Published October 1, 2020
The following article appears as a chapter in the book Religious Liberty and Education: A Case Study of Yeshivas vs. New York, published by Rowman & Littlefield. 
In 1892, the Volozhin yeshiva—widely known as “the mother of all yeshivas”—was forced to shut down. For nearly a hundred years, it had flourished as a center of Torah learning throughout the Lithuanian Jewish world, influencing communities far beyond its namesake Russian town. Closing the school, though, took a matter of weeks: on December 22, 1891, the Russian minister of education published a set of regulations demanding that the school transform its curriculum to conform to government standards. Volozhin’s leadership refused, and the school was shuttered in late January.
This was not the end of Volozhin. Community leaders fought for the right to study and teach as they saw fit, and the school was reopened on a limited basis years later and remained active in some capacity until World War II. Its continued impact on Jewish communities today is a testament not only to the brilliance of Volozhin’s individual scholars, but to the seriousness with which observant Jews engage in a particular tradition of learning—one that many believe is worth sacrificing for.
In recent years, parochial schools run by “Haredi Orthodox Jews,” a term that encompasses a range of observant Jewish groups including certain Hasidic sects, have also faced mandates requiring them to better comply with specific secular education standards. Since 2015, New York authorities on both the state and city levels have attempted to exert greater control over the curricula of yeshivas in a manner reminiscent of the Russian government’s at the turn of the nineteenth century. To understand how best to defend these yeshivas, it is important to understand the particulars of the conflict in question, as well as key court cases involving related issues.
As we will see, there are several legal doctrines that the yeshivas can use to shield themselves against government intrusion, each of which has its own strengths and weaknesses. Given the flaws in each form of defense, we advocate for two legal changes that would provide yeshivas and other parochial schools with more robust and dependable protection.
Smith Significantly Narrows the Scope of the Free Exercise Clause
As described in the introduction to this book, the yeshivas in question have successfully defended themselves on procedural grounds so far. Nevertheless, arguments based on religious liberty might play a greater role in future challenges.
In this and other cases in which religious freedom appears to be at risk, some legal experts and the public may invoke the First Amendment’s Free Exercise Clause, which prevents Congress from making laws “prohibiting the free exercise” of religion. While originally understood as restricting only the federal government, the Supreme Court held in 1940 that the Fourteenth Amendment extended the First Amendment’s prohibition to state and local governments. Understanding key cases dealing with free exercise will be important in understanding the yeshiva controversy.
A useful though unhappy place to begin is Employment Division v. Smith, a 1990 Supreme Court case that upended the preexisting Free Exercise jurisprudence and replaced it with a far less protective regime. Smith involved a challenge brought by two Native Americans who had been fired from their jobs as drug counselors for ingesting the illegal drug peyote as part of a religious ritual. They were denied federal unemployment benefits because they were judged to have been fired due to their illegal conduct.
The counselors took their case to the courts, arguing that they should not have been denied government benefits because the cause of their dismissal—ingesting peyote for religious purposes—was protected by the Free Exercise Clause. Oregon’s supreme court agreed, and ruled that the state’s drug prohibition must contain an exception for religious use.
The Supreme Court reversed this ruling. In an opinion that stunned many in the legal world, Justice Antonin Scalia concluded that the Free Exercise Clause does not shield religiously motivated actions from “neutral and generally applicable” laws. In other words, unless a law singles out religion for disfavored treatment, simply imposing a burden on a religious practice would not render a nondiscriminatory, general law unconstitutional under the Free Exercise Clause.
This effectively transformed the Free Exercise clause into more of an anti-discrimination provision than a broad protection for religious conduct. Scalia asserted that those seeking exemptions from generally applicable legal requirements for religious reasons should seek redress in the political arena rather than the courts.
RFRA Rejuvenates Religious Liberty Protections—But Only for Federal Cases
Following Smith, many advocates of religious liberty sought to do just that. Civil-rights groups and religious organizations saw the ruling as a significant departure from long-standing judicial protections of free-exercise rights. To ameliorate this, a broad coalition of civil-rights organizations, including the ACLU and the Christian Legal Society, lobbied for a bill that would restore the pre-Smith protections. That bill was the federal Religious Freedom Restoration Act (RFRA), which Congress passed in 1993.
Under RFRA, laws that impose a substantial burden upon religious practices are subject to the “strict scrutiny” test, the most stringent form of judicial review. This means that even a neutral, generally applicable law must be overturned if it burdens religious practice, unless the government can demonstrate that the law is the least restrictive way to further a compelling government interest.
Originally, the federal RFRA applied to federal, state, and local governments. That changed, though, with the 1997 Supreme Court case City of Boerne v. Flores. A Catholic archbishop living in Boerne, Texas, sought to expand a church building but was forbidden from doing so because of local historic-preservation rules. The archbishop sued local zoning authorities for violating his rights under RFRA, but the Supreme Court concluded that, due to federalism concerns, the law could apply only to the federal government, and could not override the local ordinance.
Since then, twenty-one states have passed state versions of RFRA to provide their citizens protections similar to those offered by the federal RFRA. These laws protect individuals whose religious practices would be burdened by generally applicable laws in their states or localities, and they are particularly important for minority faiths.
Smith poses unique risks to those groups for two reasons: First, little-known or little-understood rituals among minority faiths are more likely to come into conflict with generally applicable laws. For example, the majority is more likely to innocently burden the observance of little-known Jewish holidays like the Ninth of Av than they are to burden the observance of well-known Christian holidays like Christmas. Second, members of minority faiths are less likely to have the political clout to follow Justice Scalia’s suggestion and obtain political exemptions on a case-by-case basis.
If the federal RFRA still applied to the states, the New York yeshivas would likely have been able to demonstrate that the state’s regulations substantially burdened their religious practice. That would have shifted the burden to New York State to prove that their rules offered the only way to further a compelling government interest. But because the federal RFRA applies only to federal laws, and New York has not passed its own RFRA, its religious citizens are vulnerable.
The Lukumi Exception: A Potential Path to Victory
Several months before the passage of the federal RFRA, the Supreme Court issued another significant ruling interpreting the Free Exercise Clause, in Church of Lukumi Babalu Aye v. City of Hialeah. That case involved Santeria, a Cuban hybrid religion that combines elements of Roman Catholicism with certain traditional African religions, which requires animal sacrifice during various religious rites.
In 1987, members of the Church of Lukumi Babalu Aye, a nonprofit organization established by a Santerian priest, sought to establish a house of worship in Hialeah, Florida. This led to a community uproar and an emergency public session of the city council, during which participants made hostile comments about Santerians. Not long after the meeting, the council released a resolution expressing its “concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and specifically declaring its opposition to “the ritual sacrifices of animals.”
Three months later, the council unanimously adopted ordinances that prohibited possessing an animal for the purpose of ritual sacrifice. They also banned animal sacrifice within city limits and prohibited animal slaughter outside of areas zoned for slaughterhouses. The rules contained a number of exceptions, such as for kosher slaughter or for euthanasia of stray animals.
In response, members of the Church sued the city, alleging a free-exercise violation. On its face, it seemed that this law was constitutionally permissible under Smith because it applied to everyone and did not single out the Santeria faith. Nonetheless, the Court concluded that the city had failed “to meet the Smith standard.” It argued that, unlike the broadly applicable peyote law that incidentally infringed on Native American religious practices, the Hialeah ordinances were specifically crafted to target Santerians.
The Court cited the overtly antagonistic statements made at the public meeting and remarked upon the ordinances’ many exceptions for scientific research, euthanasia, or kosher slaughter that effectively left only Santeria’s rituals subject to the prohibitions. The Court concluded that, though the statute presented itself as generally applicable, upon closer inspection it was found to target Santerians and was therefore subject to strict scrutiny.
While the Court in Lukumi claimed to be merely applying Smith, a close reading indicates that it departed from Smith’s holding, thus creating an exception to the Smith standard. In her dissent from the majority ruling in Smith, Justice Sandra Day O’Connor maintained that “few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.”
To O’Connor and others, Smith was understood as prohibiting only explicit bans on religious practices. So while a generally applicable law banning circumcision for health reasons could be permissible according to the original understanding of Smith, directly banning only Jews from circumcising their children during a religious ritual would not be. Under Lukumi, even a superficially neutral ban on circumcision would be unconstitutional if there was evidence that either the lawmaker’s intent or the law’s enforcement targeted Jews.
Recently, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court reaffirmed and built upon Lukumi. In Masterpiece, the Court reversed the Colorado Civil Rights Commission’s determination that Jack Phillips, a baker, had violated an anti-discrimination law by refusing to create customized cakes for same-sex weddings. In its 2018 ruling, the Court found that the Commission’s determination was invalid because it had made disparaging comments relating to Jack and his faith, and because it enforced the law more harshly against Jack than against secular bakers. While the law was found to be neutral on its face, its enforcement against Phillips was infected with unconstitutional anti-religious animus.
While this is certainly a step in the right direction, it by no means undoes the harm created by Smith. First, it is difficult to prove that an externally neutral law actually targets religion. In both Lukumi and Masterpiece, the plaintiffs had remarkably strong evidence demonstrating anti-religious motives on the part of their opponents. It is likely that at least some lawmakers or regulators with improper anti-religious motives will successfully conceal them in the future. Second, an objectionable law that is nonetheless neutral and generally applicable, like a ban on circumcision, would still be permitted under any of the cases discussed above.
The lessons to be drawn from these cases are clear: state RFRAs provide important protections for religious liberty, and Lukumi provides some protection against laws that demonstrably, even if not explicitly, single out religions. As the yeshiva saga continues to unfold, it is vital to consider both methods of protection.
The yeshivas might be able to make a claim under Lukumi, though it will depend on the facts that they can develop regarding the motivations behind the regulations and the manner in which they are enforced. This might be feasible, as the regulations have been used to target religious schools. In other words, it may be possible to demonstrate that regulations based on the amendment are discriminatory because they have been crafted to target religious practices, and are therefore not generally applicable.
If the yeshivas win on this point, the State would be required to demonstrate that the regulations are necessary to further a compelling government interest.
New York State’s Free Exercise Clause Offers Limited Protection
The New York State constitution provides a third possible shield that the yeshivas can use to defend themselves against future regulations. The state constitution has its own Free Exercise Clause, which provides additional protection from that offered by the federal Constitution: It proclaims that “free exercise and enjoyment of religious profession and worship, without discrimination of preference, shall forever be allowed in this state to all humankind.”
New York does not have to follow Smith when interpreting its own constitution and is free to provide greater protection of religious liberty. Unfortunately, this potential defense suffers from its own deficiencies.
Following Smith, some state courts adopted interpretations similar to Smith, while others rejected that narrow view of religious liberty. New York did not answer this question until 2006, over a decade after Lukumi was decided and the federal RFRA was passed.
In 2002, New York’s legislature passed the Women’s Health and Wellness Act, which mandated that health-insurance coverage include women’s services. Specifically, any plan that covered prescription drugs was required to cover the cost of contraceptive drugs and devices. The act included a four-part definition of “religious employers,” and allowed employers that fell into this category to request an insurance contract that did not cover contraception.
Ten faith-based social-service organizations, including the Catholic Charities of the Diocese of Albany, sued New York State officials, claiming that the Act violated the Free Exercise Clauses of both the federal and New York State Constitutions. None of the employers suing in Catholic Charities of the Diocese of Albany v. Serio met the criteria for the “religious employer” exemption, because they either served or employed many individuals who did not share their faith (the law’s four-part definition of “religious employer” entailed that employers primarily serve and primarily employ individuals who shared the employer’s faith). The employers were therefore required to pay for contraception, which violated their religious principles. The other alternative suggested to them was to circumvent the law by refusing all prescription-drug coverage in their health-insurance plans, but Catholic Charities believed that this would violate their religious obligation to provide employees a just wage. They did not seek to invalidate the law entirely, but simply to be included in the exemption.
In 2006, New York’s Court of Appeals, the highest court in the state, held that the law did not violate the groups’ free-exercise rights under the federal Constitution. It found that the law’s requirement was neutral and generally applicable, and so did not violate the federal Constitution’s Free Exercise Clause according to Smith. Having dispensed with the federal issues, this neatly teed up the question of whether the Court of Appeals would apply Smith’s reasoning to its own Constitution.
At first, the Court of Appeals seemed to move in a positive direction. It rejected Smith as “inflexible” and refused to interpret the New York State Free Exercise Clause that narrowly. The court held that the State Free Exercise Clause would apply to all laws, even those that were neutral and generally applicable. At that point, one might have thought that this meant the state would need to demonstrate that its law was the least burdensome way to further a compelling government interest, as was the case under federal law prior to Smith. Unfortunately, that was not the end of the story.
Just as the court held that the state Free Exercise Clause would apply, it held that the Clause was not a particularly burdensome obstacle for the legislature to overcome. The court rejected the robust free-exercise protections that had existed at the federal level prior to Smith or under RFRA. Instead, the court held that it would “balance” the burden that a law places on a religious adherent against the legislature’s interest in passing the law.
To make matters worse, this “balancing” would not occur on a neutral playing field: the court would grant “substantial deference” to the legislature and require that the religious adherent prove the legislature had acted “unreasonably.” The deck would be stacked against religious plaintiffs, and the court frankly admitted that such plaintiffs would usually lose.
When applying this test, the court predictably found that the State’s interest in fostering equality between the sexes and providing women with better health care outweighed the plaintiffs’ interest in following their faith.
New York’s constitution, unlike the federal one, would apply to the yeshivas’ hypothetical claims. Unfortunately, that means only that a New York court would ask whether the law was “reasonable,” while giving “substantial deference” to the legislature. This is still better than the federal Constitution, which, as it has been interpreted by the Supreme Court, offers no protection against genuinely neutral laws. Despite this relative advantage, New York’s constitution offers a flimsy defense of religious practice. In practice, New York courts are no more hospitable to free-exercise claims than federal courts operating under Smith.
The Promise and Risks of Substantive Due Process
Some have suggested that yeshiva advocates invoke the Fourteenth Amendment’s Due Process Clause, which requires government officials to follow neutral procedures, including providing notice and a fair hearing before depriving a person of life, liberty, or property. The Court, though, has sometimes interpreted this clause to protect certain “substantive” rights rather than simple procedural fairness. In practice, this has meant that the Court has created a set of rights that justices have claimed are essential to life, liberty, and property—sometimes with damaging results.
One such case, Pierce v. Society of Sisters, involved a 1922 Oregon referendum that required all school-age children to attend public schools, with limited exceptions. The amended Compulsory Education Act, which was promoted by Protestant groups and even the Ku Klux Klan, was largely seen as targeting Catholics and other religious minorities, many of whom sent their children to religious private schools.
The Society of Sisters, a Catholic organization that ran several schools in Oregon, sued state officials over the law, arguing that it violated the Contracts Clause and the Due Process Clause of the Fourteenth Amendment. Their case was consolidated with a separate challenge brought by the Hill Military Academy, a secular private school. The case made its way to the Supreme Court, which ruled that the law violated the “liberty of parents and guardians to direct the upbringing and education of children under their control.”
This case is often invoked as a victory for religious liberty: Stephen Carter of Yale Law School, for example, wrote that “what Pierce ultimately represents is the judgment that in order to take religious freedom seriously, we must take the ability of parents to raise their children in their religion seriously.” But while the Society of Sisters argued in its bill of complaint that the “pretended law attempts to control the free exercise and enjoyment of religious opinions and to interfere with the rights of conscience,” it never explicitly invoked the Free Exercise Clause. At
that time, it couldn’t have—the Clause was not incorporated against the states until 1940.
The Supreme Court declined to rule on religious-liberty grounds, despite the fact that both sides invoked religious liberty in their respective arguments (indeed, the Court did not even reference the arguments related to religious liberty).
By articulating a “liberty interest” grounded in the right “of parents and guardians to direct the upbringing and education of children under their control,” the Supreme Court’s ruling signified a step forward for “substantive due process.” While some celebrated the result in this instance, this doctrine gives the Court wide latitude to impose its own values or policy preferences.
There are a number of downsides to relying on substantive due process. First, decisions based on that doctrine are notoriously difficult to predict. Judges applying substantive due process effectively answer the question of what they think the law ought to be rather than what they think the law actually is. This is not a steady foundation upon which to build a defense of religious schools. Perhaps it should be included as one of many defenses, but it is by no means a sturdy, predictable shield.
Perhaps even more troublingly, relying on the sort of substantive due process used in the Court’s Pierce decision can—and has—yielded negative consequences for advocates of religious liberty.
While the immediate results of Pierce seem appealing, as the Court’s ruling preserved the right of parents to send their children to religious private schools, the decision has also been cited in support of abortion rights (such as in Planned Parenthood v. Casey), access to contraception (in Griswold v. Connecticut) and gay marriage (in Obergefell v. Hodges). These changes, which stem at least in part from the same underlying reasoning as the Pierce decision, have profoundly affected areas in which religion once played a predominant role in inculcating values.
Beyond the ongoing concrete effects of Pierce, it is also objectionable to many who agree with Justice Clarence Thomas that the “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness.” In other words, in the interest of maintaining an intellectually consistent jurisprudence, it is best not to rely on the legacy of substantive due process.
It is difficult to determine the likelihood of success the yeshivas would have if they brought a substantive due process claim. Such claims are unpredictable at best, since they lack any concrete standards or textual guideposts. Additionally, given the history of the doctrine, any gains that the yeshivas make by utilizing substantive due process may come back to haunt them.
The Importance of Passing a State RFRA Law and Reconsidering Smith
One key lesson to be drawn from the above cases concerns the importance of passing a RFRA law in New York. This would solve many of the issues at play in the ongoing yeshiva skirmishes. RFRA bills have been introduced in the state legislature in the past but have never gotten very far. This is in part because the opponents of the legislation have managed to convince many among the public that such bills are used by the majority to oppress vulnerable minorities.
As we discussed above, this is exactly backward—religious minorities benefit the most from RFRA laws and suffer the most in their absence. Perhaps NY’s Jewish citizens can help restore the good reputation that RFRA enjoyed in 1993 by demonstrating how important such laws are to religious minorities who simply want to teach their children in a traditional manner, and have no interest in oppressing any other group.
A second important lesson is that supporters of the yeshivas should advocate for the Supreme Court to reconsider its Smith decision. Fortunately, members of the Supreme Court have signaled their openness to doing exactly that. Writing for four justices, Justice Alito recently acknowledged that Smith “drastically cut back on the protection provided by the Free Exercise Clause.” Alito went on to imply that perhaps it was time to “revisit” Smith.
The Court quickly acted upon Justice Alito’s suggestion. It recently agreed to review the case Fulton v. Philadelphia, which presents the question of “whether Employment Division v. Smith should be revisited.” Jewish communal organizations should file amicus briefs explaining how harmful Smith has been to minority faiths.
Jewish organizations and individuals have a necessary and powerful role to play in America’s ongoing discussions regarding religious liberty. Situations such as the conflict over New York’s yeshivas demonstrate how grave the stakes can be. Jewish Americans cannot afford to view religious liberty as a problem for someone else to deal with. If we want to protect our rights, it is imperative that we join in this discussion on the side of religious liberty.
Howard Slugh is a founder and General Counsel of the Jewish Coalition for Religious Liberty. He is also an attorney in Washington, DC focusing on constitutional law.
Devorah Goldman is EPPC’s Tikvah Visiting Fellow. Her work focuses on religion, culture, and public policy, with an emphasis on Jewish belief and practice.
 The authors are grateful to Julie Borzage for her assistance in preparing research.