Some years ago, a constitutional law essay by an Ohio professor began this way: “At least within the church-state community, one is hard-pressed to find a Supreme Court ruling held in lower esteem than Employment Division v. Smith.” Miami University (Ohio) political science professor John P. Forren wrote of the ruling’s “remarkable unpopularity across the ideological spectrum.”
From the day in 1990 that the Court announced that major new constitutional decision re-interpreting the long-running history of church-state conflict, the Smith ruling has never been free of harsh criticism, and from within the Court, too.
And yet, today, it remains an enduring interpretation of the meaning of the Constitution’s First Amendment guarantee of “free exercise of religion.”
With the rise in recent years of a newly energized campaign to protect religious liberty, especially in reaction to the gay rights revolution culminating in the equality of marriage for same-sex couples, it was predictable that the 1990 precedent would draw new demands for the Justices to overrule it and give new protection to religious freedom.
At a private conference on Friday, the Justices are scheduled for the seventh time since February to ponder the latest request to cast aside the ruling.
That is the boldest plea in a new test of whether the Court will give business operators the right to refuse for religious reasons to provide goods or services for a same-sex wedding ceremony. As in a case that was before the Court last term, the new case involves a refusal to provide a custom-made wedding cake for such a ceremony. The Justices did not resolve the religious rights issue in the prior case, because they chose to return it to state courts in Colorado for a new look at the reasons state officials had ruled against the baker who was involved.
The fact that the Court has repeatedly had on its agenda a discussion of the new case, from Oregon, but has not yet decided even to grant review, may suggest some hesitation to take on the status of the Smith decision now, or perhaps a desire to narrow the scope of review, if it does opt to go ahead. Because the Court had accepted the Colorado case for review last term suggests that there is a good chance it would do the same, on at least the basic issue of religious freedom, in the Oregon case (Klein v. Oregon Bureau of Labor and Industries).
It is mere coincidence that the new case, like the Smith case, comes from Oregon. Both cases raised issues of religious freedom, but otherwise, are very different.
In Smith, the state of Oregon had outlawed the use of a mescaline-containing substance, peyote. Two individuals who were members of an Indian tribe that used peyote in a religious ritual were fired from their jobs with a drug-abuse project and were denied unemployment pay because of their ingestion of the banned substance. Oregon courts had ruled that this denial by state officials violated their right to exercise their religion.
The state courts had relied on a 1963 Supreme Court decision, in the case of Sherbert v. Verner. That ruling had required government officials to meet the most demanding constitutional standard before they would be allowed to take action that would interfere with someone’s religious practices.
The Supreme Court, splitting 5-to-4 on that basic question in the Smith case, substituted a new way for courts to judge government action that has only an incidental effect on religious practice if the law did not explicitly single out and ban that practice. The formula provides that a law that is neutral as to who will be impacted by it, because it was written to apply generally, it can stand even if it intrudes upon or prohibits some individual’s religious practice. Religious people, too, must obey general laws, the Court made clear.
The ruling was instantly unpopular, and it took only three years for Congress to move to shore up religious freedom in direct reaction to that decision. In 1993, Congress passed the Religious Freedom Restoration Act (or RFRA) with obvious bipartisan support, by a unanimous voice vote with no opposition in the House and a 97-to-3 vote in the Senate.
RFRA was specifically aimed at overturning the interpretation rule that the Court had adopted in the Smith case by providing that courts should return to using the formula of the Sherbert decision, which was far more protective of religious practices. Under RFRA, if the action of the federal, state or local government resulted in a “substantial burden” on religious exercise, the law or policy could be upheld only if it served a “compelling governmental interest” and, in addition, only if the action was the “least restrictive means” of carrying out the law or policy.
That is very strong protection for religious people. For example, the Supreme Court relied upon RFRA in the famous case of Burwell v. Hobby Lobby Stores three years ago in giving the religiously devout owners of a retail store chain protection from having to obey the federal Affordable Care Act’s mandate that private employers provide free birth control for their female employees.
RFRA’s protection for religious people remains intact against federal government action, but its application to state and local government action lasted only four years. In a 1997 decision, in the case of City of Boerne v. Flores, a divided Supreme Court ruled that Congress did not have the constitutional authority to put such a strong restraint on the power of state and local government bodies to adopt laws to govern their residents.
The Court majority, stirring up new criticism of the precedent in the Smith case, relied explicitly upon that decision in justifying the denial of congressional power to regulate state and local activity that would intrude on religious practices. The formula rejected in the Smith decision, the majority declared, put too heavy a restraint on state powers.
The majority refused a plea by dissenting Justices, led by Justice Sandra Day O’Connor, to reconsider the validity of the Smith decision. Justice Stephen G. Breyer, who remains on the Court, supported the O’Connor dissent. Justices Clarence Thomas and Ruth Bader Ginsburg were part of the majority in the City of Boerne case.
As a result of that decision, religious people are protected against state and local government action that impinges on their faith if the law directly prohibits their religious practice by targeting it, which would violate the First Amendment directly, or if their state has a RFRA-like law, as 21 states now do.
Because of the continuing validity of the Smith decision, the reality is that state and local governments have considerably more power than the federal government to enact and enforce generally applicable laws that do affect religion.
And that, of course, is why lawyers representing religiously devout people are newly interested in trying to undo the Smith formula by asking the Justices to overrule it.
That is one of three questions raised in the new Court case by lawyers for Melissa Elaine Klein and her husband, Aaron Wayne Klein.
The Kleins ran a bakery, named Sweetcakes, in Gresham, Oregon. They created custom-made cakes for customers after what they said was extensive consultation about design. They operated their business according to principles of their religious faith, their lawyers have said. Among their beliefs is that it would be a sin to provide a custom cake to help celebrate a same-sex wedding because they interpret the Book of Ephesians in the Bible to teach that marriage should be only between a man and a woman.
They thus refused to design and bake a custom cake in January 2013 for the wedding of a lesbian couple, Rachel Cryer and Laurel Bowman. Their refusal led to action by state officials, enforcing an Oregon law that forbids businesses that act as “public accommodations” from refusing to provide goods and services based upon a customer’s sexual orientation. Ultimately, the Kleins were assessed a $135,000 penalty, which they said drove them out of business entirely.
Among the claims that the Kleins made in Oregon state courts was that their First Amendment right of free religious expression had been violated. The state courts rejected that claim, relying directly on the Supreme Court’s 1990 precedent in the Smith peyote case.
In taking the case on to the Supreme Court, the Kleins’ lawyers argued that the case directly raises the same religious rights questions as had the Colorado case last term. Besides asking the Justices to rule that their free exercise rights were violated by the state, their appeal also claims a violation of their rights to free speech (because they argue that creation of the design of a custom-made cake is a form of artistic expression).
Their appeal goes on to ask the Court to overrule the Smith decision, or, if it does not want to go that far, at least to interpret that decision so that religious people gain greater constitutional protection when they combine their claim of a violation of religious freedom with a separate claim of a violation of some other constitutional right, such as free speech.
The Justices have the option of denying review, and to do so without giving an explanation, or granting review of some or all of the questions the Kleins’ lawyers raised, or questions that the Justices themselves have written differently.
An order in the case could come as early as next Monday if the Justices have made up their minds on how to proceed.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.