The second exception is the "individualized exemption" exception: where a state's facially neutral rule contains a system of individualized exemptions, a state may not refuse to extend that system to cases of religious hardship without a compelling reason. The Free Exercise Clause's mandate of neutrality toward religion prohibits the government from deciding that secular motivations are more important than religious motivations. Accordingly, in situations where government officials exercise discretion in applying a facially neutral law so that whether they enforce the law depends on their evaluation of the reasons underlying a violator's conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.
And here are some excerpts from my article on this issue:
1. "As I read Smith and Lukumi, the individualized-assessment rule is best understood as a subset of the rule that applies rigorous strict scrutiny to nonneutral or nongenerally applicable laws. I believe that it is a categorical rule that classifies individualized exemption processes marked by discretionary decisionmaking as per se not neutral and not of general application."
2. "[W]hen the transfigured Sherbert applies, there is no need to establish that the law is underinclusive to a substantial degree. Instead, strict scrutiny will apply if the religious-liberty claimant establishes two things: (1) that the State has in place an individualized and discretionary process for allocating governmental benefits or burdens and (2) that his or her religious-liberty claim has been rejected under the ad hoc assessment system. In other words, Sherbert imposes a categorical rule that treats the individualized procedure as per se not neutral and not generally applicable. When this occurs, the case is taken out of Smith, and the governmental decision to reject the religious-liberty claim is reviewed under strict scrutiny and the compelling interest test."
3. "A system of individualized application of governmental benefits or burdens may arise in many situations. In general, such a system exists whenever there is a process of standardless or discretionary review. This process may be created by a legislature when it enacts a restriction and then explicitly creates an individualized and discretionary exemption process. Thus, in Sherbert v. Verner, the legislature denied unemployment benefits to otherwise eligible claimants who were found to have failed without “good cause” to accept “suitable work.” Similarly, a governmental institution, such as a public school, a state university, or a regulatory agency, may adopt policies that expressly create an ad hoc process for “hardship” or “good cause” exemptions.
Moreover, even if a rule or policy does not expressly create a process for individualized exemptions, institutional rules may be (and often are) waived by the government officials who made the rule. School rules may be waived by the principal, or the faculty, or the administrator into whose bailiwick the rule falls. In government employment, workplace rules may be waived by supervisors, department heads, or other senior officials. Zoning laws, landmarking laws, and similar land use regulations are almost always subject to individualized procedures, such as special use permits and variances, for determining which parcels of land are restricted and which are unrestricted.
The categorical rule should trigger strict scrutiny under the transfigured Sherbert whenever the government has in place a system of individualized assessments to allocate some benefit or burden and then rejects a claim for religious accommodation under that system. Lawyers representing religious-liberty claimants need to be aware that the existence of such an ad hoc system may not be obvious upon initial assessment of a case. It may well appear at first glance that the policy restricting the client is a neutral and generally applicable one that applies across the board to all similarly situated persons.
For example, a state university academic policy on its face may purport to require all students to enroll as “full-time” students, or a public school may require all students to attend a “mandatory assembly” on safe-sex education. But on closer inspection in the course of discovery and investigation, the attorney may learn that the defendant has implemented either a formal or an informal procedure for granting individualized exemptions from the otherwise generally applicable policy. For example, the attorney may learn that students who wish to attend college on a part-time basis may petition a university official such as a dean or department chair for an ad hoc waiver of a “full-time” enrollment rule. Or she may learn that students are routinely excused by school authorities from mandatory assemblies for various reasons including illness, personal conflicts, or family priorities such as weddings or funerals. The importance of ferreting out individualized exemptions and waivers cannot be overemphasized, because such evidence should take the case out of Smith and place it squarely under Sherbert and the compelling interest test.
At least in theory, the mere existence of an ad hoc “system” or process for evaluating exemption and waiver claims--either by written policy or by the actual practice of the defendant--should be sufficient to trigger strict scrutiny when a religious claimant's petition for accommodation is denied. However, in practice there will usually be evidence of at least a few, and often many, persons who have been granted discretionary exemptions under the ad hoc system. For example, if the attorney checks school attendance records going back a few years for occasions when “mandatory assemblies” were scheduled, she will likely find that a number of students were absent on those days due to illness, weddings, funerals or other family or personal commitments, and for a variety of other perfectly appropriate reasons. The existence of these excused absences from the relevant school days (and thus from the “mandatory” assemblies conducted on those days) is strong (perhaps conclusive) evidence that the “mandatory assembly” policy is subject to an individualized exemption system. Therefore, when the school rejects a request by, say, a Catholic student to be excused for religious reasons from the mandatory safe-sex assembly, strict scrutiny applies and the student's free exercise claim should prevail under Sherbert and the categorical rule."
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