Employment Division v. Smith: The Eye of the Storm (UPDATE)

The bishops' call for respect for religious freedom is rhetorically adamant. But it is not legally specific. Strikingly, it does not situate itself in the context of the relevant court opinions interpreting the Free Exercise Clause of the Constitution. Here, of course, the key case is Employment Division v. Smith, which radically revised Supreme Court free exercise jurisprudence in 1990-over twenty years ago. In a nutshell, Smith states that valid, generally applicable (criminal) laws do not run afoul of the Free Exercise Clause of the Constitution, even if they hamper some religious practices. And so, the free exercise clause of the First Amendment does not prohibit the state of Oregon from enacting a generally applicable criminal provision against the use of drugs, without granting an exemption to Native Americans using peyote in the course of a religious ceremony. The Smith case would apply as well to a law enacting a generally applicable criminal provision against the use of alcohol, without granting an exemption to Catholics for mass. The most significant thing about Smith, however, is not that the case upheld the prohibition, but that it changed the applicable test. Rather than applying "strict scrutiny," which would have required a compelling state interest and a narrowly tailored law designed to impinge upon religious liberty as little as possible, Smith said that a rationale basis test was enough, provided that the purpose of the law was not to target the affected religious group.Where, exactly, are the bishops' account of religious liberty rooted? In the First Amendment caselaw? As you will see if you read the opinion, Smith poses a real problem for their position. Here is a key quote:

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. Lyng, supra, 485 U.S., at 451, 108 S.Ct., at 1326. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling-permitting him, by virtue of his beliefs, to become a law unto himself, Reynolds v. United States, 98 U.S., at 167-contradicts both constitutional tradition and common sense.

If the bishops are conducting a culture war, why not treat Smith as the judicial bete noire of religious freedom jurisprudence, in much the same way that they've treated Roe v. Wade as the judicial bete noire of abortion jurisprudence? In my view, for three reasons. First, many (but not all) pro-life legal scholars have developed an approach to constitutional jurisprudence that is tied very closely to the text of the constitution and the intent of the framers--an approach that would tend to undermine Roe and support Smith. Without saying so, in the context of religious liberty, the bishops seem to be making an argument based on the spirit of the First Amendment, upon the rights found in its penumbras, upon the "spirit" of the First Amendment, not its "letter" It is this "living constitution" argument, of course, that was used to justify the development of a right to privacy, which in turn justified a right to abortion. Second, it is this living constitution argument that many Republican presidential candidates have promised to repudiate in order to fulfill their promises to their prolife constituencies. Third, the author of the Smith opinion (and of the sentence I quoted above) is none other than Associate Justice Antonin Scalia--who is the hero and hope of the pro-life movement on the Court.Here, conversely, is what Justice Harry Blackmun (the author of Roe's majority opinion) had to say about religious freedom in his dissent from Scalia's majority opinion in Smith:

This [the majority's] distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a luxury that a well-ordered society *909 cannot afford, ante, at 1605, and that the repression of minority religions is an unavoidable consequence of democratic government. Ante, at 1606. I do not believe the Founders thought their dearly bought freedom from religious persecution a luxury, but an essential element of liberty-and they could not have thought religious intolerance unavoidable, for they drafted the Religion Clauses precisely in order to avoid that intolerance.

Constitutional politics makes strange bedfellows!UPDATE: My friend (and extremely gracious host at St. John's) Marc de Girolami on Mirror of Justice says "enough already" with the analysis of Smith! With all due respect, I think he's quite mistaken here, for three reasons. First, it's important to get a grasp on the general rule=--and to appreciate the enormous change it worked in first amendment jurisprudence, before moving on to the exceptions--before getting into the weeds. Second, there is nothing in the rhetoric of the bishops or their surrogates that suggests that this is a matter of discerning whether in fact, an exception is appropriate. Their rhetoric is absolute and demanding; it's not "We -recognize-that--the normal-rule-is-this-but-we're-entitled-to-an-exception." That analysis requires looking at the factors on all sides of the equation, including the interests of the state in not granting an exemption, not asserting what appears to be an absolute right to religious freedom. Third, I think it is undeniable that Smith significantly demoted the protections given to religious freedom under the constitution. Why not criticize it? Why all the effort to shift the discussion elsewhere?So we have a four step box dance that goes like this : 1) The bishops focus the attention on the absolute right to religious freedom; 2) when people say, "What about Smith" (the basic case on the matter); they respond "look at the exceptions" to Smith; and 3) when people say, well, actually, deciding whether an exception applies requires a careful balancing test, taking into account the interests of the government; 4) they respond, "the right to religious freedom is basic and absolute." And we're back where we started.Again, and I"ll bold it: WHY NOT CRITICIZE SMITH? It deserves it.If you want to get into the weeds, lets get into the weeds. Things aren't as clear there. And you have to take into account the government's interest as well.

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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