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02/22/2020

Originalist Showdown over Employment Division v. Smith?
Michael Ramsey

In The New Republic, Matt Ford: Conservative Supreme Court Justices Take Aim at Scalia.  From the introduction:

Justice Antonin Scalia, who died four years ago last week, is among the most celebrated figures in the conservative legal movement. ...

But that reverence does not extend to one of his most influential opinions: the majority decision he authored in Employment Division v. Smith in 1990.  In Smith, Scalia concluded that courts could not use the First Amendment’s free exercise clause to carve out exemptions from “neutral laws of general applicability”—in that case, Oregon’s criminalization of peyote. The ruling drew criticism from religious groups across the country and led to a wave of religious freedom legislation that sought to provide protections that the court refused to enforce on its own.

Three decades later, a coalition of religious groups and legal scholars is now asking the Supreme Court to overturn its ruling in Smith through a new case, Ricks v. Idaho Contracting Board. It argues that Scalia’s concerns about judicial power proved to be largely unfounded, that he misunderstood the framers’ vision of free-exercise protections, and that the ruling has unfairly burdened religious minorities in such cases ever since. If the justices agree to take up the case, the court’s conservative justices could ultimately scrap one of their icon’s most influential decisions.

If the Court takes on challenge to Smith, it will be an originalist event of major proportions.  The originalist arguments on both sides are very strong.  At the Federalist Society Lawyer's Convention last November, I saw Michael McConnell (Stanford) debate Philip Hamburger (Columbia) on the topic and concluded (1) those are two extraordinarily impressive originalist scholars and (2) I have no idea who's right.

Justice Scalia did not help himself with an uncharacteristically weak opinion in Smith (somewhat reinforced by his concurrence in the later case Boerne v. Flores).  His core conclusion in Smith was only that the claimants had not proved that the original meaning of the free exercise clause required exceptions to generally applicable laws.  But substantial originalist scholarship since then (especially by Professor McConnell) has undertaken to prove that proposition, and lawyers are much more sophisticated in making originalist arguments now.

I hope the Court will hear the Ricks case.  Among other things, you can't top these facts (from Ford): 

The case centers around George Ricks, an Idaho contractor who refused to provide his social security number when registering with the Idaho Bureau of Occupational Licenses in 2014. In his petition for the court, Ricks’s lawyers say he has “long had concerns, based on his understanding of the Bible, that it is morally wrong to participate in a governmental universal identification system, especially to buy or sell goods and services.” More specifically, Ricks asserted in a self-written filing in state court that he believes his social security number is “a form of the mark, and in substance (essence) the number of the 2-horned beast written of in the Holy Bible.”