by Mitch Kokai
Senior Political Analyst, John Locke Foundation
More than before, religious liberty is a prominent feature of the U.S. Supreme Court’s docket. These cases raise many doctrinal questions: What is religious speech? When and how is government “neutral” toward religion?What does it mean for religious groups to participate equally in public programs? What protections do the religious have against government discretion? Do those protections change based on corporate status? What if the government admits it could accommodate a religious organization, but refuses to do so? Can a government re-fuse religious accommodations based on comparisons to secular accommodations, and if so, what is properly comparable? What makes a church employee a “minister”? And to what extent can civil courts intrude into a religious organization’s internal decisions? Although these myriad contexts call the Free Exercise “fiddler” to dance to many tunes, one thing is clear: the fiddler is dancing on unstable doctrine.
That is because current doctrine often rests on Employment Division v. Smith. Smith refused to authorize a religious exemption from an “across-the-board-criminal prohibition on a particular form of conduct.” The folk understanding of Smith is that the government never has to accommodate religious believers burdened by “neutral” and “generally applicable” laws. This baseline treatment continues even as five sitting Supreme Court justices acknowledge “compelling” reasons to overrule Smith. And, as will be discussed, Smith’s premises are disintegrating. In short, the Free Exercise Clause needs surer footing than Smith.
Smith should be abandoned and “text, history, and tradition” should be adopted in its place. This latter approach is taken by standard originalism, fully expressed in the Second Amendment context, and—notably for the Free Exercise Clause—already applies to other Religion Clause doctrines. On this approach, the Free Exercise Clause would presumptively protect a given religious exercise unless the opposing party can show a long, unbroken tradition of restriction that is analogous to the burden at issue.