The Much Maligned Smith Decision
In a 1990 decision written by Justice Antonin Scalia–Employment Div. v. Smith—the U.S.Supreme Court reversed course and held that a “valid and neutral law of general applicability” applies to all, even to those who claim that it violates the free exercise of their religion. As long as the law did not target an individual or group and applied equally to all, the Constitution mandated no exemption. The Court recognized that government could grant exemptions by way of favors, but the First Amendment did not compel it to do so.
Before Smith the Court held that in the absence of a “compelling state interest” to the contrary, citizens could assert a right to an exemption to a law that violated their free exercise of religion.
The Smith decision generated an enormous amount of passionate discussion, mostly critical.
In response to the Smith decision, Congress enacted the Religious Freedom Restoration Act (1993) restoring the “compelling state interest” standard. In 1997 the Supreme Court struck down this Act as applied to the states. It probably still applies to the federal government.
In response, several states passed their own Religious Freedom Restoration Acts. All of these should be declared unconstitutional. The Smith decision represents the proper application of the First Amendment and provides the best defense of religious liberty.
In the Smith opinion, Justice Scalia quoted an earlier opinion by Justice Frankfurter:
The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. …To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
Obviously, citizens may not pick and choose which laws to follow based upon their consciences. That would be a formula for anarchy. However, under the “compelling state interest” standard courts pick and choose for them.
If the government has no compelling interest to the contrary, then citizens are entitled to the free exercise of religion as they define it. However, if the government has a compelling interest to the contrary, then citizens may not enjoy the free exercise of religion. This means that judges—according to a skewed definition–allow free exercise to some but not to others. The Constitution states that Congress shall make no law “prohibiting the free exercise of religion,” but that has now been redefined to state that Congress shall make no law prohibiting the free exercise of religion unless it has a compelling interest to the contrary.
The problem arises from the erroneous assumption that the guarantee of the “free exercise of religion” is addressed primarily to individuals instead of to the government. Free exercise of religion is not a guarantee that people can do whatever their consciences tell them. The First Amendment is a statement about what government may not do rather than what citizens may do.
The Amendment is a mandate to government to keep within the bounds of its secular, limited, and specified powers. It asserts that the government has no power or jurisdiction in religious matters. Something that is secular and within the power of government may be defined by a citizen as religious, but that does not compel government to grant an exemption to the law. If the government is addressing a secular matter within its competence, it is acting in a proper secular fashion. In such instances, within the meaning of the Constitution, it is not exercising jurisdiction in religious matters.
Opponents of the Smith Decision fear that it will deprive citizens of the their rights and lead to the oppression of minorities by government. Not so.
Governments have certainly enacted secular laws to oppress or target religious groups. The Smith decision, however, makes it clear that a law that targets a specific group or groups is neither neutral nor valid. The government may provide exceptions for conscientious believers but it is not compelled to do so by the First Amendment. However, other provisions in the Constitution may require such exemptions.
For example, during Prohibition, the government made exceptions for Catholics and Jews to use alcohol for sacramental purposes. An argument can certainly be made that under due process and equal protection government is required to consider granting exemptions for other banned substances used in religious services.
In the 1963 Sherbert case in which the Court first applied the “compelling state interest” to a free exercise of religion claim, the issue involved a Seventh Day Adventist who had been dismissed because she would not work on Saturday and was then denied unemployment compensation. However, the state involved—South Carolina—had already provided an exemption to the law for those who would not work on Sunday. This was a straightforward example of equal protection and the Court complicated the matter unnecessarily by making it a matter of the free exercise of religion.
The “compelling state interest” rule transforms secular judges into religious experts and courts into religious tribunals. The purpose of the First Amendment was to confine government to what is secular and to keep it away from religion.
In 1785 James Madison explained what he meant by the free exercise of religion in his famous Memorial and Remonstrance, a petition he wrote in opposition to a proposed Virginia tax assessment law for the support of ministers:
We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.
If anyone knew what free exercise of religion meant, he did. He invented that concept and included it in the Virginia Declaration of Rights of 1776. He shepherded the Bill of Rights through the First Congress of the United States.
If religion is outside the “cognizance” of government, judges and legislators have no power to evaluate what burdens people’s religion.
The First Amendment, by proclaiming that government shall have no power in religious matters, was a declaration that citizens were free from government jurisdiction in religion and at liberty to exercise their natural right to determine religion for themselves. The Supreme Court has interpreted it as a grant of jurisdiction to courts to determine the meaning and extent of religious liberty and to weigh claims of free exercise against government interest. The creators of the First Amendment perceived legislatures and judges as the principal threats to the people’s religious liberty. Our modern interpretation of the First Amendment now make those same legislators and in particular the judges the guarantors and protectors of that liberty.
The Smith decision represents the best hope for religious liberty. It reflects a better understanding of the standard the Founders laid down in the Constitution and is affirmed in the First Amendment. To entrust the decision of what aids, hinders, or burdens religion to secular courts is constitutionally prohibited. Religion is protected from interference by secular judges who have no competence in it and who may be insensitive or even hostile to religion. To allow judges to evaluate, balance, and pronounce on religious matters is disastrous for religious liberty.