked with The TRANSPO Group, JHK & Associates, and Tudor Engineering Company. He also has served as an instructor at the Seattle University, the University of Washington, and Cal Poly at San Luis Obispo. Mr. Markley is a member of The Institute of Transportation Engineers where he has progressed through the chairs of the Washington State Section. He is currently a member of the ITE Committee 6A-50 Transportation Planning for Stadia and Arenas. LX . Transportation Solutions Inc. - :: ^ k CITY F RENTON: :.. ihaL Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman July 3, 1997 Mr. George Kresovich Hillis Clark Martin&Peterson 1221 Second Avenue,#500 Seattle, WA 98101-2925 Re: Notice of Appeal of Determination of Significance by Highlands Community Church File No: LUA-97-033,AAD Dear Mr. Kresovich: I have reviewed your letter asking for clarification of the appeals procedure and seeking reconsideration of the matter. The City is still updating and clarifying its appeals procedures and was not aware of the court case which affected the appeal rights in matters such as this when the appeal language was appended to the report. Subsequent to issuing the decision, discussions with the City Attorney's office occurred in which he clarified that no appeal rights to court are created. Apparently,you and the City Attorney have already discussed this matter. As stated in your letter,no appeal can occur until the City takes final action on the underlying land use permit. In reviewing the request for reconsideration, I can find no reason to alter the decision at this time. This office has not had time to fully analyze the impact of the latest U.S. Supreme Court's ruling regarding the applicability of local land use regulation vis a vis a church's religious rights, and notes that the Washington State Supreme Court has its own interpretations on some of these matters. It does not appear that the preparation of an EIS,particularly one as narrowly scoped as this one would appear to be, would have any but minor incidental impacts on a plan that will not crystalize for five to seven years. The decision of this office will not be modified. 200 Mill Avenue South-Renton, Washington 98055 - (206)235-2593 Mr. Kresovich July 3, 1997 Page two If this office can be of further assistance,please feel free to write. Sincerely, 41.$1.—k...144142ine""%. Fred J. Kaufman Hearing Examiner FJK:mm Enclosure cc: Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Admin. Members,Renton Planning Commission ' Jim Hanson,Development Services Director Art Larson,Fire Marshal i Mike Kattermann,Technical Services Director Lawrence J. Warren,City Attorney Larry Meckling,Building Official Transportation Systems Division Jay Covington,-Mayor's Executive Assistant Utilities System Division Councilperson Kathy Keolker-Wheeler Parties of Record South County Journal Law Offices • HILLIS CLARK MARTIN & PETERSON •^n A Professional Service Corporation �j f U I 500 Galland Building,1221 Second Avenue D L'''�� Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 n UAi 2 A 199T • June 20, 1997 MY HEARING EXAMINER Mr. Fred Kaufman City of Renton Hearing Examiner 200 Mill Ave. S. Renton, Washington 98055 Re: Highlands Community Church; File No. LUA97-033,AAD; Notice of Right to Appeal; Request for Reconsideration of Decision Dated June 17, 1997. Dear Mr. Kaufman: I am writing to you to request that you clarify the notice of appeal rights set forth in the above-referenced decision; and,to the extent necessary to exhaust available administrative remedies, to request reconsideration of your decision dated June 17, 1997. The notice.of,appeal-.in the decision:states-that the decision'can'be appealed"under the Land Use Petition Act;-RCW Chapter 36.70C..We'do not believe that the'decisiori:ih this case is a"land use decision" as that term,is defined in RCW §36.70C.020 (1)(a-c). • - Further, it is our understanding that there is no right to appeal a decision requiring the preparation of an EIS under the Land Use Petition Act. See,Saldin Sec. v. Snohomish Cty. 80 Wn. App. 522, 910 P.2d 513 (1996) (holding that SEPA requires a project proponent to wait until a local government takes final action on the substantive permit before seeking judicial review of a positive threshold determination). We note that this decision also provides notice of the availability of a request for reconsideration of the examiner's decision in situations where there are, among other things, errors of law or judgment. To the extent that such a request for reconsideration is essential to exhaust our client's administrative remedies,this letter is a request for reconsideration. We have no new evidence nor do we have new arguments to make concerning the issues decided by the hearing examiner. We believe.that the facts.presented on the behalf of our client at the hearing and,the legal authorities cited in=our-hearing memorandum and in our argument demonstrate that-the,examiner_':sAecision is,simply.wroi g: We,have-set forth below a brief list of what we believe to be the particular errors inherent in that decision'. Mr. Fred Kaufman June 20, 1997 Page 2 • Conclusions 7 and 8. Our client did not decline to provide the city with additional information. The testimony at the hearing established that the information requested by the city concerning the location of satellite parking facilities could not be obtained at this time; and that, therefore, phased environmental review of this proposal would be the only reasonable way to fulfill the requirements of SEPA. • Conclusion 15. The examiner was wrong in determining that the city's concerns with the impacts of church traffic and parking in a residential area present a compelling state interest. Case law establishes that traffic safety concerns do not present a compelling state interest sufficient to regulate political speech. If that is true, concern over the incidental nuisances used to justify the city's decision in this case cannot be sufficient to establish a compelling state interest. • Conclusions 17 and 18. The examiner was wrong in determining that the EIS process, open-ended in time and expense, is not a substantial burden to the exercise of our client's first amendment rights. • Conclusion 19. The examiner was wrong in drawing a non-existent distinction from the free exercise of religion decisions of the Washington Supreme Court that consideration of life-safety issues involves only the interests of church members and not the interests of members of the general public. The sole basis for the exercise of the police power is that it furthers the general public health, safety, and welfare. The failure to follow building and fire codes presents an issue of safety not only for the members of the religious congregation who use a particular religious building but also for public employees such as firemen as well as for members of the general public who attend such functions as weddings and funerals. Certainly a fireman or a guest at a wedding who died as a result of the failure to apply fire code provisions to a religious structure would be as directly injured as the neighbors of the church in this case. • Conclusion 19. The examiner was wrong in disregarding the cases involving historic preservation on the basis that these cases did not present direct impacts to specific individuals. There is no distinction between the traffic impacts evaluated in the environmental review process here and the other impacts that must be considered in that process. Impacts to historically or culturally significant structures must be analyzed under SEPA in the same manner as traffic impacts. • Conclusion 20. The examiner was wrong in concluding that the city could substantially burden the church's first amendment rights in order to achieve ■ H I L L I S CLARK MARTIN & P E T E R S O N ■ • Mr. Fred Kaufman June 20, 1997 Page 3 mitigation of identified impacts when the city has other, less restrictive, means at its disposal to achieve the same end. As the testimony at the hearing demonstrated these means, include the creation and enforcement of general parking restrictions or the institution of a residential parking permit zone. • Conclusion 21. The examiner was wrong in concluding that the church is seeking to prevent the city from protecting the"environmental rights of the appellant's neighbors.". The church has asserted only that the method that the city has used in this case violates the church's first amendment rights. The church has advocated at least three different methods of protecting the environmental rights of the church's neighbors --phased environmental review, creation of a residential parking permit system, and imposition of general parking restrictions in the residential area. We have set forth the above issues in order to insure that our client will not be prevented from subsequent judicial review of this decision by any failure to exhaust available administrative remedies. We believe that the argument and legal memorandum submitted at the hearing make the same points that we have made in this letter. We are not sure that the request for reconsideration is meant to provide an opportunity to present the same arguments a second time. If this is indeed the purpose of this provision and if the examiner wishes us to expand upon our discussion of any of the errors that we have identified and listed above, we would be happy to do so. Our purpose in submitting this request for reconsideration is to retain our client's ability to seek judicial review of this decision. Ver(ruly yours, JP 4. 40,./c G eorge ='. Kresovich GAK/bkp E-Mail: gak@hcmp.com cc: Scott Kaseburg Jim Amandus Dick Ralson Zanetta Fontes Lloyd Hoshide #63681 12415-7 1 D4X01!.DOC ■ H I L L I S C L A R K MARTIN & P E T E R S O N ■ AFFIDAVIT OF PUBLICATION Kristina Thompson, being first duly sworn on oath states that he/she is the Legal Clerk of the SOUTH T COUNTY JOURNAL COl�1�11 1 NOTICE OF APPEAL HEARING 600 S. Washington Avenue, Kent, Washington 98032 RENTON HEARING EXAMINER gt �t RENTON,WASHINGTON An Appeal Hearing will be held by the Ra dailynewspaper seven (7) times a week. Said newspaper is a le al meetingeton Hearing Examiner at his regular publishedg in the Council Chambers on the newspaper of general publication and is now and has been for more than six months second floor of City Hall, Renton, prior to the date of publication, referred to, printed and published in the English language Washington, on May 20, 1997 at 9:00 AM continuallytoas a dailynewspaper in Kent, KingCounty, Washington. The South CountyHIGHLANDS consider the Ofollowing petitions: CHURCH g COMMUNITY CHURCH Journal has been approved as a legal newspaper by order of the Superior Court of the AAD-97-033 State of Washington for King County. The appellant, Highlands Community Church,appeals the issuance of a determi- The notice in the exact form attached, was published in the South County nation of significance (DS) by the City of Journal (and not in supplemental form)which was regularly distributed to the subscribers Renton for the Highlands Community durings the below statedperiod. The annexed notice, a Churchmmity project Church(L proposes expansion). Higsion of Community proposes of parking area for 516 vehicles, construction Notice of Appeal Hearing of sanctuary for total seating capacity of 2,500 people, and remodeling of existing facility to accommodate a chapel area and office space. Applicant wishes to reserve as published on: 5/9/97 the ability to use this facility for educational purposes. Applicant also requests a var- The full amount of the fee charged for said foregoing publication is the sum of$33.69 iance in order to construct a cross on the Legal Number 3002 sanctuary which would extend six feet over % the height of the building at a total eleva- lion of 51 ft. The appellant alleges that the DS was issued in violation of SEPA. Location:3031 NE 10th St. „) Legal descriptions of the files noted L'�gal Clerk's t Count Journal above are on file in the Development Services Division, Third Floor, Municipal ,/ Building, Renton.All interested persons to n I Subscribed and sworn before me on this l� day of , 19 q7 said petitions are invited to be present atthe Public Hearing. Published in the South County Journal May 9, 1997.3002 .....ewtok,‘ ______Lajjjji—r---Y1'A %.Rakii•cd. ,;.`Z`..�SsiOrk.„i/p to Notary Public of the State of Washington /�°�40�� 6.�;u'7, residing in Renton i* N 0 T A R y c' 0 King County, Washington :* / u'.OP� ., , ,G ;. ,i 'V,' D •; <•O• i +1�+,F,•0 2`1.•�'\C�� ,N ;:SN P AFFIDAVIT OF SERVICE BY MAILING STATE OF WASHINGTON ) ss. County of King ) MARILYN MOSES ,being first duly sworn,upon oath, deposes and states: That on the 17th day of June, ,1997, affiant deposited in the mail of the United States a sealed envelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. Signature: --7 " ` SUBSCRIBED AND SWORN to before me this - day of , 1997. cAlcotarybl' ancf the State of Washington, residing at � ,therein. Application,Petition, or Case No.: Highlands Community Church Appeal of ERC's DNS LUA97-033,AAD The Decision or Recommendation contains a complete list of the Parties of Record June 17, 1997 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANT: Highlands Community Church File No.: LUA97-033,AAD LOCATION: 3031 NE 10th Street SUMMARY OF APPEAL: Appeal of ERC's Determination of Significance PUBLIC HEARING: After reviewing the Appellant's written request for a hearing and examining the available information on file,the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the May 20, 1997 hearing. The official record is recorded on tape. The hearing opened on Tuesday,May 20, 1997, at 9:05 a.m. in the Council Chambers on the second floor of the Renton Municipal Building. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the appeal, Exhibit No.2: LUA-96-134,CU yellow file(by proof of posting and publication,and other reference) documentation pertinent to the appeal. Exhibit No.3: Video tape by Scott Kaseburg dated Exhibit No.4: Resume of David Markley April 27, 1997 Parties are: Representing the Appellant George Kresovich Hillis Clark Martin&Peterson 1221 Second Avenue,#500 Seattle,WA 98101-2925 Representing the City of Renton Zanetta Fontes City Attorney 200 Mill Avenue South Renton,WA 98055 Highlands Community Church Appeal of Determination of Significance File No.;LUA97-033,AAD June 17, 1997 Page 2 The Examiner explained that the hearing was an administrative appeal held pursuant to Ordinances 3060,3071 and 4065,and was the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for reconsideration if the parties are not satisfied with the decision. The appeal by writ of review is;to Superior Court. He stated that the appellant had the burden of demonstrating that the City's action was erroneous, and would have to show clear and convincing evidence that the City's determination was incorrect. At that point the City could respond, if they chose to do so. Mr.Kresovich stated that this is an unusual matter because of the nature of the appellant,a religious organization, and this case presents a question of the limits of the police power in terms of land use regulation when it comes into conflict with the rights to free exercise of religion as guaranteed both by the Washington State Constitution and the Federal Constitution. In addition,the City's decision is not sustainable in that the SEPA process imposed is a burden. Once it has been demonstrated that there is a burden in going through the process of environmental review,the burden of persuasion then falls to the City. The City must demonstrate that it is serving a compelling State interest and that it has chosen the least restrictive means possible of fulfilling that compelling State interest. Jim Amandus,2715 Cedar Avenue S,Renton, Washington 98055, stated that he is the senior pastor of Highlands Community Church(HCC)and described his duties and responsibilities. HCC currently has approximately 1,800 to 2,000 adults,teenagers and children attending any one of three different worship services on Sunday morning. It is projected that with a growth rate of 10 percent per year there will be 1500 adults attending in five years and 2,350 in 10 years. To accommodate the current growth rate a fourth service is planned by the fall of 1998. With expanded facilities,only two services would be needed. He described the three planned phases for expansion. The first one would be to expand parking,the second to build a new sanctuary with a seating capacity of 1,500,and the third to expand that structure with a balcony addition of 1000 seats. If permitted the parking expansion would begin immediately,to be followed by the other two phases when sufficient funds were raised. Construction of the second phase is projected to be in 5 to 7 years, followed by the balcony expansion. The parking expansion would not begin without the second two phases also being approved at this time. Rev. Amandus described the fundraising efforts for these projects,the amount of money needed and the time expected to do so. The issue of the parking problem and HCC's efforts to mitigate were discussed, including satellite parking, additional onsite parking and walk-on or nearby parking. HCC has hired a church business administrator to develop a shuttle or satellite parking system. Ms.Fontes questioned Rev.Amandus regarding staffmg at HCC and he explained the roles of the eight full and part time pastoral`staff members. He also described the ministries of the church, including children's programs. He stated that HCC celebrated its 50th anniversary two years ago and that it is committed to work alongside the school district and community organizations to make a difference in the City. Responding to questioning by Ms. Fontes,he explained that the parking has always been phase one and is tied to expansion of the sanctuary, even though it was not specifically stated in correspondence from Kurt Willis or to Mr.Pywell. Regarding their traffic mitigation plan,he stated that it calls for satellite parking but does not identify specific locations. In the past HCC has used the Employment Center, Safeway,Renton Technical College and a strip mall nearby. Scott Kaseburg, 14515 SE 139th Place,Renton,Washington 98059, spoke on behalf of HCC and stated he is currently serving as chairman of the Board of Elders,which is the governing entity for the church. He detailed the Board's role regarding this expansion, stating they had spent approximately$45,000 to prepare the traffic analysis,the legal analysis,to do architect and engineering studies, all the preparation that has happened to this Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 3 point. Based on their previous experience they looked at a number of different options of expansion and decided that they did not want to start with one piece of any future plan unless they had the whole plan well in order and well coordinated. The church's property is divided into two parcels--the one parcel where the bulk of the church's existing facilities is zoned residential;the balance of the property acquired in 1978 is where the parking and the new sanctuary would be constructed and is zoned CS. (At this point a videotape of the vicinity taken on Sunday morning,April 27, 1997,was shown and Mr.Kaseburg narrated.) Mr.Kaseburg explained that HCC had made efforts to be good neighbors and continued to ask the members to not park in certain residential locations. With respect to parking mitigation,Mr.Kaseburg stated they had commissioned a traffic study and had met with various City officials regarding this situation to best resolve it. To lessen the impacts in the neighborhood,HCC proposed a plan that would utilize satellite parking,thus giving a minimum of 1,066 parking spaces including what is provided on site. There are many different options for satellite or walk-on prking,but because of the time frame there is no way to gain agreements at this time. The parking mitigation plan would be submitted to the City for its review and approval before the construction of the new sanctuary. Hg also gave a historical perspective on the acquisition and purpose of HCC at this particular location. He reiterated that through this whole planning process the three phases have never been considered in isolation,but always as a unit. Responding to cross-examination,Mr. Kaseburg stated that HCC would provide 1,066 total parking spaces, more than double what the code called for,but they were unable at this time to commit to any specific location in their traffic mitigation plan. David Markley,Transportation Solutions,Inc., 16310 NE 80th,#100,Redmond,Washington 98052, spoke on behalf of the appellant and gave a summary of his experience in the traffic analysis area. He stated that he had done a traffic impact analysis for HCC and that in terms of level of information and detail it would be essentially the same as one prepared for inclusion in an EIS. He stated that based on the analysis that was priepared for the proposed expansion,the level of service at all intersections would be a level of service C or better,and in the future with or without the project the letter grade level of service was not forecast to change from what exists today. The focus was the highest peak volume period on Sunday,recognizing that would be thle time that impacts would be perceived by the community as being the most significant and most impacting on their neighborhood. With regard to the parking situation,the spaces on site were counted as well as the other off-street but adjacent parking spaces that have been made available to the church at different times. Then the on-street parking,both adjacent to and away from the church site was identified to give the number of available spaces that exist on a Sunday morning prior to activities at the church initiating early in the morning. Mr.Markley detailed how parking demand is determined for an institutional use. Based on his analysis of HCC's proposed expansion,he concluded that even with the expansion to parking onsite there would be some parking spill-over onto the streets. That would extend into an area that ultimately could take up parking as far as a three block radius,but would be spilling over into vacant spaces. The traffic impacts would occur principally on Sunday mornings. As a traffic mitigation,a shuttle system was proposed that would be an extension of the existing transit shuttle operation that the church currently operates to reduce the extent of par king.spill-over into the neighborhoods. It was Mr.Markley's professional opinion that the expanded parking facility and the use of one or more satellite parking areas providing a minimum of 1,066 on and off site parking spaces would be effective to mitigate the parking impacts. He also suggested that the entryway of the proposed sanctuary on the southwest corner of the site would orient traffic toward the parking lot and toward areas to the south and to the west. Also discussed was a parking restriction program that permits parking to be available for residents or for the affected adjacent users as a group and restricts that parking to being available Highlands Community Church Appeal of Determination of Significance Fle No.: LUA97-033,AAD June 17, 1997 Page 4 fol'r the impacting use. Often those are referred to as residential parking zones and they can be around large facilities like stadiums or smaller community facilities like hospitals. Ms.Fontes asked about a permit zone on the streets nearby and Mr.Markley stated that typically those programs are initiated and sponsored initially by the applicant. If they create the impact those signs and the establishment of the program are supported by the institution that is creating the need. It would also necessitate thepeople living in the area having to get permits so that they can park in the area. Regarding the shuttle program,he responded that the exact nature of the program was not defined because it is premature at this point as the specific locations of the offsite parking have not been established. Mark Pywell,Project Manager,Development Services,City of Renton,200 Mill Avenue South,Renton, Washington 98055,reviewed his work experience with the City of Renton and his prior contacts with HCC. Responding to Mr.Kresovich,Mr.Pywell could not recall any specifics that HCC was willing to develop mitigation conditions sufficient to obtain a mitigated DNS so they could proceed to a hearing without the p separation of an EIS,but assumed that to be the case. The threshold determination process as well as the timing for each aspect was reviewed. Regarding the parking impacts,Mr.Pywell stated that the City had granted HCC a deviation for more parking than the code allowed,because of the phased nature of the proposal. Responding to Ms. Fontes,he stated that the funding mechanism and its timing for this project was not conveyed to him by the applicant. The phased nature of this project and its relationship to a master plan and/or conditional use permit process was discussed. Mr.Kresovich asked if a 60,000 square foot Fred Meyer store would be an outright permitted use on the CS zoned parcel,and Mr.Pywell responded that it would be,but would also require environmental review. Regarding the parking satellite system,Mr.Pywell stated there were no specific locations proposed nor specific bus routes identified. HCC had stated they did not believe it would be useful for them to do it at this time,but they would be presented to the City prior to the issuance of building permits for the additional use. Jana Huerter,Land Use Review Supervisor,Development Services,City of Renton,200 Mill Avenue South, Renton,Washington 98055 reviewed her work experience with the City of Renton. She detailed the EIS application process employed by the City,particularly with regard to timing and cost. She stated that this process will cost the applicant whatever it costs to do what the City determines is necessary to comply with the requirements of SEPA and will take however long it takes to complete. The applicant has the option of not going through the EIS process and not doing the project. Regarding proposed mitigation for subsequent phases of a project, if the City was not satisfied that the impacts had been adequately identified or mitigated,it could deny the project. Responding to Ms.Fontes,Ms.Huerter stated that she was not aware that the parking was dependent upon the remainder of the project being approved,nor that it was connected with a fund-raising plan that would take years. Gregg Zimmerman,Administrator,Planning/Building/Public Works Department,City of Renton,200 Mill Avenue South,Renton,Washington 98055,reviewed his work experience with the City of Renton. He stated that as a member of the ERC he participated in the review of the threshold determination for the proposed expansion,and that the chief concern of the ERC was the impacts associated with parking in the adjacent residential neighborhood. He indicated that the DS was issued because the ERC felt that although the Highlands Community Church Appeal of Determination of Significance Fide No.: LUA97-033,AAD June 17, 1997 Page 5 conditions had been well identified,the steps that would be taken to mitigate the particular conditions had not been. Although HCC had proposed measures that described the parameters for a parking mitigation program, Mr.Zimmerman felt since the ERC was being called upon to make an environmental determination of significance or non-significance on a three-phased CUP,there needed to be a particular and detailed level of disclosure. The Examiner asked if the City had a third option as the applicant claimed an EIS would not be able to give the City any more information at this point in time. Mr. Kresovich responded that the City had a third option which was to say this is a phased project on which review and decisions could occur at each phase as sufficient information is available. The City would then have the opportunity to review that information and take appropriate action. Regarding alternative methods of avoiding parking impacts in residential neighborhoods,Mr.Zimmerman stated that the City has other options such as posting signs prohibiting parking or issuing residential parking permits. However,these measures would create different impacts which would also need to be evaluated. Ili response to Ms.Fontes' questions regarding environmental impacts,Mr.Zimmerman stated that there are several issues. Not only traffic and parking but also light,noise, glare,pedestrian and bicyclist safety and degradation of quality of life must be evaluated. He further stated that as a decision-making body,the ERC has numerous choices when there is insufficient information to make a decision. However,when making these determinations,the ERC uses the best possible judgment based on the information at hand. Closing arguments were then presented by Mr.Kresovich and Ms.Fontes, and their comments reiterated their previous statements. The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The hearing closed at 4:35 p.m. FINDINGS,CONCLUSIONS &DECISION Having reviewed the record in this matter,the Examiner now makes and enters the following: 7NDINGS: 1: The appellant,Highlands Community Church,filed an appeal of a Determination of Significance(DS) issued for a proposed Conditional Use Permit. Highlands Community Church(hereinafter appellant)is also the applicant for the underlying Conditional Use Permit. The appeal was filed in a timely manner on March 14, 1997. The subject proposal was subjected to the City's ordinary SEPA review process. The City, in the course of and as a result of its SEPA review, issued a DS for the project. During the review process the City determined that certain conditions proposed as mitigation by the appellant were not sufficiently described and asked for additional information. Apparently,that additional information was not provided as requested and the City issued the DS herein appealed. The appellant objected to the determination and filed this appeal. 2. The underlying proposal,the Conditional Use Permit,would allow phased development of the appellant's site. Phase 1 would allow the appellant to expand its on-site parking lot from 321 stalls to 516 stalls. It would be developed as soon as practical after the permit was approved. The intent of this Highlands Community Church Appeal of Determination of Significance Fine No.: LUA97-033,AAD June 17, 1997 Page 6 phase would be both to reduce the on-street parking which has disturbed neighbors of the existing church and to be prepared with additional parking when the sanctuary is erected(Phase 2). 3. The second phase would create a new sanctuary area with seating for approximately 1,500 parishioners. It would be developed between five and seven years from now. Its development ultimately depends on fund-raising,planning and design, and construction. 4. The final,third phase,would potentially add a balcony with seating for an approximately additional 1,000 parishioners. It would be constructed in approximately ten years if the congregation continues to grow. 5. The church conducts three worship services on Sunday morning attended by approximately 900 to 1,000 adults and up to 2,000 participants when including younger children and teenagers. 6. They have been experiencing an approximately 10%(ten percent)growth rate per year. They anticipate approximately 1,500 adults in 5 years and 2,350 in 10 years. 7. In order to accommodate this large number of participants,the church has three worship services. It anticipates that it will need to create a fourth service to accommodate its growing membership. 8. The church believes that one of its principles is"community" and working together. The division of the congregation into separate services is counter to that goal. In addition, it uses volunteers for some of its support systems and they are taxed by having to repeat their roles over three and possibly a fourth service. Similarly,the senior pastor preaches at all of the services and it strains him to have to reprise his service multiple times. 9. With the expansion,the church will probably move to two services. 10. The church hierarchy has indicated that it would not consider building the new parking lot if it believed that the sanctuary expansion might not be permitted by the City or if they could not fund the new sanctuary. 11. The church recognizes the parking impacts of its congregation on the neighborhood which is a major reason that the parking lot expansion was proposed as its first phase of expansion. This recognition led them to propose the satellite/shuttle mitigation measure. The church realizes that the expanded facility cannot accommodate the parking needs of the potential congregation with its on-site parking. Even coupled with on-street parking,there probably would be insufficient parking. 12. The church has notified it congregants about the parking concerns of the neighbors along Kirkland and along 10th. It has asked its members to park in the lot or further away than the immediately adjacent streets. 13. The church has informal arrangements with some surrounding businesses and uses to allow parking on their properties. 14. The church will be hiring a new person who will be in charge of the shuttle parking. This person has managed a similar program elsewhere. This person will also be part of the pastoral staff and has made a commitment to remain with the church for up to seven years. Highlands Community Church • Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 7 15. Children's programs are offered on Sunday mornings and Wednesday nights. Generally,the children do not attend the ordinary services. This will probably not change even with the expansion. 16. The church does not offer regular K-12 education and does not expect to offer any outside of its current educational programs on Sundays and Wednesdays. 17. The church has a tenet that it is to communicate God to the general population,and therefore its facility would serve that purpose. In order to carry out that purpose they would build as large or as tall a structure as necessary to accommodate the congregation. 18. The church property straddles two zoning districts. Most of the existing complex is located on residentially zoned property while the proposed sanctuary expansion would be located on the portion of the property zoned for commercial uses. 19. A videotape of the surrounding neighborhood on a Sunday morning would appear to demonstrate that during that particular day,there were not very many cars parked along surrounding or nearby streets. The record does not reflect whether this is a typical Sunday or whether an effort was made to contain parking on this particular day. 20. A residential parking permit system would require the City to administer the program,police the program and would require residents to apply for permits and deal with their legitimate guests'needs for parking in a restricted zone. 21. The appellant has not actually done much of a review of a parking structure or garage as their initial review indicated that it would be very costly and they know the difficulty it takes to raise money for even a sanctuary,having raised money for the current facility. The thought of dedicating all that money for vehicle parking seemed inappropriate. 22. The proposed on-site parking would be for 516 vehicles. For a 2,500 seat sanctuary, 500 parking stalls would be required. The Parking and Loading Ordinance requires parking for the complex in a ratio of 1:5 (one to five)for approximately 500 stalls for a seating capacity of 2,500. There are currently 321 stalls. Under a mixed use analysis there was once an estimate of the gymnasium, classrooms and sanctuary for approximately 800 stalls. The applicant proposes expanding the parking lot from 321 spaces to 516 spaces on-site and providing satellite parking with shuttle service for an additional 550 vehicles for a total parking of 1,066 parking space. 23. The appellant was informed that increasing the capacity of its existing parking lot would require a deviation as the Code sets both a minimum and maximum number of permitted stalls. The maximum is set for a number of reasons: to discourage single occupancy vehicles,to minimize impervious surface and to enhance overall landscaping. The appellant's proposed division of the project into phases would mean that expanding the parking lot prior to the increased sanctuary capacity would violate the requirements of code. 24. The church applied for and has apparently received City approval of a deviation from the normal parking requirements of the City. This will accommodate more parking than would otherwise be permitted for this type and size of facility. 25. The traffic analysis done for the project and submitted to the ERC is supposedly much the same document that its preparer would have developed for a full EIS. Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 8 26. The Level of Service(LOS)for all intersections would be C or better. This would not change with or without the project in the future. This review was based on a major impact on Sunday. That was the day that was particularly analyzed with the morning service period reviewed. 27. The other area studied was parking as that had been identified as an area of neighborhood concern. The studies of parking demand were made last July. That was admitted to be a period of somewhat reduced attendance. The numbers were actually reviewed against attendance records and the numbers were adjusted for normal attendance figures. The major parking and general traffic impacts would occur on most Sundays and approximately 10 other days corresponding with major religious holidays and some special events. In any event,there would be spillover parking onto the nearby streets within a three block radius of the subject site if other measures were not employed to redirect that use. 28. Satellite parking lots and shuttle use depend on having a target group and a way to encourage that group to use the alternative means. The church congregation could be such a group. The appellant's traffic engineer anticipates that this arrangement would substantially reduce parking spillover onto the neighboring streets. 29. The expanded facility would reorient the entrance and change the focus or"centroid" from the northeast corner of the site to the southwest,and therefore to the new expanded parking area. This would also encourage the desirable behavior of congregants parking in the lot and not on the street where the older entrance was more accessible. 30. There was no analysis of light, glare or noise related to traffic generated by the current facility or proposed expansion. 31. Analogies were drawn between the expanded sanctuary and a possible Fred Meyer store. The zoning, CS,would permit a store up to 65,000 square feet. Such a store would undergo a Site Plan Review process but would not require Conditional Use Permit approval. It appears that in adopting the Zoning Code and the Comprehensive Plan such uses and their general impacts and parking requirements were explored during the SEPA process for the adoption of those documents. Parking for such retail uses are generally required on-site;any off-site component would have to be within a certain distance of the site and receive Administrator approval. Available street parking could not be used as part of any required parking. 32. One reason that the ERC issued the DS was that while the conditions were well identified,the steps that would be taken to mitigate the conditions were not well identified. It was sufficiently lacking in specificity that it would be impossible to ascertain the level of environmental impact. The location of any satellite parking and routes to access those could also have environmental impacts that need assessment.25. The applicant proposes expanding the parking lot from 321 spaces to 516 spaces on- site and providing satellite parking with shuttle service for an additional 550 vehicles for a total parking of 1,066 parking space. 33. Some of the additional impacts that concerned the ERC are pedestrian safety,bicyclist safety and degradation of quality of life. 34. The appellant estimates that the expansion project will cost approximately Five Million Dollars. 35. The appellant admits that the City is not attempting to dictate or influence church beliefs. Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 9 36. The appellant proposed the following mitigation measures: "1. Parking. At the time that Highlands Community Church applies to the City of Renton for the construction permits needed to build the new sanctuary,the Church shall submit for the City's review and approval a Parking Impact Mitigation Plan designed to lessen the impacts of increased parking demand by church members on the surrounding residential area. The Church may propose the use of a satellite parking facility with shuttle buses. If the Church develops a satellite parking plan that,taken together with the Church's on-site parking facilities,provides a minimum of 1,066 parking spaces,that plan will be deemed adequate by the City to mitigate the potential impacts associated with the increased parking demand generated by the new sanctuary. If the Church proposes a different method of mitigating parking impacts,the City retains full authority to review and accept or reject the proposed mitigation plan in compliance with applicable law. "2. Establishment of a General Education School. There is no proposal now before the City of Renton to use the facilities of Highlands Church for general purpose,non- religious education. Therefore,there is no information on which to make a meaningful environmental review of such a use. In the event that the Church proposes to institute such a use in the future,the City retains the right to review the environmental impacts associated with such a use prior to the establishment of that use in compliance with applicable law." CONCLUSIONS: 1. The decision of the governmental agency acting as the responsible official is entitled to substantial weight. Therefore,the determination of the Environmental Review Committee(ERC),the City's responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the determination was in error. 2. The Determination of Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v. Port Townsend, 93 Wn.2nd 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v.King County Council, 87 Wn.2d 267,274; 1976, stated: "A finding is'clearly erroneous'when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." 3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have,therefore,made it easier to reverse a DNS. 4 A second test,the "arbitrary and capricious"test is generally applied when a Determination of Significance(DS) is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason. A DS is considered more protective of the environment since it results in the preparation of a full disclosure document, an Environmental Impact Statement. Therefore,the burden of overturning a decision requiring an EIS is harder and subject to the "arbitrary and capricious"test. Highlands Community Church Appeal of Determination of Significance Fie No.: LUA97-033,AAD June 17, 1997 Page 10 Therefore,the determination of the ERC requiring the preparation of an EIS will not be modified or reversed unless it can be shown that the decision clearly is unreasonable. For reasons enumerated below,the decision of the ERC is affirmed. 5. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway, at 278). Since the Court spoke in Norway,WAC 197-11-794 has been adopted. It defines "significant" as follows: Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity.... Intensity depends on the magnitude and duration of an impact. . .The severity of the impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great,but the resulting environmental impact would be severe if it occurred. 6 Also redefined since the Norway decision was the term "probable." Probable. "Probable"means likely or reasonably likely to occur.... Probable is used to distinguish likely impacts from those that merely have a possibility of occurring,but are remote or speculative. (WAC 197-11-782) 7. The phased nature of the project and the extended timeline proposed apparently have complicated the review. The City determined that the project,particularly its parking and traffic,were the main areas of environmental concern. A DS was proposed and the appellant proposed one condition directly related to the parking issue. The appellant suggested creating a satellite parking system with shuttle buses to bring its congregation to services and reduce traffic and its inherent impacts, such as noise, light, glare and air pollution. The City requested more specific information regarding where these "off premise" satellite lots would be located and how they would function. The appellant's response was that there were no definite plans addressing these specifics at this point as it was premature. 8! The City determined that without this information they could not conclude the environmental assessment and issued the final DS requiring an EIS. Under SEPA the City may request additional information or studies. It would appear that if the reviewing agency cannot get the information it requires it must issue a DS. It does not appear that a reviewing agency must be compelled to accept a potentially vague mitigation measure when doing its SEPA review. 9. It is clear that the appellant was fully coupling its phased expansion and would not go ahead with its parking lot expansion(Phase 1) if there were any chance further phases might be denied. Therefore, delaying until later phases a SEPA determination on how satellite parking would work and whom or what it might affect does not appear workable. The appellant has emphasized that the City would still have SEPA review when the appellant actually applied for the building permit for the new sanctuary (assuming that the three-phased project receives Conditional Use Approval). The appellant alleges that the City would still have conditioning authority if the proposed satellite parking plan did not work out. That is,the City could still potentially rule that the mitigation would be insufficient,thereby thwarting expansion plans. Therefore,the appellant is admitting that the parking lot could be constructed and yet the sanctuary might not become a reality contrary to their stated aims. Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 11 10. The City under the appellant's prescription would approve the proposed satellite mitigation as acceptable enough to allow the Conditional Use for all three phases but reserve the right to review that satellite parking plan and potentially,therefore,reject it when its details would be spelled out in say five or six years. Leaving what? An expanded parking lot which would not have been built if the sanctuary were not built because the proposed satellite parking mitigation measure was then found to be unworkable or environmentally detrimental in its own right. 11. The appellant also maintains that even an EIS would not provide the City with more timely or thorough information. They also claim that they still will not be able to provide any additional specificity as to where or how large or how many satellite parking lots would be provided. Therefore,the appellant claims that no purpose would be served by preparing an EIS. This claim cannot be determined. Although it does appear that nothing might be gained regarding the location or functioning of the satellite parking lots and shuttle system,the City has already noted that while there was a thorough traffic analysis,there was no analysis of the secondary impacts of traffic and parking,that is,the noise, light,glare, air pollution,pedestrian,vehicular and bicycle safety. 12. It appears that now is the right time to make the full SEPA determination or the appellant could optionally uncouple its proposal and phasing. The City's claim that it does not have sufficient information appears reasonable. 13. This agency should not substitute its judgment in this matter,particularly when all of the information requested by the ERC was not made available. The reviewing body should not substitute its judgment for that of the original body with expertise in the matter,unless the reviewing body has the firm conviction that a mistake has been made. No such conviction results from hearing this case. Therefore,the determination below must be affirmed. 14. Setting aside the constitutional issues for the moment,the ERC's decision requiring an EIS should be upheld as the determination of the ERC was certainly not arbitrary and capricious. It does not fly in the face of reason. 15. Having determined apart from constitutional considerations that the ERC determination should be affirmed,this office must now address whether the appellant's constitutional claims should bar the application of the SEPA process to the subject proposal. While this office is reluctant to render a decision which may have an affect on the appellant's congregants' free exercise of religion,this office must conclude that the City's SEPA process should be applied to the subject proposal until a court clearly enunciates that SEPA is inapplicable to church proposals such as is presented in this case. It appears that unless otherwise directed,that the City's obligation to protect the environment and particularly one that has closely affected the adjacent neighbor is a compelling state interest on a par with the appellant's interests in this case. Under the facts of this case it does not appear that the City's application of SEPA or the requirement that the appellant prepare an EIS will unreasonably interfere with the appellant's free exercise. The City is not acting merely as an agent which might thwart the appellant's expansion plans even passively. The City is acting to preserve the sanctity of single family homes that lie close to the church. They are attempting to make sure that the expansion does not improperly erode the quality of life that the City is empowered to also protect. 16. It would appear that the City is left in an untenable position. If it determines that the church should be immune or exempt or less stringently reviewed under SEPA or to find the so-called "flex in the joints," it leaves its other constituents,the appellant's neighbors,without the proper environmental protection they would have if a large warehouse, shopping complex or multiplex movie theater were to be proposed in this location by other applicants. Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 12 17. The appellant alleges that the City's determination impermissibly interferes or will interfere with the practice of its religious tenets. The appellant speculates that in the sometimes complex and time- consuming EIS preparation process the City could keep asking for more information and impede the issuance of a final document. The applicant's speculation is just that, speculation. There is no reason to attribute such behavior to the City. The appellant also argued that the process could prove to be too costly. They did not necessarily object to any initial costs but that overall it might be too costly. The appellant indicated that the process could be time-consuming and that it might delay their project and that would interfere with their religious practices. Other than the appellant's desire to go ahead with the development of the expanded parking lot which has no religious attachment,their other plans are not scheduled to proceed for approximately 5 to 8 years from now. The appellant indicated that the parking lot expansion was aimed primarily at accommodating its neighbors who complain about the impacts of the proposal. Five to eight years or even two to three years if everything were speeded up would appear to allow the preparation of an EIS without interfering with religious practice. It would not seem that the preparation of an EIS would unreasonably interfere with the major worship-related aspects of the proposal. 18. There is no reason to suspect that the applicant is being singled out for a time-consuming process and that its costs would be unreasonable or different from those on other projects of like size or impacts. As a matter of fact it appears that the City has already narrowed the focus to traffic impacts and related impacts such as noise and glare. There has to be some expectation of a good faith execution and review of the entire SEPA process. Clearly,the SEPA process could be abused,but presuming that is unreasonable at this time. Similarly,one could speculate that the appellant could engage in bad faith and ignore both environmental problems and neighbors'rights and severely create adverse impacts. No such presumptions should be entertained. 19. A number of cases were cited by both sides to give sway to their respective positions(citations omitted). Clearly no case is directly on point. None of the cases deals directly with the rights of non- related third parties who might directly be affected by the appellant's actions. In each of the cited cases the impacts, if any,to outside third parties were indirect. While even life safety was an issue in one case, it was generally that of the congregants,that is the church's own membership, in the main that would have been protected. None of the cases cited demonstrates involvement with third party rights if one ignores the aesthetic or cultural interests of historic preservation. None were as direct as the potential impacts on the third party neighbors the City appears to be considering in this instant case. Where building regulations were an issue one could presume it primarily affected the church membership,whereas here we have non-members who have a right to have the City protect their environmental rights. 20. Is there a less intrusive way to allow this proposal to move ahead? Well,either it is or is not subject to the SEPA review process. How can the City determine the appropriate measures if the impacts are not appropriately defined? What besides the identified parking and traffic impacts are still undetermined? Glare, light,noise are still unresolved. In addition,which neighborhoods might be affected by satellite parking and shuttle vans? These things are still unanswered. SEPA is intended to learn the answers to these questions. The appellant did not provide the information. Is there a less intrusive way of getting this information? It does not appear that the City can get this information on its own. It is entirely within the purview of the appellant. The proposal for a parking permit system might be less intrusive for the appellants,but it certainly has the potential for affecting everyone else who lives or works in the area. Such a system might itself need environmental determination, and since it would be generated by the church's expansion, it could be considered an environmental impact of that expansion. It appears Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 13 the City has explored the less intrusive methods and reasonably concluded that its decision was appropriate. It appears it is appropriate. 21. If the City cannot enforce its SEPA regulations,then who or what entity can protect the environmental rights of the appellant's neighbors? It seems unreasonable that neighbors forfeit their environmental I protections because they are located adjacent to a church, and therefore government cannot protect them in such a situation. Clearly,this case requires a delicate balancing and the good faith application of the City's SEPA regulation so that the rights of the neighbors are protected,but also that there is not unreasonable infringement in the appellant's free exercise rights. 22. In conclusion,the determination of the ERC will be affirmed in accordance with the City's SEPA procedures and as a minimal intrusion into the appellant's right to freely exercise their religion. DECISION: The determination of the Environmental Review Committee is affirmed and the appeal is denied. ORDERED THIS 17th day of June, 1997. FRED J. MAN HEARING MINER TRANSMITTED THIS 17th day of June, 1997 to the parties of record: Jim Amandus Scott Kaseburg David Markley 2715 Cedar Avenue S 14515 SE 139th Place 16310 NE 80th,#100 Renton,WA 98055 Renton,WA 98059 Redmond,WA 98052 Mark Pywell Jana Huerter Gregg Zimmerman 200 Mill Avenue S 200 Mill Avenue S 200 Mill Avenue S Renton,WA 98055 Renton,WA 98055 Renton, WA 98055 George Kresovich Zanetta Fontes Highlands Community Church 1221 Second Avenue,#500 200 Mill Avenue S 3031 NE 10th SIeattle,WA 98101-2925 Renton,WA 98055 Renton, WA 98056 R. W.Ralston C. W.Richardson Rod and Joyce Seltveit 14221 West Lake Kathleen Dr. SE 837 Index Court NE 3204 NE 7th Renton,WA 98059 Renton,WA 98056 Renton,WA 98056 Christine J. Wren Penny Eskenazi Cornelius Gevers 840 Index Court NE 951 Lynnwood Avenue NE 900 Kirkland Avenue NE Renton,WA 98056 Renton,WA 98056 Renton, WA 98056 Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 14 Jack and Betty Cowan George McKay William Flynn 905 Lynnwood Avenue NE 904 Kirkland Avenue NE 911 Lynnwood Avenue NE Renton,WA 98056 Renton, WA 98056 Renton,WA 98056 Lloyd Hoshide Gary Hyatt Patricia Lewis 833 Kirkland Avenue NE 2725 NE Sunset Boulevard 929 Kirkland Avenue NE Renton,Wa 98056 Renton,WA 98056 Renton, WA 98056 Francis Schwartz Dwight Peterson Jim and Barbara Sather 1066 Lynnwood Avenue NE 3009 NE 9th Street 3112 NE 10th Renton,WA 98056 Renton,WA 98056 Renton, WA 98056 John and Karen Austin Delores Rohlman Lena Knight Jim Austin 804 Lynnwood Avenue NE 1022 Lynnwood Avenue NE 851 Jefferson Avenue NE Renton,WA 98056 Renton,WA 98056 Renton,WA 98056 Sandra Rolley Roald Nelson Peggy Kindopp 1058 Kirkland Avenue NE 839 Kirkland Avenue NE 840 Index Court NE Renton,WA 98056 Renton,WA 98056 Renton,WA 98056 Evangeline Noland Kenneth R. Taylor James and Linda St.John 1016 Kirkland Avenue NE P.O.Box 2185 1010 Kirkland Avenue NE Renton,WA 98056 Renton,WA 98056-0185 Renton,WA 98056 Luella Lucker 833 Lynnwood Avenue NE Renton,WA 98056 TRANSMITTED THIS 17th day of June, 1997 to the following: Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Administrator Members,Renton Planning Commission Jim Hanson,Development Services Director Art Larson,Fire Marshal Mike Kattermann,Technical Services Director Lawrence J. Warren,City Attorney Larry Meckling,Building Official Transportation Systems Division Jay Covington,Mayor's Executive Assistant Utilities.System Division Councilperson Kathy Keolker-Wheeler South County Journal Pursuant to Title IV,Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m..July 1, 1997. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure,errors of law or fact,error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant,and the Examiner may, after review of the record,take further action as he deems proper. Highlands Community Church Appeal of Determination of Significance File No.: LUA97-033,AAD June 17, 1997 Page 15 Appeal of the Examiner's decision is governed by Title IV,Chapter 36,Section 1 (Land Use Petition Act), which requires that such appeal be filed with the Superior Court of Washington for King County within twenty-four(24)days from the date of the decision. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use p iocess include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. Law Offices • HILLIS CLARK MARTIN & PETERSON • A Professional Service Corporation [ ODIC 500 Galland Building,1221 Second Avenue � Seattle,Washington 98101-2925 MAY 15 1997 (206)623-1745 Facsimile(206)623-7789 • CITY OF RENTON • May 12, 1997 HEARING EXAMINER • Zanetta Fontes Via Facsimile Warren& Kellogg P.O. Box 626 100 S. 2nd Street Renton, WA 98057 Re: Filing of Hearing Memorandum; Highlands Community Church Appeal of Threshold Determination Dear Zanetta: I have enclosed a copy of the Hearing Memorandum that we have filed with the Renton Hearing Examiner today. As we agreed last week when we postponed the date for filing our hearing memorandum during settlement negotiations, I will expect to receive your hearing memorandum on Monday, May 19th. Very truly yours, • eorrtKresovich • • GAK/seb E-Mail: GAK@hcmp.com cc: Fred J. Kaufman Lloyd Hoshide Jim Amandus Scott Kaseburg Dick Ralston #60857 12415-7 l uYHO1!.DOC • MAY 1 5 1997 II it CITY OF RENTON HEARING EXAMINER 2 3 4 BEFORE THE CITY OF RENTON HEARING EXAMINER s IN THE MATTER OF AN APPEAL OF A 6 DETERMINATION OF SIGNIFICANCE NO. LUA-97-033, AAD 7 DECLARATION OF SERVICE 8 HIGHLANDS COMMUNITY CHURCH, 9 Appellant, 10 vs. 1 1 12 CITY OF RENTON, 13 Respondent. 14 15 I, Susan E. Back, being duly sworn upon oath, depose and say: 16 1. I am an employee of HILLIS CLARK MARTIN&PETERSON, P.S., a United States 17 Citizen, over the age of eighteen years, and am competent to testify to the matter set forth herein. 18 2. On May 12, 1997, I caused the Witness List of Highlands Community Church and the 19 Hearing Memorandum of Highlands Community Church both dated May 12, 1997,to be served via 20 fax,upon the following parties: 21 22 The City of Renton Fax: 255-5474 Zanetta Fontes Tel: 255-8678 23 Warren&Kellogg 24 P.O. Box 626 100 S. 2nd Street 2 Renton, WA 98057 26 27 28 Law Offices WITNESS LIST-Page 1 of ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 �P (206)623-1745 Facsimile(206)623-7789 and by U.S. Mail upon the following party: 2 Lloyd Hoshide 833 Kirkland Avenue N.E. Renton, WA 98056 4 I certify under penalty of perjury under the laws of the State of Washington that the foregoing is 5 6 true and correct. 7 DATED this 12th day of May, 1997. 8 9 �1 10 Su E. Back 1� 12 #60815 12415-7 1@XBO1!.DOC 5/12/97 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 Law Offices WITNESS LIST-Page2of2 ■ HILLIS CLARK MARTIN & PETERSON o A Professional Service Corporation 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 4 te MAY 151991 2 HEARING RENTON MINER 3 BEFORE THE CITY OF RENTON HEARING EXAMINER 5 IN THE MATTER OF AN APPEAL OF A 6 DETERMINATION OF SIGNIFICANCE. NO. LUA-97-033,AAD HIGHLANDS COMMUNITY CHURCH, HEARING MEMORANDUM OF 8 APPELLANT HIGHLANDS 9 Appellant, COMMUNITY CHURCH 10 vs. 11 CITY OF RENTON, 12 13 Respondent. 14 I. INTRODUCTION 15 This is an appeal of a determination of significance issued by the City of Renton in connection 16 with the application of the Highlands Community Church for a conditional use permit. This 17 18 conditional use permit would authorize the Church to proceed with its long-range plans to develop its 19 property within the City of Renton to serve the religious needs of its members. This case raises not only the question of whether the City's decision would be sustainable in the typical context of the 20 environmental review of a land use application, but it also raises important questions concerning the 21 limits of the City's police power to regulate religious activities under the State Environmental Policy 22 Act,RCW ch. 43.21C ("SEPA") and the Renton Environmental Ordinance, Chapter 6, Title IV 23 (Building Regulations) of the Code of General Ordinances of the City of Renton. 24 25 The Church contends that the City's decision that an environmental impact statement("EIS") must be prepared is not supported by the circumstances of this case. However, even if it were found 26 27 that this decision by the City would have been proper in the case of a typical proposal,the Church 28 contends that the City must use a different standard of analysis in making a regulatory decision that Law Offices Hearing Memorandum of Appellant Highlands I:I L L I S C L A R K MARTIN & P E T E R S O N r A Professional Service Corporation Community Church -Page 1 of 12 500 Galland Building,1221 Second Avenue I ISeattle,Washington 98101-2925 ®fig (206)623-1745 Facsimile(206)623-7789 1 directly affects the religious activities of a religious institution. The City has failed entirely to do so in 2 this case and its decision cannot be sustained. 3 II. STATEMENT OF FACTS 4 The Church owns approximately eight acres of property located at 3031 Northeast 10th Street; 5 Renton, Washington. Approximately five acres of the property is designated as Center Suburban(CS), 6 a zoning designation intended to provide suitable environments for district-scaled retail and 7 commercial development. In addition to a wide-range of commercial,residential and institutional uses 8 permitted by right,this zone permits the establishment of churches, synagogues and temples as 9 conditional uses. Section 4-31-10.2(5)(b),Zoning Act of the City of Renton("Zoning Act"). All of 10 the proposed new facilities that would be authorized by the conditional use permit that the Church has 1 applied for are located on the CS portion of the Church's property. The remainder of the Church's 12 property is zoned Residential-8 (R-8) a zoning classification primarily intended for single-family 13 residential use. A church is a allowed as a conditional use in this zoning classification. Section 4-31- 14 5(B)(5), Zoning Act. The bulk of the Church's existing facilities are located on the R-8 portion of the 15 Church's property and have been previously authorized by various conditional use permits. 16 The Church's application anticipates that development of the Church's facilities would take 17 place in three separate phases. The first phase would improve the vacant portion of the Church's 18 property with parking to serve the existing Church facilities. This phase would proceed as soon as the 19 conditional use permit is approved by the City. 20 The second phase of development would be the construction of a new sanctuary with a rated 21 seating capacity of 1,500 persons. This sanctuary would replace the Church's existing sanctuary which 22 has a rated seating capacity of 500 persons. The initial stages of the fundraising campaign for the 23 construction of this new sanctuary would begin as soon as the conditional use permit was issued by the 24 City. The Church anticipates that construction of the new sanctuary would take place within five to 25 seven years following approval of the conditional use permit; however, construction could begin as 26 soon as three years following the issuance of the conditional use permit or as long as 10 years 27 following issuance of the conditional use permit. The start of this phase of development depends upon 28 Law Offices Hearing Memorandum of Appellant Highlands to HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church-Page 2 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 1 the Church's success in raising the funds needed to construct the sanctuary and the Church's rate of 2 growth. 3 The third phase of the Church's master plan would be the expansion of the new sanctuary 4 through the construction of a balcony that would provide additional rated seating capacity of up to 5 1,000 persons. The construction of such a balcony would result in a sanctuary with a total rated seating 6 capacity of 2,500 persons. The Church has no definite schedule for this possible expansion and is not 7 committed at this time to proceeding with such an expansion. Rather,the Church is designing the new 8 sanctuary to accommodate such an expansion as an option for the future. The Church projects that 9 such a decision would not be made for several years following completion of the second phase of its le project. 11 The Church has provided information that is as detailed as possible concerning its future plans. 12 It has established a building footprint and building envelope for the new sanctuary. It has calculated 13 the number of parking spaces that would be provided both in the first phase of development and after 14 the construction of the new sanctuary. It has analyzed the traffic impacts associated with this proposal. 15 This impact analysis paid special attention to the parking impacts of the proposal. Many of the 16 neighbors who are concerned about the Church's proposal submitted detailed comments to the City 17 concerning the existing situation and their concerns over future impacts should the Church proceed 18 with its plans. The City's determination of significance issued in this case is based on the impacts 19 associated with parking in the residential neighborhood adjacent to the Church during Church services 20 on Sunday mornings. 21 The Church has recognized that parking impacts are a major concern of its neighbors. While 22 the Church does not agree that the use of existing, on-street vacant parking spaces within a reasonable 23 walking distance of the Church for a few hours on Sunday mornings is a significant impact for 24 purposes of SEPA,the Church has proposed a condition for mitigating the parking impacts associated 25 with its new sanctuary. A copy of the Church's proposed condition is attached as EXHIBIT A to this 26 Memorandum. Essentially,this condition provides that the Church would prepare a detailed parking 27 28 Law Offices Hearing Memorandum of Appellant Highlands . HILLIS CLARK MARTIN & PETERSON it A Professional Service Corporation Community Church -Page 3 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 1 mitigation plan and submit it to the City for its review and approval prior to issuance of the building 2 permit for the new sanctuary. 3 This proposed parking mitigation plan would be reviewed by the City as part of the 4 environmental review process for the building permit for the new sanctuary. Any conditions 5 established as part of that process would be reviewed by the public and would be subject to 6 administrative and judicial review. The Church indicated its willingness to modify this proposed 7 condition in order to address the City's concerns. The Church consistently informed the City that it 8 desired to reach agreement on conditions providing for the mitigation of the impacts of its proposed 9 development rather than prepare an EIS. The City,without responding to the Church's proposed 10 mitigation measure, issued a determination of significance on March 6, 1997. 11 III. ARGUMENT 12 A. The City's Threshold Determination is Clearly Erroneous. 13 In reviewing a threshold determination,the reviewing body must determine whether the 14 decision is clearly erroneous when viewed in light of the record as a whole. Cougar Mountain 15 Associates v. King County, 111 Wn.2d 742, 747-749, 765 P.2d 264 (1988). To overturn such an 16 administrative determination a reviewing body must be left with a"definite and firm conviction that a 17 mistake has been committed." Id. In this case the City's decision is clearly erroneous because the 18 preparation of an environmental impact statement would prematurely attempt to address an issue that 19 cannot be meaningfully addressed at this time--the adequacy of the parking mitigation measures 20 proposed by the Church. 21 As a practical matter it is impossible for the Church to present a detailed parking mitigation 22 plan until such time as the Church is ready to apply for a building permit for the new sanctuary. A 23 detailed mitigation plan would identify the location of satellite parking areas,the number of parking 24 spaces available for use by the Church,the number of buses or vans that the Church would use to 25 transport congregants to the church,the routes that those buses would take, and the hours that bus 26 service would operate. All of these factors must be known in order to analyze the adequacy of the 27 parking mitigation plan to address the identified parking impacts of the proposal. None of these factors 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church-Page 4 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 1 can be established until the satellite parking area or areas have been identified and this cannot be done 2 until the Church is ready to commit to a time schedule for proceeding with construction of a new 3 sanctuary. It is impossible to obtain commitments from the owners of property to allow Church use of 4 their property for parking when the Church does not know whether that use will begin three years from 5 today or ten years from today. Therefore,the Church simply cannot develop a parking mitigation plan 6 that can be reviewed and approved at this time. 7 What the Church can do is what it has already proposed as a condition of approval--to require 8 the development of a parking mitigation plan by the Church,review of that plan by the City and public, 9 and approval of that plan by the City prior to the construction of the new sanctuary. When the Church io is ready to proceed with construction of the new sanctuary it will be able to define the aspects of its 11 parking mitigation plan that must be known in order to review that plan. No meaningful review of the 12 plan can occur until that time. Under the condition proposed by the Church,no impacts would occur 13 until after the City had properly exercised its lawful authority to mitigate the impacts of the proposed 14 development. 15 From its discussions with City officials,the Church has been informed that the potential 16 parking impacts of this proposal are the basis for the City's decision to require the preparation of an 17 EIS.. The Church has proposed a condition of approval that would ensure that these impacts would be 18 adequately mitigated before construction of the new sanctuary could proceed. To require the Church to 19 undergo the expense and delay associated with the preparation of an EIS in such circumstance would 20 not only be clearly erroneous, it would be arbitrary and capricious. The City's threshold determination 21 should be overturned. 22 B. SEPA Review Places an Unconstitutional Burden on the Church's Free Exercise of 23 Religion. 24 The limits of the City is authority to regulate religious conduct are based on Washington Const. 25 art. 1, § 11: 26 Absolute freedom of conscience in all matters of religious sentiment,belief and worship, shall be guaranteed to every individual, and no one shall be molested or 27 disturbed in person or property on account of religion;but the liberty of conscience 28 Law Offices Hearing Memorandum of Appellant Highlands ■ H I L L I S C L A R K MARTIN & P E T E R S O N ■ A Professional Service Corporation Community Church-Page 5 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 hereby secured shall not be so construed as to excuse acts of licentiousness or justify 1 practices inconsistent with the peace and safety of the state. 2 This provision of the state constitution has been interpreted to limit the government's ability to regulate 3 certain activities by religious organizations, including the development and use of property for 4 religiouspurposes. Munns v. Martin, 131 Wn.2d 191 g ,_P.2d. (1997);First Covenant Church of 5 Seattle v. Seattle, 20 Wn.2d 203, 840 P.2d 174 (1992);First Covenant Church of Seattle v. Seattle, 114 6 Wn.2d 392, 757 P.2d 1352; Summer v. First Baptist Church, 97 Wn.2d 1, 639 P.2d 1358 (1982);First 7 United Methodist Church v. Hearing Examiner, 76 Wn.App. 572, 887 P.2d 473 (1995). 8 Washington courts conduct a three-step inquiry in the analysis of challenges to government 9 action that affect the free exercise of religion. The initial inquiry is whether the challenged action 10 constitutes a burden on the free exercise of religion. If the action creates a burden on the free exercise 11 of religion,the next inquiry is whether the burden is justified by a compelling state interest. Lastly, if 12 the burden is justified by a compelling state interest,the final inquiry is whether the State has used the 13 least restrictive possible means to achieve its compelling interest. First Covenant Church v. City of 14 Seattle, 120 Wn.2d 203, 226-228, 840 P.2d 374 (1996). 15 1. SEPA Review Will Burden the Church's Free Exercise of Religion. 16 The SEPA process is both expensive and time-consuming. In order to prepare an EIS,the 17 Church will spend tens of thousands, if not hundreds of thousands, of dollars. In addition to the 18 financial burden,the Church will also suffer from the delay in proceeding to implement the 19 development program needed to serve the religious needs of its congregation. As a practical matter, it 20 will take a minimum of one year to prepare the EIS. It is not unusual for an EIS to take two years or 21 longer to be completed. While the EIS is being prepared,the City can take no action on the Church's 22 application for a conditional use permit. Until the City acts on the Church's application for a 23 conditional use permit,the Church will not know whether or on what conditions it can proceed with the 24 development that is essential to meet the religious needs of its members. 25 The Washington Supreme Court held that an ordinance that provided for a delay of up to 14 26 months placed an administrative burden on the free exercise of religion See Munns v. Martin, 131 27 Wn.2d 192,_P.2d_(1997). In Munns, the appellants challenged the city of Walla Walla's 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church -Page 6 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 1 decision to issue a Determination of Non-Significance related to a demolition permit for a church- 2 operated school. The Catholic Bishop of Spokane intervened and argued that an ordinance that created 3 the potential for a 14-month delay before issuance of the demolition permit and the SEPA rules related 4 to the destruction of historic and cultural areas burdened the church's free exercise of religion. The 5 court held that the ordinance imposed an unconstitutional administrative burden on the church.' 6 The city ordinance in this case burdens the [church] administratively by causing potential delay in the [church's] plans. . . . The [church's] plans are in furtherance of 7 [their] fundamental right to the free exercise of[their] religion. The ordinance therefore 8 has a coercive effect on the practice of religion. 9 131 Wn.2d at 208. 10 Similarly, in First Covenant Church v. City of Seattle, the Washington Supreme Court held that 11 a landmarks ordinance that required governmental approval for changes to a church structure created an unconstitutional administrative burden on the church's free exercise of religion. The court also held 13 that the depreciation of the church property that would occur as'a result of the landmark designation 14 would create an unconstitutional financial burden on the free exercise of religion. 120 Wn.2d at 219- 15 220. 16 In Sumner v. First Baptist Church, 97 Wn.2d 1, 639 P.2d 1358 (1982),the city sought to 17 strictly enforce its zoning and building code against a church-operated school. The church argued that 18 the strict enforcement of the codes violated the church's rights to the free exercise of religion because 19 of the financial burden of complying with the codes. The court agreed and held that strict enforcement 20 of the codes would create an unconstitutional financial burden on the church. 21 This case falls squarely within the purview of Munns, First Covenant Church, and Sumner. 22 The delays inherent in the SEPA process are precisely the type of administrative burdens prohibited in 23 Munns and First Covenant Church. The onerous financial burden that the Church will suffer in the 21 preparation of the EIS is prohibited by First Covenant Church and Sumner. There can be no question 25 that the SEPA process constitutes a burden on the free exercise of religion: 26 27 The trial court held that the SEPA regulation also created an administrative burden on the church. The Supreme 28 Court limited its review to the Walla Walla ordinance. Law Offices Hearing Memorandum of Appellant Highlands ® HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church -Page 7 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 2. In This Case the Burden Imposed by SEPA Review Is Not Justified by a Compelling 1 State Interest. The next inquiry in the constitutional analysis is whether the burden imposed by SEPA is justified by a compelling state interest. A compelling interest is one that has a"clear justification . . . 4 in the necessities of national or community life that prevents a clear and present, grave and immediate 5 danger to public health,peace and welfare."1 First Covenant Church v. Seattle, 120 Wn.2d at 227 6 (citations omitted). SEPA is primarily a procedural statute to ensure that decisionmakers consider the environmental impacts associated with a proposed action. Save Our Rural Environment, v. Snohomish 8 County, 99 Wn.2d 363, 662 P.2d 816 (1983). "It was not designed to usurp local decision-making or 9 to dictate a particular substantive result." Id at 317 (citation omitted). Moreover,the decisionmaker is 1U not required to elevate environmental concerns over other appropriate considerations. See Strycker's 11 Bay Neighborhood v. Karlen, 440 U.S. 223, 100 S. Ct. 497, 62 L. Ed. 2d 433 (1980) (holding that the 12 need for low-income housing outweighed potential environmental impacts)2 Compliance with the 13 procedural requirements of SEPA cannot,by itself, rise to the level of a compelling state interest. To 14 determine whether such an interest exists we must look to specific probable adverse impacts of the 15 project. 16 In this case,the primary(and,the Church contends,the only)basis for requiring the preparation 17 of an EIS is concern over the impacts associated with parking by the Church's members along public 18 streets in the adjacent single-family residential neighborhood. These impacts would occur on Sunday 19 morning for a few hours. This is a legitimate matter of concern for the Church's neighbors. However, 20 while SEPA review of this issue serves an important interest, it can hardly be maintained that this 21 governmental objective is in furtherance of a compelling state interest when pitted against the right to 22 the free exercise of religion. The interest being served in this case is not sufficient to warrant the 23 exercise of the police power in a manner that burdens the free exercise of religious rights. 24 25 t It should be noted that traffic safety is not a compelling interest that justifies interference with a constitutionally 26 protected right. See Collier v. Tacoma, 121 Wn.2d 737,755-56, 854 P.2d 1046(1993). 27 2 This is a case construing the National Environmental Policy Act(NEPA). SEPA is virtually identical to NEPA,and ' Washington courts have looked to federal NEPA decisions in their judicial interpretations of SEPA. See, e.g., Trepanier v. 28 Everett,64 Wn.App.380,824 P.2d 524(1992). Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church-Page 8 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 • I 3. .f o Preparation an EIS Is Not the Least Restrictive Possible Means to Achieve Its P Compelling Interest. Even if the City does have a compelling interest in SEPA review of potential parking impacts, the preparation of an EIS is not the least restrictive possible means to achieve that interest. The Church was required to submit a completed environmental checklist along with its conditional use permit application. This checklist included a detailed traffic impact analysis that identified and analyzed the G traffic and parking impacts of the proposal. This traffic impact analysis is precisely what would be produced if an EIS was required. After its initial review,the City could have issued a Mitigated Determination of Non-Significance("MDNS") establishing conditions of development designed to mitigate the identified impacts of development. 1Q When a local government is confronted with burdening the constitutionally-protected rights of 11 free exercise it should be flexible. Sumner v. First Baptist Church, 97 Wn.2d at 9 (holding that zoning 12 and building code should not be strictly enforced against church-operated school). In Sumner,the City 13 sought to enforce building code safety requirements. These requirements were designed to ensure that 14 the structure in question would be safe for use by the children attending a religiously-related school. In 15 holding that the City's attempt to enforce its police power regulation violated the fundamental rights of 16 the Church's congregation,the Court noted: 17 There should be some play in the joints of the [regulation]. An effort to accommodate 18 the religious freedom of the appellants while at the same time giving effect to the 19 legitimate concerns of the City expressed in [the regulation] would seem to be in order. 20 Id Here,the City has made no such effort. The Church has suggested mitigation measures to alleviate 21 the City's concerns about perceived impacts. The City rejected these proposed mitigation measures 22 and decided to require the preparation of an EIS. If the Washington courts have declared that a 23 municipality must exercise flexibility in the interpretation of code requirements designed to protect the 24 lives of school children, certainly the City of Renton must exercise flexibility in addressing potential 25 parking impacts. The City's inflexibility has created an impermissible burden on the Church's free 26 exercise of religion. 27 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church -Page 9 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 C. The Religious Freedom Restoration Act Prohibits the Application of SEPA Review to the 1 Church's Proposal. 2 The Religions Freedom Restoration Act("RFRA") codified at 42 U.S.C. § 20000bb provides 3 that government shall not substantially burden a person's exercise of religion, unless the government 4 demonstrates that application of the burden is in furtherance of a compelling governmental interest and 5 is the least restrictive means of furthering that interest. 6 Washington courts have not yet addressed the issue of the extent to which RFRA limits the 7 power of local jurisdictions to enforce land use regulations against a church. Since the decisions of the • 8 Washington courts construing the provisions of our state constitution appear to provide greater 9 protection to the free exercise rights of religious worshipers, the state courts may not reach the question 10 of where RFRA limits the exercise of the police power in the context of land use regulation. However, 11 other jurisdictions have held that the application of land use regulations to churches creates an 12 impermissible burden on the free exercise of religion. See, e.g., The Jesus Center v. Farmington Hills 13 Zoning Board of Appeals, 544 N.W.2d 698 (1996) (holding that the town's zoning ordinance 14 prohibiting the operation of a homeless shelter operated at the church violated RFRA);Stuart Circle 15 Parish v. Board of Zoning Appeals of the City of Richmond, Virginia, 946 F. Supp. 1225 (E.D. Va. 16 1996) (holding that the city's zoning ordinance prohibiting the operation of a feeding program for the 17 homeless operated at the church violated RFRA); Western Presbyterian Church v. Board of Zoning 18 Adjustment, 862 F. Supp. 538 (D.C. 1994) (holding absent extraordinary circumstances,the city must 19 refrain from regulating religious activities at church). 20 The action of the City of Renton in this case would violate the provisions of RFRA for the 21 same reasons that they violate the provisions of the Washington Constitution as described in Section II 22 (B) above. This is a independent basis for overturning the City's decision. 23 IV. CONCLUSION 24 The Church has provided the City with all of the information needed to identify and analyze the 25 potential impacts of its proposed development. The City has had the benefit of reviewing the materials 26 submitted by the Church as well as considering the detailed comments submitted by the Church's 27 neighbors. The Church has suggested a condition that would operate to mitigate the parking impacts of 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church-Page 10 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 i its proposal to a level deemed to be acceptable by the City before the Church could proceed with the 2 construction of its new sanctuary. The review of this proposed mitigation plan would be done in the 3 context of the environmental review of the Church's application for a building permit for the new 4 sanctuary. The City's processes for environmental review would ensure that any concerned member of 5 the public, including, in particular,the Church's neighbors,would have an opportunity to review and 6 comment upon the proposed condition. More importantly,the City's procedures provide for the 7 opportunity to appeal a decision by the City approving proposed mitigation in the event that aggrieved 8 parties believe that the condition is inadequate to do the job. The Church is simply proposing that the 9 City undertake phased environmental review as provided for by WAC 197-11-060(5)(6). That is 10 entirely appropriate where, as here,the action that will produce the impacts will not take place for 11 several years and the details of a mitigation plan cannot be identified until the proposal is ready to 12 proceed. The City's refusal to accept the Church's proposed condition is without any support 13 whatsoever and should be reversed. 14 In addition to being simply wrong under the standards that would apply to a typical project,the 15 City's decision in this case is an unlawful exercise of the police power as it affects the fundamental 16 right to the free exercise of religion as provided for by the Washington Constitution. There can be no 17 doubt that the preparation of an environmental impact statement is an administrative burden upon the 18 Church's exercise of its free exercise rights. In order to enforce this regulatory requirement upon the 19 Church,the City has the burden of demonstrating that this regulatory action serves a compelling state 20 interest. This it cannot do. Even if the City were to show that its actions are in furtherance of a 21 compelling state interest,the City would then have to demonstrate that it has chosen the least 22 restrictive means of accomplishing that interest. Again, in this case the City simply cannot do that. 23 Preventing members of the public from parking on public roads where parking is permitted by law and 24 where ample parking is available in order to promote the perceived interest of adjoining residential 25 property owners is not a compelling state interest. Even if it were,requiring the Church to prepare an 26 environmental impact statement is not the least restrictive means available to the City of Renton to 27 accomplish this purpose. 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church -Page 11 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 1 The City's decision must be overturned. The Hearing Examiner should direct the City to accept 2 the condition proposed by the Church and to issue a Mitigated Determination of Nonsignificance. 3 DATED this 12th day of May, 1997. 4 HILLIS CLARK MARTIN &PETERSON, P.S. 5 6 4. • 7 By Hi is Clark artin& Peterson, P.S. 8 orge A. Kresovich, WSBA#8017 9 Attorneys for Appellant HIGHLANDS COMMUNITY CHURCH 10 11 #60776 12415-7 1@W8011.DOC 5/12/97 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices Hearing Memorandum of Appellant Highlands ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation Community Church-Page 12 of 12 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 • HIGLANDS COMMUNITY CHURCH LUA 96-134, ECF, CU, V PROPOSED MITIGATION CONDITIONS 1. PARKING. At the time that Highlands Church applies to the City of Renton for the construction permits needed to build the new sanctuary, the Church shall submit for the City's review and approval a Parking Impact Mitigation Plan designed to lessen the impacts of increased parking demand by church members on the surrounding residential area. The Church may propose the use of a satellite parking facility with shuttle buses. If the Church develops a satellite parking plan that, taken together with the Church's on-site parking facilities, provides a minimum of 1,066 parking spaces, that plan will be deemed adequate by the City to mitigate the potential impacts associated with the increased parking demand generated by the new sanctuary. If the Church proposes a different method of mitigating parking impacts, the City retains full authority to review and accept or reject the proposed mitigation plan in compliance with applicable law. 2. ESTABLISHMENT OF A GENERAL EDUCATION SCHOOL There is no proposal now before the City of Renton to use the facilities of Highlands Church for general purpose, non-religious education. Therefore, there is no information on which to make a meaningful environmental review of such a use. In the event that the Church proposes to institute such a use in the future, the City retains the right to review the environmental impacts associated with such a use prior to the establishment of that use in compliance with applicable law. EXHIB IT Proposed Conditions For Mitigation ` , page 1 of 1 #54573 12415-7 163X01!.DOC 2/20/97 5.) E V 10\ MAY 15 1997 1 1 HEARING EXAMINER OF RENTON 3 4 BEFORE THE CITY OF RENTON HEARING EXAMINER 5 IN THE MATTER OF AN APPEAL OF A 6 DETERMINATION OF SIGNIFICANCE NO. LUA-97-033,AAD 7 8 HIGHLANDS COMMUNITY CHURCH, WITNESS LIST OF HIGHLANDS COMMUNITY CHURCH 9 Appellant, 10 vs. 11 12 CITY OF RENTON, 13 Respondent. 14 15 I. WITNESS LIST 16 Highlands Community Church intends to call the following individuals as witnesses: 17 Name and Address General Description of Testimony 18 Mr. Jim Amandus, Senior Pastor Mr. Amandus will testify concerning the 19 Highlands Community Church nature of the proposed project, the need 3031 NE 10th Street for the project, and the Church's purpose 20 Renton, WA 98056-3131 in seeking the conditional use permit 21 tel: (206)255-5460 applied for. 22 Mr. Scott Kaseburg, Chairman Mr. Kaseburg will testify concerning the 23 Board of Elders existing conditions in the surrounding Highlands Community Church neighborhood during church services, the 24 3031 NE 10th Street church's plans for its property, and the Renton, WA 98056-3131 proposed mitigation for impacts 25 tel: (206)255-5460 identified during the threshold 26 determination process. 27 28 Law Offices WITNESS LIST-Page 1 of2 ■ HILLIS CLARK MARTIN & PETERSON A Professional Service Corporation 500 Galland Building,1221 Second Avenue N L (2 Seattle,Washington 90 (206)623-1745 Facsimile(206)623- 623-7789 • • 1 Name and Address General Description of Testimony Mr. David Markley Mr. Markley will testify concerning the 3 Transportation Solutions, Inc. analysis of traffic and parking impacts 16310 NE 80th Street, Suite 100 associated with the proposed project and 4 Redmond, WA 98052-2361 the mitigation measures proposed to deal 5 tel: (206)883-4134 with those impacts. 6 In addition to the witnesses identified above, Highlands Community Church will call 7 employees of the City of Renton who participated in the review of the proposed project and the City's threshold determination 9 10 DATED this 12th day of May, 1997. 11 12 HILLIS CLARK MARTIN&PETERSON,P.S. 13 evieve9 14 By 15 lis Clark artin&Peterson,P.S. 16 George A. Kresovich, WSBA#8017 Attorneys for Appellant 17 HIGHLANDS COMMUNITY CHURCH 18 #60744 12415-7 1@VC01!.DOC 5/12/97 19 20 21 22 23 24 25 26 27 28 Law Offices WITNESS LIST-Page 2 of ■ HILLIS CLARK MARTIN & PETERSON ■ A Professional Service Corporation 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 (206)623-1745 Facsimile(206)623-7789 - - - CITY ,2)F RENTON aolL , Office of the City Attorney • ..... .. . . . _ _ Jesse Tanner,Mayor Lawrence J.Warren • . _ • - May 9, 1997 Mr. George A. Kresovich Hillis Clark Martin & Peterson By FAX: 206-623-7789 1221 Second Avenue, Ste. 500 Seattle, WA 98101-2925 Re: Highlands Community Church Dear Mr. Kresovich: This letter will confirm our conversation where we agreed to continue the due date of the briefs on the above matter. The brief of appellant will be due May 12, 1997, and the responsive briefs will be due May 19, 1997. If my understanding of our agreement is incorrect, please contact me. Very truly yours, Z. etta L. Fontes A:sistant City Attorney cc: ' Pred J. Kaufman Lloyd Hoshide - inn - Pcnion OVI-)C7 - CITY OF RENTON HEARING EXAMINER PUBLIC HEARING . MAY 20, 1997 AGENDA COMMENCING AT 9:00 AM, COUNCIL CHAMBERS, SECOND FLOOR, RENTON MUNICIPAL BUILDING The application(s) listed are in order pif atit.ication 040. er;pnly and not necessarily,the order in which they will be heard. Items'will be caged for hearing at the discretion of the Hearin $tttiEner PROJECT NAME: APPEAL HIGHLANDS COMMUNITY CHURCH PROJECT NUMBER: AAD-97-033 (File No. LUA-96-134) PROJECT DESCRIPTION: The appellant, Highlands Community Church, appeals the issuance of a determination of significance (DS) by the City of Renton for the Highlands Community Church project (LUA-96-134). Highlands Community Church proposes expansion of parking area for 516 vehicles, construction of sanctuary for total seating capacity of 2,500 people, and remodeling of existing facility to accommodate a chapel area and office space. Applicant wishes to reserve the ability to use this facility for educational purposes. Applicant also requests a variance in order to construct a cross on the sanctuary which would extend six feet over the height of the building at a toal elevation of 51 ft. The appellant alleges that the DS was issued in violation of SEPA. Location: 3031 NE 10th Street. AGNDA.DOC NOTICE OF APPEAL HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON An Appeal Hearing will be held by the Renton Hearing Examiner at his regular meeting in the Council Chambers on the second floor of City Hall, Renton, Washington, on May 20, 1997 at 9:00 AM to consider the following petitions: HIGHLANDS COMMUNITY CHURCH AAD-97-033 The appellant, Highlands Community Church, appeals the issuance of a determination of significance (DS) by the City of Renton for the Highlands Community Church project (LUA-96-134). Highlands Community Church proposes expansion of parking area for 516 vehicles, construction of sanctuary for total seating capacity of 2,500 people, and remodeling of existing facility to accommodate a chapel area and office space. Applicant wishes to reserve the ability to use this facility for educational purposes. Applicant also requests a variance in order to construct a cross on the sanctuary which would extend six feet over the height of the building at a toal elevation of 51 ft. The appellant alleges that the DS was issued in violation of SEPA. Location: 3031 NE 10th St. Legal descriptions of the files noted above are on file in the Development Services Division, Third Floor, Municipal Building,Renton. All interested persons to said petitions are invited to be present at the Public Hearing. Publication Date: MAY 9, 1997 Account No. 51067 AADPUB.DOC ' 'l'i Y•: i.. 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' - _Coven...-._,..:-..,,,::-...,:-:-:::mayor: s�Exccutive:Assistan :,T., aria er _ - - _"e'1 Pro'ect<M ark'P 1 - g - - S Yw _ J. . [T: :1' e: .., riimitt e'erital:'Review'Co .� `Environm ':Y - 2 200:Mi11�'Avenue South:'"Rerifo ashi n 98055:; 3S 59 CITY JF RENTON LL fi , Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman March 31, 1997 Mr. George Kresovich Hillis Clark Martin&Peterson 1221 Second Avenue,#500 Seattle, WA 98101-2925 Re: Appeal of Determination of Significance by Highlands Community Church File No: LUA-97-033,AAD Dear Mr. Kresovich: With reference to your letter dated March 27, 1997,requesting this office to direct the ERC to provide materials to you,you are perfectly free to ask the City staff to provide any documents which are available as public record to make your case. Sincerely, Fred J. Kaufman Hearing Examiner FJK:mm cc: Mayor Jesse Tanner Jay Covington,Mayor's Executive Assistant Zanetta Fontes, City Attorney Mark Pywell,Project Manager Environmental Review Committee 200 Mill Avenue South-Renton, Washington 98055 - (206)235-2593 l..t';011icre • • HILLIS CLARK MARTIN & PETERSON • A Professional Service Corporation - 500 Gallon('Building, 1221 Second -..venue Seattle,Wa hington 94101-2925 (206)623-1745 Facsimile(206)023- 7 `l March 27, 1997 111 MAR -' 1 1997 CITY OF RENTON HEARING EXAMINER Mr. Fred J. Kaufman City of Renton Hearing Examiner 200 Mill Avenue South Renton,:WA 98055 Re: Highlands Community Church Appeal of Determination of Significance; File No.: LUA-97-033,AAD; Request for Discovery Dear Mr. Kaufman: In our notice of appeal, we requested that you direct the Environmental Review Committee to provide us with a copy of tie materials that they are required to furnish to your office by Renton Municipal Code Section 4-6-23(B)(2). We believe that review of these materials would be helpful to us in preparing for the pre-hearing conference, and would make that pre-hearing conference ore useful for all of the parties. The recent notice from your office setting the dates 1r the pre-hearing conference and the hearing, did not refer to our request. Therefore, we are renewing our request that you direct the Environmental Review Committee to furnish us with a copy of tlr documents described above. It would be most helpful if these documents could be prove ed to us ten days or so before the pre-hearing • conference now scheduled for April 15th. Thank you very much for your consideration of this request. Very truly yours, 7C eorg EKresovich GAK/lsh E-Mail: gak@hcmp.com cc: Zanetta Fontes Dick Ralston #57569 12415-7 1517501!.DOC 3/27/97 Law Offices ■ HILLIS CLARK MARTIN & PETERSON • A Professional Service Corporation 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 • (206)623-1745 Facsimile(206)623-7789 E V I O U E March 27, 1997 MAR 1 1997 ' CITY OF RENTON HEARING EXAMINER Mr. Fred J. Kaufman City of Renton Hearing Examiner 200 Mill Avenue South Renton, WA 98055 Re: Highlands Community Church Appeal of Determination of Significance; File No.: LUA-97-033,AAD; Request for Discovery Dear Mr. Kaufman: In our notice of appeal,we requested that you direct the Environmental Review Committee to provide us with a copy of the materials that they are required to furnish to your office by Renton Municipal Code Section 4-6-23(B)(2). We believe that review of these materials would be helpful to us in preparing for the pre-hearing conference, and would make that pre-hearing conference more useful for all of the parties. The recent notice from your office setting the dates for the pre-hearing conference and the hearing, did not refer to our request. Therefore, we are renewing our request that you direct the Environmental Review Committee to furnish us with a copy of the documents described above. It would be most helpful if these documents could be provided to us ten days or so before the pre-hearing • conference now scheduled for April 15th. Thank you very much for your consideration of this request. Very truly yours, e4421 eorg Kresovich GAK/lsh E-Mail: gak@hcmp.com Cc: Zanetta Fontes ' ` Dick Ralston #57569 12415-7 18F501!.DOC 3/27/97 CITX )F RENTON • ` Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman March 25, 1997 • Ms. Zanetta Fontes Mr. George Kresovich Renton City Attorney Hillis Clark Martin&Peterson 200 Mill Avenue South 1221 Second Avenue,#500 Renton, WA 98055 Seattle, WA 98101-2925 Re: Notice of Appeal of Determination of Significance by Highlands Community Church File No: LUA-97-033,AAD Dear Ms.Fontes and Mr. Kresovich: This letter is to confirm that a pre-hearing conference will be held on Tuesday,April 15, 1997 at 9:00 a.m., in the Council Chambers on the second floor of City Hall,Renton. A hearing on this matter has also been set for Tuesday,May 20, 1997 at 9:00 a.m. We appreciate your cooperation, and if you have any questions,please contact this office. Sincerely, • Fred J. Kau an Hearing Examiner FJK:mm cc: Mayor Jesse Tanner Jay Covington, Mayor's Executive Assistant Mark Pywell, Project Manager Environmental Review Committee Parties of Record 200 Mill Avenue South - Renton, Washington 98055 - (206)235-2593 Hi blands CommunityChurch .1 W. Ralston 2pristine J. Wren g14221 West Lake Kathleen Drive SE 840 Index Court NE 3031 NE 10th Renton, WA 98059 Renton, WA 98056 Renton, WA 98056 Penny Eskenazi Cornelius Gevers Jack and Betty Cowan 951 Lynnwood Avenue NE 900 Kirkland Avenue NE 905 Lynnwood Avenue NE Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 George McKay William Flynn Lloyd Hoshide 904 Kirkland Avenue NE 911 Lynnwood Avenue NE 833 Kirkland Avenue NE Renton, WA 98056 Renton, WA 98056 " Renton, WA 98056 Gary Hyatt Patricia Lewis Francis Schwartz Safeway 929 Kirkland Avenue NE 1066 Lynnwood Avenue NE 2725 NE Sunset Boulevard Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Dwight Peterson Jim and Barbara Sather Jim Austin 3009 NE i9th Street 3112 NE 10th 851 Jefferson Avenue NE Renton,WA 98056 - Renton, WA 98056 Renton, WA 98056 Delores Rohlman Lena Knight Sandra Rolley 804.Lynnwood Avenue NE 1022 Lynnwood Avenue NE 1058 Kirkland Avenue NE Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 PARTIES OF RECORD HIGHLANDS COMMUNITY CHURCH FILE NOS. LUA96-134,CU and LUA97-033,AAD 617-11/v7 r?", - - / - - �,,,-�, � ,�,,� ter, "Iv 11)-9-_,- , v 7 d'i??7-21* e-e-vi-ivv -xl4iv-40-4 171 4-4-71- Plv - ),o--2?-nip-2.4,,- 14177- cip, _0-77, 77,- - , -u 720:„4-0, ary • ?in/ `/-:_ig-f tv74-, 'tiliV 47 . ilo?p7pi, 7 yi )- -o/ a.ly --z-f --L-9--43--p-- 41-1- ,),?c 4/27,/, piArt, v--01-kay2/4-6-i -_ - • :( - Atif ig - 1., _Art-v#144,2-04-74?v . ---0-yk, (kw xrdp e_.."-iivo, )21, yr; T - - -,,,,t.,,, ,,4----0-44-111-,, rip/ Ali ' =`•'11/1-7 '-'7r 1 97 ' 44-7'-'"7/( — i 1'7'7- , 'I - - - v rip27-0, 7--.?.74.1/0- --r-ii 4-tr ii-1/4?-74-2r-iglv w _ ___ _ -4-evt4)-0 -14447"v Ivr --'44 7 4-"- --b 44/-)r./1fii/ `-"v r r-ti,27144-A-7/ -Kw -kw z u, fs, -11-914,q4 )0-4u f--'-'42144/7'- `n l'cl-rb-ii . "(V 7- y---J!--4,6"r-Ag ' .9' ?f-i-,-3• 61-1-c-i-7714-ipri :-- - , - - - - 4 r--77-19 _.,4 7-.7.CY - 14- y 7 --i4'-vsly/42 --a-p-w-v, . A il-a --- -2.4.44- g ; 9 - J.s-e qb wy r '%-l -rtV -1-27/441-y-X-s - -_%_-,er?(/7# -1-/-7v ly, - ,;4171,,ii - p,/ ?--n...f -env- ak / / -1-i- 4/ti Wig, viy .,.-Lii _ -v rep 4 I144v �ssi o a OMIN _ ci-ofrip K � ,1� nrw.ta a4.49 re�.....,e �G'F,�. rn. �.-�;k ate CITY OF RENTON Nu HEARING EXAMINER MEMORANDUM Date: March 18, 1997 To: Mark Pywell, Project Manager From: Marilyn Moses, Hearing Examiner's Secretary Re: Highlands Community Church File No. LUA96-134,ECF,CU,V This office received the attached appeal regarding the ERC determination. When Fred returns from his vacation on Monday, March 24, he will respond accordingly. cc: ERC Mayor Tanner Jay Covington Larry Warren Law Offices • HILLIS CLARK MARTIN & PETERSON •m A Professional Service Corporation E O " E 500 Galland Building,1221 Second Avenue Seattle,Washington 98101-2925 -fir (206)623-1745 Facsimile(206)623-7789 • MAR t I��� 9 1111 '',,gy�pp • • March 14, 1997 ja ER • Mr. Fred Kaufman Renton Hearing Examiner City Clerk 200 Mill avenue South Renton, WA 98055 Re: Notice of Appeal of Deterthination of Significance; Application LUA-96-134,ECF,CU,V Dear Mr. Kaufman: We are writing to you on behalf of our client, Highlands Community Church,the applicant for the above-referenced permits to appeal the determination of significance issued by the Environmental Review Committee. A copy of that decision is attached to this letter as EXHIBIT A. We have enclosed a check in the amount of$75.00 in payment of the appeal fee:" As a matter of initial discovery,we would request that you direct the Environmental Review Committee to provide us with a copy of the materials to be furnished to your office as provided for by City Code Section 4-6-23(B)(2). We would also suggest that a pre-hearing conference be scheduled to identify the issues that will be considered at the hearing. Finally, our client's willingness to proceed with the administrative process provided by the City for addressing the issues presented by this case is not intended to waive our client's rights to assert that this process violates our client's rights under both state and federal law, and our client expressly reserves its rights to assert such claims in any appropriate forum. • 4vKr4c ly yours, - GAK/lsh E-MailY gak@Iicmp.com Enclosures ' .. : . cc: Dick Ralston:..: . .. #56582 12415-7,17NQ01!.DOC 3/14/97 206-277-4455 RENTON DEL) SUCS/PLAN 169 P01 MAR 12 '97 18:10 EXHIBIT A CITY OF RENTON DETERMINATION OF SIGNIFICANCE AND REQUEST FOR COMMENTS ON SCOPE OF EIS APPLICATION NUMBER(S): LUA-96-134,ECF,CU,V DESCRIPTION OF PROPOSAL: The applicant seeks environmental review and a conditional use permit for the phased development of the remainder of their property. This development will include the expansion of the parking area to accommodate 516 automobiles, the construction of a sanctuary for a total seating capacity of 2,500 people, and the remodeling of the existing facility to accommodate a chapel area and office/classroom space. The applicant wishes to reserve the ability to use this facility for educational purposes. The applicant is also requesting a Variance (V) in order to construct a cross on the sanctuary. The proposed cross would extend six feet over the height of the building for a total elevation of 51 feet. PROPONENT: Highlands Community Church (R. W. Ralston) LOCATION OF PROPOSAL: 3031 NE 10th Street EIS REQUIRED: The lead agency has determined this proposal is likely to have a significant Impact on the environment. An Environmental Impact Statement (EIS) is required under RCW 43.21C.030(2)(c) and will be prepared. An environmental checklist, or other materials indicating likely environmental impacts, can be reviewed at our offices. ._ LEAD AGENCY:, :" Environmental Review Committee City of Renton The lead agency has identified the following areas for discussion in the EIS: Earth, Air, Water, Land Use, Parking, Aesthetics, Environmental Health, Noise, Recreation, Traffic, Public Services/Utilities, (as examples) SCOPING: Agencies, affected tribes, and members of the public are invited to comment on the scope of the EIS. You may comment on alternatives, mitigation measures, probable significant adverse impacts, and licenses of other approvals that may be required. Your comments must be submitted in writing and received before March 31, 1997. Responsible Official: Environmental Review Committee Development Planning Section Planning/Building/Public Works Dept. . 200 Mill Avenue South Renton, WA 98055 APPEAL: You may appeal this determination of significance, in writing, pursuant to RMC 4-3016, accompanied by a non-refundable $75.00 appeal fee, no later than 5:00 PM March 24,1997 to: Renton Hearing Examiner City Clerk 200 Mill Avenue South Renton,WA 98055 Post-its Fax Note 7671 Date 3//'2 jAalt oyeS� .j T o6rea°lci 'e. r m %,%_ 4;,,e—d( • , Co/Dept GJ4 7 0,1®(di/f4' Y Phone M Phone 0 Ap7 Fax* 623 r 7' Fax az 77 Y<G MAR-12-1997 17:07 206 277 4455 96% P.01 206-277-4455 RENTON DEU SUCS/PLAN 169 P02 MAR 12 '97 18:10 ..• Determination of Significance (DS) Highlands Community Church , LUA-96-134,ECF,CU,V Page 2 of 2 To appeal this Declaration, you must file your appeal document with the hearing examiner within ' fourteen (14) days of the date the Declaration of Non-significance is final or the Declaration of Significance has been published in the official city newspaper. See City Code Section 4-6-23, RCW 43.21 C.075 and WAC 197-11-680 for further details. There shall be only one appeal of a Declaration of Non-Significance or Declaration of Significance, and if an appeal has already been filed, your appeal may be Joined with the prior appeal for hearing or may be dismissed if the other appeal has already been heard. You should be prepared to make specific factual objections. Contact the above office to read or ask about the procedures for SEPA appeals. PUBLICATION DATE: March 10, 1997 DATE OF DECISION: March 04, 1997 SIGNATURES: Gregg Zip errry�n,Administrator 3/ if ATE Departmenttttt o fanning/Building/Public Works >4"__ � — 3/6 57 --Sam Chastain,Administrator D TE Community Service Department Lee W e er, Fire Chief DATE E Renton Fire Department DSSIGDOC MAR-12-1997 17:08 206 277 4455 96% P.02 CITY OF RENTON CITY TREASURER REG/RCPT : 02-12968 C:03-18-1997 CASHIER ID : J 08:22 am A:03-18-1997 5007 APPEALS & WAIVERS $75.00 000.000.00.345.81.00.000003 TOTAL DUE $75.00 RECEIVED FROM: HIGHLANDS COMM. CHECK $75.00 TOTAL TENDERED $75.00 CHANGE DUE $0.00 1 MAY 19 1997 2 will ER L i ER 3 4 5 6 BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON 7 8 IN THE MATTER OF AN APPEAL OF A NO. LUA-96-134, ECF, CU, V DETERMINATION OF SIGNIFICANCE 9 BRIEF OF CITY OF RENTON 10 HIGHLANDS COMMUNITY CHURCH, 1 1 Appellant, 12 v. 13 CITY OF RENTON, 14 Respondent. 15 I. SYNOPSIS OF THE CASE 16 17 This case involves the question of whether the City of Renton can be forced, on 18 the basis of freedom of religion, to issue a DNS or DNS-M to a church's project that has 19 been proposed without sufficient information. 2 H. FACTS 21 The Highlands Community Church submitted an application for a Conditional Use 22 Permit. The proposal involved three phases. 23 24 - The first phase called for the improvement and enlargement of the parking lot on the existing church property. That phase was to be accomplished 25 immediately. The expansion of the parking lot would mean the addition of 195 stalls, for a total of 568 stalls. 26 �7 The second phase included an expansion of the existing sanctuary. That phase was planned for some time in the future, perhaps five to seven years 28 hence. With the identified expansion of the new sanctuary, the seating WARREN KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 1 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98067 (206)255-8678 1 capacity of the church would increase to 1,500. This expansion would 2 eliminate approximately 52 stalls, for a new total of 516 stalls. 3 - The third phase called for a balcony addition on the renovated sanctuary. There was no timeline given for this part of the project. The expected 4 added seating capacity for the balcony is 1,000. 5 The increase to the parking lot required an administrative deviation to the parking 6 standards. That deviation was permitted subject to certain conditions which do not affect 7 8 the decision on appeal. 9 The application for conditional use was processed in the ordinary course of 10 business. Part of the record for purposes of environmental review was a traffic report 11 prepared by the Church's expert. The ERC considered the traffic report along with all 12 other information provided and determined that additional information was required. 13 The Committee's concerns included traffic, light, glare, and noise. The ERC 14 15 asked the applicant for more specificity regarding those traffic issues. The Committee 16 wanted to know how the attendees would be routed to the church, where they would 17 park, and depending on where the cars ended up, what kind of light, glare, and noise 18 would be generated. Information was provided; however, the supplied information still 19 did not respond to the concerns of the ERC. The Church's response was the same then as 20 that which has been argued here; it's too early to tell. 21 Without sufficient information being provided to the ERC by the applicant, the 22 �3 Committee decided to issue a DS so that a more complete study would be conducted. 24 This appeal followed. 25 IIL SEPA REQUIRED BY STATE LAW 26 RCW 43.21C is the statutory authority requiring SEPA review. The 27 administrative rules are found at WAC 197-11. Each city and county of the state "must 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 2 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)255-8678 1 have its own SEPA procedures consistent with these state-wide rules." 2 WAC-197-11-020. The City of Renton codified its SEPA code at RCC IV-6. 3 It is unclear whether Highland's arguments at pages 6-7 are intended as a 4 5 Constitutional attack on the application of SEPA to churches. However, such an attack 6 would need to be taken to a different forum and the state would be a necessary party. 7 IV. SEPA ALLOWS AMENDMENTS 8 WAC 197-11-100 refers to information that is required of the applicants. It 9 provides, in pertinent part: 10 Further information may be required if the responsible official determines 1 1 that the information initially supplied is not reasonably adequate to fulfill 12 the purposes for which it is required. An applicant may, at any time, voluntarily submit information beyond that required under these rules. 13 It goes on to explain in subsection 2: 14 15 The lead agency may require field investigations or research by the applicant reasonably related to determining a proposal's environmental 16 impacts (WAC 197-11-335). An applicant may clarify or revise the checklist at any time prior to a threshold determination. Revision of a 17 checklist after a threshold determination is issued shall be made under WAC 197-11-340 or 197-11-360. 18 19 WAC 197-11-360 discusses determinations of significance. Subsection 4 of that 20 provision states in pertinent part: 21 If at any time after the issuance of a DS a proposal is changed so, in the judgment of the lead agency, there are no probable, significant adverse 22 environmental impacts, the DS shall be withdrawn and a DNS issued �3 instead. The DNS shall be sent to all who commented on the DS. 24 The SEPA Rules anticipated that additional information may be needed to process 25 any given application. Such is the case here. The ERC did request additional 26 information. The problem stems from the remoteness in time between the application and 27 the actual construction. The Church's expert was in the best position to know that there 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 3 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • I00 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (2(16)266-8678 1 would not be specific information at this early state. That problem was not shared with 2 the City until the Church responded to ERC. 3 V. FEDERAL CONSTITUTION AND 4 RELIGIOUS FREEDOM REFORMATION ACT 5 The First Amendment of the United States Constitution provides, in pertinent 6 part: "Congress shall make no law respecting an establishment of religion, or prohibiting 7 8 the free exercise thereof . . ." 9 The United States Supreme Court has rendered numerous opinions interpreting this 10 provision. Two early cases that discuss the application of laws of general application in 11 First Amendment settings are Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 12 32 L. Ed. 2d 15 (1972), and the case of Sherbert v, Verner, 374 U.S. 398, 13 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). 14 15 Yoder involved Amish parents who refused to send their high school aged 16 children to public schools. 17 In Sherbert, the Court was dealing with an individual who was denied 18 unemployment benefits because her faith prohibited working on Saturdays. 19 Those cases articulated a strict scrutiny test. Strict scrutiny requires that the 20 government show a compelling state interest that is being met in the least intrusive 21 manner. 22 �3 That standard lived a long life. However, the U.S. Supreme Court appeared to 24 limit the application of that standard in the case of Employment Division, Department of 25 Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1989). 26 There the Court decided the case of two state employees who participated in a religious 27 ritual that involved the smoking of peyote. When the state employees were terminated 28 WARREN,KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 4 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)255-8679 1 they sought unemployment benefits and were denied due to the commission of 2 misconduct on the job. The U.S. Supreme Court ruled the denial was not a violation of 3 the First Amendment. At 494 U.S. 878-879 the Court said: 4 5 We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State 6 is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. 7 The Court also discussed the requirement of a "compelling government interest" at 8 9 888. It said: 10 Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we 11 value and protect that religious divergence, we cannot afford the luxury of 12 deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. 13 The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every 14 conceivable kind . . ." (Citations omitted.) 15 Highlands Community Church is requesting, under the guise of religion, that it be 16 allowed to make an application years in advance and hide under the cloak of religion 17 when it is unable to provide information to the lead agency regarding environmental 18 19 impacts that may be caused by the project. Highlands should not be exempted from its 20 civic obligation. 21 The U.S. Congress did not sit idly by after the third arm of government decided 22 Smith. It passed, after three congressional sessions, the Religious Freedom Reformation 23 Act, codified at 42 U.S.C. 2000. Section 3 of that Act provides, in pertinent part: 24 (a) In general . . . - government shall not substantially burden a person's 25 exercise of religion even if the burden results from a rule of general 26 applicability, except as provided in subsection (b). (b) Exception. - Government may burden a person's exercise of religion 27 only if it demonstrates that application of the burden to the person (1) furthers a compelling governmental interest; and 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 5 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98067 (206)265-8678 1 (2) is the least restrictive means of furthering that compelling governmental 2 interest. 3 Although this Act is relatively new, it has been interpreted by a number of courts. 4 In the case of Goehring v. Brophy, 94 Fed. 3d 1294 (C.A.9 1996), the 9th Circuit 5 discussed the law as it existed before RFRA as well as the application of RFRA to the 6 facts of that case. 7 8 In Goehring, students at the University of California asserted a violation of their 9 First Amendment rights. The students complained, inter alia, that the university's 10 practice of subsidizing student health insurance with mandatory student fees violated their 11 right to free exercise of religion because the student health insurance covered abortion 12 services. The Court ruled that the plaintiffs' free exercise claim failed because they were 13 unable to show that there was a substantial burden on their right to free exercise of 14 15 religion. Further, the Ninth Circuit ruled that the university's subsidized health insurance 16 program was the least restrictive means of furthering a compelling governmental interest. 17 At pages 1298-1299, the Court addresses the issue of whether the students faced a 18 substantial burden to their exercise of their religion. The court says: 19 In construing the Religious Freedom Act (sic), we look toward decisions 20 prior to Smith, in which this court held that: 'To show a free exercise violation, the religious adherent, . . . has the obligation to prove that a 21 governmental regulatory mechanism burdens the adherents' practice of his 22 or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a �3 religious experience which the faith mandates. This interference must be more than an inconvenience; the burden must be substantial and an 24 interference with a tenet or belief that is central to religious doctrine.' Graham v. Commissioner. 822 F.2d 844, 850-51 (9th Cir. 1987) (emphasis 25 added) (citation omitted), affd. sub nom." 26 Under federal law Highlands must show that the City is either pressuring the 27 adherents of their faith to commit an act that is forbidden or is preventing them from 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 6 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)255-8678 1 engaging in conduct or preventing them from having a religious experience which is 2 mandated. No such argument has been made. No such evidence will be available. The 3 City is not demanding that the Church perform any act other than providing information. 4 5 Further, the City is not preventing the Church members from engaging in any conduct or 6 having any religious experience which is mandated by their faith. The Church currently 7 exists. Congregants currently attend church services at the site. Therefore, the 8 requirement imposed by the City that the church provide additional information in 9 compliance with SEPA is not a substantial burden as required either in the decisions prior 10 to Smith, or under RFRA. 11 12 Goehring is not the most recent word on the applicability or even the 13 constitutionality of RFRA. On February 19, 1997, the case of City of Boerne v. Flores, 1 No. 95-2074, was argued before the United States Supreme Court. The case out of the 15 Fifth Circuit can be found at 73 F.3d 1352 (1996). The City of Boerne had enacted an 16 ordinance that established historic districts. St. Peter's Catholic Church wanted to 17 18 expand. However, the plans were halted. The Archbishop sued the City of Boerne, 19 claiming a violation of RFRA. 20 Before the Fifth Circuit, the City argued that RFRA was unconstitutional. The 21 panel was not persuaded and the matter was appealed. A decision is pending. 2 2 VI. STATE CONSTITUTIONAL ARGUMENTS 23 Case law sets out the standard that governments must meet when imposing 24 regulations on churches that represent a burden. If there is a burden on the free exercise 25 2 6 of religion, then the government must be prepared to show that the regulation advances a 27 compelling state interest. If there is a compelling governmental interest, then the 2 8 /// WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 7 DEAN&FONTE ,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • I00 SOUTH SECOND STREET RENTON,WASHINGTON 98067 (206)265-8678 1 government must show that it used the least restrictive means. See First Covenant 2 Church of Seattle v. Seattle, 120 Wn. 2d 203, 840 P. 2d (1992). 3 Although Renton and Highlands Community Church do not disagree on the 4 5 standard imposed on government when dealing with the Church, there is considerable 6 dispute regarding whether the standard is met. 7 A. Burden: 8 "The party who alleges that state action restrains his free exercise of religion must 9 'show the course of effect of the enactment as it operates against him in the practice of 10 his religion.' School District v. Schempp, 374 U.S. 203, 223, 10 L. Ed. 2d 844, 83 S. Ct. 11 12 1560 (1963)." 13 First Covenant Church v. Seattle, 120 Wn. 2d 203, 218, 840 P.2d 174 (1992). 14 The Church cannot show a burden. The Church alleges that it will be burdened 15 by the requirement of an EIS because it expects it will take two years to complete. 16 (Memorandum of Appellant, page 6, lines 20-21.) The Church cites Munns v. Martin, 17 131 Wn. 2d 192, P.2d (Jan. 1997) for the proposition that a 14 month delay 18 19 was an unconstitutional burden. In Munns, the church was ready to immediately go 20 forward with the conversion. However, in this case, that 14 months is not even one half 21 of the time projected before the construction. The construction of the proposed sanctuary 22 is five to seven years hence. The only project which is immediate is the parking lot, and 23 that administrative variance has already been granted. 24 A mere requirement that the church provide information should not be seen as a 25 26 burden. At this time, the City has not indicated that the church will not be permitted, 27 eventually, to pursue the expansion it seeks. However, government is entitled to know 28 and study the environmental impacts a project may have. At this point, the Church has WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 8 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)266-8676 1 claimed it is unable to provide the necessary information which would enable the ERC to 2 make an informed analysis. 3 B. Compelling State Interest: 4 5 There is no dispute that the City must show a compelling governmental interest. 6 The compelling governmental interest in this instance is the requirement that the Church 7 go through the SEPA process at all. The federal government, as well as the State of 8 Washington, have an Environmental Policy Act. Both Acts have provisions regarding 9 the purposes of those Acts. The language for NEPA can be found at 42 U.S.C., section 10 4331(a). The full text can be found at Exhibit A, attached hereto. Similarly, 11 2 RCW 43.21C.020, attached here as Exhibit B, sets out the language of our state's SEPA. 1 13 Both provisions speak in terms of a profound impact that man's activity will have on the 14 interrelations of all components of the environment. Both the state and the federal 15 government have a continuing policy to work in cooperation so that man and nature can 16 exist in productive harmony for future generations of Americans and Washington citizens. 17 Obviously the federal government believes environmental issues to be critical to 18 19 human welfare. It has twenty separate chapters in the U.S. Code that refer to 20 environmental matters. See Exhibit C, attached hereto. Additionally, the federal 21 government has six separate agencies which deal with environmental enforcement. See 22 Exhibit C. Issues involving the environment, and how people exist in it, touches even 23 the smallest of communities, ala Forks, Washington. To suggest that attention to 24 environmental impact is not a compelling government interest is not only specious but 25 26 offensive. 27 The church admits in its brief that a purpose of SEPA is to ensure that decision 28 makers consider the environmental impacts associated with the proposed action. That is WARREN,KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 9 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 95057 (206)255-5678 1 what Renton's responsible official attempted to do. However, as a consequence of the 2 premature application that was submitted here, the ERC was unable to do so. 3 C. Least Restrictive Means: 4 5 Once again, the City does not take issue with the standard enunciated by the 6 Church. If the Church has been burdened, the City must not only show that there is a 7 compelling governmental interest, but it must also show that the steps taken by the City 8 were the least restrictive. Our State Supreme Court said in Sumner v. First Baptist 9 Church, 97 Wn. 2d 1, 9, 639 P.2d 1358 (1982): "there should be some play in the joints 10 of both the zoning ordinance and the building code." Before there can be "play in the 11 12 joints" there must be joints to begin with. Obviously, if this project were further down 13 the road, there would be more "joints" with which to work. In fact, what is on appeal 14 here is the threshold determination. It was the Church that "fused" the joint, not the City. 15 The Church created the situation whereby it now claims it is too early to tell, with any 16 specificity, what the traffic/parking plan will be five to seven years in the future. 17 None of the cases cited by the Church address the issue of a church-created 18 19 dilemma. The landmark preservation or historic preservation cases involved the churches 20 having been dragged, kicking and screaming, into the status of being landmarks or 21 historic locations. As a consequence of those determinations, those churches were being 22 subjected to rules that other entities would not face. That circumstance is quite 23 distinguishable from the circumstances we face here. 24 SEPA is a law of general application. The landmark preservation ordinance that 25 26 was at issue in First Covenant was held by the State Supreme Court not to be a law of 27 general application. 28 /// WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 10 DEAN 6 FONTES, P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)256-8678 1 The one case that is offered by Highlands which does not involve some form of 2 landmark preservation is Sumner v. First Baptist Church, 97 Wn. 2d 1, 639 P.2 1358 3 4 (1982). That case involved a vacation Bible school being used by the church. The 5 property had been used for that purpose for approximately 75 years. It appears from the 6 facts that the church attempted to make that Bible school a full-time school. The City of 7 Sumner objected because the facility did not meet building code and zoning ordinance 8 requirements. 9 At first blush, it appears that the Sumner decision would be quite compelling for 10 Highlands. However, the Sumner decision actually supports the City's position. That 11 12 case had made its way up from the trial court all the way to the State Supreme Court. 13 The Court ultimately found that the lower Court had not balanced the interests of the City 114 vs. the Church. Therefore, the Court remanded the matter for further proceedings. The 15 Court did not short circuit the judicial process. Neither should we circumvent the 16 information gathering necessary to make an informed decision. 17 It is important to note that the City has not rejected the proposal. Rather, the City 18 19 asked for additional information. It is entitled to do that under the WAC provisions. The 20 applicant could have amended its application or submitted supplemental information. The 21 applicant has chosen neither of these alternatives. 22 An option the ERC has when the applicant does not come forward with 23 supplemental information, is to require additional study. That is accomplished by issuing 24 a DS. Interestingly, WAC 197-11-360 provides that the applicant may still, even after 25 26 the DS is issued, provide additional information. If additional information were 27 forthcoming from the applicant, the DS could be withdrawn and a DNS issued. 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 11 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98057 (206)255-8678 1 VII. CONCLUSION 2 The church has a difficult task to show that there is a substantial burden being 3 placed on it by the City of Renton. The 9th Circuit has articulated what that task will be, 4 5 coercing behavior that is prohibited or restricting conduct or an experience which is 6 mandated. The church will not be able to meet that test. 7 However, even if it is able to overcome that threshold question, the compelling 8 state interest of complying with the State Environmental Policy Act is found in state law. 9 As indicated above, the desire to have a healthy environment for future generations of 10 Washingtonians, as well as the peace, safety and welfare of the community is paramount. 11 12 That is a compelling state interest. If the church is challenging the constitutionality of 13 RCW 43.21C, that challenge needs to include the State as a party. 14 Finally, there are only three alternatives for the ERC. 1) It could approve the 15 conditional use without making the necessary environmental study. That would be a 16 violation of state law. 2) The ERC could deny the conditional use. However, such a 17 decision is not the least restrictive means. 3) The City could seek more information to 18 19 make an informed decision. That was the choice made and it should be upheld. 20 DATED: May 19, 1997. 21 WARREN, KELLOGG, BARBER, 22 DEAN & FONTES, P.S. 23 24 By Zan tta L. Fontes, WSBA #9604 25 orney for City of Renton 26 27 28 WARREN, KELLOGG,BARBER, BRIEF OF CITY OF RENTON - 12 DEAN&FONTES,P.S. ATTORNEYS AT LAW POST OFFICE BOX 626 • 100 SOUTH SECOND STREET RENTON,WASHINGTON 98067 (206)265-8678 A 42 USC Sec.4331 (01/24/94) Page 1 of 2 `1+'aar r mme" • UNITED STATES CODE • TITLE 42-THE PUBLIC HEALTH AND WELFARE • CHAPTER 55-NATIONAL ENVIRONMENTAL POLICY • SUBCHAPTER I-POLICIES AND GOALS §4331.Congressional declaration of national environmental policy • (a)The Congress,recognizing the profound impact of man's activity on the interrelations of all components of the natural environment,particularly the profound influences of population growth,high-density urbanization,industrial expansion,resource exploitation,and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government,in cooperation with State and local governments, and other concerned public and private organizations,to use all practicable means and measures,including financial and technical assistance,in a manner calculated to foster and promote the general welfare,to create and maintain conditions under which man and nature can exist in productive harmony,and fulfill the social,economic,and other requirements of present and future generations of Americans. • (b)In order to carry out the policy set forth in this chapter,it is the continuing responsibility of the Federal Government to use all practicable means,consistent with other essential considerations of national policy,to improve and coordinate Federal plans,functions,programs,and resources to the end that the Nation may- • (1)fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; • (2)assure for all Americans safe,healthful,productive,and esthetically and culturally pleasing surroundings; • (3)attain the widest range of beneficial uses of the environment without degradation,risk to health or safety, or other undesirable and unintended consequences; • (4)preserve important historic,cultural,and natural aspects of our national heritage,and maintain,wherever possible,an environment which supports diversity and variety of individual choice; • (5)achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities;and • (6)enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. • (c)The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. • 42 USC Sec.4331 (01/24/94) Page 2 of 2 This HTML is automatically generated.A product of the Legal Information Institute shelden • • RCWA 43.21C.020,Legislative recognitions--Declaration--Responsibility Page 1 *46530 West's RCWA 43.21 C.020 improve and coordinate plans, functions, programs, and resources to the end that the state WEST'S REVISED CODE OF and its citizens may: WASHINGTON ANNOTATED 3i TITLE 43. STATE (a) Fulfill the responsibilities of each generation t f i of th as trustee e environment succeedin GOVERNMENT--EXECUTIVEg 1 generations; CHAPTER 43.21C. STATE g ENVIRONMENTAL POLICY (b) Assure for all people of Washington safe, healthful, productive, and esthetically and Current through End of 1996 Reg.Sess. culturally pleasing surroundings; 43.21C.020. Legislative recognitions-- (c) Attain the widest range of beneficial uses of Declaration--Responsibility the environment without degradation, risk to health or safety, or other undesirable and (1) The legislature, recognizing that man unintended consequences; depends on his biological and physical surroundings for food, shelter, and other needs, (d) Preserve important historic, cultural, and and for cultural enrichment as well; and natural aspects of our national heritage; recognizing further the profound impact of man's activity on the interrelations of all components of (e) Maintain, wherever possible, an environment the natural environment, particularly the profound which supports diversity and variety of individual influences of population growth, high-density choice; urbanization, industrial expansion, resource utilization and exploitation, and new and (f) Achieve a balance between population and expanding technological advances and recognizing resource use which will permit high standards of further the critical importance of restoring and living and a wide sharing of life's amenities; and maintaining environmental quality to the overall welfare and development of man, declares that it *46531 (g) Enhance the quality of renewable is the continuing policy of the state of resources and approach the maximum attainable Washington, in cooperation with federal and local recycling of depletable resources. governments, and other concerned public and private organizations, to use all practicable means (3) The legislature recognizes that each person and measures, including financial and technical has a fundamental and inalienable right to a assistance, in a manner calculated to: (a) Foster healthful environment and that each person has a and promote the general welfare; (b)to create and responsibility to contribute to the preservation and maintain conditions under which man and nature enhancement of the environment. can exist in productive harmony; and (c) fulfill the social, economic, and other requirements of CREDIT(S) present and future generations of Washington citizens. 1983 Main Volume Added by Laws 1971,Ex.Sess.ch. 109,§2. (2) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of REFERENCES the state of Washington and all agencies of the state to use all practicable means, consistent with ADMINISTRATIVE CODE REFERENCES other essential considerations of state policy, to Copyright(c)West Publishing Co.1996 No claim to original U.S.Govt.works. RCWA 43.21C.020,Legislative recognitions--Declaration--Responsibility Pate 2 1996 Electronic Pocket Part Update City council could rely on statements of purpose and policy in this section in denying proposed development. West Main Higher education coordinating board, see WAC 250-14-020 Associates v. City of Bellevue (1987) 49 Wash.App. 513, et seq. 742 P.2d 1266,review denied. LAW REVIEW AND JOURNAL 2.Aesthetics COMMENTARIES City council was not precluded from challenging proposed high-rise apartment on any grounds except height, by virtue 1996 Electronic Pocket Part Update of its enacting mitigation measure allowing density of housing of high-rise apartment with eight-story height Revolution in Washington law—SEPA, SMA, and the limitation instead of the proposed 16 stories; other adverse appearance of fairness doctrine. Thomas M. Walsh, 40 impacts of project could also be cited, such as aesthetics, Wash.St.B.News 22(May 1986). light,traffic,density and open space impact. Victoria Tower Partnership v.City of Seattle(1990)59 Wash.App.592,800 Noah's farce: Regulation and control of exotic fish and P.2d 380,review denied 116 Wash.2d 1012,807 P.2d 884. wildlife. 17 U.Puget Sound L.Rev. 191(1993). "46532 3.Private actions LIBRARY REFERENCES Nonprofit corporation and individual property owner lacked 1983 Main Volume standing to acquire statutory or constitutional writ of certiorari as to claim that county had not complied with State Environmental Policy Act (SEPA) in adopting county-wide Health and Environment< 25.5. planning policies; neither corporation nor individual had C.J.S.Health and Environment§§ 61 to 66,69,71 to 73, interests within zone of interests sought to be protected by 78 to 80,82 to 86,88 to 90,94,104,110,115 to 126,128, SEPA, corporation's interests being primarily economic in 129,132,133,135,137 to 140,142,144 to 153. nature, and they failed to show that they or their property would be injured by county's SEPA action. Snohomish ANNOTATIONS County Property Rights Alliance v. Snohomish County (1994)76 Wash.App.44,882 P.2d 807,review denied 125 NOTES OF DECISIONS Wash.2d 1025,890 P.2d 464. In 1 In an action under the state Environmental Policy Act, Inestheticsgeneral 2 evidence must support an inference that the conduct of the AImpact fees 4 state or county accused of violating the Act was a cause in Private actions 3 fact of the damage to the plaintiff property owners. Gaines v. Pierce County (1992) 66 Wash.App. 715, 834 P.2d 631, review denied 120 Wash.2d 1021,844 P.2d 1017. 1.In general 4.Impact fees Provisions of State Environmental Policy Act(SEPA)apply to decisions by boundary review boards. King County v. State Environmental Protection Act (SEPA), not statute Washington State Boundary Review Bd. for King County authorizing "voluntary agreements," provides authority for (1993) 122 Wash.2d 648, 860 P.2d 1024, reconsideration imposition of impact fees to mitigate environmental impacts denied. of plat. Castle Homes and Development,Inc.v.City of Brier (1994)76 Wash.App.95,882 P.2d 1172. Copyright(c)West Publishing Co. 1996 No claim to original U.S.Govt.works. U.S.Environmental Law Page 1 of 3 J ii Jn h.rj:lima ,i as ,ihh i j r Environmental Law Materials Menu of Source Material • U.S.Code: • 7 U.S.C.,Chapter 6-Insecticides and Environmental Pesticide Control • 16 U.S.C. -Conservation • 22 U.S.C. §274a-International Biological Program for the Earth's Ecology • 22 U.S.C. §2151 -International Environmental and Natural Resources • 22 U.S.C. §2151 p-1 -Tropical Forests • 22 U.S.C. §2151 q-Endangered Species • 26 U.S.C.,Chapter 38-Environmental Taxes • 33 U.S.C.,Chapter 9-Protection of Navigable Waters • 33 U.S.C.,Chapter 26-Clean Water Act • 33 U.S.C.,Chapter 27-Ocean Dumping • 33 U.S.C.,Chapter 33 -Prevention from Pollution from Ships • 33 U.S.C.,Chapter 40-Oil Pollution • 42 U.S.C. §300g-1 -National Drinking Water Regulations • 42 U.S.C.,Chapter 23-Atomic Energy • 42 U.S.C.,Chapter 55-National Environmental Policy • 42 U.S.C.,Chapter 65-Noise Pollution • 42 U.S.C.,Chapter 73-Development of Energy Sources • 42 U.S.C.,Chapter 82-Solid Waste Disposal • 42 U.S.C.,Chapter 85-Clean Air Actl • 42 U.S.C.,Chapter 103-Comprehensive Environmental Response,Compensation and Liability Act(CERCLA) •Code of Federal Regulations:40 C.F.R. •Federal Agencies: • Environmental Protection Agency • ENVIROFACTS(EPA Database) • Department of the Interior • US Forest Service of the Department of Agriculture U.S.Environmental Law Page 2 of 3 • National Resources Conservation Service of the Department of Agriculture • National Oceanic and Atmospheric Administration of the Department of Commerce • Office of Environment,Safety,and Health of the U.S.Department of Energy •Supreme Court:Recent Environmental Decisions •Uniform Laws: • Uniform Transboundary Pollution Reciprocal Access Act(adopted by Colorado,Connecticut,Michigan,Montana, New Jersey,Oregon,and Wisconsin) • Uniform Conservation Easement Act(adopted by Alaska,Arizona,District of Columbia,Georgia,Idaho,Indiana, Kansas,Kentucky,Maine,Minnesota,Mississippi,Nevada,New Mexico,South Carolina,Texas,Virginia,and Wisconsin) •State Statutes: • Dealing with Natural Resources • Dealing with Water •State Environmental Regulations •NY Court of Appeals:Environmental Cases Other References • Key Internet Sources • Policy Instruments Database • ">WWW Index of Environmental Law Material(Indiana Univ.Law School) • ECOGopher(Environment) • EcoNet • Greenpeace • Yahoo-Environmental Policy • Pace Global Environmental Law Network • Useful Offnet(or Subscription-$)Sources • LEXIS/NEXIS Environmental Law Library • Good Starting Point in Print • LII Disk Materials • Other Law Topics Bearing on Property,Natural Resources,or the Environment 85/17/97 13:46:24 West Publishing Co.-> 2062559709 Page 002 92 S.Ct. 1526 Page 1 32 L.Ed.2d 15 (Cite as:406 U.S.205, 92 S.Ct. 1526) State of WISCONSIN, Petitioner, as those protected by the free exercise clause 411, v. of the First Amendment and the traditional Jonas YODER et aL interest of parents with respect to the religious upbringing of their children. No. 70-110 U.S.C.A.Const.Amends. 1, 14. Supreme Court of the United States [3]CONSTITUTIONAL LAW k84.5(3) 92k84.5(3) Argued Dec. 8, 1971. Formerly 92k84 In order for a state to compel school Decided May 15, 1972. attendance beyond the eighth grade against a claim that such attendance interferes with the The Circuit Court, Green County, practice of a legitimate religious belief, it Wisconsin, found defendants guilty of must appear either that the state does not violating compulsory education law, and they deny the free exercise of religious belief by its appealed. The Wisconsin §upreme Court, 49 requirement,or that there is a state interest of Wis.2d 430, 182 N.W.2d 539, reversed, and sufficient magnitude to override the interest certiorari was granted. The Supreme Court, claiming protection under the free exercise Mr. Chief Justice Burger, held that the First clause. U.S.C.A.Const. Amends. 1, 14; and Fourteenth Amendments prevent a state W.S.A. 118.15, 118.15(1)(b). from compelling Amish parents to cause their l/"-Q children, who have graduated from the eighth MI SCHOOLS k160 ,f grade,to attend formal high school to age 16. 345k160 In order for a state to compel school Affirmed. attendance beyond the eighth grade against a claim that such attendance interferes with the Mr. Justice Powell and Mr. Justice practice of a legitimate religious belief, it Rehnquist took no part in the consideration or must appear either that the state does not . decision of the case; Mr. Justice Stewart, with deny the free exercise of religious belief by its whom Mr. Justice Brennan joined, concurred requirement,or that there is a state interest of and filed an opinion; Mr. Justice White, with sufficient magnitude to override the interest whom Mr. Justice Brennan and Mr. Justice claiming protection under the free exercise Stewart joined,concurred and filed an opinion; clause. U.S.C.A.Const. Amends. 1, 14; Mr. Justice Douglas dissented in part and filed W.S.A. 118.15, 118.15(1)(b). an opinion. [4]CONSTITUTIONAL LAW k84.1 [1]SCHOOLS k20 92k84.1 345k20 Formerly 92k84(1),92k84 Formerly 345k9 Only those interests of the highest order and Having a high responsibility for the education those not otherwise served can overbalance of its citizens, a state has the power to impose legitimate claims to the free exercise of reasonable regulations for the control and religion. U.S.C.A.Const. Amends. 1, 14. duration of basic education. [5]SCHOOLS k160 [2]CONSTITUTIONAL LAW k84.5(3) 345k160 92k84.5(3) However strong a state's interest in universal Formerly 92k84 compulsory education, it is by no means A state's interest in universal education, absolute to the exclusion or subordination of however highly ranked, is not totally free all other interests. W.S.A. 118.15, 118.15(1) from a balancing process when it impinges on (b). other fundamental rights and interests, such Copr.®West 1997 No claim to orig.U.S.govt. works 05/17/97 13:47:36 West Publishing Co.-> 2062559789 Page 003 92 S.Ct. 1626 Page 2 (Cite as:406 U.S. 205, 92 S.Ct. 1526) [6]SCHOOLS k20 92k84.1 346k20 Formerly 92k84(1),92k84 Formerly 346k9 Activities of individuals, even when A way of life, however virtuous and religiously based, are often subject to admirable, may not be interposed as a barrier regulation by the states in the exercise of their to reasonable state regulation of education if undoubted power to promote the health, safety it is based on purely secular considerations. and general welfare, or by the federal government in the exercise of its delegated [7]CONSTITUTIONAL LAW k84.2 power; but to agree that religiously grounded 92k84.2 conduct must often be subject to the broad Formerly 92k84(2),92k84 police power of the state is not to deny that Although a determination of what is a there are areas of conduct protected by the "religious" belief or practice entitled to free exercise clause of the First Amendment constitutional protection may present a most and thus beyond the power of the state to delicate question, the very concept of ordered control, even under regulations of general liberty precludes allowing every person to applicability. U.S.C.A.Const. Amends. 1, 14; make his own standards on matters of conduct W.S.A. 118.15, 118.15(1)(b). in which society as a whole has important interests. U.S.C.A.Const. Amends. 1, 14. [11]CONSTITUTIONAL LAW k84.1 92k84.1 [8]CONSTITUTIONAL LAW k84.2 Formerly 92k84(1),92k84 92k84.2 A state regulation neutral on its face may, in Formerly 92k84(2),92k84 its application, offend the constitutional Beliefs which are philosophical and personal, requirement for governmental neutrality if it rather than religious, do not rise to the unduly burdens the free exercise of religion. demands of the religion clause. U.S.C.A.Const.Amends. 1, 14. U.S.C.A.Const.Amends. 1, 14. [12]CONSTITUTIONAL LAW k84.1 [9]CONSTITUTIONAL LAW k84.5(3) 92k84.1 92k84.5(3) Formerly 92k84(1),92k84 Formerly 92k84 Court must not ignore the danger that an Amish parents, charged with violating exception from a general obligation of Wisconsin's compulsory education law, amply citizenship on religious grounds may run afoul supported their claim that enforcement of the of the establishment clause, but that danger compulsory formal education requirement cannot be allowed to prevent any exception no after the eighth grade would gravely endanger matter how vital it may be to the protection of if not destroy the free exercise of their values promoted by the right of free exercise. religious belief. U.S.C.A.Const. Amends. 1, U.S.C.A.Const. Amends. 1, 14. 14;W.S.A. 118.15, 118.16(1)(b). [13]CONSTITUTIONAL LAW k84.5(3) [9]SCHOOLS k160 92k84.5(3) 345k160 Formerly 92k84 Amish parents, charged with violating State's claim that it is empowered, as parens Wisconsin's compulsory education law, amply patriae, to extend the benefit of secondary supported their claim that enforcement of the education to children regardless of their compulsory formal education requirement parents' wishes could not be sustained against after the eighth grade would gravely endanger a free exercise claim of the nature revealed by if not destroy the free exercise of their the record in proceeding involving conviction religious belief. U.S.C.A.Const. Amends. 1, of Amish parents for violating Wisconsin 14;W.S.A. 118.16, 118.16(1)(b). compulsory education law, where the Amish introduced convincing evidence that [10]CONSTITUTIONAL LAW k84.1 accommodating their religious ol;jections by Copr.°West 1997 No claim to orig.U.S. govt.works 410 85/17/97 13:48:54 West Publishing Go.-> 2862559789 Page 004 92 S.Ct. 1626 Page 3 (Cite as:406 U.S. 205, 92 S.Ct. 1526) foregoing one or two years of compulsory 345k160 education would not impair the physical or The First and Fourteenth Amendments mental health of the child, nor result in an prevent a state from compelling Amish inability to be self-supporting, or to discharge parents to cause their children, who have the duties and responsibilities of citizenship, graduated from the eighth grade, to attend or in any way materially detract from the formal high school to age 16. U.S.C.A.Const. welfare of society. U.S.C.A.Const. Amends. 1, Amends. 1, 14;W.S.A. 118.15, 118.15(1)(b). 14; W.S.A. 118.15, 118.15(1)(b). [17]CONSTITUTIONAL LAW k84.5(3) [14]SCHOOLS k160 92k84.5(3) 345k160 Formerly 92k84 Formerly 345k8 Courts must move with great circumspection Where nothing more than the general interest in performing the sensitive and delicate task of the parent in the nurture and education of of weighing a state's legitimate social concern his children is involved, state acts reasonably when faced with religious claims for and constitutionally in requiring education to exemption from generally applicable age 16 in some public or private school educational requirements. U.S.C.A.Const. meeting the standards prescribed by the state. Amends. 1, 14; W.S.A. 118.15, 118.15(1)(b). U.S.C.A.Const. Amends. 1, 14; W.S.A. 118.15, 118.15(1)(b). [181 CONSTITUTIONAL LAW k84.5(3) 92k84.5(3) [15]CONSTITUTIONAL LAW k84.5(3) Formerly 92k84 92k84.5(3) Aided by a long history as an identifiable Formerly 92k84 religious sect and as a successful and self- Power of parent to educate child, even when sufficient segment of society, the Amish have linked to a free exercise claim,may be subject demonstrated sincerity of their religious to limitation if it appears that parental beliefs, interrelationship of beliefs with their decisions will jeopardize the health or safety of mode of life, the vital role that beliefs and the child, or have a potential for significant daily conduct play in continuing survival of social burdens. U.S.C.A.Const.Amends. 1, 14. Old Order Amish communities, and hazards presented by a state's enforcement of a [16]CONSTITUTIONAL LAW k84.5(3) compulsory education law generally valid as 92k84.5(3) to others; beyond this,they have carried their Formerly 92k84 burden of demonstrating the adequacy of their The First and Fourteenth Amendments alternative mode of continuing informal prevent a state from compelling Amish vocational education; in light of this, state parents to cause their children, who have had to show with more particularity how its graduated from the eighth grade, to attend admittedly strong interest in compulsory formal high school to age 16. U.S.C.A.Const. education would be adversely affected by Amends. 1, 14;W.S.A. 118.16, 118.15(1)(b). granting the Amish an exemption. U.S.C.A.Const.Amends. 1, 14; W.S.A. 118.15, [16]CONSTITUTIONAL LAW k274(5) 118.15(1)(b). 92k274(5) Formerly 92k274(2) [18]SCHOOLS k160 The First and Fourteenth Amendments 345k160 prevent a state from compelling Amish Aided by a long history as an identifiable parents to cause their children, who have religious sect and as a successful and self- graduated from the eighth grade, to attend sufficient segment of society, the Amish have formal high school to age 16. U.S.C.A.Const. demonstrated sincerity of their religious Amends. 1, 14;W.S.A. 118.15, 118.15(1)(b). beliefs, interrelationship of beliefs with their mode of life, the vital role that beliefs and (16]SCHOOLS k160 daily conduct play in continuing survival of Copr.®West 1997 No claim to orig.U.S. govt.works S 05/17/97 13;50;13 West Publishing Co.-> 2062559709 Page 005 92 S.Ct. 1526 Page 4 (Cite as:406 U.S.205, 92 S.Ct. 1526) Old Order Amish communities, and hazards fundamental rights, such as those specifically presented by a state's enforcement of a protected by the Free Exercise Clause of the • compulsory education law generally valid as First Amendment and the traditional interest to others; beyond this, they have carried their in parents with respect to the religious burden of demonstrating the adequacy of their upbringing of their children. Pp. 1532--1533. alternative mode of continuing informal vocational education; in light of this, state 2. Respondents have amply supported their had to show with more particularity how its claim that enforcement of the compulsory admitt dly strong interest in compulsory formal education requirement after the eighth education would be adversely affected by grade would gravely endanger if not destroy granting the Amish an exemption. the free exercise of their religious beliefs. Pp. U.S.C.A.Const. Amends. 1, 14; W.S.A. 118.15, 1533-1535. 118.15(1)(b). 3. Aided by a history of three centuries as **1528*205 Syllabus[FN*] an identifiable religious sect and a long history as a successful and self-sufficient FN* The syllabus constitutes no part of segment of American society, the Amish have the opinion of the Cqurt but has been demonstrated the sincerity of their religious prepared by the Reporter of Decisions for beliefs, the interrelationship of belief with the convenience of the reader. See United their mode of life,the vital role that belief and States v. Detroit Timber & Lumber Co., daily conduct play in the continuing survival 200 U.S. 321, 337, 26S.Ct. 282, 287, 50 of Old Order Amish communities, and the L.Ed.499. hazards presented by the State's enforcement of a statute generally valid as to others. Respondents, members of the Old Order Beyond this, they have *206 carried the Amish religion and the Conservative Amish difficult burden of demonstrating the Mennonite Church, were convicted of violating adequacy of their alternative mode of Wisconsin's compulsory school attendance law continuing informal vocational education in (which requires a child's school attendance terms of the overall interests that the State until age 16) by declining to send their relies on in support of its program of children to public or private school after they compulsory high school education. In light of had graduated from the eighth grade. The this showing, and weighing the minimal evidence showed that the Amish provide difference between what the State would continuing informal vocational education to require and what the Amish already accept, it their children designed to prepare them for was incumbent on the State to show with more life in the rural Amish community. The particularity how its admittedly strong evidence also showed that respondents interest in compulsory education would be sincerely believed that high school attendance adversely affected by granting an exemption was contrary to the Amish religion and way of to the Amish_ p(p). granting an exemption to life and that they would endanger their own the Amish Pp. salvation and that of their children by complying with the law. The State Supreme **1529 4. The State's claim that it is Court sustained respondents' claim that empowered, as parens patriae, to extend the application of the compulsory school- benefit of secondary education to children attendance law to them violated their rights regardless of the wishes of their parents under the Free Exercise Clause of the First cannot be sustained against a free exercise Amendment, made applicable to the States by claim of the nature revealed by this record, for the Fourteenth Amendment. Held: the Amish have introduced convincing evidence that accommodating their religious 1. The State's interest in universal objections by foregoing one or two additional education is not totally free from a balancing years of compulsory education will not impair process when it impinges on other the physical or mental health of the child, or Copr.®West 1997 No claim to orig. U.S.govt. works • 05/17/97 13:51:39 Wcst Publishing Go.-> 2062559789 Pagc 086 92 S.Ct. 1526 Page 5 (Cite as:406 U.S. 205, *206, 92 S.Ct. 1526, **1529) result in an inability to be self-supporting or FN2. Wis.Stat. s 118.15(1969)provides in to discharge the duties and responsibilities of pertinent part: '118.15 Compulsory school • citizenship, or in any other way materially attendance '(1Xa) Unless the child has a detract from the welfare of society. Pp. 1540-- legal excuse or has graduated from high 1542. school, any person having under his control a child who is between the ages of 49 Wis.2d 430, 182 N.W.2d 539, affirmed. 7 and 16 years shall cause such child to attend school regularly during the full John William Calhoun, Madison, Wis., for period and hours, religious holidays petitioner. excepted, that the public or private school in which such child should be enrolled is William B. Ball, Harrisburg, Pa., for in session until the end of the school term, respondent. quarter or semester of the school year in which he becomes 16 years of age. '(3) *207 Mr. Chief Justice BURGER delivered This section does not apply to any child the opinion of the Court. who is not in proper physical or mental condition to attend school, to any child On petition of the State of Wisconsin, we exempted for good cause by the school granted the writ of certiorari in this case to board of the district in which the child review a decision of the Wisconsin Supreme resides or to any child who has completed Court holding that respondents' convictions the full 4-year high school course. The for violating the State's compulsory school- certificate of a reputable physician in attendance law were invalid under the Free general practice shall be sufficient proof Exercise Clause of the First Amendment to that a child is unable to attend school. the United States Constitution made '(4) Instruction during the required period applicable to the States by the Fourteenth elsewhere than at school may be Amendment. For the reasons hereafter stated substituted for school attendance. Such we affirm the judgment of the Supreme Court instruction must be approved by the state of Wisconsin. superintendent as substantially • equivalent to instruction given to children Respondents Jonas Yoder and Wallace of like ages in the public or private Miller are members of the Old Order Amish schools where such children reside. '(5) religion, and respondent Adin Yutzy is a Whoever violates this section . . . may be member of the Conservative Amish Mennonite fined not less than $5 nor more than $50 Church. They and their families are residents or imprisoned not more than 3 months or of Green County, Wisconsin. Wisconsin's both.' Section 118.15(1Xb) requires compulsory school-attendance law required attendance to age 18 in a school district them to cause their children to attend public containing a 'vocational, technical and or private school until reaching age 16 but the adult education school,' but this section is respondents declined to send their children, concedly inapplicable in this case, for ages 14 and 15, to public school after they there is no such school in the district complete the eighth grade. [FN1] The involved. children were not enrolled in any private school, or within any recognized exception to *208 On complaint of the school district the compulsory-attendance law, [FN2] and administrator for the public schools, they are conceded to be subject to the respondents were charged,tried, and convicted Wisconsin statute. of violating the compulsory-attendance law in Green County Court and **1530 were fined FN1. The children,Frieda Yoder, aged 15, the sum of $5 each. [FN3] Respondents Barbara Miller, aged 15, and Vernon defended on the ground that the application Yutzy, aged 14, were all graduates of the *209 of the compulsory-attendance law eighth grade of public school. violated their rights under the First and Copr.®West 1997 No claim to orig.U.S. govt. works • 05/17/97 13:53:00 West Publishing Co.-> Z8G2559789 Page 007 92 S.Ct. 1526 Page 6 (Cite as:406 U.S. 205, *209, 92 S.Ct. 1526, **1530) Fourteenth Amendments. [FN4] The trial FN4. The First Amendment provides: testimony showed that respondents believed, 'Congress shall make no law respecting in accordance with the tenets of Old Order an establishment of religion, or Aniish communities generally, that their prohibiting the free exercise thereof. . .. children's attendance at high school, public or private, was contrary to the Amish religion In support of their position, respondents and way of life. They believed that by sending presented as expert witnesses scholars on their children to high school, they would not religion and education whose testimony is only expose themselves to the danger of the uncontradicted. They expressed their opinions censure of the church community, but, as on the relationship of the Amish belief found by the county court, also endanger their concerning school attendance to the more own salvation and that of their children. The general tenets of their religion, and described State stipulated that respondents' religious the impact that compulsory high school beliefs were sincere. attendance could have on the continued survival of Amish communities as they exist FN3. Prior to trial, the attorney for in the United States today. The history of the respondents wrote the State Amish *210 sect was given in some detail, Superintendent of Public Instruction in an beginning with the Swiss Anabaptists of the effort to explore the possibilities for a 16th century who rejected institutionalized compromise settlement. Among other churches and sought to return to the early, possibilities, he suggested that perhaps simple,Christian life de-emphasizing material the State Superintendent could success, rejecting the competitive spirit, and administratively determine that the seeking to insulate themselves from the Amish could satisfy the compulsory- modern world. As a result of their common attendance law by establishing their own heritage, Old Order Amish communities today vocational training plan similar to one are characterized by a fundamental belief that that has been established in salvation requires life in a church community Pennsylvania. Supp.App. 6. Under the separate and apart from the world and worldly Pennsylvania plan, Amish children of influence. This concept of life aloof from the high school age are required to attend an world and its values is central to their faith. Amish vocational school for three hours a week, during which time they are taught A related feature of Old Order Amish such subjects as English, mathematics, communities is their devotion to a life in health, and social studies by an Amish harmony with nature and the soil, as teacher. For the balance of the week, the exemplified by the simple life of the early children perform farm and household Christian era that continued in America duties under parental supervision, and during much of our early national life. Amish keep a journal of their daily activities. beliefs require members of the community to The major portion of the curriculum is make their living by farming or closely home projects in agriculture and related activities. Broadly speaking, the Old homemaking. See generally J. Hostetler Order Amish religion pervades and & G. Huntington, Children in Amish determines the entire mode of life of its Society: Socialization and Community adherents. Their conduct is regulated in great Education, c. 5 (1971). A similar program detail by the Ordnung, or rules, of the church has been instituted in Indiana. Ibid. See community. Adult baptism, which occurs in also Iowa Code s 299.24 (1971); late adolescence, is the time at which Amish Kan.Stat.Ann. s 72--1111 (Supp. 1971). young people voluntarily undertake heavy The Superintendent rejected this proposal obligations, not unlike the Bar Mitzvah of on the ground that it would not afford **1531 the Jews, to abide by the rules of the Amish children 'substantially equivalent church community. [FNS] education' to that offered in the schools of the area. Supp.App. 6. FNS. See generally J. Hostetler, Amish Copr. ®West 1997 No claim to orig. U.S. govt. works • 05/17/97 13:54:27 West Publishing Co.-> 2062559709 Page 00O 92 S.Ct. 1526 Page 7 (Cite as:406 U.S. 205, *210, 92 S.Ct. 1526, "1531) Society (1968); J. Hostetler & G. child must also grow in his faith and his • Huntington, Children in Amish Society(1971); Littell, Sectarian Protestantism relationship to the Amish community if he is to be prepared to accept the heavy obligations and the Pursuit of Wisdom: Must imposed by adult baptism. In short, high Technological Objectives Prevail?, in school attendance with teachers who are not of Public Controls for Nonpublic Schools 61 the Amish faith-and may even be hostile to it- (G. Erickson ed. 1969). -interposes a serious barrier to the integration of the Amish child into *212 the Amish Amish objection to formal education beyond religious community. Dr. John Hostetler, one the eighth grade is firmly grounded in these of the experts on Amish society, testified that central religious concepts. They object to the the modern high school is not equipped, in high school, and higher education generally, curriculum or social environment, to impart because the values they teach *211 are in the values promoted by Amish society. marked variance with Amish values and the Amish way of life; they view secondary school The Amish do not object to elementary education as an impermissible exposure of education through the first eight grades as a their children to a 'wordly' influence in general proposition because they agree that conflict with their beliefs. The high school their children must have basic skills in the tends to emphasize intellectual and scientific 'three R's' in order to read the Bible, to be accomplishments, self-distinction, good farmers and citizens, and to be able to competitiveness, worldly success, and social deal with non-Amish people when necessary in life with other students. Amish society the course of daily affairs. They view such a emphasizes informal learning-through-doing; basic education as acceptable because it does a life of 'goodness,' rather than a life of not significantly expose their children to intellect; wisdom, rather than technical wordly values or interfere with their knowledge, community welfare, rather than development in the Amish community during competition; and separation from, rather than the crucial adolescent period. While Amish integration with, contemporary worldly accept compulsory elementary education society. generally, wherever possible they have . established their own elementary schools in Formal high school education beyond the many respects like the small local schools of eighth grade is contrary to Amish beliefs, not the past. In the Amish belief higher learning only because it places Amish children in an tends to develop values they reject as environment hostile to Amish beliefs with influences that alienate man from God. increasing emphasis on competition in class work and sports and with pressure to conform On the basis of such considerations, Dr. to the styles, manners, and ways of the peer Hostetler testified that compulsory high school group, but also because it takes them away attendance could not only result in great from their community, physically and psychological harm to Amish children,because emotionally, during the crucial and formative of the conflicts it would produce, but would adolescent period of life. During this period, also, in his opinion, ultimately result in the the children must acquire Amish attitudes destruction of the Old Order Amish church favoring manual work and self-reliance and community as it exists in the United States the specific skills needed to perform the adult **1532 today. The testimony of Dr. Donald A. role of an Amish farmer or housewife. They Erickson, an expert witness on education, also must learn to enjoy physical labor. Once a showed that the Amish succeed in preparing child has learned basic reading, writing, and their high school age children to be productive elementary mathematics, these tratis, skills, members of the Amish community. He and attitudes admittedly fall within the described their system of learning through category of those best learned through doing the skills directly relevant to their adult example and 'doing' rather than in a roles in the Amish community as 'ideal' and classroom. And, at this time in life, the Amish perhaps superior to ordinary high school Copr. e West 1997 No claim to orig. U.S. govt. works I 05/17/97 13:55:56 Jest Publishing Co.-> 2862559709 Page 009 92 S.Ct. 1526 Page 8 (Cite as:406 U.S. 205, *212, 92 S.Ct. 1526, **1532) education. The evidence also showed that the also Ginsberg v. New York, 390 U.S. 629, 639, • Amish have an excellent *213 record as law- 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968); abiding and generally self-sufficient members Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. of society. 625, 67 L.Ed. 1042 (1923); cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 90 Although the trial court in its careful S.Ct. 1484, 25 L.Ed.2d 736 (1970). Thus, a findings determined that the Wisconsin State's interest in universal education, compulsory school-attendance law 'does however highly we rank it, is not totally free interfere with the freedom of the Defendants from a balancing process when it impinges on to act in accordance with their sincere fundamental rights and interests, such as religious belief it also concluded that the those specifically protected by the Free requirement of high school attendance until Exercise Clause of the First Amendment, and age 16 was a 'reasonable and constitutional' the traditional interest of parents with respect exercise of governmental power, and therefore to the religious upbringing of their children so denied the motion to dismiss the charges. The long as they, in the words of Pierce, 'prepare Wisconsin Circuit Court affirmed the (them) for additional obligations.' 268 U.S., at convictions. The Wisconsin Supreme Court, 535,45 S.Ct., at 573. however, sustained respondents' claim under the Free Exercise Clause of the First [3] It follows that in order for Wisconsin to Amendment and reversed the convictions. A compel school attendance beyond the eighth majority of the court was of the opinion that grade against a claim that such attendance the State had failed to make an adequate interferes with the practice of a legitimate showing that its interest in 'establishing and religious belief, it must appear either that the maintaining an educational system overrides State does not deny the free exercise of the defendants' right to the free exercise of religious belief by its requirement, or that their religion.' 49 Wis.2d 430, 447, 182 there is a state interest of sufficient N.W.2d 539, 547(1971). magnitude to override the interest claiming protection under the Free Exercise Clause. I Long before there was general • acknowledgment of the need for universal [1][2] There is no doubt as to the power of a formal education, the Religion Clauses had State, having a high responsibility for specifically and firmly fixed the right to free education of its citizens, to impose reasonable exercise of religious beliefs, and buttressing regulations for the control and duration of this fundamental right was an equally firm, basic education. See, e.g., Pierce v. Society of even if less explicit, prohibition against the Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 573, establishment of any religion by government. 69 L.Ed. 1070(1925). Providing public schools The values underlying these two provisions ranks at the very apex of the function of a relating **1533 to religion have been State. Yet even this paramount responsibility zealously protected, sometimes even at the was, in Pierce, made to yield to the right of expense of other interests of admittedly high parents to provide an equivalent education in social importance. The invalidation of a privately operated system. There the Court financial aid to parochial schools by held that Oregon's statute compelling government grants for a salary subsidy for attendance in a public school from age eight to teachers is but one example of the extent to age 16 unreasonably interfered with the which courts have gone in this regard, interest of parents in directing the rearing of notwithstanding that such aid programs were their off-spring, including their education in legislatively determined to be in the public church-operated schools.As that case suggests, interest and the service of sound educational the values of parental direction of the policy by States and by Congress. Lemon v. religious upbringing *214 and education of *215 Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, their children in their early and formative 29 L.Ed.2d 745 (1971); Tilton v. Richardson, years have a high place in our society. See 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 Copr. ®West 1997 No claim to orig. U.S.govt. works I 05/17/97 13:57:24 West Publishing Co.-> 2062559709 Page 010 92 S.Ct. 1526 Page 9 (Cite as:406 U.S. 205, *215, 92 S.Ct. 1526, **1533) (1971). See also Everson v. Board of values of his time and isolated himself at • Fclucation, 330 U.S. 1, 18, 67 S.Ct. 504, 513, Walden Pond, their claims would not rest on a 91 L.Ed. 711 (1947). religious basis. Thoreau's choice was philosophical and personal rather than [41[5] The essence of all that has been said religious, and such belief does not rise to the and written on the subject is that only those demands of the Religion Clauses. interests of the highest order and those not otherwise served can overbalance legitimate FN6. See Welsh v. United States, 398 claims to the free exercise of religion- We can U.S. 333, 351--361, 90 S.Ct. 1792, 1802-- accept it as settled, therefore, that, however 1807, 26 L.Ed.2d 308 (1970) (Harlan, J., strong the State's interest in universal concurring in result); United States v. compulsory education, it is by no means Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 absolute to the exclusion or subordination of L.Ed. 1148(1944). all other interests. E.g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 Giving no weight to such secular (1963); McGowan v. Maryland, 366 U.S. 420, considerations, however, we see that the 459, 81 S.Ct. 1101, 1122, 6 L.Ed.2d 393 (1961) record in this case abundantly supports the (separate opinion of Frankfurter, J.); Prince v. claim that the traditional way of life of the Marssachusetts, 321 U.S. 158, 165, 64 S.Ct. Amish is not merely a matter of personal 438,441,88 L.Ed. 645(1944). preference, but one of deep religious conviction, shared by an organized group, and II intimately related to daily living. That the Old Order Amish daily life and religious [6][7][8] We come then to the quality of the practice stern from their faith is shown by the claims of the respondents concerning the fact that it is in response to their literal alleged encroachment of Wisconsin's interpretation of the Biblical injunction from compulsory school-attendance statute on their the Epistle of Paul to the Romans, 'be not rights and the rights of their children to the conformed to this world . . ..'This command is free exercise of the religious beliefs they and fundamental to the Amish faith. Moreover, • their forbears have adhered to for almost three for the Old Order Amish, religion is not centuries. In evaluating those claims we must simply a matter of theocratic belief. As the be careful to determine whether the Amish expert witnesses explained, the Old Order religious faith and their made of life are, as Amish religion pervades and **1534 they claim, inseparable and interdependent. determines virtually their entire way of life, A way of life, however virtuous and regulating it with the detail of the Talmudic admirable, may not be interposed as a barrier diet through the strictly enforced rules of the to reasonable state regulation of education if church community. it is based on purely secular considerations; to have the protection of the Religion Clauses, The record shows that the respondents' the claims must be rooted in religious belief. religious beliefs and attitude toward life, Although a determination of what is a family, and home have remained constant-- 'religious' belief or practice entitled to perhaps some would say static--in a period of constitutional protection may present a most unparalleled progress in human knowledge delicate question, [FN6l the very concept of generally and great chan ges in education. 111.11111111 ordered liberty precludes *216 allowing every [FN71 The respondents *217 freely concede, person to make his own standards on matters and indeed assert as an article of faith, that of conduct in which society as a whole has their religious beliefs and what we would important interests. Thus, if the Amish today call 'life style' have not altered in asserted their claims because of their fundamentals for centuries. Their way of life subjective evaluation and rejection of the in a church-oriented community, separated contemporary secular values accepted by the from the outside world and 'worldly' majority, much as Thoreau rejected the social influences, their attachment to nature and the Copr. ®West 1997 No claim to orig.U.S. govt. works 410 05/17/97 13:58:50 West Publishing Co.-> 2062559789 Page 011 92 S.Ct. 1526 Page 10 (Cite as:406 U.S. 205, *217, 92 S.Ct. 1526, **1534) soil, is a way inherently simple and contravenes the basic religious tenets and 1111 uncomplicated, albeit difficult to preserve practice of the Amish faith, both as to the against the pressure to conform. Their parent and the child_ rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, FNB. Hostetler, supra, n. 5, c. 9; Hostetler their habits of manual work do indeed set &Huntington,supra,n. 5. them apart from much of contemporary society; these customs are both symbolic and The impact of the compulsory-attendance practical. law on respondents' practice of the Amish religion is not only severe,but inescapable,for FN7. See generally R. Butts &L. Cremin, the Wisconsin law affirmatively compels A History of Education in American them, under threat of criminal sanction, to Culture (1953); L. Cremin, The perform acts undeniably at odds with Transformation of the School(1961). fundamental tenets of their religious beliefs. See Braunfeld v. Brown, 366 U.S. 699, 605,81 As the society around the Amish has become S.Ct. 1144, 1147, 6 L.Ed.2d 563 (1961). Nor is more populous, urban, industrialized, and the impact of the compulsory-attendance law complex, particularly in this century, confined to grave interference with important government regulation of human affairs has Amish religious tenets from a subjective point correspondingly become more detailed and of view. It carries with it precisely the kind of pervasive. The Amish mode of life has thus objective danger to the free exercise of religion come into conflict increasingly with that the First Amendment was designed to requirements of contemporary society exerting prevent. As the record shows, compulsory a hydraulic insistence on conformity to school attendance to age 16 for Amish children majoritarian standards. So long as carries with it a very real threat of compulsory education laws were confined to undermining the Amish community and eight grades of elementary basic education religious practice as they exist today; they imparted in a nearby rural schoolhouse, with must either abandon belief and be assimilated a large proportion of students of the Amish into **1535 society at large, or be forced to • faith, the Old Order Amish had little basis to migrate to some other and more tolerant fear that school attendance would expose their region. [FN9] children to the worldly influence they reject. But modern compulsory secondary education FN9. Some States have developed in rural areas is now largely carried on in a working arrangements with the Amish consolidated school, often remote from the regarding high school attendance. See n. student's home and alien to his daily home 3, supra However, the danger to the life. As the record so strongly shows, the continued existence of an ancient values and programs of the modern secondary religious faith cannot be ignored simply school are in sharp conflict with the because of the assumption that its fundamental mode of life mandated by the adherents will continue to be able, at Amish religion; modern laws requiring considerable sacrifice, to relocate in some compulsory secondary education have more tolerant State or country or work accordingly engendered great concern and out accommodations under threat of conflict. ['N8l *218 The conclusion is criminal prosecution. Forced migration of inescapable that secondary schooling, by religious minorities was an evil that lay exposing Amish children to worldly influences at the heart of the Religion Clauses. See, in terms of attitudes, goals, and values e.g., Everson v. Board of Education, 330 contrary to beliefs, and by substantially U.S. 1, 9- 10, 67 S.Ct. 504, 508--509, 91 interfering with the religious development of L.Ed. 711 (1947); Madison, Memorial and the Amish child and his integration into the Remonstrance Against Religious way of life of the Amish faith community at Aswssments, 2 Writings of James the crucial adolescent stage of development, Madison 183 (G. Hunt ed. 1901). Copr. ®West 1997 No claim to orig. U.S. govt. works I 05/17/97 14:00:1G [Jest Publishing Co.-> 2062559789 Page 012 92 S.Ct. 1526 Page 11 (Cite as:406 U.S. 205, *219, 92 S.Ct. 1526, **1535) *219 [91 In sum, the unchallenged testimony Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 • of acknowledged experts in education and religious history, almost 300 years of L.Ed. 645 (1944); Reynolds v. United States, 98 U.S. 145,25 L.Ed. 244(1879). But to agree consistent practice, and strong evidence of a that religiously grounded conduct must often sustained faith pervading and regulating be subject to the broad police power of the respondents' entire mode of life support the State is not to deny that there are areas of claim that enforcement of the State's conduct protected by the Free Exercise Clause requirement of compulsory formal education of the First Amendment and thus beyond the after the eighth grade would gravely endanger power of the State to control, even under if not destroy the free exercise of respondents' regulations of general applicability. E.g., religious beliefs. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Murdock v. III Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cantwell v. Connecticut, Neither the findings of the trial court nor 310 U.S. 296, 303--304, 60 S.Ct. 900, 903, 84 the Amish claims as to the nature of their L.Ed. 1213 (1940). This case, therefore, does faith are challenged in this Court by the State not become easier because respondents were of Wisconsin. Its position is than the State's convicted for their 'actions'in refusing to send interest in universal compulsory formal their children to the public high school; in this secondary education to age 16 is so great that context belief and action cannot be neatly it is paramount to the undisputed claims of confined in **1536 logic-tight compartments. respondents that their mode of preparing their Cf. Lemon v. Kurtzman, 403 U.S., at 612, 91 youth for Amish life, after the traditional S.Ct., at 2111, 29 L.Ed.2d 745. elementary education, is an essential part of their religious belief and practice. Nor does FN10. That has been the apparent ground the State undertake to meet the claim that the for decision in several previous state cases Amish mode of life and education is rejecting claims for exemption similar to inseparable from and a part of the basic tenets that here. See, e.g., State v. Garber, 197 of their religion-indeed, as much a part of Kan. 567, 419 P.2d 896 (1966), cert. 411 their religious belief and practices as baptism, denied, 389 U.S. 51, 88 S.Ct. 236, 19 the confessional, or a Sabbath may be for L.Ed.2d 50 (1967); State v. Hershberger, others. 103 Ohio App. 188, 144 N.E.2d 693 (1955); Commonwealth v_ Beiler, 168 [101 Wisconsin concedes that under the Pa.Super.462, 79 A.2d 134(1951). Religion Clauses religious beliefs are absolutely free from the State's control, but it [111[121 Nor can this case be disposed of on argues that 'actions,' even though religiously the grounds that Wisconsin's requirement for grounded, are outside the protection of the school attendance to age 16 applies uniformly First Amendment. [FN10] But our decisions to all citizens of the State and does not, on its have rejected the idea that *220 religiously face, discriminate against religions or a grounded conduct is always outside the particular religion, or that it is motivated by protection of the Free Exercise Clause. It is legitimate secular concerns. A regulation true that activities of individuals, even when neutral on its face may, in its application, religiously based, are often sullject to nonetheless offend the constitutional regulation by the States in the exercise of requirement for governmental neutrality if it their undoubted power to promote the health, unduly burdens the free exercise of religion. safety, and general welfare, or the Federal Sherbert v. Verner, supra; cf. Walz v. Tax Government in the exercise of its delegated Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 powers. See, e.g., Gillette v. United States, L.Ed.2d 697(1970). The Court must not ignore 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 the danger that an exception *221 from a (1971); Braunfeld v. Brown, 366 U.S. 599, 81 general obligation of citizenship on religious S.Ct. 1144, 6 L.Ed.2d 563 (1961); Prince v. grounds may run afoul of the Establishment Copr. e West 1997 No claim to orig. U.S. govt.works 85/1?/97 14:81:43 West Publishing Co.-> 2862559789 Page 813 92 S.Ct. 1526 Page 12 (Cite as:406 U.S. 205, *221, 92 S.Ct. 1526, "*1536) Clause, but that danger cannot be allowed to those interests. Respondents' experts testified • prevent any exception no matter how vital it at trial, without challenge, that the value of may be to the protection of values promoted by all education must be assessed in terms of its the right of free exercise. By preserving capacity to prepare the child for life. It is one doctrinal flexibility and recognizing the need thing to say that compulsory education for a for a sensible and realistic application of the year or two beyond the eighth grade may be Religion Clauses necessary when its goal is the preparation of 'we have been able to chart a course that the child for life in modern society as the preserved the autonomy and freedom of majority live, but it is quite another if the religious bodies while avoiding any goal of education be viewed as the preparation semblance of established religion. This is a of the child for life in the separated agrarian 'tight rope' and one we have successfully community that is the keystone of the Amish traversed.' Walz v. Tax Commission, supra, faith. See Meyer v. Nebraska, 262 U.S., at at 672,90 S.Ct., at 1413. 400,43 S.Ct., at 627,67 L.Ed. 1042. We turn, then, to the State's broader The State attacks respondents' position as contention that its interest in its system of one fostering 'ignorance' from which the child compulsory education is so compelling that must be protected by the State. No one can even the established religious practices of the question the State's duty to protect children Amish must give way. Where fundamental from ignorance but this argument does not claims of religious freedom are at stake, square with the facts disclosed in the record. however, we cannot accept such a sweeping Whatever their idiosyncrasies as seen by the claim; despite its admitted validity in the majority, this record strongly shows that the generality of cases, we must searchingly Amish community has been a highly examine the interests that the State seeks to suaYssful "1537 social unit within our promote by its requirement for compulsory society, even if apart from the conventional education to age 16, and the impediment to 'mainstream ' Its members are productive and those objectives that would flow from very law-abiding members of society; they recognizing the claimed Amish exemption. reject public welfare in any of its usual • See, e.g., Sherbert v. Verner, supra; Martin v. modern forms. The Congress itself recognized City of Struthers, 319 U.S. 141, 63 S.Ct. 862, their self-sufficiency by authorizing exemption 87 L.Ed. 1313 (1943); Schneider v. State, 308 of such groups as the Amish from the U.S. 147,60 S.Ct. 146,84 L.Ed. 155(1939). obligation to pay social security taxes. (FN111 The State advances two primary arguments FN11. Title 26 U.S.C. s 1402(h)authorizes in support of its system of compulsory the Secretary of Health, Education, and education. It notes, as Thomas Jefferson Welfare to exempt members of 'a pointed out early in our history, that some recognized religious sect' existing at all degree of education is necessary to prepare times since December 31, 1950, from the citizens to participate effectively and obligation to pay social security taxes if intelligently in our open political system if we they are, by reason of the tenets of their are to preserve freedom and independence. sect, opposed to receipt of such benefits Further, education prepares individuals to be and agree to waive them, provided the self-reliant and self-sufficient participants in Secretary finds that the sect makes society. We accept these propositions. reasonable provision for its dependent members. The history of the exemption *222 However, the evidence adduced by the shows it was enacted with the situation of Amish in this case is persuasively to the effect the Old Order Amish specifically in view. that an additional one or two years of formal H.R.Rep.No.213, 89th Cong., 1st Sess., high school for Amish children in place of 101--102 (1965). The record in this case their long-established program of informal establishes without contradiction that the vocational education would do little to serve Green County Amish had never been Copr. e West 1997 No claim to orig. U.S. govt. works • 85/17/97 14:83:11 West Publishing Co.-> Z062559789 Page 814 92 S.Ct. 1526 Page 13 (Cite as:406 U.S. 205, *222, 92 S.Ct. 1526, **1537) known to commit crimes, that none had The State, however, supports its interest in • been known to receive public assistance,and that none were unemployed. providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some *222 It is neither fair nor correct to suggests such children will choose to leave the Amish that the Amish are opposed to education community, and that if this occurs they will be beyond the eighth grade leveL What this ill-equipped for life. The State argues that if record shows is that they are opposed to Amish children leave their church they should conventional formal education of the type not be in the position of making their way in provided by a certified high school because it the world without the education available in comes at the child's crucial adolescent period the one or two additional years the State of religious development. Dr. Donald requires. However, on this record, that Erickson, for example, testified that their argument is highly speculative. There is no system of learning-by-doing was an 'ideal specific evidence of the loss of Amish system' of education in terms of preparing adherents by attrition, nor is there any Amish children for life as adults in the Amish showing that upon leaving the Amish community, and that 'I would be inclined to community Amish children, with their say they do a better job in this than most of practical agricultural training and habits of the rest of us do.' As he put it, 'These people industry and self-reliance, would become aren't purporting to be learned people, and it burdens on society because of educational seems to me the self-sufficiency of the shortcomings. Indeed, this argument of the community is the best evidence I can point to-- State appears to rest primarily on the State's whatever is being done seems to function mistaken assumption, already noted, that the well.' [FN12] Amish do not provide any education for their children beyond the eighth grade, but **1538 FN12. Dr. Erickson had previously allow them to grow in 'ignorance.' To the written: 'Many public educators would be contrary, not only do the Amish accept the elated if their programs were as successful necessity for formal schooling through the in preparing students for productive eighth grade level, but continue to provide • community life as the Amish system what has been characterized by the Deems to be. In fact, while some public undisputed testimony of expert educators as schoolmen strive to outlaw the Amish an 'ideal' vocational education for their approach, others are being forced to children in the adolescent years. emulate many of its features.' Erickson, Showdown at an Amish Schoolhouse: A There is nothing in this record to suggest Description and Analysis of the Iowa that the Amish qualities of reliability, self- Controversy, in Public Controls for reliance, and dedication to work would fail to Nonpublic Schools 15, 53 (D. Erickson ed. find ready markets in today's society. Absent 1969). And see Littell, supra,n. 5, at 61, some contrary evidence supporting the *225 State's position, we are unwilling to assume We must not forget that in the Middle Ages that persons possessing such valuable important values of the civilization of the vocational skills and habits are doomed to Western World were preserved by members of become burdens on society should they religious orders who isolated themselves from determine to leave the Amish faith, nor is all worldly influences against great obstacles. there any h2ais in the record to warrant a There can be no assumption that today's finding that an additional one or two years of majority is *224 'right' and the Amish and formal school education beyond the eighth others like them are 'wrong.' A way of life grade would serve to eliminate any such that is odd or even erratic but interferes with problem that might exist. no rights or interests of others is not to be condemned because it is different. Insofar as the State's claim rests on the view that a brief additional period of formal Copr. *West 1997 No claim to orig. U.S. govt. works • 05/17/97 14:04:37 West Publishing Co.-> 2062559789 Page 015 92 S.Ct. 1526 Page 14 (Cite as:406 U.S. 205, *225, 92 S.Ct. 1526, **1538) education is imperative to enable the Amish so far as the mass of the people were • to participate effectively and intelligently in concerned, he envisaged that a basic our democratic process, it must fall. The education in the 'three R's' would Amish alternative to formal secondary school sufficiently meet the interests of the education has enabled them to function State. He suggested that after completion effectively in their day-to-day life under self- of elementary school, 'those destined for imposed limitations on relations with the labor will engage in the business of world, and to survive and prosper in agriculture, or enter into apprenticeships contemporary society as a separate, sharply to such handicraft art as may be their identifiable and highly self-sufficient choice.' Letter from Thomas Jefferson to community for more than 200 years in this Peter Carr, Sept. 7, 1814, in Thomas country. In itself this is strong evidence that Jefferson and Education in a Republic 93-- they are capable of fulfilling the social and 106 (Arrowood ed. 1930). See also id., at political responsibilities of citizenship without 60--64, 70,83, 136--137. compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise The requirement for compulsory education of religious belief. [FN131 When Thomas beyond the eighth grade is a relatively recent Jefferson emphasized the need for education development in our history. Tess than 60 as a bulwark of a free people against tyranny, years ago, the educational requirements of there is nothing to indicate he had hi mind almost all of the States were satisfied by compulsory education through any fixed age completion of the elementary grades, at least beyond a basic education. Indeed, the Amish where the child was regularly and lawfully communities singularly parallel and reflect employed. [FN151 **1539 The independence many of the virtues of Jefferson's ideal of the *227 and successful social functioning of the 'sturdy yeoman' who would form the baths of Amish community for a period approaching what he considered as the *226 ideal of a almost three centuries and more than 200 democratic society. [FN141 Even their years in this country are strong evidence that idiosyncratic separateness exemplifies the there is at best a speculative gain, in terms of diversity we profess to admire and encourage. meeting the duties of citizenship, from an • additional one or two years of compulsory FN13. All of the children involved in this formal education. Against this background it case are graduates of the eighth grade. In would require a more particularized showing the county court, the defense introduced a from the State on this point to justify the study by Dr. Hostetler indicating that severe interference with religious freedom Amish children in the eighth grade such additional compulsory attendance would achieved comparably to non-Amish entail. children in the basic skills. Supp.App. 9-- 11. See generally Hostetler & FN15. See Dept. of Interior, Bureau of Huntington, supra,n. 5, at 88--96. Education, Bulletin No. 47, Digest of State Laws Relating to Public Education FN14, While Jefferson recognized that 527--559(1916);Joint Hearings on S. 2475 education was essential to the welfare and and H.R. 7200 before the Senate liberty of the people, he was reluctant to Committee on Education and Labor and directly force instruction of children 'in the House Committee on Labor, 75th opposition to the will of the parent.' Cong., 1st Sess., pt. 2,p.416. Even today, Instead he proposed that state citirpnship an eighth grade education fully satisfies be conditioned on the ability to 'read the educational requirements of at least readily in some tongue, native or six States. See Ariz.Rev.Stat.Ann. s 15-- acquired.' Letter from Thomas Jefferson 321, subset. B, par. 4 (1956); to Joseph Cabell, Sept. 9, 1817, in 17 Ark.Stat.Arm. s 80--1504 (1947); Iowa Writings of Thomas Jefferson 417, 423-- Code s 299.2 (1971); S.D.Comp.Laws Ann. 424 (Mem. ed. 1904). And it is clear that, s 13--27--1 (1967); Wyo.Stat.Ann. s 21.1-- Copr. ®West 1997 No claim to orig. U.S. govt.works • 05/17/9? 14:06:04 hest Publishing Co.-> 2062559789 Page 016 92 S.Ct. 1526 Page 15 (Cite as:406 U.S. 205, *227, 92 S.Ct. 1526, **1539) 48 (Supp.1971). (Mississippi has no until that age. But at the same time, it • compulsory education law.) A number of other States have flexible provisions cannot be denied that, conversely, the 16 year education limit reflects, in substantial permitting children aged 14 or having measure, the concern that children under that completed the eighth grade to be excused age not be employed under conditions from school in order to engage in lawful hazardous to their health, or in work that employment. E.g., Colo.Rev.Stat.Ann. ss should be performed by adults. 123--20--5, 80--6--1 to 80-6-12 (1963); Conn"Gen_Stat.Rev. ss 10-184, 10--189 FN16. See, e.g., Joint Hearings, supra, n. (1964); D.C.Cod• Ann. ss 31--202, 36--201 15, pt. 1, at 185--187 (statement of to 36--228 (1967); Ind.Ann.Stat. ss 28--505 Frances Perkins, Secretary of Labor), pt. to 28--506, 28--519 (1948); Mass.Gen.Laws 2, at 381-387 (statement of Katherine Ann., c. 76, s 1 (Supp.1972) and c. 149, a Lenroot, Chief, Children's Bureau, 86 (1971); Mo.Rev.Stat. ss 167.031, Department of Labor); National Child 294.051 (1969); Nev.Rev.Stat. s 392.110 Labor Committee, 40th Anniversary (1968); N.M.Stat.Ann. s 77--10--6 (1968). Report, The Long Road (1944); 1 G. An eighth grade education satisfied Abbott, The Child and the State 259--269, Wisconsin's formal education 566 (Greenwood reprint 1968); L. Cremin, requirements until 1933. See Wis.Laws The Transformation of the School, c. 3 1927, c. 425, s 97; Laws 1933, c. 143. (1961); A. Steinhilber & C. Sokolowski, (Prior to 1933, provision was made for State Law on Compulsory Attendance 3--4 attendance at continuation or vocational (Dept. of Health, Education, and Welfare schools by working children past the 1966). eighth grade, but only if one was maintained by the community in FN17. 52 Stat. 1060, as amended, 29 question.) For a general discussion of the U.S.C. as 201--219. early development of Wisconsin's compulsory education and child labor The requirement of compulsory schooling to laws, see F. Ensign, Compulsory School age 16 must therefore be viewed as aimed not • Attendance and Child Labor 203--230 merely at providing educational opportunities (1921). for children, but as an alternative to the equally undesirable consequence of We should also note that compulsory unhealthful child labor displacing adult education and child labor laws find their workers, or, on the other hand, forced idleness. historical origin in common humanitarian [FN18] The two kinds of statutes--compulsory instincts, and that the age limits of both laws school attendance and child labor laws--tend to have been coordinated to achieve their related keep children of certain ages off the labor objectives. [FN16] In the context of this case, market and in school; this regimen in **1540 such considerations, *228 if anything, support turn provides opportunity to prepare for a rather than detract from respondents'position. livelihood of a higher order than that which The origins of the requirement for school children could pursue without education and attendance to age 16, an age falling after the protects their health in adolescence. completion of elementary school but before completion of high school, are not entirely FN18. See materials cited n. 16, supra; clear. But to some extent such laws reflected Casad, Compulsory Education and the movement to prohibit most child labor Individual Rights, in 5 Religion and the under age 16 that culminated in the Public Order 51, 82 (D. Giannella ed. provisions of the Federal Fair Labor (1969). Standards Act of 1938. [FN17] It is true, then, that the 16-year child labor age limit may to In these terms, Wisconsin's interest in some degree derive from a contemporary compelling the school attendance of Amish impression that children should be in school children to age 16 emerges as somewhat less Copr. e West 1997 No claim to orig. U.S. govt. works 05/17/97 14;87;27 West Publishing Co. -) 2062559789 Page 01? 92 S.Ct. 1526 Page 16 (Cite as:406 U.S. 205, *228, 92 S.Ct. 1526, **1540) substantial than requiring such attendance the legislature could legitimately associate • *229 for children generally. For, while with child labor, even when performed in the agricultural employment is not totally outside company of an adult. 321 U.S., at 169-170,64 the legitimate concerns of the child labor laws, S.Ct., at 443--444. The Court later took great employment of children under parental care to confine Prince to a narrow scope in guidance and on the family farm from age 14 Sherbert v.Verner, when it stated: to age 16 is an ancient tradition that lies at 'On the other hand, the Court has rejected the periphery of the objectives of such laws. challenges under the Free Exercise Clause [FN191 There is no intimation that the Amish to governmental regulation of certain overt employment of their children on family farms acts prompted by religious beliefs or is in any way deleterious to their health or principles, for 'even when the action is in that Amish parents exploit children at tender accord with one's religious convictions,(it)is years. Any such inference would be contrary not totally free from legislative restrictions.' to the record before us. Moreover, Braunfeld v. Brown, 366 U.S. 599, 603, 81 employment of Amish children on the family S.Ct. 1144, 1146, 6 L.Ed.2d 563. The farm does not present the undesirable conduct or actions so regulated have economic aspects of eliminating jobs that invariably posed some substantial threat to might otherwise be held by adults. public safety, peace or order. See, e.g., Reynolds v. United States, 98 U.S. 145, 25 FN19. See, e.g., Abbott, supra, n. 16 at L.Ed. 244; Jacobson v. Massachusetts, 197 266. The Federal Fair Labor Standards U.S. 11,25 S.Ct. 358, 49 L.Ed. 643;Prince v. Act of 1938 excludes from its definition of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, '(o)ppressive child labor' employment of a 88 L.Ed. 645 . . ..' 374 U.S., at 402--403, 83 child under age 16 by 'a parent . . . S.Ct., at 1793. employing his own child . . . in an occupation other than manufacturing or This case, of course, is not one in which any mining or an occupation found by the harm to the physical or mental health of the Secretary of Labor to be particularly child or to the public safety, peace, order, or hazardous for the employment of children welfare has been demonstrated or may be • between the ages of sixteen and eighteen properly inferred. [FN20] The record is to the years or detrimental to their health or contrary, and ""1541 any reliance on that well-being.'29 U.S.C. s 203(1). theory would find no support in the evidence. IV FN20. Cf.e.g.,Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 [131 Finally, the State, on authority of (1905); Wright v. DeWitt School District, Prince v. Massachusetts, argues that a 238 Ark. 906, 385 S.W.2d 644 (1965); decision exempting Amixh children from the Application of President and Directors of State's requirement fails to recognize the Georgetown College, Inc., 118 substantive right of the Amish child to a U.S.App.D.C. 80, 87--90, 331 F.2d 1000, secondary education, and fails to give due 1007--1010 (1964) (in-chambers opinion), regard to the power of the State as parens cert. denied, 377 U.S. 978, 84 S.Ct. 1883, patriae to extend the benefit of secondary 12 L.Ed.2d 746(1964). education to children regardless of the wishes of their parents. Taken at its broadest sweep, Contrary to the suggestion of the dissenting the Court's language in Prince, might be read opinion of Mr. Justice DOUGLAS, our holding to give support to the State's position. today in no degree depends on the assertion of However, the Court was not confronted in the religious interest of the child as contrasted Prince with a situation comparable to that of with that of the parents. It is the parents who the Amish as revealed in this record; this is are subject to prosecution here for failing to shown by the *230 Court's severe cause their children to attend school, and it characterization of the evils that it thought *231 is their right of free exercise, not that of Copr. e West 1997 No claim to orig. U.S. govt. works 05/17/9? 14:00:52 West Publishing Co.-> 2062559704 Page 01] 92 S.Ct. 1526 Page 17 (Cite as:406 U.S. 205, *231, 92 S.Ct. 1526, **1541) their children, that must determine nor decide those issues. • Wisconsin's power to impose criminal penalties on the parent. The dissent argues The State's argument proceeds without that a child who expresses a desire to attend reliance on any actual conflict between the public high school in conflict with the wishes wishes of parents and children. It appears to of his parents should not be prevented from rest on the potential that exemption of Amish doing so. There is no reason for the Court to parents from the requirements of the consider that point since it is not an issue in compulsory-education law might allow some the case. The children are not parties to this parents to act contrary to the best interests of litigation. The State has at no point tried this their children by foreclosing their opportunity case on the theory that respondents were to make an intelligent choice between the preventing their children from attending Amish way of life and that of the outside school against their expressed desires, and world. The same argument could, of course, indeed the record is to the contrary. [FN211 be made with respect to all church schools The State's position from the outset has been short of college, There is nothing in the record that it is empowered to apply its compulsory- or in the ordinary course of human experience attendance law to Amish parents in the same to suggest that non-Amish parents generally manner as to other parents--that is, without consult with children of ages 14--16 if they are regard to the wishes of the child. That is the placed in a church school of the parents'faith. claim we reject today. Indeed it seems clear that if the State is FN21. The only relevant testimony in the empowered, as parens patriae, to 'save' a child record is to the effect that the wishes of from himself or his Amish parents by the one child who testified corresponded requiring an additional two years of with those of her parents. Testimony of compulsory formal high school education, the Frieda Yoder, Tr. 92--94, to the effect that State will in large measure influence, if not her personal religious beliefs guided her determine, the religious future of the child. decision to discontinue school attendance Even more markedly than in Prince, after the eighth grade. The other children therefore, this case involves the fundamental • were not called by either side. interest of parents, as contrasted with that of the State, to guide the religious future and Our holding in no way determines the education of their children. The history and proper resolution of possible competing culture of Western civilization reflect a strong interests of parents, children, and the State in tradition of parental concern for the nurture an appropriate state court proceeding in which and upbringing of their children. This primary the power of the State is asserted on the role of the parents in the upbringing of their theory that Amish parents are preventing children is now established beyond debate their minor children from attending high **1542 as an enduring American tradition. If school despite their expressed desires to the not the first, perhaps the most significant contrary. Recognition of the claim of the State statements of the Court in this area are found in such a proceeding would,of course, call into in Pierce v. Society of Sisters, in which the question traditional concepts of parental Court observed: control over the religious upbringing and 'Under the doctrine of Meyer v. Nebraska, education of their minor children recognized 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, in this Court's past decisions. It is clear that 29 A.L.R. 1146, we think it entirely plain such an intrusion by a State into family that the Act *233 of 1922 unreasonably decisions in the area of religious training interferes with the liberty of parents and would give rise to grave questions of religious guardians to direct the upbringing and freedom comparable to those raised here *232 education of children under their control. As and those presented in Pierce v. Society of often heretofore pointed out, rights Sisters, 268 U.S. 510, 45 S.Ct, 571, 69 L.Ed. guaranteed by the Constitution may not be 1070 (1925). On this record we neither reach abridged by legislation which has no Copr. ®West 1997 No claim to orig. U.S. govt. works • 05/17/97 14:10:21 West Publishing Co.—> 2062559789 Pagn 019 92 S.Ct. 1526 Page 18 (Cite es:406 U.S. 205, *233, 92 S.Ct. 1526, **1542) reasonable relation to some purpose within not impair the physical or mental health of the competency of the State. The the child, or result in an inability to be self- • fundamental theory of liberty upon which supporting or to discharge the duties and all governments in this Union repose responsibilities of citizenship, or in any other excludes any general power of the State to way materially detract from the welfare of standardize its children by forcing them to society. accept instruction from public teachers only. The child is not the mere creature of the In the fact of our consistent emphasis on the • State; those who nurture him and direct his central values underlying the Religion destiny have the right, coupled with the Clauses in our constitutional scheme of high duty, to recognize and prepare him for government, we cannot acript a parens additional obligations.' 268 U.S., at 534-- patriae claim of such all-encompassing scope 535,45 S.Ct., at 573. and with such sweeping potential for broad and unforeseeable application as that urged by [14] The duty to prepare the child for the State. 'additional obligations,' referred to by the Court, must be read to include the inculcation V of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, [161[17l For the reasons stated we hold, with recognized that where nothing more than the the Supreme Court of Wisconsin, that the general interest of the parent in the nurture First and Fourteenth Amendments prevent and education of his children is involved, it is the State from compelling respondents to beyond dispute that the State acts'reasonably' cause their children to attend formal high and constitutionally in requiring education to school to age 16. [FN22] Our disposition of age 16 in some public or private school this case, **1543 however, in no way *235 meeting the standards prescribed by the State. alters our recognition of the obvious fact that courts are not school boards or legislatures, [15] However read, the Court's holding in and are ill-equipped to determine the Pierce stands as a charter of the rights of 'necessity' of discrete aspects of a State's • parents to direct the religious upbringing of their children. And, when the interests of program of compulsory education. This should suggest that courts must move with great parenthood are combined with a free exercise circumspection in performing the sensitive claim of the nature revealed by this record, and delicate task of weighing a State's more than merely a 'reasonable relation to legitimate social concern when faced with some purpose within the competency of the religious claims for exemption from generally State' is required to sustain the validity of the applicable education requirements. It cannot State's requirement under the First be overemphasized that we are not dealing Amendment. To be sure, the power of the with a way of life and mode of education by a parent, even when linked to a free exercise group claiming to have recently discovered claim, may be subject to limitation under some 'progressive'or more enlightened process Prince *234 if it appears that parental for rearing children for modern life. decisions will jeopardize the health or safety of the child, or have a potential for significant FN22. What we have said should meet the social burdens. But in this case, the Amish suggestion that the decision of the have introduced persuasive evidence Wisconsin Supreme Court recognizing an undermining the arguments the State has exemption for the Amish from the State's advanced to support its claims in terms of the system of compulsory education welfare of the child and society as a whole, constituted an impermissible The record strongly indicates that establishment of religion. In Wale v. Tax accommodating the religious objections of the Commission, the Court saw the three Amish by forgoing one, or at most two, main concerns against which the additional years of compulsory education will Establishment Clause sought to protect as Copr. ©West 1997 No claim to orig. U.S. govt.works 05/17/97 14:11:46 West Publishing Co.—> 2062559709 Page 0Z0 92 S.Ct. 1526 Page 19 (Cite as:406 U.S. 205, *235, 92 S.Ct. 1526, **1543) 'sponsorship, financial support, and active its admittrly strong interest in compulsory • involvement of the sovereign in religious education would be adversely affected by activity.' 397 U.S. 664,668,90 S.Ct. 1409, granting an exemption to the Amish. 1411, 25 L.Ed2d 697 (1970). Sherbert v.Verner, supra. Accommodating the religious beliefs of the Amish can hardly be characterized as Nothing we hold is intended to undermine sponsorship or active involvement. The the general applicability of the State's purpose and effect of such an exemption compulsory school-attendance statutes or to are not to support, favor, advance, or limit the power of the State to promulgate assist the Amish, but to allow their reasonable standards that, while not centuries-old religious society, here long impairing the free exercise of religion, provide before the advent of any compulsory for continuing agricultural vocational education, to survive free from the heavy education under parental and church guidance impediment compliance with the by the Old Order Amish or others similarly Wisconsin compulsory-education law situated. The States have had a long history would impose. Such an accommodation of amicable and effective relationships with 'reflects nothing more than the church-sponsored schools, and there is no basis governmental obligation of neutrality in for assuming that, in this related context, the face of religious differences, and does reasonable standards cannot be established not represent that involvement of concerning the content of the continuing religious with secular institutions which vocational education of Amish children under it is the object of the Establishment parental guidance, provided always that state Clause to forestall.' Sherbert v. Verner, regulations are not inconsistent with what we 374 U.S. 398, 409, 83 S.Ct. 1790, 1797, have said in this opinion. [FN23) 10 L.Ed.2d 965(1963). FN23. Several States have now adopted [18) Aided by a history of three centuries as plans to accommodate, Amish religious an identifiable religious sect and a long beliefs through the establishment of an history as a successful and self-sufficient 'Amish vocational school.' See n 3, . segment of American society, the Amish in supra. These are not schools in the this case have convincingly demonstrated the traditional sense of the word. As sincerity of their religious beliefs, the previously noted, respondents attempted interrelationship of belief with their mode of to reach a compromise with the State of life, the vital role that belief and daily conduct Wisconsin patterned after the play in the continued survival of Old Order Pennsylvania plan, but those efforts were Amish communities and their religious not productive. There is no basis to organization, and the hazards presented by the assume that Wisconsin will be unable to State's enforcement of a statute generally reach a satisfactory accommodation with valid as to others. Beyond this, they have the Amish in light of what we now hold, carried the even more difficult burden of so as to serve its interests without demonstrating the adequacy of their impinging an respondents' protected free alternative mode of continuing informal exercise of their religion. vocational education in terms of precisely those overall interests that the State advances Affirmed. in support of its program of compulsory high school education. In light of this convincing **1544 Mr. Justice POWELL and Mr. *236 showing, one that probably few other Justice REHNQULST took no part in the religious groups or sects could make, and consideration or decision of this case. weighing the minimal difference between what the State would require and what the *237 Mr. Justice STEWART, with whom Amish already accept, it was incumbent on Mr. Justice BRENNAN joins, concurring. the State to show with more particularity how Copr. e West 1997 No claim to orig. U.S. govt. works 05/17/9? 14:13:09 West Publishing Co.-> 2062559709 Page 021 92 S.Ct. 1526 Page 20 (Cite as:406 U.S. 205, *237, 92 S.Ct. 1526, **1544) This case involves the constitutionality of forbade their children from attending any • imposing criminal punishment upon Amish school at any time and from complying in any parents for their religiously based refusal to way with the educational standards set by the compel their children to attend public high State. Since the Amish children are permitted schools. Wisconsin has sought to brand these to acquire the basic tools of literacy to survive parents as criminals for following their in modern society by attending grades one religious beliefs, and the Court today rightly through eight and since the deviation from the holds that Wisconsin cannot constitutionally State's compulsory-education law is relatively • do so. slight, I conclude that respondents'claim must prevail, largely because 'religious freedom-- This case in no way involves any questions the freedom to believe and to practice strange regarding the right of the children of Amish and, it may be, foreign creeds-has classically parents to attend public high schools, or any been one of the highest values of our society.' other institutions of learning, if they wish to Braunfeld v. Brown, 366 U.S. 599, 612, 81 do so. As the Court points out, there is no S.Ct. 1144, 1150, 6 L.Ed.2d 563 (1961) suggestion whatever in the record that the (Brennan,J., concurring and dissenting). religious beliefs of the children here concerned differ in any way from those of their parents. The importance of the state interest asserted Only one of the children testified. The last two here cannot be denigrated,however: questions and answers on her cross- 'Today, education is perhaps the most examination accurately sum up her testimony: important function of state and local 'Q. So I take it then,Frieda, the only reason governments. Compulsory school you are not going to school, and did not go to attendance laws and the great expenditures school since last September, is because of for education both demonstrate our your religion? recognition of the importance of education to 'A. Yes. our democratic society. It is required in the 'Q. That is the only reason? performance of our most basic public 'A. Yes.'(Emphasis supplied.) responsibilities, even service in the armed forces. It is the very foundation of good • It is dear to me, therefore, that this record citizenship. Today it is a principal simply does not present the interesting and instrument in awakening the child to important issue discussed in Part II of the cultural values, in preparing him for later dissenting opinion of Mr. Justice DOUGLAS. professional training, and in helping him to With this observation, I join the opinion and adjust normally to his environment.' Brown the judgment of the Court. v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). **1545 Mr. Justice WHITE, with whom Mr. Justice *239 As recently as last Term, the Court BRENNAN and Mr. Justice STEWART join, reemphasized the legitimacy of the State's concurring. concern for enforcing minimal educational standards. Lemon v. Kurtzman, 403 U.S., Cases such as this one inevitably call for a 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d delicate balancing of important but conflicting 745(1971). [FN11 Pierce v. Society of Sisters, interests. I join the opinion and judgment of 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 the Court because I cannot *238 say that the (1925), lends no support to the contention State's interest in requiring two more years of that parents may replace state educational compulsory education in the ninth and tenth requirements with their own idiosyncratic grades outweighs the importance of the views of what knowledge a child needs to be concededly sincere Amish religious practice to a productive and happy member of society; the survival of that sect. in Pierce, both the parochial and military schools were in compliance with all the This would be a very different case for me if educational standards that the State had set, respondents' claim were that their religion and the Court held simply that while a State Copr. ©West 1997 No claim to orig. U.S. govt. works 05/17/97 14:14:35 Jest Publishing Co.-> 2062559709 Page FIZZ 92 S.Ct. 1526 Page 21 (Cite as:406 U.S. 205, *239, 92 S.Ct. 1526, **1545) may posit such standards, it may not pre- F.2d 1000, cert. denied, 377 U.S. 978, 84 • empt the educational process by requiring S.Ct. 1883, 12 L.Ed.2d 746(1964). children to attend public schools. [FN21 In the present case, the State is not concerned FN2. `No question is raised concerning with the maintenance of an educational the power of the State reasonably to system as an end in itself, it is rather regulate all schools, the inspect, supervise attempting to nurture and develop the and examine them, their teachers and human potential of its children, whether pupils; to require that all children of Amish or non-Amish: to expand their proper age attend some school, that knowledge, broaden their sensibilities, teachers shall be of good moral character kindle their imagination, foster a spirit of and patriotic disposition, that certain free inquiry, and increase their human studies plainly essential to good understanding and tolerance. It is possible citizenship must be taught, and that that most Amish *240 children will wish to nothing be taught which is manifestly continue living the rural life of their inimical to the public welfare.' Pierce v. parents, in which case their training at Society of Sisters, 268 U.S. 510, 534, 45 home will adequately equip them for their S.Ct. 571, 573,69 L.Ed. 1070(1925). future role. Others, however, may wish to become nuclear physicists, ballet dancers, FN3. Dr. Hostetler testified that though computer programmers, or historians, and there was a gradual increase in the total for these occupations, formal training will be number of Old Order Amish in the United necessary. There is evidence in the record States over the past 50 years, 'at the same that many children desert the Amish faith time the Amish have also lost members when they come of age. [FN31 A State has a (of) their church' and that the turnover legitimate interest not only in seeking to rate was such that 'probably two-thirds(of develop the latent talents of its children but the present Amish) have been assimilated also in seeking to prepare them for the life non-Amish people.' App. 110. Justice style that they may later choose, or at least Heffernan, dissenting below, opined that to provide them with an option other than 'Marge numbers of young people • the life they have led in the past. In the voluntarily leave the Amish community circumstances of this case, although the each year and are thereafter forced to question is close,I am unable to say that the make their way in the world.' 49 Wis.2d State has demonstrated that Amish children 430,451, 182 N.W.2d 539, 549(1971). who leave school in the eighth grade will be intellectually stultified or unable to acquire Decision in cases such as this and the new academic skills later. The statutory administration of an exemption for Old Order minimum school attendance age set by the Amish from the State's compulsory school- State is, after all, only 16. attendance laws will inevitably involve the kind of close and perhaps repeated scrutiny of FN1. The challenged Amish religious religious practices, as is exemplified in today's practice here does not pose a substantial opinion, which the Court has heretofore been threat to public safety, peace, or order, if anxious to avoid. But such entanglement does it did, analysis under the Free Exercise not create a forbidden **1546 establishment of Clause would be substantially different. religion where it is essential to implement See Jacobson v. Massachusetts, 197 U.S. free *241 exercise values threatened by an 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); otherwise neutral program instituted to foster Prince v. Massachusetts, 321 U.S. 158,64 some permissible, nonreligious state objective. S.Ct. 438, 88 L.Ed. 645 (1944); Cleveland I join the Court because the sincerity of the v. United States, 329 U.S. 14, 67 S.Ct. 13, Amish religious policy here is uncontested, 91 L.Ed. 12 (1946); Application of because the potentially adverse impact of the President and Directors of Georgetown state requirement is great, and because the College, Inc., 118 U.S.App.D.C. 80, 331 State's valid interest in education has already Copr. ®West 1997 No claim to orig. U.S. govt. works • 05/17/97 14:16:82 iJest Publishing Co.--> 2862559703 Page 023 92 S.Ct. 1526 Page 22 (Cite as:406 U.S. 205, *241, 92 S.Ct. 1526, **1546) been largely satisfied by the eight years the question was the religious liberty of the • children have already spent in school. adult. There, as here, the Court analyzed the problem from the point of view of the Mr. Justice DOUGLAS, dissenting in part. State's conflicting interest in the welfare of the child. But, as Mr. Justice Brennan, I speaking for the Court, has so recently pointed out, 'The Court (in Prince) I agree with the Court that the religious implicitly held that the custodian had scruples of the Amish are opposed to the standing to assert alleged freedom of education of their children beyond the grade religion . . . rights of the child that were schools, yet I disagree with the Court's threatened in the very litigation before conclusion that the matter is within the the Court and that the child had no dispensation of parents alone. The Court's effective way of asserting herself.' analysis assumes that the only interests at Eisenstadt v. Baird, 405 U.S. 438, 446 n. stake in the case are those of the Amish 6, 92 S.Ct. 1029, 1034, 31 L.Ed.2d 349. parents on the one hand, and those of the Here, as in Prince, the children have no State on the other. The difficulty with this effective alternate means to vindicate approach is that, despite the Court's claim, the their rights. The question, therefore, is parents are seeking to vindicate not only their squarely before us. own free exercise claims, but also those of their high-school-age children. Second, it is essential to reach the question to decide the case, not only because the It is argued that the right of the Amish question was squarely raised in the motion to children to religious freedom is not presented dismiss, but also because no analysis of by the facts of the case, as the issue before the religious-liberty claims can take place in a Court involves only the Amish parents' vacuum. If the parents in this case are religious freedom to defy a state criminal allowed a religious exemption, the inevitable statute imposing upon them an affirmative effect is to impose the parents' notions of duty to cause their children to attend high religious duty upon their children. Where the • school. child is mature enough to express potentially conflicting desires, it would be an invasion of First, respondents' motion to dismiss in the the child's rights to permit such an imposition trial court expressly asserts, not only the without canvassing his views. As in Prince v. religious liberty of the adults, but also that of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 the children, as a defense to the prosecutions. L.Ed. 645, it is an imposition resulting from It is, of course, beyond question that the this very litigation. As the child has no other parents have standing as defendants in a effective forum, it is in this litigation that his criminal prosecution to assert the religious rights should be considered. And, if an Amish interests of their *242 children as a defense. child desires to attend high school, and is [FN11 Although the lower courts and a mature enough to have that desire respected, majority of this Court assume an identity of the State may well be able to override the interest between parent and child, it is clear parents' religiously motivated objections. that they have treated the religious interest of the child as a factor in the analysis. **1547 *243 Religion is an individual experience. It is not necessary, nor even FN1. Thus, in Prince v. Massachusetts, appropriate, for every Amish child to express 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, his views on the subject in a prosecution of a a Jehovah's Witness was convicted for single adult. Crucial, however, are the views having violated a state child labor law by of the child whose parent is the subject of the allowing her nine-year-old niece and ward suit. Frieda Yoder has in fact testified that to circulate religious literature on the her own religious views are opposed to high- public streets. There, as here, the narrow school education. I therefore join the Copr. e West 1997 No claim to orig. U.S. govt. works • 05/17/97 14:17:25 West Publishing Co.-> 2062559709 Page 824 92 S.Ct. 1526 Page 23 (Cite as:406 U.S.205, *243, 92 S.Ct. 1526, **1547) judgment of the Court as to respondent Jonas the State must respect, just as they Yoder. But Frieda Yoder's views may not be themselves must respect their obligations to those of Vernon Yutzy or Barbara Willer. I the State.'Id.,at 511,89 S.Ct.,at 739. must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller as their In West Virginia State Board of Education motion to dismiss also raised the question of v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 their children's religious liberty. L.Ed. 1628, we held that school-children, whose religious beliefs collided with a school II rule requiring them to salute the flag, could • not be required to do so. While the sanction This issue has never been squarely included expulsion of the students and • presented before today. Our opinions are full prosecution of the parents, id., at 630, 63 of talk about the power of the parents over the S.Ct., at 1181, the vice of the regime was its child's education. See Pierce v. Cociety of interference with the child's free exercise of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. religion. We said: 'Here . . . we are dealing 1070; Meyer v. Nebraska, 262 U.S. 390, 43 with a compulsion of students to declare a S.Ct. 625, 67 L.Ed. 1042. And we have in the belief.' Id., at 631, 63 S.Ct., at 1182. In past analyzed similar conflicts between parent emphasizing the important and delicate task and State with little regard for the views of of boards of education we said: the child. See Prince v. Massachusetts, supra. 'That they are educating the young for Recent cases, however, have clearly held that citizenship is reason for scrupulous the children themselves have constitutionally protection of Constitutional freedoms of the protectible interests. individual, if we are not to strangle the free mind at its source and teach youth to These children are 'persons' within the discount important principles of our meaning of the Bill of Rights. We have so government as mere platitudes.' Id., at 637, held over and over again. In Haley v. Ohio, 63 S.Ct.,at 1185. 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, we extended the protection of the Fourteenth On this important and vital matter of • Amendment in a state trial of a 15-year-old education, I think the children should be boy. In re Gault, 387 U.S. 1, 13, 87 S.Ct. entitled to be heard. While the parents, 1428, 1436, 18 L.Ed.2d 527, we held that absent dissent, normally speak for the entire 'neither the Fourteenth Amendment nor the family, the education of the child is a matter Bill of Rights is for adults alone.' In In re on which the child will often have decided Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 views. He may want to be a pianist or an L.Ed.2d 368, we held that a 12-year-old boy, astronaut or an **1548 oceanographer. *245 when charged with an act which would be a To do so he will have to break from the Amish crime if committed by an adult, was entitled tradition [FN2] to procedural safeguards contained in the Sixth Amendment. FN2. A significant number of Amish children do leave the Old Order. *244 In Tinker v. Des Moines Independent Professor Hostetler notes that'(t)he loss of Community School District, 393 U.S. 503, 89 members is very limited in some Amish S.Ct. 733, 21 L.Ed.2d 731, we dealt with 13- districts and considerable in others.' J. year-old, 15-year-old, and 16-year-old students Hostetler, Amish Society 226 (1968). In who wore armbands to public schools and were one Pennsylvania church, he observed a disciplined for doing so. We gave them reflief, defection rate of 30%. Ibid. Rates up to saying that their First Amendment rights had 50%have been reported by others. Cased, been abridged. Compulsory High School Attendance and 'Students in school as well as out of school the Old Order Amish: A Commentary on are 'persons' under our Constitution They State v. Garber, 16 Kan.L.Rev. 423, 434 are possessed of fundamental rights which n. 51 (1968). Copr.°West 1997 No claim to orig.U.S.govt. works • 05/17/97 14:18:49 West Publishing Co.-> Z062559789 Page 025 92 S.Ct. 1526 Page 24 (Cite as:406 U.S. 205, *245, 92 S.Ct. 1526, **1548) It is the future of the student, not the future F. llg, Youth The Years From Ten to of the parents, that is imperiled by today's Sixteen 175--182 (1956). The maturity of decision. If a parent keeps his child out of Amish youth, who identify with and school beyond the grade school, then the child assume adult roles from early childhood, will be forever barred from entry into the new see M. Goodman, The Culture of and amazing world of diversity that we have Childhood 92--94 (1970), is certainly not today. The child may decide that that is the less than that of children in the general preferred course, or he may rebel. It is the population. student's judgment, not his parents', that is essential if we are to give full meaning to The views of the two children in question what we have said about the Bill of Rights were not canvassed by the Wisconsin courts. and of the right of students to be masters of The matter should be explicitly reserved so their own destiny. [FN3] If he is harnessed to that new hearings can be held on remand of the Amish way of life *246 by those in the case. [FN4] authority over him and if his education is truncated, his entire life may be stunted and FN4. Canvassing the views of all school- deformed. The child, therefore, should be age Amish children in the State of given an opportunity to be heard before the Wisconsin would not present State gives the exemption which we honor insurmountable difficulties. A 1968 today. survey indicated that there were at that time only 256 such children in the entire FN3. The court below brushed aside the State. Comment, 1971 Wis.L,Rev. 832, students' interests with the offhand 852 n. 132. comment that '(w)hen a child reaches the age of judgment, he can choose for himself TEE his religion.' 49 Wis.2d 430, 440, 182 N.W.2d 539, 543. But there is nothing in I think the emphasis of the Court on the this record to indicate that the moral and 'law and order' record of this Amish group of intellectual judgment demanded of the people is quite irrelevant. A religion is a • student by the question in this case is religion irrespective of what the misdemeanor beyond his capacity. Children far younger or felony records of its members might be. I than the 14- and 15-year-olds involved am not at all sure how the Catholics, here are regularly permitted to testify in Episcopalians, the Baptists, Jehovah's custody and other proceedings. Indeed, Witnesses, the Unitarians, and my own the failure to call the affected child in a Presbyterians would make out if subjected to custody hearing is often reversible error. such a test. It is, of course, true that if a See,e.g., Callicott v. Callicott, 364 S.W.2d group or society was organized to perpetuate 455 (Tex.Civ.App.) (reversible error for crime and if that is its motive, we would have trial judge to refuse to hear testimony of rather startling problems akin to those that eight-year-old in custody battle). were raised when some years back a particular Moreover, there is substantial agreement sect was challenged here as operating on a among child psychologists and sociologists fraudulent basis. United States v. Ballard, that the moral and intellectual maturity 322 U.S. 78, 64 S.Ct. 822, 88 L.Ed. 1148. But of the 14-year-old approaches that of the no such factors are present here, and the adult. See, e.g., J. Piaget, The Moral **1549 Amish, whether with a high or low Judgment of the Child (1948); D. Elkind, criminal *247 record, [FN5] certainly qualify Children and Adolescents 75-80 (1970); by all historic standards as a religion within Kohlberg, Moral Education in the the meaning of the First Amendment. Schools: A Development View, in R. Muuss, Adolescent Behavior and Society FNS. The observation of Justice 193, 199--200 (1971); W. Kay, Moral Heffernan, dissenting below, that the Development 172--183 (1968); A. Gesell & principal opinion in his court portrayed Copr. e West 1997 No claim to orig.U.S. govt.works • 05/17f97 14:20:1Z West Publishing Co.-> 2062559709 Page 026 92 S.Ct. 1526 Page 25 (Cite as:406 U.S. 205, *247, 92 S.Ct. 1526, **1549) the Amish as leading a life of 'idyllic does not rise to the demands of the Religion agrarianism,' is equally applicable to the Clauses.' That is contrary to what we held in majority opinion in this Court. So, too, is United States v. Seeger, 380 U.S. 163,85 S.Ct, his observation that such a portrayal rests 850, 13 L.Ed.2d 733, where we were concerned on a 'mythological basis.' Professor with the meaning of the words 'religious Hostetler has noted that '(d)rinking training and belief' in the Selective Service among the youth is common in all the Act, which were the basis of many large Amish settlements.' Amish Society conscientious objector claims. We said: • 283. Moreover, '(i)t would appear that 'Within that phrase would come all sincere among the Amish the rate of suicide is religious beliefs which are based upon a just as high, if not higher, than for the power or being, or upon a faith, to which all nation.' Id., at 300. He also notes an else is subordinate or upon which all else is unfortunate Amish 'preoccupation with ultimately dependent. The test might be filthy stories,' id., at 282, as well as stated in these words: A sincere and significant 'rowdyism and stress.' Id., at meaningful belief which occupies in the life 281. These are not traits peculiar to the of its possessor a place parallel to that filled Amish, of course. The point is that the by the God of those admittedly qualifying Amish are not people set apart and for the exemption comes within the different. statutory definition. This construction avoids imputing to Congress an intent to The Court rightly rejects the notion that classify different religious beliefs, exempting actions, even though religiously grounded, are some and excluding others, and is in accord always outside the protection of the Free with the well-established congressional Exercise Clause of the First Amendment. In policy of equal treatment for those whose so ruling, the Court departs from the teaching opposition to service is grounded in their of Reynolds v. United States,98 U.S. 145, 164, religious tenets.'Id., at 176,85 S.Ct., at 859. 25 L.Ed. 244,where it was said concerning the reach of the Free Exercise Clause of the First Welsh v. United States, 398 U.S. 333, 90 Amendment, 'Congress was deprived of all S.Ct. 1792, 26 L.Ed.2d 308, was in the same • legislative power over mere opinion, but was vein,the Court saying: left free to reach actions which were in 'In this case, Welsh's conscientious objection violation of social duties or subversive of good to war was undeniably based in part on his order.' In that case it was conceded that perception of world politics. In a letter to polygamy was a part of the religion of the his local board, he wrote: Mormons. Yet the Court said, 'It matters not "I can only act according to what I am and that his belief(in polygamy) was a part of his what I see. And I see that the military professed religion it was still belief and belief complex wastes both human and material only.'Id., at 167, 25 L.Ed. 244. resourms, that it fosters disregard for (what I consider a paramount concern) human Action, which the Court deemed to be needs and ends; I see that the means we antisocial, could be punished even though it employ to 'defend' our 'way of life' was grounded on deeply held and sincere profoundly change that way of life. I see religious convictions. What we do today, at that in our failure to **1550 *249 recognize least in this respect, opens the way to give the political, social, and economic realities of organized religion a broader base than it has the world, we, as a nation, fail our ever enjoyed; and it even promises that in responsibility as a nation." id., at 342, 90 time Reynolds will be overruled. S.Ct., at 1797. In another way, however, the Court retreats The essence of Welsh's philosophy, on the when in reference to Henry Thoreau it says basis of which we held he was entitled to an his 'choice was philosophical *248 and exemption,was in these words: personal rather than religious, and such belief "I believe that human life is valuable in and Copr. e West 1997 No claim to orig.U.S. govt. works • 05/17/97 14:21:37 West Publishing Co.-> 2062559709 Page 027 92 S.Ct. 1526 Page 26 • (Cite as:406 U.S. 205, *249, 92 S.Ct. 1526, **1550) of itself; in its living; therefore I will not injure or kill another human being. This 4110 belief (and the corresponding 'duty' to abstain from violence toward another person) is not 'superior to those arising ng from any human relation.' On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the 4 Government's insistence that I assume duties which I feel are immoral and totally repugnant." Id., at 343,90 S.Ct.,at 1798. • I adhere to these exalted views of 'religion' and aP.e no acceptable alternative to them now that we have become a Nation of many religions and sects, representing all of the diversities of the human race. United States v. Seeger, 380 U.S., at 192-193, 85 S.Ct., at 867--868(concurring opinion). END OF DOCUMENT • Copr. ®West 1997 No claim to orig. U.S. govt. works • 05/17/97 14:22:44 West Publishing Co.-] 2062559709 Page 029 83 S.Ct. 1790 Page 1 10 L.Ed.2d 965,9 Fair Empl.Prac.Cas.(BNA)1152 (Cite as: 374 U.S. 398, 83 S.Ct. 1790) • Adell H. SHERBERT,Appellant, views. U.S.C.A.Const.Amends. 1, 14. v. Charlie V.VERNER et al, as members of [3]CONSTITUTIONAL LAW k274(3.1) South Carolina Employment Security 92k274(3.1) Commission, and Spartan Mills. Formerly 92k274(3),92k274 Even when overt action is in accord with one's No.526. religious convictions,it is not totally free from legislative restrictions, but actions so Supreme Court of the United States regulated have invariably posed some substantial threat to public safety, peace or Argued April 24, 1963. order. U.S.C.A.Const. Amends. 1, 14. Decided June 17, 1963. [4]CONSTITUTIONAL LAW k274(3.1) 92k274(3.1) Proceeding on claim for unemployment Formerly 92k274(3),92k274 compensation benefits. From a judgment of Conscientious objection, on grounds of the Common Pleas Court, Spartanburg religious belief, by unemployment County, South Carolina, the claimant compensation claimant to Saturday work appealed. The Supreme Court of South constituted no conduct prompted by religious Carolina, 240 S.C. 286, 125 S.E.2d 737, principles of kind within reach of state affirmed, and certiorari was granted. The legislature. Code S.C. 1962, §§68-1 to 68-404, Supreme Court, Mr. Justice Brennan, held 68-113(3), 68-114(2), (3)(a, b); U.S.C.A.Const. that South Carolina could not constitutionally Amends. 1, 14. apply eligibility provisions of unemployment compensation statute so as to deny benefits to [5]CONSTITUTIONAL LAW k274(3.1) claimant who had refused employment, 92k274(3.1) because of her religious beliefs, which would Formerly 92k274(3) require her to work on Saturday. Disqualification of unemployment• compensation claimant from benefits because by Reversed and remanded. of her refusal, based on religious beliefs, to accept employment which would require her to Mr. Justice Harlan and Mr. Justice White work on Saturday, imposed a burden on the dissented. free exercise of her religion. Code S.C.1962, §§ 68-1 to 68-404, 68-113(3), 68-114(2), (3) (a, [1]CONSTITUTIONAL LAW k274(3.1) b); U.S.C.A.Const. Amends. 1, 14. 92k274(3.1) Formerly 92k274(3),92k274 [6]CONSTITUTIONAL LAW k274(3.1) Door of Free Exercise Clause of the First 92k274(3.1) Amendment stands tightly closed against any Formerly 92k274(3),92k274 governmental regulation of religious beliefs as If purpose or effect of law is to impede such. U.S.C.A.Const.Amends. 1, 14. observance of one or all religions or is to discriminate invidiously between religions, [2]CONSTITUTIONAL LAW k274(3.1) that law is constitutionally invalid even 92k274(3.1) though burden may be characterized as being Formerly 92k274(3),92k4 only indirect. U.S.C.A.Const. Amends. 1, 14. Government may neither compel affirmation of repugnant religious belief, nor penalize or [7]CONSTITUTIONAL LAW k274(3.1) discriminate against individuals or groups 92k274(3.1) because they hold religious views abhorrent to Formerly 92k274(3) authorities, nor employ taxing power to Liberties of religion and expression may be inhibit dissemination of particular religious infringed by denial of or by placing conditions Copr.e West 1997 No claim to orig.U.S. govt.works s 05/17/9? 14:23:59 West Publishing Co.-> 2052559709 Page 030 83 S.Ct. 1790 Page 2 (Cite as:274 U.S. 398, 83 S.Ct. 1790) on benefit or privilege. U.S.C.A.Const. 92k274(3.1) • Amends. 1, 14. Formerly 92k274(3) No state may exclude individual Catholics, [8]CONSTITUTIONAL LAW k274(3.1) Lutherans, Mohammedans, Baptists, Jews, 92k274(3.1) Methodists, Non-believers, Presbyterians, or Formerly 92k274(3) the members of any other faith, because of To condition availability of unemployment their faith, or lack of it, from receiving compensation benefits on claimant's benefits of public welfare legislation. willingness to violate cardinal principle of her U.S.C.A.Const. Amends. 1, 14. religious faith by accepting Saturday work effectively penalizes free exercise of her **1791 *398 William D. Donnelly, constitutional liberties. U.S.C.A.Const. Bethesda,Md.,for appellant. Amends. 1, 14. *899 Daniel R. McLeod, Columbia, S.C., for [9]CONSTITUTIONAL LAW k274(3.1) appellees. 92k274(3.1) Formerly 92k274(3),92k274 Mr. Justice BRENNAN delivered the No showing of mere rational relationship to opinion of the Court. some colorable state interest would justify substantial infringement of party's Appellant, a member of the Seventh-day constitutional right to free exercise of religion. Adventist Church was discharged by her U.S.C.A.Const. Amends. 1, 14. South Carolina employer because she would not work on Saturday, the Sabbath Day of her [10]CONSTITUTIONAL LAW k274(3.1) faith. [FNl] When she was unable to obtain 92k274(3.1) other employment because from conscientious Formerly 92k274(3),92k274 scruples she would not take Saturday work, There was no showing of a compelling state [FN2] she filed a claim for *400 interest enforced in the eligibility provisions unemployment compensation benefits under of South Carolina unemployment the South Carolina Unemployment • compensation statutes which would justify Compensation Act. [P'N3] That *s1792 law denial of benefits to claimant who refused, provides that, to be eligible for benefits, a because of religious beliefs to accept claimant must be 'able to work and * * * is employment that would require her to work on available for work; and, further, *401 that a Saturday. claimant is ineligible for benefits '(i)f* * * he has failed, without good cause * * * to accept U.S.C.A.Const. Amends. 1, 14; Code available suitable work when offered him by S.C.1962, §$ 68-1 to 68-404, 68-113(3), 68- the employment office or the employer * * *.' 114(2),(3)(a,b). The appellee Employment Security Commission, in administrative proceedings [11l CONSTITUTIONAL LAW k274(3.1) under the statute, found that appellant's 92k274(3.1) restriction upon her availability for Saturday Formerly 92k274(3) work brought her within the provision South Carolina could not constitutionally disqualifying for benefits insured workers who apply eligibility provisions of its fail, without good cause, to accept 'suitable unemployment compensation statutes so as to work when offered * * * by the employment deny benefits to claimant who refused office or the employer * * *.' The Saturday employment because of her religious Commission's finding was sustained by the beliefs. U.S.C.A.Const. Amends. 1, 14; Code Court of Common Pleas for Spartanburg S.C.1962, §$ 68-1 to 68-404, 68-113(3), 68- County. That court's judgment was in turn 114(2),(3)(a,b). affirmed by the South Carolina Supreme Court, which rejected appellant's contention [12]CONSTITUTIONAL LAW k274(3.1) that, as applied to her, the disqualifying Copr. ©West 1997 No claim to orig.U.S. govt.works • 05/1719? 14:25:16 West Publishing Co.-> 2062559789 Page 031 83 S.Ct. 1790 Page 3 (Cite as: 374 U.S. 398, *401, 83 S.Ct. 1790, **1792) provisions of the South Carolina statute FN3. The pertinent sections of the South . abridged her right to the free exercise of her Carolina Unemployment Compensation religion secured under the Free Exercise Act (S.C.Code, Tit. 68, ss 68--1 to 68--404) Clause of the First Amendment through the are as follows: 's 68--113. Conditions of Fourteenth Amendment. The State Supreme eligibility for benefits.--An unemployed Court held specifically that appellant's insured worker shall be eligible to receive ineligibility infringed no constitutional benefits with respect to any week only if liberties because such a construction of the the Commission finds that: * * * '(3)He is statute 'places no restriction upon the able to work and is available for work,but appellant's freedom of religion nor does it in no claimant shall be considered available any way prevent her in the exercise of her for work if engaged in self-employment of right and freedom to observe her religious such nature as to return or promise beliefs in accordance with the dictates of her remuneration in excess of the weekly conscience!240 U.S. 286, 303--304, 125 S.E.2d benefit amounts he would have received if 737, 746. [FN4] We noted probable *402 otherwise unemployed over such period of jurisdiction of appellant's appeal.371 **1793 time. * * * 's 68--114. Disqualification for U.S. 938, 83 S.Ct. 321, 9 L.Ed.2d 273. We benefits.--Any insured worker shall be reverse the judgment of the South Carolina ineligible for benefits: * * * '(2)Discharge Supreme Court and remand for further for misconduct.--If the Commission finds proceedings not inconsistent with this opinion. that he has been discharged for misconduct connected with his most FN1. Appellant became a member of the recent work prior to filing a request for Seventh-day Adventist Church in 1957, at determination of insured status or a a time when her employer, a textile-mill request for initiation of a claim series operator, permitted her to work a five-day within an established benefit year, with week. It was not until 1959 that the work such ineligibility beginning with the week was changed to six days, including effective date of such request, and Saturday, for all three shifts in the continuing not less than five nor more employer's mill. No question has been than the next twenty-two consecutive • raised in this case concerning the weeks (in addition to the waiting period), sincerity of appellant's religious beliefs. as determined by the Commission in each Nor is there any doubt that the case according to the seriousness of the prohibition against Saturday labor is a misconduct * * * '(3) Failure to accept basic tenet of the Seventh-day Adventist work.--(a)If the Commission finds that he creed, based upon that religion's has failed,without good cause,(i)either to interpretation of the Holy Bible. apply for available suitable work, when so directed by the employment office or the FN2. After her discharge, appellant Commission, (ii) to accept available sought employment with three other mills suitable work when offered him by the in the Spartanburg area, but found no employment office or the employer or(iii) suitable five-day work available at any of to return to his customary self- the mills. In filing her claim with the employment (if any) when so directed by Commission, she expressed a willingness the Commission, such ineligibility shall to accept employment at other mills, or continue for a period of five weeks (the even in another industry, so long as week in which such failure occurred and Saturday work was not required. The the next four weeks in addition to the record indicates that of the 150 or more waiting period) as determined by the Seventh-day Adventists in the Commission according to the Spartanburg area, only appellant and one circumstances in each case * * *. '(b) In other have been unable to find suitable determining whether or not any work is non-Saturday employment. suitable for an individual, the Commission shall consider the degree of Copr.a West 1997 No claim to orig.U.S.govt.works • 05/17/97 14:26:41 West Publishing Co.-> 2062559709 Page 832 83 S.Ct. 1790 Page 4 (Cite as:374 U.S. 398, *402, 83 S.Ct. 1790, **1793) risk involved to his health, safety and for misconduct'--by reason of her Saturday • morals, his physical fitness and prior absences within the meaning of s 68-- training, his experience and prior 114(2). That ground was not adopted by earnings,his length of unemployment and the South Carolina Supreme Court, and prospects for securing local work in his the appellees do not urge in this Court customary occupation and the distance of that the disqualification rests upon that the available work from his residence.' ground. FN4. It has been suggested that appellant I. is not within the class entitled to benefits under the South Carolina statute because [1][2][3]The door of the Free Exercise Clause ■ her unemployment did not result from stands tightly closed against any discharge or layoff due to lack of work. It governmental regulation of religious beliefs as is true that unavailability for work for such, Cantwell v. Connecticut, 310 U.S. 296, some personal reasons not having to do 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213. with matters of conscience or religion has Government may neither compel affirmation been held to be a basis of disqualification of a repugnant belief, Torcaso v. Watkins, 367 for benefits. See, e.g., Judson Mills v. U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; nor South Carolina Unemployment penalize or discriminate against individuals or Compensation Comm., 204 S.C. 37, 28 groups because they hold religious views S.E.2d 535; Stone Mfg. Co. v. South abhorrent to the authorities, Fowler v. Rhode Carolina Employment Security Comm., Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 219 S.C. 239, 64 S.E.2d 644. But 828; nor employ the taxing power to inhibit appellant claims that the Free Exercise the dissemination of particular religious Clause prevents the State from basing the views, Murdock v. Pennsylvania, 319 U.S. denial of benefits upon the 'personal 105, 63 S.Ct. 870, 87 L.Ed. 1292; Follett v. reason' she gives for not working on McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 Saturday. Where the consequence of L.Ed. 938;cf. Grosjean v. American Press Co., disqualification so directly affects First 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. On • Amendment rights, surely we should not the other hand, '403 the Court has rejected conclude that every `personal reason' is a challenges under the Free Exercise Clause to basis for disqualification in the absence of governmental regulation of certain overt acts explicit language to that effect in the prompted by religious beliefs or principles, for statute or decisions of the South Carolina 'even when the action is in accord with one's Supreme Court. Nothing we have found religious convictions, (it) is not totally free in the statute or in the cited decisions, cf. from legislative restrictions.' Braunfeld v. Lee v. Spartan Mills, 7 CCH Brown, 366 U.S. 599,603,81 S.Ct. 1144, 1146, Unemployment Ins.Rep.S.C. 8156 (C.P. 6 L.Ed.2d 663. The conduct or actions so 1944), and certainly nothing in the South regulated have invariably posed some Carolina Court's opinion in this case so substantial threat to public safety, peace or 1111.1111111 construes the statute. Indeed, the order. See, e.g., Reynolds v. United States,98 contrary seems to have been that court's U.S. 145, 25 L.Ed. 244; Jacobson v. basic assumption, for if the eligibility Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 provisions were thus limited, it would L.Ed. 643; Prince v. Massachusetts, 321 U.S. have been unnecessary for the court to 158, 64 S_Ct_ 438, 88 L.Ed. 645; Cleveland v. have decided appellant's constitutional United States, 329 U.S. 14, 67 S.Ct. 13, 91 challenge to the application of the statute L.Ed. 12. under the Free Exercise Clause. Likewise, the decision of the State [4] Plainly enough, appellant's conscientious Supreme Court does not rest upon a objection to Saturday work constitutes no finding that appellant was disqualified for conduct prompted by religious principles of a benefits because she had been`discharged kind within the reach of state legislation. If, Copr.a West 1997 No claim to orig.U.S.govt.works 05/17/97 14:28:06 West Publishing Co.-> Z012559709 Page 033 83 S.Ct. 1790 Page 5 (Cite as: 374 U.S. 398, *403, 83 S.Ct. 1790, **1793) therefore. the decision of the South Carolina speech or assembly does not determine • Supreme Court is to withstand appellant's the free speech question. Under some constitutional challenge, it must be either circumstances, indirect 'discouragements' because her disqualification as a beneficiary undoubtedly have the same coercive effect represents no infringement by the State of her upon the exercise of First Amendment constitutional rights of free exercise, or rights as imprisonment, fines, injunctions because any incidental burden on the free or taxes. A requirement that adherents of exercise of appellant's religion may be particular religious faiths or political justified by a 'compelling state interest in the parties wear identifying armbands, for regulation of a subject within the State's example, is obviously of this nature.' constitutional power to regulate * * *. American Communications Ass'n v. • NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 328, 341,9 L.Ed.2d 405. 686, 94 L.Ed. 925. Cf. Smith v. California, 361 U.S. 147, 153--i55, 80 U. S.Ct.215,218-219,4 L.Ed.2d 205. [5][6] We turn first to the question whether [7][8] Nor may the South Carolina court's the disqualification for benefits **1794 construction of the statute be saved from imposes any burden on the free exercise of constitutional infirmity on the ground that appellant's religion. We think it is clear that unemployment compensation benefits are not it does. In a sense the consequences of such a appellant's 'right' but merely a 'privilege.' It disqualification to religious principles and is too late in the day to doubt that the liberties practices may be only an indirect result of of religion and expression may be infringed by welfare legislation within the State's general the denial of or placing of conditions upon a competence to enact;it is true that no criminal benefit or privilege. [FN6] American *405 sanctions directly compel appellant to work a Communications Ass'n v. Douds, 339 U.S. six-day week. But this is only the beginning, 382, 390, 70 S.Ct. 674, 679, 94 L.Ed. 925; not the end, of our *404 inquiry. [FN5] For Wieman v. Updegraff, 344 U.S. 183, 191--192, '(i)f the purpose or effect of a law is to impede 73 S.Ct. 215, 218-219, 97 L.Ed. 216; • the observance of one or all religions or is to discriminate invidiously between religions, Hannegan v. Esquire, Inc.,327 U.S. 146, 155 156, 66 S.Ct. 456, 461, 90 L.Ed. 586. For that law is constitutionally invalid even example, in Flemming v. Nestor, 363 U.S. though the burden may be characterized as 603, 611, 80 S.Ct. 1367, 1373,4 L.Ed.2d 1435, being only indirect.' Braunfeld v. Brown, the Court recognized with respect to Federal supra, 366 U.S., at 607, 81 S.Ct., at 1148. Social Security benefits that'(t)he interest of a Here not only is it apparent that appellant's covered employee under the Act is of sufficient declared ineligibility for benefits derives substance to fall within the protection from solely from the practice of her religion,but the arbitrary governmental **1795 action pressure upon her to forego that practice is afforded by the Due Process Clause.' In unmistakable, The ruling forces her to choose Speiser v. Randall, 357 U.S. 513, 78 S.Ct. between following the precepts of her religion 1332, 2 L.Ed.2d 1460, we emphasized that and forfeiting benefits, on the one hand, and conditions upon public benefits cannot be abandoning one of the precepts of her religion sustained if they so operate, whatever their in order to accept work, on the other hand. purpose, as to inhibit or deter the exercise of Governmental imposition of such a choice puts First Amendment freedoms. We there struck the same kind of burden upon the free exercise down a condition which limited the of religion as would a fine imposed against availability of a tax exemption to those appellant for her Saturday worship. members of the exempted class who affirmed their loyalty to the state government granting FNS. In a closely analogous context, this the exemption. While the State was surely Court said: '* * * the fact that no direct under no obligation to afford such an restraint or punishment is imposed upon exemption, we held that the imposition of such Copr.e West 1997 No claim to orig.U.S.govt.works • 05/17/9? 14:29:34 West Publishing Co.-> Z062559709 Paige 034 83 S.Ct. 1790 Page 6 (Cite as:374 U.S. 398, *405, 83 S.Ct. 1790, **1795) a condition upon even a gratuitous benefit When in times of 'national emergency' the • inevitably deterred or discouraged the exercise textile plants are authorized by the State of First Amendment rights of expression and Commissioner of Labor to operate on Sunday, thereby threatened to 'produce a result which 'no employee shall be required to work on the State could not command directly.' 357 Sunday * * * who is conscientiously opposed to U.S., *406 at 526, 78 S.Ct., at 1342. 'To deny Sunday work; and if any employee should an exemption to claimants who engage in refuse to work on Sunday on account of certain forms of speech is in effect to penalize conscientious * * * objections he or she shall them for such speech.' Id., 357 U.S., at 518, not jeopardize his or her seniority by such 78 S.Ct., at 1338. Likewise, to condition the refusal or be discriminated against in any availability of benefits upon this appellant's other manner.' S.C.Code, s 64--4. No question willingness to violate a cardinal principle of of the disqualification of a Sunday worshipper her religious faith effectively penalizes the for benefits is likely to arise, since we cannot free exercise of her constitutional liberties. suppose that an employer will discharge him in violation of this statute. The FN6. See for examples of conditions and unconstitutionality of the disqualification of qualifications upon governmental the Sabbatarian is thus compounded by the privileges and benefits which have been religious discrimination which South invalidated because of their tendency to Carolina's general statutory scheme inhibit constitutionally protected activity, necessarily effects. Steinberg v. United States, 162 F.Supp. 590, 143 Ct.Cl. 1; Syrek v. California III. Unemployment Ins. Board, 54 Ca1.2d 519, 7 Cal.Rptr. 97, 354 P.2d 625; Fine v. [911101 We must next consider whether some Maryland Employment Security Board, compelling state interest enforced in the 218 Md. 504, 147 A.2d 738; Chicago eligibility provisions of the South Carolina Housing Authority v. Blackman, 4 111.2d statute justifies the substantial infringement 319, 122 N.E.2d 522; Housing Authority of appellant's First Amendment right. It is of Los Angeles v. Cordova, 130 basic that no showing merely of a rational • Cal.App.2d Supp. 883, 279 P.2d 215;Lawson v. Housing Authority of relationship to some colorable state interest would suffice; in this highly sensitive Miilwaukee, 270 Wis. 269, 70 N.W.2d 605; constitutional area, '(o)nly the gravest abuses, Danskin v. San Diego Unified School endangering paramount interest, give occasion District, 28 Ca1.2d 536, 171 P.2d 885; for permissible limitation,' Thomas v. Collins, American Civil Liberties Union v. Board 323 U.S. 516, 530, 65 S.Ct. 315, 323,89 L.Ed. of Education, 55 Ca1.2d 167, 10 Cal.Rptr. 430. *407 No such abuse or danger has been 647, 359 P.2d 45; cf. City of Baltimore v. advanced in the present case. The appellees A. S. Abell Co., 218 Md. 273, 145 A.2d suggest no more than a possibility that the 111. See also Willcox, Invasions of the filing of fraudulent claims by unscrupulous First Amendment Through Conditioned claimants feigning religious objections to Public Spending, 41 Cornell L.Q. 12 Saturday work might not only dilute the (1955); Emerson, Toward a General unemployment compensation fund but also Theory of the First Amendment, 72 Yale hinder the scheduling by employers of L.J. 877,942--943(1963); 36 N.Y.U.L.Rev. necessary Saturday work. But that possibility 1052 (1961); 9 Kan.L.Rev. 346 (1961); is not apposite here because no such objection Note, Unconstitutional Conditions, 73 appears to have been made before the South Harv.L.Rev. 1595, 1599--1602(1960). Carolina Supreme Court, and we are unwilling to assess the importance of an Significantly South Carolina expressly saves asserted state interest without the views of the Sunday worshipper from having to make the state court. Nor, if the contention had the kind of choice which we here hold been made below, would the record appear to infringes the Sabbatarian's religious liberty. sustain it; there is no proof whatever to Copr. a West 1997 No claim to orig.U.S. govt. works • 85/17/97 14:31:02 West Publishing Co.-> Z062559709 Page 035 83 S.Ct. 1790 Page 7 (Cite as:374 U.S. 398, *407, 83 S.Ct. 1790, **1795) warrant such fears of malingering or deceit as convictions, strongly held, are so • those which the respondents now advance. impelling as to constitute good cause for Even if consideration of such evidence is not refusal. Since availability refers to foreclosed by the prohibition against judicial suitable work, religious observers were inquiry into the truth or falsity of religious not unavailable because they excluded beliefs, United States v. Ballard, 322 U.S. 78, Sabbath work! Altman, Availability for 64 S.Ct. 882, 88 L.Ed. 1148--a question as to Work: A Study in Unemployment which we intimate no view since it is not Compensation (1950), 187. See also before us--it is highly**1796 doubtful whether Sanders, Disqualification for such evidence would be sufficient to warrant a Unemployment Insurance, 8 Vand.L.Rev. substantial infringement of religious liberties. 307, 327-328 (1955); 34 N.C.L.Rev. 591 For even if the possibility of spurious claims (1956); cf. Freeman, Able To Work and did threaten to dilute the fund and disrupt the Available for Work, 55 Yale L.J. 123, 131 scheduling of work, it would plainly be (1945). Of the 47 States which have incumbent upon the appellees to demonstrate eligibility provisions similar to those of that no alternative forms of regulation would the South Carolina statute, only 28 combat such abuses without infringing First appear to have given administrative Amendment rights. [FN71 Cf. Shelton v. rulings concerning the eligibility of Tucker, 364 U.S. .408 479, 487--490, 81 S.Ct. persons whose religious convictions 247, 251--253, 5 L.Ed.2d 231; Talley v. prevented them from accepting available California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, work. Twenty-two of those States have 4 L.Ed.2d 559; Schneider v. State of New held such persons entitled to benefits, Jersey, 308 U.S. 147, 161, 60 S.Ct. 146, 150, although apparently only one such 84 L.Ed. 155; Martin v. Struthers, 319 U.S. decision rests exclusively upon the federal 141, 144--149, 63 S.Ct. 862, 863-866,87 L.Ed. constitutional ground which constitutes 1313. the basis of our decision. See 111 U. of Pa.L.Rev. 253, and n. 3 (1962); 34 FN7. We note that before the instant N.C.L.Rev. 591,602,n.60(1956). decision, state supreme courts had, • without exception, granted benefits to In these respects, then, the state interest persons who were physically available for asserted in the present case is wholly work but unable to find suitable dissimilar to the interests which were found to employment solely because of a religious justify the less direct burden upon religious prohibition against Saturday work. E.g., practices in Braunfeld v. Brown, supra. The In re Miller, 243 N.C. 509, 91 S.E.2d 241; Court recognized that the Sunday closing law Swenson v. Michigan Employment which that decision sustained undoubtedly Security Comm, 340 Mich. 430, 65 served 'to make the practice of(the Orthodox N.W.2d 709; Tary v. Board of Review, 161 Jewish merchants') religious beliefs more Ohio St. 251, 119 N.E.2d 56. Cf. Kut v. expensive,' 366 U.S., at 605,81 S.Ct., at 1147. Albers Super Markets, Inc., 146 Ohio St. But the statute was nevertheless saved by a 522, 66 N.E.2d 643, appeal dismissed sub countervailing factor which finds no nom. Kut v. Bureau of Unemployment equivalent in the instant case--a strong state Compensation, 329 U.S. 669, 67 S.Ct. 86, interest in providing one uniform day of rest 91 L.Ed. 590. One author has observed, for all workers. That secular objective could 'the law was settled that conscientious be achieved, the Court found, only by objections to work on the Sabbath made declaring Sunday to be that day of rest. such work unsuitable and that such Requiring exemptions for Sabbatarians, while objectors were nevertheless available for theoretically possible, appeared to present an work. * * * A contrary opinion would administrative *409 problem of such make the unemployment compensation magnitude, or to afford the exempted class so law unconstitutional, as a violation of great a competitive advantage, that such a freedom of religion. Religious requirement would have rendered the entire Copr. West 1997 No claim to orig.U.S. govt.works • 05/17/9? 14:32:29 West Publishing Co.-> 2062559709 Page 036 83 S.Ct. 1790 Page 8 (Cite as: 374 U.S. 398, *409, 83 S.Ct. 1790, **1796) statutory scheme unworkable. [FN8] In the by our decision today, declare the existence of • present case no such justifications underlie the a constitutional right to unemployment determination of the state court that benefits on the part *410 of all persons whose appellant's religion makes her ineligible to religious convictions are the cause of their receive benefits. [FN9] unemployment. This is not a case in which an employee's religious convictions serve to make FN8. See Note, State Sunday Laws and him a nonproductive member of society. See the Religious Guarantees of the Federal note 2, supra. Finally, nothing we say today Constitution, 73 Harv.L.Rev. 729, 741-- constrains the States to adopt any particular 745(1960). form or scheme of unemployment compensation. Our holding today is only that • FN9. These considerations also South Carolina may not constitutionally apply distinguish the quite different case of the eligibility provisions so as to constrain a Flemming v. Nestor, supra, upon which worker to abandon his religious convictions appellees rely. In that case the Court respecting the day of rest. This holding but found that the compelling federal reaffirms a principle that we announced a interests which underlay the decision of decade and a half ago, namely that no State Congress to impose such a disqualification may 'exclude individual Catholics, Lutherans, justified whatever effect the denial of Mohammedans, Baptists, Jews, Methodists, social security benefits may have had Non-believers, Presbyterians, or the members upon the disqualified class. See 363 U.S., of any other faith, because of their faith, or at 612, 80 S.Ct., at 1373. And compare lack of it, from receiving the benefits of public Torcaso v. Watkins, supra, in which an welfare legislation.' Everson v. Board of undoubted state interest in ensuring the Education, 330 U.S. 1, 16, 67 S.Ct. 504, 512, veracity and trustworthiness of Notaries 91 L.Ed. 711. Public was held insufficient to justify the substantial infringement upon the In view of the result we have reached under religious freedom of applicants for that the First and Fourteenth Amendments' position which resulted from a required guarantee of free exercise of religion, we have oath of belief of God. See 74 Harv.L.Rev. no occasion to consider appellant's claim that 611, 612 613 (1961); 109 U. of Pa.L.Rev, the denial of benefits also deprived her of the 611,614--616(1961). equal protection of the laws in violation of the Fourteenth Amendment. **1797 IV. The judgment of the South Carolina [111[121 In holding as we do, plainly we are Supreme Court is reversed and the case is not fostering the 'establishment' of the remanded for further proceedings not Seventh-day Adventist religion in South inconsistent with this opinion. It is so Carolina, for the extension of unemployment ordered. benefits to Sabbatarians in common with Sunday worshippers reflects nothing more Reversed and remanded. than the governmental obligation of neutrality in the face of religious differences, Mr.Justice DOUGLAS, concurring. and does not represent that involvement of religious with secular institutions which it is The case we have for decision seems to me to the object of the Establishment Clause to be of small dimensions, though profoundly forestall. See School District of Abington important. The question is whether the South Township v. Schempp, 374 U.S. 203, 83 S.Ct. Carolina law which denies unemployment 1560. Nor does the recognition of the compensation to a Seventh-day Adventist, appellant's right to unemployment benefits who, because of her religion, has declined to under the state statute serve to abridge any work on her Sabbath,is a law 'prohibiting the other person's religious liberties. Nor do we, free exercise' of religion as those words are Copr.e West 1997 No claim to orig. U.S. govt.works 05/17/97 14:33:51 West Publishing Go.-> 2062559709 Page 037 83 S.Ct. 1790 Page 9 (Cite as:374 U.S. 398, *410, 83 S.Ct. 1790, **1797) used in the First Amendment. *411 It seems community can,through state action,compel a • obvious to me that this law does run afoul of that clause. minority to observe their particular religious scruples so long as the majority's rule can be said to perform some valid secular function. Religious scruples of Moslems require them *412 That was the essence of the Court's to attend a mosque on Friday and to pray five decision in the Sunday Blue Law Cases times daily. [FN1] Religious scruples of a (Gallagher v. Crown Kosher Market, 366 U.S. Sikh require him to carry a regular or a 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Braunfeld • symbolic sword. Rex v. Singh, 39 A.IR. 53 v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 (Allahabad, 1952). Religious scruples of a L.Ed.2d 563; McGowan v. Maryland, 366 U.S. Jehovah's Witness teach him to be a 420, 81 S.Ct. 1101, 6 L,Ed.2d 393), a ruling • colporteur, going from **1798 door to door, from which I then dissented (McGowan v. from town to town, distributing his religious Maryland, supra, 366 U.S. pp. 575--576, 81 pamphlets. See Murdock v.Pennsylvania, 319 S.Ct. pp. 1225--1226) and still dissent. See U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Arlan's Dept. Store v.Kentucky, 371 U.S. 218, Religious scruples of a Quaker compel him to 83 S.Ct. 277,9 L.Ed.2d 264. refrain from swearing and to affirm instead. See King v. Fearson, Fed.Cas. No. 7,790, 14 That ruling of the Court travels part of the Fed.Cas. 520; 1 U.S.C. s 1; Federal Rules of distance that South Carolina asks us to go Civil Procedure, Rule 43(d); United States v. now. She asks us to hold that when it comes Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, to a day of rest a Sabbatarian must conform 451, 73 L.Ed. 889 (dissenting opinion). with the scruples of the majority in order to Religious scruples of a Buddhist may require obtain unemployment benefits. him to refrain from partaking of any flesh, even of fish. [FN2] The result turns not on the degree of injury, which may indeed be nonexistent by ordinary FN1. See Shorter Encyclopaedia of Islam standards. The harm is the interference with (Cornell Press, 1953), 336,493. the individual's scruples or conscience--an important area of privacy which the First • FN2. See Narasu, The Essence of Amendment fences off from government. The Buddhism (3d ed. 1948), 52--55, 6 interference here is as plain as it is in Soviet Encyclopaedia of Religion and Ethics Russia, where a churchgoer is given a second- (1913),63--65. class citizenship, resulting in harm though perhaps not in measurable damages. The examples could be multiplied,including those of the Seventh-day Adventist whose This case is resolvable not in terms of what Sabbath is Saturday and who is advised not to an individual can demand of government, but eat some meats. [FN3] solely in terms of what government may not do to an individual in violation of his religious FN3. See Seventh-day Adventists Answer scruples. The fact that government cannot Questions on Doctrine (1957), 149--153, exact from me a surrender of one iota of my 622--624; Mitchell, Seventh-Day religious scruples does not, of course, mean Adventists(1st ed. 1958), 127, 176--178. that I can demand of government a sum of money, the better to exercise them. For the These suffice, however, to show that many Free Exercise Clause is written in terms of people hold beliefs alien to the majority of our what the government cannot do to the society--beliefs that are protected by the First individual,not in terms of what the individual Amendment but which could easily be trod can exact from the government. upon under the guise of 'police' or 'health' regulations reflecting the majority's views. Those considerations, however, are not relevant here. If appellant is otherwise Some have thought that a majority of a qualified for unemployment benefits, Copr. " West 1997 No claim to orig.U.S. govt.works 411 85/17/97 14:35:13 West Publishing Co.-> 2062559709 Page 030 83 S.Ct. 1790 Page 10 (Cite as: 374 U.S. 398, *412, 83 S.Ct. 1790, **1798) payments will be made to her not as a society which our Constitution guarantees • Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will than is the religious liberty protected by the Free Exercise Clause explicit in the First indirectly benefit her church, *413 but no Amendment and imbedded in the Fourteenth. more so than does the salary of any public And I regret that on *414 occasion, and employee. Thus, this case does not involve the specifically in Braunfeld v. Brown, supra, the problems of direct or indirect state assistance Court has shown what has seemed to me a to a religious **1799 organization--matters distressing insensitivity to the appropriate relevant to the Establishment Clause, not in demands of this constitutional guarantee. By issue here. contrast I think that the Court's approach to the Establishment Clause has on occsion, and Mr. Justice STEWART, concurring in the specifically in Engel, Schempp and a Murray, result. been not only insensitive, but positively wooden, and that the Court has accorded to Although fully agreeing with the result the Establishment Clause a meaning which which the Court reaches in this case, I cannot neither the words, the history, nor the join the Court's opinion. This case presents a intention of the authors of that specific double-barreled dilemma, which in all candor constitutional provision even remotely I think the Court's opinion has not succeeded suggests. in papering over. The dilemma ought to be resolved. But my views as to the correctness of the Court's decisions in these cases are beside the L point here. The point is that the decisions are on the books. And the result is that there are Twenty-three years ago in Cantwell v. many situations where legitimate claims Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, under the Free Exercise Clause will run into 903, 84 L.Ed. 1213, the Court said that both head-on collision with the Court's insensitive the Establishment Clause and the Free and sterile construction of the Establishment Exercise Clause of the First Amendment were Clause. [FN2] The controversy now before us . made wholly applicable to the States by the is clearly such a case. Fourteenth Amendment. In the intervening years several cases involving claims of state FN2. The obvious potentiality of such abridgment of individual religious freedom collision has been studiously ignored by have been decided here--most recently the Court, but has not escaped the Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. perception of commentators. See, e.g., 1144, 6 L.Ed.2d 563, and Torcaso v. Watkins, Katz, Freedom of Religion and State 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982. Neutrality, 20 U. of Chi.L.Rev. 426, 428 During the same period 'cases dealing with (1953); Kauper, Prayer, Public Schools the specific problems arising under the and the Supreme Court, 61 Mich.L.Rev. 'Establishment' Clause which have reached 1031, 1053(1963). this Court are few in number.' [FN1] The most recent are last Term's Engel v. Vitale, Because the appellant refuses to accept 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601, available jobs which would require her to and this Term's Schempp and Murray cases, work on Saturdays, South Carolina has 374 US. 203,83 S.Ct. 1560_ declined to pay unemployment compensation benefits to her. Her refusal to work on FN1. McGowan v. Maryland, 366 U.S. Saturdays is based on the tenets of her 420, 442, 81 S.Ct. 1101, 1114, 6 L.Ed.2d religious faith. The Court says that South 393. Carolina cannot under these circumstances declare her to be not 'available for work' I am convinced that no liberty is more within the meaning of its statute because to do essential to the continued vitality of the free so would violate her constitutional right to the Copr.e West 1997 No claim to orig.U.S. govt.works • OS/17/97 14:36:35 West Publishing Cu.-> 2062559709 Page 039 83 S.Ct. 1790 Page 11 (Cite as:274 U.S. 398, *414, 83 S.Ct. 1790, **1799) free exercise of her religion. guarantee of religious liberty embodied in the • Free Exercise Clause affirmatively requires Yet what this Court has said about the government to create an atmosphere of Establishment Clause must inevitably lead to hospitality and accommodation *416 to a diametrically opposite result. If the individual belief or disbelief. In short, I think appellant's refusal to work on Saturdays *415 our Constitution commands the positive were based on indolence, or on a compulsive protection by government of religious freedom- desire to watch the Saturday television -not only for a minority, however small--not programs,no one would say"1800 that South only for the majority, however large-but for Carolina could not hold that she was not each of us. 'available for work' within the meaning of its • statute. That being so, the Establishment South Carolina would deny unemployment Clause as construed by this Court not only benefits to a mother unavailable for work on permits but affirmatively requires South Saturdays because she was unable to get a Carolina equally to deny the appellant's claim babysitter. [FN3] Thus,we do not have before for unemployment compensation when her us a situation where a State provides refusal to work on Saturdays is based upon her unemployment compensation generally, and religious creed. For, as said in Everson v. singles out for disqualification only those Board of Education, 330 U.S. 1, 11, 67 S.Ct. persons who are unavailable for work on 504, 509, 91 L.Ed. 711, the Establishment religious grounds. This is not, in short, a Clause bespeaks 'a government * * * stripped scheme which operates so as to discriminate of all power * * * to support, or otherwise to against religion as such. But the Court assist any or all religions * * *,' and no State nevertheless holds that the State must prefer 'can pass laws which aid one religion * * *.' a religious over a secular ground for being Id., 330 U.S., at 15, 67 S.Ct., at 511. In Mr. unavailable for work--that state financial Justice Rutledge's words, adopted by the support of the appellant's religion is Court today in Schempp, 374 U.S., p. 217, 83 constitutionally required to carry out 'the S.Ct., p. 1568, the Establishment Clause governmental obligation of neutrality in the forbids 'every form of public aid or support for face of religious differences* * • religion.' 330 U.S., at 32, 67 S.Ct., at 519. In the words of the Court in Engel v. Vitale, 370 FN3. See Judson Mills v. South Carolina U.S., at 431, 82 S.Ct., at 1267, reaffirmed Unemployment Compensation Comm., today in the Scherepp case, 374 U.S., p. 221, 204 S.C. 37, 28 S.E.2d 535; Hartsville 83 S.Ct., p. 1571, the Establishment Clause Cotton Mill v. South Carolina forbids the 'financial support of government' Employment Security Comm., 224 S.C. to be 'placed behind a particular religious 407,79 S.E.2d 381. belief.' Yet in cases decided under the To require South Carolina to so administer Establishment Clause the Court has decreed its laws as to pay public money to the otherwise. It has decreed that government appellant under the circumstances of this case must blind itself to the differing religious is thus clearly to require the State to violate beliefs and traditions of the people. With all the Establishment Clause as construed by this respect,I think it is the Court's duty to face up Court. This poses no problem for me, because to the dilemma posed by the conflict between I think the Court's mechanistic concept of the the Free Exercise Clause of the Constitution Establishment Clause is historically unsound and the Establishment Clause as interpreted and constitutionally wrong. I think the by the Court. It is a duty, I submit,which we process of constitutional decision in the area of owe to the people, the States, and the Nation, the relationships between government and and a duty which we owe to ourselves. For so religion demands considerably more than the long as the resounding but fallacious invocation of broad-brushed rhetoric of the fundamentalist rhetoric of some of our kind I have quoted. And I think that the Establishment Clause opinions remains on our Copr. a West 1997 No claim to orig.U.S. govt.works • 05/17/97 14:38:02 lJest Publishing Co.-> 2062559789 Page 040 83 S.Ct. 1790 Page 12 (Cite es:374 U.S. 398, *416, 83 S.Ct. 1790, **1800) books, to be disregarded at will as in the think the Braunfeld case was wrongly decided • present **1801 case, *417 or to be and should be overruled, and accordingly I undiscriminatingly invoked as in the Schempp concur in the result reached by the Court in case, 374 U.S. 203, 83 S.Ct. 1560, so long will the case before us. the possibility of consistent and perceptive decision in this most difficult and delicate area FN4. As noted by the Court, 'The record of constitutional law be impeded and indicates that of the 150 or more Seventh- impaired. And so long, I fear, will the day Adventists in the Spartanburg area, 0 guarant'e of true religious freedom in our only appellant and one other have been - pluralistic society be uncertain and insecure. unable to find suitable non-Saturday employment.' Ante,p. 1791,n. 2. H. Mr. Justice HARLAN, whom Mr. Justice My second difference with the Court's WHITE joins,dissenting. opinion is that I cannot agree that to day's decision can stand consistently with Braunfeld Today's decision is disturbing both in its v. Brown, supra. The Court says that there rejection of existing precedent and in its was a 'less direct burden upon religious implications for the future. The significance practices' in that case than in this. With all of the decision can best be understood after an respect, I think the Court is mistaken, simply examination of the state law applied in this as a matter of fact. The Braunfeld case case. involved a state criminal statute. The undisputed effect of that statute, as pointed South Carolina's Unemployment out by Mr. Justice BRENNAN in his Compensation Law was enacted in 1936 in dissenting opinion in that case, was that response to the grave social and economic 'Plaintiff, Abraham Braunfeld, will be unable problems that arose during the depression of to continue in his business if he may not stay that period. As stated in the statute itself: open on Sunday and he will thereby lose his 'Economic insecurity due to unemployment capital investment.' In other words, the issue is a serious menace to health, morals and • in this case--and we do not understand either welfare of the people of this State; appellees or the Court to contend otherwise-is involuntary unemployment is therefore a whether a State may put an individual to a subject of general interest and concern * * *• choice between his business and his religion.' the achievement of social security requires 366 U.S.,at 611,81 S.Ct.,at 1150. protection against this greatest hazard of our economic life; this can be provided by The impact upon the appellant's religious encouraging the employers to provide more freedom in the present case is considerably stable employment and by the systematic less onerous. We deal here not with a accumulation of funds during periods of criminal statute, but with the particularized employment to provide benefits for periods administration of South Carolina's of unemployment, thus maintaining Unemployment Compensation Act. Even upon purchasing power and limiting the serious the unlikely assumption that the appellant social consequences of poor relief assistance.' could not find suitable non-Saturday s 68-38.(Emphasis added.) employment, [FN41 the appellant at the worst *419 Thus the purpose of the legislature was would be denied*418 a maximum of 22 weeks to tide people over, and to avoid social and of compensation payments. I agree with the economic chaos, during periods when work Court that the possibility of that denial is was unavailable. But at the same"*1802 time enough to infringe upon the appellant's there was clearly no intent to provide relief for constitutional right to the free exercise of her those who for purely personal reasons were or religion. But it is clear to me that in order to became unavailable for work. In accordance reach this conclusion the court must explicitly with this design, the legislature provided, in s reject the reasoning of Braunfeld v. Brown. I 68--113, that '(a)n unemployed insured worker Copr.®West 1997 No claim to orig.U.S.govt.works BS/17/97 14:39:2? West Publishing Co.-> 2062559709 Page 041 83 S.Ct. 1790 Page 13 (Cite as:374 U.S. 398, *419, 83 S.Ct. 1790, **1802) shall be eligible to receive benefits with FN1. I am completely at a loss to • respect to any week only if the Commission* (h)e is able to work and is understand note 4 of the Court's opinion. finds that * * Certainly the Court is not basing today's available for work* * *.'(Emphasis added.) decision on the unsupported supposition that some day, the South Carolina The South Carolina Supreme Court has Supreme Court may conclude that there is uniformly applied this law in conformity with some personal reason for unemployment its clearly expressed purpose. It has that may not disqualify a claimant for consistently held that one is not 'available for relief. In any event, I submit it is work' if his unemployment has resulted not perfectly clear that South Carolina would from the inability of industry to provide a job not compensate persons who became but rather from personal circumstances, no unemployed for any personal reason, as matter how compelling. The reference to distinguished from layoffs or lack of work, 'involuntary unemployment' in the legislative since the State Supreme Court's decisions statement of policy, whatever a sociologist, make it plain that such persons would not philosopher,or theologian might say,has been be regarded as 'available for work' within interpreted not to embrace such personal the manifest meaning of the eligibility circumstances. See, e.g., Judson Mills v. requirements. Not can I understand what South Carolina Unemployment Compensation this Court means when it says that 'if the Comm, 204 S.C. 37, 28 S.E.2d 535 (claimant eligibility provisions were thus limited, it was 'unavailable for work' when she became would have been unnecessary for the unable to work the third shift, and limited her (South Carolina) court to have decided availability to the other two, because of the appellant's constitutional challenge * * *.' need to care for her four children); Stone Mfg. Co. v. South Carolina Employment Security With this background, this Court's decision Comm., 219 S.C. 239, 64 S.E.2d 644; comes into clearer focus. What the Court is Hartsville Cotton Mill v. South Carolina holding is that if the State chooses to condition Employment Security Comm., 224 S.C. 407, unemployment compensation on the 79 S.E.2d 381. applicant's availability for work, it is • In the present case all that the state court constitutionally compelled to carve out an to provide benefits--for those has done is to apply these accepted principles. whose unavailability is due to their religious Since virtually all of the mills in the convictions. [FN2] Such a holding has Spartanburg area were operating on a six-day particular significance in two respects. week, the appellant was 'unavailable for work,' and thus ineligible for benefits, when FN2. The Court does suggest, in a rather personal considerations *420 prevented her startling disclaimer,ante,p. 1797,that its from accepting employment on a full-time holding is limited in applicability to those basis in the industry and locality in which she whose religious convictions do not make had worked. The fact that these personal them 'nonproductive' members of society, considerations sprang from her religious noting that most of the Seventh-day convictions was wholly without relevance to Adventists in the Spartanburg area are the state court's application of the law. Thus employed. But surely this disclaimer in no proper sense can it be said that the State cannot be taken seriously, for the Court discriminated against the appellant on the cannot mean that the case would have basis of her religious beliefs or that she was come out differently if none of the denied benefits because she was a Seventh-day Seventh-day Adventists in Spartanburg Adventist. She was denied benefits just as had been gainfully employed, or if the any other claimant would be denied benefits appellant's religion had prevented her who was not 'available for work' for personal from working on Tuesdays instead of reasons. [FN1] Saturdays. Nor can the Court be suggesting that it will make a value Copr.<West 1997 No claim to orig.U.S. govt. works • 05/17/9? 14:40:53 West Publishing Co.-> 2062559709 Page 042 83 S.Ct. 1790 Page 14 (Cite as:374 U.S. 398, *420, 83 S.Ct. 1790, **1802) judgment in each case as to whether a plainly under our decisions in the 'Sunday • particular individual's religious law' cases, appellant can derive no convictions prevent him from being support for her position from the State's 'productive.' I can think of no more general statutory provisions setting aside inappropriate function for this Court to Sunday as a uniform day of rest. perform *422 Second, the implications of the present **1803 *421 First, despite the Court's decision are far more troublesome than its protestations to the contrary, the decision apparently narrow dimensions would indicate necessarily overrules Braunfeld v. Brown, 366 at first glance. The meaning of today's U.S. 599, 81 S.Ct. 1144,6 L.Ed.2d 563,which holding, as already noted, is that the State held that it did not offend the 'Free Exercise' must furnish unemployment benefits to one Clause of the Constitution for a State to forbid who is unavailable for work if the a Sabbatarian to do business on Sunday. The unavailability sterns from the exercise of secular purpose of the statute before us today religious convictions. The State, in other is even clearer than that involved in words, must single out for financial assistance Braunfeld. And just as in Braunfeld--where those whose behavior is religiously motivated, exceptions to the Sunday closing laws for even though it denies such assistance to others Sabbatarians would have been inconsistent whose identical behavior (in this case, with the purpose to achieve a uniform day of inability to work no Saturdays) is not rest and would have required case-by-case religiously motivated inquiry into religious beliefs-so here, an exception to the rules of eligibility based on It has been suggested that such singling out religious convictions would necessitate judicial of religious conduct for special treatment may examination of those convictions and would be violate the constitutional limitations on state at odds with the limited purpose of the statute action. See Kurland. Of Church and State to smooth out the economy during periods of and The Supreme Court, 29 U. of Chi.L.Rev. industrial instability. Finally, the indirect 1; cf. Canunarano v. United Stags, 358 U.S. financial burden of the present law is far less 498, 515, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 • than that involved in Braunfeld. Forcing a (concurring opinion). My own view, however, store owner to close his business on Sunday is that at least under the circumstances of this may well have the effect of depriving him of a case it would be a permissible accommodation satisfactory livelihood if his religious of religion for the State, if it chose to do so, to convictions require him to close on Saturday create an exception to its eligibility as well. Here we are dealing only with requirements for persons like the appellant. temporary benefits, amounting to a fraction of The constitutional obligation of 'neutrality,' regular weekly wages and running for not see School District of Abington Township v. more than 22 weeks. See ss 68--104, 68--105. Schempp,372 U.S.,p. 222,83 S.Ct.,p. 1571, is Clearly, any differences between this case and not so narrow a channel that the slightest Braunfeld cut against the present appellant. deviation from an absolutely straight course [FN31 leads to condemnation. There are too many instances in which no such course can be FN3. The Court's reliance on South charted, too many areas in which the Carolina Code, s 64--4, ante, p. 1795, to pervasive activities of the State justify **1804 support its conclusion with respect to free some special provision for religion to prevent exercise, is misplaced. Section 64--4, it from being submerged by an all-embracing which is not a part of the Unemployment secularism. The State violates its obligation Compensation Law, is an extremely of neutrality *423 when, for example, it narrow provision that becomes operative mandates a daily religious exercise in its only during periods of national emergency public schools, with all the attendant and thus has no bearing in the pressures on the school children that such an circumstances of the present case. And exercise entails. See Engel v.Vitale, 370 U.S. Copr.®West 1997 No claim to orig.U.S. govt. works • 05/17/97 14:42:20 West Pub 1ishing Co.—> 2862559789 Page 843 83 S.Ct. 1790 Page 15 (Cite as: 374 U.S. 398, *423, 83 S.Ct. 1790, **1804) 421, 82 S.Ct. 1261, 8 L.Ed.2d 601; School • District of Abington Township v. Schempp, supra. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant's. a r. For very much the same reasons, however,I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are,in my view,few and far between, and this view is amply supported by the course of constitutional litigation in this area. See, e.g., Braunfeld v. Brown, supra; Cleveland v. United States, 329 U.S. 14, 67 S.Ct. 13, 91 L.Ed. 12; Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244. Such compulsion in the present case is particularly inappropriate in light of the indirect,remote, and insubstantial effect of the decision below on the exercise of • appellant's religion and in light of the direct financial assistance to religion that today's decision requires. For these reasons I respectfully dissent from the opinion and judgment of the Court. [FN4] FN4. Since the Court states, ante, p. 1797, that it does not reach the appellant's 'equal protection' argument, based upon South Carolina's emergency Sunday-work provisions, ss 64--4, 64--6, I do not consider it appropriate for me to do so. Copr.®West 1997 No claim to orig.U.S. govt.works • 05/17/97 14:47:56 West Publishing Co.—> 2062559709 Page 002 110 S.Ct. 1595 Page 1 108 L.Ed.2d 876, 58 USLW 4433, 52 Fair Empl.Prac.Cas.(BNA)855, 53 EmpL Prac.Dec.P 39,826,Unempl.Ins.Rep.(CCLI)P 21,933 (Cite as:494 U.S. 872, 110 S.Ct. 1595) EMPLOYMENT DIVISION, Reversed. DEPARTMENT OF HUMAN RESOURCES OF OREGON,et aL, Justice O'Connor filed opinion concurring in Petitioners judgment, in which opinion Justices Brennan, v. Marshall and Blackmun joined as to Parts I Alfred L.SMITH et aL and II only. No.88-1213. Justice Blackmun filed dissenting opinion, in which Justices Brennan and Marshall join. Supreme Court of the United States Opinion on remand, 310 Or. 376, 799 P.2d Argued Nov.6, 1989. 148. Decided April 17, 1990. [1]CONSTITUTIONAL LAW k84.1 Rehearing Denied June 4, 1990. 92k84.1 See 496 U.S.913, 110 S.Ct. 2605. Formerly 92k84(1) Free exercise of religion includes right to Claimants sought review of determination believe and profess whatever religious that their religious use of peyote, which doctrine one desires. U.S.C.A. Const.Amend. resulted in their dismissal from employment, 1. was "misconduct" disqualifying them from receipt of Oregon unemployment [21 CONSTITUTIONAL LAW k84.1 compensation benefits. In one case, the 92k84.1 Oregon Court of Appeals, 75 Or.App. 764, 709 Formerly 92k84(1) P.2d 246, reversed and remanded. The Government may not compel affirmation of Oregon Supreme Court, 301 Or. 209, 721 P.2d religious belief, punish expression of religious 445, affirmed as modified. In the second case, doctrine it believes to be false, impose special the Oregon Court of Appeals, 75 Or.App. 735, disabilities on basis of religious views or 707 P.2d 1274, reversed. The Oregon religious status, or lend its power to one or Supreme Court, 301 Or. 221, 721 P.2d 451, other side in controversies over religious affirmed as modified and remanded. Petition authority or dogma U.S.C.A. Const.Amend. for writ of certiorari was granted. The 1. Supreme Court, Justice Steven's, 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753, vacated [3]CONSTITUTIONAL LAW k84.5(1) i('�1 judgment and remanded for determination 92k84.5(1) whether sacramental peyote use was Although state would be prohibiting free proscribed by state's controlled substance law. exercise of religion in violation of free exercise On remand, the Oregon Supreme Court, 307 clause if it sought to ban religious acts or Or. 68, 763 P.2d 146, held that sacramental abstentions only when they were engaged in peyote use violated state drug laws, but for religious reasons, or only because of concluded that prohibition was nonetheless religious belief that they displayed, right of invalid under free exercise clause. The free exercise does not relieve individual of Supreme Court, Scalia, J_, held that: (1) free obligation to comply with valid or neutral law exercise clause did not prohibit application of of general applicability on ground that law Oregon drug laws to ceremonial ingestion of proscribes, or requires, conduct that is peyote, and (2) thus state could, consistent contrary to his religious practice, as long as with free exercise clause, deny claimants law does not violate other constitutional unemployment compensation for work-related protections. U.S.C.A. Const.Amend. 1. misconduct based on use of drug. [4]CONSTITUTIONAL LAW k84.5(1) Copr.®West 1997 No claim to orig. U.S.govt.works 05/17/97 14:49:11 West Publishing Co.-> 2062559709 Page 003 110 S.Ct. 1595 Page 2 (Cite as:494 U.S.872, 110 S.Ct. 1595) 92k84.5(1) Native American church, since ingestion of Exemption from generally applicable,religion- peyote was illegal under Oregon criminal laws neutral laws that have effect of burdening and that prohibition was constitutional. particular religious practice cannot be U.S.C.A. Const.Amend. 1. evaluated under balancing test of Sherbert, which was developed in unemployment [6] SOCIAL SECURITY AND PUBLIC compensation context and under which WELFARE k388.5 governmental actions that substantially 356Ak388.5 burden religious practice must be justified by State of Oregon could, consistent with free compelling governmental interest, nor is it exercise clause, deny claimants possible to require "compelling governmental unemployment compensation benefits on interest" only when conduct prohibited is ground of misconduct for dismissal from drug essential to individual's religion, since such counseling positions resulting from their inquiry would require judges to determine sacramental use of drug peyote at ceremony of "centrality" of religious beliefs in applying Native American church, since ingestion of compelling interest test in free exercise field. peyote was illegal under Oregon criminal laws U.S.C.A. Const.Amend. 1. and that prohibition was constitutional. U.S.C.A. Const.Amend. 1. [4]CONSTITUTIONAL LAW k84.5(12) 92k84.5(12) **1596 Syllabus[FN*l Exemption from generally applicable,religion- neutral laws that have effect of burdening FN* The syllabus constitutes no part of particular religious practice cannot be the opinion of the Court but has been evaluated under balancing test of Sherbert, prepared by the Reporter of Decisions for which was developed in unemployment the convenience of the reader. See United compensation context and under which States v. Detroit Lumber Co., 200 U.S. governmental actions that substantially 321,337,26 S.Ct. 282, 237,50 L.Ed. 499. burden religious practice must be justified by compelling governmental interest, nor is it *872 Respondents Smith and Black were possible to require "compelling governmental fired by a private drug rehabilitation interest" only when conduct prohibited is organization because they ingested peyote, a essential to individual's religion, since such hallucinogenic drug, for sacramental purposes inquiry would require judges to determine at a ceremony of their Native American "centrality" of religious beliefs in applying Church. Their applications for unemployment compelling interest test in free exercise field. compensation were denied by the State of U.S.C.A. Const.Amend. 1. Oregon under a state law disqualifying employees discharged for work-related [5]CONSTITUTIONAL LAW k84.5(1) "misconduct." Holding that the denials 92k84.5(1) violated respondents' First Amendment free Although states may make nondiscriminatory exercise rights, the State Court of Appeals religious practice exemption to drug law, such reversed. The State Supreme Court affirmed, exemption is not constitutionally required. but this Court vacated the judgment and U.S.C.A. Const.Amend. 1. remanded for a determination whether sacramental peyote use is proscribed by the [6]CONSTITUTIONAL LAW k84.5(19) State's controlled substance law, which makes 92k84.5(19) it a felony to knowingly or intentionally State of Oregon could, consistent with free possess the drug. Pending that determination, exercise clause, deny claimants the Court refused to decide whether such use unemployment compensation benefits on is protected by the Constitution. On remand, ground of misconduct for dismissal from drug the State Supreme Court held that counseling positions resulting from their sacramental peyote use violated, and was not sacramental use of drug peyote at ceremony of excepted from, the state-law prohibition, but Copr.e West 1997 No claim to orig.U.S. govt.works 05/17/9? 14:50:34 West Publishing Co.-> 2862559709 Page 084 110 S.Ct. 1595 Page 3 (Cite as:494 U.S.872, *872, 110 S.Ct. 1595, **1596) concluded that that prohibition was invalid holding to the contrary would create an ■- under the Free Exercise Clause. extraordinary right to ignore generally applicable laws that are not supported by Held: The Free Exercise Clause permits the "compelling governmental interest" on the State to prohibit sacramental peyote use and basis of religious belief. Nor could such a thus to deny unemployment benefits to right be limited to situations in which the persons discharged for such use. Pp. 1598- conduct prohibited is "central" to the 1606. individual's religion, since that would enmesh judges in an impermissible inquiry into the (a) Although a State would be "prohibiting centrality of particular beliefs or practices to a the free exercise [of religion]" in violation of faith. Cf. Hernandez v. Commissioner, 490 the Clause if it sought to ban the performance U.S. 680, 699, 109 S.Ct. 2136, 2148-2149, 104 of (or abstention from) physical acts solely L.Ed.2d 766. Thus, although it is because of their religious motivation, the constitutionally permissible to exempt Clause does not relieve an individual of the sacramental peyote use from the operation of obligation to comply with a law that drug laws, it is not constitutionally required. incidentally forbids (or requires) the Pp. 1602-1606. performance of an act that his religious belief requires (or forbids) if the law is not 307 Or.68, 763 P.2d 146, reversed. specifically directed to religious practice and is otherwise constitutional as applied to those SCALIA, J., delivered the opinion of the who engage in the specified act for Court, in which REHNQUIST, C.J., and nonreligious reasons. See, e.g., Reynolds v. WHITE, STEVENS, and KENNEDY, JJ., United States, 98 U.S. 145, 166-167, 25 L.Ed. joined. O'CONNOR, J., filed an opinion 244. The only decisions in which this Court concurring in the judgment, in Parts I and II has held that the First Amendment bars of which BRENNAN, MARSHALL, and application of a neutral, generally applicable BLACKMUN, JJ., joined without concurring law to religiously motivated action are in the judgment, post, p. 1606. BLACKMUN, distinguished **1597 on the ground that they J., filed a dissenting opinion, in which involved not the Free Exercise Clause alone, BRENNAN and MARSHALL, JJ., joined, but that Clause in conjunction with other post,p. 1615. constitutional *873 protections. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 304- Dave Frohnmayer, Attorney General of 307, 60 S.Ct. 900, 903-905, 84 L.Ed. 1213; Oregon, argued the cause for petitioners. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. With him on the briefs were James E. 1526, 32 L.Ed.2d 15. Pp. 1598-1602. Mountain, Jr., Deputy Attorney General, Virginia L. Linder, Solicitor General, and (b) Respondents' claim for a religious Michael D. Reynolds, Assistant Solicitor exemption from the Oregon law cannot be General. evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, Craig J. Dorsay argued the cause and filed 374 U.S. 398, 402-403, 83 S.Ct. 1790, 1792- briefs for respondents.* ginumit 1794, 10 L.Ed.2d 965, whereby governmental actions that substantially burden a religious * Briefs of amid. curiae urging affirmance practice must be justified by a "compelling were filed for the American Civil Liberties governmental interest." That test was Union et al. by Steven R.Shapiro and John A. developed in a context--unemployment Powell; for the American Jewish Congress by compensation eligibility rules--that lent itself Amy Adelson, Lois C. Waldman, and Marc D. to individualized governmental assessment of Stern; for the Association on American Indian the reasons for the relevant conduct. The test Affairs et al. by Steven C. Moore and Jack is inapplicable to an across-the-board criminal Trope; and for the Council on Religious prohibition on a particular form of conduct. A Freedom by Lee Boothby and Robert W. Copr.' West 1997 No claim to orig.U.S. govt. works B5/17/9? 14:51;50 West Publishing Co.-> 2062559709 Page 005 110 S.Ct. 1595 Page 4 (Cite as:494 U.S. 872, *873, 110 S.Ct. 1595, **1597) Nixon. rights under the First Amendment. • *874 Justice SCALIA delivered the opinion *875 On appeal to the Oregon Supreme of the Court. Court, petitioner argued that the denial of benefits was permissible because respondents' This case requires us to decide whether the consumption of peyote was a crime under Free Exercise Clause of the First Amendment Oregon law. The Oregon Supreme Court permits the State of Oregon to include reasoned, however, that the criminality of religiously inspired peyote use within the respondents' peyote use was irrelevant to reach of its general criminal prohibition on resolution of their constitutional claim--since use of that drug, and thus permits the State to the purpose of the "misconduct" provision deny unemployment benefits to persons under which respondents had been • dismissed from their jobs because of such disqualified was not to enforce the State's religiously inspired use. criminal laws but to preserve the financial integrity of the compensation fund, and since I that purpose was inadequate to justify the burden that disqualification imposed on Oregon law prohibits the knowing or respondents' religious practice. Citing our intentional possession of a "controlled decisions in Sherbert v. Verner, 374 U.S. 398, substance" unless the substance has been 83 S.Ct. 1790, 10 L.Ed.2d 966 (1963), and prescribed by a medical practitioner. Thomas v. Review Bd., Indiana Employment Ore.Rev.Stat. $ 475.992(4) (1987). The law Security Div.,450 U.S. 707, 101 S.Ct. 1425,67 defines "controlled substance" as a drug L.Ed.2d 624 (1981), the court concluded that classified in Schedules I through V of the respondents were entitled to payment of Federal Controlled Substances Act, 21 U.S.C. unemployment benefits. Smith v. §§ 811-812, as modified by the State Board of Employment Div., Dept. of Human Resources, Pharmacy. Ore.Rev.Stat. § 475.005(6) (1987). 301 Or. 209, 217-219, 721 P.2d 445, 449-460 Persons who violate this provision by (1986). We granted certiorari. 480 U.S. 916, possessing a controlled substance listed on 107 S.Ct. 1368,94 L.Ed.2d 684(1987). • Schedule I are "guilty of a Class B felony." $ 475.992(4)(a). As compiled by the State Board Before this Court in 1987, petitioner of Pharmacy under its statutory authority, continued to maintain that the illegality of see, $ 476.036, Schedule I contains the drug respondents' peyote consumption was relevant peyote, a hallucinogen derived from the plant to their constitutional claim. We agreed, Lophophora williamsii Lemaire. concluding that "if a State has prohibited Ore.Admin.Rule 855-80-021(3Xs)(1988). through its criminal laws certain kinds of religiously motivated conduct without Respondents Alfred Smith and Galen Black violating the First Amendment, it certainly (hereinafter respondents)were fired from their follows that it may impose the lesser burden of jobs with a private drug rehabilitation denying unemployment compensation benefits organization because they ingested peyote for to persons who engage in that conduct." sacramental purposes at a ceremony of the Employment Div., Dept. of Human Resources Native American Church, of which **1598 of Oregon v. Smith, 485 U.S. 660, 670, 108 both are members. When respondents applied S.Ct. 1444, 1450, 99 L.Ed.2d 753(1988)(Smith to petitioner Employment Division I ). We noted, however, that the Oregon (hereinafter petitioner) for unemployment Supreme Court had not decided whether compensation, they were determined to be respondents' sacramental use of peyote was in ineligible for benefits because they had been fact proscribed by Oregon's controlled discharged for work-related "misconduct." substance law, and that this issue was a The Oregon Court of Appeals reversed that matter of dispute between the parties. Being determination, holding that the denial of "uncertain about the legality of the religious benefits violated respondents' free exercise use of peyote in Oregon," we determined that Copr.®West 1997 No claim to orig. U.S. govt. works • 05/17/9? 14:53:24 West Publishing Co.-> 2062559789 Page 886 110 S.Ct. 1595 Page 5 (Cite es:494 U.S.872, *875, 110 S.Ct. 1595, **1598) it would not be "appropriate for us to decide prohibition is permissible under the Free whether the practice is protected by the Exercise Clause. Federal Constitution." Id., at 673, 108 S.Ct., at 1462. Accordingly, we *876 vacated the A judgment of the Oregon Supreme Court and remanded for further proceedings. Id., at 674, [1][2] The Free Exercise Clause of the First 108 S.Ct.,at 1452. Amendment, which has been made applicable to the States by incorporation into *877 the On remand, the Oregon Supreme Court held Fourteenth Amendment, see Cantwell v. that respondents' religiously inspired use of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, peyote fell within the prohibition of the 903, 84 L.Ed. 1213 (1940), provides that Oregon statute,which"makes no exception for "Congress shall make no law respecting an the sacramental use" of the drug. 307 Or. 68, establishment of religion, or prohibiting the 72-73, 763 P.2d 146, 148 (1988). It then free exercise thereof...." U.S. Const., Arndt. 1 considered whether that prohibition was valid (emphasis added.) The free exercise of religion • under the Free Exercise Clause,and concluded means, first and foremost, the right to believe that it was not. The court therefore and profess whatever religious doctrine one Mar reaffirmed its previous ruling that the State desires. Thus, the First Amendment obviously could not deny unemployment benefits to excludes all "governmental regulation of respondents for having engaged in that religious beliefs as such." Sherbert v. Verner, practice. supra, 374 U.S., at 402,83 S.Ct., at 1793. The government may not compel affirmation of We again granted certiorari. 489 U.S. 1077, religious belief, see Torcaso v. Watkins, 367 109 S.Ct. 1526, 103 L.Ed.2d 832(1989). U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), punish the expression of religious doctrines it II believes to be false, United States v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 886.87, 88 Respondents' claim for relief rests on our L.Ed. 1148 (1944), impose special disabilities decisions in Sherbert v. Verner, supra, on the basis of religious views or religious Thomas v. Review Bd. of Indiana Employment status, see McDaniel v. Paty, 435 U.S. 618,98 Security Div., supra, and Hobbie v. S.Ct. 1322, 55 L.Ed.2d 593 (1978); Fowler v. Unemployment Appeals Comm'n of Florida, Rhode Island, 345 U.S. 67, 69, 73 S.Ct. 526, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 527, 97 L.Ed. 828 (1953); cf. Larson v. (1987),in which we held that a State could not Valente, 466 U.S. 228, 245, 102 S.Ct. 1673, condition the availability of unemployment 1683-84, 72 L.Ed.2d 33 (1982), or lend its insurance on an individual's willingness to power to one or the other side in controversies forgo conduct required by his religion. As we over religious authority or dogma, see observed in Smith I, however, the conduct at Presbyterian Church in U.S. v. Mary issue in those cases was not prohibited by law. Elizabeth Blue Hull Memorial Presbyterian We held that distinction to be critical, for "if Church, 393 U.S. 440, 445 452, 89 S.Ct. 601, Oregon does prohibit the religious **1599 use 604-608, 21 L.Ed.2d 658 (1969); Kedroff v. St. of peyote, and if that prohibition is consistent Nicholas Cathedral, 344 U.S. 94, 95-119, 73 with the Federal Constitution, there is no S.Ct. 143, 143-56, 97 L.Ed. 120 (1952); federal right to engage in that conduct in Serbian Eastern Orthodox Diocese v. Oregon," and "the State is free to withhold Milivojevich, 426 U.S. 696, 708-725, 96 S.Ct. unemployment compensation from 2372,2380-2388, 49 L.Ed.2d 151(1976). respondents for engaging in work-related misconduct, despite its religious motivation." [3] But the "exercise of religion" often 485 U.S., at 672, 108 S.Ct., at 1451. Now that involves not only belief and profession but the the Oregon Supreme Court has confirmed that performance of (or abstention from) physical Oregon does prohibit the religious use of acts: assembling with others for a worship peyote, we proceed to consider whether that service, participating in sacramental use of Copr.6 West 1997 No claim to orig.U.S.govt.works 05/17/97 14:54:50 West Publishing Co.-> 2062559709 Page 007 110 S.Ct. 1595 Page 6 (Cite as:494 U.S.872, *877, 110 S.CL 1595, **1599) bread and wine,proselytizing, abstaining from 297 U.S. 233, 250-251, 56 S.Ct. 444, 449, 80 • certain foods or certain modes of L.Ed. 660 (1936) (striking down license tax transportation. It would be true, we think applied only to newspapers with weekly (though no case of ours has involved the circulation above a specified level); see point), that a State would be "prohibiting the generally Minneapolis Star & Tribune Co. v. free exercise [of religion]" if it sought to ban Minnesota Comm'r of Revenue, 460 U.S. 575, such acts or abstentions only when they are 581, 103 S.Ct. 1365, 1369-70, 75 L.Ed.2d 295 engaged in for religious reasons, or only (1983). because of the religious belief that they display. It would doubtless be Our decisions reveal that the latter reading unconstitutional, for example, to ban the is the correct one. We have never held that an casting of"statues that are to be used *878 for individual's religious beliefs *879 excuse him worship purposes," or to prohibit bowing down from compliance with an otherwise valid law before a golden calf. prohibiting conduct that the State is free to regulate. On the contrary, the record of more Respondents in the present case, however, than a century of our free exercise seek to carry the meaning of"prohibiting the jurisprudence contradicts that proposition. As free exercise [of religion]" one large step described succinctly by Justice Frankfurter in further. They contend that their religious Minersville School Dist. Bd. of Ed. v. Gobitis, motivation for using peyote places them 310 U.S. 586, 594-595, 60 S.Ct. 1010, 1012- -■ beyond the reach of a criminal law that is not 1013, 84 L.Ed. 1375 (1940): "Conscientious specifically directed at their religious practice, scruples have not, in the course of the long and that is concededly constitutional as struggle for religious toleration, relieved the applied to those who use the drug for other individual from obedience to a general law not reasons. They assert, in other words, that aimed at the promotion or restriction of "prohibiting the free exercise [of religion]" religious beliefs. The mere possession of includes requiring any individual to observe a religious convictions which contradict the generally applicable law that requires (or relevant concerns of a political society does not forbids) the performance of an act that his relieve the citizen from the discharge of • religious belief forbids (or requires). As a textual matter, we do not think the words political responsibilities (footnote omitted)." We first had occasion to assert that principle must be given that meaning. It is no more in Reynolds v. United States, 98 U.S. 145, 25 necessary to regard the collection of a general L.Ed. 244 (1879), where we rejected the claim tax, for example, as "prohibiting the free that criminal laws against polygamy could not exercise [of religion]" by those citizens who be constitutionally applied to those whose believe support of organized government to be religion commanded the practice. "Laws,' we sinful, than it is to regard the same tax as said, "are made for the government of actions, "abridging the freedom ... of the press" of and while they cannot interfere with mere imummis **I600 those publishing companies that must religious belief and opinions, they may with pay the tax as a condition of staying in practices.... Can a man excuse his practices to business. It is a permissible reading of the the contrary because of his religious belief? text, in the one case as in the other, to say To permit this would be to make the professed that if prohibiting the exercise of religion (or doctrines of religious belief superior to the law burdening the activity of printing) is not the of the land, and in effect to permit every object of the tax hut merely the incidental citizen to become a law unto himself" Id., at effect of a generally applicable and otherwise 166-167. valid provision, the First Amendment has not been offended. Compare Citizen Publishing Subsequent decisions have consistently held Co. v. United States, 394 U.S. 131, 139, 89 that the right of free exercise does not relieve S.Ct. 927, 931-32, 22 L.Ed.2d 148 (1969) an individual of the obligation to comply with (upholding application of antitrust laws to a "valid and neutral law of general press), with Grosjean v. American Press Co., applicability on the ground that the law Copr.e West 1997 No claim to orig.U.S. govt.works • 05/17/97 14:56:20 West Publishing Go.-> 2062559709 Page 000 110 S.Ct. 1595 Page 7 (Cite as:494 U.S. 872, *879, 110 S.Ct. 1595, **1600) proscribes (or prescribes) conduct that his paying that percentage of the income tax. The religion prescribes (or proscribes)." United tax system could not function if denominations States v. Lee, 455 U.S. 252, 263, n. 3, 102 were allowed to challenge the tax system S.Ct. 1051, 1058, n. 3, 71 L.Ed.2d 127 (1982) because tax payments were spent in a manner (STEVENS, J., concurring in judgment); see that violates their religious belief" Id., at Minersville School Dist. Bd. of Ed. v. Gobitis, 260, 102 S.Ct., at 1056-57. Cf. Hernandez v. supra, 310 U.S., at 595, 60 S.Ct., at 1013 Commissioner, 490 U.S. 680, 109 S.Ct. 2136, (collecting cases). In Prince v. Massachusetts, 104 L.Ed.2d 766(1989)(rejecting free exercise 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 challenge to payment of income taxes alleged (1944), we held that a mother could be to make religious activities more difficult). prosecuted under the child labor laws *880 for using her children to dispense literature in the *881 The only decisions in which we have • streets, her religious motivation held that the First Amendment bars notwithstanding. We found no constitutional application of a neutral, generally applicable infirmity in "excluding [these children] from law to religiously motivated action have doing there what no other children may do." involved not the Free Exercise Clause alone, Id., at 171, 64 S.Ct., at 444. In Braunfeld v. but the Free Exercise Clause in conjunction Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d with other constitutional protections, such as 563 (1961) (plurality opinion), we upheld freedom of speech and of the press, see Sunday-closing laws against the claim that Cantwell v. Connecticut, 310 U.S., at 304-307, they burdened the religious practices of 60 S.Ct., at 903-905 (invalidating a licensing persons whose religions compelled them to system for religious and charitable refrain from work on other days. In Gillette v. solicitations under which the administrator United States,401 U.S.437,461,91 S.Ct. 828, had discretion to deny a license to any cause 842, 28 L.Ed.2d 168 (1971), we sustained the he deemed nonreligious); Murdock v. military Selective Service System against the Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 claim that it violated free exercise by L.Ed. 1292 (1943) (invalidating a flat tax on conscripting persons who opposed a particular solicitation as applied to the dissemination of war on religious grounds. religious ideas); Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) **1601 Our most recent decision involving a (same), or the right of parents, acknowledged neutral, generally applicable regulatory law in Pierce v. Society of Sisters,268 U.S. 510,45 that compelled activity forbidden by an S.Ct. 571, 69 L.Ed. 1070 (1925), to direct the individual's religion was United States v. Lee, education of their children, see Wisconsin v. 455 U.S., at 258-261, 102 S.Ct., at 1055-1057. Yoder,406 U.S. 205,92 S.Ct. 1526,32 L.Ed.2d There, an Amish employer, on behalf of 15 (1972) (invalidating compulsory school- himself and his employees, sought exemption attendance laws as applied to Amish parents from collection and payment of Social Security who refused on religious grounds to send their taxes on the ground that the Amish faith children to school). [FN1] $882 Some of our prohibited participation in governmental cases prohibiting compelled expression, support programs. We rejected the claim that decided exclusively upon free speech grounds, an exemption was constitutionally required. have also involved freedom of religion, cf. There would be no way, we observed, to Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. distinguish the Amish believer's objection to 1428, 51 L.Ed.2d 752 (1977) (invalidating Social Security taxes from the religious compelled display of a license plate slogan objections that others might have to the that offended individual religious beliefs); collection or use of other taxes. "If, for West Virginia Bd. of Education v. Barnette, example, a religious adherent believes war is 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 a sin,and if a certain percentage of the federal (1943) (invalidating $$1602 compulsory flag budget can be identified as devoted to war- salute statute challenged by religious related activities, such individuals would have objectors). And it is easy to envision a case in a similarly valid claim to be exempt from which a challenge on freedom of association Copr.e West 1997 No claim to orig.U.S.govt.works H5/17/97 14:57:52 West Publishing Co.-> 2062559709 Page 009 110 S.Ct. 1595 Page 8 (Cite as:494 U.S. 872, 9 82, 110 S.Ct. 1595, **1602) grounds would likewise be reinforced by Free The present case does not present such a Exercise Clause concerns. Cf. Roberts v. hybrid situation, but a free exercise claim United States Jaycees, 468 U.S. 609, 622, 104 unconnected with any communicative activity S.Ct. 3244, 3251-52, 82 L.Ed.2d 462 (1984) or parental right. Respondents urge us to ("An individual's freedom to speak, to hold, quite simply, that when otherwise worship, and to petition the government for prohibitable conduct is accompanied by the redress of grievances could not be religious convictions, not only the convictions vigorously protected from interference by the but the conduct itself must be free from State [if] a correlative freedom to engage in governmental regulation. We have never held group effort toward those ends were not also that, and decline to do so now. There being no guaranteed"). contention that Oregon's drug law represents an attempt to regulate religious beliefs, the FN1. Both lines of cases have specifically communication of religious beliefs, or the adverted to the non-free-exercise principle raising of one's children in those beliefs, the involved. Cantwell, for example, rule to which we have adhered ever since • observed that "[t]he fundamental law Reynolds plainly controls. "Our cases do not declares the interest of the United States at their farthest reach support the proposition that the free exercise of religion be not that a stance of conscientious opposition prohibited and that freedom to relieves an objector from any colliding duty communicate information and opinion be fixed by a democratic government." Gillette not abridged." 310 U.S., at 307,60 S.Ct., v. United States, supra, 401 U.S., at 461, 91 at 905. Murdock said: "We do not mean S.Ct., at 842. to say that religious groups and the press are free from all financial burdens of B government.... We have here something quite different, for example,from a tax on [4] Respondents argue that even though the income of one who engages in exemption from generally applicable criminal religious activities or a tax on property laws need not automatically be extended to used or employed in connection with those religiously motivated actors,at least the claim activities. It is one thing to impose a tax for a *883 religious exemption must be on the income or property of a preacher. evaluated under the balancing test set forth in It is quite another thing to exact a tax Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. from him for the privilege of delivering a 1790, 10 L.Ed.2d 965 (1963). Under the sermon.... Those who can deprive Sherbert test, governmental actions that religious groups of their colporteurs can substantially burden a religious practice must take from them a part of the vital power be justified by a compelling governmental of the press which has survived from the interest. See id., at 402-403,83 S.Ct., at 1792- Reformation." 319 U.S., at 112, 63 S.Ct., 1794; see also Hernandez v. Commissioner, at 874. Yoder said that "the Court's 490 U.S., at 699, 109 S.Ct., at 2148. Applying holding in Pierce stands as a charter of that test we have, on three occasions, the rights of parents to direct the religious invalidated state unemployment compensation upbringing of their children. And, when rules that conditioned the availability of the interests of parenthood are combined benefits upon an applicant's willingness to with a free exercise claim of the nature work under conditions forbidden by his revealed by this record, more than merely religion See Sherbert v. Verner, supra; a 'reasonable relation to some purpose Thomas v. Review Bd. of Indiana Employment within the competency of the State' is Security Div.,450 U.S. 707, 101 S.Ct. 1425,67 required to sustain the validity of the L.Ed.2d 624(1981); Hobbit)v. Unemployment State's requirement under the First Appeals Comm'n of Florida,480 U.S. 136, 107 Amendment." 406 U.S., at 233, 92 S.Ct., S.Ct. 1046, 94 L.Ed.2d 190 (1987). We have at 1542. never invalidated any governmental action on the basis of the Sherbert test except the denial Copr.®West 1997 No claim to orig.U.S. govt. works 05/17/97 14:59:18 West Publishing En.-> 2B62559789 Page B18 110 S.Ct. 1595 Page 9 (Cite as:494 U.S. 872, *883, 110 S.Ct. 1595, **1602) of unemployment compensation. Although we conduct. As a plurality of the Court noted in • have sometimes purported to apply the Roy, a distinctive feature of unemployment Sherbert test in contexts other than that, we compensation programs is that their eligibility have always found the test satisfied, see criteria invite consideration of the particular United States v. Lee, 455 U.S. 252, 102 S.Ct. circumstances behind an applicant's 1051, 71 L.Ed.2d 127(1982);Gillette v.United unemployment: "The statutory conditions [in States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d Sherbert and Thomas 1 provided that a person 168(1971). In recent years we have abstained was not eligible for unemployment from applying the Sherbert test (outside the compensation benefits if, 'without good cause,' unemployment compensation field) at all. In he had quit work or refused available work. Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, The 'good cause' standard created a 90 L.Ed.2d 735 (1986), we declined to apply mechanism for individualized exemptions." Sherbert analysis to a federal statutory Bowen v. Roy, supra, 476 U.S., at 708, 106 scheme that required benefit applicants and S.Ct., at 2156 (opinion of Burger, C.J., joined recipients to provide their Social Security by Powell and REHNQUIST, JJ.). See also numbers. The plaintiffs in that case asserted Sherbert, supra, 374 U.S., at 401, n. 4, 83 that it would violate their religious beliefs to S.Ct., at 1792, n. 4 (reading state obtain and provide a Social Security number unemployment compensation law as allowing for their daughter. We held the statute's benefits for unemployment caused by at least application to the plaintiffs valid regardless of some "personal reasons"). As the plurality whether it was necessary to effectuate a pointed out in Roy, our decisions in the compelling interest. See 476 U.S., at 699-701, unemployment cases stand for the proposition 106 S.Ct., at 2151-63. In Lyng v. Northwest that where the State has in place a system of Indian Cemetery Protective Assn., 485 U.S. individual exemptions, it may not refuse to 439, 108 S.Ct. 1319,99 L.Ed.2d 534(1988), we extend that system to cases of "religious declined to apply Sherbert analysis to the hardship" without compelling reason. Bowen Government's logging and road construction v. Roy, supra, 476 U.S., at 708, 106 S.Ct., at activities on lands used for religious purposes 2156-57. by several Native American Tribes, even • though it was undisputed that the activities Whether or not the decisions are that **1603 "could have devastating effects on limited, they at least have nothing to do with traditional Indian religious practices," 485 an across-the-board criminal prohibition on a U.S., at 451, 108 S.Ct., at 1326. *884 In particular form of conduct. Although,as noted Goldman v. Weinberger, 475 U.S. 503, 106 earlier, we have sometimes used the Sherbert S.Ct. 1310, 89 L.Ed.2d 478 (1986), we rejected test to analyze free exercise challenges to such application of the Sherbert test to military laws, see United States v. *885 Lee, supra, dress regulations that forbade the wearing of 455 U.S., at 257-260, 102 S.Ct., at 1055-1057; yarmulkes. In O'Lone v. Estate of Shaba7s', Gillette v. United States, supra, 401 U.S., at 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 462, 91 S.Ct., at 842-43, we have never (1987), we sustained, without mentioning the applied the test to invalidate one. We Sherbert test, a prison's refusal to excuse conclude today that the sounder approach, and inmates from work requirements to attend the approach in accord with the vast majority worship services. of our precedents, is to hold the test inapplicable to such challenges. The Even if we were inclined to breathe into government's ability to enforce generally Sherbert some life beyond the unemployment applicable prohibitions of socially harmful compensation field, we would not apply it to conduct, like its ability to carry out other require exemptions from a generally aspects of public policy, "cannot depend on applicable criminal law. The Sherbert test, it measuring the effects of a governmental must be recalled, was developed in a context action on a religious objector's spiritual that lent itself to individualized governmental development." Lyng, supra, 485 U.S., at 451, assessment of the reasons for the relevant 108 S.Ct., at 1326. To make an individual's Copr. ©West 1997 No claim to orig.U.S.govt.works • 05/17/9? 15:00:49 West Publishing Co.-> 2062559799 Page 011 110 S.Ct. 1595 Page 10 (Cite as:494 U.S.872, *885, 110 S.Ct. 1595, **1603) obligation to obey such a law contingent upon the basis of race, see, e.g., *886 Palmore v. • the law's coincidence with his religious beliefs,except where the State's interest is Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984), or before the "compelling"-permitting him, by virtue of his government may regulate the content of beliefs, "to become a law unto himself," speech, see, e.g., Sable Communications of Reynolds v. United States, 98 U.S., at 167-- California v. FCC, 492 U.S. 115, 126, 109 contradicts both constitutional tradition and S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989), is not common sense. [FN2] remotely comparable to using it for the purpose asserted here. What it produces in FN2. Justice O'CONNOR seeks to those other fields--equality of treatment and distinguish Lyng v. Northwest Indian an unrestricted flow of contending speech--are Cemetery Protective Assn., 485 U.S. 439, constitutional norms; what it would produce 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), here--a private right to ignore generally and Bowen v.Roy,476 U.S. 693, 106 S.Ct. applicable laws-is a constitutional anomaly. 2147, 90 L.Ed.2d 735 (1986), on the [FN31 ground that those cases involved the government's conduct of"its own internal FN3. Justice O'CONNOR suggests that affairs," which is different because, as "Where is nothing talismanic about Justice Douglas said in Sherbert, " 'the neutral laws of general applicability," and Free Exercise Clause is written in terms that all laws burdening religious practices of what the government cannot do to the should be subject to compelling-interest individual, not in terms of what the scrutiny because "the First Amendment individual can exact from the unequivocally makes freedom of religion, government.' " Post, at 1611-1612 like freedom from race discrimination and (O'CONNOR, J., concurring in judgment), freedom of speech, a 'constitutional quoting Sherbert v. Verner, 374 U.S. 398, nor[ml,' not an 'anomaly.' " Post, at 1612 412, 83 S.Ct. 1790, 1798, 10 L.Ed.2d 965 (opinion concurring in judgment). But (1963)(Douglas, J.,concurring). But since this comparison with other fields Justice Douglas voted with the majority supports, rather than undermines, the • in Sherbert, that quote obviously conclusion we draw today. Just as we envisioned that what "the government subject to the most exacting scrutiny laws cannot do to the individual" includes not that make classifications based on race, just the prohibition of an individual's see Palmore v. Sidoti, 466 U.S. 429, 104 freedom of action through criminal laws S.Ct. 1879, 80 L.Ed.2d 421 (1984), or on but also the running of its programs (in the content of speech, see Sable Sherbert, state unemployment Communications of California v. FCC, compensation)in such fashion as to harm 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d the individual's religious interests. 93 (1989), so too we strictly scrutinize Moreover, it is hard to see any reason in governmental classifications based on principle or practicality why the religion, see McDaniel v. Paty, 435 U.S. government should have to tailor its 618,98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); health and safety laws to conform to the see also Torcaso v. Watkins, 367 U.S. 488, diversity of religious belief, but should not 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). But have to tailor its management of public we have held that race-neutral laws that lands, Lyng, supra, or its administration have the effect of disproportionately of welfare programs,Roy,supra. disadvantaging a particular racial group do not thereby become subject to *#1604 The "compelling government compelling-interest analysis under the interest" requirement seems benign, because Equal Protection Clause, see Washington it is familiar from other fields. But using it as v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 the standard that must be met before the L.Ed.2d 597 (1976) (police employment government may accord different treatment on examination); and we have held that Copr.®West 1997 No claim to orig.U.S. govt. works • 05/17/97 15:02:14 West Publishing Co.-> 2062559789 Page 012 110 S.Ct. 1595 Page 11 (Cite as:494 U.S.872, *886, 110 S.Ct. 1595, **1604) generally applicable laws unconcerned 101 S.Ct., at 1431; Presbyterian Church in with regulating speech that have the U.S. v. Mary Eliza **1605 beth Blue Hull effect of interfering with speech do not Memorial Presbyterian Church, 393 U.S., at thereby become subject to compelling- 450, 89 S.Ct., at 606-07; Jones v. Wolf, 443 interest analysis under the First U.S. 595, 602-606, 99 S.Ct. 3020, 3024-3027, Amendment, see Citizen Publishing Co. v. 61 L.Ed.2d 775 (1979); United States v. United States, 394 U.S. 131, 139, 89 S.Ct. Ballard, 322 U.S. 78,85-87, 64 S.Ct. 882, 885- 927, 22 L.Ed.2d 148 (1969) (antitrust 87,88 L.Ed. 1148(1944). [FN41 laws). Our conclusion that generally applicable, religion-neutral laws that FN4. While arguing that we should apply have the effect of burdening a particular the compelling interest test in this case, religious practice need not be justified by Justice O'CONNOR nonetheless agrees a compelling governmental interest is the that "our determination of the only approach compatible with these constitutionality of Oregon's general precedents. criminal prohibition cannot, and should not, turn on the centrality of the Nor is it possible to limit the impact of particular religious practice at issue," respondents' proposal by requiring a post, at 1615 (opinion concurring in "compelling state interest" only when the judgment). This means, presumably, that conduct prohibited is "central" to the compelling interest scrutiny must be individual's religion. Cf. Lyng v. Northwest applied to generally applicable laws that Indian Cemetery Protective Assn., 485 U.S., regulate or prohibit any religiously at 474-476, 108 S.Ct., at 1338-1339 motivated activity, no matter how (BRENNAN, J., dissenting). It is no *887 unimportant to the claimant's religion. more appropriate for judges to determine the Earlier in her opinion, however, Justice "centrality" of religious beliefs before O'CONNOR appears to contradict this, applying a "compelling interest" test in the saying that the proper approach is "to free exercise field, than it would be for them determine whether the burden on the to determine the "importance" of ideas before specific plaintiffs before us is applying the "compelling interest" test in the constitutionally significant and whether free speech field. What principle of law or the particular criminal interest asserted logic can be brought to bear to contradict a by the State before us is compelling." believer's assertion that a particular act is Post, at 1611. "Constitutionally "central" to his personal faith? Judging the significant burden" would seem to be centrality of different religious practices is "centrality" under another name. In any akin to the unacceptable "business of case, dispensing with a "centrality" evaluating the relative merits of differing inquiry is utterly unworkable. It would religious claims." United States v. Lee, 455 require, for example, the same degree of U.S., at 263 n. 2, 102 S.Ct., at 1058 n. 2 "compelling state interest" to impede the (STEVENS, J., concurring). As we reaffirmed practice of throwing rice at church only last Term, "Mt is not within the judicial weddings as to impede the practice of ken to question the centrality of particular getting married in church. There is no beliefs or practices to a faith,or the validity of way out of the difficulty that, if general particular litigants' interpretations of those laws are to be subjected to a "religious creeds." Hernandez v. Commissioner, 490 practice" exception, both the importance U.S., at 699, 109 S.Ct., at 2148. Repeatedly of the law at issue and the centrality of and in many different contexts, we have the practice at issue must reasonably be warned that courts must not presume to considered. Nor is this difficulty avoided determine the place of a particular belief in a by Justice BLACKMUN's assertion that religion or the plausibility of a religious claim. "although ... courts should refrain from See, e.g., Thomas v. Review Bd. of Indiana delving into questions whether, as a Employment Security Div., 450 U.S., at 716, matter of religious doctrine, a particular Copr.®West 1997 No claim to orig.U.S. govt.works 05/17/97 15:03:41 West Publishing Co.-> 2062559709 Page 013 110 S.Ct. 1695 Page 12 (Cite as:494 U.S.872, *887, 110 S.Ct. 1595, **1605) practice is 'central'to the religion, ... I do drug laws, see, e.g., Olsen v. Drug • not think this means that the courts must Enforcement Administration, 279 turn a blind eye to the severe impact of a U.S.App.D.C. 1, 878 F.2d 1458 (1989), and State's restrictions on the adherents of a traffic laws, see Cox v. New Hampshire, 312 minority religion." Post, at 1621 U.S. 569, 61 S.Ct. 762, 86 L.Ed. 1049 (1941); (dissenting opinion). As Justice to social welfare legislation such as minimum BLACKMUN's opinion proceeds to make wage laws, see Tony and Susan Alamo clear, inquiry into "severe impact' is no Foundation v. Secretary of Labor, 471 U.S. different from inquiry into centrality. He 290, 106 S.Ct. 1963, 86 L.Ed.2d 278 (1986), has merely substituted for the question child labor laws, see Prince v. Massachusetts, "How important is X to the religious 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 adherent?" the question "How great will (1944), animal cruelty laws, see, e.g., Church be the harm to the religious adherent if X of the Lukumi Babalu Aye Inc. v. City of is taken away?" There is no material Hialeah, 723 F.Supp. 1467 (SD Fla.1989), cf. difference. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942, 69 S.Ct. 813, 93 *888 If the"compelling interest" test is to be L.Ed. 1099 (1949), environmental protection applied at all, then, it must be applied across laws, **1606 see United States v. Little, 638 the board, to all actions thought to be F.Supp. 337 (Mont.1986), and laws providing religiously commanded. Moreover, if for equality of opportunity for the races, see, "compelling interest" really means what it e.g., Bob Jones University v. United States, says(and watering it down here would subvert 461 U.S. 574, 603-604, 103 S.Ct. 2017, 2034- its rigor in the other fields where it is applied), 2035, 76 L.Ed.2d 157 (1983). The First many laws will not meet the test. Any society Amendment's protection of religious liberty adopting such a system would be courting does not require this. [FN6] anarchy, but that danger increases in direct proportion to the society's diversity of FN6. Justice O'CONNOR contends that religious beliefs, and its determination to the "parade of horribles" in the text only coerce or suppress none of them. Precisely "demonstrates ... that courts have been because "we are a cosmopolitan nation made quite capable of ... strik [ing] sensible up of people of almost every conceivable balances between religious liberty and religious preference," Braunfeld v.Brown, 366 competing state interests." Post, at 1612- U.S., at 606, 81 S.Ct., at 1147, and precisely 1613 (opinion concurring in judgment). because we value and protect that religious But the cases we cite have struck divergence, we cannot afford the luxury of "sensible balances" only because they deeming presumptively invalid, as applied to have all applied the general laws, despite the religious objector, every regulation of the claims for religious exemption. In any conduct that does not protect an interest of the event, Justice O'CONNOR mistakes the highest order. The rule respondents favor purpose of our parade: it is not to suggest would open the prospect of constitutionally that courts would necessarily permit required religious exemptions from civic harmful exemptions from these laws obligations of almost every conceivable kind-- (though they might), but to suggest that ranging from *889 compulsory military courts would constantly be in the business service, see, e.g., Gillette v.United States,401 of determining whether the "severe U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), impact" of various laws on religious to the payment of taxes, see, e.g., United practice (to use Justice BLACKMUN's States v. Lee, supra; to health and safety terminology post, at 1621) or the regulation such as manslaughter and child "constitutiona[11 significan[ce]" of the neglect laws, see, e.g., Funkhouser v. State, "burden on the specific plaintiffs" (to use 763 P.2d 695 (Okla.Crim.App.1988), Justice O'CONNDR's terminology post, at compulsory vaccination laws, see,e.g., Cude v. 1611) suffices to permit us to confer an State, 237 Ark. 927, 377 S.W.2d 816 (1964), exemption. It is a parade of horribles Copr.®West 1997 No claim to orig. U.S.govt. works • 05/17/97 15:05:09 West Publishing Co.-> 2062559709 Page 014 110 S.Ct. 1695 Page 13 (Cite as:494 U.S. 872, *889, 110 S.Ct. 1595, **1606) because it is horrible to contemplate that *891 Justice O'CONNOR, with whom • federal judges will regularly balance Justice BRENNAN, Justice MARSHALL, and against the importance of general laws Justice BLACKMUN join as to Parts I and II, the significance of religious practice. concurring in the judgment. [FN*] [5] *890 Values that are protected against FN4 Although Justice BRENNAN, government interference through Justice MARSHALL, and Justice enshrinement in the Bill of Rights are not BLACKMUN join Parts I and II of this thereby banished from the political process. opinion, they do not concur in the Just as a society that believes in the negative judgment. protection accorded to the press by the First Amendment is likely to enact laws that Although I agree with the result the Court affirmatively foster the dissemination of the reaches in this case, I cannot join its opinion. printed word, so also a society that believes in In my view, today's holding dramatically the negative protection accorded to religious departs from ell-settled First Amendment belief can be expected to be solicitous of that jurisprudence, ppears unnecessary to resolve value in its legislation as well. It is therefore the question sented, and is incompatible not surprising that a number of States have with our Natio 's fundamental commitment to made an exception to their drug laws for individual religious liberty. sacramental peyote use. See, e.g., I Ariz.Rev.Stat.Ann. §§ 13-3402(B)(1)-(3) (1989); Colo.Rev.St at. § 12-22-317(3) (1985); N.M.Stat.Ann. § 30-31-6(D) (Supp.1989). But At the outset, I note that I agree with the to say that a nondiscriminatory religious- Court's implicit determination that the practice exemption is permitted, or even that constitutional **1607 question upon which we it is desirable, is not to say that it is granted review--whether the Free Exercise constitutionally required, and that the Clause protects a person's religiously appropriate occasions for its creation can be motivated use of peyote from the reach of a discerned by the courts. It may fairly be said State's general criminal law prohibition--is • that leaving accommodation to the political properly presented in this case. As the Court process will place at a relative disadvantage recounts, respondents Alfred Smith and Galen those religious practices that are not widely Black (hereinafter respondents) were denied engaged in; but that unavoidable consequence unemployment compensation benefits because of democratic government must be preferred to their sacramental use of peyote constituted a system in which each conscience is a law work-related "misconduct," not because they unto itself or in which judges weigh the social violated Oregon's general criminal prohibition importance of all laws against the centrality of against possession of peyote. We held, all religious beliefs. however, in Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 * * * U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988) (Smith I), that whether a State may, [fi] Because respondents' ingestion of peyote consistent with federal law, deny was prohibited under Oregon law,and because unemployment compensation benefits to that prohibition is constitutional, Oregon may, persons for their religious use of peyote consistent with the Free Exercise Clause,deny depends on whether the State, as a matter of respondents unemployment compensation state law, has criminalized the underlying when their dismissal results from use of the conduct. See id., at 670-672, 108 S.Ct., at drug. The decision of the Oregon Supreme 1450-51. The Oregon Supreme Court, on Court is accordingly reversed. remand from this Court, concluded that "the Oregon statute against possession of controlled It is so ordered. substances, which include peyote, makes no exception for the sacramental use of peyote." Copr.e West 1997 No claim to orig. U.S.govt. works • Copyright (c) West Publishing Co. 1996 No claim to original U. S. Govt. works. 94 F. 3d 1294 , Goehring v. Brophy, (C.A. 9 (Cal . ) 1996) *1294 94 F. 3d 1294 112 Ed. Law Rep. 37 , 96 Cal . Daily Op. Serv. 6551 , 96 Daily Journal D.A.R. 10 , 790 Gregory P. GOEHRING; David Mueller; John P. Gisla, Jr. ; Nancy Harder; Glenn Nunes; John Mullen, Plaintiffs-Appellants, v. Roy T. BROPHY, Jr. ; David Pierpont Gardner; Theodore L. Hullar; Robert E. Chason, Defendants-Appellees. Nos . 94-16453 , 95-15009 . United States Court of Appeals, Ninth Circuit. Argued and Submitted April 9 , 1996 . Decided Sept. 3 , 1996 . State university students brought action against university, alleging that university's mandatory student registration fee violated their right to free exercise of religion because fee was used, in part, to subsidize university's health insurance program, that covers abortion. The United States District Court for the Eastern District of California, Edward J. Garcia, granted university's motion for summary judgment, and students appealed. The Court of Appeals, Ferguson, Circuit Judge, held that: ( 1 ) students failed to establish that university's health insurance system imposed substantial burden on students' free exercise of their religion; ( 2) university's interest in health and well-being of its students, advanced by policy of imposing mandatory student registration fee, was compelling; ( 3 ) 1� university's health insurance system was least restrictive means of furthering university's compelling interest in health and , well-being of its students; (4 ) pursuant to catalyst test, C` students were not prevailing parties and, therefore, were not ()O entitled to attorney fees under civil rights attorney fee provision; ( 5) District Court clearly acted within its discretion in denying students' informal request for discovery and evidentiary hearing on issue of attorney fees; and ( 6) District Court did not abuse its discretion in denying students' motion for attorney fees , alleging university unreasonably and vexatiously multiplied proceedings by continuing to defend against action. Affirmed; request for attorney fees denied. Fernandez , Circuit Judge, concurred and filed opinion. 1 . FEDERAL COURTS k776 170B ---- 170BVIII Courts of Appeals 170BVIII (K) Scope, Standards , and Extent 170BVIII(K) 1 In General 170Bk776 Trial de novo. C.A. 9 (Cal . ) 1996 . Court of Appeals reviews grant of summary judgment de novo. Fed.Rules Civ.Proc.Rule 56 , 28 U.S.C.A. 2 . FEDERAL COURTS k766 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K)1 In General 170Bk763 Extent of Review Dependent on Nature of Decision Appealed from 170Bk766 Summary judgment. [See headnote text below] 2 . FEDERAL COURTS k802 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards , and Extent 170BVIII(K) 3 Presumptions 170Bk802 Summary judgment. C.A. 9 (Cal . ) 1996 . On motion for summary judgment, Court of Appeals must determine, viewing evidence in light most favorable to nonmovant, whether there are any genuine issues of material fact and whether district court properly applied relevant substantive law. Fed.Rules Civ.Proc.Rule 56 , 28 U.S.C.A. 3 . CIVIL RIGHTS k110. 1 78 ---- 781 Rights Protected and Discrimination Prohibited 78I(A) In General 78k110 Acts or Conduct Causing Deprivation 78k110 . 1 In general . C.A. 9 (Cal . ) 1996 . To establish violation of Religious Freedom Restoration Act, plaintiffs must show that government substantially burdened their right to free exercise of religion, and if plaintiffs establish substantial burden, government must demonstrate that application of burden to plaintiffs is constitutionally permissible because it satisfies strict scrutiny by showing that it is in furtherance of compelling governmental interest and is least restrictive means of furthering that compelling interest. Religious Freedom Restoration Act of 1993 , s 2 , 42 U.S.C.A. s 2000bb. 4 . CIVIL RIGHTS k127 . 1 78 ---- 781 Rights Protected and Discrimination Prohibited 78I(A) In General • 78k127 Education 78k127 . 1 In general . [See headnote text below] 4 . COLLEGES AND UNIVERSITIES k9 . 20(1 ) 81 ---- 81k9 Students 81k9 . 20 Tuition and Fees 81k9 . 20( 1 ) In general . [See headnote text below] 4 . CONSTITUTIONAL LAW k84 . 5(6) 92 ---- 92V Personal , Civil and Political Rights 92k84 Religious Liberty and Freedom of Conscience 92k84 . 5 Particular Matters and Applications 92k84 . 5(6) Colleges and universities . C.A. 9 (Cal . ) 1996 . State university students failed to establish that university's health insurance system, that covered abortion and was subsidized in part by university's mandatory registration fee, imposed substantial burden on students' free exercise of their religion, pursuant to test made applicable by Religious Freedom Restoration Act; students were not required to purchase university insurance, insurance subsidy was not substantial sum• of money and was distributed only for those who elected insurance coverage, students were not required to accept, participate in or advocate in any manner for provision of abortion services, and abortion services were not provided on campus . U.S.C.A. Const.Amend. 1 ; Religious Freedom Restoration Act of 1993 , s 2 , 42 U. S.C.A. s 2000bb. 5 . COLLEGES AND UNIVERSITIES k9 . 20( 1 ) 81 ---- 81k9 Students 81k9 . 20 Tuition and Fees 81k9 . 20( 1 ) In general . [See headnote text below] 5 . CONSTITUTIONAL LAW k84 . 5( 6) 92 ---- 92V Personal , Civil and Political Rights 92k84 Religious Liberty and Freedom of Conscience 92k84 . 5 Particular Matters and Applications 92k84 . 5( 6 ) Colleges and universities. C.A. 9 (Cal . ) 1996 . State university's interest in health and well-being of its students, advanced by policy of imposing mandatory student • registration fee used, in part, to subsidize university's health insurance program that covered abortion, was compelling, for purposes of students' action against university, alleging that III mandatory registration fee violated students' right to free exercise of religion. U.S.C.A. Const.Amend. 1 ; Religious Freedom Restoration Act of 1993 , s 3 , 42 U.S.C.A. s 2000bb-1 . 6. COLLEGES AND UNIVERSITIES k9 . 20( 1 ) 81 ---- 81k9 Students 81k9 . 20 Tuition and Fees 81k9. 20(1 ) In general . [See headnote text below] 6 . CONSTITUTIONAL LAW k84 . 5(6) 92 ---- 92V Personal , Civil and Political Rights 92k84 Religious Liberty and Freedom of Conscience 92k84 . 5 Particular Matters and Applications 92k84 . 5(6) Colleges and universities. C.A. 9 (Cal . ) 1996 . State university's health insurance system, that covered abortion and was subsidized in part by university's mandatory registration fee, was least restrictive means of furthering university's compelling interest in health and well-being of its students, for purposes of students' action against university, alleging that mandatory registration fee violated their right to free exercise of religion; fiscal vitality of university's fee 411 system would be undermined if students were exempted from paying portion of registration fee on free exercise ground. U. S.C.A. Const.Amend. 1 ; Religious Freedom Restoration Act of 1993 , s 3 , 42 U. S.C.A. s 2000bb-1 . 7 . FEDERAL COURTS k830 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards , and Extent 170BVIII(K) 4 Discretion of Lower Court 170Bk830 Costs , attorney's fees and other allowances. C.A. 9 (Cal . ) *1294 1996 . District court's award of attorney fees to civil rights plaintiff is reviewed for abuse of discretion. 42 U.S.C.A. s 1988 . 8 . FEDERAL COURTS k878 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards , and Extent 170BVIII(K) 5 Questions of Fact, Verdicts and Findings 170Bk870 Particular Issues and Questions 170Bk878 Costs and attorney's fees. C.A. 9 (Cal . ) 1996 . District court's factual determinations underlying prevailing ill party determination, for purposes of establishing entitlement to attorney fees in civil rights action, will not be set aside absent clear error. 42 U.S.C.A. s 1988 . 9 . CIVIL RIGHTS k296 78 ---- 78II Federal Remedies 78II(B) Civil Actions 78II(B) 4 Costs and Fees 78k292 Attorney Fees - 78k296 Results of litigation; prevailing parties. C.A. 9 (Cal . ) 1996 . Party is prevailing party within meaning of civil rights attorney fees provision if party has prevailed on merits of at least some of its claims. 42 U.S.C.A. s 1988. 10 . CIVIL RIGHTS k296 78 ---- 78II Federal Remedies 78II(B) Civil Actions 78II(B) 4 Costs and Fees 78k292 Attorney Fees 78k296 Results of litigation; prevailing parties. C.A.9 (Cal . ) 1996 . Under "catalyst test, " civil rights plaintiff is prevailing party for purposes of entitlement to attorney fees if plaintiff shows that there is causal link between lawsuit and relief actually obtained and there is legal basis for claim. 42 U.S.C.A. s 1988 . See publication Words and Phrases for other judicial constructions and definitions. 11 . CIVIL RIGHTS k296 78 ---- 78II Federal Remedies 78II(B) Civil Actions 78II(B)4 Costs and Fees 78k292 Attorney Fees 78k296 Results of litigation; prevailing parties. C.A. 9 (Cal . ) 1996 . Pursuant to catalyst test, state university students were not prevailing parties in action against university, challenging university's mandatory student registration fee on various First Amendment grounds, and, therefore, were not entitled to attorney fees; when university revised student fee policy after students filed action, students did not receive any relief that was no mandated under recent court decision and students submitted stipulated statement of facts stating university enacted revised policy to bring policies in compliance with court decision. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. s 1988 . 12 . FEDERAL COURTS k820 170B ---- 170BVIII Courts of Appeals 170BVIII (K) Scope, Standards, and Extent 170BVIII(K) 4 Discretion of Lower Court 170Bk820 Depositions and discovery. C.A. 9 (Cal . ) 1996. District court's decision whether to permit additional discovery on issue of attorney fees is reviewed for abuse of discretion. 13 . FEDERAL CIVIL PROCEDURE k1267. 1 170A ---- 170AX Depositions and Discovery 170AX(A) In General 170Ak1267 Discretion of Court 170Ak1267 . 1 In general . [See headnote text below] 13 . FEDERAL COURTS k820 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K) 4 Discretion of Lower Court 170Bk820 Depositions and discovery. C.A. 9 (Cal . ) 1996 . Broad discretion is vested in trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon clearest showing that denial of discovery 411 results in actual and substantial prejudice to complaining litigant. 14 . FEDERAL CIVIL PROCEDURE k2742 . 5 170A ---- 170AXIX Fees and Costs 170Ak2742 Taxation 170Ak2742 .5 Attorney fees. C.A. 9 (Cal . ) 1996. District court clearly acted within its discretion in denying plaintiffs' informal request for discovery and evidentiary hearing on issue of attorney fees; plaintiffs failed to show that denial of discovery would result in actual and substantial prejudice and, moreover, plaintiffs failed to explain what they hoped to accomplish from evidentiary hearing. 15 . FEDERAL COURTS k878 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards , and Extent 170BVIII(K)5 Questions of Fact, Verdicts and Findings 170Bk870 Particular Issues and Questions 170Bk878 Costs and attorney's fees . C.A. 9 (Cal . ) 1996 . . District court's factual findings underlying its decision to impose sanctions against attorney who so multiplies proceedings in any case unreasonably and vexatiously are reviewed for clear 411 error. 28 U.S.C.A. s 1927 . 16 . FEDERAL COURTS k776 170B ---- 170BVIII Courts of Appeals 170BVIII(K) Scope, Standards, and Extent 170BVIII(K) 1 In General 170Bk776 Trial de novo. C.A. 9 (Cal . ) 1996 . Legal conclusions of district court are reviewed de novo. 17 . FEDERAL CIVIL PROCEDURE k2766 170A ---- 170AXX Sanctions 170AXX(B) Grounds for Imposition 170Ak2766 Multiplication of proceedings in general . C.A. 9 (Cal . ) 1996 . District court did not abuse its discretion in denying state university students' motion for attorney fees, alleging university unreasonably and vexatiously multiplied proceedings by continuing to defend against action, where there was no evidence showing university acted in bad faith. 28 U.S.C.A. s 1927 . Richard M. Stephens, Olympia, Washington, for plaintiffs-appellants. Christopher M. Patti , Regents of University of California, Office of the General Counsel , University of California, Oakland, California, for defendants-appellees. Appeals from the United States District Court for the Eastern District of California, Edward J. Garcia, District Judge, Presiding. D.C. No. CV-92-00962-EJG. Before FERGUSON, D.W. NELSON, and FERNANDEZ , Circuit Judges. FERGUSON, Circuit Judge: The plaintiffs, students at the University of California at Davis ( "the University" ) , appeal the district court's grant of summary judgment in favor of the University with respect to their free exercise of religion claim. The plaintiffs allege that the University's mandatory student registration fee violates their right to free exercise of religion because the fee is used, in part, to subsidize the University's health insurance program, which covers abortion services. On appeal the students challenge: (1) the district court's grant of summary judgment to the University; ( 2) the district court's denial of the students' request for attorney's fees pursuant to 42 U.S.C. s 1988 ; ( 3 ) the district court's denial of . the students' request for discovery and an evidentiary hearing on the issue of attorney's fees; and (4) the district court's denial of the students' request for attorney's fees pursuant to 28 U.S.C. s 1927 . I . Procedural Background On June 16 , 1992 , Gregory Goehring filed suit in district court against the Regents of the University of California and various officers of the University. On December 4, 1992 , Goehring filed an amended complaint, adding five plaintiffs , and asserting six causes of action. The first three causes of action were "compelled speech" claims in which the plaintiffs alleged that their First Amendment rights to free speech were being violated by the University's policy of using mandatory student fees to finance the following activities: (1 ) the lobbying activities of the Associated Students of the *1294 University of California at Davis; (2 ) certain courses offered at the University's Experimental College; ( 3 ) the University's Women's Research and Resources Center; and (4 ) the Third World Forum, a student newspaper. The fourth cause of action alleged that the University's provision of student health insurance, which included coverage for abortion services, violated the Hyde Amendment, Pub.L. No. 103-333 , s 509 , 108 Stat. 2539 , 2573 (1994) . (FN1) The fifth cause of action alleged that the use of student fees to fund the Experimental College violated the Establishment Clause. The sixth cause of action alleged that the University's practice of subsidizing student health insurance with mandatory student registration fees violated the students' rights to free exercise of religion because the University's student health insurance covered abortion services. The district court dismissed all but the sixth cause of action, the free exercise of religion challenge. Subsequently, the district court granted the University's motion for summary judgment on this claim. The students appeal only the district court's grant of summary judgment on the free exercise of religion claim (FN2 ) and its rulings on the attorney's fees issues. *1298 II. Discussion A. Free Exercise of Religion Claim [1 ] [2 ] We review a grant of summary judgment de novo._ Jesinger v. Nevada Fed. Credit Union, 24 F. 3d 1127 , 1130 (9th Cir. 1994) . We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. Id. The University has separate student health insurance programs for undergraduate students and for graduate and professional school students. Undergraduates are not required to have any health insurance, although they may choose to purchase it through the University's Undergraduate Student Health Insurance Program. The undergraduates who purchase insurance through the program 410 receive a subsidy on their premiums in the amount of $18 . 50 per student, per quarter, which is taken from mandatory student registration fees . Graduate and professional school students at the University are required to have health insurance. Under the Graduate Student Health Insurance Program, mandatory fees are collected from graduate and professional students to finance this program. This mandatory fee was established in 1989 after it was approved in a referendum by 87% of the graduate and professional students who voted. Graduate and professional students may opt out of the insurance program by demonstrating that they have qualifying health insurance from another provider. Those students who purchase insurance through the program receive a subsidy of $18 . 50 per insured student, per quarter, from registration fee receipts to reduce the cost of their premiums. The University provides health services on campus to minimize the disruption of its students' academic pursuits due to illness or injury. The health insurance programs offered by the University cover a variety of services, including abortion services. However, abortions are not performed at the University's Student Health Center. Any student seeking an abortion is referred to an outside provider. The plaintiffs in the present case, undergraduate and graduate students, object to subsidizing the cost of abortions through their student registration fee subsidy. The plaintiffs allege that their 411 sincerely held religious beliefs prevent them from financially contributing to abortions, and therefore, the student subsidy violates their right to free exercise of religion under the First Amendment. The Religious Freedom Restoration Act of 1993 ( "the Religious Freedom Act" ) , 42 U.S.C. s 2000bb (Supp. V 1993 ) , provides the framework for analyzing the plaintiffs' free exercise of religion claim. (FN3 ) The Religious Freedom Act provides in pertinent part: (a) IN GENERAL.--Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) EXCEPTION.--Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and ( 2 ) is the least restrictive means of furthering that 411 compelling governmental interest. (FN4 ) *1299 [ 3 ] To establish a violation of the Religious Freedom Act, the plaintiffs in the present case first must show that the University's subsidized health insurance program substantially burdens their right to free exercise of religion. If the plaintiffs are able to establish a substantial burden, the University must then demonstrate that its subsidized health insurance program is constitutionally permissible because it satisfies strict scrutiny. To do this, the University must show that: (1) its subsidized health insurance program furthers a compelling interest; and ( 2 ) its insurance program is the least • restrictive means of furthering that compelling interest. 1 . SUBSTANTIAL BURDEN [ 4 ] In construing the Religious Freedom Act, we look to our decisions prior to Smith, in which this court held that: To show a free exercise violation, the religious adherent, . . . has the obligation to prove that a governmental regulatory mechanism burdens the adherent's practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates . This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine. Graham v. Commissioner, 822 F. 2d 844 , 850-51 ( 9th Cir. 1987) (emphasis added) (citations omitted) , aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680 , 109 S.Ct. 2136, 104 L.Ed. 2d 766 ( 1989) . The plaintiffs in Graham were members of the Church of Scientology ( "the Church" ) . The plaintiffs brought suit alleging that the Tax Court's refusal to grant them tax deductions for payments made to the Church violated their right to free exercise of religion. Graham, 822 F. 2d at 846 . This court affirmed the decision of the Tax Court, denying the plaintiffs' request for deductions . Id. at 850 . We explained that the plaintiffs would have alleged a valid free exercise claim if they had demonstrated that the government was conditioning the receipt of a tax deduction on the abandonment of a central tenet of their religion. Id. at 851 . However, the plaintiffs failed to establish such a burden. " [T]he fact that taxpayers will have less money to pay the Church, or that the Church will receive less money, does not rise to the level of a burden on appellants' ability to exercise their religious beliefs. Statutes are not invalid just because they affect a religious organization's operation. " Id. (citing EEOC v. Pacific Press Publishing Ass'n, 676 F. 2d 1272 , 1279 ( 9th Cir. 1982 ) ) . The "substantial burden" requirement of a free exercise challenge was again addressed in Bryant v. Gomez , 46 F. 3d 948 (9th Cir. 1995) (per curiam) . The plaintiff in Bryant, an • inmate, brought a free exercise claim against the prison in which he was confined. Id. at 948 . The plaintiff alleged that his right to free exercise of religion was violated when the prison refused to provide him Pentecostal services. Id. This court rejected Bryant's free exercise challenge on the basis that Bryant had failed to allege any facts showing that the activities • in which he wished to engage were mandated by his religion. Id. at 949 . " [W]hile certain practices and instruments might be unique to the Pentecostal faith, Bryant has not argued or • provided evidence to show that they are mandated by his faith. "_ Id. This court concluded that Bryant did not establish a sufficient burden on his faith to allege a free exercise violation. Id. See also United States v. Turnbull , 888 F. 2d 636 , 639 (9th Cir. 1989) , cert. denied, 498 U.S. 825 , 111 S.Ct. 78 , 112 L.Ed. 2d 51 ( 1990) . Accordingly, the plaintiffs in the present case must establish that the University's subsidized health insurance program imposes a substantial burden on a central tenet of their religion. (FN5) The plaintiffs have failed to meet this burden. The plaintiffs are not required *1300 to purchase the University's subsidized health insurance-undergraduate students are not required to have health insurance and graduate students may purchase insurance from any provider. Moreover, the student health insurance subsidy is not a substantial sum of money and the subsidy, taken from registration fees, is distributed only for those students who elect to purchase University insurance. Furthermore, the plaintiffs are not required to accept, participate in, or advocate in any manner for the provision of abortion services. Abortions are not provided on the University campus. Students who request abortion services are referred to outside providers. Finally, the plaintiffs' allegation that the University's health insurance system substantially burdens their right to free exercise of religion because it denies them a public education is incorrect. The plaintiffs are free to attend the University so long as they accept the minimal limitation placed on their free exercise rights by the University's registration fee. In sum, the plaintiffs have failed to establish that the University's subsidized health insurance system imposes a substantial burden on the free exercise of their religion. However, even if the plaintiffs were able to satisfy the substantial burden requirement, the University's health insurance system nonetheless survives constitutional attack because it meets strict scrutiny--it is the least restrictive means of furthering a compelling government interest. 2 . STRICT SCRUTINY ANALYSIS a. Compelling Government Interest • [5] A government regulation which imposes a substantial burden on an individual's right to free exercise of religion is constitutional only if it can be justified as the least restrictive means of furthering a compelling government interest. 42 U.S.C. s 2000bb-1 . There are a number of government interests which are furthered by the University's subsidized health insurance system: (1) The University's health insurance system provides its students with affordable health insurance. A large number of students would be unable to obtain affordable health insurance from another source if it was not available through the University. ( 2) The University's affordable health insurance helps to prevent the spread of communicable diseases which pose a serious problem on university campuses where students eat, sleep, and study in such close quarters. ( 3 ) The University's affordable health insurance prevents students from being distracted from their studies by undiagnosed illnesses and medical bills which they cannot afford to pay. The insurance system is planned so that students will remain healthy and be able to receive the full benefits of a higher education. Public health and well-being have been recognized as compelling governmental interests in a variety of contexts. See Hodel v. Virginia Surface Mining and Reclamation Ass'n, Inc. , 452 411 U.S. 264 , 300, 101 S.Ct. 2352 , 2373 , 69 L.Ed. 2d 1 ( 1981) (holding that " [p]rotection of the health and safety of the public is a paramount governmental interest" which justifies summary administrative action in the prevention of mining disasters) ;_ Rubin v. Coors Brewing Co. , --- U.S. ----, ----, 115 S.Ct. 1585 , 1591 , 131 L.Ed. 2d 532 (1995) (stating that the government has a significant interest in protecting the health of its citizens by preventing brewers from competing on the basis of alcohol strength, which might lead to increased alcoholism) ; Callahan v. Woods, 736 F. 2d 1269 , 1274 (9th Cir. 1984 ) (stating that the AFDC program "promotes a government interest of the highest importance" in that it exists to care for needy dependent children) . Similarly, we hold that the University's interest in the health and well-being of its students, advanced by its mandatory fee policy, is compelling. b. Least Restrictive Alternative Analysis [6 ] The next step in strict scrutiny analysis, after having identified the compelling interests at stake, is to examine whether the means used to further those interests is the least restrictive way of doing so. 42 U.S.C. s 2000bb-1 . Although the plaintiffs in the present case brought suit under 410 the Free Exercise Clause, *1301 this is not a case in which the government has prohibited them from participating in a religious ritual , or penalized them for doing so. Rather, this case • involves a challenge to the way in which the University, a governmental entity, spends its money. Accordingly, our least restrictive alternative analysis is guided by cases involving free exercise challenges to the government's use of tax dollars. The Supreme Court addressed a free exercise challenge to the federal social security tax system in United States v. Lee, 455 U.S. 252 , 102 S.Ct. 1051 , 71 L.Ed. 2d 127 ( 1982 ) . The plaintiff in Lee , a member of the Old Amish Order, brought suit alleging that the imposition of social security taxes violated his free exercise rights, as well as those of his Amish employees. Id. at 254-55, 102 S.Ct. at 1053-54 . The Court accepted as true the plaintiff's contention that both the payment and receipt of social security violated the religious beliefs of the Amish and that compulsory participation in the social security system interfered with the free exercise of their religion. Id. at 257, 102 S.Ct. at 1055. However, the Court concluded that the burden on the plaintiff's free exercise rights was justified because the social security system was essential to accomplish a compelling governmental interest. Id. at 260, 102 S.Ct. at 1056-57 . The Court explained that the social security system serves a compelling government interest because it provides a comprehensive insurance system, available to all participants, with costs shared by employers and employees. Id. at 258 , 102 S.Ct. at 1055-56 . The Court found that mandatory contributions from both covered employees and employers were indispensable to • the fiscal vitality of the system. Id. If participation were voluntary, the Court reasoned, the system would be impossible to administer. Id. The Court acknowledged the difficulty of accommodating religious beliefs in the area of taxation because the United States is a cosmopolitan nation made up of almost every conceivable religion. Id. at 259 , 102 S.Ct. at 1056 . "To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, . . . but there is a point at which accommodation would 'radically restrict the operating latitude of the legislature. ' " Id. (quoting Braunfeld v. Brown, 366 U.S. 599, 606 , 81 S.Ct. 1144 , 1147 , 6 L.Ed. 2d 563 ( 1961 ) (citations omitted) ) . Therefore, the Court concluded that the plaintiff was required to pay social security taxes on behalf of his employees. Id. at 261 , 102 S.Ct. at 1057. Similarly, the fiscal vitality of the University's fee system would be undermined if the plaintiffs in the present case were exempted from paying a portion of their student registration fee on free exercise grounds. Mandatory uniform participation by every student is essential to the insurance system's survival . This court has rejected free exercise challenges to the 411 spending of tax dollars as well . The plaintiffs in Autenrieth v. Cullen, 418 F. 2d 586 , 587 (9th Cir. 1969) , cert. denied, 397 U.S. 1036, 90 S.Ct. 1353 , 25 L.Ed. 2d 647 (1970) , brought suit seeking refunds for a percentage of their federal income taxes paid for 1965 and 1966 . The plaintiffs explained that a portion of their income taxes for these years was used to support the Vietnam War, to which they were religiously opposed. Therefore, the plaintiffs alleged that they were entitled to partial tax refunds on free exercise grounds. Id. at 587-88 . This court accepted that the plaintiffs truly held these religious beliefs , yet rejected their free exercise claim. Id. at 588 . We explained that: [N]othing in the Constitution prohibits the Congress from levying a tax upon all persons, regardless of religion, for support of the general government. The fact that some persons may object, on religious grounds , to some of the things that the government does is not a basis upon which they can claim a constitutional right not to pay a part of the tax. Id. This court further explained that if every citizen could refuse to pay all or part of his taxes on religious grounds , the government's ability to function would be severely impaired or destroyed because there are few, if any, governmental activities to which one person or another would not object. Id. at 588-89. *1302 This logic applies to the facts of the present case as well . If the students at the University could refuse to pay a portion of their registration fee on religious grounds, the University's fee system would be seriously undermined. There are few, if any, University funded activities to which one student or another would not object. The California Court of Appeal addressed the same issue as that raised in the present case in Erzinger v. Regents of Univ. of Cal . , 137 Cal .App. 3d 389 , 187 Cal .Rptr. 164 , cert. denied, 462 U.S. 1133 , 103 S.Ct. 3114 , 77 L.Ed. 2d 1368 ( 1983 ) . The plaintiffs in Erzinger brought a free exercise challenge to the University's use of its compulsory student registration fee on the grounds that a portion of this fee was used to provide health care services to students, which included abortion services. Id. 187 Cal .Rptr. at 165 . The court rejected the plaintiffs' free exercise challenge explaining that in order to prevail , the plaintiffs needed to show that the University's policy coerced their religious beliefs or unreasonably interfered with the practice of their religion. Id. at 166 . The court explained that the plaintiffs failed to establish that the University's policy was coercive because they did not show that it: ( 1 ) coerced them from holding or expressing their views against abortion; ( 2 ) coerced them to advocate a position on abortion contrary to their beliefs; ( 3 ) forced them to use student health services, receive pregnancy counseling, have abortions, perform abortions , or endorse abortions; (4) denied them enrollment because of their religious beliefs; or (5) interfered with the practice of their religion. Id. The court in Erzinger applied the logic of Autenrieth and explained that just as the Free Exercise Clause does not justify a refusal to pay taxes on religious grounds, the First Amendment does not prohibit the University from requiring all students, regardless of religion, to pay fees . for general student support services; the fact plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees . Erzinger, 187 Cal .Rptr. at 167 . Although Erzinger is not binding upon us, its logic is sound and we apply it to the present case. The plaintiffs' reliance on Keller v. State Bar, 496 U.S. 1 , 110 S.Ct. 2228, 110 L.Ed. 2d 1 ( 1990) in an attempt to refute the applicability of the tax cases is unavailing because Keller is distinguishable. The plaintiffs in Keller, members of the State Bar, challenged the State Bar of California's use of compulsory bar dues to finance ideological and political activities. Id. at 4 , 110 S.Ct. at 2231 . The plaintiffs alleged that the State Bar's use of mandatory dues to fund such activities violated the Free Speech Clause of the First Amendment. The Court ruled in favor of the plaintiffs. Id. at 14 , 110 S.Ct. at 2236 . The Court explained that the specialized characteristics of the State Bar distinguish it from a typical government agency. Id. at 12 , 110 S.Ct. at 2235. The Bar was created "not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. " Id. at 13 , 110 S.Ct. at 2235 . Therefore, because the State Bar is more like a labor union than a government agency, the Court held that the Bar may fund only activities which are germane to regulating the legal profession and improving the quality of legal services. Id. at 13-14 , 110 S.Ct. at 2235-36 ; See also Abood v. Detroit Bd. of Educes 431 U.S. 209 , 235-36 , 97 S.Ct. 1782 , 1799-1800 , 52 L.Ed. 2d 261 (1977) (prohibiting agency-shop dues of dissenting non-union employees from being used to support political and ideological union causes that are unrelated to collective bargaining activities) . The plaintiffs in the present case allege that the University, like the State Bar, should not be considered a government agency for the purposes of First Amendment analysis. Therefore, the plaintiffs argue, Keller renders the University's use of its mandatory registration fee to subsidize student health insurance unconstitutional . However, the plaintiffs are mistaken. Keller is distinguishable from the present case on a number of grounds. First, Keller involved a free speech challenge whereas the present case involves a free exercise of religion challenge. *1303 Historically, the Free Speech and Free Exercise Clauses of the First Amendment have been analyzed under separate and distinct bodies of case law. Therefore, Keller 's relevance to the present case is minimal . Second, membership in the State Bar is compulsory to practice law in the State of California, whereas both the decision to attend college and the choice of universities in particular are voluntary decisions. Thus, the element of coercion which was present in Keller is lacking in the present case. Third, and most important, the characteristics and function of the University are much more akin to those of a typical government agency than are those of the State Bar. The University, like a state government, provides a wide spectrum of services to students , whereas the State Bar acts largely as an intermediary between its members and the state government, working to advance certain specialized interests. Id. at 13 , 110 S.Ct. at 2235-36 . Therefore, Keller is distinguishable from the present case and we rely on Lee, Autenrieth, and Erzinger to conclude that the University's use of its registration fee to subsidize health insurance is the least restrictive means of furthering a compelling government interest. In sum, the plaintiffs' free exercise claim fails because: (1) the students have not established that the University's subsidized health insurance system imposes a substantial burden on their right to free exercise of religion; and ( 2 ) the University's subsidized health insurance system is the least restrictive means of furthering a compelling government interest. B. Request for Attorney's Fees Pursuant to 42 U.S.C. s 1988 1 . FACTUAL BACKGROUND The plaintiffs filed suit against the University in district court on June 16 , 1992 , alleging not only a free exercise violation, but also challenging the constitutionality of the University's use of its mandatory student registration fee to fund various political and ideological activities of its student organizations . The plaintiffs argued that the University's use of student fees to fund political and ideological activities violated their First Amendment rights to freedom of speech and freedom of association. The plaintiffs also brought an Establishment Clause challenge to the University's funding of its Experimental College with student fees on the ground that the Experimental College conducted classes on witchcraft and other religious rituals. On November 4 , 1993 , the University revised its mandatory student fee policy. This revision included the withdrawal of funding from student fees for a number of student organizations and courses offered at the Experimental College. On July 11 , 1994 , the district court dismissed the plaintiffs freedom of speech, freedom of association, and Establishment Clause causes of action as moot as a result of the University's revision of its student fee policy. On August 20 , 1994 , the plaintiffs filed a motion for attorney's fees pursuant to 42 U.S.C. s 1988 . (FN6) The plaintiffs alleged that they were entitled to attorney's fees as a prevailing party because the University had revised its student fee policy in response to their lawsuit. The University argued that it had revised its student fee policy in response to Smith v. Regents of Univ. of Cal . , 4 Ca1 . 4th 843 , 16 Cal .Rptr. 2d 181 , 844 P. 2d 500 , cert. denied, 510 U.S. 863 , 114 S.Ct. 181 , 126 L.Ed. 2d 140 ( 1993 ) , and not in response to the plaintiffs' suit. . The district court found that the plaintiffs' lawsuit was not the driving force behind the University's revision of its student fee policy, and therefore, the court denied the plaintiffs' motion • for attorney's fees. The plaintiffs now appeal the district court's denial of this motion. On February 3 , 1993 , the California Supreme Court rendered its decision in Smith v. Regents of the Univ. of Cal . , 4 Ca1 . 4th 843 , 16 Cal .Rptr. 2d 181 , 844 P. 2d 500. Smith held that the collection and use of mandatory student fees to support political and ideological student organizations violated the First *1304 Amendment. Id. 16 Cal .Rptr. 2d at 196-97 , 844 P. 2d at 516 . Shortly after the decision in Smith was handed down, the Regents filed a petition for certiorari with the U.S. Supreme Court. The University alleges that it was aware from the time that Smith was decided that if the petition for certiorari was denied, the University would be required to revise its student fee policy. Therefore, University administrators began the process of drafting, circulating, and revising the University's student fee policy to comply with Smith while the petition for certiorari was still pending. Several meetings were held during which policy drafts of a revised student fee policy were discussed, debated, and revised. On October 4 , 1993 , the Supreme Court denied certiorari in Smith, 510 U.S. 863 , 114 S.Ct. 181 , 126 L.Ed. 2d 140 ( 1993 ) . The University promptly revised its student fee policy and announced its revisions on November 4 , 1993 . This revised student fee policy ( "the Smith policy" ) prohibited the use of student fees to support political , ideological , or religious organizations and activities. It also provided a mechanism for students to request and receive a refund of the portion of their fees that had gone to support such organizations in the past. 2 . ANALYSIS [7 ] [8 ] A district court's award of attorney's fees pursuant to 42 U.S.C. s 1988 is reviewed for an abuse of discretion._ Kilgour v. City of Pasadena, 53 F. 3d 1007 , 1010 (9th Cir. 1995) . A district court's factual determination underlying a prevailing party determination will not be set aside absent clear error._ Sablan v. Department of Fin. , 856 F. 2d 1317 , 1324 (9th Cir. 1988 ) . [9] A party is a prevailing party within the meaning of section 1988 if the party has prevailed on the merits of at least some of its claims. Hanrahan v. Hampton, 446 U.S. 754 , 758 , 100 S.Ct. 1987 , 1989-90 , 64 L.Ed. 2d 670 (1980) . An inquiry is made into whether the plaintiff has " 'succeed[ed] on any significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit. ' " Hensley v. Eckerhart, 461 U.S. 424 , 433 , 103 S.Ct. 1933 , 1939 , 76 L.Ed. 2d 40 (1983 ) (quoting Nadeau v. Helgemoe, 581 F. 2d 275, 278-79 (1st Cir. 1978) ) . [10] This court also recognizes a catalyst test as an . alternative theory for granting attorney's fees under 42 U.S.C. s 1988 when no judicial relief has been granted. Kilgour, 53 F. 3d at 1010 . Under the catalyst test, a plaintiff is a prevailing • party for the purposes of section 1988 if its lawsuit prompted the defendants to take action to satisfy its demands. Sablan, 856 F. 2d at 1325. In order for a plaintiff to show that the lawsuit was the catalyst which prompted action by the defendants, the plaintiff must show that: (1 ) there is a "causal link" between the lawsuit and the relief actually obtained; and ( 2) there is a legal basis for the claim. Id. [11 ] With respect to the first prong of the test, the plaintiffs in the present case point to two factors which they argue indicate that their lawsuit caused the University to revise its student fee policy. First, the plaintiffs allege that they received relief beyond that necessitated by the decision in Smith. The plaintiffs allege that the following actions by the University were not mandated by Smith: ( 1 ) The defendants altered their student fee policy to prohibit not only the funding of "political and ideological" organizations and activities, but also to prohibit the funding of "religious" organizations and activities, including instructional activities at the Experimental College; and (2 ) The defendants fashioned a unique remedy for plaintiff Goehring. However, it is clear that the plaintiffs did not receive any relief which was not mandated by Smith. The changes made by the University to its student fee policy were made to comply with both the letter and the spirit of the Smith decision. Moreover, the plaintiffs submitted a Stipulated Statement of Facts to the district court stating that the University enacted its revised student fee policy "to bring its policies in compliance with the Smith decision. " The plaintiffs' allegation that Goehring was personally granted relief beyond that mandated by Smith is false as well . The relief granted to Goehring was the same type of relief as that fashioned for the plaintiffs in Smith, and was granted *1305 to Goehring in accordance with the University's Smith policy. The second basis on which the plaintiffs rely in alleging a causal link between their lawsuit and the University's revision of its fee policy is a sequence of events argument. The plaintiffs assert that the University did not revise its student fee policy until after the plaintiffs had defeated two of the University's motions to dismiss. (FN7) Therefore, the plaintiffs argue, their lawsuit was the impetus behind the University's change in its fee policy. The district court, in contrast, found that the University changed its policy in response to the • denial of certiorari in Smith. The mere fact that the University revised its fee policy after the court rejected two motions to dismiss is insufficient to demonstrate that the district court abused its discretion in denying attorney's fees pursuant to s 1988 . Although "chronological events are important, . . . [they are] not a definitive factor[ ] in determining whether or not a defendant can be reasonably inferred to have guided his actions in response to a plaintiff's lawsuit. "_ Braafladt v. Board of Governors , 778 F. 2d 1442 , 1444 (9th • Cir. 1985) . See also Beach v. Smith, 743 F. 2d 1303 , 1306-07 (9th Cir. 1984 ) (holding that the district court did not clearly err in finding that the plaintiff failed to prove a causal connection where the plaintiff provided no direct evidence of causation, and relied solely on the sequence of events) ; American Constitutional Party v. Munro, 650 F. 2d 184 , 187-88 (9th Cir. 1981 ) (holding that "chronology of events" evidence supplemented by a legislator's affidavit stating that the plaintiff's lawsuit had been discussed prior to passage of an amendment was insufficient evidence of a causal link) . C. Request for Discovery and an Evidentiary Hearing The plaintiffs, in their reply brief to the district court, made a last-minute request for additional discovery and an evidentiary hearing on the issue of attorney's fees. The plaintiffs now appeal the district court's denial of this informal request. • [12 ] [ 13 ] A district court's decision whether to permit additional discovery on the issue of attorney's fees is reviewed for an abuse of discretion. Sablan v. Department of Fin. , 856 F. 2d 1317 , 1321 (9th Cir. 1988 ) . "Broad discretion is vested in the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant. " Id. (citation and quotation omitted) . [14 ] The district court clearly acted within its discretion in denying the plaintiffs' informal request for discovery and an evidentiary hearing because the plaintiffs failed to show that the denial of discovery would result in actual and substantial prejudice. Moreover, the plaintiffs failed to explain what they hoped to accomplish from an evidentiary hearing. See Williams v. Alioto, 625 F. 2d 845, 849 (9th Cir. 1980) (holding that the district court did not abuse its discretion in denying the plaintiff's late request for an evidentiary hearing on the issue of attorney's fees) , cert. denied, 450 U.S. 1012 , 101 S.Ct. 1723 , 68 L.Ed. 2d 213 ( 1981 ) . D. Request for Attorney's Fees Pursuant to 28 U.S.0 s 1927 411 The plaintiffs also made a last-minute request for attorney's fees pursuant to 28 U.S.C. s 1927 in their reply brief to the district court. The plaintiffs now appeal the district court's denial of this request. [15] [16 ] A district court's factual findings underlying its decision to impose sanctions pursuant to 28 U.S.C. s 1927 are reviewed for clear error. Bader v. Itel Corp. (In re Itel Securities Litigation) , 791 F. 2d 672 , 674 (9th Cir. 1986) , cert. denied, 479 U.S. 1033 , 107 S.Ct. 880, 93 L.Ed. 2d 834 ( 1987) . The legal conclusions of the district court are reviewed de novo._ • Id. The appropriateness of the sanction is reviewed for an abuse of discretion. Id. [17] Section 1927 provides that an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may *1306 be required by the court to personally satisfy the . . . attorneys' fees reasonably incurred because of such conduct. " 28 U.S.C. s 1927. The plaintiffs in the present case allege that the defendants unreasonably and vexatiously multiplied the proceedings by continuing to defend against this action when the defendants were aware that they might be required to revise their student fee policy in response to the Smith decision. The plaintiffs argue that the defendants should have asked for a stay in proceedings until the outcome of Smith was determined. "The imposition of sanctions under section 1927 requires a finding that the attorney acted recklessly or in bad faith. "_ Kanarek v. Hatch, 827 F. 2d 1389 , 1391 (9th Cir. 1987) . There is no evidence in the record to show that the defendants in the present case acted in this manner. Therefore, the district court did not abuse its discretion in denying the plaintiffs' motion for attorney's fees pursuant to 28 U.S.C. s 1927 . III . Conclusion The decision of the district court is AFFIRMED. The plaintiffs request for attorney's fees on appeal is denied. FERNANDEZ , Circuit Judge, concurring: I concur in Judge Ferguson's opinion, but write separately to express some concerns about the reasoning he has been required to employ. In my opinion, the Supreme Court began to light the way to a proper construction of the First Amendment's clauses on religion when it decided Employment Div. , Dep't of Human Resources v. Smith, 494 U.S. 872 , 110 S.Ct. 1595, 108 L.Ed. 2d 876 ( 1990) . I do not agree with this court's crabbed view of that case, which suggests that it is limited to criminal matters. See American Friends Serv. Comm. Corp. v. Thornburgh, 961 F. 2d 1405 , 1407 ( 9th Cir. 1991 ) ; NLRB v. Hanna Boys Ctr. , 940 F. 2d 1295 , 1305 (9th Cir. 1991 ) , cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 . L.Ed. 2d 586 ( 1992) . That simply overlooks the general principles established in Smith, which point to the dangers of attempting to analyze the validity of neutral laws from the vantage point of some individual's religious beliefs . See 494 U.S. at 882-89 , 110 S.Ct. at 1602-06 . In other words, in Smith the Supreme Court reminded us that laws of general application do not run afoul of the religion clauses; rather, those clauses assume and require an evenhanded neutrality both toward and on behalf of religious belief. Were there any doubt about the • accuracy of this observation it was laid to rest when the Court decided Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 , 113 S.Ct. 2217, 124 L.Ed. 2d 472 ( 1993 ) . There the Court said, again and again, that what the religion clauses demand is "neutrality. " See, e.g. , id. at 531 , 533-34 , 541 , 113 S.Ct. at 2226, 2227 , 2231 . The Court also insisted upon general applicability, but as Justice Scalia pointed out, that and neutrality greatly overlap. Id. at 557-58 , 113 S.Ct. at 2239 (Scalia, J. , concurring) . Neutrality points to a requirement that the laws be evenhanded "by their terms" ; general applicability to a requirement that they be so in "design, construction [and] enforcement. " Id. at 557 , 113 S.Ct. at 2239 . I use the single word "neutrality" to refer to both facets. That approach would easily resolve this case in favor of the University. Cf . Smith v. Fair Employment & Housing Comm'n, 12 Ca1 . 4th 1143 , 1161-65 , 913 P. 2d 909 , 919-21 , 51 Cal .Rptr. 2d, 700 , 709-12 ( 1996) (FEHC) (neutrality approach easily decides First Amendment issue) . • Moreover, I have serious doubts about the constitutionality of Congress's attempt to overrule Smith and to reinstate (or instate) a flawed view of the scope and proper construction of the religion clauses . In this I am not alone. See, e.g. , FEHC, 12 Ca1 . 4th at 1179-92 , 913 P. 2d at 931-39 , 51 Cal .Rptr. 2d at 722-30 (Mosk, J. , concurring) ; Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L.Rev. 437 , 444-45 , 452-60 ( 1994) ; Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 Tex.L.Rev. 247 , 285-302 ( 1994 ) . Nevertheless, we have already at least tacitly decided that the provisions of the RFRA should be followed. (FN1 ) *1307. 1 ] See Cheema v. Thompson, 67 F. 3d 883 , 885-86 (9th Cir. 1995) ;_ Droz v. Commissioner, 48 F. 3d 1120 , 1122-24 & n. 2 (9th Cir. 1995) , cert. denied, --- U.S. ----, 116 S.Ct. 698 , 133 L.Ed. 2d 656 (1996 ) ; Vernon v. City of Los Angeles , 27 F. 3d 1385 , 1392-95 & n. 1 (9th Cir. ) , cert. denied, --- U.S. ---- , 115 S.Ct. 510 , 130 L.Ed. 2d 417 ( 1994 ) . The parties do not argue to the contrary. Justice Mosk has outlined some of the problems which are subtended when courts undertake decisions about whether certain views are "central" to a person's religion or religious beliefs . • See FEHC, 12 Ca1 . 4th at 1189-90 , 913 P. 2d at 938 , 51 Cal .Rptr. 2d at 728-29 (Mosk, J. concurring) . Moreover, once we wander off the lighted neutrality path we are in the midst of a dense bog, and our reason for doing so hardly matters . Nor does it matter that we wandered to one side or the other. In either case, we are in danger of being sucked into a mire of confusion or overcome by a miasma of dubiety. In this area we find ourselves parading out complex tests and reasons, none of which are particularly logical or convincing. We have to explain why members of one religion can carry knives to school when no one else can. Cheema, 67 F. 3d at 885-86 . We find ourselves struggling to explain why people who have a particular belief must still pay their taxes, even though those taxes will be used to foster programs that are antithetical to their beliefs. See Droz, 48 F. 3d at 1122-24 ; see also United States v. Lee, 455 U.S. 252 , 259-61 , 102 S.Ct. 1051 , 1056-57 , 71 L.Ed. 2d 127 (1982 ) . We find ourselves spilling a good deal of ink trying to explain just why, or how, a police department can examine the activities of a high-ranking officer to see if he is properly performing his job. See Vernon, 27 F. 3d at 1392-95 . Finally, we find ourselves trotting out the same complex formulae to try to explain to Goehring why he must pay his student fees, even if they will be used to fund projects that are anathema to him. In each case, however, the answer should be that the governmental action in question is perfectly neutral and evenhanded. Any restriction or mulct is evenly applied to all and only falls upon the particular believer in the way that it falls on everyone else. That is why taxes and fees must be paid. That is why performance can be examined. (FN2 ) If we cannot say that a law or practice is evenhanded, the law or practice itself should fall , and that is an end to it. In fine, in my opinion the proper approach to all of these issues is to treat religion, non-religion, religious belief, and other beliefs absolutely equally. The proper coign of vantage for the government is a promontory of neutrality. That would yield a simple and correct answer to this case--Goehring must pay his fees just as everyone else must. He may not like a particular use of those fees by the University, but then others might not like other uses. That is not the point. The point is that the fees must be paid by all who attend the University, without respect to sect or belief. However, our precedent forces us into the more complicated approach we have taken in this case, an approach which fortunately arrives at the same right answer. Thus, I concur. FN1 . The Hyde Amendment, which is enacted each year as an amendment to 42 U.S.C. s 1396a, provides: None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest. IIIPub.L. No. 103-333 , s 509, 108 Stat. 2539 , 2573 (1994) . FN2 . Because Smith v. Regents of Univ. of Cal . , 4 Ca1 . 4th 843 , 16 Ca1 .Rptr. 2d 181 , 844 P. 2d 500, cert. denied, 510 U.S. 863 , 114 S.Ct. 181 , 126 L.Ed. 2d 140 (1993) , involved a compelled speech challenge, it is not relevant to this appeal . FN3 . The Religious Freedom Act was enacted by Congress in response to the holding in Employment Div. , Dep't of Human • Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed. 2d 876 (1990) . The Court, in Smith, held that the government need not justify burdens imposed on the free exercise of religion by neutral laws of general applicability. Id. at 878-79 , 110 S.Ct. at 1599-1600 . The Religious Freedom Act restored the government's obligation to justify all substantial burdens on the free exercise of religion. 42 U.S.C. s 2000bb-1 . *1307_ FN4 . The Religious Freedom Act essentially requires the government to justify any regulation imposing a substantial burden on the free exercise of religion by showing that the regulation satisfies strict scrutiny. FN5. The University stipulated that the plaintiffs' sincerely held religious beliefs prohibit them from financially contributing to abortions. However, merely because the University has conceded that the plaintiffs beliefs are sincerely held, it does not logically follow, as the plaintiffs contend, IIIthat any governmental action at odds with these beliefs constitutes a substantial burden on their right to free exercise of religion. FN6 . 42 U.S.C. s 1988 provides that in civil rights actions, the court, "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. " 42 U.S.C. s 1988(b) . FN7. The University filed two motions to dismiss which were denied on March 5, 1993 and August 13, 1993 , with respect to the students' freedom of speech and freedom of association claims. FN1 . Flawed construction of the religion clauses may not be the only reason to question the RFRA. See, e.g. , Flores v. City of Boerne, 877 F.Supp. 355, 357 (W.D.Tex. 1995) , rev'd, 73 F. 3d 1352 , 1363 (5th Cir.1996) ; Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5 , and the Religious Freedom Restoration Act, 48 Vand.L.Rev. 1539, 1624-33 (1995) ; Daniel 0. Conkle, The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute, 56 Mont.L.Rev. 39, 60-79 (1995) . However, for purposes of this opinion those theories are not important. • FN2 . Of course, this approach would also require that knife carrying by children in school will not be permitted, religious beliefs notwithstanding. 05/1?/9? 15:34:BO West Pub' shing Co.-> 2062559709 Page 8B2 73 F.3d 1362 Page 1 64 USLW 2472 (Cite as:73 F.3d 1352) P.F.FLORES,Archbishop of San judicial scrutiny under Employment Division Antonio, Plaintiff-Appellant, v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 and L.Ed.2d 876, and RFRA does not violate any United States of America, Intervenor• other provision of Constitution. U.S.C.A. Plaintiff-Appellant, Const.Amends. 1, 14, § 5; Religious Freedom v. Restoration Act of 1993, § 2 et seq., 42 CITY OF BOERNE,TEXAS, Defendant- U.S.C.A. § 2000bb et seq. Appellee. 10 [1]CONSTITUTIONAL LAW k274(3.1) No. 95-50306. 92k274(3.1) Congress had authority to enact RFRA, which United States Court of Appeals, restored strict scrutiny standard for statutes Fifth Circuit. which burden person's free exercise of religion, under enforcement clause of Jan. 23, 1996. Fourteenth Amendment; RFRA was enacted to enforce right guaranteed by free exercise Church brought action against city,claiming clause of First Amendment,RFRA was plainly that city ordinance violated Religious adapted to identifying constitutional Freedom Restoration Act(RFRA). The United violations that would otherwise have survived States District Court for the Western District judicial scrutiny under Employment Division of Texas, Lucius Desha Bunton, III, J., 877 v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 F.Supp. 355, held that RFRA is L.Ed.2d 876, and RFRA does not violate any unconstitutional. Church and United States, other provision of Constitution U.S.C.A. intervenor, appealed. The Court of Appeals, Const.Amends. 1, 14, § 5; Religious Freedom Patrick E. Higginbotham, Circuit Judge, held Restoration Act of 1993, § 2 et seq., 42 that: (1) Congress had authority to enact U.S.C.A. § 2000bb et seq. RFRA, which restored strict scrutiny standard for statutes which burden person's free [2]CONSTITUTIONAL LAW k251 exercise of religion, under enforcement clause 92k251 of Fourteenth Amendment; (2)RFRA does not Congress' authority under enforcement clause violate separation of powers even though of Fourteenth Amendment is not more limited RFRA imposes stricter standard than set forth when it acts to enforce provisions other than in Employment Division v. Smith, 494 U.S. equal protection clause; under enforcement 872, 110 S.Ct. 1595, 108 L.Ed.2d 876; (3) clause, Congress has power to enforce "the RFRA does not violate establishment clause of provisions of this article," not just equal First Amendment; and (4) RFRA does not protection clause. U.S.C.A. Const.Amend. 14. violate Tenth Amendment. [3]CONSTITUTIONAL LAW k251 Reversed and remanded. 92k251 Congress' constitutional power to legislate [1]CIVIL.RIGHTS k103 pursuant to enforcement clause of Fourteenth 78k103 Amendment is tied to Congress' superior Congress had authority to enact RFRA,which ability to find and redress nascent or disguised restored strict scrutiny standard for statutes violations of Amendment; Congress may act which burden person's free exercise of pursuant to enforcement clause only where religion, under enforcement clause of violation of Amendment lurks. U.S.C.A. • Fourteenth Amendment; RFRA was enacted Const.Amend. 14, § 6. • to enforce right guaranteed by free exercise clause of First Amendment,RFRA was plainly [4]CONSTITUTIONAL LAW k251 adapted to identifying constitutional 92k251 violations that would otherwise have survived Congress may not violate other constitutional Copr.®West 1997 No claim to orig.U.S.govt.works 05/17/9? 15:35:1? West Pul''=shing Co.-> 2062559789 Page 083 73 F.3d 1352 Page 2 (Cite as:73 F.3d 1352) provisions while enforcing those of Fourteenth amount to government coercing religious Amendment. U.S.C.A. Const.Amend. 14, § 5. activity through its own activities and influence. U.S.C.A. Const.Amend. 1. [51 CIVIL RIGHTS k103 78k103 [6]CONSTITUTIONAL LAW k84.5(1) RFRA, which restored strict scrutiny standard 92k84.5(1) for statutes which burden person's free Religious Freedom Restoration Act (RFRA), exercise of religion, does not violate which restored strict scrutiny standard for separation of powers even though RFRA statutes which burden person's free exercise of imposes stricter standard than set forth in religion, does not violate establishment clause Employment Division v. Smith, 494 U.S. 872, of First Amendment; RFRA no more advances 110 S.Ct. 1595, 108 L.Ed.2d 876; by enacting religion than any other legislatively mandated RFRA, Congress did not usurp judiciary's accommodation of exercise of religion, and authority to determine when statute RFRA's prohibition against "substantial impermissibly burdens person's free exercise burdens" on exercise of religion does not of religion, but rather exercised its remedial amount to government coercing religious power to reach conduct that only threatens activity through its own activities and free exercise of religion. U.S.C.A. Const. Art. influence. U.S.C.A. Const.Amend. 1. 3, § 1 et seq.; U.S.C.A. Const.Amend. 1; Religious Freedom Restoration Act of 1993, § [7]CONSTITUTIONAL LAW k84.1 2 et seq.,42 U.S.C.A. § 2000bb et seq. 92k84.1 It is a permissible legislative purpose to [51 CONSTITUTIONAL LAW k52 alleviate significant governmental 92k52 interference with exercise of religion. RFRA, which restored strict scrutiny standard U.S.C.A. Const.Amend. 1. for statutes which burden person's free exercise of religion, does not violate [8]CIVIL RIGHTS k103 separation of powers even though RFRA 78k103 imposes stricter standard than set forth in Religious Freedom Restoration Act (RFRA), Employment Division v. Smith, 494 U.S. 872, which restored strict scrutiny standard for 110 S.Ct. 1595, 108 L,Ed.2d 876; by enacting statutes which burden person's free exercise of RFRA, Congress did not usurp judiciary's religion, does not violate Tenth Amendment; authority to determine when statute on its face, RFRA does not intrude upon state impermissibly burdens person's free exercise sovereignty any more than myriad other of religion, but rather exercised its remedial federal statutes that preempt state regulation. power to reach conduct that only threatens U.S.C.A. Const.Amend. 10. free exercise of religion U.S.C.A. Const. Art. 8, § 1 et seq.; U.S.C.A. Const.Amend. 1; [8]STATES k4.16(2) Religious Freedom Restoration Act of 1993, § 360k4.16(2) 2 et seq.,42 U.S.C.A. § 2000bb et seq. Religious Freedom Restoration Act (RFRA), which restored strict scrutiny standard for [61 CIVIL RIGHTS k103 statutes which burden person's free exercise of 78k103 religion, does not violate Tenth Amendment; Religious Freedom Restoration Act (RFRA), on its face, RFRA does not intrude upon state which restored strict scrutiny standard for sovereignty any more than myriad other statutes which burden person's free exercise of federal statutes that preempt state regulation. religion, does not violate establishment clause U.S.C.A. Const.Amend. 10. of First Amendment; RFRA no more advances religion than any other legislatively mandated *1353 Thomas Drought, Patricia Jean accommodation of exercise of religion, and Schofield, Drought & Pipkin, San Antonio, RFRA's prohibition against "substantial TX, H. Douglas Laycock, Austin, TX, for burdens" on exercise of religion does not plaintiff-appellant. Copr.°West 1997 No claim to orig.U.S. govt. works 05/17/97 15:36:30 West PuF" shing Co.-> 2062559789 Page 004 73 F.3d 1352 Page 3 (Cite as:73 F.3d 1352, $1353) Lowell Frank Denton, William Michael Archbishop of San Antonio, Bishop Flores, McKamie, Denton, McKamie & Navarro, San authorized the parish to build a larger facility. Antonio,TX,Marci A.'Hamilton,Benjamin N. Cardozo School of Law, Yardley, PA, Gordon Some months later, the City of Boerne L.Hollon,Boerne,TX,for defendant-appellee. enacted Ordinance 91-05 in order to "protect, enhance and perpetuate selected historic Michael Jay Singer, Patricia Ann Milled, landmarks" and to "safeguard the City's U.S. Dept. of Justice, Civil Division, App. historic and cultural heritage." The Staff,Washington,DC,for United States. Ordinance authorized the City's Historic Landmark Commission to prepare a James C. Geoly, James A. Serritella, Kevin preservation plan with proposed Historic R. Gustafson, Lily Fu, Mayer, Brown&Platt, Districts. The City Council adopted the Chicago, IL, for Catholic Conference of Landmark Commission's proposal for Illinois,amicus curiae. designating a Historic District. Saint Peter was not designated as a historic landmark but *1354 Gene C. Schaerr, Rex E. Lee, Nathan at least part of the church was included within C. Sheers, Sidley & Austin, Washington, DC, the District. According to Archbishop Flores, for Orrin G. Hatch,Senator, amicus curiae. the Historic District included only its facade, but the City considered the entire structure to John H. Beisner, Washington, DC, David be within the District. Armour Doheny, Rl i zalwth Sherrill Merritt, Washington, DC, Peter C. Chocharis, In 1993, the church applied for a building O'Melveny & Myers, Washington, DC, Laura permit from the City to enlarge the church S. Nelson, National Trust for Historic building, urging that its proposed addition did Preservation, Washington, DC, for National not affect the church's facade. The Landmark Trust for Historic Preservation in the United Commission denied the permit application, States, amicus curiae. and the City Council, in turn, denied the church's appeal. The church filed this suit Marc D. Stern, American Jewish Congress, seeking a judicial declaration that the New York City, for Coalition for the Free Ordinance was unconstitutional and violated Exercise of Religion, amicus curiae, the Religious Freedom Restoration Act, 42 U.S.C. $ 2000bb et seq., injunctive relief, and Appeals from the United States District attorneys'fees. Court for the Western District of Texas. The City's first mention of constitutionality Before HIGGINBOTHAM, EMILIO M. came in a Proposed Joint Pre-trial Order GARZA and BENAVIDES, Circuit Judges. asserting that n any interpretation or application of the Religious Freedom PATRICK E. HIGGINBOTHAM, Circuit Restoration Act of 1993 which imposes a Judge: statutory revision in the applicable standards of First Amendment jurisprudence is not valid The City of Boerne, Texas, contends that ... taking into account the operative provisions Congress lacks the authority to enact the of Article III, the Free Exercise Clause of the Religious Freedom Restoration Act of 1993, First Amendment, Section b of the Fourteenth Pub.L. No. 103-141,42 U.S.C. § 2000bb et seq. Amendment, and the Tenth Amendment." The district court agreed. We are persuaded Over the church's objection, the district court that the act is constitutional and reverse. granted the City leave to amend its answer to plead the unconstitutionality of RFRA as L asserted in the pre-trial order. The Saint Peter Catholic Church in Boerne, The district court held that RFRA was Texas, was built in 1923. In 1991, the facially invalid because it infringed on the Copr.®West 1997 No claim to orig.U.S.govt. works 05/17/9? 15:37:57 West Pub 1;shing Co.-> 2062559709 Page 005 73 F.3d 1352 Page 4 (Cite as:73 F.3d 1352, *1354) authority of the judiciary to say what the law governmental interest; and (2) is the least is." Marbury v. Madison, 5 U.S. (1 Cranch) restrictive means of furthering that 137, 177,2 L.Ed. 60(1803). The district court compelling governmental interest." 42 U.S.C. reasoned that "Congress specifically sought to § 2000bb-1(a), (b). RFRA applies both to overturn Supreme Court precedent as found in Federal and State law,whether enacted before Employment Division v. Smith through the or after RFRA became effective. 42 U.S.C. § passage of RFRA." It was also persuaded that 2000bb-3(a). Congress had not invoked its power under Section 5 of the Fourteenth Amendment in Congress found that "governments should enacting RFRA. The district court certified its not substantially burden religious exercise order for interlocutory appeal to this court without compelling justification," and decried pursuant to 28 U.S.C. § 1292(b) and entered a the Supreme Court's decision in Smith, partial final judgment under Fed.R.Civ.P. asserting that it "virtually eliminated the 54(b). The United States and the church requirement that the government justify • appealed and petitioned for leave to appeal. burdens on religious exercise imposed by laws We have jurisdiction. neutral toward religion" 42 U.S.C. § 2000bb(a). The Act's stated purpose was "to *1355 IL restore the compelling interest test as set forth A. in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Employment Division, Dep't of Human Yoder,406 U.S. 205, 92 S.Ct. 1626,32 L.Ed.2d Resources v. Smith, 494 U.S. 872, 110 S.Ct. 15 (1972) and to guarantee its application in 1595, 108 L.Ed.2d 876 (1990), held that the all cases where free exercise of religion is First Amendment's Free Exercise Clause does substantially burdened." 42 U.S.C. § not bar application of a facially neutral, 2000bb(bX1). generally applicable law to religiously motivated conduct. Id. at 881, 110 S.Ct. at III. 1601. Five months after Smith, Congress A. conducted its first hearing on a legislative • response, the Religious Freedom Restoration Congress considered its constitutional Act of 1990. See, Hearing Before the authority to enact legislation to overturn Subcomm. on Civil and Constitution Rights of Smith. See 1990 House Hearing at 51 the House Comm. on the Judiciary, 101st (statement of Rev. John H Buchanan, Jr.). Cong., 2d Sess. (1990) (hereinafter "1990 Scholars critical of Smith found in Section 5 of House Hearing"). The 101st Congress did not the Fourteenth Amendment authority to enact pass the bill, but it was reintroduced in the RFRA. See id. at 51, 54 (statement of Rev. 102nd Congress, S. 2969, 102nd Cong., lat John H. Buchanan, Jr.), 72-79 (letter from Seas. (1991); H.R. 2797, 102nd Cong., 1st Douglas Laycock); Congressional Research Sess. (1991), and again in the 103rd Congress. Service, The Religious Freedom Restoration S. 578, 103rd Cong., 1st. Seas. (1993); HR. Act and The Religious Freedom Act: A Legal 1308, 103rd Cong., 1st Seas.(1993). Analysis 30-31 (1992) (prepared by David Ackerman). Later hearings continued the B. study of Section 5 and the support it would offer to such legislation. See Religious In enacting the Religious Freedom Freedom Restoration Act of 1991: Hearings Restoration Act of 1993, Congress mandated Before the Subcomm. on Civil and that "Government shall not substantially Constitutional Rights of the House Comm. on burden a person's exercise of religion even if the Judiciary, 102nd Cong., 2d Sess. 353-59 the burden results from a rule of general (1992) (statement of Douglas Laycock) applicability" unless the Government (hereinafter "1992 House Hearings"); The demonstrates that application of the burden Religious Freedom Restoration Act: Hearing "(1) is in furtherance of a compelling Before the Senate Comm on the Judiciary, Copr.°West 1997 No claim to orig. U.S. govt. works • 05/17/97 15:39:20 West PuF' shing Co.-> 2062559709 Page 006 73 F.3d 1352 Page 5 (Cite as:73 F.3d 1352, *1355) 102nd Cong., 2d Sess. 92-97 (1992) (statement B. of Douglas Laycock)(hereinafter '1992 Senate Hearing"), That the Executive and Legislative branches also have both the right and duty to interpret Some thoughtful scholars questioned the the constitution casts no shadows upon Justice authority of Congress under Section 5, at least Marshall's claim of ultimate authority to as far as RFRA pushed it. See, e.g., 1992 decide. The judicial trump card can be played House Hearings at 385-94 (statement of Ira only in a case or controversy. The power to Lupu); 1992 Senate Hearing at 122-25 decide the law is an incident of judicial power (statement of Bruce Fein). Congress to decide cases. There is no more. A power of ultimately believed that Section 5 of the review not rooted in a case or controversy Fourteenth Amendment granted it sufficient would impermissibly draw to Article III the authority to enact the bill: interpretive role of the Executive and Pursuant to Section 5 of the Fourteenth Legislative branches of government. So it is Amendment and the Necessary and Proper that the familiar recitation that Congressional Clause embodied in Article I, Section 8 of legislation comes to us with a presumption of the Constitution, the legislative branch has constitutionality is a steely realism and not been given the authority to provide merely a protocol of manners or an empty statutory protection for a constitutional formalism. value when the Supreme Court has been unwilling to assert its authority. The No party here contends and we express no Supreme *1356 Court has repeatedly upheld opinion whether other delegations of such congressional action after declining to legislative power, such as the Commerce find a constitutional protection itself. Power, provide constitutional authority for the However, limits to congressional authority passage of RFRA. RFRA's legislative history do exist. Congress may not (1) create a more than satisfies our requirement that "we statutory right prohibited by some other be able to discern some legislative purpose or provision of the Constitution, (2) remove factual predicate that supports the exercise of rights granted by the Constitution, or (3) [Congress' Section 5] power." E.E.O.C. v. create a right inconsistent with an objective Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. of a constitutional provision Because 1054, 1064 n. 18, 75 L.Ed.2d 18 (1983). There [RFRA) is well within these limits, the is no question that Congress drew on its power Committee believes that in passing the under Section 5 in enacting RFRA. The Religious Freedom Restoration Act, district court's doubt that it did is without Congress appropriately creates a statutory basis. The issue is whether that authority was right within the perimeters of its power. there. H.R.Rep. No. 88, 103d Cong., 1st Sess. 9 (1993). The Senate report expressed similar IV. views, noting that RFRA 'falls squarely within Congress' section 5 enforcement The City contends that RFRA is power." S.Rep. 111, 103d Cong., 1st Sess. 14 unconstitutional for four related reasons. (1993), reprinted in 1993 U.S.C.C.A.N. 1892, First, Congress lacked the authority to enact 1903. the statute under Section 5 of the Fourteenth Amendment. Second, the statute violates the When RFRA reached the Senate floor for separation of powers by returning to the courts debate, no Senator questioned Congress' the task of accommodating general laws and power under Section 5. The Senators religious practices after Smith denied the expressing a view on the issue were persuaded judiciary's competence to do so. Third, RFRA that Section 5 provided ample authority. See violates the Establishment Clause of the First 139 Cong.Rec. S14469 (statement of Sen. Amendment. Fourth, it violates the Tenth Grassley); 139 Cong.Rec. S14470 (statement Amendment. We turn to these contentions. of Sen. Hatch). Copr. ©West 1997 No claim to orig. U.S. govt. works 05/17/97 15:40:44 West Pul-'=shing Co.-> 2062559709 Page 887 73 F.3d 1352 Page 6 (Cite as:73 F.3d 1352, *1356) A. 651,86 S.Ct. at 1724. [1) Section 5 of the Fourteenth Amendment Six years later, the Court reaffirmed this provides that "Congress shall have power to reading of Section 5. In Oregon v. Mitchell, enforce, by appropriate legislation, the 400 U.S. 112, 118, 91 S.Ct. 260, 262, 27 provisions of this article." U.S. Const. amend. L.Ed.2d 272 (1970), the Court upheld XIV, § 5. The Thirteenth, Fourteenth, and congressional prohibitions of literacy tests in Fifteenth Amendments "were specifically state and national elections. Mitchell did designed as an expansion of federal power and strike down the guarantee of the right of 18- • an intrusion on state sovereignty." City of year-olds to vote in state elections,400 U.S. at Rome v. United States, 446 U.S. 156, 179, 100 118, 91 S.Ct. at 262, but that decision rested S.Ct. 1548, 1563,64 L.Ed.2d 119(1980). on the exclusive role of states in conducting • their elections. Justice Black explained that The Supreme Court first considered the Congress' enforcement power was broad but meaning of Section 5 in Ex parte Virginia, 100 not unlimited: U.S. (10 Otto) 339, 25 L.Ed. 676 (1879). It As broad as the congressional enforcement upheld the constitutionality of an act power is, it is not unlimited. Specifically, prohibiting the disqualification of grand or there are at least three limitations upon petit jurors on account of race. Id. at 345, 346. Congress'power to enforce the guarantees of The Court declined to read narrowly the power the Civil War Amendments. First, Congress granted by Section 5: may not by legislation repeal other *1357 Whatever legislation is appropriate, provisions of the Constitution. Second, the that is, adapted to carry out the objects the power granted to Congress was not intended amendments have in view, whatever tends to strip the States of their power to govern to enforce submission to the prohibitions themselves or to convert our national they contain, and to secure to all persons the government of enumerated powers into a enjoyment of perfect equality of civil rights central government of unrestrained and the equal protection of the laws against authority over every inch of the whole State denial or invasion,if not prohibited, is Nation. Third, Congress may only "enforce" brought within the domain of congressional the provisions of the amendments and may power. do so only by "appropriate legislation." Id. at 345-46. Congress has no power under the enforcement sections to undercut the The civil rights legislation of the 1960's amendments' guarantees of personal brought to court again questions regarding the equality and freedom from discrimination, power of Congress under the Civil Rights or to undermine those protections of the Bill Amendments. In Katzenbach v. Morgan, 384 of Rights which we have held the U.S. 641, 648, 86 S.Ct. 1717, 1722, 16 L.Ed.2d Fourteenth Amendment made applicable to 828 (1966), the Court rejected the argument the States. that under Section 5 Congress could only Id. at 128-29, 91 S.Ct. at 266-67 (opinion of prohibit acts that would violate the Black,J.). substantive provisions of the Fourteenth Amendment. Referring to M'Culloch v. In the years since Mitchell, the Court has Maryland, 17 U.S. (4 Wheat) 316, 421, 4 adhered to these generally stated principles. L.Ed. 579 (1819), the Court held that the In Fitzpatrick v.Bitzer, 427 U.S. 445, 96 S.Ct. inquiry into what is "appropriate legislation" 2666,49 L.Ed.2d 614(1976), the Court upheld, under Section 5 is whether the statute "may against a federalism-based Eleventh be regarded as an enactment to enforce [the Amendment challenge, the application of Title Fourteenth Amendment], whether it is VII, 42 U.S.C. § 2000e et seq., to the States. 'plainly adapted to that end' and whether it is The Court explained that "[w]hen Congress not prohibited by but is consistent with 'the acts pursuant to § 5, not only is it exercising letter and spirit of the constitution' " Id. at legislative authority that is plenary within Copr.®West 1997 No claim to orig.U.S.govt.works S 05/17/9? 15:42:8E1 West Pu1-1`shing Co.-> 2862559789 Page 888 73 F.3d 1352 Page 7 (Cite as:73 F.3d 1352, *1357) the terms of the constitutional grant, it is Everard's Breweries v. Day, 266 U.S. 545, • exercising that authority under one section of a constitutional amendment whose other 560, 44 S.Ct. 628, 631, 68 L.Ed. 1174 (1924), the Court, addressing the scope of Congress' sections by their own terms embody power under Section 2 of the Eighteenth limitations on state authority." Id. at 456,96 Amendment, held that Congress "may adopt S.Ct. at 2671. Similarly, in Fullilove v. any eligible and appropriate means to make Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 [the Eighteenth Amendment's] prohibition L.Ed.2d 902 (1980), a plurality of the Court effective." expressed the view that Section 5 provided • authority to remedy the effects of past This continued adherence to the principle discrimination, even though the Fourteenth that Congress may explicate textually located Amendment only prohibited purposeful rights and obligations pursuant to Section 5 • discrimination. See id. at 478, 100 S.Ct. at persuades us that the three-part test from 2775(opinion of Burger, C.J.,joined by White Morgan remains the benchmark. and Powell, JJ.); id. at 500-02, 100 S.Ct. at 2786-87(Powell,J.,concurring). The Court in 1. Adarand Constructors,Inc. v. Pena, ---U.S. ---- , ----, 115 S.Ct. 2097, 2117, 132 L.Ed.2d 158 The first inquiry under Morgan is whether (1995), in holding that federal affirmative RFRA "may be regarded" as an enactment to action programs are subject to strict scrutiny, enforce the Fourteenth Amendment. It has did not question congressional power under been long established that the Due Process Section 5. Id. at----, 116 S.Ct. at 2114. Clause of the Fourteenth Amendment incorporates the Free Exercise Clause of the *1358 The Thirteenth, Fifteenth, First Amendment. Cantwell v. Connecticut, Eighteenth, Twenty-third, Twenty-fourth, and 310 U.S. 296, 303, 60 S.Ct. 900, 903,84 L.Ed. Twenty-six Amendments contain parallel 1213(1940). grants of enforcement power to Congress. The Court has read those provisions in a similar [2] We disagree with the City's argument fashion. For example, in South Carolina v. that Congress' Section 5 authority is more • Katzenbach, 383 U.S. 301, 326, 86 S.Ct. 803, limited when it acts to enforce provisions 817, 15 L.Ed.2d 769 (1966), the Court upheld other than the Equal Protection Clause. provisions of the Voting Rights Act of 1965. Section 5 does not place conditions on Discussing Congress'power under Section 2 of Congress' authority to enforce the the Fifteenth Amendment--which contains amendment. Congress has the power to virtuslly identical language to Section 5 of the enforce "the provisions of this article," not just Fourteenth--the Court wrote that "[tIhe basic the Equal Protection Clause. United States v. test to be applied in a case involving § 2 of the Price, 383 U.S. 787, 789 &rL 2, 86 S.Ct. 1152, Fifteenth Amendment is the same as in all 1154 & n. 2, 16 L.Ed.2d 267 (1966) (noting cases concerning the express powers of Section 5 empowers Congress to enforce Congress with relation to the reserved powers "every right guaranteed by the Due Process of the States." Id. at 326, 86 S.Ct. at 817. Clause of the Fourteenth Amendment"); see Quoting Chief Justice Marshall's opinion in also Cong.Globe, 42d Cong., 1st Sess.App. at M'Culloch,the Court explained: 83 (1871) ("The fourteenth amendment closes Let the end be legitimate, let it be within with the words, 'the Congress shall have the scope of the constitution, and all means power to enforce, by appropriate legislation, which are appropriate, which are plainly the provisions of this article'-the whole of it, adapted to that end, which are not sir; all the provisions of the article; every prohibited, but consist with letter and spirit section of it.") (statement of Rep. Bingham). of the constitution, are constitutional. We reject the notion that there is any relevant Id. at 326, 86 S.Ct. at 817 (quoting M'Culloch hierarchy of constitutional rights within the v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 Fourteenth Amendment. Cf. Caplin & L.Ed. 579 (1819)). Similarly, in James Drysdale, Chartered v. United States, 491 Copr.®West 1997 No claim to orig.U.S. govt. works • 85/17/97 15:43:35 West Pul}'=shing Co.-> 2062559789 Page 889 73 F.3d 1362 Page 8 (Cite as:73 F.3d 1352, *1358) U.S. 617, 628, 109 S.Ct. 2646, 2664, 106 Section 6 does not permit Congress to rewrite L.Ed.2d 628(1989). At base, this argument is the scope of the Amendment's provisions out • little more than an invitation to revisit the of whole cloth. Rather, Congress'power under incorporation of the First Amendment, an Section 5 is remedial. Congress` invitation addressed to the wrong court. constitutional power to legislate pursuant to Section 5 is tied to Congress' superior ability We think it beyond peradventure that to find and redress nascent or disguised Congress enacted RFRA to enforce the violations of the Amendment. In short, religious liberty protected from State "Congress may act only where a violation infringement by the Due Process Clause. lurks." E.E.O.C. v. Wyoming, 460 U.S. at RFRA expressly declares its purpose "to 260, 103 S.Ct. at 1072 (Burger, C.J., restore the compelling interest test ... and dissenting). guarantee its application in all cases where free exercise of religion is substantially The United States offers three remedial burdened" and "to provide a claim or defense justifications for RFRA: 1) RFRA deters to persons whose religious exercise is governmental violations of the Free Exercise substantially burdened by government." 42 Clause; 2)RFRA prohibits laws that have the U.S.C. $ 2000bb(b). The Act itself defines effect of impeding religious exercise; and, 3) "exercise of religion" as that under the First RFRA protects the free exercise rights of Amendment. See 42 U.S.C. §2000bb-2(4). adherents of minority religions. We address each in turn. RFRA's legislative history leaves little room for doubt that Congress intended "to enforce The United States urges that RFRA is an the right guaranteed by the free exercise effective means of prohibiting the clause of the first amendment." S.Rep. 111 at unconstitutional targeting of religion through 14 n. 43, reprinted in 1993 U.S.C.C.A.N. at facially neutral laws. According to this view 1904. Witnesses at congressional *1359 of RFRA, Smith 's requirement that hearings spoke eloquently of the need for individuals show that a law is not facially legislation to defend individuals, particularly neutral or generally applicable has not been • those from minority religions, from generally applicable laws that burden the exercise of an effective means of rooting out laws hostile to a religion in particular or to religion in religion. See, e.g., 1992 House Hearings at general. RFRA responds by requiring all laws 167-59 (statement of Edward Gaffney, Jr.); that substantially burden the exercise of 1992 Senate Hearing at 6-6 (statement of religion to pass the compelling interest test, a William Nouyi Yang), 37-39 (statement of test well-suited to separating well-intentioned Dallin Oaks). Indeed, the Senate Judiciary statutes from invidious ones. Cf. City of Committee found the need for legislation to Richmond v. J.A. Croson Co., 488 U.S. 469, restore the pre-Smith compelling interest test 493, 109 S.Ct. 706, 721, 102 L.Ed.2d 864 in order"to assure that all Americans are free (1989) (O'Connor, J.) (noting that purpose of to follow their faiths free from governmental strict scrutiny is to "smoke out" illegitimate interference." S.Rep. 111 at 8, reprinted in uses of race). 1993 U.S.C.C.A.N. at 1897-98. Congress could have reasonably concluded 2. that Smith 'a focus on facial neutrality and general applicability has been ineffective in [3] The second inquiry under Morgan is identifying laws motivated by antagonism to a whether RFRA is "plainly adapted to that religion or to religion in general. As one end." Although Congress' power to enforce witness testified before the Senate Judiciary the Amendment is not confined to "abrogating Committee, "formally neutral, generally only those state laws that the judicial branch applicable laws have repeatedly been the was prepared to adjudge unconstitutional," instruments of religious persecution, even in Morgan, 384 U.S. at 648-49,86 S.Ct. at 1722, America." 1992 Senate Hearing at 71 Copr.®West 1997 No claim to orig.U.S.govt. works 85/17/9? 15:45:80 Wcst Pu} 1 shing Co.-> 2862559789 Pagc 018 73 F.3d 1352 Page 9 (Cite as:73 F.3d 1352, *1359) (statement of Douglas Laycock). Moreover, facially neutral laws can impose on an • Congress found that "[alfter Smith, elaimants individual's exercise of his religious beliefs. will be forced to convince courts that an See, e.g., 1992 House Hearings at 157-59 inappropriate legislative motive created (statement of Edward Gaffney, Jr.)(discussing statutes and regulations. However,legislative effect of Smith on various religious exercise). motive often cannot be determined and courts have been reluctant to impute bad motives to A robust application of the compelling legislators." H.R.Rep. 88 at 6. These interest test may be uneven in exempting considerations, analogous to those underlying religious practices from statutes of general • the Voting Rights Act Amendments of 1982, applicability and push courts into either an Pub.L. No. 97-205, * 3, 96 Stat. 131, 134, uncomfortable judging of the credibility of convince us that RFRA serves the remedial claims that practices are religious exercises or goal of identifying budding or disguised leaving each person a non-regulatable island constitutional violations that would otherwise unto themselves, arguably concerns behind survive judicial scrutiny under Smith. the pre-Smith timidity of its use. The concerns are large and, for some scholars,they In a similar vein, the United States argues are a compelling argument against RFRA. that even if the Constitution only prohibits Christopher L. Eisgruber & Lawrence G. governmental action taken with the intent of Sager, Why the Religious Freedom interfering with religious exercise, Congress Restoration Act is Unconstitutional, 69 may go farther, as it did with RFRA, and N.Y.U.L.Rev. 437, 452 (1994). But this begs prohibit conduct that has the effect of the question of congressional power. That burdening the exercise of religion. According some generally applicable laws must yield to this view of RFRA, applying the compelling their unwitting grasp of religious practices is interest test to all laws, whether facially the price Congress has chosen to pay to neutral or not, that have the effect of achieve its desired level of accommodation. substantially burdening the exercise of "It was for Congress, as the branch that made religion is a prophylactic measure designed to this judgment, to assess and weigh the various ensure that government may not discriminate conflicting considerations." Morgan, 384 U.S. • against a particular religion or religion in at 653,86 S.Ct. at 1725. "It is enough that we general. It is claimed to be an effective means be able to perceive a basis upon which the of identifying *1360 both mature and Congress might resolve the conflict as it did." sprouting constitutional violations, a Id. prophylactic measure that prohibits some laws whose effect upon the free exercise of religion Finally,the United States claims that RFRA is so substantial that RFRA is fairly said to serves to protect religious minorities, thereby regulate incipient constitutional violations. promoting the goals of both the Due Process Clause and the Equal Protection Clause. In cases involving racial discrimination, the According to this view of RFRA, adherents of Court has held that Congress may prohibit minority religions are disproportionately laws with a racially discriminatory effect, as it affected by facially neutral laws. Congress did in the Voting Rights Act of 1965, as an heard testimony regarding the effects of Smith appropriate method of promoting the on members of the Hmong, Jewish, Mormon, Amendment's purpose, even if the and Amish faiths. See 1992 Senate Hearing Constitution only prohibits laws with a at 30-40; 1992 House Hearings at 104, 107-08, racially discriminatory intent. City of Rome, 406-09. Congress could reasonably conclude 446 U.S. at 177, 100 S.Ct. at 1561. Similarly, that more exacting scrutiny of facially neutral Congress could reasonably conclude that legislation that burdens a religious practice is prohibiting laws that have the effect of needed to protect adherents of minority substantially burdening religion promotes the religions. Sep S.Rep. 111 at 8, reprinted in free eaenise of religion. Congress heard much 1993 U.S.C.C.A.N. at 1897. testimony regarding the severe burdens that Cops.®West 1997 No claim to orig.U.S. govt. works • H5/17/97 15:46:29 West Pubr;shing Co.-> 2062559709 Page 011 73 F.3d 1352 Page 10 (Cite as:73 F.3d 1352, *1360) Relatedly, Congress could reasonably Section 5 authorizes Congress to enact RFRA, • conclude that seeking religious exemptions in a piecemeal fashion through the political it is unconstitutional for these additional reasons. However, as Morgan makes clear, processes, particularly at the state or local Congress has no power under Section 5 to governmental level, would place minority violate other individual rights. Stated religions at a disadvantage. See The another way, if RFRA violates other Federalist No. 10 (James Madison). Smith constitutional provisions, it exceeds Congress' acknowledged that leaving accommodation to Section 5 authority. We will address each the political processes risked discriminatory separately, treatment but viewed it as an 'unavoidable consequence of democratic government." 494 B. U.S. at 890, 110 S.Ct. at 1606. Congress considered the effect the Smith decision would [51 The district court agreed with the City have on minority religions seeking that RFRA violates the separation of powers accommodations through the political process by displacing the authority of the judiciary, and concluded that"State and local legislative established by Marbury v. Madison, 5 U.S. (1 bodies cannot be relied upon to craft Cranch) 137, 177, 2 L.Ed. 60 (1803), "to say exceptions from laws of general application to what the law is." RFRA accomplishes this protect the ability of the religious minorities goal, according to the City, by reversing Smith to practice their faiths." S.Rep. 111 at 8, and restoring the pre-Smith judicial standard reprinted in 1993 U.S.C.C.A.N. at 1897; see for evaluating free exercise claims. In effect, also 1992 House Hearings at 326(statement of Congress has created a new constitutional Douglas Laycock). right and achieved a 'substantive expansion of First Amendment doctrine.' In short, the City These justifications fit within the remedial describes RFRA as nothing less than a power of Congress under Section 5. To our constitutional coup d'etat, declaring that eyes, Congress considered the need for "[tlhe new order under RFRA would overrule 'appropriate legislation' to enforce the Marbury and craft a new standard of provisions of the Fourteenth Amendment and constitutional responsibility.' The United . responded with legislation that is "plainly adapted" to that end. States responds that RFRA "is simply a statute that provides legislative protection for a constitutional right over and above that *1361 3. provided by the Constitution." [4) The third inquiry under Morgan is The response that Congress has created a whether RFRA is consistent "with the letter statutory right is facile and ultimately and spirit of the constitution" This inquiry incomplete. RFRA creates a statutory right to requires us to determine whether RFRA be sure. The origins and framing of that violates any other provision of the right, however, are drawn from judicial Constitution. Congress's power to remedy decisions construing the Constitution. We will constitutional wrongs is a one-way street. not pretend that RFRA is anything but a Congress may not violate other constitutional direct response to the Supreme Court's provisions while enforcing those of the decision in Smith. Indeed, Congress' Fourteenth Amendment. Morgan, 384 U.S. at announced purpose was "to 'turn the clock 656, 86 S.Ct. at 1726. The City claims that back' to the day before Smith was decided." RFRA violates three Constitutional H.R.Rep. 88 at 15 (statement of Rep. Hyde). provisions: 1)the separation of powers; 2)the Moreover, RFRA speaks in terms familiar to Establishment Clause; and 3) the Tenth constitutional adjudication. To pass muster Amendment. under RFRA, applicable laws must further a 'compelling governmental interest" and be The City treats these arguments as the 'least restrictive means" of furthering independent of its Section 5 argument:Even if that interest. This is a statutory rule, but it is Copr.®West 1997 No claim to orig.U.S. govt.works • 05/17/9? 15:47:54 West Puh""shing Co.-> 2062559709 Page 012 73 F.3d 1352 Page 11 (Cite as: 73 F.3d 1352, '11361) a rule mandating a process rejected by the Laurence Tribe's Visionary Theories of the • Court in Smith. Equal Protection Clause, 4 Benchmark 125, 131-34 (1990) (rejecting Tribe's view). The RFRA is also, in a sense, an assignment by merits of that debate aside, it was common Congress of a higher value to free-exercise- ground that dispensing with the requirement secured freedoms than the value assigned by of Washington v. Davis that violations of the the courts--that is, strict scrutiny versus a Equal Protection Clause must be purposeful form of intermediate scrutiny. This view works a large relocation of power. This is not includes an image of congressional second- to suggest that RFRA's dispensing with guessing of the courts. But that sense is false. purpose is of a lesser magnitude. We doubt Congress by RFRA is demanding ad hoc that it is. Rather, the point is that despite its review of laws of general applicability that large role, dispensing with purpose remains substantially burden the free exercise of nonetheless an exercise of Congress' remedial religion. This is functionally a regulation of power, the power to reach conduct that only nascent violations of the Free Exercise Clause, threatens the free exercise of religion. at least so long as the statutory trigger of substantial effect is given full force. It is true Undeniably,RFRA's origins and codification that the Court found that the Free Exercise of terms drawn directly from constitutional Clause did not require the Court to decisions make it unusual and are accommodate laws of general applicability not characteristic of what is termed a aimed at a religious practice and that RFRA "foundational statute." The critical question demands that the Court engage in an exercise is whether they make RFRA unconstitutional. that the Court has eschewed. Nonetheless, We think not. whether the courts must obey RFRA's command to do so turns only on the The City's argument rests on the mistaken independent issue of the power of Congress assumption that Smith describes not only how under Section 5. little the Government must accommodate religion but also how much it may As we have otherwise explained, this is accommodate it. Stated another way, the City • indistinguishable in any relevant way from the congressional command to examine must contend that Smith held not only that facially neutral laws having the incidental election practices adversely impacting the effect of burdening religion do not violate the voting strength of protected minorities, even Free Exercise Clause but also that exemptions though there was no purpose to discriminate to such laws do violate either that clause or and, hence, no violation of the Equal the Establishment Clause. Only if the latter Protection Clause. Dispensing with the proposition is true does RFRA usurp the constitutionally *1362 rooted requirement judiciary's duty to interpret the Constitution. that discrimination be purposeful is an extraordinary exercise of power. The This view of Smith has its supporters, see insistence in Washington v. Davis, 426 U.S. Christopher L. Eisgruber & Lawrence G. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 Sager, Why the Religious Freedom (1976), upon proof of discriminatory purpose Restoration Act is Unconstitutional, 69 was a decision about the judicial role. At N.Y.U.L.Rev. 437, 450 (1994). Prior to Smith, issue was whether the accent should be upon the Court recognized that legislatures were federal courts as arbiters of social justice or as free to enact religious exemptions more a more passive arbiter of cases or expansive and accommodating than that controversies. The role of purpose becomes required by the Free Exercise Clause. See clear in the debate over its wisdom. Compare Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, Laurence H. Tribe, American Constitutional 96 L.Ed. 954 (1952); Corporation of Presiding Law § 16-20 at 1515 (2d ed. 1988) (urging that Bishop v. Amos, 483 U.S. 327, 334, 107 S.Ct. anti-subjugation should be test rather than 2862,2867,97 L.Ed.2d 273(1987). Even when purpose) with Patrick E. Higginbotham, the Court held that a particular religious Copr. e West 1997 No claim to orig. U.S. govt. works • 05/17/9? 15:49:21 West Pal-'=shing Co.-> 2062559799 Page 013 73 F.3d 1352 Page 12 (Cite es:73 F.3d 1352, '1362) accommodation violated the Establishment religion reflects a legislature's judgment • Clause, Justice Brennan cautioned that "we in regarding the free exercise of religion. RFRA no way suggest that all benefits conferred does not usurp the judiciary's authority to say exclusively upon religious groups or upon what the law is any more than did the Voting individuals on account of their religious Rights Act of 1964 when it prohibited literacy beliefs are forbidden by the Establishment tests after Lassiter v. Northampton County Clause unless they are mandated by the Free Bd. of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 Exercise Clause." Texas Monthly, Inc. v. L.Ed.2d 1072 (1959), had upheld their Bullock, 489 U.S. 1, 18 n_8, 109 S.Ct.890,901 constitutionality. Nor does RFRA usurp the n. 8, 103 L.Fdl 2d 1(1989)(Brennan,J.). judiciary's interpretive powers any more than did the American Indian Religious Freedom Smith, however, did not change this rule. Act Amendments of 1994,Pub.L. No. 103-344, To the contrary, the Court contemplated 108 Stat. 3125, which overturns the "leaving accommodation to the political particular result of Smith by preventing process:" States from prohibiting Native Americans Values that are protected against from using peyote as part of their religious government interference through practices. See 42 U.S.C. § 1996a(bxl). enshrinement in the Bill of Rights are not thereby banished from the political process. That RFRA speaks in broad generalities Just as a society that believes in the where other legislatively mandated religious negative protection accorded to the press by exemptions, such those provided by the the First Amendment is likely to enact laws American Indian Religious Freedom Act, that affirmatively foster the dissemination address specific conduct is of no moment. of the printed word, so also a society that Within the area of permissible legislative believes in the negative protection accorded accommodations of religion, Congress may to religious belief can be expected to be paint with a broad or narrow brush. In either solicitous of that value in its legislation as situation, Congress has "disagreed" with the well. judiciary regarding the scope of religious 494 U.S. at 890, 110 S.Ct. at 1606. The Court freedom and the Free Exercise Clause. In • noted with approval that several States, neither situation has Congress arrogated to unlike Oregon, had exempted the sacramental itself the unrestricted power to define the use of peyote from their drug laws. Id. Constitution. Since Smith, the Court has reaffirmed that In short, the judiciary's duty is to say what religious accommodations are constitutional. the law is, but that duty is not exclusive. The "Our cases leave no doubt that in commanding district court's holding that RFRA usurps the neutrality the Religion Clauses do not require judiciary's power under Marbury v. Madison the government to be oblivious to impositions to interpret the Constitution is incorrect. that legitimate exercises of state *1363 power may place on religious belief and practice." Nor are we persuaded by the City's Board of Educ. of Kiryas Joel v. Grumet, 512 argument that RFRA violates the separation U.S. 687, --, 114 S.Ct. 2481, 2492, 129 of powers because it restores a test rejected in L.Ed.2d 546 (1994). Rather, " 'government Smith as beyond the judiciary's competence to may (and sometime must) accommodate apply. Smith acknowledged that the religious practices....' " Id. (quoting Hobbie v. legislative accommodation of religion "must Unemployment Appeals Comm'n of Fla., 480 be preferred to a system ... in which judges U.S. 136, 144, 107 S.Ct. 1046, 1051, 94 weigh the social importance of all laws against L.Ed.2d 190(1987)). the centrality of all religious beliefs." 494 U.S. at 890, 110 S.Ct. at 1606. However, the The City's separation of powers argument Court's rejection of the compelling interest challenges this well-established rule. Every test did not rest on judicial inability to apply legislatively mandated accommodation of the test. The compelling interest test is Copr. ®West 1997 No claim to orig. U.S.govt. works • B5/17/97 15:58:47 West Pu1.1 skiing Co.-> 2062559789 Page 814 73 F.3d 1352 Page 13 (Cite as:73 F.3d 1352, *1363) familiar to judges both in the context of free shall be construed to affect, interpret, or in exercise claims, see Smith, 494 U.S. at 900-01, any way address [the Establishment Clause]." 110 S.Ct. at 1611-12 (O'Connor, J.,concurring 42 U.S.C. § 2000bb-4. In short, RFRA by its in the judgment), and elsewhere. See, e.g., own terms provides that the accommodations Adarand, --- U.S. at ----, 115 S.Ct. at 2117 mandated by RFR.A may reach up to the limit (subjecting all racial classifications to strict permitted by the Establishment Clause but no scrutiy). further. Rather, the Court's rejection of the [7] The City responds that, even so, RFRA compelling interest test in free exercise claims on its face violates the Establishment Clause rested on the Court's aversion to applying the because it lacks a secular purpose and because test to facially neutral laws in the counter- it has the primary effect of advancing religion. majoritarian arena of constitutional See Lemon v. Kurtzman, 403 U.S. 602, 91 interpretation. See 494 U.S. at 888-889, 110 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We S.Ct. at 1605-1606 (rejecting compelling disagree. Its remedial justifications belie the interest test because it "would open the City's contention that Congress acted with a prospect of constitutionally required religious sectarian purpose. Relatedly, "it is a exemptions"). Again, it is one thing to apply permissible legislative purpose to alleviate the compelling interest test drawn from a significant governmental interference" with statute where Congress can amend the the exercise of religion. Amos, 483 U.S. at underlying law if it disagrees with the 335, 107 S.Ct. at 2868. resulting balance; it is another when the only response to the judiciary's application of the RFRA no more advances religion than any compelling interest test is a constitutional other legislatively mandated accommodation amendment. of the exercise of religion. In Amos,the Court rejected the argument that an accommodation We conclude that RFRA does not violate the violates the primary effects prong of the separation of powers. Whether RFRA's Lemon test simply by virtue of being an requirement that judges determine whether a accommodation. "A law is not particular law "substantially burdens" the unconstitutional simply because it allows exercise of religion imposes upon the judiciary churches to advance religion, which is their the duty of inquiring into the centrality of very purpose. For a law to have forbidden particular practices to a faith and whether 'effects' under Lemon, it must be fair to say that duty, if it exists, poses constitutional that the government itself has advanced difficulties is not presented. See Smith, 494 religion through its own activities and U.S. at 887 & n. 4, 110 S.Ct. at 1605 & n. 4. influence." Id. at 337, 107 S.Ct. at 2869 As we have explained, the full meaning of (emphasis in original). RFRA's lifting of "substantially burdens" must be found in its "substantial burdens" on the exercise of application. It is self-evident that the vigor of religion does not amount to the Government the insistence that effects be substantial and coercing religious activity through "its own the risks of error in locating incipient activities and influence." violations of the Free Exercise Clause are directly related. An anemic application of D. "substantial effect" pushes the limits of congressional power to remedy. [8] Finally, the City urges that RFRA violates the Tenth Amendment because the *1364 C. act limits the power of the States to legislate "in the traditional areas of state sovereignty [6] Nor does RFRA mandate religious and prominence." The City mistakenly relies accommodations that violate the on the Court's decision last term in United Establishment Clause. To the contrary, the States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, act provides that "[nlothing in this chapter 131 L.Ed.2d 626 (1995), which held that the Copr. e West 1997 No claim to orig. U.S. govt. works 1 05/17/9? 15:52:10 West Pul'4shing Co.-> 2062559709 Page 015 73 F.3d 1352 Page 14 (Cite as:73 F.3d 1352, *1364) Gun Free School Zones Act exceeded Congress' inconsistent with this opinion. • power under the Commerce Clause. Congress, however, enacted RFRA pursuant to its power END OF DOCUMENT under Sertion 5 of the Fourteenth Amendment. Although the United States urges that the Commerce Clause also supports Congress' authority to enact RFRA, we have not reached that contention. • The Court has repeatedly noted that "the principles of federalism that constrain Congress' exercise of its Commerce Clause powers are attenuated when Congress acts pursuant to its powers to enforce the Civil War Amendments." Gregory v. Ashcroft, 501 U.S. 452, 468, 111 S.Ct. 2395, 2405, 115 L.Ed.2d 410 (1991). On its face, RFRA does not intrude upon state sovereignty any more than the myriad other federal statutes that preempt state regulation. That said, we do not suggest that the Tenth Amendment plays no role. Gregory itself recognized that the Court "has never held that the Amendment may be applied in complete disregard for a State's constitutional powers." Id. To the contrary, "the Fourteenth Amendment does not override all principles of federalism." Id. at 469, 111 S.Ct. at 2405. • Indeed, the Court in Gregory refused to construe a congressional act to reach state governmental functions in the absence of a clear statement from Congress that it intended to do so. Id. at 470, 111 S.Ct. at 2406. Such questions of RFRA's applicability to particular areas of state regulation, however, are best left for individual, case-by- case resolution. It is enough for us to conclude that RFRA on its face does not violate the Tenth Amendment. V. We hold that Section 5 of the Fourteenth Amendment empowered Congress to enact the Religious Freedom Restoration Act. We further hold that RFRA does not usurp the judiciary's power to interpret the Constitution. Accordingly, we REVERSE the order of the district court holding the Religious Freedom Restoration Act unconstitutional on *1365 its face and REMAND for further proceedings not Copr.®West 1997 No claim to orig.U.S. govt. works 411 4 sil / . / ga# ag-a3q snsplN g-5* "sr-9:11'3