Photo by Margaret GiatrasAntonin Scalia (yes, that Antonin Scalia) issued a warning that deserves much more attention right now than it’s getting.
The Supreme Court warned in 1990 that allowing religious beliefs to exempt individuals from otherwise valid laws would elevate “the professed doctrines of religious belief” above “the law of the land,” effectively allowing “every citizen to become a law unto himself.”
That caveat came in Employment Division v. Smith. Justice Antonin Scalia, writing for the majority, observed that the court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate. Allowing exceptions to every state law or regulation affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” wrote Scalia.
The Freedom From Religion Foundation had profound disagreements with Scalia over his interpretation of the constitutional principle of separation between state and church. But on this question, Scalia actually got it right: Religious liberty cannot mean that otherwise valid laws become optional whenever someone asserts a sincere religious objection.
For more than three decades, Smith has provided a basic constitutional rule. The government cannot target religious conduct because it is religious. But when a neutral law applies generally to everyone, the Free Exercise Clause does not entitle religious believers to a special exemption.
When Smith came down, it sparked an uproar among churches and religious advocacy groups. The backlash was so intense that Congress overwhelmingly passed the Religious Freedom Restoration Act of 1993 (RFRA), seeking to restore the heightened protections for religious exercise that Smith had rejected. In 1997, however, the Supreme Court held that Congress lacked the power to impose RFRA’s requirements on state and local governments. Congress responded again in 2000 by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA), which imposed heightened protections for religious exercise in land-use and institutional settings. In the years since, numerous states have enacted their own versions of RFRA. Yet, Smith has remained deeply unpopular with many religious advocacy groups, particularly Christian organizations that have continued pressing for its reversal or limitation.
That rule is now in serious jeopardy, but the Supreme Court has not overruled Smith. Yet.
When the court recently agreed to hear St. Mary Catholic Parish v. Roy, it declined to consider the petitioners’ request to overturn Smith outright. However, that should be little comfort. The court has spent years narrowing the decision, while several justices have openly questioned whether it should survive at all.
And a concerning new opinion from the 9th U.S. Circuit Court of Appeals shows where this movement could lead.
The question increasingly confronting the courts is no longer simply whether the government may discriminate against religion. It is whether religion itself gives individuals a constitutional right to demand different rules from everyone else.
A warning from the 9th Circuit
On Sept. 11, the 9th Circuit decided Lewis-Williams v. San Francisco Bay Area Rapid Transit District, a case brought by former BART employees who sought religious accommodations from the transit system’s Covid-19 vaccination requirement.
Six former employees prevailed under Title VII and California employment law after a jury found that BART failed to show that accommodating their religious objections to the Covid vaccine would have imposed an undue hardship. The 9th Circuit affirmed the nearly $7.8 million verdict.
The employees also argued that BART’s policy violated their constitutional right to religious freedom. But because they had already won under federal law, the 9th Circuit said there was no need to decide the separate constitutional question.
9th Circuit Court Judge Ryan Nelson nevertheless wrote a separate concurrence running dozens of pages and mounting a sustained attack on Smith.
“The real problem,” Nelson declared, “is that Smith is demonstrably erroneous.”
Nelson argued that history supports a constitutional right to religious exemptions from neutral laws. He attacked what he described as the “inherent hostility” of the administrative state toward religion and suggested that government administrators operate from an “ethos of rationalism and secularism” that structurally disadvantages believers.
He ultimately argued that the 14th Amendment protects a broad religious right to exemptions from laws that apply equally to everyone.
His view should concern anyone who believes in both religious liberty and the rule of law.
What Smith actually says
Alfred Smith and Galen Black were members of the Native American Church. They were fired after ingesting peyote for sacramental purposes and were subsequently denied unemployment benefits under Oregon law.
They argued that the First Amendment’s Free Exercise Clause required Oregon to exempt their religious use of peyote from its generally applicable drug law.
The Supreme Court disagreed.
Writing for the majority, Scalia explained that the government plainly cannot single out religious conduct for punishment. A state could not prohibit bowing before a religious symbol, for example, simply because it was an act of religious worship.
But religious motivation did not place someone beyond the reach of ordinary laws regulating religious and nonreligious conduct alike.
“We have never held,” Scalia wrote, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
The court therefore held that the Free Exercise Clause generally does not require religious exemptions from neutral, generally applicable laws.
Despite the controversy that greeted it, Smith establishes an essential constitutional baseline:
The First Amendment itself does not ordinarily transform sincere religious belief into a constitutional right to disregard laws everyone else must obey.
Legislatures remain free to create religious accommodations where appropriate. Congress and state legislatures have done exactly that. But those accommodations are political choices that can be crafted to account for competing rights, public interests and the burdens imposed on others.
Without Smith, the constitutional presumption could change. Rather than religious objectors asking elected lawmakers for an accommodation, governments could repeatedly be forced to justify in court why ordinary laws should apply to religious objectors at all.
Which laws become optional?
Even Scalia, who famously decried firm precedent separating church from state, recognized the problem.
If every substantial burden on sincere religious exercise triggers strict scrutiny, religious believers do not simply receive protection against religious discrimination.
They receive a constitutional claim to different treatment.
And the universe of potential conflicts between law and sincere religious belief is enormous.
Consider an employer who objects on religious grounds to an employment protection. Consider a publicly funded organization that wants an exemption from nondiscrimination requirements. Parents who object to child welfare or educational requirements because of their religious beliefs. Businesses that argue complying with generally applicable civil rights laws would violate their owners’ faith.
The same questions can arise under vaccination and public health requirements, land-use regulations, tax laws, drug laws, workplace safety rules and countless other laws governing a modern society.
Not every religious claimant would prevail. Strict scrutiny is demanding, but it is not automatically fatal.
But every one of these disputes could begin from a fundamentally different constitutional premise:
The law applies to everyone, unless religion gives you a constitutional argument that it should not apply to you.
Courts would then have to decide which burdens on religion are substantial, which government interests are sufficiently compelling, which alternatives are sufficiently narrow and which burdens imposed on other people are enough to defeat the requested exemption.
That would not simply expand religious liberty. It would redistribute legal power.
We are already seeing what comes next
The Supreme Court’s upcoming case St. Mary Catholic Parish v. Roy demonstrates why this matters.
Colorado created a publicly funded universal preschool program. Participating providers must generally give families an equal opportunity to enroll without discrimination based on characteristics that include religion, sexual orientation and gender identity.
St. Mary wants the public funding while retaining admissions policies based on Catholic teachings concerning religion, sexuality and gender.
The 10th Circuit rejected the Free Exercise Clause challenge under Smith. The Supreme Court has now agreed to review questions concerning what makes a government policy “generally applicable” and whether more recent precedent has further displaced Smith.
Notably, the justices declined to take the petitioners’ separate question asking them to overrule Smith outright.
But that does not mean Smith is safe.
In Fulton v. Philadelphia, where a Catholic charity demanded the right to discriminate against same-sex foster parents even though the city contract barred such discrimination, the court held that Philadelphia’s foster care policy was not generally applicable because it contained a mechanism for individualized exemptions. Rather than overruling Smith, the court narrowed the universe of laws that receive Smith’s protection.
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch wanted to go considerably further and reconsider Smith. Justices Amy Coney Barrett and Brett Kavanaugh also expressed skepticism about Smith, while questioning what doctrinal rule should replace it.
That unresolved question may be one of the only things keeping Smith alive.
The court does not need to formally overrule Smith to hollow it out.
Every expansion of what counts as discrimination against religion, every narrowing of “general applicability” and every new category of government discretion capable of triggering strict scrutiny makes Smith smaller.
Judge Nelson’s BART concurrence shows the destination some jurists have in mind.
Accommodation is not supremacy
I am not advocating hostility toward religion.
A humane and pluralistic society should accommodate religious practice where it reasonably can, so long as doing so does not interfere with the rights of others, impose significant burdens on others or give religious adherents privileges unavailable to everyone else.
But there is an enormous difference between saying the government should accommodate religious exercise where practicable and saying the Constitution presumptively entitles religious exercise to exemption from otherwise valid laws.
The first protects religious freedom within a pluralistic and neutral legal system. The second transforms religious belief into a license to disregard laws that bind everyone else, privileging religious objectors over nonreligious citizens and undermining the principle of equal treatment under the law.
And this debate becomes particularly distorted when we pretend religious exemptions affect only the people requesting them. They often do not.
An exemption from an employment law can affect other employees.
An exemption from a vaccination requirement can impose risks on coworkers, patients or the public.
An exemption from a nondiscrimination law necessarily affects the person who would otherwise be protected against discrimination.
An exemption granted to a publicly funded institution can determine whether other members of the public receive equal access to a program their tax dollars support.
Every exemption can shift the burden from the person asserting a religious objection to someone who does not share that belief.
That person matters, too.
When courts discuss these cases solely as contests between “religious liberty” and “government regulation,” those third parties disappear from the constitutional equation. But their rights, their safety and their liberty are no less real simply because someone else’s religious beliefs created the conflict.
Religious freedom is extraordinarily important. But religious freedom cannot become a right to control other people’s lives through exemptions from laws enacted to protect them.
Even Scalia understood where this road leads
There is considerable irony in watching today’s conservative legal movement prepare to discard a rule written by Antonin Scalia because it supposedly affords religion too little constitutional protection.
Scalia repeatedly took a narrow view of the First Amendment’s Establishment Clause and often favored greater governmental accommodation of religion than the Constitution permits.
But his warning in Smith deserves to be remembered.
The Supreme Court quoted the 19th-century Reynolds decision saying that allowing religious doctrine to override civil law would make those doctrines “superior to the law of the land” and allow every citizen to become “a law unto himself.”
That is the danger Smith guards against.
The issue is not whether religious freedom deserves vigorous protection. It does.
The issue is whether protecting religious freedom requires transforming religious belief into a presumptive constitutional entitlement to exemption from laws that bind everyone else.
Today the dispute may involve peyote, vaccines or preschool admissions. Tomorrow it will involve another law, another religious objection and another person asked to bear the consequences of someone else’s exemption from following the law.
In a nation of hundreds of millions of people, encompassing thousands of religious traditions and an almost limitless range of sincere theological convictions, can the rule of law survive if religion creates a presumptive constitutional right not to follow the rules?
Smith answered that question more than three decades ago.
We may soon discover what happens when the Supreme Court gives a different answer.
And we are not ready for it.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
One Response
Justice Stevens argued that the Religious Freedom Restoration Act appeared to violate the Establishment Clause because it unduly favored religion. Boerne v. Flores. Scalia defended his approach in a concurring opinion. Unfortunately, he then stopped worrying about it, including his concerns about judges having the ability to weigh religious accommodations.
Oregon v. Smith is an unfortunate case. The original claim was limited to obtaining unemployment benefits and involved a special case of a job where drug use was particularly sensitive. Oregon showed no overall concern about peyote usage.
Congress also protected peyote use, particularly because of its use by Native Americans. The lower court repeatedly tried to narrowly decide the case. The Supreme Court handed down a broad (if largely sensible) ruling, and the rest is history.