By Victoria S. Kolakowski*
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Introduction
One of the joys and hazards of teaching a class on cutting-edge constitutional law issues is that the U.S. Supreme Court can surprise us with decisions that take unexpected paths.
This occurred in the summer of 2021 when the Court issued its opinion in Fulton v. City of Philadelphia and did not address a crucial issue queued up by the parties: whether the Court would directly address the holding of Employment Division, Department of Human Resources of Oregon v. Smith.[1] I prepared the syllabus of my course, “Equality and Religious Freedom,” with the expectation that Fulton would be the capstone and finally announce the new legal regime in religious freedom. This essay addresses the history of Smith, why the Court deferred taking Smith head-on in Fulton, and what the Court might choose to do in the future.
I. Employment Division, Department of Human Resources of Oregon v. Smith
A. Prior to Smith
Smith has been a controversial opinion in the interpretation of the Free Exercise Clause of the First Amendment to the U. S. Constitution.[2] The Free Exercise Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”[3]
In the earlier case of Sherbert v. Verner, the Court held the state needed to demonstrate both a compelling interest and narrow tailoring for a law of general applicability to substantially impact the free exercise of religion.[4] This strict scrutiny test, often referred to as the “Sherbert test,” was followed faithfully until Smith.[5] For example, in Wisconsin v. Yoder, the Court held Wisconsin’s requirement that all children remain in school until age sixteen violated Amish beliefs that children should not attend high school.[6]
B. The Surprise of Smith
Smith was a total surprise when it was announced; Justice Antonin Scalia’s majority opinion upended decades of precedent about the Free Exercise Clause.[7] The Court in this case upheld Oregon’s withholding of unemployment benefits for employees terminated for using peyote during a religious ceremony by explicitly rejecting the application of the Sherbert test.[8]
Justice Scalia argued that prior decisions were distinguishable because they either dealt with multiple implicated rights (i.e., “hybrid situations”)[9] or upheld the law in question.[10] He wrote that, although the Court often used the language of the Sherbert test, it has not been applied outside the realm of unemployment compensation.[11] The key distinction in Smith was that the use of peyote was illegal, and criminal statutes in general should not be subject to the religious whims of individuals.[12] To find otherwise would be to invite chaos.[13]
Ultimately, the Court’s majority held a valid law of general applicability may be enforced, even if it impacts a person’s right to exercise their religious beliefs freely.[14]
Smith’s failure to follow the Sherbert test caused public concern, especially among those who practiced minority religions.[15] Smith allowed politically powerful religious organizations to ensure that legislation reflected their concerns. For example, during Prohibition, the Volstead Act passed exceptions to alcohol bans that allowed the Roman Catholic Church to use sacramental wine in its services.[16] However, groups that used other substances, such as peyote, lacked the same political power to ensure their rights were protected in laws.[17]
C. The Religious Freedom Restoration Act
To address these concerns, Congress passed the Religious Freedom Restoration Act of 1993 (“RFRA”).[18] Adopted overwhelmingly by the U.S. Congress and signed by President Bill Clinton in 1993, RFRA explicitly rejected the holding in Smith.[19]
RFRA, as adopted, applied to “all Federal and State law. . . .”[20] Section 3 set forth a version of the Sherbert test:
(a) IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.[21]
In City of Boerne v. Flores, the Court ruled that RFRA overreached with respect to state actions but upheld it for federal actions.[22] In other words, Smith still applies to claims arising from actions of state and local laws.[23]
II. Fulton v. City of Philadelphia
Flores and Smith had been the state of the law for twenty-four years until the Court ruled on Fulton v. City of Philadelphia.[24]The U.S. District Court had found the ordinance in question passed Smith review, and the U.S. Court of Appeals for the Third Circuit affirmed.[25] In their petition for writ of certiorari to the U.S. Supreme Court, Petitioners posed the question of “whether Employment Division v. Smith should be revisited[.]”[26]
The City of Philadelphia (“the City”) had long referred foster children to Catholic Social Services (“CSS”) to be placed with foster parents identified by CSS.[27] After being informed that CSS would not place children in households headed by same-sex couples, the City notified CSS in 2018 that it “would no longer refer children to the agency[,]” as the restrictions opposed both the terms of the agency’s contract with the City as well as the local non-discrimination law.[28] “CSS and three affiliated foster parents” brought suit, claiming “the City’s actions violated the Free Exercise and Free Speech Clauses of the First Amendment.”[29] Both the District Court and Court of Appeals found this ordinance to be a neutral law of general applicability, thus passing the Smith test.[30]
The opinion of the Court, authored by Chief Justice John Roberts, found the ordinance did not actually pass Smith review, so the Court did not need to reach the validity of Smith.[31] The contracts in question provided a procedure for obtaining purely discretionary exemptions, and the Court determined that meant the decisions were not of general applicability.[32]
Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas would have overturned Smith at that time.[33] Justice Amy Coney Barrett explained why she was not willing to go that far in a separate concurrence:
Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.[34]
Her concurrence was joined by Justice Brett Kavanaugh and, except for the first paragraph, Justice Stephen Breyer.[35]
Conclusion
Several scholars have opined as to what the Court should do next. Stephanie H. Barclay identifies that the Court is split: three Justices (Thomas, Alito, and Gorsuch) “have called for Smith to be overruled,” and three Justices (Breyer, Kavanaugh, and Barrett) have “expressed skepticism about Smith but simultaneously questioned what test should replace it.”[36] Barclay argues for a version of strict scrutiny that is consistent with originalism, a historical/textual review.[37] However, her argument does not truly address Justice Barrett’s concerns about resolving conflicts between rights in a nuanced manner.
Will the Court overturn Smith, as it did with Roe v. Wade in Dobbs v. Jackson Women’s Health Organization?[38] Will the Court ignore stare decisis and reason the case was wrongly decided and had no historical/textual basis? Like Roe, the Court may say that Smith is not “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”[39]
Overturning Smith is unlikely to happen until the Court can agree on a test to replace it. This demonstrates that there was far more merit to Justice Scalia’s arguments in Smith than most have acknowledged: When there is a conflict between fundamental rights in a pluralistic society and the good order of that society, a simple “one size fits all” solution that strictly favors individual rights may not be workable, and there may not be a simple alternative.[40]
* Victoria Kolakowski is an adjunct professor of law at the University of San Francisco. She has been a judge of the Alameda Superior Court since 2011 when she became the first openly transgender trial court judge in the United States. A retired minister, her primary area of interest is the intersection of religious freedom and equality/substantive due process rights.
[1]. 593 U.S. 522, 540–41 (2021) (discussing Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990)).
[2]. Justice Neil Gorsuch noted that “Smith remains controversial in many quarters.” Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 643 (2018) (Gorsuch, J., concurring) (citations omitted).
[3]. U.S. Const. amend. I (emphasis added).
[4]. 374 U.S. 398, 406 (1963).
[5]. Justice Samuel Alito said that, in Smith, “the Court abruptly pushed aside nearly 30 years of precedent[.]” Fulton v. City of Philadelphia, 593 U.S. 522, 545 (2021) (Alito, J., concurring).
[6]. 406 U.S. 205, 205–06 (1972).
[7]. Fulton, 593 U.S. at 545 (Alito, J., concurring).
[8]. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 884, 890 (1990).
[10]. See, e.g., id. at 883 (“We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.”).
[12]. Id. at 906 (O’Connor, J., concurring).
Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.
See, e.g., id. at 888 (citations omitted).
[14]. Id. at 872; see also Justice Amy Coney Barrett’s characterization of Smith in her concurrence in Fulton, where she said, “this Court held that a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise.” Fulton v. City of Philadelphia, 593 U.S. 522, 543 (2021) (Barrett, J., concurring).
[15]. See Smith, 494 U.S. at 890.
[16]. Michael deHaven Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Act’s exemption for the Religious Use of Wine, 70 Brook. L. Rev. 739, 741(2005).
[18]. The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (1993).
[19]. Id. § 2000bb (discussing how Smith “eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and . . . the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”).
[22]. 521 U.S. 507, 509 (1997).
[23]. History of RFRA, Becket Religious Liberty for All, https://www.becketlaw.
org/research-central/rfra-info-central/history/ [https://perma.cc/7M8P-Q68Z]; but see Federal & State RFRA Map, Becket Religious Liberty for All, https://www.becketlaw.org/research-central/rfra-info-central/map/ [https://perma.cc/BTF4-Z3HQ] (finding that, as of April 8, 2024, twenty-eight states have adopted state-level equivalents of RFRA, according to Becket Law, a legal organization focused on religious liberties from a pro-religious perspective).
[24]. See Fulton v. City of Philadelphia, 593 U.S. 522, 533 (2021).
[26]. Petition for Writ of Certiorari, Fulton v. City of Philadelphia, 593 U.S. 522 (2019) (No. 19-123).
[27]. Fulton, 593 U.S. at 522.
[33]. Id. at 617 (Alito, J., concurring).
[34]. Id. at 543 (Barrett, J., concurring); Justice Barrett elaborated on the type of questions the Court might need to address that required a more nuanced approach:
There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Should there be a distinction between indirect and direct burdens on religious exercise? What forms of scrutiny should apply? And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?
Id. at 543–44 (Barrett, J., concurring) (citations omitted).
[36]. Stephanie H. Barclay, Replacing Smith, 133 Yale L.J. F. 436, 437 (2023). I highlight Barclay’s article because she is, for a variety of reasons, well-positioned to be influential in the discourse aimed at Justice Barrett and others.
[39]. Id. at 231 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)). I believe that rationale is unlikely to convince Justice Barrett, as she wrote in her Fulton concurrence that, “[w]hile history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.” Fulton, 593 U.S. at 543 (Barrett, J., concurring).
[40]. See Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 888 (1990).