Not long ago, if you were to survey religious liberty litigators regarding the biggest obstacle to defending religious liberty, many would have pointed to a Supreme Court case called Employment Division v. Smith. In Smith, the Supreme Court determined that the First Amendment’s Free Exercise Clause only protected religious adherents from laws that targeted their faith. From that point onward, it would not matter how seriously a given law burdened an American’s religious exercise—if the law did not single out religious people, it could not violate the Constitution.
Consider the implications of such a ruling. Under Smith, a law that prohibited circumcision for health reasons and applied to all Americans equally could not be challenged under the First Amendment. It quickly becomes easy to recognize why many defenders of religious liberty would cite Smith as the biggest impediment to protecting Americans’ right to follow their faith.
Smith’s consequences were as swift as they were predictable. The number of religious liberty cases plummeted almost immediately. Free exercise cases dropped by 50%, and the number of favorable decisions for such cases dropped from 39% to 29%. Many of these cases were heartbreaking. For example, courts held that religious parents of various faiths could not challenge laws requiring autopsies on their children, even if doing so was an intrusive and painful violation of their faith because such laws did not target religious people. The true harm here was not that the religious people lost these cases, it was that, under Smith they never even got a chance to fully argue their case in court.
These troubling consequences helped to launch the modern religious liberty movement. Politicians, litigators, and activists spent the next 30 years trying to reduce Smith’s harm. In 1993, Congress passed the Religious Freedom Restoration Act, which restored the pre-Smith levels of protection in cases where religious people were challenging federal laws. However, in cases where a state law was at issue, religious Americans remained burdened by Smith.
It is only in the last few years that religious Americans have started to see across-the-board relief from Smith’s rule. The first small crack in Smith’s armor appeared very soon after it was decided. The court was almost immediately presented with the question of how to react to a law that is neutral on its face, but was cleverly designed to deliver disproportionate harm to religious adherents. Under a plain reading of Smith, courts would be powerless to prevent such hidden bigotry. States could persecute religious people so long as they were smart about how they did it.
In a case called Church of the Lukumi Babalu Aye v. City of Hialeah, the Supreme Court modified Smith to make such abuse less likely. That case involved a regulation governing the disposal of animal carcasses. While the law did not single out any religious practice, circumstances made it clear that it was really intended to prohibit the exercise of a small religious sect, the Church of Lukumi Babalu Aye, whose Santeía faith involved engaging in animal sacrifice.
The law contained various exceptions that, when put together, exempted nearly everyone other than the members of that church. The record also contained hateful statements directed at the Church indicating that the law was motivated by animosity. Rather than applying Smith as written and ruling for the City, the Court created a narrow exception that if a law is gerrymandered to target a certain faith, it is not truly religiously neutral, meaning Smith does not apply.
Smith’s harsh rule, somewhat softened by the Lukumi exception, remained the state of affairs until recently, when things took a dramatic turn for the better. Restrictions on public gatherings due to COVID-19 provided the unexpected catalyst for these improvements. The first case to do so was Roman Catholic Diocese of Brooklyn, which questioned the legality of New York Governor Cuomo’s pandemic restrictions on religious gatherings. The Supreme Court held that Smith did not apply—and therefore the protections of the First Amendment did apply—whenever similarly situated secular activities were treated better than religious activities. New York could not allow more people to congregate for secular purposes than for religious purposes unless it was able to prove that doing so was necessary for a compelling government interest. Unlike in Lukumi, the court did not require a showing that the law was secretly intended to target religion. It was sufficient to show that the law treated secular comparators more favorably than religious ones.
Tandon v. Newsom clarified the exception in Roman Catholic Diocese by establishing that a religious litigant did not have to show that it had been treated worse than all secular comparators, it was sufficient to show that it had been treated worse than some secular comparators.
Fulton v. City of Philadelphia brought us to our modern interpretation of Smith by questioning if the City of Philadelphia was constitutional in suspending certification rights to Catholic Social Services foster agency in response to the agency saying they would decline to certify a couple not adhering to the Catholic ideals of marriage. Fulton expanded upon the exceptions in both Likumi and the COVID cases, and provided the groundwork of Free Exercise that we work with today. Instead of forcing religious adherents to work around specific language regarding an exception or blatant discrimination clauses, Fulton mandates that if the state has the authority to grant an exception on the grounds of Free Exercise, and refuses to, a law is not generally applicable. Most laws have exceptions, which is why Fulton severely weakens Smith.
Although Fulton weakened Smith and provided vast protections in Free Exercise jurisprudence, it neglected to go all the way in overturning Smith. This was due to a lack of quorum among the justices to use Fulton to overturn Smith. Justice Alito was eager to overturn Fulton, writing in his concurrence that “Smith was wrongly decided. As long as it remains on the books, it threatens fundamental freedom. And while precedent should not lightly be cast aside, the Court’s error in Smith should now be corrected.” In her concurrence, Amy Coney Barrett agreed that Smith was wrongly decided, but was hesitant to overturn it due to a lack of legal precedent to replace it. She suggested strict scrutiny as a possible replacement to Smith, but acknowledges that this may come with a categorical burden.
Although the aforementioned cases have certainly softened Smith’s blow, it remains a threat to religious liberty so long as it remains standing. The Supreme Court’s recent decision in 303 Creative v. Eleins affirms Smith’s ever-looming presence. Many assume that 303 Creative was a Free Exercise case because it dealt with a Christian woman declining to endorse same-sex marriage: a religious woman with a religious objection. However, the opinion never even mentions the Free Exercise of religion and is decided solely on free speech grounds. This is due to Smith’s withstanding influence, the law was generally applicable and lacked exceptions and therefore Smith would apply on the grounds of Free Exercise.
Yeshiva University v. YU Pride Alliance offers a compelling vehicle for the Court to finally overturn Smith. The case questions if Yeshiva University, a Jewish undergraduate institution centered on Torah values, should be required to officially recognize (and therefore fund) a Pride Alliance club. Yeshiva lost in New York State courts because Employment Division v. Smith prevented it from bringing a Free Exercise clause challenge to New York’s Human rights law that is forcing it to violate its faith. In their decision on Yeshiva’s application for stay, the Supreme Court required that Yeshiva exhaust all other legal avenues before returning. However, Justices Alito, Thomas, Gorsuch, and Barrett indicated that they are ready to rule in Yeshiva’s favor if the case should return to the Court.
The views expressed in this post reflect the views of the author(s) and not UCLA or ASUCLA Communications Board.
Cover image via Flickr.
