Bench Memos

Law & the Courts

Fix the Free-Exercise Clause

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

In Ricks v. Idaho State Contractors Board, the Supreme Court has an excellent opportunity to do what four justices recently expressed an interest in doing: “revisit” Employment Division v. Smith. An instantly controversial 5–4 decision, Smith is understood to mean that if a government’s action is “neutral” (i.e., it is neither overtly nor covertly attempting to discriminate against religion) and “generally applicable” (i.e., it applies to everyone equally), the free-exercise clause gives courts no basis to accommodate diverging religious practices. Smith did not attempt to argue that this interpretation was commanded by the text of the free-exercise clause. And Smith admitted that reliance on legislatively created accommodations will likely “disadvantage those religious practices that are not widely engaged in.” 

So it has. Indeed, even Professor Phillip Hamburger — author of the foremost attempt to root Smith, post hoc, in the free-exercise clause’s original meaning — subsequently acknowledged that Smith’s “logic . . . breaks down” in light of the growth of administrative lawmaking and attendant limitations on religious political participation. 

This Monday, I filed an amicus brief in Ricks on behalf of the Jewish Coalition for Religious Liberty and Muslim religious-liberty scholar Asma T. Uddin (author of When Islam Is Not A Religion: Inside America’s Fight for Religious Freedom).  Our brief accompanies those from eminent legal scholars, including Professors Douglas Laycock and Michael McConnell, a range of religious denominations, and the Center for Constitutional Jurisprudence. Our brief details Smith’s harm to those with unpopular or unfamiliar religious practices; how it failed to account for the nature of political accommodations or the growth of administrative power; and, finally, how it is antithetical to the judicial role in preserving our national tradition of practical religious accommodation.  

Ricks proves all of these points. Mr. Ricks is a general contractor who must obtain a license from Idaho to work, and who cannot do so because Idaho insists that he violate his faith by providing his Social Security number for identification purposes (even though Idaho has other ways to identify him). Mr. Ricks’s religious practice is (to use Smith’s language) “not widely engaged in”; it implicates the growth of regulatory power; and it would have very likely been accommodated under the federal free-exercise clause before Smith (as Bowen v. Roy strongly suggests). The strength of his claim — and the willingness to “revisit” Smith by enough justices to grant certiorari — might explain why the State of Idaho waived its right to respond. But given the threats to free exercise Smith leaves to fester, threats our brief details at length, the Court should quickly call for Idaho to respond. 

Below is an excerpt from the introduction to our amicus brief, as well as the brief’s concluding paragraph:

Amidst the New Deal’s expansion of federal power, Justice Robert Jackson authored a prescient assessment of this Court’s role in securing fundamental rights.  See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639-40 (1943).  Widely regarded as one of this Court’s finest opinions, Barnette acknowledges that modern government power may increase conflicts with religious liberty—and, correspondingly, increase pleas that this Court protect Bill of Rights guarantees.  See id. at 640.  These “changed conditions” may “cast us more than we would choose upon our own judgment.”  Id.   “But,” Barnette confidently concludes, this Court “act[s] in these matters not by authority of [its] competence but by force of [its] commissions.  [It] cannot, because of modest estimates of [its] competence . . . withhold the judgment that history authenticates as the function of this Court when liberty is infringed.”  Id.       

Smith rendered Barnette’s ringing phrases hollow—and the practitioners of unpopular and unfamiliar religious views have reaped the consequences.  

. . .

A better way exists.  This Court’s Religion Clause jurisprudence increasingly incorporates our founding’s appreciation for religious pluralism and the practical role the Judiciary possesses in safeguarding it.  By granting review, the Court may again safeguard religious liberty from government’s ever-growing enroachments on areas of life once left to civil societyReview is warranted.   


[Correcting Smith] would appreciate what the founders understood as religious liberty’s distinctive characteristic—a manifestation of, as James Madison called them in his Memorial and Remonstrance, “obligations” to divine power, not mere “choices” to do whatever one wants.  Smith missed this distinction completely.  Indeed, it is premised upon the acceptability of separating this “‘proper’” understanding of religious liberty from “the constitutionally required” understanding.  See City of Boerne, 521 U.S. at 542 (Scalia, J., concurring).  Modern society needs no help forgetting the distinction between a freedom to do what one wants and a freedom to do what one must.  The Court does not need to continue harming unpopular religious duties by “preferr[ing]” that the two be conflated. See Smith, 494 U.S. at 890.


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