Twenty-nine years ago, a large and diverse group of legal scholars and religious organizations joined a petition for rehearing in Employment Division v. Smith. Despite their “profoundly different” views on many matters legal and religious, they were united by the conviction that Smith was wrong and would jeopardize religious freedom.
This week, a similarly large and diverse group of legal scholars and religious organizations filed amicus briefs supporting a new effort to revisit Smith. Those briefs explain that the intervening decades have only further proven the initial coalition right—and that the certiorari petition currently before the Court in Ricks v. Idaho Contractors Board (filed by my firm) offers a valuable opportunity for the Court to fix the Smith mistake.
Ricks involves a clear-cut conflict between the obligations of faith and the demands of the law. George Ricks’s religious beliefs forbid him from using his Social Security number to earn a living. But Idaho won’t let him work as a contractor unless he uses it to identify himself on a state registration form. Before Smith, the First Amendment would have required accommodation, especially since Idaho has many other simple and unobjectionable ways to identify Ricks. (Indeed, in 1986’s Bowen v. Roy, five Justices agreed that a government’s refusal to find another way to identify a religious objector reflected nothing more than “the unanchored anxieties of the welfare bureaucracy.”) Under Smith, though, the Idaho Court of Appeals held that because the same registration form applies to everyone—because it is, in Smith’s terms, “neutral” and “generally applicable”—no religious accommodation was necessary, even though accommodation was easy.
That sort of reasoning, Ricks’s amici pointed out to the Supreme Court this week, harms religious freedom. And indeed, as ten prominent legal scholars—including Douglas Laycock and Michael McConnell—explained, Smith has “been criticized from every side.” The legal scholars note that “subsequent academic work” has demonstrated that Smith is inconsistent with the original meaning of the Free Exercise Clause, and that one pillar of its reasoning—“the supposed unworkability” of a vigorous accommodation regime—has been shown “to be baseless” by more recent experience with statutes requiring judicial accommodations.
In addition to being wrong, though, Smith has had a disproportionate impact on religious minorities, as a brief filed on behalf of Jewish and Muslim amici explained. After Smith, whether a religious practice is accommodated or not typically depends on the religious group’s political clout—which means that “the practitioners of unpopular and unfamiliar religious views have reaped [Smith’s] consequences.” This disadvantaging of minority practices in favor of majority policies runs counter to the Supreme Court’s traditional role of safeguarding “religious pluralism.”
A brief by the Claremont Institute’s John Eastman likewise warns that “Smith upheld majoritarian interference with an individual right,” and did so “unmoored from the original understanding of the Free Exercise Clause.” This “ahistorical nature,” the brief explains, “puts [Smith] in deep tension with” the Supreme Court’s turn toward “original meaning” in its more recent Religion Clause cases, including last Term’s decision in American Legion v. American Humanist Association.
Finally, six major religious denominations—the General Conference of Seventh-day Adventists, the Church of God in Christ, the Church of Jesus Christ of Latter-day Saints, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the Lutheran Church-Missouri Synod, and the Union of Orthodox Jewish Congregations of America—joined a brief supporting reconsideration of Smith in Ricks. They argued that the past 29 years have shown that the fears that animated Smith have “proven to be very much overblown.” Meanwhile, though, “the need to accommodate religious practice has not abated.”
Four Justices recently recognized that Smith “drastically cut back on the protection provided by the Free Exercise Clause.” The amicus showing in Ricks shows that a broad coalition of the academic and religious communities remains convinced that cut-back was a mistake. The same day the amicus briefs were filed Idaho waived its right to file a brief in opposition to the petition. Given the petition’s strong and diverse amicus support, one imagines the Court will call for a response.