Volume XXII

Religious Exemptions

by Edited by Alexandra Brown, Alexandra Himonas, Savanna Jones, Kalli Joslin, Carter Man, Casey McClaren

The First Amendment protects the free exercise of religion, so when religious beliefs conflict with laws prohibiting discrimination based on sex or sexual orientation, courts must balance freedom of religion, association, and speech, with the state’s interest in a more equal society. Organizations are sometimes exempted from anti-discrimination laws on religious grounds, allowing them to fire, exclude, or deny services to women or members of the LGBT community. In 1993, Congress responded to the Supreme Court’s refusal to strike down a law prohibiting the use of Peyote, even for religious purposes, by passing the Religious Freedom Restoration Act (RFRA).1 RFRA created a two-prong balancing test: the government must not substantially burden a person’s exercise of religion unless 1) in furtherance of a compelling government interest and 2) it uses the least restrictive means of furthering that interest.2 RFRA does not discuss the ministerial exception, which remains good law, and has been expanded by a 2020 decision in Our Lady of Guadalupe School v. Morrisey-Berru. 3 The exception “precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”4

Part II of this article traces the development of religious exemptions through four major cases involving public accommodations laws. Part III reviews the ministerial exception. Part IV explores cases involving private businesses and religions exemptions. Part V and VI discusses religious exemptions to providing healthcare and housing, respectively. Finally, Part VII concludes.

Keep Reading Religious Exemptions 

1. “The Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.” Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (1994).

2. Id.

3. Our Lady of Guadalupe Sch. v. Morrisey-Berru, 140 S. Ct. 2049 (2020).

4. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 (2012).