Bench Memos

Law & the Courts

Smith Has Got to Go

At the Supreme Court building in Washington, D.C. (Willard/Getty Images)

I own a 1993 Toyota Corolla. It has over 250,000 miles on it. And it has been completely totaled by the insurance company. But it still runs, sort of. So my family still drives it. I recently sunk $1,300 into it to keep it going. Shortly afterwards, it began to randomly die while driving down the road. I was told it needs another $500-1000 to keep it running properly. But I’m done. I’m not sinking another dollar into that car.

Employment Division v. Smith is a lot like my Corolla. Lower courts have invested untold time, sweat, and tears into trying to decipher what neutrality and general applicability mean in the context of religious free exercise. But listening to the oral arguments in Fulton v. City of Philadelphia, all that judicial time and effort has failed to crack Smith’s code. As Justice Alito noted, what do “the complicated arguments about exemptions and the new arguments about contracting, the question whether Catholic Social Services is more like a regular licensee or more like a contractor, say about the stability of [Smith]?” We still don’t know when a law is neutral and generally applicable and when it is not, at least not in the tough cases. If after three decades no one has come up with a Rosetta Stone, we need to abandon the enterprise. Otherwise, we will continue to fumble through over-complicated cases that are the product of Smith’s unadministrable test.

There are other reasons to ship Smith to the doctrinal junkyard. For one, it has led to the equal protectionization of free-exercise jurisprudence. This has been especially evident in COVID-19 cases but is not limited to that context. Courts of all stripes seem to think that the Free Exercise Clause is only violated if religious conduct is treated worse than analogous secular conduct and there is no such violation when both types of conduct are treated the same.

But the problem with this free-exercise equality paradigm is that it is incompatible with something that is required to have special treatment. Whether one thinks religion is special or not, the Constitution treats religious free exercise as special by expressly protecting it. And the Constitution does not also protect most secular conduct that is analogous to religious free exercise. An equal-protection-type analysis doesn’t allow for special treatment — such treatment violates an equality paradigm. So while finding religious conduct is treated worse than analogous secular conduct may suffice to find religious discrimination — which violates equality and the Free Exercise Clause — just because equal treatment is occurring does not mean that something that requires special treatment is receiving it. In fact, it means it is not. So an equality paradigm transforms that which is sufficient into that which is necessary.

Put another way, to make the Free Exercise Clause nothing more than a religious Equal Protection Clause makes little constitutional sense. That’s because religious conduct is expressly protected by the Constitution, whereas analogous secular conduct usually is not. To treat both types of conduct the same may still violate the Free Exercise Clause, allowing government to literally violate the Constitution by prohibiting free exercise just because the government is also prohibiting some similar non-religious behavior. Hence, courts should not stop their free exercise analysis after finding that religious conduct and analogous secular conduct are being treated the same. Courts must then take the next step to see that even if treated the same, the legal restrictions on free exercise violate the Constitution independent of any other restrictions on secular conduct. Adding insult to injury, sometimes the requirement of equal treatment is a mirage, with secular conduct favored over religious conduct. A recent example is the COVID-19 Nevada case where casinos could operate at 50 percent capacity, but churches were limited to 50 worshipers.

Further, limiting the free-exercise analysis to a comparison between religious and secular conduct makes it easy for courts to give short shrift to free-exercise concerns. Finding the correct comparator is sufficiently subjective that a court can always find something that is analogous enough to religious conduct to argue that the two are being treated equally, and thus there is no violation of religious liberty. As Justice Gorsuch observed in the Fulton arguments, “[o]ne of the challenges of Smith . . . is asking . . . what’s comparable enough.” The equality paradigm provides just too much subjective wiggle room for courts to reach their preferred outcome, which is usually not in favor of free exercise.

There are at least two more problems with Smith. It provides so little protection to free exercise that under it there is no motivation for governments to negotiate with religious individuals and entities or protect their interests. That’s because Smith provides the religious no real protection — everyone knows if the law is deemed neutral and generally applicable, the government will win in court.

Relatedly, Smith alters free-exercise claimants’ litigation behavior. Because they know a victory under Smith is a near impossibility, they shoehorn free-exercise claims into the Free Speech Clause. Masterpiece Cakeshop was a good example of this. Most of the briefing by petitioners was spent trying to show how making cakes was protected speech. The free-exercise claims were an afterthought. Any doctrinal test that forces claimants to effectively abandon a constitutional clause is deeply problematic.

So if Smith goes, what then? As I have argued elsewhere, the Court should adopt the Free Exercise Clause’s original public meaning. There are a few possibilities, but only one is consistent with both the text and historical context and relies on the most relevant evidence.

But there may not be five votes for that. If not, as Justice Barrett asked in Fulton’s oral argument, “What would you replace Smith with? Would you just want to return to Sherbert v. Verner?” Not quite.

The Court has refined its free exercise jurisprudence since Sherbert. Under that jurisprudence, there are three tiers of free exercise cases. In the Smith tier are cases involving government laws or actions that are deemed neutral and generally applicable. Free-exercise claims lose in this tier.

A second tier categorically prohibits infringements of free exercise. So far, the Court has identified three types of cases here. For instance, the ministerial exception, which is grounded independently in both Religion Clauses, does not allow for any judicial balancing of government interests. Likewise, the Free Exercise Clause categorically prohibits the government from imposing religious tests on its citizens. Finally, government is forbidden, regardless of how good its reasons, from persecuting or oppressing a religion or its practices.

Finally, there is the strict scrutiny tier, illustrated with cases such as Lukumi or Masterpiece Cakeshop. Any cases not falling under the other two tiers belong here. However, the Court has clarified the free-exercise strict scrutiny test since the days of Sherbert, particularly the element dealing with the government’s compelling interest. Cases such as Yoder and Thomas Review Board, as further explained in O Centro, require that the government show that it has a compelling interest in burdening that particular religious objector, rather than just some generic interest.

Given this three-tier structure, Smith doesn’t need to so much be replaced as removed. Cases that would have fallen under the Smith tier can now be handled by the strict scrutiny tier. This clears free-exercise jurisprudence of Smith with no disruption.

That does not mean that free-exercise strict scrutiny analysis could not use some refinement. What is deemed a compelling interest has the potential to swallow up the Clause’s protections. To prevent that, the Court could adopt a historical perspective on the types of government interests that were deemed (at the state level) to be sufficient to limit the natural right of free exercise. State constitutions from the late 1700s included such things as public peace and physical harm to others or their property. But not every public or private interest was considered weighty enough to trump religious liberty. As Lawrence Tribe has observed, “peace” and “public safety” were not a license for “the state [to] impose its ideal of the ‘best possible life’ as a way of justifying intrusion upon the religious autonomy of a citizen.” Such historical guidance could be useful going forward.

If the Court decides to make Fulton into Masterpiece Cakeshop 2.0 and duck the Question Presented regarding Smith, the Court will merely kick the can down the road of the inevitable decision it will face: abandoning the doctrinal jalopy that Smith has become so that litigants and courts stop pouring precious time and money into figuring out what in the world it means. For everyone’s benefit, Smith should go now rather than later. Thirty years of confusion and anemic free-exercise protection is enough.


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