Order Code RL34708
Religious Exemptions for
Mandatory Healthcare Programs:
A Legal Analysis
October 16, 2008
Cynthia Brougher
Legislative Attorney
American Law Division

Religious Exemptions for
Mandatory Healthcare Programs: A Legal Analysis
Summary
In 2008, Congress considered issues relating to health insurance for uninsured
Americans, which has led to policy discussions of mandatory healthcare coverage.
Additionally, the threat of bioterrorism has caused some to consider the possibility
of introducing vaccination programs to prevent an outbreak of serious illnesses.
Programs like healthcare coverage and vaccinations have the potential to violate
certain religious beliefs and therefore may conflict with the First Amendment. In the
continuing debate over issues for which mandatory healthcare programs might be
solutions, questions have been raised about the constitutional issues relating to
exemptions for healthcare programs.
For the purposes of this report, mandatory healthcare programs are those which
require individuals to take some action relating to a healthcare policy objective. A
variety of mandatory healthcare programs currently exists at the federal and state
levels. Some programs are medical programs that require individuals to participate
in a medical program, while some programs are financial programs that require
individuals to pay for program costs. For example, all 50 states and the District of
Columbia require children to be vaccinated for certain illnesses and diseases before
entering school. At the federal level, the tax system requires individuals to pay taxes
that fund Medicare to provide healthcare to elderly citizens. In some instances,
mandatory healthcare programs include exemptions that allow qualified persons to
opt out of the required action. Specifically, religious exemptions have been provided
in a variety of mandatory healthcare programs, including state immunization laws
and Medicare taxes. These religious exemptions permit individuals who object to the
program based on religious beliefs to avoid compromising their religious beliefs.
This report will discuss the legal issues that arise in the context of religious
exemptions for mandatory healthcare programs. It will discuss constitutional and
statutory provisions relating to religious protection and how such laws have been
applied in the medical context. The report will also briefly address examples of
healthcare programs that have included religious exemptions. Finally, the report will
analyze whether the U.S. Constitution requires religious exemptions for mandatory
healthcare programs and whether, if not required, the Constitution allows religious
exemptions for such programs.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Freedom of Religion in a Medical Context . . . . . . . . . . . . . . . . . . . . . . . . . . 2
General Constitutional and Statutory Protections of
Religious Exercise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Specific Free Exercise Rights Relating to Medical Treatment . . . . . . . 3
Examples of Religious Exemptions for Healthcare Programs . . . . . . . . . . . . 4
State Mandatory Vaccination Programs . . . . . . . . . . . . . . . . . . . . . . . . . 4
Medicare Revenue Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Massachusetts Comprehensive Healthcare Program . . . . . . . . . . . . . . . 5
Constitutional Analysis of Religious Exemptions in
Mandatory Healthcare Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Does the Constitution require a religious exemption for
mandatory healthcare programs? . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Does the Constitution allow a religious exemption for
mandatory healthcare programs? . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Religious Exemptions for
Mandatory Healthcare Programs:
A Legal Analysis
Introduction
In 2008, Congress considered issues relating to the health insurance coverage
for uninsured Americans, which has led to policy discussions of mandatory
healthcare coverage. Additionally, the threat of bioterrorism has caused some to
consider the possibility of introducing vaccination programs to prevent an outbreak
of serious illness. Programs like healthcare coverage and vaccinations have the
potential to violate certain religious beliefs, which may conflict with the First
Amendment. In the continuing debate over issues for which mandatory healthcare
programs might be solutions, questions have been raised about the constitutional
issues relating to exemptions for healthcare programs.
For the purposes of this report, mandatory healthcare programs are those which
require individuals to take some action relating to a healthcare policy objective. A
variety of mandatory healthcare programs currently exists at the federal and state
levels. Some programs are medical programs that require individuals to participate
in a program, while some programs are financial programs that require individuals
to pay for program costs. For example, all 50 states and the District of Columbia
require children to be vaccinated for certain illnesses and diseases before entering
school. The federal tax system requires individuals to pay taxes that fund Medicare
to provide healthcare to elderly citizens. In some instances, mandatory healthcare
programs include exemptions which allow qualified persons to opt out of the
required action. Specifically, religious exemptions have been provided in a variety
of mandatory healthcare programs, including state immunization laws and Medicare
taxes. These religious exemptions permit individuals who object to the program
based on religious beliefs to avoid compromising their religious beliefs by not
participating in the program.
This report will discuss the legal issues that arise in the context of religious
exemptions for mandatory healthcare programs. It will discuss constitutional and
statutory provisions relating to religious protection and how such laws have been
applied in the medical context. The report will also briefly address examples of
healthcare programs that have included religious exemptions. Finally, the report will
analyze whether the U.S. Constitution requires religious exemptions for mandatory
healthcare programs and whether, if not required, the Constitution allows religious
exemptions for such programs.

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Freedom of Religion in a Medical Context
General Constitutional and Statutory Protections of Religious
Exercise. The First Amendment of the U.S. Constitution provides that “Congress
shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof....”1 These clauses are known respectively as the establishment
clause and the free exercise clause. Although the U.S. Supreme Court had
historically applied a heightened standard of review to government actions that
allegedly interfered with a person’s free exercise of religion,2 the Court reinterpreted
that standard in 1990. Since then, the Court has held that the free exercise clause
never “relieve[s] an individual of the obligation to comply with a valid and neutral
law of general applicability.”3 Under this interpretation, the constitutional baseline
of protection was lowered, meaning that laws that do not specifically target religion
or do not allow for individualized assessments are not subject to heightened review
under the Constitution.
Congress responded to the Court’s holding by enacting the Religious Freedom
Restoration Act (RFRA), which statutorily reinstated the standard of protection of
heightened scrutiny for government actions interfering with a person’s free exercise
of religion.4 When RFRA was originally enacted, it applied to federal, state, and
local government actions, but the Supreme Court later ruled that its application to
state and local governments was unconstitutional under principles of federalism.5
Thus, the current standard of protection for federal government actions that interfere
with a person’s free exercise of religion is the heightened standard of review that is
often referred to as strict scrutiny. Under strict scrutiny analysis, a statute or
regulation of general applicability may lawfully burden a person’s exercise of
religion only if it (1) furthers a compelling governmental interest and (2) uses the
least restrictive means to further that interest.6
1 U.S. Const. Amend. I. For discussion of the constitutional and statutory standards of
review used in relation to the free exercise clause, see CRS Report RS22833: The Law of
Church and State: General Principles and Current Interpretations
, by Cynthia Brougher.
2 See Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).
3 Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990).
4 P.L. 103-141, 103d Cong., 1st Sess. (November 16, 1993); 42 U.S.C. § 2000bb et seq.
5 City of Boerne v. Flores, 521 U.S. 407 (1997).
6 42 U.S.C. § 2000bb-1(b). In some instances, RFRA may be preempted by another federal
law. See S.Rept. 103-111, at 12-13 (1993) (stating that “nothing in this act shall be
construed as affecting religious accommodation under title VII of the Civil Rights Act of
1964”).

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Specific Free Exercise Rights Relating to Medical Treatment. Some
religious doctrines forbid medical treatment or specific medical procedures.7
Followers of these religions believe that receiving treatment would violate their First
Amendment right to exercise their religion freely. This conflict raises the issue
known as forced care — whether patients can be forced to receive medical care to
which they otherwise would object on religious grounds. Legal issues of forced care
typically arise in situations where patients lack the capacity to make an informed
decision about whether or not to receive care. These situations often involve patients
facing death if they do not receive treatment.8 For example, because some religions
have specific teachings regarding matters of life and death, a patient may object to
life-saving treatment on religious grounds. However, if that patient lacks the capacity
to provide informed consent at the time that care would be provided, a doctor or
hospital may not be willing to withhold care based on religious affiliation alone,
without an informed discussion with the patient.
Federal and state courts have addressed these issues of forced care for patients
with religious objections to medical care. Caselaw indicates a growing willingness
of courts over the past several decades to recognize patients’ religious objections to
medical care, including life-saving treatments. In the 1960s, a federal court
authorized a hospital to treat a patient with what would be an objectionable procedure
under her religion.9 The patient faced death without a blood transfusion, a procedure
that her religion prohibited, but due to emergency circumstances, the hospital staff
was unable to determine if the patient was making an informed decision when she
refused the treatment. By the 1980s, courts were giving greater weight to patients’
choices regarding care.10 In later cases, courts concluded that competent adults with
religious objections to procedures cannot be forced to receive care, with one court
noting that courts should give “great deference to the individual’s right to make
decisions vitally affecting his private life according to his own conscience.”11
7 For example, two religious affiliations that often are involved in these types of cases are
Jehovah’s Witnesses and Christian Scientists. Jehovah’s Witnesses believe that blood
transfusions are prohibited by religious teachings. Jehovah’s Witnesses, 7 Encyclopedia of
Religion 4820 (Lindsay Jones, ed., 2nd ed.) (2005). Christian Scientists believe in the use
of prayer, rather than medicine, to treat ailments. Christian Science, 1 Encyclopedia of
Politics and Religion 141 (Robert Wuthnow, ed., 2nd ed.) (2006).
8 The so-called “right to die” is beyond the scope of this report. For legal analysis on
individuals’ rights to decide the manner of death, see CRS Report 97-244A, The “Right to
Die”: Constitutional and Statutory Analysis
, by Kenneth R. Thomas.
9 Application of the President and Directors of Georgetown College, 331 F.2d 1000 (D.C.
Cir. 1964).
10 See, e.g., Bartling v. Superior Court, 163 Cal.App.3d 186 (Cal. Ct. App. 1984) (“patient’s
self-determination as to his own medical treatment ... must be paramount to the interests of
the patient’s hospital and doctors”).
11 Public Health Trust of Dade County v. Wons, 541 So.2d 96 (Fla. 1989); see also Norwood
Hospital v. Munoz, 409 Mass. 116 (1991).

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Examples of Religious Exemptions for Healthcare Programs
State Mandatory Vaccination Programs. As a matter of public health,
all 50 states and the District of Columbia have enacted laws requiring vaccination,
particularly in the context of school immunization laws.12 These laws have been
enacted under a rationale of preventing the spread of communicable and debilitating
diseases. All but two states (Mississippi and West Virginia) have enacted religious
exemptions for these vaccination programs. These exemptions allow students who
have religious objections to the vaccinations, but would otherwise be required to be
vaccinated, not to comply with the vaccination requirements.
These exemptions have raised constitutional questions related to free exercise
rights, with many courts holding that exemptions are not required under the free
exercise clause. The U.S. Supreme Court has not ruled directly on the
constitutionality of religious exemptions for these vaccination programs. However,
the Court has addressed the conflict between public health policies and religious
beliefs. Faced with such a conflict between the government’s interest in protecting
public health and individuals’ interest in being free to exercise their religious beliefs,
the Court has held in favor of public health concerns.13 The implication that public
health concerns outweigh the right to exercise one’s religion without interference has
led some state supreme courts to hold that mandatory vaccination programs are not
a violation of religious freedom.14
The exemptions have also been challenged under the establishment clause and
equal protection clause. Allowing an exemption based on religion might appear to
be endorsing a religion in violation of the establishment clause. Exemptions that
allow certain individuals to claim religious objections to a process required for others
also may give the appearance of distinct treatment for those individuals who have
religious objections in violation of equal protection doctrine. Under the First
Amendment, a law cannot favor some individuals based on their religious beliefs.15
Allowing an exemption based on religion to a generally required practice may be
construed as special treatment for religious adherents, particularly in cases in which
the legal provisions limit the scope of the exemption to religious beliefs only (that is,
excluding philosophical beliefs) or to members of specific religions only.16 Because
these exemptions seem to make a benefit available to religious adherents, but not to
individuals who are not identified with that group, the exemptions also raise
12 “State Vaccination Requirements,” Centers for Disease Control and Prevention, available
at
[http://www.cdc.gov/vaccines/vac-gen/laws/state-reqs.htm]. For more information on
vaccination laws, see CRS Report RS21414, Mandatory Vaccinations: Precedent and
Current Laws
, by Kathleen S. Swendiman.
13 Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944).
14 See, e.g., Cude v. State, 237 Ark. 927 (1964).
15 See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring).
16 See, e.g., Boone v. Boozman, 217 F.Supp.2d 938 (E.D. Ark. 2002).

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questions of equal protection under the Fifth or Fourteenth Amendment.17 The
Supreme Court of Mississippi, one of the states without a religious exemption, has
held that requiring certain individuals to be vaccinated while still exposing them to
exempted individuals is unconstitutional.18
Medicare Revenue Programs. The U.S. tax code includes several
provisions that provide religious exceptions to certain revenue programs relating to
healthcare. Specifically, the income “received for services performed by a member
of a religious order in the exercise of duties required by the order”19 is excepted from
the Federal Insurance Contributions Act (FICA) tax, which funds Social Security and
Medicare.20 Also, ministers, members of religious orders, Christian Science
practitioners, and members of religious faiths who oppose acceptance of insurance
benefits, including medical care, are generally exempt from self-employment taxes.21
The U.S. Supreme Court has held that the free exercise clause does not prohibit
mandatory payment of social security taxes even when the payment of such taxes or
the receipt of the related benefits would violate the taxpayer’s religion. In United
States v. Lee
, a self-employed Amish man claimed that paying FICA taxes violated
his belief in an obligation to provide similar assistance for church members.22 Lee
argued that his religion prohibited him from accepting such benefits from the state
or paying taxes to fund the social security system. Although the Court recognized
a burden on religious belief, it held that the burden was justified by the governmental
interest in “maintaining a sound tax system,” and that accommodation of all of the
diverse religious beliefs relating to taxation would pose too great a difficulty to
maintain a functional tax system.23
Massachusetts Comprehensive Healthcare Program. In April 2006,
Massachusetts enacted a comprehensive healthcare program that provides universal
coverage for the state’s residents.24 The law requires employers to provide health
insurance for employees and requires individuals to purchase insurance (through
employers or individually). The state provides alternatives for employers and
employees to facilitate the process of universal coverage. For example, employers
that do not provide health insurance may instead pay into the state’s uninsured care
fund, and individuals who cannot afford coverage may be subsidized by the state.
The law’s individual mandate includes some exemptions (including a religious
17 The Fifth Amendment applies to federal government actions, while the Fourteenth
Amendment applies to the states.
18 Brown v. Stone, 376 So.2d 218 (Sup. Ct. Miss. 1979).
19 Rev. Proc. 91-20, 1991-1 C.B. 524.
20 26 U.S.C. § 3121(b)(8).
21 See 26 U.S.C. § 1402(e) and (g).
22 455 U.S. 252 (1982).
23 Id. at 259-60.
24 An Act Providing Access to Affordable, Quality, Accountable Health Care, MASS. GEN.
LAWS ch. 58, § 12.

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exemption), which allow individuals who meet certain qualifications effectively to
opt out of the mandate to acquire insurance coverage.
To qualify for the religious exemption to the individual coverage requirement,
an individual must file documentation with his or her tax return. The individual must
state in the document “that his sincerely held religious beliefs are the basis of his
refusal to obtain and maintain creditable coverage during the 12 months of the
taxable year for which the return was filed.”25 If the individual received medical care
during the year in which he claimed an exemption, he is responsible for paying for
the care and is subject to penalty assessed by the commissioner of revenue.26
Constitutional Analysis of Religious Exemptions
in Mandatory Healthcare Programs

Religious exemption provisions in mandatory healthcare programs often raise
constitutional issues of religious freedom and equal protection. Any religious
exemption must meet the requirements of the First Amendment’s religion clauses,
which serve as guarantees that individuals will neither be required to act under a
prescribed religious belief (the establishment clause) nor be prohibited from acting
under their chosen religious beliefs (the free exercise clause). Religious exemptions
also may raise equal protection issues under the Fifth Amendment. Thus,
constitutional analysis of religious exemptions in mandatory healthcare programs
must address two questions: (1) whether the Constitution requires a religious
exemption to ensure the free exercise rights of citizens who may have religious
objections to a mandatory program, and (2) if a religious exemption is not
constitutionally required, but included nonetheless, whether it would be
constitutional under the First and Fifth Amendments.
Does the Constitution require a religious exemption for mandatory
healthcare programs? Any congressional enactment regarding mandatory
healthcare programs would be subject to constitutional rules and would qualify for
review under RFRA as a federal action that potentially burdens religious exercise.
Thus, any legislation that would mandate a healthcare program would be subject to
strict scrutiny analysis.
Generally, it does not appear that the U.S. Constitution requires a religious
exemption with respect to legislation that creates mandatory healthcare programs, but
the details of that legislation may impact the analysis. Under strict scrutiny, an
exemption would be required only if the government does not have a compelling
state interest that is achieved by the least restrictive means possible. The U.S.
Supreme Court and other lower courts generally have allowed federal mandates that
relate to public health, but nonetheless interfere with religious beliefs, to continue
without exemptions.27 In addressing the issue of religious objections to generally
25 MASS. GEN. LAWS ch. 111M, § 3.
26 Id.
27 See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); Cude v. State, 237 Ark. 927
(continued...)

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applicable public health requirements, the Supreme Court has upheld legislative acts
that promote public policies relating to public health as a valid exercise of protecting
the welfare of the people.28 The government’s interest in protecting public health has
been held to outweigh individuals’ religious interests. According to the Court, “the
right to practice religion freely does not include liberty to expose the community or
the child to communicable disease or the latter to ill health or death.”29 The Court’s
decision to hold the interest of public health above the interest of individuals to freely
exercise their religious belief was made before the Court applied strict scrutiny to
religious exercise cases, but nonetheless provides an indication of the nature of the
government’s interest in public health regulation. The Court has also held that the
government’s interest in tax programs used to fund healthcare programs outweighs
individuals’ interests in exercising their religion freely.30 The Court’s treatment of
public health as an interest paramount to individual religious practice appears to open
the door to recognition of public health as a compelling state interest under strict
scrutiny analysis.
A mere connection to public health is not necessarily enough to find a
compelling interest. Some courts have addressed the issues of religious exemptions
in the context of certain mandatory healthcare programs, but the nature of other
programs may lead to different outcomes. Laws that require an affirmative
participation in a medical procedure (e.g., vaccination) differ from laws that require
a more indirect participation in medical programs (e.g., funding for insurance
programs). One factor that might affect the outcome of the constitutional analysis
is the role the federal government plays in the objective of the program. Public health
has historically been a matter of state regulation.31 The vaccination laws were enacted
under states’ authority to regulate the public health of their citizens. The federal
government, however, does have some authority to act in the realm of public health.32
Also, the actual connection to public health might affect whether the government’s
interest is compelling. For example, although courts have recognized a compelling
state interest in statutes preventing the spread of disease, it may be more difficult to
find a compelling state interest in requiring individuals to have health insurance.
Thus, the government’s interest may vary depending on the specific requirements
imposed by the legislation.
If the legislation does further a compelling governmental interest, it must also
use the least restrictive means. That is, the government must make the burden as
27 (...continued)
(1964).
28 Jacobson v. Massachusetts, 197 U.S. 11 (1905) (seminal case regarding state’s authority
to institute a mandatory vaccination program as a part of its police powers).
29 Prince, 321 U.S. at 166-67.
30 Lee, 455 U.S. at 260-61.
31 See Gibbons v. Ogden, 22 U.S. 1 (1824) (addressing divisions of federal and state power).
32 Federal jurisdiction to regulate public health derives from the Commerce Clause. U.S.
CONST. art. I, § 8. The federal government has had a significant role in some public health
matters, including food safety agencies, biomedical research programs, and health and safety
regulatory programs.

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narrow as possible. This test may be met by providing alternative means of
compliance with the legislation. In the context of the vaccination laws, for example,
the government might allow individuals with religious objections to vaccination
requirements to be quarantined or isolated to avoid infecting others, rather than
receive the vaccination. In the context of universal healthcare insurance, the
government might allow an exemption for individuals with religious objections and
also allow individuals who objected without qualifying religious reasons to pay into
a state fund rather than receive insurance coverage. These types of accommodations
may be deemed the least restrictive means of advancing the government’s interest
because they satisfy both the individual’s free exercise of religion and the
government’s interest in protecting public health. There may be other
accommodations that would satisfy the requirement of tailoring the legislation
narrowly to meet strict scrutiny requirements.
Thus, when determining whether a mandatory healthcare program would require
a religious exemption, two factors are critical to the outcome of the analysis. First,
the constitutionality would depend on the nature of the mandatory healthcare
program, e.g., whether it is a required medical procedure or a required payment for
an insurance program. Second, the constitutionality would depend on the structure
of the program, e.g., whether the program provides the required participants options
with which to comply in order to meet the program objectives. These factors would
affect the extent of the burden placed on an individual’s religious exercise and
significantly impact the strict scrutiny analysis.
Does the Constitution allow a religious exemption for mandatory
healthcare programs? Because legislation that mandates participating in
healthcare programs may conflict with religious beliefs, Congress may choose to
include an exemption for relevant religious objections even if it is not required. The
exemption would provide an alternative for certain people based on their religious
belief that would not be available to other people who do not share that religious
belief. Thus, some individuals may claim that the exemption violates the
establishment clause (by providing a benefit to groups based on religion) and the
equal protection clause (by providing for disparate treatment of separate groups).
The establishment clause prohibits preferential treatment of one religion over
another or preferential treatment of religion generally over nonreligion.33 Providing
an exemption based on religion may be construed as favoring a particular religion or
religion generally because only individuals with religious affiliation would be eligible
for the exemption. However, the mere fact that a law addresses religion does not
automatically make that law unconstitutional. Under establishment clause analysis,
a government action must meet a three-part test known as the Lemon test. To meet
the Lemon test, a law must (1) have a secular purpose, (2) have a primary effect that
neither advances nor inhibits religion, and (3) not lead to excessive entanglement
with religion.34 The Supreme Court has upheld religious exemptions for government
33 Epperson v. Arksansas, 393 U.S. 97, 103-04 (1968).
34 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). While the first two prongs of the test
are self-explanatory, the third prong prohibits “an intimate and continuing relationship”
(continued...)

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programs, where the exemptions were enacted to prevent government interference
with religious exercise.35
Like the analysis under the free exercise clause, the constitutionality of a
religious exemption under the Lemon test would depend on the language of the
exemption. Exemptions that are specifically available only to certain religions have
been construed in some cases as a violation of the establishment clause.36 However,
providing an exemption that does not specify certain religions as eligible may not
pass the Lemon test either. A generally available religious exemption may be
construed as a violation of the establishment clause because it provides preferential
treatment to individuals with religious beliefs, but does not provide individuals who
might object on philosophical grounds to claim the exemption.37 Thus, there does not
appear to be a clear consensus regarding the constitutionality of religious exemptions
under the establishment clause.
The concerns of preferential treatment for certain groups of individuals that lead
to establishment clause questions also raise questions under the equal protection
clause. The equal protection clause prevents the government from treating some
groups of individuals differently than other groups of individuals. If the disparate
treatment results from a “suspect classification,” the equal protection clause may be
violated. Typically, courts have recognized groups identified by race, national origin,
or alienage as suspect classifications. In the context of religious exemptions, the
group being treated differently is a group that might be based on religion or might be
based on nonreligion. Often, courts decide cases alleging disparate treatment
involving religion under the First Amendment, rather than equal protection. Thus,
equal protection jurisprudence does not appear to have addressed religious
discrimination to a significant extent. Courts have generally held that laws that treat
groups of individuals differently because of some animus would be suspect
classifications that would be subject to strict scrutiny. Thus, it appears that the
analysis under the doctrine of equal protection likely would not produce a different
outcome than the analysis that would be used under the First Amendment.
34 (...continued)
between government and religion as the result of the law. Id. at 621-22. The continuing
viability of Lemon has been unclear as the Court has raised questions regarding its adequacy
in analyzing these issues. See, e.g.,County of Allegheny v. American Civil Liberties Union,
492 U.S. 573 (1989).
35 The Court in Locke v. Davey, 540 U.S. 712 (2004), recognized that some government
actions that allow free exercise consequently raise questions of establishment, noting that
there was room for “play in the joints” in this intersection of the religion clauses.
36 See Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81, 89-90
(E.D.N.Y. 1987).
37 See McCarthy v. Boozman, 212 F.Supp. 2d 945 (W.D. Ark. 2002).