Reconciling the federal constitutional guarantee of religious free exercise with the collective interests of civil society has long been a difficult problem for First Amendment jurisprudence. For many years, the United States Supreme Court protected claimed religious exercise if it was required by a central religious belief, was substantially burdened by government action, and was not outweighed by a compelling state interest. The last prong of this test, in particular, afforded substantial protection to claimed religious exercise when pitted against state laws. In Employment Division v. Smith, decided little more than a decade ago, the Court abruptly shifted course. Citing the dangers posed to societal norms by claimed religious exemptions, the Court held that the government need only show that a challenged law has no "anti-religious bias," that is, that religious and non-religious individuals and actions are treated equally in intention and effect. If a law is "neutral" in this sense, the fact that it incidentally burdens religious conduct presents no First Amendment problem. The holding in Smith - essentially, that religious exercise has no special rights or immunity from "neutral, generally applicable law[s]" - sits uneasily with another long standing doctrinal fixture, namely, that of "religious-group autonomy." This doctrine, which has developed in a piecemeal fashion over the years, generally holds that religious groups and institutions are exempt from secular state interference in their selection of clergy, internal doctrinal and property disputes, and other matters that affect their internal organization and internal relations. Scholars have attempted to establish why the Smith rule - which cuts far back on the idea of religious-individual autonomy in such cases - does not necessarily have the same impact on the claims of religious groups. In this article, I disagree. Whether Smith's core concern is believed to be the problem of individual, non-review able, legal-definitional power, or the erosion of civil norms, there is no convincing basis for distinguishing individual religious exemptions, struck down in Smith, from aggressive forms religious-group autonomy. Nor is the ideal of individual religious freedom necessarily furthered by the broad immunity of religious groups from civil laws. While religious groups may be places that nurture and sustain individual religious belief, they may also be hostile, bitter places, which wield coercive and oppressive power. The prospect of religious groups with broad, autonomous power poses special dangers, both to dissenting individuals and to the goals of government, which should impel us to view it cautiously. Indeed, our reservations about the supremacy of religious claims should, if anything, be stronger when we consider the claims of religious groups.
Laura S. Underkuffler, Thoughts on ‘Smith’ and Religious-Group Autonomy, 5 Brigham Young University Law Review 1773-1787 (2005)
Available at: https://scholarship.law.duke.edu/faculty_scholarship/1246