Religious Group Autonomy: Further Reflections about what is at Stake

Abstract

Does the First Amendment afford religious organizations special protection when government regulation interferes with their internal activities or affairs? Nearly all scholars would agree that relief is appropriate where government regulation is designed to impede a group's religious mission or otherwise unfairly discriminate against religion, but such cases are rare. The more difficult cases involve neutral, generally applicable laws that are not intended to burden the internal operations of religious groups but, nevertheless, have that effect. Does the First Amendment provide any relief in such situations and, if so, what is the justification for this protection?InEmployment Division v. Smith, the Supreme Court held that the First Amendment does not excuse individuals from compliance with neutral, generally applicable laws that burden religious practice. Legislatures may choose to grant relief in such situations, but if they choose not to do so, the First Amendment does not require any special accommodations or exemptions. However,Smithdid not address protections for religious groups, and, indeed, the Court has never directly addressed the scope of First Amendment protections where neutral government regulation interferes with the internal operations of religious organizations. Scholars who have debated this question have advocated a variety of positions.