Neustadter v. Holy Cross Hospital of Silver Spring, Inc.

HARRELL, J.,

concurring, in which MURPHY, J., joins.

I concur with the result reached in the Majority opinion, which reverses the judgment of the Court of Special Appeals. The Majority opinion, in response to Neustadter’s argument, declines to analyze the Supreme Court’s Free Exercise jurisprudence in determining the appropriate standard of review in the present case, invoking the principle that this Court ordinarily will not decide a constitutional issue when the case may be disposed of fairly on a non-constitutional ground. 418 Md. 231, 240 & n. 7, 13 A.3d 1227, 1232-33 & n. 7 (2011). The Majority is correct to do so. “Going rogue,” however, I write separately for posterity to express my views as to the constitutional principles argued by Petitioner as his sole basis for reversal. In this way, a response of sorts to Petitioner’s constitutional argument will appear in the Maryland Reports, albeit not one carrying the weight of precedent (but also not violating the Court’s duty to honor the doctrine of constitutional avoidance). Moreover, I disagree with the Majority *253opinion’s analysis of what, on this record, constitutes the abuse of discretion warranting reversal.

I.

A Road Map of the Undulating Free Exercise Highway

Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), is recognized generally as the case in which “the high court first fully articulated its modern free exercise clause jurisprudence____” Smith v. Fair Employment & Hous. Comm’n, 12 Cal.4th 1143, 51 Cal.Rptr.2d 700, 913 P.2d 909, 943 (1996); see Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F.Supp. 81, 90 (E.D.N.Y.1987) (“The Supreme Court formulated its modern approach to free exercise claims in its 1963 Sherbert decision.”). In Sherbert, a claimant for unemployment benefits was denied benefits after being found ineligible under a South Carolina law requiring that, to be eligible for benefits, a claimant must be “able to work and ... [be] available for work,” and that a claimant is ineligible if “he has failed, without good cause ... to accept available suitable work when offered him by the employment office or the employer____” Sherbert, 374 U.S. at 400-01, 83 S.Ct. at 1792, 10 L.Ed.2d at 968. South Carolina’s Employment Security Commission ruled the claimant ineligible for unemployment benefits, reasoning that, because the claimant — a member of the Seventh-Day Adventist Church — was discharged by her employer for refusing to work on Saturday (her Sabbath), she failed to “accept available suitable work when offered [her] by ... the employer.” Sherbert, 374 U.S. at 401, 83 S.Ct. at 1792, 10 L.Ed.2d at 968. The South Carolina Supreme Court rejected the claimant’s contention that the statutory provisions impermissibly infringed upon her federal First Amendment rights under the Free Exercise Clause.

The Supreme Court’s first task became determining “whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion.” Sherbert, 374 U.S. at 403, 83 S.Ct. at 1793-94, 10 L.Ed.2d at 970. Answer*254ing that question in the affirmative, the Court reasoned that the Commission’s ruling “forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Sherbert, 374 U.S. at 404, 83 S.Ct. at 1794, 10 L.Ed.2d at 970. After determining that the South Carolina statute infringed substantially on the claimant’s Free-Exercise rights, the Court explained that, in order to pass constitutional muster, the State must demonstrate a compelling state interest in enforcing the eligibility provisions of the unemployment benefits statutes. See Sherbert, 374 U.S. at 406-07, 83 S.Ct. at 1795,10 L.Ed.2d at 972. Ultimately, the Court concluded that the State made no such showing. Id. Thus, it has been observed that

Sherbert required a two-step analysis in determining whether or not a statute, as applied to a particular individual, violated the First Amendment. First, the court must determine if the application of the statute constitutes an infringement upon the individual’s religious liberty, and second, if an infringement exists, the court must then determine if it is justified by a “compelling state interest.”

State v. Shaver, 294 N.W.2d 883, 890 (N.D.1980).

Sherbert is considered a landmark decision, as it is “the first case to assert that laws interfering with religiously motivated conduct must be analyzed under the compelling state interest test.” Christopher L. Eisgruber & Lawrence G. Sager, Mediating Institutions: Beyond the Public/Private Distinction, 61 U. Chi. L.Rev. 1245,1277 (1994). Mere “interference,” however, was not enough (under Sherbert) to mandate application of the compelling state interest test. Rather, Sherbert became known for creating the “substantial burden test.”1 See Employment Division, Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 894, 110 S.Ct. 1595, 1608, 108 L.Ed.2d 876, 896 *255(1990) (O’Connor, J., concurring) (“[W]e have respected both the First Amendment’s express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest ____”) (emphasis added). That is, under Sherbert — to the extent it survives Smith’s analysis, discussed infra — strict scrutiny is not the pertinent standard of review unless the governmental action in question imposes a “substantial burden” on the challenger’s Free Exercise rights.

As stated in Trinity Assembly of God of Baltimore City v. People’s Counsel for Baltimore County, 407 Md. 53, 87, 962 A.2d 404, 424 (2008), “[t]he substantial burden test (the Sherbert test) remained the law of the land governing claims under the Free Exercise Clause until 1990,” when the Supreme Court decided Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. at 872, 110 S.Ct. at 1608, 108 L.Ed.2d at 896. In Smith, two individuals were fired from their jobs because they used peyote — in violation of Oregon penal statutes — at a ceremony in the Native American Church, of which they were members. Smith, 494 U.S. at 874, 110 S.Ct. at 1597, 108 L.Ed.2d at 883. Upon termination, the individuals applied for unemployment benefits, which were denied ultimately by the Oregon Employment Division because the claimants were ineligible, having been terminated for work-related “misconduct.” Smith, 494 U.S. at 874, 110 S.Ct. at 1598,108 L.Ed.2d at 883.

The question before the Supreme Court was

whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.

Smith, 494 U.S. at 874, 110 S.Ct. at 1597, 108 L.Ed.2d at 882. Rejecting the claimants’ argument that “their religious motivation for using peyote places them beyond the reach of a *256criminal law that is not specifically directed at their religious practice,” the Supreme Court, speaking through Justice Scalia, held that “if prohibiting the exercise of religion ... is not the object of the [governmental action] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Smith, 494 U.S. at 878, 110 S.Ct. at 1600, 108 L.Ed.2d at 878. Further, in holding that Sherbert’s “substantial burden test” need not be applied, the Court distinguished Sherbert, stating that Sherbert dealt with unemployment compensation cases, which, with their accompanying eligibility criteria and “good cause” exception, “create[] a mechanism for individualized exemptions” that “invite consideration of the particular circumstances behind an applicant’s unemployment....” Smith, 494 U.S. at 884, 110 S.Ct. at 1603, 108 L.Ed.2d at 884. Thus, Smith stands for the proposition that “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest,” Smith, 494 U.S. at 886 n. 3, 110 S.Ct. at 1604 n. 3,108 L.Ed.2d at 890 n. 3, even if the effect of the governmental action is to substantially burden the challenger’s religious practice. See Neutral Rules of General Applicability: Incidental Burdens on Religion, Speech, and Property, 115 Harv. L.Rev. 1713,1721 (2001) {“Smith ... held that the state has no duty to exempt people whose religions are substantially burdened as a result of a neutral and generally applicable law.”).

Because Smith held Sherbert’s “substantial burden” test inapplicable to cases involving neutral laws of general applicability, our first task in the present case unquestionably is to determine whether the trial court’s decision to deny Petitioner’s requests for a postponement due to a religious conflict results from application of a neutral law of general applicability, or an analog thereto — a task that I undertake infra. Assuming arguendo (for a moment) that the trial court’s decision does not fit there, the next inquiry is whether application of Sherbert’s “substantial burden” test is appropriate, and if so, whether the test necessitates the standard of review in *257the present case to be strict scrutiny.2 Answering this second group of questions requires a closer examination of the effect of Smith on Sherbert, an analysis over which much ink has been spilled already.

One school of thought holds that Smith limited Sherbert only to those cases involving individualized exemptions vis á vis a system of unemployment benefits. Language from Smith supports arguably this narrow reading, see Smith, 494 U.S. at 883, 110 S.Ct. at 1602, 108 L.Ed.2d at 888 (“We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied. In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all.”) (internal citations omitted). See also Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18 (1st Cir.2004) (“The Smith majority expressly limited ... Sherbert *258to the unemployment compensation field.”); Miller v. Drennon, 1991 WL 325291, at *9, 1991 U.S. Dist. LEXIS 20382, at *23 (D.S.C. 20 June 1991) (“According to Smith, Sherbert and its progeny are limited to the denial of unemployment benefits. ...”); S. Ridge Baptist Church v. Indus. Comm’n of Oh., 911 F.2d 1203, 1213 (1990) (Boggs, J., concurring) (“[T]he Supreme Court now appears to have confined the applicability of those words to the rather limited field of unemployment compensation .... ”); see also Sara Witt, Modifying the Religious Land Use and Institutionalized Persons Act to Create a Constitutional Statutory Protection for Religious Landowners, 59 Case. W. Res. L.Rev. 767, 771 (2009) (“Some suggest that the Sherbert exception is further limited to unemployment compensation cases alone.”).

The other main school of thought — and the one that has garnered the most support — is that Smith limited application of Sherbert’s “substantial burden” test to all individualized exemptions, and not only to those involving unemployment benefits. Language in Smith hints at this conclusion, see Smith, 494 U.S. at 884, 110 S.Ct. at 1603, 108 L.Ed.2d at 889 (“Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field ____”), and language from published opinions embraces this view. See, e.g., In re Hofer, 329 Mont. 368,124 P.3d 1098, 1110 n. 2 (2005) (“Despite its expressed reluctance, the Supreme Court in fact has applied the Sherbert test outside the unemployment benefits context.”). This view is best exemplified, perhaps, by the Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), in which the Court applied strict scrutiny to certain municipal ordinances it held to be non-neutral and not generally applicable, but did not involve unemployment benefits. Specifically, Hialeah dealt with the Santerian religion, which practices animal sacrifice as a principle form of devotion, a branch church of which leased land in the city of Hialeah to establish itself there. Hialeah, 508 U.S. at 524-26, 113 S.Ct. at 2222-23, 124 L.Ed.2d at 484-86. Expressing concern over the religious practices’ effect on public morals and safety, the *259City passed various enactments which declared the City’s commitment to proscribing animal sacrifices. Hialeah, 508 U.S. at 526, 113 S.Ct. at 2223, 124 L.Ed.2d at 486. After holding the ordinances to be neither neutral nor generally-applicable, the Supreme Court applied strict scrutiny (á la Sherbert) to strike down the ordinances.3 Hialeah, 508 U.S. at 546, 113 S.Ct. at 2233, 124 L.Ed.2d at 498-98. Thus, the Supreme Court has applied Sherbert to scenarios other than those involving unemployment benefits.

In subscribing to the latter understanding of Smith’s effect on Sherbert, I do not write on a clean slate. In Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 407 Md. 53, 87 n. 13, 962 A.2d 404, 424 n. 13 (2008), discussed more fully infra, I wrote for a unanimous Court (albeit as dicta) that “Smith left open the possibility that the substantial burden test still applies to Free Exercise Clause challenges where the government made an individualized assessment.” We did not see Sherbert in Trinity as limited merely to unemployment compensation scenarios, but rather, to all individualized assessment situations. Therefore, assuming, arguendo, that the trial court’s denial in the present case of Petitioner’s motion to postpone the trial for the two-days of Shavuot was not the result of a neutral and generally-applicable government action, my reading of Smith and its progeny requires a Sherbert-type, “substantial burden,” analysis. If I determine that a substantial burden analysis is required, this Court’s opinion in Trinity, supra, becomes relevant more so.

To summarize the road map I believe should be followed in determining the appropriate standard of review to be applied *260in the present case: (1) determine whether the trial court’s denial of Petitioner’s motions to postpone the trial for the Shavuot holiday was the result of a “neutral, generally applicable” governmental action such that application of Sherbert is inapposite (stated differently), determine whether the trial court’s denial of the motions was an “individualized assessment” which necessitates application of Sherbert’s substantial burden test; (2) assuming the denial is not a neutral and generally applicable governmental action, apply Sherbert’s substantial burden test — with Trinity’s gloss — to determine whether strict scrutiny or abuse of discretion is the pertinent standard of review; and (3) assuming abuse of discretion is the appropriate standard of review, decide whether the trial court abused its discretion in denying Petitioner’s motions to postpone the trial for the Shavuot holiday. As will be explained more fully infra, one of the outcomes, I believe, is that application of strict scrutiny is inapposite to the present case.

II. Neutral and Generally-Applicable Governmental Conduct, or Individualized Assessment?

As noted supra, “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Smith, 494 U.S. at 886 n. 3, 110 S.Ct. at 1604 n. 3, 108 L.Ed.2d at 890 n. 3. While neutrality and general-applicability “are interrelated, and ... failure to satisfy one requirement is a likely indication that the other has not been satisfied,” Hialeah, 508 U.S. at 531, 113 S.Ct. at 2226, 124 L.Ed.2d at 489, each requires its own analysis ultimately. In this regard, Hialeah is instructive. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir.2004) (“Hialeah presented an opportunity for the Supreme Court to elaborate upon what was meant by neutrality and general applicability.”). Briefly,

[i]n Hialeah, the Court reviewed various ordinances of the City of Hialeah that effectively prohibited members of the Santería religion from sacrificing animals, a traditional practice of Santería Worship.... The Court ... examined the *261Hialeah City ordinances and found that they were neither neutral nor of general applicability. Instead, the ordinances were written in such a way as to target only those animal killings that occurred attendant to Santería religious worship. The Court found additionally that the city had no compelling governmental interest to support the ordinances.

State v. Green, 99 P.3d 820, 826 (Utah 2004) (internal citations omitted).

A. Neutrality

Under Hialeah, a law (or rule) is, by definition, not neutral “if the object of the law [or rule] is to infringe upon or restrict practices because of their religious motivation____” Hialeah, 508 U.S. at 533, 113 S.Ct. at 2227, 124 L.Ed.2d at 490. The starting point in determining whether the object or purpose of the government action is to suppress religious conduct “must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Id.

In the present case, the trial court’s explanation of the denial of Petitioner’s motions to postpone is devoid of any language that could be construed as having a purpose or object of denying the motions because of Petitioner’s religious convictions. As the trial court stated:

[T]he administrative judge will not let me, hold up jurors for an extra two days because of something that was not brought to our attention. And the case has already been rescheduled once, and I simply cannot suspend the trial for those two days----And, you know, our trial calendar is extremely heavy right now. I’m down two judges, and I’m simply not authorized to suspend the trial for two days.

The record, therefore, reveals that the denial stemmed (at least in part), not from any religious animus, but rather from the lack of authorization from the administrative judge, apparently because Petitioner was raising an issue that, theretofore, was not brought to the attention of the trial court.

*262Although the trial court’s decision was neutral facially, “[flacial neutrality is not determinative,” as the “Free Exercise Clause protects against governmental hostility which is masked as well as overt.” Hialeah, 508 U.S. at 534, 113 S.Ct. at 2227, 124 L.Ed.2d at 491. In Hialeah, the Supreme Court scrutinized the record for evidence of covert discrimination, concluding ultimately the object of the City of Hialeah’s ordinances was to infringe upon the Church member’s Free Exercise rights, considering that the only conduct subject to the ordinances was the expression of the religious exercise (animal sacrifice) of the Church members. See Hialeah, 508 U.S. at 535,113 S.Ct. at 2228,124 L.Ed.2d at 492. The record in the present case is devoid of any evidence from which one could infer reasonably that the trial court was acting in a manner other than a neutral arbiter. The trial court articulated the following reasons for denying the motion to postpone the trial, none of which suggest that the judge’s decision would have been any different had Petitioner been Christian, Muslim, or a member of any other religious faith (or an agnostic or atheist): lack of authorization from the administrative judge; busy trial calendar; lack of judges; effect on witnesses, jurors and members of the community; and Petitioner’s delay in bringing the problem to the court’s attention. Unlike Hialeah, in which the legislative history of the City’s ordinances revealed concern “that certain religions may propose to engage in [religious] practices which are inconsistent with public morals, peace or safety,” Hialeah, 508 U.S. at 526,113 S.Ct. at 2223, 124 L.Ed.2d at 486, the record here is devoid of even a hint of religious animus.

Finally, the Court in Hialeah stated that “[i]n determining if the object of a law is a neutral one ..., we can also find guidance in our equal protection cases.” Hialeah, 508 U.S. at 540, 113 S.Ct. at 2230, 124 L.Ed.2d at 495. In undertaking this mode of analysis, the Court noted that “[r]elevant evidence includes ... the historical background of the decision under challenge, the specific series of events leading to the ... official policy in question, and the legislative or administrative history, including contemporaneous statements made *263by members of the decisionmaking body.” Id. A judicial determination to deny a continuance or a postponement (as opposed to a legislative act), has no legislative history, but the “specific series of events leading to” the judge’s ruling in this case is telling. The relevant facts of the present case are that the parties became aware of the 3 June 2008 trial date on 24 January 2008, yet Petitioner waited until 6 May 2008 — less than a month prior to the commencement of trial — to inform the trial court that neither Petitioner nor his counsel would be present on the two days of trial that fell out on the Shavuot holiday. See Pirkei Avot — Ethics of Our Fathers § 1:14 (“If not now, when?”). The trial judge mentioned at the 14 and 22 May 2008 hearings on the matter Petitioner’s tardiness. Whether the trial court abused its discretion to rely on this delay is discussed infra; however, it appears clear to me that this justification, alone or in conjunction with the balance of the record, in no way evinces an “object” on the part of the trial court to infringe upon Petitioner’s Free Exercise rights. According to Judge Sykes of the federal Court of Appeals for the Seventh Circuit, “the point of [.Hialeah ]” was that “even a facially neutral law of general applicability might be discriminatory in violation of the Free Exercise Clause because of its design, operation ... or in the manner in which it is enforced.” River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367, 387 (7th Cir.2010) (Sykes, J., dissenting). Concluding that the record is devoid of any evidence from which one could conclude that the trial court’s denial of Petitioner’s motions to postpone the trial was either designed to, or operated to, infringe upon Petitioner’s Free Exercise rights, I would hold that the judicial determination in the present case was “neutral.”

B. General Applicability

One federal district court detailed Hialeah’s analysis of the “general-applicability” prong:

Discussing the requirement of general applicability, the Lukumi [CJourt observed that “all laws are selective to some extent, but categories of selection are of paramount *264concern when a law has the incidental effect of burdening religious practice.” The “government ... cannot in a selective manner impose burdens only on conduct motivated by religious belief.” The ordinances at issue in Lukumi were so deficient that the court declined to “define with precision the standard used to evaluate whether a prohibition is of general application.” However, the Lukumi [C]ourt made clear that a law is not generally applicable if it was purportedly adopted to protect certain interests, yet “fails to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than [the banned religious conduct] does.”
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F.Supp.2d 1236, 1244-45 (D.N.M.2002) (internal citations omitted); see Green, 99 P.3d at 828 (employing a similar analysis).

The governmental action at issue here — the denial of Petitioner’s motions to postpone the trial for the Shavuot holiday — has no “categories of selection.” Being a judicial determination, the trial court’s ruling is made on particular motions, and facts, applicable to two unique parties,; but, there is nothing in any of the judge’s rulings that suggests that she “selected” Petitioner’s motions for denial on the grounds that they were based on Petitioner’s intent to observe a religious holiday. Further, the judge’s rulings do not “fail to prohibit nonreligious conduct that endangers the[ ] interests” sought to be protected by the ruling. That is, as mentioned infra, the trial court denied the motions, citing interests of docket efficiency and the effect a delay would have on jurors and witnesses; nowhere in the rulings, however, did the judge suggest that she would have granted the motions to postpone if they were based on nonreligious reasons {e.g., the Bowl Championship Series title game,4 the World Series,5 etc.).

*265To be sure, judges and courts decide cases and controversies. See Thom v. Cook, 113 Md. 85, 88, 77 A. 120, 120 (1910) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, 293 (1895)) (“The duty of this [C]ourt, as of every other judicial tribunal, is to decide actual controversies ----”). Accordingly, the judge’s ruling on a motion affects generally only the litigants to the particular case. Thus, a judicial ruling does not have the same generally-applicable effect as a legislative act. That said, I believe the judge’s denial of Petitioner’s motions to postpone the trial was the judicial analog to a generally-applicable legislative act, in that there is no evidence in the record from which one could conclude that the judge’s ruling would have been any different if faced with nonreligious justifications for the requested postponement. See State v. Blackmon, 130 Ohio App.3d 142, 719 N.E.2d 970, 975 (1998) (holding that appellant’s Free Exercise rights were not violated where there was no evidence that the trial court considered anything other than “generally applicable factors” in considering a motion for a continuance, including: length of delay requested, inconvenience to litigants and witnesses, whether the moving party contributed to the circumstances for which the request was made, etc.).

C. Individualized Assessment

Notwithstanding my view that the judge’s rulings on Petitioner’s motions to postpone the trial constitute a judicial analog to a neutral and generally-applicable legislative act, I must undertake another inquiry, namely, whether the judge’s determination constitutes an “individualized assessment,” sufficient to trigger a Sherbert analysis. See Kissinger v. Bd. of Trustees of Ohio State Univ., 5 F.3d 177, 179 (6th Cir.1993) *266(employing a “three-part analysis”: whether the governmental action “was generally applicable, was not aimed at particular religious practices, and did not contain a system of particularized exemptions”). But see First Covenant Church v. City of Seattle, 120 Wash.2d 203, 840 P.2d 174, 181 (1992) (appearing to conflate the “individual assessment” analysis with the “neutral/generally-applicable” analysis).

Smith said, vis-á-vis individualized exemptions/assessments, that:

The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in [Bowen v.] Roy [476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) ], a distinctive feature of the unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment: The statutory conditions ... provided that a person was not eligible for unemployment compensation benefits if, without good cause, he had quit work or refused available work. The “good cause” standard created a mechanism for individualized exemptions. As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.

Smith, 494 U.S. at 884, 110 S.Ct. at 1603, 108 L.Ed.2d at 884 (internal citations and quotation marks omitted).

To be sure, and as mentioned supra, because trial courts deal with discrete controversies between the parties before them, each ruling or determination in the case is somewhat “individualized.” The rub, though, is whether a judicial ruling is cut from the same cloth as the individualized exemptions with which the Supreme Court in Sherbert and its progeny dealt. In formulating an answer to this question, I proceed along the following path:

*267The determination of whether the Sherbert exception [i.e. application of Sherbert ] is triggered proceeds in two steps. The first focuses on whether a law contains a mechanism similar to the “good cause” criterion that is open to unfettered discretionary interpretation. If such a mechanism exists, the second step requires courts to determine whether it is enforced in a discriminatory manner. Absent evidence of discrimination in the actual enforcement of the [governmental action], ... Sherbert ... is not triggered, and there is no need to apply the compelling state interest test.

Carol M. Kaplan, The Devil Is in the Details: Neutral, Generally Applicable Laws and Exceptions from Smith, 75 N.Y.U. L.Rev. 1045,1081 (2000).

First, although there is no requirement in civil cases in the posture of the present case that a judge find expressly “good cause” before granting a motion to postpone a trial,6 a trial court’s decision to grant or deny a motion to postpone or continue a trial is within the sound discretion of the trial court, and, accordingly, the decision is subject to a great degree of deference on appellate review. See Schroder v. State, 206 Md. 261, 265, 111 A.2d 587, 589 (1955) (“It has long been a well settled rule in this State that the granting or refusing of a continuance is within the sound discretion of the trial court and will not be set aside on appeal unless the exercise of that discretion has been arbitrary.”). Although the abuse of discretion standard does not leave judges with “unfettered discretionary interpretation,” appellate review of this type of judicial determination is highly deferential and gives judges a substantial degree of discretion in granting such motions.

Whether the abuse of discretion standard of review that insulates, to a degree, a trial court’s decision to grant or deny a motion to postpone or continue a trial is akin to the “good cause” standard with which Sherbert and the other unemployment compensation cases deal, absent from the record here is *268any evidence that this ruling specifically, rulings from this particular judge, or rulings from this particular court, were in any way discriminatory. Absent such evidence, I conclude Sherbert to be inapposite and inapplicable to the present factual situation.7

One final observation on this point is in order. I do not believe that the legislative ills that strict scrutiny protects against in the Free Exercise sphere are applicable with equal force to the judicial branch. See Gordon S. Wood, The Creation of the American Republic, 1776-1787 609 (1969) (concluding that separation of powers was intended to “ensure the protection of individual rights against all governmental encroachments, particularly by the legislature, the body which Whigs ha[d] traditionally cherished as the people’s exclusive repository of their public liberty”) (emphasis added). That is, a concern of any democratic society is that an oppressive or tyrannical electorate will emerge and elect similarly minded legislative representatives, who, in turn, will enact laws that will oppress certain disfavored groups. See Riley v. St. Luke’s Episcopal Hosp., 196 F.3d 514 (5th Cir.1999) (Stewart, J., dissenting), rev’d, 252 F.3d 749 (5th Cir.2001) (“The branch thought to constitute the greatest danger ... was the legisla*269tive; during the operation of the Articles of Confederation, the legislature, in the view of many of the Framers, intruded impermissibly into the sphere of liberty and private property.”). To protect against laws whose object is to restrict religious practice, strict scrutiny in the Free Exercise realm acts as a judicial check against this legislative possibility, placing the burden on the government to prove that the legislative enactment is tailored narrowly to further a compelling governmental interest. If the government fails to shoulder this burden with respect to laws that place a substantial burden on one’s Free Exercise rights, it is the courts’ duty to invalidate such a law or action.

The judiciary, then, “[i]n our system of checks and balances ... by its very nature, is and is supposed to be the antidemocratic branch.” Porter v. State, 47 Md.App. 96, 109, 421 A.2d 985, 992 (1980) (Moylan, J., concurring). Or, stated differently, the judiciary was envisioned as the branch of government that would curb a legislature’s attempts to oppress the minority (or, in this case, oppress one’s religious beliefs and/or practices), and not the branch that, itself, would engage in the oppressing. The possibility of a “tyranny of the majority” in legislative enactments — perhaps best exemplified in Hialeah — does not exist to the same degree in isolated judicial rulings or determinations. Of course, it is possible for a judge to decide the outcome of a case or of a motion based on religious animus; strict scrutiny, however, does not apply inevitably to all judicial determinations invoking the word “religion.” The abuse of discretion standard provides adequately a proper check against such a possibility.

III. Substantial, or Mere Incidental, Burden?

If one disagrees with my view that the judge’s denial of Petitioner’s motions to postpone the trial for Shavuot constitutes a neutral and generally-applicable governmental action, it does not follow necessarily that strict scrutiny is the proper standard of review. As discussed supra, to the extent a governmental action is an “individualized assessment” or is not neutral and generally applicable, under Sherbert, strict scruti*270ny applies only if the governmental action in question places a “substantial burden” on one’s Free Exercise rights.

In this regard, our opinion in Trinity, supra, becomes relevant. Accordingly, a brief reiteration of the relationship between Trinity and Free Exercise jurisprudence is in order.

In 1993, Congress enacted ... the Religious Freedom Restoration Act (the “RFRA”), in response to what it perceived to be an erosion of religious liberty reflected in Supreme Court jurisprudence interpreting and applying the Free Exercise Clause of the First Amendment. [42 U.S.C.A.] § 2000bb(a). Three decades before Congress enacted the RFRA, the Supreme Court decided Sherbert v. Verner .....The substantial burden test (the Sherbert test) remained the law of the land governing claims under the Free Exercise Clause until 1990 .... [when it decided] Employment Div., Dep’t of Human Resources of Or. v. Smith .... The Court [in Smith ] turned its back on the substantial burden test, noting that it “was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct,” namely unemployment compensation. Congress enacted the RFRA to respond to Smith. See City of Boerne v. Flores, 521 U.S. 507, 513 [117 S.Ct. 2157, 138 L.Ed.2d 624] (1997) (noting that “Congress enacted RFRA in direct response to ... Smith ”).... Congress disagreed that application of the substantial burden test would invite anarchy, finding instead that it “is a workable test for striking sensible balances between religious liberty and competing prior government interests.” 42 U.S.C.A. § 2000bb(a)(5). Congress found further that neutral, generally applicable laws nonetheless may have the effect of burdening religious exercise to the same degree as laws intended to stifle such exercise. Accordingly, the RFRA announced that “[g]overnment shall not substantially burden a person’s exercise of religion[,] even if the burden results from a rule of general applicability ... [unless] it demonstrates that application of the burden ... is in furtherance of a compelling governmental interest[ ] and is the least restrictive means of furthering that ... interest.” Id. *271§ 2000bb-l (a) & (b). An attack on the RFRA, however, was quick and decisive. In City of Boeme v. Flores, the Supreme Court partially invalidated the RFRA, holding that the enforcement power granted to Congress by the Fourteenth Amendment did not empower Congress to impose universally the substantial burden test on state and local governments.... After three years of hearings, Congress found that actions by state and local governments, in these two areas [land use and institutionalized persons] particularly, threaten religious exercise. To ensure that the RLUIPA did not suffer the same fate as the RFRA, Congress circumscribed the reach of the substantial burden test.

Trinity, 407 Md. at 86-89, 962 A.2d at 423-425. Because courts “have defined RLUIPA’s substantial burden provision by reference to the Supreme Court’s free exercise jurisprudence,” Vision Church, United Methodist v. Vill. of Long Grove, 468 F.3d 975, 996 (7th Cir.2006), and because it is my view that the substantial burden test is relevant to the present case, I turn for guidance to Trinity — a Maryland RLUIPA case — to “gauge the reach of ‘substantial burden.’ ” Trinity, 407 Md. at 93, 962 A.2d at 427; see Rouse v. Caruso, 2007 WL 209922, at *6, 2007 U.S. Dist. LEXIS 4941, at *18 (E.D.Mich. 24 January 2007) (“The RLUIPA does not define ‘substantial burden,’ but the courts that have considered the Act have defined the term by reference to the Supreme Court’s First Amendment case law.”).

In Trinity, this Court cited, with approval, the following elucidation of other courts regarding “substantial burden”:

• Government action “which may make it more difficult to practice certain religions but which ha[s] no tendency to coerce individuals into acting contrary to their religious beliefs” does not qualify as a substantial burden — Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450, 108 S.Ct. 1319, 1326 [99 L.Ed.2d 534] (1988).

• “[A] substantial burden on religious exercise occurs when a ... government, through act or omission, ‘put[s] substantial pressure on an adherent to modify his behavior and to *272violate his beliefs.’ — Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.2006).

• “A ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”— Guru Nanak Soc’y of Yuba City v. County of Sutter, Casey Kroon; Dennis Nelson; Larry Munger; Dan Silva, 456 F.3d 978, 988 (9th Cir.2006).

• “A ‘substantial burden’ must place more than an inconvenience on religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”— Midrash Sephardi, 366 F.3d at 1227.

• A substantial burden on religion is a restriction that “prevents adherents from conducting or expressing their religious beliefs or causes them to forgo religious precepts.”— Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 406 F.Supp.2d 507, 515 (D.N.J.2005)

Trinity, 407 Md. at 93-94, 962 A.2d at 428-29. I think that the judge’s denial of Petitioner’s motion to postpone the trial for Shavuot did not “coerce,” “put substantial pressure on,” or “impose a significantly great restriction or onus upon” Petitioner to violate his religious precepts. Had the judge’s denial of his motion to postpone placed such a burden on Petitioner’s Free Exercise rights (or Petitioner perceived truly such a burden), Petitioner, I suspect, would have informed the trial court at some point during the period between 24 January 2008 — when the final trial dates were scheduled — and 6 May 2008 — the date on which Petitioner first and ultimately informed the trial court of the Shavuot conflict, less than a month before commencement of trial. See United States v. Baldwin, 770 F.2d 1550, 1557 (11th Cir.1985) (“Appellant had a duty to inform the court [about a religious holiday] sufficiently before the trial in order to assert his [F]irst [Amendment rights.”) (emphasis omitted). That is not to say that the exercise of Petitioner’s religion was not affected in any way by the trial court’s denial of his motion; of course, neither he nor his counsel was able to attend trial on either day of Shavuot. *273Yet, governmental action “that merely inconvenience^] the exercise of religion do[es] not create a substantial burden.” First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274, 1290 (11th Cir.2010), vacated by, 616 F.3d 1229 (11th Cir.2010).

In distilling the authorities in Trinity, we stated that a substantial burden on religious exercise exists — albeit in the RLUIPA context — “only if it leaves the aggrieved religious institution without a reasonable means to observe a particular religious precept.” Trinity, 407 Md. at 96, 962 A.2d at 429. An amicus here asks rhetorically: “If Jews could not hold public office in Maryland until 1825, is it an unfair stretch — or an unconscionable reality — to suggest that they cannot freely observe their holidays in 2010?” Brief for Interested Professors of Law as Amici Curiae Supporting Petitioner, at 31. Simply put, Petitioner was free to celebrate Shavuot as he deemed fit; the trial court did not compel his presence in court in violation of the Jewish faith. Accordingly, because Petitioner was with “reasonable means” to observe the holiday of Shavuot, I do not think a “substantial burden” was placed upon his Free Exercise rights. See State v. Pride, 1 S.W.3d 494, 507 (Mo.Ct.App.1999) (applying the abuse of discretion standard to a denial of a motion to continue a trial); Gordon v. Gordon, 739 S.W.2d 728, 731 (Mo.Ct.App.1987) (same).

IV. Applying the Abuse of Discretion Standard of Review to the Present Case

According to the Majority opinion, the trial court abused its discretion in denying Petitioner’s motions to postpone the trial “because the articulated rationales ... failed to reasonably accommodate Petitioner’s right to engage in religious conduct and to meaningfully participate in his trial.” 418 Md. 231, 244, 13 A.3d 1227, 1235 (2011). That is not the abuse of discretion that I would find. Rather, I believe the trial court abused its discretion because the facts in evidence, according to the record extract, do not support the proffered rationales for denying Petitioner’s motions to postpone the trial.

*274Pursuant to Maryland Rule 2-508, “[o]n a motion of any party ... the court may continue a trial or other proceeding as justice may require.” (Emphasis added.) Because the Rule invokes the precatory word “may,” we have held that “the decision to grant a continuance [or postponement] lies within the sound discretion of the trial judge” and that “[a]b-sent an abuse of that discretion we historically have not disturbed the decision to deny a motion for a continuance [or postponement].” Touzeau v. Deffinbaugh, 394 Md. 654, 669, 907 A.2d 807, 816 (2006).

In Gray v. State, we explained the abuse of discretion standard as follows:

Abuse of discretion is one of those very general, amorphous terms that appellate courts use and apply with great frequency but which they have defined in many different ways.... [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of “untenable grounds,” “violative of fact and logic,” and “against the logic and effect of facts and inferences before the court.”

Gray v. State, 388 Md. 366, 383-84, 879 A.2d 1064, 1073-74 (2005) (quoting Dehn v. Edgecombe, 384 Md. at 628, 865 A.2d at 616 (quoting North v. North, 102 Md.App. 1, 13-14, 648 A.2d 1025, 1031-1032 (1994))). Although we are reticent (because of the highly deferential nature of the standard) to find an abuse of discretion in a trial court’s denial for a request for a postponement or continuance, I would hold here that a trial court is required to make an on-the-record explanation of the reasons supporting a decision to deny. See Baumann v. Wyse, 2010 WL 114422, at *2, 2010 N.J.Super. *275Unpub. LEXIS 78, at *4 (N.J.Super.Ct.App.Div.2010) (finding an abuse of discretion where the trial court gave no explanation in denying a party’s motion). While the trial court, in this case, did make an on-the-record findings, I would hold that her denial is “well removed from any center mark imagined” by this Court and that she abused her discretion in denying the motion, not because her ruling does not flow logically from the findings upon which it rests, but rather because the record extract does not support the articulated findings upon which it rests. See Grant v. State, 414 Md. 483, 995 A.2d 975 (2010) (holding that it is an abuse of discretion for a court to “exercise that discretion without preserving the evidentiary basis for its decision” and finding that “[t]he fact that the trial court’s bases for its decision ... are beyond our reach makes it untenable to sustain the trial court’s ruling as a permissible exercise of its discretion”).

As mentioned supra, the trial court offered the following reasons for delaying Petitioner’s motion to postpone the trial: lack of authorization from the administrative judge; busy trial calendar; lack of judges; effect on witnesses, jurors and members of the community; and delay in bringing the issue to the court’s attention. At bottom, however, the judge, at various points throughout the relevant motions hearings, stated that she was willing to work around the two-day Shavuot holiday if defense counsel was able to reschedule the expert witnesses scheduled originally for those two days. For example, during the 22 May 2008 hearing on Petitioner’s motion to postpone the trial, the following colloquy ensued:

[JUDGE] I would ask [defense] counsel if you can contact your witnesses to see if any of them are available to reschedule.
[COUNSEL] I wifi do that, Your Honor.
[JUDGE] If enough witnesses were rescheduled so that we didn’t need to sit either Monday or Tuesday I would not sit.
*276[COUNSEL] I will certainly do that. I will contact all four of the experts. I will make my best efforts to explain the holiday situation and see what we can do.
[JUDGE] [T]he Court’s calendar is ... double booked the second week of this [trial]. I at one point had five trials that Monday, we’re now down to only two, this, and another malpractice trial which they are bringing in another judge to cover. But that’s how, I mean, we’re just double and tripled booked every week. So it is important that this trial end that second week. But if defense counsel can reschedule any of their experts, I am asking them to attempt to do that.

(Emphasis added.) Similarly, Respondent, in its brief, argues: “By that time [May 5 — when Petitioner first sought redress from the Circuit Court] counsel for both of the Defendants had already begun scheduling their expert and fact witnesses to testify at trial. Incidentally, as with most medical malpractice cases, the expert witnesses were physicians or other health care providers. In order to secure these witnesses five at trial, several months notice is often required to ensure their availability. Furthermore, once confirmed, schedules are extremely difficult to adjust within a month’s timeframe.”

In support of these contentions, Respondent cites to the record extract and the appendix in support of the above assertions. The record extract at the cited-to page, however, merely quotes Respondent’s counsel as saying that “I am trying to get my experts and witnesses set in for trial.” Furthermore, the cited-to pages in the appendix merely show that Respondent’s counsel informed the experts of the June 3 commencement of trial — not that they were either (a) officially scheduled to testify on June 9 or 10 of the trial scheduled to run through June 13; or (b) asked about their availability to testify at another time during that period. Further, while Respondent argues on appeal that “[o]nly one of Respondent’s experts (Dr. Geckler) could accommodate moving his trial appearance” and “Respondent’s experts were unable to change their trial appearances,” Respondent offers no citation to the *277record extract to support these statements. My review of the record extract proved fruitless in finding support for Respondent’s appellate advocacy.

While the abuse of discretion standard appreciates that “[questions within the discretion of the trial court are much better decided by trial courts than by appellate courts,” In re Yve S., 373 Md. 551, 586, 819 A.2d 1030, 1051 (2003), the phrase “standard of review” suggests that appellate courts nevertheless have some duty to review. Where, like here, the reasons upon which a trial court bases his or her denial of a motion to postpone a trial — especially where the tendered and undisputed reasons for a brief postponement is the practice of genuinely held religious beliefs — are not supported by an adequate evidentiary predicate in the record extract, it is my view that the judge abused his or her discretion. See United States v. Doe, 356 Fed.Appx. 488, 489 (2d Cir.2009) (“Where First Amendment rights are implicated, our abuse-of-discretion review ... is more rigorous than usual.”) (internal quotation marks omitted). Agreeing with the Majority opinion that Petitioner’s absence from the trial was presumptively prejudicial, I concur in the judgment.

Judge MURPHY authorizes me to state that he joins the views expressed in this concurring opinion.

. The phrase "substantial burden" never appears expressly in the Sherbert opinion. Sherbert, rather, speaks of a "substantial infringement” of a First Amendment right. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965, 972 (1963).

. While the Supreme Court in Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531-32, 113 S.Ct. 2217, 2226, 124 L.Ed.2d 472, 489 (1993), stated that “[a] law failing to satisfy [Smith’s neutrality and general-applicability] requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest” — without mention of a finding of "substantial burden” — elsewhere in the opinion the Court noted that "a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny,” and that "a law restrictive of religious practice must advance ‘interests of the highest order.’ ” Hialeah, 508 U.S. at 546, 113 S.Ct. at 2233, 124 L.Ed.2d at 498 (emphasis added). I, therefore, do not read Smith or Hialeah as doing away with the first Sherbert prong in cases where Smith's neutrality and general-applicability guideposts are not met., See Kenneth A. Klukowski, In Whose Name We Pray: Fixing the Establishment Clause Train Wreck Involving Legislative Prayer, 6 GEO. J.L. & PUB. POL’Y 219, 277 n. 418 (2008) ("Sherbert applies to laws targeting religious practice, while Smith applies to generally-applicable laws. They address different types of state action, and need not contradict each other. The legal fact that Smith does not overrule Sherbert can be understood both by the fact that Sherbert is still referenced as authoritative in recent Supreme Court cases, and because Smith never says it overrules Sherbert. To the contrary, Smith simply holds that Sherbert does not apply to religion-neutral laws____The Supreme Court has clearly stated as much, [citing Hialeah ]____”).

. See Catherine Maxson, “Their Preservation is Our Sacred Trust ”— Judicially Mandated Free Exercise Exemptions to Historic Preservation Ordinances under Employment Division v. Smith, 45 B.C. L.Rev. 205, 225 (2003) ("Because the ordinances [in Hialeah ] were neither neutral nor generally applicable under Smith, the Court subjected Hialeah’s laws to Sherbert’s ... analysis."). The Court did not undertake explicitly an analysis of the first, "substantial burden,” prong of Sherbert, finding that point likely indisputable.

. See Federal Trial Continued for BCS National Championship Game, http://law.about.eom/b/2010/12/1O/federal-trial-continued-for-bcsnational-championship-game-aubum-vs-oregon.htm (last visited 21 December 2010) ("This past week the BCS National Championship game *265pitting Auburn against Oregon was cited as the grounds for continuing a federal trial in the U.S. District Court for the Southern District of Alabama-and the motion was granted.”).

. See Lawyers Who Follow the Texas Rangers Are Crazy, http://www. abovethelaw.com/2010/10/lawyers-who-follow-the-texas-rangers-arecrazy/ (last visited 21 December 2010) (detailing the story of a Texas attorney who requested a continuance to attend the World Series).

. But see Md. Rule 2-508(b) ("When an action has been assigned a trial date, the trial shall not be continued on the ground that discovery has not yet been completed, except for good cause shown.”).

. Instructive on this point is Rector, Wardens, and Members of the Vestry of St. Bartholomew's Church v. City of New York, 914 F.2d 348 (2d Cir.1990), in which members of a church alleged violations of their Free Exercise rights when the Landmark Preservation Commission of New York City applied the City’s "Landmarks Law” — which protects buildings deemed "landmarks” from being altered or demolished — to prevent them from replacing the church's activities building with an office tower. See St. Bartholomew, 914 F.2d at 350-352. St. Bartholomew is particularly apt because the plaintiffs did not assert that the law itself infringed upon their Free Exercise rights; rather, they alleged that the decisionmaker's (i.e., the Board's) application of the statute caused the constitutional violation. The church members, in support of their argument that the Commission’s application of the Landmarks Law infringed impermissibly on their Free Exercise rights, "cite[d] commentators ... who are highly critical of the Landmarks Law on grounds that it accords great discretion to the Commission....” St. Bartholomew, 914 F.2d at 354. In responding to this argument, however, the Second Circuit held that "absent proof of the discriminatory exercise of discretion, there is no constitutional relevance to these observations.” St. Bartholomew, 914 F.2d at 355.