Back in the 1960s, the Supreme Court made several rulings supportive of what many on the right would call “religious freedom.” For example, it ruled that Amish parents could not be required to send their children to school past eighth grade. It offered a set of arguments (such as that Amish children don’t typically grow up to become wards of the state) that could help distinguish this case from other claims that religious people don’t have to follow certain laws.
The tide turned in the 1980s, however, and the Court instead offered what I think is a much more reasonable standard: Secular laws of general applicability may be applied to religious practices, but lawmakers may not specifically target religious practices. For example, in Employment Division v. Smith, the Court ruled that drug bans may apply to American Indians who use peyote in their rituals.
In my view this has a major advantage over the previous system: It still protects religious groups from outright persecution, but for the most part it places the thorniest questions — What counts as a religion? How do you draw a line between smoking peyote and circumcising your daughter? What about people who refuse to apply for the draft, serve on juries, or pay their taxes? How do we stop people from avoiding the law by making up religions or joining existing ones insincerely? — before the political process instead of the courts. In fact, Congress acted swiftly to add an exemption to drug laws for American Indians.
Today, however, it’s as if those cases never existed. Throughout the conservative media, you’ll find assertions that the Obama administration’s birth-control mandate — indisputably a secular law of general applicability — is not merely a bad law that will have especially bad effects on Catholics, but an offense against “religious liberty” and a violation of the First Amendment. And in the recent Hosanna-Tabor case, the Court found that when it comes to “ministers,” quite broadly defined, religious institutions are free to ignore many employment laws, even when they’re making a decision that has nothing at all to do with religion.
[UPDATE: Ed Whelan has made the case that the birth-control mandate is not truly a secular law of general applicability. He's also explained how the mandate could violate federal law, as opposed to the First Amendment.]
I wonder if the Court would have been better off overruling the previous batch of cases, and in particular Smith, entirely. I think Smith is superior to what came before, but I seem to be in the minority, and the Court itself doesn’t seem to be applying that standard anymore.
To be fair, the Court does try to grapple with this — it claims that smoking peyote is an “outward physical act” instead of an “internal church decision.” Unless the Obama administration backs down, the lawsuits over the birth-control mandate should reveal to us exactly what that means.