July 2010 – U.S. Fifth Circuit
by Joseph Hepworth
A Native American elementary school student challeged a school district’s dress code that required him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. In a 2-1 decision, a panel of the United States Court of Appeals for the Fifth Circuit agreed with the district court that the requirement offends a sincere religious belief and held it invalid under the Texas Religious Freedom Restoration Act (“TRFRA”).
In response to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 972 (1990), which allowes states to regulate religious activity with a generally applicable law that incidentally burdens religious conduct, Congress enacted the Religious Freedom Restoration Act (“RFRA”). In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court invalidated RFRA, finding that Congress exceeded its constitutional authority in enacting RFRA. In response, a number of states, including Texas, enacted state-level legislation.
The Texas Supreme Court has previously ruled that to succeed under TRFRA, a plaintiff must demonstrate (1) that the government’s regulations burden the plaintiff’s free exercise of religion and (2) that the burden is substantial. The burden then shifts to the government to prove (3) that its regulations further a compelling governmental interest and (4) that the regulations are the least restrictive means of furthering that interest.
In this case, the plaintiff demonstrated that he held a sincere religious belief that his hair should be worn visibly long and that requiring him to hide his long hair was a substantial burden on that belief. The Court then held that the district failed to demonstrate that its regulations furthered a compelling government interest.
The dissent asserts that the majority fabricated the belief that the the boy’s long hair be visible. The dissent concluded that the regulation was not a substantial burden on the exercise of religion because of the availability of minimally restrictive alternatives.