The Supreme Court has not heard a straight-on Free Exercise case since it decided Lukumi in 1993. That case involved some off-beat religious observances, at least if one considers animal sacrifice “off-beat.” The city of Hialehah prohibited the ritual slaughter of animals, which did not just happen to be a regular practice of a marginal and unpopular local sect, called “Santeria.” The constitutional problem was complicated by the fact that slaughtering animals for sport or for food was not restricted. Thus the ordinance targeted widely permitted conduct — animal slaughtering — but only when done for specifically religious reasons. Circumstances left no doubt, either, that the whole idea was to suppress the Santeria folks. The Supreme Court rightly said that the law violated the Free Exercise Clause.
Two cases the Court is now considering may break the long Free Exercise drought. One is St. John’s United Church of Christ v. City of Chicago. O’Hare Airport wants to build a new runaway. That welcome news to travelers is bad news for a small religious cemetery which lies in the runway’s path. The only way to for the runway to clear legal obstacles was for the Illinois legislature to suspend operation of a religious liberty law which would have protected the cemetery from destruction. That law discriminated against a religious use of property; the cemetery was expressly targeted. But, unlike the Hialehah case, there was no anti-religious animus. Progress not prejudice was the driving force. The law firm of Hogan and Hartson filed the petition for Supreme Court review in this case.
The other case is Lighthouse Institute for Evangelism v. City of Long Branch. Long Branch, New Jersey banned all churches from its moribund downtown in order to reinvent it as a regional entertainment destination. So, theaters and bars: good. Churches and soup kitchens: bad. The Beckett Fund for Religious Liberty represents a small church told it could not use its downtown property to minister to the poor. This case raises the same issue as O’Hare: does a law which targets religion for negative treatment run afoul of Free Exercise even if there is no evidence of hostility to religion?
The Third Circuit practically dared Justice Alito to take Long Branch for review by rolling back three Free Exercise decisions he authored while a judge of that court, even calling his last decision “perhaps an overstatement.”
The Court could do much to clarify Free Exercise law by taking up these cases. The Justices are expected to decide about that before the end of May.