Legislative remedies no antidote to ‘Smith’ decision

Monday, November 2, 1998

In the 1990 case of Employment Div., v. Smith, the Supreme Court held that generally applicable health, welfare and safety laws pose no First Amendment free-exercise clause problem even if they severely infringe on religious practices. According to the holding in Smith, only laws that specifically target religion give rise to a free-exercise claim. Smith overruled a 30-year line of cases in which the court had balanced the extent of a general law’s “accidental” interference with religion against the importance of the government’s regulatory interest. When the accidental interference with religion outweighed the government’s interest in applying the law to a religious practice, the free-exercise clause required that the religiously motivated conduct be exempted from the general regulation. The court’s pre-Smith jurisprudence intuitively recognized that tyranny of the majority would be manifested more often through neutral laws passed without regard to minority religious interests than through laws intended to suppress minority religions.

In response to the Smith decision, a coalition of libertarians and religious organizations pressed Congress to legislatively reinstate what they understood to be the pre-Smith jurisprudence. The result was the Religious Freedom Restoration Act of 1993 (RFRA), which was quickly struck down by the Supreme Court as a legislative action that exceeded the specifically delegated legislative powers of Congress. The numerous supporters of RFRA have responded to that setback with a two-part strategy: a) the proposed Religious Liberty Protection Act (RLPA), which is a rewrite of RFRA that applies only in those areas that are subject to one of Congress’s delegated legislative powers (e.g., federal spending programs), and b) RFRAs passed by each state legislature.

Although this new strategy solves the legislative power problem that sank the original RFRA, any attempt at a legislative fix for the court’s misstep in Smith is problematic for three reasons.

First, RLPA and the state RFRAs require a religious exception to any generally applicable law unless the government can show a “compelling interest” in applying the law to the religious conduct. Prior to Smith, the court applied the compelling-interest test only to the most serious accidental impairments of religion. Less serious accidental impairments were sustained on the basis of far less than “compelling” regulatory interests. Because the compelling interest test is the most demanding standard that the Supreme Court has ever devised, its application by RLPA and the state RFRAs will create many more religious exemptions than the court would have created pursuant to its pre-Smith balancing jurisprudence.

Second and more important, the religious exceptions created by RLPA and the state RFRAs are preferential treatment of religion that is not required by the free-exercise clause after Smith. Preferential treatment of religion over nonreligion violates the establishment clause.

Third and most important, pursuing a legislative fix for Smith leaves unchallenged the basic holding in Smith that accidental interferences raise no First Amendment problem. This principle applies equally well to free speech, as Justice Antonin Scalia argued in his concurring opinion in Barnes v. Glen Theatre. The result of this logical extension would be that accidental interferences with speech (usually known as time, place, or manner restrictions) would raise no First Amendment problem no matter how serious the interference.

Only the Supreme Court can remedy its analytical misstep in Smith. The vigorous efforts of RFRA-RLPA proponents should be redirected to persuading the court to overrule Smith at the earliest opportunity.

Tom McCoy is a professor with the Vanderbilt University School of Law and a legal correspondent for the First Amendment Center.