Will the Supreme Court Revisit Employment Division v. Smith?

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In 1990, the Supreme Court startled the nation with a decision in Employment Division v. Smith that upended the long-established understanding of the First Amendment’s religious liberty protections. Rather than subjecting all government burdens on religion to strict scrutiny, as had been done in the past, the Court announced that burdens resulting from neutral and generally applicable laws are not barred by the Free Exercise Clause. Religious exercise would be protected only against laws specifically targeting religion. The decision immediately sparked condemnation from civil rights groups across the political spectrum, was rejected by Congress and 32 states, and has been criticized by prominent scholars and at least ten Supreme Court Justices. Recently, Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh suggested that Smith should be “revisited,” noting that it “drastically cut back on the protection provided by the Free Exercise Clause.” George Ricks has spent forty years as a construction worker in Idaho, and in 2014, sought to register as a general contractor so he could run his own business. Ricks, however, has religious objections to using his Social Security number to obtain work, and the State of Idaho—even though it can access his number in other ways—refuses to let him register without providing it himself. After Ricks sued, the Idaho courts applied Smith to deny him relief. Eric Baxter, counsel for Ricks, will discuss the merits and procedural posture of Ricks v. Idaho Contractors Board.

Featuring:

Eric Baxter, Vice President and Senior Counsel, Becket Fund for Religious Liberty

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Religious Liberties Practice Group, was recorded on Wednesday, December 11, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon, our topic is “Will the Supreme Court Revisit Employment Division v. Smith?” My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are very fortunate to have with us Mr. Eric Baxter, who is Vice President and Senior Counsel at the Becket Fund for Religious Liberty. After our speaker gives his opening remarks, we will have time for your questions, so please keep in mind what you’d like to ask throughout the call until we get to that portion at the end. Thank you very much for sharing with us today. Eric, the floor is yours.

 

Eric Baxter:  Thank you very much, and thank you for hosting. It’s always a privilege to speak to members of The Federalist Society. I’m here today to talk about the case of George Q. Ricks v. State of Idaho Contractors Board, which is now pending before the Supreme Court on petition for certiorari. The case will be conferenced this Friday, so it’s very timely to be talking about it. This is a fascinating case on many levels, factually, legally, perhaps most particularly for the opportunity it gives the Court to revisit its 1990 interpretation of the Free Exercise Clause in Employment Division v. Smith.

 

      Our client, George Ricks, has spent his entire life in the construction industry, primarily working for his father, who is a general contractor. Sometime in his teenage years, his grandfather applied for him to receive a social security number, but he never had much use for it and never really thought about it until the birth of his second son. A few years earlier, he had been baptized a Christian after he and his wife, who had been living a party lifestyle, decided that was an empty and meaningless way to go through life, and they got serious about religion. He was baptized in a Baptist church and became a serious student of the Bible.

 

      He was aware of the warning in Revelation 13:16-18 against a mark on the right hand or forehead without which individuals would no be able to buy or sell, but he had not directly connected it to a Social Security number. He first became seriously bothered about it when he was at the hospital with his second-born son and the hospital insisted that he would not be able to take his son home unless he first applied for his son’s Social Security number. It bothered him that something as basic as caring for his own son was being made conditioned on his getting a Social Security number for his son, and it triggered in his mind associations with the warning in Revelation, although it still was not a pressing concern overall.

 

      He had little reason to worry or think about it much. He worked, again, for his dad. He had little need to use his Social Security number and didn’t do a lot of deep thinking about the religious implications of doing so. But in 2008 when he went to work for another contractor in Idaho and was required to give his Social Security number as a condition of employment, he became very concerned because it seemed much closer to what Revelation warns about in the sense that he was being forced to give the number to buy or sell, in this case, his own labor. He did reluctantly give his number but commenced seriously studying what was meant by the number in Revelation and, over the years, became increasingly convinced that using his Social Security number to buy or sell his labor was at least a precursor to the mark of the beast that was warned about or sufficiently analogous to it that it was morally wrong.

 

      Over the years, his beliefs crystalized, and his conscience eventually weighed so heavily upon him that he went to his employer in 2013 and asked if his Social Security number could be removed from his employment file. His employer refused, citing the complications that would create for him. And so Ricks at that point felt compelled to quit his job rather than to continue benefitting from his Social Security number. Ricks’s employer was not happy to lose him and encouraged him to register with the state as a general contractor, and then to come back to work as an independent contractor instead of as an employee.

 

      Idaho is one of just a few states that requires anyone who wants to hold themselves out as a contractor to register with the state. It’s not a licensing requirement that requires specific training or qualifications. It’s simply a requirement to register by providing contact information, proof of insurance, and, as you may have guessed by now, a Social Security number. The law is called the Idaho Contractor Registration Act. It was passed in 2005, ostensibly to make it harder for unscrupulous contractors to work in the state. Ricks submitted his application but left the space for the Social Security number blank, although he was willing to provide his birth certificate as an alternative form of identification.

 

      There is a separate law, a federal law, called the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 that also required Ricks to submit his Social Security number. That law, which ironically is codified at Section 666 of Title 42, offers federal funding to states that implement procedures designed to facilitate interstate enforcement of child support decrees. One of those requirements is for states to gather the Social Security number of anyone who applies for any kind of license. That could be a driver’s license, hunting license, wedding license, professional license, what have you, the state’s just required to collect before issuing any license.

 

      And so to receive that federal funding, Idaho passed a separate law to implement this requirement. That law includes an exception for individuals who don’t have Social Security numbers. This could be, for example, immigrants with work permits but no Social Security card, and those individuals are allowed to submit a copy of their birth certificate instead. But Ricks does have a Social Security number, and so under both the Contractor Registration Act and the Child Support Enforcement Law, he was required to submit his number.

 

      Because he could not in good conscience provide his Social Security number, the Idaho board of contractors denied him a registration, leaving him stuck between his religious convictions and his livelihood. Working as an independent contractor without being registered would subject him to significant civil penalties and even jail time. Beyond that, he could not be hired by outside employers in today’s environment. With all of the tax and other requirements, he couldn’t find a job without having to give his Social Security number. And yet by now, he was firmly convinced that providing his number would jeopardize his salvation.

 

      So Ricks did what all good Americans do and sued the government for infringing his religious liberty. Prior to the Supreme Court’s ruling in Employment Division v. Smith, it seems clear that Ricks would have prevailed. Before Smith, the courts free exercise jurisprudence, as exemplified in cases like Sherbert v. Verner and  Wisconsin v. Yoder held that the government could not substantially burden religious exercise unless it had a compelling government interest that could not be met in a less restrictive way.

 

      In a case called Bowen v. Roy, the Supreme Court applied this standard on facts similar to those at issue in Ricks’s case. In Roy, the father of a Native American child brought action on the child’s behalf challenging the constitutionality of a requirement that you had to give your Social Security number to participate in the federal food stamp program. The father asserted sincere religious beliefs that obtaining a Social Security number for his daughter would rob her spirit and prevent her from attaining greater spiritual power.

 

      Roy is often remembered as a ruling for the government. As a majority, the Court did hold that the Free Exercise Clause could not be understood to require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. And there’s a memorable line from that case where the Court concluded that Roy could, quote, “no more prevail in his religious objection to the government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the government’s filing cabinets.”

 

      And that’s often what’s remembered from the case, but it’s also true that a majority of five separately acknowledged that the Roys had an independent religious objection to their being forced to cooperate actively with the government by themselves providing their daughter’s Social Security number on the benefit applications. And five of those justices recognized that the compelling interest test should apply to that claim and that Little Bird of the Snow, the Roy’s daughter, should prevail.

 

      And not long after, in Leahy v. District of Colombia, in the D.C. Circuit, Justice Ginsburg, then Judge Ginsburg, reversed a district court ruling that dismissed a claim for a religious exemption from a Social Security number requirement for getting a driver’s license. She relied on the five justices in Roy who had accepted Little Bird of the Snow’s individual claim not to have to provide her Social Security number and remanded the case back to the district court for application of strict scrutiny. In that case, the plaintiff ended up winning via settlement and a consent decree that enjoined the District of Columbia from denying him a driver’s license on account of his failure to provide his Social Security number. So we can see that prior to Smith, Ricks’s claim had a significant likelihood of success.

 

      Employment Division v. Smith changed that. As I mentioned, the Free Exercise Clause previously had been understood as granting a substantive right to exercise religion and for an accommodation against government burdens on religion absent a compelling government interest that could not be satisfied in some less restrictive way. Instead, Smith held that the Free Exercise Clause only protected against discrimination. The government could not target religion for disparate treatment, either intentionally or in effect, but following Smith, the Free Exercise Clause would not provide any protection against neutral and generally applicable laws, even if such laws effectively barred someone’s religious exercise.

 

      This ruling caught pretty much everyone by surprise. Both parties had briefed the case under the compelling government interest standard. No one had argued for getting rid of that test, and so it was contrary to standard procedures that the Court announced its new interpretation of the Free Exercise Clause without any briefing or arguments from the parties or the amici. And the 5-4 decision was very controversial. Civil rights advocates across the political spectrum were nearly unanimous that Smith was wrong and dangerous, especially for minority religious believers. Scalia himself in the decision acknowledged minority groups would be hardest hit, suggesting that people had to go to Congress to get religious exemptions, but noting almost with a shrug that the fact that minorities would be less able to get legislative exemptions was an inevitable result of our constitutional democracy.

 

      Opposition to Smith was so fierce that just a few years later, Congress reinstated the pre-Smith standard via the Religious Freedom Restoration Act, or RFRA, which was passed unanimously in the House, 97-3 in the Senate with one Republican, one Democrat, and one Independent opposing, and then signed into law by President Clinton. And then after the Supreme Court struck down RFRA as it applied against the states in City of Boerne v. Flores, over 21 states passed their own RFRAs to reinstate the pre-Smith protection at the state level, and another dozen or so states have construed their own state free exercise provisions as also providing heightened protection.

 

      Smith is still highly controversial. It’s really not consistent or explainable by the text, and the Court made no effort to connect it with the text. In Smith, the plaintiff in that case used peyote as a religious sacrament. The Court acknowledged that his use of peyote was the exercise of religion, and it was undeniable that his religious exercise was prohibited by the law. So as a textual matter, there seemed to be a strong case that would favor the plaintiffs in that case, and the Court made no effort to explain how it otherwise understood the text. And in fact, in kind of getting rid of the compelling government interest standard, Scalia wrote that -- didn’t say that it was inconsistent with the text. He just said he didn’t think that the words must be given that meaning that would require the higher standard of scrutiny.

 

      The case was also inexplicable in its use of precedent. The Court, as I said, didn’t rely on text. It instead just claimed to be applying precedent, but its focus was on Reynolds and Gobitis, two cases; Reynolds, the early 19th century case involving Mormon polygamy, which held that the Free Exercise Clause only protected belief and not conduct, an analysis that has since been completely rejected, and then also relied on Gobitis, the case involving Jehovah’s witnesses who didn’t want to salute or say the Pledge of Allegiance, which was three years later overturned in Barnette. And the analysis of precedent has been highly criticized both by opponents and proponents of Smith. There’s pretty widespread acknowledgement that precedent didn’t support the Court’s analysis either.

 

      The Smith decision is also inconsistent with history. If anyone on the call watched the Rosenkranz debate at The Federalist Society’s annual conference last month, you saw a debate between Professors Michael McConnell and Philip Hamburger who take opposing views on what the history shows with respect to the meaning of the Free Exercise Clause, Professor Hamburger arguing that the Smith ruling was correct in the result even if wrong in how it got there.

 

      But in my view, Professor Hamburger’s view is mistaken. It focuses on 17th century and even history in England where the understanding of religious liberty was a Lockean understanding of tolerance, that religion had to be tolerated to some extent to avoid civil conflict but that there were lots of pullbacks that could override religious liberty in the case of any civil disturbance. That view seems inconsistent with the views that prevailed later closer to ratification when it was not the tolerance view that was driving for a creation of a Bill of Rights but the views of those religious observers who were at the time considered more radical and were worried about government oppression.

 

      Professors Hamburger and McConnell spend a lot of time arguing about the state law, state and colonial free exercise provisions that usually allowed for free exercise with the proviso that it had to be consistent with the peace and safety. And they have a lot of disputes about what that means. Professor Hamburger takes the view that all of your religious liberty could be cut back if you were disturbing the peace and the safety. Professor McConnell takes a view that the provisos are evidence that the free exercise provisions created a substantive right that were restrained only by, essentially, a compelling government interest.

 

      But I think either way, the fact that the First Amendment contains no proviso on the Free Exercise Clause tends to show that a broad, substantive right was intended. If Hamburger is right, that the states at the time believed that free exercise should be restrained, you would think that they would have included the proviso. But yet, the removal of it reinforces McConnell’s case that the founders and the drafters of the First Amendment intended a broad, substantive right that would not be restricted in the same way that the state rights had been restricted.

 

      There are other factors. The few live conflicts at the time that existed were resolved in ways that suggest the drafters intended a broad right of accommodation. Those were usually cases involving a swearing of oaths or the bearing of arms. And in both of those situations, colonial and state governments recognized that religious liberty required exemptions.

 

      And then later, the time of the Fourteenth Amendment, the framers of the Fourteenth Amendment were very explicit that one of the things they were concerned about were neutral and generally applicable laws that restricted the religious freedom of slaves. For example, laws that prohibited teaching slaves to read or write arguably, at least as with respect to religion, neutral and generally applicable but impose a severe restriction on the ability of slaves to exercise their religion. And so the framers were explicit that what they were incorporating through the Fourteenth Amendment was intended to include a broad right of accommodation against government free exercise.

 

      And I think the broad accommodationist view is also supported by the theoretical foundations of religious liberty. James Madison in his “Remonstrance and Memorial” in Virginia on the right of free exercise described free exercise as the right of every man that flowed from his duty to his creator, a duty that was precedent both in order of time and in degree of obligation to the claims of civil society. And if that’s correct, if religious liberty is defined by religious duty, then there should be a remedy for infringement available, regardless of whether the infringement comes from intentional discrimination or neutral and generally applicable laws.

 

      Also in the framer’s mind was still very fresh the conflicts between Catholics and Protestants, and the extensive bloodshed in Europe that had occurred in the centuries before, and the understanding that religious believers were unlikely to give up their religion without a fuss. And so they would not go away quietly, and even if they did, that would be no less a suppression of their free exercise. And so wanting to avoid that, it makes sense that the Founders were seeking to find ways to accommodate religious belief whenever they could.

 

      So regardless of who is right on all of these arguments, the Court never considered any of them. Because it revised the free exercise standard without notifying the parties or getting briefing, none of these issues were addressed. The Court purported to apply its prior precedent in ways as I’ve already indicated that have been widely repudiated but never talking about the text, the history, or the theory behind the Free Exercise Clause. So this case presents an excellent opportunity for the Supreme Court to reconsider the Free Exercise Clause and actually pay attention to what the Constitution means through its text, through its history, and through the philosophies that were underlying the enactment of the First Amendment.

 

      The Court seems to recognize that it’s time to revisit Smith. In the Coach Kennedy case, Kennedy v. Bremerton County School District, which involved the football coach who would go pray at the 50-yard line after every game and was terminated from his employment, he brought free exercise, free speech, and Title VII claims; lost on his free speech claims, and those ended up going before the Court. The Court denied review, but Justice Alito joined by Justices Thomas, Gorsuch, and Kavanaugh, wrote a dissent from the denial of cert, noting that there were other free exercise and Title VII claims that could potentially come up at a later time. And in that opinion, they stated, “We note that Coach Kennedy may not have raised these claims because of certain decisions like Smith that drastically cut back on religious liberty,” and suggested that perhaps it is time -- that they only were not taking the case because nobody had asked them to revisit Smith.

 

      So this case is, again, an excellent opportunity for the Court to take another look at Employment Division v. Smith and actually apply the principles that it normally would in construing our constitutional rights, including the text, understanding the meaning of the text, the history, and the philosophy that led to the enactment of the Free Exercise Clause. The Court will consider the matter this Friday. This will be their first time actually considering the petition, and often, they take one or two conferences. The next conference after this Friday is in January, on January 10, so we’re hopeful that sometime between this Friday and mid-January, we’ll hear that the Court has decided to grant review in this case.

 

      And with that, I will take questions from any of the listeners.

 

Wesley Hodges:  Thank you so much, Eric, for that excellent presentation. Here’s our first caller of the day.

 

Caller 1:  Hi. I’m listening and enjoying this, as I enjoy all of these. I’m a psychiatrist. As a coincidence, yesterday a physician called in with a question and made a comment that sometimes law and medicine diverge. And I just wanted to say when psychiatry thinks about religion, we think of it as some kind of shared belief system. This plaintiff does not have a shared belief system about what he’s seeing in the words of the Bible and connecting to his life. I would call it an overvalued idea on the way to paranoia. So I think it’s just ironic that the case is going forward as a religious test when, speaking as a clinician, I would not say it has anything to do with religion. That’s all. Thanks.

 

Eric Baxter:  Yeah, that’s very interesting. Thank you for mentioning that. In the law, it’s true there’s significant deference given to someone’s religious beliefs, whether they’re part of an organized religious group or not. Now, George Ricks is not alone in his belief. There are actually a lot of cases across the country that raise similar beliefs. I mentioned two of them, the Bowen v. Roy and Leahy cases, in both instances of which the plaintiff prevailed.

 

      But it makes sense that the Court isn’t really going to -- it doesn’t look so much as to how widely shared the belief is but whether it’s actually sincerely held. And so the Court could look at whether someone’s sincere in their belief, whether they actually believe the tenets that they profess and act in accordance with them. And in this case, for example, the State of Idaho never contested Mr. Ricks’s sincerity, which was clearly demonstrated by the fact that he gave up his job for it. He’s in a financially difficult situation because he is living in accordance with his beliefs. He’s formally -- attempted to formally renounce his Social Security benefits. And so the Court will give deference to those religious beliefs as long as an individual is sincere, regardless of whether they are in a large group or not.

 

Caller 1:  But a paranoid schizophrenic would also sincerely hold to belief and often live his life according to those beliefs, which may butt up against societal laws. And it sounds like you’re saying that a person with a belief sincerely held but based on paranoid schizophrenia would gain just as much standing in a court of law as a non-mentally ill person, if I’m understanding you correctly, which, as a physician, seems odd to me.

 

Eric Baxter:  And in this case, to be clear, there’s no indication, and having met George directly, I can tell you that he’s not paranoid or schizophrenic.

 

Caller 1:  But your standard person with paranoid schizophrenia holding a delusional belief sincerely and acting in accordance with it would, it sounds like, be treated the same as everybody else you’re talking about when they got to court.

 

Eric Baxter:  Well, that’s an interesting question about how sincerity would be raised in that context. And that’s not an issue I’m personally familiar with, but I think it would raise interesting questions about how you assess sincerity in that context.

 

Caller 1:  Okay. Thanks.

 

Wesley Hodges:  We do have one more in the queue. Next caller, you are up.

 

Caller 2:  Thank you, Eric, for the presentation. Is there a circuit split or any of the other traditional grounds for review that underlies your petition? And if not, what is the strategy here for getting the Court to take this case?

 

Eric Baxter:  Yeah, great question. So if you look at the Smith decision, there is a significant circuit split under Smith itself about how the Court applies this test. How do you determine whether something’s neutral and generally applicable? And we have another case that’s actually also being heard on Friday, Fulton v. City of Philadelphia, which involves a religious adoption agency in Philadelphia and whether the city can exclude it from assisting foster care children because of its religious beliefs. And so there is a lot of confusion about how Smith applies. That’s one issue.

 

      The second is that Smith has never really become settled law. And over the last 20, 30 years since its passage, we’ve had the example of applying the pre-Smith standard under the Religious Freedom Restoration Act and the state equivalents. And that experience has clearly demonstrated that all of the concerns that the Court had in Smith -- it said, “Well, if we allow accommodations to every religious believer, it will lead to anarchy.” And we’ve seen that that just simply hasn’t happened under the RFRA standard.

 

      The scholarship is pretty unified in that the analysis of Smith is simply untenable. It can’t be supported. It has not withstood the test of time. And then the fact that four justices have indicated that they’re willing to revisit Smith -- we think that those create an environment for the Court to really reconsider and actually look at the standard for applying the Free Exercise Clause in the way that it should have in the beginning.

 

Caller 2:  If you don’t mind a follow up, what are your adversaries saying in response to the question of whether the Court should take this case?

 

Eric Baxter:  So the State of Idaho did file its opposition brief. Its arguments were basically that Smith was right. It cited the same cases that Gobitis and Reynolds that the Supreme Court relied upon, basically repeated the same arguments that were in Smith almost as an ipse dixit to say, “Well, Smith was right.” They made the argument that Scalia defended Smith to his death, and therefore, the Court should be faithful to it. In short, their arguments were pretty weak.

 

      They did make some vehicle arguments arguing that maybe this is not the right case for the Court to reconsider Smith. Professor Olesky (sp), who believes partially in the result of Smith, has a nuanced decision, but he tweeted afterward that Becket could thank the State of Idaho for the file that they filed. But I don’t set to blame Idaho. I just think, really, there is a weak case for Smith.

 

      And there’s a strong argument that the Court got it wrong, that its analysis is not supported by logic, by history, by the text of the First Amendment. It should more carefully look at those issues to understand how best to construe the Free Exercise Clause. Even if the Court were to reach a different outcome than what I am proposing, it should at least do so having actually considered the text, the history, and the theoretical underpinnings of the First Amendment.

 

Caller 2:  Understood. Thank you.

 

Wesley Hodges:  We do have two more questions in the queue. Here’s our next caller.

 

Roman Galas:  Hi. Roman Galas, lawyer out in Philadelphia tuning in. Thanks for the talk, and thanks for the good work you guys do at Becket. You guys are on the forefront of things that, certainly, I believe in, and it’s good to see folks working for that and defending folks who are being oppressed.

 

Eric Baxter:  Thank you.

 

Roman Galas:  Religious freedom, freedom of conscience seems to really, really be under attack these days. And I’m just taking the floor just a little bit as a preface. It’s funny when you hear folks float out there the notion, “Well, how can anybody support a President, for example, who’s so immoral in his own life?” It’s because the other side, whether they’re personally immoral or not, they want to come at you for your religious views and/or conscientious views and try to suppress those. So with the choice between a man who’s immoral versus a person who’s going to come at your morality, I think it’s a pretty clear choice for a lot of people in this country.

 

      So it’s with that that my question is prefaced. So if the goal is ideally to change Smith or roll back Smith, however you want to call it, is this the best test case for it? The psychiatrist brought up some good points as far as potential weaknesses that this client and/or his position might have legally and/or just persuasively on the papers. How or why, if at all, is this case a better potential driver for change in Smith than, say, the companion case you mentioned, the adoption case out of Philly, which, again, that’s where I am, so I’m pretty familiar with the city’s aggressive positions on adoption but also in the past to try to evict the Boy Scouts. So Philly’s been at the forefront here. It’s kind of scary.

 

      So why is it a better vehicle than that, or the classic that we’re seeing, a lot of the baker cases or the florist cases or the venue-type cases? What kind of consideration is that there? Not that it’s a consideration for your client, but for those who care about Smith and the direction that the country is going.

 

Eric Baxter:  Yeah, it’s a great question and I appreciate your asking it. I think one important thing to remember is that any claim that is going to challenge Smith is likely going to be from a minority religion, idiosyncratic, or very controversial. And the reasons for that are that if you have a mainstream standard belief, it’s very likely that you will have been accommodated through the legislative process. And so the cases that get left out that aren’t protected through standard legislative accommodations are going to be people who have unique, idiosyncratic, and often controversial beliefs.

 

      So in Philadelphia, the case is controversial to many people because it involves religious beliefs about same-sex marriage. This case is controversial because his beliefs are not very popular or very common because it involves a Social Security number. Some people have an instinctive adverse reaction to that. But I think we have to recognize that any case is going to have that kind of valance.

 

      And this case is particularly good, I think, for a couple of reasons. One, I mean, we would obviously be happy for the Court to grant either of our cases. They’re both extremely important. And in fact, the double grant in many ways would be a great way for the Court to reset the standard and then apply it in a specific context in the Fulton case because in the Ricks case, his claims were dismissed at the motion to dismiss stage. He filed his complaint and immediately got dismissed, so there’s been no development of the facts within the context of the litigation.

 

      So if the Court were to grant this case, it doesn’t have to decide exactly how it -- let’s say it restores the pre-Smith standard or something like it. The Court doesn’t have to actually decide how that applies in this case. It could grant the case and then remand, reset the standard and then remand to the Idaho courts for them to apply the new standard. And then Ricks would have the burden of providing the evidence.

 

      Now, in this case, he has great evidence because we know there’s been a couple of earlier Supreme Court or D.C. circuit cases that have gone in his favor. It’s also true that the state can easily accommodate him. It already allows individuals seeking other kinds of licenses to use their birth certificates in place of Social Security numbers if they don’t have a number. We know the state can obtain his Social Security number on its own through either its own motor vehicle division which would have his Social Security number from back before his religious beliefs crystalized. There’s also the federal Office of Child Support Enforcement within Health and Human Services where you can get someone’s Social Security number if you provide certain information for specific government purposes.

 

      So in that sense, this case is a very clean case. The Court could reset the standard without having to decide how it would apply in other types of cases. And so that’s one of the real strengths of this case. It’s also not a case where Ricks is -- he’s not challenging his obligation to pay taxes. He’s not challenging other uses of his Social Security number. He’s specifically challenging whether he can get a job.

 

      And the English Test Act from before the Founding which excluded non-Anglicans from many lines of work, these were the kind of occupational exclusions that were considered one of the core violations of religious exercise. And so that historic centrality of not being forced to choose between your religion and providing for your family I think also makes this an easy case for the Court, just looking at the history to say well, at least this should be protected by the Free Exercise Clause.

 

      So I think those factors are all factors what weigh in favor of a grant in this case. Like I said, we would be happy. There are also a number of other significant factors that favor the grant in our Fulton v. City of Philadelphia case, and we would hope that the Court would grant both cases and get the benefit of the nuances that would come out through addressing those.

 

Roman Galas:  Makes sense. So if I could just react to that, without seeing any of the papers and knowing other than what I read in introing this call and then being a part of the call, it’s -- I guess, from a gut level, it just seems that being asked to speak or type a number that’s been provided to you is much less of a burden than, say, being compelled to write a message on a cake or build -- or bake a cake for something that you don’t want.

 

      I guess I struggle a little bit with that, that just reflexively, it doesn’t seem like the burdens are in any way analogous. Or in your Philadelphia case, forcing an organization to put children into familial units with which they so fundamentally disagree, it just seems that there’s a different burden there, I guess. And I’m not sure what to even -- what you can even do about that, but I guess that’s just my reaction.

 

Eric Baxter:  Well, the challenge with that argument is that those are the same arguments that are made in the Philadelphia case, that’s made in the Little Sisters of the Poor case. All you’re doing is writing a notice. All you’re doing is signing someone’s paper. And so the Court really can’t assess which of these have true religious value and which don’t without really getting into core violations of the Establishment Clause.

 

      The Court is not capable, really, of making those kinds of religious judgements. And so I don’t think we want to get in the business, and the Court’s held pretty clearly in the Hobby Lobby and Little Sisters cases, that it doesn’t want to get in the difference of parsing through which religious beliefs have more value or weight because that obviously depends from person to person which they think is more burdensome or which belief they think is more important.

 

Wesley Hodges:  We do have two more questions in the queue. Here’s our next caller.

 

Caller 4:  Hi. I’m one of the lawyers who’s been involved in the Sweet Cakes by Melissa case from Oregon since the very beginning, so I’ve been on the receiving end of Smith. I was just curious if the Court takes the case whether they would revert to the Sherbert standard or would they try and figure out some sort of intermediate place, and secondly, whether you think they’ll address the hybrid rights argument.

 

Eric Baxter:  So yes, I think that reverting to something like the pre-Smith standard makes a lot of sense, especially since we’ve had experience with it for about 20, I guess 26 years now under RFRA and the state mini RFRAs or baby RFRAs. So it seems like -- and we’ve had really good results with those cases. A lot of religious minorities have been able to exercise their religion; Sikhs able to serve in the military with their beards and turbans, Native American children allowed to get exemptions from hair grooming policies at public schools, minority prisoners allowed to get religiously compliant meals, and so forth.

 

      All of these things really show us at our best for who we are as Americans and what we really hold most dear. It’s hardly been a harbinger of anarchy that Smith seemed to be concerned about. And the courts also haven’t been overwhelmed with cases, which Scalia seemed to be concerned about. They don’t overwhelm the dockets. The empirical studies of the growth of RFRA cases -- there’s no, really, overwhelming in any sense of the dockets with RFRA cases. Most RFRA cases still don’t win. Most people who benefit from them are religious minorities. And so I think that it makes a lot of sense for the Court to go back to the pre-RFRA standard.

 

      We would argue against a kind of half-way standard. In other contexts like speech, freedom of expressive association, the Court consistently applies heightened scrutiny and consistently grants exceptions via as-applied challenges where individual plaintiffs are granted exemptions from legal requirements. So for consistency, it makes sense for the Court to return to something like the pre-Smith standard.

 

      And as for the hybrid rights, I would hope that just with reverting to the earlier standard that the hybrid rights doctrine would just disappear. Nobody has caught on. I think there are a few -- there are a handful of district court cases that have applied hybrid rights to protect religious exercise, but most courts have openly scoffed at it, said that it makes no sense to say that religious exercise alone is not protectable, but if it has a free speech element or a parental rights element, then it suddenly becomes protectable. Of course, free exercise is independently protectable. That was the point of the Free Exercise Clause and the First Amendment. So hopefully, the hybrid rights doctrine would just fade away with a corrected Smith standard.

 

Wesley Hodges:  Just one person left in the queue. Here is our next caller.

 

Caller 5:  Hello. I was wondering if someone like your client was part of or affiliated with an organized religion that disagreed with or at least didn’t agree with his idiosyncratic belief, how would that affect the Court’s view of his sincerity?

 

Eric Baxter:  It doesn’t matter. The courts in the past held it doesn’t matter if you have a slightly different view than your -- the church to which you belong or even a radically different view. You’re not bound by what the denomination that you choose to association with believes. The Court will look individually at your belief and the factors of how long you’ve held the belief, how you’ve responded to the belief in the sense of how you’ve made life choices, those kind of independent factors that would demonstrate a plaintiff’s sincerity and not what the broader denomination might believe.

 

Wesley Hodges:  Eric, I guess I turn the mike back to you. Do you have any closing thoughts for us, anything you’d like to dive into for more detail?

 

Eric Baxter:  Yeah, thanks for the time. Again, I would just emphasize that Smith is long overdue for revisiting, and the Supreme Court seems to have acknowledged that. The Ricks case presents an excellent opportunity for the Court to really delve into what the text, the history, and the theoretical underpinnings of the First Amendment are. As one of the commenters suggested earlier, religious exercise had become much more in focus, and in some respects, more subject, as the government reach has expanded, there are more ways in which government even neutrally and generally applicable laws will conflict with religion.

 

      And so this is an extremely important time for the Court to clarify what the real standard is under the Free Exercise Clause. It had established a compelling government interest test which is consistent with text and history, and it veered away from that in Smith, but Congress, the states, and the American people have largely rejected that. And it’s time for the Court to take a more serious look at what the text, history, and theory behind the Free Exercise Clause really mean. And we hope that sometime in the next month, we’ll hear that the Court is going to do that. So thank you very much.

 

Wesley Hodges:  Wonderful. Well, thank you, Eric, for such an excellent presentation. On behalf of The Federalist Society, I would like to thank you, Eric, for the benefit of your valuable time and expertise. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are now adjourned.

 

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