Laws That Facially Discriminate Against Religious Practices

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The Supreme Court has recognized that the Free Exercise Clause protects religious observers against unequal treatment and subjects laws that target the religious for special disability based on their religious status to strict scrutiny.1 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring ministers of the Gospel, or priests of any denomination whatever from serving as a delegate to a state constitutional convention.2 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one's religion on the surrender of the right to seek office as a delegate.3

Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding for the resurfacing of playgrounds because of the church's religious affiliation.4 Specifically, Chief Justice Roberts, on behalf of the Court,5 noted that Missouri's policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the most exacting scrutiny.6

In so holding, the Court rejected the State of Missouri's argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.7

Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, as well as outright prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.8 Moreover, the Court held that Missouri's policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.9 As a result, the Court held that Missouri's policy violated the Free Exercise Clause.10 A year after Trinity Lutheran, the Court suggested that it is equally unconstitutional for hostility to religion to play a role in the government's decisions about how to apply its laws.11

Supreme Court Holds Bakery Can Refuse to Make Cake for Same-Sex Wedding

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who had, in the view of the state, violated those laws by refusing to make a cake for a same-sex wedding.12 The Court held that the state had violated the Free Exercise Clause because the Colorado Civil Rights Commission had not considered the baker's case with the religious neutrality that the Constitution requires.13

As a general rule, the Court announced that the delicate question of when the free exercise of the baker's religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.14

The Court highlighted two aspects of the state proceedings that had, in its view, demonstrated impermissible religious hostility: first, certain statements by some of the Commissioners during the proceedings before the Commission15; and second, the difference in treatment between the petitioner's case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.16


1.    See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 506 U.S. 520, 533, 542 (1993).

2.    435 U.S. 618, 620 (1978).

3.    See 435 U.S. at 626 (plurality opinion). A plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens noted that the absolute prohibition on the government regulating religious beliefs (as established by Torasco v. Watkins, 367 U.S. 488 (1961)) was inapplicable to the case because the Tennessee disqualification was a prohibition based on religious status, not belief. See id. at 626–27. Nonetheless, the plurality opinion concluded that the (1)Tennessee law was governed by the balancing test established under Sherbert v. Verner, 374 U.S. 398, 406 (1963), and (2) the law's regulation of religious status could not be justified based on the state's outmoded views of the dangers of clergy participation in the political process. Id. at 627–28.

Justice Brennan, joined by Justice Marshall, relying on Torasco, argued that the challenged provision, by establishing as a condition of office the willingness to eschew certain protected religious practices, violated the Free Exercise Clause. Id. at 632 (Brennan, J., concurring). Justice Brennan's concurrence also maintained that the exclusion created by the Tennessee law could violate the Establishment Clause. Id. at 636. In a separate opinion, Justice Stewart noted his agreement with Justice Brennan's conclusion that Torasco controlled the case. Id. at 642 (Stewart, J., concurring). Rather than relying on the Free Exercise Clause to invalidate the Tennessee law, Justice White's concurrence suggested that the law was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Id. at 643 (White, J., concurring).

4.    See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. No. 15-577, slip op. at 5 n.1 (2017).

5.    Three Justices (Kennedy, Alito, and Kagan) joined Chief Justice Roberts' entire opinion, while Justices Thomas and Gorsuch joined in all but a single footnote of the decision. The footnote that Justices Thomas and Gorsuch declined to join was a footnote that disclaimed that the instant case was examining express discrimination based on religious identity with respect to playground resurfacing and did not address religious uses of funding or other forms of discrimination. Id. at 18 n.3.

6.    Id. at 10.

7.    Id.

8.    Id. at 10–11. As a result, the Court characterized the church's injury not so much as being the denial of a grant itself, but rather the refusal to allow the Church . . . to compete with secular organizations for a grant. Id. at 11.

9.    Id. at 14. Both parties agreed, and the Court accepted, that the Establishment Clause did not prevent Missouri from including the church in the state's grant program. Id. at 6.

10. Id. at 14–15.

11. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 584 U.S. No. 16-111, slip op. at 18 (2018).

12. Id. at 3.

13. Id.

14. Id. at 3.

15. Id. at 13–14.

16. Id. at 14. See also id. at 16 (A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness.).


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