In a certain country: One city told a Catholic church where to put its altar. Another zoned a storefront church out of its only affordable location. A school board forced a Muslim teacher to choose between her job and the traditional robes required by her religion. A court denied compensation to the heirs of a Jehovah's Witness who refused a blood transfusion after an auto accident. Another court equated churches' legal rights with those of pornographic movie houses.
This aggressively secular nation is not Cuba, or China, or the Soviet Union. It's the good old United States of America, and this is the state of affairs since April 17, 1990. On that day a conservative Supreme Court majority decided the case known as Employment Division v. Smith and, in doing so, went out of its way to disembowel the second clause of the First Amendment--"Congress shall make no law . . . prohibiting the free exercise [of religion]." By a 5-4 margin, the justices ruled that this clause does not guarantee religious believers any exemptions from "generally applicable" laws, even if the laws violate their consciences.
The Court's decision was not widely understood at the time and has gotten little notice. But according to First Amendment scholar and University of Chicago law professor Michael McConnell, it is the most important decision in recent history interpreting the free-exercise clause. Speaking on the floor of the House in June 1990, Democratic U.S. representative Stephen Solarz of Brooklyn called it "a dastardly and unprovoked attack on our first freedom." The religious lives of both minority and mainstream believers are now fair game for government regulation--or suppression--in ways that they have not been before.
In the mid-1980s, Alfred Smith worked for an Oregon drug rehabilitation clinic. He was fired when authorities learned that he had eaten the hallucinogen peyote as a sacrament at a worship service of the Native American Church. When the Oregon Department of Human Resources denied his application for unemployment benefits, he went to court.
The law seemed to be on his side. In similar cases going back almost 30 years, the U.S. Supreme Court had held that the government must allow religious objectors exemptions to laws and regulations unless it can show that it has a "compelling interest" in enforcing them and that there is no less restrictive way of serving its interest. That's why a Seventh Day Adventist can turn down a job that requires work on Saturday and still collect unemployment (Sherbert v. Verner, 1963), and why Amish parents with religious objections to public schooling don't have to obey compulsory-attendance laws (Wisconsin v. Yoder, 1972). Otherwise the government would be unnecessarily restricting their right to freely exercise their religion.
Following these precedents, the Oregon appellate and supreme courts ruled that Smith should get benefits. Although Oregon prohibits peyote use, the law is not enforced and in any case has nothing to do with unemployment compensation, according to the state supreme court. The state of Oregon officially disagreed, and decided to ask the U.S. Supreme Court the basic constitutional question: Isn't the state's interest in curbing drug use compelling enough to override the right of members of the Native American Church to freely exercise their religion?
That's a close call. On one hand, allowing any exceptions to drug laws would make prohibition even harder to enforce than it already is. On the other hand, peyote is neither much fun nor part of the drug trade. But deciding such close calls is what we pay Supreme Court justices $153,600 a year apiece to do. Had they made the call, either way, Smith would have remained a minor case except to those directly involved.
Instead the Court dumped the "compelling interest" test altogether, and ruled that almost any "law of general applicability" applies to religions and churches, regardless of how it affects their beliefs. State or federal lawmakers can make exemptions if they so choose--conscientious objection to the military draft is one--but the Court now says the U.S. Constitution doesn't require any. ("That's absurd," says local ACLU staff attorney Jane Whicher. "If a religion has enough political clout, they get their free-exercise right--if not, they don't.")
If the substance of the Smith decision surprised knowledgeable court watchers, the procedure the Court used to arrive at it appalled them. It's as if an umpire carefully watched a close play, and then ruled the runner safe . . . because home plate should have been ten feet closer to third base.
Normally the Supreme Court frustrates journalists and other observers who want exciting, precedent-setting, news-making decisions every time. It does not take up hypothetical cases, and it avoids making big decisions whenever it can. It changes its mind slowly, rarely reverses itself outright, and decides most cases on the narrowest possible grounds. (This is one reason why Plessy v. Ferguson perpetuated school segregation for 58 years, and why Roe v. Wade is still hanging on almost 12 years into the Reaganozoic Era.) On those rare occasions when the Court is considering a major doctrinal change and the competing parties have not addressed it--the Smith case, for instance--the Court would normally ask both sides to reargue the case in light of the broader issues. Even that degree of judicial activism upsets some justices.
This time the Court didn't bother to ask for reargument. Nobody knew what they were up to until they did it. As Michael McConnell writes, in Smith "the question presented was entirely hypothetical, irrelevant to the disposition of the case as a matter of state law, and neither briefed nor argued by the parties." When I asked, he couldn't think of another case the Court had treated in this way.
How the Court proceeded was bad enough. The arguments it used--in an opinion authored by former University of Chicago law professor Antonin J. Scalia--were worse. William P. Marshall, who teaches law at Case Western Reserve University, and who agrees with the Court's result, has nonetheless written that its ruling "exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction. . . . [It] is also a paradigmatic example of judicial overreaching." In his article Marshall sought "to defend Smith's rejection of constitutionally compelled free exercise exemptions without defending Smith itself."
First, Scalia--who in McConnell's words has been "one of the Court's foremost exponents of the view that the Constitution should be interpreted in light of its original meaning"--showed little interest in figuring out what the framers of the First Amendment had in mind. He noted that the free-exercise clause could be interpreted either broadly (requiring religious exemptions to generally applicable laws) or narrowly (merely prohibiting overt discrimination against a religion), but he did not consider which reading is closer to the framers' intent. Nor did he examine the clause's history. Had he done so, he would have learned, among other things, that eight early state constitutions--likely models for the U.S. Constitution--explicitly allowed for free-exercise exemptions.
"This is a strange and unconvincing way to deal with the text of the Constitution, or of any law," writes McConnell, who came to the U. of C. from the Reagan Justice Department. "A court should not disregard the text merely because it contains some degree of ambiguity. Rather, a court should determine the reading of the text that is most probable. . . . Had the Court made even a cursory inquiry into the history of the clause, it would have been impossible for it to toss off the remark that the compelling interest test 'contradicts both constitutional tradition and common sense.'" (McConnell has a personal interest in this point. In the spring of 1990 a major article of his on the origins of the free-exercise clause was about to be published in the Harvard Law Review; because no one knew the justices would be delving this deep, no one had any reason to bring it to their attention.)
Even more astonishingly, the Court proceeded to rewrite its own recent history, denying that it had ever allowed religious exemptions. Legal reasoning aside, the denial lacks credibility because Scalia himself acknowledged in a 1989 dissent (Texas Monthly, Inc. v. Bullock) that the Court had done so.
The precedents the Court did use to uphold its no-exemptions view are, in McConnell's word, "troubling." Scalia relied heavily on an infamous 1940 flag-salute case, Minersville School District v. Gobitis, in which the Court had OK'd criminal prosecution of schoolchildren who refused on religious grounds to recite the Pledge of Allegiance. "The Court neglected to mention that, three years after Gobitis, it overruled the case in one of the most celebrated of all opinions under the Bill of Rights. Relying on Gobitis without mentioning Barnette is like relying on Plessy v. Ferguson without mentioning Brown v. Board of Education." Two other cases on which Scalia relied dealt with religious exemptions for Air Force personnel and prison inmates. "It is not auspicious," adds McConnell with characteristic understatement, "for the Court to measure the constitutional rights of free civilians according to the rights of prisoners and military personnel."
But let's be generous. Let's pretend, for the moment, that professor-turned-justice Scalia analyzed the text of the First Amendment, researched its history, and treated the Court's own precedents honestly. Maybe he's right--maybe it's just a bad idea for courts to let religious people out of any legal obligations. Why not leave it up to the lawmakers instead? (William Marshall's defense of the Smith result goes further than this: he contends that courts can't distinguish real religions from crackpot claims, and that if they could, free-exercise exemptions would unfairly favor religions over other belief systems. Unfortunately for him, courts have rarely had trouble deciding what is a bona fide religion, and the framers did choose to single out religious belief for special constitutional treatment both pro and con.)
In a key sentence, Scalia acknowledged that "leaving accommodation [of religion] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in." But that, he said, is an "unavoidable consequence of democratic government," and it "must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."
Scalia sounds a bit like the fourth-grade teacher who wouldn't let you leave class to go to the bathroom ("If I let you, I'll have to let everyone"). In a lengthy list of cases--what he calls a "parade of horribles"--he trembles at the thought of constitutionally required religious exemptions to compulsory military service, vaccination laws, drug laws, traffic laws, minimum-wage laws, child labor laws, animal cruelty laws, environmental protection laws, and even laws providing for equal opportunity. "The First Amendment's protection of religious liberty does not require this." Unless a law is explicitly directed against a particular religion--outlawing crucifixes or golden calves, say--this Supreme Court won't agree that it limits anyone's free exercise.
But courts make discretionary judgments all the time, under all kinds of laws and constitutional provisions. Why should Scalia single out the free-exercise clause for demolition? (In most of the cases cited in his "parade of horribles," the government's interest was held to override the believers' claim for exemption and the claim was denied.) Besides, says McConnell, the Supreme Court's list is laughably one-sided: "For every claim that would, if granted, produce a horrible result, there is a claim that ought to be granted but will not be after the Smith decision.
"Consider the fact that employment discrimination laws could force the Roman Catholic Church to hire female priests, if there are no free exercise exemptions from generally applicable laws. Or that historic preservation laws could prevent churches from making theologically significant alterations to their structures. Or that prisons will not have to serve kosher or hallel food to Jewish or Moslem prisoners. Or that Jewish high school athletes may be forbidden to wear yarmulkes and thus excluded from interscholastic sports. Or that churches with a religious objection to unrepentant homosexuality will be required to retain an openly gay individual as church organist, parochial school teacher, or even a pastor. Or that public school students will be forced to attend sex education classes contrary to their faith. Or that religious sermons on issues of political significance could lead to revocation of tax exemptions. Or that Catholic doctors in public hospitals could be fired if they refuse to perform abortions. Or that Orthodox Jews could be required to cease and desist from sexual segregation of their places of worship.
"While the two parades may be of the same length, they are of very different quality. The judicial system is able to reject claims that would be horrible if granted; believers are helpless to deal with infringements on religious freedom that the courts refuse to remedy."
Well, perhaps not completely helpless. A broad coalition--including People for the American Way, the National Council of Churches, the American Civil Liberties Union, the National Association of Evangelicals, the Christian Legal Society, and the Traditional Values Coalition--has formed to support the Religious Freedom Restoration Act, which would override Smith and restore the "compelling interest" test by law. (A few prolife former coalition members, such as the U.S. Catholic Conference, have defected, claiming that prochoice advocates have somehow tailored the bill to support a free-exercise right to abortion. McConnell and other scholars strongly deny this.) Originated by Representative Solarz, the bill has 159 House sponsors, including Illinois representatives Cox, Yates, and Hayes. Two otherwise incompatible senators, Joseph Biden and Orrin Hatch, are expected to cosponsor a companion measure in the Senate.
Meanwhile, resourceful lawyers have sought, and some judges have granted, free-exercise claims under state constitutional guarantees. (Article one, paragraph three, of Illinois' constitution guarantees "the free exercise and enjoyment of religious profession and worship, without discrimination." It adds that this freedom does not "dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State"--language that arguably implies that other exemptions might be OK.) And some, including McConnell, have appealed to the Supreme Court in related cases, in hopes of getting it to modify or even reverse Smith.
You don't hear a lot about these efforts. In part, that reflects the mainstream media's ignorance of, and indifference to, religion (the Tribune headlined its April 18, 1990, story on Smith "States can ban ritual use of drugs"). But it also reflects the chill that the Supreme Court's words have laid on believers themselves. Why call attention to yourself, or to this unwelcome decision?
Another reason you don't hear about Smith is that, like most constitutional-law rulings, it has its effects not in the public spotlight of the court system but in daily life. "Most of this stuff happens at the administrative level," says David Lachmann, legislative assistant to Representative Solarz. "It used to be that some public-school principal would be a jerk and tell an Orthodox Jewish teacher not to wear a yarmulke because of the dress code. We could go in and say, you can't do this because of the Bill of Rights. And the school board's attorney [aware of the Supreme Court precedents] would advise the principal to back off. Now you get the exact opposite. The teacher's lawyer says--better go by the dress code, you're out of luck."
There is nothing in Smith that prohibits lawmakers, school boards, or regulatory agencies from granting free-exercise exemptions. (In an ironic footnote to a case replete with ironies, the state of Oregon has now enacted an exemption to its drug laws for the sacramental use of peyote.) But exemptions often conflict with the bureaucratic mind-set. For decades the federal Occupational Safety and Health Administration had exempted Sikhs and Amish from hard-hat rules on construction sites--a provision that hadn't resulted in any injuries or controversy, according to McConnell. After Smith, OSHA gave notice that it was revoking the exemption. Only a public outcry led to its being reinstated.
Unfortunately, there is also nothing in Smith, or in lower courts' application of it to date, that would inhibit religious persecution under the guise of superficially "neutral" laws. The Chicago City Council still cannot constitutionally pass an ordinance forbidding the worship of a golden calf. But it could get away with outlawing all statues of livestock except for those associated with the former Stockyards. The Florida city of Hialeah has done something like this, in a fairly transparent effort (now in litigation) to suppress local practice of the Afro-Caribbean Santeria religion, which involves the ritual sacrifice of animals.
Religious freedom is a great American invention. (McConnell has written that the free-exercise clause "may well be the most philosophically interesting and distinctive feature of the American Constitution.") But, as University of Texas law professor Douglas Laycock points out, "Religious liberty is popular in the abstract, but unpopular in its concrete applications." Religious persecution too is as American as apple pie. The Puritans executed witches and Quaker missionaries; slaveholders largely exterminated African faiths that had survived the Atlantic voyage; Mormon prophet Joseph Smith was killed by a downstate Illinois mob while in government custody; the 1940 Gobitis decision requiring Jehovah's Witnesses to salute the flag "triggered a nationwide outburst of private violence against the Witnesses." Today unpopular religions called "cults" are subject to potentially ruinous damage suits for alleged emotional distress to former adherents.
One theme of conservative jurisprudence, and of Smith, is that judges should defer to majority rule--the courts shouldn't rewrite laws unless they absolutely have to. In Smith, the Supreme Court ran that principle roughshod over a far more important conservative stance: that government power should be limited. "Deference is appropriate when the court would engraft its own value judgments onto the law," says McConnell, "but not where you have constitutional principles written for the precise purpose of cabining governmental power where it might be a problem. The religion clauses are as clear an example of that as can be found in the Constitution."
But for the time being, federal, state, and local lawmakers have a nearly free hand to harass faiths they don't like. If mindless majoritarianism can permanently override one clause of the First Amendment, then even the most secular-minded among us had better take notice.
Art accompanying story in printed newspaper (not available in this archive): illustration/Kurt Mitchell.