Also known as:individualized exemption · individual exemption · individual exemptions · individualized-exemption rule
Written by attorneys · grounded in primary & secondary sources — see below
A mechanism in a government policy or law that permits officials to grant case-by-case exceptions based on individual circumstances. Such a mechanism renders the policy not generally applicable under the Free Exercise Clause. The presence of discretionary authority to accommodate secular interests therefore requires the government to satisfy strict scrutiny before denying a comparable religious request.
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Cases
Casebooks
Study Supplements
How it applies
Common Examples
6
Foster Agency Seeks Religious Waiver
The City of Philadelphia required all foster agencies to certify same-sex couples. Its contract allowed the commissioner to grant individualized exemptions in his sole discretion. Catholic Social Services requested an exemption based on its religious beliefs against certifying same-sex couples. The city denied the request while retaining the power to make case-by-case exceptions for other reasons. Because the policy contained a system of individualized exemptions, it was not generally applicable and could not be enforced against the religious agency without satisfying strict scrutiny.
Unemployment Benefits and Good Cause
Oregon denied unemployment benefits to employees fired for using peyote in a Native American Church ceremony. The state unemployment statute allowed benefits when an employee quit or refused work for good cause. That good-cause standard created a system in which officials could consider the particular circumstances of each applicant. Because the statute permitted individualized exemptions, the state could not refuse to extend the same consideration to religious reasons without a compelling justification.
EMPLOYMENT DIVISION, DEPARTMENT of HUMAN RESOURCES of OREGON, et al., Petitioners v. Alfred L. SMITH, et al., Respondents.494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)
Animal Sacrifice Ordinance Review
Hialeah banned the unnecessary killing of animals but allowed killings deemed necessary under various secular exceptions. City officials evaluated each proposed killing to decide whether it qualified as necessary. Santeria practitioners sought to perform ritual sacrifices that the city viewed as unnecessary. The ordinance's necessity standard created individualized governmental assessments of the reasons for conduct. The city therefore could not refuse to extend the same case-by-case consideration to religious reasons without a compelling justification.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)
Coach Seeks Prayer Accommodation
A school district required all coaches to supervise students during post-game periods without exception. The policy permitted administrators to grant case-by-case waivers for various secular reasons. Coach Kennedy requested permission to kneel briefly in prayer after games. The district denied the request while retaining discretion to accommodate other personal circumstances. Because the policy allowed individualized exemptions, it was not generally applicable and triggered strict scrutiny.
Kennedy v. Bremerton School District142 S. Ct. 2407 (2022)
Land Use Permit Discretion
A city zoning ordinance required permits for church expansions but allowed officials to grant individualized exemptions based on particular circumstances. A church applied for a permit to enlarge its building for religious services. City officials denied the request after weighing the church's specific needs against other considerations. Because the ordinance created a mechanism for individualized exemptions, it was not generally applicable and could not burden religious exercise without satisfying strict scrutiny.
City of Boerne v. Flores521 U.S. 507 (1997)
Benefit Eligibility Assessment
A federal statute required applicants for certain benefits to supply a Social Security number. The statute permitted officials to consider individual circumstances when deciding whether to grant exemptions. Roy, a Native American, objected on religious grounds to obtaining or using a Social Security number for his daughter. Officials denied the exemption after evaluating his particular situation. Because the statute allowed individualized exemptions, the government could not refuse to accommodate religious hardship without a compelling reason.
Bowen v. Roy476 U.S. 693 (1986)
Common questions
Frequently Asked
4
When does the existence of individualized exemptions render a policy not generally applicable?+
A policy is not generally applicable when it permits government officials to grant case-by-case exceptions based on individual circumstances. The presence of such discretionary authority creates the potential for discriminatory application against religious practices. Strict scrutiny therefore applies to any denial of a religious exemption.
Supporting sources
Does a narrow medical exemption alone create a system of individualized exemptions?+
A narrow medical exemption tied to objective physical impossibility does not create a system of individualized exemptions. Such an exemption is categorical and does not invite officials to weigh the particular reasons for conduct on a case-by-case basis. A policy containing only that type of exemption remains generally applicable.
What must the government show once individualized exemptions trigger strict scrutiny?+
The government must demonstrate that denying the religious exemption is narrowly tailored to a compelling interest. It cannot rely on the mere existence of the policy. The denial must survive the most rigorous form of constitutional review.
How does a good-cause standard in unemployment law create individualized exemptions?+
A good-cause standard allows officials to consider the particular circumstances behind each applicant's unemployment. That discretionary evaluation constitutes a mechanism for individualized exemptions. The state therefore may not refuse to extend the same consideration to religious reasons without a compelling justification.
from a general requirement are available, the government "may not refuse to extend that system to cases of religious hardship' without compelling reason." Ibid. , quoting Bowen v.…
; where such a system exists, the government may not refuse to extend that system to religious hardships without a compelling reason. 1 The City's standard contract non-discrimination…
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