Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct

Abstract

Since its groundbreaking decision in Employment Division v. Smith, the Supreme Court has maintained needlessly inconsistent standards of review for generally applicable laws that indirectly burden First Amendment–protected conduct. When a generally applicable law indirectly suppresses symbolic speech or expressive conduct, courts apply the O’Brien test, a carefully structured form of intermediate review. However, when an identical law suppresses religious conduct, under Smith, only rational basis review obtains. By applying intermediate scrutiny to laws that indirectly burden expressive conduct but a rational basis standard to laws that burden expressed belief, the Court has done exactly what it claims to be avoiding: it has subordinated religious belief to political and philosophical opinion.This Note traces the doctrinal roots of this assymetry, concluding that expressive conduct is often functionally indistinguishable from expressed belief. Acts of worship and the observance of sacrament, like expressive conduct, are the physical manifestation of deeply held, constitutionally protected beliefs. This Note then moves to two practical solutions. In the short term, creative advocates should plead free exercise and free speech claims in the alternative in an effort to obtain the heightened protection of free speech law. One example of this approach is Fifth Avenue Presbyterian Church v. City of New York, where the church argued (successfully) that allowing homeless persons to sleep on their steps was a “highly particularized, easily understood, religious and political message.” As a long-term solution, intermediate scrutiny should be the controlling standard of review, regardless of whether the font of expression is political opinion or religious conviction. An intermediate approach coheres with the original public meaning of the First Amendment and eliminates the need for the categorical exemptions that have developed under current case law.