In general, a plaintiff will have stated a free exercise claim if: (1) "the claimant's proffered belief [is] sincerely held"; and (2) "the claim [is] rooted in religious belief, not in purely secular philosophical concerns." Malik v. Brown, 16 F.3d 330, 333 (9th Cir.1994) (internal quotation marks and citation omitted). Although prisoners enjoy First Amendment protection, their rights under the Free Exercise Clause are limited by "institutional objectives and by the loss of freedom concomitant with incarceration." Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir.2013). To that end, a prisoner's Free Exercise Clause claim will fail if the State shows that the challenged action is "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see Ashelman v. Wawrzaszek, 111 F.3d 674, 677-78 (9th Cir.1997). Walker v. Beard, 789 F. 3d 1125 (9th Cir. 2015).
The Free Exercise Clause states that "Congress shall make no law ... prohibiting the free exercise" of religion. U.S. Const. amend. 1, cl. 1. "[M]ost rights secured by the Constitution are protected only against infringement by governments," so that "the conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the State." Lugar, 457 U.S. at 936-37, 102 S.Ct. 2744 (internal citation omitted). However, not all rights require the government be a party in the case. The Court's practice makes clear that free exercise is one of those rights. For example, in McDaniel v. Paty, Paty sought election to the state constitutional convention and filed a declaratory judgment action in state court that her opponent, McDaniel, was prohibited from running since he was an ordained minister and a Tennessee statute barred "minister[s] of the Gospel, or priest[s] of any denomination whatever" from serving. 435 U.S. 618, 621 & n. 1, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978). McDaniel countered that the statute violated his right to free exercise. See id. at 620-21, 98 S.Ct. 1322. Both parties were clearly private citizens, and yet the Court implicitly recognized that the Clause was applicable when it found a free exercise violation. Id. at 629, 98 S.Ct. 1322. The Court has also been clear that other clauses of the First Amendment are applicable in entirely private civil suits, and we see no reasonable distinction between those and the Free Exercise Clause. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ("It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised."); see also Phila. Newspapers v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (noting that the text of the First Amendment "by its terms applies only to governmental action" but is nonetheless applicable in civil suits between private parties). So, even though we find that the Committee is not a governmental actor, that does not end our First Amendment analysis. Listecki v. Comm. of Unsecured Creditors, 780 F. 3d 731 (7th Cir. 2015).
Under the Free Exercise Clause, "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 2761, 189 L.Ed.2d 675 (2014) (quoting City of Boerne v. Flores, 521 U.S. 507, 514, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)); see also Employment Div. v. Smith, 494 U.S. 872, 879-80, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). A law is not neutral if it discriminates on its face by "refer[ring] to a religious practice without a secular meaning discernible from the language or context." Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Moreover, facial neutrality is not determinative since "[o]fficial action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." Id. at 534, 113 S.Ct. 2217. We also look at whether the object of the law is a neutral one, examining both direct and circumstantial evidence. Id. at 540, 113 S.Ct. 2217. In terms of general application, all laws are selective to some extent, but "categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice." Id. at 542, 113 S.Ct. 2217. The Free Exercise Clause, at its heart, "protects religious observers against unequal treatment;" in other words, the government "cannot in a selective manner impose burdens only on conduct motivated by religious belief." Id. at 542-43, 113 S.Ct. 2217 (alterations and quotations omitted). If a law is not of general and neutral applicability, we ask whether the law is justified by a compelling governmental interest that is narrowly tailored to advance that interest. Id. at 531-32, 113 S.Ct. 2217. Listecki v. Comm. of Unsecured Creditors, ibid.
"[A] 'substantial burden' must place more than an inconvenience on religious exercise." Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). [Footnote omitted.] A law is substantially burdensome when it places "significant pressure" on an adherent to act contrary to her religious beliefs, meaning that it "directly coerces the religious adherent to conform . . . her behavior." Id. Thus, the government imposes a substantial burden when it places "pressure that tends to force adherents to forego religious precepts." Id. Eternal Word Television Network, Inc. v. Health & Human Services Secretary, (11th Cir. 2016).
This inquiry involves both subjective and objective dimensions. Hobby Lobby made clear that there is a subjective aspect to this inquiry: courts must accept a religious adherent's assertion that his religious beliefs require him to take or abstain from taking a specified action. See 134 S. Ct. at 2779. But the substantial burden analysis does not end there. [ . . .] [T]he question of substantial burden also presents "a question of law for courts to decide." Priests for Life I, 772 F.3d at 247. Eternal Word Television Network, Inc. v. Health & Human Services Secretary, ibid.
The objective inquiry requires courts to consider whether the government actually "puts" the religious adherent to the "choice" of incurring a "serious" penalty or "engag[ing] in conduct that seriously violates [his] religious beliefs." Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (second alteration in original and internal quotation marks omitted). Put another way, courts must determine what the challenged law actually requires of the plaintiff. For example, in Holt, a Muslim inmate asserted that prison grooming policy substantially burdened his religious exercise because it prohibited him from growing a beard, which his religion required. The Supreme Court explained that because the "grooming policy requires petitioner to shave his beard," the policy "put[]" him to the choice of violating his religious beliefs or facing serious disciplinary action. Id. In Holt, as in many RFRA [The Religious Freedom Restoration Act of 1993] cases, this inquiry was straightforward because there was no dispute about what the government's policy objectively required of the religious adherent. But when there is a dispute about what a law or governmental policy objectively requires, it is for the courts to construe the law or policy. Eternal Word Television Network, Inc. v. Health & Human Services Secretary, ibid.
THIS CASEBOOK contains a selection of 135 U. S. Court of Appeals decisions that analyze, discuss and interpret the First Amendment's Free Exercise Clause. The selection of decisions spans from 2002 to the date of publication.